EXHIBIT 4.9
COLLATERAL ASSIGNMENT
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THIS COLLATERAL ASSIGNMENT (as amended, supplemented or otherwise modified
from time to time, this "ASSIGNMENT") is made as of August 20, 1997, 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"), in favor of IBJ
XXXXXXXX BANK AND TRUST COMPANY, a New York banking corporation, as trustee (the
"TRUSTEE") for the benefit of itself and the holders of the Notes (as defined
below).
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 the Issuers and the Trustee, the Issuers shall
issue $75,000,000 principal amount of 13% First Mortgage Notes due 2004 With
Contingent Interest (the "Original Notes," and together with any New Notes
issued in exchange therefor, the "NOTES"). Capitalized terms used herein
without definition shall have the meanings assigned to such terms in the
Indenture.
B. PURPOSE. In order to induce the holders of the Notes to enter into
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the transactions contemplated by the Indenture, the parties have entered into
this Assignment to evidence each Issuer's collateral assignment for security of
certain contracts and documents related to the design, construction and
operation of the Capri-Black Hawk.
AGREEMENT
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NOW, THEREFORE, in consideration of the foregoing premises and in order to
induce the holders of the Notes to purchase the Notes, the Issuers agree as
follows:
1. ASSIGNMENT. As security for the due and punctual payment and
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performance of all indebtedness and obligations of the Issuers, now or hereafter
due under the Indenture, the Notes or any Collateral Documents, whether or not
arising after the commencement of a proceeding under Bankruptcy Law (including
post-petition interest) and whether or not recovery of any such obligation or
liability may be barred by a statute of limitations or prescriptive period or
such obligation or liability may otherwise be unenforceable (collectively, the
"OBLIGATIONS"), each Issuer hereby assigns and transfers to the Trustee and
hereby grants to the Trustee a security interest in all of such Issuer's right,
title and interest, to the extent assignable and transferable, whether now
existing or hereafter arising and whether now owned or hereafter acquired, where
ever located, in and to (a) all contracts, including, without limitation,
construction contracts and architectural design, engineering and development
contracts and agreements, subcontracts, service agreements, supply agreements
and other such contracts and agreements between the Issuers, or either of them,
and other persons, and all amendments, modifications, additions and changes
thereto, related to the Isle-Black Hawk, (b) all 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 all amendments, modifications, supplements, general conditions,
addenda, additions and changes thereto, related to the Isle-Black Hawk, (c) the
Management Agreement and the License Agreement, dated as of July 29, 1997,
between Casino America, Inc. and the Company, (d) all other contracts,
agreements, documents and instruments now existing or hereafter arising related
to the Isle-Black Hawk, including, without limitation, any and all construction,
architectural and engineering contracts, plans and specifications, drawings, and
surveys, bonds, permits, licenses and other governmental approvals and all other
Plans (collectively, the "CONTRACTS AND DOCUMENTS"), and (e) all proceeds of the
foregoing, including (i) whatever is now or hereafter receivable or received
upon the sale, exchange, collection or other disposition of any of the Contracts
and Documents, whether voluntary or involuntary, (ii) any such items which are
now or hereafter acquired with any proceeds of Contracts and Documents, and
(iii) any insurance or payments under any indemnity, warranty or guaranty now or
hereafter payable by reason of loss or damage or otherwise with respect to any
Contracts and Documents or any proceeds thereof. Notwithstanding the foregoing,
the Contracts and Documents shall not include any license, permit or other
approval of or by any Governmental Authority to the extent that, under the terms
and conditions of such approval or under applicable law, it cannot be subjected
to a Lien in favor of the Trustee without the approval of the relevant
Governmental Authority, to the extent that such approval has not been obtained
(collectively, the "EXCLUDED ASSETS"); provided, further, that (i) any such
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Excluded Asset now or hereafter acquired by either Issuer shall automatically
become part of the Contracts and Documents when and to the extent it may
subsequently be made subject to such a lien and/or such approval has been
obtained and (ii) proceeds of any Excluded Assets shall nevertheless be subject
to the assignment hereunder. The Contracts and Documents include, without
limitation, those certain contracts and agreements described in Exhibit "A"
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attached hereto.
2. RIGHTS OF THE ISSUERS. This Assignment is an absolute assignment for
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security purposes only. Accordingly, notwithstanding anything to the contrary
set forth herein, each Issuer is hereby granted a license and shall retain all
rights with respect to the Contracts and Documents, including without
limitation, the right to enforce all rights of such Issuer thereunder, except
during a period when an "Event of Default" (as such term is defined in the
Indenture) has occurred and is continuing.
3. REPRESENTATIONS AND WARRANTIES OF THE ISSUERS. As of the date hereof,
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each Issuer represents and warrants to the Trustee (a) that it has not assigned
or granted a security interest in any of the Contracts and Documents or the
proceeds thereof to anyone other than the Trustee, and (b) that it is not in
material default and that no event has occurred that with notice or lapse of
time or both would constitute a default by such Issuer, or to its knowledge any
other party, under any of the material Contracts and Documents; provided that it
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is expressly agreed that each of the Contracts and Documents described in
Exhibit "A" is material.
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4. COVENANTS OF THE ISSUERS. Each Issuer covenants and agrees in favor
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of the Trustee (a) that it will not further assign, encumber or suffer the
assignment or encumbrance of any of the Contracts and Documents or the proceeds
thereof without the prior written consent of the Trustee pursuant to or as
expressly permitted under the Indenture, (b) that it will comply with Section
6.17 of the Security Agreement dated as of the date hereof, by the Issuers in
favor
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of Trustee that it will not modify, amend, supplement or in any way join in the
release or discharge of any obligations or rights of such Issuer under any of
the Contracts and Documents to which it is a party in any material way that is
adverse to the holders of the Notes, in the case of Contracts and Documents the
amendment of which are governed by the Cash Collateral and Disbursement Agent
(i) such change complies with the terms of the Cash Collateral and Disbursement
Agreement, and (ii) the Independent Construction Consultant under the Cash
Collateral and Disbursement Agreement consents to such change in writing to the
extent provided for in Cash Collateral and Disbursement Agreement, and (c)
except as otherwise expressly provided in the Indenture, that it will not
perform any work pursuant to any change order or directive, unless the same is
issued and executed in accordance with the terms and conditions of the
applicable Contract or Document and the Cash Collateral and Disbursement
Agreement.
5. LIMITATION OF TRUSTEE'S OBLIGATIONS. Nothing in this Assignment shall
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constitute an assumption of any obligation by the Trustee under the Contracts
and Documents. The Issuers shall continue to be liable for all obligations
thereunder and hereby agrees to perform all such obligations, to comply with all
terms and conditions of the Contracts and Documents, and to take such steps as
may be necessary or appropriate to secure performance by all other parties
thereto. The Issuers shall defend, indemnify and hold the Trustee harmless from
and against all losses, costs, liabilities and expenses, including attorneys'
fees, arising from or related to any failure by the Issuers to perform any
obligation of the Issuers under any of the Contracts and Documents, such
indemnity and hold harmless agreement to survive the payment and performance of
the Obligations.
6. CURE BY TRUSTEE. At any time upon and during the continuation of an
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Event of Default, the Trustee shall have the right, but shall have no
obligation, to take all actions that the Trustee may determine to be necessary
or appropriate to cure any default under any of the Contracts and Documents and
to protect the rights of the Issuers or the Trustee thereunder, and may do so in
the Trustee's name, in the name of the Issuers or otherwise. If any such action
taken by the Trustee shall prove to be inadequate or invalid in whole or in
part, the Trustee shall not incur any liability on account thereof, and each
Issuer hereby agrees to defend, indemnify and hold the Trustee harmless from and
against all losses, costs, liabilities and expenses, including reasonable
attorneys' fees, which the Trustee may incur or to which it may become subject
in exercising any of its rights under this Assignment, except for those arising
from the gross negligence or willful misconduct of the Trustee, such indemnity
and hold harmless agreement to survive the payment and performance of the
Obligations.
7. RIGHTS AND REMEDIES. Upon the occurrence of an Event of Default under
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the Indenture, irrespective of whether a notice of default has been given with
respect to such or Event of Default (unless required by the Indenture), and with
or without bringing any action or proceeding, the Trustee may, at its option,
succeed to and proceed to enforce all of the rights, interests and remedies of
the Issuers under the Contracts and Documents, amend, modify, cancel, terminate
or replace the same, reassign the Issuers' right, title and interest therein to
any other person, and exercise any and all other rights of the Issuers under the
Contracts and Documents, either in person or through an agent, receiver or
keeper, without further notice to or consent by the Issuers, and without regard
to the adequacy of security for the Obligations or
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the availability of any other remedies. The exercise of any of the foregoing
rights or remedies shall not cure or waive any Default under the Indenture or
any other Collateral Document, or waive, modify or affect any notice of default
thereunder, or invalidate any act done pursuant to any such notice. In addition
to the rights and remedies of the Trustee as set forth in this Assignment, the
Trustee shall be entitled to the benefit of all other rights and remedies set
forth in the Indenture and the other Collateral Document, at law or in equity.
8. ADDITIONAL INSTRUMENTS. With respect to both existing and future
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Contracts and Documents, the Issuers hereby agree to execute and deliver such
additional assignments and other documents as the Trustee may reasonably request
in order to implement the provisions of this Assignment.
9. MISCELLANEOUS; GOVERNING LAW. This Assignment shall inure to the
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benefit of and be binding upon the parties hereto and their respective heirs,
legal representatives, successors and assigns. In any action or proceeding
arising from or related to this Assignment, the prevailing party shall be
entitled to recover its reasonable costs and attorneys' fees. The reference to
"attorneys' fees" in this Assignment shall include, without limitation, such
reasonable amounts as may then be charged by the Trustee for legal services
furnished by attorneys in the employ of the Trustee, at rates not exceeding such
reasonable rates that would be charged by outside attorneys for comparable
services. This Assignment shall be governed by the laws of the State of New
York, except to the extent that perfection and enforcement of the security
interests and assignment hereunder are governed by the laws of another
jurisdiction.
10. GAMING LAWS AND REGULATIONS. Each Issuer acknowledges that, to the
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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 Gaming Act and the regulations promulgated pursuant to each
such law, all as amended from time to time. The parties hereto further
acknowledge that the Gaming License held by the Issuers is not part of the
collateral of this Assignment and that, under the above described legislation
and rules promulgated thereunder, the Trustee may be precluded from or otherwise
limited in taking possession of or in selling the collateral of this Assignment
under the Defaults and Remedies provisions of this Assignment. The parties
hereto also acknowledge that due to various legal restrictions, including,
without limitation, licensing of operators of gaming facilities and prior
approval of the sale or disposition of assets of a licensed gaming operation,
the sale of collateral may be denied by Gaming Authorities or delayed pending
approval of Gaming Authorities.
11. SEVERABILITY. If any provision or obligation of this Assignment
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should be found to be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions and
obligations or any other agreement executed in connection herewith, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby and shall nonetheless remain in full force and
effect to the maximum extent permitted by law.
12. CONFLICTS WITH INDENTURE. Notwithstanding any other provision of this
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Assignment, the terms and provisions of this Assignment shall be subject and
subordinate to the terms of the Indenture. To the extent that the Indenture
provides the Issuers with a particular
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cure or notice period, or establishes any limitations or conditions on Trustee's
actions with regard to a particular set of facts, the Issuers shall be entitled
to the same cure periods and notice periods, and Trustee shall be subject to the
same limitations and conditions in place of the cure periods, notice periods,
limitations and conditions provided for under the Indenture; provided, however,
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that such cure periods, notice periods, limitations and conditions shall not be
cumulative as between the Indenture and this Assignment. In the event of any
conflict or provisions of this Assignment and those of the Indenture, including
without limitation, any conflicts or inconsistencies in any definitions herein
or therein, the provisions or definitions of the Indenture shall govern.
Capitalized terms used herein and not otherwise defined shall have the same
meaning as in the Indenture.
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IN WITNESS WHEREOF, the Issuers have executed this Collateral Assignment as
of the date first above written.
ISSUERS:
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ISLE OF CAPRI BLACK HAWK L.L.C., a Colorado
limited liability company
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Secretary
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By: /s/ H. Xxxxxx Xxxx
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Name: H. Xxxxxx Xxxx
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Title: Vice President
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ISLE OF CAPRI BLACK HAWK CAPITAL CORP., a Colorado
corporation
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
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Title: Secretary
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ACKNOWLEDGED AND AGREED
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IBJ XXXXXXXX BANK AND TRUST COMPANY,
a New York banking corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title: Vice President
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COLLATERAL ASSIGNMENT
EXHIBIT "A"
CONTRACTS AND DOCUMENTS
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1. License Agreement dated July 29, 1997 between Casino America, Inc. and the
Company.
2. Subdivision Agreement to be entered into between the City of Black Hawk and
the Company.
3. Design/Build Agreement dated July 22, 1997 between Xxxxxxxx Construction,
Inc. and the Company.
4. Amended and Restated Management Agreement between Casino America, Inc. and
the Company.
A-1
