Exhibit 4.1


 


CONSENT TO LOAN AND SECURITY AGREEMENT


 


This CONSENT
TO LOAN AND SECURITY AGREEMENT (this “Consent”) is entered into as of 7/30,
2007, 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”), 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 TN 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 (the “Third  Amendment”), and that certain Fourth
Amendment to Loan and Security Agreement and Consent dated as of December 22,
2006 (the “Fourth Amendment”), 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
Term Loan, 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 have requested that the Lenders, notwithstanding the provisions of
Section 7.20(b), Capital Expenditures, of the Loan Agreement, agree to
permit DJL to make, in addition to the capital expenditures permitted by
Sections 7.20(b)(i) and 720(b)(ii) of the Loan Agreement and the Third
Amendment, capital expenditures in an aggregate amount not to exceed
$80,000,000 for the Dubuque Casino Project (as defined in Section 2 of the Fourth
Amendment), and the Lenders are willing to agree to the requested consent 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.             Consent. The Lenders hereby
consent to the making by DJL of capital expenditures, in addition to the
capital expenditures permitted by Sections 7.20(b)(i) and 7.20(b)(ii) of the
Loan Agreement and the Third Amendment, in an aggregate amount not to exceed,
together with the capital expenditures permitted by Section 1(b) of the Fourth
Amendment, $80,000,000 for the Dubuque Casino Project, so long as no Default or
Event of Default has occurred and is continuing or would result as a
consequence thereof.


 

















 


2.             No Other Amendments or Waivers.
Except in connection with the consent set forth above, the execution, delivery
and effectiveness of this Consent 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. The text of the Loan
Agreement and all other Loan Documents shall remain unchanged and in full force
and effect and Borrowers hereby ratify and confirm their respective obligations
thereunder. This Consent 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 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. Borrowers have no
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.


 


3.             Conditions Precedent to
Effectiveness, This Consent 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
Consent duly executed and delivered by Borrowers, Agent and the Required
Lenders; and


 


(b)           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
Consent by Agent and the Lenders, each Borrower hereby represents and warrants
in favor of Agent and the Lenders as follows:


 


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


 


(b)           as to each Borrower,
the execution, delivery, and performance by such Borrower of this Consent do
not and will not (i) violate any provision of federal, state, or local law or
regulation applicable to any Borrower, the Governing Documents of any Borrower,
or any order, judgment, or decree of any court or other Governmental Authority
binding on any Borrower, (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 any Borrower (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 any Borrower,
other than Permitted Liens, or (iv) require any approval of any Borrower’s
members or shareholders or any approval or consent of any Person under any
material contractual obligation of any Borrower;


 


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(c)           the execution,
delivery, and performance by such Borrower of this Consent 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 Borrower,
the Loan Documents to which such Borrower is a party (including, without
limitation, the Loan Agreement, this Consent and all other documents
contemplated hereby), when executed and delivered by such Borrower, will be the
legally valid and binding obligations of such Borrower, enforceable against
such Borrower 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


 


(f )           as of the date
hereof, all representations and warranties of Borrowers 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 Consent
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 Consent 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.


 


6.             Reference to and Effect on the
Loan Documents. Upon the effectiveness of this Consent, 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 Consent, each Guarantor hereby acknowledges, consents and agrees
that all of its obligations and liability under the Guaranty to which it is a
party remain in full force and effect, and that the execution and delivery of
this Consent 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 Consent and
the other instruments and documents to be delivered hereunder, including,
without limitation, the 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


 


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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
Consent 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 Consent 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 Consent
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.


 


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


 


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


 


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


 


	
  BORROWERS:

  	
  DIAMOND JO, LLC, a Delaware limited
  liability

  company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Natalie A. Schramm

  	
   

  
	
   

  	
  Title:

  	
  CFO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE OLD EVANGELINE DOWNS, L.L.C.,
 a Louisiana limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Natalie A. Schramm

  	
   

  
	
   

  	
  Title:

  	
  CFO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  AGENT AND

  LENDERS:

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Lan Wong

  	
   

  
	
   

  	
  Title:

  	
  Vice - President

  	
   

  
	
   

  	
   

  
	
   

  	
  D.B. ZWIRN SPECIAL OPPORTUNITIES

  FUND, L.P. (formerly known as Highbridge/Zwirn

  Special Opportunities Fund, L.P.) a Delaware

  limited partnership, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  D.B. Zwirn Partners, LLC, its General

  Partner

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  By:

  	
  Zwirn Holdings, LLC, its

  Managing Member

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
								



 


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  ACKNOWLEDGED AND

  AGREED:

  	
   

  
	
   

  	
   

  
	
  GUARANTORS:

  	
  PENINSULA GAMING, LLC, a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Natalie A. Schramm

  	
   

  
	
   

  	
  Title:

  	
  CFO

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Natalie A. Schramm

  	
   

  
	
   

  	
  Title:

  	
  CFO