Exhibit 10.9


 


Preparer


Information
Douglas A. Park, Esq., Paul, Hastings, Janofsky & Walker LLP, 600
Peachtree Street, Suite 2400, Atlanta, Georgia 30308


(404) 815-2343


 


SPACE ABOVE THIS LINE


FOR RECORDER


 


SECOND AMENDMENT TO IOWA SHORE MORTGAGE


 


This SECOND AMENDMENT TO
IOWA SHORE MORTGAGE (this “Amendment”) is entered into as of July 12, 2005,
between DIAMOND JO, LLC (formerly known as
Peninsula Gaming Company, LLC), a Delaware limited liability company (the “Company”),
and WELLS FARGO FOOTHILL, INC., a California
corporation, as agent for the Lenders (“Agent”; Agent, together with its
successors and assigns, is referred to herein as “Mortgagee”).


 


W I T N E S S E T H:


 


WHEREAS, the Company,
Diamond Jo Worth, LLC, a Delaware limited liability company, and The Old
Evangeline Downs, L.L.C., a Louisiana limited liability company, as borrowers (collectively,
“Borrowers”), Mortgagee, and the Lenders (as defined therein) are
parties to that certain Loan and Security Agreement dated as of June 16,
2004, as amended by that certain First Amendment to Loan and Security Agreement
dated as of November 10, 2004, as further amended by that certain Second
Amendment to Loan and Security Agreement dated as of even date herewith (the “Second
Amendment to Loan Agreement”) and as supplemented by that certain Borrower
Supplement No. 1 dated as of May 13, 2005 (as amended, restated,
supplemented or otherwise modified from time to time, the “Loan Agreement”);


 


WHEREAS, as an inducement
for Mortgagee and the Lenders to enter into the Loan Agreement, the Company
executed and delivered that certain Mortgage, Leasehold Mortgage, Assignment of
Rents, Security Agreement and Fixture Financing Statement dated as of June 16,
2004, recorded on June 18, 2004, as Document No. 10729-04 in the official
records of the Recorder of Dubuque County, Iowa,  as amended by that certain First Amendment to
Iowa Shore Mortgage dated as of November 10, 2004, recorded on November 12,
2004, as Document No. 2004-00019859 in the official records of the
Recorder of Dubuque County, Iowa (the “Mortgage”; capitalized terms used
herein and not otherwise defined herein shall have the meanings ascribed to
such terms in the Mortgage), in favor of Mortgagee for the benefit of the Lender
Group;


 


WHEREAS, Borrowers,
Mortgagee and the Lenders have agreed to amend the Loan Agreement pursuant to
the Second Amendment to Loan Agreement; and


 


WHEREAS, the Company and Mortgagee
have agreed to amend the Mortgage on the terms and conditions set forth 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 Mortgage.


 


(a)           The cover page of
the Mortgage is hereby modified and amended by deleting “$49,666,667” therefrom
and in place thereof inserting “$64,666,667”.


 


(b)           The preamble of the
Mortgage is hereby modified and amended by amending and restating such
paragraph in its entirety as follows:


 


“This Mortgage (this “Shore Mortgage”) is made
as of June 16, 2004, by Diamond Jo, LLC (formerly known as Peninsula
Gaming Company, LLC), a Delaware limited liability company (the “Company”),
in favor of Wells Fargo Foothill, Inc., a California corporation, as agent
(“Agent”; Agent, together with its successors and assigns, is referred
to herein as “Mortgagee”) for the Lenders (as defined in the hereinafter
defined Loan Agreement) under that certain Loan and Security Agreement dated as
of June 16, 2004 (as amended, restated, supplemented or otherwise modified
from time to time, the “Loan Agreement”) among the Company, Diamond Jo
Worth, LLC, a Delaware limited liability company (“DJW”), The Old
Evangeline Downs, L.L.C., a Louisiana limited liability company (“OED”,
together with DJW and the Company, collectively, “Borrowers,” and each,
a “Borrower”), Mortgagee and Lenders.”


 


(c)           The Granting Clauses of
the Mortgage are hereby modified and amended by amending and restating clause (i) of
the Granting Clauses in its entirety as follows:


 


“(i)          the payment when due of
indebtedness evidenced by the Loan Agreement in the maximum principal sum of $64,666,667,
bearing interest as set forth in the Loan Agreement and maturing on June 15,
2008, such date being the “Maturity Date”, including, without limitation, all
accrued and unpaid interest thereon, and premiums and penalties, if any,
thereon, including late payment charges and Additional Interest (as defined in Section 5.2
hereof).”


 


(d)           Section 1.9(b) of
the Mortgage is hereby modified and amended by deleting “Borrower” therefrom
and in place thereof inserting “the Company”.


 


2.             No Other
Amendments or Waivers.  Except as
expressly set forth above, the execution, delivery and effectiveness of this Amendment
shall not operate as an amendment of any right, power or remedy of Mortgagee or
the Lenders under the Mortgage or any of the other Loan Documents, nor
constitute a waiver of any provision of the Mortgage or any of the other Loan
Documents.  Except as expressly set forth
above, the text of the Mortgage and all other Loan Documents shall remain
unchanged and in full force and effect and the Company hereby ratifies and
confirms its obligations thereunder. 
This Amendment shall not constitute a modification of the Mortgage or
any of the other Loan Documents or a course of dealing with Mortgagee or the
Lenders at variance with the Mortgage or the other Loan Documents such as to
require further notice by Mortgagee or the Lenders to require strict compliance
with the terms of


 


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the Mortgage and the other Loan Documents in the future, except as
expressly set forth herein.  The Company
acknowledges and expressly agrees that Mortgagee and the Lenders reserve the
right to, and do in fact, require strict compliance with all terms and
provisions of the Mortgage and the other Loan Documents, as amended
herein.  The Company has no knowledge of
any challenge to Mortgagee’s or any Lender’s claims arising under the Loan
Documents, or to the effectiveness of the Loan Documents.


 


3.             Conditions
Precedent to Effectiveness.  This
Amendment shall become effective as of the date hereof when, and only when, Mortgagee
shall have received:


 


(a)           counterparts of this
Amendment duly executed and delivered by the Company and Mortgagee;


 


(b)           evidence in form and
substance satisfactory to Mortgagee that the Company 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 the Company of this Amendment or with the
consummation of the transactions contemplated hereby; and


 


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


 


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


 


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


 


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


 


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


 


(d)           this Amendment, when
executed and delivered by the Company, will be the legally valid and binding
obligation of the Company, enforceable against the Company in


 


3





















 


accordance with its terms, except as enforcement may be limited by
equitable principles or by bankruptcy, insolvency, reorganization, moratorium,
or similar laws relating to or limiting creditors’ rights generally;


 


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


 


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


 


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 e-mail transmission of an adobe file
format document (also known as a PDF file) 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 Mortgage to “this Mortgage”, “hereunder”, “hereof” or words of like
import referring to the Mortgage, and each reference in the other Loan
Documents to “the Mortgage”, “thereunder”, “thereof” or words of like import
referring to the Mortgage, shall mean and be a reference to the Mortgage as
amended hereby.


 


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


 


8.             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.


 


9.             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.


 


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10.           GOVERNING LAW.  THE COMPANY AND MORTGAGEE AGREE THAT THE
RIGHTS AND OBLIGATIONS UNDER THIS AMENDMENT REGARDING THE CREATION, PERFECTION
AND ENFORCEMENT OF THE LIENS AND SECURITY INTERESTS HEREIN GRANTED SHALL BE
GOVERNED AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE INTERNAL LAWS OF
THE STATE OF IOWA.  ALL OTHER PROVISIONS
OF THIS AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.


 


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


 


[Remainder of page intentionally left blank.]


 


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


 


IMPORTANT:  READ BEFORE SIGNING.  THE TERMS OF THIS AGREEMENT SHOULD BE READ
CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE.  NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED
IN THIS WRITTEN CONTRACT MAY BE LEGALLY ENFORCED.  YOU MAY CHANGE THE TERMS OF THIS AGREEMENT
ONLY BY ANOTHER WRITTEN AGREEMENT.  THIS
NOTICE APPLIES TO ALL AGREEMENTS ENTERED INTO TO WHICH THE COMPANY AND
MORTGAGEE ARE PARTIES


 


	
  COMPANY:

  	
  DIAMOND JO, LLC (formerly
  known as

  Peninsula Gaming Company, LLC), a Delaware

  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Natalie A. Schramm

  	
   

  
	
   

  	
  Title:

  	
  Natalie A. Schramm

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  MORTGAGEE:

  	
  WELLS FARGO FOOTHILL, INC.,

  
	
   

  	
  a California
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Larissa Megerdichian

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
					



 


Iowa
Shore Mortgage


 





















 


ACKNOWLEDGMENT OF THE COMPANY


 


	
  STATE OF Iowa

  	
  )

  
	
   

  	
  )ss:

  
	
  COUNTY OF Dubuque

  	
  )

  
			



 


On this 7th day of June, A.D., 2005, before me, a
Notary Public in and for the State of Iowa, personally appeared Natalie Schramm,
to me personally known, who being by me duly sworn did say that the person is (a) (the)
CFO of Diamond Jo, LLC, a Delaware limited liability company, executing the
foregoing instrument, that the instrument was signed on behalf of the said
limited liability company by authority of the limited liability company and the
said Natalie Schramm acknowledged the execution of said instrument to be the
voluntary act and deed of said limited liability company by it voluntarily
executed.


 


 


	
   

  	
             /s/Karen
  M. Beetem                                         

  	
   

  
	
   

  
	
   

  	
  Notary Public in
  the State of Iowa

  
				



 


Iowa
Shore Mortgage


 





















 


ACKNOWLEDGMENT OF MORTGAGEE


 


	
  STATE OF California

  	
   

  	
  )

  
	
   

  	
  )ss:

  	
   

  
	
  COUNTY OF Los
  Angeles

  	
   

  	
  )

  
						



 


On this 11th day of May, A.D., 2005, before me, a
Notary Public in and for the State of California, personally appeared Larissa
Megerdichian, to me personally known, who being by me duly sworn did say that
the person is (a) (the) Vice President of Wells Fargo Foothill, Inc.,
a California corporation, executing the foregoing instrument, that the
instrument was signed on behalf of the said corporation by authority of the corporation
and the said Larissa Megerdichian acknowledged the execution of said instrument
to be the voluntary act and deed of said corporation by it voluntarily
executed.


 


	
   

  	
                 /s/K.
  Melissa
  Chavez                                  

  	
   

  
	
   

  
	
   

  	
  Notary Public in
  the State of

  
				



 


Iowa
Shore Mortgage