wfffifthamend.htm


     

    
      

      

    

    


      FIFTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT

      


      


      This
FIFTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”) is
entered into as of June 30, 2008, among DIAMOND JO, LLC (formerly
known as Peninsula Gaming Company, LLC), a Delaware limited liability company
(“DJL”), THE OLD EVANGELINE DOWNS,
L.L.C., a Louisiana limited liability company (“OED”, and together
with DJL, referred to hereinafter each individually as a “Borrower”, and
individually and collectively, as “Borrowers”), PENINSULA GAMING, LLC, a
Delaware limited liability company (“PGL”), PENINSULA GAMING CORP., a
Delaware corporation (“PGC”, and together
with PGL, referred to hereinafter each individually as a “Guarantor”, and
individually and collectively, as “Guarantors”), the
Lenders (as defined in the hereinafter defined Loan Agreement) signatories
hereto, and WELLS FARGO
FOOTHILL, INC., a California corporation, as the arranger and agent for
the Lenders (“Agent”).

       

      W
I T N E S S E T H:

      


      WHEREAS,
Borrowers, Agent, and the Lenders 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, that certain
Second Amendment to Loan and Security Agreement dated as of July 12, 2005, that
certain Third Amendment to Loan and Security Agreement and Consent dated as of
December 6, 2006, and that certain Fourth Amendment to Loan and Security
Agreement and Consent, dated as of December 22, 2006 and as supplemented by that
certain Borrower Supplement No. 1 dated as of May 13, 2005 (as amended and
supplemented and as otherwise amended, restated, supplemented or otherwise
modified from time to time, the “Loan Agreement”;
capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in the Loan Agreement), pursuant to which the
Lender Group has agreed to make the Advances and other extensions of credit to
Borrowers from time to time pursuant to the terms and conditions thereof and the
other Loan Documents;

       

      WHEREAS,
Borrowers requested that certain terms and conditions of the Loan Agreement be
amended, and the Lender Group and, by their respective acknowledgment hereof,
Guarantors have agreed to the requested amendments on the terms and conditions
provided herein;

       

      NOW
THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:

       

      1. Amendments to the Loan
Agreement.

       

      (a) Section
1.1 of the Loan Agreement, Definitions, is
hereby modified and amended by amending and restating the definitions of “Applicable Margin”,
“Capital Expenditure
Carry Forward Amount”, “Fee Letter” and
“OED Hotel
Project” in their respective entirety as follows:

       


      
        
          
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      (b) ““Applicable Margin”
means, as of any date of determination, effective as of the Fifth Amendment
Effective Date, the applicable percentage indicated below that corresponds to
Combined EBITDA for the 12-month period ended immediately prior to the date of
determination:

       

      
        	
                Pricing
      Level

              	
                Combined
      EBITDA as of the end of each fiscal quarter

              	
                Applicable
      Margin for Revolving Advances that are Base Rate Loans

              	
                Applicable
      Margin for Revolving Advances that are LIBOR Rate Loans

              	
                Applicable
      Margin for Letter of Credit Fee

              
	
                Level
      I

              	
                Less
      than $40,000,000

              	
                0.50%

              	
                3.00%

              	
                2.50%

              
	
                Level
      II

              	
                Greater
      than or equal to $40,000,000, but less than $52,000,000

              	
                0.25%

              	
                2.50%

              	
                 2.50%

              
	
                Level
      III

              	
                Greater
      than or equal to $52,000,000, but less than $62,000,000

              	
                0.00%

              	
                2.25%

              	
                2.25%

              
	
                Level
      IV

              	
                Greater
      than or equal to $62,000,000

              	
                0.00%

              	
                2.00%

              	
                2.00%

              


      

      


      The
Applicable Margin for each Advance and the Letter of Credit fee shall be
determined as of the end of each fiscal quarter by reference to Combined EBITDA
for the 12-month period then ending; provided, however, that (a) no
change in the Applicable Margin shall be effective until 3 Business Days after
the date on which Agent receives financial statements pursuant to Section 6.3(a), and a
certificate of the chief financial officer of Parent demonstrating such amount,
attaching thereto a schedule in form reasonably satisfactory to Agent of the
computations used by Parent in determining such Combined EBITDA for such
preceding 12 month period ending as of the end of the most recently ended fiscal
quarter, (b) the Applicable Margin shall be the interest rate margin set forth
for Level I above with respect to the applicable Revolving Advances and the
Letter of Credit fee, respectively, (i) if Parent has not submitted to Agent the
information described in clause (a) of this proviso as and when required under
Section 6.3(a),
for so long as such information has not been received by Agent, and (ii) at the
election of Agent or the Required Lenders, upon the occurrence and during
the

       


      
        
          
             

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      continuation
of any Event of Default (whether or not the Default Rate of interest shall then
be in effect) and (c) in the event that the information contained in any
financial statement or any certificate delivered pursuant to clause (a) above is
shown to be inaccurate, and such inaccuracy, if corrected, would have led to the
application of a higher Applicable Margin for any period (each, an “Applicable Period”)
than the Applicable Margin actually applied for such Applicable Period, then (i)
Borrowers shall immediately deliver to Agent a correct certificate for such
Applicable Period, (ii) the Applicable Margin shall be the Applicable Margin set
forth in the table above determined by Agent to be applicable for such
Applicable Period based on such corrected certificate, and (iii) Borrowers shall
immediately deliver to Agent full payment in respect of the accrued additional
interest on the Obligations and additional Letter of Credit fees as a result of
such increased Applicable Margin for such Applicable Period, which payment shall
be promptly applied by Agent to the affected Obligations.

       

      “Capital Expenditure Carry
Forward Amount” means, to the extent positive, for any fiscal year, a
carry forward amount equal $6,000,000 less the aggregate amount of capital
expenditures made pursuant to Section 7.20(b)(i) in
the immediately preceding fiscal year (if fiscal year 2007 is the relevant
immediately preceding fiscal year, as such Section was in effect immediately
prior to the Fifth Amendment Effective Date).

       

      “Fee Letter” means
that certain Third Amended and Restated Fee Letter, dated as of the Fifth
Amendment Effective Date, between Borrowers and Agent.

       

      “OED Hotel Project”
means the project to design, develop, construct, equip and operate the OED Hotel
including remodel of existing casino exterior, casino floor and
restaurants.”

       

      (c) Section
1.1 of the Loan Agreement, Definitions, is
hereby further modified and amended by deleting the definition of “Applicable Prepayment
Premium” in its entirety.

       

      (d) Section
1.1 of the Loan Agreement, Definitions, is
hereby further modified and amended by (i) deleting the “and” from the end of
clause (l) of the definition of “Permitted
Investments” and (ii) deleting clause (m) from such definition and
inserting the following in lieu thereof:

       

      “(m)                      Investments
made after the Closing Date but prior to the Fifth Amendment Effective Date as
more fully disclosed to Agent, in form and substance reasonably satisfactory to
the Agent, on or prior to the Fifth Amendment Effective Date; and

       

       (n)           Investments
not otherwise permitted by clauses (a) through (m) above, not to exceed
$10,000,000.”

       

      (e) Section
1.1 of the Loan Agreement, Definitions, is
hereby further modified and amended by adding the following definitions thereto
in the appropriate alphabetical order:

       


      
        
          
             

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      (f) ““Fifth Amendment”
means that certain Fifth Amendment to Loan and Security Agreement, dated as of
the Fifth Amendment Effective Date, among Borrowers, Guarantors, Lenders party
thereto and Agent.

       

      “Fifth Amendment Effective
Date” means June 30, 2008.

       

       “OED Note Reserve”
means, commencing March 1, 2009, $575,833.33 times the number of months
that have elapsed during the period commencing on February 1, 2009, and ending
on February 28, 2010.”

       

      (g) Section
2.1 of the Loan Agreement, Advances, is hereby
modified and amended by amending and restating subclause (z) of clause (a) of
such Section in its entirety as follows:

       

      “(z)   the
sum of (A) commencing on March 1, 2009, until Agent has received evidence that
all of the obligations of Borrowers, Guarantors and their Affiliates under the
OED Note Documents have been paid in full, the OED Note Reserve, and (B) the
aggregate amount of any other reserves, if any, established by Agent under Section
2.1(b).”

       

      (h) Section
2.6(a) of the Loan Agreement, Interest Rates, is
hereby modified and amended by amending and restating such Section in its
entirety as follows:

       

      “(a)           Interest
Rates.  Except as provided in clause (c) below, all Obligations
(except for undrawn Letters of Credit) that have been charged to the Loan
Account pursuant to the terms hereof shall bear interest on the Daily Balance
thereof, at Borrower’s option in accordance with Section 2.16, as
follows:  (i) if the relevant Obligation is an Advance that is a
LIBOR Rate Loan, at a per annum rate equal to the LIBOR Rate plus the Applicable
Margin, (ii) if the relevant Obligation is the Term Loan, at a per annum
rate equal to the Base Rate plus the Base Rate Term Loan Margin and (iii)
otherwise, at a per annum rate equal to the Base Rate plus the Applicable
Margin. The foregoing notwithstanding, at no time shall any portion of the
Obligations bear interest on the Daily Balance thereof at a per annum rate less
than 6.00%. To the extent that interest accrued hereunder at the rate set forth
herein would be less than the foregoing minimum applicable daily rate, the
interest rate chargeable hereunder for any such day automatically shall be
deemed increased to the minimum rate.”

       

      (i) Section
3.4 of the Loan Agreement, Term, is hereby
modified and amended by amending and restating such Section in its entirety as
follows:

       

      “3.4                      Term.  This
Agreement shall become effective upon the execution and delivery hereof by
Borrowers, Agent and the Lenders and shall continue in full force and effect for
a term ending on January 15, 2012 (the “Maturity
Date”).  The foregoing notwithstanding, the Lender Group, upon
the election of the Required Lenders, shall have the right to terminate its
obligations under this Agreement immediately and without notice upon the
occurrence and during the continuation of an Event of Default.”

       


      
        
          
             

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      Section
3.6 of the Loan Agreement, Early Termination
by  Borrowers, is hereby modified and amended by amending and
restating such Section in its entirety as follows:

       

      “3.6                      Early
Termination by Borrowers.  Borrowers have the option, at any
time upon 60 days’ prior written notice by Borrowers to Agent, to terminate this
Agreement by paying to Agent, for the benefit of the Lender Group, in cash, the
Obligations (including either (a) providing cash collateral to be held by Agent
for the benefit of the Lenders with a Revolver Commitment in an amount equal to
105% of the then extant Letter of Credit Usage, or (b) causing the original
Letters of Credit to be returned to Agent), in full. If Borrowers have sent a
notice of termination pursuant to the provisions of this Section, then the
Lenders’ obligations to extend credit hereunder shall terminate and Borrowers
shall be obligated to repay the Obligations (including either (a) providing cash
collateral to be held by Agent for the benefit of the Lenders with a Revolver
Commitment in an amount equal to 105% of the then extant Letter of Credit Usage,
or (b) causing the original Letters of Credit to be returned to Agent), in full
on the date of termination of this Agreement in such notice.”

       

      (j) Section
7.1 of the Loan Agreement, Indebtedness, is
hereby modified and amended by amending and restating clause (m) of such Section
in its entirety as follows:

       

      “(m)                      (i)
unsecured Indebtedness incurred after the Closing Date but before the Fifth
Amendment Effective Date as more fully disclosed to Agent, in form and substance
reasonably satisfactory to the Agent, on or prior to the Fifth Amendment
Effective Date and (ii) unsecured Indebtedness not otherwise permitted by
clauses (a) through (l) above and clause (m)(i) in an aggregate principal amount
(or accreted value, as applicable) at any time outstanding pursuant to this
clause (m)(ii), including all Refinancing Indebtedness incurred to repay,
redeem, discharge, retire, defease, refund, refinance or replace any
Indebtedness incurred pursuant to this clause (m)(ii), not to exceed
$10,000,000;”

       

      (k) Section
7.11 of the Loan Agreement, Restricted Payments,
is hereby modified and amended by amending and restating subclause (ii) of
clause (4) of the second paragraph of such Section in its entirety as
follows:

       

      “(ii) so
long as clause (a) above is satisfied, distributions pursuant to, and in
accordance with, Management Agreements in effect from time to time, provided that (A) to
the extent a subordination agreement with respect to such Management Agreement
is required to be entered into pursuant to Section 7.21, such
distributions are permitted by such subordination agreement and (B) the
aggregate amount payable to PGP or any other Excluded Person or Affiliate
(excluding any payments (x) permitted by Section 7.16 and (y)
payable under employment agreements entered into in the ordinary course of
business for which an executed subordination agreement is not required to be
delivered pursuant to Section 7.21),
pursuant to the Management Agreements or any employment, consulting or similar
agreements or arrangements for any fiscal year shall not

       


      
        
          
             

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      exceed
the lesser of (A) 5.00% of Combined EBITDA for the immediately preceding fiscal
year, and (B) $4,000,000,”

       

      (l) Section
7.11 of the Loan Agreement, Restricted Payments,
is hereby further modified and amended by amending and restating clause (9) of
the second paragraph of such Section in its entirety as follows:

       

      “(9)           (i)
Restricted Payments made after the Closing Date but before the Fifth Amendment
Effective Date as more fully disclosed to Agent, in form and substance
reasonably satisfactory to the Agent, on or prior to the Fifth Amendment
Effective Date and (ii) so long as (A) the Restricted Payment is otherwise not
prohibited by the Indenture (after giving effect to any amendment or waiver
thereof), (B) clause (a) above is satisfied and (C) the aggregate amount of
Excess Availability plus cash and Cash Equivalents subject to satisfactory
Control Agreements, after giving effect to each such Restricted Payment, is at
least $10,000,000, Restricted Payments not otherwise permitted by this Section
7.11 in an aggregate amount during the term of this Agreement pursuant to this
clause (9)(ii) not to exceed $15,000,000.”

       

      (m) Section
7.20(a) of the Loan Agreement, Minimum Combined
EBITDA, is hereby modified and amended by amending and restating such
Section in its entirety as follows:

       

      “(a)           Minimum Combined EBITDA.  For the 12 fiscal month period
ended on June 30, 2008, and on the last day of each fiscal quarter ended
thereafter, fail to maintain an aggregate amount of Combined EBITDA, measured on
a fiscal quarter-end basis, of at least $40,000,000.

      


      (n) Section
7.20(b) of the Loan Agreement, Capital Expenditures,
is hereby modified and amended by amending and restating such Section in its
entirety as follows:

       

      “(b)           Capital
Expenditures.  Notwithstanding anything contained in any
amendment, waiver or consent executed prior to the Fifth Amendment Effective
Date, (i) except as provided in Sections 7.20(b)(ii)
and 7.20(b)(iii), make
capital expenditures in any fiscal year ended on or after December 31, 2008 in
excess of the sum of $6,000,000 plus the Capital Expenditure Carry Forward
Amount.

       

      (ii)           However,
in addition to the capital expenditures permitted by Section 7.20(b)(i),
so long as the aggregate amount of Excess Availability plus cash and Cash
Equivalents subject to satisfactory Control Agreements, after giving effect to
each such capital expenditure, is at least $10,000,000, Borrowers may make
capital expenditures in the amount set forth below for the projects described
with respect thereto:

      


      (A)           $8,000,000
to develop an off-track betting parlor located in St. Martin Parish, Louisiana;
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      (B)           $3,000,000
to develop a recreational vehicle park at the Racino Project
racetrack.

      


      (iii)           Further,
in addition to the capital expenditures permitted by Sections 7.20(b)(i)
and 7.20(b)(ii), so long
as no Default or Event of Default has occurred and is continuing or would result
as a consequence thereof, Borrowers may make capital expenditures in the amount
set forth below for the projects described with respect thereto:

      


      (A)           $25,000,000
for the OED Hotel Project; and

      


      (B)           $85,000,000
for the Dubuque Casino Project (excluding the payments and obligations
associated with (1) the Amended and Restated Port of Dubuque Public Parking
Facility Development Agreement, dated October 1, 2007 (the “Development
Agreement”), between the City of Dubuque, Iowa and DJL, (2) the Minimum
Assessment Agreement, dated as of October 1, 2007, by and among the City of
Dubuque, Iowa, DJL and the City Assessor of the City of Dubuque, Iowa and (3)
any other agreement entered into by DJL in connection with the development of
the parking facility for the Dubuque Casino, so long as such agreement is in
form and substance reasonably satisfactory to the Agent).

      


      (iv)           Further,
any and all payments and obligations under the agreements described in Section
7.20(b)(iii)(B) shall not be considered capital expenditures under this Section 7.20 or any
other Section of this Agreement other than Section
7.17.”

      


      2. No Other Amendments or
Waivers.  Except in connection with the amendments set forth
above, the execution, delivery and effectiveness of this Amendment shall not
operate as an amendment of any right, power or remedy of Agent or the Lenders
under the Loan Agreement or any of the other Loan Documents, nor constitute a
waiver of any provision of the Loan Agreement or any of the other Loan
Documents.  Except for the amendments set forth above, the text of the
Loan Agreement (including, without limitation, the schedules thereto) and all
other Loan Documents shall remain unchanged and in full force and effect and
Borrowers and Guarantors hereby ratify and confirm their respective obligations
thereunder.  This Amendment shall not constitute a modification of the
Loan Agreement or any of the other Loan Documents or a course of dealing with
Agent or the Lenders at variance with the Loan Agreement or the other Loan
Documents such as to require further notice by Agent or the Lenders to require
strict compliance with the terms of the Loan Agreement and the other Loan
Documents in the future, except as expressly set forth
herein.  Borrowers and Guarantors acknowledge and expressly agree that
Agent and the Lenders reserve the right to, and do in fact, require strict
compliance with all terms and provisions of the Loan Agreement and the other
Loan Documents, as amended herein.  Neither Borrowers nor Guarantors
have any knowledge of any challenge to Agent’s or any Lender’s claims arising
under the Loan Documents, or to the effectiveness of the Loan
Documents.

       


      
        
          
             

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      3. Conditions Precedent to
Effectiveness.  This Amendment shall become effective as of the
date hereof when, and only when, Agent shall have received, in form and
substance satisfactory to Agent:

       

      (a) counterparts
of this Amendment duly executed and delivered by Borrowers, Agent and the
Lenders;

       

      (b) the Fee
Letter among Borrowers and Agent, duly executed and delivered by Borrowers and
Agent;

       

      (c) if
requested by Agent, amendments modifying and amending the Diamond Jo Ship
Mortgage and the Mortgages;

       

      (d) if
requested by Agent, a Subordination of Mortgage and a Subordination of Preferred
Fleet Mortgage duly executed by the Indenture Trustee for each Mortgage (as
defined in the Indenture) in place on the date of the Loan
Agreement;

       

      (e) opinion
of Borrowers’ and Guarantors’ counsel (including, without limitation, admiralty
counsel (if requested by Agent), real estate counsel (if requested by Agent) and
regulatory counsel), such opinions to include regulatory opinions as to the date
issuance and valid existence of Borrowers’ Gaming Licenses;

       

      (f) evidence
in form and substance satisfactory to Agent that Borrowers shall have received
all licenses (including the Gaming Licenses), approvals or evidence of other
actions required by any Governmental Authority, including the Louisiana
Regulatory Authorities and the Iowa Gaming Authorities, in connection with the
execution and delivery by Borrowers of this Amendment;

       

      (g) if
requested by Agent, updated Mortgage Policies for the Real Property Collateral
the reflect that the Mortgages on such Real Property Collateral are valid and
enforceable first priority Liens on such Real Property Collateral free and clear
of all defects and encumbrances except Permitted Liens;

       

      (h) a
certificate from the Secretary of each Borrower and Guarantor attesting to the
resolutions of such Person’s board of directors (or comparable manager)
authorizing its execution, delivery and performance of this Amendment and the
other documents executed in connection herewith to which such Person is a party
and authorizing specific officers of such Person to execute the
same;

       

      (i) copies of
each Borrower’s and Guarantor’s Governing Documents, as amended, modified or
supplemented as of the Fifth Amendment Effective Date, certified by the
Secretary of such Borrower or Guarantor, as applicable;

       

      (j) a
certificate of status with respect to each Borrower and Guarantor, dated within
10 days of the Fifth Amendment Effective Date, such certificate to be issued by
the appropriate officer of the jurisdiction of organization of such Borrower or
Guarantor, as applicable, which certificate shall indicate that such Borrower or
Guarantor, as applicable, is in good standing in such
jurisdictions;

       


      
        
          
             

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      (k) certificates
of status with respect to each Borrower and Guarantor, as applicable, each dated
within 30 days of the Fifth Amendment Effective Date, such certificates to be
issued by the appropriate officer of the jurisdiction (other than the
jurisdiction of organization of such Borrower or Guarantor, as applicable) in
which its failure to be duly qualified or licensed would constitute a Material
Adverse Change, which certificates shall indicate that such Borrower or
Guarantor, as applicable, is in good standing in such jurisdictions;
and

       

      (l) such
other information, documents, instruments or approvals as Agent or Agent’s
counsel may reasonably require.

       

      4. Representations and
Warranties of Borrowers.  In consideration of the execution and
delivery of this Amendment by Agent and the Lenders, each Borrower and each
Guarantor (Borrowers and Guarantors are referred to hereinafter collectively as
the “Loan
Parties” and each as a “Loan Party”) hereby
represents and warrants in favor of Agent and the Lenders as
follows:

       

      (a) as to
each Loan Party, the execution, delivery, and performance by such Loan Party of
this Amendment have been duly authorized by all necessary action on the part of
such Loan Party;

       

      (b) as to
each Loan Party, the execution, delivery, and performance by such Loan Party of
this Amendment do not and will not (i) violate any provision of federal, state,
or local law or regulation applicable to such Loan Party, the Governing
Documents of any Loan Party, or any order, judgment, or decree of any court or
other Governmental Authority binding on such Loan Party, (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 such Loan Party
(including any of the Senior Note Documents), (iii) result in or require the
creation or imposition of any Lien of any nature whatsoever upon any properties
or assets of such Loan Party, other than Permitted Liens, or (iv) require any
approval of such Loan Party’s members or shareholders or any approval or consent
of any Person under any material contractual obligation of such Loan
Party;

       

      (c) the
execution, delivery, and performance by such Loan Party of this Amendment do not
and will not require any registration with, consent or approval of, notice to,
or other action with or by, any Governmental Authority or other Person, other
than any consent or approval that has been obtained and remains in full force
and effect;

       

      (d) as to
each Loan Party, the Loan Documents to which such Loan Party is a party
(including, without limitation, the Loan Agreement, this Amendment and all other
documents contemplated hereby), when executed and delivered by such Loan Party,
will be the legally valid and binding obligations of such Loan Party,
enforceable against such Loan Party in accordance with their respective 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 Loan Agreement or the other Loan
Documents; and

       


      
        
          
             

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      (f) as of the
date hereof, all representations and warranties of each Loan Party set forth in
the Loan Agreement 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).

       

      5. 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 other electronic transmission shall be deemed an original signature
hereto.

       

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

       

      7. Affirmation of
Guaranty.  By executing this Amendment, each Guarantor hereby
acknowledges, consents and agrees that all of its obligations and liability
under the Guaranty to which it is a party and the other Loan Documents to which
it is a party remain in full force and effect, and that the execution and
delivery of this Amendment and any and all documents executed in connection
herewith shall not alter, amend, reduce or modify its obligations and liability
under such Guaranty or any of the other Loan Documents to which it is a
party.

       

      8. Costs, Expenses and
Taxes.  Borrowers agree, jointly and severally, 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 reasonable fees and
out-of-pocket expenses of counsel for Agent with respect thereto and with
respect to advising Agent as to its rights and responsibilities hereunder and
thereunder.  In addition, Borrowers agree, jointly and severally, 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 Agent 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.  Borrowers hereby acknowledge and agree that Agent 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.

       

      9. 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.

       

      10. 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.

       


      
        
          
             

            LEGAL_US_W # 58344626.9


          

           


        

        
           


          
            

          

        

        
           


        

      


      11. GOVERNING
LAW.  THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.

       

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

       

      


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            LEGAL_US_W # 58344626.9


          

           


        

        
           


          
            

          

        

        
           


        

      


      IN WITNESS WHEREOF, the parties hereto
have executed and delivered this Amendment as of the day and year first written
above.

      


      


      
        	
                BORROWERS:

              	
                DIAMOND JO, LLC, a
      Delaware limited liability company

              


      

      


       

      By: s/Natalie
Schramm                                                                      

            Name:  Natalie
Schramm

            Title:    CFO

      


      


      THE OLD EVANGELINE DOWNS,
L.L.C.,

      a
Louisiana limited liability company

      


       

      By: s/Natalie
Schramm                                                                      

            Name:
Natalie Schramm

            Title:   CFO


      
        
          
            Fifth Amendment to Loan and Security
Agreement 

          

           


        

        
           


          
            

          

        

        
           


        

      


      AGENT AND
LENDERS:                                                                WELLS FARGO FOOTHILL,
INC.,

      a
California corporation, as Agent and as a Lender

      


       

      By: s/Patrick
McCormack                                                                      

            Name:   Patrick
McCormack

            Title:     Vice
President

      


      


       


      
        
          
            Fifth Amendment to Loan and Security
Agreement 

          

           


        

        
           


          
            

          

        

        
           


        

      


      ACKNOWLEDGED
AND AGREED:

      


       

      GUARANTORS:                                                                PENINSULA GAMING, LLC, a
Delaware limited liability company

       

      


      


      By: s/Natalie
Schramm

            Name:  Natalie
Schramm

            Title:    CFO

       

      


       

      PENINSULA GAMING CORP.
(formerly knownas The Old Evangeline Downs Capital Corp.), a Delaware
corporation

      


      


      By: s/Natalie
Schramm

            Name:
Natalie Schramm

            Title:   CFO


      
        
          
            Fifth Amendment to Loan and Security
Agreement