Exhibit 3.8
RECORDING REQUESTED BY, AND
WHEN RECORDED RETURN TO:
Brobeck, Phleger & Harrison LLP
550 South Hope Street
Suite 2100
Los Angeles, California 90071-2604
Attention: John Francis Hilson, Esq.
SUBORDINATION AGREEMENT
NOTICE: THIS SUBORDINATION AGREEMENT RESULTS IN YOUR SECURITY INTEREST IN THE
PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER
OR LATER SECURITY INSTRUMENT.
This Subordination Agreement ("Agreement"), dated as of February
23,2001, is executed by Peninsula Gaming Company, LLC, a Delaware limited
liability company ("Borrower"), and Firstar Bank of Minnesota, N.A. ("Junior
Beneficiary"), in favor of Foothill Capital Corporation ("Senior Beneficiary")
with reference to the following facts:
A. Borrower is the owner of the real property described in Exhibit "A"
attached hereto and incorporated herein by this reference, and is the sublessee
of the real property described in Exhibit "B" attached hereto and incorporated
herein by this reference (the "Property").
B. Junior Beneficiary is the present owner and holder of that certain
Mortgage, Leasehold Mortgage, Assignment of Rents, Security Agreement and
Fixture Filing Statement dated July 15, 1999 (as modified from time to time, the
"Junior Mortgage"), executed by Borrower for the benefit of Junior Beneficiary,
encumbering the Property and recorded July 29, 1999 as Instrument No. 12356-1999
in the Official Records of Dubuque County, Iowa. The Junior Mortgage secures (i)
certain promissory notes of even date therewith (as modified from time to time,
the "Junior Beneficiary's Notes") with respect to a loan ("Junior Beneficiary's
Loan") in the principal amount of $140,000,000.00 from Junior Beneficiary to
Borrower and (ii) that certain Indenture of even date therewith between
Borrower, Junior Beneficiary, Peninsula Gaming Corp., a Delaware corporation,
and certain Subsidiary Guarantors (as defined in the Indenture) (as modified
from time to time, "Junior Beneficiary's Indenture") with respect to Junior
Beneficiary's Loan. The Junior Mortgage, together with all other security
documents now or hereafter executed by Borrower as security for Junior
Beneficiary's Notes (each as modified from time to time), are collectively
referred to herein as the "Junior Security Documents." Junior Beneficiary's
Notes, Junior Beneficiary's Indenture, the Junior Security Documents, and any
other documents heretofore or hereafter executed with or in favor of Junior
Beneficiary with respect to Junior Beneficiary's Loan, are collectively referred
to herein as the "Junior Loan Documents."
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C. Borrower has executed, or is about to execute, that certain
Mortgage, Leasehold Mortgage, Assignment of Rents, Security Agreement and
Fixture Financing Statement dated February 23, 2001 for the benefit of Senior
Beneficiary (as modified from time to time, the "Senior Mortgage"), encumbering
the Property and securing various obligations more particularly described
therein, including without limitation Borrower's obligations to Senior
Beneficiary under that certain Loan and Security Agreement of even date
therewith (as modified from time to time, "Senior Beneficiary's Loan Agreement")
with respect to a loan ("Senior Beneficiary's Loan") in the principal amount of
$10,000,000.00. The Senior Mortgage, together with all other security documents
now or hereafter executed by Borrower as security for Senior Beneficiary's Loan
(each as modified from time to time), are collectively referred to herein as the
"Senior Security Documents". Senior Beneficiary's Loan Agreement, the Senior
Security Documents, and any other documents included within the definition of
"Loan Documents" under Senior Beneficiary's Loan Agreement, are collectively
referred to herein as the "Senior Loan Documents." Capitalized terms used and
not otherwise defined in this Agreement have the meanings set forth for them in
Senior Beneficiary's Loan Agreement.
D. Junior Beneficiary and Senior Beneficiary have executed, or are
about to execute, that certain Intercreditor Agreement dated February 23, 2001
concerning their respective rights with respect to the priority of their
respective security interests in and liens on the Property and other now owned
and hereafter acquired assets of Borrower as described in the Junior Loan
Documents and Senior Loan Documents. Pursuant to the terms and conditions of the
Intercreditor Agreement, it is a condition precedent to the making of Senior
Beneficiary's Loan that the Senior Mortgage shall be and remain a lien upon the
Property prior to the lien of the Junior Mortgage.
In consideration of the foregoing, and for other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Junior Beneficiary and Borrower hereby agree as hereinafter provided:
1. Pursuant to the terms and conditions of the Intercreditor
Agreement, the liens and charges in favor of Senior Beneficiary under the Senior
Mortgage and the other Senior Security Documents, and any renewals and
extensions, amendments and other modifications thereof, whether relating to real
property, fixtures, personal property or any combination thereof, shall
unconditionally be and remain at all times a lien or charge on the Property (and
all other property, rights and assets of Borrower which are encumbered by both
the Senior Security Documents and the Junior Security Documents) prior and
superior to the lien and charge of the Junior Mortgage and the other Junior
Security Documents.
2. If there is a conflict between the terms and conditions of this
Agreement and the Intercreditor Agreement, the terms and conditions of the
Intercreditor Agreement shall govern and control.
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3. This Agreement shall bind, and shall inure to the benefit of, the
successors and assigns of the parties. This document may be executed in
counterparts with the same force and effect as if the parties had executed one
instrument, and each such counterpart shall constitute an original hereof. This
Agreement shall be governed by the laws of the State of Iowa.
NOTICE: THIS SUBORDINATION AGREEMENT CONTAINS A PROVISION WHICH ALLOWS THE
PERSON OBLIGATED ON YOUR REAL PROPERTY SECURITY TO OBTAIN A LOAN, A PORTION OF
WHICH MAY BE EXPENDED FOR PURPOSES OTHER THAN IMPROVEMENT OF THE PROPERTY.
"Junior Beneficiary"
FIRSTAR BANK OF MINNESOTA, N.A.
By: /s/ Frank P. Leslie
----------------------------
Name:
Title:
"Borrower"
PENINSULA GAMING COMPANY, LLC,
a Delaware limited liability
company.
By: /s/ M. Brent Stevens
-----------------------------
Name:
Title:
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STATE OF ______________________)
)ss:
COUNTY OF _____________________)
On this ___________ day of _________________, A.D., 2001 before me, a
Notary Public in and for the State of _________________________, personally
appeared _____________________, to me personally known, who being by me duly
sworn did say that the person is (a) (the) _____________________ of Peninsula
Gaming Company, LLC, a Delaware limited liability company, executing the
foregoing instrument, that the instrument was signed on behalf of the said
limited liability company by authority of the limited liability company and the
said _____________________ acknowledged the execution of said instrument to be
the voluntary act and deed of said limited liability company by it voluntarily
executed.
______________________________________________
Notary Public in the State of ________________
STATE OF ______________________)
)ss:
COUNTY OF _____________________)
On this __________________ day of ________________________, A.D., 2001
before me, a Notary Public in and for the State of _______________________,
personally appeared ___________________________, to me personally known, who
being by me duly sworn did say that the person is (a) (the)
_______________________ of Peninsula Gaming Company, LLC, a Delaware limited
liability company, executing the foregoing instrument, that the instrument was
signed on behalf of the said limited liability company by authority of the
limited liability company and the said ______________________ acknowledged the
execution of said instrument to be the voluntary act and deed of said limited
liability company by it voluntarily executed.
______________________________________________
Notary Public in the State of ________________
EXHIBIT "A"
(Description of Property)
PARCEL A
Lot 3 of Adams Company's 2nd Addition in the City of Dubuque, Dubuque
County, Iowa, according to the recorded plat thereof.
PARCEL B
Lots 7 and 8 of Ice Harbor Development, in the City of Dubuque, Dubuque
County, Iowa, according to the recorded plat thereof. Together with:
(a) A perpetual, non-exclusive fifteen (15) foot wide maintenance easement
over and across Lot 6 in Ice Harbor Development for maintenance of
Lots 7 and 8 in Ice Harbor Development.
(b) A perpetual, non-exclusive easement for ingress and egress to and from
Lots 7 and 8 in Ice Harbor Development over and across the
"Ingress-Egress Easement" abutting the Southern terminus of Bell
Street.
(c) A perpetual, non-exclusive easement for ingress and egress to Lots 7
and 8 in Ice Harbor Development over and across Lots 6 and 10 in Ice
Harbor Development, all as shown on the final plat of Ice Harbor
Development, in the City of Dubuque, Iowa, filed as Instrument No.
6167-95 in the office of the Dubuque County Recorder.
PARCEL C
Lot 1 of Adams Company's 1st Addition in the City of Dubuque, Dubuque
County, Iowa, according to the recorded plat thereof.
PARCEL D
Lot 1 in Adams Company's 3rd Addition in the City of Dubuque, Dubuque
County, Iowa, according to the recorded plat thereof.
EXHIBIT "A"
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EXHIBIT B
The Leases and the Real Property
Subject to Leasehold Interests
Lots 5 and 6 of Ice Harbor Development in the City of Dubuque, Iowa.
Exhibit "B"
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