Carlyle Real Estate Ltd Partnership XIV/IL · 10-Q · For 9/30/02 · EX-10.B

Filed On 11/14/02 4:57pm ET   ·   SEC File 0-15962   ·   Accession Number 892626-2-374

Quarterly Report   ·   Form 10-Q
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: 10-Q        Quarterly Report                                      25    122K 
 2: EX-10.A     Material Contract                                      6     25K 
 3: EX-10.B     Material Contract                                      4     23K 
 4: EX-99       Miscellaneous Exhibit                                  1      6K 

EX-10.B   ·   Material Contract

EX-10.B
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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 Wells Fargo Bank, N.A.       
("WFB"), successor by merger to Crocker National Bank ("Crocker"), 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 Crocker); (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 Crocker),       
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 Wells Fargo Bank Addendum, dated as of           
September 30, 1996, by and among Carlyle Real Estate Limited Partnership-XV     
("Carlyle XV"), Carlyle XIV, Maguire Partners-Bunker Hill, Ltd. ("Maguire")     
and WFB; (g) that certain Security Agreement, dated as of September 30,         
1996, by and among Maguire/Thomas Partners Development, Ltd. (the "Property     
Manager"), Carlyle XIV and Carlyle XV; (h) that certain Notice of               
Assignment from WFB to the Maguire Partners-South Tower, LLC (formerly          
known as Maguire Thomas 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, Maguire 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 Cheronda B.          
Guyton to Patrick J. Meara, 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 Bill 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 Bill 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).                                 

[ Remainder of page intentionally left blank. ]         

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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/ Patrick Meara       
      ------------------------------
Name:  Patrick Meara    
    Title: Senior Vice President

AGREED AND ACCEPTED as of September 13, 2002:                                   

ATC REALTY, INC.                                                                

By:    /s/ Cheronda B. Guyton                                                   
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Name:  Cheronda B. Guyton                                                       
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Title:  VP                                                                      
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By:    /s/ Donna Cummings                                                       
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Name:  Donna Cummings                                                           
-----------------------------                                     
Title:  VP                                                                      
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WELLS FARGO                                                                     

By:    /s/ Cheronda B. Guyton                                                   
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Name:  Cheronda B. Guyton                                                       
-----------------------------                                     
Title:  VP                                                                      
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By:    /s/ Donna Cummings                                                       
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Name:  Donna Cummings                                                           
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Title:  VP                                                                      
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Dates Referenced Herein   and   Documents Incorporated By Reference

				Referenced-On Page
This 10-Q Filing		Date		First		Last			Other Filings
		9/30/96		1					10-Q
		10/24/96		1
		4/11/01		2
		6/7/01		2
		9/4/02		1		2
		9/13/02		4
For The Period Ended		9/30/02
Filed On / Filed As Of		11/14/02
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