EXHIBIT 10.1
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ACKNOWLEDGMENT, CONSENT AND WAIVER
(Foreclosure Sale--Carlyle XIV)
Reference is made to the following documents (referred to herein,
collectively, as the "Carlyle XIV Loan Documents"): (a) that certain Loan
Agreement, dated as of December 26, 1985, by and between Carlyle Real
Estate Limited Partnership-XIV ("Carlyle XIV") and WFB (as successor by
merger to ▇▇▇▇▇▇▇ National Bank, "▇▇▇▇▇▇▇"), as amended in accordance with
its terms, including as modified by that certain Loan Modification
Agreement (Carlyle-XIV), dated as of October 24, 1996, by and between
Carlyle XIV and WFB; (b) that certain Security Agreement, dated as of
December 26, 1985, by and between Carlyle XIV and WFB (as successor by
merger to ▇▇▇▇▇▇▇); (c) that certain Security Agreement (Equipment and
Fixtures), executed on or about October 24, 1996, by Carlyle XIV in favor
of WFB; (d) that certain Continuing Security Agreement (Rights to Payment
and Inventory), executed on or about October 24, 1996, by Carlyle XIV in
favor of WFB; (e) that certain Promissory Note, dated December 30, 1985,
executed by Carlyle XIV in favor WFB (as successor by merger to ▇▇▇▇▇▇▇),
as amended and restated pursuant to that certain Amended and Restated
Promissory Note dated as of October 24, 1996, executed by Carlyle XIV in
favor of WFB; (f) that certain ▇▇▇▇▇ Fargo Bank Addendum, dated as of
September 30, 1996, by and among Carlyle XIV, Carlyle Real Estate Limited
Partnership XV ("Carlyle XV"), ▇▇▇▇▇▇▇ Partners-Bunker Hill, Ltd.
("▇▇▇▇▇▇▇") and WFB; (g) that certain Security Agreement, dated as of
September 30, 1996, by and among ▇▇▇▇▇▇▇/▇▇▇▇▇▇ Partners Development, Ltd.
(the "Property Manager"), Carlyle XIV and Carlyle XV; (h) that certain
Notice of Assignment from WFB to the ▇▇▇▇▇▇▇ Partners-South Tower, LLC
(formerly known as ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners-South Tower, LLC, the "LLC"),
dated October 24, 1996, and the related Acknowledgement of Receipt of
Assignment, dated as of October 24, 1996, executed by the LLC in favor of
WFB; (i) that certain Notice of Assignment from WFB to the Property
Manager, dated October 24, 1996, and the related Acknowledgement of Receipt
of Assignment, dated as of October 24, 1996, executed by the Property
Manager in favor of WFB; (j) that certain Mutual Release, dated as of
October 24, 1996, among Carlyle XIV, Carlyle XV, ▇▇▇▇▇▇▇ and WFB; (k) that
certain letter from the Property Manager to Carlyle XIV and Carlyle XV
regarding the Manager's Payment, dated September 30, 1996; (l) that certain
letter from Aetna Life Insurance Company to the LLC, the Property Manager,
Carlyle XIV, Carlyle XV and WFB regarding Payment of Property Management
Fee, dated October 24, 1996; and (m) all other agreements, documents and
instruments executed and filed in connection with or relating to the
foregoing, including, without limitation, financing statements filed
pursuant to the Uniform Commercial Code. WFB assigned all of its rights
and interests under the Carlyle XIV Loan Documents to ATC Realty, Inc.
(together with its successors and assignees, "ATC Realty"), a wholly-owned
subsidiary of WFB.
In connection with ATC Realty's plans to conduct and consummate a
public foreclosure sale (the "Foreclosure Sale"), on or before December 31,
2002, to sell and transfer the membership interests in the LLC, and certain
related collateral, (collectively, the "Carlyle XIV Membership Interests")
owned by Carlyle XIV:
(i) Carlyle XIV hereby ratifies, confirms, and reaffirms that it
has granted to WFB a perfected, first priority security interest in and
lien on the Carlyle XIV Membership Interests pursuant to the Carlyle XIV
Loan Documents.
(ii) Carlyle XIV hereby acknowledges that WFB has assigned to ATC
Realty all of its rights and interests with respect to the perfected, first
priority security interest in and lien on the Carlyle XIV Membership
Interests and the Carlyle XIV Loan Documents.
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(iii) Carlyle XIV hereby ratifies, confirms, and reaffirms all of the
terms and conditions of the (A) Carlyle XIV Loan Documents; (B) that
certain Notice of Default dated as of April 11, 2001, from ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ to ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, regarding Carlyle XIV; and (C) that certain
Acknowledgment and Waiver dated as of June 7, 2001, executed by
Carlyle XIV.
(iv) Carlyle XIV hereby ratifies, confirms, and reaffirms all the
remedies granted under the Carlyle XIV Loan Documents and consents to the
acceleration of its respective obligations in connection with the
Foreclosure Sale, and to the Foreclosure Sale.
(v) Carlyle XIV hereby acknowledges and agrees that it has had
notice of ATC Realty's intention to conduct the Foreclosure Sale, and
further acknowledges and agrees that such notice was sufficient under the
Carlyle XIV Loan Documents and reasonable as required under the California
Commercial Code. Carlyle XIV further acknowledges and agrees that it has
knowledge of the Foreclosure Sale to be consummated on or before
December 31, 2002 and, therefore, Carlyle XIV WAIVES any notice, or
additional notice, to which it may have been entitled under the terms and
conditions of the Carlyle XIV Loan Documents, the California Commercial
Code, or otherwise, including, without limitation, any notice or right to
notice contained in the Loan Documents.
(vi) Carlyle XIV hereby acknowledges and agrees that from and after,
and conditioned upon, the consummation of the Foreclosure Sale, it shall
have no offsets, defenses, or counterclaims against WFB, ATC Realty or any
successor or assignee of WFB or ATC Realty with respect to its obligations
under the Carlyle XIV Loan Documents or otherwise, and, if at such time
Carlyle XIV has, or ever did have, any such offset, defense, claim or
counterclaim against WFB, ATC Realty or any successor or assignee of WFB or
ATC Realty, whether known or unknown, at law or in equity, of any kind,
nature, or description, from the beginning of the world through this date,
then from and after, and conditioned upon, consummation of the Foreclosure
Sale (i) all of them are hereby expressly WAIVED, and (ii) each of WFB, ATC
Realty and any successor or assignee of WFB or ATC Realty is hereby
expressly RELEASED from any liability therefor. From and after, and
conditioned upon, the consummation of the Foreclosure Sale, Carlyle XIV
hereby expressly WAIVES the benefits of California Civil Code Section 1542
(which provides: "A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially affected
his settlement with the debtor.") or any similar law of any state or
equitable principle. In addition, from and after, and conditioned upon,
the consummation of the Foreclosure Sale, Carlyle XIV hereby expressly
WAIVES its right to redeem the Carlyle XIV Membership Interests under
Section 9623 of the California Commercial Code or any similar law of any
state or equitable principle. The foregoing releases and waivers are being
given by Carlyle XIV and are being accepted by WFB and ATC Realty solely to
facilitate the Foreclosure Sale and, notwithstanding anything to the
contrary contained herein, the same shall not be effective for any purpose
unless and until the Foreclosure Sale is consummated (and if the
Foreclosure Sale is not consummated for any reason on or before
December 31, 2002, the same shall be deemed void AB INITIO with the same
effect as if never given).
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(vii) Carlyle XIV hereby acknowledges and agrees that it has been
advised of the terms and conditions of the Foreclosure Sale (including,
without limitation, the time, place and manner of the public disposition),
and has received draft copies of the relevant documents (including, without
limitation, the proposed forms of Notice of Foreclosure Sale and the ▇▇▇▇
of Sale). Carlyle XIV further acknowledges and agrees that the sale and
transfer of the Carlyle XIV Membership Interests in their present condition
is commercially reasonable and that no preparation or processing of the
Membership Interests is necessary, and Carlyle XIV hereby WAIVES any claim
or defense against WFB, ATC Realty, any successor or assignee of WFB or ATC
Realty and the purchaser of the Carlyle XIV Membership Interests (which may
be ATC Realty or a third party; referred to herein as the "Purchaser")
alleging that such sale was not commercially reasonable in any or all
respects, including, without limitation, that the purchase price is
insufficient for the value of the Carlyle XIV Membership Interests being
sold, that the sale and transfer of the Carlyle XIV Membership Interests in
their present condition, without preparation or processing, is not
commercially reasonable or that the method, manner, time, place or terms of
such sale are not commercially reasonable.
(viii) Carlyle XIV hereby acknowledges ATC Realty's right to
consummate the Foreclosure Sale and transfer the Carlyle XIV Membership
Interests to the Purchaser and agrees not to interfere with same.
Carlyle XIV further consents to the consummation of the Foreclosure Sale by
ATC Realty to the Purchaser. Carlyle XIV further acknowledges and agrees
that upon delivery of ATC Realty's ▇▇▇▇ of Sale to the Purchaser by ATC
Realty, Carlyle XIV shall not have any further right, title or interest
thereafter in and to the Carlyle XIV Membership Interests.
(ix) The limitations on liability specified in Section 6.13 of the
Loan Modification Agreement referenced in the first paragraph hereof are
hereby incorporated herein by reference as if fully set forth herein (it
being understood and agreed that Carlyle XIV shall not have any personal
liability hereunder or in connection herewith).
This Acknowledgment, Consent and Waiver shall be construed in
accordance with the law of the State of California, and is executed this
17th day of December 2001.
CARLYLE REAL ESTATE LIMITED PARTNERSHIP-XIV
By: JMB Realty Corporation, general partner
______________________________________
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
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AGREED AND ACCEPTED December 17, 2001
ATC REALTY, INC.
By:
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Name:
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Title:
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▇▇▇▇▇ FARGO BANK, N.A.
By:
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Name:
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Title:
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