Environmental & Hazardous Substance Indemnification Agreement

EXHIBIT 10.52


ENVIRONMENTAL AND HAZARDOUS
SUBSTANCE INDEMNIFICATION AGREEMENT


THIS ENVIRONMENTAL AND HAZARDOUS SUBSTANCE INDEMNIFICATION AGREEMENT (the "AGREEMENT") is made as of the 15th day of August, 1997 by GL/PHP, LLC, a Delaware limited liability company (the "BORROWER") to and for the benefit of NOMURA ASSET CAPITAL CORPORATION, a Delaware Corporation (the "LENDER").


W I T N E S S E T H:


ARTICLE I
DEFINITIONS
-----------


1.1 DEFINITIONS. As used herein, the following terms shall have the
----------- following meanings:


ASBESTOS: Asbestos or any substance or material containing asbestos.
--------


ENVIRONMENTAL LAW: Any local, state, federal or other governmental
----------------- authority, statute, ordinance, code, order, decree, law, rule or regulation pertaining to or imposing liability or standards of conduct concerning environmental regulation, contamination or clean-up including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act, as amended ("CERCLA"), the Resource Conservation and Recovery Act, as amended ("RCRA"), the Emergency Planning and Community Right-to-Know Act of 1986, as amended, the Hazardous Substances Transportation Act, as amended, the Solid Waste Disposal Act, as amended, the Clean Water Act, as amended, the Clean Air Act, as amended, the Toxic Substances Control Act, as amended, the Safe Drinking water Act, as amended, the Occupational Safety and Health Act, as amended, any state superlien and environmental clean-up statures and all regulations adopted in respect of the foregoing laws whether presently in force or coming into being and/or effectiveness hereafter.


HAZARDOUS SUBSTANCE: Hazardous and/or toxic, dangerous and/or regulated,
------------------- substances, wastes, materials, raw materials which include hazardous constituents, pollutants and contaminants including without limitation, petroleum, tremolite, anthlophylie, actinolite or polychlorinated biphenyls and any other substances or materials which are included under or regulated by Environmental Laws or are considered by scientific opinion to be otherwise dangerous in terms of the health, safety or welfare of humans.


[MORTGAGE]: That certain Mortgage, Assignment of Leases and Rents and
-------- Security Agreement, dated of even date herewith, executed by Borrower for the benefit of Lender, covering the Mortgaged Property more particularly described therein, including the real property or interest therein described in Exhibit A
--------- attached hereto and incorporated herein by this reference.


REMEDIAL WORK: Any investigation, site monitoring, containment cleanup,
------------- removal, restoration or other work of any kind which is reasonably necessary or desirable under any applicable Environmental Law or otherwise required under this Agreement in connection with any Hazardous Substance or Asbestos.


1.2 OTHER DEFINED TERMS: Any capitalized term utilized herein shall have
------------------- the meaning as specified in the Mortgage, unless such term is otherwise specifically defined herein.


ARTICLE II
WARRANTIES AND REPRESENTATIONS
------------------------------


Borrower hereby represents and warrants to Lender that, to the best of Borrower's knowledge after due inquiry and investigation: (a) the Mortgaged Property is not in direct or indirect violation of any Environmental


Law; (b) the Mortgaged Property is not subject to any private or governmental lien or judicial or administrative notice or inquiry, investigation or claim relating to any Hazardous Substance; (c) no Hazardous Substances are or have been (including the period prior to Borrower's acquisition of the Mortgaged Property), discharged, generated, treated, disposed of or stored on, incorporated in, or removed or transported from the Mortgaged Property other than in compliance with all Environmental Laws; (d) no Hazardous Substances are present in, on or under any nearby real property which could migrate onto or otherwise affect the Mortgaged Property; (e) no underground storage tanks exist on any of the Mortgaged Property; and (f) except as may have been disclosed in an environmental report delivered to Lender prior to the date of the Mortgage, no Asbestos is located on the Mortgaged Property.


ARTICLE III
AFFIRMATIVE COVENANTS
----------------------


Borrower hereby unconditionally covenants and agrees with Lender, until the entire Debt shall have been paid in full and all of the obligations of Borrower under the Loan Documents shall have been fully performed and discharged, as follows:


3.1 OPERATIONS. So long as Borrower owns or is in possession of the
---------- Mortgaged Property, Borrower; (i) shall keep or cause the Mortgaged Property to be kept free from Hazardous Substances and in compliance with all Environmental Laws; (ii) shall promptly notify Lender if Borrower shall become aware of any Hazardous Substances on or near the Mortgaged Property and/or if Borrower shall become aware that the Mortgaged Property is in direct or indirect violation of any Environmental Laws and/or if Borrower shall become aware of any condition on the Mortgaged Property which in the opinion of a licensed hydrogeologist, licensed environmental engineer or other qualified engineer or consultant engaged by Lender ("LENDER'S ENVIRONMENTAL CONSULTANT") shall pose a threat to the health, safety, or welfare of humans; and (iii) shall remove those Hazardous Substances and/or cure those violations and/or remove such threats, as applicable, as required by law (or as shall be required by Lender, in the case of removal which is not required by the provisions of law, but in response to the opinion of Lender's Environmental Consultant), promptly after Borrower becomes aware of same, at Borrower's sole expense; and (iv) shall comply with all of the recommendations contained in the environmental report which was delivered to Lender in connection with the origination of the loan transaction evidenced by the Loan Documents. Nothing herein shall prevent Borrower from recovering such expenses from any other party that may be liable for such removal or cure. Borrower shall not install in the Mortgaged Property, nor permit to be installed in the Mortgaged Property, Asbestos and shall remove any Asbestos promptly upon discovery to the satisfaction of Lender, at Borrower's sole expense. Borrower shall in all instances comply with, and ensure compliance by all occupants of the Mortgaged Property with, all applicable federal, state and local laws, ordinances, rules and regulations with respect to Asbestos, and shall keep the Mortgaged Property free and clear of any liens imposed pursuant to such laws, ordinances, rules or regulations. In the event that Borrower receives any notice or advice from any governmental agency or any source whatsoever with respect to Asbestos on, affecting or installed on the Mortgaged Property, Borrower shall immediately notify Lender.


3.2 ENVIRONMENTAL MONITORING. Borrower shall give prompt written notices
------------------------ to Lender of: (a) any proceeding or inquiry by any party with respect to the presence of any Hazardous Substances or Asbestos on, under, from or about the Mortgaged Property, (b) all claims made or threatened by any third party against Borrower or the Mortgaged Property relating to any loss or injury resulting from any Hazardous Substance or Asbestos, and (c) Borrower's discovery of any occurrence or condition on any real property adjoining or in the vicinity of the Mortgaged Property that could cause the Mortgaged Property to be subject to any investigation or cleanup pursuant to any Environmental Law. Borrower shall permit Lender to join and participate in, as a party if it so elects, any legal proceedings or action initiated with respect to the Mortgaged Property in connection with any Environmental Law or Hazardous Substance, and Borrower shall pay all attorneys' fees and disbursements incurred by Lender in connection therewith. Upon Lender's request, Borrower shall provide (i) an inspection or audit of the Mortgaged Property prepared by a licensed hydrogeologist or licensed environmental engineer approved by Lender indicating the presence or absence of Hazardous Substances in, or near the Mortgaged Property; and (ii) an inspection or audit of the Mortgaged Property prepared by a duly qualified engineering or consulting firm approved by Lender.


2


indicating the presence or absence of Asbestos on the Mortgaged Property. The cost and expense of such audit or inspection shall be paid by Borrower not more frequently than once every five (5) calendar years after the occurrence of a Secondary Market Transaction unless Lender, in its good faith judgement, determines that reasonable cause exists for the performance of an environmental inspection or audit of the Mortgaged Property, then such inspections or audits described in the preceding sentence shall be at Borrower's sole expense. If Borrower fails to provide inspection or audit required pursuant to this Section 3.2 within thirty (30) days after such request, Lender may order same, and Borrower hereby grants to Lender and its employees and agents access to the Mortgaged Property and a license to undertake those inspections or audits. The cost of such inspections or audits shall be added to the principal balance of the sums due under the Note and the Mortgage and shall bear interest thereafter until paid at the Default Rate (as defined in the Note). In the event that any environmental site assessment report prepared in connection with such inspection or audit recommends that an operations and maintenance plan be implemented for Asbestos or any Hazardous Substance, Borrower shall cause such operations and maintenance plan to be prepared and implemented at Borrower's expense upon request of Lender. Borrower shall commence and thereafter diligently prosecute to completion any Remedial Work within thirty (30) days after written demand by Lender for performance thereof (or such shorter period of time as may be required under applicable law). All Remedial Work shall be performed by contractors approved in advance by Lender, and under the supervision of a consulting engineer approved by Lender. All costs and expenses of such Remedial Work shall be paid by Borrower including, without limitation, Lender's reasonable attorneys' fees and costs incurred in connection with m ...