Exhibit 10.44


 


ASSIGNMENT
AND ASSUMPTION AGREEMENT

(Lease Agreement)


 


THIS ASSIGNMENT AND
ASSUMPTION AGREEMENT is made and entered into this 6th 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 Assignee”).


 


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)            Assignor has complete and
unrestricted power and authority to sell, assign, and transfer all its right,
title and interest in the Lease as contemplated by this Assignment and
Assumption Agreement, and such sale; assignment and transfer does not and will
not require the consent or approval of any third party or government entity,
except for the prior written consent of the Port Authority, which written
consent is set forth in the Acknowledgment, Consent and Estoppel Certificate
(the “Consent”) attached hereto as Exhibit 1  and incorporated
herein by reference.


 


(ii)           Neither the
execution and delivery of this Assignment and Assumption Agreement nor
compliance with the terms hereof on the part of Assignor will violate the
Articles of Incorporation or Bylaws, or the Certificate of Limited Partnership
or Partnership Agreement, as the case may be, of Assignor, breach any
governmental law, statute or regulation, or conflict with or result in the
breach of any of the terms, conditions or provisions of any agreement or
instrument to which Assignor is a party or by which it is or may be bound, or
constitute a default thereunder, or result in the creation or imposition of any
lien, claim, charge, or encumbrance. Except as set forth in Schedule C attached
hereto and incorporated herein by this reference, Assignor has no knowledge of
any fact or condition regarding or involving the Demised Premises (as defined
in the Lease) or any of Assignor’s duties and obligations under the Lease that
constitute a violation or breach of any law, statute, ordinance, regulation,
order, contract or other agreement including, without limitation, environmental
laws and regulations.


 


(iii)          Assignor has all necessary corporate
power and authority to enter into this Assignment and Assumption Agreement, and
has taken all corporate action necessary to make this Assignment and Assumption
Agreement enforceable upon Assignor in accordance with its terms.


 


(iv)          A true, correct and complete
copy of the Lease, and all
amendments thereto, are attached hereto as Schedule A. The Lease has not been
amended or modified, except as set forth on Schedule A attached hereto and incorporated herein by this reference. The Lease,
as amended or modified, is in full force and effect and constitutes the legal,
valid and binding obligation of all of the parties thereto and is enforceable
in accordance with its terms.


 


(v)           Except as set forth
in Schedule D attached hereto and incorporated herein by this reference, no
event has occurred and no condition exists that, with the giving of notice or
the lapse of time or both, could constitute a default by Assignor under the
Lease or, to Assignor’s best knowledge after due and diligent inquiry, by the
Port Authority. Assignor has no present intention to bring an action or
otherwise attempt to enforce any alleged nonperformance or breach of


 


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any provision
of the Lease Except as set forth in Schedule E attached hereto and incorporated
herein by this reference, Assignor has no existing defenses or offsets against
the enforcement of the Lease by the Port Authority, and knows of no other
parties who are not signatories to the Lease who possess or may assert rights
under or in connection with the Lease.


 


(vi)          Except as set forth in Schedule F
attached hereto and incorporated herein by this reference, the Lease and the
Development Agreement dated as of March 12, 1993 by and between the Port
Authority and HHC (the “Development
Agreement”), as thereafter
amended, are the only agreements, written or oral, entered into between the
Port Authority and Assignor.


 


(b)           Assignor covenants and agrees as follows:


 


(i)            Assignor has not and will not assign
the whole or any part of its right, title and interest hereby assigned to any
person other than Assignee.


 


(ii)           Assignor shall forthwith notify
Assignee and Operating Assignee in writing of any default (or any event or
occurrence that, but for the giving of notice or the passage of time, or both,
would constitute a default) under the Lease of which it has knowledge or any assertion
made to Assignor by any other party to the Lease that circumstances have arisen
that may pen-nit or result in a breach or the cancellation of the Lease.


 


5.             Representations and Warranties of Assignee.


 


(a)           Assignee, as of the date of the Closing, does
hereby represent and warrant to Assignor as follows:


 


(i)            Assignee has complete and
unrestricted power and authority to sell, assign, and transfer its right, title and interest in
the Lease as contemplated by this Assignment and Assumption Agreement.


 


(ii)           Neither the execution and delivery of
this Assignment and Assumption Agreement nor compliance with the terms hereof
on the part of Assignee will violate the Articles of Incorporation or Bylaws of
Assignee, breach any governmental law, statute or regulation, or conflict with
or result in the breach of any of the terms, conditions or provisions of any
agreement or instrument to which Assignee is a party or by which it is or may
be bound, or constitute a default thereunder, or result in the creation or imposition
of any lien, claim, charge or encumbrance.


 


(iii)          Assignee has all necessary corporate
power and authority to enter into this Assignment and Assumption Agreement and
has taken all corporate action necessary to make this Assignment and Assumption
Agreement enforceable upon Assignee in accordance with its terms.


 


(b)           Assignee covenants and agrees that Assignee
will not assign the whole or any part of its right, title and interest hereby
assigned to any person or entity other than


 


5

















 


Operating Assignee, without
the prior written consent of the Port Authority and Assignor, which consent
shall not be unreasonably withheld. Assignor acknowledges and agrees that, for
purposes of this subsection (b) of this Section 5, consent shall be  deemed “unreasonably withheld” if the proposed assignee, in the
Assignor’s reasonable opinion, is financially capable of performing and
satisfying in full each of its respective obligations pursuant to the Lease and Assignor withholds its consent.


 


6.             Representations and Warranties of Operating
Assignee. Operating Assignee, as of the date of the Closing, does hereby represent
and warrant to the Assignor as follows:


 


(a)           Neither the execution and delivery of this  Assignment and Assumption Agreement nor compliance with the terms
hereof on the part of Operating Assignee will violate the Articles of
Organization or Operating Agreement of Operating Assignee, breach any
governmental law, statute or regulation, or conflict with or result in the
breach of any of the terms, conditions or provisions of any agreement or
instrument to which Operating Assignee is a party or by which it is or may be
bound, or constitute a default thereunder, or result in the creation or
imposition of any lien, claim, charge or encumbrance.


 


(b)           Operating Assignee has all necessary corporate power and
authority to enter into this Assignment and Assumption Agreement, and has taken
all  corporate action necessary to make this Assignment and Assumption
Agreement enforceable upon Operating Assignee in accordance with its terms.


 


7.             Further Action.


 


(a)           Assignor, Assignee and Operating Assignee agree that each
shall execute and deliver, or cause to be executed and delivered from time to
time, such instruments, documents, agreements, consents and assurances and take
such other action as the other parties reasonably may require to more
effectively assign and transfer to and vest in such parties the rights and
assets assigned  hereunder. Assignor, Assignee and Operating
Assignee agree to promptly remit and send to such parties any and all payments,
funds, assets, notices, reports and other documents and information received by
each party, its agents or representatives as a direct or indirect result of its
rights in, or with respect to, the Lease.


 


(b)           If any right or asset hereby assigned or transferred shall
for any reason be nonassignable or not enforceable by Assignee or Operating
Assignee, Assignor shall take such action to enforce the same or to obtain the
benefits thereof for Assignee and/or Operating Assignee as Assignee or
Operating Assignee may reasonably direct, but at the sole
expense and risk of Assignee and Operating Assignee, and Assignor will deliver
to Operating Assignee any amounts received by it on account of any such claim,
right or chose in action after deducting any reasonable expenses incurred by
Assignor in taking such action that have not been paid or
reimbursed by Assignee or Operating Assignee


 


8.             General.


 


(a)           This Assignment and Assumption Agreement cancels and
supersedes all  previous
agreements (other than the Asset
Sale Agreement) relating to the subject matter of this Assignment and Assumption Agreement, written or oral,
between the parties hereto and, together with the relevant
provisions of the Asset Sale
Agreement, contains the entire understanding of


 


6

















 


the parties hereto and shall
not be amended, modified or supplemented in any manner whatsoever except as
otherwise provided herein or in writing signed by each of the parties hereto.


 


(b)           Neither this Assignment and Assumption Agreement, nor any
of the rights, duties or obligations of Assignor hereunder, may be assigned
either voluntarily or by operation of law or  otherwise delegated by Assignor without the
prior written consent of the Assignee and Operating Assignee, and any attempted
assignment that is not in conformity herewith shall be null and void. This
Assignment and Assumption Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto and their
respective successors  and permitted assigns.


 


(c)           This Assignment and Assumption Agreement may be executed in any number of counterparts, each
of which shall be  deemed to be an
original and all of which shall constitute one agreement which is binding upon
all the parties hereto, notwithstanding that all parties are not signatories to
the same counterpart.


 


(d)           Any notice, request, consent or communication under this
Assignment and Assumption Agreement shall be effective only if it is in writing
and personally delivered or sent by (i) certified mail, postage prepaid, (ii)
nationally recognized express delivery service with delivery confirmed or (iii)
telexed or telecopies with receipt confirmed, addressed as follows:


 


If to Assignor:


 


	
  Name:

  	
   

  	
   

  	
  With Copy To:

  
	
   

  	
   

  	
   

  
	
  Flamingo Hilton Riverboat
  Casino, L.P. 

  	
   

  	
  Park Place Entertainment
  Corp.

  
	
  c/o Hilton Hotels
  Corporation

  	
   

  	
  3930 Howard Hughes Pkwy.

  
	
  9336 Civic Center Drive

  	
   

  	
  Las Vegas, NV 89109

  
	
  Beverly Hills, CA 90210

  	
   

  	
  ATTN: Clive S. Cummis

  
	
  ATTN: Thomas E. Gallagher

  	
   

  	
  Executive Vice President
  and

  
	
  Executive Vice President,

  	
   

  	
  General Counsel

  
	
  General Counsel and
  Secretary

  	
   

  	
  FAX: 702-699-5107

  
	
  FAX: 310-205-7677

  	
   

  	
  and to

  
	
   

  	
   

  	
  Scott LaPorta

  
	
   

  	
   

  	
  Executive Vice President
  and

  
	
   

  	
   

  	
  Chief Financial Officer

  
	
   

  	
   

  	
  FAX: 702-699-5190

  



 


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If to Assignee:


 


	
  Name:

  	
   

  
	
   

  	
   

  
	
  Isle of Capri Casinos,
  Inc.

  	
   

  
	
  2200 Corporate Blvd, N.W.,
  Suite 310

  	
   

  
	
  Boca Raton, FL 33431

  	
   

  
	
  ATTN:

  	
  Allan Solomon

  
	
   

  	
  Executive Vice President and
  General Counsel

  
	
   

  	
  FAX: 561-995-6665

  
			



 


If to Operating Assignee:


 


	
  Name:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  IOC-KANSAS CITY, INC.

  	
   

  	
   

  
	
  C/o Isle of Capri Casinos,
  Inc.

  	
   

  	
   

  
	
  2200 Corporate Blvd.,
  N.W., Suite 310

  	
   

  	
   

  
	
  Boca Raton, FL 33431

  	
   

  	
   

  
	
  ATTN:

  	
  Allan Solomon

  	
   

  
	
   

  	
  Executive Vice President
  and General Counsel

  	
   

  
	
   

  	
  FAX: 561-995-6665

  	
   

  
				



 


or such other persons and/or addresses as
shall be furnished in writing by any such party, and shall be deemed to have
been given as of the date so personally delivered or received.


 


(e)                                  This Assignment and Assumption Agreement and
all rights and obligations of the parties hereunder shall be governed by, and
construed and interpreted in accordance with, the laws of the State of Missouri
applicable to agreements made and to be performed entirely within such State,
including all matters of enforcement, validity and performance.


 


(f)                                    Assignor, Assignee and Operating Assignee
acknowledge and agree that the provisions set forth in the Consent pertaining
or otherwise applicable to Assignor, Assignee and/or Operating Assignee, as the
case may be, are true and correct and will be relied upon by the Port Authority
in executing and delivering the Consent, and Assignor, Assignee and Operating
Assignee agree to be bound by such applicable provisions of the Consent.


 


(g)                                 Assignor, Assignee and Operating Assignee
acknowledge and agree that the Port Authority shall be a third party
beneficiary of this Assignment and Assumption Agreement, and shall have the
right to enforce any such terms and conditions hereof in such capacity.


 


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SIGNATURE PAGE TO

ASSIGNMENT AND ASSUMPTION AGREEMENT  

(Lease Agreement)


 


IN
WITNESS WHEREOF, the parties hereto have each caused this Assignment and
Assumption Agreement to be duly executed as of the day and year first above
written.


 


	
   

  	
  ASSIGNOR:

  
	
   

  	
   

  
	
   

  	
  HILTON
  HOTELS CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Matthew
  J. Hart

  
	
   

  	
  Print Name:

  	
  Matthew J.
  Hart

  
	
   

  	
  Title:

  	
  Executive
  Vice President and 

  
	
   

  	
   

  	
  Chief
  Financial Officer

  
					



 


9

















 


SIGNATURE PAGE TO
 ASSIGNMENT AND
ASSUMPTION AGREEMENT
 (Lease Agreement)


 


IN WITNESS
WHEREOF, the parties hereto have each caused this Assignment and Assumption
Agreement to be duly executed as  of the day and year first above
written.


 


	
   

  	
  FLAMINGO HILTON RIVERBOAT
  

  
	
   

  	
  CASINO, L.P.

  
	
   

  	
   

  
	
   

  	
  By: Hilton Kansas City
  Corp., General Partner

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/ Wallace R. Barr

  
	
   

  	
  Print Name:

  	
    Wallace
  R. Barr

  
	
   

  	
  Title:

  	
    President
  and Secretary

  
					



 


10

















 


SIGNATURE PAGE TO
 ASSIGNMENT AND
ASSUMPTION AGREEMENT
 (Lease Agreement)


 


IN WITNESS
WHEREOF, the parties hereto have each caused this Assignment and Assumption
Agreement to be duly executed as of the day and year first above written.


 


	
   

  	
  ASSIGNEE:

  
	
   

  	
   

  
	
   

  	
  ISLE OF CAPRI CASINOS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Allan B.
  Solomon

  
	
   

  	
  Print Name:

  	
   

  	
  Allan B.
  Solomon

  
	
   

  	
  Title:

  	
   

  	
  Exec. Vice
  President

  
						



 


11

















 


SIGNATURE PAGE TO

ASSIGNMENT AND ASSUMPTION AGREEMENT

(Lease Agreement)


 


IN WITNESS
WHEREOF, the parties hereto have each caused this Assignment and Assumption
Agreement to be duly executed as of the day and year first above written.


 


	
   

  	
  OPERATING
  ASSIGNEE:

  
	
   

  	
   

  
	
   

  	
  IOC-KANSAS
  CITY, INC.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Allan B.
  Solomon

  
	
   

  	
  Print Name:

  	
   

  	
  Allan B.
  Solomon

  
	
   

  	
  Title:

  	
   

  	
  Exec. Vice
  President

  
						



 


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