EXHIBIT 10.4
LICENSE AGREEMENT
This LICENSE AGREEMENT (the "Agreement"), dated as of this 29th day of July,
1997, is by and between CASINO AMERICA, INC., a Delaware corporation
("Licensor"), and ISLE OF CAPRI BLACK HAWK L.L.C., a Colorado limited liability
company ("Licensee") and is effective as of the Closing Date, as defined in the
Amended and Restated Operating Agreement of the Licensee of even date.
Whereas, Licensor and Licensee are parties to an Amended and Restated
Management Agreement of even date (the "Management Agreement"), pursuant to
which Licensor will manage the business operations on the Casino Facility;
Whereas, Licensee desires to use the name "Isle of Capri" as part of its
company name and to use such name and the other trade or service marks set forth
on Exhibit A hereto or such other names or trade or service marks used in
connection with other Isle of Capri casinos or hotel facilities (each, a "Xxxx,"
collectively, the "Marks") in connection with the operation of the Casino
Facility;
Whereas, Licensor is willing to license the use of the Marks, subject to
the terms and limitations contained herein.
NOW, THEREFORE, in consideration of the payment of $2.00 to Licensor by
Licensee, the receipt and sufficiency of which are hereby acknowledged, and in
consideration of the mutual promises and covenants herein contained, Licensor
and Licensee agree as follows:
1. Except as otherwise provided herein, all capital terms shall have the
respective meanings ascribed to them in the Management Agreement.
2. Licensee hereby acknowledges that Licensor is the sole owner of all
right, title and interest in and to the Marks as used in connection with the
operation of the Casino Facility, and that Licensee's rights to use the Marks
derive solely from and are limited to this Agreement.
3. Licensor hereby grants to Licensee the non-exclusive license to use
the Marks solely in connection with the operation of the Casino Facility.
Licensee agrees not to use the Marks in any other business. Licensee's rights
hereunder shall extend only to operations in the city of Blackhawk, Colorado and
to the promotion and marketing of Licensee's gaming activities in a manner
generally consistent with the marketing and promotional activities of Licensor
and its Affiliates. All use of the Marks shall inure to the benefit of
Licensor. Licensor agrees that during the term of this Agreement, it shall,
upon request of Licensee, promptly license to Licensee any of its service marks
or trade names that Licensor has the rights to license, whether existing as of
the date of this Agreement or acquired subsequently, which are, or become used
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in connection with any gaming facility of the Company or its Affiliates
operating under the Marks, on the terms and conditions set forth herein, and,
upon request of Licensee, shall amend Exhibit A accordingly.
4. Licensor or its authorized representatives shall have the right to
inspect the services provided by Licensee in connection with the Marks, at any
reasonable time with prior notice to Licensee. If Licensor reasonably determines
that Licensee has directly caused any aspect of such services, or licensee's use
of the Marks, in connection with the promotion, marketing or provision of the
services, to be used in a manner that is not reasonably consistent with the
Licensor's use thereof so as to cause material noncompliance with Licensor's
quality standards or Licensor's requirements regarding the appearance of the
Marks, and such noncompliance was not caused by Licensor, then Licensor shall
notify Licensee in writing specifying such deficiencies. If Licensee fails to
correct all such deficiency to Licensor's reasonable satisfaction within a
reasonable time, but not more than 10 days from receipt of notice of such
deficiencies, than Licensor may provide Licensee notice for breach or
nonperformance as provided in paragraph 8.
5. Licensee agrees to display and use the Marks only in a manner (i)
reasonably consistent with the use of the Marks by Licensor or other licensees
of Licensor, and (ii) which does not unreasonably diminish the value of the
Marks. If Licensee desires to use the Marks in a manner not reasonably
consistent with the use by Licensor or other licenses of Licensor. Licensee
shall first submit such change to Licensor for its approval.
6. Licensee will not register or attempt to register any of the Marks
as any part of its own name or marks, and will cooperated as reasonably
requested by Licensor in connection with any registration by Licensor of any of
the Marks. Licensee will promptly inform Licensor of any infringement of any of
the marks or of any protest by others to Licensee concerning its use of any
Xxxx, in each case, to the best of its knowledge, and will cooperate with
Licensor in all reasonable respects in connection with any litigation,
administrative proceedings or protests which Licensor deems reasonably
desirable in connection with the protection of or maintenance of rights to make
decisions concerning the initiation, defense, compromise or settlement of any
action involving any Xxxx; provided, however, that Licensee will be fully
indemnified and held harmless for complying with this sentence.
7. If Licensor shall not assign or transfer any of its right, title or
interest in any of the Marks to any party, unless such assignment or transfer is
subject to the terms hereof or such party enters into an agreement to licenses
such Xxxx or Marks to Licensee on terms and conditions identical to those
provided herein.
8. Licensor should determine that Licensee has caused a material breach
of this Agreement, then Licensor shall so inform Licensee in writing, whereupon
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Licensee shall have thirty (30) days within which to cure said breach and
deficiency. If Licensee does not cure said breach and deficiency within that
time to the satisfaction of Licensor, its right to use the Marks shall forthwith
terminate notwithstanding the terms of this license.
9. If Licensee files a petition in bankruptcy or is adjudicated a
bankrupt, if a petition in bankruptcy is filed against Licensee and such
petition is not stayed within sixty (60) days of filing, if it becomes insolvent
or makes an assignment for the benefit of creditors or any arrangements pursuant
to any bankruptcy law, if Licensee discontinues its business or a receiver is
appointed for it or its business, the license granted hereunder shall terminate,
and all use of the Marks shall cease.
10. Unless earlier terminated pursuant to the preceding two sections,
Licensee's license to use the Marks hereunder shall automatically terminate upon
termination of the Management Agreement for any reason; provided, however, that
in the event there is an Event of Default (as defined in the Indenture) and the
Trustee for the Indenture initiates a foreclosure action against the Note
Collateral (as defined in the Indenture), Licensee may continue to use the
Marks, subject to the terms of this License, for a period of six months
following any termination of the Management Agreement.
11. Upon termination of Licensee's rights to use the Marks for any reason
hereunder, Licensee shall immediately take reasonable steps to effect a change
of its trade marks, service marks, trade names, company name and assumed names
so as to remove any of the Marks or any confusing similar xxxx or terms.
12. Licensee may not assign, sublicense or otherwise transfer any of its
rights under the Agreement to any third party without the prior written consent
of Licensor. Subject to the other terms herein, this Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
assigns. Notwithstanding the foregoing, (i) Licensee may assign its interest
herein to the Trustee, and (ii) any successor or assign of Licensor shall enter
into a Consent to Assignment of License, substantially in the form of that
Consent to Assignment of License entered into by Licensor for the benefit of
Trustee.
13. Every notice, demand, consent, approval or other document or
instrument required or permitted to be served upon any of the parties hereto
shall be in writing and shall be deemed to have been duly served on the day of
mailing, and shall be sent by registered or certified United States Mail,
postage prepaid, return receipt requested, addressed to the respective parties
at the address stated below:
If to Licensor: Xxxx X. Xxxxxxxx, President
or his designee
000 Xxxxxxxxxx Xxxx
0
Xxxxxx, XX 00000
With copies thereof to the following:
Xxxxx X. Xxxxxxx, Esq.
0000 Xxxxxxxxx Xxxx. XX
Xxxxx 000
Xxxx Xxxxx, XX 00000
If to Licensee: Isle of Capri Black Hawk L.L.C.
000 Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxx
With copies thereto to the following:
H. Xxxxxx Xxxx, President, or his designee,
Nevada Gold and Casinos, Inc.
0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
or to such other address as either Licensor or Licensee may have specified in a
notice duly given as required herein to the other.
14. This Agreement shall be governed by and construed in accordance with
laws of the State of Colorado. If any of the terms and provisions hereof shall
be held invalid or unenforceable for any reason, such validly or
unenforceability shall in no event affect any of the terms or provisions hereof,
all such other terms and provisions to be held valid and enforceable to the
fullest extent permitted by law.
15. This Agreement sets forth the entire and only agreement or
understanding between Licensee and Licensor relating to the subject matter
hereof and supersedes and cancels all previous agreements, negotiations,
commitments and representations in respect hereof among them. This Agreement may
not be amended in any respect except by an instrument in writing signed by
Licensee and Licensor.
16. For the convenience of the parties hereto, this Agreement may be
executed in several original counterparts, each of which shall be deemed an
original for all purposes and all such counterparts shall constitute but one and
the same agreement.
IN WITNESS WHEREOF, the parties, hereto have duly executed and delivered this
Agreement as of the date and year first above written.
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By: /s/ Xxxxx X. Xxxxxxx By: Casino America of Colorado, Inc.,
------------------------ Member
Its:
------------------------
By: /s/ Xxxxx X. Xxxxxxx
------------------------
Title:
----------------------
Blackhawk Gold, Ltd., Member
By: /s/ H. Xxxxxx Xxxx
------------------------
Title: President
---------------------
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