EXHIBIT 10.2
AMENDMENT NUMBER TWO
TO LOAN AND SECURITY AGREEMENT
This AMENDMENT NUMBER TWO TO LOAN AND SECURITY AGREEMENT (this
"AMENDMENT") is entered into as of October 16, 2002, by and between FOOTHILL
CAPITAL CORPORATION, a California corporation ("LENDER"), and PENINSULA GAMING
COMPANY, LLC, a Delaware limited liability company ("BORROWER"), with reference
to the following:
WHEREAS, Lender and Borrower have entered into that certain Loan and
Security Agreement, dated as of February 23, 2001, as amended by that certain
letter agreement, dated as of March 8, 2001, as further amended by that certain
Amendment Number One to Loan and Security Agreement, dated as of February 15,
2002, and as further 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, subject to the terms and conditions set forth herein, Borrower
and Lender have decided to amend the Loan Agreement as provided 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 hereby is amended by adding the
following defined terms thereto in proper alphabetical order:
"PERMANENT PAYDOWN AMOUNT" means the amount set forth in the
following table for the applicable period set forth opposite thereto:
------------------------------ ----------------------------------------
APPLICABLE AMOUNT APPLICABLE PERIOD
------------------------------ ----------------------------------------
$50,000 October 21, 2002 through
November 14, 2002
------------------------------ ----------------------------------------
$100,000 November 15, 2002 through
December 14, 2002
------------------------------ ----------------------------------------
$150,000 December 15, 2002 through
January 14, 2003
------------------------------ ----------------------------------------
$200,000 January 15, 2003 through
February 14, 2003
------------------------------ ----------------------------------------
$250,000 February 15, 2003 through
March 14, 2003
------------------------------ ----------------------------------------
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------------------------------ ----------------------------------------
$300,000 March 15, 2003 through
April 14, 2003
------------------------------ ----------------------------------------
$350,000 April 15, 2003 through
May 14, 2003
------------------------------ ----------------------------------------
$400,000 May 15, 2003 through
June 14, 2003
------------------------------ ----------------------------------------
$450,000 June 15, 2003 through
July 14, 2003
------------------------------ ----------------------------------------
$500,000 July 15, 2003 through
August 14, 2003
------------------------------ ----------------------------------------
$550,000 August 15, 2003 through
September 14, 2003
------------------------------ ----------------------------------------
$600,000 September 15, 2003 through
October 14, 2003
------------------------------ ----------------------------------------
$650,000 October 15, 2003 through
November 14, 2003
------------------------------ ----------------------------------------
$700,000 November 15, 2003 through
December 14, 2003
------------------------------ ----------------------------------------
$750,000 December 15, 2003 through
January 14, 2004
------------------------------ ----------------------------------------
$800,000 January 15, 2004 through
February 14, 2004
------------------------------ ----------------------------------------
$850,000 February 15, 2004 through
March 14, 2004
------------------------------ ----------------------------------------
$900,000 March 15, 2004 through
April 14, 2004
------------------------------ ----------------------------------------
$950,000 April 15, 2004 through
May 14, 2004
------------------------------ ----------------------------------------
$1,000,000 May 15, 2004 through
June 14, 2004
------------------------------ ----------------------------------------
$1,050,000 June 15, 2004 through
July 14, 2004
------------------------------ ----------------------------------------
$1,100,000 July 15, 2004 through
August 14, 2004
------------------------------ ----------------------------------------
$1,150,000 August 15, 2004 through
September 14, 2004
------------------------------ ----------------------------------------
$1,200,000 September 15, 2004 through
October 14, 2004
------------------------------ ----------------------------------------
$1,250,000 October 15, 2004 through
November 14, 2004
------------------------------ ----------------------------------------
$1,300,000 November 15, 2004 through
December 14, 2004
------------------------------ ----------------------------------------
$1,350,000 December 15, 2004 through
January 14, 2005
------------------------------ ----------------------------------------
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------------------------------ ----------------------------------------
$1,400,000 January 15, 2005 through
the February 14, 2005
------------------------------ ----------------------------------------
$1,450,000 February 15, 2003 through
the Maturity Date"
------------------------------ ----------------------------------------
"SECOND AMENDMENT" means that certain Amendment Number Two to
Loan and Security Agreement, dated as of October 16, 2002, by and
between Borrower and Lender."
"SECOND AMENDMENT EFFECTIVE DATE" means the date that all of
the conditions set forth in SECTION 3 of the Second Amendment shall be
satisfied (or waived by Lender in writing in its sole discretion)."
(b) The definition of "MAXIMUM REVOLVER AMOUNT" hereby is amended by
deleting the text "$12,500,000" appearing in such definition and inserting the
text "$12,500,000 MINUS the Permanent Paydown Amount".
3. CONDITIONS PRECEDENT TO EFFECTIVENESS OF AMENDMENT. The prior or
concurrent satisfaction of each of the following shall constitute conditions
precedent to the effectiveness of this Amendment:
(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 the reaffirmation and consent attached
hereto as EXHIBIT "A" duly executed by OED I, which shall be in full force and
effect;
(c) The representations and warranties in this Amendment, the Loan
Agreement, and the other Loan Documents 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 such extent, true and correct,
in all material respects, as of such earlier date;
(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.
4. 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
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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.
5. 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.
6. 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.
7. 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 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, as in effect prior to the date
hereof. The consents and modifications 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 a modification or consent to any
further or other matter under the Loan Documents.
(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 and amended 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
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deemed modified or amended accordingly to reflect the terms and conditions of
the Loan Agreement as modified or amended hereby.
8. 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.
9. 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 Amendment as of
the date first above written.
PENINSULA GAMING COMPANY, LLC, a Delaware
limited liability company
By /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
-----------------------------------------
Title: Chief Financial Officer
----------------------------------------
FOOTHILL CAPITAL CORPORATION,
a California corporation
By /s/ Xxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxxx
-----------------------------------------
Title: S.V.P.
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