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ASSUMPTION AGREEMENT
This Assumption Agreement ("Assumption Agreement"), dated as of November
18, 1999, is entered into 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"), Empress Casino Xxxxxxx Corporation, an Indiana
corporation ("Empress Xxxxxxx"), Horseshoe Acquisition Illinois, Inc., an
Illinois corporation ("Horseshoe Illinois"), Horseshoe Acquisition Indiana,
Inc., an Indiana corporation ("Horseshoe Indiana"), and Horseshoe Gaming Holding
Corp., a Delaware corporation ("HGHC").
RECITALS
A. Parent, Horseshoe, Empress Illinois, Empress Indiana, Empress, Empress
Joliet and Empress Xxxxxxx have heretofore entered into the Agreement and Plan
of Merger, dated as of September 2, 1998, as amended by the First Amendment,
dated as of March 25, 1999 (the "First Amendment") and the Second Amendment,
dated as of July 23, 1999 (the "Second Amendment"), 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 Xxxxxxx. The Merger Agreement as
amended by the First Amendment and Second Amendment is referred to herein as the
"Merger Agreement." All capitalized terms used herein and not otherwise defined
herein shall have the meaning ascribed to them in the Merger Agreement.
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B. Pursuant to the First Amendment, the parties agreed that HGHC would
replace Horseshoe as a party to the Merger Agreement and that Horseshoe Illinois
and Horseshoe Indiana would replace Empress Illinois and Empress Indiana,
respectively, as parties to the Merger Agreement (the "Assumptions").
C. All of the parties hereto wish to enter into this Assumption Agreement
to implement and evidence the Assumptions contemplated by the First Amendment.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and mutual agreements
herein contained, and for 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 and as otherwise
necessary to effectuate the intent of this Assumption Agreement, the Merger
Agreement shall remain in full force and effect in accordance with its
terms and shall not be waived, modified, superseded, or otherwise affected
by this Assumption Agreement. This Assumption Agreement is not to be
construed as a release, waiver or modification of any of the terms,
conditions, representations, warranties, covenants, rights or remedies set
forth in the Merger Agreement, except as specifically set forth herein.
2. Assumption of Obligations. Upon and subject to the terms herein, the
parties agree that:
a. HGHC Assignment and Assumption. Horseshoe does hereby convey, transfer
and assign to HGHC, its successors and assigns forever, all right,
title and interest of Horseshoe under the Merger Agreement, and HGHC,
for itself and its successors and assigns, does hereby unconditionally
assume and agree to pay, discharge and perform
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when lawfully due all liabilities, agreements, covenants, commitments
and obligations of every kind and nature of Horseshoe under the Merger
Agreement, in each case effective as of the date hereof. All
references in the Merger Agreement to Horseshoe shall be replaced with
references to HGHC.
b. Horseshoe Illinois Assignment and Assumption. Empress Illinois does
hereby convey, transfer and assign to Horseshoe Illinois, its
successors and assigns forever, all right, title and interest of
Empress Illinois under the Merger Agreement, and Horseshoe Illinois
for itself and its successors and assigns, does hereby unconditionally
assume and agree to pay, discharge and perform when lawfully due all
liabilities, agreements, covenants, commitments and obligations of
every kind and nature of Empress Illinois under the Merger Agreement,
effective as of the date hereof. All references to Empress Illinois in
the Merger Agreement shall be replaced with references to Horseshoe
Illinois. Horseshoe Illinois shall be merged with and into Empress
Joliet in accordance with the laws of the State of Illinois and the
Merger Agreement (the "Illinois Merger"). Empress Joliet shall be the
surviving corporation of the Illinois Merger and such merger shall be
governed by the laws of the State of Illinois.
c. Horseshoe Indiana Assignment and Assumption. Empress Indiana does
hereby convey, transfer and assign to Horseshoe Indiana, its
successors and assigns forever, all right, title and interest of
Empress Indiana under the Merger Agreement, and Horseshoe Indiana, for
itself and its successors and assigns, does hereby unconditionally
assume and agree to pay, discharge and perform when lawfully due
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all liabilities, agreements, covenants, commitments and obligations of
every kind and nature of Empress Indiana under the Merger Agreement,
effective as of the date hereof. All references to Empress Indiana in
the Merger Agreement shall be replaced with references to Horseshoe
Indiana. Horseshoe Indiana shall be merged with and into Empress
Xxxxxxx in accordance with the laws of the State of Indiana and the
Merger Agreement (the "Indiana Merger"). Empress Hammond shall be the
surviving corporation of the Indiana Merger and such merger shall be
governed by the laws of the State of Indiana.
3. Authorization of the Assumption Agreement. Each of the parties hereto
represents and warrants that (a) its execution, delivery, and performance
of this Assumption Agreement has been duly authorized by all necessary
corporate or limited liability company action, as applicable, (b) this
Assumption Agreement is a legal, valid and binding obligation of such
entity enforceable in accordance with its terms, and (c) this Assumption
Agreement does not conflict with any agreement or obligation of such party.
4. Counterparts. This Assumption Agreement may be executed in any number of
counterparts, each of which shall be deemed an original and all of which
together constitute one and the same instrument.
5. Governing Law. This Assumption Agreement shall be a contract made and
governed under the laws of the State of Delaware, without regard to
conflict of law principles.
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IN WITNESS WHEREOF, the parties have duly executed this Assumption
Agreement as of the date first written above.
"PARENT"
HORSESHOE GAMING, L.L.C.
By Its Manager: Horseshoe Gaming, Inc.
By: /s/ Xxxx X. Xxxxxx
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Printed: Xxxx X. Xxxxxx
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Its: President
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"HORSESHOE"
HORSESHOE GAMING (MIDWEST), INC.
By: /s/ Xxxx X. Xxxxxx
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Printed: Xxxx X. Xxxxxx
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Its: President
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"EMPRESS ILLINOIS"
EMPRESS ACQUISITION ILLINOIS, INC.
By: /s/ Xxxx X. Xxxxxx
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Printed: Xxxx X. Xxxxxx
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Its: President
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"EMPRESS INDIANA"
EMPRESS ACQUISITION INDIANA, INC.
By: /s/ Xxxx X. Xxxxxx
-----------------------------------
Printed: Xxxx X. Xxxxxx
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Its: President
---------------------------------
"HORSESHOE ILLINOIS"
HORSESHOE ACQUISITION ILLINOIS, INC.
By: /s/ Xxxx X. Xxxxxx
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Printed: Xxxx X. Xxxxxx
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Its: President
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"HORSESHOE INDIANA"
HORSESHOE ACQUISITION INDIANA, INC.
By: /s/ Xxxx X. Xxxxxx
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Printed: Xxxx X. Xxxxxx
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Its: President
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"EMPRESS"
EMPRESS ENTERTAINMENT, INC.
By: /s/ Xxxxx X. Xxxxx, Xx.
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Printed: Xxxxx X. Xxxxx, Xx.
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Its: Chief Executive Officer
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"EMPRESS JOLIET"
EMPRESS CASINO JOLIET CORPORATION
By: /s/ Xxxxx X. Xxxxx, Xx.
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Printed: Xxxxx X. Xxxxx, Xx.
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Its: Chief Executive Officer
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"EMPRESS XXXXXXX"
EMPRESS CASINO XXXXXXX CORPORATION
By: /s/ Xxxxx X. Xxxxx, Xx.
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Printed: Xxxxx X. Xxxxx, Xx.
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Its: Chief Executive Officer
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