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EX-12.1 - EX-12.1 - INN OF THE MOUNTAIN GODS RESORTS & CASINO | p18421exv12w1.htm |
EX-31.1 - EX-31.1 - INN OF THE MOUNTAIN GODS RESORTS & CASINO | p18421exv31w1.htm |
EX-32.2 - EX-32.2 - INN OF THE MOUNTAIN GODS RESORTS & CASINO | p18421exv32w2.htm |
EX-32.1 - EX-32.1 - INN OF THE MOUNTAIN GODS RESORTS & CASINO | p18421exv32w1.htm |
EX-31.2 - EX-31.2 - INN OF THE MOUNTAIN GODS RESORTS & CASINO | p18421exv31w2.htm |
Table of Contents
UNITED STATES SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-K
þ | ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES AND EXCHANGE ACT OF 1934 |
For the fiscal year ended September 30, 2010
OR
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
For the transition period from to
Commission file number 333-113140
INN OF THE MOUNTAIN GODS RESORT AND CASINO
(Exact Name of Registrant as Specified in Its Charter)
Not Applicable | 75-3158926 | |
(State or Other Jurisdiction | (I.R.S. Employer | |
of Incorporation or Organization) | Identification Number) | |
287 Carrizo Canyon Road | ||
Mescalero, New Mexico | 88340 | |
(Address of Principal Executive Offices) | (Zip Code) |
(575) 464-7777
(Registrants Telephone Number, Including Area Code)
(Registrants Telephone Number, Including Area Code)
Securities registered pursuant to Section 12(b) of the Exchange Act:
Title of Each Class | Name of Each Exchange on Which Registered | |
None | None |
Securities registered under
Section 12(g) of the Act:
(Title of Class)
None
Section 12(g) of the Act:
(Title of Class)
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of
the Securities Act. Yes o No þ
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or
Section 15(d) of the Act. Yes o No þ
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by
Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for
such shorter period that the registrant was required to file such reports), and (2) has been
subject to such filing requirements for the past 90 days. Yes þ No o
Indicate by check mark whether the registrant has submitted electronically and posted on its
corporate Web site, if any, every Interactive Data File required to be submitted and posted
pursuant to Rule 405 of Regulation S-T (§ 232.405 of this chapter) during the preceding 12 months
(or for such shorter period that the registrant was required to submit and post such files). o Yes o No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K
(§229.405 of this chapter) is not contained herein, and will not be contained, to the best of
registrants knowledge, in definitive proxy or information statements incorporated by reference in
Part III of this Form 10-K or any amendment to this Form 10-K. þ
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one):
Large accelerated filer o | Accelerated filer o | Non-accelerated filer þ | Smaller reporting company o | |||
(Do not check if smaller reporting company) |
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the
Exchange Act). Yes o No þ
State the aggregate market value of the voting and non-voting common equity held by non-affiliates
computed by reference to the price at which the common equity was last sold, or the average bid and
asked price of such common equity, as of the last business day of the registrants most recently
completed second fiscal quarter. Not applicable
Indicate the number of shares outstanding of each of the registrants classes of common stock, as
of the latest practicable date. Not applicable
DOCUMENTS INCORPORATED BY REFERENCE
List hereunder the following documents if incorporated by reference and the Part of the Form 10-K
(e.g., Part I, Part II, etc.) into which the document is incorporated: (1) Any annual report to
security holders; (2) Any proxy or information statement; and (3) Any prospectus filed pursuant to
Rule 424(b) or (c) under the Securities Act of 1933. The listed documents should be clearly
described for identification purposes (e.g., annual report to security holders for fiscal year
ended December 24, 1980). None
TABLE OF CONTENTS
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EX-32.2 |
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References in this Annual Report on Form 10-K (this Form 10-K or this Report) to (a) the
Tribe refers to the Mescalero Apache Tribe, a federally recognized Indian tribe, (b) IMG Resort
and Casino refers to Inn of the Mountain Gods Resort and Casino, a business enterprise of the
Tribe, (c) Casino Apache refers to Casino Apache, a business enterprise of the Tribe, (d) the
Inn refers to Inn of the Mountain Gods, a business enterprise of the Tribe, (e) the Travel
Center refers to Casino Apache Travel Center, a business enterprise of the Tribe and (f) Ski
Apache refers to Ski Apache, a business enterprise of the Tribe. Each of Casino Apache, the Inn,
the Travel Center and Ski Apache is a wholly-owned subsidiary of IMG Resort and Casino. References
in this Form 10-K to we, our, Resort, Company, IMGRC and us refer to IMG Resort and
Casino.
FORWARD-LOOKING STATEMENTS
This Form 10-K includes forward-looking statements within the meaning of Section 27A of the
Securities Act of 1933, as amended (the Securities Act), and Section 21E of the Securities
Exchange Act of 1934, as amended (the Exchange Act). Statements regarding our expected financial
condition, results of operations, business, strategies and financing plans in this Form 10-K are
forward-looking statements. In addition, the words anticipate, expect, will, propose,
plan, intend, designed, estimate, adjust and similar expressions, as they relate to us or
our management, indicate forward-looking statements. These forward-looking statements may prove to
be incorrect.
Forward-looking statements involve known and unknown risks, uncertainties and other important
factors that could cause our actual results, performance or achievements or industry results to
differ materially from any future results, performance or achievements expressed or implied by
these forward-looking statements. These risks, uncertainties and other important factors are
disclosed under Risk Factors and elsewhere in this Form 10-K.
You are urged to consider the below factors carefully in evaluating the forward-looking
statements contained in this Form 10-K. All subsequent forward-looking statements attributable to
us or persons acting on our behalf are expressly qualified in their entirety by our cautionary
statements. These forward-looking statements are made only as of the filing date of this Form
10-K. We do not intend, and undertake no obligation, to update these forward-looking statements.
Important factors that could cause our actual results to differ materially from our expectations
include, without limitation:
| our level of leverage and ability to meet our debt service obligations; | ||
| our dependence on WG-IMC, LLC and its majority owner, William W. Warner, to manage our facilities; | ||
| whether the exchange offer currently underway with respect to our existing debt securities is successful; | ||
| our financial performance; | ||
| restrictive covenants in our debt instruments; | ||
| realizing the benefits of our business plan and business strategies; | ||
| changes in gaming laws or regulations, including potential legalization of gaming in certain jurisdictions; | ||
| the impact of competition in our markets; | ||
| our ability to attract increasing numbers of customers; | ||
| general local, domestic and global economic conditions; and | ||
| other risks identified in this Form 10-K. |
PART I.
Item 1. Business
Overview
Our Company
We are a wholly-owned enterprise of the Tribe with the exclusive power to conduct gaming
activities on the Tribes reservation. We operate New Mexicos only all-season gaming destination
resort on the Tribes 725 square mile reservation in south-central New Mexico. Our areas of operation are (all statistics in
the following bullets are as of September 30, 2010):
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| Gaming. Approximately 47,000 square feet of combined gaming space, featuring 1,301 slot machines and 31 table games between our facilities at the IMG Resort and Casino (opened in March 2005) and Travel Center (opened in May 2003). | ||
| Food and Beverage. IMG Resort and Casino features: Wendells, a 116-seat casual and fine dining restaurant; Gathering of Nations Buffet, a 260-seat buffet style restaurant; a 72-seat sports bar; an 80-seat night club featuring live entertainment, dancing and DJ music; Wendells Lounge, a piano lounge featuring an oversized fireplace; and the Apache Summit BBQ, an 88-seat casual restaurant in the golf clubhouse which operates as a seasonal dining alternative catering primarily to guests at our golf course. Travel Center features Smokey Bs, a 130-seat casual dining restaurant, and one sports bar. Ski Apache operates one main restaurant and five satellite food and beverage outlets. | ||
| Hotel. The Inn features 273 luxury hotel rooms. The hotel varies between four and eight stories in height, depending upon the location along the hotel corridor, and allows for easy access to and from the casino and events center. Our over-sized deluxe guest rooms are either 480 square feet or 610 square feet and our suites are 1,200 square feet (with the ability to connect to a 480 square foot deluxe guest room, providing a total of 1,680 square feet in that configuration). All rooms feature a balcony view of Lake Mescalero, Sierra Blanca Mountain or the forest-lined golf course. The hotel also features an indoor swimming pool and fitness center, steam and sauna facilities for both men and women and a family locker area. | ||
| Recreation and Other. Our all-season recreational operations include Ski Apache, the second largest ski area in New Mexico with 11 ski lifts covering 55 trails over 750 acres, an 18-hole championship golf course, seasonal big-game hunts, a shooting range, horseback riding and boating and fishing on Lake Mescalero. Our ski resort is typically open from Thanksgiving until Easter, while our golf course generally operates from April through November. Our retail outlets include a gift shop, golf and pro shop and ski shop, as well as a 2,500-square foot convenience store and a fuel station with 12 gasoline and eight diesel pumping stations at the Travel Center. |
Management Agreement
On January 6, 2010, we entered into a management agreement with WG-IMG, LLC (a majority
interest in which is owned by
William W. Warner) pursuant to which WG-IMG, LLC manages, operates and maintains our casino and other businesses and trains the Tribe in the operation and maintenance thereof. The management agreement became effective following approval by the National Indian Gaming Commission (NIGC) in a letter dated January 19, 2010, and has a term of five years thereafter. Prior to entering into the management agreement, WG-IMG, LLC, pursuant to a consulting agreement, dated as of February 10, 2009, evaluated and made recommendations with respect to our casino and other business operations.
William W. Warner) pursuant to which WG-IMG, LLC manages, operates and maintains our casino and other businesses and trains the Tribe in the operation and maintenance thereof. The management agreement became effective following approval by the National Indian Gaming Commission (NIGC) in a letter dated January 19, 2010, and has a term of five years thereafter. Prior to entering into the management agreement, WG-IMG, LLC, pursuant to a consulting agreement, dated as of February 10, 2009, evaluated and made recommendations with respect to our casino and other business operations.
Exchange Offer Regarding Existing Senior Notes
We have incurred significant losses and have not made the scheduled semi-annual $12.0 million
interest payments on our 12% Senior Notes due 2010 (the Senior Notes) since November 15, 2008.
The Senior Notes matured on November 15, 2010. We did not pay the principal due at maturity. This
constitutes an event of default under the indenture governing the
Senior Notes and the
trustee or holders of at least 25% of the aggregate principal amount of the Senior Notes could
declare all of such notes immediately due and payable. On November 24, 2010, we commenced a
private offer to exchange our outstanding Senior Notes for (1) new 8.750% Senior Notes due 2020,
(2) new Senior PIK Notes due 2020 and (3) a pro rata amount of $18 million in cash. The exchange offer was scheduled to expire at 5:00 p.m., New York City time, on January 7,
2011. The exchange offer has been extended to expire at 5:00 p.m., New York City time, on January
21, 2011, unless extended further or terminated. The purpose of the extension is to allow
sufficient time for the receipt of regulatory approvals necessary for the exchange offer.
Business Strategy
For the past fiscal year, our management continued its focus on cost control and guest service
that began in the prior year. In addition, management placed a focus on growing revenues through
(1) targeted marketing efforts, (2) enhanced gaming product and new casino floor layouts, (3) a
focus on hotel rates and occupancy and (4) enhanced food offerings. The goal of these revenue
growth strategies is to generate incremental guest traffic during non-peak
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times through offerings
such as discounted buffet pricing, database offers and hotel room discounts, while maximizing
revenues during the busiest times by yielding higher hotel rates, offering premium food options,
and having the most popular gaming product. Our business is highly seasonal, which requires
management to employ strategies for both peak and non-peak times in order to maximize
profitability. Management also continued to execute a business strategy that aims at combining
consistency in the delivery of quality in all products and services as well as the cross marketing
of all our amenities.
| The Inn of the Mountain Gods Resort and Casino In 2010, the Resort launched a new brand campaign, Above & Beyond, representing the exceptional service, amenities and overall experience it offers. The revised brand strategy included a new advertising campaign that was executed internally, externally and through social media efforts. The Resort continues to be marketed and branded as the best all-season resort destination in the Southwest. The combination of premium quality facilities that are situated in the naturally beautiful mountains of Mescalero, distinguish the Inn from its competition within the region. To further refine the Inns brand, consistency in the delivery of quality in all services and amenities has been essential to attracting new guests as well as retaining existing ones. The Resort has used cross marketing opportunities with the enterprises other amenities to increase hotel occupancy and attract new customers. | ||
| Casino Apache Travel Center Casino Apache has developed a strong local customer base which fuels a year-round revenue stream. The facility is located directly off Highway 70, with more than 5.9 million vehicles passing by each year. Mid-week food and gaming promotions are offered and showcased on the electronic reader board. The grill-type restaurant features larger portion sizes of high-quality food at reasonable prices. A wide variety of slots is offered with a concentration in the lower denominations. | ||
| Ski Apache Business at Ski Apache has historically been highly dependent on the weather. For the fiscal year ended September 30, 2010, Ski Apache generated strong results due to significant snowfall. In 2008, however, Ski Apaches results suffered due to the lack of snowfall. We have invested in snow making equipment that should mitigate some of the risk of poor snowfall in the future. The management team continues to concentrate on service, maintenance and improved labor utilization to improve operating results. Ski Apache is cross-marketed with the Resort in an effort to generate increases in non-gaming revenues. | ||
| Championship Golf The Ted Robinson-designed championship golf course serves as an important amenity for the Inn of the Mountain Gods Resort. The golf course was originally opened in 1975 and has developed a reputation for providing a high-quality golf experience in a uniquely beautiful mountain setting. The golf course brand has also been enhanced by serving as the host location for the top two professional tournaments held in the State of New Mexico for the past four years. The hotel sales department has also been successful using the golf course as a cross-marketing tool to attract guests. | ||
| Big Game Hunting We believe Mescalero Big Game Hunts is one of the top bull elk operations in North America. Co-branding alliance with Christensen Arms, a premium firearms manufacturer, has expanded awareness and boosted recognition not only of the hunts but also of IMG Resort and Casino. In particular, the Inn has successfully marketed the hunt program to attract customers from outside of our regional customer base. |
Gaming in New Mexico
Competition
Our primary market area encompasses southern New Mexico, including the cities of Ruidoso,
Alamogordo, Las Cruces and Roswell, western Texas, including the cities of El Paso, Lubbock and
Odessa and northern Mexico, including Ciudad Juárez. According to the U.S. Census Bureau and
Desarrollo Economico de Ciudad Juárez/INEGI, as of March 2010, there were an estimated 2.6 million
people in our primary market area.
Currently, we compete with 15 tribal gaming casinos and non-tribal racinos operated within 200
miles of our location, one of which, Ruidoso Downs, is approximately 10 miles away from us in
Ruidoso, and another, Sunland Park Racetrack and Casino, is approximately 125 miles away from us in
Sunland Park, New Mexico. Ruidoso Downs offers quarter horse and thoroughbred racing from May
through September, as well as a 20,000 square foot casino featuring approximately 300 slot machines
and a buffet restaurant. Sunland Park offers quarter horse and thoroughbred racing from
mid-November to early-April, a 36,000 square foot casino featuring approximately 700
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slot machines
and five restaurants. The other 11 tribal gaming casinos and one racino are located in and around
Albuquerque and Santa Fe, New Mexico, all of which are outside of our primary market area. There is
also a racino in Hobbs, New Mexico, which is outside of our primary market area, but impacts our
west Texas customers. Further, the Department of Interior recently announced that it is
reconsidering its denial of the Pueblo of Jemezs application to put land into trust. The Pueblo of
Jemez is seeking trust status in order to conduct gaming on its land in Anthony, New Mexico, which
is located approximately 120 miles from our casino and approximately 20 miles north of El Paso,
Texas.
We also compete with other forms of legal gaming in New Mexico, Texas and Northern Mexico,
including horse racing, Class II gaming, pari-mutuel wagering, the New Mexico State Lottery, the
Texas State Lottery, as well as non-gaming leisure activities.
Mescalero Apache Tribe
Tribal Administration
The Tribe is a federally recognized Indian tribe located on a 725 square mile reservation in
south-central New Mexico and as of September 30, 2010, had approximately 4,681 members. The Indian
Reorganization Act of 1934 and subsequent federal legislation govern the relationship between the
Tribe and the United States government. The Tribe operates under a constitution approved by the
United States Secretary of the Interior on March 25, 1936, revised on January 12, 1965, and amended
on May 31, 1985.
In accordance with its Constitution, the Tribe is governed by and enacts laws through
ordinances and resolutions of the Mescalero Apache Tribal Council, or the Tribal Council, which is
comprised of a President, Vice President and eight Council Members, each of whom is elected by a
majority vote of the eligible adult enrolled members of the Tribe. The President is a non-voting
member of the Tribal Council and the Vice President only votes if necessary to break a tie. Each
member of the Tribal Council serves a two-year term, with the terms of the voting members staggered
so that each year four of those eight positions are up for election. The Tribal Council has the
power, by ordinance, to establish the principles and policies governing the operation and control
of all enterprises of the Tribe. The Tribal President has the power to contract for the Tribe upon
authorization from the Tribal Council. The Tribal Executive Committee, or the Executive Committee,
has responsibility for oversight of all business activities on behalf of the Tribal Council. The
Executive Committee is comprised of the President and Vice President as well as a Secretary and
Treasurer. The Secretary and Treasurer are appointed by the President from the present Tribal
Council.
Tribal Court System
The Constitution and Tribal Code provides for the establishment of the tribal court known as
the Mescalero Apache Tribal Court, or Tribal Court. The jurisdiction of the Tribal Court extends to
all matters, criminal and civil, except where prohibited by the Constitution, laws or treaties of
the United States of America, and except as this jurisdiction may be otherwise limited from time to
time by ordinance of the Tribal Council. The criminal offenses over which the Tribal Court has
jurisdiction may be embodied in a Code of Laws, adopted by ordinance of the Tribal Council, and
subject to review by the Secretary of the Interior. The duties and procedures of the Tribal Court
are determined by ordinance of the Tribal Council.
The Tribal Court consists of a chief judge and two associate judges, appointed by the
President of the Tribe, with the concurrence of not less than a three-fourths majority vote of the
whole membership of the Tribal Council. The Tribal Council also sits as a court of appeals whenever
necessary and may hear appeals at any regular or special meeting. The tenure and salary of tribal
judges is established by resolution of the Tribal Council.
A judge of the Tribal Court must be an Indian as defined in the Tribal Code, not less than
thirty-five years or more than seventy years of age, and cannot have been convicted of a felony,
or, within one year, of a misdemeanor. The Tribal Code defines an Indian as someone who possesses
at least one-quarter Indian blood, and is a member of any federally recognized tribe, nation, or
band of Indians, or is an Eskimo, Aleut, or other Alaskan.
The Tribe has adopted its own rules of procedure and evidence, which are found in the Tribal
Code. In determining cases, a tribal court judge relies on the applicable laws in the following
order of precedence: (a) Tribal Constitution, Tribal Code, ordinances, traditions and customs and (b) federal laws not
in conflict with tribal laws and customs.
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Mescalero Apache Tribal Gaming Commission
On August 20, 1999, the Tribe formed the Mescalero Apache Tribal Gaming Commission as a
governmental subdivision of the Tribe. The Mescalero Apache Tribal Gaming Commission consists of 4
members, including a Chairman, Vice Chairman and Secretary-Treasurer and Commissioner. The
Mescalero Apache Tribal Gaming Commission is vested with the authority to regulate all licenses and
gaming activity conducted on tribal lands, including licensing persons, vendors, financial sources
and contractors employed by the casino, ensuring compliance with internal control standards
established by the National Indian Gaming Commission, or the NIGC, an independent agency within the
U.S. Department of the Interior, and establishing technical specifications for gaming devices. The
Mescalero Apache Tribal Gaming Commission is responsible for carrying out the Tribes regulatory
responsibilities under federal, state and tribal law and the 2001 Compact.
Government Regulation
General
We are subject to federal and tribal laws governing commercial relationships with Indians,
Indian gaming and the management and financing of casinos owned by an Indian tribe. In addition, we
are regulated by federal and Mescalero Apache tribal laws and regulations applicable to the Indian
gaming industry and to the distribution of gaming equipment. The conduct of class III Las
Vegas-style gaming by the Tribe is also subject to regulation by the State of New Mexico in
accordance with the terms of the 2001 Compact. The following description of the regulatory
environment in which Indian gaming takes place and in which we operate our casinos is only a
summary and not a complete recitation of all applicable law. We cannot predict how certain
provisions will be interpreted from time to time or whether they will remain intact. Changes in
these laws could have a material adverse impact on our business and results of operations and our
ability to meet our debt service obligations.
Tribal Law and Legal Systems
Applicability of Federal Law. Federally recognized Indian tribes are independent governments,
with sovereign powers, except as those powers may have been limited by treaty or by the U.S.
Congress. The power of Indian tribes to enact their own laws to regulate gaming derives from the
inherent sovereignty of Indian tribes as confirmed by the Indian Gaming Regulatory Act of 1988 (the
IGRA). Indian tribes maintain their own governmental systems and often their own judicial
systems. Indian tribes have the right to tax persons and businesses operating on tribal lands, and
also have the right to require licenses and to impose other forms of regulations and regulatory
fees on persons and businesses operating on their lands.
Waiver of Sovereign Immunity; Jurisdiction; Exhaustion of Tribal Remedies. Indian tribes enjoy
sovereign immunity from un-consented suit similar to that of the states and the United States. To
sue an Indian tribe (or an enterprise, agency or instrumentality of an Indian tribe, such as us),
the tribe must have effectively waived its sovereign immunity with respect to the matter in
dispute. Further, in most commercial disputes with Indian tribes, the jurisdiction of the federal
courts, which are courts of limited jurisdiction, may be difficult or impossible to obtain. A
commercial dispute is unlikely to present a federal question, and courts have ruled that an Indian
tribe (or enterprise, agency or instrumentality thereof) as a party is not a citizen of any state
for purposes of establishing diversity jurisdiction in the federal courts. The remedies available
against an Indian tribe also depend, at least in part, on the rules of comity requiring initial
exhaustion of remedies of tribal tribunals and, as to most judicial remedies, the terms of the
tribes consent to be sued contained in the disputed agreements. Under U.S. Supreme Court case law,
where a tribal court exists, the remedies in that forum first may have to be exhausted before any
dispute arising on or involving the affected tribes reservation and to which the tribe, a tribal
enterprise such as us or a tribal member is a party, can be properly heard by federal or state
courts which might otherwise have jurisdiction. Generally, where a dispute as to the existence of
jurisdiction in the tribal forum exists, the tribal court first may need to rule as to the limits
of its own jurisdiction, subject to certain limited exceptions enumerated by the U.S. Supreme
Court.
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The Indian Gaming Regulatory Act of 1988
Regulatory Authority. The operation of casinos and of all gaming on Indian land is subject to
the IGRA. IGRA is administered by the NIGC which exercises primary federal regulatory
responsibility over Indian gaming. The NIGC has exclusive authority to issue regulations governing
tribal gaming activities, approve tribal ordinances for regulating Class II and Class III gaming
(as described below), approve management agreements for gaming facilities, and conduct
investigations and generally monitor tribal gaming. The Bureau of Indian Affairs, or the BIA, which
is a bureau of the Department of the Interior, retains certain responsibilities under IGRA (such as
the approval of per capita distribution plans to tribal members and the approval of transfers of
lands into trust status for gaming). The BIA also has responsibility to review and approve land
leases and other agreements relating to Indian lands. Criminal enforcement is a shared
responsibility of the U.S. Department of Justice and the Tribe, in accordance with federal law, and
perhaps by the state in which the Tribe is located if provided for in a tribal state compact
regarding the conduct of class III Las Vegas-style gaming.
The NIGC is empowered to impose civil penalties for violations of IGRA. IGRA also provides for
federal criminal penalties for illegal gaming on Indian land and for theft from Indian gaming
facilities. The NIGC has adopted rules implementing certain provisions of IGRA. These rules govern,
among other things, the submission and approval of tribal gaming ordinances or resolutions and
require an Indian tribe to have the sole proprietary interest in and responsibility for the conduct
of any gaming on its lands. Tribes are required to issue gaming licenses only under articulated
standards, conduct or commission financial audits of their gaming enterprises, perform or
commission background investigations for primary management officials and key employees and
maintain facilities in a manner that adequately protects the environment and the public health and
safety. These rules also set out review and reporting procedures for tribal licensing of gaming
operation employees.
Classes of Gaming. IGRA classifies games that may be conducted on Indian lands into three
categories. Class I gaming includes social games solely for prizes of minimal value or traditional
forms of Indian gaming engaged in by individuals as part of, or in connection with, tribal
ceremonies or celebrations. Class II gaming includes bingo, pull tabs, lotto, punch boards,
non-banked card games, tip jars, instant bingo and other games similar to bingo, if those games are
played at the same location as bingo is played. Class III gaming includes all other forms of
gaming, such as slot machines, video casino games, banked table games and other commercial gaming,
such as sports betting and pari-mutuel wagering.
Class III gaming is permitted on Indian lands if the conditions applicable to Class II gaming
are met and, in addition, the gaming is conducted in conformity with the terms of a tribal-state
compact, which is a written agreement between the tribal government and the government of the state
within whose boundaries the tribes lands lie. IGRA requires Indian tribes to enter into
tribal-state compacts in order to conduct Class III gaming. Such compacts must be approved by the
Secretary of the Department of the Interior in order to become effective.
Tribal-State Compacts. Tribal-state compacts may include provisions for the allocation of
criminal and civil jurisdiction between the state and the Indian tribe necessary for the
enforcement of these laws and regulations, taxation by the Indian tribe of the Class III gaming
activity in amounts comparable to those amounts assessed by the state for comparable activities,
remedies for breach, standards for the operation of the Class III gaming activity and maintenance
of the gaming facility, including licensing and any other subjects that are directly related to the
operation of gaming activities. While the terms of tribal-state compacts vary from state to state,
compacts within one state tend to be substantially similar. Tribal-state compacts usually specify
the types of permitted games, establish technical standards for video gaming machines, set maximum
and minimum machine payout percentages, entitle the state to inspect casinos, require background
investigations and licensing of casino employees and may require the tribe to pay a portion of the
states expenses for establishing and maintaining regulatory agencies. Some tribal-state compacts
are for set terms, while others are for indefinite duration.
Tribal Ordinances. Under IGRA, except to the extent otherwise provided in a tribal-state
compact as described below, Indian tribal governments have primary regulatory authority over Class
III gaming on land within a tribes jurisdiction. Therefore, a tribes gaming operations and
persons engaged in gaming activities are guided by and subject to the provisions of that tribes
ordinances and regulations regarding gaming.
IGRA requires that the NIGC review tribal gaming ordinances and authorizes the NIGC to approve
these ordinances only if they meet requirements relating to:
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| the ownership, security, personnel background, recordkeeping and auditing of a tribes gaming enterprises; | ||
| the use of the revenues from that gaming; and | ||
| the protection of the environment and the public health and safety. |
Possible Changes in Federal Law. While there have been a number of technical amendments to the
law, to date there have been no material changes to IGRA. Any amendment of IGRA could change the
governmental structure and requirements within which we could conduct gaming, and may have an
adverse effect on our business and results of operations or impose additional regulatory or
operational burdens.
Employee and Labor Relations
As of September 30, 2010, we had 819 full-time team members, excluding approximately 63
additional seasonal team members during the ski season, which typically runs from Thanksgiving to
Easter. We have developed and implemented training programs for our hotel and resort team members
and believe that we will be able to hire and train a sufficient number of employees for the
operation of the Resort. Our team members are not covered by any collective bargaining agreements.
We have good labor relations with our team members, over 45% of whom are tribal members or tribal
affiliates.
Item 1A. Risk Factors
RISK FACTORS
In addition to other information contained in this Report, you should carefully consider the
following cautionary statements and risk factors. The risks and uncertainties described below are
not the only risks and uncertainties we face. Additional risks and uncertainties not presently
known to us or that we currently deem immaterial also may impair our business operations. If any of
the following risks actually occur, our business, financial condition, and results of operations
could suffer. The risks discussed below also include forward-looking statements and our actual
results may differ substantially from those discussed in these forward-looking statements. See
Forward-Looking Statements.
Risks Relating to Our Business
The report of our Independent Registered Public Accounting Firm contains an explanatory paragraph
expressing substantial doubt about our ability to continue as a going concern.
Our failure to make scheduled interest payments on the Senior Notes since November 15, 2008,
together with our history of recurring losses, negative working capital and limited access to
capital, has caused our independent registered public accounting firm to express substantial doubts
about our ability to continue as a going concern in their audit of our financial statements for the
fiscal year ended September 30, 2010. Historically, we have not generated sufficient cash flow
from operations to satisfy our capital requirements and we have relied upon debt financing
arrangements to satisfy such requirements. There can be no assurance that our future cash flows and
capital resources will be sufficient to meet our capital requirements. If we are unable to generate
sufficient cash flow from operations and refinance or restructure our debt, we will be left without
sufficient liquidity and may be forced to continue to reduce or delay activities and capital
expenditures and may not be able to meet our debt service requirements and repayment obligations.
We have a substantial amount of indebtedness, which could adversely affect our financial condition.
As of September 30, 2010, we had an aggregate of $252.2 million of indebtedness outstanding,
which includes $200.0 million of principal and $51.8 million of accrued interest in connection with
our 12% Senior Notes due 2010. This substantial indebtedness could have important consequences to
you and significant effects on our business and future operations. For example, it could:
| make it more difficult for us to satisfy our debt service obligations; | ||
| increase our vulnerability to general adverse economic and industry conditions or a downturn in our business; |
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| limit our ability to fund future working capital, capital expenditures and other general operating requirements; | ||
| require us to dedicate a substantial portion of our cash flow from operations to service our outstanding indebtedness, thereby reducing the availability of our cash flow to fund working capital, capital expenditures, and other general operating requirements; | ||
| place us at a competitive disadvantage compared to our competitors that have less debt; and | ||
| limit our ability to borrow additional funds. |
Our indebtedness could result in a material adverse effect on our business, financial condition and
results of operations. If we incur additional debt in the future, these adverse consequences could
intensify.
Our failure to generate sufficient cash flow from our gaming and other resort operations could
adversely affect our ability to meet our debt service obligations.
Our ability to make payments on and repay or refinance our debt will depend on our ability to
generate cash flow from the operations of our gaming and other resort operations. Our ability to
generate sufficient cash flow from operations to satisfy our obligations will depend on our future
operating performance, which is subject to many economic, competitive, regulatory and other
factors that are beyond our control. If we are not able to generate sufficient cash flow
to service our debt obligations, we may need to refinance or restructure our debt, sell assets,
reduce or delay capital investments, or seek to raise additional capital. For the following
reasons, among others, these alternatives may not be available to us on reasonable terms or at all,
or, if available, they may not be available in amounts adequate to enable us to satisfy our debt
service obligations:
| unlike non-governmental businesses, we are prohibited by law from generating cash through an offering of equity securities; | ||
| our ability to incur additional debt is or is expected to be limited by the covenants of the indentures governing our 12% Senior Notes due 2010 and any notes issued in exchange for such notes; and | ||
| the indentures governing our 12% Senior Notes due 2010 and any notes issued in exchange for such notes include or are expected to include covenants which limit our ability to create liens on or sell our assets. | ||
| If our cash flow is insufficient and we are unable to raise additional capital, we may not be able meet our debt service obligations. |
Our failure to make scheduled payments on our Senior Notes due 2010 constitutes an event of default
and the notes could be declared immediately due and payable. After consummation of the exchange
offer, if any, our 12% Senior Notes due 2010 will remain in default and we may determine not to
make any further payments on the Senior Notes due 2010, in which case holders of such notes may
need to pursue remedies against us.
We have not made the scheduled semi-annual $12.0 million interest payments on our 12% Senior
Notes due 2010 (the Senior Notes) since November 15, 2008. The Senior Notes matured on November
15, 2010. We did not pay the principal due at maturity. Our failure to make these payments
constitutes an event of default under the indenture governing the Senior Notes and the trustee or
holders of at least 25% of the aggregate principal amount of the Senior Notes could declare all of
such notes immediately due and payable. After the consummation of the exchange offer, if any, an
event of default will continue to exist under the indenture governing the Senior Notes, with
respect to any Senior Notes that remain outstanding. We may determine not to make any further
payments on the Senior Notes, in which case holders of such notes may need to pursue remedies
against us.
If our Senior Notes due 2010 are declared immediately due and payable, it would constitute a
default under the terms of our furniture and equipment loan and the lenders thereunder could
declare the outstanding loan to be immediately due and payable and may enforce their rights to the
collateral securing the loan, which would have a material adverse effect on our business.
In 2004, we borrowed an aggregate of $15.0 million to finance the purchase of furniture and
equipment for the Resort. As of September 30, 2010, we had $8,912 outstanding
under the loan. The loan is secured by substantially all of the gaming equipment and other
furniture and equipment at the Resort. It would be a default under the loan if our Senior Notes
were to be declared due and payable immediately. In addition, a default under the loan would exist
if, among other things, (1) we or any of our subsidiaries becomes insolvent or makes an
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assignment
for the benefit of creditors or (2) there has been a material adverse change in our financial
condition or the financial condition of any of our subsidiaries since any funding under the loan.
Upon the occurrence of a default under the loan, the lenders may declare the loan to be due and
payable immediately and would be able to enforce their rights to the collateral securing the loan.
Foreclosure on a material portion of the collateral securing the loan could significantly impair
our ability to operate the Resort, which would have a material adverse effect on our business.
Failure to consummate the exchange offer successfully will cause the Senior Notes to remain in
default and the Senior Notes could become immediately due and payable.
On November 24, 2010, we commenced a private offer to exchange our outstanding Senior Notes
for two series of new notes and cash. The exchange offer is subject to several conditions which
must be satisfied or waived, including at least 99.5% of the outstanding principal amount of the
Senior Notes being tendered and our receipt of a letter from the NIGC providing that the indenture
governing the notes to be issued in exchange for the Senior Notes and the primary collateral
documents securing such exchange notes are not management contracts required to be approved by the
chairperson of the NIGC. We also have the right to terminate the exchange offer at any time. The
exchange offer is part of our ongoing strategy to refinance and restructure our existing
indebtedness. If we fail to consummate the exchange offer successfully, an event of default will
continue to exist under the indenture governing the Senior Notes and the trustee or holders of at
least 25% of the outstanding principal amount of the Senior Notes could declare all of the Senior
Notes immediately due and payable.
We are dependent on WG-IMG, LLC and its majority owner, William W. Warner, as manager of the casino
and our other businesses, and the loss of either could have an adverse impact on our business and
results of operations.
The success of our business will significantly depend on the efforts and skills of our
management company, WG-IMG, LLC and its majority owner, William W. Warner. Our management agreement
with WG-IMG, LLC has a term of five years from the date the NIGC approved the agreement, which
occurred on January 19, 2010. Should we lose the services of WG-IMG, LLC for any reason, we would
be able to hire on a salaried basis individual managers to manage our casino resort, but we would
be unable to engage another company to manage our casino resort until the NIGC approves the
contractual arrangement and conducts necessary background investigations of the new management
company and its key employees. This process typically takes between nine and 24 months for a
company that has not previously undergone a background investigation conducted by the NIGC. If we
lose WG-IMC, LLC as our manager and we are unable to promptly engage qualified managerial employees
or a qualified management company on terms favorable to us, our business and results of operations
may be adversely affected and we may be unable to make payments on the New Notes.
Additionally, the loss of William W. Warner, the majority owner of WG-IMG, LLC, would result
in a significant loss of expertise, which in turn could have a material adverse effect on WG-IMG,
LLCs ability to manage our casino resort.
Restrictive covenants in the indentures governing our Senior Notes due 2010 and any notes issued in
exchange thereof may limit our ability to expand our operations and capitalize on our business
opportunities.
The indenture governing our Senior Notes due 2010 currently includes, and the indenture to
govern any notes issued in exchange thereof is expected to include, covenants which limit our
ability to borrow money, make investments, create liens, sell assets, engage in transactions with affiliates, engage in other
businesses and engage in mergers or consolidations. These restrictive covenants may limit our
ability to expand our operations and capitalize on business opportunities. If we are unable to
expand our operation or otherwise capitalize on our business opportunities, our business, financial
condition and results of operations could be materially adversely affected and
we may not be able to meet our debt service obligations.
If we are unable to realize the benefits of our business strategy, our business and results of
operations could be adversely affected.
Our business strategy is to offer an all-season gaming destination resort, with a focus on
cost-control, internal controls and guest services across each of the Tribes hospitality
enterprises. Implementation of our business
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strategy could be adversely affected by a number of
factors beyond our control, including general or local economic conditions, increased competition
or other changes in our industry. In particular, we may not be able to attract a sufficient number
of guests, gaming customers and other visitors in order to achieve our performance goals.
Furthermore, we may not be successful in our plan to promote our customers utilization of our
various resort amenities, including our gaming, hotel, entertainment and other amenities to a
degree that will allow us to achieve our performance goals. Additionally, our business strategy,
intended to capitalize on the spending levels of our patrons, attract customers from new target
markets and reduce seasonality, may not achieve its intended results. A failure to effectively
implement our business strategy could have a material adverse effect on our business, financial
condition, results of operations and our ability to meet our debt service obligations.
Federal, state and tribal laws and regulations, and our gaming compact, regulate our gaming
operations and noncompliance with these laws and regulations by us or the Tribe, as well as changes
in these laws and regulations (which are susceptible to changes in public policy) or future
interpretations thereof, could have a material adverse effect on our ability to conduct gaming, and
thus on our ability to meet our debt service obligations.
Federal, state and tribal laws and regulations, and our gaming compact, regulate our gaming
operations. For example, various regulatory bodies, including the NIGC, the Mescalero Apache Tribal
Gaming Commission and the New Mexico Gaming Control Board have oversight of our gaming operations.
In addition, the U.S. Congress has authority over Indian affairs and can establish and change the
terms upon which Indian tribes may conduct gaming. The operation of all gaming on Indian lands is
subject to IGRA.
The legal and regulatory environment governing our activities, which involve gaming and
commercial relations with Indian tribes, is susceptible to changes in public policy regarding these
matters and we cannot predict the ramifications of future legislative acts. Changes in applicable
laws or regulations, or a change in the interpretation of these laws or regulations or our gaming
compact with the State of New Mexico could limit or materially affect the types of gaming, if any,
that we may offer. Any restrictions with respect to gaming could have a material adverse effect on
our business, financial condition, results of operations and our ability to meet our debt service
obligations.
We compete with casinos, other forms of gaming and other resort properties. If we are not able to
successfully compete, we will not be able to generate sufficient cash flow to meet our debt service
obligations.
The gaming industry is very competitive. Currently, we compete with 15 tribal gaming casinos
and non-tribal racinos operated within 200 miles of our location, one of which, Ruidoso Downs, is
approximately 10 miles away from us in Ruidoso, and another, Sunland Park Racetrack and Casino, is
approximately 125 miles away from us in Sunland Park, New Mexico. Ruidoso Downs offers quarter
horse and thoroughbred racing from May through September, as well as a 20,000 square foot casino
featuring approximately 300 slot machines and a buffet restaurant. Sunland Park offers quarter
horse and thoroughbred racing from mid-November to early-April, a 36,000 square foot casino
featuring approximately 700 slot machines and five restaurants. The other 11 tribal gaming casinos
and one racino are located in and around Albuquerque and Santa Fe, New Mexico, all of which are
outside of our primary market area. There is also a racino in Hobbs, New Mexico, which is outside
of our primary market area, but impacts our west Texas customers. Recently, the Department of
Interior announced that it is reconsidering its denial of the Pueblo of Jemezs application to put
land into trust. The Pueblo of Jemez is seeking trust status in order to conduct gaming on its land
in Anthony, New Mexico, which is located approximately 120 miles from our casino and approximately
20 miles north of El Paso, Texas. We also compete with other forms of legal gaming in New Mexico,
Texas and Northern Mexico, including horse racing, Class II gaming, pari-mutuel wagering, the New
Mexico State Lottery, the Texas State Lottery, as well as non-gaming leisure activities. We intend
to expand our existing geographic market and increase the percentage of our overnight and larger
spending customers who tend to live greater distances from us. Many of our competitors in this
expanded geographical market have substantially greater resources and name recognition than we do
or are in a more convenient location, which is closer to a major population center or
transportation hub. If we are unable to compete successfully, our business, financial condition and
results of operations could be materially adversely affected and we may not be able to meet our
debt service obligations.
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We are highly dependent on our surrounding market area. As a result, we face greater risks than a
geographically diverse company.
We rely primarily on drive-in customers living within our primary market area consisting of
southern New Mexico, western Texas and northern Mexico for the majority of our revenues. We expect
to increase our market reach, but if our marketing strategy is not successful, our primary customer
base will continue to be a predominately local one. Therefore, we are subject to greater risks than
more geographically diversified gaming or resort operations. Among others, the following conditions
could have a material adverse effect on our results of operations:
| a decline in the economies of our primary market area or a deadline in the number of gaming customers from these areas for any reason; | ||
| an increase in competition in our primary market area or the surrounding area; | ||
| inaccessibility due to road construction or closures of primary access routes; and | ||
| natural and other disasters in the surrounding area including forest fires and floods. |
These factors may cause a disruption in our business and as a result have a material adverse
effect on our business, financial condition, result of operations and our ability to meet our debt
service obligations.
We do not currently have a Chief Financial Officer and it may be difficult for us to find a Chief
Financial Officer with the appropriate level of experience.
On October 1, 2010, Ben Martinez, our Chief Financial Officer and a member of our Management
Board, resigned. In the interim, Scott Eldredge has assumed the role of Chief Financial
Officer. It may be difficult to locate candidates to replace this position with the
appropriate level of knowledge and experience. We can not assure you that we will be able to
locate a qualified replacement candidate at all or on terms acceptable to us. Failure to timely
recruit and retain a qualified candidate could result in management, operating and financial
reporting difficulties, which could have an adverse effect on our business.
We may face difficulties in recruiting, training and retaining qualified employees and our failure
to do so could have a material adverse effect on our business.
The operation of our resort requires us to continuously recruit and retain a substantial
number of qualified professionals, employees, executives and managers with gaming, hospitality,
management and financial reporting experience. There can be no assurances that we will be able to
recruit, train and retain a sufficient number of qualified employees. A failure to be able to
recruit and retain qualified personnel could result in management, operating and financial
reporting difficulties or affect the experience and enjoyment of our patrons, either of which could
have a material adverse effect on our business, financial condition, results of operations or
ability to meet our debt service obligations. Other members of senior management may also change
from time to time, which loss could cause disruption or additional expense to replace
Changes in the Tribal Council and our Management Board or their policies could affect the Inn of
the Mountain Gods Resort and Casino or other aspects of our business.
The terms of all Tribal Council members (including the President and Vice President of the
Tribe) are two years, with members elected on a staggered basis so that four Tribal Council members
are elected each year. Because members of the Tribal Council typically comprise a majority of our
Management Board, any changes to the Tribal Council will also alter the composition of our
Management Board, which directly oversees the Inn of the Mountain Gods Resort and Casino. If there
is a significant change in the composition of the Tribal Council, the new Tribal Council may not
have the same agenda or goals as the current government, in particular with respect to our
operations. Changes in the Tribal Council and our Management Board or their policies could result
in significant changes in our structure or operations, which could adversely affect our business
plan or otherwise result in a material adverse effect in our business, financial condition, results
of operations or ability to meet our debt service obligations.
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The effects of inflation may have a material adverse effect on our operations.
Changes in competitive and economic conditions or in specific prices affecting the industry
and our operations, such as fuel and transportation prices, relative to the general rate of
inflation may have a material adverse effect on the hotel and casino industry in general and on our
operations.
Energy and fuel price increases, such as the dramatic increases in gasoline prices in recent years,
may adversely affect our costs of operations and our revenues.
We use a significant amount of electricity, natural gas and other forms of energy. Substantial
increases in the cost of electricity in the United States would negatively affect our results of
operations. In addition, energy and fuel price increases in cities that constitute a significant
source of our customers could result in a decline in disposable income of potential customers, and
lead our customers and potential customers to decide not to travel, either of which could result in
a corresponding decrease in visitation to Inn of the Mountain Gods Resort and Casino, which would
negatively impact our revenues. The extent of this impact is subject to the magnitude and duration
of the energy and fuel price increases, which could be material.
Our insurance policy failed to cover all of the storm damage due to Hurricane Dolly in 2008 and may
fail to cover similar or other damage in the future.
The severe flooding which occurred due to weather remnants of Hurricane Dolly caused a
substantial amount of damage to Ski Apache. We have an insurance policy that provides for up to
$5.0 million in flood damage coverage with a $100,000 deductible. The insurance company has covered
$5.0 million of our flood damage insurance claim however; we are bearing the costs of repairs and
seeking alternative funding sources through FEMA for reimbursement of those costs in excess of $5.0
million. There can be no assurance that our insurance coverage is sufficient to cover damage
similar to that caused by Hurricane Dolly or other damage in the future.
The downturn in the economy may continue to affect consumer spending on discretionary items such as
travel and leisure, which could have a material adverse effect on our business, financial condition
and results of operations.
Our results of operations may be materially affected by conditions in the global capital
markets and the economy generally, both in the U.S. and elsewhere around the world. The stress
experienced by global capital markets that began in the second half of calendar year 2008 has
continued since that time. Recently, concerns over inflation, energy costs, geopolitical issues,
the availability and cost of credit, the U.S. mortgage market and a declining real estate market in
the U.S. have contributed to increased volatility and diminished expectations for the economy. A
continued or protracted downturn in the economy could adversely impact consumer spending on
discretionary items such as travel and leisure. Factors that could affect consumers willingness
to spend money on non-essential leisure travel include general business conditions, levels of
employment, energy costs, interest rates and tax rates, the availability of consumer credit and
consumer confidence. A reduction in consumer spending could significantly reduce our profits. The
occurrence of these events could have a material adverse effect on our business, financial
condition and results of operations.
A change in the tax treatment of the casinos revenues could have a material adverse effect on our
ability to fulfill our obligations under the New Notes.
Based on current interpretations of United States tax laws, the casinos revenues are not
taxable for United States federal income tax purposes. There can be no assurance that these
interpretations will not be reversed or modified, or that federal tax law will not change. In the
past, efforts have been made in Congress to tax the income of tribal business entities. Although no
such legislation has been enacted, or is currently pending, similar legislation could be passed in
the future. Future legislation in this area could materially and adversely affect our ability to
make payments our debt service obligations.
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Recent turmoil in the credit and capital markets and in the financial services industry may
increase our borrowing costs and may negatively impact our liquidity.
Recently, the credit markets, capital markets and the financial services industry have
experienced a period of unprecedented turmoil and upheaval characterized by the bankruptcy,
failure, collapse or sale of various financial institutions and an unprecedented level of
intervention from the U.S. federal government. While the ultimate outcome of these events cannot be
predicted, they may have a material adverse effect on our liquidity and financial condition if our
ability to borrow money to finance our operations were to be impaired. We may also be unable to
refinance our indebtedness in the capital markets if we desire or we may be able to do so only at
unfavorable rates as a result of capital markets turmoil. In addition, capital markets have
recently experienced significant volatility and disruption. We anticipate that the capital markets
could be a source of refinancing of our indebtedness in the future. This source of refinancing may
not be available if capital markets volatility and disruption continues, which could have a
material adverse effect on our liquidity.
We may be subject to material environmental liability as a result of unknown environmental hazards,
thereby exposing us to substantial investigation, remediation or removal costs.
Under various federal, state and local environmental laws, ordinances and regulations, a
current or previous owner or operator of real estate may be required to investigate and clean up
hazardous or toxic substances or chemical releases on or relating to its property and may be held
liable to a governmental entity or to third parties for property damage, personal injury and for
investigation and cleanup costs incurred by such parties in connection with the contamination. Such
laws typically impose cleanup responsibility and liability without regard to whether the owner knew
of or caused the presence of contaminants. The costs of investigation, remediation or removal of
such substances may be substantial. Although the Tribe has not waived its sovereign immunity with
regard to such federal, state and local environmental legislation (and is otherwise not subject to
state and local environmental legislation), the existence or discovery of an environmental hazard
on any of its lands could result in an assertion of liability under federal environmental laws and
have a significant adverse effect on the Tribes relations with the state and the local community.
Item 1B. Unresolved Staff Comments
None.
Item 2. Properties
We do not currently, and will not, own the land on which our gaming and resort enterprises are
located, including the IMG Resort and Casino, the Travel Center and a portion of Ski Apache. The
U.S. government holds all of the land in trust for the benefit of the Tribe. The use of tribal land
is provided to us rent-free. In addition, we have a special use permit from the United States
Department of Agriculture, Forest Service for the operation of the remaining portion of Ski Apache.
The special use permit expires on December 31, 2014.
Item 3. Legal Proceedings
Legal Proceedings
We are involved in litigation incurred in the normal course of business; however, we are not
currently a party to any material pending claim or legal action.
Item 4. (Removed and Reserved)
PART II.
Item 5. Market for Registrants Common Equity, Related Stockholder Matters and Issuer Purchases of
Equity Securities
The Resort has not issued or sold any equity securities.
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Item 6. Selected Financial Data
SELECTED HISTORICAL FINANCIAL AND OTHER DATA
Twelve months | ||||||||||||||||||||||||||||||||
Fiscal year ended | ended | Five months ended | Fiscal year ended | |||||||||||||||||||||||||||||
September 30, | September 30, | September 30, | April 30, | |||||||||||||||||||||||||||||
2010 | 2009 | 2009 | 2008 | 2009 | 2008 | 2007 | 2006 | |||||||||||||||||||||||||
(unaudited) | (unaudited) | |||||||||||||||||||||||||||||||
Statements
of Income Data: |
||||||||||||||||||||||||||||||||
Revenues: |
||||||||||||||||||||||||||||||||
Gaming |
$ | 74,722 | $ | 74,555 | $ | 35,125 | $ | 34,920 | $ | 74,383 | $ | 77,537 | $ | 76,473 | $ | 76,476 | ||||||||||||||||
Hotel |
10,047 | 10,921 | 5,430 | 6,138 | 11,422 | 12,157 | 12,199 | 9,587 | ||||||||||||||||||||||||
Food and beverage |
12,978 | 11,956 | 5,721 | 6,348 | 12,582 | 14,265 | 13,213 | 11,535 | ||||||||||||||||||||||||
Recreation and other |
18,390 | 14,306 | 5,455 | 7,962 | 16,812 | 20,216 | 22,821 | 16,220 | ||||||||||||||||||||||||
Gross
revenues |
116,137 | 111,738 | 51,731 | 55,368 | 115,199 | 124,175 | 124,706 | 113,818 | ||||||||||||||||||||||||
Less: promotional
allowances |
949 | 891 | 395 | 352 | 882 | 2,105 | 2,255 | 2,766 | ||||||||||||||||||||||||
Net revenues |
115,188 | 110,847 | 51,336 | 55,016 | 114,317 | 122,070 | 122,451 | 111,052 | ||||||||||||||||||||||||
Operating expenses: |
||||||||||||||||||||||||||||||||
Gaming |
23,919 | 24,968 | 10,820 | 12,101 | 26,249 | 26,647 | 26,376 | 27,179 | ||||||||||||||||||||||||
Hotel |
3,605 | 4,005 | 1,553 | 2,306 | 4,758 | 4,434 | 4,658 | 5,181 | ||||||||||||||||||||||||
Food and beverage |
13,275 | 12,349 | 5,298 | 6,497 | 13,547 | 15,348 | 14,215 | 15,729 | ||||||||||||||||||||||||
Recreation and other |
11,029 | 10,124 | 4,221 | 5,935 | 11,881 | 14,908 | 13,862 | 12,379 | ||||||||||||||||||||||||
Marketing |
8,513 | 8,490 | 3,893 | 3,240 | 8,344 | 10,005 | 8,816 | 8,920 | ||||||||||||||||||||||||
General and
administrative |
15,532 | 17,185 | 6,194 | 6,841 | 16,885 | 14,594 | 13,998 | 18,418 | ||||||||||||||||||||||||
Management fees |
2,005 | | | | | | | | ||||||||||||||||||||||||
Refinance charges |
1,420 | | | | | | | | ||||||||||||||||||||||||
Depreciation and
amortization |
11,400 | 12,110 | 5,073 | 5,125 | 12,162 | 16,061 | 18,170 | 17,779 | ||||||||||||||||||||||||
Insurance
reimbursement |
(2,237 | ) | (5,451 | ) | (45 | ) | (1,100 | ) | (5,406 | ) | | | | |||||||||||||||||||
Storm costs |
221 | 300 | 21 | 117 | 377 | | | | ||||||||||||||||||||||||
Loss (gain) on
disposal of assets |
(25 | ) | (18 | ) | (15 | ) | 46 | 294 | 64 | 7 | | |||||||||||||||||||||
Total
operating expenses |
88,657 | 84,062 | 37,013 | 41,108 | 89,091 | 102,061 | 100,102 | 105,585 | ||||||||||||||||||||||||
Income from operations |
26,531 | 26,785 | 14,323 | 13,908 | 25,226 | 20,009 | 22,349 | 5,467 | ||||||||||||||||||||||||
Interest income
(expense), net of
amounts capitalized |
(31,372 | ) | (27,316 | ) | (12,070 | ) | (10,911 | ) | (26,115 | ) | (26,230 | ) | (26,362 | ) | (26,398 | ) | ||||||||||||||||
Other non-operating
income |
114 | 51 | 25 | 44 | 32 | 47 | 48 | (337 | ) | |||||||||||||||||||||||
Net income
(loss) |
$ | (4,727 | ) | $ | (480 | ) | $ | 2,278 | $ | 3,041 | $ | (857 | ) | $ | (6,174 | ) | $ | (3,965 | ) | $ | (21,268 | ) | ||||||||||
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Fiscal | ||||||||||||||||||||||||||||||||
year | ||||||||||||||||||||||||||||||||
ended | Twelve months | |||||||||||||||||||||||||||||||
September | ended | Five months ended | Fiscal year ended | |||||||||||||||||||||||||||||
30, | September 30, | September 30, | April 30, | |||||||||||||||||||||||||||||
2010 | 2009 | 2009 | 2008 | 2009 | 2008 | 2007 | 2006 | |||||||||||||||||||||||||
(unaudited) | (unaudited) | |||||||||||||||||||||||||||||||
Other
Financial Data: |
||||||||||||||||||||||||||||||||
EBITDA(1) |
$ | 37,931 | $ | 38,895 | $ | 19,396 | $ | 19,033 | $ | 37,388 | $ | 36,070 | $ | 40,519 | $ | 23,246 | ||||||||||||||||
Capital expenditures |
3,907 | 830 | 830 | 836 | 9,358 | 1,298 | 472 | 14,769 | ||||||||||||||||||||||||
Cash provided by
(used in) operating
activities |
38,230 | 19,437 | 19,793 | 7,322 | 8,728 | 11,297 | 10,583 | (1,528 | ) | |||||||||||||||||||||||
Cash used in
investing
activities |
(4,594 | ) | (830 | ) | (1,185 | ) | (999 | ) | (4,536 | ) | (1,298 | ) | (1,517 | ) | (20,640 | ) | ||||||||||||||||
Cash provided by
(used in) financing
activities |
(20,086 | ) | (20,635 | ) | (20,635 | ) | (4,386 | ) | (11,610 | ) | (11,953 | ) | (8,906 | ) | 25,218 | |||||||||||||||||
Ratio of Earnings
to Fixed Charges
(2) |
0.9 | x | 1.0 | x | 1.2 | x | 1.3 | x | 1.0 | x | 0.8 | x | 0.9 | x | 0.2 | x |
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Fiscal | ||||||||||||||||||||||||||||||||
year | ||||||||||||||||||||||||||||||||
ended | Twelve months | |||||||||||||||||||||||||||||||
September | ended | Five months ended | Fiscal year ended | |||||||||||||||||||||||||||||
30, | September 30, | September 30, | April 30, | |||||||||||||||||||||||||||||
2010 | 2009 | 2009 | 2008 | 2009 | 2008 | 2007 | 2006 | |||||||||||||||||||||||||
(unaudited) | (unaudited) | |||||||||||||||||||||||||||||||
Property Data (as
of end of period
except win per day
data) (unaudited): |
||||||||||||||||||||||||||||||||
Net slot win per day |
$ | 138 | $ | 129 | $ | 151 | $ | 135 | $ | 127 | $ | 125 | $ | 125 | $ | 119 | ||||||||||||||||
Net table game win
per day |
$ | 661 | $ | 608 | 773 | $ | 652 | $ | 576 | $ | 601 | $ | 557 | $ | 513 | |||||||||||||||||
Number of slot
machines |
1,301 | 1,359 | 1,304 | 1,458 | 1,423 | 1,462 | 1,501 | 1,510 | ||||||||||||||||||||||||
Number of table
games |
31 | 41 | 37 | 42 | 45 | 42 | 46 | 47 | ||||||||||||||||||||||||
Number of hotel
rooms |
273 | 273 | 273 | 273 | 273 | 273 | 273 | 273 | ||||||||||||||||||||||||
Number of
restaurant seats |
803 | 803 | 803 | 803 | 803 | 803 | 803 | 803 | ||||||||||||||||||||||||
Gaming square
footage |
47,000 | 47,000 | 47,000 | 47,000 | 47,000 | 47,000 | 47,000 | 47,000 | ||||||||||||||||||||||||
Balance Sheet Data: |
||||||||||||||||||||||||||||||||
Cash and cash
equivalents |
$ | 19,079 | $ | 5,529 | $ | 5,529 | $ | 16,912 | $ | 7,557 | $ | 14,975 | $ | 16,930 | $ | 16,768 | ||||||||||||||||
Total assets |
204,540 | 199,626 | 199,626 | 217,044 | 205,097 | 217,944 | 235,539 | 273,360 | ||||||||||||||||||||||||
Total debt and
capital lease
obligations |
200,402 | 203,321 | 203,321 | 207,122 | 204,922 | 204,639 | 208,174 | 214,780 | ||||||||||||||||||||||||
Total equity
(deficit) |
(57,268 | ) | (35,374 | ) | (35,374 | ) | (11,103 | ) | (18,618 | ) | (9,757 | ) | 4,421 | 31,365 |
(1) We define EBITDA as earnings before interest, taxes, depreciation and amortization. We are instrumentalities of a sovereign Indian nation and are not subject to federal or state income tax. Below is a quantitative reconciliation of EBITDA to the most directly comparable GAAP financial performance measure, which is net income:
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Fiscal year ended | Twelve months | Five months ended | Fiscal year ended | |||||||||||||||||||||||||||||
September 30, | ended September 30, | September 30, | April 30, | |||||||||||||||||||||||||||||
2010 | 2009 | 2009 | 2008 | 2009 | 2008 | 2007 | 2006 | |||||||||||||||||||||||||
(unaudited) | (unaudited) | |||||||||||||||||||||||||||||||
Net (loss) income |
$ | (4,727 | ) | $ | (480 | ) | $ | 2,278 | $ | 3,041 | $ | (857 | ) | $ | (6,174 | ) | $ | (3,965 | ) | $ | (21,268 | ) | ||||||||||
Interest expense, net |
31,258 | 27,265 | 12,045 | 10,867 | 26,083 | 26,183 | 26,314 | 26,735 | ||||||||||||||||||||||||
Depreciation and
amortization |
11,400 | 12,110 | 5,073 | 5,125 | 12,162 | 16,061 | 18,170 | 17,779 | ||||||||||||||||||||||||
EBITDA |
$ | 37,931 | $ | 38,895 | $ | 19,396 | $ | 19,033 | $ | 37,388 | $ | 36,070 | $ | 40,519 | $ | 23,246 | ||||||||||||||||
We caution you that amounts presented in accordance with our definition of EBITDA may not be
comparable to similar measures disclosed by other issuers because not all issuers and analysts
calculate EBITDA in the same manner. EBITDA is presented in this Form 10-K because management
believes it is a useful supplement to income from operations and cash provided by operating
activities in understanding cash flows available for debt service, capital expenditures and Tribal
distributions. Accordingly, our management utilizes EBITDA along with net income, income from
operations and other GAAP measures in evaluating our operations and performance. EBITDA should not
be considered as an alternative measure of our net income, income from operations, cash flow or
liquidity. EBITDA is not a measurement of financial performance or liquidity in accordance with
GAAP. Although we believe EBITDA enhances your understanding of our financial condition and results
of operations, this non-GAAP financial measure, when viewed individually, is not necessarily a
better indicator of any trend as compared to GAAP financial measures (e.g., income from operations,
net revenues, cash provided by operating activities) conventionally computed in accordance with
GAAP.
(2) Ratio of earnings to fixed charges. Earnings consist of income (loss) from continuing
operations including amortization of capitalized interest, before extraordinary items, and fixed
charges. Fixed charges consist of interest expense, capitalized expenses related to indebtedness,
the portion of operating lease expense that represents interest and any preference security
dividend requirements of consolidated subsidiaries. The table in Exhibit 12.1 sets forth our
calculation of ratio of earnings to fixed charges for the periods indicated.
Item 7. Managements Discussion and Analysis of Financial Condition and Results of Operation
On September 3, 2009, the Board of IMG Resort and Casino resolved by unanimous consent to
change the Companys fiscal year, formerly ending April 30, to a fiscal year ending September 30.
This change in fiscal year makes the Companys year-end coincide with the Tribes fiscal year end.
This annual report covers the fiscal year ended September 30, 2010.
The accompanying consolidated financial statements have been prepared assuming that the
Company will continue as a going concern, which contemplates the realization of assets and the
liquidation of liabilities in the normal course of business. The Company has incurred significant
losses and has not made the scheduled semi-annual $12.0 million interest payments on our Senior
Notes due 2010 since November 15, 2008. The Senior Notes matured on November 15, 2010. We did not
pay the principal due at maturity. This constitutes an event of default under the indenture
governing the Senior Notes and the trustee or holders of at least 25% of the aggregate
principal amount of the Senior Notes could declare all of such notes immediately due and payable.
Pursuant to the indenture, we are obligated to pay interest on overdue installments of interest
payable on the Senior Notes at a rate equal to 13% per annum (1% per annum in excess of the then
applicable annual interest rate on the Senior Notes). As of September 30, 2010, the Company had
negative working capital of approximately $239.5 million and a
total deficit of approximately $57.3
million. The event of default, along with the Companys history of recurring losses, negative
working capital and limited access to capital, has raised substantial doubt regarding the Companys
ability to continue as a going concern. The accompanying consolidated financial statements do not
include any adjustments that might result from the outcome of this uncertainty.
On November 24, 2010, we commenced a private offer to exchange our outstanding Senior Notes
for (1) new 8.750% Senior Notes due 2020, (2) new Senior PIK Notes due 2020 and (3) a pro rata
amount of $18 million in cash. The exchange offer was scheduled to expire at 5:00 p.m., New York City time, on January 7,
2011. The exchange offer has been extended to expire at 5:00 p.m., New York City time, on January
21, 2011, unless extended further or terminated. The purpose of the extension is to allow
sufficient time for the receipt of regulatory approvals necessary for the exchange offer.
Historically, IMG Resort and Casino has not generated sufficient cash flow from operations to
satisfy our capital requirements and has relied upon debt financing arrangements to satisfy such
requirements. The current cash flows and capital resources may be insufficient to meet both short
and long term debt obligations and commitments, and IMG Resort and Casino may be forced to reduce
or delay activities and capital expenditures if we are unable to
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refinance our debt. In the event
that we are unable to refinance or restructure our debt, we will be left without sufficient
liquidity and will not be able to meet our debt service requirements and repayment obligations.
We believe that our ability to fund our operations, make planned capital expenditures, and
make scheduled payments depends on our future operating performance and success in seeking to
increase operating efficiencies and reduce operating expenses, which are subject to economic,
financial, business and other conditions, some of which are beyond our control.
Additionally, our ability to incur additional indebtedness is limited under the terms of the
indenture governing the Senior Notes. If our expected operating performance or success in
increasing operating efficiencies and reducing operating expenses does not meet management
expectations, we may need to arrange for additional sources of funding in the form of permitted
borrowings under our indenture or contributions from the Tribe, which sources of funding cannot be
assured.
Summary of Past Years Activities
The challenges for IMGRC were significant this year. However, during the year, there were also
a number of positive accomplishments and significant changes, a summary of which are highlighted
below:
| Marketing and Promotional Activity |
| Enhancing Guest Loyalty Program The Apache Spirit Club is the guest loyalty program that offers incremental value to guests for gaming and non-gaming spending. The program is a tiered guest loyalty program in which customers earn points for gaming activity. Points accumulated from gaming can be redeemed for all goods and services offered by any of IMGRCs hospitality enterprises as well as for free slot play, referred to as Spirit Play. The program also offers a 5% 20% discount in all non-gaming outlets based on status level. Current efforts are focused on compiling customer spending data resort-wide in order to provide offers and incentives that match the guests interests and improve revenue per guest. We have recently introduced a casino rate program for our best players to receive hotel room discounts, in an effort to both boost occupancy and increase gaming revenue. In addition, we have formalized the rewards program for our table games players. This year a new website was launched with Spirit Club sign-on and ability to verify current point level, status level and promotional offerings. | ||
| Direct Marketing Efforts Direct marketing efforts continue to be refined using greater segmentation to more closely align reinvestment in the player with their potential to provide us with increased earnings. The scope of offers was expanded to reach a broader mix of customers to stimulate repeat visitation during off-peak periods. The number of levels for casino offers increased from five tiers to seven tiers to provide more balanced customer reinvestment. Each month the direct marketing program evolves to increase recognition, change guest behavior and stimulate additional visitation. New Sign-Up and Reactivation programs also exist to acknowledge new and return players and introduce them to the monthly rewards program as quickly as possible. | ||
| Special Events, Promotions and Concert Schedule These programs are intended to drive visitation and gaming activity during slower periods and to introduce new clientele to the resort. Recent improvements to our seniors program showed positive results in late fiscal year 2010 as did several specialty nights introduced at the buffet. In addition, at Casino Apache Travel Center, a late night menu was recently added to the restaurant, expanding hours of operation to better serve our guests. In effort to drive casino activity after a concert or special event, promotions are offered to members attending an event or performance. | ||
| Refinements in Game Mix Management continues to make refinements in game mix by reducing wide-area progressive games in favor of participation games with lower hold percentages and smaller participation payment to the machine manufacturers. |
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| Hotel Occupancy |
| We recently introduced a casino rate program for our best players to receive hotel room discounts in an effort to boost occupancy and increase the amount of play in the casino. | ||
| Leisure Marketing Increases in occupancy from the leisure market segment have been achieved through direct marketing, as well as through broad-based advertising. | ||
| Yield Management A broad range of rates is utilized with adjustments to the rate on a daily basis. Emphasis has been placed on driving occupancy with modest year-over-year increases in the average rate. | ||
| Group Sales The group sales staff expanded efforts to increase market share as well as improve the capture rate of select groups with greater spending profiles by cross-marketing the enterprises other recreational activities. |
| Enhancing Guest Satisfaction |
| Apache Academy Training All employees are required to attend different classes of mandatory training covering all major aspects of customer service, leadership, culture, and service. | ||
| Anonymous Shoppers Program An anonymous shopping program continues to gather detailed accounts of an individual customers experience in all areas of operations; the data collected is utilized for training and developing operational improvements. | ||
| Ongoing Guest Satisfaction Program A seven-point survey continues to be used to measure satisfaction in all areas of the Resort and on a broad range of issues. |
| Gaming Operations |
| Casino Remodeling At the Travel Center, a casino remodeling, including paint and new carpet, was completed recently creating a cleaner, more comfortable gaming environment. | ||
| Slot Machines New slot machine purchases and game conversions were completed to ensure the gaming floors have an up-to-date gaming product. | ||
| Table Games Training Dealer and supervisory personnel in table games were required to undergo training, auditions and academic testing on game rules and protection measures. |
Significant Events During Fiscal 2010
| Bond Payments and Exchange Offer We currently have outstanding $200.0 million aggregate principal amount of 12% Senior Notes due 2010 (the Senior Notes) as well as accrued interest of $51.8 million. During the first quarter of fiscal 2010, IMGRC failed to make its interest payment due May 15, 2010. Interest payments have not been made since November 15, 2008. The Senior Notes matured on November 15, 2010. We have not paid the principal due at maturity. The amount due in principal and interest is $251.8 million. Failure to make these payments constitutes an event of default under the indenture governing the Senior Notes (the Indenture) and the trustee or holders of at least 25% of the aggregate principal amount of the Senior Notes could declare all of such notes immediately due and payable. Pursuant to the Indenture, we are obligated to pay interest on overdue installments of interest payable on the Senior Notes at a rate equal to 13% per annum (1% per annum in excess of the then applicable annual interest rate on the Senior Notes). On November 24, 2010, we commenced a private offer to exchange our outstanding Senior Notes for (1) new 8.750% Senior Notes due 2020, (2) new Senior PIK Notes due 2020 and (3) a pro rata amount of $18 million in cash. The exchange offer was scheduled to expire at 5:00 p.m., New York City time, on January 7, 2011. The exchange offer has been extended to expire at 5:00 p.m., New York City time, on January 21, 2011, unless extended further or terminated. The purpose of the extension is to allow sufficient time for the receipt of regulatory approvals necessary for the exchange offer. |
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| Fire Impairment Ski Apache On November 7, 2009, Ski Apache experienced a fire. The fire was confined to a single metal building used largely for maintenance and repair parts for ski operations related equipment. The building, its contents, other large equipment and vehicles that were damaged were adequately insured to cover the replacement costs. Despite this fire and flood event, Ski Apache opened on time for the season on November 26, 2009. | ||
| Abundance of Natural Snowfall for Ski Apache Ski Apache experienced above average snow for the 2009 2010 ski season, increasing both gross revenues and profitably for Ski Apache for the fiscal year. Solid preparations by the ski management team, overall financial management and the continued development of snow-making capabilities of the ski operations were also critical to these improvements. Ski Apache has experienced below average snowfall thus far for the 2010-2011 ski season. | ||
| Changes in the Management Team The Management team has experienced a number of changes over the course of the fiscal year. On July 29, 2010, IMGRC hired Scott Eldredge as the Chief Operating Officer, replacing Elizabeth Foster-Anderson whose employment ended July 23, 2010. In addition, on October 1, 2010, Ben Martinez resigned his position as Chief Financial Officer and IMG Resort and Casino is in the process of evaluating candidates. In the interim, Scott Eldredge has assumed the role of Chief Financial Officer. | ||
| Warner Gaming In February 2009, WG-IMG, LLC, a wholly owned subsidiary of Warner Gaming, LLC, was engaged as a consultant. WG-IMG, LLC assessed and recommended improvements to operations, including a detailed review of the Companys cost structure to identify areas of potential cost savings and an in-depth review of operations to determine how to enhance revenues and profitability. In January 2010, the Tribe entered into a five-year Management Agreement with WG-IMG, LLC. | ||
| AAA Four Diamond Award The Inn received its 5th consecutive four diamond award during fiscal year 2010. |
Critical Accounting Policies
The preparation of financial statements in conformity with accounting principles generally
accepted in the United States of America requires management to make estimates and assumptions that
affect the recorded amount of assets and liabilities at the date of the financial statements and
revenues and expenses during the period. Significant accounting policies employed by us, including
the use of estimates and assumptions, are presented in the notes to our consolidated financial
statements included elsewhere in this Form 10-K. Our management bases its estimates on its
historical experience, together with other relevant factors, in order to form the basis for making
judgments that will affect the carrying value of assets and liabilities. On an ongoing basis,
management evaluates its estimates and makes changes to carrying values as deemed necessary and
appropriate. Actual results could differ from those estimates.
Fair Value Disclosure. We adopted the new accounting guidance under generally
accepted accounting principles relating to fair value measurements and disclosures effective
October 1, 2009. The new guidance clarifies the definition of fair value, prescribes methods for
measuring fair value, establishes a fair value hierarchy based on the inputs used to measure fair
value and expands disclosures about the use of fair value measurements.
The valuation techniques utilized are based upon observable and unobservable inputs.
Observable inputs reflect market data obtained from independent sources, while unobservable inputs
reflect internal market assumptions. These two types of inputs create the following fair value
hierarchy:
| Level 1 Quoted prices for identical instruments in active markets. | ||
| Level 2 Quoted prices for similar instruments in active markets; quoted prices for identical or similar instruments in markets that are not active; and model-derived valuations whose inputs are observable or whose significant value drivers are observable. | ||
| Level 3 Significant inputs to the valuation model are unobservable. |
Due to their short-term nature, we estimate the fair value of cash and cash equivalents,
accounts receivable, accounts payable and accrued liabilities by approximating their carrying
values. We estimate, based on level 2 data, the fair value of our fixed-rate long-term debt to be
approximately $74.0 million on the trade date closest to September 30, 2010, which was
September 24, 2010. We estimate, based on level 2 data, the fair value of our fixed-rate long-term
debt to be approximately $28.0 million on the trade date closest to September 30, 2009, which
was September 15, 2009.
Revenue Recognition. In accordance with gaming industry practice, we recognize gaming revenues
as the net win from gaming activities, which is the difference between gaming wins and losses.
Gaming revenues are net of accruals for anticipated payouts of progressive slot jackpots and other
fees and table games. These anticipated jackpot payments are reflected as current liabilities on our balance sheets. Net slot win
represents all amounts played in the slot machines reduced by the winnings paid out and other
expenses. Table games net win represents the difference between table game wins and losses. The
table games historical win percentage is reasonably predictable over time, but may vary
considerably during shorter periods. Revenues from food, beverage,
hotel, recreation, retail and
other are recognized at the time the related service or sale is completed. Player reward
redemptions for food and beverage, hotel rooms and other items are included in gross revenue at
full retail value.
Promotional Allowances. We periodically reward rooms and other promotions, including Apache
Spirit Club points and gift certificates, to our customers. The retail value of these player
rebates are recognized by us as a reduction from gross revenue.
The Casinos Apache Spirit Club allows customers to earn points based on the volume of their
gaming activity. These points are redeemable for certain services or merchandise. Points are
accrued based upon their historical redemption rate multiplied by the cash value or the cost of
providing the applicable rewards services.
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Emerging Issues Task Force (EITF) FASB ASC 605-50, Revenue Recognition, Customer payments
and Incentives (prior authoritative literature: FASB EITF Issue No. 00-14, Accounting for Certain
Sales Incentives)(FASB ASC 605-50 (FAS Issue No. 00-14)), requires that discounts which result in
a reduction in or refund of the selling price of a product or service in a single exchange
transaction be recorded as a reduction of revenues. We adopted FASB ASC 605-50 (FAS Issue No.
00-14) on April 30, 2001. Our accounting policy related to free or discounted food and beverage and
other services already complies with FASB ASC 605-50 (FAS Issue No. 00-14), and those free or
discounted services are generally deducted from gross revenues as promotional allowances. In
January 2001, the EITF reached a consensus on certain issues related to Issue No. 00-22, Accounting
for Points and Certain Other Time-Based or Volume-Based Sales Incentive Offers, and Offers for
Reproduces, or Services To Be Delivered in the Future. Effective January 1, 2001, we, through our
wholly-owned subsidiaries, adopted EITF 00-22, which requires that cash or equivalent amounts
provided or returned to customers as part of a transaction not be shown as an expense, but instead
as an offset to the related revenue.
Classification of Departmental Costs. Gaming direct costs are comprised of all costs of our
gaming operations, including labor costs for casino-based supply costs and other direct operating
costs (including costs in operating our players clubs) of the casinos. Food and beverage direct
costs are comprised of all costs of our food and beverage operations, including labor costs for
personnel employed by our restaurants and food and beverage, supply costs for all food and
beverages served in the casinos or sold in our restaurants and other food outlets and other
expenses including other direct operating expenses related to these activities. General and
administrative direct costs are comprised of administrative expenses, including the salaries of
corporate officers, accounting, finance, legal and other professional expense and occupancy costs
and other indirect costs not included in the direct costs of our operating departments. Legal
expenses in the current year have increased significantly due to the ongoing negotiations with the
holders of the Senior Notes.
Deferred Financing Costs. Debt issuance costs incurred in connection with the issuance of the
Senior Notes were capitalized and are being amortized to interest expense using the straight-line
method over the stated maturity of the debt, which approximates the effective interest method.
Unamortized deferred financing costs totaled $2.1 million as of September 30, 2009 and $0.3 million
as of September 30, 2010.
Impairment of Long-Lived Assets. Management reviews long-lived assets for impairment whenever
events or changes in circumstances indicate the carrying amount of such assets may not be
recoverable. In August 2001, the Financial Accounting Standards Board issued Statement of
Accounting Standards FASB ASC 360-10, Property, Plant and Equipment, (prior authoritative
literature: SFAS No. 144, Accounting for the Impairment or Disposal of Long-Lived Assets) (FASB
ASC 360-10 (SFAS No. 144)), which established the approach to be used in the determination of
impairment.
Under the provisions of FASB ASC 360-10 (SFAS No. 144), a long-lived asset to be abandoned is
disposed of when it ceases to be used. If an entity commits to a plan to abandon a long-lived asset
before the end of its previously estimated useful life, depreciation estimates shall be revised to
reflect the use of the asset over its shortened useful life.
During the fiscal year ended September 30, 2010, we recorded a loss on disposal of assets of
$25,280 and for the five months ended September 30, 2009, we recorded a loss on disposal of assets
of $15,000. For the fiscal years ended April 30, 2009 and 2008,
we recorded losses on disposal of
assets of $293,896 and $63,857, respectively.
Results of Operations
Fiscal
Year Ended September 30, 2010 Compared to Twelve months Ended September 30, 2009 (unaudited)
The information in this section compares information for the fiscal year ended September 30, 2010
to information for the twelve months ended September 30, 2009. The
information for the twelve months ended September 30, 2009 is unaudited.
Net Revenues. Net revenues increased $4.4 million, or 4%, to $115.2 million for the fiscal
year ended September 30, 2010 from $110.8 million for the twelve months ended September 30, 2009.
Revenue increases were driven by a $1.0 million increase in Food and Beverage revenues, as well as
a $4.1 million increase in Recreation and Other revenues resulting from an increase in customer
volume and spending at our Ski Apache recreation facilities. Ski Apache benefitted from an increase
in natural snowfall and our ability to commence operations earlier than the prior
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year. For the
fiscal year ended September 30, 2010, Gaming net revenues were $74.7 million, an increase of $0.1
million from the prior twelve months. However, Hotel revenue decreased by approximately $0.8
million for the fiscal year ended September 30, 2010, as a result of a decrease in leisure and
business travel.
Gaming. Gaming net revenues increased $0.1 million to $74.7 million for the fiscal year ended
September 30, 2010 from $74.6 million for the twelve months ended September 30, 2009. Slot revenues
increased to $65.4 million for the fiscal year ended September 30, 2010 from $64.1 million for the
twelve months ended September 30, 2009 due to a repositioning of the gaming floor at each property
in April 2010, and due to direct marketing efforts. Net slot win per unit, per day was $138 for the
fiscal year ended September 30, 2010 compared to $129 for the twelve months ended September 30,
2009. Table games revenue decreased $1.2 million, to $9.3 million for the fiscal year ended
September 30, 2010 from $10.5 million for the twelve months ended September 30, 2009. Daily Net Win
per Table for the fiscal year ended September 30, 2010 was $661 as compared to $608 for the twelve
months ended September 30, 2009, a 9% increase, due to a reduction in gaming tables, related to the
repositioning of the gaming floors of both properties in April 2010.
Hotel. Hotel revenues decreased $0.8 million to $10.1 million for the fiscal year ended
September 30, 2010 from $10.9 million for the twelve months ended September 30, 2009, due to a
reduction in rate as of result of overall decrease in leisure and business travel and a reduction
in discretionary spending by our guests. Occupancy rates averaged 78% for the fiscal year ended
September 30, 2010 compared to 72% for the twelve months ended September 30, 2009. Average daily
rate was $134 for the fiscal year ended September 30, 2010, as compared to $140 for the twelve
months ended September 30, 2009 and revenue per available room was $115 for the fiscal year ended
September 30, 2010 as compared to $112 for the twelve months ended September 30, 2009.
Food and Beverage. Food and beverage revenues increased $1.0 million, or 8%, to $13.0 million
for the fiscal year ended September 30, 2010 from $12.0 million for the twelve months ended
September 30, 2009 due to an increase in customer volume and spend at our Ski Apache recreation
facilities. For the fiscal year ended September 30, 2010, these increases were due to an increase
in natural snowfall and our ability to commence operations at Ski Apache earlier compared to the
previous year.
Recreation
and Other. Recreation and other revenues increased $4.1 million to $18.4 million
for the fiscal year ended September 30, 2010 compared to $14.3 million for the twelve months ended
September 30, 2009 due to an increase in customer volume at our Ski Apache recreation facilities
for the fiscal year ended September 30, 2010, compared to the same period in 2009.
Promotional Allowances. Promotional allowances remained flat at $0.9 million for the fiscal
year ended September 30, 2010 and the twelve months ended September 30, 2009 due to limited change
in our direct marketing efforts.
Total Operating Expenses. Total operating expenses increased $4.6 million to $88.7 million for
the fiscal year ended September 30, 2010 from $84.1 million for the twelve months ended September
30, 2009. As a percentage of revenues, operating expenses remained flat for the fiscal year ended September 30, 2010. The change
in total operating expenses resulted from increases and decreases in various divisions of the
organization as explained below.
Gaming. Gaming expenses decreased $1.1 million to $23.9 million for the fiscal year ended
September 30, 2010 from $25.0 million for the twelve months ended September 30, 2009 due to a
decrease in state compact fees, revenue sharing fees, benefits, salaries and wages and outside
services. Gaming expenses as a percentage of gaming revenues decreased 2%, from 32% for the fiscal
year ended September 30, 2010 compared to 34% for the twelve months ended September 30, 2009.
Hotel. Hotel expenses decreased $0.4 million to $3.6 million for the fiscal year ended
September 30, 2010 from $4.0 million for the twelve months ended September 30, 2009 due to cost
containment by management in the areas of salaries, wages and benefits. Hotel expenses represented
36% of hotel revenue for the fiscal year ended September 2010 as compared to 33% of hotel revenue
for the twelve months ended September 30, 2009.
Food and Beverage. Food and beverage expenses increased $0.9 million, or 7%, to $13.3 million
for the fiscal year ended September 30, 2010 from $12.4 million for the twelve months ended
September 30, 2009 due to
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increases in cost of goods sold related to increased revenue as
well as marketing, supplies, repairs and maintenance expenses. Of the increase, $0.2 million was
related to Food and Beverage operations at Ski Apache and is a direct result of increased revenues.
Food and beverage expenses as a percentage of food and beverage revenues decreased to 102% for the
fiscal year ended September 30, 2010 from 103% for the twelve months ended September 30, 2009.
Recreation and Other. Recreation and other costs increased $0.9 million, or 9%, to $11.0
million for the fiscal year ended September 30, 2010 from $10.1 million for the twelve months ended
September 30, 2009 due to increases in benefits, salaries and wages, supplies, repairs and
maintenance and cost of goods sold. Of the increase, $0.8 million was attributable to Ski Apache
associated with an increase in customer volume and spending at our Ski Apache recreation
facilities.
Marketing and Advertising. Marketing and advertising costs remained flat at $8.5 million for
the fiscal year ended September 30, 2010 compared to the twelve months ended 2009. The composition
of Marketing costs shifted away from broad-based marketing efforts to more targeted,
database-oriented efforts.
General and Administrative. General and administrative expenses decreased $1.7 million, or
10%, to $15.5 million for the fiscal year ended September 30, 2010 from $17.2 million for the
twelve months ended September 30, 2009 due to a decrease of $1.9 million in Tribal Regulatory fees,
$1.3 million in payroll and benefits, $0.8 million in insurance liability, $0.3 million in repairs
and maintenance as well as $0.1 million in public relations. These decreases were partially offset
by an increase in outside services of $0.3 million and in utilities expenses of $0.2 million.
Management Fees. Since January 20, 2010, following approval by the NIGC of our management
agreement with Warner Gaming, these expenses include management fees paid under our management
agreement. These expenses were $2.0 million for the fiscal year ended September 30, 2010. Prior to
January 20, 2010 fees paid under our management agreement with Warner Gaming were accounted for as
consulting fees in General and Administrative Expenses.
Restructuring Costs. Restructuring costs were $1.4 million for the fiscal year ended September
30, 2010 and $0 for the twelve months ended September 30, 2009. Restructuring costs include legal
and other costs related to the restructuring of our debt.
Depreciation. Depreciation decreased $0.7 million to $11.4 million for the fiscal year ended
September 30, 2010 from $12.1 million for the twelve months ended September 30, 2009 due to certain
property and equipment assets becoming fully depreciated.
Insurance Reimbursement. Insurance Reimbursement was $2.2 million for the fiscal year ended
September 30, 2010 compared to $5.5 million for the twelve months ended September 30, 2009. In late
July 2008, the remnants of Hurricane Dolly brought torrential rain and caused significant flash
flood damage at Ski Apache and the Inn of the Mountain Gods Championship Golf Course, damaging
buildings, land, and equipment. A majority of assets that were damaged or destroyed were fully or
nearly fully depreciated. These events affected Insurance Reimbursement in the periods presented.
Storm costs. Storm costs decreased $0.1 million to $0.2 million for the fiscal year ended
September 30, 2010 from $0.3 million for the twelve months ended September 30, 2009. Storm costs
consisted of costs related to damage caused by Hurricane Dolly in 2008.
Loss on Disposal of Assets. Loss on disposal of assets was $25,280 for the fiscal year ended
September 30, 2010 and $18,163 for the twelve months ended September 30, 2009 and related primarily
to disposal of assets as well as loss on assets related to the storm damage.
Income
from Operations. Income from operations decreased $0.3 million to $26.5 million for the
fiscal year ended September 30, 2010 from $26.8 million for the twelve months ended September 30,
2009, as a result of an increase in the natural snowfall experienced this season at Ski Apache offset by an increase in operating expenses.
This decline was influenced by all of the factors described above, but most significantly by the
$2.0 million of costs associated with management fees as well as the $1.4 million related to the
restructuring of our debt.
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Other Income (Expenses). Other non-operating expenses increased $4.0 million to $31.3 million
for the fiscal year ended September 30, 2010 from $27.3 million for the twelve months ended
September 30, 2009. Other income (expenses) is comprised of interest income and other income minus
interest expense and other expenses.
Five
months Ended September 30, 2009 Compared to Five months Ended September 30, 2008 (unaudited)
The information in this section compares information for the five months ended September 30, 2009
to information for the five months ended September 30, 2008. The information for the five months ended September 30, 2008 is unaudited.
Net
Revenues. Net revenues decreased $3.7 million, or 7%, to $51.3 million for the five months
ended September 30, 2009 from $55.0 million for the five months ended September 30, 2008 due to a
decrease in certain areas of our business caused by a decline in the economy and leisure and
business travel discretionary spending of our guests. Gaming net revenues increased $0.1 million
from the comparable prior period; food and beverage revenues decreased $0.6 million, or 10%, from
the comparable prior period; hotel revenues decreased $0.7 million from a year ago. Recreation and
other revenue for the 2009 period decreased $2.6 million, or 33%, from September 30, 2008.
Promotional allowances decreased $0.1 million, or 25%, for the five months ended September 30, 2009
compared to the five months ended September 30, 2008.
Gaming. Net gaming revenues increased $0.2 million to $35.1 million for the five months ended
September 30, 2009 from $34.9 million for the five months ended September 30, 2008. Slot revenues
increased to $30.2 million for the five months ended September 30, 2009 from $30.1 million for the
five months ended September 30, 2008 a decrease of $0.1 million. Net slot win per unit, per day was
$151 for the five months ended September 30, 2009 compared to $135 for the five months ended
September 30, 2008; the weighted average number of machines declined to 1,304 for the five months
ended September 30, 2009 from 1,458 for the five months ended September 30, 2008. Table games
revenue increased $0.1 million to $5.0 million for the five months ended September 30, 2009 from
$4.9 million for the five months ended September 30, 2008. Daily Net Win per Table for the five
months ended September 30, 2009 was $773 as compared to $652 for the same period a year ago, a 19%
increase.
Hotel. Hotel revenue for the five months ended September 30, 2009 decreased $0.7 million to
$5.4 million from $6.1 million for the five months ended September 30, 2008. This decline is
attributed to an increased discounting of hotel rates or marketing discounts of $0.6 million and a
decline in group/leisure sales. Occupancy rates averaged 87%, an increase of 1%, for the five
months ended September 30, 2009, the average daily rate decreased to $157, for the five months
ended September 30, 2009, as compared to $162 for the same period a year ago. Revenue per available
room was $136 for the five months ended September 30, 2009, a 1% decrease.
Food and Beverage. Food and beverage revenues decreased $0.6 million, or 10%, to $5.7 million
for the five months ended September 30, 2009 from $6.3 million for the five months ended September
30, 2008 due to a decrease in covers and decline in group business sales.
Recreation and Other. Recreation and other revenues decreased $2.6 million, or 33%, to $5.4
million for the five months ended September 30, 2009 compared to $8.0 million for the five months
ended September 30, 2008 due to a decrease in fuel sales and merchandise. Due to the state of the
economy, the recreational hunt packages were discounted $0.8 million from the prior year.
Promotional Allowances. Promotional allowances were $0.4 million for the five months ended
September 30, 2009 compared to $0.3 million for the five months ended September 30, 2008, a
decrease of $0.1 million or 33%.
Total Operating Expenses. Total operating expenses decreased $4.1 million to $37.0 million for
the five months ended September 30, 2009 from $41.1 million for the five months ended September 30,
2008 due to decreases in various divisions throughout the organization, as explained below.
Gaming. Gaming expenses decreased $1.3 million, or 11%, for the five months ended September
30, 2009 to $10.8 million from $12.1 million for the five months ended September 30, 2008 due to a
decrease in head count, wages, benefits and supplies.
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Hotel. Hotel expenses decreased $0.7 million to $1.6 million for the five months ended
September 30, 2009 from $2.3 million for the five months ended September 30, 2008, resulting from a
decrease in salaries, wages, benefits and supplies expense. Hotel was running at a 74% profit for
the five months ended September 30, 2009 up 14% from the comparable 2008 period.
Food and Beverage. Food and beverage expenses decreased $1.2 million, or 18%, to $5.3 million
for the five months ended September 30, 2009 from $6.5 million for the five months ended September
30, 2008 due to a decrease in salaries, wages and benefits due to a decrease in head count. A
decrease in cost of goods sold, supplies expense and the cost of an employee meal program also
reduced expenses.
Recreation and Other. Recreation and other costs decreased $1.7 million, or 29%, to $4.2
million for the five months ended September 30, 2009 from $5.9 million for the five months ended
September 30, 2008 due to a decrease in cost of goods sold in the areas of gas and diesel,
merchandise and cigarettes.
Marketing. Marketing costs increased $0.7 million to $3.9 million for the five months ended
September 30, 2009 from $3.2 million for the five months ended September 30, 2008 due to an
increase in direct marketing costs associated with gaming and hotel offers.
General and Administrative. General and administrative expenses decreased $0.6 million, or 9%,
to $6.2 million for the five months ended September 30, 2009 from $6.8 million for the five months
ended September 30, 2008 due to a decrease in salaries, wages, benefits and repairs and
maintenance, offset by an increase in outside services of legal and consulting fees related to the
bond restructuring.
Depreciation. Depreciation remained flat at $5.1 million for the five months ended September
30, 2009 and 2008 due to fully depreciated equipment.
Storm Costs. Storm costs were $20,500 for the five months ended September 30, 2009 and
$116,500 for the five months ended September 30, 2008 due to remnants of Hurricane Dolly which
brought rain and caused significant damage.
Income from Operations. Income from operations increased $0.4 million, or 3%, to $14.3 million
for the five months ended September 30, 2009 from $13.9 million for the five months ended September
30, 2008 due to a decrease in revenue offset by a decrease in operating expenses.
Other Income (Expenses). Other non-operating expenses were $12.0 million for the five months
ended September 30, 2009 and $10.9 million for the five months ended September 30, 2008. Other
income (expenses) is comprised primarily of interest income and interest expense along with other
expenses.
Fiscal Year Ended April 30, 2009 Compared to the Fiscal Year Ended April 30, 2008
Net Revenues. Net revenues decreased $7.8 million, or 6%, to $114.3 million for the fiscal
year ended April 30, 2009 from $122.1 million for the fiscal year ended April 30, 2008. Gaming
revenues decreased $3.1 million, down 4.0% from the comparable period; food and beverage revenues
decreased $1.7 million, or 12.0%, over the comparable period; and hotel revenues decreased $0.8
million; and recreation and other decreased $3.4 million. Promotional allowances decreased by $1.2
million from the prior year.
Gaming. Gaming revenues decreased $3.1 million, or 4.0%, to $74.4 million for the fiscal year
ended April 30, 2009 from $77.5 million for the fiscal year ended April 30, 2008. Slot revenues
decreased to $64.0 million for the fiscal year ended April 30, 2009 from $66.7 million for the
fiscal year ended April 30, 2008. Net slot win per unit, per day was $127 for the fiscal year ended
April 30, 2009 compared to $125 for the fiscal year ended April 30, 2008. Table games revenue
decreased $0.4 million to $10.4 million for the fiscal year ended April 30, 2009 from $10.8 million
for the fiscal year ended April 30, 2008.
Hotel. Hotel revenues decreased $0.8 million, or 7%, to $11.4 million for the fiscal year
ended April 30, 2009 from $12.2 million for the fiscal year ended April 30, 2008. Occupancy rates
averaged 72% for the fiscal year ended April 30, 2009 and 74% for the fiscal year ended April 30,
2008, average daily rate was $175 as compared to $169 for the fiscal year ended April 30, 2008 and
revenue per available room was $126.
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Food and Beverage. Food and beverage revenues decreased $1.7 million, or 12.0%, to $12.6
million for the fiscal year ended April 30, 2009 from $14.3 million for the fiscal year ended April
30, 2008 due to a decrease in covers.
Recreation and Other. Recreation and other revenues decreased $3.4 million, or 17.0%, to $16.8
million for the fiscal year ended April 30, 2009 compared to $20.2 million for the fiscal year
ended April 30, 2008. The decrease is attributable to a decrease in the sale of fuel as well as a
decrease in lift revenue.
Promotional Allowances. Promotional allowances were $0.9 million for the fiscal year ended
April 30, 2009 compared to $2.1 million for the fiscal year ended April 30, 2008, a decrease of
$1.2 million due to a refined marketing plan which is a tiered direct marking plan as opposed to a
mass marketing plan.
Total Operating Expenses. Total operating expenses decreased $13.0 million to $89.1 million
for the fiscal year ended April 30, 2009 from $102.1 million for the fiscal year ended April 30,
2008. The decrease in total operating expense was due to decreases in food and beverage, recreation
and marketing expenses as well as the insurance reimbursement of $5.4 million.
Gaming. Gaming expenses decreased $0.4 million to $26.2 million for the fiscal year ended
April 30, 2009 from $26.6 million for the fiscal year ended April 30, 2008 due to a decrease in
revenue sharing fees associated with a decrease in revenue as well as a decrease in wages. Gaming
expenses as a percentage of gaming revenues increased 1.0%, from 35.3% for the fiscal year ended
April 30, 2009 compared to 34.3% for the fiscal year ended April 30, 2008.
Hotel. Hotel expenses increased to $4.8 million for the fiscal year ended April 30, 2009 from
$4.4 million for the fiscal year ended April 30, 2008 due an increase in salaries and benefits.
Hotel expenses represented 37.6% of hotel revenue for the fiscal year ended April 30, 2009 as
compared to 32.9% of hotel revenue for the fiscal year ended April 30, 2008.
Food and Beverage. Food and beverage expenses decreased $1.8 million, or 12%, to $13.5 million
for the fiscal year ended April 30, 2009 from $15.3 million for the fiscal year ended April 30,
2008. Food and beverage expenses as a percent of food and beverage revenues remained flat at 102%
for the fiscal years ended April 30, 2009 and 2008. Cost of Goods Sold as a percentage of revenue
decreased 2% from 2009 to 2008 and wages increased $0.02 million or 6.2% as a percentage of revenue
from 2008.
Recreation and Other. Recreation and other costs decreased $3.0 million, or 20.0% to $11.9
million for the fiscal year ended April 30, 2009 from $14.9 million for the fiscal year ended April
30, 2008 due to decrease in salaries and benefits as well as a decrease in cost of goods sold
associated with fuel.
Marketing and Advertising. Marketing and advertising costs decreased $1.7 million or 17.0% to
$8.3 million for the fiscal year ended April 30, 2009 from $10.0 million for the fiscal year ended
April 30, 2008 due to a decrease in expenses associated with the cancellation of the air charter
program.
General and Administrative. General and administrative expenses increased $2.3 million, or
16%, to $16.9 million for the fiscal year ended April 30, 2009 from $14.6 million for the fiscal
year ended April 30, 2008 due to an increase in benefits, salaries, and other operating expenses.
Depreciation. Depreciation decreased $3.9 million to $12.2 million for the fiscal year ended
April 30, 2009 from $16.1 million for the fiscal year ended April 30, 2008 due to fully depreciated
assets.
Insurance Reimbursement. Insurance reimbursement for the fiscal year ended April 30, 2009 was
$5.4 million and is the gain recorded from the reconstruction of storm damaged, leasehold
improvements, buildings and
equipment that were fully depreciated at the time of the storm. This amount included $5.0 million
from insurance and $394,983 from FEMA.
Storm Costs. Storm costs were $0.4 million for the fiscal year ended April 30, 2009. Storm
costs were expenses related to the cost of repairing the damages as a result of severe flooding
from heavy rainfall from the remnants of
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Hurricane Dolly on July 27, 2008. Total damage was
approximately $5.9 million, which included the previously mentioned storm cost, loss on disposal of
assets and fixed assets replacements.
Loss on disposal of assets. During the fiscal year ended April 30, 2009, we recorded a loss on
disposal of assets of $293,896 including, $46,118 related to storm damage and $234,350 related to
fire damage to a building at Ski Apache.
Income from Operations. Income from operations increased $5.2 million, or 26%, to $25.2
million for the fiscal year ended April 30, 2009 from $20.0 million for the fiscal year ended April
30, 2008, as a result of a credit in the insurance reimbursement.
Other
Income (Expenses). Other non-operating expenses decreased
$0.1 million to $26.1 million
for the fiscal year ended April 30, 2009 from $26.2 million for the fiscal year ended April 30,
2008. Other income (expenses) is comprised of interest income and other income minus interest
expense and other expenses.
Fiscal Year Ended April 30, 2008 Compared to Fiscal Year Ended April 30, 2007
Net
Revenues. Net revenues decreased $0.4 million to $122.1 million for the fiscal year ended
April 30, 2008, from $122.5 million for the fiscal year ended April 30, 2007. Gaming revenues
increased $1.0 million or 1.3%, over the comparable period; food and beverage revenues increased
$1.1 million, or 7.3%, over the comparable period; and hotel revenues remained flat over the
comparable period.
Gaming. Gaming revenues increased $1.0 million, or 1.3%, to $77.5 million for the fiscal year
ended April 30, 2008, from $76.5 million for the fiscal year ended April 30, 2007. Slot revenues
increased to $72.0 million for the fiscal year ended April 30, 2008, from $71.6 million for the
fiscal year ended April 30, 2007. Net slot win per unit, per day remained flat at $125 for the
fiscal years ended April 30, 2008 and 2007. Table games revenue remained flat at $10.8 million for
the fiscal years ended April 30, 2008 and 2007.
Hotel. Hotel revenues remained flat at $12.2 million for the fiscal years ended April 30, 2008
and 2007. Occupancy rates averaged 74% over the fiscal years ended April 30, 2008 and 2007, average
daily rate for the fiscal year ended April 30, 2008, was $169 as compared to $175 for the fiscal
year ended April 30, 2007, and revenue per available room was $126.
Food and Beverage. Food and beverage revenues increased $1.1 million, or 8.3%, to $14.3
million for the fiscal year ended April 30, 2008, from $13.2 million for the fiscal year ended
April 30, 2007, due to an increase in covers.
Recreation and Other. Recreation and other revenues decreased $2.6 million, or 11.4%, to $20.2
million for the fiscal year ended April 30, 2008, compared to $22.8 million for the fiscal year
ended April 30, 2007. The decrease is attributable to the low snowfall experienced at Ski Apache
resort during the ski season of the fiscal year ended April 30, 2008, consequently decreasing
revenue as compared to the fiscal year ended April 30, 2007 when we had average snowfall.
Promotional Allowances. Promotional allowances were $2.1 million for the fiscal year ended
April 30, 2008 compared to $2.3 million for the fiscal year ended April 30, 2007, a decrease of
$0.2 million due to a refined marketing plan. This plan expends more in direct player rewards and
less in broad based promotion more proportionately to their level of play and de-emphasizes broad
based promotional activity, which tends to concentrate returned values to a very limited numbers of
patrons.
Total Operating Expenses. Total operating expenses increased $2.0 million to $102.1 million
for the fiscal year ended April 30, 2008, from $100.1 million for the fiscal year ended April 30,
2007. As a percentage of revenues, operating expenses increased by 2% for the fiscal year ended
April 30, 2008. The increase in total operating expenses was due to increased salaries and wages,
air charter services, and cost of goods sold.
Gaming. Gaming expenses increased $0.2 million to $26.6 million for the fiscal year ended
April 30, 2008, from $26.4 million for the fiscal year ended April 30, 2007, due to an increase in
revenue sharing fees associated with increased gaming revenue. Gaming expenses as a percentage of
gaming revenues decreased 0.2%, from 34.3% for the fiscal year ended April 30, 2008, compared to
34.5% for the fiscal year ended April 30, 2007.
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Hotel. Hotel expenses decreased to $4.4 million for the fiscal year ended April 30, 2008, from
$4.7 million for the fiscal year ended April 30, 2007, due to cost containment by management in the
areas of labor and supplies expense. Hotel expenses represented 32.6% of hotel revenue for the
fiscal year ended April 30, 2008, as compared to 34.8% of hotel revenue for the fiscal year ended
April 30, 2007.
Food and Beverage. Food and beverage expenses increased $1.1 million, or 8%, to $15.3 million
for the fiscal year ended April 30, 2008, from $14.2 million for the fiscal year ended April 30,
2007, due to an increase in salaries and wages and cost of goods sold related to increased revenue.
Food and beverage expenses as a percentage of food and beverage revenues remained flat at 102% for
the fiscal years ended April 30, 2008 and 2007. Cost of goods sold as a percentage of revenue
increased 2% from the fiscal year ended April 30, 2007 to the fiscal year ended April 30, 2008 and
wages increased $0.3 million, or 1.3%, as a percentage of revenue from 2007 to the fiscal year
ended April 30, 2008.
Recreation and Other. Recreation and other costs increased $1.0 million, or 7.2%, to $14.9
million for the fiscal year ended April 30, 2008, from $13.9 million for the fiscal year ended
April 30, 2007, due to increases in salaries and wages, repairs and maintenance and cost of goods
sold.
Marketing and Advertising. Marketing and advertising costs increased $1.2 million, or 13.6%,
to $10.0 million for the fiscal year ended April 30, 2008, from $8.8 million for the fiscal year
ended April 30, 2007, due to additions to sales staff, air charter advertising and air charter
operations.
General and Administrative. General and administrative expenses increased $0.6 million, or
4.3%, to $14.6 million for the fiscal year ended April 30, 2008, from $14.0 million for the fiscal
year ended April 30, 2007, due to an increase in costs associated with Sarbanes-Oxley compliance.
Depreciation. Depreciation decreased $2.1 million to $16.1 million for the fiscal year ended
April 30, 2008, from $18.2 million for the fiscal year ended April 30, 2007, due to fully
depreciated assets.
Income from Operations. Income from Operations decreased $2.3 million, or 10.3%, to $20.0
million for the fiscal year ended April 30, 2008, from $22.3 million for the fiscal year ended
April 30, 2007, as a result of a decrease in the natural snowfall experienced during the fiscal
year ended April 30, 2008, at Ski Apache and increased costs associated with the Air Charter
service.
Other Income (Expenses). Other non-operating expenses decreased $0.1 million to $26.2 million
for the fiscal year ended April 30, 2008, from $26.3 million for the fiscal year ended April 30,
2007. Other income (expenses) is comprised of interest income and other income minus interest
expense and other expenses.
Liquidity and Capital Resources
The information in this section compares information for the fiscal year ended September 30,
2010 to information for the twelve months ended September 30, 2009. The
information for the twelve months ended September 30, 2009 is unaudited.
As of September 30, 2010 and September 30, 2009, we had cash and cash equivalents of $19.1 million
and $5.5 million, respectively. Our principal source of liquidity for the fiscal year ended
September 30, 2010 was cash provided by operating activities of
$38.2 million, as well as an
increase in operating income experienced during the first and second quarters of the fiscal year
due to cost savings measures and new marketing strategies implemented to slow the growth of
declining revenues. Our principal source of liquidity for the twelve months ended September 30,
2009 was cash provided by operating activities of $19.4 million as well as an increase in operating
income due to cost savings measures and new marketing strategies implemented to slow the growth of
declining revenues
Cash
used in investing activities for the fiscal year ended
September 30, 2010 was $4.6
million, primarily due to capital expenditures of $4.6 million, which consists of $1.2 million in
building, $1.6 in gaming equipment and $0.9 million in furniture, fixtures and equipment, as well
as construction in progress of $0.9 million; offset by $0.7
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million in write-offs. Cash used in
investing activities for the twelve months ended September 30, 2009 was $0.8 million, which
consisted of capital expenditures to purchase gaming equipment as well as non-gaming equipment.
Cash used in financing activities for the fiscal year ended September 30, 2010 was $20.1
million, which primarily consisted of $13.0 million transferred to the Tribes reserve account,
$4.2 million in direct distributions to the Tribe and $2.9 million in principal payments on our
capital equipment loan. Our understanding is that the Tribe has approximately $21.0 million in a
reserve account as of September 30, 2010 to be used in connection with the exchange offer. Cash
used in financing activities for the twelve months ended September 30, 2009 was $20.6 million,
which primarily consisted of $19.0 million in distributions to the Tribe and $1.6 million in
principal payments on our capital equipment loan.
Our ability to fund our operations, make planned capital expenditures, and make scheduled
payments depends on our ability to refinance our long-term debt, as well as our future operating
performance and success in seeking to increase operating efficiencies and reduce operating
expenses, which are subject to economic, financial, business and other conditions, some of which
are beyond our control.
We currently have outstanding $200.0 million aggregate principal and $51.8 million in interest
in connection with our 12% Senior Notes due 2010. We have not made the scheduled $12.0 million
interest payments on the Senior Notes since November 15, 2008. The Senior Notes matured on
November 15, 2010 and we did not pay the principal due at maturity.
Additionally, our ability to incur additional indebtedness is limited under the terms of the
Indenture governing the Senior Notes. If our operating performance or success in increasing
operating efficiencies and reducing operating expenses does not meet management expectations, we
may need to arrange for additional sources of funding in the form of borrowings under our Indenture
or contributions from the Tribe, which sources of funding cannot be assured.
On August 14, 2009, Moodys Investor Service lowered IMG Resort and Casinos probability of
default rating to Ca/LD from Ca. The Ca/LD probability of default rating recognizes a payment
default under the $200 million 12% Senior Notes due November 2010. The previous rating action by
Moodys Investor Service was on March 20, 2009, at which time they lowered IMG Resort and Casinos
rating from Caa2 to Ca.
The Company has incurred significant losses and did not generate sufficient cash to make the
interest payments on its 12% Senior Notes due 2010 (the Senior Notes) since November 15, 2008.
The Senior Notes matured on November 15, 2010. The company did not pay the principal due at
maturity. This non-payment of interest and principal constitutes an event of default under the
Indenture governing the Senior Notes and the trustee or holders of at least 25% of the aggregate
principal amount of the Senior Notes could declare all such notes immediately due and payable. The
amount due in principal and interest is $251.8 million.
As
of September 30, 2010, the Company had negative working capital of approximately $239.5 million
and a total deficit of approximately $57.3 million.
The event of default, along with the Companys history of recurring losses, negative working
capital and limited access to capital, has raised substantial doubt regarding the Companys ability
to continue as a going concern. The accompanying consolidated financial statements do not include
any adjustments that might result from the outcome of this uncertainty.
On November 24, 2010, the Company commenced a private offer to exchange its outstanding Senior
Notes for (1) new 8.750% Senior Notes due 2020, (2) new Senior PIK Notes due 2020 and (3) a pro
rata amount of $18 million in cash. The exchange offer was scheduled to expire at 5:00 p.m., New York City time, on January 7, 2011.
The exchange offer has been extended to expire at 5:00 p.m., New York City time, on January 21, 2011, unless extended further or terminated.
The purpose of the extension is to allow sufficient time for the receipt of regulatory approvals necessary for the exchange offer.
Historically, IMG Resort and Casino has not generated sufficient cash flow from operations to
satisfy its capital requirements and relied upon debt financing arrangements to satisfy such
requirements. The current cash flows and
capital resources may force IMG Resort and Casino to reduce or delay activities and capital
expenditures if IMG Resort and Casino is unable to refinance its debt. In the event that IMG Resort
and Casino is unable to refinance or
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restructure its debt, IMG Resort and Casino will be left
without sufficient liquidity and IMG Resort and Casino will not be able to meet its debt service
requirements and repayment obligations.
On August 5, 2010, Standard and Poors withdrew its D issuer credit and issue-level ratings
for IMG Resort and Casino.
Description of Indebtedness
The Senior Notes
On November 3, 2003, we issued $200.0 million Senior Notes, with fixed interest payable at a
rate of 12% per annum. Interest on the Senior Notes was payable semi-annually on May 15 and
November 15. The Senior Notes matured on November 15, 2010. As of September 30, 2010, accrued
interest payable on the Senior Notes is $51.8 million, including penalty interest as described
below.
We have not made the scheduled semi-annual $12.0 million interest payments on the Senior Notes
since November 15, 2008. We did not pay the principal due at maturity. Our failure to make these
payments on or before June 15, 2009, December 15, 2009, June 15, 2010 and November 15, 2010,
constituted separate events of default under the Indenture governing the Senior Notes and the
trustee or holders of at least 25% of the aggregate principal amount of the Senior Notes could
declare all of such notes immediately due and payable. Due to the events of default, the Senior
Notes have been classified as current in the accompanying consolidated balance sheet.
Pursuant to the Indenture, we are obligated to pay penalty interest on overdue principal at
the rate equal to 1% per annum in excess of the applicable interest rate on the Senior Notes (12%),
and to pay interest on overdue installments of interest payable on the Senior Notes at the same
rate. As of September 30, 2010 the penalty interest accrued as a result is $6,845,000.
On November 24, 2010, we commenced a private offer to exchange our outstanding Senior Notes
for (1) new 8.750% Senior Notes due 2020, (2) new Senior PIK Notes due 2020 and (3) a pro rata
amount of $18 million in cash. The exchange offer was scheduled to expire at 5:00 p.m., New York City time, on January 7, 2011.
The exchange offer has been extended to expire at 5:00 p.m., New York City time, on January 21, 2011, unless extended further or terminated.
The purpose of the extension is to allow sufficient time for the receipt of regulatory approvals necessary for the exchange offer.
Incurrence of Additional Indebtedness
In general, we are restricted in connection with the issuance of the Senior Notes and the
related Indenture, that we would not incur any indebtedness if and to the extent the indebtedness
would appear as a liability upon our balance sheet prepared in accordance with Accounting
Principles Generally Accepted in the United States of America; provided however, we may incur
indebtedness if certain financial ratios meet certain criteria. Furthermore, we agreed that we
would not incur any indebtedness that is contractually subordinated in right of payment to our
other indebtedness unless such indebtedness is also contractually subordinated in right of payment
to the Senior Notes. Our ability to create liens (other than certain permitted liens) upon any of
our property or assets, or any proceeds, income or profits therefrom, or assign or convey any
right to receive income therefrom are restricted unless payments due under the Indenture and the
Senior Notes are secured on an equal and ratable basis with (or, in the case of subordinated
indebtedness, senior thereto, with the same relative priority that the Senior Notes shall have with
respect to such subordinated indebtedness) the obligation so secured until such time as such
obligations are no longer secured by a lien. Accordingly, our ability to incur additional debt
financing is severely limited.
General Indebtedness
The Tribe, for the benefit of the Inn of the Mountain Gods, a wholly-owned subsidiary of IMG
Resort and Casino, executed a promissory note dated September 1, 1982, (the BIA Note) in favor of
the Department of Interior, Bureau of Indian Affairs in the amount of approximately $3.5 million.
The BIA Note accrues interest at the rate of 8.5% per annum payable annually from the date of the
BIA Note until paid in full on September 1, 2011. As of September 30, 2010, there was approximately
$0.3 million outstanding on the BIA Note.
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Equipment Finance Agreement
On June 15, 2004, we entered into a $15.0 million loan agreement with an equipment finance
company. The fixed rate loan is fully amortizable over five years. Proceeds from the interest rate
loan were used to fund furniture, fixtures and equipment for the Resort. As of September 30, 2010,
approximately $8,912 was the outstanding balance.
As discussed above, we have not made the scheduled payments on the Senior Notes since November
15, 2008. If the Senior Notes are declared immediately due and payable, it would constitute a
default under the terms of our furniture and equipment loan and the lenders there under could
declare the outstanding loan to be immediately due and payable and may enforce their rights to the
collateral securing the loan.
Off-Balance Sheet Arrangements
As of September 30, 2010, we had no off-balance sheet arrangements that affect our financial
condition, liquidity and results of operation.
Tabular Disclosure of Contractual Obligations
The following table sets forth, as of September 30, 2010, our scheduled principal, interest
and other contractual annual cash obligations due by us for each of the periods indicated below
(Dollars in thousands):
Payments due by Period | ||||||||||||||||||||
Less | More | |||||||||||||||||||
Than | 1-3 | 3-5 | Than | |||||||||||||||||
Contractual Obligations | Total | 1 Year | Years | Years | 5 Years | |||||||||||||||
Long-term debt obligations |
$ | 200,401 | $ | 200,009 | $ | 392 | $ | | $ | | ||||||||||
Interest (a) |
51,865 | 51,845 | 20 | | | |||||||||||||||
Warner Gaming Management agreement
(b) |
4,280 | 720 | 2,160 | 1,400 | | |||||||||||||||
Tribal Taxes (c) |
14,400 | 2,400 | 7,200 | 4,800 | | |||||||||||||||
Total |
$ | 270,946 | $ | 254,974 | $ | 9,772 | $ | 6,200 | $ | | ||||||||||
(a) | The Senior Notes bear interest at 12% per year, payable on May 15 and November 15 of each year until maturity, which occurred on November 15, 2010. As a result of the default of the Senior Notes and pursuant to the Indenture, we have classified the Senior Notes as current and we are obligated to pay interest on overdue installments at 13% per annum. | |
(b) | The Warner Gaming management contract is calculated based on the earnings before interest, taxes, depreciation and amortization (EBITDA) of the businesses of the Registrant, but shall be no less than $60,000 per month. | |
(c) | IMG Resort and Casino is subject to Mescalero Apache Tribal taxes which employs an alternative minimum tax system. Other than a portion of the operations at Ski Apache, IMG Resort and Casinos operations are not subject to New Mexico State Gross Receipts Tax. A Tribal tax charge of 10.75% of hotel revenue, 6.75% of food and beverage revenue, and 6.5% of other revenue is charged at non-Ski Apache outlets. Under the Tribes alternative minimum tax system, IMG Resort and Casino is assessed the greater of a fixed rate of $200,000 or the amount collected from sales taxes on a per month basis. |
A special use permit was obtained from the United States Department of Agriculture Forest
Service for Ski Apaches use of 80 acres of land in Lincoln National Forest. The permit is dated
April 23, 1985, and has a term of 30 years with an annual occupancy fee based on revenue and gross
fixed assets. There is no set minimum; the fee is based on revenue.
The occupancy fees for the
fiscal year ended September 30, 2010 and the twelve months ended
September 30, 2009 (unaudited)
totaled approximately $61,000 and $17,000 respectively. The occupancy
fees for the five months ended
September 30, 2009 and 2008 (unaudited) totaled approximately
$1,000 and $17,000, respectively.
Occupancy fees for the fiscal years ended April 30, 2009 and 2008
totaled approximately $22,672 and $55,650
respectively. As this fee is based on revenue of the Company and not a minimum guarantee it
was not included in the contractual obligations table above.
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Regulation and Taxes
We are subject to extensive regulation by the Mescalero Apache Tribal Gaming Commission, the
National Indian Gaming Commission, the NIGC, and, to a lesser extent, the New Mexico Gaming Control
Board. Changes in applicable laws or regulations could have a significant impact on our operations.
We are an unincorporated Tribal business enterprise, directly owned by the Tribe, a federally
recognized Indian tribe, and are located on reservation land held in trust by the United States of
America; therefore, we were not subject to federal or state income taxes for the twelve month
period ended September 30, 2009 (unaudited) or the fiscal years ended September 30, 2010 or April
30, 2009, nor is it anticipated that we will be subject to such taxes for the foreseeable future.
Various efforts have been made in the U.S. Congress over the past several years to enact
legislation that would subject the income of tribal business entities, such as us, to federal
income tax. Although no such legislation has been enacted, similar legislation could be passed in
the future. A change in our non-taxable status could have a material adverse effect on our cash
flows from operations.
New Accounting Pronouncements
The adjustment to reflect the difference between the fair value and the current carrying
amount of the assets and liabilities for which a company elects fair-value measurement is reported
as a cumulative-effect adjustment to the opening balance of retained earnings upon adoption.
Companies that adopt FASB ASC 825-10 (SFAS 159) early must also adopt all of FASB ASC 825-10s
(SFAS 157) requirements at the early adoption date. The adoption of this standard did not have a
material effect on IMG Resort and Casinos financial statements.
In April 2008, the Financial Accounting Standards Board (FASB) issued Staff Position FASB
ASC 350, Intangible- Goodwill and Other, (prior authoritative literature: FASB SFAS 142-3:
Determination of the Useful Life of Intangible Assets, issued April 2008) (FASB ASC 350 (FSP FAS
142-3)). The FSP amends the factors that should be considered in developing renewal or extension
assumptions used to determine the useful life of a recognized intangible asset under FASB ASC 350
(SFAS No. 142), Goodwill and Other Intangible Assets. The intent of the FSP is to improve the
consistency between the useful life of a recognized intangible asset under FASB ASC 350 (SFAS No.
142) and the period of expected cash flows used to measure the fair value of the asset under other
accounting principles generally accepted in the United States of America. The FSP is effective for
financial statements issued for fiscal years beginning after December 15, 2008, and interim periods
within those fiscal years. Early adoption is prohibited. The Company adopted FASB ASC 350 (SFAS No.
142) at the beginning of fiscal year 2010. The adoption did not have a significant effect on the
Companys financial statements.
The FASB issued FASB ASC 105-10, The FASB Accounting Standards Codification and the Hierarchy
of Generally Accepted Accounting Principles (prior authoritative literature: FASB SFAS No. 168, The
FASB Accounting Standards Codification and the Hierarchy of Generally Accepted Accounting
Principles, issued June 2009) (FASB ASC 106-10-65 (SFAS No. 168)), which replaced SFAS No. 162,
and established the sources of authoritative U.S. generally accepted accounting principles (GAAP)
recognized by the FASB to be applied by nongovernmental entities. On the effective date for
financial statements issued for interim and annual periods ending after September 15, 2009, the
Codification superseded all then-existing nonSEC accounting and reporting standards. FASB ASC
106-10 (SFAS No. 168) is effective for fiscal years and interim periods ending after September 15,
2009. The adoption of FASB ASC 105-10 (SFAS 168) did not have a material impact on our consolidated
financial statements.
In April 2010, the FASB issued Accounting Standards Update (ASU) No. 2010-16,
Entertainment-Casinos (Topic 924): Accruals for Casino Jackpot Liabilities, a consensus of the FASB
Emerging Issues Task Force. This
guidance clarifies that an entity should not accrue jackpot liabilities (or portions thereof)
before a jackpot is won if the entity can avoid paying that jackpot. Jackpots should be accrued and
charged to revenue when an entity has the obligation to pay the jackpot. The guidance applies to
both base and progressive jackpots. The guidance is effective for reporting periods beginning after
December 15, 2010. Accordingly, we will adopt the new guidance in the first quarter of 2011. The
adoption of this new guidance is not expected to have a material impact on our condensed
consolidated financial statements.
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Item 7A. Quantitative and Qualitative Disclosures About Market Risk
Market risk is the risk of loss arising from adverse changes in market rates and prices, such
as interest rates, foreign currency exchange rates and commodity prices.
As of September 30, 2010, we held no derivative instruments.
Item 8. Financial Statements and Supplementary Data
The financial statements required pursuant to this item are included in Part IV of this report
and begin on page F-1. The supplementary financial information required by this item is included in
Item 6. Selected Financial Data.
Item 9. Changes In and Disagreements with Accountants on Accounting and Financial Disclosure
None.
Item 9A. Controls and Procedures
Disclosure Controls and Procedures
Evaluation of Disclosure Controls and Procedures
Our Chief Operating Officer and Interim-Chief Financial Officer, after evaluating the
effectiveness of our disclosure controls and procedures (as defined in Rules 13a-15(e) and
15(d)-15(c) of the Securities Exchange Act of 1934) as of the end of the period covered by this
Report, have concluded that as of the date, our disclosure controls and procedures were effective.
As of September 30, 2010, the Company evaluated the effectiveness and design and operation of
its disclosure controls and procedures. The Companys disclosure controls and procedures are the
controls and other procedures that the Company designed to ensure that it records, processes,
summarizes, and reports in a timely manner the information that it must disclose in reports that
the Company files with or submits to the Securities and Exchange Commission. Scott Eldredge, the
principal executive officer and principal financial officer of the Company, reviewed and
participated in this evaluation. Based on this evaluation, the Company made the determination that
its disclosure controls were effective.
Report of Management on Internal Control Over Financial Reporting
The management of the Company is responsible for establishing and maintaining adequate
internal control over the Companys financial reporting as defined in Rules 13a-15(f) and 15d-15(f)
under the Securities Exchange Act of 1934. Internal control over financial reporting is the process
designed to provide reasonable assurance regarding the reliability of financial reporting and the
preparation of the Companys financial statements for external purposes in accordance with
accounting principles generally accepted in the United States of America.
There are inherent limitations in the effectiveness of internal control over financial
reporting, including the possibility that misstatements may not be prevented or detected.
Accordingly, even effective internal controls over financial reporting can provide only reasonable
assurance with respect to financial statement preparation. Furthermore, the effectiveness of
internal controls can change as circumstances change.
Management has evaluated the effectiveness of internal control over financial reporting as of
September 30, 2010, using criteria described in Internal Control Integrated Framework issued by
the Committee of Sponsoring Organizations of the Treadway Commission (COSO). Based on
managements assessment, management concluded that the Companys internal control over financial
reporting was effective as of September 30, 2010.
This annual report does not include an attestation report of the Companys independent
registered public accounting firm regarding internal control over financial reporting. Managements
report was not subject to attestation by the Companys registered public accounting firm pursuant
to temporary rules of the Securities and Exchange Commission that permit the Company to provide
only managements report in this annual report.
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Changes in Internal Control Over Financial Reporting
During the Companys fourth fiscal quarter ended September 30, 2010 and since the date of the
evaluation noted above, there were no changes in our internal control over financial reporting
identified in connection with the evaluation required by Exchange Act Rules 13a-15(d) that occurred
during the period covered by this Report that has materially affected, or is reasonably likely to
materially affect, our internal control over financial reporting.
Item 9B. Other Information
On January 8, 2011, two newly elected Tribal officials will be sworn into office, thereby
becoming members of the IMG Resort and Casinos Management Board. Ira Sago and Duane Duffy will be
replacing Hazel Botella-Spottedbird and Oliver Enjady, respectively.
Ira Sago was elected to serve his first term on the Mescalero Apache Tribal Council on
November 4, 2010. He will begin his term on January 14, 2011. Mr. Sago has been employed as a
gaming agent by the Mescalero Apache Gaming Commission since January 2005. He attended the
University of Colorado at Boulder from 1990 to 1992. From 2001 to 2004 he continued his education
in psychology at the same university. Mr. Sago is 40 years
old.
Duane Duffy was elected to serve his first term on the Mescalero Apache Tribal Council on
November 4, 2010. He will begin his term on January 14, 2011. Mr. Duffy has been employed by the
Mescalero Apache Fire Rescue as a structural firefighter and emergency medical services-first
responder since August 2010. In 2006, he was employed by Ski Apache as the supervisor for
security/surveillance. Mr. Duffy received a bachelors degree in political science from Fort Lewis
College in Durango, CO in 2009. He is 26 years old.
On October 1, 2010, Ben Martinez, our Chief Financial Officer and a member of our Management
Board, resigned. In the interim, Scott Eldredge has assumed the role of Chief Financial Officer.
On November 24, 2010, we commenced a private offer to exchange our outstanding 12% Senior
Notes due 2010 for (1) new 8.750% Senior Notes due 2020, (2) new Senior PIK Notes due 2020 and (3)
a pro rata amount of $18 million in cash. The exchange offer was scheduled to expire at 5:00 p.m., New York City time, on January 7,
2011. The exchange offer has been extended to expire at 5:00 p.m., New York City time, on January
21, 2011, unless extended further or terminated. The purpose of the extension is to allow
sufficient time for the receipt of regulatory approvals necessary for the exchange offer.
PART III.
Item 10. Directors, Executive Officers and Corporate Governance
The Tribe has established IMG Resort and Casino as an unincorporated enterprise of the Tribe
to operate its gaming, hotel, resort and ski businesses. IMG Resort and Casino is governed by a
Management Board comprised of between seven to nine members, including: the four members of the
Executive Committee of the Tribe (including the President of the Tribe who serves as Chairperson,
as well as the Vice President and Secretary of the Tribe); the Chief Operating Officer of IMG
Resort and Casino, and at least one, and up to three, independent members. The Management Board
designates officers to administer the economic and business affairs of IMG Resort and Casino.
The following are our current officers and members of the Management Board of IMG Resort and
Casino:
Name | Age | Position | ||||
Mark R. Chino
|
56 | Management Board Member (Chairperson), President of the Tribe | ||||
Sandra Platero
|
54 | Management Board Member, Vice President of the Tribe | ||||
Gregory Mendez
|
51 | Management Board Member, Secretary of the Tribe | ||||
Pamela Cordova
|
63 | Management Board Member | ||||
Randy Bell
|
45 | Management Board Member | ||||
Kenny Blazer
|
52 | Management Board Member | ||||
Pete Kazhe
|
66 | Management Board Member | ||||
Oliver Enjady
|
58 | Management Board Member | ||||
Hazel Botella-Spottedbird
|
53 | Management Board Member | ||||
Manuel Lujan, Jr.
|
82 | Management Board Member, Audit Committee Chair | ||||
Scott Eldredge
|
41 | Chief Operating Officer of IMG Resort and Casino, Management Board Member and Interim-Chief Financial Officer of IMG Resort and Casino |
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There are no management board members that are related.
The Management Board met a total of 13 times during the fiscal year ended September 30, 2010.
All members of the Management Board attended more than 90% of the time.
Mark R. Chino has served as President of the Tribe since January 8, 2010. As President of the
Tribe, Mr. Chino also serves as Chairman of the Management Board and Chief Executive Officer of the
Company. Mr. Chinos term will expire in January 2012. He previously served two consecutive
two-year terms as President of the Tribe from 2004 to 2008 while at the same time serving as CEO of
the Management Board. Prior to his terms as President of the Tribe, he held various law
enforcement positions with the Bureau of Indian Affairs, Law Enforcement Services before retiring
in 2004. He received his Bachelor of Police Science from New Mexico State University in 1977.
Sandra Platero has served as Vice President of the Tribe since January 8, 2010. As Vice
President of the Tribe, Ms Platero also serves as a member of the Management Board for a two-year
term. Previously, she served on the Tribal Council from 2000 to 2004. In addition, she was the
Project Manager at the Company from 2002 to 2004. Ms. Platero attended Southwestern Indian
Polytechnic Institute and received a certificate in Secretarial/Business in 1992.
Gregory Mendez has served his two-year term as a member of the Management Board since January
8, 2010. Mr. Mendez is also the Secretary of the Management Board and a member of the Tribal
Council. Mr. Mendez served on the Tribal Council from 2000 to 2003 and has been on the Tribal
Council since 2006. In a prior term, he served as Treasurer of the Tribe and currently serves as
Secretary of the Tribe. Mr. Mendez is employed by the BIA as a Range Land Specialist, a position
he has held for 20 years. He received a bachelors degree in range science from New Mexico State
University in 1995.
Pamela Cordova has served her two-year term as a member of the Management Board since January
8, 2010. Ms. Cordova is also a member of the Tribal Council. Ms. Cordova worked as a teacher and
administrative assistant in the Tularosa School District and the Mescalero Apache Schools from the
1980s until May 2010. She received her Bachelor of Arts in Elementary Education in 1982 and a
Masters Degree in Elementary Education in 1986, each from New Mexico State University.
Randy Bell has served his two-year term as a member of the Management Board since January 8,
2010. Mr. Bell is also a member of the Tribal Council. Mr. Bell was appointed to the Tribal
Council in August 2008 and was elected to serve an additional two-year term starting in 2010. He
is the owner and manager of Besh Din De Graphics, a print shop that since 2004 has catered
primarily to Mescalero Apache artists. In addition, he is Chair of the Tribal Council Natural
Resources Sub-Committee.
Kenny Blazer has served his two-year term as a member of the Management Board since January 8,
2010. Mr. Blazer is also a member of the Tribal Council. Previously, he served on the Tribal
Council from May 2008 through January 2009. He is the owner of Blazer Bus Co., which he has owned
for 25 years. He also serves as the secretary of the Board of Directors of Otero County Electric
Coop.
Pete Kazhe has served his two-year term as a member of the Management Board since January 25,
2010. Mr. Kazhe is also a member of the Tribal Council. He worked for the Mescalero Apache
Housing Authority (MAHA) until 2007 when he retired. He attended Ft. Lewis College in Durango,
Colorado from 1964 to 1965.
Oliver Enjady has served his two-year term as a member of the Management Board since January
2009. Mr. Enjady is also a member of the Tribal Council. Previously, he served as Vice President
of the Tribe for a six-month period beginning in November 1998. In addition, he served as a member
of the Tribal Council from 1996 to 1998, 2001 to 2001 and 2005 to 2006. He received his degree in
art from the Institute of American Indian Arts in Santa Fe, New Mexico in 1991, and he currently
works as a professional artist. Mr. Enjady will be replaced on January 14, 2011.
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Hazel Botella-Spottedbird has served as a member of the Management Board since January 2008.
Ms. Botella-Spottedbird is also a member of the Tribal Council. She served as Treasurer of both
the Tribal Council and the Management Board in 2009. She has been employed by the Company as the
Accounts Receivable Coordinator since June 2005. She received a certificate from the International
Business College for computer and accounting courses. Ms. Bottella-Spottedbird will be replaced on
January 14, 2011.
Manuel Lujan, Jr. has served as an independent member of the Management Board since January
2005. Mr. Lujan served as the U.S. Congressman representing the State of New Mexico from January
1969 to January 1989 and as Secretary of the Interior under the Bush Administration from 1989 to
1993. Since 1993 he has served as a lobbyist in Washington, D.C. through his company Manuel Lujan
Associates, a consulting firm dealing with matters involving federal agencies. Mr. Lujan also
currently serves on the board of directors of San Ildefonso Indian Pueblo Economic Development. He
received a bachelors degree from the College of Sante Fe in 1950.
Scott Eldredge has served as Chief Operating Officer of the Company since August 12, 2010.
Mr. Eldredge has also assumed the role of Chief Financial Officer on an interim basis. From 2005
to 2010, Mr. Eldredge worked for the Santa Ana Star Casino, first as the Director of Marketing and
Transportation and later as the General Manager. As General Manager, he managed a team
of 800 employees and oversaw the business strategy for the property. From March 2010 until his
appointment with the Company, Mr. Eldredge worked as Corporate Vice President of Marketing for
Cherokee Nation Entertainment, where he developed and implemented their marketing strategy. Mr.
Eldredge also completed the Casino Management Association certification program and the Maloof
Hotels management trainee program. He graduated from New Mexico Highlands University with a
Bachelor of Arts degree in business administration in 1991.
Management Board Independence
The Tribe has established IMG Resort and Casino as an unincorporated enterprise of the Tribe
to operate its gaming, hotel, resort and ski businesses. As such, the IMG Resort and Casino is
governed by a Management Board comprised of between seven to nine members, including: the four
members of the Executive Committee of the Tribe (including the President of the Tribe who serves as
Chairperson, as well as the Vice President, Secretary and Treasurer of the Tribe); the Chief
Operating Officer of IMG Resort and Casino, and at least one, and up to three, independent members.
Currently, the Tribe has designated one individual, Mr. Lujan, Jr. to serve as the independent
member of the Management Board.
Code of Ethics
We have adopted a Code of Business Conduct and Ethics applicable to all of our employees,
including our Chief Operating Officer, Chief Financial Officer, and all other senior financial
executives, and to our directors when acting in their capacity as directors. Our Code of Business
Conduct and Ethics is designed to set the standards of business conduct and ethics and to help
directors and employees resolve ethical issues. The purpose of our Code of Business Conduct and
Ethics is to ensure to the greatest possible extent that our business is conducted in a
consistently legal and ethical manner. Employees may submit concerns or complaints regarding audit,
accounting, internal controls or other ethical issues on a confidential basis by means of a
toll-free telephone call or an anonymous email. We investigate all concerns and complaints. Copies
of our Code of Business Conduct and Ethics are available to investors upon written request. Any
such request should be sent by mail to Inn of the Mountain Gods Resort and Casino, 287 Carrizo
Canyon Road, Mescalero, New Mexico 88340, Attn: Chief Operating Officer or should be made by
telephone by calling (575) 464-7777.
We intend to disclose on our website amendments to, or waivers from, any provision of our Code
of Business Conduct and Ethics that apply to our Chief Operating Officer, Chief Financial Officer,
and persons performing similar functions and amendments to, or waivers from, any provision which
relates to any element of our Code of Business Conduct and Ethics described in Item 406(b) of
Regulation S-K.
Committees of the Board
Audit Committee. On behalf of the Management Board, the Audit Committee is responsible for
providing an independent, objective review of our auditing, accounting and financial reporting
process, public reports and disclosures, and system of internal controls regarding financial
accounting. Currently there are three members of the Audit Committee
and Manuel Lujan, Jr. serves
as the Audit Committee financial expert. The Management Board has determined that Mr. Lujan is
independent.
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Compensation Committee. All members of our Management Board performed the responsibilities of
the compensation committee, and participated in deliberations and made decisions concerning
executive officer compensation during the course of regular board meetings or board activities
conducted through unanimous consent board resolutions in lieu of meetings. Executive officers did
not deliberate and vote on matters relating to their compensation as our executive officer. None of
the members of the Management Board during the fiscal year ended September 30, 2010 served on the
compensation committee of an entity whose executive officers served on the Management Board of the
Company, and no executive officer of the Company during fiscal year 2010 served on the compensation
committee or board of any company that employed any member of the Management Board.
Disclosure Committee. The Disclosure Committee was established in 2004 and met one time during
the fiscal year ended September 30, 2010. There are currently five members of the Disclosure
Committee. There is no compensation for being on this committee.
Item 11. Executive Compensation
COMPENSATION DISCUSSION AND ANALYSIS
Compensation Objectives
The Companys success depends on the expertise, talent, experience and long-term commitment of the
Companys employees, especially its executive officers. The Companys compensation plan is intended
to achieve the following objectives:
| To attract, retain, motivate and reward key employees to drive the successful implementation of the Companys current and long-term financial and operating goals; | ||
| To establish appropriate incentives for management and employees that are consistent with the Companys culture and values; and | ||
| To provide an annual compensation program that rewards both Company and individual performance with the proper balance between salary, and performance-based incentives. |
Our named executive officers consist of our Chief Operating Officer (COO) and our Chief Financial
Officer (CFO). Compensation of officers is established after a review of data for executives in
similar positions in comparable companies, mostly companies in the hospitality and gaming fields.
When reviewing individual compensation levels, the Company considers individual and corporate
performance, levels of responsibility, and competitive pay practices. These factors vary from
individual to individual and other subjective features are also considered such as the individuals
experience.
Roles in Establishing Executive Officers Compensation
Our executive officers compensation is set by our entire Management Board and not by a compensation
committee. To the extent that an executive officer is a member of the Management Board, they recuse
themselves from discussion or do not participate in compensation decisions that relate to them. The
Management Board relies on input from the COO in connection with the CFOs position and
compensation. The Management Board determines the COOs position and compensation without the input
of any other executive officer. The amount of compensation for each named executive officer
reflects their superior management experience and continued high level of performance over a long
period of time. Currently, none of our executive officers are entitled to any cash compensation or
bonuses above and beyond their base salary.
Elements of Compensation
Base Annual Compensation. The Company believes that the base salary levels of the Companys
executive officers are reasonably related to the base salary levels of executive officers of
comparable companies in the gaming and hospitality fields and the geographical region in which the
Company is located. The base salary levels were not objectively determined with a formula but
instead reflect levels that the Company concluded were appropriate based
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upon our general
experience. The Company believes that the current base salary levels of the Companys executive
officers take into account the unique talents and experience of our executive officers. Base
salaries are adjusted annually for cost of living adjustments. Base salaries are reviewed at the
end of the contract period and increases in base salary takes into account such factors as
individual past performance, changes in responsibilities, and changes in pay levels of companies
deemed comparable to us.
Severance Benefits. We believe that companies should provide reasonable severance benefits to its
executive officers when leaving the Company due to a change in control or without cause. The amount
of each executives severance is determined by the terms of each of their respective employment
agreements.
Other Compensation. Our executive officers are entitled to participate on the same basis as all
other employees of IMGRC in all general employee benefit plans and programs. However, our executive
officers do not receive any other compensation nor are they entitled to any bonus compensation as
part of their employment with the Company.
Retirement Benefits. The executive officers may elect to participate in retirement plan benefits of
our 401(k) plan generally available to all of our full time employees. The Company does not make
any 401(k) contributions on behalf of the executive officers.
Pension Benefits. The Company does not have a benefit pension plan.
Deferred Compensation. The Company has neither a non-qualified defined contribution plan nor any
other non-qualified deferred compensation plans.
Compensation Committee Report
The Management Board has reviewed and discussed the Compensation Discussion and Analysis with
management, and based on the Boards review and discussions with management, recommends that the
Compensation Discussion and Analysis be included in the Companys annual report on Form 10-K for
the fiscal year ended September 30, 2010.
Report Submitted by:
THE MANAGEMENT BOARD
Mark R. Chino, Chairman
Sandra Platero
Gregory Mendez
Pamela Cordova
Kenny Blazer
Randy Bell
Pete Kazhe
Oliver Enjady
Hazel Botella-Spottedbird
Manuel Lujan, Jr.
Scott Eldredge
Mark R. Chino, Chairman
Sandra Platero
Gregory Mendez
Pamela Cordova
Kenny Blazer
Randy Bell
Pete Kazhe
Oliver Enjady
Hazel Botella-Spottedbird
Manuel Lujan, Jr.
Scott Eldredge
Summary Compensation Table
The following table sets forth, as to the Chief Operating Officer and Chief Financial Officer
during fiscal year 2010 (referred to as the named executive officers); information concerning all
compensation paid for services to us in all capacities for the fiscal year ended September 30, 2010
indicated below.
All Other | ||||||||||||||||||||
Compensation | Total | |||||||||||||||||||
Name and Principal Position(1) | Year | Salary ($) | Bonus ($) | ($) | ($) | |||||||||||||||
Scott Eldredge Chief Operating Officer and Interim-Chief Financial Officer |
2010 | 33,674 | | | 33,674 | |||||||||||||||
Elizabeth Foster-Anderson (2) Former Chief Operating Officer |
2010 | 198,480 | | 21,155 | 219,635 | |||||||||||||||
Ben Martinez Former Chief Financial Officer |
2010 | 204,607 | | | 204,607 |
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(1) | All of our officers receiving compensation in excess of $100,000 during the last fiscal year are listed above. No other officers other than the COO and CFO receive compensation in excess of $100,000. | |
(2) | Mrs. Foster-Anderson received severance pay. |
DIRECTOR COMPENSATION
Change in | ||||||||||||||||||||||||
Pension | ||||||||||||||||||||||||
Value and | ||||||||||||||||||||||||
Non-qualified | ||||||||||||||||||||||||
Non-Equity | Deferred | |||||||||||||||||||||||
Fees Earned or Paid | Incentive Plan | Compensation | All Other | |||||||||||||||||||||
in Cash | Stock Awards | Option Awards | Compensation | Earnings | Compensation | |||||||||||||||||||
Name | ($) | ($) | ($) | ($) | ($) | ($) | ||||||||||||||||||
Mark R. Chino |
4,200 | | | | | | ||||||||||||||||||
Sandra Platero |
4,200 | | | | | | ||||||||||||||||||
Gregory Mendez |
1,200 | | | | | | ||||||||||||||||||
Pamela Cordova |
1,400 | | | | | | ||||||||||||||||||
Randy Bell |
3,000 | | | | | | ||||||||||||||||||
Kenny Blazer |
1,400 | | | | | | ||||||||||||||||||
Pete Kazhe |
3,000 | | | | | | ||||||||||||||||||
Oliver Enjady |
2,800 | | | | | | ||||||||||||||||||
Hazel Botella-Spottedbird |
3,000 | | | | | | ||||||||||||||||||
Manuel Lujan, Jr. |
2,800 | | | | | |
Compensation of the Management Board and Audit Committee
Members of the Management Board who are officers of the Resort but are not Tribal members do
not receive any additional compensation or fees for attending Management Board or Audit Committee
meetings. Tribal members serving on the Management Board and Audit Committee receive $200 per
meeting. Independent members serving on the Management Board and Audit Committee receive $500 per
meeting and an additional $1,000 per quarter.
Employment Agreements
The Board for IMG has discontinued the general practice of employment agreements for the Company.
Item 12. Security Ownership of Certain Beneficial Owners and Management and Related Stockholder
Matters
None.
Item 13. Certain Relationships and Related Transactions, and Director Independence Related Party
Transaction Approval Policy
The Board recognizes that related party transactions can present conflicts of interest and
questions as to whether the transactions are in the best interests of the Company. Accordingly,
effective as of July 18, 2010, the Management Board adopted a written policy for the review,
approval and ratification of transactions with related persons. For the purposes of the policy, a
related party transaction is a transaction or relationship involving a member of the Management
Board, executive officer or their immediate family members that is reportable under the SECs rules
regarding such transactions. The policy requires for the Audit Committee to review and approve all
related party transactions, other than transactions involving amounts less than $100,000 in
aggregate. As the policy was not adopted until after the end of the fiscal year, only transactions
on a going-forward basis will be reviewed and approved pursuant to the policy.
41
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Distributions to the Tribe with Other Payments
Distributions in the form of government service payments to the Tribe were $4.2 million during
the fiscal year ended September 30, 2010. We make distributions to the Tribe under the terms of an
annual Tribal budget resolution passed at the discretion of the Tribal Council. We intend to
continue to make distributions to the Tribe subject to the restrictions set forth in the indenture
governing our Senior Notes or any instrument replacing the indenture.
Tribal Taxes
IMG Resort and Casino is subject to Mescalero Apache Tribal taxes which employs an alternative
minimum tax system. Other than a portion of the operations at Ski Apache, IMG Resort and Casinos
operations are not subject to New Mexico State Gross Receipts Tax. A Tribal tax charge of 10.75% of
room revenue, 6.75% of food and beverage revenue, and 6.5% of other revenue is charged at non-Ski
Apache outlets. Under the Tribes alternative minimum tax system, IMG Resort and Casino is assessed
the greater of a fixed rate of $200,000 or the amount collected from sales taxes on a per month
basis. Since November 2009, taxes have been collected and recorded as a liability on IMG Resort and
Casinos balance sheet and are not included in net revenue. Excess tax amounts due under the
alternative minimum tax system are expensed in the month they are due. In prior periods the taxes
collected were included in net revenue and tax payments were expensed. Reclassifications have been
made to the prior years presented to be consistent with the current
fiscal year financial presentation.
The tax payment is made at the beginning of the month in which the taxes are collected. As of
September 30, 2010 and 2009, the Company had alternative minimum
taxes payable of $196,877 and $88,122, respectively in
connection with the taxes collected and not paid.
The following chart highlights IMG Resort and Casinos tribal tax activity for the fiscal year
ended September 30, 2010, the five months ended September 30, 2009, and the fiscal years ended
April 30, 2009 and 2008.
For the fiscal year | For the five months | For the fiscal year | For the fiscal | |||||||||||||
ended | ended | ended | year ended | |||||||||||||
September 30, 2010 | September 30, 2009 | April 30, 2009 | April 30, 2008 | |||||||||||||
Alternative minimum
tax paid/payable |
$ | 2,508,755 | $ | 1,088,122 | $ | 2,400,000 | $ | 2,400,000 | ||||||||
Total taxes collected |
(2,010,170 | ) | (1,088,122 | ) | (2,189,730 | ) | (2,366,617 | ) | ||||||||
Alternative minimum tax expense |
$ | 498,585 | $ | | $ | 210,270 | $ | 33,383 | ||||||||
Shared Services and Cost Allocations
In 2003, IMG Resort and Casino and the Tribe entered into a service and cost allocation
agreement, which provides that the Tribe or its enterprises will continue to provide IMG Resort and
Casino and its resort enterprises the following services in accordance with past practice: (i)
insurance; (ii) telecommunications; (iii) propane; and (iv) gaming regulation, and that IMG Resort
and Casino and its resort enterprises will pay, on behalf of the Tribe, for (a) revenue sharing and
regulatory fee obligations required under the 2001 Compact or any new compact, (b) federal
regulatory fees required by IGRA, (c) an amount equal to the monthly payments required under the
promissory note dated September 1, 1982, in favor of the Department of Interior, Bureau of Indian
Affairs (See Note 5) and (d) amounts for certain other miscellaneous liabilities. IMG Resort and
Casino reimburses the Tribe for its direct costs as billed by the third party.
Employee Benefits Cost Allocations
In 2003, IMG Resort and Casino and the Tribe entered into an employee benefits cost allocation
agreement, which provides that the Tribe will continue to provide IMG Resort and Casino and its
resort enterprises with certain employee benefits in accordance with past practice, including group
health benefits, workers compensation
42
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insurance, disability insurance, unemployment benefits and
pension benefits. IMG reimburses the Tribe for its employees direct costs for coverage as billed
by the third party.
The Tribe provides employee benefits to the IMG Resort and Casino, which reimburses the Tribe
for all costs and expenses associated with this insurance. IMG Resort and Casino paid the Tribe
approximately $1.4 million, $1.2 million and $1.1 million for the five months ended September 30,
2008, 2009 and 2010, respectively. IMG Resort and Casino paid the Tribe approximately $3.5 million,
$3.3 million and $2.7 million for the twelve months ended September 30, 2008 and 2009 and the
fiscal year ended September 30, 2010, respectively.
Item 14. Principal Accounting Fees and Services
Before our principal accountant is engaged by us to render audit or non-audit services, where
required by the rules and regulations promulgated by the Securities and Exchange Commission, such
engagement is approved by the Audit Committee.
The following table sets forth the aggregate fees for professional service provided to IMG
Resort and Casino for fiscal 2009 and 2010 by BDO USA, LLP:
Fiscal year ended | Fiscal year ended | |||||||||||||||
September 30, | April 30, | Percentage of Services | ||||||||||||||
2010 | 2009 | 2010 | 2009 | |||||||||||||
Audit Fees |
$ | 347,000 | $ | 370,000 | 91 | % | 87 | % | ||||||||
Tax Fees |
| | 0 | % | 0 | % | ||||||||||
MICS Audit Fees and other |
31,000 | 56,000 | 9 | % | 13 | % | ||||||||||
Total Fees |
$ | 378,000 | $ | 426,000 | 100 | % | 100 | % | ||||||||
Audit Fees billed during fiscal 2009 and 2010 were for professional services rendered for
the audit of our financial statements quarterly reviews and services rendered in connection with
regulatory filings for those fiscal years. MICS Audit Fees consists of fees related to agreed
upon procedures applied to minimum internal control standards.
The Audit Committee has adopted a policy for the pre-approval of all audit and non-audit
services to be performed for IMG Resort and Casino by its independent auditor. The Audit Committee
has considered the role of BDO USA, LLP in providing audit and MICS services to IMG Resort and
Casino and has concluded that such services are compatible role as IMG Resort and Casinos
independent auditor.
Item 15. Exhibits, Financial Statement Schedules
(a) | (1) FINANCIAL STATEMENTS See Index to Consolidated Financial Statements of this Annual Report on Form 10-K. | |
(2) FINANCIAL STATEMENT SCHEDULES All financial statement
schedules have been omitted because they are not applicable or
are not required, or because the information required to be set
forth therein is included in the Consolidated Financial
Statements or Notes thereto. |
||
(3) EXHIBITS See Exhibit Index of this Annual Report on Form 10-K. |
(b) | None. | |
(c) | See Exhibit Index of this Annual Report on Form 10-K. |
43
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SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant has duly caused this Report
to be signed on its behalf by the undersigned, thereunto duly authorized, on the Reservation of the
Mescalero Apache Tribe, State of New Mexico, on January 7, 2011.
INN OF THE MOUNTAIN GODS RESORT AND CASINO | ||||||
By: | /s/ Scott Eldredge
|
|||||
Its: Chief Operating Officer (Principal Executive Officer) and Interim-Chief Financial Officer (Principal Financial Officer) |
44
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POWER OF ATTORNEY
Each person whose signature appears below constitutes and appoints Scott Eldredge, as his or
her true and lawful attorney-in-fact and agent with full power of substitution and
resubstitution, for him or her and his or her name, place and stead, in any and all capacities, to
sign any or all amendments to this Annual Report on Form 10-K and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent, full power and
authority to do and perform each and every act and thing requisite and necessary to be done in and
about the foregoing, as fully to all intents and purposes as he or she might or could do in person,
hereby ratifying and confirming all that said attorney-in-fact and agent, or
his or her substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, this report
has been signed below by the following persons on behalf of the registrant and in the capacities
and on the dates indicated.
Signature | Title | Date | ||
/s/ Mark R. Chino Mark R. Chino |
Chief Executive Officer Management Board Member (Chairperson) |
January 7, 2011 | ||
/s/ Sandra Platero Sandra Platero |
Vice Chairman, Management Board Management Board Member |
January 7, 2011 | ||
/s/ Gregory Mendez Gregory Mendez |
Secretary, Board Member Management Board Member |
January 7, 2011 | ||
/s/
Manuel Lujan, Jr. Manuel Lujan, Jr. |
Chairman, Audit Committee Management Board Member |
January 7, 2011 | ||
/s/ Scott Eldredge Scott Eldredge |
Chief Operating Officer Interim-Chief Financial Officer (Principal Financial Officer) |
January 7, 2011 | ||
/s/ Pamela Cordova
|
Management Board Member | January 7, 2011 | ||
Pamela Cordova |
||||
/s/ Randy Bell
|
Management Board Member | January 7, 2011 | ||
Randy Bell |
||||
/s/ Kenny Blazer
|
Management Board Member | January 7, 2011 | ||
Kenny Blazer |
||||
/s/ Pete Kazhe
|
Management Board Member | January 7, 2011 | ||
Pete Kazhe |
||||
/s/ Oliver Enjady
|
Management Board Member | January 7, 2011 | ||
Oliver Enjady |
||||
/s/ Hazel Botella-Spottedbird
|
Management Board Member | January 7, 2011 | ||
Hazel Botella-Spottedbird |
45
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INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
UNINCORPORATED BUSINESS ENTERPRISES OF THE MESCALERO APACHE TRIBE
UNINCORPORATED BUSINESS ENTERPRISES OF THE MESCALERO APACHE TRIBE
INDEX TO CONSOLIDATED FINANCIAL STATEMENTS
Page | ||||
F-1 | ||||
Audited Financial Statements: |
||||
F-2 | ||||
F-3 | ||||
F-4 | ||||
F-5 | ||||
F-7 |
46
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Report of Independent Registered Public Accounting Firm
Management Board
Inn of the Mountain Gods Resort and Casino and subsidiaries
Mescalero, New Mexico
Inn of the Mountain Gods Resort and Casino and subsidiaries
Mescalero, New Mexico
We have audited the accompanying consolidated balance sheets of Inn of the Mountain Gods Resort and
Casino and subsidiaries (the Company), unincorporated enterprises of the Mescalero Apache Tribe,
as of September 30, 2010 and 2009, and the related statements of operations, changes in deficit,
and cash flows for the fiscal year ended September 30, 2010, the five months ended September 30,
2009 and the fiscal years ended April 30, 2009 and 2008. These financial statements are the
responsibility of the Companys management. 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 audit 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 controls over financial
reporting as a basis for designing audit procedures that are appropriate in the circumstances, but
not for expressing an opinion on the effectiveness of the Companys internal control over financial
reporting. Accordingly, we express no such opinion. An audit also includes examining, on a test
basis, evidence supporting the amounts and disclosures in the financial statements, including
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 consolidated financial statements referred to above present fairly, in all
material respects, the financial position of Inn of the Mountain Gods Resort and Casino and
subsidiaries as of September 30, 2010 and 2009, and the results of its operations and its cash
flows for the fiscal year ended September 30, 2010, the five months ended September 30, 2009 and
the fiscal years ended April 30, 2009 and 2008, in conformity with accounting principles generally
accepted in the United States of America.
The accompanying consolidated financial statements have been prepared assuming that the Company
will continue as a going concern. As discussed in Note 1 to the financial statements, the Company
has suffered recurring losses, negative cash flows, has negative working capital, accumulated
deficits, and negative equity that raise substantial doubt about its ability to continue as a going
concern. Managements plans in regard to these matters are also described in Note 1. The
consolidated financial statements do not include any adjustments that might result from the outcome
of this uncertainty.
Inn of the Mountain Gods Resort and Casino and subsidiaries are unincorporated enterprises of the
Mescalero Apache Tribe and are not separate legal entities. These financial statements reflect the
financial position of the Inn of the Mountain Gods Resort and Casino and subsidiaries and the
results of their operation and their cash flows and do not purport to represent the financial
position and activity of the Mescalero Apache Tribe as a whole.
/s/ BDO USA, LLP
Las Vegas, Nevada
January 7, 2011
Las Vegas, Nevada
January 7, 2011
F-1
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INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
As of September 30, | ||||||||
2010 | 2009 | |||||||
Current assets: |
||||||||
Cash and cash equivalents |
$ | 19,078,894 | $ | 5,528,820 | ||||
Accounts receivable, net of allowance for doubtful accounts |
615,860 | 718,049 | ||||||
Inventories |
883,574 | 862,251 | ||||||
Prepaid expenses and other assets |
1,327,904 | 1,321,812 | ||||||
Total current assets |
21,906,232 | 8,430,932 | ||||||
Non-current assets: |
||||||||
Property, plant and equipment |
312,376,013 | 308,443,306 | ||||||
Accumulated depreciation |
(130,089,874 | ) | (119,376,921 | ) | ||||
Property, plant and equipment, net |
182,286,139 | 189,066,385 | ||||||
Other assets |
51,000 | 51,000 | ||||||
Deferred financing cost |
296,859 | 2,078,017 | ||||||
Total assets |
$ | 204,540,230 | $ | 199,626,334 | ||||
Liabilities and Deficit: |
||||||||
Current liabilities |
||||||||
Accounts payable |
$ | 2,113,414 | $ | 1,510,426 | ||||
Accrued expenses |
5,156,990 | 5,469,293 | ||||||
Accrued payroll and benefits |
1,792,820 | 1,900,338 | ||||||
Accrued interest |
51,845,000 | 22,386,667 | ||||||
Advance deposits |
497,883 | 413,046 | ||||||
Current portion of long-term debt |
200,008,912 | 202,924,922 | ||||||
Total current liabilities |
261,415,019 | 234,604,692 | ||||||
Non-current liabilities: |
||||||||
Long-term debt, net of current portion |
392,801 | 395,634 | ||||||
Total liabilities |
261,807,820 | 235,000,326 | ||||||
Deficit |
||||||||
Distributions |
(22,555,727 | ) | (5,389,062 | ) | ||||
Accumulated deficit |
(34,711,863 | ) | (29,984,930 | ) | ||||
Total deficit |
(57,267,590 | ) | (35,373,992 | ) | ||||
Total liabilities and deficit |
$ | 204,540,230 | $ | 199,626,334 | ||||
The accompanying notes are an integral part of these statements.
F-2
Table of Contents
INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF OPERATIONS
Fiscal year | ||||||||||||||||
ended | Five months ended | |||||||||||||||
September 30, | September 30, | Fiscal year ended April 30, | ||||||||||||||
2010 | 2009 | 2009 | 2008 | |||||||||||||
Revenues: |
||||||||||||||||
Gaming |
$ | 74,721,871 | $ | 35,124,768 | $ | 74,383,388 | $ | 77,536,827 | ||||||||
Hotel |
10,046,611 | 5,429,623 | 11,421,683 | 12,157,187 | ||||||||||||
Food and beverage |
12,978,055 | 5,721,231 | 12,582,440 | 14,265,112 | ||||||||||||
Recreation and other |
18,390,098 | 5,455,183 | 16,812,405 | 20,216,187 | ||||||||||||
Gross revenue |
116,136,635 | 51,730,805 | 115,199,916 | 124,175,313 | ||||||||||||
Less-promotional allowances |
948,963 | 394,501 | 881,666 | 2,105,256 | ||||||||||||
Net revenue |
115,187,672 | 51,336,304 | 114,318,250 | 122,070,057 | ||||||||||||
Operating Expenses: |
||||||||||||||||
Gaming |
23,919,379 | 10,819,613 | 26,249,451 | 26,646,532 | ||||||||||||
Hotel expenses |
3,605,321 | 1,553,100 | 4,757,635 | 4,434,224 | ||||||||||||
Food and beverage |
13,275,308 | 5,298,491 | 13,546,888 | 15,348,515 | ||||||||||||
Recreation and other |
11,028,692 | 4,221,347 | 11,880,845 | 14,908,202 | ||||||||||||
Marketing |
8,512,629 | 3,892,640 | 8,343,783 | 10,004,622 | ||||||||||||
General and administrative |
15,531,274 | 6,194,328 | 16,886,659 | 14,593,965 | ||||||||||||
Management fees |
2,005,132 | | | | ||||||||||||
Refinance charges |
1,420,212 | | | | ||||||||||||
Depreciation |
11,399,788 | 5,072,973 | 12,162,079 | 16,061,087 | ||||||||||||
Insurance reimbursement |
(2,237,475 | ) | (45,000 | ) | (5,406,380 | ) | | |||||||||
Storm costs |
221,346 | 20,558 | 376,700 | | ||||||||||||
(Gain) loss on disposal of assets |
(25,280 | ) | (15,000 | ) | 293,896 | 63,847 | ||||||||||
Total operating expenses |
88,656,326 | 37,013,050 | 89,091,556 | 102,060,994 | ||||||||||||
Operating Income |
26,531,346 | 14,323,254 | 25,226,694 | 20,009,063 | ||||||||||||
Other income: |
||||||||||||||||
Interest expense |
(31,371,890 | ) | (12,070,420 | ) | (26,156,329 | ) | (26,419,780 | ) | ||||||||
Other income |
113,611 | 25,364 | 72,731 | 236,917 | ||||||||||||
Total other expense |
(31,258,279 | ) | (12,045,056 | ) | (26,083,598 | ) | (26,182,863 | ) | ||||||||
Net (loss) income |
$ | (4,726,933 | ) | $ | 2,278,198 | $ | (856,904 | ) | $ | (6,173,800 | ) | |||||
The accompanying notes are an integral part of these statements.
F-3
Table of Contents
INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CHANGES IN DEFICIT
Fiscal Year Ended
September 30, 2010, Five Months Ended September 30, 2009, and Fiscal Years Ended
April 30, 2009 and 2008
Contributed | Total | |||||||||||
Capital (Distributions) | Deficit | Equity (Deficit) | ||||||||||
Balances, April 30, 2007 |
$ | 29,652,939 | $ | (25,232,424 | ) | $ | 4,420,515 | |||||
Distributions to Mescalero Apache Tribe: |
||||||||||||
Capital Distribution/Operating Transfers |
(8,004,000 | ) | | (8,004,000 | ) | |||||||
Net loss |
| (6,173,800 | ) | (6,173,800 | ) | |||||||
Balances, April 30, 2008 |
21,648,939 | (31,406,224 | ) | (9,757,285 | ) | |||||||
Distributions to Mescalero Apache Tribe: |
||||||||||||
Capital Distribution/Operating Transfers |
(8,004,000 | ) | | (8,004,000 | ) | |||||||
Net loss |
| (856,904 | ) | (856,904 | ) | |||||||
Balances, April 30, 2009 |
13,644,939 | (32,263,128 | ) | (18,618,189 | ) | |||||||
Distributions to Mescalero Apache Tribe: |
||||||||||||
Capital Distribution/Operating Transfers |
(19,034,001 | ) | | (19,034,001 | ) | |||||||
Net income |
| 2,278,198 | 2,278,198 | |||||||||
Balances, September 30, 2009 |
(5,389,062 | ) | (29,984,930 | ) | (35,373,992 | ) | ||||||
Distributions to Mescalero Apache Tribe: |
||||||||||||
Capital Distribution/Operating Transfers |
(17,166,665 | ) | | (17,166,665 | ) | |||||||
Net loss |
| (4,726,933 | ) | (4,726,933 | ) | |||||||
Balances, September 30, 2010 |
$ | (22,555,727 | ) | $ | (34,711,863 | ) | $ | (57,267,590 | ) | |||
F-4
Table of Contents
INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
Fiscal year ended | Five months ended | |||||||||||||||
September 30, | September 30, | Fiscal year ended April 30, | ||||||||||||||
2010 | 2009 | 2009 | 2008 | |||||||||||||
Cash flows from operating activities: |
||||||||||||||||
Net income (loss) |
$ | (4,726,933 | ) | $ | 2,278,198 | $ | (856,904 | ) | $ | (6,173,800 | ) | |||||
Adjustments to reconcile net income (loss) to net cash
provided by operating activities: |
||||||||||||||||
Depreciation and amortization |
13,180,946 | 5,815,121 | 13,761,455 | 17,664,576 | ||||||||||||
Insurance reimbursement (paid directly to contractor) |
| | (4,467,324 | ) | | |||||||||||
(Gain) loss on disposal of assets |
(25,280 | ) | (15,000 | ) | 293,896 | 63,857 | ||||||||||
Changes in assets and liabilities: |
||||||||||||||||
Accounts receivable |
102,189 | (337,113 | ) | 186,300 | (27,868 | ) | ||||||||||
Inventories |
(21,323 | ) | (72,687 | ) | 250,522 | (273,428 | ) | |||||||||
Prepaid expenses |
(6,092 | ) | (762,444 | ) | 406,386 | (261,276 | ) | |||||||||
Other long-term assets |
| | (111,000 | ) | 62,500 | |||||||||||
Accounts payable |
602,988 | (612,277 | ) | 29,050 | 631,740 | |||||||||||
Accrued expenses, payroll and benefits |
(419,821 | ) | 2,247,252 | (754,485 | ) | (308,072 | ) | |||||||||
Accrued interest payable |
29,458,333 | 11,186,667 | | | ||||||||||||
Deposits and advanced payments |
84,837 | 65,051 | (9,653 | ) | (81,011 | ) | ||||||||||
Net cash provided by operating activities |
38,229,844 | 19,792,768 | 8,728,243 | 11,297,218 | ||||||||||||
Cash flows from investing activities: |
||||||||||||||||
Purchase of property, plant and equipment |
(4,594,262 | ) | (1,185,361 | ) | (4,536,436 | ) | (1,298,349 | ) | ||||||||
Net cash used in investing activities |
(4,594,262 | ) | (1,185,361 | ) | (4,536,436 | ) | (1,298,349 | ) | ||||||||
Cash flows from financing activities: |
||||||||||||||||
Principal payments on long-term debt |
(2,918,843 | ) | (1,601,321 | ) | (3,606,165 | ) | (3,949,406 | ) | ||||||||
Distributions to Mescalero Apache Tribe |
(17,166,665 | ) | (19,034,001 | ) | (8,004,000 | ) | (8,004,000 | ) | ||||||||
Net cash used in financing activities |
(20,085,508 | ) | (20,635,322 | ) | (11,610,165 | ) | (11,953,406 | ) | ||||||||
Net increase (decrease) in cash and cash equivalents |
13,550,074 | (2,027,915 | ) | (7,418,358 | ) | (1,954,537 | ) | |||||||||
Cash and cash equivalents, beginning of year |
5,528,820 | 7,556,735 | 14,975,093 | 16,929,630 | ||||||||||||
Cash and cash equivalents, end of year |
$ | 19,078,894 | $ | 5,528,820 | $ | 7,556,735 | $ | 14,975,093 | ||||||||
Supplemental cash flow information: |
||||||||||||||||
Cash paid for interest |
$ | 95,906 | $ | 141,605 | $ | 24,531,805 | $ | 24,794,536 | ||||||||
Non-cash investing and financing activities: |
||||||||||||||||
Property, plant and equipment acquired through capital lease |
$ | | $ | | $ | 354,624 | $ | 289,420 | ||||||||
The accompanying notes are an integral part of these statements.
F-5
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INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Fiscal year ended September 30, 2010, Five months ended September 30, 2009 and Fiscal years ended April
30, 2009 and 2008
30, 2009 and 2008
NOTE 1 BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Change in Fiscal Year
On September 3, 2009, the Management Board (the Board) of IMG Resort and Casino resolved by
unanimous consent to change the Companys fiscal year, formerly ending April 30, to a fiscal year
ending September 30, effective September 30, 2009. This change in fiscal year end makes the
Companys year end coincide with the Mescalero Apache Tribes fiscal year end.
Reporting Entity and Operations
The Inn of the Mountain Gods Resort and Casino and subsidiaries (IMG Resort and Casino or the
Company), an unincorporated enterprise of the Mescalero Apache Tribe (the Tribe), was
established April 30, 2003 by the Tribe and manages and owns all resort, hotel and gaming
enterprises of the Tribe including the Inn of the Mountain Gods Resort and Casino (the Resort), a
gaming, hotel and resort complex opened on March 15, 2005, and its wholly-owned subsidiaries, each
of which is an unincorporated enterprise of the Tribe: Casino Apache (the Casino Apache
Enterprise), which owned and operated the Tribes former casino, closed in February 2005; Casino
Apache Travel Center (the Travel Center), which owns the Tribes second casino facility opened in
May 2003 (the Travel Center Casino); Ski Apache, which owns the Tribes ski resort, Ski Apache
Resort (Ski Apache); and Inn of the Mountain Gods (the Inn), which owned the Tribes former
resort hotel, Inn of the Mountain Gods (the Inn Hotel). The Tribe is the sole owner of IMG Resort
and Casino. IMG Resort and Casino is a separate legal entity from the Tribe and is managed by the
Board.
The Resort, which opened for commercial business on March 15, 2005, is located on tribal land in
Mescalero, New Mexico and consists of the Inn of the Mountain Gods Casino offering Class III gaming
as defined by the Indian Gaming Regulatory Act (IGRA) and a 273 luxury room resort hotel. The
Travel Center Casino, which opened for business on May 22, 2003, also offers Class III gaming as
defined by IGRA, on tribal land in Mescalero. Ski Apache operates the Ski Apache Resort, a ski
resort located within the Tribes reservation in Mescalero and on the U.S. Forest Service land.
Principles of Consolidation
The accompanying consolidated financial statements include the accounts of the IMG Resort and
Casino and its wholly-owned subsidiaries. All significant intercompany accounts have been
eliminated in consolidation. These consolidated financial statements present only the consolidated
financial position, results of operations and cash flows of the IMG Resort and Casino and
subsidiaries and are not intended to present fairly the financial position of the Tribe and the
results of its operations and cash flows.
Going Concern
The accompanying consolidated financial statements have been prepared assuming that the Company
will continue as a going concern, which contemplates the realization of assets and the liquidation
of liabilities in the normal course of business. The Company has incurred significant losses and
did not generate sufficient cash to make the interest payments on its 12% Senior Notes due 2010
(the Senior Notes) since November 15, 2008. The Senior Notes matured on November 15, 2010. The
company did not pay the principal due at maturity. This non-payment of interest and principal
constitutes an event of default under the Indenture governing the Senior Notes and the trustee or
holders of at least 25% of the aggregate principal amount of the Senior Notes could declare all
such notes immediately due and payable. The amount due in principal and interest is $251.8
million.
F-6
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INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Fiscal year ended September 30, 2010, Five months ended September 30, 2009 and Fiscal years ended April
30, 2009 and 2008
30, 2009 and 2008
As of
September 30, 2010, the Company had negative working capital of approximately $239.5 million
and a total deficit of approximately $57.3 million.
The event of default, along with the Companys history of recurring losses, negative working
capital and limited access to capital, has raised substantial doubt regarding the Companys ability
to continue as a going concern. The accompanying consolidated financial statements do not include
any adjustments that might result from the outcome of this uncertainty.
On November 24, 2010, the Company commenced a private offer to exchange its outstanding Senior
Notes for (1) new 8.750% Senior Notes due 2020, (2) new Senior PIK Notes due 2020 and (3) a pro
rata amount of $18 million in cash. The exchange offer was scheduled to expire at 5:00 p.m., New York City time, on January 7,
2011. The exchange offer has been extended to expire at 5:00 p.m., New York City time, on January
21, 2011, unless extended further or terminated. The purpose of the extension is to allow
sufficient time for the receipt of regulatory approvals necessary for the exchange offer.
Historically, IMG Resort and Casino has not generated sufficient cash flow from operations to
satisfy its capital requirements and relied upon debt financing arrangements to satisfy such
requirements. The current cash flows and capital resources may force IMG Resort and Casino to
reduce or delay activities and capital expenditures if IMG Resort and Casino is unable to refinance
its debt. In the event that IMG Resort and Casino is unable to refinance or restructure its debt,
IMG Resort and Casino will be left without sufficient liquidity and IMG Resort and Casino will not
be able to meet its debt service requirements and repayment obligations.
Reclassifications
Certain reclassifications have been made in the prior years financial statements to conform to the
current presentation.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted
in the United States of America requires management to make estimates and assumptions that affect
the recorded amount of assets and liabilities at the date of the financial statements and the
revenues and expenses during the period. Significant estimates included in the accompanying
financial statements relate to the liability associated with the unredeemed Apache Spirit Club
points, the estimated lives of depreciable assets, the determination of bad debt, inventory
reserves, asset impairment and the capitalization of construction bond interest costs. Actual
results could differ from those estimates.
Cash and Cash Equivalents
Cash includes cash on hand for change drawers and in the vault for daily casino activities and cash
on deposit with financial institutions in demand accounts, savings accounts and short-term
certificates of deposit. For purposes of the statement of cash flows all cash accounts that are not
subject to withdrawal restrictions or penalties and all highly liquid debt instruments purchased
with an original maturity of nine months or less are considered to be cash equivalents.
Accounts Receivable
Accounts receivable consists primarily of hotel and other non-gaming receivables. IMG Resort and
Casino maintains an allowance for doubtful accounts, which is based on managements estimate of the
amount expected to be uncollectible considering historical experience and the information
management obtains regarding the creditworthiness of the non-gaming customer. The collectability of
these receivables could be affected by future business or economic trends.
F-7
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INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Fiscal year ended September 30, 2010, Five months ended September 30, 2009 and Fiscal years ended April
30, 2009 and 2008
30, 2009 and 2008
Inventories
Inventories consist of food and beverage items, fuel, retail merchandise in the golf and pro shop,
ski shop, gift shops and other miscellaneous items, parts and supplies. All inventories are stated
at the lower of cost or market using the first-in, first-out method.
Property, Plant and Equipment
Property, plant and equipment are presented at historical cost, less accumulated depreciation and
amortization. Expenditures for additions, improvements and replacements are capitalized while
maintenance and repairs, which do not improve or extend the service lives of the respective assets,
are expensed as incurred. Interest incurred during the construction period is capitalized at the
borrowing rate for the related loan and is amortized over the life of the related asset. Equipment
sold, or otherwise disposed of, is removed from the accounts with gains or losses on disposal
recorded in the statements of income.
Depreciation and amortization is provided over the estimated service lives of the respective
assets, using the straight-line method based on the following useful lives:
Non gaming equipment, furniture and other |
3 15 years | |||
Gaming equipment |
5 7 years | |||
Leasehold and land improvements, lake and golf course |
5 30 years | |||
Buildings, lifts and snowmaking equipment |
10 39 years |
Deferred Financing Costs
Debt issuance costs incurred in connection with the issuance of the Senior Notes were capitalized
and are being amortized to interest expense using the straight-line method over the stated maturity
of the debt, which approximates the effective interest method. Unamortized deferred financing costs
were approximately $0.3 million and $2.1 million as of September 30, 2010 and September 30, 2009,
respectively
Impairment of Long Lived Assets
Management reviews long-lived assets for impairment whenever events or changes in circumstances
indicate the carrying amount of such assets may not be recoverable. In August 2001, the Financial
Accounting Standards Board (FASB) issued Statement of Financial Accounting Standards (SFAS)
FASB ASC 360-10, Property, Plant and Equipment, (prior authoritative literature: SFAS No. 144,
Accounting for the Impairment or Disposal of Long-Lived Assets) (FASB ASC 360-10 (SFAS No. 144))
which established the approach to be used in the determination of impairment. Under the provisions
of FASB ASC 360-10 (SFAS No. 144), a long-lived asset to be abandoned is disposed of when it ceases
to be used. If an entity commits to a plan to abandon a long-lived asset before the end of its
previously estimated useful life, depreciation estimates shall be revised to reflect the use of the
asset over its shortened useful life.
For the fiscal year ended September 30, 2010, IMG Resort and Casino has incurred approximately
$221,000, associated with the storm recovery and for the five months ended September 30, 2009,
incurred approximately $21,000. For the fiscal year ended April 30, 2009, IMG Resort and Casino
incurred approximately $377,000 and there was no cost incurred for the fiscal year ended April 30,
2008.
F-8
Table of Contents
INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Fiscal year ended September 30, 2010, Five months ended September 30, 2009 and Fiscal years ended April
30, 2009 and 2008
30, 2009 and 2008
Fair Value of Financial Instruments
Fair Value Disclosure. We adopted the new accounting guidance under generally
accepted accounting principles relating to fair value measurements and disclosures effective
October 1, 2009. The new guidance clarifies the definition of fair value, prescribes methods for
measuring fair value, establishes a fair value hierarchy based on the inputs used to measure fair
value and expands disclosures about the use of fair value measurements.
The valuation techniques utilized are based upon observable and unobservable inputs.
Observable inputs reflect market data obtained from independent sources, while unobservable inputs
reflect internal market assumptions. These two types of inputs create the following fair value
hierarchy:
| Level 1 Quoted prices for identical instruments in active markets. |
| Level 2 Quoted prices for similar instruments in active markets; quoted prices for identical or similar instruments in markets that are not active; and model-derived valuations whose inputs are observable or whose significant value drivers are observable. |
| Level 3 Significant inputs to the valuation model are unobservable. |
Due to their short-term nature, we estimate the fair value of cash and cash equivalents,
accounts receivable, accounts payable and accrued liabilities by approximating their carrying
values. We estimate, based on level 2 data, the fair value of our fixed-rate long-term debt to be
approximately $74.0 million on the trade date closest to September 30, 2010, which was
September 24, 2010. We estimate, based on level 2 data, the fair value of our fixed-rate long-term
debt to be approximately $28.0 million on the trade date closest to September 30, 2009, which
was September 15, 2009.
Contributed Capital
Contributed capital represents contributions from the Tribe and consists of (i) cash to fund
certain construction and development of the IMG Resort and Casino, (ii) forgiveness of debt from
the Inn to the Tribe and (iii) allocated costs related to the Mescalero Apache Tribe Defined
Benefit Plan (see Note 7).
Revenues
In accordance with gaming industry practice, we recognize gaming revenues as the net win from
gaming activities, which is the difference between gaming wins and losses. Gaming revenues are net
of accruals for anticipated payouts of progressive slot jackpots and all other fees and table
games. These anticipated jackpot payments are reflected as current liabilities on our balance
sheets. The total accrual for jackpots and progressives was approximately $121,000 and $150,000 at
September 30, 2010 and 2009, respectively. Net slot win represents all amounts played in the slot
machines reduced by the winnings paid out and other fees. Table games net win represents the
difference between table game wins and losses. The table games historical win percentage is
reasonably predictable over time, but may vary considerably during shorter periods. Revenues from
food, beverage, hotel, recreation, retail and other are recognized at the time the related service
or sale is completed. Player reward redemptions for food and beverage, hotel rooms and other items
are included in gross revenue at full retail value.
Promotional Allowances
IMG Resort and Casino periodically rewards rooms and other promotions, including Apache Spirit Club
points and gift certificates, to its customers. The Casinos Apache Spirit Club allows customers to
earn points based on the volume of their gaming activity. These points are redeemable for certain
promotion dollars, complimentary services or merchandise. Points are accrued based upon their
historical redemption rate multiplied by the cash value or the cost of providing the applicable
complimentary services. The retail value of these player rebates is recognized by IMG Resort and
Casino as a reduction from gross revenue.
The total vouchers recognized by IMG Resort and Casino were approximately $949,000 for the fiscal
year ended September 30, 2010 and approximately $395,000 for the five months ended September 30,
2009. The total vouchers recognized by IMG Resort and Casino were $882,000 and $2,105,000 for the
fiscal years ended April 30, 2009 and 2008, respectively. The Apache Spirit Club liability is
included in accrued expenses and was approximately $743,000 at September 30, 2010 and $885,000 at
September 30, 2009.
F-9
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INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Fiscal year ended September 30, 2010, Five months ended September 30, 2009 and Fiscal years ended April
30, 2009 and 2008
30, 2009 and 2008
Emerging Issues Task Force (EITF) FASB ASC 605-50, Revenue Recognition, Customer payments and
Incentives (prior authoritative literature: FASB EITF Issue No. 00-14, Accounting for Certain Sales
Incentives (FASB ASC 605-50 (FAS Issue No. 00-14)), requires that discounts which result in a
reduction in or refund of the selling price of a product or service in a single exchange
transaction be recorded as a reduction of revenues. The Company adopted FASB ASC 605-50 (FAS Issue
No. 00-14) on April 30, 2001. The Companys accounting policy related to free or discounted food
and beverage and other services already complies with FASB ASC 605-50 (FAS Issue No. 00-14), and
those free or discounted services are generally deducted from gross revenues as promotional
allowances. In January 2001, the EITF reached a consensus on certain issues related to Issue No.
00-22, Accounting for Points and Certain Other Time-Based or Volume-Based Sales Incentive Offers,
and Offers for Reproduces, or Services to be delivered in the future. Effective January 1, 2001,
the Company through its wholly-owned subsidiaries adopted EITF 00-22, which requires that cash or
equivalent amounts provided or returned to customers as part of a transaction not be shown as an
expense, but instead as an offset to the related revenue.
The estimated cost of providing such complimentary allowances, as they relate to the all
operations, was included in casino expenses as follows:
For the fiscal year | For the five months | For the fiscal year | For the fiscal | |||||||||||||
ended | ended | ended | year ended | |||||||||||||
September 30, 2010 | September 30, 2009 | April 30, 2009 | April 30, 2008 | |||||||||||||
Hotel |
$ | 35,728 | $ | 17,702 | $ | 144,089 | $ | 1,597,405 | ||||||||
Food and beverage |
865,009 | 285,061 | 658,068 | 1,127,057 | ||||||||||||
Total |
$ | 900,737 | $ | 302,763 | $ | 802,157 | $ | 2,724,462 | ||||||||
Marketing
IMG Resort and Casinos marketing costs to outside parties are expensed as incurred. For the fiscal
year ended September 30, 2010 these costs were $8.5 million, for the five months ended September
30, 2009 these costs were $3.9 million and for the fiscal years ended April 30, 2009 and 2008 these
costs were $8.3 million and $10.0 million, respectively.
Tribal Taxes
IMG Resort and Casino is subject to Mescalero Apache Tribal taxes which employs an alternative
minimum tax system. Other than a portion of the operations at Ski Apache, IMG Resort and Casinos
operations are not subject to New Mexico State Gross Receipts Tax. A Tribal tax charge of 10.75% of
room revenue, 6.75% of food and beverage revenue, and 6.5% of other revenue is charged at non-Ski
Apache outlets. Under the tribes alternative minimum tax system, IMG Resort and Casino is assessed
the greater of a fixed rate of $200,000 or the amount collected from sales taxes on a per month
basis. Since November 2009, taxes have been collected and recorded as a liability on IMG Resort and
Casinos balance sheet and are not included in net revenue. Excess tax amounts due under the
alternative minimum tax system are expensed in the month they are due. In prior periods the taxes
collected were included in net revenue and tax payments were expensed. Reclassifications have been
made to the prior years presented to be consistent with the current fiscal year financial presentation.
The tax payment is made at the beginning of the month in which the taxes are collected. As of
September 30, 2010 and 2009, the Company had alternative minimum
taxes payable of $196,877 and $88,122, respectively in
connection with the taxes collected and not paid.
F-10
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INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Fiscal year ended September 30, 2010, Five months ended September 30, 2009 and Fiscal years ended April
30, 2009 and 2008
30, 2009 and 2008
The following chart highlights IMG Resort and Casinos tribal tax activity for the fiscal year
ended September 30, 2010, five months ended September 30, 2009, and fiscal years ended April 30,
2009 and 2008.
For the fiscal year | For the five months | For the fiscal year | For the fiscal | |||||||||||||
ended | ended | ended | year ended | |||||||||||||
September 30, 2010 | September 30, 2009 | April 30, 2009 | April 30, 2008 | |||||||||||||
Alternative minimum tax paid/payable |
$ | 2,508,755 | $ | 1,088,122 | $ | 2,400,000 | $ | 2,400,000 | ||||||||
Total taxes collected |
(2,010,170 | ) | (1,088,122 | ) | (2,189,730 | ) | (2,366,617 | ) | ||||||||
Alternative minimum tax expense |
$ | 498,585 | $ | | $ | 210,270 | $ | 33,383 | ||||||||
Classification of Departmental Costs
Gaming direct costs are comprised of all costs of the Resorts gaming operations, including labor
costs for casino-based supply costs, certain (including costs in operating our players clubs). and
other direct operating costs of the casinos. Food and beverage direct costs are comprised of all
costs of the Resorts food and beverage operations, including labor costs for personnel employed by
the Resorts restaurants and food and beverage, supply costs for all food and beverages served in
the casinos or sold in the Resorts restaurants and other food outlets and other expenses including
other direct operating expenses related to these activities. General and administrative direct
costs are comprised of administrative expenses at our three months, including the salaries of
corporate officers, accounting, finance, legal and other professional expense and occupancy costs
and other indirect costs not included in the direct costs of our operating departments.
Income Taxes
As unincorporated enterprises of the Tribe, IMG Resort and Casino and its subsidiaries are exempt
from federal and state income taxes.
New Accounting Pronouncements
The adjustment to reflect the difference between the fair value and the current carrying amount of
the assets and liabilities for which a company elects fair-value measurement is reported as a
cumulative-effect adjustment to the opening balance of retained earnings upon adoption. Companies
that adopt FASB ASC 825-10 (SFAS 159) early must also adopt all of FASB ASC 825-10s (SFAS 157)
requirements at the early adoption date. The adoption of this standard did not have an effect on
IMG Resort and Casinos financial statements.
The FASB issued FASB ASC 105-10, The FASB Accounting Standards Codification and the Hierarchy of
Generally Accepted Accounting Principles (prior authoritative literature: FASB SFAS No. 168, The
FASB Accounting Standards Codification and the Hierarchy of Generally Accepted Accounting
Principles, issued June 2009) (FASB ASC 106-10-65 (SFAS No. 168)), which replaced SFAS No. 162,
and established the sources of authoritative U.S. generally accepted accounting principles (GAAP)
recognized by the FASB to be applied by nongovernmental entities. On the effective date for
financial statements issued for interim and annual periods ending after September 15, 2009, the
Codification superseded all then-existing nonSEC accounting and reporting standards. FASB ASC
106-10 (SFAS No. 168) is effective for fiscal years and interim periods ending after September 15,
2009. The adoption of FASB ASC 105-10 (SFAS 168) did not have a material impact on our consolidated
financial statements.
F-11
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INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Fiscal year ended September 30, 2010, Five months ended September 30, 2009 and Fiscal years ended April
30, 2009 and 2008
30, 2009 and 2008
In April 2010, the Financial Accounting Standards Board (FASB) issued Accounting Standards Update
(ASU) No. 2010-16, Entertainment-Casinos (Topic 924): Accruals for Casino Jackpot Liabilities, a
consensus of the FASB Emerging Issues Task Force. This guidance clarifies that an entity should not
accrue jackpot liabilities (or portions thereof) before a jackpot is won if the entity can avoid
paying that jackpot. Jackpots should be accrued and charged to revenue when an entity has the
obligation to pay the jackpot. The guidance applies to both base and progressive jackpots. The
guidance is effective for reporting periods beginning after December 15, 2010. Accordingly, we will
adopt the new guidance in the first quarter of 2011. The adoption of this new guidance is not
expected to have a material impact on our condensed consolidated financial statements.
NOTE 2 ALLOWANCE FOR DOUBTFUL ACCOUNTS
IMG Resort and Casino maintains an allowance for doubtful accounts for estimated losses resulting
from the inability of customers to make required payments, which results in bad debt expense. IMG
Resort and Casino determines the adequacy of this allowance by periodically evaluating individual
non-gaming customer receivables and considering its non-gaming customers financial condition,
credit history and current economic conditions. If the financial condition of non-gaming customers
were to deteriorate, resulting in an impairment of their ability to make payments, IMG Resort and
Casino may increase the allowance.
The following chart highlights IMG Resort and Casinos allowance for doubtful accounts for the
fiscal year ended September 30, 2010, the five months ended September 30, 2009, and the fiscal
years ended April 30, 2009 and 2008.
For the fiscal year | For the five months | For the fiscal year | For the fiscal | |||||||||||||
ended | ended | ended | year ended | |||||||||||||
September 30, 2010 | September 30, 2009 | April 30, 2009 | April 30, 2008 | |||||||||||||
Allowance, beginning of year |
$ | 44,538 | $ | 37,104 | $ | 17,522 | 43,282 | |||||||||
Bad debt expense |
33,627 | 7,689 | 19,582 | (23,252 | ) | |||||||||||
Write-offs |
(1,170 | ) | (255 | ) | | (2,508 | ) | |||||||||
Allowance, end of year |
$ | 76,995 | $ | 44,538 | $ | 37,104 | $ | 17,522 | ||||||||
NOTE 3 INVENTORIES
Inventories consist of the following at September 30, 2010 and 2009:
September 30, 2010 | September 30, 2009 | |||||||
Food and beverage |
$ | 235,617 | $ | 237,361 | ||||
Golf and pro shop |
68,763 | 65,853 | ||||||
Gift shops, fuel and other |
579,194 | 559,037 | ||||||
Total inventories |
$ | 883,574 | $ | 862,251 | ||||
F-12
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INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Fiscal year ended September 30, 2010, Five months ended September 30, 2009 and Fiscal years ended April
30, 2009 and 2008
30, 2009 and 2008
NOTE 4 PROPERTY, PLANT AND EQUIPMENT, NET
Property, plant and equipment is summarized as follows at September 30, 2010 and 2009:
September 30, 2010 | September 30, 2009 | |||||||
Land |
$ | 1,000,473 | $ | 1,000,473 | ||||
Buildings |
211,162,077 | 212,103,850 | ||||||
Lifts and Snowmaking equipment |
10,993,143 | 6,394,905 | ||||||
Non-gaming equipment, furniture and other |
53,105,375 | 52,482,422 | ||||||
Gaming equipment |
23,701,858 | 22,470,190 | ||||||
Leasehold and land improvements, lake and golf course |
11,075,633 | 11,075,633 | ||||||
Subtotal |
311,038,559 | 305,527,473 | ||||||
Less accumulated depreciation and amortization |
(130,089,874 | ) | (119,376,921 | ) | ||||
Property, plant and equipment, net |
180,948,685 | 186,150,552 | ||||||
Construction in progress |
1,337,454 | 2,915,833 | ||||||
Property, plant and equipment, net |
$ | 182,268,139 | $ | 189,066,385 | ||||
NOTE 5 LONG-TERM DEBT
On November 3, 2003, IMG Resort and Casino issued $200.0 million of its Senior Notes. The Senior
Notes bear interest at 12% per year, payable on May 15 and November 15 of each year, beginning on
May 15, 2004. The Senior Notes matured on November 15, 2010. The Senior Notes may be redeemed at
any time on or after November 15, 2007 at fixed redemption prices plus accrued and unpaid interest,
if any. If a change in control occurs, holders of the Senior Notes will have the right to require
the repurchase of their Senior Notes at a price equal to 101% of the principal amount thereof, plus
accrued and unpaid interest, if any. The Senior Notes are guaranteed by all of IMG Resort and
Casinos subsidiaries.
The Indenture governing the Senior Notes (the Indenture) contains covenants that limit, among
other things, IMG Resort and Casino and the guarantors ability to pay dividends and make
distributions to the Tribe; make investments; incur additional debt; create liens; sell equity
interests in subsidiaries; enter into transactions with affiliates; enter into sale and leaseback
transactions; engage in other businesses; transfer or sell assets; and merge or consolidate with or
into other entities.
The Company has not made the scheduled $12.0 million interest payments on the Companys Senior
Notes since November 15, 2008. Under the terms of the Indenture, the Company had a 30 day grace
period with respect to each interest payment but did not make these payments. Failure to make the
May 15, 2009, November 15, 2009 and May 15, 2010 interest payments on or before June 15, 2009,
December 15, 2009 and June 15, 2010, respectively, constituted separate events of default under the
Indenture. Upon the occurrence of an event of default, the trustee or holders of at least 25% of
the outstanding principal amount of the Senior Notes could declare all of the Senior Notes
immediately due and payable.
Pursuant to the Indenture, the Company is obligated to pay penalty interest on overdue principal at
the rate equal to 1% per annum in excess of the applicable interest rate on the Senior Notes (12%),
and to pay interest on overdue installments of interest payable on the Senior Notes at the same
rate. As of September 30, 2010, total accrued interest was $51.8 million, of which $6.9 million was
penalty interest accrued.
F-13
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INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Fiscal year ended September 30, 2010, Five months ended September 30, 2009 and Fiscal years ended April
30, 2009 and 2008
30, 2009 and 2008
The Tribe has engaged financial advisors, and negotiations between the Mescalero Apache Tribal
Council and holders of the Senior Notes continue. If the Senior Notes are declared immediately due
and payable, it would constitute a default under the terms of the Companys furniture and equipment
loan and the lenders thereunder could declare the outstanding loan to be immediately due and
payable. Due to the events of default, the Senior Notes have been classified as current in the
accompanying consolidated balance sheet.
On November 24, 2010, the Company announced that it has commenced a private offer to exchange its outstanding
12% Senior Notes due 2010 for (1) new 8.750% Senior Notes due 2020, (2) new Senior PIK Notes due
2020 and (3) a pro rata amount of $18 million in cash.
On June 15, 2004, IMG Resort and Casino entered into a $15.0 million fixed credit facility with an
equipment finance company. The fixed credit facility is fully amortizable over five years and bears
fixed interest rates ranging from 7.55% to 8.18%. Proceeds from the loan were used to fund
furniture, fixtures and equipment for the Resort. As of September 30, 2010 and 2009, $8,912 and
$2.5 million, respectively, remained outstanding on this facility.
Long-term debt at September 30, 2010 and 2010 is summarized as follows:
September 30, 2010 | September 30, 2009 | |||||||
Senior Notes,
bearing interest at a
fixed rate of 12%,
maturing in 2010 |
$ | 200,000,000 | $ | 200,000,000 | ||||
Bureau of Indian Affairs
(BIA), unsecured notes
payable with payments of
$27,100 per month,
including interest at
8.5%, maturing in 2011 |
271,850 | 560,554 | ||||||
Capital Equipment Loans
with Key Equipment, Five
(5) year term, 7.65%
interest |
8,912 | 2,519,922 | ||||||
Xerox (3) year term |
120,951 | 240,080 | ||||||
Total |
200,401,713 | 203,320,556 | ||||||
Less current portion |
(200,008,912 | ) | (202,924,922 | ) | ||||
Long-term portion |
$ | 392,801 | $ | 395,634 | ||||
The maturities of long-term debt as of September 30, 2010 are as follows (in thousands): | ||||||||
2011 |
$ | 200,008,912 | ||||||
2012 |
392,801 | |||||||
$ | 200,401,713 | |||||||
NOTE 6 GAMING REVENUE SHARING AND REGULATORY FEES
The Tribe regulates IMG Resort and Casinos gaming activities through the Mescalero Apache Tribe
Gaming Regulatory Commission, an agency of the Tribe (the Commission). The Commission reports
directly to the Tribal Council of the Tribe. A regulatory fee is paid to the Tribe as reimbursement
for the cost of regulating the gaming activities. IMG Resort and Casino also pays a federal
regulatory fee. All tribal and federal regulatory fees due and payable have been properly accrued.
On June 1, 2004 the Tribe and the State of New Mexico (the State) entered into a Tribal-State
Compact (the Compact") to govern gaming on the Mescalero Apache Reservation. The terms of the
Compact subject the Casino to various regulatory fees and revenues sharing payable to the State.
F-14
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INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Fiscal
year ended September 30, 2010, Five months ended
September 30, 2009 and Fiscal years ended
April
30, 2009 and 2008
30, 2009 and 2008
On June 22, 2004, the Department of the Interior approved the 2001 Compact. The 2001 Compact
provides for a revenue sharing amount equal to 8% of net win from gaming machines, payable no
later than 25 days after the last day of each calendar month and an annual regulatory fee of
$100,000 paid in quarterly installments of $25,000. As of September 30, 2010 and September 30,
2009, the amount payable to the State was $1,597,491 and $1,546,113, respectively, for regulatory
fees.
NOTE 7 EMPLOYEE BENEFITS
In connection with the issuance of the Senior Notes, IMG Resort and Casino and the Tribe entered
into an employee benefits cost allocation agreement (see Note 10), which provides that the Tribe
will continue to provide IMG Resort and Casino and its resort enterprises with certain employee
benefits in accordance with past practice, including group health benefits, workers compensation
insurance, disability insurance, unemployment benefits and pension benefits. IMG Resort and Casino
reimburses the Tribe for its employees direct costs for coverage as billed by the third party.
On May 1, 2009, the Tribe suspended the 4% matching contribution under our 401(k) plan as a
cost saving measure. There was no match made by IMG Resort and Casino for the fiscal year ended
September 30, 2010, and for the five months ended September 30, 2009. The total amount of match
made by IMG Resort and Casino was $850,924 and $856,565 for the fiscal years ended April 30, 2009
and 2008, respectively. The IRS sets the maximum allowed matching contribution each year for
qualified 401(k) plans. The maximum the IRS allows for an employee deferral amount for 2009 and
2010 is $15,500 for an employee who is under 50 years old and $20,500 for an employee who is 50 years or older.
NOTE 8 RISK MANAGEMENT
IMG Resort and Casino manages the exposure to the risk of most losses through various commercial
insurance policies. There have been no reductions in insurance coverage. Settlement amounts have
not exceeded insurance coverage for the fiscal year ended September 30, 2010.
The Tribe is self-insured for employee health and accident insurance. IMG Resort and Casinos
employees are covered by the Tribes policy and remit amounts to the Tribe for their share of the
self-insurance costs. The total amounts reimbursed to the Tribe were approximately $2,726,000 for
the fiscal year ended September 30, 2010 and approximately $1,234,000 for the five months ended
September 30, 2009. The total amounts reimbursed to the Tribe were approximately $3,548,000 and
$3,370,000 for the fiscal years ended April 30, 2009 and 2008, respectively.
The Tribe maintains workers compensation insurance coverage under a retrospective rated policy
whereby premiums and catastrophic cases are accrued based on the loss experience of the Tribe and
its various enterprises.
The IMG Resort and Casinos employees are covered under this plan. Under this policy, premiums may
be adjusted at the end of the coverage period based on loss experience for the coverage period.
Management of the Tribe and the IMG Resort and Casino have monitored their claims and loss
experiences. Workers compensation insurance coverage, combined with the Tribe and IMG Resort and
Casinos causality and liability claims, have been below projected levels and have been properly
accrued for.
F-15
Table of Contents
INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Fiscal
year ended September 30, 2010, Five months ended September 30, 2009 and Fiscal years ended
April
30, 2009 and 2008
30, 2009 and 2008
NOTE 9 COMMITMENTS AND CONTINGENCIES
Legal Matters
The IMG Resort and Casino and the Resorts are involved in various legal actions incident to their
operations that, in the opinion of management, are not expected to materially affect the IMG Resort
and Casinos financial position or the results of its operations.
Occupancy Fee
A special use permit was obtained from the United States Department of Agriculture Forest Service
for Ski Apaches use of 80 acres of land in Lincoln National Forest. The permit is dated April 23,
1985, and has a term of 30 years with an annual occupancy fee based on revenue and gross fixed
assets. Occupancy fee for the fiscal year ended September 30, 2010 was $61,000 and $17,000 for the
five months ended September 30, 2009. Occupancy fee for the fiscal years ended April 30, 2009 and
2008 totaled $22,672 and $55,650, respectively
Employment Agreements
The Board for IMG has discontinued the general practice of employment agreements for the Company.
Consulting Agreement and Management Agreement
On January 6, 2010, Inn of the Mountain Gods Resort and Casino (the Registrant), a tribal
enterprise wholly-owned by the Tribe, a federally-recognized Indian tribe, along with the
Registrants tribally-chartered subsidiaries, Casino Apache Travel Center and Ski Apache
(collectively, the Tribal Parties), entered into a management agreement (the Management
Agreement) with WG-IMG, LLC (the Manager), a Nevada limited liability company. The majority
owner of the Manager, William W. Warner, and the Tribe each signed a joinder to the Management
Agreement. The Management Agreement became effective following approval by the National Indian
Gaming Commission (NIGC) in a letter dated January 19, 2010.
The Management Agreement grants the Manager the exclusive right and obligation to manage, operate
and maintain the casino and other businesses of the Registrant and its subsidiaries and to train
the Tribe in the operation and maintenance thereof during the term of the Management Agreement. The
Manager has a duty to physically maintain the facilities, operate the facilities consistent with
4-star/4-diamond hospitality standards, pay bills and expenses, advertise and provide security.
The Manager may enter into contracts on behalf of the Registrant or its subsidiaries provided that
it receives approval in advance for contracts with a value, or potential exposure, in excess of
$50,000 from the management board of the Registrant, as selected by the Tribe (the Management
Board). The Manager is entitled to receive a management fee for its services under the Management
Agreement. This management fee is calculated based on the earnings before interest, taxes,
depreciation and amortization (EBITDA) of the businesses of the Registrant, but shall be no less
than $60,000 per month.
The term of the Management Agreement is five years from the date the NIGC approved the Management
Agreement. The Tribal Parties may terminate the Management Agreement if, among other things, the
Manager breaches the Management Agreement, including a change of ownership of the Manager.
F-16
Table of Contents
INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Fiscal
year ended September 30, 2010, Five months ended September 30, 2009 and Fiscal years ended
April
30, 2009 and 2008
30, 2009 and 2008
After two years, the registrant may terminate the Management Agreement by paying the Manager an
amount equal to the discounted value of the future fees the Manager was entitled to receive under
the Management Agreement.
The Manager may terminate the Management Agreement if, among other things, a Tribal Party fails to
pay any amount due to the Manager, if a Tribal Party breaches the Management Agreement, or if the
Manager does not receive its minimal monthly fee for three consecutive months. The Manager also has
the right to terminate the Management Agreement within 60 days of a legally required suspension of
gaming operations.
The foregoing description of the Management Agreement is not complete and is subject to and
qualified in its entirety by reference to the Management Agreement, a copy of which is attached as
Exhibit 10.1 to the Companys Form 10-Q filed with the Securities and Exchange Commission on
February 16, 2010.
Prior to January 6, 2010, IMG Resort and Casino had a consulting agreement (Consulting
Agreement), with a subsidiary of Warner Gaming, LLC (Consultant). The Consulting Agreement
provides that the Consultant will, over the three-year term of the Consulting Agreement, evaluate
and make recommendations with respect to the following operations at the IMG Resort and Casino:
gaming operations and related marketing, non-gaming marketing programs, hotel and other operations,
food and beverage operations, human resources and finance and accounting. Warner Gaming was paid a
consulting fee of $60,000 per month as well as reimbursable expenses.
NOTE 10 RELATED-PARTY TRANSACTIONS
The Tribe operates other entities and enterprises in various industries, including
telecommunication, timber and forest products, gas and convenience store; in addition, the Tribe
has a housing authority, school and nursing facility. Financial results of the Tribe and its other
enterprises and entities are not included in these consolidated financial statements.
The Tribe provides certain shared services which it administers for all of its enterprises. IMG
Resort and Casino uses Mescalero Apache Telecommunications for some of its telecommunications
related services. The IMG Resort and Casino paid Mescalero Apache Telecommunications approximately
$208,000 for the fiscal year ended September 30, 2010 and $81,000 for the five months ended
September 30, 2009, for such services. The IMG Resort and Casino paid Mescalero Apache
Telecommunications approximately $191,000 and $197,000 for the fiscal years ended April 30, 2009
and 2008, respectively, for such services.
Shared Services and Cost Allocations
In connection with the issuance of the Senior Notes, IMG Resort and Casino and the Tribe entered
into a service and cost allocation agreement, which provides that the Tribe or its enterprises will
continue to provide IMG Resort and Casino and its resort enterprises the following services in
accordance with past practice: (i) insurance; (ii) telecommunications; (iii) propane; and (iv)
gaming regulation, and that IMG Resort and Casino and its resort enterprises will pay, on behalf of
the Tribe, for (a) revenue sharing and regulatory fee obligations required under the 2001 Compact
or any new compact, (b) federal regulatory fees required by IGRA, (c) an amount equal to the
monthly payments required under the promissory note dated September 1, 1982, in favor of the
Department of Interior, Bureau of Indian Affairs (See Note 5) and (d) amounts for certain other
miscellaneous liabilities. IMG Resort and Casino reimburses the Tribe for its direct costs as
billed by the third party.
F-17
Table of Contents
INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Fiscal
year ended September 30, 2010, Five months ended September 30, 2009 and Fiscal years ended
April
30, 2009 and 2008
30, 2009 and 2008
Employee Benefits Cost Allocations
In connection with the issuance of the Senior Notes, IMG Resort and Casino and the Tribe entered
into an employee benefits cost allocation agreement, which provides that the Tribe will continue to
provide IMG Resort and Casino and its resort enterprises with certain employee benefits in
accordance with past practice, including group health benefits, workers compensation insurance,
disability insurance, unemployment benefits and pension benefits. IMG reimburses the Tribe for its
employees direct costs for coverage as billed by the third party.
The Tribe provides employee benefits to the IMG Resort and Casino, which reimburses the Tribe for
all costs and expenses associated with this insurance. IMG Resort and Casino paid the Tribe
approximately $2.7 million for the fiscal year ended September 30, 2010 and approximately $1.2
million for the five months ended September 30, 2009. IMG Resort and Casino paid the Tribe
approximately $3.5 million and $3.3 million for the fiscal years ended April 30, 2009 and 2008,
respectively.
NOTE 11STORM RECOVERY
In late July 2008, the remnants of Hurricane Dolly brought torrential rain and caused significant
flash flood damage at Ski Apache and the Inn of the Mountain Gods Championship Golf Course,
damaging buildings, land, and equipment. A majority of assets that were damaged or destroyed were
fully or nearly fully depreciated. IMG Resort and Casinos insurance carrier agreed to provide
approximately $4.7 million of coverage for the damage that occurred as a result of the flooding.
Additionally, FEMA deemed the area a Federal Disaster area and has assured financial assistance of
at least the deductible on our insurance policy, which is $100,000.
For the fiscal year ended September 30, 2010, IMG Resort and Casino has incurred approximately
$221,000 in costs associated with the storm recovery. For the five months ended September 30, 2009,
IMG Resort and Casino has incurred approximately $21,000 in costs associated with storm recovery.
For the fiscal year ended April 30, 2009, IMG Resort and Casino incurred approximately $376,700 in
costs associated with storm recovery.
On the morning of November 7, 2008, Ski Apache experienced a fire. The fire was confined to a
single metal building used largely for maintenance and repair parts for ski operations related
equipment. The IMG Resort and Casino carries an insurance policy with a $100,000 deductible on all
property losses. The actual insured value of the maintenance building was approximately $1,012,000.
The contents had insured value of approximately $62,000. IMG Resort and Casino believes that the
replacement costs for the damaged building, its contents, other large equipment, and vehicles
affected are adequately insured to cover the replacement costs and/or actual cash value after the
deductible is paid.
NOTE 12 OPERATING SEGMENTS
The IMG Resort and Casino has four operating segments and a consolidating segment: Gaming at the
IMG, Gaming at the Travel Center, Ski, and all other non-gaming. The Gaming segments include the
activities of the two casinos. The Ski segment includes Ski lifts and Ski school at Ski Apache. The
Non-Gaming segment includes the hotel, hunts, golf, food and beverage, banquets, conferences,
retail shops, convenience store and truck stop fuel sales. As a result of realigning its operations, the resulting reporting of the segments has changed. The
Company has reclassified prior years segment information to be consistent with the current
reporting and operating structure in place today. Assets and liabilities have been consolidated
under the non-segment group, and as a result, depreciation and interest expenses are not broken out
separately by segment, which is consistent with the internal decision makers information
requirements.
F-18
Table of Contents
INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
Fiscal
year ended September 30, 2010, Five months ended September 30, 2009 and Fiscal years Ended
April
30, 2009 and 2008
30, 2009 and 2008
SELECTED OPERATING SEGMENT FINANCIAL INFORMATION
These operating segments represent distinct business activities, which are managed separately from
a profit and loss perspective, but jointly from a balance sheet perspective.
$(000s)
Gaming | Gaming | |||||||||||||||||||||||
IMG | Travel Ctr | Ski | Non Gaming | Non Segment | Consolidated | |||||||||||||||||||
Fiscal year ended: |
||||||||||||||||||||||||
September 30, 2010 |
||||||||||||||||||||||||
Net revenue |
$ | 45,248 | $ | 29,103 | $ | 1,468 | $ | 32,047 | $ | 7,322 | $ | 115,188 | ||||||||||||
Operating income (loss) |
35,901 | 24,066 | 400 | 6,775 | (40,611 | ) | 26,531 | |||||||||||||||||
Depreciation expense |
| | | | 11,400 | 11,400 | ||||||||||||||||||
Interest expense |
| | | | (31,372 | ) | (31,372 | ) | ||||||||||||||||
Interest income and other |
| | | | (114 | ) | (114 | ) | ||||||||||||||||
Five months ended: |
||||||||||||||||||||||||
September 30, 2009 |
||||||||||||||||||||||||
Net revenue |
$ | 22,005 | $ | 12,982 | $ | 4 | $ | 16,575 | $ | (230 | ) | $ | 51,336 | |||||||||||
Operating income (loss) |
17,980 | 10,671 | 5 | 6,569 | (20,902 | ) | 14,323 | |||||||||||||||||
Depreciation expense |
| | | | 5,073 | 5,073 | ||||||||||||||||||
Interest expense |
| | | | (12,070 | ) | (12,070 | ) | ||||||||||||||||
Interest income and other |
| | | | 25 | 25 | ||||||||||||||||||
Fiscal year ended: |
||||||||||||||||||||||||
April 30, 2009 |
||||||||||||||||||||||||
Net revenue |
$ | 44,281 | $ | 29,843 | $ | 923 | $ | 35,483 | $ | 3,788 | $ | 114,318 | ||||||||||||
Operating income (loss) |
33,514 | 23,668 | 5 | 9,296 | (41,256 | ) | 25,227 | |||||||||||||||||
Depreciation expense |
| | | | 12,162 | 12,162 | ||||||||||||||||||
Interest expense |
| | | | (26,156 | ) | (26,156 | ) | ||||||||||||||||
Interest income and other |
| | | | 73 | 73 | ||||||||||||||||||
Fiscal year ended: |
||||||||||||||||||||||||
April 30, 2008 |
||||||||||||||||||||||||
Net revenue |
$ | 46,644 | $ | 30,175 | $ | (1,279 | ) | $ | 41,621 | $ | 4,909 | $ | 122,070 | |||||||||||
Operating income (loss) |
36,232 | 24,205 | 25 | 10,236 | (50,689 | ) | 20,009 | |||||||||||||||||
Depreciation expense |
| | | | 16,061 | 16,061 | ||||||||||||||||||
Interest expense |
| | | | (26,420 | ) | (26,420 | ) | ||||||||||||||||
Interest income and other |
| | | | 237 | 237 |
NOTE 13 CONSOLIDATING INFORMATION
In connection with IMG Resort and Casinos issuance in November 2003 of the Senior Notes, IMG
Resort and Casinos subsidiaries, Casino Apache, the Inn, the Travel Center and Ski Apache
(wholly-owned Guarantors) have, jointly and severally, fully and unconditionally guaranteed the
Senior Notes. These guarantees were secured only until the completion of the Resort and thereafter
unsecured.
Pursuant to Rule 3-10 of Regulation S-X, the following consolidating information is for IMG Resort
and Casino and the wholly owned Guarantors of the Senior Notes. This consolidating financial
information has been prepared from the books and records maintained by IMG Resort and Casino and
the wholly-owned Guarantors. The consolidating
F-19
Table of Contents
financial information may not necessarily be indicative of results of operations or financial
position had the wholly-owned Guarantors operated as independent entities. The separate financial
statements of the wholly-owned Guarantors are not presented because management has determined they
would not be material to investors.
F-20
Table of Contents
INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
CONSOLIDATING BALANCE SHEETS
CONSOLIDATING BALANCE SHEETS
As of September 30, 2010
Guarantor | ||||||||||||||||
IMGRC | Subsidiaries | Eliminations | Consolidated | |||||||||||||
Cash and cash equivalents |
$ | 13,301,087 | $ | 5,777,807 | $ | | $ | 19,078,894 | ||||||||
Accounts receivable |
234,147 | 381,713 | | 615,860 | ||||||||||||
Inventories |
205,174 | 678,400 | | 883,574 | ||||||||||||
Prepaid expenses |
1,327,904 | | | 1,327,904 | ||||||||||||
Total current assets |
15,068,312 | 6,837,920 | | 21,906,232 | ||||||||||||
Fixed assets |
| 312,376,013 | 312,376,013 | |||||||||||||
Accumulated depreciation |
| (130,089,874 | ) | | (130,089,874 | ) | ||||||||||
Net fixed assets |
| 182,286,139 | | 182,286,139 | ||||||||||||
Non-current |
||||||||||||||||
Other assets |
51,000 | | 51,000 | |||||||||||||
Deferred financing costs |
296,859 | | | 296,859 | ||||||||||||
Advances to subsidiaries |
7,337,608 | 30,161,767 | (37,499,375 | ) | | |||||||||||
Investment in subsidiaries |
209,278,670 | | (209,278,670 | ) | | |||||||||||
Total assets |
$ | 232,032,449 | $ | 219,285,826 | $ | (246,778,045 | ) | $ | 204,540,230 | |||||||
Accounts payable |
$ | 2,113,414 | $ | | $ | | $ | 2,113,414 | ||||||||
Accrued expenses |
3,257,175 | 1,899,815 | | 5,156,990 | ||||||||||||
Accrued payroll and benefits |
1,792,820 | | | 1,792,820 | ||||||||||||
Accrued interest |
51,845,000 | | | 51,845,000 | ||||||||||||
Advanced deposits |
| 497,883 | | 497,883 | ||||||||||||
Current portion of long-term debt |
199,737,062 | 271,850 | | 200,008,912 | ||||||||||||
Total current liabilities |
258,745,471 | 2,669,548 | | 261,415,019 | ||||||||||||
Advances from subsidiaries |
30,161,767 | 7,337,608 | (37,499,375 | ) | | |||||||||||
Long-term debt, net of current portion |
392,801 | | | 392,801 | ||||||||||||
Total liabilities |
289,300,039 | 10,007,156 | (37,499,375 | ) | 261,807,820 | |||||||||||
Contributed capital |
(22,555,727 | ) | (6,012,897 | ) | 6,012,897 | (22,555,727 | ) | |||||||||
Retained earnings (accumulated deficit) |
(34,711,863 | ) | 215,291,567 | (215,291,567 | ) | (34,711,863 | ) | |||||||||
Total (deficit) equity |
(57,267,590 | ) | 209,278,670 | (209,278,670 | ) | (57,267,590 | ) | |||||||||
Total liabilities and (deficit) equity |
$ | 232,032,449 | $ | 219,285,826 | $ | (246,778,045 | ) | $ | 204,540,230 | |||||||
F-21
Table of Contents
INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF OPERATIONS
CONSOLIDATING STATEMENT OF OPERATIONS
For the Fiscal Year Ended September 30, 2010
Guarantor | ||||||||||||||||
IMGRC | Subsidiaries | Eliminations | Consolidated | |||||||||||||
Revenues: |
||||||||||||||||
Gaming |
$ | | $ | 74,721,871 | $ | | $ | 74,721,871 | ||||||||
Hotel |
| 10,046,611 | | 10,046,611 | ||||||||||||
Food and beverage |
| 12,978,055 | | 12,978,055 | ||||||||||||
Recreation and other |
| 18,390,098 | | 18,390,098 | ||||||||||||
Gross
revenue |
| 116,136,635 | | 116,136,635 | ||||||||||||
Less-promotional
allowances |
70,019 | 878,944 | | 948,963 | ||||||||||||
Net revenue |
(70,019 | ) | 115,257,691 | | 115,187,672 | |||||||||||
Operating
expenses |
||||||||||||||||
Gaming |
| 23,919,379 | | 23,919,379 | ||||||||||||
Hotel |
| 3,605,321 | | 3,605,321 | ||||||||||||
Food and beverage |
| 13,275,308 | | 13,275,308 | ||||||||||||
Recreation and other |
| 11,028,692 | | 11,028,692 | ||||||||||||
Marketing |
| 8,512,629 | | 8,512,629 | ||||||||||||
General and
administrative |
| 15,531,274 | | 15,531,274 | ||||||||||||
Management fees |
2,005,132 | | | 2,005,132 | ||||||||||||
Refinance fees |
1,420,212 | | | 1,420,212 | ||||||||||||
Depreciation |
| 11,399,788 | | 11,399,788 | ||||||||||||
Insurance
reimbursement (Note
11) |
| (2,237,475 | ) | | (2,237,475 | ) | ||||||||||
Storm costs (Note 11) |
135,058 | 86,288 | | 221,346 | ||||||||||||
Gain on disposal of
assets |
| (25,280 | ) | | (25,280 | ) | ||||||||||
Total
operating expenses |
3,560,402 | 85,095,924 | | 88,656,326 | ||||||||||||
Operating income
(loss) |
(3,630,421 | ) | 30,161,767 | | 26,531,346 | |||||||||||
Other
income (expense) |
||||||||||||||||
Interest (expense) |
(31,371,890 | ) | | | (31,371,890 | ) | ||||||||||
Income from
subsidiaries |
30,161,767 | | (30,161,767 | ) | | |||||||||||
Other income |
113,611 | | | 113,611 | ||||||||||||
Total
other expense |
(1,096,512 | ) | | (30,161,767 | ) | (31,258,279 | ) | |||||||||
Net (loss) income |
$ | (4,726,933 | ) | $ | 30,161,767 | $ | (30,161,767 | ) | $ | (4,726,933 | ) | |||||
F-22
Table of Contents
INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF CASH FLOWS
CONSOLIDATING STATEMENT OF CASH FLOWS
Fiscal Year Ended September 30, 2010
Guarantor | ||||||||||||||||
IMGRC | Subsidiaries | Eliminations | Consolidated | |||||||||||||
Cash flows from operating activities: |
||||||||||||||||
Net income (loss) |
$ | (4,726,933 | ) | $ | 30,161,767 | $ | (30,161,767 | ) | $ | (4,726,933 | ) | |||||
Adjustments to reconcile net income (loss) to net cash
provided by operating activities: |
||||||||||||||||
Depreciation and amortization |
1,781,158 | 11,399,788 | | 13,180,946 | ||||||||||||
Loss on disposal of fixed assets |
| (25,280 | ) | | (25,280 | ) | ||||||||||
Changes in assets and liabilities: |
||||||||||||||||
Accounts receivable |
(145,836 | ) | 248,025 | | 102,189 | |||||||||||
Inventories |
18,647 | (39,970 | ) | | (21,323 | ) | ||||||||||
Prepaid expenses |
(6,092 | ) | | | (6,092 | ) | ||||||||||
Accounts payable |
602,988 | | | 602,988 | ||||||||||||
Accrued expenses, payroll and benefits |
(436,727 | ) | 16,906 | | (419,821 | ) | ||||||||||
Accrued interest |
29,458,333 | | | 29,458,333 | ||||||||||||
Deposits and advance payments |
| 84,837 | | 84,837 | ||||||||||||
Net cash provided by operating activities |
26,545,538 | 41,846,073 | (30,161,767 | ) | 38,229,884 | |||||||||||
Cash flows from investing activities: |
||||||||||||||||
Purchase of property, plant and equipment |
| (4,549,262 | ) | | (4,549,262 | ) | ||||||||||
Investment in subsidiaries |
(30,161,767 | ) | | 30,161,767 | | |||||||||||
Net cash used in investing activities |
(30,161,767 | ) | (4,549,262 | ) | 30,161,767 | (4,549,262 | ) | |||||||||
Cash flows from financing activities: |
||||||||||||||||
Advances
from (to) affiliates |
34,741,870 | (34,741,870 | ) | | | |||||||||||
Principal payments on debt |
(2,630,139 | ) | (288,704 | ) | | (2,918,843 | ) | |||||||||
Distributions to Mescalero Apache Tribe |
(17,166,665 | ) | | | (17,166,665 | ) | ||||||||||
Net cash provided by (used in) financing activities |
14,945,066 | (35,030,574 | ) | | (20,085,508 | ) | ||||||||||
Net increase in cash and cash equivalents |
11,328,837 | 2,221,237 | | 13,550,074 | ||||||||||||
Cash and cash equivalents, beginning of period |
1,972,250 | 3,556,570 | | 5,528,820 | ||||||||||||
Cash and cash equivalents, end of period |
$ | 13,301,087 | $ | 5,777,807 | $ | | $ | 19,078,894 | ||||||||
F-23
Table of Contents
INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
CONSOLIDATING BALANCE SHEETS
CONSOLIDATING BALANCE SHEETS
As of September 30, 2009
Guarantor | ||||||||||||||||
IMGRC | Subsidiaries | Eliminations | Consolidated | |||||||||||||
Cash and cash equivalents |
$ | 1,972,250 | $ | 3,556,570 | $ | | $ | 5,528,820 | ||||||||
Accounts receivable |
88,311 | 629,738 | | 718,049 | ||||||||||||
Inventories |
223,821 | 638,430 | | 862,251 | ||||||||||||
Prepaid expenses |
1,321,812 | | | 1,321,812 | ||||||||||||
Total current assets |
3,606,194 | 4,824,738 | | 8,430,932 | ||||||||||||
Fixed Assets |
| 308,443,306 | | 308,443,306 | ||||||||||||
Depreciation |
| (119,376,921 | ) | | (119,376,921 | ) | ||||||||||
Net fixed assets |
| 189,066,385 | | 189,066,385 | ||||||||||||
Non current assets |
||||||||||||||||
Other assets |
51,000 | | | 51,000 | ||||||||||||
Deferred financing costs |
2,078,017 | | | 2,078,017 | ||||||||||||
Advances to subsidiaries |
26,322,818 | 14,405,107 | (40,727,925 | ) | | |||||||||||
Investment in subsidiaries |
179,116,903 | | (179,116,903 | ) | | |||||||||||
Total Assets |
$ | 211,174,932 | $ | 208,296,230 | $ | (219,844,828 | ) | $ | 199,626,334 | |||||||
Accounts Payable and other short term liabilities |
$ | 1,510,426 | $ | | $ | | $ | 1,510,426 | ||||||||
Accrued expenses |
3,586,384 | 1,882,909 | | 5,469,293 | ||||||||||||
Accrued payroll and benefits |
1,900,338 | | | 1,900,338 | ||||||||||||
Accrued interest |
22,386,667 | | | 22,386,667 | ||||||||||||
Advanced deposits |
| 413,046 | | 413,046 | ||||||||||||
Current portion of long-term debt |
202,630,139 | 294,783 | | 202,924,922 | ||||||||||||
Total current liabilities |
232,013,954 | 2,590,738 | | 234,604,692 | ||||||||||||
Non current liabilities: |
||||||||||||||||
Advances from subsidiaries |
14,405,107 | 26,322,818 | (40,727,925 | ) | | |||||||||||
Long-term debt, net of current portion |
129,863 | 265,771 | | 395,634 | ||||||||||||
Total liabilities |
246,548,924 | 29,179,327 | (40,727,925 | ) | 235,000,326 | |||||||||||
Contributed capital |
(5,389,062 | ) | (6,012,897 | ) | 6,012,897 | (5,389,062 | ) | |||||||||
Retained earnings (deficit) |
(29,984,930 | ) | 185,129,800 | (185,129,800 | ) | (29,984,930 | ) | |||||||||
Total equity (deficit) |
(35,373,992 | ) | 179,116,903 | (179,116,903 | ) | (35,373,992 | ) | |||||||||
Total liabilities and equity (deficit) |
$ | 211,174,932 | $ | 208,296,230 | $ | (219,844,828 | ) | $ | 199,626,334 | |||||||
F-24
Table of Contents
INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF OPERATIONS
CONSOLIDATING STATEMENT OF OPERATIONS
For the Five Months Ended September 30, 2009
Guarantor | ||||||||||||||||
IMGRC | Subsidiaries | Eliminations | Consolidated | |||||||||||||
Revenues: |
||||||||||||||||
Gaming |
$ | | $ | 35,124,768 | $ | | $ | 35,124,768 | ||||||||
Hotel |
| 5,429,623 | | 5,429,623 | ||||||||||||
Food and beverage |
| 5,721,231 | | 5,721,231 | ||||||||||||
Recreation and other |
| 5,455,183 | | 5,455,183 | ||||||||||||
Gross revenue |
| 51,730,805 | | 51,730,805 | ||||||||||||
Less -promotional allowances |
34,915 | 359,586 | | 394,501 | ||||||||||||
Net revenue |
(34,915 | ) | 51,371,219 | | 51,336,304 | |||||||||||
Operating expenses |
||||||||||||||||
Gaming |
| 10,819,613 | | 10,819,613 | ||||||||||||
Hotel |
| 1,553,100 | | 1,553,100 | ||||||||||||
Food and beverage |
| 5,298,491 | | 5,298,491 | ||||||||||||
Recreation and other |
| 4,221,347 | | 4,221,347 | ||||||||||||
Marketing |
| 3,892,640 | | 3,892,640 | ||||||||||||
General and administrative |
| 6,194,328 | | 6,194,328 | ||||||||||||
Depreciation |
| 5,072,973 | | 5,072,973 | ||||||||||||
Insurance reimbursement (Note 11) |
| (45,000 | ) | | (45,000 | ) | ||||||||||
Storm costs (Note 11) |
| 20,558 | | 20,558 | ||||||||||||
Gain on disposal of assets |
| (15,000 | ) | | (15,000 | ) | ||||||||||
Total operating expenses |
| 37,013,050 | | 37,013,050 | ||||||||||||
Operating (loss) income |
(34,915 | ) | 14,358,169 | | 14,323,254 | |||||||||||
Other income (expense) |
||||||||||||||||
Interest expense |
(12,070,420 | ) | | | (12,070,420 | ) | ||||||||||
Income from subsidiaries |
14,358,169 | | (14,358,169 | ) | | |||||||||||
Other income |
25,364 | | | 25,364 | ||||||||||||
Total other expense |
2,313,113 | | (14,358,169 | ) | (12,045,056 | ) | ||||||||||
Net income |
$ | 2,278,198 | $ | 14,358,169 | $ | (14,358,169 | ) | $ | 2,278,198 | |||||||
F-25
Table of Contents
INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF CASH FLOWS
CONSOLIDATING STATEMENT OF CASH FLOWS
For the Five Months ended September 30, 2009
(unaudited)
(unaudited)
Guarantor | ||||||||||||||||
IMGRC | Subsidiaries | Eliminations | Consolidated | |||||||||||||
Cash flows from operating activities: |
||||||||||||||||
Net income |
$ | 2,278,198 | $ | 14,358,169 | $ | (14,358,169 | ) | $ | 2,278,198 | |||||||
Adjustments to reconcile net income to net cash provided by operating activities: |
||||||||||||||||
Depreciation and amortization |
742,148 | 5,072,973 | | 5,815,121 | ||||||||||||
Gain on disposal of assets |
| (15,000 | ) | | (15,000 | ) | ||||||||||
Changes in assets and liabilities: |
||||||||||||||||
Accounts receivable |
24,884 | (361,997 | ) | | (337,113 | ) | ||||||||||
Inventories |
(39,055 | ) | (33,632 | ) | | (72,687 | ) | |||||||||
Prepaid expenses |
(762,444 | ) | | | (762,444 | ) | ||||||||||
Accounts payable |
(612,277 | ) | | | (612,277 | ) | ||||||||||
Accrued expenses, payroll and benefits |
1,279,531 | 967,721 | | 2,247,252 | ||||||||||||
Accrued interest |
11,186,667 | | | 11,186,667 | ||||||||||||
Deposits and advance payments |
| 65,051 | | 65,051 | ||||||||||||
Net cash provided by operating activities |
14,097,652 | 20,100,221 | (14,358,169 | ) | 19,792,768 | |||||||||||
Cash flows from investing activities: |
||||||||||||||||
Purchase of property, plant and equipment |
| (1,185,361 | ) | | (1,185,361 | ) | ||||||||||
Investment in subsidiaries |
(14,358,169 | ) | | 14,358,169 | | |||||||||||
Net cash
used in investing activities |
(14,358,169 | ) | (1,185,361 | ) | 14,358,169 | (1,185,361 | ) | |||||||||
Cash flows from financing activities: |
||||||||||||||||
Advances
from (to) affiliates |
18,234,925 | (18,234,925 | ) | | | |||||||||||
Principal payments on debt |
(1,488,370 | ) | (112,951 | ) | | (1,601,321 | ) | |||||||||
Distributions to Mescalero Apache Tribe |
(19,034,001 | ) | | | (19,034,001 | ) | ||||||||||
Net cash (used in) financing activities |
(2,287,446 | ) | (18,347,876 | ) | | (20,635,322 | ) | |||||||||
Net increase in cash and cash equivalents |
(2,547,963 | ) | 520,048 | (2,027,915 | ) | |||||||||||
Cash and cash equivalents, beginning of period |
4,520,213 | 3,036,522 | | 7,556,735 | ||||||||||||
Cash and cash equivalents, end of period |
$ | 1,972,250 | $ | 3,556,570 | $ | | $ | 5,528,820 | ||||||||
F-26
Table of Contents
INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
CONSOLIDATING BALANCE SHEETS
CONSOLIDATING BALANCE SHEETS
As of April 30, 2009
Guarantor | ||||||||||||||||
IMGRC | Subsidiaries | Eliminations | Consolidated | |||||||||||||
Cash and cash equivalents |
$ | 4,520,213 | $ | 3,036,522 | $ | | $ | 7,556,735 | ||||||||
Accounts receivable |
113,195 | 267,741 | | 380,936 | ||||||||||||
Inventories |
184,766 | 604,798 | | 789,564 | ||||||||||||
Prepaid expenses |
449,368 | | | 449,368 | ||||||||||||
Total current assets |
5,267,542 | 3,909,061 | | 9,176,603 | ||||||||||||
Fixed assets |
| 307,605,269 | 307,605,269 | |||||||||||||
Accumulated depreciation |
| (114,666,272 | ) | | (114,666,272 | ) | ||||||||||
Net fixed assets |
| 192,938,997 | | 192,938,997 | ||||||||||||
Non-current |
||||||||||||||||
Other assets |
161,000 | | 161,000 | |||||||||||||
Deferred financing costs |
2,820,165 | | | 2,820,165 | ||||||||||||
Advances to subsidiaries |
50,198,590 | 19,999,016 | (70,197,606 | ) | | |||||||||||
Investment in subsidiaries |
164,711,796 | | (164,711,796 | ) | | |||||||||||
Total assets |
$ | 223,159,093 | $ | 216,847,074 | $ | (234,909,402 | ) | $ | 205,096,765 | |||||||
Accounts payable |
$ | 2,122,703 | $ | | $ | | $ | 2,122,703 | ||||||||
Accrued expenses |
2,828,891 | 915,188 | | 3,744,079 | ||||||||||||
Accrued payroll and benefits |
1,378,300 | | | 1,378,300 | ||||||||||||
Accrued interest |
11,200,000 | | | 11,200,000 | ||||||||||||
Advanced deposits |
| 347,995 | | 347,995 | ||||||||||||
Current portion of long-term debt |
203,655,133 | 275,958 | | 203,931,091 | ||||||||||||
Total current liabilities |
221,185,027 | 1,539,141 | | 222,724,168 | ||||||||||||
Non-current liabilities |
||||||||||||||||
Advances from subsidiaries |
19,999,016 | 50,198,590 | (70,197,606 | ) | | |||||||||||
Long-term debt, net of current portion |
593,239 | 397,547 | | 990,786 | ||||||||||||
Total liabilities |
241,777,282 | 52,135,278 | (70,197,606 | ) | 223,714,954 | |||||||||||
Contributed capital |
13,644,939 | (6,012,897 | ) | 6,012,897 | 13,644,939 | |||||||||||
Retained earnings (accumulated deficit) |
(32,263,128 | ) | 170,724,693 | (170,724,693 | ) | (32,263,128 | ) | |||||||||
Total equity (deficit) |
(18,618,189 | ) | 164,711,796 | (164,711,796 | ) | (18,618,189 | ) | |||||||||
Total liabilities and equity (deficit) |
$ | 223,159,093 | $ | 216,847,074 | $ | (234,909,402 | ) | $ | 205,096,765 | |||||||
F-27
Table of Contents
INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF OPERATIONS
CONSOLIDATING STATEMENT OF OPERATIONS
For the Fiscal Year Ended April 30, 2009
Guarantor | ||||||||||||||||
IMGRC | Subsidiaries | Eliminations | Consolidated | |||||||||||||
Revenues: |
||||||||||||||||
Gaming |
$ | | $ | 74,383,388 | $ | | $ | 74,383,388 | ||||||||
Hotel |
| 11,421,683 | | 11,421,683 | ||||||||||||
Food and beverage |
| 12,582,440 | | 12,582,440 | ||||||||||||
Recreation and other |
275,008 | 16,537,397 | | 16,812,405 | ||||||||||||
Gross revenue |
275,008 | 114,924,908 | | 115,199,916 | ||||||||||||
Less-promotional allowances |
77,010 | 804,656 | | 881,666 | ||||||||||||
Net revenue |
197,998 | 114,120,252 | | 114,318,250 | ||||||||||||
Operating expenses |
||||||||||||||||
Gaming |
| 26,249,451 | | 26,249,451 | ||||||||||||
Hotel |
| 4,757,635 | | 4,757,635 | ||||||||||||
Food and beverage |
| 13,546,888 | | 13,546,888 | ||||||||||||
Recreation and other |
| 11,880,845 | | 11,880,845 | ||||||||||||
Marketing |
| 8,343,783 | | 8,343,783 | ||||||||||||
General and administrative |
| 16,886,659 | | 16,886,659 | ||||||||||||
Depreciation |
| 12,162,079 | | 12,162,079 | ||||||||||||
Insurance reimbursement (Note 11) |
(5,406,380 | ) | | | (5,406,380 | ) | ||||||||||
Storm Costs (Note 11) |
376,700 | | | 376,700 | ||||||||||||
Loss on disposal of assets |
| 293,896 | | 293,896 | ||||||||||||
Total operating expenses |
(5,029,680 | ) | 94,121,236 | | 89,091,556 | |||||||||||
Operating income |
5,227,678 | 19,999,016 | | 25,226,694 | ||||||||||||
Other income (expense) |
||||||||||||||||
Interest income |
41,795 | | | 41,795 | ||||||||||||
Interest (expense) |
(26,156,329 | ) | | | (26,156,329 | ) | ||||||||||
Income from subsidiaries |
19,999,016 | | (19,999,016 | ) | | |||||||||||
Other income |
30,936 | | | 30,936 | ||||||||||||
Total other income (expense) |
(6,084,582 | ) | | (19,999,016 | ) | (26,083,598 | ) | |||||||||
Net income (loss) |
$ | (856,904 | ) | $ | 19,999,016 | $ | (19,999,016 | ) | $ | (856,904 | ) | |||||
F-28
Table of Contents
INN OF THE MOUNTAIN GODS RESORT AND CASINO AND SUBSIDIARIES
CONSOLIDATING STATEMENT OF CASH FLOWS
CONSOLIDATING STATEMENT OF CASH FLOWS
Fiscal Year Ended April 30, 2009
Guarantor | ||||||||||||||||
IMGRC | Subsidiaries | Eliminations | Consolidated | |||||||||||||
Cash flows from operating activities: |
||||||||||||||||
Net income (loss) |
$ | (856,904 | ) | $ | 19,999,016 | $ | (19,999,016 | ) | $ | (856,904 | ) | |||||
Adjustments to reconcile net income (loss) to net cash
provided by (used in) operating activities: |
||||||||||||||||
Depreciation and amortization |
1,625,244 | 12,136,211 | | 13,761,455 | ||||||||||||
Insurance reimbursement (paid directly to contractor) |
(4,467,324 | ) | | (4,467,324 | ) | |||||||||||
Loss on disposal of fixed assets |
| 293,896 | | 293,896 | ||||||||||||
Changes in assets and liabilities: |
||||||||||||||||
Accounts receivable |
(94,749 | ) | 281,049 | | 186,300 | |||||||||||
Inventories |
31,824 | 218,698 | | 250,522 | ||||||||||||
Prepaid expenses |
233,036 | 173,350 | | 406,386 | ||||||||||||
Other long term assets |
(161,000 | ) | 50,000 | | (111,000 | ) | ||||||||||
Accounts payable |
29,050 | | | 29,050 | ||||||||||||
Accrued expenses, payroll and benefits |
(820,793 | ) | 66,308 | | (754,485 | ) | ||||||||||
Deposits and advance payments |
| (9,653 | ) | | (9,653 | ) | ||||||||||
Net cash provided by (used in) operating activities |
(4,481,616 | ) | 33,208,875 | (19,999,016 | ) | 8,728,243 | ||||||||||
Cash flows from investing activities: |
||||||||||||||||
Purchase of property, plant and equipment |
| (4,536,436 | ) | | (4,536,436 | ) | ||||||||||
Investment in subsidiaries |
(19,999,016 | ) | | 19,999,016 | | |||||||||||
Net cash used by investing activities |
(19,999,016 | ) | (4,536,436 | ) | 19,999,016 | (4,536,436 | ) | |||||||||
Cash flows from financing activities: |
||||||||||||||||
Advances to (from) affiliates |
29,271,215 | (29,271,215 | ) | | | |||||||||||
Principal payments on debt |
(3,349,764 | ) | (256,401 | ) | | (3,606,165 | ) | |||||||||
Distributions to Mescalero Apache Tribe |
(8,004,000 | ) | | | (8,004,000 | ) | ||||||||||
Net cash provided by (used in) financing activities |
17,917,451 | (29,527,616 | ) | | (11,610,165 | ) | ||||||||||
Net decrease in cash and cash equivalents |
(6,563,181 | ) | (855,177 | ) | | (7,418,358 | ) | |||||||||
Cash and cash equivalents, beginning of period |
11,083,394 | 3,891,699 | | 14,975,093 | ||||||||||||
Cash and cash equivalents, end of period |
$ | 4,520,213 | $ | 3,036,522 | $ | | $ | 7,556,735 | ||||||||
F-29
Table of Contents
INDEX TO EXHIBITS
Exhibit No. | Description | |
3.1*
|
Mescalero Apache Tribe Resolutions 03-05, 03-28 and 03-29 establishing and governing the Inn of the Mountain Gods Resort and Casino adopted and approved April 2, 2003, June 15, 2003 and June 15, 2003, respectively. | |
3.2*
|
Charter of the Management Board of IMG Resort and Casino. | |
4.1*
|
Indenture, dated as of November 3, 2003, among the Mescalero Apache Tribe, Inn of the Mountain Gods Resort and Casino, Casino Apache, Inn of the Mountain Gods, Casino Apache Travel Center, Ski Apache and U.S. Bank National Association, as Trustee, relating to the 12% Senior Notes due 2010 of the Inn of the Mountain Gods Resort and Casino. | |
4.2*
|
Form of 12% Senior Note Due 2010 of the Inn of the Mountain Gods Resort and Casino. | |
4.3*
|
Registration Rights Agreement, dated as of November 3, 2003, among the Mescalero Apache Tribe, Inn of the Mountain Gods Resort and Casino, Casino Apache, Inn of the Mountain Gods, Casino Apache Travel Center, Ski Apache and Citigroup Global Markets Inc, as the Initial Purchaser. | |
10.1*
|
2001 Compact between the Mescalero Apache Tribe and the State of New Mexico, entered into June 1, 2004. | |
10.3*
|
Second Amended Design/Build Construction Contract, by and among Inn of the Mountain Gods Resort and Casino, Centex/Worth Group, LLC, as Design/Builder, and Rider Hunt Levett & Bailey, as Construction Manager, dated as of September 6, 2003, and Change Order No. 9 thereto, dated October 24, 2003. | |
10.4*
|
Cash Collateral and Disbursement Agreement, dated as of November 3, 2003, among Inn of the Mountain Gods Resort and Casino, Casino Apache, Inn of the Mountain Gods, Casino Apache Travel Center, Ski Apache, U.S. Bank National Association, as Disbursement Agent, Professional Associates Construction Services, Inc., as Independent Construction Consultant and U.S. Bank National Association, as Trustee. | |
10.5*
|
Ski Apache Special Use Permit received from the United States Department of Agriculture, Forest Service dated April 23, 1985. | |
10.6 ***
|
Amended and restated management agreement among the Inn of the Mountain Gods Resort and Casino, Casino Apache Travel Center, Ski Apache and WG-IMG, LLC, dated January 6, 2010. | |
12.1
|
Statement of Calculation of Ratio of Earnings to Fixed Charges (filed herewith). | |
14.1**
|
Code of Business Conduct and Ethics of Inn of the Mountain Gods Resort and Casino. | |
14.2**
|
Code of Ethics for Principal Executive Officer and Senior Financial Officer. | |
21.1*
|
Subsidiaries of the Registrant. | |
24.1
|
Power of Attorney of Officers and Management Board Members of Inn of the Mountain Gods Resort and Casino (set forth on the signature page of this Report). | |
31.1
|
Certification of Principal Executive Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (filed herewith). |
47
Table of Contents
Exhibit No. | Description | |
31.2
|
Certification of Interim-Principal Financial Officer Pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (filed herewith). | |
32.1
|
Certification of Principal Executive Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (filed herewith). | |
32.2
|
Certification of Interim-Principal Financial Officer Pursuant to Section 906 of the Sarbanes-Oxley Act of 2002 (filed herewith). |
* | Incorporated by reference to IMG Resort and Casinos Registration Statement on Form S-4 filed with the SEC on February 27, 2004 (SEC File No. 333-113140). | |
** | Incorporated by reference to IMG Resort and Casinos Annual Report on Form 10-K filed with the SEC on July 29, 2004. | |
*** | Incorporated by reference to IMG Resort and Casinos Quarterly Report on Form 10-Q filed with the SEC on February 16, 2010. |
48