EXHIBIT 10.5
LOAN NO.: 00-0000000
ENVIRONMENTAL INDEMNITY AGREEMENT
THIS ENVIRONMENTAL INDEMNITY AGREEMENT (the "Indemnity") is entered into as
of September 9, 2005, by the undersigned XXXX Realty, LLC, a Michigan limited
liability company ("Borrower") in favor of PNC Bank, National Association
("Lender").
RECITALS:
A. Contemporaneously with this Indemnity, Borrower has executed and
delivered its Promissory Note (the "Note") to Lender evidencing Lender's loan to
Borrower in the amount of $100,000,000.00 (the "Loan").
B. The Note is secured by, among other security: (i) the Security
Instruments (as defined in the Note), which Security Instruments encumber the
property described therein (the "Mortgaged Property") and including, without
limitation, the real property more particularly described in Exhibit A attached
hereto, and the Other Security Documents (as defined in the Security
Instruments). The Note, the Security Instruments and the Other Security
Documents are hereinafter collectively referred to as the "Loan Documents".
C. As a condition to making the Loan, Lender has required that Borrower
indemnify Lender with respect to the matters set forth herein.
NOW, THEREFORE, in consideration of the foregoing, of Lender making the
Loan and other valuable consideration, the receipt and adequacy of which is
hereby acknowledged, Borrower agrees as follows:
1. Certain Defined Terms. Unless otherwise expressly herein provided, each
defined term in this Indemnity, as indicated by the initial capitalization
thereof, shall have the meaning set forth in the Loan Documents. As used herein,
the singular shall include the plural and the masculine shall include the
feminine and neuter and vice versa, if the context so requires. The following
terms shall have the following meanings:
(a) "Affiliates" the respective successors, assigns and participants,
parent, subsidiary and affiliated corporations and entities of any Borrower, and
the respective partners, directors, officers, agents, attorneys and employees of
each of the foregoing.
(b) "CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980 (42 U.S.C. Section 9601 et seq.), as heretofore or
hereafter amended from time to time.
(c) "Environmental Laws" means all present and future laws (whether common
law, statute, rule, regulation or otherwise), permits and other requirements of
governmental authorities relating to the environment or to any Hazardous
Material or Hazardous Material Activity, including, without limitation, CERCLA;
the Hazardous Materials Transportation Act; the Resource Conservation and
Recovery Act; the Toxic Substance Control Act; the Clean Air Act; the Federal
Water Pollution Control Act; the Hazardous Substance Control Act; the Emergency
Planning and Community Right to Know Act; the Occupational Safety
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and Health Act; the Underground Tank Act of 1984; any so-called "Super-Fund" or
"Super-Lien" law, or any other federal, state or local statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning any hazardous, toxic or dangerous
waste, substance or material, as of now or at any time hereafter in effect.
(d) "Environmental Report" shall mean the following Phase I Environmental
Site Assessments prepared for each property comprising the Mortgaged Property in
favor of Lender:
(1) 000 X. Xxxxxx, Xxxxxx, Xxxxxxxx prepared by EBI dated July 19,
2005;
(2) 0000 Xxx Xxxx, Xxxxxxxx, Xxxxxxxx prepared by EBI dated July 18,
2005;
(3) 0000 X. Xxxxxxxxxxx, Xxxxxxxxx, Xxxxxxxx prepared by EBI dated
July 19, 2005;
(4) 000 Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxxxxx, Xxxxxxxxxxxxx prepared by
EBI dated July 14, 2005
(5) 000 Xxxxxx Xxxx, Xxxx, Xxxx prepared by AEC dated July 12, 2005;
(6) 000 X. Xxxxx Xxxx, Xxxxxx, Xxxx prepared by AEC dated July 14,
2005;
(7) 00000 Xx. Xxxxx 00, Xxxxxxx Xxxxxx, Xxxx prepared by AEC July 14,
2004;
(8) 000 Xxxxxxxxxx Xxxxxx, Xxxxxxx Xxxxxx, Xxxx prepared by AEC dated
July 14, 2005;
(9) 0000 Xxxxxx Xxxx Xxxxx, Xxxxxxx, Xxxxx prepared by RCI dated July
22, 2005;
(10) 222 & 000 Xxxxx Xxxxxx and 313, 215 & 000 X. Xxxxxxxxxxx Xxxx,
Xxxxxxxxx, Xxxxx prepared by RCI dated July 25, 2005;
(11) 0000 Xxxxxxxxx Xxxx., Xxxxx Xxxx, Xxxxxxx prepared by EBI dated
July 19, 2005;
(12) 0000 Xxxxxxxxx Xxxxxxxxxxxx Xxxxxxx, XxXxxxx, Xxxxxxx prepared by
AEC dated July 14, 2005;
(13) 0000 Xxxxxx Xxxx, Xxxxxxxxx, Xxxxxxxxx prepared by RCI dated July
25, 2005; and
(14) 00000 Xxx Xxxxx Xxxx, Xxxxxxxx, Xxxxxxxx prepared by EBI dated
July 22, 2005
(e) "Foreclosure Transfer" means the transfer of title to all or any part
of the Mortgaged Property in connection with a foreclosure of the Security
Instruments, including, without limitation, a sale pursuant to judicial decree
or power of sale, or by deed in lieu of such foreclosure.
(f) "Hazardous Material" means, at any time: (I) any substance that is then
defined or listed in, or otherwise classified, designated or regulated pursuant
to any applicable Environmental Laws as a "hazardous substance", "hazardous
material", "hazardous waste", "infectious waste", "toxic substance", "toxic
pollutant" or any other formulation intended to define, list, or classify
substances by reason of deleterious properties such as
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radioactivity, ignitability, corrosivity, reactivity, carcinogenicity, toxicity,
explosiveness, reproductive toxicity or "EP toxicity"; (ii) any petroleum and
petroleum byproducts, drilling fluids, produced waters and other wastes
associated with the exploration, development or production of crude oil, natural
gas or geothermal resources; (iii) asbestos and polychlorinated biphenyls; and
(iv) any other material or substance, naturally occurring or otherwise, which
causes or poses a threat to cause a contamination or nuisance on the Mortgaged
Property or any adjacent property or a hazard to the environment or to the
health or safety of persons on the Mortgaged Property or any adjacent property.
(g) "Hazardous Material Activity" means any actual, proposed or threatened
storage, holding, existence, release, emission, discharge, generation,
processing, abatement, removal, disposition, handling or transportation of any
Hazardous Material from, under, into or on the Mortgaged Property or surrounding
property.
(h) "Borrower" means any person or entity executing this Indemnity, and
their respective successors and assigns.
(I) "Lender" means Lender, any person or entity that may acquire the
Mortgaged Property in connection with any Foreclosure Transfer and their
respective successors, assigns and participants, parent, subsidiary and
affiliated corporations and entities, and the respective partners, directors,
officers, agents, attorneys and employees of each of the foregoing.
(j) "Losses" means any and all losses, liabilities, damages, demands,
claims, actions, judgments, causes of action, assessments, penalties, costs and
expenses (including, without limitation, all fees and costs of any attorneys and
accountants, including on appeal and in any bankruptcy case or proceeding) and
all consequential damages.
(k) "Environmental Losses" means Losses suffered or incurred by Lender
arising out of or as a result of: (I) any breach of any representation,
warranty, covenant or agreement contained herein; (ii) the occurrence of any
Hazardous Material Activity prior to a Foreclosure Transfer; (iii) any violation
of any applicable Environmental Laws relating to the Mortgaged Property or the
ownership, use, maintenance, occupancy or operation thereof prior to a
Foreclosure Transfer; (iv) any investigation, inquiry, order, hearing, action,
or other proceeding by or before any governmental agency in connection with any
Hazardous Material Activity occurring or allegedly occurring prior to a
Foreclosure Transfer; or (v) any claim, demand or cause of action, or any action
or other proceeding, whether meritorious or not, brought or asserted against
Lender to the extent directly or indirectly relating to, arising from or based
on any of the matters described in clauses (I), (ii), (iii) or (iv) above, or
any allegation of any such matters.
2. Indemnity. Borrower hereby assumes liability for and agrees to pay,
protect, indemnify, defend and hold harmless Lender from and against any and all
Environmental Losses, excluding any such losses arising from Lender's gross
negligence or willful misconduct. A separate right of action hereunder shall
arise each time Lender acquires knowledge of any matter indemnified by Borrower
under this Indemnity. Separate successive actions may be brought hereunder to
enforce any of the provisions hereof at any time and from time to time. No
action hereunder shall preclude any subsequent action, and Borrower hereby
waives and covenants not to assert any defense in the nature of splitting of
causes of action or merger or judgments. Each person or party executing the
Indemnity agrees that the liability hereunder shall be joint and several.
3. Covenants and Representations. Borrower hereby represents and warrants
to Lender that, to
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the best of its knowledge, after due inquiry and investigation, the Mortgaged
Property is not subject to any private or governmental lien or judicial or
administrative notice or action relating to any Hazardous Material; and except
as disclosed to Lender in the Environmental Report: (a) the Mortgaged Property
is not in violation of any Environmental Laws; (b) no Hazardous Material is
present at the Mortgaged Property; (c) no Hazardous Material has been
discharged, generated, treated, disposed of or stored on, incorporated in, or
removed or transported from the Mortgaged Property otherwise than in compliance
with all Environmental Laws; and (d) no underground storage tanks exist on any
of the Mortgaged Property. Until a Foreclosure Transfer, Borrower shall keep the
Mortgaged Property free from Hazardous Material and in compliance with all
Environmental Laws. Borrower shall notify Lender within five (5) business days
after it becomes aware of the existence of any Hazardous Material on, or any
alleged or actual violation of any Environmental Laws with respect to, the
Mortgaged Property. Borrower shall remove any such Hazardous Material and/or
cure any such violations, as applicable, as required by law, promptly after it
becomes aware of same, at its sole expense. Nothing herein shall prevent
Borrower from recovering such expenses from any other party (excluding Lender)
that may be liable for such removal or cure. If, at any time and from time to
time until the occurrence of a Foreclosure Transfer, Lender has reasonable cause
to believe that Borrower has violated, or permitted any violations, any breach
of the foregoing, then Borrower shall provide, at its sole expense, 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 Material on, or violation of Environmental
Laws at the Mortgaged Property. If Borrower fails to provide such inspection or
audit 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 to undertake such inspection or audit. The cost of such
inspection or audit shall be immediately due and payable, shall be added to the
Debt (as defined in the Note) and shall bear interest at the Default Rate from
the date expended by Lender until paid by Borrower.
4. Absolute Indemnity; Waiver of Subrogation and Other Rights. This
Indemnity is absolute, unconditional, present and continuing. It is not
conditioned or contingent upon any attempt to enforce Lender's rights against
Borrower or the Mortgaged Property, to collect from Borrower or any other person
or entity or upon any other condition or contingency not set forth herein.
Lender shall have the right to proceed against Borrower without taking any prior
action to enforce the obligations of Borrower under the Loan Documents or the
obligations of any other indemnitor under any indemnity. Furthermore, Lender in
its sole discretion, without prior notice to or consent of Borrower, may elect
to: (a) foreclose either judicially or nonjudicially against any real or
personal property security it may hold for the Loan; (b) accept a transfer of
any such security in lieu of foreclosure; (c) compromise or adjust the Loan or
any part of it or make any other accommodation with Borrower; or (d) exercise
any other remedy against Borrower or any security. No such action by Lender
shall release or limit the liability of Borrower, who shall remain liable under
this Indemnity after the action, even if the effect of the action is to deprive
Borrower of any subrogation rights, rights of indemnity, or other rights to
collect reimbursement from Borrower for any sums paid to Lender, whether
contractual or arising by operation of law or otherwise. Borrower, for itself
and its Affiliates, expressly agrees that under no circumstances shall it be
deemed to have any right, title, interest or claim in or to any real or personal
property to be held by Lender or any third party after any Foreclosure Transfer.
The rights and remedies of Lender under this Indemnity shall be separate,
distinct and cumulative and none shall be given effect to the exclusion of the
others. No act of Lender shall be construed as an election to proceed under any
one provision herein to the exclusion of any other provision. Lender shall not
be limited exclusively to the rights and remedies herein stated but shall be
entitled to every right and remedy now or hereafter afforded at law or in
equity.
Regardless of whether Borrower may have made any payments to Lender,
Borrower forever waives: (I) all rights of subrogation, all rights of indemnity,
and any other rights to collect reimbursement from Borrower
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for any sums paid to Lender, whether contractual or arising by operation of law
or otherwise; (II) all rights to enforce any remedy that Lender may have against
Borrower; and (III) all rights to participate in any security now or later to be
held by Lender for the Loan.
5. Extent of Liability; Waivers. This Indemnity is a separate, unsecured
obligation of Borrower to the Lender and is not secured by the Security
Instruments or any of the Other Security Documents. This Indemnity is given
solely to protect Lender against Environmental Losses, and not as additional
security for, or as a means of repayment of, the Loan. Borrower's obligations
under this Indemnity are independent of, and shall not be measured or affected
by: (a) any amounts at any time owing under or secured by the Loan Documents;
(b) the sufficiency or insufficiency of any collateral securing the repayment of
the Loan; (c) any obligations of Borrower under the Loan Documents; (d) any
consideration given by Lender or any other party in order to acquire the
Mortgaged Property or any portion thereof; (e) the modification, expiration or
termination of any Loan Document; (f) the discharge or repayment in full of the
Loan (including, without limitation, by amounts paid or credit bid at a
foreclosure sale or by discharge in connection with a deed in lieu of
foreclosure); (g) any limitations on Lender's recourse for recovery of the Loan;
(h) any extensions of time for performance under the Loan Documents, whether
prior to or after maturity; (i) the release of any collateral securing the Loan,
or the release (by operation of law or otherwise) of Borrower or any other
indemnitor from performance or observance of any of the agreements, covenants,
terms or conditions contained in any of the Loan Documents; or (j) any failure
to give Borrower any notices of acceptance, default or otherwise; (k) any other
indemnity now or hereafter executed by any other person in connection with the
Loan; (l) any rights, powers or privileges Lender may now or hereafter have
against any person, entity or collateral; (m) any assignment for the benefit of
creditors by Borrower or, if Borrower is a partnership, any general partner of
Borrower; (n) any appointment of a receiver, liquidator or trustee (other than
any receiver appointed at Lender's request) for Borrower or, if Borrower is a
partnership, any general partner of Borrower or for any of the properties of
Borrower; (o) any filing of a petition by or against Borrower or, if Borrower is
a partnership, any general partner of Borrower, for relief pursuant to the
Federal Bankruptcy Code or any similar statute; (p) the institution of any
proceedings for the dissolution or liquidation of Borrower or, if Borrower is a
partnership, any general partner of Borrower; or (q) any relief or discharge
granted Borrower under the Federal Bankruptcy Code or any other debtor relief
laws (whether statutory, common law, case law or otherwise). Under no
circumstances shall any payment received by Lender, from Borrower or otherwise,
which is returned by Lender by reason of the avoidance powers granted pursuant
to any federal or state bankruptcy or similar law or for any other reason,
regardless of whether Lender contested the order requiring the return of such
payment, result in any reduction of Borrower's liability hereunder. Borrower,
for itself and its Affiliates, waives any right or claim of right to cause a
marshalling of Borrower's assets or to cause Lender to proceed at any time or in
any particular order against Borrower or any other person or entity and/or any
collateral securing the Loan. To the extent allowed by applicable law, Borrower,
for itself and its Affiliates, expressly waives and relinquishes all defenses,
counterclaims, rights and remedies now or hereafter accorded by applicable law
to indemnitors, guarantors or sureties, including, without limitation, those
arising out of or related to the following: (I) any extension of time for
payment; (II) notice of acceptance of this Indemnity by Lender and any and all
notices and demands of every kind which may be required to be given by any
statute, rule or law; (III) any defense, right of offset or other claim which
Borrower may have against Lender; (IV) presentment for payment, demand for
payment, notice of nonpayment or dishonor, protest and notice of protest,
diligence in collection and any and all formalities which otherwise might be
legally required to charge Borrower with liability; (V) any failure by Lender to
inform Borrower of any facts Lender may now or hereafter know about Borrower,
the Mortgaged Property, the Loan or the transactions contemplated by the Loan
Documents, it being understood and agreed that Lender has no duty so to inform;
(VI) any failure by Lender to perfect or continue the perfection of any lien,
security interest or similar rights against any of the Mortgaged Property; and
(VII) all rights of
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redemption, homestead, dower, and other rights or exemptions of every kind,
whether under common law or by statute.
6. Survival. Borrower's obligations hereunder shall survive any Foreclosure
Transfer and any sale or other transfer of the Mortgaged Property prior to a
Foreclosure Transfer. Lender's rights under this Indemnity shall be in addition
to any other rights and remedies available to it under any other document or
instrument now or hereafter existing, or at law or in equity (including, without
limitation, any right of reimbursement or contribution pursuant to CERCLA or any
other Environmental Law), and shall not in any way be deemed a waiver of any
such rights.
7. Demand Obligations. All obligations of Borrower hereunder shall be
payable on demand, and any amount due and payable hereunder which is not paid
within thirty (30) days after written demand therefor shall bear interest from
the date of such demand at a per annum interest rate equal to the Default Rate
(as defined in the Note) which would have been in effect as if the Note were in
existence and an Event of Default had occurred under the Note upon the date of
such demand.
8. Additional Waivers. Borrower, for itself and its Affiliates, waives any
defense to its obligations hereunder based on: (a) the claim that the Loan
Documents were not duly authorized and executed by Borrower and are not legal,
valid and binding instruments, enforceable against Borrower in accordance with
their respective terms; or (b) an avoidance action.
9. Rights of Action. Lender shall have the right to join Borrower in any
action or proceeding commenced by Lender pursuant to the rights, powers and
privileges Lender now or hereafter may possess under this Indemnity or, at
Lender's option, Lender may commence any action or proceeding directly against
Borrower without joining anyone else in such action or proceeding. In the event
any such action or proceeding arising on, under, out of or by reason of or
relating in any way to this Indemnity or the interpretation, breach or
enforcement thereof is brought against Borrower, service of process may be made
on Borrower by certified mail, return receipt requested, in accordance with the
notice provision hereof.
10. Costs and Expenses. If: (a) this Indemnity is placed in the hands of an
attorney for collection of any payment due hereunder or is collected through any
legal proceeding; (b) an attorney is retained to represent Lender in any
bankruptcy, reorganization, receivership, or other proceedings affecting
creditors' rights and involving a claim under this Indemnity or any other Loan
Document; (c) an attorney is retained to protect or enforce the lien of the
Security Instruments or any of the other Loan Documents, or to provide advice or
other representation with respect to the Mortgaged Property or any of the Loan
Documents; or (d) an attorney is retained to provide advice to or represent
Lender in any other proceeding whatsoever in connection with this Indemnity, the
Note or any other Loan Document; then Borrower shall pay all costs and expenses
incurred by Lender in connection therewith, including, without limitation,
attorney fees, court costs, filing fees, recording costs, expenses of
foreclosure, premiums, survey costs and minutes of foreclosure, in addition to
all other amounts due hereunder, regardless of whether all or a portion of such
enforcement costs are in a single proceeding brought to enforce this Indemnity
as well as the other Loan Documents. The terms "attorney fees", "counsel fees"
and the like, as used herein, shall include all fees for the attorneys' services
whether outside or within judicial proceedings, including any arbitration,
appellate and bankruptcy court proceedings, together with all costs and
disbursements incurred by such attorneys.
11. Successors and Assigns. This Indemnity may be freely assigned by
Lender, its successors, endorsees and assigns. This Indemnity shall be binding
upon Borrower, and shall inure to the benefit of and shall be enforceable by
Lender.
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12. Entire Agreement. This Indemnity contains Borrower's sole and entire
understanding and agreement with respect to its entire subject matter, and all
prior negotiations, discussions, commitments, representations, agreements and
understandings with respect thereto are merged herein.
13. Severability. Every provision of this Indemnity is intended to be
severable. If any provision of this Indemnity or the application of any
provision hereof to any party or circumstance is declared to be illegal, invalid
or unenforceable, for any reason, by a court of competent jurisdiction, such
invalidity shall not affect the balance of the terms and provisions hereof or
the application of the provision in question to any other party or circumstance,
all of which shall continue in full force and effect.
14. Waiver of Jury Trial. Borrower, for itself and its Affiliates, and
Lender hereby knowingly, voluntarily and intentionally waive any right they, or
their respective successors or assigns, may have to a trial by jury in respect
of any action or proceeding of any kind arising on, under, out of, by reason of
or relating in any way to this Indemnity or any of the Loan Documents, the
interpretation, breach or enforcement thereof or any course of conduct, course
of dealing, statement (whether verbal or written) or action or omission of
Borrower or Lender. This provision is a material inducement for Lender's making
of the Loan to Borrower.
15. Applicable Law; Jurisdiction. This Indemnity shall be governed and
construed in accordance with the laws of the state in which the real property
described in Exhibit A is located. Borrower hereby submits to personal
jurisdiction in the state courts located in said state and the federal courts of
the United States of America located in said state for the enforcement of
Borrower's obligations hereunder and waives any and all personal rights under
the law of any other state to object to jurisdiction within such state for the
purposes of any action, suit, proceeding or litigation to enforce such
obligations.
16. Notices. Except as otherwise specified herein, any notice, consent,
request or other communication required or permitted hereunder shall be in
writing and shall be deemed properly given if delivered in accordance with the
notice requirements contained in the Note. Borrower must prominently display
Lender's Loan Number (as set forth on page 1 of this Indemnity) on all notices
or communications to Lender.
17. Intentionally Omitted.
18. Application of Payments. Any amounts received by Lender from any source
on account of the Loan may be applied by Lender toward the Debt in such order
and manner of application as Lender may deem appropriate.
19. No Conflict with Other Agreements. The execution, delivery and
performance by Borrower of this Indemnity does not and will not contravene or
conflict with: (a) the corporate charter, bylaws, partnership agreement or other
organizational documents of Borrower; (b) any law, order, rule, regulation,
writ, injunction, or decree applicable to Borrower; or (c) any contractual
restriction binding on or affecting Borrower or any of Borrower's property or
assets.
20. No Actions; No Defaults. Except as previously disclosed in writing to
Lender, there is no action, proceeding or investigation pending or, to the
knowledge of Borrower, threatened or affecting Borrower, which may adversely
affect Borrower's ability to fulfill Borrower's obligations under this
Indemnity. There are no judgments or orders for payment of money against
Borrower. Borrower is not in default under any
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agreement which default may adversely affect Borrower's ability to fulfill
Borrower's obligations under this Indemnity. Borrower shall, within five (5)
business days after receipt thereof, deliver to Lender copies of any notices of
default served on Borrower pursuant to the terms of any agreement to which
Borrower is a party.
21. No Waiver; No Oral Change. No failure or delay on the part of Lender to
exercise any power, right or privilege under this Indemnity shall impair any
such power, right or privilege, or be construed to be a waiver of any default or
an acquiescence therein, nor shall any single or partial exercise of such power,
right or privilege preclude other or further exercise thereof or of any other
right, power or privilege. No termination, modification or waiver of any
provisions of this Indemnity shall be binding upon Lender except as expressly
set forth in writing duly signed and delivered by Lender.
22. Terms of Payments. Any and all amounts required to be paid by Borrower
hereunder shall be paid to Lender, on demand, at Lender's office in Overland
Park, Kansas, or such other place as shall be designated by Lender.
23. Counterparts. This Indemnity may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
when taken together shall constitute one and the same Indemnity.
24. Additional Terms and Provisions. Certain additional and supplemental
terms and provisions of this Indemnity are set forth in this paragraph. The
terms and provisions of this paragraph control and supersede any conflicting
terms and provisions contained in this Indemnity.
(a) Section 15 is hereby deleted and replaced with the following:
15. Applicable Law; Jurisdiction. This Indemnity shall be governed and
construed in accordance with the laws of the State of Michigan.
Borrower hereby submits to personal jurisdiction in the state courts
located in all states where the Mortgaged Property are located and the
federal courts of the United States of America located in said states
for the enforcement of Borrower's obligations hereunder and waives any
and all personal rights under the law of any other state to object to
jurisdiction within such states for the purposes of any action, suit,
proceeding or litigation to enforce such obligations of Borrower.
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IN WITNESS WHEREOF, the undersigned have executed this Environmental
Indemnity Agreement to be effective as of the day and year first above written.
"Borrower"
XXXX Realty, LLC,
a Michigan limited liability company
By: XXXX Management, Inc.,
a Michigan corporation,
its Manager
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President and Treasurer
STATE OF MICHIGAN )
) SS
COUNTY OF OAKLAND )
I, Xxxxxxx X. Xxxxxx, a Notary Public in and for said County, in the State
aforesaid, DO HEREBY CERTIFY, that Xxxxxxx X. Xxxxxxx, the Vice President and
Treasurer of XXXX Management, Inc., a Michigan corporation, the Manager of XXXX
Realty, a Michigan limited liability company, who is personally known to me to
be the same person whose name is subscribed to the foregoing instrument as such
Vice President and Treasurer, appeared before me this day in person and
acknowledged that he signed and delivered the said instrument as his own free
and voluntary act and as the free and voluntary act of said limited liability
company, for the uses and purposes therein set forth.
GIVEN under my hand and Notarial Seal this 9th day of September, 2005.
/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Notary Public
My Commission Expires: October 31, 2010
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EXHIBIT A
Legal Description
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