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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
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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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(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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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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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
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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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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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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
