EXHIBIT 10.14
This AMENDMENT NUMBER THREE TO LOAN AND SECURITY AGREEMENT AND WAIVER
(this "Amendment") is entered into as of February 14, 2003, by and between
FOOTHILL CAPITAL CORPORATION, a California corporation (the "Lender") and
PENINSULA GAMING COMPANY, LLC, a Delaware limited liability company (the
"Borrower").
WHEREAS, Lender and Borrower have entered into that certain Loan and
Security Agreement, dated as of February 23, 2001, as amended, restated,
supplemented or otherwise modified from time to time (the "Loan Agreement"),
pursuant to which Lender has agreed to make certain loans and financial
accommodations available to Borrower;
WHEREAS, on February 15, 2002 (the "First Amendment Effective Date"),
Borrower and Lender entered into that certain Amendment Number One to Loan and
Security Agreement (the "First Amendment"), pursuant to which Lender agreed to
permit, among other things, (i) Borrower to form and acquire a 100% interest in
OED Acquisition, LLC, a Delaware limited liability company ("OED I") and (ii)
OED I to form and acquire a 50% interest in OED Acquisition II, LLC ("OED II"),
a Delaware limited liability company (collectively, the "OED Acquisition");
WHEREAS, contemporaneous with the execution of the First Amendment, (i)
Borrower formed and acquired a 100% interest in OED I, (ii) OED I formed and
acquired a 100% interest in OED II, and (iii) OED I consummated the acquisition
of 50% of the membership interests of The Old Xxxxxxxxxx Xxxxx, X.X., a
Louisiana limited liability company ("OED") from BIM3 Investments, a Louisiana
partnership;
WHEREAS, on August 30, 2002 , OED I consummated the acquisition of the
50% membership interest in OED owned by Xxxxxxx X. Xxxxxxx, XX Family LLC, a
Louisiana limited liability company;
WHEREAS, OED and OED II are wholly owned subsidiaries of OED I;
WHEREAS, OED I intends to dissolve OED II;
WHEREAS, in connection with the OED Acquisition, OED and Borrower
entered into a Management Services Agreement, dated as of the First Amendment
Effective Date, pursuant to which Borrower made Operator Advances (as defined in
such Agreement) and other reimbursable expenses to OED (the "MSA Advances");
WHEREAS, as a condition precedent to the effectiveness of the First
Amendment, OED I executed that certain General Continuing Guaranty (the
"Guaranty"), pursuant to which it guaranteed the Obligations (as defined in the
Loan Agreement);
WHEREAS, in order to secure its obligations under the Guaranty, OED I
executed in favor of Lender that certain Guarantor Security Agreement (the
"Security Agreement") and the Pledge Agreement (the "Pledge Agreement"), each
dated as of the First Amendment Effective Date, pursuant to which OED I granted
to Lender a security interest in all or substantially all of
the property of OED I, including without limitation, the Pledged Interests
identified on Schedule A to the Pledge Agreement (the "Pledged Stock");
WHEREAS, Borrower has requested that Lender agree to amend and waive
certain provisions of the Loan Agreement pursuant to the terms and subject to
the conditions set forth herein;
WHEREAS, Lender is willing to so waive such provisions and to amend the
Loan Agreement pursuant to the terms and subject to the conditions set forth
herein;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants herein contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows:
1. Defined Terms. All terms used herein and not otherwise defined shall
have the meanings ascribed thereto in the Loan Agreement.
2. Amendments to the Loan Agreement.
(a) Section 1.1 of the Loan Agreement is hereby amended by deleting the
definitions of "Guaranty", "Guarantor Security Agreement", "OED II", "OED II
Operating Agreement" and "OED I Pledge Agreement" in their entirety.
(b) Section 1.1 of the Loan Agreement is hereby amended by deleting the
definitions of "Loan Document", "OED I Operating Agreement", "OED I Purchase
Agreement", "OED Transaction Documents", "Permitted OED Acquisition" and
"Restricted Subsidiary" and replacing them with each of the following:
"Loan Documents" means this Agreement, the Borrower Pledge
Agreement, the Xxxxxxx Xx Ship Mortgage, the Fee Letter, the Letters of Credit,
the Mortgages, the Officers' Certificate, the Trademark Security Agreement, the
Intercreditor Agreement, any note or notes executed by Borrower in connection
with this Agreement and payable to Lender, and any other agreement entered into,
now or in the future, by Borrower and Lender in connection with this Agreement.
"OED I Operating Agreement" means that certain Amended and
Restated Operating Agreement, dated as of February 14, 2003, of OED I, as the
same may hereafter be amended, modified, supplemented, restated or replaced.
"OED I Purchase Agreements" means collectively, the (i) Purchase
Agreement, dated June 27, 2001, by and among Gaming Partners, OED and BIM3
Investments and (ii) Agreement of Sale, dated as of August 30 2002, by and among
Gaming Partners, OED I, Xxxxxxx X. Xxxxxxx, XX ("WET2") and Xxxxxxx X. Xxxxxxx,
XX Family LLC, as the same may hereafter be amended, modified, supplemented,
restated or replaced.
"OED Transaction Documents" means the OED I Operating Agreement,
the OED I Purchase Agreements, the OED I Assignment Agreement and the Management
Agreement.
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"Permitted OED Acquisition" means the formation of OED I, the
acquisition by Borrower of 100% of the Stock of OED I, the acquisition by OED I
of 100% of the Stock of OED, and all related transactions set forth in the OED
Transaction Documents.
"Restricted Subsidiary" means each Subsidiary of Borrower that is
not an Unrestricted Subsidiary.
(c) The definition of "Permitted Investments" set forth in Section 1.1
of the Loan Agreement is hereby amended by (i) deleting "and," appearing at the
end of subsection (l), (ii) deleting the period at the end of subsection (m) and
replacing it with ", and" and (iii) adding the following new subsection (n)
immediately after subsection (m) appearing in such definition:
(n) the MSA Advances.
(d) The definition of "Unrestricted Subsidiary" set forth in Section
1.1 of the Loan Agreement is hereby amended by adding "OED I, OED and any other
Subsidiary of OED I and" after the word "means" and before "any Subsidiary" in
the first line of such definition.
(e) Section 1.1 of the Loan Agreement is hereby amended by adding the
following defined terms thereto in proper alphabetical order:
"Management Agreement" means the Amended and Restated Management
Services Agreement, dated as of February 14, 2003 among Borrower, OED I and OED,
as the same may hereafter be amended, modified, supplemented, restated or
replaced.
"MSA Advances" means the Operator Advances and Reimbursables (as
such terms are defined in the Management Agreement) and other reimbursable
expenses made by Borrower to OED.
"OED" means the Old Xxxxxxxxxx Xxxxx, L.C.
"Third Amendment" means that certain Amendment Number Three to
Loan and Security Agreement and Waiver, dated as of February 14, 2003, by and
between Borrower and Lender.
(f) Section 6 of the Loan Agreement is hereby amended by adding the
following new Section 6.20 at the end thereof:
"6.20 Cash Maintenance. Borrower shall maintain cash on hand
(excluding "cage cash") and/or Availability of $1,500,000 in the aggregate at
all times outstanding."
(g) Section 7.6 of the Loan Agreement is hereby amended by (i)
inserting the word "and" at the end of subsection (c), (ii) deleting the word
"and" at the end of subsection (d) and replacing it with a period and (iii)
deleting subsection (e).
(h) Section 7.8(c) of the Loan Agreement is hereby deleted in its
entirety and replaced with the following:
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"(c) Directly or indirectly amend, modify, alter, increase, or
change any of the terms or conditions of the OED I Operating Agreement
(including, without limitation, Section 13(a) relating to transfers of interest
to Lender, Section 16(i) entitled "Article 8 Opt-In" and Section 16(j) entitled
"Loan Agreement") or the Certificate of Formation of OED I if the effect of such
amendment, modification, alteration or change would materially impair the
enforceability or priority of Lender's Liens with respect to the Collateral or
otherwise impair Lender's ability to enforce the Obligations or realize upon the
Collateral."
(i) Schedule 5.8(c) of the Loan Agreement is hereby removed from the
Loan Agreement in its entirety and replaced with Schedule 5.8(c) that is
attached to this Amendment, and all references to Schedule 5.8(c) in the Loan
Agreement shall mean and be a reference to Schedule 5.8(c) that is attached to
this Amendment.
3. Waiver. Subject to the occurrence of the Amendment Effective Date
(as defined below) and effective as of the First Amendment Effective Date,
Lender hereby waives the restrictions set forth in the Loan Agreement to the
extent, and only to the extent, necessary to permit (a) the MSA Advances made
prior to the date hereof and (b) the Permitted OED Acquisition (as such term is
defined in the Loan Agreement, as amended by this Amendment).
4. Release of Liens on Pledged Stock. Lender agrees that the Collateral
described in the Pledge Agreement and Security Agreement, including without
limitation, the Pledged Stock, is hereby released from the Liens created by the
Pledge Agreement and the Security Agreement, and each of the Guaranty, Pledge
Agreement and Security Agreement and all obligations of OED I thereunder shall
terminate and all rights to the Collateral shall revert to OED I. At the expense
of Borrower and OED I, Lender agrees to deliver to OED I any certificates or
other instruments evidencing the Pledged Stock held by Lender under the Pledge
Agreement, and to execute and deliver to OED I such documents (including UCC-3
termination statements) as OED I may reasonably request to evidence such
termination.
5. Conditions Precedent to Effectiveness of Amendment. This Amendment
shall be and shall become effective as of the date hereof subject to the
satisfaction of the following conditions (such date, the "Amendment Effective
Date"):
(a) Lender shall have received this Amendment duly executed by the
parties hereto, which shall be in full force and effect;
(b) Lender shall have received a true, correct and complete copy of the
(i) Management Agreement, (ii) OED I Operating Agreement, as amended, (iii) OED
Operating Agreement, (iv) OED I Purchase Agreements and (v) the Certificate of
Cancellation of OED II, together with a certificate of the Secretary of Borrower
certifying each such document as being a true, correct and complete copy
thereof, and each such document shall be satisfactory to Lender;
(c) The representations and warranties in this Amendment and the Loan
Agreement shall be true and correct, in all material respects, on and as of the
date hereof, except to the extent such representations and warranties expressly
relate to an earlier date, in which case such representations and warranties
were, to the extent, true and correct, in all material respects, as of such
earlier date;
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(d) After giving effect to this Amendment, no Event of Default or event
which with the giving of notice or passage of time would constitute an Event of
Default shall have occurred and be continuing on the date hereof, nor shall
result from the consummation of the transactions contemplated herein; and
(e) No injunction, writ, restraining order, or other order of any
nature prohibiting, directly or indirectly, the consummation of the transactions
contemplated herein shall have been issued and remain in force by any
Governmental Authority against Borrower or Lender, or any of their Affiliates.
6. Representations and Warranties. Borrower hereby represents and
warrants to Lender that (a) the execution, delivery, and performance of this
Amendment and of the Loan Agreement, as amended by this Amendment, are within
Borrower's powers, have been duly authorized by all necessary action, and are
not in contravention of any law, rule, or regulation, or any order, judgment,
decree, writ, injunction, or award of any arbitrator, court, or Governmental
Authority, or of the terms of its Governing Documents, or of any contract or
undertaking to which it is a party or by which any of its properties may be
bound or affected, (b) this Amendment and the Loan Agreement, as amended by this
Amendment, constitute Borrower's legal, valid, and binding obligation,
enforceable against Borrower in accordance with its terms, and (c) this
Amendment has been duly executed and delivered by Borrower.
7. Choice of Law. The validity of this Amendment, its construction,
interpretation and enforcement, the rights of the parties hereunder, shall be
determined under, governed by, and construed in accordance with the laws of the
State of California.
8. Counterparts; Telefacsimile Execution. This Amendment may be
executed in any number of counterparts and by different parties and separate
counterparts, each of which when so executed and delivered, shall be deemed an
original, and all of which, when taken together, shall constitute one and the
same agreement. Delivery of an executed counterpart of this Amendment by
telefacsimile shall be equally as effective as delivery of an original executed
counterpart of this Amendment. Any party delivering an executed counterpart of
this Amendment by telefacsimile also shall deliver an original executed
counterpart of this Amendment, but the failure to deliver an original executed
counterpart shall not affect the validity, enforceability, and binding effect of
this Amendment.
9. Effect on Loan Documents.
(a) The Loan Agreement, as amended hereby, and the other Loan Documents
shall be and remain in full force and effect in accordance with their respective
terms and hereby are ratified and confirmed in all respects. The execution,
delivery, and performance of this Amendment shall not, except as expressly set
forth herein, operate as a waiver or amendment of, any right, power, or remedy
of Lender under the Loan Agreement, as in effect prior to the date hereof. The
amendments and waivers herein are limited to the specifics hereof, shall not
apply with respect to any facts or occurrences other than those on which the
same are based, shall not excuse future non-compliance with the Loan Agreement,
and shall not operate as an amendment or waiver to any further or other matter
under the Loan Documents.
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(b) Upon and after the effectiveness of this Amendment, each reference
in the Loan Agreement to "this Agreement", "hereunder", "herein", "hereof" or
words of like import referring to the Loan Agreement, and each reference in the
other Loan Documents to "the Agreement", "thereunder", "therein", "thereof" or
words of like import referring to the Loan Agreement, shall mean and be a
reference to the Loan Agreement as modified hereby.
(c) To the extent that any terms and conditions in any of the Loan
Documents shall contradict or be in conflict with any terms or conditions of the
Loan Agreement, after giving effect to this Amendment, such terms and conditions
are hereby deemed modified or amended accordingly to reflect the terms and
conditions of the Loan Agreement as modified or amended hereby.
10. Further Assurances. Borrower shall execute and deliver all
agreements, documents, and instruments, in form and substance reasonably
satisfactory to Lender, and take all actions as Lender may reasonably request
from time to time, to perfect and maintain the perfection of Lender's security
interests in the Collateral and to fully consummate the transactions
contemplated under this Amendment and the Loan Agreement.
11. Entire Agreement. This Amendment, together with all other
instruments, agreements, and certificates executed by the parties in connection
herewith or with reference thereto, embody the entire understanding and
agreement between the parties hereto and thereto with respect to the subject
matter hereof and thereof and supersede all prior agreements, understandings,
and inducements, whether express or implied, oral or written.
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IN WITNESS WHEREOF, the parties have entered into this Agreement as of
the date first above written.
PENINSULA GAMING COMPANY, LLC, a
Delaware limited liability company
By:
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Name:
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Title:
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FOOTHILL CAPITAL CORPORATION,
a California corporation
By:
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Name:
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Title:
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SCHEDULE 5.8(C)
CAPITALIZATION OF BORROWER'S SUBSIDIARIES
PENINSULA GAMING CORPORATION
- 100% of Common Stock issued and outstanding are owned by
the Borrower
OED ACQUISITION, LLC
- 100% of the Interests issued and outstanding are owned by
the Borrower
The Old Xxxxxxxxxx Xxxxx, X.X.
- 100% of the Interests issued and outstanding are owned by
OED Acquisition LLC
The Old Xxxxxxxxxx Xxxxx Capital Corp.
- 100% of the Interests issued and outstanding are owned by
The Old Xxxxxxxxxx Xxxxx, X.X.
