Exhibit 10.44
ASSIGNMENT AND ASSUMPTION
AGREEMENT
(Lease Agreement)
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is
made and entered into this 6 th
day of June, 2000, by and among (i) HILTON HOTELS
CORPORATION, a Delaware corporation, and FLAMINGO HILTON RIVERBOAT
CASINO, L.P., a Missouri limited partnership and assignee by
assignment from Hilton Hotels Corporation (collectively, “
Assignor ”), (ii) ISLE OF CAPRI CASINOS, INC., a
Delaware corporation (“ Assignee ”), and (iii)
IOC-KANSAS CITY, INC., a Missouri corporation and affiliate of
Assignee (“ Operating Ass igne e
”).
Recitals
A.
The Port Authority of Kansas City, Missouri (the “
Port Authority ”) and Hilton Hotels Corporation
(“ HHC ”) are parties to an Amended and Restated
Lease Agreement dated as of August 21, 1995, as thereafter amended
(the “ Lease ”), a true, correct and complete
copy of which is attached as Schedule A hereto.
B.
The interest of HHC under the Lease Agreement was assigned
(i) pursuant to that certain Lessee’s Assignment and
Assumption Agreement dated August 9, 1996 by and between HHC and
Hilton Kansas City Corporation, a Missouri corporation (“
HKCC ”), whereby HHC transferred all its right, title,
and interest in and to the Lease to HKCC; and (ii) pursuant to that
certain Blanket Conveyance, Bill of Sale, and Assignment and
Assumption Agreement dated August 9, 1996 by and between HKCC and
Flamingo Hilton Riverboat Casino, L.P. (“ Flamingo
Hilton ”), whereby HKCC transferred all its right,
title, and interest in and to the Lease to Flamingo Hilton.
C.
Assignor now desires to assign and transfer all right, title and
interest in the Lease to Assignee, while remaining liable for any
and all liabilities and obligations previously accrued or
hereafter accruing pursuant to the Lease.
D.
Assignee desires to accept such assignment, and thereafter to
assign and transfer to Operating Assignee all right, title and
interest in the Lease held by Assignee
Agreement
NOW, THEREFORE, in consideration of the above
premises, the mutual covenants and agreements stated herein and
stated in the Asset Sale Agreement dated as of February 8, 2000, by
and among Assignor, as sellers, and Assignee and Operating
Assignee, as purchasers (the “ Asset Sale
Agreement ”), as well as other good and valuable
consideration, the receipt of which is hereby acknowledged, the
parties hereto agree as follows:
1.
Assignment .
Effective upon (a) the consummation of the transactions
contemplated by the Asset Sale Agreement, (b) the execution of the
Consent (as defined below), and (c) the issuance of a license by
the Missouri Gaming Commission to Operating Assignee to conduct
gaming operations on the property which is subject to the Lease
(collectively, the “Closing”), Assignor does hereby
irrevocably assign, transfer, sell, deliver and convey unto
Assignee, its successors and assigns, all of Assignor’s
right, title and interest in and to the Lease,
as of the close of
business on the day on which the Closing occurs, free and clear of
any lien, charge, claim or encumbrance, except as set forth on
Schedule B attached hereto and incorporated herein by this
reference. Subject to and upon the occurrence of the Closing,
Assignee hereby accepts the assignment of the Lease pursuant to the
terms of this Assignment and Assumption Agreement. The parties
hereto acknowledge and agree that this Assignment (and Assumption
Agreement shall not become effective and shall be of no legal force
or effect unless and until the Closing occurs.
2.
Assumption of Liabilities .
(a)
Assignee hereby assumes responsibility to faithfully and punctually
perform, satisfy and discharge all of the duties, obligations,
terms, conditions, covenants and liabilities arising or accruing
after the date of the Closing that Assignor is otherwise bound to
perform, discharge or otherwise satisfy under the Lease, including
without limitation, pursuant to Section 18.04 (B) (viii) (b) and
(c) of the Lease regarding (i) the use of the “Demised
Premises” (as that term is defined in the Lease) in
accordance with the restrictions set forth in the Lease and (ii)
the payment of “Rent” (as that term is defined in the
Lease). Assignor does hereby agree to indemnify, defend and hold
Assignee harmless from any loss (including without limitation
attorneys’ fees and costs), claim or cause of action arising
or accruing under or in connection with any of the following: (i)
the Lease based upon events, acts or omissions that occurred on or
before the date of the Closing; (ii) any future written assignments
executed and delivered by and between Assignor and Assignee based
upon events, acts or omissions that occurred on or before the date
of the Closing; or (iii) the failure of Assignor to perform its
obligations under this Assignment and Assumption Agreement.
Assignee does hereby agree to indemnify, defend and hold Assignor
harmless from any loss (including without limitation
attorneys’ fees and costs), claim or cause of action arising
or accruing under or in connection with any of the following: (i)
the Lease based upon events, acts or omissions that occurred after
the date of the Closing; (ii) any future written assignments
executed and delivered by and between Assignee and Assignor based
upon events, acts or omissions that occurred after the date of the
Closing; or (iii) the failure of Assignee or Operating Assignee to
perform their respective obligations under this Assignment and
Assumption Agreement.
(b)
Notwithstanding any other provision of this Assignment and
Assumption Agreement to the contrary, Assignor shall remain liable
to the Port Authority in connection with the performance of all
liabilities and obligations under the Lease to the same extent as
if this Assignment and Assumption Agreement had not been executed.
The foregoing sentence does not, however, in any way relieve (i)
Assignee or Operating Assignee from the liabilities and obligations
that each owes to Assignor which are set forth in this Assignment
and Assumption Agreement or (ii) Assignor from the liabilities and
obligations that it owes to Assignee and Operating Assignee which
are set forth in this Assignment and Assumption Agreement.
3.
Further Assignment to Operating Subsidiary of Assignee
(a)
Subject to the occurrence of the Closing, Assignee does
hereby irrevocably assign, transfer, sell, deliver and convey unto
Operating Assignee, its successors and assigns, all its right,
title and interest in and to the Lease, as of the close of business
on the day the Closing occurs, free and clear of any lien, charge,
claim or encumbrance, except asset forth on Schedule B attached
hereto and incorporated herein by this reference. Subject to and
upon the
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occurrence of the
Closing, Operating Assignee hereby accepts the assignment of the
Lease pursuant to the terms of this Assignment and Assumption
Agreement.
(b)
Assignor hereby acknowledges and consents to the assignment,
transfer, sale, delivery and conveyance by Assignee to Operating
Assignee of all right, title and interest in the Lease that
has been assigned to Assignee pursuant to Section 1 of this
Assignment and Assumption Agreement.
(c)
Operating Assignee hereby assumes responsibility to faithfully and
punctually perform, satisfy and discharge all of the duties,
obligations, terms, conditions, covenants and liabilities arising
or accruing after the date of the Closing that Assignee is
otherwise bound to perform, discharge or otherwise satisfy under
the Lease (as a result of the terms and conditions of this
Assignment and Assumption Agreement), including without limitation,
pursuant to Section 18.04 (B) (viii) (b) and (c) of the Lease
regarding (i) the use of the “Demised Premises” (as
that term is defined in the Lease) in accordance with the
restrictions set forth in the Lease and (ii) the payment of the
“Rent” (as that term is defined in the Lease). Assignor
does hereby agree to indemnify, defend and hold Operating Assignee
harmless from any loss (including without limitation
attorneys’ fees and costs), claim or cause of action arising
or accruing under or in connection with any of the following: (i)
the Lease based upon events, acts or omissions that occurred on and
before the date of the Closing; (ii) any future written assignments
executed and delivered by and between Assignor and Assignee based
upon events, acts or omissions that occurred on or before the date
of the Closing; or (iii) the failure of Assignor to perform its
obligations under this Assignment and Assumption Agreement.
Operating Assignee does hereby agree to indemnify, defend and hold
Assignor harmless from any loss (including without limitation
attorneys’ fees and costs), claim or cause of action arising
or accruing under or in connection with any of the following: (i)
the Lease based upon events, acts or omissions that occurred after
the date of the Closing; (ii) any future written assignments by and
between Operating Assignee and Assignor based upon events, acts or
omissions that occurred after the date of the Closing; or (iii) the
failure of Operating Assignee or Assignee to perform their
respective obligations under this Assignment and Assumption
Agreement.
(d)
Notwithstanding any other provision of this Assignment and
Assumption Agreement to the contrary, Assignee shall remain liable
to the Port Authority and Assignor in connection with the
performance of all liabilities and obligations under the Lease to
the same extent as if the further assignment pursuant to this
Section 3 had not been made. The foregoing sentence does not,
however, in any way relieve (i) Assignor from the liabilities and
obligations that it owes to Assignee and Operating Assignee
which are set forth in this Assignment and Assumption Agreement or
(ii) Assignee or Operating Assignee from the liabilities and
obligations that each owe to Assignor which are set forth in this
Assignment and Assumption Agreement.
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4.
Representations, Warranties and Covenants of Assignor .
(a)
Assignor, as of the date of the Closing, does hereby represent and
warrant to Assignee and Operating Assignee as follows:
(i) &nb
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