Exhibit 10.46
OPERATIONS AND MAINTENANCE AGREEMENT
THIS OPERATIONS AND MAINTENANCE AGREEMENT ("Agreement") is made as of November
30, 2006, by OpBiz, L.L.C., a Delaware limited liability company ("OpBiz"), and
PH Fee Owner LLC, a Nevada limited liability company ("Fee Owner" and, together
with OpBiz, individually or collectively as the context indicates, "Borrower"),
each having its principal place of business at 3667 Las Vegas Boulevard South,
Las Vegas, Nevada 89109, and COLUMN FINANCIAL, INC., a Delaware corporation,
having an address at 11 Madison Avenue, New York, New York 10010 ("Lender").
RECITALS:
C.
THIS AGREEMENT IS BEING EXECUTED IN CONNECTION WITH LENDER'S MAKING A LOAN
TO BORROWER IN THE ORIGINAL PRINCIPAL AMOUNT OF EIGHT HUNDRED TWENTY MILLION AND
NO/100 DOLLARS ($820,000,000) (THE "LOAN") PURSUANT TO THAT CERTAIN LOAN
AGREEMENT, DATED THE DATE HEREOF, BY AND BETWEEN BORROWER AND LENDER (AS THE
SAME MAY BE AMENDED, RESTATED, REPLACED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM
TIME TO TIME, THE "LOAN AGREEMENT").
D.
THE LOAN IS EVIDENCED BY A PROMISSORY NOTE (AS THE SAME MAY BE AMENDED,
RESTATED, REPLACED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE
"NOTE") OF EVEN DATE HEREWITH MADE BY BORROWER IN FAVOR OF LENDER, AND IS
SECURED BY, AMONG OTHER THINGS, A
THAT CERTAIN DEED OF TRUST, SECURITY
AGREEMENT, ASSIGNMENT OF LEASES AND RENTS, FINANCING STATEMENT AND FIXTURE
FILING, DATED AS OF THE DATE HEREOF, MADE BY BORROWER TO FIRST AMERICAN TITLE
INSURANCE COMPANY, A NEW YORK CORPORATION, AS TRUSTEE, FOR THE BENEFIT OF
LENDER, AS BENEFICIARY (AS THE SAME MAY BE AMENDED, RESTATED, REPLACED,
SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, THE "SECURITY INSTRUMENT")
OF EVEN DATE HEREWITH GRANTING LENDER A FIRST LIEN ON THE PROPERTY MORE
PARTICULARLY SET FORTH ON EXHIBIT A ATTACHED HERETO AND KNOWN AS THE PLANET
HOLLYWOOD (ALADDIN) CASINO RESORT (THE "PROPERTY").
CAPITALIZED TERMS USED BUT
NOT DEFINED HEREIN SHALL HAVE THE MEANING SET FORTH IN THE LOAN AGREEMENT.
E.
AS A CONDITION OF MAKING THE LOAN, LENDER HAS REQUIRED BORROWER TO
DEVELOP AN OPERATIONS AND MAINTENANCE PROGRAM FOR THE PROPERTY.
NOW, THEREFORE, in consideration of the above and the mutual promises contained
in this Agreement, the receipt and sufficiency of which are acknowledged,
Borrower and Lender agree as follows:
1.
DEVELOPMENT AND IMPLEMENTATION OF OPERATIONS AND MAINTENANCE
PROGRAM.
BORROWER HEREBY COVENANTS TO PREPARE, OR CAUSE TO BE PREPARED, AN
OPERATIONS AND MAINTENANCE PROGRAM (THE "O&M PROGRAM") FOR THE PROPERTY WHICH
ADDRESSES ANY REQUIREMENTS OF THE ENVIRONMENTAL REPORT PREPARED BY LAND OF
AMERICA ASSESSMENT, DATED AS OF SEPTEMBER 13, 2006 (THE "ENVIRONMENTAL REPORT")
AND INCLUDES (A) TESTING FOR ASBESTOS AT THE PROPERTY BY AN ENGINEERING FIRM
LICENSED TO CONDUCT SUCH TESTING AND THE PREPARATION BY SUCH ENGINEERING FIRM OF
A REPORT ON THE RESULTS OF SUCH TESTING AND ANY RECOMMENDATIONS FOR REMOVAL,
ENCAPSULATION OR OTHER REMEDIATION WITH RESPECT TO ANY ASBESTOS; (B) IF
RECOMMENDED IN THE ENVIRONMENTAL REPORT, A PLAN FOR THE ENCAPSULATION,
REMOVAL OR OTHER ACTION WITH RESPECT TO ASBESTOS AT THE PROPERTY; AND (C)
COMPLIANCE WITH THE REQUIREMENTS LISTED ON EXHIBIT