EXHIBIT 10.3
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December 17, 2001
Carlyle Real Estate Limited Partnership-XIV
c/o JMB Realty Corporation
Attn: Xx. Xxxxxxx Xxxxx
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000-0000
Xxxxxxx Xxxxxxx & Xxxxx
Attn: Xxxx Xxxxxxxx, Esq.
0000 Xxxxxxx Xxxx Xxxx 00
Xxx Xxxxxxx, XX 00000
Re: IRREVOCABLE PROXY
Dear Ladies and Gentlemen:
Reference is made to that certain Irrevocable Proxy Regarding the Carlyle
XIV Membership Interests (the "Irrevocable Proxy"), dated as of
December 17, 2001, executed by Carlyle Real Estate Limited Partnership-XIV
("Carlyle XIV").
As you are aware, Carlyle XIV executed the Irrevocable Proxy in favor of
ATC Realty to (among other things) authorize and empower ATC Realty to
exercise the Voting Rights (as such term is defined in the Irrevocable
Proxy). The purpose of this letter agreement is to place certain
contractual limitations and restrictions on ATC Realty with respect to its
use of its rights regarding the Voting Rights, but only to the extent set
forth in this letter agreement. The intent of this letter agreement is
that, while we have the benefit of the broad Irrevocable Proxy for our
dealings with Xxxxxxx Partners-Bunker Hill, Ltd. ("Xxxxxxx"), we can
directly address your concerns about our use of that broad proxy in this
letter agreement.
Notwithstanding anything to the contrary in the Irrevocable Proxy, ATC
Realty hereby agrees that it shall not execute any agreement or document or
otherwise take any action on behalf of Carlyle XIV pursuant to the Voting
Rights granted to ATC Realty by Carlyle XIV under the Irrevocable Proxy if
and to the extent that such agreement, document or action provides for or
otherwise imposes or results in any personal liability or recourse on
Carlyle XIV, including, without limitation, under the Operating Agreement
for the Xxxxxxx Partners-South Tower, LLC (formerly known as the Xxxxxxx
Xxxxxx Partners-South Tower, LLC, the "LLC"), and the under loan agreement
by and between Aetna Life Insurance Company and the LLC, as those
agreements are in effect prior to the date hereof (and ATC Realty shall
indemnify, defend and hold Carlyle XIV harmless from and against any and
all such damage, loss, obligation, cost or expense in connection with any
breach by ATC Realty of the foregoing covenant).
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ATC Realty further agrees that any agreement or document executed by ATC
Realty on behalf of Carlyle XIV pursuant to the Voting Rights under the
Irrevocable Proxy shall specifically include a provision stating that
neither Carlyle XIV nor any direct or indirect partner in Carlyle XIV shall
have any personal liability of any kind or nature under or in connection
with such agreement or document.
Except as set forth in this letter agreement, nothing herein shall in any
way limit any terms and provisions of the Irrevocable Proxy, or any of
terms and provisions of the Carlyle XIV Loan Documents (as such term is
defined in the Irrevocable Proxy) or any other agreement or document
executed in favor of Xxxxx Fargo Bank, N.A., ATC Realty or ATC Realty
Seventeen, Inc., all of which are hereby ratified and affirmed in all
respects. There are no third party beneficiaries of this letter agreement,
especially Xxxxxxx, since the parties intend that, in its dealings with
Xxxxxxx, ATC Realty be able to avoid any disputes with Xxxxxxx about the
scope of ATC Realty's rights.
Very truly yours,
_________________________
ATC Realty, Inc.
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