Exhibit
10.8


 


ACT
OF SECOND AMENDMENT OF MULTIPLE OBLIGATIONS MORTGAGE


 


BE IT KNOWN, that on the dates hereinafter
set forth, before the undersigned Notaries Public, duly commissioned and
qualified, and in the presence of the undersigned competent witnesses,
personally came and appeared:


 


THE OLD EVANGELINE
DOWNS, L.L.C. (TIN: 72-1280511), formerly named The
Old Evangeline Downs, L.C., a limited liability company, duly organized,
validly existing and in good standing under the laws of the State of Louisiana,
and has its registered office at One American Place, Ninth Floor, Baton Rouge,
LA 70825, appearing herein through M. Brent Stevens, its CEO, being duly
authorized by virtue of a Consent of the Sole Member, a copy of which is on
file and of record, hereinafter referred to as “Mortgagor”,


 


and


 


WELLS FARGO FOOTHILL,
INC., a corporation organized and existing under the
laws of the State of California, as agent for the Lenders which 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 July 12, 2005, 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”), by and among Diamond Jo, LLC (formerly known as
Peninsula Gaming Company, LLC), Diamond Jo Worth, LLC and The Old Evangeline
Downs, L.L.C., as borrowers, the Lenders and Wells Fargo Foothill, Inc.,
as the arranger and agent for the Lenders, appearing herein through its duly
authorized representative, hereinafter referred to as “Mortgagee”,


 


who declared that:


 


By Multiple Obligations Mortgage dated June 16,
2004, effective as of June 16, 2004, recorded on June 16, 2004 as Original
Act No. 926580, Mortgage Book 1210, page 99 of the official records
of St. Landry Parish, Louisiana, and on June 17, 2004 in Mortgage Book
613, Entry No. 177 of the official records of West Baton Rouge Parish,
Louisiana, as amended pursuant to that certain Act of Amendment of Multiple
Obligations Mortgage recorded on November 12, 2004 as Original Act No. 934609,
Mortgage Book 1230, page 523 of the official records of St. Landry Parish,
Louisiana, and on November 12, 2004 in Mortgage Book 623, Entry No. 81
of the official records of West Baton Rouge Parish, Louisiana (as amended, the


 





















 


“Mortgage”), Mortgagor executed
in favor of Mortgagee a mortgage on certain properties and in St. Landry Parish
and West Baton Rouge Parish, as more fully described on Exhibit A attached
to the Mortgage, to secure certain Obligations (as such term is defined in the
Mortgage).


 


Mortgagor and Mortgagee hereby agree as
follows:


 


1.  The
definition of the term “Borrower” in Section 1.3 of the Mortgage is hereby
modified and amended by amending and restating such section in its
entirety to read as follows:


 


“1.3  Borrower.  The word “Borrower”
means individually, collectively and interchangeably Diamond Jo, LLC (formerly
known as Peninsula Gaming Company, LLC), Diamond Jo Worth, LLC and Mortgagor.”


 


2.  The
definition of the term “Obligations” in Section 1.14 of the Mortgage is
hereby modified and amended by amending and restating such section in its
entirety to read as follows:


 


“1.14       Obligations.  The word “Obligations” means individually,
collectively and interchangeably (a) any and all loans, advances, debts,
principal, interest (including interest that, but for the provisions of the
United States Bankruptcy Code, would have accrued), contingent reimbursement
obligations with respect to letters of credit, premiums, liabilities,
obligations, fees, charges, costs, expenses (including any fees or expenses that,
but for the provisions of the United States Bankruptcy Code, would have
accrued), lease payments, guaranties, covenants, and duties of any kind and
description owing by Borrower to the Lender Group pursuant to or evidenced by
the Loan Agreement and other Related Documents and irrespective of whether for
the payment of money, whether direct or indirect, absolute or contingent, due
or to become due, now existing or hereafter arising, and including all interest
not paid when due and all expenses that Borrower is required to pay or
reimburse under the Loan Agreement and other Related Documents, by law, or
otherwise, whether Borrower is obligated alone or with others on a “solidary”
or “joint and several” basis, as a principal obligor or as a surety, guarantor,
or endorser of every nature and kind whatsoever,  whether or not any such Obligations may be
barred under any statute of limitations or prescriptive period or may be or
become otherwise unenforceable or voidable for any reason whatsoever, and (b) the
obligations of Guarantor arising from the Related Documents to which Guarantor
is a party, whether direct or indirect, absolute or contingent, due or to
become due, now existing or hereafter arising, and including all interest not
due when paid and all expenses that Guarantor is required to pay or reimburse
under the Related Documents, by law, or otherwise, whether Guarantor is
obligated alone or with others on a “solidary” or “joint and several” basis, as
a principal obligor or as a surety, guarantor, or endorser of every nature and
kind whatsoever, whether or not any such Obligations may be barred under any
statute of limitations or prescriptive period or may be or become otherwise
unenforceable or voidable for any reason whatsoever.  Any reference in this Mortgage or in the
Related Documents to the Obligations shall include all amendments, changes,
extensions, modifications, renewals, replacements,


 





















 


substitutions, and supplements, thereto and
thereof, as applicable, both prior and subsequent to any insolvency proceeding. 
Notwithstanding any other provision of this Mortgage, the maximum amount
of Obligations secured hereby shall be limited to $90,000,000.”


 


3.  The first paragraph of Article XV of the
Mortgage is hereby amended and modified to read as follows:


 


“As additional collateral security for the
prompt and punctual payment and satisfaction of any and all present and future
Obligations in favor of Mortgagee as may be outstanding from time to time, at
any one or more times, and all Additional Advances that Mortgagee may make on
Mortgagor’s behalf pursuant to this Mortgage, together with interest thereon as
provided herein up to a maximum principal amount outstanding at any one or more
times, from time to time, not to exceed U.S. $90,000,000, together with
interest, costs, expenses, attorneys’ fees and other fees and charges,
Mortgagor hereby assigns, pledges and grants Mortgagee a continuing security
interest in and to:”


 


4.  In consideration of the execution and
delivery of this amendment by Mortgagee, Mortgagor hereby represents and
warrants in favor of Mortgagee and the other members of the Lender Group (as
defined in the Mortgage) as follows:


 


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


 


(b)           the
execution, delivery, and performance by Mortgagor of this amendment do not and
will not (i) violate any provision of federal, state, or local law or
regulation applicable to Mortgagor, the governing documents of Mortgagor, or
any order, judgment, or decree of any court or other governmental authority
binding on Mortgagor, (ii) conflict with, result in a breach of, or
constitute (with due notice or lapse of time or both) a default under any
material contractual obligation of Mortgagor, (iii) result in or require
the creation or imposition of any lien of any nature whatsoever upon any
properties or assets of Mortgagor, other than Permitted Liens (as defined in
the Loan Agreement), or (iv) require any approval of Mortgagor’s members
or shareholders or any approval or consent of any person or entity under any
material contractual obligation of Mortgagor;


 


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


 


(d)           this
amendment, when executed and delivered by Mortgagor, will be the legally valid
and binding obligations of Mortgagor, enforceable against Mortgagor 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.


 





















 


5.  This amendment shall be deemed to be a Loan
Document (as defined in the Loan Agreement) for all purposes.


 


6.  Mortgagor
does further declare that except as expressly modified herein, the Mortgage is
hereby ratified and confirmed and shall otherwise remain in full force, virtue
and effect as executed.


 





















 


THUS DONE AND PASSED,
on the 7th day of June, 2005, in the presence of the undersigned Notary and the
undersigned competent witnesses, who hereunto sign their names with Mortgagor
after reading of the whole.


 


	
  WITNESSES:

  	
  MORTGAGOR:

  
	
   

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

  
	
   

  	
  formerly named The Old Evangeline Downs,
  L.C.

  
	
   

  	
   

  
	
   

  	
   

  
	
  /s/Dustin Manternach

  	
   

  	
  By:

  	
  /s/ Natalie A. Schramm

  	
   

  
	
  Print Name:

  	
  Dustin Manternach

  	
   

  	
  Name: Natalie A. Schramm

  
	
   

  	
  Title: Chief Financial Officer

  
	
   

  	
   

  
	
  /s/Marcia Seligman

  	
   

  	
   

  
	
  Print Name:

  	
  Marcia Seligman

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/Karen M. Beetem

  	
   

  
	
   

  	
   

  	
  , NOTARY
  PUBLIC

  
	
   

  	
   

  
	
   

  	
  My commission expires   10/20/07                   

  
	
   

  	
  (SEAL)

  
										



 





















 


THUS DONE AND PASSED,
on the 12th day of July, 2005, in the presence of the undersigned Notary and
the undersigned competent witnesses, who hereunto sign their names with
Mortgagee after reading of the whole.


 


	
  WITNESSES:

  	
  MORTGAGEE:

  	
   

  
	
   

  	
  WELLS FARGO FOOTHILL, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
  /s/Christy Sayeg

  	
   

  	
  /s/Larissa Megerdichian

  	
   

  
	
  Print Name:

  	
  Christy Sayeg

  	
   

  	
  Name: 

  	
  Larissa Megerdichian

  	
   

  
	
   

  	
  Title:

  	
     Vice President

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Print Name:

  	
   

  	
   

  	
   

  	
   

  
	
   

  
	
   

  	
        /s/Karla
  Sophia Gargil

  	
   

  
	
   

  	
   

  	
  , NOTARY
  PUBLIC

  
	
   

  	
   

  
	
   

  	
  My commission
  expires   4/22/09                         

  
	
   

  	
  (SEAL)