**Exhibit 10.44**

 

ASSIGNMENTAND ASSUMPTION AGREEMENT(Lease Agreement)

 

THIS ASSIGNMENT ANDASSUMPTION AGREEMENT is made and entered into this 6th* *day of June, 2000, by and among (i) HILTON HOTELS CORPORATION, aDelaware corporation, and FLAMINGO HILTON RIVERBOAT CASINO, L.P., a Missourilimited partnership and assignee by assignment from Hilton Hotels Corporation(collectively, “Assignor”), (ii) ISLE OF CAPRI CASINOS, INC., a Delawarecorporation (“Assignee”), and (iii) IOC-KANSAS CITY, INC., a Missouricorporation 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**ofAugust 21, 1995, as thereafter amended(the “Lease”), a true, correct and complete copy of which is attached asSchedule A hereto.

 

B.           The interest of HHC under the Lease Agreement was assigned (i) pursuant to that certain Lessee’sAssignment and Assumption Agreement dated August 9, 1996 by and between HHC andHilton Kansas City Corporation, a Missouri corporation (“HKCC”), whereby HHC transferred all its right, title, and interest in and tothe Lease to HKCC; and (ii) pursuant to that certain Blanket Conveyance, Bill ofSale, and Assignment and Assumption Agreement dated August 9, 1996 by andbetween HKCC and Flamingo Hilton Riverboat Casino, L.P. (“Flamingo Hilton”), whereby HKCC transferred all its right, title, andinterest 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 andall liabilities and obligationspreviously accrued or hereafteraccruing pursuant to the Lease.

 

D.          Assignee desires to accept such assignment, and thereafterto assign and transfer to Operating Assignee all right, title and interest inthe Lease held by Assignee

 

Agreement

 

NOW, THEREFORE, inconsideration of the above premises, the mutual covenants and agreements statedherein and stated in the Asset Sale Agreement dated as of February 8, 2000, byand among Assignor, as sellers, and Assignee and Operating Assignee, as purchasers (the “Asset Sale Agreement”), as well as other good and valuableconsideration, the receipt ofwhich is hereby acknowledged,the parties hereto agree as follows:

 

1.             Assignment.         Effective upon (a) the consummation ofthe transactions contemplated by the Asset Sale Agreement, (b) the execution ofthe Consent (as defined below), and (c) the issuance of a license by theMissouri Gaming Commission to Operating Assignee to conduct gaming operationson the property which is subject to the Lease (collectively, the “Closing”),Assignor does hereby irrevocably assign, transfer, sell, deliver and conveyunto Assignee, its successors and assigns, all of Assignor’s right, title andinterest in and to the Lease,

 

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as of the close of businesson 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 andincorporated herein by this reference. Subject to and upon the occurrence ofthe Closing, Assignee hereby accepts the assignment of the Lease pursuant tothe terms of this Assignment and Assumption Agreement. The parties heretoacknowledge and agree that this Assignment (and Assumption Agreement shall notbecome effective and shall be of no legal force or effect unless and until theClosing occurs.

 

2.             Assumptionof Liabilities.

 

(a)           Assignee hereby assumes responsibility to faithfully andpunctually perform, satisfy and discharge all of the duties, obligations,terms, conditions, covenants and liabilities arising or accruing after the dateof the Closing that Assignor is otherwise bound to perform, discharge orotherwise satisfy under the Lease, including without limitation, pursuant toSection 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 withthe restrictions set forth in the Lease and (ii) the payment of “Rent” (as thatterm is defined in the Lease). Assignor does hereby agree to indemnify, defendand hold Assignee harmless from any loss (including without limitationattorneys’ fees and costs), claim or cause of action arising or accruing underor 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) anyfuture written assignments executed and delivered by and between Assignor andAssignee based upon events, acts or omissions that occurred on or before thedate of the Closing; or (iii) the failure of Assignor to perform itsobligations under this Assignment and Assumption Agreement. Assignee doeshereby agree to indemnify, defend and hold Assignor harmless from any loss(including without limitation attorneys’ fees and costs), claim or cause ofaction 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 ofthe Closing; (ii) any future written assignments executed and delivered by andbetween Assignee and Assignor based upon events, acts or omissions thatoccurred after the date of the Closing; or (iii) the failure of Assignee orOperating Assignee to perform their respective obligations under thisAssignment and Assumption Agreement.

 

(b)           Notwithstandingany other provision of this Assignment and Assumption Agreement to thecontrary, Assignor shall remain liable to the Port Authority in connection withthe performance of all liabilities and obligations under the Lease to the sameextent as if this Assignment and Assumption Agreement had not been executed.The foregoing sentence does not, however, in any way relieve (i) Assignee orOperating Assignee from the liabilities and obligations that each owes toAssignor which are set forth in this Assignment and Assumption Agreement or(ii) Assignor from the liabilities and obligations that it owes to Assignee andOperating Assignee which are set forth in thisAssignment and Assumption Agreement.

 

3.             Further Assignment to Operating Subsidiary ofAssignee

 

(a)           Subject to the occurrence of the Closing, Assignee does hereby irrevocablyassign, 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 onthe day the Closing occurs, free andclear 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 theterms of this Assignment and Assumption Agreement.

 

(b)           Assignor hereby acknowledges and consents to theassignment, transfer, sale, delivery and conveyance by Assignee to OperatingAssignee of all right, title and interest in the Lease that hasbeen assigned to Assignee pursuant to Section 1 of this Assignment andAssumption Agreement.

 

(c)           Operating Assignee hereby assumes responsibility tofaithfully and punctually perform, satisfy and discharge all of the duties,obligations, terms, conditions, covenants and liabilities arising or accruingafter 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 andconditions of this Assignment and Assumption Agreement), including withoutlimitation, pursuant to Section 18.04 (B) (viii) (b) and (c) of the Leaseregarding (i) the use of the “Demised Premises” (as that term is**defined in the Lease) in accordance with the restrictions set forth inthe Lease and (ii) the payment of the “Rent” (as that term is defined in theLease). Assignor does hereby agree to indemnify, defend and hold OperatingAssignee harmless from any loss (including without limitation attorneys’ feesand costs), claim or cause of action arising or accruing under or in connectionwith any of the following: (i) the Lease based upon events, acts or omissions that occurred on and before the date of the Closing; (ii) anyfuture written assignments executed and delivered by and between Assignor andAssignee based upon events, acts or omissions that occurred on or before thedate of the Closing; or (iii) the failure of Assignor to perform itsobligations under this Assignment and Assumption Agreement. Operating Assigneedoes hereby agree to indemnify, defend and hold Assignor harmless from any loss(including without limitation attorneys’ fees and costs), claim or cause ofaction arising or accruing under or in connection with any ofthe following: (i) the Lease based upon events, acts or omissions that occurredafter the date of the Closing; (ii) any future written assignments by andbetween Operating Assignee and Assignor based upon events, acts or omissionsthat occurred after the date of the Closing; or (iii) the failure of OperatingAssignee or Assignee to perform their respective obligations under this Assignmentand Assumption Agreement.

 

(d)           Notwithstanding any other provision of this Assignment andAssumption Agreement to the contrary, Assignee shall remain liable to the PortAuthority and Assignor in connection with the performance of all liabilitiesand obligations under the Lease to the same extent as if the further assignmentpursuant to this Section 3 had not been made. The foregoing sentence does not,however, in any way relieve (i) Assignor from the liabilities and obligationsthat it owes to Assignee and Operating Assignee which are set forth inthis Assignment and Assumption Agreement or (ii) Assignee or Operating Assigneefrom the liabilities and obligations that each owe to Assignor whichare set forth in this Assignment and Assumption Agreement.

 

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4.             Representations, Warranties and Covenants ofAssignor.

 

(a)           Assignor, as of the date of the Closing, doeshereby represent and warrant to Assigneeand Operating Assignee as follows:

 

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

 

(ii)           Neither theexecution and delivery of this Assignment and Assumption Agreement norcompliance with the terms hereof on the part of Assignor will violate theArticles of Incorporation or Bylaws, or the Certificate of Limited Partnershipor Partnership Agreement, as the case may be, of Assignor, breach anygovernmental law, statute or regulation, or conflict with or result in thebreach of any of the terms, conditions or provisions of any agreement orinstrument to which Assignor is a party or by which it is or may be bound, orconstitute a default thereunder, or result in the creation or imposition of anylien, claim, charge, or encumbrance. Except as set forth in Schedule C attachedhereto and incorporated herein by this reference, Assignor has no knowledge ofany fact or condition regarding or involving the Demised Premises (as definedin the Lease) or any of Assignor’s duties and obligations under the Lease thatconstitute a violation or breach of any law, statute, ordinance, regulation,order, contract or other agreement including, without limitation, environmentallaws and regulations.

 

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

 

(iv)          A true, correct and completecopy of the Lease, and allamendments thereto, are attached hereto as Schedule A. The Lease has not beenamended 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 enforceablein accordance with its terms.

 

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

 

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any provisionof the Lease Except as set forth in Schedule E attached hereto and incorporatedherein by this reference, Assignor has no existing defenses or offsets againstthe enforcement of the Lease by the Port Authority, and knows of no otherparties who are not signatories to the Lease who possess or may assert rightsunder or in connection with the Lease.

 

(vi)          Except as set forth in Schedule Fattached hereto and incorporated herein by this reference, the Lease and theDevelopment Agreement dated as of March 12, 1993 by and between the PortAuthority and HHC (the “DevelopmentAgreement”), as thereafteramended, are the only agreements, written or oral, entered into between thePort Authority and Assignor.

 

(b)           Assignor covenants and agrees as follows:

 

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

 

(ii)           Assignor shall forthwith notifyAssignee and Operating Assignee in writing of any default (or any event oroccurrence 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 assertionmade to Assignor by any other party to the Lease that circumstances have arisenthat 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, doeshereby represent and warrant to Assignor as follows:

 

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

 

(ii)           Neither the execution and delivery ofthis Assignment and Assumption Agreement nor compliance with the terms hereofon the part of Assignee will violate the Articles of Incorporation or Bylaws ofAssignee, breach any governmental law, statute or regulation, or conflict withor result in the breach of any of the terms, conditions or provisions of anyagreement or instrument to which Assignee is a party or by which it is or maybe bound, or constitute a default thereunder, or result in the creation or impositionof any lien, claim, charge or encumbrance.

 

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

 

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

 

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Operating Assignee, withoutthe prior written consent of the Port Authority and Assignor, which consentshall not be unreasonably withheld. Assignor acknowledges and agrees that, forpurposes of this subsection (b) of this Section 5, consent shall be**deemed “unreasonably withheld” if the proposed assignee, in theAssignor’s reasonable opinion, is financially capable of performing andsatisfying in full each of its respective obligations pursuant to the Lease and Assignor withholds its consent.

 

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

 

(a)           Neither the execution and delivery of this**Assignment and Assumption Agreement nor compliance with the termshereof on the part of Operating Assignee will violate the Articles ofOrganization or Operating Agreement of Operating Assignee, breach anygovernmental law, statute or regulation, or conflict with or result in thebreach of any of the terms, conditions or provisions of any agreement orinstrument to which Operating Assignee is a party or by which it is or may bebound, or constitute a default thereunder, or result in the creation orimposition of any lien, claim, charge or encumbrance.

 

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

 

7.             Further Action.

 

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

 

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

 

8.             General.

 

(a)           This Assignment and Assumption Agreement cancels andsupersedes allpreviousagreements (other than the AssetSale Agreement) relating to the subject matter of this Assignment and Assumption Agreement, written or oral,between the parties hereto and, together with the relevantprovisions of the Asset SaleAgreement, contains the entire understanding of

 

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the parties hereto and shallnot be amended, modified or supplemented in any manner whatsoever except asotherwise provided herein or in writing signed by each of the parties hereto.

 

(b)           Neither this Assignment and Assumption Agreement, nor anyof the rights, duties or obligations of Assignor hereunder, may be assignedeither voluntarily or by operation of law or****otherwise delegated by Assignor without theprior written consent of the Assignee and Operating Assignee, and any attemptedassignment that is not in conformity herewith shall be null and void. ThisAssignment and Assumption Agreement shall be binding upon, and inure to the benefit of, and be enforceable by, the parties hereto and theirrespective successors**and permitted assigns.

 

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

 

(d)           Any notice, request, consent or communication under thisAssignment and Assumption Agreement shall be effective only if it is in writingand 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 asshall be furnished in writing by any such party, and shall be deemed to havebeen given as of the date so personally delivered or received.

 

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

 

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

 

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

 

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SIGNATURE PAGE TOASSIGNMENT AND ASSUMPTION AGREEMENT(Lease Agreement)

 

INWITNESS WHEREOF, the parties hereto have each caused this Assignment andAssumption Agreement to be duly executed as of the day and year first abovewritten.

 
|   | ASSIGNOR:                  |
|--------|----------------------------|
|   |                       |
|   | HILTON  HOTELS CORPORATION |
|   |                       |
|   |                       |
|   | By:                        | /s/ Matthew  J. Hart |
|   | Print Name:                | Matthew J.  Hart |
|   | Title:                     | Executive  Vice President and |
|   |                       | Chief  Financial Officer |
|        |                            |  |  |  |

 

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SIGNATURE PAGE TOASSIGNMENT ANDASSUMPTION AGREEMENT(Lease Agreement)

 

IN WITNESSWHEREOF, the parties hereto have each caused this Assignment and AssumptionAgreement to be duly executed as**of the day and year first abovewritten.

 
|   | 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 |
|        |                                                |  |  |  |

 

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SIGNATURE PAGE TOASSIGNMENT ANDASSUMPTION AGREEMENT(Lease Agreement)

 

IN WITNESSWHEREOF, the parties hereto have each caused this Assignment and AssumptionAgreement 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 |
|            |                             |  |  |  |  |

 

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SIGNATURE PAGE TOASSIGNMENT AND ASSUMPTION AGREEMENT(Lease Agreement)

 

IN WITNESSWHEREOF, the parties hereto have each caused this Assignment and AssumptionAgreement 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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