sec document

EX-10.15 15 ex1015tos4a_12122003.htm sec document

EXHIBIT 10.15

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AMERICAS TOWER PARTNERS and MONTICELLO REALTY, L.L.C.

and

MONTICELLO RACEWAY MANAGEMENT, INC.

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NON-DISTURBANCE

AND ATTORNMENT AGREEMENT

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October 29, 2003

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This instrument affects real property situated, lying and being in Monticello,
Sullivan County, New York, known as follows:

SECTIONS: 101, 102, 12
BLOCKS: 1,4
LOTS: 1.1, 1.3, 1,
37.6, 46.2,
48,64

RECORD AND RETURN TO:

Latham & Watkins
885 Third Avenue, Suite 1000
New York, New York 10022-4802

Att'n: James I. Hisiger, Esq.

Title No.: TBA-01024-SU

Latham & Watkins File No.: 025709-0005

NONDISTURBANCE

AND ATTORNMENT AGREEMENT

This NONDISTURBANCE AND ATTORNMENT AGREEMENT (the "AGREEMENT") is made and
entered into as of October _, 2003, by and between Americas Tower Partners, a
New York general partnership, and Monticello Realty, L.L.C., a Delaware limited
liability company, each of whose address is c/o Patterson, Belknap, Webb &
Tyler, LLP, 77 East 77th Street, New York, New York 10022 (together with each of
their successors, assigns, legal representatives, designees, nominees, and
wholly owned subsidiaries, "SENIOR ESTATE HOLDER"), and Monticello Raceway
Management, Inc., a New York corporation, whose address is the Monticello
Raceway, Route 17B, Monticello, New York 12701-5193 (together with its
successors, assigns and legal representatives, "TENANT") [Add Berkshire Bank?].
This Agreement is entered into with reference to the following facts:

A. Catskill Development, L.L.C., a New York limited liability company, whose
address is the Monticello Raceway, Route 17B, Monticello, New York 12701-5193
(together with its predecessors, successors, assigns, designees, and nominees,
"LANDLORD") owns the real property described in EXHIBIT A, commonly known as
Monticello Raceway (such real property, including all buildings, improvements,
structures and fixtures located thereon the "PROJECT SITE"). Landlord's fee
estate in and to the Project Site is referred to as "LANDLORD'S ESTATE."

B. As security for a loan in the original amount of $5,000,000 (as increased
or decreased from time to time, the "LOAN") and for all of Landlord's
obligations pursuant to any and all other documentation entered into or to be
entered into from time to time with respect to the Loan, Landlord has encumbered
Landlord's Estate by entering into that certain Mortgage, dated October 1, 1999,
in favor of Senior Estate Holder (as amended, modified or supplemented from time
to time, the "MORTGAGE"; and the estate thereunder, the "SENIOR ESTATE"). The
Mortgage was recorded on November 21, 2002, at Book 2488, Page 446, of the
Official Records of County of Sullivan, State of New York (the "LAND RECORDS").

C. Pursuant to a certain Agreement of Lease, dated as of the date hereof (as
amended and modified, the "LEASE"), Landlord demised to Tenant the Project Site
(the "TENANT'S PREMISES"). A memorandum of the Lease is to be recorded prior to
the recording of this Agreement in the Land Records.

D. Pursuant to the Lease, Tenant has agreed to pay Landlord certain
payments, including fixed or base rent, additional rent, and any and all other
payments of any kind provided for or required under the Lease (the "RENT").

E. Concurrently with the execution and delivery of the Lease, Tenant is
executing a certain Leasehold Mortgage, Security Agreement, Assignment of Leases
and Rents and Fixture Filing, dated as of the date of the Lease (as modified
from time to time, the "BERKSHIRE MORTGAGE") in favor of The Berkshire Bank
(together with its nominees, its successors and/or its assigns, the "LEASEHOLD
MORTGAGEE"), securing a loan in the original amount of $3,500,000 by the
Leasehold Mortgagee to Tenant (the "BERKSHIRE LOAN"), and encumbering Tenant's
Premises and all of Tenant's right, title and interest in and to the Lease
("TENANT'S ESTATE").

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F. Tenant and Senior Estate Holder desire to confirm their rights and
obligations if and when Senior Estate Holder exercises any of its rights and
remedies as holder of the Senior Estate and becomes the holder of, or has
terminated, Landlord's Estate (an "ENFORCEMENT PROCEEDING").

G. Tenant and Senior Estate Holder desire to establish and confirm certain
rights in favor of the Leasehold Mortgage in the event of any Enforcement
Agreement.

NOW, THEREFORE, for and in consideration of the premises, and the mutual
covenants contained herein, and for other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties agree as follows:

1. ENFORCEMENT PROCEEDING; RECOGNITION, ATTORNMENT AND NONDISTURBANCE.

If Senior Estate Holder commences any Enforcement Proceeding, then whether
or not Tenant was named in such Enforcement Proceeding, the parties shall have
the following rights and obligations.

2. ATTORNMENT AND NONDISTURBANCE. If and only if (a) the Lease is in full force
and effect; (b) Tenant is not in default of any of its obligations under the
Lease beyond any applicable notice and cure period; (c) Tenant is not in default
beyond applicable notice and cure periods in performing its obligations under
this Agreement; and (d) if an Enforcement Proceeding has been completed, Tenant
has attorned (or attorns prior to the sale of Landlord's Estate pursuant to such
Enforcement Proceeding) to Senior Estate Holder as required by this Agreement
then, subject to the terms and conditions of this Agreement, Senior Estate
Holder shall not name or join Tenant as a defendant in any Enforcement
Proceeding unless such joinder is required by law in order to perfect such
Enforcement Proceeding. In addition: (i) Tenant shall recognize and attorn to
Senior Estate Holder as Tenant's direct Landlord under the Lease; (ii) Senior
Estate Holder shall honor the Lease and Tenant's rights thereunder; (iii) the
Lease and Tenant's rights thereunder shall continue in full force and effect as
a direct lease between Senior Estate Holder and Tenant in accordance with the
terms of the Lease and shall not be terminated or disturbed, except in
accordance with the terms of the Lease; (iv) neither the commencement nor the
completion of Senior Estate Holder's Enforcement Proceeding shall terminate the
Lease or disturb Tenant in the possession and use of Tenant's Premises; (v)
Tenant shall have the same remedies against Senior Estate Holder for the breach
of the Lease that Tenant would have had against Landlord if the Enforcement
Proceeding had not been completed; and (vi) Senior Estate Holder shall have the
same remedies against Tenant for Tenant's breach of the Lease that Landlord
would have had against Tenant if the Enforcement Proceeding had not been
completed ("i" through "vi," collectively, an "ATTORNMENT").

3. IMPLEMENTATION OF ATTORNMENT.

In connection with any Attornment, notwithstanding anything to the contrary
in the Lease or this Agreement (but subject to the provisions of Section 6
below), Tenant and Senior Estate Holder agree as follows.

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3.1. EFFECT OF ATTORNMENT; FURTHER DOCUMENTATION. Such Attornment shall be
effective and self-operative without the execution of any further instruments by
Senior Estate Holder or Tenant.

3.2. SENIOR ESTATE HOLDER PROTECTIONS. Notwithstanding anything to the
contrary in the Lease, the instrument creating the Senior Estate, or this
Agreement, from and after any Attornment neither Senior Estate Holder nor anyone
claiming by, through, or under Senior Estate Holder shall, directly or
indirectly, be liable for, or bound by, any of the matters described below (the
following exclusions and limitations are referred to as the "SENIOR ESTATE
HOLDER PROTECTIONS"). Senior Estate Holder shall not be:

3.2.1. CLAIMS AGAINST LANDLORD. Liable in any way, including by way of
offset, defense, claim, counterclaim, reduction, deduction, abatement, or right
of recoupment (the foregoing, collectively, "OFFSET RIGHTS"), with respect to
any claim of any kind whatsoever that Tenant may have against Landlord,
including any claim for damages of any kind whatsoever (including consequential
damages) as the result of any act, omission or default of Landlord, or for any
claim that Tenant may have against Landlord, or any other matter that occurred
before the date of Attornment, except that Senior Estate Holder shall be subject
to any Offset Rights expressly provided for by the terms of the Lease and shall
be responsible for all performance obligations by Landlord from and after the
date that Senior Estate Holder succeeds to the Landlord's Estate; provided,
however, that Tenant and/or (as applicable) the Leasehold Mortgagee shall have
the full benefit as against Senior Estate Holder of the rent deferral rights of
Tenant and Leasehold Mortgagee under Section 3.1.3 of the Lease; or

3.2.2. PREPAYMENTS. Bound by any prepayment of Rent that Tenant may have
made to Landlord, other than Rent for the month in which Senior Estate Holder
succeeds to Landlord's rights under the Lease; or

3.2.3. PAYMENT; SECURITY DEPOSIT. Bound by any obligation to make any
payment to Tenant (including reimbursement of any security deposited with
Landlord, unless such security has actually been physically delivered to Senior
Estate Holder); or

3.2.4. MODIFICATION, AMENDMENT, ETC. Bound by any modification,
amendment, cancellation, termination, surrender, abridgment or other change
affecting the Lease made without written consent by Senior Estate Holder.

4. RENT PAYMENT.

Upon written request by Senior Estate Holder (a "RENT PAYMENT NOTICE"),
Tenant shall from and after receipt of such Rent Payment Notice pay all Rent to
Senior Estate Holder or as Senior Estate Holder shall direct in writing, until
such time as Senior Estate Holder directs otherwise in writing. Tenant shall
comply with any Rent Payment Notice notwithstanding any contrary instructions,
directions or assertions from Landlord. In connection with the foregoing, Senior
Estate Holder and Tenant further agree and acknowledge that any dispute between
Senior Estate Holder and Landlord as to Senior Estate Holder's right to collect
Rent, or with respect to any Enforcement Proceeding, shall be resolved solely
between Senior Estate Holder and

Page 4

Landlord, and Tenant shall not be made a party thereto (unless required by law).
As between Senior Estate Holder and Tenant, if and when Senior Estate Holder has
given Tenant a Rent Payment Notice, Tenant's obligation to comply with such Rent
Payment Notice shall be absolute and unconditional.

5. NOTICES; LEASE TERMINATION.

5.1. COPIES OF NOTICES. Tenant agrees to send Senior Estate Holder a
copy of any notice or statement under the Lease at the same time Tenant sends
such notice or statement to Landlord.

5.2. TERMINATION OF LEASE. Subject to the provisions of Section 6
hereof, if the Lease terminates for any reason, including pursuant to the
operation of a conditional limitation or other termination clause contained in
the Lease, but excluding any purported termination of the Lease made without
Senior Estate Holder's written consent, then this Agreement and any and all
rights of Tenant hereunder shall automatically terminate, expire and come to an
end as fully and completely as if this Agreement had never been entered into.

6. LEASEHOLD MORTGAGEE PROTECTIONS. Notwithstanding anything to the contrary
contained in this Agreement, the Mortgage or any other document to which Senior
Estate Holder and/or Tenant is a party, until such time as the Berkshire Loan
(including all principal, interest and other amounts due thereunder) has been
indefeasibly paid in full, the following provision shall apply:

6.1. CONSENT. Senior Estate Holder hereby consents to the execution,
delivery and recording of the Leasehold Mortgage by Tenant against Tenant's
Estate.

6.2. COPIES OF NOTICES. Concurrently with the delivery of any notice by
Senior Estate Holder to Landlord under the Mortgage, Senior Estate Holder shall
deliver a copy of such notice to the Leasehold Mortgagee at Leasehold
Mortgagee's address specified in Section 7 below, or at such other address as
shall be specified by Leasehold Mortgagee in writing to Senior Estate Holder.

6.3. OPPORTUNITY TO CURE AND PREVENT LEASE TERMINATION. In the event
that Senior Estate Holder (i) elects to join Landlord in any Enforcement
Proceeding or (ii) desires to terminate the Lease by reason of a failure of the
conditions to an Attornment specified in Section 2 hereof, Senior Estate Holder
shall give written notice to Leasehold Mortgagee, and Leasehold Mortgagee shall
have the right to deliver to Landlord and to Senior Estate Holder a
"Nullification Notice" pursuant to the provision of Section 11.2 of the Lease
within thirty (30) days after delivery of Senior Estate Holder's notice pursuant
to this Section 6.3, and upon such delivery, Leasehold Mortgagee shall have the
rights and obligations specified in Sections 11.2 and 11.3 of the Lease and the
Lease shall not terminate as provided therein.

6.4. PERFORMANCE BY LEASEHOLD MORTGAGEE. Leasehold Mortgagee shall have
the right, but not the obligation, to perform any obligation of Tenant under the
Lease and to remedy any default by Tenant. Senior Estate Holder shall accept
performance by or at the instigation of a Leasehold Mortgagee in fulfillment of
Tenant's obligations, for the account of Tenant and with the same force and
effect as if performed by Tenant. No performance by or on behalf of

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Leasehold Mortgagee shall cause it to become a "mortgagee in possession" or
otherwise cause it to be deemed to be in possession of Tenant's Premises or
bound by or liable under the Lease.

6.5. NEW LEASE. In the event that the Lease is terminated for any
reason, Senior Estate Holder agrees Leasehold Mortgagee shall have the right to
require the execution and delivery of a new lease in favor of Leasehold
Mortgagee or its designee as specified in Section 11.4 of the Lease.

6.6. CASUALTY, CONDEMNATION PROCEEDS. The provisions of Articles 3 and 4
of the Leasehold Mortgage shall apply, notwithstanding any conflict with the
provisions of Articles 7, 11 and 28 of the Lease and any provision of the
Mortgage.

6.7. MODIFICATION, AMENDMENT, ETC. Leasehold Mortgagee shall not be
bound by any modification or amendment (other than to extend the term thereof),
or increase in the Mortgage or, to the extent secured by Landlord's Estate, the
Loan, made without the prior written consent thereof by Leasehold Mortgagee.

6.8. THIRD PARTY BENEFICIARY. Leasehold Mortgagee is an express third
party beneficiary of this Agreement.

7. SUBORDINATION.

Tenant confirms that notwithstanding the provisions of this Agreement,
the Lease shall be and shall at all times remain subject and subordinate to the
lien on the Project Site held by Senior Estate Holder, which subordination is
also confirmed in Section 22.4 of the Lease.

8. NOTICES.

All notices or other communications required or permitted under the
terms hereof shall be given in the manner provided for in Article 27 of the
Lease, which section is incorporated by reference in this Agreement. Without
limiting the other provisions of this paragraph relating to effectiveness of
notices, any notice to Tenant under this Agreement shall be deemed effective for
all purposes when and if actually received by Tenant, whether or not delivered
in compliance with this paragraph.

Notices to Senior Estate Holder shall be addressed as follows:

Americas Tower Partners
Monticello Realty, L.L.C.
[c/o Patterson, Belknap, Webb & Tyler, LLP
77 East 77th Street
New York, New York 10022]
Att'n:
Telephone:
Facsimile:

with a copy to:

Page 6

Patterson, Belknap, Webb & Tyler LLP
[1133 Avenue of the Americas
New York, New York 10036]
Att'n: Henry Bubel, Esq.
Telephone:
Facsimile:

Notices to Tenant shall be addressed as follows:

Monticello Raceway Management, Inc.,
Monticello Raceway,
Route 17B
Monticello, New York 12701-5193

Notices to Leasehold Mortgagee shall be addressed as follows:

The Berkshire Bank
4 East 39th Street
New York, New York 100_
Attention: President

with a copy to:

Blank Rome LLP
405 Lexington Avenue
New York, New York 10174
Attention: Emanuel J. Adler, Esq.

9. MISCELLANEOUS.

9.1. SUCCESSORS AND ASSIGNS. This Agreement shall bind and benefit the
parties and their successors and assigns. The parties further agree as follows
with respect to assignments or transfers.

9.2. TRANSFER BY SENIOR ESTATE HOLDER. If Senior Estate Holder assigns
or transfers the Senior Estate or its interest as Landlord under the Lease, then
all obligations and liabilities of Senior Estate Holder under this Agreement
andlor the Lease shall terminate, and thereupon all such obligations and
liabilities shall be solely the responsibility of the party to whom the Senior
Estate or the landlord's estate under the Lease is assigned or transferred,
which assignee shall be deemed to have assumed such obligations and liabilities
subject to the limitations of liability contained in this Agreement, including
this paragraph.

9.3. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
of Tenant and Senior Estate Holder between themselves as to Tenant's Premises,
the Lease, and any Enforcement Proceeding. In the event of any inconsistency
between this Agreement and the Lease, this Agreement shall govern as between
Senior Estate Holder and Tenant, even if Senior Estate Holder succeeds to
Landlord's position as Landlord under the Lease.

Page 7

9.4. PARTIAL INVALIDITY. If any provision(s) of this Agreement are held
to be invalid, illegal or unenforceable in any respect, then such invalidity,
illegality or unenforceability shall not affect any other provision of this
Agreement, except that if such invalidity, illegality or unenforceability
prevents Senior Estate Holder from enforcing a Rent Payment Notice, or impairs
or limits any of the Senior Estate Holder Protections, then Senior Estate Holder
shall be entitled at its option to terminate and rescind this Agreement in its
entirety.

9.5. INTERPRETATION; GOVERNING LAW. In this Agreement, "including" means
"including without limitation." The interpretation, validity and enforcement of
this Agreement shall be governed by and construed under the laws of the State of
New York without regard to its principles of conflict of laws.

9.6. AMENDMENTS. This Agreement may be amended, discharged or terminated
only by a written instrument executed by the parties. Amendments shall not
require Landlord's consent. Each party covenants not to rely on any oral
modification, amendment or cancellation of this Agreement.

9.7. EXECUTION. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered shall be deemed to be
an original and all of which counterparts taken together shall constitute but
one and the same instrument.

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IN WITNESS WHEREOF, this Agreement has been duly executed by Senior
Estate Holder and Tenant.

AMERICAS TOWER PARTNERS

By: /s/ Joseph Bernstein
-----------------------------------------------
Name: Joseph Bernstein
Title: Executive Vice President

MONTICELLO REALTY L.L.C.

By: Manattan Development Corporation, its Manager

By: /s/ Joseph Bernstein
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Name: Joseph Bernstein
Title: Executive Vice President

ACKNOWLEDGMENTS

STATE OF NEW YORK )
ss.
COUNTY OF NEW YORK )

On the 28th day of October in the year 2003 before me, the undersigned,
personally appeared Joseph Bernstein, personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in his
capacities, and that by his signatures on the instrument, such individual
executed the instrument.

/s/ Laura J. Strache
--------------------------------------------------
Laura J. Strache
Notary Public, State of New York
No. 01ST6079803
Qualified in New York County
Commission Expires September 3, 2006

MONTICELLO RACEWAY MANAGEMENT, INC.

By: /s/ Thomas W. Aro
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Name: Thomas W. Aro
Title: CEO

ACKNOWLEDGMENTS

STATE OF NEW YORK )
ss.
COUNTY OF NEW YORK )

On 28th day of October in the year 2003 before me, the undersigned,
personally appeared Thomas W. Aro , personally known to me or proved to me on
the basis of satisfactory evidence to be the individual whose name is subscribed
to the within instrument and acknowledged to me that he executed the same in his
capacities, and that by his signatures on the instrument, such individual
executed the instrument.

/s/ REGINA M HENSLEY
--------------------------------------------------
REGINA M HENSLEY

S-2

IN WITNESS WHEREOF, this Agreement has been duly executed by Landlord.

CATSKILL DEVELOPMENT, L.L.C.

By: /s/ Joseph Berstein
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Name: Joseph Berstein
Title: Executive Vice President

ACKNOWLEDGMENTS

STATE OF NEW YORK )
ss.
COUNTY OF NEW YORK )

/s/ Laura J. Strache
--------------------------------------------------
Laura J. Strache
Notary Public, State of New York
No. 01 ST6079803
Qualified in New York County
Commission Expires September 3, 2006

S-3

IN WITNESS WHEREOF, this Agreement has been duly executed by Senior
Estate Holder and Tenant.

AMERICAS TOWER PARTNERS

By:
-----------------------------------------------
Name:
Title:

MONTICELLO REALTY, L.L.C.

By:
-----------------------------------------------
Name:
Title:

MONTICELLO RACEWAY MANAGEMENT, INC.

By:
-----------------------------------------------
Name:
Title:

CATSKILL DEVELOPMENT, L.L.C.

By:
-----------------------------------------------
Name:
Title:

THE BERKSHIRE BANK

By: /s/ Peter H. Kim
-----------------------------------------------
Name:
Title:

ACKNOWLEDGMENTS

STATE OF NEW YORK )
ss.
COUNTY OF NEW YORK )

On the_________________________ day of October, 2003, before me
personally came________________________________________________________, to me
known, who, being by me duly sworn, did depose and say
that_______________________________________________________________ resides at ,
that _ he is the____________________________, of________________________, the
corporation described in and which executed the foregoing instrument; and that _
he signed h_ name thereto by authority of the board of directors of said
corporation.

_________________________________
Notary Public

STATE OF NEW YORK )
ss.
COUNTY OF NEW YORK )

On the_________________________ day of October, 2003, before me
personally came_______________________________________________________, to me
known, who, being by me duly sworn, did depose and say
that_______________________________________________________________ resides at ,
that - he is the____________________________ of_______________________. , the
corporation described in and which executed the foregoing instrument; and that _
he signed h_ name thereto by authority of the board of directors of said
corporation.

_________________________________
Notary Public

STATE OF NEW YORK )
ss.
COUNTY OF NEW YORK )

On the 29th day of October, 2003, before me personally came Peter H.
Kim, to me known, who, being by me duly sworn, did depose and say that
___________________________ resides at Morganville, NJ, that _he is the Vice
President of Berkshire Bank,a corporation described in and which executed the
foregoing instrument; and that __ he signed his name thereto by authority of the
board of directors of said corporation.

/s/ Mariana Fradman
--------------------------------- MARIANA FRADMAN
Notary Public

EXHIBIT A
(Description of Land)

ALL of that certain lot, piece or parcel of land, with the buildings and
improvements thereon, situate, lying and being

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