Exhibit 4.46
_______________________________________________________________________________
Space above this line for recorder's use
DOCUMENT PREPARED BY AND
AFTER RECORDING RETURN TO:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, 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 Two International Place, Boston,
Massachusetts 02110, Attention: Corporate Trust Department, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
Vice President (the "Subordinated Creditor"), MCDONALD'S CORPORATION, a
Delaware corporation, with an address at McDonald's Plaza, Oak Brook,
Illinois 60523, 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, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Borrower").
W I T N E S S E T H:
RECITALS
A. WHEREAS, ▇▇▇▇▇▇▇▇ 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"),
[COLUMBUS, OHIO 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 McDonald's 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 the Agreement to Indemnify, the
Stipulation and Order, including Section 7 thereof and 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 Mortgages 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
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F. WHEREAS, ▇▇▇▇▇▇▇▇ 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 Mortgages 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
▇▇▇▇▇▇▇▇'▇ ▇▇▇▇▇▇▇ 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 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).
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(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 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
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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 Section 362 of the United
States 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 ▇▇▇▇▇▇▇▇'▇ ▇▇▇▇ 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;
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(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 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
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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.
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
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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 (▇▇▇) ▇▇▇-▇▇▇▇; the fax
number for McDonald's is (▇▇▇) ▇▇▇-▇▇▇▇; 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.
In The Presence of (witnesses STATE STREET BANK AND TRUST COMPANY,
for both STATE STREET BANK AND soley in its capacity as trustee and
TRUST COMPANY signatories): collateral agent under and pursuant to
the Subordinated Creditor Indenture
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
______________________________________ __________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Print Name: ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Print Name____________________________ Title: Vice President
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
______________________________________ __________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Print Name____________________________ Title: Vice President
In The Presence of (witnesses ▇▇▇▇▇▇▇▇'▇ CORPORATION
for both ▇▇▇▇▇▇▇▇'▇ CORPORATION
signatories):
/s/ ▇▇▇▇ ▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
______________________________________ __________________________________
▇▇▇▇ ▇ ▇▇▇▇▇▇ Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Print Name____________________________ Title: Vice President,
Deputy General
Counsel & Secretary
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
______________________________________ __________________________________
▇▇▇ ▇▇▇▇▇▇▇▇ Print Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Print Name____________________________ Title: Vice President, Associate
Associate General
Counsel and Assistant
Secretary
In The Presence of (witnesses DISCOVERY ZONE, INC.
for both DISCOVERY ZONE, INC.
signatories):
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
______________________________________ __________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Print Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Print Name____________________________ Title: President
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
______________________________________ __________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ Print Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Print Name____________________________ Title: Sr. Vice President
STATE OF MASSACHUSETTS)
COUNTY OF SUFFOLK )
Before me, a Notary Public in and for said County and State,
personally appeared the above-named STATE STREET BANK AND TRUST COMPANY, a trust
company organized under the laws of Massachusetts by ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇ ▇. ▇▇▇▇▇, its Vice President and Vice President, who acknowledged
that they did sign the foregoing instrument for and on behalf of STATE STREET
BANK AND TRUST COMPANY, and that the same is the free act and deed of STATE
STREET BANK AND TRUST COMPANY and their free act and deed individually and as
such officers.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Boston, MA, this 31 day of July 1997.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
________________________
Notary Public
THIS DOCUMENT PREPARED BY AND ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
RECORDING REQUESTED BY AND My commission expires
WHEN RECORDED MAIL TO: 5/15/03
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
STATE OF ILLINOIS )
COUNTY OF DuPAGE )
Before me, a Notary Public in and for said County and State,
personally appeared the above-named ▇▇▇▇▇▇▇▇'▇ CORPORATION, a corporation
organized under the laws of Delaware by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
its VP, Deputy General Counsel and Secretary and VP, Associate General
Counsel and Assistant Secretary, who acknowledged that they did sign the
foregoing instrument for and on behalf of McDONALD'S CORPORATION, and that
the same is the free act and deed of ▇▇▇▇▇▇▇▇'▇ CORPORATION and their free
act and deed individually and as such officers.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
Oak Brook, Illinois, this 31st day of July 1997.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
________________________
Notary Public
THIS DOCUMENT PREPARED BY AND ------------------------
RECORDING REQUESTED BY AND | "OFFICIAL SEAL" |
WHEN RECORDED MAIL TO: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq. |Notary Public, State of|
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ |Illinois. My commission|
1 Liberty Plaza |expires 02/15/99 |
New York, New York 10006 -------------------------
STATE OF NEW YORK )
COUNTY OF WESTCHESTER )
Before me, a Notary Public in and for said County and State,
personally appeared the above-named DISCOVERY ZONE, INC., a corporation
organized under the laws of Delaware by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇ ▇▇▇▇▇▇, its President and Vice President, who acknowledged
that they did sign the foregoing instrument for and on behalf of DISCOVERY ZONE,
INC., and that the same is the free act and deed of DISCOVERY ZONE, INC. and
their free act and deed individually and as such officers.
IN TESTIMONY WHEREOF, I have hereunto set my hand and official seal at
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇, this 28th day of July 1997.
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
________________________
Notary Public
THIS DOCUMENT PREPARED BY AND ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
RECORDING REQUESTED BY AND Notary Public State of New York
WHEN RECORDED MAIL TO: No. 4997846
▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq. Qualified in New York County
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Commission expires June 15, 1998
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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
▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇ to McDonald's, relating to mortgaged property
located in Kennesaw, in the County of ▇▇▇▇, 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 ▇▇▇▇▇, 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
▇▇▇▇▇▇▇▇ to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, as trustee, to and for the benefit of
McDonald's, relating to trust property located in ▇▇▇▇ 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
▇▇▇▇▇▇▇▇ to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 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
▇▇▇▇▇▇▇▇ to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇, Colorado, as
trustee, to and for the benefit of McDonald's, relating to trust property
located in Littleton, in the County of ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇ to
McDonald's, relating to mortgaged property located in Schaumburg, in the
County of Cook, in the State of Illinois.
9. Amended and Restated Mortgage, made as of July 29, 1997, by ▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇ to McDonald's, relating to mortgaged property located in Forest
Park, in the County of ▇▇▇▇▇▇▇▇, 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
▇▇▇▇▇▇▇▇ 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
▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ 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 (Columbus)
EXHIBIT B
LEGAL DESCRIPTION
DESCRIPTION OF 1.899 ACRES OF LAND
LOCATED ON THE SOUTHERLY SIDE OF CHANTRY
DRIVE AND WEST OF ▇▇▇▇▇ ROAD, IN THE
CITY OF COLUMBUS, COUNTY OF FRANKLIN,
STATE OF OHIO
SITUATED IN THE STATE OF OHIO, COUNTY OF FRANKLIN, CITY OF
COLUMBUS, BEING IN HALF SECTION 45, SECTION 26, TOWNSHIP 12, RANGE 21,
REFUGEE LANDS, CONTAINING 1.899 ACRES OF LAND, MORE OR LESS, SAID 1.899 ACRES
OF LAND BEING OUT OF THAT 50.917 ACRE TRACT OF LAND DESCRIBED IN THE DEED TO
CHANTRY SQUARE JOINT VENTURE, OF RECORD IN OFFICIAL RECORD 09543J14,
RECORDER'S OFFICE, FRANKLIN COUNTY, OHIO, SAID 1.899 ACRES OF LAND MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
BEGINNING AT A POINT IN A SOUTHERLY RIGHT-OF-WAY LINE OF CHANTRY
DRIVE, EIGHTY FEET IN WIDTH, AS SAID CHANTRY DRIVE IS DESIGNATED AND
DELINEATED UPON THE RECORDED PLAT OF THE DEDICATION OF SCARBOROUGH BOULEVARD,
CHANTRY DRIVE, PARK CRESCENT, ALSHIRE ROAD AND EASEMENTS, OF RECORD IN PLAT
BOOK 46, PAGE 52, 53, 54, AND 55, SAID POINT BEING THE NORTHEASTERLY CORNER
OF THAT 1.972 ACRE TRACT OF LAND DESIGNATED AS TRACT II AND DESCRIBED IN THE
DEED TO BRATCHER, CAMANITI, ▇▇▇▇▇ AND ▇▇▇▇▇▇, OF RECORD IN OFFICIAL RECORD
03520A07, BOTH BEING OF RECORD IN THE RECORDER'S OFFICE, FRANKLIN COUNTY,
OHIO, SAID POINT ALSO BEING THE TRUE PLACE OF BEGINNING FOR THE PARCEL HEREIN
DESCRIBED:
THENCE EASTWARDLY, WITH THE SOUTHERLY RIGHT-OF-WAY BOUNDARY OF SAID
CHANTRY DRIVE AND WITH THE NORTHERLY BOUNDARY OF SAID 50.917 ACRE TRACT, THE
FOLLOWING SEVEN (7) COURSES AND DISTANCES:
1) S 86 DEGREES 10' 30" E, A DISTANCE OF 232.07 FEET TO POINT OF
CURVATURE;
2) WITH THE ARC OF A CURVE TO THE RIGHT HAVING A RADIUS OF
35.00 FEET, A CENTRAL ANGLE OF 90 DEGREES 00' 00" AND A CHORD THAT
BEARS S 41 DEGREES 10' 30" E, A CHORD DISTANCE OF 49.50 FEET TO A
POINT.
3) S 86 DEGREES 10' 30" E, A DISTANCE OF 16.71 FEET TO A POINT;
4) S 17 DEGREES 53' 38" E, A DISTANCE OF 19.49 FEET TO POINT;
5) S 3 DEGREES 49' 30" W, A DISTANCE OF 166.92 FEET TO A POINT;
6) S 49 DEGREES 34' 9" W, A DISTANCE OF 113.86 FEET TO A POINT;
7) N 86 DEGREES 10' 30" W, A DISTANCE OF 209.44 FEET TO A POINT;
8) N 3 DEGREES 49' 30" E, A DISTANCE OF 299.49 FEET TO THE TRUE POINT OF
BEGINNING AND CONTAINING 1.899 ACRES OF LAND MORE OR LESS.
PARCEL 2
The Easement interest created by Article III of the Construction and Easement
Agreement recorded in Official Records Volume 24988, page D07, Recorder's
Office; Franklin County, Ohio.
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 ▇▇▇▇▇▇▇▇, 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 ▇▇▇▇, 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 ▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇ to ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, as trustee, to and for the benefit of Subordinated Creditor,
relating to trust property located in ▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ to ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇ to ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇, Colorado, as trustee, to and for the benefit of
Subordinated Creditor, relating to trust property located in Littleton, in
the County of ▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇ to Subordinated Creditor,
relating to mortgaged property located in Schaumburg, in the County of
Cook, in the State of Illinois.
9. Mortgage, made as of July 29, 1997, by ▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇ to Subordinated
Creditor, relating to mortgaged property located in Forest Park, in the
County of ▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇ 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 (Columbus)