EXHIBIT 10.4
EXCEPTIONS TO NON-RECOURSE GUARANTY
(MULTI-STATE)
This EXCEPTIONS TO NON-RECOURSE GUARANTY (this "GUARANTY") is
entered into as of January 6, 2006, by Education Realty Operating partnership,
LP, a Delaware limited partnership ("GUARANTOR"), for the benefit of 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 ("LENDER").
RECITALS
A. Cape Place (DE), LLC, Xxxxxxx Place (DE), LLC, Jacksonville Place (DE),
LLC, Macon Place (DE), LLC, Xxxxxx Place (DE), LLC, Xxxxxx Place (DE), LLC,
River Place (DE), LLC and Xxxx Place (DE), LC, each a Delaware limited liability
company and EDR Clemson Place Limited Partnership, a Delaware limited
partnership (collectively, the "BORROWER") are obligated to Lender on a loan in
the amount of $98,660,000 (the "LOAN"). The Loan is evidenced by a Promissory
Note from Borrower dated December 3, 2004 (the "NOTE") and a Loan and Security
Agreement (the "LOAN AGREEMENT") by and between Borrower and Greenwich Capital
Financial Products, Inc. ("ORIGINAL LENDER"). The Note is secured by certain
Mortgages/Deeds of Trust, Assignment of Rents and Security Agreement dated the
same date as the Note (collectively, the "INSTRUMENT"), encumbering certain real
properties and improvements described in each Instrument (collectively, the
"PROPERTY"). As used herein, the term "LOAN DOCUMENTS" shall mean the Note, the
Loan Agreement, the Instrument, and any other documents or instruments given by
Borrower or others and accepted by Lender or Original Lender for the purposes of
evidencing, securing, or guaranteeing the Loan.
B. Borrowers have requested that Lender consent to certain transactions
(the "TRANSACTIONS") as more specifically set forth in that certain Consent,
Ratification, Assumption and Release Agreement (the "CONSENT") of even date
herewith. As a condition to the Consent, Lender requires that Guarantor execute
this Guaranty.
C. Guarantor will deliver substantial benefits from the Consent.
NOW, THEREFORE, in order to induce Lender to make the Loan to
Borrower, and in consideration thereof, Guarantor agrees as follows:
1. As used herein, "INDEBTEDNESS" shall mean all obligations evidenced by
the Note or secured by the Instrument or the other Loan Documents.
2. Guarantor hereby absolutely, unconditionally and irrevocably guarantees
to Lender the full and prompt payment when due, whether at maturity or earlier,
by reason of acceleration or
otherwise, and at all times thereafter, and the full and prompt performance when
due, of all of the following:
(a) All amounts which are stated to be obligations of Borrower and
Guarantor under the terms of Section 12.2 of the Loan Agreement (subject to the
proviso at the end of the first sentence in Section 3 below); and
(b) All costs and expenses, including reasonable fees and out of pocket
expenses of attorneys and expert witnesses, incurred by Lender in enforcing its
rights under this Guaranty.
For purposes of determining Guarantor's liability under this Guaranty, all
payments made by Borrower with respect to the Indebtedness and all amounts
received by Lender from the enforcement of its rights under the Instrument shall
be applied first to the portion of the Indebtedness for which neither Borrower
nor Guarantor has personal liability.
Guarantor hereby promises to pay and perform, as and when due (whether by
acceleration, at maturity, or otherwise) and at all times thereafter, each and
all of the items and obligations which are stated to be guaranteed hereunder but
which are obligations for which Guarantor is primarily liable or are not
obligations of others.
3. The obligations of Guarantor under this Guaranty shall survive any
foreclosure proceeding, any foreclosure sale, any delivery of any deed in lieu
of foreclosure, and any release of record of the Instrument, and, in addition,
the obligations of Guarantor under Sections 2(a) and 2(b) above shall survive
any repayment or discharge of the Indebtedness; provided, that if the Lender
acquires all of the ownership interests in an Individual Property(ies) by means
of foreclosure, by means of a transfer in lieu of foreclosure or by other
judicial or nonjudicial remedy (the "Ownership Transfer"), then provided that
Borrower has relinquished control of such Individual Property(ies) to Lender and
neither the Borrower nor any Guarantor is disputing the Ownership Transfer and
the exercise by Lender of control over such Individual Property(ies), Guarantor
shall not be obligated hereunder for the actions or conduct of Lender with
respect to such Individual Property(ies) from and after such Ownership Transfer,
but shall be obligated for any liability of Guarantor arising hereunder for
circumstances existing or arising, and acts and occurrences taking place, prior
to the Ownership Transfer with respect to such Borrower(s) and/or such
Individual Property(ies). Notwithstanding the foregoing, nothing herein shall
affect, modify or reduce Guarantor's liability with respect to, or constitute a
waiver of any of Lender's rights against Guarantor for, any obligations of
Guaranty under this Guaranty pertaining to the actions or conduct of the
Borrower(s) or with respect to such Individual Property(ies) which were not the
subject of the Ownership Transfer.
4. Guarantor's obligations under this Guaranty constitute an unconditional
guaranty of payment and not merely a guaranty of collection.
5. The obligations of Guarantor under this Guaranty shall be performed
without demand by Lender and shall be unconditional irrespective of the
genuineness, validity, regularity or enforceability of any of the Loan
Documents, and without regard to any other circumstance which might otherwise
constitute a legal or equitable discharge of a surety or a guarantor. Guarantor
shall be liable even if Borrower had no liability at the time of execution of
the Loan Documents, or
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thereafter ceases to be liable. Guarantor hereby waives the benefit of all
principles or provisions of law, statutory or otherwise, which are or might be
in conflict with the terms of this Guaranty and agrees that Guarantor's
obligations shall not be affected by any circumstances, whether or not referred
to in this Guaranty, which might otherwise constitute a legal or equitable
discharge of a surety or a guarantor. Guarantor hereby waives the benefits of
any right of discharge under any and all statutes or other laws relating to
guarantors or sureties and any other rights of sureties and guarantors
thereunder. Without limiting the generality of the foregoing, Guarantor hereby
waives, to the fullest extent permitted by law, diligence in collecting the
Indebtedness, presentment, demand for payment, protest, all notices with respect
to the Note, the Loan Agreement, this Guaranty, or any other Loan Document which
may be required by statute, rule of law or otherwise to preserve Lender's rights
against Guarantor under this Guaranty, including, but not limited to, notice of
acceptance, notice of any amendment of the Loan Documents, notice of the
occurrence of any default, notice of intent to accelerate, notice of
acceleration, notice of dishonor, notice of foreclosure, notice of protest, and
notice of the incurring by Borrower of any obligation or indebtedness. Guarantor
also waives, to the fullest extent permitted by law, all rights to require
Lender to (a) proceed against Borrower or any other guarantor of Borrower's
payment or performance with respect to the Indebtedness (an "OTHER GUARANTOR")
(b) if Borrower or any Other Guarantor is a partnership, proceed against any
general partner of Borrower or the Other Guarantor, (c) proceed against or
exhaust any collateral held by Lender to secure the repayment of the
Indebtedness, or (d) pursue any other remedy it may now or hereafter have
against Borrower, or (if Borrower is a partnership, any general partner of
Borrower).
6. Guarantor understands that the exercise by Lender of certain rights and
remedies contained in the Instrument (such as a nonjudicial foreclosure sale)
may affect or eliminate Guarantor's right of subrogation against Borrower and
that Guarantor may therefore incur a partially or totally nonreimbursable
liability under this Guaranty. Nevertheless, Guarantor hereby authorizes and
empowers Lender to exercise, in its sole and absolute discretion, any right or
remedy, or any combination thereof, which may then be available, since it is the
intent and purpose of Guarantor that the obligations under this Guaranty shall
be absolute, independent and unconditional under any and all circumstances.
Guarantor expressly waives any defense under this Guaranty (which defense, if
Guarantor had not given this waiver, Guarantor might otherwise have) to a
judgment against Guarantor by reason of a judicial or nonjudicial foreclosure,
other than that the Indebtedness has been paid in full to Lender. Without
limiting the generality of the foregoing, Guarantor hereby expressly waives any
and all benefits under any applicable law which, if Guarantor had not given this
waiver, (i) would otherwise limit Guarantor's liability after a foreclosure sale
to the difference between the obligations of Guarantor under this Guaranty and
the fair market value of the property or interests sold at such nonjudicial
foreclosure sale, (ii) would otherwise limit Lender's right to recover a
deficiency judgment after a foreclosure sale, and (iii) would otherwise require
Lender to exhaust all of its security before a personal judgment could be
obtained for a deficiency. Notwithstanding any foreclosure of the lien of the
Instrument, whether by the exercise of the power of sale contained in the
Instrument, by an action for judicial foreclosure or by Lender's acceptance of a
deed in lieu of foreclosure, Guarantor shall remain bound under this Guaranty.
Guarantor waives all rights and defenses that Guarantor may have because
Borrower's obligations are secured by real property. This means, among other
things:
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(i) Lender may collect from Guarantor without first foreclosing on
any real or personal property collateral pledged by Borrower or others;
and
(ii) If Lender forecloses on any real property collateral pledged by
Borrower or others: (a) The amount of the debt may be reduced only by the
price for which that collateral is sold at the foreclosure sale, even if
the collateral is worth more than the sale price; and (b) Lender may
collect from Guarantor even if Lender, by foreclosing on the real property
collateral, has destroyed any right Guarantor may have to collect from
Borrower.
This is an unconditional and irrevocable waiver of any rights and defenses
that Guarantor may have because Borrower's obligations are secured by real
property.
7. Guarantor also waives any right or defense based upon an election of
remedies by Lender, even though such election (e.g., nonjudicial foreclosure
with respect to any collateral held by Lender to secure repayment of the
Indebtedness) destroys or otherwise impairs the subrogation rights of Guarantor
or the right of Guarantor (after payment of the obligations guaranteed by
Guarantor under this Guaranty) to proceed against Borrower for reimbursement, or
both.
8. Guarantor shall have no right of, and hereby waives any claim for,
subrogation, reimbursement, indemnification, and contribution against Borrower
and against any general partner, member or other constituent of Borrower, and
against any other person or any collateral or security for the Indebtedness,
until the Indebtedness has been indefeasibly paid and satisfied in full, all
obligations owed to Lender (other than any indemnification or other obligations
which are expressly stated in any Loan Documents to survive satisfaction of the
Note) under the Loan Documents have been fully performed, and Lender has
released, transferred or disposed of all of its right, title and interest in
such collateral or security, and there has expired the maximum possible period
thereafter during which any payment made by Borrower or others to Lender with
respect to the Indebtedness could be deemed a preference under the United States
Bankruptcy Code.
9. Subject to the limitation on Guarantor's liability hereunder from and
after the occurrence of an Ownership Transfer (and subject to the last sentence
of Section 3 hereof), at any time or from time to time and any number of times,
without notice to Guarantor and without affecting the liability of Guarantor,
(a) the time for payment of the principal of or interest on the Indebtedness may
be extended or the Indebtedness may be renewed in whole or in part; (b) the time
for Borrower's performance of or compliance with any covenant or agreement
contained in the Note, the Instrument or any other Loan Document, whether
presently existing or hereinafter entered into, may be extended or such
performance or compliance may be waived; (c) the maturity of the Indebtedness
may be accelerated as provided in the Note, the Loan Agreement, the Instrument,
or any other Loan Document; (d) the Note, the Loan Agreement, the Instrument, or
any other Loan Document may be modified or amended by Lender and Borrower in any
respect, including, but not limited to, an increase in the principal amount; and
(e) any security for the Indebtedness may be modified, exchanged, surrendered or
otherwise dealt with or additional security may be pledged or mortgaged for the
Indebtedness.
10. If more than one person executes this Guaranty, the obligations of
those persons under this Guaranty shall be joint and several. Lender, in its
sole and absolute discretion, may (a)
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bring suit against Guarantor, or any one or more of the persons constituting
Guarantor, and any Other Guarantor, jointly and severally, or against any one or
more of them; (b) compromise or settle with any one or more of the persons
constituting Guarantor for such consideration as Lender may deem proper; (c)
release one or more of the persons constituting Guarantor, or any Other
Guarantor, from liability; and (d) otherwise deal with Guarantor and any Other
Guarantor, or any one or more of them, in any manner, and no such action shall
impair the rights of Lender to collect from Guarantor any amount guaranteed by
Guarantor under this Guaranty. Nothing contained in this paragraph shall in any
way affect or impair the rights or obligations of Guarantor with respect to any
Other Guarantor.
11. Any indebtedness of Borrower held by Guarantor now or in the future is
and shall be subordinated to the Indebtedness and any such indebtedness of
Borrower shall be collected, enforced and received by Guarantor, as trustee for
Lender, but without reducing or affecting in any manner the liability of
Guarantor under the other provisions of this Guaranty.
12. If any payment by Borrower is held to constitute a preference under
any applicable bankruptcy, insolvency, or similar laws, or if for any other
reason Lender is required to refund any sums to Borrower, such refund shall not
constitute a release of any liability of Guarantor under this Guaranty. It is
the intention of Lender and Guarantor that Guarantor's obligations under this
Guaranty shall not be discharged except by Guarantor's performance of such
obligations and then only to the extent of such performance.
13. Guarantor shall provide Lender with such statements of income and net
worth as are required under the Loan Documents. To the extent Lender has a
reasonable basis to believe that Guarantor's financial condition has been
adversely affected, Guarantor shall from time to time, upon request by Lender,
deliver to Lender such additional financial information as Lender may reasonably
request.
14. Lender may assign its rights under this Guaranty in whole or in part,
but only in connection with an assignment of all or part of the Note, and upon
any such assignment, all the terms and provisions of this Guaranty shall inure
to the benefit of such assignee to the extent so assigned. The terms used to
designate any of the parties herein shall be deemed to include the heirs, legal
representatives, successors and assigns of such parties; and the term "Lender"
shall include, in addition to Lender, any lawful owner, holder or pledgee of the
Note.
15. This Guaranty and the other Loan Documents represent the final
agreement between the parties and may not be contradicted by evidence of prior,
contemporaneous or subsequent oral agreements. There are no unwritten oral
agreements between the parties. All prior or contemporaneous agreements,
understandings, representations, and statements, oral or written, are merged
into this Guaranty and the other Loan Documents. Guarantor acknowledges that it
has received copies of the Note and all other Loan Documents. Neither this
Guaranty nor any of its provisions may be waived, modified, amended, discharged,
or terminated except by an agreement in writing signed by the party against
which the enforcement of the waiver, modification, amendment, discharge, or
termination is sought, and then only to the extent set forth in that agreement.
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16. This Guaranty shall be governed by the laws of the State of New York,
without regard to choice of law provisions, and Guarantor agrees that any
controversy arising under or in relation to this Guaranty shall be litigated in
the County of New York, State of New York (the "JURISDICTION"). The state and
federal courts and authorities in the Jurisdiction shall have exclusive
jurisdiction over all controversies which shall arise under or in relation to
this Guaranty, the Note, the Loan Document, the Instrument or any other Loan
Document. Guarantor irrevocably consents to service, jurisdiction, and venue of
such courts for any such litigation and waives any other venue to which it might
be entitled by virtue of domicile, habitual residence or otherwise. GUARANTOR
HEREBY AGREES AND IRREVOCABLY ELECTS THAT THIS GUARANTY AND THE OBLIGATIONS
ARISING HEREUNDER SHALL BE, PURSUANT TO SECTION 5-1401 OF THE NY GENERAL
OBLIGATIONS LAW, GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND PERFORMED IN THE STATE OF NEW
YORK (WITHOUT REGARD TO PRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAWS OF
THE UNITED STATES OF AMERICA.
17. Lender may, at any time, sell, transfer or assign the Note, the Loan
Agreement and the other Loan Documents, or any part thereof, and any or all
servicing rights with respect thereto, or grant participations therein or issue
mortgage pass-through certificates or other securities evidencing a beneficial
interest in a rated or unrated public offering or private placement.
18. Unless otherwise specifically provided herein, any notice or other
communication required or permitted to be given shall be in writing and
addressed to the respective party as set forth below. Notices shall be effective
(i) on the next Business Day if sent by a nationally recognized overnight
courier service, (ii) on the date of delivery by personal delivery and (iii) on
the date of transmission if sent by telefax during business hours on a Business
Day (otherwise on the next Business Day) (with receipt of confirmation),
provided a copy is also sent by nationally recognized overnight courier service
for next Business Day delivery.
Notices shall be addressed as follows:
If to Guarantor:
Education Realty Operating Partnership, LP
000 Xxx Xxxxx Xxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx X. Xxxxx
If to Lender:
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
c/o GMAC Commercial Mortgage Corporation
000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
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Any party may change the address at which it is to receive notices to another
address in the United States at which business is conducted (and not a
post-office box or other similar receptacle), by giving notice of such change of
address in accordance with the foregoing. This provision shall not invalidate or
impose additional requirements for the delivery or effectiveness of any notice
(i) given in accordance with applicable statutes or rules of court, or (ii) by
service of process in accordance with applicable law. If there is any assignment
or transfer of Lender interest in the Loan, then the new Lender may give notice
to the parties in accordance with this Section, specifying the addresses at
which the new Lender shall receive notice, such new Lender shall be entitled to
notice at such address in accordance with this Section.
19. GUARANTOR AND LENDER EACH (A) AGREES NOT TO ELECT A TRIAL BY JURY WITH
RESPECT TO ANY ISSUE ARISING OUT OF THIS GUARANTY OR THE RELATIONSHIP BETWEEN
THE PARTIES AS GUARANTOR AND LENDER THAT IS TRIABLE OF RIGHT BY A JURY AND (B)
WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT
ANY SUCH RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY
JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE
BENEFIT OF COMPETENT LEGAL COUNSEL.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Guarantor has executed and delivered this Guaranty as
of the date first written above.
GUARANTOR:
Education Realty Operating Partnership, LP, a
Delaware limited partnership
By: Education Realty OP GP, Inc., a Delaware
corporation, its general partner
By: /s/ Xxxx X. Xxxxx
-------------------------------------
Xxxx X. Xxxxx, President
ACKNOWLEDGEMENT
STATE OF GEORGIA )
) ss.
COUNTY OF XXXXXX )
On January 6, 2006, before me, Xxxxxxxx X. Xxxxxx, personally
appeared Xxxx X. Xxxxx, personally known to me (or proved to me on the basis of
satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized
capacity, and that by his signature on the instrument the person executed the
instrument.
Witness my hand and official seal.
/s/ Xxxxxxxx X. Xxxxxx
-------------------------------------
[Xxxxxxxx X. Xxxxxx
My Commission Expires: Notary Public DeKalb County, Georgia
5-9-08 Expires May 9, 2008]
