Exhibit 10.63
ENVIRONMENTAL INDEMNITY
AGREEMENT
ENVIRONMENTAL INDEMNITY AGREEMENT,
dated as of November , 2006 (as amended, restated,
replaced, supplemented or otherwise modified from time to time,
this “ Agreement ”), made by PH FEE OWNER LLC, a
Delaware limited liability company (“ Fee Owner
”), and OPBIZ, L.L.C., a Nevada limited liability company
(“ OpBiz ” and, together with Fee Owner,
individually or collectively as the context indicates, “
Borrower ”), each having an address at 3667 Las Vegas
Boulevard South, Las Vegas, Nevada 89109, in favor of COLUMN
FINANCIAL, INC., a Delaware corporation (together with its
successors and assigns, collectively, “ Lender
”), having an address at 11 Madison Avenue, New York, New
York 10010 and other Indemnified Parties (defined
below).
RECITALS:
WHEREAS, pursuant to that certain
Promissory Note, dated as of the date hereof (as the same may be
amended, restated, replaced, supplemented, or otherwise modified
from time to time, the “Note”), executed by Borrower,
and payable to the order of Lender in the original principal amount
of up to $820,000,000, Borrower is indebted, and may from time to
time be further indebted, to Lender with respect to a loan (the
“ Loan ”) made pursuant to that certain Loan
Agreement, dated as of the date hereof (as amended, restated,
replaced, supplemented, or otherwise modified from time to time,
the “ Loan Agreement ”), between Borrower and
Lender, which Loan is secured (in part) by that certain Deed of
Trust, Security Agreement, Assignment of Leases and Rents,
Financing Statement and Fixture Filing, dated as of the date hereof
(as amended, restated, replaced, supplemented, or otherwise
modified from time to time, the “ Security Instrument
”), and further evidenced, secured or governed by other
instruments and documents executed in connection with the Loan
(together with the Note, the Loan Agreement and Security
Instrument, collectively, the “ Loan Documents
”);
WHEREAS, Lender is unwilling to make
the Loan unless Borrower agrees to provide the indemnification,
representations, warranties, covenants and other matters described
in this Agreement for the benefit of the Indemnified
Parties;
WHEREAS, Borrower is entering into
this Agreement to induce Lender to make the Loan.
NOW, THEREFORE, in consideration of
the premises and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Borrower hereby
represents, warrants, covenants and agrees for the benefit of the
Indemnified Parties as follows:
1.
Environmental Representations and Warranties . Borrower
represents and warrants that, except as otherwise disclosed by that
certain Phase I environmental report prepared by LandAmerica
Assessment Corporation, dated September 13, 2006, (or Phase II
environmental report, if required by Lender) with respect to the
Property delivered to Lender by Borrower in connection with the
origination of the Loan (hereinafter referred to as the “
Environmental Report ”), to Borrower’s
knowledge; (a) there are no Hazardous Substances (defined below) or
underground storage tanks in, on, or under the Property, except
those that are both (i) in compliance with all applicable
Environmental Laws (defined below) and with permits
issued pursuant thereto and (ii)
disclosed to Lender in writing pursuant to the Environmental
Report; (b) there are no past, present or threatened Releases
(defined below) of Hazardous Substances in, on, under or from the
Property which have not been fully remediated as required by
Environmental Laws in accordance with Environmental Law; (c) no
written notice or other such communication exists from any Person
(including but not limited to a Governmental Authority) relating to
any threat of any Release of Hazardous Substances migrating to the
Property; (d) there is no past or present material non-compliance
with Environmental Laws, or with permits issued pursuant thereto,
in connection with the Property which has not been fully remediated
as required by Environmental Laws; (e) no written notice or other
such communication exists from any Person (including but not
limited to a Governmental Authority) relating to a Release of
Hazardous Substances or Remediation (defined below) thereof, of
liability of any Person pursuant to any Environmental Law, any
other environmental conditions in connection with the Property, or
any actual or potential administrative or judicial proceedings in
connection with any of the foregoing; and (f) Borrower has
delivered to Lender, in writing, any and all information relating
to conditions in, on, under or from the Property and all
information that is contained in files and records of Borrower
relating to environmental conditions at the Property, including but
not limited to any reports relating to Hazardous Substances in, on,
under or from the Property.
2 .
Environmental Covenants . Borrower covenants and agrees
that: (a) all uses and operations on or of the Property, whether by
Borrower or any other Person (subject to commercially reasonable
efforts by Indemnitor to the extent relating to the acts or
omissions of Persons that are not Affiliates of Borrower), shall be
in compliance with all Environmental Laws and permits issued
pursuant thereto; (b) there shall be no Releases of Hazardous
Substances in, on, under or from the Property, except those that
are (i) in compliance with all Environmental Laws and with permits
issued pursuant thereto and (ii) fully disclosed to Lender in
writing; (c) there shall be no Hazardous Substances in, on, or
under the Property, except those that are (i) in compliance with
all Environmental Laws and with permits issued pursuant thereto and
(ii) fully disclosed to Lender in writing; (d) Borrower shall keep
the Property free and clear of all liens and other encumbrances
imposed pursuant to any Environmental Law, whether due to any act
or omission of Borrower or any other Person (the “
Environmental Liens ”); (e) Borrower shall, at its
sole cost and expense, fully and expeditiously cooperate in all
activities pursuant to Section 3 of this Agreement,
including, but not limited to, providing all relevant information
and making knowledgeable persons available for interviews upon
request; (f) Borrower shall, at its sole cost and expense, perform
any environmental site assessment or other investigation of
environmental conditions in connection with the Property pursuant
to any reasonable written request of Lender made in the event that
Lender reasonably and in good faith believes that Hazardous
Substances or other environmental hazards exist on the Property in
violation of Environmental Law (including, but not limited to,
sampling, testing and analysis of soil, water, air, building
materials, and other materials and substances whether solid, liquid
or gas), and share with Lender the reports and other results
thereof, and Lender and the other Indemnified Parties shall be
entitled to rely on such reports and other results thereof; (g)
Borrower shall, at its sole cost and expense, comply with all
reasonable written requests of Lender made in the event that Lender
reasonably and in good faith believes that Hazardous Substances or
other environmental hazards exist on the Property in violation of
Environmental Law to (i) effectuate Remediation of any condition
(including, but not limited to, a Release of a Hazardous Substance)
required by Environmental Laws in, on, under or from the Property;
(ii) comply with any Environmental
2
Law; (iii) comply with any directive
from any Governmental Authority; and (iv) take any other reasonable
action necessary or appropriate for protection of human health or
the environment when required by Environmental Law or supported by
the opinion of a qualified technical consultant; (h) Borrower shall
not take any action, and shall use commercially reasonable efforts
not to allow any tenant or other user of the Property to take any
action with respect to Hazardous Substances, that materially
increases the dangers to human health or the environment on the
Property, poses an unreasonable risk of harm to any Person (whether
on or off the Property), impairs the value of the Property, is
contrary to any requirement of any insurer of the Property,
constitutes a public or private nuisance, constitutes waste, or
violates any covenant, condition, agreement or easement applicable
to the Property; and (i) Borrower shall promptly notify Lender in
writing of (A) any presence or Releases of Hazardous Substances in,
on, under, or from the Property, (B) any material non-compliance
with any Environmental Laws related in any way to the Property, (C)
any actual Environmental Lien, (D) any required or proposed
Remediation of Hazardous Substances relating to the Property and
(E) any written notice or other such communication of which
Borrower becomes aware from any source whatsoever (including, but
not limited to, a Governmental Authority) relating in any way to
Hazardous Substances affecting the Property or Remediation thereof,
liability of Borrower pursuant to any Environmental Law related to
the Property, other environmental conditions pertaining to
Hazardous Substances in connection with the Property, or any actual
or potential administrative or judicial proceedings in connection
with anything referred to in this Agreement.
3.
Indemnified Rights/Cooperation and Access . In the event
that any Indemnified Party has reason to believe that a Release or
a material violation of Environmental Law exists on the Property
that, in the reasonable discretion of the Indemnified Party,
endangers any tenants or other occupants of the Property or their
guests or the general public or materially and adversely affects
the value of the Property, upon reasonable notice from Lender or
such Indemnified Party, Borrower shall, at Borrower’s
expense, promptly cause an engineer or consultant reasonably
satisfactory to Lender and such Indemnified Party to conduct an
environmental assessment or audit (the scope of which shall be
determined in the reasonable discretion of Lender and/or such
Indemnified Party) and take any samples of soil, groundwater or
other water, air, or building materials or any other invasive
testing reasonably requested by Lender and promptly deliver to
Lender and such Indemnified Party the results of any such
assessment, audit, sampling or other testing; provided ,
that if such results are not delivered to Lender and such
Indemnified Party within a reasonable period or if any Indemnified
Party has reason to believe that a Release or material violation of
Environmental Law exists on the Property that, in the reasonable
judgment of the Indemnified Party, endangers any tenant or other
occupant of the Property or their guests or the general public or
may materially and adversely affect the value of the Property, upon
reasonable notice to Borrower, Lender or such Indemnified Party and
any other Person designated by Lender or such Indemnified Party,
including, but not limited to, any receiver, any representative of
a Governmental Authority, and any environmental consultant, shall
have the right, but not the obligation, to enter upon the Property
at all reasonable times (with reasonable notice to Indemnitor) to
assess any and all aspects of the environmental condition of the
Property and its use, including but not limited to, conducting any
environmental assessment or audit (the scope of which shall be
determined in the reasonable discretion of Lender and/or such
Indemnified Party) and taking samples of soil, groundwater or other
water, air, or building materials, and reasonably conducting other
invasive testing. Borrower shall cooperate with and provide the
Indemnified Parties and any such Person designated by the
Indemnified Parties with
3
access to the Property and the
Indemnified Parties shall minimize interference with use of and
activities of tenants on the Property.
4.
Indemnification . Borrower covenants and agrees, jointly and
severally, at its sole cost and expense, to protect, defend,
indemnify, release and hold Indemnified Parties harmless from and
against any and all Losses (defined below) imposed upon or incurred
by or asserted against any Indemnified Parties and directly or
indirectly arising out of or in any way relating to any one or more
of the following: (i) any presence of any Hazardous Substances in,
on, above, or under the Property; (ii) any past, present or
threatened Release of Hazardous Substances in, on, above, under or
from the Property; (iii) any activity by Borrower, any Person
affiliated with Borrower, and any tenant or other user of the
Property in connection with any actual, proposed or threatened use,
treatment, storage, holding, existence, disposition or other
Release, generation, production, manufacturing, processing,
refining, control, management, abatement, removal, handling,
transfer or transportation to or from the Property of any Hazardous
Substances at any time located in, under, on or above the Property
in violation of Environmental Laws; (iv) any activity by Borrower,
any Person affiliated with Borrower, and any tenant or other user
of the Property in connection with any actual or proposed
Remediation of any Hazardous Substances at any time located in,
under, on or above the Property, whether or not such Remediation is
voluntary or pursuant to court or administrative order, including,
but not limited to, any removal, remedial or corrective action; (v)
any past, present or threatened non-compliance or violations of any
Environmental Laws (or permits issued pursuant to any Environmental
Law) in connection with the Property or operations thereon,
including, but not limited to, any failure by Borrower, any Person
affiliated with Borrower, and any tenant or other user of the
Property to comply with any order of any Governmental Authority in
connection with any Environmental Laws; (vi) the imposition,
recording or filing or the threatened imposition, recording or
filing of any Environmental Lien encumbering the Property; (vii)
any administrative processes or proceedings or judicial proceedings
in any way connected with any matter addressed in this Agreement;
(viii) any past, present or threatened injury to, destruction of or
loss of natural resources in any way connected with the Property,
including, but not limited to, costs to investigate and assess such
injury, destruction or loss; (ix) any acts of Borrower, any Person
affiliated with Borrower, and any tenant or other user of the
Property in arranging for disposal or treatment, or arranging with
a transporter for transport for disposal or treatment, of Hazardous
Substances at any facility or incineration vessel containing
Hazardous Substances; (x) any acts of Borrower, any Person
affiliated with Borrower, and any tenant or other user of the
Property in accepting any Hazardous Substances for transport to
disposal or treatment facilities, incineration vessels or sites
from which there is a Release, or a threatened Release of any
Hazardous Substance which causes the incurrence of costs for
Remediation; (xii) any personal injury, wrongful death, or property
or other damage arising from the presence of or a Release of
Hazardous Substances at the Property under any statutory or common
law or tort law theory, including, but not limited to, damages
assessed for private or public nuisance or for the conducting of an
abnormally dangerous activity on or near the Property; and (xiii)
any misrepresentation or inaccuracy in any representation or
warranty or breach or failure to perform any covenants or other
obligations pursuant to this Agreement.
4
5.
Duty to Defend and Attorneys and Other Fees and Expenses .
Upon written request by any Indemnified Party, Borrower shall
defend any claim, action or proceeding (a “ Claim
”) that is brought against any Indemnified Party (if
requested by any Indemnified Party, in the name of the Indemnified
Party), at Borrower’s sole cost and expense, by attorneys and
other professionals reasonably approved by such Indemnified Party
(it being understood that counsel selected by Borrower’s
insurance carrier shall be deemed to be acceptable to such
Indemnified Party, and such counsel may also represent Borrower in
such investigation, action or proceeding). Notwithstanding the
foregoing, any Indemnified Parties may, in their sole and absolute
discretion, engage their own attorneys and other professionals to
defend or assist them, and, at the option of Indemnified Parties,
their attorneys shall control the resolution of any Claim, provided
that no compromise or settlement shall be entered without
Borrower’s consent, which consent shall not be unreasonably
withheld. Upon demand, Borrower shall pay or, in the sole and
absolute discretion of the Indemnified Parties, reimburse, the
Indemnified Parties for the payment of reasonable fees and
disbursements of attorneys, engineers, environmental consultants,
laboratories and other professionals in connection
therewith.
6.
Certain Definitions . Any capitalized term utilized herein
shall have the meaning as specified in the Loan Agreement, unless
such term is otherwise specifically defined herein. As used in this
Agreement, the following terms shall have the following
meanings:
“ Environmental Law
” means any present and future laws, statutes, ordinances,
rules, regulations and the like, as well as common law, of any
applicable jurisdiction relating to protection of human health and
safety or the environment, relating to Hazardous Substances,
relating to liability for or costs of other actual or threatened
danger to human health and safety, the environment or similar
issues, including (witho
