EXHIBIT 10.1
AMENDMENT NUMBER ONE
TO LOAN AND SECURITY AGREEMENT
This AMENDMENT NUMBER ONE TO LOAN AND SECURITY AGREEMENT (this
"Amendment") is entered into as of February 15, 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, 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, Borrower has requested that Lender amend the Loan Agreement to
(i) permit Borrower to form and acquire a 100% interest in OED Acquisition, LLC,
a Delaware limited liability company; (ii) permit OED Acquisition, LLC to form
and acquire a 50% interest in OED Acquisition II, LLC, a Delaware limited
liability company, and (iii) increase the Maximum Revolver Amount to
$12,500,000.
WHEREAS, subject to the terms and conditions set forth herein, Lender
is willing to so amend the Loan Agreement.
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:
"BORROWER PLEDGE AGREEMENT" means a pledge agreement, in form
and substance satisfactory to Lender, executed and delivered by
Borrower to Lender with respect to the pledge of the Stock owned by
Borrower in OED I.
"FIRST AMENDMENT" means that certain Amendment Number One to
Loan and Security Agreement, dated as of February 15, 2002, by and
between Borrower and Lender.
"FIRST AMENDMENT EFFECTIVE DATE" means the date that all of
the conditions set forth in SECTION 3 of the First Amendment shall be
satisfied (or waived by Lender in writing in its sole discretion).
"GUARANTY" means that certain General Continuing Guaranty,
dated as of February 15, 2002, executed by OED I in favor of Lender, in
form and substance satisfactory to Lender.
"GUARANTOR SECURITY AGREEMENT" means that certain Guarantor
Security Agreement, dated as of February 15, 2002, executed between OED
I and Lender, in form and substance satisfactory to Lender.
"OED I" means OED Acquisition, LLC, a Delaware limited
liability company.
"OED II" means OED Acquisition II, LLC, a Delaware limited
liability company.
"OED I ASSIGNMENT AGREEMENT" means that certain Assignment
Agreement, dated as of October 23, 2001, by and between Gaming Partners
and OED I.
"OED I OPERATING AGREEMENT" means that certain Limited
Liability Company Agreement, dated as of February 15, 2002, of OED I.
"OED II OPERATING AGREEMENT" means that certain Operating
Agreement, dated as of February 15, 2002, by and among OED I, OED II,
and Xxxxxxx X. Xxxxxxx, XX Family L.L.C., a Louisiana limited liability
company.
"OED I PLEDGE AGREEMENT" means a pledge agreement, in form and
substance satisfactory to Lender, executed and delivered by OED I to
Lender with respect to the pledge of the Stock owned by OED I in OED
II.
"OED I PURCHASE AGREEMENT" means that certain Purchase
Agreement, dated as of June 27, 2001, by and among BIM3 Investments,
The Old Xxxxxxxxxx Xxxxx, L.C., and Gaming Partners.
"OED TRANSACTION DOCUMENTS" means the OED I Operating
Agreement, the OED II Operating Agreement, the OED I Purchase
Agreement, and the OED I Assignment Agreement.
"PERMITTED OED ACQUISITION" means the formation of OED I and
OED II, the acquisition by Borrower of 100% of the Stock of OED
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I, the acquisition by OED I of 50% of the Stock of OED II, and all
related transactions set forth in the OED Transaction Documents.
(b) The following definitions contained in SECTION 1.1 of the Loan
Agreement hereby are amended and restated in their entirety to read as follows:
"LOAN DOCUMENTS" means this Agreement, the Borrower Pledge
Agreement, the Xxxxxxx Xx Ship Mortgage, the Fee Letter, the Guaranty,
the Guarantor Security Agreement, the Letters of Credit, the Mortgages,
the OED I Pledge Agreement, 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, any Guaranty or Guarantor Security Agreement executed or
entered into in connection with this Agreement in favor of Lender, and
any other agreement entered into, now or in the future, by Borrower and
Lender in connection with this Agreement.
"RESTRICTED SUBSIDIARY" means OED I and each other Subsidiary
of Borrower that is not an Unrestricted Subsidiary.
(c) The definition of "MAXIMUM REVOLVER AMOUNT" hereby is amended by
deleting the text "$10,000,000" appearing in such definition and inserting the
text "$12,500,000" in lieu thereof.
(d) The definition of "PERMITTED INVESTMENTS" hereby is amended by (i)
deleting "and," appearing at the end of subsection (k), (ii) deleting the period
at the end of subsection (l) and replacing it with "; and", and (iii) adding the
following new subsection (m) immediately after subsection (l) appearing in such
definition:
(m) the Permitted OED Acquisition.
(e) SECTION 7.6 of the Loan Agreement hereby is amended by (i) deleting
"and," appearing at the end of subsection (c), (ii) deleting the period at the
end of subsection (d) and replacing it with "; and", and (iii) adding the
following new subsection (e) immediately after subsection (d) appearing in such
Section:
(e) guarantees under the Guaranty.
(f) SECTION 7.8 of the Loan Agreement hereby is amended by (i) deleting
"and" appearing at the end of subsection (a), (ii) deleting the period at the
end of subsection (b) and replacing it with "; and", and (iii) adding the
following new subsection (c) immediately after subsection (b) appearing in such
Section:
(c) Directly or indirectly amend, modify, alter, increase, or
change any of the terms or conditions of (i) the OED I Operating
Agreement, including, without limitation, Section 13(c) relating to
transfers of interest to Lender, Section 17(k) entitled "Article 8
Opt-
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In", and Section 17(l) entitled "Loan Agreement", (ii) the OED II
Operation Agreement, including, without limitation, Section 10.17
entitled "Loan Agreement", Section 15.20 entitled "Article 8 Opt-in",
and Section 5(f) relating to amendments and modifications, (iii) the
Certificate of Formation of OED I, or (iv) the Certificate of Formation
of OED II.
(g) SCHEDULE 5.8(C) of the Loan Agreement hereby is 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. 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 an amendment and consent fee in an
amount equal to $25,000, which amount is due and payable in full on the First
Amendment Effective Date and shall be charged to the Loan Account;
(c) Lender shall have received copies of each of the OED Transaction
Documents, the Certificate of Formation of OED I, and the Certification of
Formation 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 in its Permitted
Discretion;
(d) Lender shall have received evidence satisfactory to Lender that the
Permitted OED Acquisition has been consummated pursuant to the terms of the OED
Transaction Documents;
(e) Lender shall have received the Borrower Pledge Agreement and the
OED I Pledge Agreement, together with the delivery of copies of certificates
representing such shares of Stock with attached copies of Stock powers endorsed
in blank;
(f) Lender shall have received the Guaranty and the Guarantor Security
Agreement;
(g) Lender shall have sent for filing a financing statement against OED
I in favor of Lender in the state of Delaware;
(h) 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
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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;
(i) 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
(j) 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. CONDITION SUBSEQUENT TO EFFECTIVENESS OF AMENDMENT. The satisfaction
of the following shall constitute conditions subsequent to the continued
effectiveness of this Amendment (the failure of such condition to be satisfied
constituting an Event of Default):
(a) By February 19, 2002, Lender shall have received originals of the
certificates and Stock powers endorsed in blank referenced in SECTION 3(E)
above; and
(b) By February 25, 2002, Lender shall have received confirmation that
the financing statement filed against OED in favor of Lender has been filed in
the state of Delaware.
5. 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.
6. 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.
7. 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
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Amendment, but the failure to deliver an original executed counterpart shall not
affect the validity, enforceability, and binding effect of this Amendment.
8. 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 deemed modified or amended accordingly to reflect the terms and
conditions of the Loan Agreement as modified or amended hereby.
9. 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.
10. 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
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Name: Xxxxxxx X. Xxxxxxx
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Title: Chief Financial Officer
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FOOTHILL CAPITAL CORPORATION,
a California corporation
By /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
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Title: S.V.P.
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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
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