Exhibit 4.45
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Space above this line for recorder's use
DOCUMENT PREPARED BY AND
AFTER RECORDING RETURN TO:
Xxxxxxxx X. Xxxxx, Esq.
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
SUBORDINATION AGREEMENT (1)
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").
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(1) For recording information as to the Senior Mortgage and Subordinated
Mortgage (as such terms are defined herein) referenced by this Subordination
Agreement, see Exhibit A-1 and Exhibit C-1.
[KENNESAW, GEORGIA PROPERTY]
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"), 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
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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 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
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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:
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 titles or
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.
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(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
(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.
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(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 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.
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(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 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;
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(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 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
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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 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
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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.
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 under seal 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
ATTEST:
By: /s/ Xxxxxxx Xxxxxxxx
---------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Assistant Secretary
[Corporate Seal]
Signed, sealed and delivered
in the presence of:
/s/ X. Xxxxxx Xxxxx
-----------------------------
Unofficial Witness
X. XXXXXX XXXXX
/s/ Xxxxx X. Xxxxxx
-----------------------------
Notary Public
Xxxxx X. Xxxxxx
My Commission expires:
May 15, 2003
-----------------------------
[Notarial Seal]
XXXXXXXX'X CORPORATION
By: /s/ Xxxxxx Xxxxxxx
------------------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President, Deputy
General Counsel and
Secretary
ATTEST:
By: /s/ Xxxxxx X. Xxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President, Associate
General Counsel and
Assistant Secretary
[Corporate Seal]
Signed, sealed and delivered
in the presence of:
/s/ Xxx Xxxxxxxx
---------------------------
Unofficial Witness
Xxx Xxxxxxxx
/s/ Xxxxxxx Xxxxxxxxxx
----------------------------
Notary Public
My Commission expires:
February 15, 1999
----------------------------
[Notarial Seal]
---------------------------------
"OFFICIAL SEAL"
Xxxxxxx Xxxxxxxxxx
Notary Public, State of Illinois
My Commission Expires 02/15/99
---------------------------------
Discovery Zone, Inc.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxxxx
Title: President
ATTEST:
By: /s/ Xxxxxx Xxxxxx
-----------------------------------
Name: Xxxxxx Xxxxxx
Title: Secretary
[Corporate Seal]
Signed, sealed and delivered
in the presence of:
/s/ illegible
------------------------------
Unofficial Witness
/s/ Xxxx X. Xxxxxxxx
------------------------------
Notary Public
My Commission expires:
Xxxx X. Xxxxxxxx
Notary Public State of New York
No. 4997846
Qualified in New York County
Commission Expires June 15, 1998
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[Notarial Seal]
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
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Senior Mortgage (Kennesaw)
Kennesaw
Xxxx County, Georgia
EXHIBIT B
All that tract or parcel of land lying and being in Land Xxx 000 xx xxx 00xx
Xxxxxxxx, 0xx Xxxxxxx, Xxxx Xxxxxx, Xxxxxxx, and being more particularly
described as follows:
Commencing at the intersection of the easterly line of said land lot with the
northwesterly right-of-way line of Xxxxxx Xxxxxxx Parkway (120 foot
right-of-way); proceeding thence along said northwesterly right-of-way line
South 54 degrees 25' 25" West a distance of 35.25 feet to a point, said point
being the True Point of Beginning; continuing thence along said northwesterly
right-of-way line South 54 degrees 25' 25" West a distance of 414.75 feet to a
point; leaving said northwesterly right-of-way line and proceeding thence
southwesterly, westerly and northwesterly 113.79 feet along the arc of a
curve to the right, said curve having a radius of 72.44 feet and being
subtended by a chord having a bearing and distance of North 80 degrees 33' 34"
West 102.45 feet to a point; proceeding thence northwesterly, northerly and
northeasterly along the arc of a curve to the right, said curve having a
radius of 97.40 feet and being subtended by a chord having a bearing and
distance of North 03 degrees 05' 43" East 121.88 feet to a point; proceeding
thence North 41 degrees 45' 00" East a distance of 132.52 feet to a point;
proceeding thence northeasterly 64.69 feet along the arc of a curve to the
left, said curve having a radius of 313.34 feet and being subtended by a
chord having a bearing and a distance of North 35 degrees 50' 09" East 64.57
feet to a point; proceeding thence South 89 degrees 00' 00" East a distance of
274.77 feet to a point; proceeding thence South 35 degrees 33' 35" East a
distance of 53.51 feet to the true point of beginning.
Said tract or parcel of land contains 1.7391 acres.
INCLUDING THE ADDITIONAL PARCEL
All that tract or parcel of land lying and being in Land Xxx 000 xx xxx 00xx
Xxxxxxxx, 0xx Xxxxxxx, Xxxx Xxxxxx, Xxxxxxx, and being more particularly
described as follows:
Kennesaw
Xxxx County, Georgia
EXHIBIT B
(continued)
Commencing at the intersection of the easterly line of said land lot with the
northwesterly right-of-way line of Xxxxxx Xxxxxxx Parkway (120 foot
right-of-way); proceeding thence along said northwesterly right-of-way line
South 54 degrees 26' 25" West a distance of 450.00 feet to a point; leaving
said northwesterly right-of-way line and proceeding thence southwesterly,
westerly and northwesterly 113.79 feet along the arc of a curve to the right,
said curve having a radius of 72.44 feet and being subtended by a chord
having a bearing and distance of North 80 degrees 33' 34" West 102.45 feet to
a point; proceeding thence northwesterly, northerly and northeasterly along
the arc of a curve to the right, said curve having a radius of 97.40 feet and
being subtended by a chord having a bearing and distance of North 03 degrees
05' 43" East 121.68 feet to a point, said point being the True Point of
Beginning; proceeding thence North 36 degrees 38' 25" East a distance of
188.75 feet to a point; proceeding thence South 89 degrees 00' 00" East a
distance of 13.41 feet to a point; proceeding thence southwesterly 64.69 feet
along the arc of a curve to the right, said curve having a radius of 313.34
feet and being subtended by a chord having a bearing and distance of South
35 degrees 50' 09" West 64.57 feet to a point; proceeding thence South
41 degrees 45' 00" West a distance of 132.52 feet to the true point of
beginning.
TOGETHER WITH the rights, easements, privileges and obligations
appurtenant to the above-described land created and established under the
following instruments:
(a) Restrictions, easements, covenants and agreements contained in
that certain Limited Warranty Deed from Xxxx Xxxxxx Xxxxxxx, et
al., to CA Xxxx Retail Investors, Limited, a Georgia Limited
Partnership, dated June 24, 1985, filed June 27, 1985, and
recorded in Deed Book 3548, page 367, Records of Xxxx County,
Georgia;
Kennesaw
Xxxx County, Georgia
EXHIBIT B
(continued)
(b) Easement Agreement by and among AMLI Land Development-I Limited
Partnership, The Xxxxxxx Place Company Limited I, L.P. and
Xxxxxxx X. Xxxxxx dated August 19, 1992, filed August 20, 1992,
and recorded in Deed Book 6804, page 48, aforesaid records; as
amended by that certain First Supplement to Easement Agreement
filed May 12, 1994, and recorded in Deed Book 8235, page 243,
aforesaid records; as modified by that certain Affidavit
Affecting Title filed October 12, 1994, and recorded in Deed Book
8530, page 210, aforesaid records; as terminated, canceled and
superseded by that certain Easement Agreement by and among AMLI
Land Development-I Limited Partnership, The Xxxxxxx Place Company
Limited I, L.P., Xxxxxxx X. Xxxxxx and Xxxxxxx Pavilion Company,
Inc., dated September 30, 1994, filed October 12, 1994, and
recorded in Deed Book 8530, page 213, aforesaid records;
(c) Easements contained in that certain Limited Warranty Deed from
Xxxxxxx X. Xxxxxx to B. R. D., Inc., dated October 30, 1992,
filed October 30, 1992, and recorded in Deed Book 6948, page
443, aforesaid records; and
(d) Permanent & Perpetual Non-Exclusive Easement Agreement, Covenants
and Restrictions for Xxxxxxx Pavilion by Xxxxxxx X. Xxxxxx dated
April 2, 1993, filed April 27, 1993, and recorded in Deed Book
7276, page 490, aforesaid records; as amended by that certain
First Amendment to Permanent & Perpetual Non-Exclusive Easement
Agreement, Covenants and Restrictions for Xxxxxxx Pavilion dated
May 27, 1994, and recorded in Deed Book 8282, page 3, aforesaid
records; as last amended by that certain Second Amendment to
Permanent & Perpetual Non-Exclusive Easement Agreement, Covenants
and Restrictions for Xxxxxxx Pavilion dated August 11, 1994, and
recorded in Deed Book 8455, page 163, aforesaid records.
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
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Subordinated Mortgage
(Kennesaw)
