EXHIBIT 2.8
SECOND AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
This Second Amendment (the "Second Amendment") dated as of July 23, 1999 to
the Agreement and Plan of Merger dated as of September 2, 1998, as amended by
the First Amendment dated as of March 25, 1999 (as amended by the First
Amendment, the "Merger Agreement") by and among Horseshoe Gaming, L.L.C., a
Delaware limited liability company ("Parent"), Horseshoe Gaming (Midwest), Inc.,
a Delaware corporation ("Horseshoe"), Empress Acquisition Illinois, Inc., a
Delaware corporation ("Empress Illinois"), Empress Acquisition Indiana, Inc., a
Delaware corporation ("Empress Indiana"), Empress Entertainment, Inc., a
Delaware corporation ("Empress"), Empress Casino Joliet Corporation, an Illinois
corporation ("Empress Joliet"), and Empress Casino Hammond Corporation, an
Indiana corporation ("Empress Hammond"), is entered into by and among Parent,
Horseshoe, Empress Illinois, Empress Indiana, Empress, Empress Joliet and
Empress Hammond.
RECITALS
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A. The parties have heretofore entered into the Merger Agreement, which
provides, among other things, for the merger of Empress Illinois with and into
Empress Joliet, and the merger of Empress Indiana with and into Empress Hammond.
All capitalized terms used herein and not otherwise defined herein shall have
the meaning ascribed to them in the Merger Agreement.
B. Parent, Horseshoe, Empress Illinois and Empress Indiana (collectively
the "Buyers") and Empress, Empress Joliet and Empress Hammond (collectively, the
"Sellers") wish to enter into this Second Amendment to amend certain provisions
of the Merger Agreement.
AGREEMENT
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NOW, THEREFORE, in consideration of the premises and mutual agreements
herein contained, and for other good and valuable consideration, the receipt
and sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Status of Merger Agreement. Except as set forth herein, the Merger
Agreement and each of the exhibits and schedules (as updated) thereto shall
remain in full force and effect and shall not be waived, modified,
superseded or otherwise affected by this Second Amendment.
2. Amendments to the Merger Agreement.
(a) Section 1.02. Section 1.02(a) of the Merger Agreement is hereby
deleted in its entirety and replaced with the following:
"(a) at the offices of D'Ancona & Pflaum LLC, 111 East Wacker Drive,
Suite 2800, Chicago, Illinois 60601 on such date as is determined in
accordance with Section 9.01 and upon the satisfaction or waiver of
the conditions set forth in Articles VII and VIII of this Agreement;
or"
(b) Schedule 1.07. Schedule 1.07 to the Merger Agreement is hereby
deleted in its entirety and replaced with Schedule 1.07-A attached hereto.
(c) Section 6.03. A third sentence is added to Section 6.03 as
follows:
"The Buyers acknowledge and approve the amendment of agreements
relating to the Hammond Commitments and new agreements entered into by
Empress Hammond in fulfillment of the Hammond Commitments. The Buyers
agree to be bound by the terms of such amended and new agreements,
which are identified on Schedule 2.28-A attached hereto."
(d) Section 7.08. A new Section 7.08 is added to the Merger Agreement
to read in its entirety as follows:
"Section 7.08. Approval of Consulting Agreement. In connection
with the approvals of the Illinois Gaming Board and the Indiana Gaming
Commission necessary to consummate the transactions contemplated by
this Agreement, the
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Illinois Gaming Board and the Indiana Gaming Commission shall not have
disapproved the Consulting Agreement by and between Parent and
Empress. The Buyers agree not to institute any legal action against
the Sellers for a failure to waive the condition set forth in the
foregoing sentence."
(e) Section 9.01. Section 9.01 of the Merger Agreement is hereby
deleted in its entirety and replaced with the following:
"The closing of the transactions contemplated by this Agreement
shall take place on December 1, 1999; provided, however, that at any
time prior thereto upon receipt of all necessary regulatory approvals
the Buyers may give the Sellers written notice that the Buyers are
prepared to close, and the Closing shall occur within three (3)
business days after the receipt of such notice by the Sellers."
(f) Section 10.01. Section 10.01(h) of the Merger Agreement is hereby
deleted in its entirety and replaced with the following:
"(h) Without notice or any action by any party hereto, this
Agreement shall terminate automatically if the Closing has not
occurred on or prior to December 1, 1999."
(g) Section 15.07. The name and address for Sellers' counsel in
Section 15.07 of the Merger Agreement is hereby deleted in its entirety and
replaced with the following:
"D'Ancona & Pflaum LLC
111 East Wacker Drive, Suite 2800
Chicago, Illinois 60601
Attention: Joel D. Rubin, Esq.
Telecopy:(312) 602-3000"
3. Representations and Warranties of Buyers. Buyers represent and warrant
that:
(a) Prior to May 31, 1999, the Buyers or their Affiliates completed
an offering of debt securities in the principal amount of $600 million pursuant
to Rule 144A under the Securities Act of 1933, as amended, and there is no
default or event of default under the Indenture and the other agreements
executed pursuant thereto by the Buyers or their Affiliates relating to the
offering and
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issuance of such securities.
(b) The Buyers or their Affiliates have consistently maintained a
substantial portion of the funds raised pursuant to the securities offering
described above in escrow to be used to complete the transactions contemplated
by the Merger Agreement, and, since the date of the closing of that securities
offering, the monthly balance sheets of Buyers provided to Sellers within thirty
(30) days after the end of each calendar month with a certification by the Chief
Financial Officer of Buyers have reflected the escrowed amount of such proceeds,
which is true and correct.
(c) Prior to June 30, 1999, the Buyers or their Affiliates have
entered into a senior credit facility in the aggregate principal amount of $375
million to make available funds adequate to consummate the transactions
contemplated by the Merger Agreement and there is no default or event of default
under such senior credit facility.
(d) Prior to May 31, 1999, the Buyers or their Affiliates consummated
(subject only to payment terms) transactions with each of August Robin,
Cassandra Piper and Wendell Piper to purchase or redeem such individual's equity
interests in certain Affiliates of the Buyers.
4. Authorization of Second Amendment. The Buyers and Sellers each
represent and warrant that their respective execution, delivery and performance
of this Second Amendment has been duly authorized, this Second Amendment is a
legal, valid and binding obligation of each such entity enforceable in
accordance with its terms, and this Second Amendment does not conflict with any
agreement or obligation of the respective parties.
5. Limited Release. The Buyers and each of their respective Affiliates
hereby release the Sellers from any and all claims that the Buyers or such
Affiliates may have as a result of any breach of the covenants set forth in
Sections 4.07, 4.11 and 4.13 of the Merger Agreement arising from
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actions taken by the Sellers or their Affiliates prior to the date of this
Second Amendment in connection with obtaining the approvals necessary from the
Illinois Gaming Board and the Indiana Gaming Commission.
6. No Waiver. The Buyers acknowledge and agree that they shall be
obligated to timely perform their obligations contained in the Merger Agreement
after the date hereof irrespective of the fact that Sellers have waived Buyers'
timely performance of certain obligations of the Buyers contained the Merger
Agreement prior to the date hereof. No other action or failure to act by the
Sellers shall constitute a waiver of the Buyers obligations under the Merger
Agreement. No waiver or modification relating to the Merger Agreement shall be
legally effective unless it is in writing and executed on behalf of the Buyers
and the Sellers.
7. Counterparts. This Second Amendment may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.
8. Governing Law. This Second Amendment shall be a contract made under
and governed by the laws of the State of Delaware, without regard to conflict of
law principles.
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IN WITNESS WHEREOF, the parties have executed this Second Amendment and
caused the same to be duly delivered on their behalf on the day and year first
written above.
HORSESHOE GAMING, L.L.C.
By: /s/ Jack B. Binion
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Title:
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HORSESHOE GAMING (MIDWEST), INC.
By: /s/ Jack B. Binion
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Title:
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EMPRESS ACQUISITION ILLINOIS, INC.
By: /s/ Jack B. Binion
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Title:
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EMPRESS ACQUISITION INDIANA, INC.
By: /s/ Jack B. Binion
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Title:
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EMPRESS ENTERTAINMENT, INC.
By: /s/ Peter Ferro
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Title: CEO
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EMPRESS CASINO JOLIET CORPORATION
By: /s/ Peter Ferro
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Title: CEO
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EMPRESS CASINO HAMMOND CORPORATION
By: /s/ Peter Ferro
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Title: CEO
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AMENDED
DISCLOSURE SCHEDULES TO
AGREEMENT AND PLAN OF MERGER
Dated as of July 23, 1999
Schedule 1.07-A - Indemnification Escrows
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General Escrow: Seven Million Dollars ($7,000,000)
First Supplemental Escrow: One Million Five Hundred Thousand Dollars
($1,500,000)
Second Supplemental Escrow: One Million Five Hundred Thousand Dollars
($1,500,000)
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AMENDED
DISCLOSURE SCHEDULES TO
AGREEMENT AND PLAN OF MERGER, as amended
Dated as of July 23, 1999
Schedule 2.28-A Hammond Commitments
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First Amendment to Hammond Riverboat Gaming Project Development Agreement,
dated as of June ___, 1999 by and between the City of Hammond, Indiana and
Empress Casino Hammond Corporation.
Second Amendment to Hammond Riverboat Gaming Project Development Agreement,
dated as of June ___, 1999 by and between the City of Hammond, Indiana and
Empress Casino Hammond Corporation.
First Amendment to Intergovernmental Lease Agreement and Grant of Easement,
dated as of __________, 1999 by and between the City of Hammond, Department of
Redevelopment and the Hammond Port Authority.
Bond Anticipation Note Purchase Agreement, dated as of June 22, 1999 by and
between Empress Casino Hammond Corporation and the Hammond Redevelopment
Commission, governing body of the City of Hammond, Department of Redevelopment
and the Redevelopment District of the City of Hammond, for and on behalf of the
Redevelopment District.
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