Exhibit 3.6
dated as of March 8, 2001
Foothill Capital Corporation
0000 Xxxxxxxx Xxxxxx
Xxxxx 0000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Re: AMENDMENT TO LOAN AGREEMENT
Ladies and Gentlemen:
Reference hereby is made to that certain Loan and Security Agreement, dated
as of February 23, 2001 (the "Loan Agreement"), between Peninsula Gaming
Company, LLC, a Delaware limited liability company ("Borrower"), and Foothill
Capital Corporation, a California corporation ("Lender"). Capitalized terms used
herein but not specifically defined herein shall have the meanings ascribed to
them in the Loan Agreement. Lender and Borrower hereby agree as follows:
1. Amendment.
a. Section 3.1(a) of the Loan Agreement is deleted in its entirety and
the following is substituted in lieu thereof:
"(a) the Closing Date shall occur on or before March 13, 2001;"
b. Section 3.4 of the Loan Agreement is deleted in its entirety and
the following is substituted in lieu thereof:
"3.4 Term. This Agreement shall become effective upon the execution and
delivery hereof by Borrower and Lender and shall continue in full force and
effect for a term ending on March 12, 2005 (the "Maturity Date"). The foregoing
notwithstanding, Lender shall have the right to terminate its obligations under
this Agreement immediately and without notice upon the occurrence and during the
continuation of an Event of Default."
c. Section 6.3 of the Loan Agreement is deleted in its entirety and
the following is substituted in lieu thereof:
"6.3 Financial Statements, Reports, Certificates. Deliver to Lender:
(a) as soon as available, but in any event within 30 days after the
end of each month during each of Borrower's fiscal years (except in the case of
a month that is the end of one of the first 3 fiscal quarters in a fiscal year
or in the case of a month that is the end of the fiscal year), commencing April
2001,
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(i) a company prepared consolidated balance sheet, income
statement, and statement of cash flow covering Borrower's and its
Subsidiaries' operations during such period,
(ii) a certificate signed by the chief financial officer of
Borrower to the effect that:
A. the financial statements delivered hereunder have been
prepared in accordance with GAAP (except for the lack of footnotes and
being subject to year-end audit adjustments) and fairly present in all
material respects the financial condition of Borrower and its
Subsidiaries,
B. the representations and warranties of Borrower contained
in this Agreement and the other Loan Documents are true and correct in
all material respects on and as of the date of such certificate, as
though made on and as of such date (except to the extent that such
representations and warranties relate solely to an earlier date), and
C. there does not exist any condition or event that
constitutes a Default or Event of Default (or, to the extent of any
non-compliance, describing such non-compliance as to which he or she
may have knowledge and what action Borrower has taken, is taking, or
proposes to take with respect thereto), and
(iii) for each month that is the date on which a financial
covenant in Section 7.20 is to be tested, a Compliance Certificate
demonstrating, in reasonable detail, compliance at the end of such period
with the applicable financial covenants contained in Section 7.20, and
(b) as soon as available, but in any event within 90 days after the
end of each of Borrower's fiscal years,
(i) financial statements of Borrower and its Subsidiaries for
each such fiscal year, audited by independent certified public accountants
reasonably acceptable to Lender and certified, without any qualifications,
by such accountants to have been prepared in accordance with GAAP (such
audited financial statements to include a balance sheet, income statement,
and statement of cash flow and, if prepared, such accountants' letter to
management), and
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(ii) a certificate of such accountants addressed to Lender
stating that such accountants do not have knowledge of the existence of any
Default or Event of Default under Section 7.20,
(c) as soon as available, but in any event within 30 days after the
start of each of Borrower's fiscal years,
(i) copies of Borrower's Projections, in form and substance
(including as to scope and underlying assumptions) satisfactory to Lender,
in its Permitted Discretion, for the forthcoming fiscal year, month by
month, certified by the chief financial officer of Borrower as being such
officer's good faith best estimate of the financial performance of Borrower
during the period covered thereby,
(d) if and when filed by Borrower,
(i) Form 10-Q quarterly reports, Form 10-K annual reports, and
Form 8-K current reports,
(ii) any other filings made by Borrower with the SEC,
(iii) copies of Borrower's federal income tax returns, and any
amendments thereto, filed with the Internal Revenue Service, and
(iv) any other information that is provided by Borrower to its
shareholders generally,
(e) if and when filed by Borrower and as requested by Lender,
satisfactory evidence of payment of applicable excise taxes in each jurisdiction
in which (i) Borrower conducts business or is required to pay any such excise
tax, (ii) where Borrower's failure to pay any such applicable excise tax would
result in a Lien on the properties or assets of Borrower, or (iii) where
Borrower's failure to pay any such applicable excise tax reasonably could be
expected to result in a Material Adverse Change,
(f) as soon as Borrower has knowledge of any event or condition that
constitutes a Default or an Event of Default, notice thereof and a statement of
the curative action that Borrower proposes to take with respect thereto, and
(g) upon the request of Lender, any other report reasonably requested
relating to the financial condition of Borrower.
In addition to the financial statements referred to above, Borrower agrees
to deliver to Lender within 30 days after the end of each month, Borrower's
calculation of its EBITDA and financial statements, as well as a Borrowing Base
Certificate, prepared on both
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a consolidated and consolidating basis for the immediately preceding month.
Borrower agrees that no Subsidiary of Borrower will have a fiscal year different
from that of Borrower. Borrower agrees that its independent certified public
accountants are authorized to communicate with Lender and to release to Lender
whatever financial information concerning Borrower Lender reasonably may
request. Borrower waives the right to assert a confidential relationship, if
any, it may have with any accounting firm or service bureau in connection with
any information requested by Lender pursuant to or in accordance with this
Agreement, and agrees that Lender may contact directly any such accounting firm
or service bureau in order to obtain such information."
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2. Effect on Loan Agreement. The Loan Agreement, as amended hereby, shall
be and remain in full force and effect in accordance with its respective terms
and hereby is ratified and confirmed in all respects. The execution, delivery,
and performance of this letter agreement shall not operate as a waiver of or,
except as expressly set forth herein, as an amendment, of any right, power, or
remedy of Lender under the Loan Agreement.
3. Miscellaneous.
a. This letter agreement is a Loan Document.
b. Upon the effectiveness of this letter agreement, each reference in
the Loan Agreement and any other Loan Document to the "Loan Agreement" shall
mean and refer to the Loan Agreement as amended by this letter agreement.
c. Upon the effectiveness of this letter agreement, each reference in
the Loan Agreement to "this Loan Agreement", "this Agreement", "herein",
"hereunder", "hereof" or words of like import referring to the Loan Agreement
shall mean and refer to the Loan Agreement as amended by this letter agreement.
d. This letter agreement shall be construed under and governed by the
laws of the State of California and may be executed in any number of
counterparts and by different parties on separate counterparts. Each of such
counterparts shall be deemed to be an original, and all of such counterparts,
taken together, shall constitute but one and the same agreement. Delivery of an
executed counterpart of this letter by telefacsimile shall be equally effective
as delivery of a manually executed counterpart.
Very truly yours,
PENINSULA GAMING COMPANY, LLC,
a Delaware limited liability company
By: /s/ M. Xxxxx Xxxxxxx
Title:
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Accepted and agreed to
as of the date first above written:
FOOTHILL CAPITAL CORPORATION
a California corporation
By: /s/ Xxxxx Xxxxx
Title:
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