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CONSENT, RATIFICATION, ASSUMPTION amp; REALEASE AGREEMENT

Assumption Agreement

CONSENT, RATIFICATION, ASSUMPTION amp; REALEASE AGREEMENT | Document Parties: EDUCATION REALTY TRUST, INC. | Kilpatrick Stockton LLP You are currently viewing:
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EDUCATION REALTY TRUST, INC. | Kilpatrick Stockton LLP

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Title: CONSENT, RATIFICATION, ASSUMPTION amp; REALEASE AGREEMENT
Governing Law: New York     Date: 1/25/2006
Industry: Real Estate Operations    

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                                                                    EXHIBIT 10.1

This instrument prepared by
and when recorded, return to:
Kilpatrick Stockton LLP
1100 Peachtree Street, Suite 2800
Atlanta, Georgia 30309
Attn: Rex R. Veal
Ref: 33979/323331

             CONSENT, RATIFICATION, ASSUMPTION AND RELEASE AGREEMENT

     THIS CONSENT, RATIFICATION, ASSUMPTION AND RELEASE AGREEMENT (this
"AGREEMENT") is made effective as of January 6, 2006, by and among Cape Place
(DE), LLC, a Delaware limited liability company, Martin Place (DE), LLC, a
Delaware limited liability company, Clayton Place (DE), LLC, a Delaware limited
liability company, Macon Place (DE), LLC, a Delaware limited liability company,
River Place (DE), LLC, a Delaware limited liability company, Jacksonville Place
(DE), LLC, a Delaware limited liability company, Clemson Place (DE), LLC, a
Delaware limited liability company, Troy Place (DE), LLC, a Delaware limited
liability company, Murray Place (DE), LLC, a Delaware limited liability company
(each a "BORROWER" and collectively, "BORROWERS"), EDR Lease Holdings, LLC, a
Delaware limited liability company ("LEASE HOLDINGS"), Cecil M. Philips, an
individual and Place Properties, L.P., a Tennessee limited partnership
(collectively "ORIGINAL BORROWER PRINCIPAL"), Education Realty Operating
Partnership, LP, a Delaware limited partnership ("NEW BORROWER PRINCIPAL"), and
LaSalle Bank, National Association, as Trustee under that certain Pooling and
Servicing Agreement dated as of February 10, 2005 (the "PSA"), for the
Registered Holders of Greenwich Capital Commercial Funding Corp. Commercial
Mortgage Trust 2005-GG3 Commercial Mortgage Pass-Through Certificates, Series
2005-GG3 ("NOTEHOLDER").

                                    RECITALS:

     A. Borrowers executed and delivered to the order of Greenwich Capital
Financial Products, Inc. ("LENDER"), a certain Promissory Note dated December 3,
2004 (together with all addenda, modifications, amendments, riders, exhibits and
supplements thereto, the "NOTE"), in the stated principal amount of
$98,660,000.00 which Note evidences a loan (the "LOAN") made by Lender to
Borrowers. To secure the repayment of the Note, Borrowers, among other things,
executed and delivered various mortgages and deeds of trust as set forth on
Exhibit A hereto (together with all addenda, modifications, amendments, riders,
exhibits and supplements thereto, collectively the "SECURITY INSTRUMENT"), that
granted liens on certain properties and rights all more particularly described
in the Security Instrument (each a "PROPERTY" and collectively the
"PROPERTIES"). Borrowers are liable for the payment and performance of all of
Borrowers' obligations under the Note, the Security Instrument and all other
documents evidencing, securing, guaranteeing or otherwise pertaining to the Loan
(together with all addenda, modifications, amendments, riders, exhibits and
supplements thereto, the "LOAN DOCUMENTS") including, without limitation, those
documents listed on Exhibit B attached hereto and incorporated herein by
reference as though fully set forth herein. The term Loan Documents for

<PAGE>

the purposes of this Agreement shall also be deemed to include the Environmental
Indemnity Agreement (as defined in Exhibit B) and the Guaranty Agreement (as
defined in Exhibit B).

     B. Each of the Loan Documents has been duly assigned or endorsed to
Noteholder.

     C. Noteholder, as the holder of the Note and beneficiary under the Security
Instrument, has been asked to consent to (i) the conversion (the "CONVERSION")
of Clemson Place (DE), LLC into a Delaware limited partnership named "EDR
Clemson Place Limited Partnership"; (ii) the transfer of 100% of the membership
interests and limited partnership interests, as applicable, in Borrowers and EDR
Clemson Place, GP, LLC, the general partner of the converted Clemson Place
entity, from Place Mezz Borrower, LLC to New Borrower Principal (the
"TRANSFER"); and (iii) the assumption by New Borrower Principal of the
obligations of Original Borrower Principal under the Loan Documents (the
"ASSUMPTION"). In connection with the Transfer and Assumption, Noteholder has
also been asked to consent to certain leases (the "MASTER LEASES"). The
Conversion, Transfer, Assumption and Master Leases are sometimes referred to
herein collectively as the "TRANSACTIONS". In conjunction with the Transactions
there will be a pay off of certain subordinate mezzanine debt which is not being
assumed by New Borrower Principal.

     D. Noteholder has agreed to consent to the Transactions subject to the
terms and conditions stated below.

     E. Section 3.08 of the PSA authorizes GMAC Commercial Mortgage Corporation
("MASTER SERVICER"), on behalf of Noteholder, under certain terms and conditions
to waive the due on sale clause and facilitate the Transfer and the Assumption
and Section 3.20 of the PSA authorizes Master Servicer, on behalf of the
Noteholder, under certain terms and conditions to consent to the Master Leases
and Conversion. Master Servicer has elected to consent to the Transactions on
the terms and conditions set forth in this Agreement. Master Servicer's
execution and delivery of this Agreement is binding upon Noteholder pursuant to
the PSA.

                                   AGREEMENT:

     In consideration of the foregoing and the mutual covenants and promises set
forth in this Agreement and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, Noteholder, Borrowers,
Original Borrower Principal and New Borrower Principal agree as follows:

     1. Incorporation of Recitals. The foregoing recitals are incorporated
herein as a substantive, contractual part of this Agreement.

     2. Ratification and Representations of the Borrowers. The Borrowers hereby
acknowledge and ratify each and every one of their obligations under the Loan
Documents and acknowledge, represent, certify and warrant to the Noteholder as
of the date of this Agreement that:

          (a) There are no defenses, offsets or counterclaims to the Note, the
     Security Instrument or the other Loan Documents.


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<PAGE>

          (b) There are no defaults by the Borrowers under the provisions of the
     Note, the Security Instrument or the other Loan Documents, nor are there
     any conditions which with the giving of notice or the passage of time or
     both may constitute a default by the Borrowers under the provisions of the
     Note, the Security Instrument or the other Loan Documents.

          (c) All provisions of the Note, the Security Instrument and the other
     Loan Documents are valid, in full force and effect and enforceable in
     accordance with their terms.

          (d) Except Permitted Encumbrances and other matters permitted by the
     Security Instrument or subsequently consented to by Master Servicer or
     Noteholder, there are no subordinate liens of any kind covering or relating
     to the Mortgaged Property, nor are there any mechanics liens or liens for
     unpaid taxes or assessments encumbering the Properties, nor has notice of a
     lien or notice of intent to file a lien been received.

          (e) All improvements to the Property and the use or uses of the
     Mortgaged Property comply with all applicable statutes, rules and
     regulations, including all applicable statutes, rules and regulations
     pertaining to requirements for equal opportunity, anti-discrimination, fair
     housing, access for the disabled, environmental protection, zoning and land
     use, and the improvements on the Mortgaged Property comply with, and shall
     remain in compliance with, applicable health, fire, and building codes,
     except to the extent of any failures to so comply, individually or in the
     aggregate, that would not have a material adverse effect on the Borrowers,
     the Properties, the security provided by the Properties or the use,
     operation or value of the Properties. There has not been and there is no
     evidence of any illegal activities relating to controlled substances on the
     Properties. All required permits, licenses and certificates for the lawful
     use and operation of the Properties, including, but not limited to,
     certificates of occupancy, licenses, or the equivalent, have been obtained
     and are current and in full force and effect, except to the extent of any
     failures to possess such permits, licenses or certificates, individually or
     in the aggregate, that would not have a material adverse effect on the
     Borrowers, the Properties, the security provided by the Properties or the
     use, operation or value of the Properties.

          (f) The Properties have not been damaged by fire, water, wind or other
     cause of loss, or any previous damage to the Properties has been fully
      restored. Excepting ordinary wear and tear, the Properties and improvements
     thereon are substantially in the same condition as they were on December 3,
     2004.

          (g) The Borrowers have furnished to the Noteholder all insurance
     policies and certificates required pursuant to the Loan Documents.

          (h) Neither the Borrowers, the Original Borrower Principal nor the New
     Borrower Principal is currently (a) the subject of or a party to any
     completed or pending bankruptcy, reorganization or insolvency proceeding,
     nor to their best knowledge has any such proceeding been instituted against
     them; or (b) the subject of any


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<PAGE>

     judgment unsatisfied of record or docketed in any court of the state in
     which the any Property are located or in any other court located in the
     United States.

          (i) No part of any Property has been taken in condemnation or other
     like proceeding to an extent which would impair the value of such Property,
     the Security Instrument or the Loan or the usefulness of such Property for
     the purposes contemplated, nor is any proceeding pending, threatened or, to
     Borrowers' knowledge, known to be contemplated for the partial or total
     condemnation or taking of any Property.

          (j) No person, party, firm or corporation has any possessory interest
     in any Property or right to occupy the same except under and pursuant to
     the provisions of any existing leases by and between tenants and a
     Borrower. To the best knowledge of Borrowers, if and when a Borrower has
     been requested to do so pursuant to the Security Instrument, true and
     complete copies of leases have been provided to the Master Servicer and/or
     the Noteholder.

          (k) The Borrowers do not own any real property or assets other than
     the Properties and do not operate any business other than the management
     and operation of the Properties.

          (l) The Borrowers have filed all federal, state, county and municipal
     tax returns required to have been filed by each Borrower, and have paid all
     taxes which have become due pursuant to such returns or to any notice of
     assessment received by a Borrower, and the Borrowers have no knowledge of
     any basis for additional assessment with respect to such taxes. There are
     not presently pending any special assessments against any Property or any
     part thereof.

          (m) No material adverse change in the financial condition of the
     Borrowers have occurred between the date of the latest financial statement
     which was furnished to the Noteholder relating to Borrowers and the date
     hereof.

          (n) The financial statements of the Borrowers (and those of its
     principals) furnished to the Noteholder pursuant to the request for consent
     to the Transfer, reflect a consolidated net worth of the Borrower as of the
     date thereof.

          (o) After the Transfer, the Borrowers will have sufficient working
     capital, including cash flow from the Mortgaged Property, not only to
     adequately maintain the Properties, but also to pay all of the Borrowers'
     outstanding debts as they come due.

          (p) The Borrowers represent to the Noteholder that there is no action,
     suit or proceeding, or any governmental investigation or any arbitration,
     in each case pending or, to the knowledge of the Borrowers, threatened
     against any Borrower or any Property before any governmental or
     administrative body, agency or official which (i) challenges the validity
     of the Loan Documents or the authority of the Borrowers to enter into the
     Transfer or this Agreement and thereby become bound by the terms of this
     Agreement or to perform the transactions contemplated hereby, or (ii) if
     adversely


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<PAGE>

     determined would have a material adverse effect on the occupancy of any
     Property or the business, financial condition or results of operations of
     the Borrowers or the Properties.

          (q) Since December 3, 2004, there has been no material change in the
     occupancy of the Properties that has had a material adverse effect on the
     financial condition of the Borrowers, except for such changes that have
     been consented to by Noteholder, or the business, financial condition or
     results of operations of the Borrowers, the Properties or to the best of
     the Borrowers' knowledge any tenant of any Property.

          (r) The Borrowers understand and intend that the Noteholder will rely
     upon the acknowledgments, representations, certifications and warranties
     contained herein. The Borrowers, the New Borrower Principal and the
     Original Borrower Principal agree that the foregoing representations of the
     Borrowers are made solely for the benefit of the Noteholder, and are not
     made for the benefit of and may not be relied upon by any of the other
     parties to this Instrument, and shall not alter or modify any of the terms
     of, or the representations and warranties contained in, the existing
     agreements relating to the Borrowers and the Loan.

     3. New Borrower Principal's Representations and Warranties; Original
Borrower's Representations and Warranties. (a)New Borrower Principal represents
and warrants to Noteholder as of the date of this Agreement that, to New
Borrower Principal's knowledge, the representations made by Borrowers in Section
2 above are true and correct. New Borrower Principal understands and intends
that Noteholder will rely on the representations and warranties contained
herein. (b) Original Borrower Principal represents and warrants to Noteholder as
of the date of this Agreement that, to Original Borrower Principal's knowledge,
the representations made by Borrowers in Section 2 above are true and correct.
Original Borrower Principal understands and intends that Noteholder will rely on
the representations and warranties contained herein.

     4. Consent to Transactions. Noteholder hereby consents to the Transactions
and the related payoff of the subordinate mezzanine debt secured by interests in
the Borrowers., subject to the terms and conditions set forth in this Agreement.
Noteholder's consent to the Transactions is not intended to be and shall not be
construed as a consent to any subsequent transfer, assumption, lease or
conversion which requires Noteholder's consent pursuant to the terms of the Loan
Documents. The foregoing is not a waiver of any other requirement of the Loan
and the Loan Documents and applies only to the specific consent granted herein.
The granting of such consent and the execution of this Agreement in no way
obligates the Noteholder, the Servicer or any subsequent holder of the Note, to
grant any future consents or waivers, nor does it establish in any way a pattern
or practice of dealing that any Borrower or the New Borrower Principal may rely
upon in seeking any other consent or waiver. The consent to the Master Leases is
conditioned upon the Master Leases being in the form attached hereto as Exhibit
C, Exhibit D and Exhibit E hereto and the consent to the Conversion is
conditioned upon the conversion being accomplished by means of the documents in
the form of Exhibit F hereto.

     5. Assumption by Lease Holdings of Borrowers Obligations and the Assumption
by New Borrower Principal of Liability for the Exceptions to Non-Recourse. Lease
Holdings hereby adopts, ratifies and confirms all of the representations,
warranties and covenants of Borrowers


                                        5

<PAGE>

under the Loan Documents as if Lease Holdings was a Borrower named therein, and
jointly and severally assumes all liability of Borrowers under the Loan
Documents as of the origination date of the Loan. New Borrower Principal hereby
adopts, ratifies and confirms all of the representations, warranties and
covenants of Original Borrower Principal under the Loan Documents as if New
Borrower Principal was the Original Borrower Principal named therein, and
jointly and severally assumes all liability of Original Borrower Principal under
the Loan Documents as of the origination date of the Loan, including, without
limitation, the provisions of the Exceptions to Non-Recourse Guaranty Agreement
( the "GUARANTY") and the Environmental Indemnity Agreement (the "ENVIRONMENTAL
INDEMNITY"). Reference in any Loan Document to Original Borrower Principal
henceforth shall be deemed to refer to New Borrower Principal. In addition to
the foregoing, New Borrower Principal has executed and delivered to Noteholder
that certain Exceptions to Non-Recourse Guaranty dated of even date herewith
(the "NEW GUARANTY") and that certain Environmental Indemnity Agreement of even
date herewith (the "NEW ENVIRONMENTAL INDEMNITY").

     6. Release of Original Borrower Principal. In reliance on Borrowers',
Original Borrower Principal's, Lease Holdings' and New Borrower Principal's
acknowledgments, representations and warranties in this Agreement and in
consideration for releases contained in Section 11 of this Agreement, Noteholder
releases Original Borrower Principal from its obligations under the Loan
Documents, provided that Original Borrower Principal is not released from any
liability pursuant to this Agreement or any of the Loan Documents including,
without limitation, the provisions of the Guaranty or the Environmental
Indemnity, for any liability that relates to the period prior to the date hereof
regardless of when any environmental hazard or other condition giving rise to
any such liability thereunder is discovered. If any material element of the
representations and warranties contained herein as the same relate to Original
Borrower Principal or, to the knowledge of the Original Borrower Principal, as
the same relate to the Borrowers, is false as of the date of this Agreement or
in the event Original Borrower Principal takes or causes any other party hereto
(other than Noteholder) to take any actions which are in contradiction with the
provisions of Section 11 of this Agreement, this release shall be voided and
Original Borrower Principal shall be liable as if the release was never granted
and, in such event, Original Borrower Principal shall and does hereby indemnify
and hold harmless Noteholder for any loss, cost, liability or expense resulting
from such breach of representations or warranty or action or omission in
violation of Section 11 of this Agreement.

     7. No Impairment of Lien. Nothing set forth herein shall affect the
priority or extent of the lien of the Security Instrument or any of the other
Loan Documents, nor, except as expressly set forth herein, release or change the
liability of any party who may now be or after the date of this Agreement may
become liable, primarily or secondarily, under the Loan Documents. Except as
expressly modified hereby, the Note, the Security Instrument, the Loan Agreement
and the other Loan Documents remain unchanged, are hereby ratified and
reaffirmed in all respects and shall remain in full force and effect, and this
Agreement shall have no effect on the priority or validity of the liens,
operation and effect of the Security Instrument and the other Loan Documents,
all of which are incorporated herein by reference. Nothing herein shall be
construed to constitute a novation of the Loan or of any of the Loan Documents.


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<PAGE>

     8. Costs. Borrowers agree to pay all fees and costs (including reasonable
attorneys' fees) incurred by Noteholder in connection with Noteholder's consent
to and approval of the Transactions and a transfer fee equal to one half of one
percent (0.5%) of the outstanding principal balance of the Loan which is
required to be paid by Borrowers to Noteholder in consideration of the consent
to the Transfer and to the Assumption.

     9. Financial Information. Borrowers and New Borrower Principal represent
and warrant to Noteholder that all financial information and information
regarding the management capability of Borrowers and New Borrower Principal
provided to Noteholder was true and correct as of the date provided to
Noteholder and remains materially true and correct as of the date of this
Agreement.

     10. Addresses. Borrowers' and New Borrower Principal's address for notice
hereunder and under the Loan Documents is:

          For each Borrower:

          c/o Education Realty Operating Partnership, LP
          530 Oak Court Drive
          Suite 300
          Memphis, Tennessee 38117
          Attention: Paul O. Bower

          For New Borrower Principal:

          Education Realty Operating Partnership, LP
          530 Oak Court Drive
          Suite 300
          Memphis, Tennessee 38117
          Attention: Paul O. Bower

     11. Complete Release. Borrowers, Original Borrower Principal and New
Borrower Principal hereby jointly and severally, unconditionally and irrevocably
release and forever discharge Lender, Noteholder and Master Servicer and their
respective successors, assigns, agents, directors, officers, employees and
attorneys, and each current or substitute trustee, if any, under the Security
Instrument (collectively, "INDEMNITEES") from all Claims (as defined below).
Original Borrower Principal agrees to indemnify Indemnitees and defend and hold
them harmless from any and all claims, losses, causes of action, costs and
expenses of every kind or character incurred by or asserted against Indemnitees
in connection with Claims or the Transactions, but only to the extent that such
claims, losses, causes of action, costs and expenses arise out of or are in any
way connected with or result from the acts, actions or omissions of Original
Borrower Principal. Borrowers agree to indemnify Indemnitees and defend and hold
them harmless from any and all claims, losses, causes of action, costs and
expenses of every kind or character incurred by or asserted against Indemnitees
in connection with Claims or the Transactions, but only to the extent that such
claims, losses, causes of action, costs and expenses


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<PAGE>

arise out of or are in any way connected with or result from the acts, actions
or omissions of a Borrower. New Borrower Principal agrees to indemnify
Indemnitees and defend and hold them harmless from any and all claims, losses,
causes of action, costs and expenses of every kind or character incurred by or
asserted against Indemnitees in connection with Claims or the Transactions but
only to the extent that such claims, losses, causes of action, costs and
expenses arise out of or are in any way connected with or result from the acts,
actions or omissions of New Borrower Principal.

     As used in this Agreement, the term "CLAIMS" shall mean any and all
possible claims, demands, actions, fees, costs, expenses and liabilities
whatsoever, known or unknown, at law or in equity, originating in whole or in
part, on or before the date of this Agreement, which a Borrower, Original
Borrower Principal, or any of their respective partners, limited partners,
members, officers, directors, shareholders, agents or employees may now or
hereafter have against Indemnitees, and irrespective of whether any such Claims
arise out of contract, tort, violation of laws, regulations or otherwise,
arising out of or relating to the Loan or any of the Loan Documents including,
without limitation, any contracting for, charging, taking, reserving, collecting
or receiving interest in excess of the highest lawful rate applicable thereto
and any loss, cost or damage of any kind or character arising out of or in any
way connected with or in any way resulting from the acts, actions or omissions
of Indemnitees, including any requirement that the Loan Documents be modified as
a condition to the transactions contemplated by this Agreement, any charging,
collecting or contracting for prepayment premiums, transfer fees or assumption
fees, any breach of fiduciary commitment, undue influence, duress, economic
coercion, violation of any federal or state securities or Blue Sky laws or
regulations, conflict of interest, bad faith, malpractice, violations of the
Racketeer Influenced and Corrupt Organizations Act, intentional or negligent
infliction of mental or emotional distress, tortious interference with
contractual relations, tortious interference with corporate governance or
prospective business advance, breach of contract, deceptive trade practices,
libel, slander, conspiracy or any claim for wrongfully accel


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