SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
This SUBORDINATION, NON-DISTURBANCE AND AT'TORNMENT AGREEMENT (this "Agreement")
is entered into as of December 31, 1998 (the "Effective Date"), between CRIIMI
MAE Services Limited Partnership, a Maryland Limited Partnership ("Mortgagee"),
and Mountainview Thoroughbred Racing Association, a Pennsylvania corporation
("Tenant").
A. University Park Associates ("Landlord"), owns the real property located at
University Park Shopping Center (such real property, including all buildings.
improvements, structures and fixtures located thereon, shall be hereinafter
referred to as the "Landlord's Premises"), as more particularly described on
Exhibit A attached hereto.
B. Mortgagee is the holder of a loan (the "Loan") to Landlord, which Loan is
secured, in part, by that certain Mortgage, Assignment of Rents and Security
Agreement dated February 21, 1998, in favor of Mortgagee (as amended, increased,
renewed, extended, spread, consolidated, severed, restated or otherwise changed
from time to time, the "Mortgage").
C. Pursuant to that certain Johnstown OTB Lease, dated as of October ___, 1991,
(the "Lease") Landlord demised to Ladbroke Racing Management - Pennsylvania a
portion of Landlord's Premises as described in the Lease (the "Tenant's
Premises"). D. Pursuant to that certain Assignment and Assumption of Lease
Agreement, dated as of December 31, 1998, Ladbroke Racing Management -
Pennsylvania assigned its rights and delegated its obligations under the Lease
to Tenant, and Tenant assumed such rights and obligations thereunder. E. Tenant
and Mortgagee desire to agree upon the relative priorities of their interests in
Landlord's Premises and their rights and obligations if certain events occur.
NOW, THEREFORE, for good and sufficient consideration, Tenant and Mortgagee
agree:
DEFINITIONS
The following terms shall have the following meanings for purposes of this
Agreement.
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Construction-Related Obligation. A "Construction-Related Obligation" means any
obligation of Landlord under Section 14(a) and (b) of the Lease to make, pay for
or reimburse Tenant for any alterations, demolitions or other improvements or
work at Landlord's Premises, including Tenant's Premises. "Construction-Related
Obligations" shall not include: (a) reconstruction or repair following fire,
casualty or condemnation to the extent of insurance proceeds or condemnation
awards actually received by Lender or (b) day-to-day maintenance and repairs.
Foreclosure Event. A "Foreclosure Event" means: (a) foreclosure under the
Mortgage; (b) any other exercise by Mortgagee of rights and remedies (whether
under the Mortgage or under applicable law, including bankruptcy law) as holder
of the Loan and/or the Mortgage, as a result of which Successor Landlord becomes
owner of Landlord's Premises; or (c) delivery by Landlord to Mortgagee (or its
designee or nominee) of a deed or other conveyance of Landlord's interest in
Landlord's Premises in lieu of any of the foregoing.
Former Landlord. A "Former Landlord" means Landlord and any other party that was
landlord under the Lease at any time before the occurrence of any attornment
under this Agreement.
Offset Right. An "Offset Right" means any right or alleged right of Tenant to
any offset, defense claim, counterclaim, reduction, deductions or abatement
against Tenant's payment of Rent or performance of Tenant's other obligations
under the Lease, arising (whether under the Lease or other applicable law) from
Landlord's breach or default under the Lease.
Rent. The "Rent" means any fixed rent, base rent or additional rent under the
Lease.
Successor Landlord. A "Successor Landlord" means any party that becomes owner of
Landlord's Premises as the result of a Foreclosure Event.
Termination Right. A 'Termination Right" means any right of Tenant to cancel or
terminate the Lease or to claim a partial or total eviction, arising (whether
under the Lease or under applicable law) from Landlord's breach or default under
the Lease.
SUBORDINATION.
The Lease shall be, and shall at all times remain, subject and subordinate
to the Mortgage, the lien imposed by the Mortgages and all advances made under
the Mortgage.
NON-DISTURBANCE, RECOGNITION AAD ATTORNMENT
No Exercise of Mortgage Remedies Against Tenant. So long as the Tenant is not in
default of the Lease, as defined at Section 21 thereof, Mortgagee shall not name
or join Tenant as a defendant in any exercise of Mortgagee's rights and remedies
arising upon a default under the Mortgage, unless applicable law requires Tenant
to be made a party thereto as a condition to proceeding against Landlord or
prosecuting such rights and remedies. In the latter case, Mortgagee may join
Tenant as a defendant in such action only for such purpose and not to terminate
the Lease or otherwise adversely affect Tenant's rights under the Lease or this
Agreement in such action.
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Non-Disturbance and Attornment. If Tenant is not in default of the Lease, as
defined at Section 21 thereof, when Successor Landlord takes title to the
Landlord's Premises: (a) Successor Landlord shall not terminate or disturb
Tenant's possession of Tenant's Premises under the Lease, except in accordance
with the terms of the Lease and this Agreement; (b) Successor Landlord shall be
bound to Tenant under all of the terms and conditions of the Lease (except as
provided in this Agreement);
(c) Tenant shall-recognize and attorn to Successor Landlord as Tenant's direct
landlord under the Lease as modified by this Agreement; and (d) the Lease shall
continue in full force and effect as a direct lease in accordance with its terms
(except as provided in this Agreement) between
Successor Landlord and Tenant.
Further Documentation. The provisions of this Article shall be effective and
self-operative without any need for Successor Landlord or Tenant to execute any
further documents. Tenant and Successor Landlord shall, however, confirm the
provisions of this Article in writing upon written request by either of them.
PROTECTION OF SUCCESSOR LANDLORD.
Notwithstanding anything to the contrary in the Lease or the Mortgage,
Successor Landlord shall not be liable for or bound by any of the following
matters:
Claims Against Former Landlord. Any Offset Right that Tenant may have against
any Former Landlord relating to any event or occurrence before the date of
attornment, including any claim for damages of any kind whatsoever as the
result of any breach by Former Landlord that occurred before the date of
attornment. Prepayments. Any payment of Rent that Tenant may have made to
Former Landlord more than thirty (30) days before the date such Rent was
first due and payable under the Lease.
Payment; Security Deposit. Any obligation: (a) to pay Tenant any sum(s) that any
Former Landlord owed to Tenant or (b) with respect to any security
deposited with Former Landlord, unless such security was actually delivered
to Mortgagee.
Modification, Amendment or Waiver. Any modification or amendment of Sections 2,
5, 6 or 7 of the Lease, or any waiver of any terms of Sections 2, 5, 6 or 7
of the Lease, made without Mortgagee's prior written consent.
Surrender,Etc. Any consensual or negotiated surrender, cancellations or
termination of the Lease, in whole or in part, agreed upon between Landlord
and Tenant, unless effected unilaterally by Tenant pursuant to the express
terms of the Lease.
Construction-Related Obligations. Any Construction-Related Obligation of Former
Landlord.
Casualty; Condemnation. Any obligation of Former Landlord to restore the
Landlord's Premises, including the Tenant's Premises, except to the extent
of insurance proceeds or condemnation awards actually received by Mortgagee
after the deduction of all costs and expenses incurred in obtaining such
proceeds or awards, and subject to the terms of the Mortgage with respect
to the disposition of such proceeds or awards.
EXCLUSION OF SUCCESSOR LANDLORD.
Notwithstanding anything to the contrary in this Agreement or the
Lease, upon any attornment pursuant to this Agreement, the Lease shall be deemed
to have been automatically amended to provide that Successor Landlord's
obligations and liability under the Lease shall never extend beyond Successor
Landlord's (or its successors' or assigns') interest, if any, in Landlord's
Premises from time to time, Successor Landlord's interest in the Lease and the
proceeds from any sale or other disposition of Landlord's Premises by Successor
Landlord (collectively, "Successor Landlord's Interest"). Tenant shall look
exclusively to Successor Landlord's Interest (or that of its successors and
assigns) for payment or discharge of any obligations of Successor Landlord under
the Lease as modified by this Agreement.
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MORTGAGEE'S RIGHT TO CURE.
Notice to Mortgagee. Notwithstanding anything to the contrary in the Lease, the
sole exception being Section 19 of the Lease, before exercising any
Termination Right or Offset Right, Tenant shall provide Mortgagee with
notice of the breach or default by Landlord giving rise to same (the
"Default Notice") and, thereafter, the opportunity to cure such breach or
default as provided for below.
Mortgagee's Cure Period. After Mortgagee receives a Default Notice, Mortgagee
shall have a period of thirty (30) days beyond any cure period provided to
Landlord under the Lease in which to cure the breach or default by
Landlord. Mortgagee shall have no obligation to cure any breach or default
by Landlord, except to the extent that Mortgagee agrees or undertakes
otherwise in writing.
Extended Cure Period. In addition, as to any breach or default by Landlord the
cure of which requires possession and control of Landlord's Premises,
Mortgagee's cure period shall contlnu6 for such additional time as
Mortgagee may reasonably require to either (a) obtain possession and
control of Landlord's Premises and thereafter cure the breach or default
with reasonable diligence and continuity or (b) obtain the appointment of a
receiver and give such receiver a reasonable period of time in which to
cure the default.
RENT PAYMENT NOTICES.
From and after Tenant's receipt of written notice from Mortgagee (a "Rent
Payment Notice"), Tenant shall pay all Rent to Mortgagee or as Mortgagee shall
direct in writing, until such time as Mortgagee directs otherwise in writing-
Tenant shall comply with any Rent Payment Notice, notwithstanding any contrary
instruction, direction or assertion from Landlord. Mortgagee's delivery to
Tenant of a Rent Payment Notice, or Tenant's compliance therewith, shall not be
deemed to: (a) cause Mortgagee to succeed to or to assume any obligations or
responsibilities as Landlord under the Lease, all of which shall continue to be
per-formed and discharged solely by Landlord unless and until any attornment has
occurred pursuant to this Agreement; or (b) relieve Landlord of any obligations
under the Lease.
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CONFIRMATION OF FACTS.
Tenant represents to Mortgagee and to any Successor Landlord, in each case
as of the Effective Date:
Effectiveness of Lease. The Lease is in full force and effect, has not been
modified and constitutes the entire agreement between Landlord and Tenant
relating to Tenant's Premises. Tenant has no interest in Landlord's
Premises except pursuant to the Lease. No unfulfilled conditions exist to
Tenant's obligations under the Lease.
Rent.Tenant has not paid any Rent that is first due and payable under the Lease
after the Effective Date.
No Landlord Default. To the best of Tenant's knowledge, no breach or default
by Landlord exists and no event has occurred that, with the giving of
notice, the passage of time or both, would constitute such a breach or
default.
No Tenant Default. Tenant is not in default under the Lease and has not
received any uncured notice of any default by Tenant under the Lease.
No Termination . Tenant has not commenced any action nor sent or received any
notice to terminate the Lease. Tenant has no presently exercisable
Termination Right(s) or Offset Right(s).
Commencement Date. The "Commencement Date" of the Lease was ________________,
199_.
Acceptance. Tenant has accepted possession of Tenant's Premises and Landlord has
performed all Construction-Related Obligations related to Tenant's initial
occupancy of Tenant's Premises and Tenant has accepted such performance by
Landlord.
No Transfer. Tenant has not transferred, encumbered, mortgaged, assigned,
conveyed or otherwise disposed of the Lease or any interest therein.
Due Authorization. Tenant has full authority to enter into this Agreement,
which has been duly authorized by all necessary actions.
MISCELLANEOUS.
Notices. All notices or other communications required or permitted under this
Agreement shall be in writing and given by certified mail (return receipt
requested) or by nationally recognized overnight courier service that
regularly maintains records of items and shall be delivered to Mortgagee or
Tenant (applicable) at the addresses set forth below. Notices shall be
effective upon receipt.
If to Tenant: Mountainview Thoroughbred Racing Association
Wyomissing Professional Center
825 Berkshire Boulevard, Suite 200
Wyomissing, PA 19610
Attn: William J. Bork, President
With a copy to: Mesirov Gelman Jaffe Cramer & Jamieson, LLP
1735 Market Street
38th Floor
Philadelphia, PA 19103
Attn: Robert P. Krauss, Esquire
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If to Mortgagee: Norwest Bank Minnesota, National Association,
as indenture trustee for the CRIIMI MAE CMBS
Corp., Commercial Mortgage Loan Trust
Certificates, Series 1998-1
11000 Broken Land Parkway
Columbia, MD 21044-3562
Attn: Corporate Trust Services, CRIIMI MAE 1998-1
With a copy to: CRIIMI MAE Services Limited Partnership,
as special servicer for the CRIIMI MAE CMBS
Corp., Commercial
Mortgage Loan Trust Certificates, Series 1998-1
11200 Rockville Pike
Rockville, MD 20852
Attn: David B. Iannarone, Esquire
Successors and Assigns. This Agreement shall bind and benefit the parties, their
successors and assigns, any Successor Landlord and its successors and
assigns. If Mortgagee assigns the Mortgage, upon delivery to Tenant of
written notice thereof all liability of the assignor shall terminate.
Entire Agreement. This Agreement constitutes the entire agreement between
Mortgagee and Tenant regarding the subordination of the Lease to the
Mortgage and the rights and obligations of Tenant and Mortgagee as to the
subject matter of this Agreement.
Interaction with Lease. If this Agreement conflicts with the Lease, then this
Agreement shall govern as between the parties and any Successor Landlord,
including upon an), attornment pursuant to this Agreement.
Mortgagee's Rights and Obligations. Except as expressly provided for in this
Agreement, Mortgagee shall have no obligations to Tenant with respect to
the Lease. If an attornment occurs pursuant to this Agreement, all rights
and obligations of Mortgagee under this Agreement shall terminate, without
thereby affecting in any way the rights and obligations of Successor
Landlord provided for in this Agreement.
Interpretation; Governing Law. The interpretation, validity and enforcement of
this Agreement shall be governed by and construed under the internal laws
of the state where the Landlord's Premises is located excluding its
principles of conflict of laws.
Amendments. This Agreement may be amended, discharged or terminated, or any of
its provisions waived, only by a written instrument executed by the party
to be charged.
Execution. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original and all of which together shall
constitute one and the-same instrument.
Mortgagee's Authority. Mortgagee represents that Mortgagee has full authority to
enter into this Agreement, and Mortgagee's entry into this Agreement has
been duly authorized by all necessary actions.
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IN WITNESS WHEREOF, this Agreement has been duly executed by Mortgagee
and Tenant as of the Effective Date.
MORTGAGEE TENANT
CRIIMI MAE Services Limited Partnership, as
special servicer for the CRIIMI MAE CMBS Mountainview Thoroughbred Racing
Corp., Commercial Mortgage Loan Trust Association
certificates Series 1998-1
By: CRIIMI MAE Services, Inc., its general partner By:\s\William J. Bork__
Name:__\s\Kathryn C. Parks_________ Name: William J. Bork
Title:___Vice President______________ Title: Vice President
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Landlord consents and agrees to the terms of the foregoing Agreement, which
was entered into at Landlord's request. The foregoing Agreement shall not alter,
waive or diminish any of Landlord's obligations under the Mortgage or the Lease.
The above Agreement discharges any obligations of Mortgagee under the Mortgage
and related loan documents to enter into a non-disturbance agreement with
Tenant.
Landlord irrevocably directs Tenant to comply with any Rent Payment Notice,
notwithstanding any contrary direction, instructions, or assertion by Landlord.
Tenant shall be entitled to rely on any Rent Payment Notice. Tenant shall be
under no duty to controvert or challenge any Rent Payment Notice. Tenant's
compliance with a Rent Payment Notice shall not be deemed to violate the Lease.
LANDLORD
---------------------------------
By:______________________________
Name:____________________________
Title:_____________________________
Dated: _______________, 19__
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Each of the undersigned, a guarantor of Tenant's obligations under the
Lease (a "Guarantor"), consents to Tenant's execution, delivery and performance
of the foregoing Agreement. From and after any attornment pursuant to the
foregoing Agreement, that certain Guaranty dated _____________, 199_ (the
"Guaranty") executed by Guarantor in favor of shall automatically benefit and be
enforceable by Successor Landlord with respect to Tenant's obligations under the
Lease as affected by the foregoing Agreement. Successor Landlord's rights under
the Guaranty shall not be subject to any defense, offset, claim, counterclaim,
reduction or abatement of any kind resulting from any act, omission or waiver by
any Former Landlord for which Successor Landlord would, -pursuant to the
foregoing Agreement, not be liable or answerable after an attornment. Guarantor
confirms that the Guaranty is in full force and effect and Guarantor currently
has no offset, defense (other than any arising from actual payment or
performance by Tenant, which payment or performance would bind a Successor
Landlord under the foregoing Agreement), claim, counterclaim, reduction.
deduction or abatement against Guarantor's obligations under the Guaranty.
GUARANTOR
---------------------------------
By:______________________________
Name:____________________________
Title:_____________________________
Dated: _______________, 19__
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