Exhibit 10.37
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
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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
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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.
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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
simil
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