EXHIBIT 10.2
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ACKNOWLEDGMENT, CONSENT AND WAIVER
(Foreclosure Sale--Carlyle XV)
Reference is made to the following documents (referred to herein,
collectively, as the "Carlyle XV Loan Documents"): (a) that certain Loan
Agreement, dated as of December 26, 1985, by and between Carlyle Real
Estate Limited Partnership-XV ("Carlyle XV") and WFB (as successor by
merger to Xxxxxxx National Bank, "Xxxxxxx"), as amended in accordance with
its terms, including as modified by that certain Loan Modification
Agreement (Carlyle-XV), dated as of October 24, 1996, by and between
Carlyle XV and WFB; (b) that certain Security Agreement, dated as of
December 26, 1985, by and between Carlyle XV and WFB (as successor by
merger to Xxxxxxx); (c) that certain Security Agreement (Equipment and
Fixtures), executed on or about October 24, 1996, by Carlyle XV in favor of
WFB; (d) that certain Continuing Security Agreement (Rights to Payment and
Inventory), executed on or about October 24, 1996, by Carlyle XV in favor
of WFB; (e) that certain Promissory Note, dated December 30, 1985, executed
by Carlyle XV in favor WFB (as successor by merger to Xxxxxxx), as amended
and restated pursuant to that certain Amended and Restated Promissory Note
dated as of October 24, 1996, executed by Carlyle XV in favor of WFB;
(f) that certain Xxxxx Fargo Bank Addendum, dated as of September 30, 1996,
by and among Carlyle Real Estate Limited Partnership XIV ("Carlyle XIV"),
Carlyle XV, Xxxxxxx Partners-Bunker Hill, Ltd. ("Xxxxxxx") and WFB;
(g) that certain Security Agreement, dated as of September 30, 1996, by and
among Xxxxxxx/Xxxxxx Partners Development, Ltd. (the "Property Manager"),
Carlyle XIV and Carlyle XV; (h) that certain Notice of Assignment from WFB
to the Xxxxxxx Partners-South Tower, LLC (formerly known as Xxxxxxx Xxxxxx
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, Xxxxxxx 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 XV
Loan Documents to ATC Realty Seventeen, Inc. (together with its successors
and assignees, "ATC Realty Seventeen"), a wholly-owned subsidiary of WFB.
In connection with ATC Realty Seventeen's plans to conduct and
consummate a public foreclosure sale (the "Foreclosure Sale") on or about
December 17, 2001, to sell and transfer the membership interests in the
LLC, and certain related collateral, (collectively, the "Carlyle XV
Membership Interests") owned by Carlyle XV:
(i) Carlyle XV hereby ratifies, confirms, and reaffirms that it has
granted to WFB a perfected, first priority security interest in
and lien on the Carlyle XV Membership Interests pursuant to the
Carlyle XV Loan Documents.
(ii) Carlyle XV hereby acknowledges that WFB has assigned to ATC
Realty Seventeen all of its rights and interests with respect
to the perfected, first priority security interest in and lien
on the Carlyle XV Membership Interests and the Carlyle XV Loan
Documents.
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(iii) Carlyle XV hereby ratifies, confirms, and reaffirms that all of
the terms and conditions of the (A) Carlyle XV Loan Documents;
(B) that certain Notice of Default dated as of April 11, 2001,
from Xxxxxxxx X. Xxxxxx to Xxxxxxx X. Xxxxx, regarding
Carlyle XV; and (C) that certain Acknowledgment and Waiver
dated as of June 7, 2001, executed by Carlyle XV.
(iv) Carlyle XV hereby ratifies, confirms, and reaffirms all the
remedies granted under the Carlyle XV Loan Documents and
consents to the acceleration of its respective obligations in
connection with the Foreclosure Sale, and to the Foreclosure
Sale.
(v) Carlyle XV hereby acknowledges and agrees that it has had
notice of ATC Realty Seventeen's intention to conduct the
Foreclosure Sale, and further acknowledges and agrees that such
notice was sufficient under the Carlyle XV Loan Documents and
reasonable as required under the California Commercial Code.
Carlyle XV further acknowledges and agrees that it has
knowledge of the Foreclosure Sale to be consummated on or about
December 17, 2001 and, therefore, Carlyle XV WAIVES any notice,
or additional notice, to which it may have been entitled under
the terms and conditions of the Carlyle XV Loan Documents, the
California Commercial Code, or otherwise, including, without
limitation, any notice or right to notice contained in the Loan
Documents.
(vi) Carlyle XV 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 Seventeen or any successor or assignee of WFB
or ATC Realty Seventeen with respect to its obligations under
the Carlyle XV Loan Documents or otherwise, and, if at such
time Carlyle XV has, or ever did have, any such offset,
defense, claim or counterclaim against WFB, ATC Realty
Seventeen or any successor or assignee of WFB or ATC Realty
Seventeen, 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
Seventeen and any successor or assignee of WFB or ATC Realty
Seventeen is hereby expressly RELEASED from any liability
therefor. From and after, and conditioned upon, the
consummation of the Foreclosure Sale, Carlyle XV 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 XV hereby
expressly WAIVES its right to redeem the Carlyle XV 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 XV
and are being accepted by WFB and ATC Realty Seventeen 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 about December 17, 2001, the
same shall be deemed void AB INITIO with the same effect as if
never given).
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(vii) Carlyle XV 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 Xxxx of Sale).
Carlyle XV further acknowledges and agrees that the sale and
transfer of the Carlyle XV Membership Interests in their
present condition is commercially reasonable and that no
preparation or processing of the Membership Interests is
necessary, and, Carlyle XV hereby WAIVES any claim or defense
against WFB, ATC Realty Seventeen, any successor or assignee of
WFB or ATC Realty Seventeen and the purchaser of the Carlyle XV
Membership Interests (which may be ATC Realty Seventeen 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 XV
Membership Interests being sold, that the sale and transfer of
the Carlyle XV 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.
(vii) Carlyle XV hereby acknowledges ATC Realty Seventeen's right to
consummate the Foreclosure Sale and transfer the Carlyle XV
Membership Interests to the Purchaser and agrees not to
interfere with same. Carlyle XV further consents to the
consummation of the Foreclosure Sale by ATC Realty Seventeen to
the Purchaser. Carlyle XV further acknowledges and agrees that
upon delivery of ATC Realty Seventeen's Xxxx of Sale to the
Purchaser by ATC Realty Seventeen, Carlyle XV shall not have
any further right, title or interest thereafter in and to the
Carlyle XV 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
XV 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-XV
By: JMB Realty Corporation, general partner
______________________________________
Name: Xxxxxxx Xxxxx
Title: Senior Vice President
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AGREED AND ACCEPTED December 17, 2001
ATC REALTY SEVENTEEN, INC.
By: _________________________
Name: _________________________
Title: _________________________
XXXXX FARGO BANK, N.A.
By: _________________________
Name: _________________________
Title: _________________________
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