Exhibit 4.50
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Space above this line for recorder's use
DOCUMENT PREPARED BY AND
AFTER RECORDING RETURN TO:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxx X. Xxxxx, Esq.
SUBORDINATION AGREEMENT
AGREEMENT made as of the 29th day of July, 1997, by and among STATE
STREET BANK AND TRUST COMPANY, solely in its capacity as trustee and collateral
agent under and pursuant to the Subordinated Creditor Indenture (as hereinafter
defined) with an address at Xxx Xxxxxxxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, Attention: Corporate Trust Department, Xxxx Xxx Xxxxxx, Vice President
(the "Subordinated Creditor"), XXXXXXXX'X CORPORATION, a Delaware corporation,
with an address at XxXxxxxx'x Xxxxx, Xxx Xxxxx, Xxxxxxxx 00000, Attention:
General Counsel ("McDonald's") and DISCOVERY ZONE, INC., a Delaware corporation,
successor by merger to Leaps & Bounds, Inc., having its principal place of
business at One Corporate Center, 000 Xxxx Xxxxxxx Xxxxxxxxx, Xxxx Xxxxxxxxxx,
Xxxxxxx 00000 ("Borrower").
W I T N E S S E T H:
RECITALS
A. WHEREAS, Borrower is the successor in interest to Discovery Zone,
Inc., a Delaware corporation and debtor and debtor in possession ("Old DZI"),
and Old DZI's affiliated debtors and debtors in possession including Leaps &
Bounds, Inc. (the "Debtors"),
[WASHINGTON TOWNSHIP, INDIANA PROPERTY]
all in the chapter 11 proceedings captioned In re Discovery Zone, Inc., et al.,
Case No. 96-411 (HSB) (Jointly Administered), before the United States
Bankruptcy Court for the District of Delaware (the "Bankruptcy Court"); and
B. WHEREAS, pursuant to an Agreement and Plan of Merger, dated as of
August 30, 1994 (the "Merger Agreement"), by and among Old DZI, and two of the
Debtors, Discovery Zone International, Inc. and Leaps & Bounds, Inc. on the one
hand, and McDonald's on the other hand, and related documentation, McDonald's
was or is the sublessor to Leaps & Bounds, Inc. of certain properties, and Old
DZI agreed to defend, indemnify and hold McDonald's and its affiliates harmless
in respect of all expenses, losses, costs, deficiencies, liabilities and damages
(including related and reasonable counsel fees and expenses, and compensatory
and demonstrable consequential damages) incurred or suffered by McDonald's as a
direct result of, inter alia, any breach that results in any payment by
McDonald's in connection with any guarantee by McDonald's relating to such
properties (the "Agreement to Indemnify"); and
C. WHEREAS, On November 18, 1996, the Bankruptcy Court entered the
Stipulation and Order Between Debtors and XxXxxxxx'x Corporation Providing for
the Resolution, Settlement and Compromise of Disputes and for Rent Deferrals and
Allowance of Certain Claims (the "Stipulation and Order"), pursuant to which,
inter alia, the Debtors assumed certain subleases relating to properties
subleased by McDonald's to the Debtors pursuant to 11 U.S.C. Section 365 as to
which the Agreement to Indemnify remains in full force and effect, the
Bankruptcy Court approved the allowance of certain claims of McDonald's,
including those claims based on the Agreement to Indemnify, and the Bankruptcy
Court approved the validity, perfection, priority and enforceability of certain
claims and liens of McDonald's against the Debtors, including, without
limitation, the validity, perfection, priority and enforceability of the Senior
Mortgages (as defined below) and the Stipulation and Order was not appealed or
otherwise challenged and remains in full force and effect; and
D. WHEREAS, pursuant to the plan of reorganization for Old DZI and
its affiliated debtors confirmed by the Bankruptcy Court by order entered July
18, 1997 (the "Plan"), and as required by the terms of the Stipulation and
Order, Borrower, as the reorganized successor of the Debtors, is obligated to
issue to McDonald's Secured Rent Deferral Notes in the aggregate original
principal amount of $266,466.24, which amount is subject to increase each month
in accordance with the terms thereof (the "Senior Secured Rent Deferral Notes,"
and individually a "Senior Secured Rent Deferral Note") and Secured Rejection
Note in the aggregate original principal amount of $4,416,237.90 (the "Senior
Secured Rejection Note"); and
E. WHEREAS pursuant to the terms and conditions of the Stipulation
and Order, the Plan, the Agreement to Indemnify, the Senior Secured Rejection
Note and the Senior Secured Rent Deferral Notes and any related documentation
(the "McDonald's Documentation"), the repayment and performance of the
obligations of Borrower to McDonald's under the McDonald's Documentation
(including any contingent obligations under
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the Agreement to Indemnify, the Stipulation and Order, including Section 7
thereof, or otherwise) (the "Senior Obligations") is secured by certain
amended and restated first priority mortgages, deeds of trust and/or deeds to
secure debt described on Exhibit A attached hereto and made a part hereof
(collectively, including all modifications, extensions and additions thereto,
the "Senior Mortgages," and individually, a "Senior Mortgage"), including the
Senior Mortgage identified by the recording information set forth in Exhibit
A-1, reaffirming and creating, to the extent necessary, valid and perfected
first priority liens on the real properties described on Exhibit B attached
hereto and made a part hereof, and other collateral described in the Senior
Mortgages (collectively, the "Real Properties," and individually, a "Real
Property"); and
F. WHEREAS, Borrower and the Subordinated Creditor entered into an
Indenture, dated July 22, 1997 (the "Subordinated Creditor Indenture") and
certain other documents and instruments related thereto, pursuant to which and
upon the terms and conditions therein indebtedness and other obligations were
incurred by the Borrower (the "Subordinated Indenture Indebtedness"), the
repayment and performance of which are secured by, among other things, certain
subordinated mortgages, deeds of trust and/or deeds to secure debt described on
Exhibit C hereto and made a part hereof (collectively, including all
modifications, extensions and additions thereto, the "Subordinated Mortgages,"
and individually, a "Subordinated Mortgage"), including the Subordinated
Mortgage identified by the recording information set forth in Exhibit C-1,
creating valid and perfected liens on the Real Properties subordinate to the
Senior Mortgages; and
G. WHEREAS, pursuant to the Senior Mortgages, the Borrower cannot
grant a subordinated lien on any of the Real Properties without the express
approval of McDonald's and the Subordinated Indenture Indebtedness will not be
able to be issued without the agreement of McDonald's to permit the issuance of
the Subordinated Mortgages; and
H. WHEREAS, McDonald's approval of the Borrower's granting of the
Subordinated Mortgages is conditioned on the entry into this Subordination
Agreement by the Subordinated Creditor, which hereby warrants and represents
that it has full power and authority under the Subordinated Creditor Indenture
to enter into this Subordination Agreement on behalf of all holders of any
securities or obligations whatsoever issued pursuant to the Subordinated
Creditor Indenture; and
I. WHEREAS, the Subordinated Creditor and McDonald's each desire to
enter into this Subordination Agreement to confirm the subordination of the
liens of the Subordinated Mortgages to the liens of the Senior Mortgages in
accordance with the terms of this Agreement;
NOW THEREFORE, IN CONSIDERATION OF THE MUTUAL BENEFITS accruing to the
parties hereto, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
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1. Consent. Pursuant and subject to the other terms of this
Agreement, McDonald's consents to the Subordinate Mortgages. This consent shall
not be deemed to (i) be a consent to any future encumbrances, (ii) be a waiver
of the limitation on future encumbrances contained in the Senior Mortgages,
(iii) be a consent to or waiver of any other term or condition of the Senior
Mortgages or (iv) prejudice any right or rights which McDonald's may now or in
the future have under or in connection with the Senior Mortgages.
2. Priority of McDonald's.
(a) Subordination. The Subordinated Creditor hereby agrees for
itself and its successors and assigns that, except as otherwise expressly
provided herein, the terms, provisions and liens of the Subordinated Mortgages,
and any of the Subordinated Creditor's liens or security interests in the Real
Properties (but only to the extent of McDonald's interest in such Real
Properties), are hereby intentionally and unconditionally subordinated to, and
at all times shall be junior, subject and subordinate to the terms, provisions
and liens of the Senior Mortgages (including, without limitation, the liens
securing future optional and/or obligatory increases in the amount of the Senior
Obligations or advances by McDonald's to or for the benefit of the Borrower,
regardless of the use to which such advances are put), as well as to any and all
increases therein and all extensions, consolidations, modifications, renewals,
refinancings and supplements thereto. The Subordinated Creditor hereby waives
any right it may have to require that XxXxxxxx'x xxxxxxx any assets of the
Borrower in favor of the Subordinated Creditor and the Subordinated Creditor
agrees that it shall not acquire, by subrogation or otherwise, any lien, estate,
right or other interest in the Real Properties which is or may be prior or
superior in right to the Senior Mortgages, including but not limited to advances
for real estate taxes and assessments. The rights and priorities set forth in
this Paragraph 2(a) shall be effective notwithstanding the order of creation,
attachment, vesting or perfection of the rights of McDonald's under the Senior
Mortgages, or of the Subordinated Creditor under the Subordinated Mortgages, the
Subordinated Creditor Indenture or any other documents executed in connection
therewith (including, without limitation, any UCC-1 financing statements or
fixture filings). The Subordinated Creditor shall be deemed to have consented
(i) to any action by Borrower to which McDonald's consents pursuant to the
Senior Mortgages and (ii) to each act of, or failure to act by, the Borrower
that is not prohibited by the Senior Mortgages, provided that, both with respect
to (i) and (ii), such deemed consent is applicable only to acts or failures to
act in connection with the sale, construction, restoration, insurance,
condemnation or alterations of, to or on, or with respect to the Real Properties
and any other matters relating to the Real Properties.
(b) Insurance; Condemnation Awards. The Subordinated Creditor
hereby assigns and releases unto McDonald's, until payment in full of the Senior
Obligations:
(i) all of its right, title, interest or claim, if any, in
and to the proceeds of all policies of insurance
covering the Real Properties, for application in
accordance with the provisions of the Senior Mortgages
or as the Borrower and McDonald's may otherwise agree;
and
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(ii) all of its right, title and interest or claim, if any,
in and to all awards or other compensation made for any
taking of any part of the Real Properties for
application in accordance with the provisions of the
Senior Mortgages or as the Borrower and McDonald's may
otherwise agree.
All such insurance proceeds or awards which may become due and payable
to the Subordinated Creditor shall be payable directly to McDonald's, and the
Subordinated Creditor directs any insurance company or governmental authority to
make payment thereof directly to McDonald's for application in accordance with
the Senior Mortgages. In the event that any such insurance proceeds or awards
are made payable to the Subordinated Creditor despite such direction, the
Subordinated Creditor shall promptly transfer the same, or promptly cause the
same to be transferred, to McDonald's.
(c) Assignment of Leases and Rents. Any assignment in favor of the
Subordinated Creditor of any Leases or Rents (as such terms are defined in the
Senior Mortgages) contained in the Subordinated Mortgages or the Subordinated
Creditor Indenture, or in any other document or instrument related thereto or
delivered in connection therewith, and all rights of the Subordinated Creditor
thereunder, are hereby intentionally and unconditionally subordinated to, and
shall be in all respects junior, subject and subordinate to any assignment of
rents, leases or other agreements relating to the Real Properties contained in
(i) the Senior Mortgages, and (ii) any other document now in existence or
hereafter made by the Borrower to secure the Senior Obligations, and to all
rights of McDonald's thereunder. Without limiting the foregoing provisions of
this Paragraph 2(c), from and after the execution and delivery of the
Subordinated Mortgages to the Subordinated Creditor, the Subordinated Creditor
shall not be entitled to receive or retain any Rents or other amounts assigned
to the Subordinated Creditor under any such document or instrument until such
time as the Senior Obligations shall have been completely paid in full.
(d) Non-Disturbance Agreements. The Subordinated Creditor shall
be required to give a non-disturbance agreement to any lessee or tenant of the
Real Properties with respect to whose lease McDonald's, as holder of the Senior
Mortgages, shall have executed a non-disturbance agreement, and, if the
Subordinated Creditor fails to give any such non-disturbance agreement, the
Subordinated Creditor nevertheless agrees not to disturb the possession,
occupancy or rights of any such lessee or tenant without the prior written
consent of McDonald's in each instance.
(e) Further Assurances. To further evidence the subordination
hereinabove provided for, the Subordinated Creditor agrees that, within 30 days
after request by McDonald's, it will, at the Subordinated Creditor's sole cost
and expense, do, execute, acknowledge and deliver all and every such further
acts, deeds, conveyances and instruments as McDonald's may reasonably request
for the better assuring and evidencing of this subordination (including, without
limitation, further affirmation of the application of this
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Agreement to future optional and/or obligatory increases in the amount of the
Senior Obligations or advances, regardless of the use to which such increases
or advances are put).
(f) Release or Subordination of Lien. If McDonald's shall at
any time release its lien on the Real Properties (or any part thereof) in
connection with a sale or refinancing of the Real Properties or any part
thereof, the Subordinated Creditor shall, without any payment to it, be deemed
to have consented to such sale or refinancing and shall release the lien of the
Subordinated Mortgages thereon at the same time that McDonald's releases the
lien of the Senior Mortgages thereon, and, in the event that the Subordinated
Creditor has not executed a release within seven (7) business days of being
requested to do so by Borrower of McDonald's in connection with such sale or
refinancing, the Subordinated Creditor hereby irrevocably appoints McDonald's as
its attorney in fact (coupled with an interest) to execute in the name of the
Subordinated Creditor or without the signature of the Subordinated Creditor to
the extent McDonald's may lawfully do so, one or more releases or reconveyances
of mortgages/deeds of trust or other documents to evidence such release of the
lien of the Subordinated Mortgages. Until the Senior Obligations have been
completely paid in full (including, without limitation, any obligations which
may arise under the Agreement to Indemnify), all proceeds from or with respect
to the sale, refinancing or other disposition of the Real Properties or any part
thereof shall be paid to McDonald's (or placed into escrow for the benefit of
McDonald's pursuant to the terms of the Senior Mortgages) in satisfaction of the
Senior Obligations pursuant to the terms of the Senior Mortgages and the
McDonald's Documentation, and the Subordinated Creditor shall have no right,
claim or interest in or to any such proceeds.
(g) Enforcement. The Subordinated Creditor agrees that no
remedies provided for under the Subordinated Mortgages or other documents (to
the extent relating to the Real Properties in which McDonald's has an interest)
executed in connection with the Subordinated Creditor Indenture shall be
exercised with respect to the Real Properties, including, without limitation,
the commencement or prosecution of foreclosure proceedings, the exercise of any
power of sale, or the appointment of a receiver (or the Subordinated Creditor as
mortgagee in possession), without obtaining the prior written consent of
McDonald's. The Subordinated Creditor hereby consents and agrees that any
lawful action taken by or on behalf of McDonald's in the exercise of McDonald's
rights and/or remedies under the Senior Mortgages (including, without
limitation, any foreclosure or acquisition of title to a Real Property by deed
in lieu of foreclosure or otherwise) are hereby deemed to be consented to by the
Subordinated Creditor in all respects.
(h) No Third-Party Beneficiaries. The provisions of clauses
(a)-(g) of this Paragraph 2 are solely for the benefit of the holder of the
Senior Mortgages and shall not create any rights in the Borrower or any other
person.
3. Bankruptcy. The provisions of this Agreement shall continue in
full force and effect notwithstanding the occurrence of any proceeding under
Title 11 of the United States Code (11 U.S.C. Sec. 101 et seq.) or any other
bankruptcy, insolvency, liquidation, reorganization, dissolution, winding up,
liquidation, readjustment or other similar proceeding
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relating to the Borrower or to its property (whether voluntary or
involuntary, partial or complete, and whether in bankruptcy, insolvency or
receivership, or upon a general assignment for the benefit of creditors, or
any other marshaling of the assets and liabilities of the Borrower, or any
sale of all or substantially all of the assets of the Borrower, or otherwise)
(each, an "Insolvency Proceeding"). Without limiting the generality of the
foregoing, in the event of an Insolvency Proceeding, (i) the Senior
Obligations (including post-petition interest on the Senior Obligations,
whether or not such interest is allowable under Section 502 or 506 of the
United States Bankruptcy Code) shall first be completely paid in full before
the Subordinated Creditor shall be entitled to receive or retain any proceeds
from or relating to the sale, refinancing or other disposition of the Real
Properties or any portion thereof in respect of the Subordinated Indenture
Indebtedness; and (ii) the Subordinated Creditor shall not object to or
oppose any efforts by McDonald's to obtain relief from the automatic stay
with respect to the Real Properties under Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx
Bankruptcy Code.
4. Payments Received by the Subordinated Creditor. In the event that
the Subordinated Creditor receives any payment or other distribution of any kind
or character from the Borrower or from any other source whatsoever in respect of
any of the Subordinated Indenture Indebtedness, or receives any security
therefor, whether by way of agreement or compromise or otherwise, which it is
not entitled to retain pursuant to the terms of this Agreement, the Subordinated
Creditor shall immediately deliver the same to McDonald's, in the form received,
together with any necessary endorsements, in each case for application on
account of the Senior Obligations, but until so received by McDonald's, the same
shall be held in trust by the Subordinated Creditor as the property of
McDonald's.
5. No Consent Required. The Subordinated Creditor hereby agrees that
McDonald's may, from time to time, at its sole discretion and without notice to
or consent of or from the Subordinated Creditor, and without affecting the
obligations of the Subordinated Creditor herein or the subordination provided
for hereunder, take any or all of the following actions:
(a) retain or obtain a lien or security interest in any property
to secure all or any part of the Senior Obligations;
(b) retain, obtain or permit the release of the primary or
secondary obligations of any other obligor or obligors with respect to all or
any part of the Senior Obligations;
(c) fail to perfect, or release XxXxxxxx'x xxxx or security
interest in, or surrender, release or permit any substitution or exchange for,
all or any part of any property (including, without limitation, the Real
Properties) securing all or any part of the Senior Obligations;
(d) change the manner, place or terms of payments, and/or change
or extend the time of payment of, renew or alter, all or any part of the Senior
Obligations, any security therefor, or any liability incurred directly or
indirectly in respect thereof, and the
7
provisions hereof shall apply to the Senior Obligations as so changed,
extended, renewed or altered;
(e) sell, exchange, release, surrender, realize upon or
otherwise deal with in any manner and in any order the Real Properties or any
part thereof;
(f) exercise or refrain from exercising or release any rights
and/or remedies against the Borrower or others (including, without limitation,
any guarantor of all or a portion of the Senior Obligations) or otherwise act or
refrain from acting; and/or
(g) settle or compromise the Senior Obligations or any part
thereof or any security therefor, or any liability incurred directly or
indirectly in respect thereof or hereof.
6. Transfer. McDonald's may, from time to time, without notice to
Subordinated Creditor, assign or transfer any or all of the Senior Obligations
or any interest therein or any security therefor. Notwithstanding any such
assignment or transfer or any subsequent assignment or transfer thereof, the
holders of the Senior Obligations and the holders of any interest therein shall
be entitled to the benefits of this Agreement to the same extent as if such
holders were McDonald's specifically named in this Agreement.
7. Other Liens. Nothing in this Agreement shall prohibit, prevent or
otherwise impede the Subordinated Creditor from exercising any rights, remedy or
power which it may have against the Borrower and/or its subsidiaries with
respect to any collateral other than the Real Properties, which secures the
Subordinated Indenture Indebtedness, provided, however, that the Subordinated
Creditor shall not take any action which could impair the lien of the Senior
Mortgages or the ability of McDonald's to foreclose or otherwise enforce its
security interests or liens thereunder.
8. Termination. This Agreement shall in all respects be a continuing
agreement and shall remain in full force and effect until (a) the complete
payment in full of all of the Senior Obligations, and (b) the execution by
McDonald's of releases of all of the Senior Mortgages and the recording of such
releases in the appropriate real property records.
9. Miscellaneous.
(a) No Waiver. No delay on the part of McDonald's in the
exercise of any right or remedy shall operate as a waiver thereof, and no single
or partial exercise by McDonald's of any right or remedy shall preclude any
other or further exercise thereof or the exercise of any other right or remedy,
nor shall any modification, waiver or discharge of any of the provisions of this
Agreement be binding upon McDonald's except as expressly set forth in a writing
duly signed and delivered by McDonald's.
(b) Obligations Absolute. The obligations of the Subordinated
Creditor herein shall be absolute and unconditional, and the subordination of
the lien of the Subordinated Mortgages herein contained shall be effective with
respect to the Senior
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Obligations, notwithstanding any right or power of the Borrower or anyone
else to assert any claim or defense as to the invalidity or unenforceability
of any such obligation and/or any lien securing the same, in whole or in
part, or any determination of such invalidity or unenforceability and no such
event shall affect or impair the agreements and obligations of the
Subordinated Creditor hereunder. In the event that any of the Senior
Obligations and/or any lien securing the same is determined to be invalid or
unenforceable, in whole or in part, the Subordinated Creditor agrees that, as
between McDonald's and the Subordinated Creditor, the Senior Obligations and
such lien shall be deemed valid and enforceable, and the obligations of the
Subordinated Creditor hereunder with respect thereto shall not be affected by
any such determination but shall continue in full force and effect.
(c) Sole Discretion. It is understood and agreed that in the
event of any dissolution, winding up, liquidation, readjustment, reorganization
or other similar proceedings relating to the Borrower or to its property,
McDonald's may use its sole discretion with respect to the enforcement of the
Senior Mortgages, or in otherwise exercising or refraining from exercising any
rights or in taking or refraining from taking any action which it may be
entitled to take or assert hereunder; and that McDonald's shall not be under any
liability for doing or refraining from doing anything relative thereto in the
exercise of its own reasonable judgment or which it may deem necessary or
desirable.
(d) Waiver of Notice and Diligence. The Subordinated Creditor
hereby waives: (i) notice of acceptance by McDonald's of this Agreement; (ii)
notice of the existence or creation or nonpayment of all or any of the Senior
Obligations; and (iii) all diligence in collection or protection of or
realization upon the Senior Obligations or any security therefor.
(e) Reinstatement. If, as a result of, or arising from, any
bankruptcy, insolvency or similar proceeding, claim is ever made upon McDonald's
or any participant in the Senior Obligations for repayment or recovery of any
amount or amounts received by it in payment or on account of the Senior
Obligations from the proceeds of the sale, refinancing or other disposition of
all or a portion of the Real Properties and McDonald's or such participant
repays the Borrower or its legal representative or a trustee in bankruptcy, all
or part of such amount by reason of (i) any judgment, decree or order of any
court or administrative body having jurisdiction or (ii) any settlement or
compromise of any such claim effected by McDonald's or such participant with any
such claimant (including the Borrower or any guarantor), then in such event the
Subordinated Creditor agrees that it shall be and remain obligated hereunder
with respect to the amount so repaid or recovered to the same extent as if such
amount had never originally been received by McDonald's or such participant and
to the extent the Subordinated Creditor has received payments or distributions
in respect of the Subordinated Indenture Indebtedness from the proceeds of the
sale, refinancing or other disposition of the Real Properties.
10. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.
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11. Notices. Any notices or other communications required or
permitted hereunder shall be in writing, and shall be sufficiently given if made
by hand delivery, by telecopier or registered or certified mail, postage
prepaid, return receipt requested, to the addresses listed in the first
paragraph of this Agreement. Each party may designate additional or different
addresses for notices to such party. Any notice or communication to either
party hereto shall be deemed to have been given or made as of the date so
delivered if personally delivered; when receipt is acknowledged electronically
(with copy by U.S. mail), if faxed (the fax number for the Subordinated Creditor
is (000) 000-0000; the fax number for McDonald's is (000) 000-0000; and five (5)
calendar days after mailing if sent by registered or certified mail, postage
prepaid (except that a notice of change of address shall not be deemed to have
been given until actually received by the addressee).
12. Representations by the Subordinated Creditor. The Subordinated
Creditor has the power, authority and legal right pursuant to the Subordinated
Creditor Indenture to execute, deliver and perform this Agreement. The
Subordinated Creditor has been duly authorized pursuant to the Subordinated
Creditor Indenture to enter into this Subordination Agreement on behalf of the
Holders (as defined in the Subordinated Creditor Indenture) and this
Subordination Agreement constitutes the valid and binding obligations of the
Subordinated Creditor on behalf of such Holders enforceable against the
Subordinated Creditor on behalf of such Holders in accordance with its terms.
13. Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York including both matters of
internal law and conflicts of law, except that matters as to the priority of
liens on the Real Properties and remedies and procedural matters relating
thereto shall be governed by the laws of the State in which the Real Properties
is located.
14. Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing
any such counterpart.
15. Singular and Plural. Words used in this Agreement in the
singular, where the context so permits, shall be deemed to include the plural
and vice versa. The definitions of words in the singular in this Agreement
shall apply to such words when used in the plural where the context so permits
and vice versa.
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IN WITNESS WHEREOF, this Agreement has been duly executed by the
parties hereto as of the date first above written.
STATE STREET BANK AND TRUST
COMPANY, solely in its capacity
as trustee and collateral agent
under and pursuant to the
Subordinated Creditor Indenture
By: /s/ Xxxx Xxx Xxxxxx
----------------------
Name: Xxxx Xxx Xxxxxx
Title: Vice President
XXXXXXXX'X CORPORATION
By: /s/ Xxxxxx Xxxxxxx
-------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President, Dupty General Counsel
and Secretary
DISCOVERY ZONE, INC.
By: /s/ Xxxxxx Xxxxxx
------------------
Name: Xxxxxx Xxxxxx
Title: Sr VP
STATE OF MASSACHUSETTS)
)
COUNTY OF SUFFOLK )
On July 31, 1997, before me, Xxxxx X. Xxxxxx,
a Notary Public, personally appeared Xxxx Xxx Xxxxxx, 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
[s]he executed the same in [her] [his] authorized capacity, and that by [her]
[his] signature on the instrument the person, or the entity upon behalf of which
the person acted, executed the instrument and acknowledged the foregoing to be
[her] free act and deed on behalf of STATE STREET BANK AND TRUST COMPANY,
a Massachusetts trust company.
WITNESS my hand and official seal.
/s/ Xxxxx X. Xxxxxx
-------------------
Notary Public
[SEAL]
Xxxxx X. Xxxxxx
My Commission Expires
5/15/2003
STATE OF ILLINOIS )
COUNTY OF DuPage )
On this 31st day of July, 1997, before me, the undersigned, a
Notary Public in and for the State of Illinois, personally appeared
Xxxxxx Xxxxxxx, to me personally known, who, being by me duly sworn,
did say that [s]he was the Vice President, Duputy General Counsel and
Secretary of XxXXXXXX'X CORPORATION, a Delaware corporation; that the seal
affixed to said instrument is the seal of said corporation; that the
instrument was signed on behalf of the corporation, by authority of the
corporation's Board of Directors; and that Xxxxxx Xxxxxxx as that officer
acknowledged execution of the instrument to be the voluntary act and deed of
the corporation by it and by the officer voluntarily executed.
/s/ Xxxxxxx Vujanovick
--------------------------------------
Notary Public in the State of Illinois
[Notarial Seal]
__________________________________
"OFFICIAL SEAL"
Xxxxxxx Xxxxxxxxxx
Notary Public, State of Illinois
My Commission Expires 02/15/99
___________________________________
STATE OF NEW YORK )
COUNTY OF WESTCHESTER)
On the 28th day of July, 1997, before me personally came Xxxxxx Xxxxxx,
to me known, who, being duly sworn, did depose and say that he/she resides at
00 Xxxx Xxxxxx, Xxxxx Xxxxxx, XX that he is Sr VP. of DISCOVERY ZONE, INC.,
the Delaware corporation described in and which executed the foregoing
instrument; and that he had the authority to sign the same, and he
acknowledged to me that he executed the same as the act and deed of said
corporation by order of the board of directors thereof.
/s/ Xxxx X. Xxxxxxxx
--------------------
Notary Public
XXXX X. XXXXXXXX
Notary Public State of New York
No. 4597846
Qualified in New York County
Commission expires June 15, 1998
THIS INSTRUMENT WAS DRAFTED BY (NAME AND ADDRESS)
Xxxxxxxx Xxxxx, Esq.
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
0 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
EXHIBIT A
DESCRIPTIONS OF SENIOR MORTGAGES
The following is a list of the amended and restated first priority
mortgages, deeds of trust and/or deeds to secure debt entered executed by
Borrower, on behalf of McDonald's, pursuant to the terms and conditions of the
McDonald's Documentation:
1. Amended and Restated Deed To Secure Debt and Security Agreement, made as of
July 29, 1997, by Borrower to McDonald's, relating to mortgaged property
located in Kennesaw, in the County of Xxxx, in the State of Georgia.
2. Amended and Restated Deed of Trust, Assignment of Leases and Rents,
Security Agreement and Fixture Filing, made as of July 29, 1997, by
Borrower to Chicago Title Insurance Company, a Missouri Corporation, as
trustee, for the benefit of McDonald's, relating to trust property located
in Vancouver, in the County of Xxxxx, in the State of Washington.
3. Amended and Restated Deed of Trust, Assignment of Leases and Rents,
Security Agreement and Fixture Filing, made as of July 29, 1997, by
Borrower to Xxxxxxx X. Xxxxxxx, as trustee, to and for the benefit of
McDonald's, relating to trust property located in Xxxx Valley, in the
County of Bexar, in the State of Texas.
4. Amended and Restated Deed of Trust, Assignment of Leases and Rents,
Security Agreement and Fixture Filing, made as of July 29, 1997, by
Borrower to Xxxxxxx X. Xxxxxxx, as trustee, for the benefit of McDonald's,
relating to trust property located in Arlington, in the County of Tarrant,
in the State of Texas.
5. Amended and Restated Deed of Trust, Assignment of Leases and Rents,
Security Agreement and Fixture Filing, made as of July 29, 1997, by
Borrower to Xxxxxxx X. Xxxxxxx, as trustee, for the benefit of McDonald's,
relating to trust property located in San Antonio, in the County of Bexar,
in the State of Texas.
6. Amended and Restated Deed of Trust, Assignment of Leases and Rents,
Security Agreement and Fixture Filing, made as of July 29, 1997, by
Borrower to The Public Trustee of the County of Xxxxxxx, Colorado, as
trustee, to and for the benefit of McDonald's, relating to trust property
located in Littleton, in the County of Xxxxxxx, in the State of Colorado.
7. Amended and Restated Deed of Trust, Assignment of Leases and Rents,
Security Agreement and Fixture Filing, made as of July 29, 1997, by
Borrower to The Public Trustee of the County of Arapahoe, Colorado, as
trustee, to and for the benefit of McDonald's, relating to trust property
located in Aurora, in the County of Arapahoe, in the State of Colorado.
8. Amended and Restated Mortgage, Assignment of Leases and Rents, Security
Agreement and Fixture Filing, made as of July 29, 1997, by Borrower to
McDonald's, relating to mortgaged property located in Schaumburg, in the
County of Xxxx, in the State of Illinois.
9. Amended and Restated Mortgage, made as of July 29, 1997, by Borrower to
McDonald's, relating to mortgaged property located in Sterling Heights, in
the County of Macomb, in the State of Michigan.
10. Open-End Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing (Amended and Restated), made as of July 29, 1997, by
Borrower to McDonald's, relating to mortgaged property located in Forest
Park, in the County of Xxxxxxxx, in the State of Ohio.
11. Open-End Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing (Amended and Restated), made as of July 29, 1997, by
Borrower to McDonald's, relating to mortgaged property located in Columbus,
in the County of Franklin, in the State of Ohio.
12. Amended and Restated Open-End Mortgage, Assignment of Leases and Rents,
Security Agreement and Fixture Filing, made as of July 29, 1997, by
Borrower to McDonald's, relating to mortgaged property located in
Philadelphia, in the County of Philadelphia, in the State of Pennsylvania.
13. Amended and Restated Mortgage, Assignment of Leases and Rents, Security
Agreement and Fixture Filing, made as of July 29, 1997, by Borrower to
McDonald's, relating to mortgaged property located in Blaine, in the County
of Anoka, in the State of Minnesota.
14. Amended and Restated Mortgage, Assignment of Leases and Rents, Security
Agreement and Fixture Filing, made as of July 29, 1997, by Borrower to
McDonald's, relating to mortgaged property located in Washington Township,
in the County of Marion, in the State of Indiana.
EXHIBIT A-1
RECORDING INFORMATION FOR SENIOR MORTGAGE IN FAVOR OF MCDONALD'S
County Book Volume
------ ---- ------
Senior Mortgage (Washington
Township)
Xxxxxxxxxx
Xxxxxx County, Indiana
EXHIBIT B
Parcel I:
A part of the Northwest Quarter of Section 20, Township 17 North, Range 4 East
located in Washington Township, Xxxxxx County, Indiana, being bounded as
follows:
Commencing at the Southeast corner of the Southwest Quarter of Section 20,
Township 17 North, Range 4 East; thence North 00 degrees 07 minutes 10
seconds East (assumed bearing) 2,650.77 feet along the East line of said
Southwest Quarter to its Northeast corner and the Southeast corner of the
Northwest Quarter of Section; thence North 00 degrees 17 minutes 57 seconds
East 1,026.00 feet along the East line of said Northwest Quarter to the
centerline of Xxxx 00xx. Xxxxxx; thence continuing North 00 degrees 17
minutes 57 seconds East 101.27 feet along the East line of said Northwest
Quarter to the terminus of the sixth course of the land description of the
0.675 acre tract of land described in a Warranty Deed recorded as Instrument
No. 87-77965 in the Office of the Recorder of Xxxxxx County, Indiana (the
next three (3) courses are along the Northeastern boundary of said 0.675 acre
tract of land); 1.) thence North 71 degrees 30 minutes 37 seconds West 455.99
feet; 2.) thence North 63 degrees 29 minutes 12 seconds West 99.20 feet; 3.)
thence North 70 degrees 49 minutes 29 seconds West 109.51 feet; thence North
70 degrees 46 minutes 35 seconds West 81.32 feet to the terminus of the ninth
course of the land description of the 0.836 acre tract of land described in
said Warranty Deed (the next three (3) courses are along the Northern
boundary of said 0.836 acre tract of land); 1.) thence North 69 degrees 01
minutes 49 seconds West 105.71 feet to a point on a non-tangent curve concave
to the Northeast, said point being South 24 degrees 13 minutes 40 seconds
West 5,664.58 feet from the radius point of said curve; 2.) thence
Northwesterly 286.89 feet along said curve to its point of tangency, said
point of tangency being South 27 degrees 07 minutes 46 seconds West 5,664.58
feet from the radius point of said curve; 3.) thence North 62 degrees 52
minutes 14 seconds West 287.00 feet; thence North 50 degrees 45 minutes 35
seconds East 32.43 East to a point on a non-tangent curve being concave to
the West said point being South 62 degrees 52 minutes 14 seconds East 183.00
feet from the radius point of said curve; thence Northeasterly and Northerly
46.03 feet along said curve to a point, said point being South 77 degrees 16
minutes 57 seconds East 183.00 feet from the radius point of said curve;
thence 13 degrees 23 minutes 55 seconds East 126.16 feet; thence North 23
degrees 51 minutes 51 seconds East 65.36 feet; thence North 66 degrees 08
minutes 09 seconds West 35.00 feet to the POINT OF BEGINNING of this
description; thence North 23 degrees 51 minutes 51 seconds East 130.00 feet;
thence North 66 degrees 08 minutes 09 seconds West 134.00 feet; thence South
23 degrees 51 minutes 51 seconds West 130.00 feet; thence South 66 degrees 08
minutes 09 seconds East 134.00 feet to the POINT OF BEGINNING.
Parcel II:
An easement for vehicular parking and driveways, pedestrian walkways,
directional signs, lot lighting, trash enclosures, recycling bins and
landscaping over the land described in Exhibit "B" of the deed from
Clearwater Crossing Associates to Leaps & Bounds, Inc. recorded November 10,
1992 as Instrument No. 92-149615 in the Office of the Recorder of Xxxxxx
County, Indiana.
(Continued)
Xxxxxxxxxx
Xxxxxx County, Indiana
EXHIBIT B
(continued)
Parcel III:
Non-exclusive easements for access, parking and utilities as set out in a
Declaration And Grant Of Easements recorded November 13, 1991 as Instrument
No. 91-117692, as amended by Amendment To Declaration And Grant Of Easements
recorded February 13, 1992, as Instrument No. 92-17668, and as further
amended by Second Amendment To Declaration And Grant Of Easements recorded
September 21, 1992 as Instrument No. 92-123846, all in the Office of the
Recorder of Xxxxxx County, Indiana.
Parcel IV:
Non-Exclusive easement for ingress and egress as set out in Declaration and
Grant of Easements dated September 28, 1990 and recorded October 2, 1990 as
Instrument #90-102836, amended by Amendment to Declaration and Grant of
Easements dated September 15, 1992 and recorded September 18, 1992 as
Instrument #92-123838, all in the Office of the Recorder of Xxxxxx County,
Indiana.
EXHIBIT C
DESCRIPTIONS OF SUBORDINATED MORTGAGES
The following is a list of the subordinated mortgages, deeds of trust
and/or deeds to secure debt entered executed by Borrower, on behalf of the
Subordinated Creditor, pursuant to the terms and conditions of the McDonald's
Documentation:
1. Deed To Secure Debt and Security Agreement, made as of July 29, 1997, by
Borrower to Subordinated Creditor, relating to mortgaged property located
in Kennesaw, in the County of Xxxx, in the State of Georgia.
2. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, made as of July 29, 1997, by Borrower to Chicago Title
Insurance Company, a Missouri corporation, as trustee, for the benefit of
Subordinated Creditor, relating to trust property located in Vancouver, in
the County of Xxxxx, in the State of Washington.
3. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, made as of July 29, 1997, by Borrower to Xxxxxxx X.
Xxxxxxx, as trustee, to and for the benefit of Subordinated Creditor,
relating to trust property located in Xxxx Valley, in the County of Bexar,
in the State of Texas.
4. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, made as of July 29, 1997, by Borrower to Xxxxxxx X.
Xxxxxxx, as trustee, for the benefit of Subordinated Creditor, relating to
trust property located in Arlington, in the County of Tarrant, in the State
of Texas.
5. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, made as of July 29, 1997, by Borrower to Xxxxxxx X.
Xxxxxxx, as trustee, for the benefit of Subordinated Creditor, relating to
trust property located in San Antonio, in the County of Bexar, in the State
of Texas.
6. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, made as of July 29, 1997, by Borrower to The Public Trustee
of the County of Xxxxxxx, Colorado, as trustee, to and for the benefit of
Subordinated Creditor, relating to trust property located in Littleton, in
the County of Xxxxxxx, in the State of Colorado.
7. Deed of Trust, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, made as of July 29, 1997, by Borrower to The Public Trustee
of the County of Arapahoe, Colorado, as trustee, to and for the benefit of
Subordinated Creditor, relating to trust property located in Aurora, in the
County of Arapahoe, in the State of Colorado.
8. Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture
Filing, made as of July 29, 1997, by Borrower to Subordinated Creditor,
relating to mortgaged property located in Schaumburg, in the County of
Xxxx, in the State of Illinois.
9. Mortgage, made as of July 29, 1997, by Borrower to Subordinated Creditor,
relating to mortgaged property located in Sterling Heights, in the County
of Macomb, in the State of Michigan.
10. Open-End Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, made as of July 29, 1997, by Borrower to Subordinated
Creditor, relating to mortgaged property located in Forest Park, in the
County of Xxxxxxxx, in the State of Ohio.
11. Open-End Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, made as of July 29, 1997, by Borrower to Subordinated
Creditor, relating to mortgaged property located in Columbus, in the County
of Franklin, in the State of Ohio.
12. Open-End Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing, made as of July 29, 1997, by Borrower to Subordinated
Creditor, relating to mortgaged property located in Philadelphia, in the
County of Philadelphia, in the State of Pennsylvania.
13. Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture
Filing, made as of July 29, 1997, by Borrower to Subordinated Creditor,
relating to mortgaged property located in Blaine, in the County of Anoka,
in the State of Minnesota.
14. Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture
Filing, made as of July 29, 1997, by Borrower to Subordinated Creditor,
relating to mortgaged property located in Washington Township, in the
County of Marion, in the State of Indiana.
EXHIBIT C-1
RECORDING INFORMATION FOR SUBORDINATED MORTGAGE IN FAVOR OF STATE STREET BANK
AND TRUST COMPANY (SOLELY IN ITS CAPACITY AS TRUSTEE AND COLLATERAL AGENT UNDER
AND PURSUANT TO THE SUBORDINATED CREDITOR INDENTURE)
County Book Volume
------ ---- ------
Subordinated Mortgage
(Washington Township)
