EXHIBIT 10.5
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 of 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 hotels 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 capitalized 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, whether existing as of the date of this Agreement or acquired
subsequently, which are, or become, used in connection with any gaming facility
operating under
1
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 not be used reasonably consistently with Licensors use thereof, in
all material respects, so as to cause it to not materially comply with
Licensor's quality standards or Licensor's requirements regarding the appearance
of the Marks, and such non-compliance was not the result of Licensor, then
Licensor shall notify Licensee in writing specifying such deficiencies. If
Licensee fails to correct all such deficiencies to Licensor's reasonable
satisfaction within a reasonable time, but not more than 60 days from receipt of
notice of such deficiency, then 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 licensees 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 cooperate 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. Licensor represents and warrants that it has all right, title and
interest in and to the Marks and the right to license the Marks, to enter into
this Agreement, and to agree to the terms and conditions of this Agreement.
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 license such Xxxx or
Marks to Licensee on terms and conditions identical to those provided herein.
8. If Licensor should determine that Licensee has caused a material breach
of this Agreement, then Licensor shall so inform Licensee in writing, whereupon
Licensee shall have
2
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 term 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 confusingly similar xxxx or terms.
12. Licensee may not assign, sublicense or otherwise transfer any of its
rights under this Agreement to any third party without the prior written consent
of Licensor, which consent may not be unreasonably withheld. 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 addresses stated below:
If to Licensor: Xxxx X. Xxxxxxxx, President
or his designee
000 Xxxxxxxxxx Xxxx
Xxxxxx, XX 00000
3
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 thereof 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
the laws of the State of Colorado. If any of the terms and provisions hereof
shall be held invalid or unenforceable for any reason, such validity or
unenforceability shall in no event affect any of the other 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.
4
CASINO AMERICA, INC., ISLE OF CAPRI BLACK HAWK L.L.C., a
A DELAWARE CORPORATION COLORADO LIMITED LIABILITY COMPANY
By: XXXXX X. XXXXXXX By: Casino America of Colorado, Inc.,
Its: Executive Vice President Member
By: XXXXX X. XXXXXXX
Title: EXECUTIVE VICE PRESIDENT
Blackhawk Gold, Ltd., Member
By: H. XXXXXX XXXX
Title: PRESIDENT
5
CASINO AMERICA, INC.
TRADEMARKS
XXXX REGISTRATION NUMBER
------ -------------------
ISLE OF CAPRI 1,789,909
ISLE OF CAPRI 1,789,917
ISLE OF CAPRI 1,921,161
WAVES OF FORTUNE 1,985,794
ISLAND GOLD 1,925,975
CALYPSO'S 2,022,801
ISLE OF CAPRI (PARROT LOGO) 2,039,052
ISLE STYLE APPLICATION FOR TRADEMARK
REGISTRATION PENDING
FARRADDAY'S APPLICATION FOR TRADEMARK
REGISTRATION PENDING
EXHIBIT A
