fifthamendmenttoshore.htm


     

    
      

      

    

    EXHIBIT
10.10

    
      
 

       

      


       

      Recorder’s Cover
Sheet

       

      Document: Fifth Amendment to
Iowa Shore Mortgage

       

      Preparer
Information:  Ted Smith, Esq., Paul, Hastings, Janofsky &
Walker LLP, 600 Peachtree Street, Suite 2400, Atlanta, Georgia 30308 (404)
815-2244

      


      Taxpayer
Information:

      Diamond
Jo, LLC

      600 Star
Brewery Drive, Suite 110

      Dubuque,
IA  52001

      


      Return Document
To:

      Ted
Smith, Esq.

      Paul,
Hastings, Janofsky & Walker LLP

      600
Peachtree Street, Suite 2400

      Atlanta,
Georgia 30308

      (404)
815-2244

      


      Grantor:

      Diamond
Jo, LLC

      


      Grantee:

      Wells
Fargo Foothill, Inc., as Agent

      


      Legal
Description:  See attached Exhibit A

      


      Document or instrument number of
previously recorded documents: 10729-04; 2004-19859; 2005-11343;
2007-13652; 2008-8647


      
        
          
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      FIFTH
AMENDMENT TO IOWA SHORE MORTGAGE

       

      THIS
FIFTH AMENDMENT TO IOWA SHORE MORTGAGE (this “Amendment”) is made
and entered into as of this 29th day of October, 2009, by DIAMOND JO, LLC, a
Delaware limited liability company (“Mortgagor”), and
WELLS FARGO FOOTHILL, INC., a California corporation, as agent (“Agent”; Agent,
together with its successors and assigns, is referred to herein as “Mortgagee”) for the
Lenders (as defined in the hereinafter defined Loan Agreement).

       

      W
I T N E S S E T H:

       

      A. Mortgagor,
Peninsula Gaming, LLC, a Delaware limited liability company (“Parent”), Diamond Jo
Worth, LLC, a Delaware limited liability company (“DJW”), The Old
Evangeline Downs, L.L.C., a Louisiana limited liability company (“OED,” together with
Mortgagor, Parent and DJW, collectively, jointly and severally, the “Existing Borrowers”),
the lenders party thereto, and Agent are parties to that certain Loan and
Security Agreement dated as of June 16, 2004, as amended by that certain First
Amendment to Loan and Security Agreement dated as of November 10, 2004, as
amended by that certain Second Amendment to Loan and Security Agreement dated as
of July 12, 2005, as amended by that certain Third Amendment to Loan and
Security and Consent Agreement dated as of December 6, 2006, as amended by that
certain Fourth Amendment to Loan and Security Agreement and Consent dated as of
December 22, 2006, as amended by that certain Fifth Amendment to Loan and
Security Agreement dated as of June 30, 2008, as amended by that certain Sixth
Amendment to Loan and Security Agreement dated as of October 6, 2008, as
supplemented by that certain Borrower Supplement No. 1 dated as of May 13, 2005,
and as supplemented by that certain Borrower Supplement dated as of August 6,
2009 (collectively, the “Existing Loan
Agreement”).

       

      B. The
obligations and indebtedness of the Existing Borrowers under the Existing Loan
Agreement are secured by, inter alia, that certain Mortgage, Leasehold Mortgage,
Assignment of Rents, Security Agreement and Fixture Financing Statement, dated
as of June 16, 2004, and recorded on June 18, 2004, as Document
No.  10729-04 of the Official Records of Dubuque County, Iowa, as
amended by that certain First Amendment to Iowa Shore Mortgage, dated as of
November 10, 2004, and recorded on November 12, 2004, as Document No.
2004-19859, as amended by that certain Second Amendment to Iowa Shore Mortgage,
dated as of July 12, 2005, and recorded on July 15, 2005, as Document No.
2005-11343, as amended by that certain Third Amendment to Iowa Shore Mortgage,
dated as of August 15, 2007, and recorded on September 6, 2007, as Document
No.2007-13652, and as further amended by that certain Fourth Amendment to Iowa
Shore Mortgage, dated as of June 12, 2008, and recorded on June 17, 2008, as
Document No. 2008-8647 (collectively, the “Mortgage”),
encumbering Mortgagor’s fee simple interest in and to the real property located
in Dubuque County, Iowa and more particularly described on Exhibit A attached
hereto and incorporated herein, Mortgagor’s leasehold interest created under
that certain Lease, as described on Exhibit B attached
hereto and incorporated herein, with respect to certain premises located in
Dubuque County, Iowa, as also more particularly described on Exhibit B attached
hereto and incorporated herein, and the personal property and improvements
located thereon and as further described in the Mortgage (collectively, the
“Premises”).

       

      C. Contemporaneously
herewith, the Existing Borrowers (such Existing Borrowers, together with any
other borrower joining as a party to the hereinafter defined Loan Agreement in
accordance with the terms thereof, being collectively referred to herein as the
“Borrowers”),
the

       


      
        
          
            


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      Lenders,
and Agent have amended and restated the Existing Loan Agreement pursuant to that
certain Amended and Restated Loan and Security Agreement (as amended, restated,
supplemented or otherwise modified from time to time, the “Loan Agreement”),
providing for, inter alia, the modification of the Maturity Date and the
adjustment of the Commitments of the Lenders.

       

      D. Mortgagor
and Mortgagee wish to modify certain terms of the Mortgage, as more fully set
forth herein.

       

      NOW,
THEREFORE, in consideration of mutual covenants contained herein, the
indebtedness secured by the Mortgage, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:

       

      1. Incorporation of
Definitions.  All capitalized terms not otherwise defined
herein shall have the meanings ascribed thereto in the Loan
Agreement.

       

      2. Modification of Granting
Clause.  The Mortgage is hereby modified by deleting the text
of subsection (i) of the Granting Clauses therein and  inserting the
following text in lieu thereof:

       

      the
payment when due of indebtedness evidenced by the Loan Agreement in the maximum
principal sum of $58,500,000.00, bearing interest as set forth in the Loan
Agreement and maturing on January 15, 2014, such date being the “Maturity Date,”
including, without limitation, all accrued and unpaid interest thereon, and
premiums and penalties, if any, thereon, including late payment charges and
Additional Interest (as defined in Section 5.2 hereof),

       

      3. Modification of Habendum
Clause.  The Mortgage is hereby modified by deleting the text
of the third paragraph of the Habendum Clause therein in its entirety and
inserting the following text in lieu thereof:

       

      PROVIDED
NEVERTHELESS, (a) if Borrowers or any of their successors or assigns shall pay
or cause to be paid the Secured Obligations in accordance with the terms hereof
and of the other Loan Documents and shall perform and observe all of the
agreements, covenants and provisions contained herein and in the other Loan
Documents, (b) all Commitments shall be irrevocably terminated in accordance
with the Credit Agreement, and (c) all Letters of Credit shall have terminated
or expired in accordance with the Credit Agreement, this Mortgage and the estate
and rights hereby granted shall cease to be binding and be void, otherwise to
remain in full force and effect.

       

      4. Modification of Secured
Indebtedness.  Any references in the Mortgage to the amount of
$49,666,666.68 are hereby deleted and replaced with the amount of
$58,500,000.00.

       

      5. Modification of Maturity
Date.  Any references in the Mortgage to the term “Maturity
Date” are hereby modified and shall hereafter refer to the date of January 15,
2014, subject to the provisions of the Loan Agreement.

       

      6. Modification of Loan
Agreement References.  Any references in the Mortgage to the
term “Loan Agreement” are hereby modified and shall hereafter refer to the Loan
Agreement, as the same may be modified, supplemented, amended and restated from
time to time.

       


      
        
          
            


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      7. Modification of
Borrowers. Any references in the Mortgage to the term “Borrowers” are
hereby modified and shall hereafter refer to the Borrowers as defined
herein.

       

      8. Modification of Loan
Documents. Any references in the Mortgage to the term “Transaction
Documents” are hereby deleted and replaced with the term “Loan Documents” as
defined in the Loan Agreement.

       

      9. Modification of Loan
Agreement Section References.

       

      
        	
                a.  

              	
                Any
      references in the Mortgage to Section 6.8(b) of the Loan Agreement are
      hereby deleted and replaced with Section 6.8(c) of the Loan
      Agreement.

              


      

       

      
        	
                b.  

              	
                Any
      references in the Mortgage to Section 7.1(f) of the Loan Agreement are
      hereby deleted and replaced with Section 7.1(k) of the Loan
      Agreement.

              


      

       

      10. No
Novation.  This Amendment shall not constitute a novation of
the Mortgage or be construed to satisfy or cancel in any manner the outstanding
indebtedness evidenced and secured thereby.

       

      11. No Other Amendments or
Waivers.  Except as expressly set forth above, the execution,
delivery and effectiveness of this Amendment shall not operate as an amendment
of any right, power or remedy of Mortgagee or the Lenders under the Mortgage or
any of the other Loan Documents, nor constitute a waiver of any provision of the
Mortgage or any of the other Loan Documents.  Except as expressly set
forth above, the text of the Mortgage and all other Loan Documents shall remain
unchanged and in full force and effect and Mortgagor hereby ratifies and
confirms its obligations thereunder.  This Amendment shall not
constitute a modification of the Mortgage or any of the other Loan Documents or
a course of dealing with Mortgagee or the Lenders at variance with the Mortgage
or the other Loan Documents such as to require further notice by Mortgagee or
the Lenders to require strict compliance with the terms of the Mortgage and the
other Loan Documents in the future, except as expressly set forth
herein.  Mortgagor acknowledges and expressly agrees that Mortgagee
and the Lenders reserve the right to, and do in fact, require strict compliance
with all terms and provisions of the Mortgage and the other Loan Documents, as
amended herein.  Mortgagor has no knowledge of any challenge to
Mortgagee’s or any Lender’s claims arising under the Loan Documents, or to the
effectiveness of the Loan Documents.

       

      12. Representations and
Warranties of Mortgagor.  In consideration of the execution and
delivery of this Amendment by Mortgagee, Mortgagor hereby represents and
warrants in favor of Mortgagee and the Lenders as follows:

      


      
        	
                a.  

              	
                the
      execution, delivery, and performance by Mortgagor of this Amendment have
      been duly authorized by all necessary action on the part of
      Mortgagor;

              


      

       

      
        	
                b.  

              	
                the
      execution, delivery, and performance by Mortgagor of this Amendment do not
      and will not (i) violate any provision of federal, state, or local law or
      regulation applicable to Mortgagor, the Governing Documents of Mortgagor,
      or any order, judgment, or decree of any court or other Governmental
      Authority binding on Mortgagor, (ii) conflict with, result in a breach of,
      or constitute (with due notice or lapse of time or both) a default under
      any material contractual obligation of Mortgagor, (iii) result in or
      require the creation or imposition of any Lien of any nature whatsoever
      upon any properties or

              


      

       


      
        
          
            


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      assets of
Mortgagor, other than Permitted Liens, or (iv) require any approval of
Mortgagor’s members or shareholders or any approval or consent of any person or
entity under any material contractual obligation of Mortgagor;

       

      
        	
                c.  

              	
                the
      execution, delivery, and performance by Mortgagor of this Amendment do not
      and will not require any registration with, consent, or approval of, or
      notice to, or other action with or by, any Governmental Authority or other
      person or entity, other than any consent or approval that has been
      obtained and remains in full force and
effect;

              


      

       

      
        	
                d.  

              	
                this
      Amendment, when executed and delivered by Mortgagor, will be the legally
      valid and binding obligation of Mortgagor, enforceable against Mortgagor
      in accordance with its terms, except as enforcement may be limited by
      equitable principles or by bankruptcy, insolvency, reorganization,
      moratorium, or similar laws relating to or limiting creditors’ rights
      generally;

              


      

       

      
        	
                e.  

              	
                No
      Default or Event of Default exists under the Mortgage or the other Loan
      Documents; and

              


      

       

      
        	
                f.  

              	
                As
      of the date hereof, all representations and warranties of Mortgagor set
      forth in the Mortgage and the other Loan Documents are true, correct and
      complete in all material respects, except to the extent such
      representation or warranty expressly relates to an earlier date (in which
      case such statement was true and correct on and as of such earlier
      date).

              


      

       

      13. Counterparts.  This
Amendment may be executed in multiple counterparts, each of which shall be
deemed to be an original and all of which, taken together, shall constitute one
and the same agreement.  In proving this Amendment in any judicial
proceedings, it shall not be necessary to produce or account for more than one
such counterpart signed by the party against whom such enforcement is
sought.  Any signatures delivered by a party by facsimile transmission
or by e-mail transmission shall be deemed an original signature
hereto.

      


      14. Reference to and Effect on
the Loan Documents.  Upon the effectiveness of this Amendment,
on and after the date hereof, each reference in the Mortgage to “this Mortgage”,
“hereunder”, “hereof” or words of like import referring to the Mortgage, and
each reference in the other Loan Documents to “the Mortgage”, “thereunder”,
“thereof” or words of like import referring to the Mortgage, shall mean and be a
reference to the Mortgage as amended hereby.

      


      15. Costs, Expenses and
Taxes.  Mortgagor agrees to pay on demand all costs and
expenses in connection with the preparation, execution, and delivery of this
Amendment and the other instruments and documents to be delivered hereunder,
including, without limitation, the fees and out-of-pocket expenses of counsel
for Mortgagee with respect thereto and with respect to advising Mortgagee as to
its rights and responsibilities hereunder and thereunder.  In
addition, Mortgagor agrees to pay any and all stamp and other taxes payable or
determined to be payable in connection with the execution and delivery of this
Amendment and the other instruments and documents to be delivered hereunder, and
agree to save Mortgagee and the Lenders harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes.  Mortgagor hereby acknowledges and agrees that
Mortgagee may, without prior notice to Borrowers, charge such costs and fees to
Borrowers’ Loan Account pursuant to Section 2.6(d) of the Loan
Agreement


      
        
          
            


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      16. Section
Titles.  The section titles contained in this Amendment are
included for the sake of convenience only, shall be without substantive meaning
or content of any kind whatsoever, and are not a part of the agreement between
the parties.

      


      17. Entire
Agreement.  This Amendment and the other Loan Documents
constitute the entire agreement and understanding between the parties hereto
with respect to the transactions contemplated hereby and thereby and supersede
all prior negotiations, understandings and agreements between such parties with
respect to such transactions.

      


      18. GOVERNING
LAW.  MORTGAGOR AND MORTGAGEE AGREE THAT THE RIGHTS AND
OBLIGATIONS UNDER THIS AMENDMENT REGARDING THE CREATION, PERFECTION AND
ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS HEREIN GRANTED SHALL BE GOVERNED
AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE
OF IOWA.  ALL OTHER PROVISIONS OF THIS AMENDMENT SHALL BE GOVERNED BY
THE LAWS OF THE STATE OF NEW YORK.

      


      19. Loan
Document.  This Amendment shall be deemed to be a Loan Document
for all purposes.

      


       

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      IN
WITNESS WHEREOF, the undersigned have executed this Amendment, under seal, as of
the day and year first above written.

       

      
        
          	 	
                  MORTGAGOR:

                   

                  DIAMOND JO, LLC, a
      Delaware limited liability company

                	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ Natalie
      Schramm	 
	 	 	Name:
      Natalie Schramm	 
	 	 	Title   
      CFO	 
	 	 	 	 


        

      

      


       

      STATE
OF IOWA                                               )

      ) SS.

      COUNTY
OF DUBUQUE                                   )

       

      I, Karen
M. Beetem, a Notary Public for said County and State aforesaid, do hereby
certify that DIAMOND JO, LLC, a Delaware limited liability company, by Natalie
Schramm, its CFO, who is personally known to me to be the same person whose name
is subscribed to the foregoing instrument on behalf of such entities, appeared
before me this day in person and acknowledged that she signed said
instrument as her own free and voluntary act and as the free and voluntary
act of said entities, for the uses and purposes set forth.

       

      Witness
my hand and official seal, this the 26th day of October,
2009.

       

      


      
        
          	
                   

                	
                   

                	/s/ Karen
      M. Beetem	 
	 	 	Notary
      Public	 
	 	 	 	 
	 	 	 	 


        

      

      


       

       

      


      


      [signatures
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                  MORTGAGEE;

                   

                  WELLS FARGO
      FOOTHILL, INC., a California corporation, as Agent

                	 
	 	 	 	 
	
                   

                	
                  By:
      

                	/s/ Patrick
      McCormack	 
	 	 	Name:
      Patrick McCormack	 
	 	 	Title: 
      Vice President	 
	 	 	 	 


        

      

      


       

      STATE
OF CALIFORNIA                                 

      COUNTY
OF LOS
ANGELES                          

       

      On October 27, 2009 before me, D'Nira S. Walden, Notary Public,
personally appeared Patrick McCormack, who provied to me on the basis of
satisfactory evidence to be the person whose name is subscribed to the within
instrument and acknoweldged to me that he executed the same in his authorized
capacity and that by his signaure on the instrument the person, or the entity
upon behalf of which the person acted, executed the instrument. 

       

      I certify
under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.

       

      WITNESS my hand and official seal.

       

      
        
          	 	 	 	 	 
	
                  /s/D'Nira
      S. Walden

                	 	 	
                   

                	 
	
                  Notary
      Public

                	 	 	
                   

                	 
	
                  My
      comm. expires Jul 3, 2010

                	 	 	
                   

                	 


        

      

       

      


       

      


       

       

      


       


      
        
          
            LEGAL_US_W #
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      Exhibit
A

      


      Legal
Description

      


      THE LAND
REFERRED TO HEREIN BELOW IS SITUATED IN THE COUNTY OF DUBUQUE, STATE OF
IOWA AND IS DESCRIBED AS FOLLOWS:

      


      PARCEL
A:

      


      Lot 3 of
Adams Company's 2nd Addition in the City of Dubuque, according to the recorded
plat thereof.

      


      


      PARCEL
B:

      


      Lots 7
and 8 of Ice Harbor Development in the City of Dubuque.

      


      Together
with:

      


      (a)  A
perpetual, non-exclusive fifteen (15) foot wide maintenance easement over and
across Lot 6 in Ice Harbor Development for maintenance of Lots 7 and 8 in Ice
Harbor Development.

      


      (b)  A
perpetual, non-exclusive easement for ingress and egress to and from Lots 7 and
8 in Ice Harbor Development over and across the "Ingress-Egress Easement"
abutting the Southern terminus of Bell Street.

       
 

      (c)  A
perpetual, non-exclusive easement for ingress and egress to Lots 7 and 8 in Ice
Harbor Development over and across Lots 6 and 10 in Ice Harbor Development, all
as shown on the final plat of Ice Harbor Development, in the City of Dubuque,
Iowa, recorded as Instrument No. 6167-95 in the office of the Dubuque County
Recorder.

      


      


      PARCEL
C:

      


      Lot 1 of
Adams Company's 1st Addition in the City of Dubuque, according to the recorded
plat thereof.

      


      


      PARCEL
D:

      


      Lot 1 of
Adams Company's 3rd Addition, in the City of Dubuque, according to the recorded
Plat thereof.

      


      


      PARCEL
E:

      


      Lots 2, 3
and 4 in Adams Company's 3rd Addition in the City of Dubuque, according to the
recorded Plat thereof.


      
        
          
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      EXHIBIT
B

      


      


      Real
Property subject to the Lease

      


      Lots 5
and 6 of Ice Harbor Development in the City of Dubuque, Iowa

      



      
        
          
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