EXHIBIT 4.24.1
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 Nevada Gaming, LLC, a Nevada 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, and is
the lessee of the real property described in Exhibit "B" 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 Xxxxx, State of Nevada. 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."
1.
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 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 Xxxxx, State of Nevada. 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
Colorado Gaming, LLC, a Colorado limited liability company ("BCG"), Xxxxxx
Mississippi Gaming, LLC, a Mississippi limited liability company ("BMG")
(Parent, Obligor, BCG and BMG 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 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
2.
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 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
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Name: Xxxxxx X. Xxxxxxxxxx
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Title: Vice President
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"Foothill"
FOOTHILL CAPITAL CORPORATION,
a California Corporation
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: Sr. Vice President
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"Obligor"
XXXXXX NEVADA GAMING, LLC,
a Nevada limited liability company
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
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Title:
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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
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Notary Public in the State of New York
[SEAL]
STATE OF CALIFORNIA )
)ss:
COUNTY OF LOS ANGELES )
On December 6, 2001 before me, Xxxxx Xxxxx, Notary Public,
personally appeared Xxxxx 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 Xxxxx [SEAL]
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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]
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EXHIBIT "A"
Description of Real Property
FEE PARCELS:
Parcel Four (4):
Lots Thirteen (13) through Sixteen (16) in Block 30 of Xxxxx'x Las Vegas
Townsite, as shown by map thereof on file in Book 1 of Plats, Page 37, in the
office of the County recorder of Xxxxx County, Nevada.
Together with that portion of vacated alley as provided for in that certain
Order of Vacation recorded April 9, 1979 as Document No. 995695 of Official
Records of Xxxxx County, Nevada, as follows:
Beginning at the most northerly corner of lot thirteen (13) in Block thirty (30)
of said Xxxxx'x Las Vegas Townsite;
thence southeasterly along the Northerly line of said lot thirteen (13) a
distance of 140.00 feet to the most easterly corner of said lot thirteen (13);
thence at right angles to said northerly line, northeasterly a distance of
10 feet to a point;
thence northwesterly and 10 feet distant from the southerly line of lots one (1)
through six (6) in said Block thirty (30) a distance of 140 feet to a point;
Thence southwesterly a distance of 10 feet to the TRUE POINT OF BEGINNING.
Together with those portions of vacated alleys that lies adjacent to said lots
as provided for in that certain Order of Vacation recorded August 27, 1999 in
Book 990827 as Instrument/File No. 00495 of Official Records, Xxxxx County,
Nevada.
Parcel Seven (7):
Lots Twenty (20) through Twenty-Two (22) in Block 30 of Xxxxx'x Las Vegas
Townsite, as shown by map thereof on file in Book 1 of Plats, Page 37, in the
office of the County recorder of Xxxxx County, Nevada.
Together with those portions of vacated alleys that lies adjacent to said lots
as provided for in that certain Order of Vacation recorded August 27, 1999 in
Book 990827 as Instrument/File No. 00495 of Official Records, Xxxxx County,
Nevada.
Parcel Eight (8):
Lots Twenty-Three (23) through Twenty-Seven (27) in Block 30 of Xxxxx'x Las
Vegas Townsite, as shown by map thereof on file in Book 1 of Plats, Page 37, in
the office of the County recorder of Xxxxx County, Nevada.
Together with those portions of vacated alleys that lies adjacent to said lots
as provided for in that certain Order of Vacation recorded August 27, 1999 in
Book 990827 as Instrument/File No. 00495 of Official Records, Xxxxx County,
Nevada.
Excepting therefrom a triangular parcel of land as conveyed to the City of Las
Vegas by deed recorded March 10, 2000 in Book 20000310 as Instrument/File No.
00962 of Official Records described as follows:
bounded on the Southwest by the Wouthwesterly line of said Block 30, and bounded
on the North by the arc of a curve, concave Northerly, having a radius of 10.00
feet, being tangent to said Southwesterly line of Block 30 and tangent to said
Southwesterly line of Block 30.
Parcel Nine (9):
Lots Twenty-Eight (28) and Twenty-Nine (29) and the South half (S 1/2) of Lot
Thirty (30) in Block Thirty (30) of Xxxxx'x Las Vegas Townsite, as shown by map
thereof on file in Book 1 of Plats, Page 37, in the office of the County
recorder of Xxxxx County, Nevada.
Together with those portions of vacated alleys that lies adjacent to said lots
as provided for in that certain Order of Vacation recorded August 27, 1999 in
Book 990827 as Instrument/File No. 00495 of Official Records, Xxxxx County,
Nevada.
Parcel Ten (10):
Lots Thirty-One (31) and Thirty-Two (32) and the North Half (N 1/2) of Lot
Thirty (30) in Block Thirty (30) of Xxxxx'x Las Vegas Townsite, as shown by map
thereof on file in Book 1 of Plats, Page 37, in the office of the County
recorder of Xxxxx County, Nevada.
Together with those portions of vacated alleys that lies adjacent to said lots
as provided for in that certain Order of Vacation recorded August 27, 1999 in
Book 990827 as Instrument/File No. 00495 of Official Records, Xxxxx County,
Nevada.
EXHIBIT B
Description of Leases and Real Property
Subject to Leases
Exhibit "B"
Page 1 of 1
Parcel One (1):
Lots One (1) through Four (4) in Block 30 of Xxxxx'x Las Vegas Townsite, as
shown by map thereof on file in Book 1 of Plats, Page 37, in the office of the
County recorder of Xxxxx County, Nevada.
Together with that portion of vacated alley as provided for in that certain
Order of Vacation recorded April 9, 1979 as Document 995695 of Official Records
of Xxxxx County, Nevada, as follows:
That portion of that certain Northwest-Southwest alley in Block Thirty (30) of
said Xxxxx'x Las Vegas Townsite described as follows:
Commencing at the Southwesterly corner of said lot One (1) described above;
thence Southeasterly along the Southerly line of lots One (1) through Four (4)
of said Block Thirty (30) a distance of 100.00 feet to a point; thence at right
angles to the Southwesterly line of said lots a distance of 10 feet to a point;
thence Northwesterly and parallel to the Southwesterly line of lots One (1)
through Four (4) in Block Thirty (30) a distance of 100 feet to a point; thence
Northeasterly a distance of 10 feet to the TRUE POINT OF BEGINNING.
Parcel Three (3):
Lots Seven (7) and Eight (8) in Block Thirty (30) of Xxxxx'x Las Vegas Townsite,
as shown by map thereof on file in Book 1 of Plats, Page 37, in the office of
the County recorder of Xxxxx County, Nevada.
Together with those portions of vacated alleys that lies adjacent to said lots
as provided for in that certain Order of Vacation recorded August 27, 1999 in
Book 990827 as Instrument/File No. 00495 of Official Records, Xxxxx County,
Nevada.
