EXHIBIT 4.19
COMPLETION CAPITAL COMMITMENT
COMPLETION CAPITAL COMMITMENT (the "Commitment") dated as of August 20,
1997, by Casino America, Inc., a Delaware corporation (the "Obligor"), in favor
of IBJ Xxxxxxxx Bank & Trust Company, as trustee (the "Trustee"), for the
benefit of itself and the holders (the "Holders") of the Notes (as defined
below).
RECITALS
A. First Mortgage Notes. Pursuant to an Indenture (as amended,
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supplemented or otherwise modified from time to time, the "Indenture") dated as
of August 20, 1997, among 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"), and the Trustee, the Issuers have issued $75,000,000 in aggregate
principal amount of 13% First Mortgage Notes due 2004 With Contingent Interest
(the "Notes").
B. Proceeds of the Notes. The Company will use the proceeds of the Notes
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for the development, construction, equipping and operation of the Isle-Black
Hawk (as defined in the Indenture) upon certain real property located in Black
Hawk, Colorado (the "Property") and for certain other purposes described in the
Indenture.
C. Obligor's Benefit. The Obligor's wholly owned subsidiary, Casino
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America of Colorado, Inc., is a member of the Company and, as a result, the
Obligor will significantly benefit from the construction and operation of the
Isle-Black Hawk. The Obligor is making the commitments herein for the benefit
of Casino America of Colorado, Inc.
D. Purpose. As a material inducement to the purchasers of the Notes, the
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Obligor has agreed that it will commit, subject to the limitations set forth
herein, for the benefit of the Company, the Trustee and the Holders, to provide
certain additional funds to the Company upon the terms, conditions and
limitations provided herein, if such additional funds are necessary to complete
construction and commence operations of the Isle-Black Hawk as provided herein.
E. Definitions. Capitalized terms not otherwise defined herein shall
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have the meanings ascribed to such terms in the Indenture.
AGREEMENT
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Obligor hereby agrees as
follows:
1. FUNDING AMOUNTS. Upon the occurrence of each Contribution Event (as
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defined below), the Obligor shall pay, without demand, the Funding Amounts (as
defined below) into the Construction Disbursement Account. The Funding Amounts
shall be equal to the amount in immediately available cash determined by the
Trustee, based upon the Construction Disbursement Budget, to be reasonably
necessary to cause a Contribution Event to no longer
exist; provided, however, that in no event shall the aggregate amount of the
Funding Amounts paid pursuant hereto exceed $5,000,000; provided, further, that
for purposes of Section 2(iv) below, the Funding Amounts shall be equal to the
difference between $5,000,000 and the Funding Amounts, if any, previously paid
under Sections 2(i), 2(ii), 2(iii), 2(v) or 2(vi) below; and provided, further,
that for purposes of Section 2(v) and 2(vi) below, the Funding Amounts shall be
equal to the difference between $5,000,000 and the Funding Amounts, if any,
previously paid under Sections 2(i), 2(ii), 2(iii), and 2(iv) below. Such
proceeds shall be used for the development, construction, equipping and
operations of the Isle-Black Hawk pursuant to the terms of the Indenture, the
Cash Collateral and Disbursement Agreement and other Collateral Documents.
2. CONTRIBUTION EVENT. A "Contribution Event" means (i) there are
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insufficient Available Funds (as defined in the Cash Collateral and Disbursement
Agreement) to complete the development, construction and equipping of the Isle-
Black Hawk so that the Isle-Black Hawk is Operating on or before April 1, 1999,
subject only to Permitted Liens; (ii) the Company, or any of its representatives
or agents, has provided the Trustee with a written notice that it is unlikely
that there shall be sufficient Available Funds to complete the development,
construction and equipping of the Isle-Black Hawk so that the Isle-Black Hawk is
Operating on or before April 1, 1999, subject only to Permitted Liens; (iii) (a)
the Independent Construction Consultant, or any of its representatives or
agents, has provided the Trustee and the Company with a written notice that it
is unlikely that there will be sufficient Available Funds (without giving effect
to the amount of Additional Revenues (as defined in the Cash Collateral and
Disbursement Agreement)), to complete the development, construction and
equipping of the Isle-Black Hawk, so that the Isle-Black Hawk is Operating on or
before April 1, 1999, subject only to Permitted Liens and (b) within ten days of
the Company receiving notice thereof, the Company has not provided evidence
satisfactory to the Trustee that there shall be sufficient Additional Revenues,
together with the other Available Funds, to complete the development,
construction and equipping of the Isle-Black Hawk so that the Isle-Black Hawk is
Operating on or before April 1, 1999, subject only to Permitted Liens; (iv) the
Isle-Black Hawk is not Operating on or before April 1, 1999; (v) the
commencement of any voluntary bankruptcy case by the Company, or (vi) the
commencement of any involuntary bankruptcy case against the Company (a) if such
involuntary case is not dismissed in its entirety by a final, non-appealable
court order within 60 days after the date of the involuntary petition or (b) if
the Company consents to the entry of an order for relief commencing a bankruptcy
case prior to the conclusion of such 60-day period.
3. ALTERATION OF OBLIGATIONS. In such manner, upon such terms and at
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such times as the Trustee deems best, and without notice to the Obligor, the
Trustee, subject to the terms of the Indenture, the Notes and the Collateral
Documents, may alter, compromise, accelerate, extend or change the time or
manner for the development, construction, equipping or operation of the Isle-
Black Hawk (collectively the "Construction Obligations") or payment or
performance with respect to the Indenture, the Notes or the Collateral Documents
(the "Payment Obligations"); release either of the Issuers from any or all of
the Construction Obligations or the Payment Obligations by acceptance of a deed
in lieu of foreclosure or otherwise, as to all or any portion of the
Construction Obligations or the
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Payment Obligations; release, substitute or add any one or more guarantors or
endorsers of the Funding Amounts, the Construction Obligations or the Payment
Obligations; accept additional or substitute security for the Funding Amounts,
the Construction Obligations or the Payment Obligations, or release or
subordinate any security for the Funding Amounts, the Construction Obligations,
or the Payment Obligations. No exercise or non-exercise of any right hereby
given to the Trustee, no dealing by the Trustee hereunder or any other document
with the Obligor or any other guarantors or any other Person, and no change,
impairment or release of all or any portion of the Construction Obligations or
the Payment Obligations or suspension of any right or remedy of the Trustee
against any person, including, without limitation, either of the Issuers or any
other such guarantor, endorser or other person, shall in any way affect any of
the obligations of the Obligor hereunder or any security furnished by the
Obligor or give the Obligor any recourse against the Trustee. If the Trustee has
exculpated or hereafter exculpates either of the Issuers from personal liability
in whole or in part, or has agreed or hereafter agrees to look solely to the
Property encumbered by the Collateral Documents or any other property for the
satisfaction of the Issuers' obligations under the Indenture, the Notes or the
Collateral Documents, such exculpation and agreement shall not affect the
obligations of the Obligor hereunder. The Obligor further acknowledges that any
such exculpation or agreement that has been given or that is hereafter given to
either of the Issuers has been given or is given in reliance upon the covenants
of the Obligor contained herein.
4. WAIVER. The Obligor hereby waives and relinquishes all rights and
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remedies accorded by applicable law to sureties or guarantors and agrees not to
assert or take advantage of any such rights or remedies, including, without
limitation, (a) any right to require the Trustee or the Holders (each a
"Benefitted Party") to proceed against either of the Issuers or any other person
or entity or to proceed against or exhaust any security held by a Benefitted
Party at any time or to pursue any other remedy in the power of a Benefitted
Party before proceeding against the Obligor, (b) the defense of the statute of
limitations in any action hereunder or in any action for the collection or
performance of the Funding Amounts, the Construction Obligations or the Payment
Obligations, (c) any defense that may arise by reason of the incapacity, lack of
authority, death or disability of any other person or the failure of a
Benefitted Party to file or enforce a claim against the estate (in
administration, bankruptcy or any other proceeding) of any other person, (d)
appraisal, valuation, stay, extension, marshaling of assets, redemption,
exemption, demand, presentment, protest and notice of any kind, including,
without limitation, notice of the existence, creation or incurring of any new or
additional indebtedness or obligation or of any action or non-action on the part
of a Benefitted Party, either of the Issuers, any endorser or creditor of either
of the Issuers or the Obligor or on the part of any other person under this or
any other instrument in connection with any obligation or evidence of
indebtedness held by a Benefitted Party as collateral or in connection with the
Funding Amounts, the Construction Obligations or the Payment Obligations, (e)
any defense based upon an election of remedies by a Benefitted Party, including,
without limitation, an election to proceed by non-judicial rather than judicial
foreclosure, which destroys or otherwise impairs the subrogation rights of the
Obligor, the right of the Obligor to proceed against either of the Issuers or
any other person for reimbursement, or both, (f) any defense based upon any
statute or rule of law which provides that the obligation of a surety must be
neither larger in amount nor in other respects more burdensome than that of the
principal, (g) any duty on the part of a Benefitted Party to disclose to the
Obligor any facts a Benefitted Party may now or hereafter know about either of
the Issuers or any other person, regardless of whether a Benefitted Party has
reason to believe that any such
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facts materially increase the risk beyond that which the Obligor intends to
assume, or has reason to believe that such facts are unknown to the Obligor, or
has a reasonable opportunity to communicate such facts to the Obligor, since the
Obligor acknowledges that the Obligor is fully responsible for being and keeping
informed of the financial condition of either of the Issuers or any other person
and of all circumstances bearing on the risk of non-payment of any Funding
Amounts, (h) any defense arising because of the election of a Benefitted Party,
in any proceeding instituted under the Federal Bankruptcy Code, of the
application of Section 1111(b)(2) of the Federal Bankruptcy Code, (i) any
defense based upon any borrowing or grant of a security interest under Section
364 of the Federal Bankruptcy Code, (j) any claim or other rights which it may
now or hereafter acquire against either of the Issuers or any other person that
arises from the existence of performance of the Obligor's obligations under this
Commitment or any Collateral Document, including, without limitation, any right
of subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy by a Benefitted Party against either
of the Issuers or any collateral which a Benefitted Party now has or hereafter
acquires, whether or not such claim, remedy or right arises in equity or under
contract, statute or common law, by any payment made hereunder or otherwise,
including, without limitation, the right to take or receive from either of the
Issuers or any other person or entity, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim or other rights, (k) any rights which it may acquire by way of
contribution under this Commitment or any Collateral Document, by any payment
made hereunder or otherwise, including, without limitation, the right to take or
receive from any other person, directly or indirectly, in cash or other property
or by set-off or in any other manner, payment or security on account of such
contribution rights, and (l) any defense based on one-action laws and any other
anti-deficiency protections granted to guarantors by applicable law. Any
proceeds of a foreclosure or similar sale may be applied first to any
obligations of the Issuers that do not also constitute Funding Amounts, Payment
Obligations or Construction Obligations. Obligor acknowledges and agrees that
any nonrecourse or exculpation provided for in any Collateral Document, or any
other provision of a Collateral Document limiting the Benefitted Parties'
recourse to specific collateral or limiting the Benefitted Parties' right to
enforce a deficiency judgment against the Issuers, shall have absolutely no
application to Obligor's liability under this Commitment. To the extent that the
Trustee collects or receives any sums or payments from the Issuers, the Trustee
shall have the right, but not the obligation, to apply such amounts first to
that portion of the Issuers' indebtedness and obligations, if any, to the
Trustee that is not covered by this Commitment, regardless of the manner in
which any such payments and/or amounts are characterized by the person making
payment.
5. EQUITY CONTRIBUTION. The Obligor may contribute, at its option, the
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Funding Amounts to the Company through the contribution of such amounts to
Casino America of Colorado, Inc. solely for the purchase by Casino America of
Colorado, Inc. of additional Ownership Interests (as defined in that certain
Amended and Restated Operating Agreement dated July 29, 1997) in the Company.
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6. BANKRUPTCY.
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6.1 So long as any of the Funding Amounts is owed hereunder, the
Obligor shall not, without the prior written consent of the Trustee, commence,
or join with any other person in commencing, any bankruptcy, reorganization, or
insolvency proceeding against the Company. The obligations of the Obligor under
this Commitment shall not be altered, limited or affected by or as a result of
any action taken by the Company in any proceeding, voluntary or involuntary,
involving the bankruptcy, reorganization, insolvency, receivership, liquidation
or arrangement of the Company, or by any defense which the Company may have by
reason of any order, decrees or decision of any court or administrative body
resulting from any such proceeding.
6.2 The Obligor shall file, in any bankruptcy or other proceeding in
which the filing of claims is required or permitted by law, all claims which the
Obligor may have against the Company relating to any indebtedness of the Company
to the Obligor, and hereby assigns to the Trustee all rights of the Obligor
thereunder. The Obligor shall timely notify the Trustee of any deadlines for
filing such claim. If the Obligor does not file any such claim, the Trustee, as
attorney-in-fact for the Obligor, is hereby authorized to do so in the name of
the Obligor or, in the Trustee's discretion, to assign the claim to a nominee
and to cause proofs of claim to be filed in the name of the Trustee's nominee.
The foregoing power of attorney is coupled with an interest and cannot be
revoked. The Trustee or its nominee shall have the sole right to vote to accept
or reject any plan proposed in any such proceeding and to take any other action
which a party filing a claim is entitled to take. The Obligor shall timely
notify the Trustee of any deadlines for casting such a vote. In all such cases,
whether in administration, bankruptcy or otherwise, the person authorized to pay
such a claim shall pay the same to the Trustee, and, to the full extent
necessary for that purpose, the Obligor hereby assigns to the Trustee all of the
Obligor's rights to all such payments or distributions to which the Obligor
would otherwise be entitled; provided, however, that the Obligor's obligations
hereunder shall not be satisfied except to the extent that the Trustee receives
cash by reason of any such payment or distribution. If the Trustee receives
anything hereunder other than cash, the same shall be held as collateral for
amounts due under this Commitment.
7. INTEREST, COSTS AND FEES.
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7.1 If the Obligor fails to pay all or any portion of the Funding
Amounts in accordance with the provisions hereof, the amount of such Funding
Amounts and all other sums payable by the Obligor to the Trustee hereunder shall
bear interest from the date of demand at the highest rate applicable to the
principal balance of the Notes (without regard to any contingent interest), or,
if the Notes have been fully repaid, at the highest rate that would be
applicable if the Notes had not been fully repaid (without regard to any
contingent interest).
7.2 If the Trustee incurs any costs or expenses (including reasonable
attorneys' fees) in enforcing, construing or defending any provision hereof, the
Obligor shall pay to the Trustee upon demand the amount of all such reasonable
fees, costs and other expenses incurred by the Trustee in connection therewith,
together with interest thereon from the date of
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demand at the highest rate applicable to the principal balance of the Notes, or,
if the Notes have been fully repaid, at the highest rate that would be
applicable if the Notes had not been fully repaid. The reference to "attorneys'
fees" in this Section 7.2 and in all other places in this Commitment shall
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include, without limitation, such amounts as may then be charged by 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. Such fees, costs and expenses shall include, without
limitation, those incurred in connection with any bankruptcy, reorganization,
insolvency, receivership, liquidation, arrangement or other similar proceedings
of the Obligor which in any way affect the exercise by the Trustee of its rights
and remedies hereunder.
8. CUMULATIVE RIGHTS. All rights, powers and remedies of the Trustee
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hereunder and under any other agreement now or at any time hereafter in force
between the Trustee and the Obligor shall be cumulative and not alternative, and
such rights, powers and remedies shall be in addition to all rights, powers and
remedies given to the Trustee and the Holders by law. This Commitment is in
addition to and independent of the commitment of any other guarantor of any of
the Funding Amounts or other indebtedness of the Company.
9. INDEPENDENT OBLIGATIONS. The obligations of the Obligor hereunder are
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independent of the obligations of the Issuers, and, in the event of any default
hereunder, a separate action or actions may be brought and prosecuted against
the Obligor, whether or not either of the Issuers are joined therein or a
separate action or actions are brought against either of the Issuers. The
Trustee's rights hereunder shall not be exhausted by its exercise of any of its
rights or remedies or by any such action or by any number of successive actions,
unless and until all of the Funding Amounts and any fees, costs and expenses, to
be paid herein, as provided herein have been paid and fully performed.
10. APPLICATION OF PAYMENTS OR RECOVERIES. With or without notice to the
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Obligor, the Trustee, in the Trustee's sole discretion, at any time and from
time to time, and in such manner and upon such terms as the Trustee deems fit,
may apply any or all payments or recoveries from the Company or from any
guarantor, endorser or person under any other instrument or realized from any
security, in such manner and order of priority as the Trustee may determine, to
any obligations of the Company, whether or not such indebtedness is otherwise
secured or is due at the time of such application.
11. FINANCIAL STATEMENTS. The Obligor hereby represents and warrants that
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the most recent financial statements of each of the Issuers set forth in the
Offering Circular and of the Obligor set forth in its most recent Annual Report
on Form 10-K are true and correct in all material respects, and fairly present
the financial condition of each of the Issuers and the Obligor as of the
respective dates thereof and for the periods covered thereby, and that no
material adverse change has occurred in the financial condition of either of the
Issuers or the Obligor since the respective dates thereof. The Obligor hereby
agrees to deliver to the Trustee annual financial statements of the Obligor
required to be maintained by the Securities Act of 1934, as amended, within 120
days after the end of each fiscal year of the Obligor until payment and
performance in full of the Funding Amounts guaranteed hereby.
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12. NOTICES. Whenever the Obligor or the Trustee shall desire to give or
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serve any notice, demand, request or other communication with respect to this
Commitment, each such notice shall be in writing and shall be effective only if
the same is delivered by hand-delivery, first-class mail (registered or
certified, return receipt requested), telex, telecopier or air courier
guaranteeing overnight delivery, addressed as follows:
To the Trustee:
IBJ Xxxxxxxx Bank & Trust Company
Xxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx, 00000
Attention: Xxxxxxx Xxxx
To the Obligor:
Casino America, Inc.
000 Xxxxxxxxxx Xxxx
Xxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Financial Officer
Any such notice delivered personally shall be deemed to have been received upon
delivery. Any such notice sent by telegram shall be presumed to have been
received by the addressee one business day after its acceptance for sending by
an authorized carrier thereof. Any such notice sent by mail shall be presumed
to have been received by the addressee three business days after posting in the
United States mail. The Obligor or the Trustee may change its address by giving
the other a written notice of the new address as herein provided.
13. SUCCESSORS AND ASSIGNS. This Commitment shall inure to the benefit of
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the Trustee, its successors and assigns, and shall bind the successors and
assigns of the Obligor. This Commitment may be assigned by the Trustee with
respect to all or any portion of the Funding Amounts hereby guaranteed, and when
so assigned, the Obligor shall be liable to the assignees under this Commitment
without in any manner affecting the liability of the Obligor hereunder with
respect to any of the Funding Amounts retained by the Trustee.
14. INDENTURE. The Obligor shall at all times prior to the fulfillment of
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all of its obligations pursuant to this Commitment, retain no less than
$5,000,000 in available funds for Restricted Payments, as defined in and
pursuant to section 1012 of the indenture dated as of August 1, 1996, among the
Obligor, the subsidiary guarantors identified therein and Fleet National Bank,
as trustee, relating to the issuance of $315,000,000 principal amount of 12 1/2%
Senior Secured Notes due 2003 of the Obligor for so long as such indenture
remains in effect, or any successor indenture thereto, if applicable.
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15. TERMINATION. This Agreement shall expire upon the later of (i) the
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final disbursement of amounts in the Cash Collateral Accounts in accordance with
the Cash Collateral and Disbursement Agreement and (ii) April 1, 1999.
16. NO GUARANTEE. Nothing contained in this Commitment shall be deemed to
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be a guarantee by the Obligor of any obligations for the payment of principal
and interest of the Issuers under the Notes.
17. MISCELLANEOUS PROVISIONS.
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17.1 This Commitment shall be governed by and construed in accordance
with the laws of the State of New York. The Obligor hereby consents to the
jurisdiction of the courts of the State of New York and consents to service of
process by any means authorized by New York law in any action brought under or
arising from this Commitment.
17.2 The Obligor shall defend, indemnify and hold each Benefitted
Party harmless from all claims, demands, causes of action, liabilities, losses,
costs, and expenses (including costs of suit and reasonable attorneys' fees)
arising from or in connection with any act or failure to act by the Obligor in
connection with this Commitment.
17.3 The Obligor agrees to comply with the terms of the Indenture,
the Cash Collateral and Disbursement Agreement and any other Collateral
Document, to the extent applicable thereto.
17.4 Except as provided in any other written agreement now or at any
time hereafter in force between the Obligor and the Trustee, this Commitment
shall constitute the entire agreement of the Obligor with the Trustee with
respect to the subject matter hereof, and no representation, understanding,
promise or condition concerning the subject matter hereof shall be binding upon
the Trustee unless expressed herein.
17.5 Should any term, covenant, condition or provision of this
Commitment be determined to be illegal or unenforceable, all other terms,
covenants, conditions and provisions hereof shall nevertheless remain in full
force and effect.
17.6 Time is of the essence to this Commitment and each of its
provisions.
17.7 When the context and construction so require, all words used in
the singular herein shall be deemed to include the plural, the masculine shall
include the feminine and neuter, and vice versa.
17.8 The word "person" as used herein shall include any individual,
company, firm, association, partnership, joint venture, corporation, trust or
other legal entity of any kind whatsoever.
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17.9 No provision of this Commitment or right granted to the Trustee
hereunder can be waived in whole or in part, nor can the Obligor be released
from its obligations hereunder, except by a writing duly executed by an
authorized officer of the Trustee.
17.10 The Trustee need not inquire into the power of the Issuers or
the authority of their respective partners, officers or agents acting or
purporting to act on their behalf.
17.11 The headings of this Commitment are inserted for convenience
only and shall have no effect upon the construction or interpretation hereof.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned have executed this Completion
Capital Commitment as of the date first above written.
OBLIGOR:
CASINO AMERICA, INC., a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
Title: Secretary
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