SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT
SIXTH
AMENDMENT TO LOAN AND SECURITY AGREEMENT
This
SIXTH AMENDMENT TO LOAN AND SECURITY AGREEMENT (this “Amendment”) is
entered into as of October 6, 2008, among XXXXXXX XX, LLC (formerly
known as Peninsula Gaming Company, LLC), a Delaware limited liability company
(“DJL”), THE OLD XXXXXXXXXX XXXXX,
L.L.C., a Louisiana limited liability company (“OED”, and together
with DJL, referred to hereinafter each individually as a “Borrower”, and
individually and collectively, as “Borrowers”), PENINSULA GAMING, LLC, a
Delaware limited liability company (“PGL”), PENINSULA GAMING CORP., a
Delaware corporation (“PGC”, and together
with PGL, referred to hereinafter each individually as a “Guarantor”, and
individually and collectively, as “Guarantors”), the
Lenders (as defined in the hereinafter defined Loan Agreement) signatories
hereto, and XXXXX FARGO
FOOTHILL, INC., a California corporation, as the arranger and agent for
the Lenders (“Agent”). Concurrently
with the execution of this Amendment, CIT LENDING SERVICES CORPORATION will
become a party to the Loan Agreement referred to below as an additional Lender,
and will be designated as Syndication Agent for the credit facilities
therein.
W
I T N E S S E T H:
WHEREAS,
Borrowers, Agent, and the Lenders are parties to that certain Loan and Security
Agreement dated as of June 16, 2004, as amended by that certain First Amendment
to Loan and Security Agreement dated as of November 10, 2004, that certain
Second Amendment to Loan and Security Agreement dated as of July 12, 2005, that
certain Third Amendment to Loan and Security Agreement and Consent dated as of
December 6, 2006, that certain Fourth Amendment to Loan and Security Agreement
and Consent, dated as of December 22, 2006, and that certain Fifth Amendment to
Loan and Security Agreement, dated as of June 30, 2008 and as supplemented by
that certain Borrower Supplement No. 1 dated as of May 13, 2005 (as amended and
supplemented and as otherwise amended, restated, supplemented or otherwise
modified from time to time, the “Loan Agreement”;
capitalized terms used herein and not otherwise defined herein shall have the
meanings ascribed to such terms in the Loan Agreement), pursuant to which the
Lender Group has agreed to make the Advances and other extensions of credit to
Borrowers from time to time pursuant to the terms and conditions thereof and the
other Loan Documents;
WHEREAS,
Borrowers requested that certain terms and conditions of the Loan Agreement be
amended, and the Lender Group and, by their respective acknowledgment hereof,
Guarantors have agreed to the requested amendments on the terms and conditions
provided herein;
NOW
THEREFORE, in consideration of the foregoing premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
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1. Amendments to the Loan
Agreement.
(a) Section
1.1 of the Loan Agreement, Definitions, is
hereby modified and amended by amending and restating the definitions of “Applicable Margin”
and “Required
Lenders” in their entirety as follows:
““Applicable Margin”
means, as of any date of determination, effective as of the Sixth Amendment
Effective Date, (a) in the case of Base Rate Loans, 2.50%, (b) in the case of
LIBOR Rate Loans, 4.00% and (c) in the case of Letter of Credit fees,
4.00%.
“Required Lenders”
means, Lenders whose Pro Rata Shares aggregate 51% of the Commitments, or, if
the Commitments have been terminated, 51% of the Obligations outstandings, provided, however, that at such
time as Lenders other than Xxxxx Fargo Foothill, Inc. and its Affiliates hold
aggregate Commitments or outstanding Obligations which are less than 51% of the
total, each Lender holding 20% or more of the Commitments or Obligations must be
included in the Required Lenders.”
(b) Section
1.1 of the Loan Agreement, Definitions, is
hereby further modified and amended by adding the following definitions thereto
in the appropriate alphabetical order:
““Sixth Amendment”
means that certain Sixth Amendment to Loan and Security Agreement, dated as of
the Sixth Amendment Effective Date, among Borrowers, Guarantors, Lenders party
thereto and Agent.
“Sixth Amendment Effective
Date” means October 6, 2008.”
(c) Section
2.3(e) of the Loan Agreement, Agent Advances, is
hereby modified and amended by deleting such subsection in its entirety and
inserting the following in lieu thereof:
“(e) Swing Line Loans and
Optional Overadvances. Without the consent of the Required
Lenders, Agent shall have no authority to make any Swing Line Loans,
Overadvances or other amounts available hereunder in excess of the formula
determined by the Commitments and the Borrowing Base, and no Lender shall have
any obligation to participate in any such Advance made by Agent.”
(d) Section 2.3(i) of the Loan
Agreement, Optional
Overadvances, is hereby modified and amended by deleting such subsection
in its entirety and inserting the following in lieu thereof:
“(i) Intentionally
Omitted.”
(e) Section
2.4(b) of the Loan Agreement, Apportionment, Application
and Reversal of Payments, is hereby modified and amended by (i) deleting
clause (C) in its entirety and inserting “(C) Intentionally
Omitted.” in lieu thereof, (ii) deleting clause (E) in its entirety and
inserting “(E) Intentionally
Omitted.” in lieu thereof and (iii) deleting clause (G) in its entirety
and inserting “(G) Intentionally
Omitted.” in lieu thereof.
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(f) Section
2.11(c) of the Loan Agreement, Unused Line Fee, is
hereby modified and amended by deleting such subsection in its entirety and
inserting the following in lieu thereof:
“(c) Unused Line Fee. On
the first day of each quarter during the term of this Agreement, an unused line
fee payable quarterly in arrears (for the account of the Revolving Lenders in
accordance with their Pro Rata Shares of the Revolver Commitment) in an amount
equal to 0.625% per annum times the result of (x) the Maximum Revolver Amount,
less (y) the sum of (1) the average Daily Balance of Advances that were
outstanding during the immediately preceding quarter, plus (2) the average Daily
Balance of the Letter of Credit Usage during the immediately preceding
quarter.”
(g) Section
7.20(a) of the Loan Agreement, Minimum Combined
EBITDA, is hereby modified and amended by deleting such subsection in its
entirety and inserting the following in lieu thereof:
“(a) Minimum Combined EBITDA. For the 12 fiscal month period
ended on June 30, 2008, and on the last day of each fiscal quarter ended
thereafter, fail to maintain an aggregate amount of Combined EBITDA, measured on
a fiscal quarter-end basis, of at least $40,000,000 for fiscal year 2008,
$42,000,000 for fiscal year 2009 and $44,000,000 for fiscal year 2010 and
thereafter.”
(h) Section
14.1(a) of the Loan Agreement, Assignments and
Participations, is hereby modified and amended by deleting such
subsection in its entirety and inserting the following in lieu
thereof:
“(a) Each
Lender may, with the written consent of Agent (provided that no
written consent of Agent shall be required in connection with any assignment and
delegation by a Lender to an Eligible Transferee or an Affiliate of a Lender),
and, so long as no Event of Default then exists, Borrowers, assign and delegate
to one or more assignees (each an “Assignee”) all, or
any ratable part of all, of the Obligations, the Commitments and the other
rights and obligations of such Lender hereunder and under the other Loan
Documents, in a minimum amount of $5,000,000 (except that such minimum amount
shall not apply to an Affiliate of a Lender); provided, however, that Agent’s
and Borrowers’ consent shall not be unreasonably withheld, conditioned or
delayed; and provided further that that
Borrowers and Agent may continue to deal solely and directly with such Lender in
connection with the interest so assigned to an Assignee until (i) written notice
of such assignment,
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together
with payment instructions, addresses, and related information with respect to
the Assignee, have been given to Borrowers and Agent by such Lender and the
Assignee, (ii) such Lender and its Assignee have delivered to Borrowers and
Agent an Assignment and Acceptance in form and substance reasonably satisfactory
to Agent, and (iii) the assignor Lender or Assignee has paid to Agent for
Agent’s separate account a processing fee in the amount of
$3,500. Anything contained herein to the contrary notwithstanding,
the consent of Agent shall not be required and payments of any fees shall not be
required if (x) such assignment is in connection with any merger, consolidation,
sale, transfer, or other disposition of all or any substantial portion of the
business or loan portfolio of such Lender or (y) the assignee is an Affiliate
(other than individual(s)) of a Lender. Anything contained herein to
the contrary notwithstanding, Xxxxx Fargo Foothill agrees for the benefit of
Borrowers that, so long as no Event of Default has occurred and is continuing,
Xxxxx Fargo Foothill shall retain at least fifty-one percent (51%) of the
Obligations and commitment to make Advances under Section 2.1 of this
Agreement, provided, however, that, the
minimum retention of Obligations and commitment to make Advances shall not be
applicable if such assignment is in connection with any merger, consolidation,
sale, transfer, or other disposition of all or any substantial portion of the
business or loan portfolio of Xxxxx Fargo Foothill.”
(i) Section
16.1 of the Loan Agreement, Appointment and
Authorization of Agent, is hereby modified and amended by deleting such
section in its entirety and inserting the following in lieu
thereof:
“16.1 Appointment
and Authorization of Agent; Syndication Agent.
(a) Appointment and Authorization of
Agent. Each Lender hereby designates and appoints Xxxxx Fargo
Foothill as its representative under this Agreement and the other Loan Documents
and each Lender hereby irrevocably authorizes Agent to take such action on its
behalf under the provisions of this Agreement and each other Loan Document and
to exercise such powers and perform such duties as are expressly delegated to
Agent by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto. Agent agrees to act
as such on the express conditions contained in this Section
16. The provisions of this Section 16 are solely
for the benefit of Agent, and the Lenders, and Borrowers shall have no rights as
a third party beneficiary of any of the provisions contained
herein. Any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document notwithstanding, Agent shall not have
any duties or responsibilities, except those expressly set forth herein, nor
shall Agent have or be deemed to have any fiduciary relationship with any
Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or any other Loan
Document
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or
otherwise exist against Agent; it being expressly understood and agreed that the
use of the word “Agent” is for convenience only, that Xxxxx Fargo Foothill is
merely the representative of the Lenders, and only has the contractual duties
set forth herein. Except as expressly otherwise provided in this
Agreement and the other Loan Documents, Agent shall have and may use its sole
discretion with respect to exercising or refraining from exercising any
discretionary rights or taking or refraining from taking any actions that Agent
expressly is entitled to take or assert under or pursuant to this Agreement and
the other Loan Documents, provided that Agent
shall refrain from or take actions as directed by the Required Lenders as
provided hereunder. Without limiting the generality of the foregoing,
or of any other provision of the Loan Documents that provides rights or powers
to Agent, the Lenders agree that Agent shall have the right to exercise the
following powers as long as this Agreement remains in effect: (i)
maintain, in accordance with its customary business practices, ledgers and
records reflecting the status of the Obligations, the Collateral, the
Collections of Borrowers and their Subsidiaries, and related matters, (ii)
execute or file any and all financing or similar statements or notices,
amendments, renewals, supplements, documents, instruments, proofs of claim,
notices and other written agreements with respect to the Loan Documents, (iii)
make Advances, for the account of the Lenders as provided in the Loan Documents,
(iv) exclusively receive, apply, and distribute the Collections of Borrowers and
their Subsidiaries as provided in the Loan Documents, (v) open and maintain such
bank accounts and cash management accounts as Agent deems necessary and
appropriate in accordance with the Loan Documents for the foregoing purposes
with respect to the Collateral and the Collections of Borrowers and their
Subsidiaries, (vi) perform, exercise, and enforce any and all other rights and
remedies of the Lender Group with respect to Borrowers, the Obligations, the
Collateral, the Collections of Borrowers and their Subsidiaries or otherwise
related to any of same as provided in the Loan Documents, and (vii) incur and
pay such Lender Group Expenses as Agent may deem necessary or appropriate for
the performance and fulfillment of its functions and powers pursuant to the Loan
Documents.
(b) Syndication
Agent. As of the Sixth Amendment Date, each Lender hereby
designates and appoints CIT Lending Services Corporation as Syndication Agent
under this Agreement and the other Loan Documents and the cover page of this
Agreement is amended to reflect such designation and appointment. In
its capacity as Syndication Agent, CIT Lending Services Corporation shall have
no additional rights, powers, obligations, liabilities, responsibilities or
duties under this Agreement or any other Loan Document other than those
applicable to all Lenders as such.”
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2. No Other Amendments or
Waivers. Except in connection with the amendments set forth
above, the execution, delivery and effectiveness of this Amendment shall not
operate asan amendment of any right, power or remedy of Agent or the
Lenders under the Loan Agreement or any of the other Loan Documents, nor
constitute a waiver of any provision of the Loan Agreement or any of the other
Loan Documents. Except for the amendments set forth above, the text
of the Loan Agreement (including, without limitation, the schedules thereto) and
all other Loan Documents shall remain unchanged and in full force and effect and
Borrowers and Guarantors hereby ratify and confirm their respective obligations
thereunder. This Amendment shall not constitute a modification of the
Loan Agreement or any of the other Loan Documents or a course of dealing with
Agent or the Lenders at variance with the Loan Agreement or the other Loan
Documents such as to require further notice by Agent or the Lenders to require
strict compliance with the terms of the Loan Agreement and the other Loan
Documents in the future, except as expressly set forth
herein. Borrowers and Guarantors acknowledge and expressly agree that
Agent and the Lenders reserve the right to, and do in fact, require strict
compliance with all terms and provisions of the Loan Agreement and the other
Loan Documents, as amended herein. Neither Borrowers nor Guarantors
have any knowledge of any challenge to Agent’s or any Lender’s claims arising
under the Loan Documents, or to the effectiveness of the Loan
Documents.
3. Conditions Precedent to
Effectiveness. This Amendment shall become effective as of the
date hereof when, and only when, Agent shall have received, in form and
substance satisfactory to Agent:
(a) counterparts
of this Amendment duly executed and delivered by Borrowers, Agent and the
Lenders;
(b) an
Assignment and Acceptance, duly executed and delivered by CIT Lending Services
Corporation (“CIT”) and the
assignor party thereto, providing for the sale and assignment by such assignor
to CIT of such assignor’s rights and obligations under the Loan Documents with
respect to not less than $20,000,000 of such assignor’s portion of the Revolver
Commitment; and
(c) such
other information, documents, instruments or approvals as Agent or Agent’s
counsel may reasonably require.
4. Representations and
Warranties of Borrowers. In consideration of the execution and
delivery of this Amendment by Agent and the Lenders, each Borrower and each
Guarantor (Borrowers and Guarantors are referred to hereinafter collectively as
the “Loan
Parties” and each as a “Loan Party”) hereby
represents and warrants in favor of Agent and the Lenders as
follows:
(a) as to
each Loan Party, the execution, delivery, and performance by such Loan Party of
this Amendment have been duly authorized by all necessary action on the part of
such Loan Party;
(b) as to
each Loan Party, the execution, delivery, and performance by such Loan Party of
this Amendment do not and will not (i) violate any provision of federal, state,
or local law or regulation applicable to such Loan Party, the Governing
Documents of any Loan Party, or any order, judgment, or decree of any court or
other Governmental Authority binding on such Loan Party, (ii) conflict with,
result in a breach of, or constitute (with due notice or lapse of time
or both) a default under any material contractual obligation of such Loan Party
(including any of the Senior Note Documents), (iii) result in or require the
creation or imposition of any Lien of any nature whatsoever upon any properties
or assets of such Loan Party, other than Permitted Liens, or (iv) require any
approval of such Loan Party’s members or shareholders or any approval or consent
of any Person under any material contractual obligation of such Loan
Party;
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(c) the
execution, delivery, and performance by such Loan Party of this Amendment do not
and will not require any registration with, consent or approval of, notice to,
or other action with or by, any Governmental Authority or other Person, other
than any consent or approval that has been obtained and remains in full force
and effect;
(d) as to
each Loan Party, the Loan Documents to which such Loan Party is a party
(including, without limitation, the Loan Agreement, this Amendment and all other
documents contemplated hereby), when executed and delivered by such Loan Party,
will be the legally valid and binding obligations of such Loan Party,
enforceable against such Loan Party in accordance with their respective terms,
except as enforcement may be limited by equitable principles or by bankruptcy,
insolvency, reorganization, moratorium, or similar laws relating to or limiting
creditors’ rights generally;
(e) no
Default or Event of Default exists under the Loan Agreement or the other Loan
Documents;
(f) as of the
date hereof, all representations and warranties of each Loan Party set forth in
the Loan Agreement and the other Loan Documents are true, correct and complete
in all material respects, except to the extent such representation or warranty
expressly relates to an earlier date (in which case such statement was true and
correct on and as of such earlier date); and
(g) the land
described in the Mortgages issued by Borrowers to Agent to secure the
Obligations of Borrowers under the Loan Agreement includes all of the land owned
or leased by Borrowers and their Subsidiaries (other than Excluded Assets) under
(i) the DJL casino in Dubuque, Iowa, (ii) OED in St. Landry Parish, Louisiana,
and (iii) without limitation on the foregoing, the proposed new land-based
location for the DJL casino in Dubuque, Iowa.
5. Counterparts. This
Amendment may be executed in multiple counterparts, each of which shall be
deemed to be an original and all of which, taken together, shall constitute one
and the same agreement. In proving this Amendment in any judicial
proceedings, it shall not be necessary to produce or account for more than one
such counterpart signed by the party against whom such enforcement is
sought. Any signatures delivered by a party by facsimile transmission
or by other electronic transmission shall be deemed an original signature
hereto.
6. Reference to and Effect on
the Loan Documents. Upon the effectiveness of this Amendment,
on and after the date hereof, each reference in the Loan Agreement to “this
Agreement,” “hereunder,” “hereof” or words of like import referring to the Loan
Agreement, and each reference in the other Loan Documents to “the Loan
Agreement” “thereunder,” “thereof” or words of
like import referring to the Loan Agreement, shall mean and be a reference to
the Loan Agreement as amended hereby.
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7. Affirmation of
Guaranty. By executing this Amendment, each Guarantor hereby
acknowledges, consents and agrees that all of its obligations and liability
under the Guaranty to which it is a party and the other Loan Documents to which
it is a party remain in full force and effect, and that the execution and
delivery of this Amendment and any and all documents executed in connection
herewith shall not alter, amend, reduce or modify its obligations and liability
under such Guaranty or any of the other Loan Documents to which it is a
party.
8. Costs, Expenses and
Taxes. Borrowers agree, jointly and severally, to pay on
demand all costs and expenses in connection with the preparation, execution, and
delivery of this Amendment and the other instruments and documents to be
delivered hereunder, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel for Agent with respect thereto and with
respect to advising Agent as to its rights and responsibilities hereunder and
thereunder. In addition, Borrowers agree, jointly and severally, to
pay any and all stamp and other taxes payable or determined to be payable in
connection with the execution and delivery of this Amendment and the other
instruments and documents to be delivered hereunder, and agree to save Agent and
the Lenders harmless from and against any and all liabilities with respect to or
resulting from any delay in paying or omission to pay such
taxes. Borrowers hereby acknowledge and agree that Agent may, without
prior notice to Borrowers, charge such costs and fees to Borrowers’ Loan Account
pursuant to Section 2.6(d) of the Loan Agreement.
9. Section
Titles. The section titles contained in this Amendment are
included for the sake of convenience only, shall be without substantive meaning
or content of any kind whatsoever, and are not a part of the agreement between
the parties.
10. Entire
Agreement. This Amendment and the other Loan Documents
constitute the entire agreement and understanding between the parties hereto
with respect to the transactions contemplated hereby and thereby and supersede
all prior negotiations, understandings and agreements between such parties with
respect to such transactions.
11. GOVERNING
LAW. THE VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AMENDMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
12. Loan
Document. This Amendment shall be deemed to be a Loan Document
for all purposes.
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IN WITNESS WHEREOF, the parties hereto
have executed and delivered this Amendment as of the day and year first written
above.
|
BORROWERS:
|
XXXXXXX XX, LLC, a
Delaware limited liability company
|
By: s/Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
CFO
THE OLD XXXXXXXXXX XXXXX,
L.L.C.,
a
Louisiana limited liability company
By: s/Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
CFO
AGENT AND
LENDERS: XXXXX FARGO FOOTHILL,
INC.,
a
California corporation, as Agent and as a Lender
By: s/Xxxxxxx
XxXxxxxxx
Name:
Xxxxxxx XxXxxxxxx
Title:
V.P.
Sixth Amendment to Loan and Security
Agreement
10
ACKNOWLEDGED
AND AGREED:
GUARANTORS: PENINSULA GAMING, LLC, a
Delaware limited liability company
By: s/Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
CFO
PENINSULA GAMING CORP.
(formerly known
as The Old Xxxxxxxxxx
Xxxxx Capital Corp.), a Delaware corporation
By: s/Xxxxxxx
Xxxxxxx
Name:
Xxxxxxx Xxxxxxx
Title:
CFO
Sixth Amendment to Loan and Security
Agreement
11
