EXHIBIT 4.23.1
RECORDING REQUESTED BY, AND
WHEN RECORDED RETURN TO:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx Xxxxxxx Hilson, Esq.
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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
December 6, 2001, is executed by Xxxxxx Colorado Gaming, LLC, a Colorado limited
liability company ("Obligor"), and The Bank of New York, a New York banking
corporation, as trustee ("Trustee"), in favor of Foothill Capital Corporation, a
California corporation ("Foothill"), with reference to the following facts:
A. Obligor is the owner of the real property described in
Exhibit "A" attached hereto and incorporated ----------- herein by this
reference (collectively, the "Property").
B. Obligor has executed, or is about to execute, that certain
Deed of Trust, Security Agreement and Fixture Filing with Assignment of Rents
dated as of December 6, 2001 for the benefit of Trustee (as modified from time
to time, the "Junior Deed of Trust"), encumbering the Property and recorded
December __, 2001 as Instrument No. ____________________ in the Official Records
of the County of Xxxxxx, State of Colorado. The Junior Deed of Trust secures
various obligation more particularly described therein, including without
limitation, Obligor's obligations to Trustee under that certain Indenture of
even date herewith between Majestic Investor Holdings, LLC, a Delaware limited
liability company ("Parent"), Majestic Investor Holdings Corp., a Delaware
corporation (together with Parent, the "Issuers"), Trustee and certain
Subsidiary Guarantors (as defined in the Indenture) (as modified from time to
time, the "Indenture") with respect to a loan ("Trustee's Loan") to Issuers. The
Junior Deed of Trust, together with all other security documents now or
hereafter executed by Obligor as security for Trustee's Loan (each as modified
from time to time) are collectively referred to herein as the "Junior Security
Documents." The Indenture, the Junior Security Documents, and any other
documents heretofore or hereafter executed with or in favor of Trustee with
respect to Trustee's Loan, are collectively referred to herein as the "Junior
Loan Documents."
C. Obligor has executed, or is about to execute, that certain
Deed of Trust, Security Agreement and Fixture Filing with Assignment of Rents
dated as of December 6, 2001 for
1.
the benefit of Foothill (as modified from time to time, the "Senior Deed of
Trust"), encumbering the Property and recorded on December __, 2001 as
Instrument No. ____________________ in the Official Records of the County of
Xxxxxx, State of Colorado. The Senior Deed of Trust secures various obligations
more particularly described therein, including without limitation Obligor's
obligations to Foothill under that certain Loan and Security Agreement of even
date herewith between Parent, Obligor, Xxxxxx Mississippi Gaming, LLC, a
Mississippi limited liability company ("BMG"), Xxxxxx Nevada Gaming, LLC, a
Nevada limited liability company ("BNG") (Parent, Obligor, BMG and BNG are
referred to hereinafter individually and collectively, jointly and severally, as
the "Borrowers"), and Foothill (as modified from time to time, "Foothill's Loan
Agreement") with respect to a loan ("Foothill's Loan") to Borrowers. The Senior
Deed of Trust, together with all other security documents now or hereafter
executed by the Borrowers as security for Foothill's Loan (each as modified from
time to time) are collectively referred to herein as the "Senior Security
Documents." Foothill's Loan Agreement, the Senior Security Documents, and any
other documents included within the definition of "Loan Documents" under
Foothill's Loan Agreement, are collectively referred to herein as the "Senior
Loan Documents."
D. Trustee and Foothill have executed, or are about to
execute, that certain Intercreditor Agreement dated as of December 6, 2001 (the
"Intercreditor Agreement"), 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 Obligor 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 Foothill's Loan that the Senior Deed of Trust and Senior Loan
Documents shall be and remain a lien upon the Property prior to the lien of the
Junior Deed of Trust and the Junior Loan Documents.
E. In order to induce the Foothill to make certain financial
accommodations to Borrowers, subject to the terms of the Intercreditor
Agreement, Trustee is willing to have the Senior Deed of Trust constitute a
lien, claim and charge upon the Property unconditionally prior and superior to
the lien, claim and charge of the Junior Deed of Trust.
F. Capitalized terms used and not otherwise defined in this
Agreement have the meanings set forth for them in the Intercreditor Agreement.
In consideration of the foregoing, and for other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
Foothill, Trustee and Obligor hereby agree as hereinafter provided:
1. Pursuant to the terms and conditions of the Intercreditor
Agreement, the liens and charges in favor of Foothill under the Senior Deed of
Trust and the other Senior Loan 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 Obligor which are encumbered by both the Senior
Loan Documents and the Junior Loan Documents) prior and superior to the lien and
charge of the Junior Deed of Trust and the other Junior Loan Documents.
Notwithstanding any provision contained herein, the subordination of the Junior
Deed of Trust provided for herein shall not be deemed to (a) subordinate the
Liens of the Trustee to the
2.
Liens of any other Person; or (b) subordinate the Subordinated Lien Indebtedness
to any Indebtedness of the Issuers or any of the Subsidiary Guarantors.
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.
3. This Agreement shall inure to the benefit of and be binding
upon the parties and their respective successors and assigns. This Agreement is
governed by the laws of the State of New York without regard to the choice of
law rules of that state.
4. This Agreement may be executed in counterparts, each of
which shall constitute an original of this Agreement, and all of which together
shall collectively constitute one fully executed Agreement.
5. Any amendment, modification or addition to this Agreement
shall be made in writing executed by the parties hereto, and neither party shall
be bound by any oral modifications.
6. If any party shall bring an action or proceeding
(including, without limitation, any cross-complaint, counter-claim, third-party
claim or arbitration proceeding) against the other party by reason of the
alleged breach or violation of any provision hereof, or for the enforcement of
any provision hereof, or to interpret any provision hereof, or otherwise arising
out of this Agreement, the prevailing party in such action or proceeding shall
be entitled to its costs and expenses of such action or proceeding, including,
but not limited to, its actual attorneys' fees, which shall be payable by the
non-prevailing party whether or not such action or proceeding is prosecuted to
judgment or award. For the purposes of this Agreement, the term "attorneys'
fees" shall mean the fees and expenses of counsel to the parties hereto, which
may include fees incurred with respect to post-judgment motions, contempt
proceedings, garnishment, levy, debtor and third-party examinations, discovery,
bankruptcy, litigation, and may include expenses such as printing, photostating,
duplicating, facsimiles, filing fees, air freight charges and fees billed for
law clerks, paralegals and other persons not admitted to the bar but performing
services under the supervision of an attorney, all of which shall be deemed to
have accrued upon the commencement of such action. As used in this Section 6,
the term "prevailing party" shall mean the party who receives substantially the
relief desired whether by summary judgment, dismissal or otherwise.
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.
[Signature page follows]
3.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the date first above written.
"Trustee"
THE BANK OF NEW YORK,
a New York banking corporation, as trustee
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
-----------------------------------
Title: Vice President
-----------------------------------
"Foothill"
FOOTHILL CAPITAL CORPORATION,
a California Corporation
By: /s/ Xxxxx X. Xxxxx
-----------------------------------
Name: Xxxxx X. Xxxxx
-----------------------------------
Title: Sr. Vice President
-----------------------------------
"Obligor"
XXXXXX COLORADO GAMING, LLC, a
Colorado limited liability company.
By: /s/ Xxxxxxx X. Xxxxx
-----------------------------------
Name: Xxxxxxx X. Xxxxx
-----------------------------------
Title:
-----------------------------------
STATE OF NEW YORK )
)ss:
COUNTY OF BRONX )
On this 6th day of December, A.D., 2001 before me, a Notary
Public in and for the State of New York, personally appeared Xxxxxx X.
Xxxxxxxxxx, to me personally known, who being by me duly sworn did say that the
person is (a) Vice President of The Bank of New York, a New York banking
corporation, executing the foregoing instrument, that the instrument was signed
on behalf of the said corporation by authority of the corporation and the said
Xxxxxx X. Xxxxxxxxxx acknowledged the execution of said instrument to be the
voluntary act and deed of said corporation by it voluntarily executed.
/s/ Xxxxxxx X. Cabbels
----------------------
Notary Public in the State of New York
[SEAL]
STATE OF CALIFORNIA )
)ss:
COUNTY OF LOS ANGELES )
On this 6th day of December, A.D., 2001 before me, a Notary
Public in and for the State of California, personally appeared Xxxxx X. Xxxxx,
to me personally known, who being by me duly sworn did say that the person is a
Sr. Vice President of Foothill Capital Corporation, a California corporation,
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 Notary acknowledged the execution of said instrument to be the
voluntary act and deed of said limited liability company by it voluntarily
executed.
/s/ Linda Xxxxx Xxxxxxxx
------------------------
Notary Public in the State of
California
[SEAL]
STATE OF CALIFORNIA )
)ss:
COUNTY OF LOS ANGELES )
On December 6, 2001 before me, Xxxxx Xxxxxxxx, Notary Public,
personally appeared Xxxxxx X. Xxxxx, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to
the within instrument and acknowledged to me that he executed the same in his
authorized capacity, and that by his signature on the instrument the person, or
the entity upon behalf of which the person acted, executed the instrument.
WITNESS my hand and official seal
/s/ Xxxxx Xxxxxxxx [SEAL]
------------------
EXHIBIT A
PARCEL A: (XXXXXXXXXX'X)
ALL OF XXXXXXXXXX'X CASINO MINOR SUBDIVISION PLAT RECORDED DECEMBER 2, 1996 IN
PLAT BOOK F AT PAGE 19 AT RECEPTION NO. 90518, AND MORE PARTICULARLY DESCRIBED
AS FOLLOWS:
THAT PART OF XXXX 0, 0, 0 XXX 0, XXXXX 35, XXXX 0, 0, 00 XXX 00, XXXXX 35, XXXX
0, 0 XXX 0 XXX XXXX XX XXXX 0 AND 3, BLOCK 36 AND THAT PART OF XXXX 00, 00 XXX
00, XXXXX 34 AND THAT PART OF XXX 0, XXXXX 00, XXXX XX XXXXX XXXX, XXXXXX OF
XXXXXX, STATE OF COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT THE MOST NORTHERLY CORNER OF XXX 0, XXXXX 00, XXXX XX XXXXX XXXX,
XXXXX XXXXX IS ESTABLISHED BY THE INTERSECTION OF THE SOUTHEASTERLY LINE OF
XXXXXXX STREET WITH THE SOUTHWESTERLY LINE OF MAIN STREET AS SAID STREET LINES
WERE ESTABLISHED BY BOUNDARY LINE AGREEMENTS RECORDED IN BOOK 540 AT PAGE 383;
THENCE SOUTH 47 DEGREES 37 MINUTES 00 SECONDS EAST ALONG SAID SOUTHWESTERLY LINE
OF MAIN STREET A DISTANCE OF 199.59 FEET TO THE NORTHEASTERLY CORNER OF TRACT
CONVEYED IN SPECIAL WARRANTY DEED RECORDED IN BOOK 560 AT PAGE 446 CONTAINED IN
EASEMENT AND REAL ESTATE CONVEYANCE AGREEMENT RECORDED IN BOOK 560 AT PAGE 428;
THENCE SOUTH 41 DEGREES 31 MINUTES 30 SECONDS WEST ALONG THE SOUTHEASTERLY LINE
OF SAID TRACT, A DISTANCE OF 101.67 FEET TO THE MOST SOUTHERLY CORNER OF SAID
TRACT, WHICH POINT IS ON THE LINE BETWEEN SAID BLOCK 35 AND SAID BLOCK 36;
THENCE SOUTH 47 DEGREES 37 MINUTES 00 SECONDS EAST ALONG THE NORTHERLY LINE OF
SAID BLOCK 36, A DISTANCE OF 61.55 FEET TO AN ANGLE POINT IN THE NORTHERLY LINE
OF XXX 0, XXXXX 00;
THENCE SOUTH 60 DEGREES 00 MINUTES 00 SECONDS EAST ALONG THE NORTHERLY LINES OF
XXX 0 XXX XXX 0, XX XXXX XXXXX 00, X DISTANCE OF 69.05 FEET TO A POINT ON A LINE
ESTABLISHED BY BOUNDARY LINE AGREEMENT RECORDED IN BOOK 603 AT PAGE 201;
THENCE SOUTH 30 DEGREES 59 MINUTES 20 SECONDS WEST ALONG THE LINE ESTABLISHED BY
BOUNDARY LINE AGREEMENT, A DISTANCE OF 75.38 FEET TO A POINT ON THE NORTH RIGHT
OF WAY LINE OF SAID BOBTAIL STREET AS DESCRIBED IN BOOK 586 AT PAGE 000, XXXXX
XXXXX IS ON A CURVE CONCAVE TO THE SOUTH;
THENCE WESTERLY ALONG SAID CURVE, CENTRAL ANGLE OF 4 DEGREES 46 MINUTES 06
SECONDS, RADIUS OF 142.00 FEET, AND ARC LENGTH OF 11.82 FEET TO A POINT OF
TANGENCY, THE CHORD OF SAID ARC BEARS NORTH 56 DEGREES 50 MINUTES 06 SECONDS
WEST, A DISTANCE OF 11.81 FEET;
THENCE NORTH 59 DEGREES 13 MINUTES 09 SECONDS WEST ALONG THE SAID RIGHT OF WAY
LINE, A DISTANCE OF 178.24 FEET;
THENCE NORTH 59 DEGREES 01 MINUTES 26 SECONDS WEST ALONG SAID RIGHT OF WAY LINE,
A DISTANCE OF 44.48 FEET TO A POINT OF CURVATURE;
THENCE ALONG SAID RIGHT OF WAY LINE AND ALONG THE ARC OF A CURVE TO THE LEFT,
CENTRAL ANGLE OF 30 DEGREES 58 MINUTES 34 SECONDS, RADIUS OF 140.00 FEET, AN ARC
LENGTH OF 75.69 FEET TO A POINT OF TANGENCY, THE CHORD OF SAID ARC BEARS NORTH
74 DEGREES, 30 MINUTES 43 SECONDS WEST, A DISTANCE OF 74.77 FEET;
THENCE CONTINUING ALONG SAID RIGHT XX XXX XXXX, XXXXX 00 DEGREES 00 MINUTES 00
SECONDS WEST, A DISTANCE OF 72.88 FEET, MORE OR LESS, TO A POINT ON THE WESTERLY
LINE OF XXX 00, XXXXX 00;
THENCE NORTH 20 DEGREES 00 MINUTES 00 SECONDS WEST ALONG SAID WEST LINE, A
DISTANCE OF 34.92 FEET TO THE NORTHWEST CORNER OF SAID LOT 10; THENCE NORTH 66
DEGREES 41 MINUTES 00 SECONDS EAST ALONG THE NORTH LINE OF SAID BLOCK 34, A
DISTANCE OF 102.69 FEET TO AN ANGLE POINT IN SAID NORTH LINE;
THENCE CONTINUING ALONG SAID NORTH LINE, NORTH 74 DEGREES 11 MINUTES 00 SECONDS
EAST, A DISTANCE OF 66.60 FEET TO A POINT ON THE SOUTHERLY LINE OF XXX 0, XXXXX
00, XXXXX XXXXX IS THE MOST SOUTHERLY CORNER OF TRACT DESCRIBED IN QUIET TITLE
ACTION RECORDED IN BOOK 551 AT PAGE 1; THENCE NORTH 15 DEGREES 49 MINUTES 00
SECONDS WEST ALONG THE WESTERLY LINE OF SAID TRACT, A DISTANCE OF 103.08 FEET TO
THE MOST WESTERLY CORNER OF SAID TRACT, WHICH POINT IS ON THE SOUTHEASTERLY LINE
OF XXXXXXX STREET AS DEFINED IN BOUNDARY LINE AGREEMENT RECORDED IN BOOK 540 AT
PAGE 383;
THENCE NORTH 76 DEGREES 11 MINUTES 39 SECONDS EAST LONG SAID SOUTHEASTERLY LINE
OF XXXXXXX STREET AS DEFINED IN SAID BOUNDARY LINE AGREEMENT AND AS DESCRIBED IN
QUIET TITLE ACTION RECORDED IN BOOK 551 AT PAGE 1, A DISTANCE OF 83.68 FEET,
MORE OR LESS, TO THE POINT OF BEGINNING.
TOGETHER WITH: A PERPETUAL EASEMENT FOR CONTINUED USE OF THE EXISTING FOUNDATION
AND BUILDINGS WHICH ENCROACH UPON THAT PORTION OF MAIN STREET, AS DESCRIBED IN
PERPETUAL EASEMENT BY AND BETWEEN THE CITY OF BLACK HAWK, COLORADO, AND 000 XXXX
XXXXXX LIMITED LIABILITY COMPANY, RECORDED NOVEMBER 15, 1995 IN BOOK 590 AT PAGE
232.
COUNTY OF XXXXXX,
STATE OF COLORADO
PARCEL B: (XXXXXXX INN)
XXXX 0, 0, 0 XXX 0,
XXXXXX THE EAST 221/2FEET OF SAID XXX 0,
XXXXX 00,
XXXX XX XXXXX XXXX,
XXXXXX ANY MINE OF GOLD, SILVER, CINNABAR OR COPPER OR TO ANY VALID MINING CLAIM
OR POSSESSION HELD UNDER EXISTING LAWS, AS SHOWN IN PATENT TO THE CITY OF BLACK
HAWK, RECORDED IN BOOK 56 AT PAGE 555 AND IN BOOK 62 AT PAGE 000,
XXXXXX XX XXXXXX,
XXXXX XX XXXXXXXX,
PARCEL C: (XXXXXXX INN)
THAT PORTION OF XXX 00,
XXXXX 00,
XXXX XX XXXXX XXXX,
XXXXX BEGINS AT THE NORTHEAST CORNER OF SAID LOT 15;
THENCE SOUTHWESTERLY ALONG THE NORTHERLY LINE OF SAID LOT 15, A DISTANCE OF 2.9
FEET;
THENCE SOUTHEASTERLY ALONG A LINE WHICH IS 5 FEET NORTHEASTERLY OF AND PARALLEL
WITH AN EXISTING CONCRETE WALL A DISTANCE OF 52 FEET; THENCE SOUTHERLY IN A
STRAIGHT LINE 48 FEET TO THE SOUTHEASTERLY CORNER OF SAID LOT 15;
THENCE NORTHERLY ALONG THE EASTERN LINE OF SAID LOT 15, A DISTANCE OF 100 FEET
TO THE POINT OF BEGINNING,
EXCEPT ANY PORTION CONVEYED TO OUTLAWS CASINO LTD., BY BOUNDARY LINE AGREEMENT
RECORDED APRIL 21, 1997 IN BOOK 618 AT PAGE 434,
AND EXCEPT ANY MINE OF GOLD, SILVER, CINNABAR OR COPPER OR TO ANY VALID MINING
CLAIM OR POSSESSION HELD UNDER EXISTING LAWS, AS SHOWN IN PATENT TO THE CITY OF
BLACK HAWK, RECORDED IN BOOK 56 AT PAGE 555 AND IN BOOK 62 AT PAGE 000,
XXXXXX XX XXXXXX,
XXXXX XX XXXXXXXX.
