it is a condition
precedent to induce Agent and Lenders to continue to make the financial
accommodations under the Senior Loan Documents that the Senior Mortgage shall be
and remain a lien upon the Property and such other assets 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
SUBORDINATION AGREEMENT AND THE INTERCREDITOR AGREEMENT, THE TERMS AND
CONDITIONS OF THE INTERCREDITOR AGREEMENT SHALL GOVERN AND CONTROL.
3.
THIS SUBORDINATION 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 SUBORDINATION 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.
3
"Junior Beneficiary"
U.S. BANK NATIONAL ASSOCIATION, as trustee
By:
/s/Lori-Anne Rosenberg
Name:
Lori-Anne Rosenberg
Title:
Vice President
"Borrower"
DIAMOND JO, LLC (formerly known as Peninsula
Gaming Company, LLC), a Delaware limited liability
company
By:
/s/ M.Brent Stevens
Name:
M.Brent Stevens
Title:
Chief Executive Officer
STATE OF Minnesota
)
)ss:
COUNTY OF Ramsey
)
On this 9th
day of
May , A.D., 2005, before me, a Notary Public in and for the
State of
Minnesota , personally appeared
Lori-Anne Rosenberg , to me
personally known, who being by me duly sworn did say that the person is
(a) (the)
Vice President
of
U.S. Bank National Association, a national
banking association, executing the foregoing instrument, that the instrument was
signed on behalf of the said banking association by authority of said banking
association and the said
Lori-Anne Rosenberg acknowledged the execution of said
instrument to be the voluntary act and deed of said banking association by it
voluntarily executed.
/s/Nancy Savage
Notary Public in the State of MN
STATE OF California
)
)ss:
COUNTY OF Los Angeles
)
On this 8th day of June, A.D.,