EXHIBIT 10-B
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ACKNOWLEDGEMENT, CONSENT AND WAIVER
(Private 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 ▇▇▇▇▇ Fargo Bank, N.A.
("WFB"), 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 Real Estate Limited Partnership-XV
("Carlyle XV"), Carlyle XIV, ▇▇▇▇▇▇▇ 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 Manger, 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, financial 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 Real"), a wholly-owned subsidiary of WFB.
In connection with ATC Realty's plans to conduct and consummate a
private foreclosure sale (the "Foreclosure Sale") on or after September 4,
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:
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(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.
(iii) Carlyle XIV hereby ratifies, confirms, and reaffirms that 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
Acknowledgement 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 after September
4, 2002 and, therefore, in accordance with Section 9624 of the California
Commercial Code, 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 any 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 after September 4,
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 Private Disposition of
Collateral and the Secured Party's ▇▇▇▇ 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 the Secured Party'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).
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This Acknowledgment, Consent and Waiver shall be construed in
accordance with the law of the State of California, and is executed as of
September 13, 2002.
CARLYLE REAL ESTATE LIMITED PARTNERSHIP - XIV
By: JMB Realty Corporation, general partner
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Senior Vice President
AGREED AND ACCEPTED as of September 13, 2002:
ATC REALTY, INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: VP
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: VP
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▇▇▇▇▇ FARGO
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: VP
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By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Title: VP
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