EXHIBIT 4.23
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.
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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 Barden 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 Gilpin, 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
Gilpin, 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, Barden Mississippi Gaming, LLC, a
Mississippi limited liability company ("BMG"), Barden 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/ Robert A. Massimillo
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Name: Robert A. Massimillo
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Title: Vice President
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"Foothill"
FOOTHILL CAPITAL CORPORATION,
a California Corporation
By: /s/ Kevin M. Coyle
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Name: Kevin M. Coyle
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Title: Sr. Vice President
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"Obligor"
BARDEN COLORADO GAMING, LLC, a
Colorado limited liability company.
By: /s/ Michael E. Kelly
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Name: Michael E. Kelly
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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 Robert A.
Massimillo, 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
Robert A. Massimillo acknowledged the execution of said instrument to be the
voluntary act and deed of said corporation by it voluntarily executed.
/s/ William J. Cabbels
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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 Kevin M. Coyle,
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 Karen Williams
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Notary Public in the State of
California
[SEAL]
STATE OF CALIFORNIA )
)ss:
COUNTY OF LOS ANGELES )
On December 6, 2001 before me, Maria Sandoval, Notary Public,
personally appeared Michel E. Kelly, 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/ Maria Sandoval [SEAL]
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