EXHIBIT 10.23
AMENDED AND RESTATED
ASSIGNMENT OF JOINT VENTURE INTEREST
This Amended and Restated Assignment of Joint Venture Interest (the
"Agreement") is executed this 22nd day of September, 1998 between Sodak
Louisiana, L.L.C., a Louisiana limited liability company ("Sodak") and HWCC-
Louisiana, Inc., a Louisiana corporation ("HWCC") as assignees (individually
"Assignee" and collectively "Assignees"), and New Orleans Paddlewheels, Inc., a
Louisiana corporation ("NOP"), and Shreveport Paddlewheels, L.L.C., a Louisiana
limited liability company ("SPL"), as assignors (individually "Assignor" and
collectively "Assignors").
W I T N E S S E T H:
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WHEREAS, Assignors collectively own partnership interests in a joint
venture named "Queen of New Orleans at the Hilton Joint Venture" ("QNOV")
pursuant to a Joint Venture Agreement dated May 20, 1992, as amended January 14,
1994 (the "Original Joint Venture Agreement") and as the same is to be further
amended following the assignment effected hereby, in accordance with that
certain Amended and Restated Joint Venture Agreement, dated as of July 31, 1998
(as amended), a copy of which is attached hereto as Exhibit "A" ("Amended JV");
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WHEREAS, pursuant to the terms and conditions of a Loan and Settlement
Agreement, executed as of January 16, 1998, by and between Hilton New Orleans
Corporation ("HNOC"), Assignees and Assignors; an Indemnity Agreement, dated
January 16, 1998, among the same parties ("Indemnity Agreements"); a Compromise
Agreement, dated January 16, 1998, among HNOC, NOP, QNOV, and the City of New
Orleans; and a Side Agreement among QNOV and Assignees (the aforesaid Loan and
Settlement Agreement, Compromise Agreement, Indemnity Agreement, and Side
Agreement are hereinafter collectively referred to as the "Pre-Transfer
Documents"), and subject to the approval of the Louisiana Gaming Control Board
("LGCB"), Assignors have agreed to transfer to Assignees all of their respective
ownership interest in QNOV other than (a) the interest retained by SPL (or an
affiliate thereof) as expressly provided in the Amended JV, which is a 10%
interest in Net Realized Value as defined in the Amended JV, and (b) the "Pre-
Transfer Assets" as defined in the Indemnity Agreements retained by NOP (such
interest that is hereby assigned is hereinafter referred to as the "Assigned
Interest");
WHEREAS, QNOV intends to own and operate a riverboat gaming casino, hotel
and related shoreside facilities in Shreveport, Louisiana (the "Complex") as
provided for and contemplated under the Amended JV;
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WHEREAS, the LGCB has approved the transfer contemplated hereby, and
Assignors desire to assign, and each of the Assignees desire to acquire the
Assigned Interest; and
WHEREAS, the Assignees and NOP have entered into an Assignment of Joint
Venture Interest dated July 31, 1998 (the "Original Agreement"), and the parties
hereto desire to amend and restate the Original Agreement in its entirety as set
forth in this Agreement.
NOW THEREFORE, subject to the terms and conditions of this Agreement and
the execution by QNOV of that certain Marine Services Agreement to be entered
into between QNOV and SPL or an affiliate of SPL, the form of which is attached
as Exhibit I to the Amended and Restated Master Agreement dated as of July 31,
1998 by and among Sodak, HWCC and Assignors (the "Amended Master Agreement"),
for the consideration stated herein and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged and for which
acquittance is granted, each Assignor and each Assignee hereby agree, effective
as of the Closing Date as defined in the Amended Master Agreement, intending to
be legally bound, as follows:
ARTICLE I
Assignment
1.1 Assignment of Venture Interest. Assignors hereby transfer, assign,
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set over, convey and deliver the Assigned Interest unto the Assignees and their
respective successors and assigns, and each Assignee hereby purchases and
accepts from the Assignors the Assigned Interest, and Assignees hereby agree,
and bind and obligate themselves, to cause QNOV, as the same may now or
hereafter be constituted, (a) to pay to SPL (or an affilate thereof) one percent
(1%) of any "Complex Net Revenues" (the "Complex Net Revenue Amount") (as used
herein, Complex Net Revenues means the gross revenues from casino operations,
hotel operations and all other Complex facilities and amenities including
without limitation, all revenues and proceeds from business interruption or
other loss of income insurance, less promotional allowances and less (i) any
gratuities, or service charges added to a customer's xxxx or statement in lieu
of gratuities, which are payable to Complex employees, (ii) an amount equal to
all credits or refunds made to customers, guests or patrons, (iii) all sums and
credits received in settlement of claims for loss or damage of FF&E or to the
physical plant of the Complex, (iv) any and all income from the sale of FF&E and
any capital assets, (v) any compensation payments for claims against third
parties arising out of or during the course of the operation of the Complex, and
(vi) investment income); (b) to enter into the Marine Services Agreement, a
specimen of which is attached hereto as Exhibit "B"; and (c) to assume all Post-
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Transfer Obligations as defined in the Indemnity Agreement. At the option of
SPL, payments of the
Complex Net Revenue Amount may be directed to any entity in which an Assignor
has an equity ownership interest.
1.2 Termination of Payment. The parties hereto agree and acknowledge
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that SPL shall have no right to receive any further payments of the Complex Net
Revenue Amount pursuant to Section 1.1 above immediately upon the occurrence of
any event as expressly described in Section 10.7 of the Amended JV, and SPL's
right to receive such payments shall thereafter be null, void and of no further
legal effect.
1.3 Ownership of Interest. Each Assignor hereby represents to each
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Assignee that the Assignors collectively have full title to the Assigned
Interest and have the authority to transfer the Assigned Interest to Assignees
as provided herein without the approval or consent of any other person or entity
other than the LGCB.
1.4 Deliveries by Assignor at Closing. Each Assignor hereby delivers to
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Assignees: (a) this duly executed Agreement; and (b) agrees to deliver any
other document necessary or required to be delivered by such Assignor to
Assignees to effect the transactions contemplated by this Agreement.
1.5 Pre-Transfer Obligations. Nothing in this Agreement is intended to
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affect each Assignor's continuing obligation with respect to the "Pre-Transfer
Obligations" as defined in the Indemnity Agreements.
ARTICLE II
Affirmative Covenants
2.1 Further Assurances. Each Assignor shall execute and deliver the
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Amended JV and any notices and other documents as may be reasonably requested by
an Assignee from time to time to (i) reflect the admission of an Assignee as a
partner or member in QNOV and (ii) to effect the consummation of the
transactions contemplated by this Agreement.
2.2 Assignee as Partner/Member. Each Assignor and each Assignee hereby
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agree that each Assignee shall become a substituted partner/member of QNOV in
place of the Assignors with respect to the Assigned Interest acquired by each
Assignee, and that SPL shall remain a member/partner of QNOV under the Amended
JV.
2.3 Distributions in Trust. To the extent any Assignor receives any
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financial benefits, cash, cash equivalents, revenues, monies, fees, commissions,
profits, proceeds, payments or other sums payable in connection with or
attributable to the Assigned Interest due and owed for periods after the
effective date hereof, the same shall be held in trust for
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the benefit of each Assignee and shall be promptly delivered to each Assignee,
without interest, when and as received and in the form received.
ARTICLE III
Miscellaneous
3.1 Governing Law. This Agreement is made in and shall be governed by the
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laws of the State of Louisiana in all respects, including matters of
construction, validity, enforcement and performance.
3.2 Counterparts. This Agreement may be executed in any number of
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counterparts, which taken together shall constitute one and the same instrument
and each of which shall be considered an original for all purposes.
3.3 Amendments; Waivers. This Agreement may not be amended nor may any of
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its terms be waived except by written instrument signed by the parties hereto.
3.4 Survival Upon Unenforceability. In the event any one or more of the
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provisions contained in this Agreement shall for any reason be held invalid,
illegal or unenforceable in any respect, such invalidity, illegality or
unenforceability shall not affect any other provisions hereof.
3.5 Notices. All notices, requests, demands and other communications
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required or permitted under this Agreement shall be in writing and shall be
deemed to have been duly given if delivered by hand or mailed, certified or
registered mail with postage prepaid to the address of each party set forth
below or by facsimile or other electronic means of communication upon receipt
thereof.
3.6 Supersede. The parties hereto agree and acknowledge that this
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Agreement shall supersede, in its entirety, the Original Agreement, and that
the Original Agreement shall be null, void and of no further legal effect.
3.7 Indemnification. HWCC and Sodak shall cause QNOV to indemnify,
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defend and hold harmless SPL and/or NOP from any tax liability either or both
parties may incur as a result of HNOC's transfer of its interest in QNOV to NOP
and/or SPL except for any tax liability arising from SPL's, or an affiliate's,
receipt of the Complex Net Revenue Amount pursuant to Section 1.1 above.
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IN WITNESS WHEREOF, this Agreement is executed as of the date first above
written to be effective as of the Closing Date (as defined in the Amended Master
Agreement).
ASSIGNORS:
NEW ORLEANS PADDLEWHEELS, INC.
By:
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Its
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SHREVEPORT PADDLEWHEELS, L.L.C.
By:
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Its
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ASSIGNEES:
SODAK LOUISIANA, L.L.C.
By:
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Its
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HWCC-LOUISIANA, INC.
By:
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Its
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ACKNOWLEDGMENT
STATE OF ___________________
PARISH/COUNTY OF _________________
Before me, the undersigned authority, personally came and appeared
_________________ known to me to be the person who executed the foregoing
instrument and who, being duly sworn, acknowledged and declared in my presence
and in the presence of the undersigned witnesses that he is a duly authorized
officer of New Orleans Paddlewheels, Inc. and that he did execute the foregoing
instrument as the free act and deed of such entity.
IN WITNESS WHEREOF, the appearers, witnesses and I have hereunder affixed
our signatures on the _____ day of September, 1998.
WITNESSES:
___________________________________________
NOTARY PUBLIC
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ACKNOWLEDGMENT
STATE OF ___________________
PARISH/COUNTY OF _________________
Before me, the undersigned authority, personally came and appeared
__________________ known to me to be the person who executed the foregoing
instrument and who, being duly sworn, acknowledged and declared in my presence
and in the presence of the undersigned witnesses that he is a duly authorized
officer of HWCC-Louisiana, Inc. and that he did execute the foregoing instrument
as the free act and deed of such entity.
IN WITNESS WHEREOF, the appearers, witnesses and I have hereunder affixed
our signatures on the _____ day of September, 1998.
WITNESSES:
___________________________________________
NOTARY PUBLIC
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ACKNOWLEDGMENT
STATE OF ___________________
PARISH/COUNTY OF _________________
Before me, the undersigned authority, personally came and appeared
__________________ known to me to be the person who executed the foregoing
instrument and who, being duly sworn, acknowledged and declared in my presence
and in the presence of the undersigned witnesses that he is a duly authorized
officer of Sodak Louisiana, L.L.C. and that he did execute the foregoing
instrument as the free act and deed of such entity.
IN WITNESS WHEREOF, the appearers, witnesses and I have hereunder affixed
our signatures on the _____ day of September, 1998.
WITNESSES:
___________________________________________
NOTARY PUBLIC
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ACKNOWLEDGMENT
STATE OF ___________________
PARISH/COUNTY OF _________________
Before me, the undersigned authority, personally came and appeared
_________________ known to me to be the person who executed the foregoing
instrument and who, being duly sworn, acknowledged and declared in my presence
and in the presence of the undersigned witnesses that he is a duly authorized
officer of Shreveport Paddlewheels, L.L.C.,. and that he did execute the
foregoing instrument as the free act and deed of such entity.
IN WITNESS WHEREOF, the appearers, witnesses and I have hereunder affixed
our signatures on the _____ day of September, 1998.
WITNESSES:
___________________________________________
NOTARY PUBLIC
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