EXHIBIT 4.11
CONSENT TO ASSIGNMENT OF
CONSTRUCTION AGREEMENT
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THIS CONSENT TO ASSIGNMENT OF CONSTRUCTION AGREEMENT (as amended,
supplemented or otherwise modified from time to time, this "CONSENT") is made as
of August 20, 1997, by XXXXXXXX CONSTRUCTION, INC. a Colorado corporation (the
"CONTRACTING PARTY"), whose address is 0000 X. Xxxxxxxx Xxxxxx, Xxxxxx Xxxxxxxx
00000 for the benefit of IBJ XXXXXXXX BANK AND TRUST COMPANY, a New York banking
association, as trustee (the "TRUSTEE") for the benefit of itself and the
holders of the Notes (as defined below), whose address is Xxx Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000.
RECITALS
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A. NOTES. Pursuant to that certain Indenture dated as of August 20, 1997
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(as amended, supplemented or otherwise modified from time to time, the
"INDENTURE"), by and between Isle of Capri Black Hawk L.L.C., a Colorado limited
liability company (the "COMPANY"), Isle of Capri Black Hawk Capital Corp., a
Colorado corporation ("CAPITAL CORP" and, together with the Company, the
"Issuers"), as co-issuers, and Trustee, the Issuers shall issue $75,000,000
principal amount of its 13% First Mortgage Notes due 2004 With Contingent
Interest (the "Original Notes," and together with any New Notes issued in
exchange therefor, the "NOTES"), to finance the design, construction and
operation of the Isle Black Hawk. All defined terms used herein and not
otherwise defined, shall have the meanings set forth in the Indenture.
B. PURPOSE. Contracting Party and the Company are parties to that
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certain Design-Build Agreement dated July 22, 1997 (as amended, supplemented or
otherwise modified from time to time, the "CONTRACT"), relating to the
construction or operation of Isle of Capri-Black Hawk. In order to induce the
holders of the Notes to enter into the transactions contemplated by the
Indenture, the Company has executed a Collateral Assignment collaterally
assigning all of the Company's right, title and interest in and to, among other
things, the Contract (as amended, supplemented or otherwise modified from time
to time, the "COLLATERAL ASSIGNMENT"), dated of even date with the Indenture, in
favor of Trustee, in order to secure the obligations of the Company under, among
other documents, the Notes, the Indenture and the Collateral Documents
(collectively, the "OBLIGATIONS"), and Contracting Party consents to such
assignment.
CONSENT
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NOW THEREFORE, for good and valuable consideration, receipt of which
is hereby acknowledged, Contracting Party agrees as follows:
1. CONSENT TO ASSIGNMENT. Pursuant to the Contract, Contracting
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Party has performed or supplied, or agreed to perform or supply, certain
services, materials or documents
in connection with Isle-Black Hawk. Contracting Party hereby consents to the
assignment of the Contract by the Company to Trustee as provided in the
Collateral Assignment and this Consent.
2. COMPANY'S DEFAULT UNDER CONTRACT. If the Company defaults under
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the Contract, before exercising any remedy, Contracting Party shall deliver to
Trustee at its address set forth above, with a copy to the Independent
Construction Consultant, at 0000 Xxxxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000
(or such other address provided thereby in writing to the Company), by
registered or certified mail, postage prepaid, return receipt requested, written
notice of such default, specifying the nature of the default and the steps
necessary to cure the same, and clearly marked as a notice of default pursuant
to Paragraph 2 of this Agreement. If the Company fails to cure the default
within the time permitted under the Contract, then Trustee shall have an
additional thirty (30) days after the expiration of the time permitted under the
Contract (but in no event less than an additional thirty (30) days after the
receipt by Trustee of said notice from Contracting Party) within which Trustee
shall have the right, but not the obligation, to cure such default; provided,
however, that, with respect to payment defaults only, Trustee shall have thirty
(30) days from receipt of notice of such default within which Trustee shall have
the right, but not the obligation, to cure such default. Contracting Party's
delivery of such a notice of default to Trustee and the failure to cure the same
within the said additional period shall be conditions precedent to the exercise
of any right or remedy of Contracting Party arising by reason of such default,
except that Contracting Party shall not be required to continue performance
under the Contract for the said additional period, unless and until Trustee
agrees to and shall pay Contracting Party for that portion of the work, labor
and materials rendered during the said period; provided that if Trustee elects
to continue performance under the Contract for the said additional period,
Trustee shall have all the rights and obligation of the Company under the
Contract.
3. CERTIFICATE OF DEFAULT STATUS. Upon the written request of
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Trustee at any time and from time to time, Contracting Party shall furnish to
Trustee, within five (5) days of receipt of such request, a certificate stating
whether, as of such request receipt date, the Company is in default on the
Contract, and if so, the nature of the default and the steps necessary to cure
the same. Such certificate shall not constitute a written notice of default
pursuant to Paragraph 2 hereof unless clearly marked as such.
4. COMPANY'S DEFAULT UNDER OBLIGATIONS. If Trustee gives written
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notice to Contracting Party that the Company has defaulted under the Obligations
and requests that Contracting Party continue its performance under the Contract,
Contracting Party shall thereafter perform for Trustee under the Contract in
accordance with its terms, so long as Contracting Party shall be paid pursuant
to the Contract for all work, labor and materials rendered or supplied
thereunder, including payment of any sums due to Contracting Party for work
performed or materials supplied up to and including the date of the Company's
default and the Trustee otherwise performs the obligations of the Company under
the Contract.
5. PERFORMANCE FOR TRUSTEE. If Trustee (a) cures any default by the
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Company pursuant to Paragraph 2 above, (b) gives written notice to Contracting
Party that the Company has defaulted under the Obligations pursuant to Paragraph
4 above, (c) becomes the owner of Isle-Black Hawk, (d) undertakes to complete
the construction of Isle-Black Hawk
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pursuant to its rights under the Collateral Documents, or (e) following a
Default or an Event of Default under the Indenture or the Cash Collateral and
Disbursement Agreement, otherwise requires the performance of Contracting
Party's obligations under the Contract or the use of any plans, specifications,
engineering reports, soil and environmental reports, site plans, surveys,
working drawings, shop drawings, other reports, drawings and plans and other
such documents, and any amendments, modifications, supplements, general
conditions, addenda, additions and changes thereto, previously prepared or
provided by Contracting Party pursuant to the Contract (collectively, "PLANS"),
then in any such event, so long as Contracting Party has received and continues
to receive the compensation required under the Contract related thereto, Trustee
shall have the right to obtain performance from Contracting Party of all of its
obligations under the Contract, and to use all Plans, and the ideas, designs and
concepts contained therein, in connection with the completion of Isle-Black
Hawk, without the payment of any additional fees or charges to Contracting
Party; provided that if the Trustee elects to obtain performance from
Contracting Party of all such obligations, Trustee shall perform the obligations
of the Company under the Contract.
6. AMENDMENTS AND CHANGE ORDERS. Contracting Party agrees that it
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will not modify, amend, supplement or in any way join in the release or
discharge of Contracting Party's obligations under the Contract, without the
prior written consent of the Independent Construction Consultant (which consent
shall be granted in accordance with the Cash Collateral and Disbursement
Agreement), if such modification, amendment or supplement (i) results in a cost
increase in excess of Twenty-Five Thousand Dollars ($25,000), (ii) results in a
material lessening of the scope or quality of the work constituting the design
or construction of the Isle-Black Hawk, the value of which is in excess of
Twenty-Five Thousand Dollars ($25,000), or (iii) results in the likely addition
of no less than one week of construction.
7. LIST OF SUBCONTRACTING PARTIES. Upon the written request of
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Trustee at any time and from time to time, Contracting Party shall furnish to
Trustee a current list of all persons with whom Contracting Party has entered
into subcontracts or other agreements related to the rendering of work, labor or
materials under the Contract, together with a statement as to the status of each
such subcontract or agreement, and the respective amounts, if any, owed by
Contracting Party related thereto.
8. REPRESENTATIONS AND WARRANTIES. Contracting Party represents and
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warrants to Trustee that (a) it is duly licensed to conduct its business in the
jurisdiction contemplated by the Contract, and will at all times maintain its
license in full force and effect throughout the term thereof, (b) the Contract
has not been amended, modified or supplemented, (c) the Contract constitutes a
valid and binding obligation of Contracting Party and is enforceable in
accordance with its terms, (d) there have been no prior assignments of the
Contract, and (e) all covenants, conditions and agreements of the Company and
Contracting Party contained in the Contract have been performed as required
therein, except for those that are not due to be performed until after the date
hereof.
9. APPLICATION OF FUNDS. Nothing herein imposes or shall be
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construed to impose upon Trustee any duty to direct the application of any
proceeds of the Notes, and
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Contracting Party acknowledges that Trustee is not obligated to Contracting
Party or any of its subcontracting parties, materialmen, suppliers or laborers.
10. ACKNOWLEDGMENT OF ACCOMMODATION. Contracting Party is executing
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this consent as an accommodation to the purchasers of the Notes to purchase the
Notes.
11. GAMING LAWS AND REGULATIONS. Contracting Party acknowledges
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that, to the extent required under applicable law, the consummation of the
transactions contemplated hereby and the exercise of remedies hereunder may be
subject to the Colorado Limited Game Act, and the regulations promulgated
pursuant to each such law, all as amended from time to time.
12. IRREVOCABILITY. The provisions hereof shall be irrevocable and
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remain in full force and effect until the Company has fully paid and performed
all of the Obligations.
13. NOTICES. Except for notices sent pursuant to Paragraph 2 above,
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any notices to Trustee hereunder shall be sent to its address set forth above,
by U.S. Mail, postage prepaid.
14. GOVERNING LAW. This Consent shall be governed by the laws of the
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State of New York.
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IN WITNESS WHEREOF, Contracting Party has executed this Consent to
Assignment of Construction Agreement as of the date first above written.
CONTRACTING PARTY:
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XXXXXXXX CONSTRUCTION, INC.,
By: /s/ Xx Xxxxxxxx
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Name: XX XXXXXXXX
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Title: PRESIDENT
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