Exhibit 10.14


 


CASH COLLATERAL AND DISBURSEMENT AGREEMENT


 


 


among


 


 


U.S. BANK NATIONAL ASSOCIATION,


 


as the Disbursement Agent,


 


 


U.S. BANK NATIONAL ASSOCIATION,


 


as the Trustee,


 


 


and


 


 


DIAMOND JO WORTH, LLC


 


and


 


DIAMOND JO WORTH CORP.,


 


together, as the Issuers


 


 


Dated as of July 19, 2005


 





















 


TABLE OF CONTENTS


 


	
  1.

  	
  Definitions

  	
   

  
	
   

  	
  1.1

  	
  Defined Terms

  	
   

  
	
   

  	
  1.2

  	
  Additional Defined Terms

  	
   

  
	
   

  	
  1.3

  	
  Rules of Interpretation

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
  Establishment of Accounts

  	
   

  
	
   

  	
  2.1

  	
  Appointment of Disbursement Agent

  	
   

  
	
   

  	
  2.2

  	
  Establishment of Accounts

  	
   

  
	
   

  	
  2.3

  	
  Pledge Agreement

  	
   

  
	
   

  	
  2.4

  	
  Investment of Funds in Accounts

  	
   

  
	
   

  	
  2.5

  	
  Agency

  	
   

  
	
   

  	
  2.6

  	
  Waiver of Set-off Rights

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
  Disbursements from Accounts

  	
   

  
	
   

  	
  3.1

  	
  Conditions to Disbursement

  	
   

  
	
   

  	
  3.2

  	
  Method of Disbursement

  	
   

  
	
   

  	
  3.3

  	
  Disbursement Agent’s Compensation

  	
   

  
	
   

  	
  3.4

  	
  Transfer of Funds to the Trustee

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
  Agreements of the Issuers, the Disbursement
  Agent and the Trustee

  	
   

  
	
   

  	
  4.1

  	
  Disbursement Requests and Disbursements

  	
   

  
	
   

  	
  4.2

  	
  Insufficient Available Funds

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
  Interest Reserve

  	
   

  
	
   

  	
  5.1

  	
  Interest Disbursements

  	
   

  
	
   

  	
  5.2

  	
  Interest Reserve Account Amounts

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  6.

  	
  Certain Covenants

  	
   

  
	
   

  	
  6.1

  	
  Notice of Opening

  	
   

  
	
   

  	
  6.2

  	
  Issuers’ Officer’s Certificates

  	
   

  
	
   

  	
  6.3

  	
  Officer’s Certificate as Representation and
  Warranty

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  7.

  	
  Construction Disbursement Account

  	
   

  
	
   

  	
  7.1

  	
  Conditions to Initial Disbursements

  	
   

  
	
   

  	
  7.2

  	
  Conditions to Subsequent Disbursements

  	
   

  
	
   

  	
  7.3

  	
  Advance Disbursements

  	
   

  
	
   

  	
  7.4

  	
  Disbursements after an Event of Default

  	
   

  
	
   

  	
  7.5

  	
  Final Disbursement of Funds Following
  Opening

  	
   

  
	
   

  	
  7.6

  	
  First Disbursement Request

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  8.

  	
  Amendments to Construction Disbursement
  Budget; Amendments to Contracts; Amendments to Facility Cost Schedule and
  Cost Overruns

  	
   

  
	
   

  	
  8.1

  	
  Construction Disbursement Budget Amendment
  Process

  	
   

  
	
   

  	
  8.2

  	
  Contract Amendment Process

  	
   

  



 


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  8.3

  	
  Contracts Entered into after the Issue Date

  	
   

  
	
   

  	
  8.4

  	
  Facility Cost Schedule and Cost Overruns

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  9.

  	
  Events of Default

  	
   

  
	
   

  	
  9.1

  	
  Indenture

  	
   

  
	
   

  	
  9.2

  	
  Exception to Prior Disbursement

  	
   

  
	
   

  	
  9.3

  	
  Insufficient Funds

  	
   

  
	
   

  	
  9.4

  	
  Performance of Certain Obligations

  	
   

  
	
   

  	
  9.5

  	
  Failure to Deliver Collateral Agreements

  	
   

  
	
   

  	
  9.6

  	
  Abandonment of Facility

  	
   

  
	
   

  	
  9.7

  	
  Termination or Invalidity of Construction
  Documents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  10.

  	
  Disbursed Funds Account

  	
   

  
	
   

  	
  10.1

  	
  Rights of the Issuers to Disbursed Funds
  Account

  	
   

  
	
   

  	
  10.2

  	
  Right to Substitute Disbursed Funds Account

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  11.

  	
  Indemnity

  	
   

  
	
   

  	
  11.1

  	
  Limitation of Liability

  	
   

  
	
   

  	
  11.2

  	
  Reliance on Certificates

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  12.

  	
  Indemnity

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  13.

  	
  Termination

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  14.

  	
  Substitution or Resignation

  	
   

  
	
   

  	
  14.1

  	
  Disbursement Agent

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  15.

  	
  Account Statement

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  16.

  	
  Notice

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  17.

  	
  Miscellaneous

  	
   

  
	
   

  	
  17.1

  	
  Waiver

  	
   

  
	
   

  	
  17.2

  	
  Invalidity

  	
   

  
	
   

  	
  17.3

  	
  No Authority

  	
   

  
	
   

  	
  17.4

  	
  Assignment

  	
   

  
	
   

  	
  17.5

  	
  Benefit

  	
   

  
	
   

  	
  17.6

  	
  Time

  	
   

  
	
   

  	
  17.7

  	
  Governing Law; Waiver of Jury Trial

  	
   

  
	
   

  	
  17.8

  	
  Entire Agreement; Amendments

  	
   

  
	
   

  	
  17.9

  	
  Notices

  	
   

  
	
   

  	
  17.10

  	
  Counterparts

  	
   

  
	
   

  	
  17.11

  	
  Captions

  	
   

  
	
   

  	
  17.12

  	
  Right to Consult Counsel

  	
   

  
	
   

  	
  17.13

  	
  Disputes

  	
   

  



 


ii





















 


	
  EXHIBITS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
   

  	
  Form of Initial Disbursements
  Certificate

  
	
  Exhibit B-1

  	
   

  	
  Form of Issuers’ Closing Certificate

  
	
  Attachment A to Exhibit B-1

  	
   

  	
  Form of Issuers’ Officer’s Certificate
  to Issuers’ Closing Certificate

  
	
  Exhibit B-2

  	
   

  	
  Form of Disbursement Agent’s Closing
  Certification

  
	
  Exhibit B-3

  	
   

  	
  Form of Trustee’s Closing
  Certification

  
	
  Exhibit C

  	
   

  	
  Form of Interest Disbursement Request

  
	
  Exhibit D-1

  	
   

  	
  Form of Construction Disbursement
  Request and Certificate

  
	
  Attachment A to Exhibit D-1

  	
   

  	
  Form of Issuers’ Officer’s Certificate
  to Construction Disbursement Request and Certificate

  
	
  Exhibit D-2

  	
   

  	
  Form of Advance Disbursement Request
  and Certificate

  
	
  Attachment A to Exhibit D-2

  	
   

  	
  Form of Issuers’ Officer’s Certificate
  to Advance Disbursement Request and Certificate

  
	
  Exhibit D-3

  	
   

  	
  Form of First Disbursement Officer’s
  Certificate

  
	
  Exhibit E

  	
   

  	
  Form of Construction Disbursement
  Budget Amendment Certificate

  
	
  Exhibit F-1

  	
   

  	
  Form of Contract Amendment Certificate

  
	
  Exhibit F-2

  	
   

  	
  Form of Additional Contract
  Certificate

  
	
  Exhibit G

  	
   

  	
  Form of Consent to Collateral
  Assignment of Contract

  
	
  Exhibit H

  	
   

  	
  Form of Pro Forma Title Policy

  
	
  Exhibit I

  	
   

  	
  Property Legal Description

  



 


iii





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


THIS CASH
COLLATERAL AND DISBURSEMENT AGREEMENT (as amended, supplemented or otherwise
modified from time to time, this “Agreement”)
is dated as of July 19, 2005, by and among U.S. Bank National Association,
having an office at 60 Livingston Avenue, St. Paul, Minnesota 55107, as trustee (together with its successors and assigns,
the “Trustee”) under the Indenture
(as defined below), U.S. Bank National Association, as disbursement agent (together
with its successors and assigns, the “Disbursement
Agent”), Diamond Jo Worth, LLC, a Delaware limited liability company
(the “Company”), and Diamond Jo
Worth Corp., a Delaware corporation (“DJW
Corp.” and, together with the Company, the “Issuers”).


 


R  E  C  I  T  A
L  S


 


A.            Notes.  The Issuers have issued Forty Million Dollars
($40,000,000) in aggregate principal amount of their 11% Senior Secured Notes due 2012 (the “Original Notes”
and, together with any additional Notes issued under the Indenture and any new
notes issued in exchange for the Original Notes or such additional Notes, the “Notes”)
concurrently herewith.  The Notes have
been issued pursuant to the provisions of an Indenture (as amended,
supplemented or otherwise modified from time to time, the “Indenture”) dated the date hereof, among
the Issuers and the Trustee, on behalf of itself and the holders of the
Notes.  Net proceeds from the issuance of
Notes will be disbursed as follows:  (a) Thirty
Four Million Two Hundred Thousand Dollars ($34,200,000.00) (the “Construction Proceeds”) will be deposited
contemporaneously with the execution of this Agreement into Account No. 790235001
held at the Disbursement Agent (said account, or any substitute account
selected in accordance with the terms of this Agreement, is referred to herein
as the “Construction Disbursement Account”),
to be maintained by the Disbursement Agent pursuant to Section 2 of
this Agreement; and (b) Three Million Three Hundred Thousand Dollars
($3,300,000) (the “Interest Reserve Proceeds,”
which, together with the Construction Proceeds shall be referred to herein as
the “Proceeds”), will be deposited
contemporaneously with the execution of this Agreement into Account No. 790235002,
held at the Disbursement Agent (said account, or any substitute account
selected in accordance with the terms of this Agreement, is referred to herein
as the “Interest Reserve Account”),
to be maintained by the Disbursement Agent pursuant to Section 2 of
this Agreement.


 


B.            Collateral
and Collateral Assignment.  As
security for their obligations under the Notes and the Indenture, the Issuers
have granted security interests to the Trustee, on behalf of itself and the
holders of Notes, in certain assets and have collaterally assigned certain
contracts to the Trustee.  As further
security for their obligations under the Notes and the Indenture, the Issuers
also have granted pursuant to the Pledge Agreement a security interest to the
Trustee, on behalf of itself and the holders of the Notes, in all of the
Issuers’ right, title and interest in the Construction Disbursement Account,
the Interest Reserve Account and the Disbursed Funds Account (as defined
herein) and any Proceeds or other amounts held in any such accounts.


 


C.            Purpose.  The parties intend that portions of the
Proceeds and the other amounts deposited from time to time in the Construction
Disbursement Account be used for the design, development, construction,
equipping and operation of the Facility (as defined herein), all in accordance
with this Agreement and the Indenture. 
The parties have entered into this Agreement


 


1





















 


in order to set forth the
conditions upon which, and the manner in which, funds will be disbursed in
order to permit the Company to design, develop, construct, equip and operate
the Facility and to pay certain Debt Financing Costs when due and payable under
the Notes.


 


AGREEMENT


 


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


 


1.             Definitions.


 


1.1           Defined Terms.  In this Agreement (including the preamble and
Recitals), the terms defined in this Section 1 shall have the
meanings herein specified, such definitions to be equally applicable to both
the singular and plural forms of any of the terms defined:


 


“Accounts” means the Interest Reserve
Account and the Construction Disbursement Account.


 


“Additional Contract Certificate” means the
Officer’s Certificate of the Issuers in the form of Exhibit F-2
attached hereto.


 


“Additional Revenue” means revenue
(including, without limitation, investment income (loss), less any losses or
costs associated therewith, earned on amounts in the Construction Disbursement
Account) generated by the Issuers (other than from disposition of its assets),
but only to the extent that such revenue is held by the Issuers, free and clear
of any claims of any other parties whatsoever, other than claims of the Trustee
and holders of the Notes; provided, however, that as of any date
of measurement, Additional Revenue also shall include investment income (loss),
less any losses or costs associated therewith, which the Issuers reasonably
determine (with the reasonable concurrence of the Disbursement Agent) will be
earned on funds in the Construction Disbursement Account through the reasonably
anticipated date of Opening, taking into account the current and future
reasonably anticipated rates of return on Cash Equivalents in the Construction
Disbursement Account and the reasonably anticipated times and amounts of draws
therefrom for the payment of Construction Expenses or in connection with
permitted amendments to the Construction Disbursement Budget (as applicable).


 


“Advance Disbursements” means a disbursement
from the Construction Disbursement Account to the Issuers pursuant to Section 7.3
and in accordance with the Construction Disbursement Budget, notwithstanding
the fact that not all certifications and lien releases have been obtained and
other disbursement conditions have not been satisfied; provided, however,
that the aggregate amount of Advance Disbursements outstanding at any time
shall not exceed One Million Five Hundred Thousand Dollars ($1,500,000).


 


“Advance Disbursement Certificate” means an
Officer’s Certificate from the Issuers in the form of Exhibit D-2
attached hereto.


 


“Advance Disbursement Officer’s Certificate”
has the meaning set forth in Section 6.2.3.


 


2





















 


“Affiliate” has the meaning given in the
Indenture.


 


“Agreed Permits” has the meaning given in Attachment
A to Exhibit B-1 attached hereto.


 


“Applicable Permits” means the national,
state and local license authorizations, certifications, filings, recordings,
permits or other approvals with or of any Governmental Instrumentality,
including, without limitation, environmental, construction, operating or
occupancy permits and any agreements, consents or approvals that are required
for the design, construction, operation or maintenance of the Facility in
accordance with the Operative Documents. 
Without limiting the foregoing, Applicable Permits also include
Construction Period permits for temporary construction utilities and temporary
sanitary facilities, dump permits, road use permits, permits related to the
use, storage and disposal of hazardous materials introduced to the Property for
or in connection with the performance of the design, construction, operation or
maintenance of the Facility, and permits issued pursuant to any building,
mechanical, electrical, plumbing or similar codes.


 


“Architect” means Kittrell Garlock and
Associates, AIA, Ltd., d/b/a KGA Architecture, and its successors identified by
notice from the Company to the Disbursement Agent.


 


“Architect Agreement” means the Standard Form of
Agreement Between Owner and Architect (AIA Document B141-1997 edition) for the
Facility, executed by the Architect and the Company, dated March 1, 2005
(as amended, modified or supplemented from time to time in accordance with this
Agreement).


 


“Available Funds” means, at any given time,
the sum of (a) the balance of the Construction Disbursement Account
(taking into account any additional amounts deposited by the Issuers in the
Construction Disbursement Account pursuant to clause (ii) of Section 7.6),
(b) so long as there is no Default or Event of Default, Additional Revenue
expected to be earned from and after such time, (c) the net proceeds of
any FF&E Financing that the Issuers have incurred or reasonably expect to
incur as permitted under the Indenture, less all amounts previously drawn upon
from such FF&E Financing, and (d) the net proceeds available for loan
under any Senior Credit Facility that the Issuers enter into or reasonably
expect to enter into as permitted under the Indenture, less all amounts
previously drawn upon from such Senior Credit Facility.


 


“Business Day” means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in New York, New York, are authorized or obligated by law or executive order to
close.


 


“Cash Equivalents” has the meaning given in
the Indenture.


 


“Collateral” has the meaning given in the
Indenture.


 


“Construction Contract” means the Standard Form of
Agreement Between Owner and Contractor (AIA Document A111-1997 edition) and
General Conditions of the Contract for Construction (AIA Document A201-1997
edition) for the construction of the Facility, executed


 


3





















 


by the General
Contractor and the Company, dated June 6, 2005 (as amended, modified or supplemented from time to time in
accordance with this Agreement).


 


“Construction Disbursement Budget” means the
Initial Construction Disbursement Budget, as the same may be amended, modified
or supplemented from time to time in accordance with this Agreement.


 


“Construction Disbursement Budget Amendment Certificate”
means an Officer’s Certificate from the Issuers in the form of Exhibit E
attached hereto.


 


“Construction Disbursement Certificate”
means an Officer’s Certificate from the Issuers in the form of Exhibit D-1
attached hereto.


 


“Construction Disbursement Officer’s Certificate”
has the meaning set forth in Section 6.2.2.


 


“Construction Documents” means the
Construction Contract, the Architect Agreement, and any other Contract entered
into by the Company on, prior to or after the Issue Date with respect to
construction of all or any portion of the Facility (other than the Financing
Agreements and the documents evidencing or securing the FF&E Financing or a
Senior Credit Facility), as the same may be amended, modified or supplemented
from time to time as permitted thereunder and in accordance with this
Agreement.


 


“Construction Expenses” means expenses
incurred in connection with the design, development, engineering, construction,
installation or equipping of the Facility in accordance with the Construction
Disbursement Budget, excluding, however (a) any such expenses paid on or
prior to the Issue Date, (b) any Debt Financing Costs and (c) any
Issue Fees and Expenses.


 


“Construction Period” means the period from
the Issue Date to and including the date of the Opening.


 


 “Contract”
means a contract to which the Company is a party pertaining to the design,
development, engineering, installation or construction of all or any portion of
the Facility, including, without limitation, any contract, license and
performance and payment bond or guarantee, if any; provided, however,
such term shall not include any of the Subcontracts, the Subcontractors, the
Financing Agreements or any of the documents evidencing or securing the
FF&E Financing or any Senior Credit Facility.


 


“Contract Amendment Certificate” is an
Officer’s Certificate from the Issuers in the form of Exhibit F-1
attached hereto.


 


“Contractor” means a party to a Contract
other than the Company.


 


“Control Account Agreement” means one or
more Deposit Account Control Agreements dated as of even date herewith by and
among the Trustee, the Issuers, and the institution at which the Disbursed
Funds Account is held.


 


4





















 


“Debt Financing Costs” means all principal,
interest, premium fees and other amounts payable or accrued from time to time
under the Notes.


 


“Default” means any event, omission or
failure of a condition that is, or with the passage of time or the giving of
notice or both could be, an Event of Default.


 


“Disbursed Funds Account” means Account No. 2013837 and Account No. 201162, each held at American Trust
(ABA Number 073900522), in the
name of the Company, or any substitute account selected by the Issuers in
accordance with this Agreement, which account shall be funded from
disbursements from the Construction Disbursement Account pursuant to this
Agreement and shall be pledged as collateral to the Trustee pursuant to the
Control Account Agreement, for the benefit of itself and the holders of the
Notes, and, with respect to at least one such account, from which the Company
shall have general check writing authority.


 


“Disbursement” means any disbursement of
funds pursuant to a Disbursement Request.


 


“Disbursement Agent’s Closing Certificate”
is an Officer’s Certificate from the Disbursement Agent in the form of Exhibit B-2
attached hereto.


 


“Disbursement Request” means any Initial
Disbursement Request, Construction Disbursement Request, Interest Disbursement
Request, Advance Disbursement Request and any other request for disbursement
from the Accounts made pursuant to this Agreement.


 


“Facility” means the design, development,
construction, equipping and commencement of operations of the improvements
described in the Construction Documents and in accordance therewith.


 


“Facility Cost Schedule” means an itemized schedule in
the form of Schedule 1 to the Construction Disbursement Officer’s
Certificate, a form of which is attached hereto as Schedule 1 to
Attachment A to Exhibit D-1.


 


 “FF&E
Financing” has the meaning given in the Indenture.


 


“Final Plans” means Plans which (a) have
received all required approvals from all Governmental Instrumentalities
required to approve such Plans prior to commencement of that portion of the
Facility reflected in such Plans; (b) contain sufficient specificity to
permit the completion of the work or improvement reflected in such Plans and
collectively contain sufficient specificity to permit completion of the
Facility; (c) are consistent with constructing the Facility to include the
Minimum Facilities; (d) have been signed by an architect licensed to
practice architecture in the State of Iowa; and (e) have been delivered to
the Disbursement Agent.


 


“Financing Agreements” means, collectively,
this Agreement, the Indenture, the Security Documents, the Notes and any other
loan or security agreement entered into on, prior to or after the Issue Date
with or for the benefit of the Trustee to finance all or any portion of the
Facility, as each of the same may be amended, modified or supplemented from
time to time as permitted thereunder and in accordance with the terms and
conditions of this Agreement.


 


5





















 


“First Disbursement Request” means the first
Disbursement Request (other than an Interest Disbursement Request) made
pursuant to this Agreement.


 


“First Disbursement Officer’s Certificate”
has the meaning set forth in Section 6.2.4.


 


“Gaming Laws” has the meaning given in the
Indenture.


 


“Gaming Licenses” has the meaning given in
the Indenture.


 


“General Contractor” means Henkel
Construction.


 


“Governmental Instrumentality” means any
national, state or local government (whether domestic or foreign), any
political subdivision thereof or any other governmental, quasi-governmental,
judicial, public or statutory instrumentality, authority, body, agency, bureau
or entity (including any Gaming Authority, any zoning authority, the FDIC, the
Comptroller of the Currency or the Federal Reserve Board, any central bank or
any comparable authority) or any arbitrator with authority to bind a party at
law.


 


“Hard Costs” means the costs and expenses in
respect of supplying goods, materials and labor for the construction of
improvements relating to the Facility or other amounts payable pursuant to the
Construction Documents.


 


“Initial Construction Disbursement Budget”
means the itemized schedule, in the form attached as Exhibit 1 to
the First Disbursement Officer’s Certificate, setting forth on a line
item-basis all of the costs which the Company anticipates to expend from and
after the Issue Date in connection with the design, development, engineering,
construction, installation, equipping and commencement of operations of the
Facility, including all Construction Expenses but excluding all Debt Financing
Costs, which costs in the aggregate shall not exceed the Available Funds.


 


“Initial Disbursements Certificate” means an
Officer’s Certificate from the Issuers in the form attached hereto as Exhibit A.


 


“Interest Disbursement Certificate” means an
Officer’s Certificate from the Issuers in the form attached hereto as Exhibit C.


 


“Interest Payment Date” has the meaning
given in the Notes.


 


“Issue Fees and Expenses” means fees and
expenses incurred on or before the Issue Date by the Issuers or for which the
Issuers are liable in connection with the offering of the Notes.


 


“Issue Date” has the meaning given in the
Indenture.


 


“Issuers’ Closing Certificate” means an
Officer’s Certificate from the Issuers in the form of Exhibit B-1
attached hereto.


 


“Issuer’s Closing Officer’s Certificate” has
the meaning set forth in Section 6.2.1.


 


6





















 


“Lien” has the meaning given in the
Indenture.


 


“Manager” means Peninsula Gaming, LLC and its
permitted successors and assigns identified by notice from the Issuers to the
Disbursement Agent.


 


 “Material
Construction Document” means any of the Construction Contract, the
Architect Agreement, and without duplication, any other Contract with a total
contract amount in excess of $100,000.


 


“Minimum Facilities” means a casino offering
not less than 500 slot machines.


 


 “Officer’s
Certificate” means a certificate signed by one of the following
officers of the Person on whose behalf or for whose benefit the certificate is
being executed or delivered:  the
Chairman of the Board, Chief Executive Officer, President, Chief Financial
Officer, Executive Vice President, Vice President, Treasurer or Assistant
Treasurer.


 


“Opening” means the time when the Facility
shall have been opened to the general public, is receiving customers in the
ordinary course of business and has received, and has in full force and effect,
all material Permits required for operation.


 


“Operative Documents” means the Financing
Agreements and the Construction Documents.


 


“Permits” has the meaning given in the
Indenture.


 


“Person” means any individual, corporation,
limited liability company, partnership, joint venture, association, joint stock
company, trust, unincorporated organization, government or any agency or
political subdivision thereof, or any other entity.


 


“Plans” means the plans, specifications,
working drawings, design documents and any change orders relating thereto,
which may be amended by the Company as necessary or appropriate, that
collectively:  (a) provide for and
detail the manner of construction of improvements for the Facility; (b) call
for construction which will permit the Opening to occur; (c) call for
construction which will cause the Facility to be completed for a total cost
consistent with the Construction Disbursement Budget and the line items set
forth therein, taking into consideration the availability of Available Funds,
including Realized Savings; (d) are consistent with constructing the
Facility to include the Minimum Facilities; (e) have been signed by an
architect who is licensed to practice architecture in the State of Iowa; and (f) to
the extent such Plans are amended, such Plans are consistent with previous
Plans and are reasonably inferable therefrom, as the same may be amended or
supplemented from time to time.


 


“Pledge Agreement” means each of the
Security Agreement and/or Control Account Agreement among any of the
Disbursement Agent, the Trustee and the Issuers relating to the Trustee’s
security interest in the Accounts and the Disbursed Funds Account and the
proceeds thereof.


 


“Property” means the real property located
in Worth County, Iowa, on which the Issuers will construct the Facility, as
more particularly described in Exhibit I hereto.


 


7





















 


“Property Documents” means each easement or
material agreement affecting the Property or the Company’s use thereof.


 


“Realized Savings” means the excess of the
amount budgeted in the Construction Disbursement Budget for a line item over
the amount of funds expended or owed by the Company to complete the tasks set
forth in such line item and for the materials and services used to complete
such tasks, so long as the terms for such tasks are final and unconditional (other
than the satisfactory completion of such tasks), including without limitation
the execution of fixed price purchase orders to acquire the materials that are
the subject of such line item (as applicable); provided, however,
that Realized Savings for any line item shall be deemed to be zero (i) if
such savings are obtained in a manner that materially detracts from the overall
value, quality and amenities of the Facility and (ii) unless and until the
Issuers have delivered a fully executed Construction Disbursement Budget
Amendment Certificate (together with all exhibits thereto) which includes such
Realized Savings.


 


“Remaining Costs” means, at any given time,
the amount of Construction Expenses (including Retainage Amounts) set forth in
the Construction Disbursement Budget that remain unpaid at such time (including
amounts that have not yet accrued at such time).


 


“Reserved Construction Amount” means the
amount (exclusive of any Retainage Amounts) necessary as of the date of the
Final CDA Disbursement to complete the Facility in accordance with the Final
Plans and containing the Minimum Facilities, including punch list items.


 


“Retainage Amounts” means, at any given
time, amounts which have accrued and are owing under the terms of a Contract
for work or services to the Company already provided but which at such time
(and in accordance with the terms of the Contract) are being withheld from
payment to the respective Contractor until certain subsequent events (e.g.,
completion benchmarks or required release to a Subcontractor) have been
achieved under the Contract.


 


“Security Agreement” means that certain
Security Agreement dated as of even date herewith, made by the Issuers in favor
of the Trustee, acting in the capacity of collateral agent for the benefit of
itself and the holders of the Notes.


 


“Security Documents” has the meaning given
in the Indenture.


 


“Senior Credit Facility” has the meaning
given in the Indenture.


 


“Soft Costs” means all costs and expenses
(other than Hard Costs) set forth in the Construction Disbursement Budget,
including without limitation pre-opening costs.


 


“Subcontracts” has the meaning given in the
Construction Contract.


 


“Subcontractors” means the Persons
performing the obligations under the Subcontracts.


 


“Title Insurer” means Chicago Title
Insurance Company.


 


8





















 


“Title Policy” means the lender’s policy or
policies of title insurance to be provided by the Title Insurer to the Trustee
with respect to the Property, together with all endorsements thereto, in the
form attached hereto as Exhibit H.


 


“Trustee’s Closing Certificate” is the
Officer’s Certificate from the Trustee in the form of Exhibit B-3
attached hereto.


 


1.2           Additional Defined
Terms.  In addition, the terms listed
below in the left column below shall have the respective meanings assigned to
such terms in the Section of this Agreement listed opposite such terms in
the right column below.  All other
capitalized terms not defined herein, but defined in the Indenture, shall have
the meanings ascribed to them in the Indenture.


 


	
  Defined Terms

  	
   

  	
  Section

  
	
   

  	
   

  	
   

  
	
  Advance Disbursement Request

  	
   

  	
  4.1

  
	
  Agreement

  	
   

  	
  Introduction

  
	
  Company

  	
   

  	
  Introduction

  
	
  Construction Disbursement Account

  	
   

  	
  A of Recitals

  
	
  Construction Disbursement Request

  	
   

  	
  4.1

  
	
  Construction Proceeds

  	
   

  	
  A of Recitals

  
	
  Disbursement Agent

  	
   

  	
  Introduction

  
	
  Event of Default

  	
   

  	
  9

  
	
  Final CDA Disbursement

  	
   

  	
  7.5.1

  
	
  GMP

  	
   

  	
  7.6

  
	
  GMP Change Order

  	
   

  	
  7.6

  
	
  Indenture

  	
   

  	
  A of Recitals

  
	
  Initial Disbursements

  	
   

  	
  7.1

  
	
  Initial Disbursement Request

  	
   

  	
  4.1

  
	
  Interest Disbursement Request

  	
   

  	
  4.1

  
	
  Interest Reserve Account

  	
   

  	
  A of Recitals

  
	
  Interest Reserve Proceeds

  	
   

  	
  A of Recitals

  
	
  Issuers

  	
   

  	
  Introduction

  
	
  Maximum GMP

  	
   

  	
  7.6

  
	
  Notes

  	
   

  	
  A of Recitals

  
	
  Original Notes

  	
   

  	
  A of Recitals

  
	
  Proceeds

  	
   

  	
  A of Recitals

  
	
  Trustee

  	
   

  	
  Introduction

  



 


1.3           Rules of
Interpretation.  The following rules of
interpretation shall apply herein.


 


1.3.1        The singular includes the plural and the plural
includes the singular.


 


1.3.2        The word “or” is not exclusive.


 


1.3.3        A reference to a Person includes its permitted successors
and permitted assigns.


 


9





















 


1.3.4        Accounting terms have the meanings assigned to them by
U.S. GAAP (as defined in the Indenture), as applied by the accounting entity to
which they refer.


 


1.3.5        The words “include,”
“includes” and “including” are not limiting.


 


1.3.6        A reference in a document to an Article, Section,
Exhibit, Schedule, Annex, Attachment or Appendix is to the Article, Section,
Exhibit, Schedule, Annex, Attachment or Appendix of such document unless
otherwise indicated.  Exhibits,
Schedules, Annexes or Appendices to any document shall be deemed incorporated
by reference in such document.


 


1.3.7        References to any document, instrument or agreement (a) shall
include all exhibits, schedules and other attachments thereto, (b) shall
include all documents, instruments or agreements issued or executed in
replacement thereof, and (c) shall mean such document, instrument or
agreement, or replacement or predecessor thereto, as amended, modified and
supplemented from time to time and in effect at any given time.


 


1.3.8        The words “hereof,”
“herein” and “hereunder” and words of similar import when
used in any document shall refer to such document as a whole and not to any
particular provision of such document.


 


1.3.9        References to “days”
shall mean calendar days, unless the term “Business Days” shall be used.


 


2.             Establishment of
Accounts.


 


2.1           Appointment of
Disbursement Agent.  The Trustee and
the Issuers hereby appoint U.S. Bank National Association as the Disbursement
Agent, and U.S. Bank National Association hereby accepts such appointment as
the Disbursement Agent, in each case upon the terms and conditions set forth in
this Agreement.  The Disbursement Agent
agrees to act in good faith at all times.


 


2.2           Establishment of
Accounts.  Concurrently with the
execution and delivery hereof, the Disbursement Agent shall establish the
Accounts at the Disbursement Agent and credit thereto, in accordance with the
provisions of Recital A hereof, the Proceeds.  All funds in the Accounts and the Disbursed
Funds Account shall be held in trust and not commingled with any deposit or
commercial bank account.  All funds
accepted by the Disbursement Agent pursuant to this Agreement shall be held in
the appropriate Account or the Disbursed Funds Account for the benefit of the
Issuers subject to the terms and conditions of this Agreement and the Pledge
Agreement (including, without limitation, the rights of the Trustee hereunder
and thereunder).  The Disbursement Agent
may, upon the request of the Issuers, establish sub-accounts for accounting
purposes within the Accounts and the Disbursed Funds Account, it being
understood and agreed that the creation of such sub-accounts shall in no way
affect the pledge in favor of the Trustee in the Accounts and the Disbursed
Funds Account hereunder.


 


2.3           Pledge Agreement.  Pursuant to the Pledge Agreement, the Issuers
have granted to the Trustee, for the benefit of the holders of the Notes, a
first priority security interest in the Accounts and the Disbursed Funds
Account and all funds and assets from time to time deposited therein, and all
products and proceeds thereof.  The
Disbursement Agent shall note in its records


 


10





















 


that all funds and other assets in the Accounts and the Disbursed Funds
Account have been pledged to the Trustee and that the Disbursement Agent is
holding such items as agent for the Trustee, as secured party.  The Disbursement Agent shall maintain
dominion and control over the Accounts and the Disbursed Funds Account and the
funds and assets therein solely for the benefit of the Trustee, as secured
party, and for no other parties or Persons; provided, however,
that the Issuers shall be able to obtain disbursements from the Accounts and
the Disbursed Funds Account in accordance with the terms hereof and upon such
disbursement to the Issuers, such pledge and security interest shall be
extinguished and released with respect to the amount so disbursed.  Accordingly, it is the intention of the
parties that all such funds and assets shall not be within the bankruptcy “estate”
(or corresponding term used in the bankruptcy or insolvency laws governing the
Disbursement Agent) of the Disbursement Agent. 
All such funds and all earnings accruing from time to time thereon shall
be held in the applicable Account or the Disbursed Funds Account until
disbursed or transferred in accordance with the terms hereof.


 


2.4           Investment of Funds
in Accounts.  All funds from time to
time credited to and contained in each of the Construction Disbursement Account
(other than those to be disbursed pursuant to the Initial Disbursement Request,
which shall be so disbursed on the Issue Date) and the Interest Reserve Account
shall be invested only in Cash Equivalents from time to time by written
instructions by the Issuers delivered to the Disbursement Agent, pending
disbursement of such funds pursuant to this Agreement; provided, however,
that the Disbursement Agent shall have concluded that such investments conform
with the requirements of the Indenture and each Pledge Agreement and that
appropriate steps have been taken with respect to each such investment so as to
assure the continuing perfection of the Trustee’s first priority security
interest in such investment.  For
purposes of determining the steps to be taken in order to achieve and maintain
such perfection, the Disbursement Agent shall have the right to require the
delivery of, and to rely upon, an opinion of counsel to the Issuers or the
Disbursement Agent (the reasonable expense of which shall be paid by the
Issuers) specifying (A) that the counsel is familiar with the legal
requirements applicable to the perfection of security interests in said
investments and (B) the steps required to perfect and maintain a first
priority security interest in favor of the Trustee in such investments.  If no such investment instructions are
received by the Disbursement Agent, after the occurrence and during a
continuance of a Default or Event of Default, such funds shall be invested in
Cash Equivalents selected by the Disbursement Agent in conformity with the
requirements of the Indenture and the Pledge Agreement.  The Disbursement Agent shall not be liable
for any investment, reinvestment or similar losses, fees, taxes or charges or
for the availability or liquidity of funds in the Accounts as a result of any
investments made or reduced to cash in accordance with this Agreement, and the
Disbursement Agent is hereby authorized to direct the Securities Intermediary
(as defined in the Pledge Agreement) in writing (i) to purchase Cash
Equivalents in accordance herewith and (ii) to reduce to cash any Cash
Equivalents (without regard to maturity) in any Account in order to make any
application or disbursement required hereunder.


 


2.5           Agency.  The Disbursement Agent shall act solely as
the Trustee’s agent in connection with its duties under this Agreement,
notwithstanding any other provision contained herein, without any authority to
obligate the Trustee outside of the scope of the authority set forth in this
Agreement or to compromise or pledge its security interest hereunder; provided,
however, that the Disbursement Agent is authorized to make disbursements
from the Accounts on behalf of the Trustee pursuant to the terms of this Agreement.  The Issuers acknowledge and


 


11





















 


agree that in no event shall the Trustee or the holders of the Notes be
liable for, nor shall the obligations of the Issuers under the Indenture, the
Notes or the other Security Documents be affected or diminished as a
consequence of, any action or inaction of the Disbursement Agent with respect
to the Accounts or the Disbursed Funds Account or any funds or other assets
credited thereto or deposited herein.


 


2.6           Waiver of Set-off
Rights.  The Disbursement Agent
hereby acknowledges the Trustee’s security interest as set forth in this
Agreement and the Pledge Agreement and waives any and all security interests,
claims, encumbrances, liens and rights of set off which it may have in the
Accounts or the Disbursed Funds Account or any funds or other assets credited
thereto or deposited therein (including any and all rights of offset, deduction
and lien), whether statutory or otherwise afforded by law, agreement or otherwise)
and further waives any right to set-off said funds, assets or investments now
or in the future against any indebtedness of the Issuers to the Disbursement
Agent.  The waivers set forth in this Section are
of rights which may exist now or hereafter in favor of the Disbursement Agent
in its individual capacity, and not of any such rights which may exist now or
hereafter in favor of the Disbursement Agent in its capacity as agent for the
Trustee.  Nothing in this Section shall
be construed as waiving, limiting or diminishing any rights of the Trustee or
the Issuers against the Disbursement Agent or one another.  Nothing in this Section shall
constitute, or be deemed to constitute, a waiver or abridgement of the security
interests, claims, encumbrances, liens and rights of set off held by the
Trustee in the Accounts and the Disbursed Funds Account.


 


3.             Disbursements from
Accounts.


 


3.1           Conditions to
Disbursement.  The Disbursement Agent
shall disburse funds from the Accounts only upon satisfaction of the applicable
conditions to disbursement set forth herein.


 


3.2           Method of
Disbursement.  Upon satisfaction (or
a written waiver by the Trustee) of the applicable conditions to disbursement
set forth herein, the Disbursement Agent shall disburse funds from the applicable
Account as specified in the applicable Disbursement Request.


 


3.3           Disbursement
Agent’s Compensation.    So long as
the Trustee also serves as Disbursement Agent hereunder, the Disbursement Agent
shall not, except as otherwise provided in Section 13, be entitled
to any fee for its services hereunder. 
If the Trustee is not also serving as Disbursement Agent hereunder, the
Disbursement Agent shall be entitled to such reasonable fee payable by the
Issuers as is set forth in the separate agency agreement with the Trustee.  The Disbursement Agent hereunder (whether or
not serving as the Trustee) shall be entitled to reimbursement for its
reasonable expenses (including, without limitation, the reasonable fees and
expenses of the Disbursement Agent’s counsel after the occurrence and during
the continuance of a Default or an Event of Default) as compensation for
services performed under this Agreement. 
The Disbursement Agent shall receive such payments without the requirement
of obtaining any further consent or action on the part of the Issuers with
respect to the payment; provided, however, that, without limiting
the foregoing, the Disbursement Agent shall provide written itemization of
requested reimbursement of such expenses within thirty (30) days of receiving a
written request therefor from the Issuers. 
Disbursements for each calendar month shall be made on the first day of
the subsequent calendar month.  The
provisions of this Section 3.3 shall survive the termination of
this Agreement.


 


12





















 


3.4           Transfer of Funds to
the Trustee.  Upon the receipt of
written notice executed by the Trustee, which states that (a) an Event of
Default hereunder has occurred and is continuing and (b) the Trustee is
entitled to the funds in the Accounts and the Disbursed Funds Account (a copy
of which notice shall be sent by the Trustee to the Issuers concurrently
therewith), the Disbursement Agent shall, without need for further
authorization or notice to the Issuers, deliver to the Trustee all funds in the
Accounts and the Disbursed Funds Account.


 


4.             Agreements of
the Issuers, the Disbursement Agent and the Trustee.  The Issuers, the Disbursement Agent and the
Trustee severally agree as follows:


 


4.1           Disbursement
Requests and Disbursements.


 


(a)           The Issuers shall concurrently with the execution and
delivery of this Agreement have the right to submit to the Disbursement Agent,
with a copy to the Trustee, the Initial Disbursement Certificate, requesting
the disbursement of funds from the Construction Disbursement Account (the “Initial Disbursement Request”).


 


(b)           The Issuers or, as set forth in Section 5.1,
the Trustee (with a copy provided to the Issuers), shall have the right to
submit to the Disbursement Agent, with a copy to the Trustee, the Interest
Disbursement Certificate, requesting the disbursement of funds from the
Interest Reserve Account to pay the interest due on the Notes (an “Interest Disbursement Request”) on the
applicable Interest Payment Date.


 


(c)           In accordance with Section 7.2 or Section 7.3,
the Issuers shall have the right from time to time during the course of this
Agreement, to submit to the Disbursement Agent, with a copy to the Trustee, a
Construction Disbursement Certificate (a “Construction
Disbursement Request”) or an Advance Disbursement Certificate (an “Advance Disbursement Request”).


 


(d)           The Disbursement Agent shall review each Disbursement
Request submitted pursuant to Sections 4.1(a) through (c) above
to determine that they meet the requirements of Sections 7.1 and 7.2
of this Agreement and conform to the forms of Exhibits A, C,
D-1 and D-2 respectively, but the Disbursement Agent shall have
no obligation to review any attachments, exhibits and certificates required
thereby (as the case may be) or to inquire whether any condition certified to
has been satisfied.  If the Disbursement
Agent has determined that the requirements of Sections 7.1 and 7.2
of this Agreement have been met and that such Disbursement Request conforms to
the forms of Exhibits A, C, D-1 and D-2, as
applicable, then the Disbursement requested shall be made by the Disbursement
Agent.  Except as to the Initial
Disbursement, which shall be made on the Issue Date, the Disbursement Agent
shall notify the Issuers and the Trustee as soon as reasonably possible (and in
any event within two (2) Business Days after the Disbursement Agent
receives the required documents) if any Disbursement Request, or any portion
thereof, is disapproved and the reason(s) therefor.


 


(e)           Provided that a Disbursement Request submitted in
accordance with Sections 4.1(a) or (c) above is
not disapproved by the Disbursement Agent in accordance with this Agreement,
then, within two (2) Business Days following submission of such
Disbursement Request, the Disbursement Agent shall disburse to the Disbursed
Funds Account the funds


 


13





















 


requested
in such Disbursement Request (other than those to be disbursed pursuant to the
Initial Disbursement Request, which shall be disbursed on the Issue Date).  The Issuers shall withdraw funds from and
write checks on the Disbursed Funds Account solely for the purpose of paying
Construction Expenses identified on such Disbursement Request.


 


(f)            Provided that an Interest Disbursement Request submitted
in accordance with Section 4.1(b) above is not disapproved by
the Disbursement Agent in accordance with this Agreement, then, within two (2) Business
Days following submission of such Interest Disbursement Request, the
Disbursement Agent shall disburse to the Trustee the funds requested in such
Interest Disbursement Request.


 


(g)           The Trustee may waive any condition to a disbursement
requested in a Disbursement Request.


 


4.2           Insufficient
Available Funds.  The Issuers shall
promptly, and in no event later than two (2) Business Days following
knowledge thereof, notify the Trustee and the Disbursement Agent in writing if
at any time the Issuers reasonably believe that there are insufficient
Available Funds (a) to permit the Opening or (b) to complete construction
of the Facility in accordance with the Final Plans and/or the Construction
Disbursement Budget (as in effect at such time).  Such notice shall specify in reasonable
detail (i) the amount of such deficiency and (ii) the steps which the
Issuers intend to take to cure such deficiency and the anticipated timing
thereof.


 


5.             Interest
Reserve.


 


5.1           Interest
Disbursements.  Ten (10) days
prior to each of the first two (2) Interest Payment Dates, the Issuers
shall deliver to the Disbursement Agent an Interest Disbursement Request,
setting forth the amount required to be paid and the Interest Payment Date upon
which such payment is due and payable. 
Subject to Section 4.1(d), on each such Interest Payment
Date, the Disbursement Agent shall liquidate Cash Equivalents (to the extent
required) held in the Interest Reserve Account and disburse to the Trustee the
amounts described in the Interest Disbursement Request as due and payable on
that date; provided, however, that the Trustee may direct in
writing the Disbursement Agent to liquidate Cash Equivalents (to the extent
required) and disburse to the Trustee the amounts necessary to pay the amounts
required to be paid on the Notes in the event that the Issuers fail to timely
deliver the Interest Disbursement Request, in which case the obligations of the
Issuers under this Section 5.1 shall be deemed performed.  In the event there are insufficient funds in
the Interest Reserve Account to pay the amount set forth in an Interest
Disbursement Request or direction so given by the Trustee, the Issuers shall,
not less than three (3) Business Days prior to the applicable Interest
Payment Date, deposit immediately available funds into the Interest Reserve
Account in an amount equal to such deficiency. 
The Issuers acknowledge that the Issuers’ failure to provide notice or
deposit funds referenced in this Section shall not in any way exonerate or
diminish the Issuers’ obligation to make all payments under the Notes as and
when due.


 


5.2           Interest Reserve
Account Amounts.  Upon payment in
full of each of the first two (2) interest payments due on the Notes, the
Disbursement Agent shall transfer any funds and/or Cash Equivalents in the
Interest Reserve Account to the Construction Disbursement Account and


 


14





















 


such funds and/or Cash Equivalents shall be deemed Additional Revenue; provided,
however, that if the Final CDA Disbursement has been made pursuant to Section 7.5
prior to the second Interest Payment Date, any funds remaining in the Interest
Reserve Account shall be disbursed to the Disbursed Funds Account.


 


6.             Certain Covenants.


 


6.1           Notice of Opening.  Promptly after (but in any event within seven
days after) the date of Opening, the Issuers shall deliver an Officer’s
Certificate to the Disbursement Agent and the Trustee to the effect that the
Opening has occurred.


 


6.2           Issuers’ Officer’s
Certificates.


 


6.2.1        For Closing Certificate. 
The Issuers shall attach to the Issuers’ Closing Certificate delivered
to the Disbursement Agent and the Trustee an Issuers’ Officer’s Certificate for
Issuers’ Closing Certificate in the form of Attachment A to Exhibit B-1
attached hereto (including all required exhibits and attachments thereto) (the “Issuers’ Closing Officer’s Certificate”),
executed and completed as to the information required therein.


 


6.2.2        For Construction Disbursement Certificate. 
The Issuers shall attach to each Construction Disbursement Certificate
delivered to the Disbursement Agent and the Trustee an Issuers’ Officer’s Certificate
for Construction Disbursement Certificate in the form of Attachment A to Exhibit D-1
(including all required exhibits and attachments thereto) (the “Construction Disbursement Officer’s Certificate”),
executed and completed as to the information required therein.


 


6.2.3        For Advance Disbursement Certificate. 
The Issuers shall attach to each Advance Disbursement Certificate
delivered to the Disbursement Agent and the Trustee an Issuers’ Officer’s
Certificate for Advance Disbursement Certificate in the form of Attachment A
to Exhibit D-2 (including all required exhibits and attachments
thereto) (the “Advance Disbursement Officer’s
Certificate”), executed and completed as to the information required
therein.


 


6.2.4        For First Disbursement Request. 
The Issuers shall attach to the First Disbursement Request (whether made
pursuant to an Initial Disbursements Certificate, Advance Disbursement
Certificate or Construction Disbursement Certificate) delivered to the
Disbursement Agent and the Trustee a First Disbursement Officer’s Certificate
in the form of Exhibit D-3 (including all required exhibits and
attachments thereto) (the “First Disbursement
Officer’s Certificate”), executed and completed as to the
information required therein.


 


6.2.5        No Review Obligation. 
Neither the Trustee nor the Disbursement Agent shall have any obligation
to review any Officer’s Certificates or other documents attached to the Issuer’s
Closing Certificate, the Construction Disbursement Certificate or the Advance
Disbursement Certificate or to investigate any facts or matters contained in
such Officer’s Certificates.  The Trustee
and the Disbursement Agent shall incur no liability if such Officer’s
Certificates or other documents attached to the Issuer’s Closing Certificate,
the Construction Disbursement Certificate or the Advance Disbursement
Certificate do not conform to the forms


 


15





















 


attached
to this Agreement regardless of whether such Officer’s Certificates and other
attached documents are or are not reviewed by the Trustee and/or the
Disbursement Agent.


 


6.3           Officer’s
Certificate as Representation and Warranty. 
Each Officer’s Certificate signed on behalf of the Issuers and delivered
to the Disbursement Agent and/or the Trustee pursuant to, or in connection
with, this Agreement, shall be deemed to be a representation and warranty by
the Issuers to the Disbursement Agent and/or the Trustee, as the case may be,
as to the matters covered by such certificates.


 


7.             Construction
Disbursement Account.


 


7.1           Conditions to
Initial Disbursements.  Upon
satisfaction of the conditions described below in this Section 7.1,
on the Issue Date the Disbursement Agent shall make the disbursements described
in the Initial Disbursements Certificate (the “Initial Disbursements”). 
The conditions to the Initial Disbursements shall consist of the
following:


 


(a)           The Disbursement Agent shall have received the
Proceeds;


 


(b)           The Disbursement Agent shall have received the
following executed documents:  (i) the
Initial Disbursements Certificate, (ii) the Issuers’ Closing Certificate, (iii) the
Disbursement Agent’s Closing Certificate (which the Disbursement Agent
covenants and agrees to deliver to the Trustee and the Issuers) and (iv) the
Trustee’s Closing Certificate; and


 


(c)           The Disbursement Agent shall have received
confirmation from the Trustee that it has received the Initial Disbursement
Certificate, the Issuers’ Closing Certificate and the Disbursement Agent’s
Closing Certificate.


 


7.2           Conditions to
Subsequent Disbursements.  Upon
satisfaction (or a written waiver by the Trustee) of the conditions described
below in this Section 7.2, the Disbursement Agent shall make the
disbursements described in the corresponding Construction Disbursement Request
or Advance Disbursement Request (provided that the conditions set forth in Section 7.1
shall have previously been satisfied) from the Construction Disbursement
Account to the Disbursed Funds Account:


 


(a)           The Disbursement Agent shall have received a
Construction Disbursement Request or Advance Disbursement Request pertaining to
the amounts requested for disbursement; and


 


(b)           The Trustee shall not have provided the Disbursement
Agent notice that a Default or Event of Default has occurred and remains
continuing.


 


7.3           Advance
Disbursements.  Upon the satisfaction
of the conditions described below in this Section 7.3, the Issuers
shall have the right to deliver to the Disbursement Agent an Advance
Disbursement Request, which Advance Disbursement Request shall not be required
to include or attach the supporting documentation required for all other
Disbursement Requests; provided, however, that (i) within
thirty (30) days after any Advance Disbursement is made (or, if earlier,
promptly following the occurrence of a Default or an Event of Default), the
Issuers shall, with respect to such Advance Disbursement, provide the same
supporting documentation


 


16





















 


as is required under this Agreement with respect to other Construction
Disbursement Requests (which documentation may be included in a subsequent
Construction Disbursement Request) and (ii) in no event shall the
outstanding balance of undocumented Advance Disbursements from the Construction
Disbursement Account at any one time exceed $1,500,000.


 


7.4           Disbursements after
an Event of Default.  In the event
that the Trustee has provided the Disbursement Agent notice that a Default or
Event of Default exists and is continuing (unless the same has been waived by
the Trustee in writing), the Disbursement Agent shall not approve any
disbursement of funds for the Facility from the Construction Disbursement
Account.  Notwithstanding the foregoing,
the Trustee may direct that any of the following payments be made, and
provided, further, that nothing in this Section 7.4 shall limit the
Trustee’s right to the disbursement of funds in the Construction Disbursement
Account pursuant to Section 3.4:


 


(i)            if all other conditions in Section 7.2 (including
those stated in Section 7.1) are met, funds from the Construction
Disbursement Account, for work completed or materials purchased on or prior to
the date that such Default or Event of Default first occurred;


 


(ii)           payments not
to exceed One Million Five Hundred Thousand Dollars ($1,500,000) in the aggregate
to prevent the condition of the Facility from deteriorating or to preserve any
work completed on the Facility, certified to the Disbursement Agent and the
Trustee in writing by the Issuers to be reasonably necessary or advisable; provided,
however, that the foregoing limitation may be increased or decreased by
the Trustee by written notice to the Disbursement Agent and the Issuers; and


 


(iii)          if such condition continues for a period of three (3) consecutive
months or more, at the written request of the Issuers, Retainage Amounts for
work completed; provided that the Issuers and the Manager each certify
to the Disbursement Agent and the Trustee in writing the amount required to be
paid for such Retainage Amounts and that the conditions for paying such amounts
(other than that the Opening has occurred) are met.


 


7.5           Final Disbursement
of Funds Following Opening.


 


7.5.1        If any funds remain in the Construction Disbursement
Account and (a) Issuers have provided notice in accordance with Section 6.1
herein that the Opening has occurred, (b) there is no ongoing construction
in connection with the Facility, other than maintenance and repairs in the
ordinary course of business and all punch list items, in an aggregate amount
(excluding Retainage Amounts) not to exceed $250,000, and (c) there exists
no continuing Default or Event of Default, then the Issuers shall have the
right to request that the Disbursement Agent disburse to the Issuers all
remaining funds in the Construction Disbursement Account.  Upon receipt by the Disbursement Agent of a
Construction Disbursement Request with the paragraph labeled “[For the Final
CDA Disbursement Only]” included, the Disbursement Agent shall disburse all
remaining funds in the Construction Disbursement Account as directed by the
Issuers (the “Final CDA Disbursement”).  All funds


 


17





















 


disbursed
to the Issuers pursuant to this Section shall be used by the Issuers as
required pursuant to the Indenture and this Agreement, including without
limitation Section 7.5.2.


 


7.5.2        To the extent that any work performed, services
rendered or materials provided in connection with the Facility as contemplated
under the Construction Disbursement Budget then in effect remain unpaid on or
after the date of the Final CDA Disbursement, the Issuers shall apply all funds
disbursed to the Issuers pursuant to Section 7.5.1 to pay all
amounts due and owing under any Contracts in accordance therewith prior to
utilizing any other funds otherwise available to the Issuers for such purposes.


 


7.6           First Disbursement
Request.


 


7.6.1        Guaranteed Maximum Price Contract. 
The Issuers shall use their reasonable best efforts to enter into with
the General Contractor, as promptly as practicable after the date hereof, a change
order under the Construction Contract which adds to the Construction Contract a
guaranteed maximum price (the “GMP”
and, such change order, the “GMP Change Order”)
of no greater than $22.0 million (the “Maximum
GMP”).


 


7.6.2        First Disbursement Request.  The Issuers shall not have the right
to deliver to the Disbursement Agent a First Disbursement Request unless the
following conditions precedent have been satisfied:  (i) the GMP Change Order has been
entered into among the Issuers and the General Contractor, (ii) in the event
that the GMP Change Order establishes a GMP in excess of the Maximum GMP, the
Issuers shall have deposited (or, concurrently with submitting the First
Disbursement Request, deposit) into the Construction Disbursement Account an amount
equal to the excess of the GMP established by the GMP Change Order over the
Maximum GMP, and (iii) the Issuers shall have complied with Section 6.2.4
hereof with respect to the First Disbursement Request.


 


8.             Amendments to
Construction Disbursement Budget; Amendments to Contracts; Amendments to
Facility Cost Schedule and Cost Overruns.


 


8.1           Construction
Disbursement Budget Amendment Process. 
The Construction Disbursement Budget may be amended by the Issuers from
time to time in the manner set forth herein without review or approval from the
Trustee or the Disbursement Agent. 
Subject to Section 8.2, the Issuers shall have the right
from time to time to amend the Construction Disbursement Budget to change the
amounts allocated for specific line item components of the work required to
complete the Facility, including Soft Costs; provided that, in any such
amendment, the Company may neither modify the description of any line item nor
modify the amount set forth for any such line item incurred on or prior to the
Issue Date.  A line item in the
Construction Disbursement Budget may be increased only if the funds for such
increase are made available in the Construction Disbursement Budget from (a) previously
unallocated Available Funds or an increase in Additional Revenue, in each case
to the extent not previously expended or dedicated to the payment of items
contained in the Construction Disbursement Budget; (b) an increase in
Realized Savings from another line item and a corresponding reduction in the
construction line items related to such Realized Savings; (c) the
reduction of the “contingency” line item, if any, in the Construction
Disbursement Budget or (d) the reduction of allocated reserves in the
Construction Disbursement Budget pursuant to the terms and condition


 


18





















 


of this Agreement.  Any such
amendment shall be in writing and shall identify with particularity the line
items to be changed and the amount of such change and (x) in the event of
an increase in a construction line item, the Realized Savings, Additional
Revenue, line item for “contingency” (if any) in the Construction Disbursement
Budget and/or previously allocated reserves which are permitted to be reduced
(but not any Retainage Amounts), which are proposed to be utilized to pay for
the increase; and (y) in the case of a decrease in a construction line
item, the Realized Savings in the amount of such reduction.  Construction line items may be reduced only
upon obtaining, and in the amount of, Realized Savings.  The “contingency” line item, if any, in the
Construction Disbursement Budget may be reduced by allocation to other line
items.  Any amounts of Realized Savings,
Additional Revenue, contingency amounts or previously allocated reserves so identified
for use in connection with a particular line item thenceforth shall be deemed
dedicated to the particular line item, unless and until the Construction
Disbursement Budget is amended to reduce the amounts budgeted for the line
item.  The Issuers shall submit the
Construction Disbursement Budget Amendment Certificate to the Trustee in the
form of Exhibit E attached hereto; provided, however, that the Issuers shall
not be required to submit a Construction Disbursement Budget Amendment
Certificate if the amendment, together with all previous amendments for which a
Construction Disbursement Amendment Certificate was not submitted to the
Trustee, does not increase the total Construction Disbursement Budget by more
than $500,000 in the aggregate.  Neither
the Trustee nor the Disbursement Agent shall have any obligation to (i) review
the Construction Disbursement Budget Amendment Certificate or any documents
attached thereto, (ii) investigate into any facts or matters contained in
such Certificate or documents attached thereto, or (iii) make any
determination as to whether the obligation to submit a Construction
Disbursement Budget Amendment Certificate is triggered.  The Trustee and Disbursement Agent shall not
be responsible for determining whether the Issuers have complied with this Section 8.1
or whether the Construction Disbursement Budget Certificate or any documents
attached thereto comply with this Section 8.1 or this Agreement
generally.  Moreover, the Trustee and
Disbursement Agent shall not incur any liability for either reviewing or
failing to review such Certificate or documents attached thereto.  Upon receipt by the Trustee of the
Construction Disbursement Budget Amendment Certificate in the form of Exhibit E
attached hereto, fully executed and completed as to the information required
therein, such amendment shall become effective hereunder and the Construction
Disbursement Budget shall thereafter be as so amended; provided, however, that if, pursuant to the
proviso in the immediately preceding sentence, the Issuers were not required to
submit a Construction Disbursement Budget Amendment Certificate to the Trustee
with respect to such amendment, then such amendment shall become effective
hereunder at the time it is entered into and the Construction Disbursement
Budget shall thereafter be as so amended. 
No amendment to the Construction Disbursement Budget shall be effective
except in accordance with the preceding sentence.  Notwithstanding the foregoing, the Issuers
shall not be required to comply with this Section 8.1 in connection
with entering into the GMP Change Order.


 


8.2           Contract Amendment
Process.  The Company shall have the
right from time to time to amend any of the Construction Documents to which it
is a party to change the scope of the work for any portion of the Facility
and/or the Company’s payment obligations thereunder without review or approval
from the Trustee or Disbursement Agent. 
Any such amendment that (i) when taken together with all other
amendments to such Construction Documents results in a cost increase in excess
of Twenty-Five Thousand Dollars ($25,000) in
a Material Construction Document (or, with respect to the Construction Contract
only, in excess of Seventy-Five


 


19





















 


Thousand Dollars ($75,000)), (ii) when taken together with all
other amendments to such Contract results in a material reduction of the scope
or quality of the work constituting the design or construction of the Facility,
or (iii) results in the likely addition of more than one week of
construction (or such amendments, in the aggregate, result in the likely
addition of more than four weeks of construction), shall be in writing and
shall identify with particularity all changes being made.  The Company shall (a) deliver to the
Trustee (x) an executed copy of the Contract amendment (the effectiveness
of which will be subject only to satisfaction of the conditions in this Section 8.2),
and (y) a Contract Amendment Certificate in the form attached hereto as Exhibit F-1,
fully completed and executed, as applicable, and (b) if entering into such
Contract Amendment will result in an amendment to the Construction Disbursement
Budget, comply with the requirements of Section 8.1.  Neither the Trustee nor the Disbursement Agent
shall have any obligation to (1) review any Contract submitted, (2) review
the Contract Amendment Certificate or any documents attached thereto, (3) investigate
into any facts or matters contained in such Certificate or documents attached
thereto, (4) make any determination as to whether the obligation to submit
a Contract Amendment Certificate is triggered or (5) determine whether an
amendment to the Construction Disbursement Budget is needed as a result of such
Contract amendment.  The Trustee and Disbursement
Agent shall not be responsible for determining whether the Issuers have
complied with this Section 8.2 or whether the Contract Amendment
Certificate or any documents attached thereto comply with this Section 8.2
or this Agreement generally.  Moreover,
the Trustee and Disbursement Agent shall not incur any liability for either
reviewing or failing to review such Certificate or documents attached
thereto.  The Contract Amendment shall be
deemed approved upon receipt by the Trustee of the Contract Amendment
Certificate.  Notwithstanding the
foregoing, the Issuers shall not be required to comply with this Section 8.2
in connection with entering into the GMP Change Order.


 


8.3           Contracts Entered
into after the Issue Date.  The
Company may from time to time enter into Contracts constituting Construction
Documents consistent with the Final Plans and the Construction Disbursement
Budget, as each is in effect from time to time without review or approval of
the Trustee or Disbursement Agent.  Each
such Contract shall be in writing and, if a Material Construction Document,
shall become effective when and only when: 
(i) the Company and the Contractor have executed and delivered the
Contract (with the effectiveness thereof subject only to satisfaction of the
conditions in clauses (ii), (iii) and (iv) below);
(ii) the Company has submitted to the Trustee:  (a) such Material Construction Document
together with an Additional Contract Certificate, and all exhibits, attachments
and certificates required thereby, each duly completed and executed, as
applicable, and (b) copies of such performance and payment bonds as the
Contractor may be required to provide to the Company pursuant to such Material
Construction Document (which performance and payment bonds shall name the Trustee
and the Issuers as additional co-obligees) and a consent substantially in the
form attached hereto as Exhibit G signed by the Contractor; (iii) if
entering into such Contract will result in an amendment to the Construction
Disbursement Budget, the Issuers have complied with the requirements of Section 8.1;
and (iv) if entering into such Contract will cause the Available Funds to
be less than the Remaining Costs, the Issuers shall have complied with the
requirements of Section 8.4. 
Neither the Trustee nor the Disbursement Agent shall have any obligation
to (v) review any Contract or other document submitted in connection with
such Contract, (w) review performance and payment bonds submitted to them or
any documents attached thereto, (x) investigate into any facts or matters
contained in such Contracts, performance and payment bonds or documents
attached thereto, (y) determine whether a Contract is a Material


 


20





















 


Construction Document or (z) determine whether an amendment to the
Construction Disbursement Budget is required or if the Available Funds will be
less than the Remaining Costs.  The
Trustee and Disbursement Agent shall not be responsible for determining whether
the Issuers have complied with this Section 8.3 or whether the performance
and payment bonds or any documents attached thereto comply with this Section 8.3
or this Agreement generally.  Moreover,
the Trustee and Disbursement Agent shall not incur any liability for either
reviewing or failing to review such Contracts, performance and payment bonds or
documents attached thereto. 
Notwithstanding the foregoing, the Issuers shall not be required to
comply with this Section 8.3 in connection with entering into the
GMP Change Order.


 


8.4           Facility Cost Schedule and
Cost Overruns.


 


(a)           The Issuers covenant to promptly (and in any event
within ten (10) days of notice or knowledge thereof) cure any anticipated
cost overrun for any line item on the Construction Disbursement Budget (after
giving effect to any applicable reserves which have been allocated to such line
item by a Construction Disbursement Budget Amendment) by (i) providing
sufficient funds to cover in full such cost overrun from previously unallocated
Available Funds or other Additional Revenue as permitted in this Agreement (but
in each case only to the extent that the same have not previously been expended
or dedicated (including Retainage Amounts) to the payment of line items
contained in the Construction Disbursement Budget) and/or (ii) with
respect to a cost overrun as to a particular line item, effecting a
Construction Disbursement Budget Amendment to dedicate such funds to the line
items in question.  Neither the Trustee
nor the Disbursement Agent shall have any obligation to determine whether an
anticipated cost overrun exists or whether the Issuers have complied with this Section 8.4
in addressing any cost overruns.  The
Trustee and Disbursement Agent shall not incur any liability for either
reviewing or failing to review any cost overrun materials.


 


(b)           Each Facility Cost Schedule shall set forth (i) the
actual investment income (loss), less any losses or costs associated therewith,
earned on the Construction Disbursement Account through the date of such
Facility Cost Schedule, and (ii) the additional amount of investment
income which the Issuers reasonably anticipate will be earned in the
Construction Disbursement Account from such date through the Opening.  If at any time the Issuers submit a Facility
Cost Schedule pursuant to this Section and the Issuers can no longer
reasonably anticipate that the Additional Revenue earned (and anticipated to be
earned as determined above) from investments of funds in the Construction
Disbursement Account will equal the amount of such Additional Revenue set forth
in the Construction Disbursement Budget then in effect, then:


 


(i)            if the total amount of such Additional Revenue at such
date earned or anticipated to be earned is less than the total amount of such
Additional Revenue anticipated as of the date of the most recent disbursement
from the Construction Disbursement Account, then the Available Funds shall be
deemed reduced by the amount of such deficiency and the Company (as a condition
to the next Construction Disbursement Request) shall provide or allocate
additional Available Funds and/or otherwise amend the Construction Disbursement
Budget, if necessary, so that the Remaining Costs do not exceed the total
Available Funds; or


 


21





















 


(ii)           if the total amount of such Additional Revenue at such
date earned or anticipated to be earned is greater than the total amount of
such Additional Revenue anticipated as of the date of the most recent
disbursement from the Construction Disbursement Account, then the Available
Funds shall be deemed increased by the amount of such excess.


 


Neither the
Trustee nor the Disbursement Agent shall have any obligation to review any
Facility Cost Schedules or to determine whether the Issuers have complied with
this Section 8.4.  The Trustee and
Disbursement Agent shall not incur any liability for either reviewing or
failing to review any Facility Cost Schedules.


 


9.             Events of Default.  The occurrence of any of the following
specified events shall be an “Event of Default” hereunder:


 


9.1           Indenture.  A Default or an Event of Default under the
Security Documents (as such terms are defined therein) has occurred and is
continuing, in either case beyond the expiration of applicable notice, grace
and cure periods.


 


9.2           Exception to
Prior Disbursement.  The existence of
an exception to a prior disbursement relating to the Facility in excess of
$50,000 which is not remedied within thirty (30) days after notice.


 


9.3           Insufficient Funds.  Any time that the amount of Available Funds
is less than the Remaining Costs and such deficiency continues for a period of
thirty (30) days after notice of such deficiency without being cured.


 


9.4           Performance of
Certain Obligations.  The failure of
the Issuers to perform, observe or comply in all material respects with any of
their covenants under this Agreement and such failure continues for a period of
five (5) days after notice thereof without being cured.


 


9.5           Failure to Deliver
Collateral Agreements. The Issuers shall fail to deliver any material
documents in accordance with the Pledge Agreement and such failure continues
for a period of five (5) days after notice without being cured.


 


9.6           Abandonment of
Facility.


 


(a)           Except as and to the extent permitted under the
Indenture, the Company shall cease to own the Property or any portion thereof
or the buildings, fixtures and other improvements to be situated on the
Property; or


 


(b)           Except as and to the extent permitted under the
Indenture, the Issuers shall abandon the Facility or otherwise cease to pursue
the operation of the Property or shall sell or otherwise dispose of any
interest in Property.


 


9.7           Termination or
Invalidity of Construction Documents. 
Any of the Material Construction Documents shall have terminated, become
invalid or illegal, or otherwise ceased to be in full force and effect (except
in accordance with its terms upon completion of the respective work or delivery
of the respective materials); provided that with respect to any Material


 


22





















 


Construction Document other than the Construction Contract and the
Architect Agreement, no Event of Default shall be deemed to have occurred as a
result of such termination so long as (a) the Company provides written
notice to the Disbursement Agent (immediately upon, but in no event more than
two (2) Business Days after, the Company’s becoming aware of such
Construction Document’s ceasing to be in full force or effect) that the Company
intends to replace the Contractor under such Construction Document (or that
replacement is not necessary), and (b) in each case if, in the reasonable
judgment of the Company, a replacement is necessary, the Company (i) obtains
a replacement Contractor for the affected Contractor and (ii) enters into
a replacement Construction Document in accordance with Section 8.3,
on terms no less beneficial to the Company than then current market terms,
within sixty (60) days of such termination.


 


10.           Disbursed
Funds Account.


 


10.1         Rights of the Issuers
to Disbursed Funds Account.  All
amounts disbursed from the Construction Disbursement Account shall be paid
directly to the Disbursed Funds Account. 
The Disbursed Funds Account shall be maintained in the name of the
Issuers and all funds deposited or held in such account shall belong to the Issuers,
against which the Issuers may draw for expenditures permitted by this Agreement
from time to time.  All funds deposited
and held in the Disbursed Funds Account shall, pending disbursement in
accordance with this Agreement, be invested in cash or Cash Equivalents as
directed by the Issuers, except as otherwise provided herein or in the Pledge
Agreement.  Pursuant to the Pledge
Agreement, the Issuers have granted to the Trustee (for the benefit of itself
and the holders of the Notes) a first priority security interest in its
Disbursed Funds Account.  Funds in the
Disbursed Funds Account shall be disbursed solely in accordance with the terms
and conditions of, and solely for the purposes permitted under, this Agreement
and the Indenture.  Further, the Issuers
shall note in its records that all funds and other assets in the Disbursed
Funds Account have been pledged to the Trustee.


 


10.2         Right to Substitute
Disbursed Funds Account.  The Issuers
from time to time shall have the right to designate a substitute account to
serve as the Disbursed Funds Account; provided that no such substitute account
shall become the “Disbursed Funds Account”
until (a) the depository financial institution at which the substitute
account is located shall have acknowledged in a manner satisfactory to the
Trustee that such institution has waived its right of set off in such account
or any liens thereto, statutory or otherwise, and will have entered into an
agreement substantially similar to a Pledge Agreement, and (b) the Trustee
and the Disbursement Agent shall have received written notice of the location
and account number of such new substitute account.


 


11.           Indemnity.


 


11.1         Limitation of
Liability.  The Disbursement Agent’s
responsibility and liability under this Agreement shall be limited as
follows:  (a) the Disbursement Agent
does not represent, warrant or guaranty to the Trustee or the holders of the
Notes the performance by the Issuers, the Manager, the General Contractor, the
Architect or any Contractor, Subcontractor or provider of materials or services
in connection with construction of the Facility; (b) the Disbursement
Agent shall have no responsibility to the Issuers, the Trustee or the holders
of the Notes as a consequence of performance by the Disbursement Agent hereunder,
except with


 


23





















 


respect to breaches of its obligations under this Agreement or for
gross negligence or willful misconduct of the Disbursement Agent; (c) the
Issuers shall remain solely responsible for all aspects of their business and
conduct in connection with the Property and the Facility, the accuracy of all
applications for payment, and the proper application of all disbursements; (d) the
Disbursement Agent is not obligated to supervise, inspect or inform the
Issuers, the Trustee or any third party of any aspect of the construction of
the Facility or any other matter referred to above; and (e) the
Disbursement Agent owes no duty of care to the Issuers, to protect against, or
to inform the Issuers of, any negligent, faulty, inadequate or defective design
or construction of the Facility or otherwise. 
The Disbursement Agent shall have no duties or obligations hereunder,
except as expressly set forth herein, shall be responsible only for the
performance of such duties and obligations, shall not be required to take any
action otherwise than in accordance with the terms hereof and shall not be in
any manner liable or responsible for any loss or damage arising by reason of
any act or omission to act by it hereunder or in connection with any of the
transactions contemplated hereby, including, but not limited to, any loss that
may occur by reason of forgery, false representations, the exercise of its
discretion, or any other reason, except for its gross negligence or willful
misconduct.


 


11.2         Reliance on
Certificates.  The Disbursement Agent
may conclusively rely upon any Disbursement Request or Officer’s Certificate
furnished to the Disbursement Agent conforming to the form required under this
Agreement.  The Disbursement Agent may
rely upon any document believed by it to be genuine and to have been signed or
presented by the proper person.  The
Disbursement Agent need not investigate any fact or matter stated in a Disbursement
Request or Officer’s Certificate and shall incur no liability in failing to
make any such investigation.


 


12.           Indemnity.  The Issuers each indemnify, protect, hold
harmless and agree to defend the Disbursement Agent and each of its officers,
directors, agents and employees, from and against any and all claims, actions,
obligations, liabilities and expenses, including defense costs, investigative
fees and costs, legal fees, and claims for damages, arising from the
performance by the Disbursement Agent under this Agreement, arising from the Disbursement
Agent’s reliance on any Disbursement Request, Trustee Closing Certificate or
Officer’s Certificate delivered by the Issuers under this Agreement or arising
from any material error, inaccuracy, misstatement or omission of fact therein,
except to the extent that such liability, expense or claim is attributable to
the gross negligence or willful misconduct of the Disbursement Agent and,
except to the extent that such liability, expense or claim is imposed upon the
Disbursement Agent as set forth in Section 11.1.  The provisions of this Section 12
shall survive the termination of this Agreement.


 


13.           Termination.  This Agreement shall terminate automatically
thirty (30) days following such time as all amounts in the Accounts and the
Disbursed Funds Account have been distributed pursuant to and in accordance
with the terms hereof and the Opening has occurred; provided, however,
that the obligations of the Issuers under Section 12 of this
Agreement shall survive termination of this Agreement.


 


24





















 


14.           Substitution or
Resignation


 


14.1         Disbursement Agent.  The Disbursement Agent may be removed by the
Issuers.  The removal of the Disbursement
Agent and appointment of a successor Disbursement Agent shall become effective
only upon the successor Disbursement Agent’s acceptance of appointment as
provided in this Section 14.1.


 


14.1.1      The Disbursement Agent may resign in writing at any
time and be discharged from all duties hereunder upon 30 days’ written notice
to all parties hereto.  The Trustee (if a
different Person than the Disbursement Agent) or the holders of a majority in
principal amount of the then outstanding Notes may remove the Disbursement
Agent upon 30 days written notice by so notifying the Disbursement Agent, the
Trustee and the Issuers.


 


14.1.2      If the Disbursement Agent resigns or is removed or if
a vacancy exists in the office of Disbursement Agent for any reason, the
Disbursement Agent shall notify the Trustee of such within five (5) Business
Days and the Trustee shall notify the holders of the Notes within five (5) Business
Days of its receipt of notice from the Disbursement Agent and the Trustee (if a
different Person than the Disbursement Agent) shall, and the holders of a
majority in principal amount of the then outstanding Notes (if such holders
provided a notice pursuant to Section 14.1.1 or if there is no Trustee
capable of acting at such time) may, promptly appoint a successor Disbursement
Agent reasonably acceptable to the Issuers. 
Within one year after any successor Disbursement Agent appointed by the
Trustee takes office, the holders of a majority in principal amount of the then
outstanding Notes may appoint a successor Disbursement Agent reasonably
acceptable to the Issuers to replace the Disbursement Agent appointed by the
Trustee.


 


14.1.3      If a successor Disbursement Agent does not take office
within 60 days after the retiring Disbursement Agent resigns, the retiring
Disbursement Agent, the Trustee, the Issuers or the holders of at least 10% in
principal amount of the then outstanding Notes may petition any court of
competent jurisdiction for the appointment of a successor Disbursement Agent.


 


14.1.4      A successor Disbursement Agent shall deliver a written
acceptance of its appointment to the retiring Disbursement Agent, the Issuers
and the Trustee.  Thereupon, the removal
of the Disbursement Agent shall become effective, and the successor
Disbursement Agent shall have all the rights, powers and duties of the
Disbursement Agent under this Agreement. 
A retiring Disbursement Agent shall promptly transfer all property held
by it as Disbursement Agent to the successor Disbursement Agent.


 


14.1.5      If the Disbursement Agent consolidates, merges or
converts into, or transfers all or substantially all of its corporate trust
business to, another corporation or association, the successor corporation
without any further act shall be the successor Disbursement Agent.


 


14.1.6      The Disbursement Agent shall at all times be a bank
chartered under the laws of the United States of America or of any state
thereof that is authorized under such laws to exercise corporate trust power,
that is subject to supervision or examination by federal or state authorities
and that has a combined capital and surplus of at least $100 million as set
forth in its most recent published annual report of condition and a Thomson’s
Bank Watch rating of B or better.


 


25





















 


15.           Account Statement.  On the first day of each and every calendar
month, the Disbursement Agent shall deliver to the Issuers and the Trustee a
statement prepared by the Disbursement Agent in a form reasonably satisfactory
to the Trustee and the Issuers, setting forth with reasonable particularity the
balance of funds then in each of the Accounts and the manner in which such
funds are invested.


 


16.           Notice.  The parties hereto irrevocably instruct the
Disbursement Agent that on the first date upon which the balance of the
Construction Disbursement Account is reduced to zero, the Disbursement Agent
shall deliver to the Trustee and the Issuers a notice that the balance in such
account has been reduced to zero.


 


17.           Miscellaneous.


 


17.1         Waiver.  Any party hereto may specifically waive any
breach of this Agreement by any other party, but no such waiver shall be deemed
to have been given unless such waiver is in writing, signed by the waiving
party and specifically designates the breach waived, nor shall any such waiver
constitute a continuing waiver of similar or other breaches.


 


17.2         Invalidity.  If, for any reason whatsoever, any one or
more of the provisions of this Agreement shall be held or deemed to be
inoperative, unenforceable or invalid in a particular case or in all cases,
such circumstances shall not have the effect of rendering any of the other
provisions of this Agreement inoperative, unenforceable or invalid, and the
inoperative, unenforceable or invalid provision shall be construed as if it
were written so as to effectuate, to the maximum extent possible, the parties’ intent.


 


17.3         No Authority.  Except as set forth herein, the Disbursement
Agent shall have no authority to, and shall not, make any warranty or
representation or incur any obligation on behalf of, or in the name of, the
Trustee.


 


17.4         Assignment.  This Agreement is personal to the parties
hereto, and the rights and duties of any party hereunder shall not be
assignable except with the prior written consent of the other parties.  In any event, this Agreement shall inure to
and be binding upon the parties and their successors and permitted assigns.


 


17.5         Benefit.  The parties hereto, the holders from time to
time of the Notes, and their respective successors and assigns, but no others,
shall be bound hereby and entitled to the benefits hereof.


 


17.6         Time.  Time is of the essence of each provision of
this Agreement.


 


17.7         Governing Law; Waiver
of Jury Trial. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE
AND TO BE PERFORMED IN THE STATE OF NEW YORK, INCLUDING, WITHOUT LIMITATION,
SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW AND NEW YORK
CIVIL PRACTICE LAWS AND RULES 327(B).


 


26





















 


EACH OF THE
ISSUERS, THE DISBURSEMENT AGENT AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTION CONTEMPLATED HEREBY.


 


17.8         Entire Agreement;
Amendments.  This Agreement (together
with the Indenture and the Security Documents) contains the entire agreement
among the parties with respect to the subject matter hereof and supersedes any
and all prior agreements, understandings and commitments, whether oral or
written.  This Agreement may be amended
only by a writing signed by duly authorized representatives of all parties.


 


17.9         Notices.  All notices and other communications required
or permitted to be given or made under this Agreement shall be in writing and
shall be deemed to have been duly given and received, regardless of when and
whether received, either (a) on the day of hand delivery; (b) on the
date of confirmation of receipt of facsimile transmission; or (c) on the
third day after sent, when sent by United States certified mail, postage and
certification fee prepaid, return receipt requested, addressed as follows:


 


To the Disbursement Agent:

U.S. Bank National Association 

60 Livingston Avenue 

St. Paul, Minnesota 55107

Attention:  Corporate Trust Department

Facsimile No.:  (651) 244-0711


 


To the Trustee:

U.S. Bank National Association 

60 Livingston Avenue

St. Paul, Minnesota 55107

Attention:  Corporate Trust Department

Facsimile No.:  (651) 244-0711


 


To the Company or the Issuers:

Diamond Jo Worth, LLC

3rd Street Ice Harbor

P.O. Box 1750

Dubuque, Iowa 52001

Attention:  Chief Financial Officer

Facsimile No.: (563) 557-0549


 


With a copy to:

Peninsula Gaming Partners, LLC

7137 Mission Hills Drive

Las Vegas, Nevada 89113

Attention:  Michael S. Luzich

Facsimile No.: (702) 247-6822


 


27





















 


or at such
other address as the specified entity most recently may have designated in
writing in accordance with this paragraph to the others.  Any notice to the Disbursement Agent or the
Trustee under this Agreement shall be deemed effective only upon receipt.


 


17.10       Counterparts.  This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which together
shall constitute one and the same instrument.


 


17.11       Captions.  Captions in this Agreement are for
convenience only and shall not be considered or referred to in resolving
questions of interpretation of this Agreement.


 


17.12       Right to Consult Counsel.  Each of the Disbursement Agent and the
Trustee may, if any of them deems necessary or appropriate, consult with and be
advised by counsel in respect of their duties hereunder.  Each of the Disbursement Agent or the Trustee
shall be entitled to rely upon the advice of its counsel in any action taken in
its capacity as the Disbursement Agent or the Trustee, as the case may be,
hereunder and shall be protected from any liability of any kind for actions
taken in reasonable reliance upon such opinion of its counsel.  The Issuers agree to pay all such reasonable
counsel fees and expenses.


 


17.13       Disputes.  The parties to this Agreement shall have all
rights at law and equity with respect to any disagreement or dispute by any
party or among the parties with respect to the release of funds from the
Accounts or concerning the rights or obligations of the parties with respect
thereto (including matters relating to any certificates required to be
delivered under this Agreement).


 


(a)           Any disagreement with respect to the construction,
meaning or effect of this Agreement, or any other controversy between the
parties hereto arising out of this Agreement shall be submitted to arbitration,
one arbitrator to be chosen by the Issuers, one by the Trustee, and a third to
be chosen by the first two arbitrators before they enter into arbitration.  The arbitrators shall be impartial and shall
be active or retired persons with experience in construction, development and
/or construction lending.


 


(b)           In the event that either party should fail to choose
an arbitrator within fifteen (15) days following a written request by the other
party to enter into arbitration, the requesting party may choose two
arbitrators who shall, in turn, choose the third arbitrator.  If the first two arbitrators have not chosen
a third arbitrator at the end of fifteen (15) days following the last day of
the selection of the first two arbitrators, each of the first two arbitrators
shall name three candidates, of whom the other arbitrator shall eliminate two, and
the determination of the third arbitrator shall be made from the remaining two
candidates by drawing lots.  Each party
shall present its case to the arbitrators within fifteen (15) days following
the date of the appointment of the third arbitrator.  The decision of a majority of the three
arbitrators shall be final and binding upon both parties.  Judgment may be entered upon the arbitration
award in any court having jurisdiction. 
Any such arbitration shall take place in New York City, unless some
other location is mutually agreed upon by the parties.  The arbitrators shall resolve any dispute
arising hereunder in a manner consistent with the intent of the parties as
expressed in this Agreement. The arbitrators shall not award any punitive,
consequential or exemplary damages or any amount in excess of the amount to be
released from the relevant Account.


 


28





















 


(c)           The parties shall use their best efforts to resolve
the dispute as soon as practicable and to comply, if available, with the fast
track procedures specified in the American Arbitration Association’s
Construction Industry Arbitration Rules. 
Judgment on the award rendered by the arbitrator(s) may be entered in
any court having jurisdiction thereof.


 


(d)           Notwithstanding any provisions contained herein to the
contrary, the provisions contained in this Section shall not prohibit the
Trustee from exercising any of its rights or remedies set forth in the
Indenture, the Notes or the Security Documents.


 


[signature pages follow]


 


29





















 


IN WITNESS
WHEREOF, the parties have executed and delivered this Cash Collateral and
Disbursement Agreement as of the day first above written.


 


	
  DISBURSEMENT AGENT

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Richard H. Prokosch

  	
   

  
	
   

  	
  Name:

  	
  Richard H. Prokosch

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  TRUSTEE

  	
  U.S. BANK NATIONAL
  ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Richard H. Prokosch

  	
   

  
	
   

  	
  Name:

  	
  Richard H. Prokosch

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  ISSUERS

  	
  DIAMOND JO WORTH, LLC,

  
	
   

  	
  a Delaware limited
  liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Natalie A. Schramm

  	
   

  
	
   

  	
  Name:

  	
  Natalie A. Schramm

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DIAMOND JO WORTH CORP.,

  
	
   

  	
  a Delaware corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Natalie A. Schramm

  	
   

  
	
   

  	
  Name:

  	
  Natalie A. Schramm

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
								



 


 


[Signature Page to Cash Collateral and
Disbursement Agreement]


 





















 


U.S. Bank
National Association, acting in its capacity as Securities Intermediary under
(and as defined in) the Pledge Agreement, hereby acknowledges its agreement to
be bound by the provisions set forth in Section 2.4 of this
Agreement to the extent any written direction of the Disbursement Agent
delivered to the Securities Intermediary pursuant thereto is not inconsistent
with any written direction of the Trustee delivered to the Securities
Intermediary pursuant to the Pledge Agreement.


 


	
   

  	
  U.S. BANK
  NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Richard
  H. Prokosch

  	
   

  
	
   

  	
  Name:

  	
  Richard H.
  Prokosch

  	
   

  
	
   

  	
  Title:

  	
  Vice President

  	
   

  
								



 


 


[Signature Page to Cash Collateral and Disbursement
Agreement]


 


A-1





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT A


 


Form of
Initial Disbursements Certificate


 


 


July 19,
2005


 


U.S. Bank National Association, 
  as Disbursement Agent

60 Livingston Avenue

St. Paul, Minnesota 55107


 


U.S. Bank National Association, 
  as Trustee

60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Cash Collateral and Disbursement Agreement: 

Initial Disbursements Certificate


 


Ladies and Gentlemen:


 


This Initial
Disbursements Certificate is delivered to you pursuant to that certain Cash
Collateral and Disbursement Agreement, dated as of July 19, 2005 (the “Disbursement Agreement”), by and among U.S.
Bank National Association, as Disbursement Agent, U.S. Bank National
Association, as Trustee, and Diamond Jo Worth, LLC, a Delaware limited
liability company (the “Company”),
and Diamond Jo Worth Corp., a Delaware corporation (“DJW Corp.” and together with the Company, the “Issuers”). 
Capitalized terms used and not otherwise defined herein shall have the
meanings given in the Disbursement Agreement.


 


The Issuers
hereby irrevocably instruct the Disbursement Agent to disburse funds from the
Construction Disbursement Account to the Disbursed Funds Account for the
amounts set forth on Schedule A attached hereto.


 


[If
the First Disbursement Request Only:]  The Issuers represent and certify to each of
you that attached hereto as Attachment A is the First Disbursement
Officer’s Certificate (including all required exhibits and attachments
thereto), executed and completed as to the information required therein,
required to be delivered by the Issuers pursuant to Section 6.2.4
of the Disbursement Agreement.


 


[signature page follows]


 


A-2





















 


The foregoing
is true, complete and correct and the Disbursement Agent is entitled to rely on
the foregoing in authorizing and making the Initial Disbursements.


 


	
   

  	
  DIAMOND JO WORTH, LLC,

  
	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
								



 


 


	
   

  	
  DIAMOND JO WORTH CORP.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
								



 





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


SCHEDULE A


 


Initial
Disbursements


 


 


[TO
COME]


 





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT B-1


 


Form of
Issuers’ Closing Certificate


 


July 19,
2005


 


U.S. Bank National Association, 
  as Disbursement Agent

60 Livingston Avenue

St. Paul, Minnesota 55107


 


U.S. Bank National Association, 
  as Trustee

60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Cash Collateral and Disbursement Agreement:

Issuers’ Closing Certificate


 


Ladies and Gentlemen:


 


This Closing
Certificate is delivered to you pursuant to that certain Cash Collateral and
Disbursement Agreement, dated as of July 19, 2005 (as amended,
supplemented or otherwise modified from time to time, the “Disbursement Agreement”), by and among U.S.
Bank National Association, as Disbursement Agent, U.S. Bank National
Association, as Trustee, and Diamond Jo Worth, LLC, a Delaware limited
liability company (the “Company”),
and Diamond Jo Worth Corp., a Delaware corporation (“DJW Corp.” and together with the Company, the “Issuers”). 
Capitalized terms used and not otherwise defined herein shall have the
meanings given in the Disbursement Agreement.


 


The Issuers
represent and certify to each of you that attached hereto as Attachment A
is the Issuers’ Closing Officer’s Certificate (including all required exhibits
and attachments thereto), executed and completed as to the information required
therein, required to be delivered by the Issuers pursuant to Section 6.2.1
of the Disbursement Agreement.


 


[signature page follows]


 





















 


The foregoing
representations and certifications are true, complete and correct and the
Disbursement Agent is entitled to rely on the foregoing.


 


	
   

  	
  DIAMOND JO WORTH, LLC,

  
	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
								



 


 


	
   

  	
  DIAMOND JO WORTH CORP.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
								



 





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


ATTACHMENT A TO EXHIBIT B-1


 


Form of
Issuers’ Officer’s Certificate

for Issuers’ Closing Certificate


 


July 19,
2005


 


U.S. Bank National Association, 
  as Disbursement Agent

60 Livingston Avenue

St. Paul, Minnesota 55107


 


U.S. Bank National Association, 
  as Trustee

60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Cash Collateral and Disbursement Agreement:

Issuers’ Officer’s Certificate for Issuers’
Closing Certificate


 


Ladies and Gentlemen:


 


This Officer’s
Certificate is delivered to you pursuant to that certain Cash Collateral and
Disbursement Agreement, dated as of July 19, 2005 (as amended,
supplemented or otherwise modified from time to time, the “Disbursement Agreement”), by and among U.S.
Bank National Association, as Disbursement Agent, U.S. Bank National
Association, as Trustee, and Diamond Jo Worth, LLC, a Delaware limited
liability company (the “Company”),
and Diamond Jo Worth Corp., a Delaware corporation (“DJW Corp.” and together with the Company, the “Issuers”). 
Capitalized terms used and not otherwise defined herein shall have the
meanings given in the Disbursement Agreement.


 


The Issuers
hereby certify to each of you as follows:


 


1.             As of the date hereof, there are
sufficient Available Funds to pay for all Construction Expenses that the
Issuers reasonably believe are necessary in order to cause the Opening to occur
(in each case after giving effect to the Initial Disbursements and excluding
interest to be paid on each of the Interest Payment Dates).


 


2.             Immediately prior to and upon
giving effect to the Initial Disbursements, there is no and will not be any
Default or Event of Default.


 


3.             Exhibit 1 lists all
Contracts entered into by the Company as of the date hereof.  The Issuers have delivered all such Contracts
that are Material Construction Documents (together with, for each such Material
Construction Document, a consent substantially in the form attached to the
Disbursement Agreement as Exhibit G to the Disbursement Agent.


 


B-1





















 


4.             The Issuers are not and, to the
Issuers’ knowledge, no other party to any Operative Document (other than any
Construction Document not in existence as of the Issue Date) or any Property
Document is, or (but for the passage of time or the giving of notice or both)
will be, in breach of any material obligation thereunder.


 


5.             The only Applicable Permits that
will be required for the construction of the Facility and the operation of the
Facility (as of the Opening) are listed on Exhibit 2 attached
hereto (the “Agreed Permits”).


 


6.             Each representation and warranty of
(a) the Issuers and their Affiliates set forth in the Disbursement
Agreement or in any of the other Operative Documents, or in any certificates
delivered in connection with any of the foregoing, is true, correct and
complete in all material respects as if made on the date hereof (except that
any representation and warranty that relates expressly to an earlier date shall
be deemed made only as of such earlier date) and (b) to the Issuers’
knowledge, the General Contractor, the Architect and each other party (other
than the Issuers or their Affiliates) to a Material Construction Document set
forth in any of the Operative Documents is true, correct and complete in all
material respects as if made on the date hereof (except that any representation
and warranty that relates expressly to an earlier date shall be deemed made
only as of such earlier date).


 


7.             The Plans for the Facility as of
the date hereof are described, in all material respects, on Exhibit 3
and the Final Plans for the Facility as of the date hereof are described, in
all material respects, on Exhibit 4.


 


[signature page follows]


 


B-2





















 


The foregoing
representations and certifications are true, complete and correct and the
Disbursement Agent is entitled to rely on the foregoing.


 


Attached to
this Officer’s Certificate as Exhibits 5 and 6 are certificates
from the General Contractor and the Manager, respectively.


 


	
   

  	
  DIAMOND JO WORTH, LLC,

  
	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
								



 


 


	
   

  	
  DIAMOND JO WORTH CORP.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
								



 


B-3





















 


 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 1
TO ATTACHMENT A TO EXHIBIT B-1


 


LIST OF
CONTRACTS


 


[TO
COME]


 


B-4





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 2
TO ATTACHMENT A TO EXHIBIT B-1


 


Agreed Permits
Schedule


 


[TO
COME]


 


PERMITS
REQUIRED DURING CONSTRUCTION PERIOD


 


Federal


 


State


 


PERMITS
REQUIRED TO OPERATE THE FACILITY


 


Federal


 


State


 


B-5





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 3
TO ATTACHMENT A TO EXHIBIT B-1


 


PLANS


 


See attached.


 


B-6





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 4
TO ATTACHMENT A TO EXHIBIT B-1


 


FINAL PLANS


 


See attached.


 


B-7





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 5
TO ATTACHMENT A TO EXHIBIT B-1


 


Form of
General Contractor’s Closing Certificate


 


July 19,
2005


 


U.S. Bank National Association, 
  as Disbursement Agent

60 Livingston Avenue

St. Paul, Minnesota 55107


 


U.S. Bank National Association, 
  as Trustee

60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp. 

Cash Collateral and Disbursement Agreement:

General Contractor’s Closing Certificate


 


Ladies and Gentlemen:


 


Reference is
made to the Standard Form of Agreement Between Owner and Contractor (AIA
Documents A111-1997 edition) and General Conditions of the Contract for
Construction (AIA Documents 201-1997 edition) (as amended, modified or supplemented
from time to time in accordance with the terms thereof, the “Construction Contract”), between Diamond Jo Worth, LLC, as
Owner, and Henkel Construction Company, as Contractor (the “General Contractor”), for the construction
of the Project (as defined in the Construction Contract).  Capitalized terms used and not otherwise
defined herein shall have the meanings given in the Construction Contract.  The General Contractor hereby certifies to
each of you as follows:


 


1.             The Work to be performed by the
General Contractor pursuant to the Construction Contract may be completed in
accordance therewith.


 


2.             The General Contractor is not and,
to the knowledge of the General Contractor, the Company is not, or (but for the
passage of time or the giving of notice or both) will be, in breach of any
material obligation under the Construction Contract.


 


3.             The General Contractor makes no
certification or confirmation relating to the status of Gaming Licenses or
compliance with Gaming Laws.


 


[signature page follows]


 


B-8





















 


The foregoing
representations and certifications are true and correct and the Disbursement
Agent is entitled to rely on the foregoing.


 


	
   

  	
  Henkel Construction Company,

  
	
   

  	
  as General
  Contractor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
								



 


B-9





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 6
TO ATTACHMENT A TO EXHIBIT B-1


 


Form of
Manager’s Closing Certificate


 


July 19,
2005


 


U.S. Bank National Association, 
  as Disbursement Agent

60 Livingston Avenue

St. Paul, Minnesota 55107


 


U.S. Bank National Association, 
  as Trustee

60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Cash Collateral and Disbursement Agreement:

Manager’s Closing Certificate


 


Ladies and Gentlemen:


 


The
undersigned (the “Manager”) hereby
certifies to each of you as follows:


 


1.             The Manager has reviewed the
Issuers’ Closing Certificate and the Cash Collateral and Disbursement
Agreement, dated as of July 19, 2005, to which the Issuers are a party (as
amended, supplemented or otherwise modified from time to time, the “Disbursement Agreement”), to the extent
necessary to understand the defined terms contained herein and in the Issuers’
Closing Certificate that are incorporated by reference from the Disbursement
Agreement, and to provide the certification contained herein.  Capitalized terms used and not otherwise
defined herein shall have the meanings given in the Disbursement Agreement.


 


2.             The Manager hereby certifies and
confirms the accuracy of the certifications in the above-referenced Issuers’
Closing Certificate; provided that where any certification of the Issuers is
limited to the Issuers’ knowledge or belief, for the purpose of this certificate,
such certification shall instead be made to the Manager’s knowledge or belief,
as applicable.


 


[signature page follows]


 


B-10





















 


The foregoing
representations and certifications are true and correct and the Disbursement
Agent is entitled to rely on the foregoing.


 


	
   

  	
  Peninsula Gaming, LLC,

  
	
   

  	
  as Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


B-11





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT B-2


 


Form of
Disbursement Agent’s Closing Certificate


 


July 19,
2005


 


U.S. Bank National Association,
  as Trustee

60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Cash Collateral and Disbursement Agreement:

Disbursement Agent’s Closing Certificate


 


Ladies and Gentlemen:


 


This Closing
Certificate is delivered to you pursuant to that certain Cash Collateral and
Disbursement Agreement, dated as of July 19, 2005 (as amended,
supplemented or otherwise modified from time to time, the “Disbursement Agreement”), by and among U.S.
Bank National Association, as Disbursement Agent, U.S. Bank National
Association, as Trustee, and Diamond Jo Worth, LLC, a Delaware limited
liability company (the “Company”),
and Diamond Jo Worth Corp., a Delaware corporation (“DJW Corp.” and together with the Company, the “Issuers”). 
Capitalized terms used and not otherwise defined herein shall have the
meanings given in the Disbursement Agreement.


 


The
Disbursement Agent hereby certifies to you as follows as contemplated by the
Disbursement Agreement:


 


1.             The Accounts and the Disbursed
Funds Account have been established as contemplated by the Disbursement
Agreement.


 


2.             The Disbursement Agent has received
(a) an executed Initial Disbursements Certificate from the Issuers in the
form attached to the Disbursement Agreement as Exhibit A, (b) an
executed Issuers’ Closing Certificate in the form attached to the Disbursement
Agreement as Exhibit B-1 and (c) an executed Trustee’s Closing
Certificate in the form attached to the Disbursement Agreement as Exhibit B-3.


 


[signature page follows]


 


B-12





















 


The foregoing
representations and certifications are true and correct and the Trustee is
entitled to rely on the foregoing.


 


	
   

  	
  U.S. Bank National Association,

  
	
   

  	
  as
  Disbursement Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


B-13





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT B-3


 


Form of
Trustee’s Closing Certificate


 


July 19,
2005


 


U.S. Bank National Association, 
  as Disbursement Agent

60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Cash Collateral and Disbursement Agreement:

Trustee’s Closing Certificate


 


Ladies and Gentlemen:


 


This Closing
Certificate is delivered to you pursuant to that certain Cash Collateral and
Disbursement Agreement, dated as of July 19, 2005 (as amended,
supplemented or otherwise modified from time to time, the “Disbursement Agreement”), by and among U.S.
Bank National Association, as Disbursement Agent, U.S. Bank National
Association, as Trustee, and Diamond Jo Worth, LLC, a Delaware limited
liability company (the “Company”),
and Diamond Jo Worth Corp., a Delaware corporation (“DJW Corp.” and together with the Company, the “Issuers”). 
Capitalized terms used and not otherwise defined herein shall have the
meanings given in the Disbursement Agreement.


 


The Trustee
hereby certifies to you as follows as contemplated by the above-referenced
Disbursement Agreement:


 


1.             The Trustee has received (a) an
executed Initial Disbursements Certificate from the Issuers in the form
attached to the Disbursement Agreement as Exhibit A, (b) an
executed Issuers’ Closing Certificate in the form attached to the Disbursement
Agreement as Exhibit B-1 and (c) an executed Disbursement
Agent’s Closing Certificate from the in the form attached to the Disbursement
Agreement as Exhibit B-2.


 


2.             The Trustee has received from the
Title Insurer the Title Policy, or a pro forma of the Title Policy with a
letter agreement from the Title Insurer agreeing to issue title in the form of
such pro forma.


 


[signature page follows]


 


B-14





















 


The foregoing
representations and certifications are true and correct and the Disbursement
Agent is entitled to rely on the foregoing.


 


	
   

  	
  U.S. Bank National Association,

  
	
   

  	
  as Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


B-15





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT C


 


Form of
Interest Disbursement Request


 


[date]


 


U.S. Bank National Association, 
  as Disbursement Agent

60 Livingston Avenue

St. Paul, Minnesota 55107


 


U.S. Bank National Association, 
  as Trustee

60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Cash Collateral and Disbursement Agreement:

Interest Disbursement Request


 


Ladies and Gentlemen:


 


This Interest
Disbursement Request is delivered to you pursuant to that certain Cash
Collateral and Disbursement Agreement, dated as of July 19, 2005 (the “Disbursement Agreement”), by and among U.S.
Bank National Association, as Disbursement Agent, U.S. Bank National
Association, as Trustee, and Diamond Jo Worth, LLC, a Delaware limited
liability company (the “Company”),
and Diamond Jo Worth Corp., a Delaware corporation (“DJW Corp.” and together with the Company, the “Issuers”). 
Capitalized terms used and not otherwise defined herein shall have the
meanings given in the Disbursement Agreement.


 


Pursuant to Sections 4.1
and 5.1 of the Disbursement Agreement, the Disbursement Agent is hereby
directed to liquidate Cash Equivalents (to the extent required) in the Interest
Reserve Account and to pay to the Trustee on [                          ]
(the “Interest Payment Date”) $                          
of funds from the Interest Reserve Account. 
The undersigned hereby certifies that payments in an amount equal to
such sums will be due and payable on the Notes on the Interest Payment Date.


 


[signature page follows]


 


C-1





















 


The foregoing representations and
certifications are true and correct and the Disbursement Agent is entitled to
rely on the foregoing.


 


Please confirm
the transfer described above by returning a notice of confirmation to the
undersigned at the address set forth below.


 


	
   

  	
  DIAMOND JO WORTH, LLC,

  
	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
								



 


 


	
   

  	
  DIAMOND JO WORTH CORP.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  [address
  for purposes of notice of confirmation]

  
								



 


C-2





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT D-1


 


Form of
Construction Disbursement Request and Certificate


 


[date]


 


U.S. Bank National Association, 
  as Disbursement Agent

60 Livingston Avenue

St. Paul, Minnesota 55107


 


U.S. Bank National Association, 
  as Trustee

60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Construction Disbursement Request No.             
under

Cash Collateral and Disbursement Agreement

Amount Requested:  $


 


Ladies and Gentlemen:


 


Diamond Jo
Worth, LLC, a Delaware limited liability company (the “Company”), and Diamond Jo Worth Corp., a
Delaware corporation (“DJW Corp.”
and together with the Company, the “Issuers”),
hereby submit this Construction Disbursement Request and Certificate (the “Disbursement Request”) pursuant to that
certain Cash Collateral and Disbursement Agreement, dated as of July 19,
2005 (as amended, supplemented or
otherwise modified from time to time, the “Disbursement
Agreement”), to which each of you is a party.  Capitalized terms used and not otherwise
defined herein shall have the meanings given in the Disbursement Agreement.


 


The Issuers
hereby request that the Disbursement Agent make a disbursement of [$                            ] (the “Disbursement”)
from the Construction Disbursement Account to the Disbursed Funds Account.


 


In connection
with the requested Disbursement, the Issuers represent, warrant and certify as
follows:


 


1.             Attached hereto as Attachment A
is the Construction Disbursement Officer’s Certificate (including all required
exhibits and attachments thereto), executed and completed as to the information
required therein, required to be delivered by the Issuers pursuant to Section 6.2.2
of the Disbursement Agreement.


 


2.             Immediately prior to and upon
giving effect to this Disbursement Request, there is no and will not be any
Default or Event of Default.


 


D-1





















 


3.             This Disbursement Request, as well
as the Disbursement requested, is, and such Disbursement will be used, in
substantial compliance with the Disbursement Agreement and the Indenture.


 


4.             [For
the Final CDA Disbursement Only:] The Facility
is substantially complete in all material respects in accordance with the Final
Plans and all applicable legal requirements and containing at least the Minimum
Facilities. The Opening has occurred.


 


5.             [If
the First Disbursement Request Only:]  Attached hereto as Attachment B is the
First Disbursement Officer’s Certificate (including all required exhibits and
attachments thereto), executed and completed as to the information required
therein, required to be delivered by the Issuers pursuant to Section 6.2.4
of the Disbursement Agreement.


 


[signature page follows]


 


D-2





















 


The foregoing
representations and certifications are true, complete and correct and the
Disbursement Agent is entitled to rely on the foregoing.


 


	
   

  	
  DIAMOND JO WORTH, LLC,

  
	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DIAMOND JO WORTH CORP.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
								



 


D-3





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


ATTACHMENT A TO EXHIBIT D-1


 


Form of
Issuers’ Officer’s Certificate

for Construction Disbursement Request and Certificate


 


[date]


 


U.S. Bank National Association, 
  as Disbursement Agent

60 Livingston Avenue

St. Paul, Minnesota 55107


 


U.S. Bank National Association, 
  as Trustee

60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Issuers’ Officer’s Certificate for

Construction Disbursement Request No.             
under

Cash Collateral and Disbursement Agreement

Amount Requested:  $


 


Ladies and Gentlemen:


 


Diamond Jo
Worth, LLC, a Delaware limited liability company (the “Company”), and Diamond Jo Worth Corp., a
Delaware corporation (“DJW Corp.”
and together with the Company, the “Issuers”),
hereby submit this Officer’s Certificate pursuant to that certain Cash
Collateral and Disbursement Agreement, dated as of July 19, 2005 (as amended, supplemented or otherwise
modified from time to time, the “Disbursement
Agreement”), to which each of you is a party.  Capitalized terms used and not otherwise
defined herein shall have the meanings given in the Disbursement Agreement.


 


The Issuers
have submitted to the Disbursement Agent the Construction Disbursement Request
and Certificate, to which this Officer’s Certificate is attached, requesting
that the Disbursement Agent make a disbursement of [$                            ] (the “Disbursement”)
from the Construction Disbursement Account to the Disbursed Funds Account so
that the Company may distribute checks or issue wire transfers drawn on the
Disbursed Funds Account to the parties identified on Schedule 1
attached hereto in the respective amounts listed for such parties therein (the “Facility Cost Schedule”).


 


In connection
with the requested Disbursement, the Issuers represent, warrant and certify as
follows:


 


1.             [For
Hard Cost Disbursements Only:] With respect
to Hard Cost Disbursements, Schedule 1 accurately lists each party
for whom payment is requested and, for each line item and for each party to
whom payment is requested with respect to such line item, the following:  (a) the name of the payee to be paid; (b) the
current payment requested; (c) the increase or decrease in accrued but
unpaid


 


D-1





















 


Retainage Amount, if
any, for such payee since the last Disbursement Request (after giving effect to
the payment contemplated by this Disbursement Request); (d) the total
amount contemplated to be payable to such payee under the terms of its
applicable Contract through completion of all work and delivery of all
materials contemplated by the Contract (i.e., the total contract amount); (e) the
total payments made to such payee under its applicable Contract as of the Issue
Date; (f) the total payments made to such payee since the Issue Date
(after giving effect to the payment contemplated by this Disbursement Request);
(g) the sum of all payments made to such payee (after giving effect to the
payment contemplated by this Disbursement Request) (i.e., the sum of (e) and
(f) above); (h) the aggregate accrued Retainage Amounts which shall
continue to be owed with respect to such Contract (after giving effect to the
payment contemplated by this Disbursement Request); and (i) the percentage
of the work actually completed, or the materials actually delivered, under the
Contract through the date for which payment is made hereunder (expressed as a
percentage of the total work and materials contemplated by the Contract through
completion), or, if payment is to be made based on invoice, confirmation that a
copy of the applicable invoice is attached, and a description of the purpose of
such payment, specifying the line item relating to each such payment.  In the event that any Advance Disbursements
have been made and have not otherwise been documented as required hereunder and
under the Disbursement Agreement, Schedule 1 also includes each
party to whom payment was made from such Advance Disbursement and a description
of the purpose of such payments, specifying the line item relating to each such
payment.  The information set forth in Schedule 1
is true, correct and complete in all material respects.


 


2.             [For
Soft Cost Disbursements Only:]  With respect to Soft Cost Disbursements, Schedule 1
accurately lists each party and/or purpose for which payment is requested and,
for each line item and for each party and/or purpose for which payment is
requested with respect to such line item, the following:  (a) the name of the payee to be paid, (b) the
current payment requested, and (c) a description of the purpose of such
payment, specifying the line item relating to each such payment.  In the event that any Advance Disbursements
have been made and have not otherwise been documented as required hereunder and
under the Disbursement Agreement, Schedule 1 also includes each
party to whom payment was made from such Advance Disbursement and a description
of the purpose of such payments specifying the line item relating to each such
payment.  The information set forth in Schedule 1
is true, correct and complete in all material respects.


 


3.             [For
Hard Cost Disbursements Only:] With respect
to Hard Cost Disbursements, the Issuers have delivered or caused to be
delivered to the Disbursement Agent (a) true and complete invoices that
have been tendered for all Hard Costs for which disbursement is requested
hereunder, (b) duly executed conditional or unconditional (as applicable)
lien releases from all contractors, suppliers and materialmen (including the General
Contractor) having provided work, materials and/or services relating to the
Facility (except as to Retainage Amounts and such amounts as the Company
reasonably withheld for good cause) pursuant to Contracts with the Company for
all disbursements identified on this Disbursement Request and (c) duly
executed acknowledgments of payment and unconditional lien releases from all
payees identified on the previous Disbursement Request as a party to a Contract
with the Company for payment of Hard Costs and acknowledging the receipt by
such payee of all sums payable to such Person from previous Disbursement
Requests (except as to Retainage Amounts and such amounts as the Company
reasonably withheld for good cause).


 


4.             The Construction Disbursement
Budget presently in effect for the Facility is dated [                            ]  [choose one of
the following]  [and
has not been amended]  [and includes all amendments through Construction
Disbursement Budget Amendment No.         ].  Such Construction
Disbursement Budget accurately sets forth the anticipated Construction Expenses
through the date of Opening in the aggregate and for each line item and in
accordance with the Plans.  The total
payments by


 


D-2





















 


the Issuers with
respect to each line item component described in the Construction Disbursement
Budget (plus any Retainage Amounts held for such line item) after giving effect
to the requested Disbursement shall not exceed the amount budgeted on the
Construction Disbursement Budget for such line item.  Further, to the extent the work or payment
required in connection with any line item has not yet been completed, the
Company reasonably believes that the estimated cost to complete such work or
payment will not exceed, in any material respect, the difference between (a) the
Remaining Amount budgeted for such line item on the Construction Disbursement
Budget and (b) the sum of (i) the total payments theretofore
disbursed from the Disbursed Funds Account with respect to such line item and (ii) any
Retainage Amounts then held with respect to such line item.


 


5.             After giving effect to the
requested disbursement from the Construction Disbursement Account and the
payments contemplated from the Disbursed Funds Account in connection therewith,
together with, in the event any Advance Disbursements have been made on or
prior to the date hereof and have not otherwise been documented as required
under the Disbursement Agreement, each such Advance Disbursement from the
Construction Disbursement Account, there are reasonably expected to be
sufficient Available Funds to pay for the anticipated costs described in
paragraph 4 above (and the component parts thereof) in accordance with the
aggregate amounts (and line items) set forth in the Construction Disbursement
Budget, and the Issuers do not believe that any other Material Construction
Expenses are required to be paid or incurred by the Issuers in order to cause
the Opening to occur and the Facility to be completed in accordance with the Plans.


 


6.             [Hard
Costs Only:] 
As of the date hereof, the Issuers have submitted to the Disbursement
Agent all Plans applicable to the Disbursement requested herein which, as of
the date hereof, constitute Final Plans.  All disbursements requested under
this Disbursement Request are for the payment of Construction Expenses incurred
for work pursuant to such Final Plans and which will permit the Issuers to
complete construction of the Facility and will permit the Opening to occur.  The construction performed as of the date
hereof is in substantial compliance with the Final Plans and the Disbursement
is appropriate in light of the percentage of construction completed, the amount
of stored materials and advance deposits required for materials provided for in
the Construction Disbursement Budget presently in effect.


 


7.             All disbursements previously
requested by the Issuers and made by the Disbursement Agent into the Disbursed
Funds Account prior to the date hereof (other than Advance Disbursements
permitted to be outstanding under the Disbursement Agreement) have been
disbursed by the Issuers in substantially the manner certified by the Issuers
in the applicable Construction Disbursement Request (except as such amounts as
the Company reasonably withheld for good cause) or Advance Disbursement Request
(as applicable).


 


8.             The Company has previously
delivered to the Disbursement Agent copies of all Material Construction
Documents to which the Company is a party for the Facility and, with respect to
each such Material Construction Document: 
(a) a Consent to Collateral Assignment of Contract substantially in
the form attached as Exhibit G to the Disbursement Agreement,
executed by the Contractor under each such Material Construction Document; and (b) copies
of such performance and/or payment bonds (naming the Company and the Trustee as
co-obligees), if any, as the Company may require to be provided to the Company
pursuant to any such Material Construction Document.  Each such bond continues to be enforceable
and has not been terminated or canceled (except in accordance with its terms
upon completion of the respective work or delivery of the respective
materials).


 


D-3





















 


9.             [For
Disbursements Immediately Following Completion Of Any Foundation For Any
Building Within the Facility:] The Issuers
have delivered to the Disbursement Agent, on a building-by-building basis, a
foundation endorsement from the Title Company insuring that the foundations for
each building within the Project are constructed wholly within the boundaries
of the Property and does not encroach on any easements except for such
encroachments or violations which are not reasonably expected to have a
material adverse effect on the placement, use or enjoyment of the Facility.


 


10.           [For the Final
CDA Disbursement Only:]  There is no ongoing construction in
connection with the Facility (other than maintenance and repairs in the
ordinary course of business and all punch list items (exclusive of Retainage
Amounts), in an aggregate amount (exclusive of Retainage Amounts) not to exceed
$500,000).  As of the date hereof, the
amount necessary to complete the Facility in substantial compliance with the
Final Plans, including all punch list items, is $              
(the “Reserved Construction Amount”).  The Issuers represent, warrant and covenant
that an amount equal to the sum of (i) the Reserved Construction Amount
and (ii) any unpaid Retainage Amounts due and owing as of the date hereof
or hereafter shall be deposited in the Disbursed Funds Account from the
proceeds of the Final CDA Disbursement and the Issuers shall use such funds to
pay Construction Expenses (including such Retainage Amounts as the same become
due and payable) to complete the Facility in accordance with the Final Plans,
including all punch list items.


 


11.           All Agreed Permits (as set forth on Exhibit 4
to the Issuers’ Closing Certificate) have either been obtained by the General
Contractor or the Issuers and are in full force and effect on the date hereof
unless such Agreed Permit is not yet required to be obtained or the failure to
obtain such Agreed Permit is not reasonably expected to have a material adverse
effect on completion of the Facility.  If
such Agreed Permit is not yet required and has not been obtained, the Issuers
expect that such Agreed Permit will be in full force and effect on or prior to
the date on which it is required to be in full force and effect and the Issuers
know of no reason why any such Agreed Permit will not be obtained by said date.


 


[signature page follows]


 


D-4





















 


The foregoing
representations and certifications are true, complete and correct and the
Disbursement Agent is entitled to rely on the foregoing.


 


	
   

  	
  DIAMOND JO WORTH, LLC,

  
	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  DIAMOND JO WORTH CORP.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
							



 


D-5





















 


 


SCHEDULE 1 TO ATTACHMENT A TO EXHIBIT D-1


 


Facility Cost Schedule for
Construction Disbursement Request No.                     


 


 


[Attached]


 


D-6





















 


SCHEDULE 1 TO
ATTACHMENT A TO EXHIBIT D-1


 


DATE:                    


 


	
  CONSTRUCTION
  EXPENSES – HARD COSTS

  
	
  Line
  Item:                                                                

  



 


	
  (i)

  	
   

  	
  (ii)

  	
   

  	
  (iii)

  	
   

  	
  (iv)

  	
   

  	
  (v)

  	
   

  	
  (vi)

  	
   

  	
  (vii)

  	
   

  	
  (viii)

  	
   

  	
  (ix)

  	
   

  	
  (x)

  	
   

  
	
  Payee

  	
   

  	
  Current

  Payment

  Amount

  	
   

  	
  Increase/Decrease

  in

  Retainage

  Amount

  Since Last

  Disbursement

  Request

  	
   

  	
  Total

  Amount

  Payable

  Under

  Construction

  Contract

  Terms

  	
   

  	
  Payments

  Under

  Construction

  Contract

  Prior to Issue

  Date

  	
   

  	
  Payments

  Under

  Construction

  Contract

  From and

  After Issue

  Date

  	
   

  	
  Total

  Payments to

  Date [(v) + (vi)]

  	
   

  	
  Aggregate

  Accrued and

  Unpaid

  Retainage

  Amounts for

  Construction

  Contract

  	
   

  	
  % of

  Construction

  Contract

  Work

  Completed

  	
   

  	
  Amount

  Earned to

  Date [(vii) + (viii)]

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total
  for Line Item

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Line Item:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total
  for Line Item

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Line Item:

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


D-7





















 


SCHEDULE 1 TO
ATTACHMENT A TO EXHIBIT D-1


 


	
  CONSTRUCTION
  EXPENSES – SOFT COSTS

  
	
  Line
  Item:                                                                

  



 


	
  (i) Payee

  	
   

  	
  (ii) Current Payment Amount

  	
   

  	
  (iii) Description of Purpose of Soft Cost Construction Expense

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total for Line Item

  	
   

  	
   

  	
   

  	
   

  
	
  Line
  Item:

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Total for Line Item

  	
   

  	
   

  	
   

  	
   

  
	
  Line
  Item:

  	
   

  	
   

  	
   

  	
   

  



 


D-8





















 


SCHEDULE 1 TO
ATTACHMENT A TO EXHIBIT D-1


 


 


	
  CONSTRUCTION
  EXPENSES

  	
   

  	
   

  
	
  Line
  Item:                                                                                    

  	
   

  



 


	
  (i) Payee

  	
   

  	
  (ii) Current
  Payment Amount

  
	
   

  	
   

  	
   

  
	
  Total for Line Item

  	
   

  	
   

  
	
  Line
  Item:

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  Total for Line Item

  	
   

  	
   

  



 


D-9





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT D-2


 


Form of
Advance Disbursement Request and Certificate


 


[date]


 


U.S. Bank National Association, 
  as Disbursement Agent

60 Livingston Avenue

St. Paul, Minnesota 55107


 


U.S. Bank National Association, 
  as Trustee

60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Advance Disbursement Request No.                     


under Cash Collateral and Disbursement Agreement 

Amount Requested:  $


 


Ladies and Gentlemen:


 


Diamond Jo
Worth, LLC, a Delaware limited liability company (the “Company”), and Diamond Jo Worth Corp., a
Delaware corporation (“DJW Corp.”
and together with the Company, the “Issuers”),
hereby submit this Advance Disbursement Request and Certificate (the “Disbursement Request”) pursuant to that
certain Cash Collateral and Disbursement Agreement, dated as of July 19,
2005 (as amended, supplemented or otherwise modified from time to time, the “Disbursement Agreement”), to which each of
you is a party.  Capitalized terms used
and not otherwise defined herein without definition shall have the meanings
given in the Disbursement Agreement.


 


The Issuers
hereby request that the Disbursement Agent make a disbursement of $                  
from the Construction Disbursement Account to the Disbursed Funds Account.


 


In connection
with the requested Disbursement, the Issuers represent, warrant and certify as
follows:


 


1.             Attached hereto as Attachment A
is the Advance Disbursement Officer’s Certificate (including all required
exhibits and attachments thereto), executed and completed as to the information
required therein, required to be delivered by the Issuers pursuant to Section 6.2.3
of the Disbursement Agreement.


 


D-10





















 


2.             Amounts disbursed pursuant to this
Disbursement Request shall be used solely for the following purposes in
connection with the Facility:


 


 


 


 


3.             Immediately prior to and after
giving effect to this disbursement, there is and there will be no Default or
Event of Default.


 


4.             [If
the First Disbursement Request Only:]  Attached hereto as Attachment B is the
First Disbursement Officer’s Certificate (including all required exhibits and
attachments thereto), executed and completed as to the information required
therein, required to be delivered by the Issuers pursuant to Section 6.2.4
of the Disbursement Agreement.


 


 


[signature page follows]


 


D-11





















 


The foregoing
representations and certifications are true and correct and the Disbursement
Agent is entitled to rely on the foregoing in connection with the Advance
Disbursements.


 


	
   

  	
  DIAMOND JO WORTH, LLC,

  
	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


 


	
   

  	
  DIAMOND JO WORTH CORP.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


D-12





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


ATTACHMENT A TO EXHIBIT D-2


 


Form of
Issuers’ Officer’s Certificate

for Advance Disbursement Request and Certificate


 


[date]


 


U.S. Bank National Association, 
  as Disbursement Agent

60 Livingston Avenue

St. Paul, Minnesota 55107


 


U.S. Bank National Association, 
  as Trustee

60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Issuers’ Officer’s Certificate for

Advance Disbursement Request No.             
under

Cash Collateral and Disbursement Agreement

Amount Requested:  $


 


Ladies and Gentlemen:


 


Diamond Jo
Worth, LLC, a Delaware limited liability company (the “Company”), and Diamond Jo Worth Corp., a
Delaware corporation (“DJW Corp.”
and together with the Company, the “Issuers”),
hereby submit this Officer’s Certificate pursuant to that certain Cash
Collateral and Disbursement Agreement, dated as of July 19, 2005 (as amended, supplemented or otherwise
modified from time to time, the “Disbursement
Agreement”), to which each of you is a party.  Capitalized terms used and not otherwise
defined herein shall have the meanings given in the Disbursement Agreement.


 


The Issuers
have submitted to the Disbursement Agent the Advance Disbursement Request and
Certificate, to which this Officer’s Certificate is attached, requesting that
the Disbursement Agent make a disbursement of $                  
from the Construction Disbursement Account to the Disbursed Funds Account.


 


In connection
with the requested Disbursement, the Issuers represent, warrant and certify as
follows:


 


1.             In the event that any Advance
Disbursements have previously been made, the Issuers have provided (or will
provide within the period specified under the Disbursement Agreement) the same
supporting documentation as is required under the Disbursement Agreement with
respect to Construction Disbursement Requests within thirty (30) days after
each such Advance Disbursement was made.


 


D-13





















 


2.             The amount of the requested
Disbursement hereunder, together with Advance Disbursements previously made to
the Issuers which have not otherwise been documented as required in the
Disbursement Agreement, do not exceed the amount of One Million Five Hundred
Thousand Dollars ($1,500,000).


 


3.             The Construction Disbursement
Budget presently in effect for the Facility is dated [                            ]  [choose one of
the following]  [and
has not been amended]  [and includes all amendments through Construction
Disbursement Budget Amendment No.         ].  Such Construction
Disbursement Budget accurately sets forth the anticipated Construction Expenses
through the Opening in the aggregate and for each line item and in accordance
with the Plans.  The total payments by
the Issuers with respect to each line item component described in the
Construction Disbursement Budget (plus any Retainage Amounts held for such line
item) after giving effect to the requested Disbursement shall not exceed the
amount budgeted on the Construction Disbursement Budget for such line item.  Further, to the extent the work or payment
required in connection with any line item has not yet been completed, the
Issuers reasonably believe that the estimated cost to complete such work or
payment will not exceed the difference between (a) the Remaining Amount
budgeted for such line item on the Construction Disbursement Budget and (b) the
sum of (i) the total payments theretofore disbursed from the Disbursed
Funds Account with respect to such line item and (ii) any Retainage
Amounts then held with respect to such line item.


 


4.             The total payments by the Issuers
with respect to each line item component described on the Construction
Disbursement Budget (plus any Retainage Amounts held for such line item), after
giving effect to the requested Advance Disbursement, shall not exceed the
amount budgeted on the current Construction Disbursement Budget for such line
item.  Further, to the extent the work or
payment required in connection with any line item has not yet been completed,
the Issuers reasonably believe that the estimated cost to complete such work or
payment will not exceed the difference between: 
(a) the amount budgeted for such line item on such Construction
Disbursement Budget and (b) the sum of (i) the total payments
theretofore disbursed from the Disbursed Funds Account with respect to such
line item and (ii) any Retainage Amounts then held with respect to such
line item.


 


[signature page follows]


 


D-14





















 


The foregoing
representations and certifications are true and correct and the Disbursement
Agent is entitled to rely on the foregoing in connection with the Advance
Disbursements.


 


	
   

  	
  DIAMOND JO WORTH, LLC,

  
	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


 


	
   

  	
  DIAMOND JO WORTH CORP.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


D-15





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT D-3


 


Form of
First Disbursement Officer’s Certificate


 


[date]


 


U.S. Bank National Association, 
  as Disbursement Agent

60 Livingston Avenue

St. Paul, Minnesota 55107


 


U.S. Bank National Association, 
  as Trustee

60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Cash Collateral and Disbursement Agreement:

First Disbursement Officer’s Certificate


 


Ladies and Gentlemen:


 


This Officer’s
Certificate is delivered to you pursuant to that certain Cash Collateral and
Disbursement Agreement, dated as of July 19, 2005 (as amended,
supplemented or otherwise modified from time to time, the “Disbursement Agreement”), by and among U.S.
Bank National Association, as Disbursement Agent, U.S. Bank National
Association, as Trustee, and Diamond Jo Worth, LLC, a Delaware limited
liability company (the “Company”),
and Diamond Jo Worth Corp., a Delaware corporation (“DJW Corp.” and together with the Company, the “Issuers”). 
Capitalized terms used and not otherwise defined herein shall have the
meanings given in the Disbursement Agreement.


 


The Issuers
hereby certify to each of you as follows:


 


1.             The Initial Construction
Disbursement Budget attached hereto as Exhibit 1 constitutes, in
all material respects, the Construction Disbursement Budget presently in effect
for the Facility.


 


2.             The Initial Construction Disbursement
Budget accurately and completely sets forth, in all material respects, (i) the
anticipated Construction Expenses and (ii) the various components of the
Facility identified thereon as line items, all within the respective line item
allocations established for those components set forth in the Initial
Construction Disbursement Budget.


 


3.             As of the date hereof, there are
sufficient Available Funds to pay for (i) the anticipated costs described
in paragraph 2 above in accordance with the Disbursement Agreement and (ii) such
other Construction Expenses that the Issuers reasonably believe are necessary
in order to cause the Opening to occur (in each case after giving effect to the
Initial Disbursements and excluding interest to be paid on each of the Interest
Payment Dates).


 


D-16





















 


4.             The Issuers and the General
Contractor have entered into the GMP Change Order attached hereto as Exhibit 2.
 [[Only
in the event that the GMP Change Order establishes a GMP in excess of
the Maximum GMP:]  The Issuers have deposited (or,
concurrently with submitting this Officer’s Certificate, are depositing) into
the Construction Disbursement Account an amount equal to the excess of the GMP
established by the GMP Change Order over the Maximum GMP.]


 


5.             Attached hereto as Exhibit 3
is (i) a list of all contractors, suppliers and materialmen (including the
General Contractor) that have provided work, supplies and/or labor to date in
connection with the Facility pursuant to Contracts, (ii) a list of all
contractors, suppliers and materialmen (including the General Contractor) that
have provided material work, supplies and/or labor in connection with the
Facility that will receive payment pursuant to the Initial Disbursements Certificate,
(iii) a list of all amounts which are to be paid to the Company as
reimbursement of Construction Expenses incurred by one or both of the Issuers
prior to the Issue Date, and (iv) to the extent available after
commercially reasonable efforts, lien releases in the form specified by Iowa
Code Section 572.33 (unconditional if such Persons have been paid to date
and conditional if such Persons have not been paid to date) from all
contractors, suppliers and materialmen (including the General Contractor) that
have provided work, supplies and/or labor to date in connection with the
Facility pursuant to Contracts (except as to Retainage Amounts and such amounts
as the Company determines to have been reasonably withheld) for all
disbursements to such contractors, suppliers and/or materialmen identified in
the Initial Disbursements Certificate. 
All work performed and materials delivered to date by such contractors,
suppliers and materialmen (including the General Contractor) that have provided
work, supplies and/or materials in connection with the Facility pursuant to
Contracts and which could result in a material Lien against the Property by
such contractors, suppliers and materialmen have been previously paid by the
Company or will be timely paid with the proceeds of the Initial Disbursements
(in each case subject to withheld Retainage Amounts), and the Issuers have no
actual knowledge that any material Lien, notice of a material Lien, or notice
of extension of time for filing of a material Lien has been filed against the
Property in favor of any contractor, supplier or materialman (including the
General Contractor) that have provided work, supplies and/or labor to date
pursuant to Contracts which has not been bonded, insured over or removed of
record prior to the date hereof.


 


6.             Each representation and warranty of
(a) the Issuers and their Affiliates set forth in the Disbursement
Agreement or in any of the other Operative Documents, or in any certificates
delivered in connection with any of the foregoing, is true, correct and
complete in all material respects as if made on the date hereof (except that
any representation and warranty that relates expressly to an earlier date shall
be deemed made only as of such earlier date) and (b) to the Issuers’
knowledge, the General Contractor, the Architect and each other party (other
than the Issuers or their Affiliates) to a Material Construction Document set
forth in any of the Operative Documents is true, correct and complete in all
material respects as if made on the date hereof (except that any representation
and warranty that relates expressly to an earlier date shall be deemed made
only as of such earlier date).


 


[signature page follows]


 


D-17





















 


The foregoing
representations and certifications are true, complete and correct and the
Disbursement Agent is entitled to rely on the foregoing.


 


Attached to
this Officer’s Certificate as Exhibits 4 and 5 are certificates
from the General Contractor and the Manager, respectively.


 


	
   

  	
  DIAMOND JO WORTH, LLC,

  
	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


 


	
   

  	
  DIAMOND JO WORTH CORP.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


D-18





















 


CASH COLLATERAL
AND DISBURSEMENT AGREEMENT


 


EXHIBIT 1
TO EXHIBIT D-3


 


Initial
Construction Disbursement Budget for the Facility


 


See attached.


 


D-19





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 2
TO EXHIBIT D-3


 


GMP Change
Order


 


See attached.


 


D-20





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 3
TO EXHIBIT D-3


 


Mechanic’s
Liens for the Facility


 


(i)                                     List
of contractors, suppliers and materialmen (including the General Contractor)
that have provided material work, supplies and/or labor to date pursuant to
contracts with the Company


 


See attached.


 


(ii)                                  List
of contractors, subcontractors, suppliers and materialmen

to receive payment pursuant to the Initial Disbursements Certificate


 


See attached.


 


(iii)                               List
of all amounts to be paid to the Company as reimbursement of Construction
Expenses incurred by the Issuers prior to the Issue Date:


 


See attached.


 


(iv)                              List
required Lien releases for parties identified in (i)


 


See attached.


 


D-21





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 4
TO EXHIBIT D-3


 


Form of
General Contractor’s First Disbursement Certificate


 


[date]


 


U.S. Bank National Association, 
  as Disbursement Agent

60 Livingston Avenue

St. Paul, Minnesota 55107


 


U.S. Bank National Association, 
  as Trustee

60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp. 

Cash Collateral and Disbursement Agreement:

General Contractor’s First Disbursement
Certificate


 


Ladies and Gentlemen:


 


Reference is
made to the Standard Form of Agreement Between Owner and Contractor (AIA
Documents A111-1997 edition) and General Conditions of the Contract for
Construction (AIA Documents 201-1997 edition) (as amended, modified or
supplemented from time to time in accordance with the terms thereof, the “Construction Contract”), between Diamond Jo Worth, LLC, as
Owner, and Henkel Construction Company, as Contractor (the “General Contractor”), for the construction
of the Project (as defined in the Construction Contract).  Capitalized terms used and not otherwise
defined herein shall have the meanings given in the Construction Contract.  The General Contractor hereby certifies to
each of you as follows:


 


1.             The General Contractor has reviewed
the Initial Construction Disbursement Budget attached to the First Disbursement
Officer’s Certificate as Exhibit 1 and the GMP Change Order
attached to the First Disbursement Officer’s Certificate as Exhibit 2.


 


2.             The Work to be performed by the
General Contractor pursuant to the Construction Contract is included in the
Initial Construction Disbursement Budget.


 


3.             The Work to be performed by the
General Contractor pursuant to the Construction Contract may be completed in
accordance therewith.


 


4.             The General Contractor is not and,
to the knowledge of the General Contractor, the Company is not, or (but for the
passage of time or the giving of notice or both) will be, in breach of any
material obligation under the Construction Contract.


 


D-22





















 


5.             The General Contractor makes no
certification or confirmation relating to the status of Gaming Licenses or
compliance with Gaming Laws.


 


[signature page follows]


 


D-23





















 


The foregoing
representations and certifications are true and correct and the Disbursement
Agent is entitled to rely on the foregoing.


 


	
   

  	
  Henkel Construction Company,

  
	
   

  	
  as General
  Contractor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


D-24





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 5
TO EXHIBIT D-3


 


Form of
Manager’s First Disbursement Certificate


 


[date]


 


U.S. Bank National Association, 
  as Disbursement Agent

60 Livingston Avenue

St. Paul, Minnesota 55107


 


U.S. Bank National Association, 
  as Trustee

60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Cash Collateral and Disbursement Agreement:

Manager’s First Disbursement Certificate


 


Ladies and Gentlemen:


 


The
undersigned (the “Manager”) hereby
certifies to each of you as follows:


 


1.             The Manager has reviewed the
Issuers’ Closing Certificate and the Cash Collateral and Disbursement
Agreement, dated as of July 19, 2005, to which the Issuers are a party (as
amended, supplemented or otherwise modified from time to time, the “Disbursement Agreement”), to the extent
necessary to understand the defined terms contained herein and in the Issuers’
Closing Certificate that are incorporated by reference from the Disbursement
Agreement, and to provide the certification contained herein.  Capitalized terms used and not otherwise
defined herein shall have the meanings given in the Disbursement Agreement.


 


2.             The Manager hereby certifies and
confirms the accuracy of the certifications in the above-referenced First
Disbursement Officer’s Certificate; provided that where any certification of
the Issuers is limited to the Issuers’ knowledge or belief, for the purpose of
this certificate, such certification shall instead be made to the Manager’s
knowledge or belief, as applicable.


 


[signature page follows]


 


D-25





















 


The foregoing
representations and certifications are true and correct and the Disbursement
Agent is entitled to rely on the foregoing.


 


	
   

  	
  Peninsula Gaming, LLC,

  
	
   

  	
  as Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


D-26





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT E


 


Form of
Construction Disbursement Budget Amendment Certificate


 


[date]


 


U.S. Bank National Association,

as Trustee


60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Amendment No.                       

to Construction Disbursement Budget for the Facility


 


Ladies and Gentlemen:


 


Diamond Jo
Worth, LLC, a Delaware limited liability company (the “Company”), and Diamond Jo Worth Corp., a
Delaware corporation (“DJW Corp.”
and together with the Company, the “Issuers”),
request that the Construction Disbursement Budget for the Facility (the “Construction Disbursement Budget”) be
amended as set forth on Schedule 1 to this certificate.  This certificate is delivered pursuant to
that certain Cash Collateral and Disbursement Agreement, dated as of July 19,
2005 (as amended, supplemented or otherwise modified from time to time, the “Disbursement Agreement”), to which each of
you is a party.  Capitalized terms used
and otherwise not defined herein shall have the meanings given in the
Disbursement Agreement.  In connection
with the requested Construction Disbursement Budget amendment, the Issuers
hereby represent, warrant and certify as follows:


 


1.             The proposed amendment is set forth
in Schedule 1 hereto.  The
proposed amendment is reasonably necessary in order to complete the work
represented by any line item or line items in the Construction Disbursement
Budget presently in effect (prior to giving effect to the proposed amendment)
and is not reasonably expected to result in a material reduction of the scope
or quality of the work constituting the design or construction of the Facility.


 


2.             The following circumstances
resulted in the reasonable necessity of the proposed amendment:


 


                                                                        

                                                                        

                                                                        


 


3.             The circumstances described in
paragraph 2 above were not reasonably anticipated by the Issuers in preparing
the Construction Disbursement Budget in effect immediately prior to the
proposed amendment for the following reasons:


 


                                                                        

                                                                        

                                                                        


 


E-1





















 


4.             The Construction Disbursement
Budget in effect immediately prior to the proposed amendment is attached to
this Construction Disbursement Budget Amendment Certificate as Schedule 2,
and the Construction Disbursement Budget which will be in effect upon the
effectiveness of the proposed amendment is attached to this Construction
Disbursement Budget Amendment as Schedule 3.


 


5.             After giving effect to the proposed
amendment:  (i) the Construction
Disbursement Budget will include, in all material respects, all costs to be
incurred in causing the Opening to occur and the Facility to be completed in
accordance with the Plans with not less than the Minimum Facilities; (ii) the
Available Funds are reasonably expected to be sufficient to cause the Opening
to occur and the Facility to be completed in accordance with the Plans in
accordance with the aggregate amounts (and line items) set forth in the
Construction Disbursement Budget; and (iii) the Construction Disbursement
Budget will continue to reasonably establish the line item components of the
work required to be undertaken in order to complete construction of the
Facility, and will continue to reasonably establish the cost of completing each
line item component of such work.


 


6.             After giving effect to the proposed
amendment, the Construction Disbursement Budget accurately sets forth in all
material respects the anticipated Construction Expenses both in the aggregate
and for each line item through completion of the construction of the Facility.


 


7.             [If
Any Line Item On The Construction Disbursement Budget Is Reduced:]  The Issuers
reasonably expect that the work represented by the line item entitled                           will be completed for a total cost of
approximately $                ,
which amount is less than $                      
[should correspond to $ amount set
forth in the Construction Disbursement Budget prior to proposed amendment] and such savings will be reallocated, pursuant to the
amendment, to another line item in the Construction Disbursement Budget,
whether Hard Costs or Soft Costs.


 


8.             The construction performed as of
the date hereof is in substantial compliance with the Plans.


 


9.             Immediately prior to and upon
giving effect to the Construction Disbursement Budget Amendment, there is and
will be no Default or Event of Default.


 


The
undersigned certify that the Construction Disbursement Budget Amendment
contemplated hereby is permitted pursuant to the Disbursement Agreement and the
Indenture, and all conditions precedent thereto have been met.


 


[signature page follows]


 


E-2





















 


The foregoing
representations and certifications are true, complete and correct and the
Disbursement Agent is entitled to rely on the foregoing.


 


Attached
hereto as Exhibits 1, 2, 3 and 4 are the
certificates of the General Contractor (if applicable), the applicable
Contractor, Architect and the Manager, respectively.


 


	
   

  	
  DIAMOND JO WORTH, LLC,

  
	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


 


	
   

  	
  DIAMOND JO WORTH CORP.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


E-3





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


SCHEDULE 1
TO EXHIBIT E


 


Proposed
Construction Disbursement Budget Amendment


 


Amendment No.     
to Construction Disbursement Budget.


 


	
  I.

  	
   

  	
  Increases To
  Line Items:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  The
  Following Line Item Is Increased:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Old Amount
  of Line Item:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Amount of
  Increase:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  New Total
  For Line Item:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Source of
  Funds For Increase:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Source

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Realized Savings

  	
   

  	
   

  	
  (1)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Additional Revenue

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Total

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  II.

  	
   

  	
  Decreases To Line Items:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Following Line Item Is
  Decreased:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Old Amount of Line Item:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Amount of Decrease:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  New Amount of Line Item:

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Reason For Decrease of
  Line Item:

  	
   

  	
   

  	
   

  



 










(1)           Source and documentation (e.g., receipts for purchased
goods or invoices for services) for Realized Savings are attached.


 


E-4





















 


	
  Source

  	
   

  	
  Amount

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Realized
  Savings

  	
   

  	
   

  	
  (2)

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III.

  	
   

  	
  New
  Construction Disbursement Budget Totals

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  a.

  	
  The total
  Construction Disbursement Budget for the Facility is now:

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  b.

  	
  The amount
  disbursed to date for the Facility is:

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  c.

  	
  Remaining
  amounts to be spent:

  	
   

  	
  $

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  d.

  	
  Available
  Funds for the Facility:

  	
   

  	
  $

  	
   

  



 










(2)           Source and documentation (e.g., receipts for purchased
goods or invoices for services) for Realized Savings are attached.


 


E-5





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


SCHEDULE 2
TO EXHIBIT E


 


Existing
Construction Disbursement Budget(3)


 


 


[To
be attached by the Issuers]


 










(3)           (or portion thereof being amended)


 


E-6





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


SCHEDULE 3
TO EXHIBIT E


 


 


Proposed
Revised Construction Disbursement Budget


 


 


[To
be attached by the Issuers]


 


E-7





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 1
TO EXHIBIT E


 


Form of
Certificate of the General Contractor

Construction Disbursement Budget Amendment


 


[date]


 


U.S. Bank National Association,

as Trustee


60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Amendment No.                   
to Construction Disbursement Budget

for the Facility


 


Ladies and Gentlemen:


 


Reference is
made to the Standard Form of Agreement Between Owner and Contractor (AIA Documents
A111-1997 edition) and General Conditions of the Contract for Construction (AIA
Documents 201-1997 edition) (as amended, modified or supplemented from time to
time in accordance with the terms thereof, the “Construction
Contract”), between Diamond Jo Worth, LLC, as Owner, and Henkel
Construction Company, as Contractor (the “General
Contractor”), for the construction of the Project (as defined in the
Construction Contract).  Capitalized
terms used and not otherwise defined herein shall have the meanings given in
the Construction Contract.  The General
Contractor hereby certifies to each of you as follows:


 


1.             The General Contractor has reviewed
Schedule 1 attached to this Exhibit E.


 


2.             The General Contractor hereby
certifies and confirms that the proposed increase or decrease in the Contract
Sum, as the case may be, is set forth in Change Order Number             .


 


3.             After giving effect to the Change
Order, the Guaranteed Maximum Price will be increased or decreased as set forth
in such Change Order.


 


4.             The Work to be performed by the
General Contractor pursuant to the Construction Contract will be constructed in
accordance therewith, including all amendments through Change Order Number                             .


 


[signature page follows]


 


E-8





















 


The foregoing
representations and certifications are true, complete and correct and the
Disbursement Agent is entitled to rely on the foregoing in authorizing and
making the amendment to the Construction Disbursement Budget.


 


	
   

  	
  Henkel Construction Company,

  
	
   

  	
  as General
  Contractor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


E-9





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 2
TO EXHIBIT E


 


Form of
Certificate of Contractor

Construction Disbursement Budget Amendment


 


[date]


 


U.S. Bank National Association,

as Trustee


60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Amendment No.                   
to Construction Disbursement Budget

for the Facility


 


Ladies and Gentlemen:


 


Reference is
made to the [Standard Form of
Agreement Between Owner and Contractor (AIA Documents A111-1997 edition) and
General Conditions of the Contract for Construction (AIA Documents 201-1997 edition)] (as amended, modified or supplemented
from time to time in accordance with the terms thereof, the “Contract”) between Diamond Jo Worth, LLC and [Name of Contractor] (the “Contractor”),
for the construction of the Project (as defined in the Contract).  Capitalized terms used and not otherwise
defined herein shall have the meanings given in the Contract.  The Contractor hereby certifies to each of
you as follows:


 


5.             The Contractor has reviewed Schedule 1
attached to this Exhibit E.


 


6.             The Contractor hereby certifies and
confirms that the proposed increase or decrease in the Contract Sum, as the
case may be, is set forth in Change Order Number             .


 


7.             After giving effect to the Change
Order, the Contract Sum will be increased or decreased as set forth in such
Change Order.


 


8.             The Work to be performed by the
Contractor pursuant to the Contract will be constructed in accordance
therewith, including all amendments through Change Order Number                             .


 


[signature page follows]


 


E-10





















 


The foregoing
representations and certifications are true, complete and correct and the
Disbursement Agent is entitled to rely on the foregoing in authorizing and
making the amendment to the Construction Disbursement Budget.


 


	
   

  	
  [Name of Contractor],

  
	
   

  	
  as
  Contractor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


E-11





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 3
TO EXHIBIT E


 


Form of
Certificate of the Architect

Construction Disbursement Budget Amendment


 


[date]


 


U.S. Bank National Association,

as Trustee


60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Amendment No.                   
to Construction Disbursement Budget

for the Facility


 


Ladies and Gentlemen:


 


The
undersigned (the “Architect”),
hereby certifies as follows:


 


1.             The Architect has reviewed the
above-referenced Construction Disbursement Budget Amendment Certificate and the
Cash Collateral and Disbursement Agreement, dated as of July 19, 2005 (as
amended, supplemented or otherwise modified from time to time, the “Disbursement Agreement”), to which each of
Diamond Jo Worth, LLC, a Delaware limited liability company (the “Company”), and Diamond Jo Worth Corp., a
Delaware corporation (“DJW Corp.”
and together with the Company, the “Issuers”),
is a party.  Capitalized terms used and
not otherwise defined herein shall have the meanings given in the Disbursement
Agreement.


 


2.             The Architect hereby certifies
that, to the best of its knowledge and belief, based on its limited visual
observation and the information provided to the Architect, the construction of
the Facility to date is substantially in compliance with the intent of the
Plans as prepared by the Architect.


 


[signature page follows]


 


E-12





















 


The foregoing
representations and certifications are true, complete and correct and the
Disbursement Agent is entitled to rely on the foregoing in authorizing and
making the amendment to the Construction Disbursement Budget.


 


	
   

  	
  Kittrell Garlock and Associates, AIA, Ltd.,

  
	
   

  	
  as Architect

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


E-13





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 4
TO EXHIBIT E


 


Form of
Certificate of the Manager

Construction Disbursement Budget Amendment


 


[date]


 


U.S. Bank National Association,

as Trustee


 


60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Amendment No.                   
to Construction Disbursement Budget

for the Facility


 


Ladies and Gentlemen:


 


The
undersigned (the “Manager”),
hereby certifies as follows:


 


1.             The Manager has reviewed the
above-referenced Construction Disbursement Budget Amendment Certificate and the
Cash Collateral and Disbursement Agreement, dated as of July 19, 2005 (as
amended, supplemented or otherwise modified from time to time, the “Disbursement Agreement”), to which each of
Diamond Jo Worth, LLC, a Delaware limited liability company (the “Company”), and Diamond Jo Worth Corp., a
Delaware corporation (“DJW Corp.”
and together with the Company, the “Issuers”),
is a party.  Capitalized terms used and
not otherwise defined herein shall have the meanings given in the Disbursement
Agreement.


 


2.             The Manager hereby certifies and
confirms the accuracy of the certifications in the above-referenced
Construction Disbursement Budget Amendment Certificate; provided that
where any certification of the Issuers is limited to the Issuers’ knowledge or
belief for the purpose of this certificate, such certification shall be instead
be made to the Issuers’ knowledge or belief as applicable.


 


3.             The undersigned has no reason to
believe that the proposed amendment is not consistent with the Final Plans and
such further Plans that the undersigned reasonably believes will become the
Final Plans.


 


[signature page follows]


 


E-14





















 


The foregoing
representations and certifications are true, complete and correct and the
Disbursement Agent is entitled to rely on the foregoing in authorizing and
making the amendment to the Construction Disbursement Budget.


 


	
   

  	
  Peninsula Gaming, LLC,

  
	
   

  	
  as Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


E-15





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT F-1


 


Form of
Contract Amendment Certificate


 


[date]


 


U.S. Bank National Association,

as Trustee


60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp. (the “Issuers”)

Amendment No.        to Contract dated                 ,
         

(the “Contract”), between Diamond
Jo Worth, LLC

and Diamond Jo Worth Corp., and

[Name of Contractor] (“Contractor”)


 


Ladies and Gentlemen:


 


The Issuers
request that the above-referenced Contract be amended as set forth on Schedule 1
to this certificate.  This certificate is
delivered pursuant to that certain Cash Collateral and Disbursement Agreement,
dated as of July 19, 2005 (as amended, supplemented or otherwise modified
from time to time, the “Disbursement
Agreement”), to which each of you is a party.  Capitalized terms used and not otherwise
defined herein shall have the meanings given in the Disbursement
Agreement.  In connection with the requested
Contract amendment, the Issuers hereby represent, warrant and certify as
follows:


 


1.             The proposed Contract amendment is
attached as Schedule 1 hereto. 
The amendment is reasonably necessary in order to complete the Facility.


 


2.             The following circumstances
resulted in the necessity of the proposed amendment:


 


                                                                          

                                                                          

                                                                          


 


3.             After giving effect to such
amendment (and any related amendment to the Construction Disbursement Budget
for the Facility):


 


a.                                       The Construction Documents will
continue to call for construction of improvements constituting the Facility
that will include at least the Minimum Facilities;


 


b.                                      The amendment will not materially
adversely affect the scope, quality or value of the Facility for the following
reasons:


 


                                                                          

                                                                          

                                                                          


 


F-1





















 


c.                                       If the amendment will effect a reduction
in the scope of the work to be performed by the General Contractor, then the
work eliminated from the scope of work either (i) is not necessary to
complete the Facility including at least the Minimum Facilities in accordance
with the Plans and all applicable building laws, ordinances and regulations, or
(ii) to the extent necessary for the completion of the Facility including
at least the Minimum Facilities in accordance with the Plans and all applicable
building laws, ordinances and regulations, will be completed by the contractors
set forth below under the new or amended contracts described below.  Each such contractor is competent to perform
the work called for by the new or amended contract in exchange for the payments
contemplated thereby, and each such contract or amendment thereto complies in
all material respects with all applicable provisions of Article 8
of the Disbursement Agreement.


 


	
  Work

  	
   

  	
  Contractor

  	
   

  	
  Contract

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


d.                                      The Issuers will continue to be able
to complete the work within the line items pertaining to the Contract in a
timely manner, so as to permit completion of the Facility including at least
the Minimum Facilities, and within the aggregate amounts specified for the line
items on the Construction Disbursement Budget.


 


4.             After giving effect to the proposed
amendment (and any related amendment to the Construction Disbursement Budget),
the Construction Disbursement Budget sets forth the anticipated Construction
Expenses both in the aggregate and for each line item through completion of the
construction of the Facility and the various components of the Facility, all
within the line item allocations established for those components set forth in
the Construction Disbursement Budget.


 


5.             Prior to and after giving effect to
the amendment, there is and will be no Default or Event of Default.


 


The
undersigned certifies that this Contract Amendment Certificate is authorized
hereby and is permitted pursuant to the Disbursement Agreement and the
Indenture, and all conditions precedent thereto have been met.


 


[signature page follows]


 


F-2





















 


The foregoing
representations and certifications are true, complete and correct, in all
material respects, and the Disbursement Agent is entitled to rely on the
foregoing.


 


Attached to
this Contract Amendment Certificate as Exhibit 1 is a certificate
from the Manager and [For Contracts
relating to Hard Costs only: as Exhibits 2 and 3 are certificates
from the General Contractor and the Architect, respectively].


 


	
   

  	
  DIAMOND JO WORTH, LLC,

  
	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


 


	
   

  	
  DIAMOND JO WORTH CORP.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


F-3





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


SCHEDULE 1
TO EXHIBIT F-1


 


 


Copy of
Executed Contract Amendment


 


 


[To
be attached by the Issuers]


 


F-4





















 


CASH COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 1 TO EXHIBIT F-1


 


Form of
Certificate of Manager

Contract Amendment


 


[date]


 


U.S. Bank National Association,

as Trustee


60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp. (the “Issuers”)

Amendment No.        to Contract dated                     
(the “Contract”)

between Diamond Jo Worth, LLC and Diamond Jo Worth Corp.

and [Name of Contractor] (“Contractor”)


 


Ladies and
Gentlemen:


 


The
undersigned (the “Manager”) hereby
certifies as follows:


 


1.             The Manager has reviewed the
above-referenced Contract, as well as the above-referenced Contract Amendment
Certificate and the Cash Collateral and Disbursement Agreement, dated as of July 19,
2005 (as amended, supplemented or otherwise modified from time to time, the “Disbursement Agreement”), to which the
Issuers are a party, to the extent necessary to understand the defined terms
contained herein and in the Contract Amendment Certificate that are
incorporated by reference from the Disbursement Agreement, and to provide the
certification contained herein.


 


2.             The Manager hereby certifies and
confirms the accuracy of the certifications in the above-referenced Contract
Amendment Certificate.


 


[signature page follows]


 


F-5





















 


The foregoing
representations and certifications are true, complete and correct and the
Disbursement Agent is entitled to rely on the foregoing relative to the
amendment to the Contract.


 


	
   

  	
  Peninsula Gaming, LLC,

  
	
   

  	
  as Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


F-6





















 


CASH COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 2 TO EXHIBIT F-1


 


Form of
Certificate of General Contractor

Contract Amendment


 


[date]


 


U.S. Bank National Association,

as Trustee


60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp. (the “Issuers”)

Amendment No.        to Contract dated                     
(the “Contract”)

between Diamond Jo Worth, LLC and Diamond Jo Worth Corp.

and [Name of Contractor] (“Contractor”)


 


Ladies and
Gentlemen:


 


Reference is
made to the Standard Form of Agreement Between Owner and Contractor (AIA
Documents A111-1997 edition) and General Conditions of the Contract for
Construction (AIA Documents 201-1997 edition) (as amended, modified or
supplemented from time to time in accordance with the terms thereof, the “Construction Contract”), between Diamond Jo Worth, LLC, as
Owner, and Henkel Construction Company, as Contractor (the “General Contractor”), for the construction
of the Project (as defined in the Construction Contract).  Capitalized terms used and not otherwise
defined herein shall have the meanings given in the Construction Contract.  The General Contractor hereby certifies to
each of you as follows:


 


1.  The General Contractor has reviewed the
Change Order attached to this Exhibit F as Schedule 1.


 


2.  The General Contractor hereby certifies and
confirms that the proposed amendment to the Construction Contract is set forth
in Change Order Number               .


 


3.  The General Contractor makes no certification
or confirmation relating to the status of Gaming Licenses or compliance with
Gaming Laws.


 


[signature page follows]


 


F-7





















 


The foregoing
representations and certifications are true, complete and correct and the
Disbursement Agent is entitled to rely on the foregoing relative to the
amendment to the Contract.


 


	
   

  	
  Henkel Construction Company,

  
	
   

  	
  as General
  Contractor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


F-8





















 


CASH COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 3 TO EXHIBIT F-1


 


Form of
Certificate of Contractor

Contract Amendment


 


[date]


 


U.S. Bank National Association,

as Trustee


60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp. (the “Issuers”)

Amendment No.        to Contract dated                     
(the “Contract”)

between Diamond Jo Worth, LLC and Diamond Jo Worth Corp.

and [Name of Contractor] (“Contractor”)


 


Ladies and
Gentlemen:


 


Reference is
made to the [Standard Form of
Agreement Between Owner and Contractor (AIA Documents A111-1997 edition) and
General Conditions of the Contract for Construction (AIA Documents 201-1997
edition)] (as amended, modified or
supplemented from time to time in accordance with the terms thereof, the “Contract”) between Diamond Jo Worth, LLC and Contractor for
the construction of the Project (as defined in the Contract).  Capitalized terms used and not otherwise
defined herein shall have the meanings given in the Contract.  The Contractor hereby certifies to each of
you as follows:


 


1.  The Contractor has reviewed the Change Order
Number          attached to this Exhibit F
as Schedule 1.


 


2.  The Contractor hereby certifies and confirms
that the proposed amendment to the Contract is set forth in such Change Order.


 


3.  The Contractor makes no certification or
confirmation relating to the status of Gaming Licenses or compliance with
Gaming Laws.


 


[signature page follows]


 


F-9





















 


The foregoing
representations and certifications are true, complete and correct and the
Disbursement Agent is entitled to rely on the foregoing relative to the
amendment to the Contract.


 


	
   

  	
  [Name of Contractor],

  
	
   

  	
  as Contractor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


F-10





















 


CASH COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 4 TO EXHIBIT F-1


 


Form of
Certificate of Architect

Contract Amendment


 


[date]


 


U.S. Bank National Association,

as Trustee


60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp. (the “Issuers”)

Contract Amendment Certificate dated [                  ]

between Diamond Jo Worth, LLC and Diamond Jo Worth Corp.

and [Name of Contractor] (“Contractor”)


 


Ladies and
Gentlemen:


 


The
undersigned (the “Architect”)
hereby certifies as follows:


 


1.             The Architect has reviewed the
above referenced Contract Amendment Certificate and the Cash Collateral and
Disbursement Agreement, dated as of July 19, 2005 (the “Agreement”), to which the Issuers are a
party to the extent necessary to understand the defined terms contained herein
and in the Contract Amendment Certificate that are incorporated by reference
from the Agreement, and to provide the certification contained herein.


 


2.             The Architect hereby certifies and
confirms to the best of its knowledge and belief based on its review of the
above referenced Contract Amendment Certificate and the information provided by
and on behalf of the Issuers and the Contractor with respect to the Plans
prepared by the Architect that either:


 


a.                                       The Contract Amendment will not
effect a reduction in the scope of the work necessary for the completion of the
Facility including the Minimum Facilities; or


 


b.                                      If the Contract Amendment will
effect a reduction in the scope of the work necessary for the completion of the
Facility including the Minimum Facilities, those portions of the Facility which
will no longer be constructed pursuant to the Construction Contract are
included within the scope of work under the new or amended Contracts described
below.


 


F-11





















 


	
  PROJECT:

  



 


	
  Work

  	
   

  	
  Contractor

  	
   

  	
  Construction

  Contract

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


[signature page follows]


 


F-12





















 


The foregoing
representations and certifications are true and correct and the Disbursement
Agent is entitled to rely on the foregoing in authorizing the amendment to the
Contract.


 


Capitalized
terms used herein and not otherwise defined shall have the meaning ascribed to
them in the Agreement.


 


	
   

  	
  Kittrell Garlock and Associates, AIA, Ltd.,

  
	
   

  	
  as Architect

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


F-13





















 


CASH COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT F-2


 


Form of
Additional Contract Certificate


 


[date]


 


U.S. Bank National Association,

as Trustee


60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp. (the “Issuers”)

[Name of contract]
dated [                ](the “Contract”),

between Diamond Jo Worth, LLC and Diamond Jo Worth Corp.

and [Name of Contractor] (“Contractor”)


 


Ladies and
Gentlemen:


 


The Company
requests that the above-referenced Contract, a copy of which is attached hereto
as Schedule 1 (together with a Consent to Collateral Assignment of
Contract in the form of Exhibit G to the Disbursement Agreement
duly executed by Contractor, a copy of which is attached hereto as Schedule 2),
be approved and made effective.  This
certificate is delivered pursuant to that certain Cash Collateral and
Disbursement Agreement, dated as of July 19, 2005 (as amended,
supplemented or otherwise modified from time to time, the “Disbursement Agreement”), to which you are
a party.  Capitalized terms used and not
otherwise defined herein shall have the meanings given in the Disbursement
Agreement.


 


In connection
with entering into the Contract, the Issuers hereby represent, warrant and
certify as follows:


 


1.             The work to be performed under the
Contract relates to the following line item under the Construction Disbursement
Budget presently in effect and consists of the following:


 


                                                                          


                                                                          


                                                                          


 


Such work is in substantial compliance with
the Plans.


 


2.             The Contract provides, in all
material respects, for the Issuers to complete the work within the line items
of the Construction Disbursement Budget presently in effect pertaining to the
Contract in a timely manner, and including the Minimum Facilities, and within
the aggregate amounts specified for the line item in the Construction Disbursement
Budget presently in effect.  The
Contractor is competent to perform the work called for by the Contract in
exchange for the payments contemplated thereby,


 


F-14





















 


3.             Prior to and after giving effect to
the Contract, there is and will be no Default or Event of Default.


 


4.             The entering into the Contract and
the performance of the work thereunder [will/will not] require an amendment to the Construction Disbursement
Budget.  [if
it will, add:  Attached hereto is a duly
completed and executed Construction Disbursement Budget Amendment Certificate
describing such amendment].


 


5.             After giving effect to the Contract
(and any related amendment to the Construction Disbursement Budget) and the
performance of the work under the Contract the Available Funds will be
sufficient to cause the Opening to occur.


 


6.             The Company’s entering into the
proposed Contract is permitted under Section 8.3 of the
Disbursement Agreement and all conditions precedent thereto have been met.


 


The
undersigned certifies that this Additional Contract Certificate is authorized
hereby and is permitted pursuant to the Disbursement Agreement and the
Indenture, and all conditions precedent thereto have been met.


 


[signature page follows]


 


F-15





















 


The foregoing
representations and certifications are true, complete and correct and each of
the Disbursement Agent is entitled to rely on the foregoing.


 


Attached to
this Contract Amendment Certificate as Exhibit 1 is a certificate
from the Manager and [For Contracts
relating to Hard Costs only: as Exhibits  2 and 3 are
certificates from the applicable Contractor and the Architect, respectively].


 


	
   

  	
  DIAMOND JO WORTH, LLC,

  
	
   

  	
  a Delaware
  limited liability company

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


 


	
   

  	
  DIAMOND JO WORTH CORP.,

  
	
   

  	
  a Delaware
  corporation

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


F-16





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


SCHEDULE 1
TO EXHIBIT F-2


 


 


Copy of
Executed Contract


 


 


[To
be attached by the Issuers]


 


F-17





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


SCHEDULE 2
TO EXHIBIT F-2

Copy of Executed Consent to Collateral Assignment of Contract


 


 


[To
be attached by the Issuers]


 


F-18





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 1
TO EXHIBIT F-2


 


Form of
Certificate of Manager

Additional Contract Certificate


 


[date]


 


U.S. Bank National Association,

as Trustee


60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp. (the “Issuers”)

Additional Contract Certificate dated [                        ], relating to

[Name of Contract] dated [                              ] (the “Contract”)

between Diamond Jo Worth, LLC and Diamond Jo Worth Corp.

and [Name of Contractor] (“Contractor”)


 


Ladies and
Gentlemen:


 


The
undersigned (the “Manager”) hereby
certifies as follows:


 


1.             The Manager has reviewed the
above-referenced Contract, as well as the above-referenced Additional Contract
Certificate and the Cash Collateral and Disbursement Agreement, dated as of July 19,
2005 (as amended, supplemented or otherwise modified from time to time, the “Disbursement Agreement”), to which the Issuers
are parties, to the extent necessary to understand the defined terms contained
herein and in the Additional Contract Certificate that are incorporated by
reference from the Disbursement Agreement, and to provide the certification
contained herein.


 


2.             The Manager hereby certifies and
confirms the accuracy of the certifications in the above-referenced Additional
Contract Certificate; provided that where any certification of the
Issuers is limited to the Issuers’ knowledge or belief for the purpose of this
certificate, such certification shall instead be made to the Manager’s
knowledge or belief as applicable.


 


[signature page follows]


 


F-19





















 


The foregoing
representations and certifications are true, complete and correct, in all
material respects,  and the Disbursement
Agent is entitled to rely on the foregoing relative to authorizing the Issuers
to enter into the Contract.


 


	
   

  	
  Peninsula Gaming, LLC,

  
	
   

  	
  as Manager

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


F-20





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 2
TO EXHIBIT F-2


 


Form of
Certificate of Contractor

Additional Contract Certificate


 


July 19,
2005


 


U.S. Bank National Association, 
  as Trustee

60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp.

Additional Contract Certificate dated [                        ], relating to

[Name of Contract] dated [                              ] (the “Contract”)

between Diamond Jo Worth, LLC and Diamond Jo Worth Corp.

and [Name of Contractor] (“Contractor”)


 


Ladies and Gentlemen:


 


Reference is
made to the [Standard Form of
Agreement Between Owner and Contractor (AIA Documents A111-1997 edition) and
General Conditions of the Contract for Construction (AIA Documents 201-1997
edition)] (as amended, modified or
supplemented from time to time in accordance with the terms thereof, the “Contract”), between Diamond Jo Worth, LLC and [Name of Contractor] (“Contractor”),
for the Work (as defined in the Contract). 
Capitalized terms used and not otherwise defined herein shall have the
meanings given in the Contract.  The
Contractor hereby certifies to each of you as follows:


 


1.             The Work to be performed by the
Contractor pursuant to the Contract is set forth therein.


 


2.             The Work to be performed by the
General Contractor pursuant to the Construction Contract may be completed in
accordance therewith.


 


3.             The Contractor is not and, to the
knowledge of the Contractor, the Company is not, or (but for the passage of
time or the giving of notice or both) will be, in breach of any material
obligation under the Contract.


 


4.             The Contractor makes no
certification or confirmation relating to the status of Gaming Licenses or
compliance with Gaming Laws.


 


[signature page follows]


 


F-21





















 


The foregoing
representations and certifications are true and correct and the Disbursement
Agent is entitled to rely on the foregoing.


 


	
   

  	
  [Name of Contractor],

  
	
   

  	
  as
  Contractor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


F-22





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT 3
TO EXHIBIT F-2


 


Form of
Certificate of Architect

Additional Contract Certificate


 


[date]


 


U.S. Bank National Association,

as Trustee


60 Livingston Avenue

St. Paul, Minnesota 55107


 


Re:                               Diamond
Jo Worth, LLC and Diamond Jo Worth Corp. (the “Issuers”)

Additional Contract Certificate dated [                        ], relating to

[Name of contract]
dated [                              ] (the “Contract”)

between Diamond Jo Worth, LLC and Diamond Jo Worth Corp.

and [Name of Contractor]
(“Contractor”)


 


Ladies and
Gentlemen:


 


The
undersigned (the “Architect”)
hereby certifies as follows:


 


1.             The Architect has reviewed the above
referenced Additional Contract Certificate and the Cash Collateral and
Disbursement Agreement, dated as of July 19, 2005 (the “Agreement”), to which the Issuers are
parties to the extent necessary to understand the defined terms contained
herein and in the Additional Contract Certificate that are incorporated by
reference from the Agreement, and to provide the certification contained
herein.


 


2.             The Architect hereby certifies and
confirms to the best of its knowledge and belief based on its review of the
above referenced Additional Contract Certificate and the information provided
by and on behalf of the Issuers and the Contractor with respect to the Plans
prepared by the Architect the accuracy of the certifications in paragraphs 1
and 2 of the above-referenced Additional Contract Certificate.


 


The foregoing
representations and certifications are true and correct and the Disbursement
Agent is entitled to rely on the foregoing in authorizing the Contract.


 


[signature page follows]


 


F-23





















 


Capitalized
terms used herein and not otherwise defined shall have the meaning ascribed to
them in the Agreement.


 


	
   

  	
  Kittrell Garlock and Associates, AIA, Ltd.,

  
	
   

  	
  as Architect

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
						



 


F-24





















 


CASH
COLLATERAL AND DISBURSEMENT AGREEMENT


 


EXHIBIT G


 


Form of
Consent to Collateral Assignment of Contract


 


THIS
CONTRACTING PARTY’S CONSENT TO COLLATERAL ASSIGNMENT OF CONTRACT (the “Consent”) is made as of                         ,
        , by                                           
                          
(“Contracting Party”), whose
address is                                                       ,
for the benefit of U.S. Bank National Association, having an office at 60
Livingston Avenue, St. Paul, Minnesota 55107, as trustee for the benefit of the
holders of the Notes (the “Trustee”).


 


RECITALS


 


A.            Notes.  Pursuant to that certain Indenture, dated as
of July 19, 2005 (as amended, supplemented or otherwise modified from time
to time, the “Indenture”), by and
between Diamond Jo Worth, LLC, a Delaware limited liability company (the “Company”), and Diamond Jo Worth Corp., a
Delaware corporation (“DJW Corp.”
and, together with the Company, the “Issuers”),
and the Trustee, as trustee, the Issuers have issued Forty Million Dollars
($40,00,000) in aggregate principal amount of their 11% Senior Secured Notes
due 2012 (the “Original Notes” and, together with any
additional Notes issued under the Indenture and any new notes issued in
exchange for the Original Notes or such additional Notes, the “Notes”). 
All defined terms used and not otherwise defined herein shall have the
respective meanings given in the Indenture. 
The proceeds of the Notes, minus certain Debt Financing Costs, have been
deposited into certain collateral accounts pursuant to a Cash Collateral and
Disbursement Agreement (the “Disbursement
Agreement”) of even date with the Indenture among U.S. Bank National
Association, as disbursement agent (the “Disbursement
Agent”), the Trustee and the Issuers.


 


B.            Security.  The Issuers must use the proceeds of the
Notes disbursed pursuant to the Disbursement Agreement for the construction of
the Facility (as defined in the Disbursement Agreement).  Contracting Party and the Issuers are parties
to that certain [name of contract] dated as of                             ,
         (the “Contract”) relating to the design,
development, construction, equipping and/or operation of the Facility.  The Issuers have executed a Collateral
Assignment dated of even date with the Indenture (as amended, supplemented or
otherwise modified from time to time, the “Collateral
Assignment”), in favor of the Trustee, collaterally assigning all of
the Issuers’ right, title and interest in and to, among other things, the
Contract, in order to secure the obligations of the Issuers under, among other
documents, the Notes and the Indenture (the “Obligations”).


 


CONSENT


 


NOW THEREFORE,
for good and valuable consideration, receipt of which is hereby acknowledged,
Contracting Party agrees as follows:


 


1.             Consent to Assignment.  Pursuant to the Contract, Contracting Party
has performed or supplied, or agreed to perform or supply, certain services,
materials or documents in connection with the Facility.  Contracting Party hereby consents to the
assignment thereof by the Issuers to the Trustee as provided in the Collateral
Assignment and this Consent.


 


2.             Issuers’ Default under Contract.  If the Issuers default under the Contract,
before exercising any remedy, Contracting Party shall deliver to the Trustee at
its address set forth above (or


 


G-1





















 


such other address
provided thereby in writing to the Company and Contracting Party), by
registered or certified mail, postage prepaid, return receipt requested,
written notice of such default, specifying the nature of the default and the
steps necessary to cure the same, and clearly marked as a notice of default
pursuant to this Paragraph 2.  If the
Issuers fail to cure the default within the time permitted under the Contract,
then the Trustee shall have an additional thirty (30) days after the expiration
of the time permitted under the Contract (but in no event less than an
additional thirty (30) days after the receipt by the Trustee of said notice
from Contracting Party) within which the Trustee shall have the right, but not
the obligation, to cure such default; provided, however, that, with respect to
payment defaults only, the Trustee shall have thirty (30) days from receipt of
notice of such default within which the Trustee shall have the right, but not
the obligation, to cure such default. 
Contracting Party’s delivery of such a notice of default to the Trustee
and the Trustee’s failure to cure the same within the applicable period shall
be conditions precedent to the exercise of any right or remedy of Contracting
Party arising by reason of such payment default, except that Contracting Party
shall not be required to continue performance under the Contract during such
additional cure period granted to the Trustee, unless and until the Trustee
agrees to pay Contracting Party for the work, labor and materials rendered on
or supplied to the Facility during such additional period.  Notwithstanding anything to the contrary,
nothing herein shall alter any provisions in the Contract permitting
Contracting Party to suspend its performance under the Contract during the
continuance of a default under the Contract.


 


3.             Certificate of Default Status.  Upon the written request of the Trustee, at
any time and from time to time, Contracting Party shall furnish to the Trustee
and the Company, within five (5) days of receipt of such request, a
certificate stating whether, as of such request receipt date, the Issuers are
in default on the Contract and, if so, the nature of the default and the steps
necessary to cure the same.  Such
certificate shall not constitute a written notice of default pursuant to
Paragraph 2 hereof unless clearly marked as such.


 


4.             Issuers’ Default under Obligations.  If the Trustee gives written notice to
Contracting Party that the Issuers have defaulted under the Obligations and
does not request that Contracting Party cease its performance under the
Contract, Contracting Party shall thereafter perform for the Trustee under the
Contract in accordance with its terms, so long as Contracting Party shall be
paid pursuant to the Contract for all work, labor and materials rendered or
supplied thereunder, including payment of any sums due to Contracting Party for
work performed or materials supplied up to and including the date of the
Issuers’ default.


 


5.             Performance for the Trustee.  If the Trustee (a) cures any default by
the Issuers pursuant to Paragraph 2 above, (b) gives written notice to
Contracting Party and the Issuers that the Issuers have defaulted under the
Security Documents pursuant to Paragraph 4 above, (c) becomes the owner of
the Property, (d) undertakes to complete or cause completion of the
construction of the Facility pursuant to its rights under the Security
Documents, or (e) following a Default or an Event of Default under (and as
defined in) either the Indenture or the Cash Collateral and Disbursement
Agreement, otherwise requires the performance of Contracting Party’s
obligations under the Contract or the use of any plans and specifications,
drawings, surveys or other materials or documents previously prepared or
provided by Contracting Party pursuant to the Contract, then in any such event,
so long as Contracting Party has received and continues to receive the
compensation required under the Contract related thereto, the Trustee shall
have the right to obtain performance from Contracting Party of all of its
obligations under the Contract, and to use all such plans and specifications,
drawings, surveys and other materials and documents, and the ideas, designs and
concepts contained therein, in connection with the completion of the Facility,
without the payment of any additional fees or charges to Contracting Party.


 


G-2





















 


6.             Amendments and Change Orders.  Contracting Party agrees that it will not
modify, amend, supplement or in any way join in the release or discharge of
Contracting Party’s obligations under the Contract unless (a) such change
is consented to by the Issuers (or is otherwise permitted by the Contract), and
(b) such change is otherwise expressly permitted by the Disbursement
Agreement, and Contracting Party agrees that it will not perform any work
pursuant to any change order, amendment or directive unless the same is issued
and executed in accordance with the foregoing and the terms and conditions of
the Contract.


 


7.             List of Subcontracting Parties.  Upon the entering into a subcontract relating
to the rendering of work, Contracting Party shall furnish to the Trustee a
current list of all Persons with whom Contracting Party has entered into
subcontracts or other agreements related to the rendering of work, labor or
materials under the Contract, together with a statement as to the status of
each such subcontract or agreement, and the respective amounts, if any, owed by
Contracting Party related thereto.


 


8.             Compliance with Laws.  Contracting Party shall comply with, and
shall report to the Trustee any failure known to the Contracting Party of the
Issuers, the Facility or any Person or entity furnishing materials or services
in connection with the construction of the Facility to comply, with all
applicable laws, ordinances, regulations and governmental requirements relating
to the construction of the Facility.


 


9.             Contracting Party’s Records.  Contracting Party shall promptly submit to
the Trustee such payroll vouchers, receipts, lien releases and waivers,
progress surveys, inspection reports and other documents and papers relating to
construction of the Facility required by the Trustee to protect the priority of
the security interests created by the Security Documents in favor of the
Trustee on the Property or to verify compliance with the provisions of this
Consent and the Cash Collateral and Disbursement Agreement.


 


10.           Security of Property and Equipment.  Contracting Party agrees to cooperate with
the Issuers and the Trustee in preserving their respective ownership and
security interests in all personal property relating to the Facility, including
without limitation building materials, machinery and appliances acquired by
Contracting Party with the proceeds of the Notes and held or stockpiled on or
off the site of the Property for incorporation into or use in connection with
the Facility.


 


11.           Representations.  Contracting Party represents to the Trustee
that (a) it is duly licensed to conduct its business in the jurisdiction
contemplated by the Contract, and will at all times maintain its license in
full force and effect throughout the term thereof, (b) the Contract has
not been amended, modified or supplemented except as set forth therein, (c) the
Contract constitutes a valid and binding obligation of Contracting Party and is
enforceable against Contracting Party in accordance with its terms, (d) there
have been no prior assignments of the Contract, and (e) all covenants,
conditions and agreements of the Issuers and Contracting Party contained in the
Contract have been performed as required therein, except for those that are not
due to be performed until after the date hereof.


 


12.           Application of Funds.  Nothing herein imposes or shall be construed
to impose upon the Trustee any duty to direct the application of any proceeds
of the Notes, and Contracting Party acknowledges that the Trustee is not
obligated to Contracting Party or any of its subcontracting parties,
materialmen, suppliers or laborers.


 


13.           Acknowledgment of Inducement.  Contracting Party is executing this Consent
to induce the purchasers of the Notes to purchase the Notes.  Contracting Party understands that the
purchasers of


 


G-3





















 


the Notes would not
advance such funds and make such purchases but for Contracting Party’s
execution and delivery hereof.


 


14.           Irrevocability.  The provisions hereof shall be irrevocable
and remain in full force and effect until the Issuers have fully paid and
performed all of the Obligations.


 


15.           Notices.  Except for notices sent pursuant to Paragraph
2 above, any notices to the Trustee hereunder shall be sent to its address set
forth above, by U.S. Mail, postage prepaid.


 


16.           Governing Law.  This Consent shall be governed by the laws of
the State of New York.


 


[signature page follows]


 


G-4





















 


IN WITNESS
WHEREOF, Contracting Party has executed this Consent as of the date first above
written.


 


	
   

  	
  CONTRACTING PARTY:

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
							



 


G-5





















 


CASH
COLLATERAL AND DISBURSEMENT ACCOUNT


 


EXHIBIT H


 


Form of
Pro Forma Title Policy


 


 


See attached.


 


G-6





















 


CASH
COLLATERAL AND DISBURSEMENT ACCOUNT


 


EXHIBIT I


 


Property
Legal Description


 


 


See attached.