Exhibit 10.6


 


SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT


 


This SECOND AMENDMENT TO
LOAN AND SECURITY AGREEMENT (this “Amendment”) is entered into as of July 12,
2005, 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”), DIAMOND JO
WORTH, LLC, a Delaware limited liability company (“DJW”, and
together with OED and 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 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, 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 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
deleting the definitions of “Applicable Prepayment Premium”, “Borrower”,
“Fee Letter”, “Gaming Property”, “Loan Documents”, “Maximum
Revolver Amount”, “Permitted Dispositions”, “Restricted
Subsidiaries”, “Subordination of Mortgage” and “Subordination of
Preferred Fleet Mortgage” in
their respective entirety from such Section and inserting in lieu thereof,
respectively, the following:


 


““Applicable Prepayment Premium” means, as of
any date of determination, an amount equal to (a) during the period of
time from and after the date of the execution and delivery of this Agreement up
to the date that is the first anniversary of the Closing Date, 4% of the
Maximum Revolver Amount, (b)


 





















 


during
the period of time from and including the date that is the first anniversary of
the Closing Date up to the date that is the second anniversary of the Closing
Date, 3% of the Maximum Revolver Amount, (c) during the period of time
from and including the date that is the second anniversary of the Closing Date
up to the date that is the third anniversary of the Closing Date, 2% of the
Maximum Revolver Amount, and (d) during the period of time from and
including the date that is the third anniversary of the Closing Date up to the
Maturity Date, 1% of the Maximum Revolver Amount.


 


 “Borrower”
and “Borrowers” means, individually, each of OED, DJL and DJW and individually
and collectively, jointly and severally, OED, DJL and DJW.


 


 “Fee Letter”
means that certain amended and restated fee letter, dated as of July 12,
2005, between Borrowers and Agent, in form and substance satisfactory to Agent.


 


“Gaming Property” or “Gaming Properties”
means one or more of the foregoing:  (a) the
Diamond Jo Vessels; (b) the casino and racetrack located in Opelousas, St.
Landry Parish, Louisiana; (c) the Worth County Project, in each case, so
long as it is owned by Borrowers or a Restricted Subsidiary; and (d) any
other gaming facility or gaming operation owned and controlled or to be owned
and controlled after the Closing Date by Borrowers or a Restricted Subsidiary
and that contains, or that based upon a plan approved by the applicable Borrower’s
Managers will contain upon the completion of the construction or development
thereof, an aggregate of at least 500 slot machines or other gaming devices,
provided, in each case, that the property and assets (other than Excluded
Assets) of such Gaming Property constitute Collateral.


 


 “Loan
Documents” means this Agreement, the Control Agreements, the Diamond Jo
Ship Mortgage, the Disbursement Letter, the Fee Letter, the Guaranties, the
Intercompany Subordination Agreement, the Intercreditor Agreement, the Letters
of Credit, the Mortgages, the Management Fees Subordination Agreement, the
Guarantor Security Agreement, the Officers’ Certificate, the Trademark Security
Agreement, the Pledge Agreement, the Subordination of Preferred Fleet Mortgage,
the Subordination of Mortgage, any Commercial Tort Claim/Judgment Assignments,
any note or notes executed by a Borrower in connection with this Agreement and
payable to a member of the Lender Group, any subordination agreement, subordination
instrument or other subordination document executed and/or delivered by any
Person in favor of Agent or the Lender Group and any other agreement entered
into, now or in the future, by any Borrower or any Guarantor in favor of Agent
or the Lender Group in connection with this Agreement.


 


“Maximum Revolver Amount” means $50,000,000.


 


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“Permitted Dispositions” means (a) sales
or other dispositions by any Borrower or any Guarantor of FF&E Collateral
that is substantially worn, damaged, or obsolete in the ordinary course of
business; provided, however, Agent shall have received 10 days’
prior written notice of such sale or disposition, and upon the consummation of
such sale or disposition, Borrowers shall repay the Term Loan in an amount
equal to the Net Proceeds for such Collateral (which repayment shall be applied
against the installments due under Section 2.2 in the inverse order
of maturity), (b) sales or other dispositions by any Borrower or any
Guarantor of Equipment (other than (i) Operating Assets and (ii) FF&E
Collateral) that is substantially worn, damaged, or obsolete in the ordinary
course of business; provided, however, Agent shall have received
10 days’ prior written notice of such sale or disposition, and upon the consummation
of such sale or disposition, Borrowers shall repay Advances, as applicable, in
an amount equal to the Net Proceeds for such Collateral, (c) sales by any
Borrower or any Guarantor of Inventory to buyers in the ordinary course of
business, (d) the use or transfer of money or Cash Equivalents by any
Borrower, any Restricted Subsidiary or any Guarantor in a manner that is not
prohibited by the terms of this Agreement or the other Loan Documents, (e) the
licensing by any Borrower, any Restricted Subsidiary or any Guarantor, on a
non-exclusive basis, of patents, trademarks, copyrights, and other intellectual
property rights in the ordinary course of business, (f) transfers of
assets by a Borrower or a Restricted Subsidiary to another Borrower or another
Restricted Subsidiary, (g) any exchange of Equipment for replacement
Equipment in the ordinary course of business, so long as such replacement
Equipment is of at least equal fair market value to the Equipment so replaced,
and (h) so long as no Event of Default has occurred and is then
continuing, dispositions of assets (other than, without the prior written
consent of Agent (in its sole and absolute discretion), FF&E Collateral) with
an aggregate fair market value not to exceed $1,000,000 during the term of this
Agreement.


 


“Restricted Subsidiaries” means any Subsidiary
of a Borrower which at the time of determination is not an Unrestricted
Subsidiary.


 


“Subordination of Mortgage” means those certain
subordination agreements relating to the Mortgages (as such term is defined in
the Indenture) executed by the Indenture Trustee in favor of Agent from time to
time, in form and substance satisfactory to Agent.


 


“Subordination of Preferred Fleet Mortgage”
means those certain subordinations relating to the Lien of the Indenture
Trustee on the Diamond Jo Vessels executed by the Indenture Trustee in favor of
Agent from time to time, in form and substance satisfactory to Agent.”


 


(b)                                 Section 1.1
of the Loan Agreement, Definitions, is hereby further modified and
amended by amending and restating clause (q) of the definition of “Permitted
Liens” in its entirety as follows:


 


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“(q)                           leases
or subleases of Real Property (other than the Real Property comprising the Racino
Project, the Worth County Project and the Ice Harbor Facility) granted to
others that do not interfere in any material respect with the business of
Borrowers or any of the Restricted Subsidiaries or materially detract from the
value of the relative assets of Borrowers or any Restricted Subsidiary;”


 


(c)                                  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:


 


““DJW” means Diamond Jo Worth, LLC, a Delaware limited liability
company.


 


“Operating Assets” means, collectively (i) the Ice Harbor
Facility, (ii) the casino and racetrack and related Real Property owned by
OED and located in Opelousas, St. Landry Parish, Louisiana, and (iii) the
excursion gambling boat and related Real Property owned by DJW and located in
Northwood, Worth County, Iowa.


 


“Worth County Project” means the project to design, develop,
construct, equip and operate that certain excursion gambling boat to be owned
by DJW and located in Northwood, Worth County, Iowa.”


 


(d)                                 Section 2.1
of the Loan Agreement, Advances, is hereby modified and amended by amending
and restating subsection (b) of such Section in its entirety as
follows:


 


“(b)                           Anything
to the contrary in this Section 2.1 notwithstanding, Agent shall have the
right to establish reserves in such amounts, and with respect to such matters,
as Agent in its Permitted Discretion shall deem necessary or appropriate,
against the Borrowing Base, including reserves with respect to (i) sums
that Borrowers are required to pay (such as taxes, assessments, insurance
premiums, or, in the case of leased assets, rents or other amounts payable
under such leases) and has failed to pay under any Section of this
Agreement or any other Loan Document, and (ii) amounts owing by Borrowers
or their Subsidiaries to any Person to the extent secured by a Lien on, or
trust over, any of the Collateral (other than any existing Permitted Lien set
forth on Schedule P-1 which is specifically identified thereon as entitled
to have priority over the Agent’s Liens), which Lien or trust, in the Permitted
Discretion of Agent, likely would have a priority superior to the Agent’s Liens
(such as Liens or trusts in favor of landlords, warehousemen, carriers,
mechanics (including, without limitation, any Liens in favor of mechanics or
subcontractors arising in connection with the Racino Project or the Worth
County Project), materialmen, laborers, or suppliers, or Liens or trusts for ad
valorem, excise, sales, or other taxes where given priority under applicable
law) in and to such item of the Collateral.”


 


(e)                                  Section 2.3(a) of
the Loan Agreement, Procedure for Borrowing, is hereby modified and
amended by amending and restating such Section in its entirety as follows:


 


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“(a)                            Procedure for Borrowing. 
Each Borrowing (other than the funding of the Term Loan on the Closing
Date) shall be made by a written request by an Authorized Person delivered to
Agent (which notice must be received by Agent no later than 10:00 a.m.
(California time) 5 Business Days prior to the date that is the requested
Funding Date specifying (i) the amount of such Borrowing, (ii) the
requested Funding Date, which shall be a Business Day, and (iii) as
applicable, that such Borrowing is requested by DJW or is to be used in
connection with the Worth County Project; provided, however, that
in the case of a request for Swing Loan in an amount of $1,000,000, or less,
such notice will be timely received if it is received by Agent no later than
10:00 a.m. (California time) on the Business Day that is the requested
Funding Date).  At Agent’s election, in
lieu of delivering the above-described request in writing, any Authorized
Person may give Agent telephonic notice of such request by the required time,
with such telephonic notice to be confirmed in writing within 24 hours of the
giving of such notice.”


 


(f)                                    Section 2.3(f) of
the Loan Agreement, Settlement, is hereby modified and amended by
amending and restating clause (i) of such Section in its entirety as
follows:


 


“(i)                               Agent
shall request settlement (“Settlement”) with the Revolving Lenders on a
weekly basis, or on a more frequent basis if so determined by Agent, (1) on
behalf of Swing Lender, with respect to the outstanding Swing Loans, (2) for
itself, with respect to each Agent Advance, and (3) with respect to
Collections of Borrowers or their Subsidiaries received, as to each by
notifying the Revolving Lenders by telecopy, telephone, or other similar form
of transmission, of such requested Settlement, no later than 1:00 p.m.
(California time) on the Business Day immediately prior to the date of such
requested Settlement (the date of such requested Settlement being the “Settlement
Date”).  Such notice of a Settlement
Date shall include a summary statement of the amount of outstanding Advances,
Swing Loans and Agent Advances, as applicable, for the period since the prior
Settlement Date.  Subject to the terms
and conditions contained herein (including Section 2.3(c)(iii)):  (y) if a Lender’s balance of the Advances
(including Swing Loans and Agent Advances) exceeds such Lender’s Pro Rata Share
of the Advances (including Swing Loans and Agent Advances) as of a Settlement
Date, then Agent shall, by no later than 12:00 p.m. (California time) on
the Settlement Date, transfer in immediately available funds to the account of
such Lender as such Lender may designate, an amount such that each such Lender
shall, upon receipt of such amount, have as of the Settlement Date, its Pro
Rata Share of the Advances (including Swing Loans and Agent Advances); and (z)
if a Lender’s balance of the Advances (including Swing Loans and Agent
Advances) is less than such Lender’s Pro Rata Share of the Advances (including
Swing Loans and Agent Advances) as of a Settlement Date, such Lender shall, by
no later than 12:00 p.m. (California time) on the Settlement Date,
transfer in immediately available funds to the Agent’s Account, an amount such
that each such Lender shall, upon transfer of such amount, have as of the
Settlement Date, its Pro Rata Share of the Advances (including Swing Loans and
Agent Advances).  Such amounts made available
to Agent under clause (z) of the immediately preceding 


 


5





















 


sentence shall be applied against the amounts of the applicable Swing
Loans or Agent Advances and, together with the portion of such Swing Loans or
Agent Advances representing Swing Lender’s Pro Rata Share thereof, shall
constitute Advances of such Lenders.  If
any such amount is not made available to Agent by any Lender on the Settlement
Date applicable thereto to the extent required by the terms hereof, Agent shall
be entitled to recover for its account such amount on demand from such Lender
together with interest thereon at the Defaulting Lender Rate.”


 


(g)                                 Section 2.4(b) of
the Loan Agreement, Apportionment, Application and Reversal of Payments,
is hereby modified and amended by amending and restating clause (i) of
such Section in its entirety as follows:


 


“(i)                               Except
as otherwise provided with respect to Defaulting Lenders and except as
otherwise provided in the Loan Documents (and letter agreements between Agent
and individual Lenders), aggregate principal and interest payments shall be
apportioned ratably among the Lenders (according to the unpaid principal
balance of the Obligations to which such payments relate held by each Lender,
after giving effect to any letter agreements between Agent and individual
Lenders) and payments of fees and expenses (other than fees or expenses that
are for Agent’s separate account), shall be apportioned ratably among the
Lenders having a Pro Rata Share of the type of Commitment or Obligation to
which a particular fee relates.  All
payments shall be remitted to Agent and all such payments (other than payments
received while no Default or Event of Default has occurred and is continuing
and which relate to the payment of principal or interest of specific
Obligations or which relate to the payment of specific fees), and all proceeds of
Collateral received by Agent shall be applied as follows:


 


(A)                              first,
to pay any Lender Group Expenses then due to Agent under the Loan Documents,
until paid in full,


 


(B)                                second,
to pay any Lender Group Expenses then due to the Lenders under the Loan Documents,
on a ratable basis, until paid in full,


 


(C)                                third,
to pay any fees then due to Agent (for its separate accounts, after giving
effect to any letter agreements between Agent and individual Lenders) under the
Loan Documents until paid in full,


 


(D)                               fourth,
to pay any fees then due to any or all of the Lenders (after giving effect to
any letter agreements between Agent and individual Lenders) under the Loan
Documents, on a ratable basis, until paid in full,


 


(E)                                 fifth,
ratably to pay interest due in respect of all Agent Advances until paid in
full,


 


(F)                                 sixth,
ratably to pay interest due in respect of the Advances (other than Agent
Advances), the Swing Loans, and the Term Loan until paid in full,


 


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(G)                                seventh,
ratably to pay the principal of all Agent Advances until paid in full,


 


(H)                               eighth,
so long as no Event of Default has occurred and is continuing, ratably to pay
all principal amounts then due and payable (other than as a result of an
acceleration thereof) with respect to the Term Loan until paid in full,


 


(I)                                    ninth,
to pay the principal of all Swing Loans until paid in full,


 


(J)                                   tenth,
so long as no Event of Default has occurred and is continuing, to pay principal
of all Advances until paid in full,


 


(K)                               eleventh,
if an Event of Default has occurred and is continuing, ratably (i) to pay
the principal of all Advances until paid in full, (ii) to pay the
outstanding principal balance of the Term Loan (in the inverse order of the
maturity of the installments due thereunder) until the Term Loan is paid in
full, and (iii) to Agent, to be held by Agent, for the ratable benefit of
Agent and those Lenders having a Revolver Commitment, as cash collateral in an
amount up to 105% of the then extant Letter of Credit Usage until paid in full,


 


(L)                                 twelfth,
if an Event of Default has occurred and is continuing, to pay any other
Obligations, and


 


(M)                            thirteenth,
to Borrowers (to be wired to the Designated Account) or such other Person
entitled thereto under applicable law.”


 


(h)                                 Section 2.5
of the Loan Agreement, Overadvances, is hereby modified and amended by
amending and restating such Section in its entirety as follows:


 


“2.5                         Overadvances.  If, at any time or for any reason, the amount
of Obligations (other than the FF&E Obligations) owed by Borrowers to the
Lender Group pursuant to Sections 2.1(a) and 2.12 is greater
than either the Dollar or percentage limitations set forth in Sections 2.1(a) or
2.12 (an “Overadvance”), Borrowers immediately shall pay to
Agent, in cash, the amount of such excess, which amount shall be used by Agent
to reduce the Obligations (other than the FF&E Obligations) in accordance
with the priorities set forth in Section 2.4(b).  In addition, Borrowers hereby promise to pay
the Obligations (including principal, interest, fees, costs, and expenses) in
Dollars in full to Agent as and when due and payable under the terms of this
Agreement and the other Loan Documents.”


 


(i)                                     Section 2.10
of the Loan Agreement, Maintenance of Loan Account; Statements of
Obligations, is hereby modified and amended by amending and restating such Section in
its entirety as follows:


 


“2.10                     Maintenance of Loan Account; Statements of
Obligations.  Agent shall
maintain an account on its books in the name of Borrowers (the “Loan Account”)
on which Borrowers will be charged with the Term Loan and all


 


7





















 


Advances
(including Agent Advances and Swing Loans) made by Agent, Swing Lender or the
Lenders to Borrowers or for Borrowers’ account, the Letters of Credit issued by
Agent for Borrowers’ account, and with all other payment Obligations hereunder
or under the other Loan Documents, including, accrued interest, fees and
expenses, and Lender Group Expenses.  In
accordance with Section 2.8, the Loan Account will be credited with
all payments received by Agent from Borrowers or for Borrowers’ account.  Agent shall render statements regarding the
Loan Account to Borrowers, including principal, interest, fees, and including
an itemization of all charges and expenses constituting Lender Group Expenses
owing, and such statements shall be conclusively presumed to be correct and
accurate and constitute an account stated between Borrowers and the Lender
Group unless, within 30 days after receipt thereof by Borrowers, a Borrower
shall deliver to Agent written objection thereto describing the error or errors
contained in any such statements.”


 


(j)                                     Section 2.11(b) of
the Loan Agreement, Audit, Appraisal, and Valuation Charges, is hereby
modified and amended by amending and restating such Section in its
entirety as follows:


 


“(b)                           Audit, Appraisal, and Valuation Charges.  For the separate account of Agent, audit,
appraisal, and valuation fees and charges as follows, (i) a fee of $850
per day, per auditor, plus out-of-pocket expenses for each financial audit of a
Borrower performed by personnel employed by Agent, (ii) a fee of $1,500
per day per appraiser, plus out-of-pocket expenses, for each appraisal of the
Collateral performed by personnel employed by Agent, and (iii) the actual
charges paid or incurred by Agent if it elects to employ the services of one or
more third Persons to perform financial audits of Borrowers, to appraise the
Collateral, or any portion thereof, or to assess a Borrower’s business
valuation, provided that so long as no Event of Default has occurred in any 12
consecutive month period, Borrowers shall not be obligated to reimburse Agent
for the costs and expenses of more than 21 audit days in any such 12
consecutive month period, and”


 


(k)                                  Section 2.11(c) of
the Loan Agreement, Unused Line Fee, is hereby modified and amended by
amending and restating such Section in its entirety as follows:


 


“(c)                            Unused Line Fee.  On the first day of each quarter during the
term of this Agreement, an unused line fee (for the account of the Revolving
Lenders in accordance with their Pro Rata Shares of the Revolver Commitment) in
an amount equal to (i) for any preceding quarter in which the average
Revolver Usage during such quarter was less than $20,000,000, 0.625% per annum,
(ii) for any preceding quarter in which the average Revolver Usage during
such quarter was equal to or greater than $20,000,000 but less than $35,000,000,
0.500% per annum and (iii) for any preceding quarter in which the average
Revolver Usage during such quarter was equal to or greater than $35,000,000,
0.375% per annum, in each case, times the result of (x) the Maximum Revolver
Amount, less (y) the sum of (1) the average Daily Balance of Advances that
were outstanding during 


 


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the immediately preceding quarter, plus (2) the average Daily
Balance of the Letter of Credit Usage during the immediately preceding quarter.”


 


(l)                                     Section 2.12
of the Loan Agreement, Letters of Credit, is hereby modified and amended
by amending and restating subsection (a) of such Section in its
entirety as follows:


 


“(a)                            Subject
to the terms and conditions of this Agreement, Agent agrees to issue letters of
credit for the account of Borrowers (each, an “L/C”) or to purchase
participations or execute indemnities or reimbursement obligations (each such
undertaking, an “L/C Undertaking”) with respect to letters of credit
issued by an Underlying Issuer (as of the Closing Date, the prospective
Underlying Issuer is to be Wells Fargo) for the account of Borrowers.  To request the issuance of an L/C or an L/C
Undertaking (or the amendment, renewal, or extension of an outstanding L/C or
L/C Undertaking), a Borrower shall hand deliver or telecopy (or transmit by
electronic communication, if arrangements for doing so have been approved by
Agent) to Agent (reasonably in advance of the requested date of issuance,
amendment, renewal, or extension) a notice requesting the issuance of an L/C or
L/C Undertaking, or identifying the L/C or L/C Undertaking to be amended,
renewed, or extended, the date of issuance, amendment, renewal, or extension,
the date on which such L/C or L/C Undertaking is to expire, the amount of such
L/C or L/C Undertaking, the name and address of the beneficiary thereof (or of
the Underlying Letter of Credit, as applicable), and such other information as
shall be necessary to prepare, amend, renew, or extend such L/C or L/C
Undertaking.  If requested by Agent,
Borrowers also shall be an applicant under the application with respect to any
Underlying Letter of Credit that is to be the subject of an L/C
Undertaking.  Agent shall have no
obligation to issue a Letter of Credit if any of the following would result
after giving effect to the requested Letter of Credit:


 


(i)                                     the
Letter of Credit Usage would exceed the Borrowing Base less the then extant
amount of outstanding Advances, or


 


(ii)                                  the
Letter of Credit Usage would exceed $10,000,000, or


 


(iii)                               the
Letter of Credit Usage would exceed the Maximum Revolver Amount less the then
extant amount of outstanding Advances.


 


Borrowers and Agent acknowledge and agree that certain Underlying
Letters of Credit may be issued to support letters of credit that already are
outstanding as of the Closing Date.  Each
Letter of Credit (and corresponding Underlying Letter of Credit) shall be in
form and substance acceptable to Agent (in the exercise of its Permitted
Discretion), including the requirement that the amounts payable thereunder must
be payable in Dollars.  If Agent is obligated
to advance funds under a Letter of Credit, Borrowers shall immediately
reimburse such L/C Disbursement to Agent by paying to Agent an amount equal to
such L/C Disbursement not later than 11:00 a.m., California time, on the
date that such L/C Disbursement is made, if any Borrower shall have received
written or telephonic 


 


9





















 


notice of such L/C Disbursement prior to 10:00 a.m., California
time, on such date, or, if such notice has not been received by any Borrower
prior to such time on such date, then not later than 11:00 a.m.,
California time, on the (i) Business Day that any Borrower receives such
notice, if such notice is received prior to 10:00 a.m., California time,
on the date of receipt, and, in the absence of such reimbursement, the L/C
Disbursement immediately and automatically shall be deemed to be an Advance
hereunder and, thereafter, shall bear interest at the rate then applicable to Advances
under Section 2.6.  To the
extent an L/C Disbursement is deemed to be an Advance hereunder, Borrowers’
obligation to reimburse such L/C Disbursement shall be discharged and replaced
by the resulting Advance.”


 


(m)                               Section 2.16(d) of
the Loan Agreement, Special Provisions Applicable to LIBOR Rate, is hereby
modified and amended by deleting the reference to “LIBOR Advances” in clause (ii) of
such Section and in place thereof inserting “LIBOR Rate Loans”.


 


(n)                                 Section 5.1
of the Loan Agreement, No Encumbrances, is hereby modified and amended
by amending and restating such Section in its entirety as follows:


 


“5.1                         No
Encumbrances.  Each Borrower and
its Subsidiaries has good and indefeasible title to their personal property
assets and good and marketable title to their Real Property, including the
Diamond Jo Vessels and the Real Property comprising the Racino Project, the Ice
Harbor Facility, and the Worth County Project, in each case free and clear of
Liens except for Permitted Liens and except for defects in title that do not
interfere in any material respect with its ability to conduct its business or
to utilize such property for its intended purpose.”


 


(o)                                 Section 5.22
of the Loan Agreement, Senior Debt, is hereby modified and amended by
amending and restating such Section in its entirety as follows:


 


“5.22                  Senior
Debt.  (a) This Agreement is
the New Revolving Agreement (as defined in the Intercreditor Agreement), (b) the
Term Loan is a refinancing of the obligations under the FF&E Credit
Agreement (as defined in the Intercreditor Agreement), (c) all Obligations
constitute Credit Facility Indebtedness (as defined in the Intercreditor
Agreement), and (d) the Agent’s Liens on the Collateral are “Permitted
Liens” as defined in and under the Indenture.”


 


(p)                                 Section 5
of the Loan Agreement, Representations and Warranties, is hereby
modified and amended by adding the following to the end of such Section:


 


“5.33                  Worth
County Project.  No asset
comprising the Worth County Project is a vessel or other seagoing vehicle subject
to registration with the State of Iowa, the United States or any similar
Governmental Authority.”


 


(q)                                 Section 6.2
of the Loan Agreement, Reporting, is hereby modified and amended by
amending and restating subsection (a) of such Section in its
entirety as follows:


 


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“(a) a detailed itemized report reflecting the prior months and
year-to-date revenues from the Diamond Jo Vessels, any Gaming Vessels, the
racetrack, off-track betting parlors (including video poker revenues) and
out-of-state satellite operations,”


 


(r)                                    Section 6.2
of the Loan Agreement, Reporting, is hereby further modified and amended
by amending and restating subsection (c) of such Section in its
entirety as follows:


 


“(c) a detailed itemized report showing actual and estimated
constructions costs and a statement reflecting the construction related costs
incurred or reasonably expected to be incurred by Borrowers in connection with
the Worth County Project prior to or through the construction completion date
and any variances thereof,”


 


(s)                                  Section 6.3
of the Loan Agreement, Financial Statements, Reports, Certificates, is
hereby modified and amended by amending and restating subsection (g) of
such Section in its entirety as follows:


 


“(g)                           as
soon as any Borrower has knowledge that the construction of the Worth County
Project cannot be completed, or has knowledge that such Borrower cannot meet
its obligations under any construction documents, notice thereof and a
statement of the curative action that Borrowers propose to take with respect thereto,”


 


(t)                                    Section 6.3
of the Loan Agreement, Financial Statements, Reports, Certificates, is
hereby further modified and amended by amending and restating subsection (h) of
such Section in its entirety as follows:


 


“(h)                           as
soon as any Borrower has knowledge thereof, notice of any proposed legislation
or administrative action specifically affecting any Borrower’s or any
Subsidiary of a Borrower’s gaming activities, the Racino Project, the Ice
Harbor Facility or the Worth County Project submitted to the floor for business
before any Governmental Authority in the state of Louisiana or Iowa (including
the state legislature or any committee thereof),”


 


(u)                                 Section 7.1,
Indebtedness, is hereby modified and amended by amending and restating
subsection (b) of such Section in its entirety as follows:


 


“(b)                           Indebtedness
set forth on Schedule 7.1(b);”


 


(v)                                 Section 7.1,
Indebtedness, is hereby further modified and amended by amending and
restating subsection (c) of such Section in its entirety as
follows:


 


“(c)                            Indebtedness
represented by Capitalized Lease Obligations or Purchase Money Obligations; provided,
that (i) neither OED nor DJO shall in any way be or become obligated with
respect to any such Indebtedness incurred in connection with the Worth County
Project, (ii) no Advances hereunder are utilized for the purchase or lease
of FF&E financed with such Indebtedness, and 


 


11





















 


(iii) the aggregate principal amount of such Indebtedness
outstanding at any time does not exceed an amount equal to $7,500,000 times the
number of Gaming Properties owned and controlled by any of the Borrowers or
their respective Subsidiaries on the date of incurrence of such Indebtedness;
and provided, further, that the aggregate principal amount of
such Indebtedness secured by or incurred in connection with any Gaming Property
shall not exceed $10,000,000 at each such Gaming Property;”


 


(w)                               Section 7.4
of the Loan Agreement, Disposal of Assets, is hereby modified and
amended by amending and restating subsection (a) of such Section in
its entirety as follows:


 


“(a)                            Make
any sale, lease, exchange, or other disposition, in one or a series of related
transactions, of all or any portion of the assets of Borrowers (other than the
sale or other disposition of any asset that is a Permitted Disposition) that
compose the Ice Harbor Facility, the Racino Project or the Worth County
Project;”


 


(x)                                   Section 7.4
of the Loan Agreement, Disposal of Assets, is hereby further modified
and amended by deleting “(other than an Asset Sale comprised of any assets that
compose the Ice Harbor Facility or the Racino Project)” from subsection (b) of
such Section and in place thereof inserting “(other than an Asset Sale (i) comprised
of any assets that compose the Ice Harbor Facility, the Racino Project or the
Worth County Project or (ii) to the extent not otherwise covered in (i) above,
of any FF&E Collateral)”.


 


(y)                                 Section 7.4
of the Loan Agreement, Disposal of Assets, is hereby further modified
and amended by adding the following clause (d) to the end of such Section:


 


“(d)                           Notwithstanding
anything to the contrary contained in this Section 7.4, the
Borrowers may make any sale, lease, exchange, or other disposition, in one or a
series of related transactions, of all or any portion of the FF&E
Collateral with the prior written consent of Agent (in its sole and absolute
discretion).”


 


(z)                                   Section 7.8
of the Loan Agreement, Prepayments and Amendments, is hereby modified
and amended by amending and restating subclause (ii) of clause (b) of
such Section in its entirety as follows:


 


“(ii) directly or indirectly, amend, modify, alter, increase or
change any of the terms or conditions of any Management Agreement for which an
executed subordination agreement is required to be delivered pursuant to Section 7.21,
the Fixed Price Contract, the Lease, the Ice Harbor Parking Agreement or any
Governing Documents of a Borrower or its Subsidiary in any manner that would
make the covenants, defaults or other provisions thereof more burdensome on any
Borrower or any Guarantor or otherwise have a material adverse effect on the
interests of the Lender Group”


 


(aa)                            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:


 


12





















 


“(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 exceed the lesser of (A) 4.00% of Combined
EBITDA for the immediately preceding fiscal year, or (B) $4,000,000,”


 


(bb)                          Section 7.11
of the Loan Agreement, Restricted Payments, is hereby further modified
and amended by deleting the proviso following subclause (iii) of clause (4) of
such Section in its entirety.


 


(cc)                            Section 7.11
of the Loan Agreement, Restricted Payments, is hereby modified and
amended by deleting “and” from the end of clause (8) of such Section, by
deleting “.” from the end of clause (9) of such Section and in place
thereof inserting “; and” and by adding the following clause (10) to the
end of such Section:


 


“(10)                      directly
(or indirectly by way of a distribution to Parent and a concurrent contribution
by Parent to a Borrower), Restricted Payments by a Borrower to another
Borrower.”


 


(dd)                          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.  Fail to maintain an aggregate
amount of Combined EBITDA plus, for the relevant period, the premiums paid in
connection with the April 2004 repurchase of a portion of the notes issued
pursuant to the OED Indenture and the April 2004 redemption of the notes
issued pursuant to the PGC Indenture, measured on a fiscal quarter-end basis,
of at least the required amount set forth in the following table for the period
set forth opposite thereto:


 


	
  Applicable
  Amount

  	
   

  	
  Period

  
	
  $26,000,000

  	
   

  	
  12 fiscal month period
  ended March 31, 2005

  
	
  $30,000,000

  	
   

  	
  12 fiscal month
  period ended June 30, 2005

  
	
  $32,000,000

  	
   

  	
  12 fiscal month
  period ended September 30, 2005

  
	
  $35,000,000

  	
   

  	
  12 fiscal month
  period ended December 31, 2005, and each fiscal quarter ended thereafter

  



 


13





















 


(ee)                            Section 7.21
of the Loan Agreement, Management Agreements, is hereby modified and
amended by amending and restating such Section in its entirety as follows:


 


“7.21                  Management
Agreements.  Enter into any
Management Agreement with an Excluded Person or any other Person beneficially owning
in excess of five percent (5%) of the voting equity securities of Parent
without delivering to Agent (a) a subordination agreement, in form and
substance satisfactory to Agent, executed by the parties to such Management
Agreement, and (b) a copy of such fully executed Management Agreement.”


 


(ff)                                Section 8
of the Loan Agreement, Events of Default, is hereby modified and amended
by amending and restating Section 8.16 of such Section in its
entirety as follows:


 


“8.16.               If any Governmental Authority (including
the Louisiana state legislature) restricts the ability of any Borrower to
operate, or restricts, limits or prohibits any Borrower from operating, its
gaming business as conducted on the Closing Date or operating the Racino
Project or the Ice Harbor Facility in the manner contemplated on the Closing
Date or operating the Worth County Project in the manner contemplated on July 12,
2005, and such restriction, limit or prohibition results in a Material Adverse
Change;”


 


(gg)                          Section 8
of the Loan Agreement, Events of Default, is hereby further modified and
amended by amending and restating Section 8.17 of such Section in its
entirety as follows:


 


“8.17.               If Agent fails to receive evidence of,
on or prior to August 31, 2006, the completion of construction of the gambling
and casino facility at the Worth County Project location;”


 


(hh)                          The
Exhibits to the Loan Agreement are hereby modified and amended by adding to
such Exhibits in the appropriate order the Exhibit 2.3 attached hereto.


 


(ii)                                  Schedules
C-1, Commitments, D-1, Designated Account, P-1, Permitted
Liens, P-2, Existing Investments, R-1, Real Property Collateral,
2.12, Existing Letters of Credit, 5.5, Locations of Equipment,
5.7, Jurisdiction; Chief Executive Office; FEIN; State Organizational No.;
Commercial Tort Claims, 5.8(b), Capitalization of Borrowers, 5.8(c),
Capitalization of Borrowers’ Subsidiaries, 5.8(e), Restricted
Subsidiaries; Unrestricted Subsidiaries, 5.10, Litigation, 5.14, Environmental
Matters, 5.16, Intellectual Property, 5.18, Demand Deposit
Accounts, 5.20, Existing Indebtedness, 5.21, Licenses and Permits,
and 7.14, Affiliate Transactions, to the Loan Agreement are hereby modified
and amended by replacing such Schedules with the corresponding Schedules
attached hereto.


 


(jj)                                  The
Schedules to the Loan Agreement are hereby further modified and amended by
adding to such Schedules in the appropriate order the Schedule 7.1(b) attached
hereto.


 


14





















 


2.                                       Amendments
to the Loan Agreement upon the DJW Release Date.


 


(a)                                  Effective
automatically upon the occurrence of the DJW Release Date (as defined below):


 


(i)                                     Each
of the following shall occur:  (A) DJW
shall be released from any and all Obligations under the Loan Documents, (B) DJW
shall no longer be a Borrower under any of the Loan Documents (and each
reference to the Borrowers or a Borrower in any Loan Document shall be deemed
not to refer to DJW), (C) the memberships interests in DJW shall be
released from the Lien of the Pledge Agreement (and any certificates
representing such membership interests in the possession of Agent shall be
returned by Agent to the Parent promptly after the DJW Release Date), and (D) any
Lien on any assets of DJW shall be terminated and released (and from time to
time after the DJW Release Date, Agent shall execute and deliver to DJW, at the
sole expense of the Borrowers, such other documents, instruments, assignments
and other releases (including UCC-3 termination statements) reasonably
requested by the Borrowers to effect the foregoing); and


 


(ii)                                  The
Loan Agreement shall be modified and amended by deleting or rendering
ineffective, as the context may require, all references to “DJW” and “the Worth
County Project” therein, and in furtherance of the foregoing:


 


(A)                              Section 1.1
of the Loan Agreement, Definitions, shall be modified and amended by
deleting the definition of “Operating Assets” in its entirety from such Section and
inserting in lieu thereof the following:


 


““Operating
Assets” means, collectively (i) the Ice Harbor Facility,  and (ii) the casino and racetrack and
related Real Property owned by OED and located in Opelousas, St. Landry Parish,
Louisiana.”


 


(B)                                Section 1.1
of the Loan Agreement, Definitions, shall be further modified and
amended by deleting the definitions of “DJW” and “Worth County Project” from
such Section in their respective entirety.


 


(C)                                The
Loan Agreement shall be modified and amended by deleting Sections 5.33, 6.2(c),
6.3(g), and 8.17 of the Loan Agreement in their respective entirety.


 


(b)                                 As
used in this Section 2, “DJW Release Date” shall mean the first
date on which all of the following shall be true:


 


(i)                                     Agent
shall have received (i) a copy of the written designation of DJW as an “Unrestricted
Subsidiary” pursuant to, and in compliance with, the Indenture and (ii) a
copy of any agreements, certificates and other documents that are executed and
delivered evidencing the release of (i) DJW from its Subsidiary Guaranty
(as defined in the Indenture) and (ii) the assets of DJW from the Security
Documents (as defined in the Indenture);


 


(ii)                                  any
Advances made to DJW on or after the date of this Amendment (and all accrued
interest thereon) shall have been paid in full; and


 


15





















 


(iii)                               no
Default or Event of Default shall be continuing.


 


(c)                                  in
connection with the release of DJW contemplated by this Section 2, Parent
shall be permitted to contribute all its Equity Interests in DJW to a
wholly-owned subsidiary of Parent that is not a Borrower, provided that,
immediately following such contribution, DJW and such Subsidiary are designated
as “Unrestricted Subsidiaries” pursuant to, and in compliance with, the
Indenture.


 


3.                                       Acknowledgment
and Covenant of Borrowers Regarding Real Property Collateral.  Each of Borrowers hereby acknowledges its
obligation to create, perfect and insure Liens in favor of Agent on any Real
Property acquired after the Closing Date not currently subject to a Lien in
favor of Agent and covenants to fulfill such obligation within 60 days after
the closing of this Amendment (or such longer period as Agent approves in
writing, in its sole and absolute discretion). 
In furtherance of the foregoing, Borrowers shall execute and deliver all
agreements, instruments and other documents required by Section 4.4 of the
Loan Agreement and deliver Mortgage Policies for such Real Property Collateral
in form and substance satisfactory to Agent.


 


4.                                       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 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 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 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.


 


5.                                       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)                                 all
licenses (including Gaming Licenses (other than liquor licenses)), approvals or
evidence of other actions required by any Governmental Authority, including the
Louisiana Regulatory Authorities and the Iowa Gaming Authorities, necessary to
own and operate the Worth County Project;


 


16





















 


(c)                                  the
amended and restated fee letter among Borrowers and Agent, duly executed and
delivered by Borrowers and Agent;


 


(d)                                 updated
Schedules C-1, D-1, P-1, P-2, R-1, 2.12, 5.5, 5.7, 5.8(b), 5.8(c), 5.8(e),
5.10, 5.14, 5.16, 5.18, 5.20, 5.21, and 7.14 of the Loan Agreement;


 


(e)                                  amendments,
each in form and substance satisfactory to Agent, modifying and amending the
Diamond Jo Ship Mortgage, the Mortgages, the Pledge Agreement and the
Intercompany Subordination Agreement;


 


(f)                                    an
acknowledgment with respect to the Intercreditor Agreement duly executed by
DJW;


 


(g)                                 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;


 


(h)                                 a
letter duly executed by the Indenture Trustee with respect to the Maximum
Credit Facility Amount (as defined in the Intercreditor Agreement);


 


(i)                                     opinions
of Borrowers’ and Guarantors’ counsel (including, without limitation, admiralty
counsel, real estate counsel and regulatory counsel) in form and substance
satisfactory to Agent, such opinions to include (i) that the increase in
the Maximum Revolver Amount is permitted to be made under the Indenture and
that such increase constitutes Credit Facility Indebtedness (as defined in the
Intercreditor Agreement) and (ii) regulatory opinions as to the due
issuance and valid existence of Borrowers’ Gaming Licenses;


 


(j)                                     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 or with the consummation
of the transactions contemplated hereby;


 


(k)                                  a
detailed budget on construction costs at the Worth County Project, in form and
substance satisfactory to Agent; and


 


(l)                                     such
other information, documents, instruments or approvals as Agent or Agent’s
counsel may reasonably require; provided, however, in no event
shall the Borrowers be required to deliver a Mortgage Policy with respect to
any Real Property Collateral owned by DJW until the date that is 30 days
following the date of this Amendment.


 


6.                                       Representations
and Warranties of Borrowers.  In
consideration of the execution and delivery of this Amendment 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 Amendment have been duly authorized by all necessary action on the part of
such Borrower;


 


17





















 


(b)                                 As
to each Borrower, the execution, delivery, and performance by such Borrower of
this Amendment 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;


 


(c)                                  The
execution, delivery, and performance by such Borrower 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,
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 Amendment 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;


 


(f)                                    No
Uniform Commercial Code Financing Statement has been filed in any jurisdiction
naming DJW as debtor and U.S. Bank National Association, as trustee, as secured
party; and


 


(g)                                 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).


 


7.                                       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 of an adobe file
format document (also known as a PDF file) shall be deemed an original
signature hereto.


 


8.                                       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 


 


18





















 


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.


 


9.                                       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 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.


 


10.                                 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 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.


 


11.                                 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.


 


12.                                 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.


 


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


 


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


 


[Remainder of page intentionally left blank.]


 


19





















 


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

  	
   

  
	
   

  	
   

  	
  Natalie Schramm

  	
   

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

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

  	
   

  
	
   

  	
  a Louisiana limited
  liability company

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Natalie Schramm

  	
   

  
	
   

  	
   

  	
  Natalie Schramm

  	
   

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  DIAMOND JO WORTH, LLC,
  a Delaware

  limited liability company

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Natalie Schramm

  	
   

  
	
   

  	
   

  	
  Natalie Schramm

  	
   

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  AGENT AND

  	
   

  	
   

  
	
  LENDERS:

  	
  WELLS FARGO FOOTHILL, INC.,

  	
   

  
	
   

  	
  a California
  corporation, as Agent and as a Lender

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Larissa Megadichian

  	
   

  
	
   

  	
   

  	
  Larissa Megadichian

  	
   

  
	
   

  	
  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:

  	
   /s/ Perry A. Gruss

  	
   

  
	
   

  	
   

  	
  Perry A. Gruss

  	
   

  
	
   

  	
  Title:

  	
  Authorized Signatory

  	
   

  
									



 


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  ACKNOWLEDGED
  AND

  	
   

  	
   

  
	
  AGREED:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  GUARANTORS:

  	
  PENINSULA
  GAMING, LLC, a
  Delaware

  limited liability company

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Natalie Schramm

  	
   

  
	
   

  	
   

  	
  Natalie Schramm

  	
   

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

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

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Natalie Schramm

  	
   

  
	
   

  	
   

  	
  Natalie Schramm

  	
   

  
	
   

  	
  Title:

  	
  Chief Financial Officer

  	
   

  
						



 





















 


SCHEDULE C-1


COMMITMENTS


 


	
  Lender

  	
   

  	
  Revolver

  Commitment

  	
   

  	
  Term Loan

  Commitment

  	
   

  	
  Total Commitment

  	
   

  
	
  Wells Fargo Foothill, Inc.

  	
   

  	
  $

  	
  36,000,000

  	
   

  	
  $

  	
  10,083,333.34

  	
   

  	
  $

  	
  46,083,333.34

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.B. Zwirn Special Opportunities Fund, L.P.

  	
   

  	
  $

  	
  14,000,000

  	
   

  	
  $

  	
  4,583,333.34

  	
   

  	
  $

  	
  18,583,333.34

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  All Lenders

  	
   

  	
  $

  	
  50,000,000

  	
   

  	
  $

  	
  14,666,666.68

  	
   

  	
  $

  	
  64,666,666.68