exv10w9



 







Exhibit 10.9




Defeasance Pledge And Security Agreement




     THIS DEFEASANCE PLEDGE AND SECURITY AGREEMENT, dated as of November 18, 2005 (this
“Agreement”) made by and among CASA MUNRAS HOTEL PARTNERS, L.P., a California limited
partnership (“Pledgor”), U.S. BANK NATIONAL ASSOCIATION, successor-in-interest to State
Street Bank and Trust Company, as Trustee under the Pooling and Servicing Agreement, dated as of
October 1, 1998 (the “Pooling and Servicing Agreement”), for the Registered Holders of
Credit Suisse First Boston Mortgage Securities Corp., Commercial Mortgage Pass-Through
Certificates, Series 1998-PS2 and as secured party (together with its successors and assigns,
“Pledgee”), and, for the sole purpose of agreeing to the provisions of Sections 7, 8,
9, 16, 22 and 25 of this Agreement, WELLS FARGO BANK, N.A., as Securities Intermediary
(“Intermediary”).



Recitals:




     A. On or about June 12, 1998, AMRESCO Capital, L.P., a Delaware limited partnership
(“Original Lender”) advanced to Pledgor the original principal amount of $7,000,000.00
(the “Loan”).



     B. The Loan is evidenced by that certain Fixed Rate Note [With Defeasance and Lockbox
Provisions] dated as of June 12, 1998 from Pledgor to Original Lender (the “Note”).



     C. The Loan and Note are secured by that certain Deed of Trust, Assignment of Leases and
Rents, Security Agreement and Fixture Filing dated as of June 12, 1998, executed by Pledgor, in
favor of Original Lender (the “Mortgage”) granting to Original Lender, among other things,
a lien on the real property described in said Mortgage (the “Real Property”). The Loan is
further evidenced or secured by various other documents executed by Pledgor and others in favor of
Original Lender (together with the Note and Mortgage, the “Loan Documents”).



     D. Original Lender assigned all of its right, title and interest in the Loan and the Loan
Documents to Pledgee.



     E. Pursuant to the Loan Documents, Pledgor has directed Pledgee to release the lien of the
Mortgage on the Real Property upon Pledgor’s defeasance of the Loan.



     F. Pursuant to the Loan Documents, it is a condition precedent to Pledgee’s obligation to
release the lien of the Mortgage on the Real Property that Pledgor grant a security interest in the
Pledged Collateral (as hereinafter defined) to Pledgee to secure the payment and performance in
full when due of all amounts payable under the Loan Documents.



     G. Pledgor is the legal and beneficial owner of the securities listed in Exhibit A
hereto (collectively, the “Securities”).



     NOW, THEREFORE, Pledgor and Pledgee agree as follows:



 









 





Section 1. Definitions.




     The following terms shall have the following meanings when used herein. Each capitalized term
used and not defined herein shall have the meaning assigned to such term in the Loan Documents.



     “Account Agreement” means the Defeasance Account Agreement of even date herewith among
Pledgor, Pledgee, Servicer, and Intermediary.



     “Assignment and Assumption Agreement” means the Defeasance Assignment, Assumption and
Release Agreement of even date herewith among Pledgor, Pledgee, Successor Borrower, Servicer and
Intermediary.



     “Book-Entry Securities” means U.S. Obligations that are (a) “Book-Entry Securities” as
defined in 31 C.F.R. Section 357.2, that have been issued by the United States Department of the
Treasury, (b) “Book-Entry GSE Securities” as defined in the regulations of the United States
Department of Housing and Urban Development governing direct obligations of the FNMA and the FHLMC
(24 C.F.R. Part 81, as amended), or (c) “Book-Entry Funding Corporation Securities” as defined in
the regulations of the United States Department of the Treasury governing securities issued by the
REFCO (12 C.F.R. Part 1511, as amended), and are, in each case, maintained in the Treasury/Reserve
Automated Debt Entry System (“Trades”) of the Federal Reserve Bank pursuant to 31 C.F.R.
Subpart B.



     “Certificates” means Credit Suisse First Boston Mortgage Securities Corp., Commercial
Mortgage Pass-Through Certificates, Series 1998-PS2.



     “Code” means the Uniform Commercial Code of the State.



     “Custodian” means the Intermediary in its capacity as custodian of the Pledged
Collateral Account (as hereinafter defined).



     “Defeasance Documents” means this Agreement; the Note; the Account Agreement; the
Assignment and Assumption Agreement; the Modification, Waiver and Consent Agreement of even date
herewith from Pledgee to Pledgor; the Certificate of Borrower executed by Pledgor of even date
herewith; and all financing statements filed in connection with this Agreement, all as amended,
continued or otherwise modified.



     “Defeasance Transactions” shall mean one or more transactions by which Successor
Borrower becomes the successor borrower under one or more defeased mortgage loans held by Pledgee.



     “Entitlement Order” means “entitlement order” as defined in Section 8-102 of the Code.



     “Event of Default” has the meaning set forth in Section 9(a).



     “FHLMC” means the Federal Home Loan Mortgage Corporation.



 









 





     “FNMA” means the Federal National Mortgage Association.



     “Federal Book-Entry Regulations” means the regulations of (i) the United States
Department of the Treasury governing the transfer and pledge of marketable Book-Entry Securities
maintained in the form of entries in the TRADES book-entry system in the Federal Reserve Bank, as
set forth in 31 C.F.R. Part 357, as amended, (ii) the United States Department of Housing and Urban
Development regulations governing the transfer and pledge of securities issued by the FNMA or the
FHLMC, in each case maintained by a Federal Reserve Bank in the form of entries in the Book-Entry
System (as defined in Subpart A of 24 C.F.R. Part 81) as set forth in Subpart H of 24 C.F.R. Part
81, and (iii) the U.S. Treasury regulations governing the transfer and pledge of securities issued
by the REFCO, and maintained by a Federal Reserve Bank in the form of entries in the Book-Entry
System (as defined in 12 C.F.R. Part 1511) as set forth in 12 C.F.R. Part 1511.



     “Federal Reserve Bank” means the Federal Reserve Bank at which Intermediary maintains
its Participant’s Securities Account.



     “Financial Asset” means a “financial asset” as defined under Section 8-102(a)(9) of
the Code.



     “Guarantor” shall mean, if applicable, any entity or individual that (i) guaranteed,
in whole or in part, Pledgor’s obligations under the Loan Documents, or (ii) agreed to indemnify
Lender in respect of any matters set forth in the Loan Documents.



     “Governmental Authority” means any federal, state, local or foreign court, agency,
authority, board bureau, commission, department, office or instrumentality of any nature whatsoever
or any governmental or quasi-governmental unit, whether now or hereafter in existence, or any
officer or official thereof.



     “IRC” means the Internal Revenue Code of 1986, as amended, and applicable temporary or
final regulations of the United States Department of the Treasury issued pursuant thereto.



     “Maturity Date” means July 1, 2008, as set forth in the Note.



     “Obligor” means any issuer, guarantor or other obligor with respect to any of the
Securities or any Permitted Investment.



     “Participant’s Securities Account” means a “Participant’s Securities Account” (as
defined in 31 C.F.R. Section 357.2) at a Federal Reserve Bank to which Book-Entry Securities may be
credited.



     “Person” means any individual, corporation, limited liability company, partnership,
joint venture, estate, association, joint stock company, trust, unincorporated organization, or
government or any agency or political subdivision thereof and any fiduciary acting in such capacity
on behalf of any of the foregoing.



     “Pledged Collateral” has the meaning set forth in Section 2.



 









 





     “Pledged Collateral Account” has the meaning set forth in Section 2(d).



     “Pledged Entitlements” has the meaning set forth in Section 2(b).



     “Proceeds” means “proceeds” as defined in Section 9-102 of the Code or as defined in
the Uniform Commercial Code as in effect in any jurisdiction whose law applies to such proceeds or
as defined under other applicable law.



     “REFCO” means the Resolution Funding Corporation.



     “REMIC” means a “real estate mortgage investment conduit” within the meaning of
Section 860D of the IRC.



     “Secured Obligations” means the principal amount of the Note outstanding from time to
time, as increased or decreased as a result of prepayment, modification or otherwise, and all
accrued and unpaid interest thereon and all other obligations, expenses, and liabilities due or to
become due to Pledgee under the Defeasance Documents or Loan Documents , including without
limitation all costs and expenses incurred by Pledgee in collecting the Loan and in enforcing the
Defeasance Documents or the Loan Documents.



     “Securities” has the meaning set forth in the Recitals.



     “Securities Account” means the securities account (as defined in Section 8-501(a) of
the Code) maintained by Intermediary for Pledgee to which the Securities have been credited.



     “Securities Intermediary” means a “securities intermediary” within the meaning of
Section 357.2 of the Federal Book-Entry Regulations and Section 8-102 of the Code.



     “Security Entitlement” means a “security entitlement” as defined in the Federal
Book-Entry Regulations with respect to a Book-Entry Security.



     “Servicer” means any duly authorized loan servicer acting as agent of Pledgee. As of
the date hereof, Servicer shall mean GMAC Commercial Mortgage Corporation, successor-in-interest
to AMRESCO Services, L.P., together with its successors and assigns under the Pooling and Servicing
Agreement.



     “Single Purpose Entity” has the meaning set forth in Exhibit B attached.



     “State” means the State of New York, the laws of which State shall govern the terms of
this Agreement and the other Defeasance Documents.



     “Successor Borrower” means, if applicable, the assignee of Pledgor to whom Pledgor
will, with Pledgee’s consent, assign all of the Pledged Collateral and the Defeasance Documents
pursuant to the Assignment and Assumption Agreement, immediately after execution of this Agreement.



 









 





     “U.S. Obligations” means “government securities” as such term is defined in Section
2(a)(16) of the Investment Company Act of 1940, as amended (15 U.S.C. 80a-1, et seq.), that
are not subject to prepayment, call or early redemption, and are maintained in the form of entries
on the books of a Federal Reserve Bank.



Section 2. Pledge.




     As collateral security for the Secured Obligations, Pledgor hereby pledges, assigns, transfers
and grants to Pledgee a continuing first priority security interest in and lien on all of the
right, title and interest of Pledgor in, to and under the following property (collectively, the
“Pledged Collateral”):



     (a) the Securities and any interest of Pledgor in the entries on the books of any Securities
Intermediary (including Intermediary) pertaining to the Securities;



     (b) all Security Entitlements with respect to the Securities and with respect to any Permitted
Investments (the “Pledged Entitlements”);



     (c) all Proceeds of the Securities and the Pledged Entitlements, including, without
limitation, proceeds of any indemnity, warranty or guarantee payable from time to time with respect
to any of the Securities or the Pledged Entitlements, or payments (in any form) made or due and
payable to Pledgor from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Securities or the Pledged
Entitlements by or on behalf of any Governmental Authority, and any and all other amounts from time
to time paid or payable under or in connection with any of the Securities or the Pledged
Entitlements; and



     (d) any and all other (i) funds and Financial Assets and Proceeds thereof now or hereafter
deposited in or credited to Account No. 33655700 titled “NEWCSFBMSC 98-PS2 LLC (Casa Munras Hotel
Partners) Defeasance” at Custodian (said account and the related Securities Account, if separate,
together referred to as the “Pledged Collateral Account”), including cash in the amount of
$910.47, (ii) interest and earnings on any of the Pledged Collateral including interest that
accrues either before or after the commencement of any bankruptcy or insolvency proceeding by or
against Pledgor or Successor Borrower, (iii) present and future accounts, general intangibles,
chattel paper, contract rights, deposit accounts, instruments and documents (as defined in the Code
or in the Uniform Commercial Code as in effect in any jurisdiction whose law applies to such
property) now or hereafter relating or arising with respect to the Pledged Collateral Account
and/or the use thereof, and (iv) cash and non-cash Proceeds and products of the items described in
subclauses (i), (ii) and (iii) above.



Section 3. Secured Obligations.




     This Agreement secures, and the Pledged Collateral is collateral security for, the payment and
performance in full when due, whether at stated maturity, by acceleration or otherwise of all of
the Secured Obligations (including, without limitation, the payment of interest and other amounts
which would accrue and become due but for the filing of a petition in bankruptcy



 









 




(whether or not a claim is allowed against Pledgor or Successor Borrower for such interest or
other amounts in any such bankruptcy proceeding) or the operation of the automatic stay under the
United States Bankruptcy Code, 11 U.S.C. §362(a)).




Section 4. No Release or Assumption of Pledgor’s Obligations to Others.




     The granting by Pledgor to Pledgee of the security interest in the Pledged Collateral shall
not relieve Pledgor from the performance of any term, covenant, condition or agreement on Pledgor’s
part to be performed or observed under or in respect of any of the Pledged Collateral or from any
liability to any Person other than Pledgee under or in respect of any of the Pledged Collateral or
impose any obligation on Pledgee to perform or observe any such term, covenant, condition or
agreement to be so performed or observed by Pledgor or impose any liability on Pledgee for any act
or omission on the part of Pledgor relating thereto or for any breach of any representation or
warranty to any Person other than Pledgee by Pledgor in respect of the Pledged Collateral or made
in connection herewith or therewith. The provisions set forth in this Section 4 shall
survive any release of Pledgor by Pledgee set forth in the Defeasance Documents and, any
termination of this Agreement.



Section 5. Further Assurances.




     Pledgor agrees that, upon written request of Pledgee at any time and from time to time, it
will make, execute, endorse, acknowledge and file and refile, or permit Pledgee to file and refile,
such lists, descriptions and designations of the Pledged Collateral, copies of documents of title,
vouchers, invoices, schedules, Entitlement Orders, powers of attorney, assignments, confirmatory
assignments, supplements, additional security agreements, financing statements, amendments thereto,
continuation statements, transfer endorsements and other documents (including, without limitation,
this Agreement), in form reasonably satisfactory to Pledgee in such offices as Pledgee may deem
reasonably necessary or appropriate, wherever required or permitted by law in order to perfect,
protect and preserve the rights and interests granted to Pledgee hereunder. Pledgor hereby
authorizes Pledgee and appoints Pledgee as its attorney-in-fact to file such financing statements,
continuation statements, amendments thereto and other documents, without the signature of Pledgor,
to the fullest extent permitted by applicable law, and Pledgor agrees to do such further acts and
things, and to execute and deliver to Pledgee such additional assignments, agreements, powers and
instruments, as Pledgee may reasonably require to effectuate the purposes of this Agreement, to
preserve or protect the lien on the Pledged Collateral created by this Agreement or to assure and
confirm unto Pledgee its rights, powers and remedies hereunder. The foregoing grant of authority
is a power of attorney coupled with an interest and such appointment shall be irrevocable for the
term of this Agreement. All of the foregoing shall be at the sole cost and expense of Pledgor.
The provisions set forth in this Section 5 shall survive any release of Pledgor by Pledgee
set forth in the Defeasance Documents and any termination of this Agreement.



Section 6. Pledgor Representations, Warranties and Covenants.




     Pledgor represents, warrants and covenants as follows:



 









 





     (a) Value. Pledgor has received value (as defined in Section 1-201(44) of the Code)
for the Secured Obligations and for the granting of the security interest described herein.



     (b) Rights in Pledged Collateral. The Securities exist and Pledgor is, as of the date
hereof, and as to all Pledged Collateral acquired by it from time to time after the date hereof,
will be, the owner of good and marketable title to all of the Pledged Collateral, subject to the
terms of the Assignment and Assumption Agreement.



     (c) No Liens or Other Financing Statements. Except for the liens granted to Pledgee
under this Agreement and financing statements filed or to be filed with respect to and covering the
lien granted by Pledgor pursuant to this Agreement, Pledgor holds the Pledged Collateral now
existing, and will own any of the Pledged Collateral hereafter coming into existence from time to
time, free and clear of any lien, claim, or encumbrance, and Pledgor has not pledged, assigned,
sold, granted a security interest in, or otherwise conveyed any of the Pledged Collateral and shall
defend the Pledged Collateral against all claims and demands of all Persons at any time claiming
any interest therein adverse to Pledgee; Pledgor has not authorized, executed or filed in any
public office, nor is aware of any control agreement or financing statement (or similar statement
or instrument of registration under the law of any jurisdiction) covering or purporting to cover
any interest of any kind in the Pledged Collateral; and so long as Pledgor remains obligated to pay
the Secured Obligations, Pledgor shall not enter into any such control agreement or execute, file
or authorize to be filed in any public office any financing statement (or similar statement or
instrument of registration under the law of any jurisdiction) or statements relating to the Pledged
Collateral.



     (d) Perfection. All of the Securities are U.S. Obligations, and Pledgor has taken or
caused other Persons to take all actions necessary to effect the creation and perfection of
Pledgee’s security interest in the Securities and other Pledged Collateral, and, as required under
the Code, has authorized, and does hereby authorize, to be filed with the Secretary of State of
the jurisdiction of organization of Successor Borrower, and the Secretary of State of the
jurisdiction in which the Pledged Collateral Account is maintained, a UCC-1 financing statement
naming Successor Borrower, as debtor) evidencing the lien or pledge created by this Agreement, and,
this Agreement, together with the book entries described in Section 6(h) below, and other
actions taken with respect to the Pledged Collateral pursuant to this Agreement create a valid and
continuing, perfected first priority security interest in the Pledged Collateral in favor of
Pledgee pursuant to the Code, securing the Secured Obligations.



     (e) Authorization; Enforceability. Pledgor is a limited partnership, duly organized,
validly existing and in good standing under the laws of the State of California and is duly
qualified to transact business in the state where the Real Property is located. Pledgor has full
power, authority and legal right to enter into this Agreement and to pledge and grant a lien on the
Pledged Collateral pursuant to this Agreement, and this Agreement has been duly authorized,
executed and delivered by Pledgor and constitutes the legal, valid and binding obligation of
Pledgor, enforceable against Pledgor in accordance with its terms.



     (f) No Consents, Etc. No authorization, consent, approval, license, qualification or
formal exemption from, nor any filing, declaration or registration with, any court, Governmental



 









 







Authority, or with any securities exchange or any other Person, is required in connection with
(i) the due execution, delivery or performance by Pledgor of this Agreement, (ii) the assignment
of, and the grant of a lien on (including the priority thereof), the Pledged Collateral by Pledgor
in the manner and for the purpose contemplated by this Agreement, or (iii) the exercise of the
rights and remedies of Pledgee created hereby except those that have been obtained or made
concurrently with the execution hereof, including, without limitation, filings in the appropriate
offices under the Code.



     (g) No Breach. Neither the execution and delivery of this Agreement, nor the
consummation of the transactions herein contemplated, nor compliance with the terms and provisions
hereof will conflict with or result in a breach of, Pledgor’s formation agreements, any applicable
law or regulation, or any order, writ, injunction or decree of any court or Governmental Authority,
or any agreement or instrument to which Pledgor is a party or by which Pledgor is bound or to which
any of the Pledged Collateral is subject, or result in the creation or imposition of any lien upon
Pledgor’s earnings or assets pursuant to the terms of any such agreement or instrument.



     (h) Actions With Respect to Securities. Pledgor shall cause the Securities to be
credited to Intermediary’s Participant’s Securities Account maintained at the Federal Reserve Bank
at which Intermediary maintains a Participant’s Securities Account, and to be identified on the
records of such Federal Reserve Bank as being held for the sole and exclusive account of
Intermediary. Pledgor does hereby (i) direct Intermediary to credit by book-entry such Securities
to the Securities Account of Pledgee and hold the same for the sole and exclusive account of
Pledgee for the benefit of Pledgee and (ii) direct Intermediary to send a written confirmation to
Pledgee that Intermediary has so credited the Securities to such Securities Account and is holding
the Securities for the sole and exclusive account of Pledgee for the benefit of Pledgee. Pledgor
hereby agrees that Intermediary is the Securities Intermediary at which the Securities Account of
Pledgee and the Pledged Collateral Account are maintained. Pledgor hereby directs Intermediary to
comply with all Entitlement Orders of Pledgee with respect to the Pledged Collateral.



     (i) Pledged Collateral. Based on the Accountant’s Letter (as defined in the Account
Agreement), the list of the Securities is complete and accurate and all of the Securities are
Book-Entry Securities. On the date hereof, all information set forth herein (including the
exhibits hereto), and set forth in the Accountant’s Letter and the Schedules thereto, or otherwise
provided to Pledgee relating to the Pledged Collateral is, to Pledgor’s knowledge, accurate and
complete in all material respects. Based on the Accountant’s Letter, (1) none of the Securities is
subject to prepayment call or early redemption, (2) all of the Securities are payable in United
States Dollars and (3) if the Securities include securities identified as obligations of:



          (i) REFCO, they are direct obligations thereof, and are interest-only strips; or




          (ii) FHLMC or FNMA, they are direct debt obligations thereof.




     (j) Single Purpose Entity. Pledgor is, and shall continue to be, a Single Purpose
Entity (for purposes of this paragraph only, as that term is used in the Mortgage, and not as



 









 







defined herein), until the earlier of the date on which (i) Pledgor has transferred all of its
right, title and interest in the Pledged Collateral in accordance with the terms of the Defeasance
Documents, or (ii) all Secured Obligations have been paid in full and satisfied.



     (k) Value. The fair market value of the Real Property is greater than the face amount
of the Securities; Pledgor has received reasonably equivalent value in exchange for the transfers
contemplated by the Defeasance Documents.



     (l) No Intent to Hinder Creditors. The pledge of the Securities to Pledgee and, if
applicable, the transfer of the Securities to Successor Borrower, are not done in contemplation of
insolvency or bankruptcy or with an intent to hinder, delay or defraud any of Pledgor’s creditors;



     (m) No Insolvency. Pledgor is not insolvent immediately before signing this Agreement
and is not being rendered insolvent by the pledge of the Securities to Pledgee and, if applicable,
the transfer of the Securities to Successor Borrower;



     (n) Not Unreasonably Small Capital. The assets owned by Pledgor immediately after
giving effect to the pledge of the Securities to Pledgee and, if applicable, the transfer of the
Securities to Successor Borrower, represent an amount of capital that is not unreasonably small for
the business in which Pledgor is engaged, and Pledgor does not intend to engage in any other
business for which such capital would be unreasonably small;



     (o) No Intent to Incur Debts Beyond Ability to Pay. At the time of the pledge of the
Securities to Pledgee and, if applicable, the transfer of the Securities to Successor Borrower,
Pledgor does not intend to, or believe that it will, incur debts that would be beyond its ability
to pay as such debts matured; and



     (p) Purpose. The Pledgor’s purpose in entering into the transaction contemplated in
the Defeasance Documents is to effect a sale or refinance of the Real Property. Pledgor has not
incurred any indebtedness other than the Loan and the other indebtedness permitted by the Loan
Documents.



     (q) Transfer of Interest in Pledgor. Pledgor will not, and Pledgor will not permit
any Person to, sell, assign, transfer, convey, pledge or otherwise dispose of all or any direct or
indirect interest in Pledgor, without the prior written consent of Pledgee, until the earlier of
the date on which (i) Pledgor has transferred all of its right, title and interest in the Pledged
Collateral in accordance with the terms of the Defeasance Documents, or (ii) all Secured
Obligations have been paid in full and satisfied.



Section 7. Intermediary Representations, Warranties and Covenants.




     Intermediary hereby represents, warrants and covenants that:



     (a) it is a Securities Intermediary and will at all times act in that capacity in connection
with the Pledged Collateral;



     (b) it is an Eligible Institution (as defined in the Account Agreement);



 









 





     (c) the Securities have been credited to the Participant’s Securities Account maintained by
Intermediary at the Federal Reserve Bank;



     (d) the Pledged Collateral Account is, and will at all times be maintained as, a Securities
Account;



     (e) the Pledged Entitlements have been and will continue to be credited, by accurate book
entry, to and maintained in, the Pledged Collateral Account maintained by Intermediary for the
benefit of Pledgee, and Pledgee is the holder of all Security Entitlements with respect to the
Securities;



     (f) it has accepted, and will at all times maintain the Pledged Collateral Account at its
offices currently located in Minneapolis, Minnesota; provided however, in the event the
Intermediary intends to move the Pledged Collateral Account to another location, it shall provide
the Pledgee with thirty (30) days prior written notice and the Intermediary shall cooperate with
Pledgee in ensuring the Pledgee’s perfected security interest in the Pledged Collateral Account as
required under the Code, including without limitation, the execution of any and all documents
required to continue the Pledgee’s perfected security interest in the Pledged Collateral Account;



     (g) Pledgee has and shall continue to have “control” (as defined in Section 8-106 of the Code)
over the Securities, the Pledged Entitlements and the other Pledged Collateral;



     (h) it has received no actual notice of, and has no actual knowledge of, any “adverse claim”
(as defined in the Code) or lien or encumbrance as to the Pledged Collateral (including, but not
limited to, any claim, lien or encumbrance in favor of the United States or any state) (other than
the lien created under the Defeasance Documents);



     (i) each item of property (including, but not limited to, any item of “investment property”
(as defined under the Code), security instrument or cash, and every Security Entitlement in any of
the foregoing) credited to the Pledged Collateral Account shall be treated by Intermediary as a
Financial Asset subject to this Agreement; and



     (j) without limitation of any of the foregoing, it shall comply with all written Entitlement
Orders originated by Pledgee without consent of Pledgor or any other Person, and shall not accept
Entitlement Orders from any Person other than Pledgee except as authorized in writing by Pledgee.



Section 8. Covenants Concerning the Pledged Collateral.




     Intermediary and Pledgor hereby covenant, each as to itself, that:



     (a) Waiver of Liens. It waives and releases, solely for the benefit of Pledgee, any
and all claim, lien, encumbrance or right of set off that it may now or hereafter have against the
Pledged Collateral or any portion thereof.



 









 





     (b) Protection of Pledgee’s Security. It shall not take any action that impairs the
rights of Pledgee in the Pledged Collateral or the perfection of the security interests created
hereunder.



     (c) Payments. So long as no Event of Default shall have occurred and be continuing,
all distributions, cash, interest, earnings, return of capital or other payments made in respect of
the Pledged Collateral shall be deposited in the Pledged Collateral Account and utilized in
accordance with the provisions of the Defeasance Documents (which utilization shall include,
without limitation, the payment of scheduled installments due under the Note and the final payment
on the Maturity Date). At all times, whether before or during the continuation of any Event of
Default, all rights to enforce and collect payments in respect of the Pledged Collateral or to
direct the disposition thereof shall be exercised exclusively by Pledgee and the proceeds of any
such exercise shall be applied to Pledgor’s obligations under the Defeasance Documents. In the
event that any payments in respect of the Pledged Collateral are made directly to Pledgor, Pledgor
shall hold such amounts as agent and trustee for Pledgee, segregate all amounts received pursuant
thereto in a separate account and pay such amounts promptly to or as directed by Pledgee.



     (d) Transfers or Liens. Except for the transfer of the Pledged Collateral to the
Successor Borrower contemplated herein and in the Assignment and Assumption Agreement, it shall not
(i) sell, convey, assign or otherwise dispose of, or grant any option, right or warrant with
respect to, any of the Pledged Collateral except to the extent Intermediary is permitted or
required to transfer its rights and obligations to a successor intermediary pursuant to Section 4
and Section 7 of the Account Agreement, or (ii) create or, by its action or inaction, permit to
exist any lien upon or with respect to any Pledged Collateral, except for the lien of this
Agreement.


Section 9. Default; Remedies Upon Default; Obtaining the Pledged Collateral Upon Event of
Default.




     (a) The occurrence and continuation of one or more of the following shall constitute an “Event
of Default” hereunder:




     (i) Any default in the payment when due of any principal of or interest on the Loan,
including the entire balance of the Loan on the Maturity Date, or default in the payment
when due of any other amount payable with respect to the Secured Obligations; or




     (ii) Any representation, warranty or certification made by any Person for the benefit
of Pledgee in any Defeasance Document (or in any modification or supplement thereto), or in
any certificate, report, financial statement or other item furnished to Pledgee in
connection with this transaction shall prove to have been false or misleading in any
material respect as of the time made or furnished and, if this shall be a result of conduct
of a party other than Successor Borrower, such default results, or is likely, in Pledgee’s
reasonable determination to result, in a default under Section 9(a)(i); or



 









 






     (iii) Any of the Defeasance Documents shall be rescinded or declared null and void, or
shall fail to create or perfect the liens, rights, powers and privileges purported to be
created thereby (including a perfected security interest in and lien on all of the Pledged
Collateral, subject to no equal or prior lien) and, if this shall be a result of conduct of
a party other than Successor Borrower, such default results, or is likely, in Pledgee’s
reasonable determination to result, in a default under Section 9(a)(i); or




     (iv) The Pledged Collateral or any part thereof or interest therein or any direct or
indirect interest in Pledgor (except as otherwise permitted in Section 6(q) above) or any
direct interest or more than a 49% indirect interest in Successor Borrower (or any direct or
indirect interest in its manager or managing member) becomes subject to any security
interest, pledge, covenant, lien, or other encumbrance whether junior or senior to the
interest of Pledgee, subject to the setoff terms of Section 4(e) of the Account Agreement
following payment of the Loan; or




     (v) The Pledged Collateral or any part thereof or interest therein, or any direct or
indirect interest in Pledgor (except as otherwise permitted in Section 6(q) above), or any
direct interest or more than a 49% indirect interest in Successor Borrower (or any direct or
indirect interest in its manager or managing member) is sold, assigned, transferred,
conveyed or otherwise disposed of or is the subject of any attempted sale, assignment,
transfer or conveyance without written consent of Pledgee and, in the case of more than a
49% indirect interest in Successor Borrower, without rating agency approval; provided,
however, that in the case of a transfer of more than a 49% indirect interest in
Successor Borrower, if interests in such transferor are traded on a nationally recognized
public exchange, Pledgee or rating agency approval of such transfer shall not be required in
connection with an acquisition by or merger with a transferee that also is traded on a
nationally recognized public exchange; or




     (vi) Any party to the Defeasance Documents other than Pledgee shall default in the
performance of any of the other obligations to Pledgee under the Defeasance Documents and
such default shall continue unremedied for a period of thirty (30) days after notice thereof
and, if this shall be a result of conduct of a party other than Successor Borrower, such
default results, or is likely, in Pledgee’s reasonable determination to result, in a default
under Section 9(a)(i); or




     (vii) Successor Borrower shall admit in writing its inability to, or be generally
unable to, pay its debts as such debts become due; or




     (viii) Successor Borrower shall make a general assignment for the benefit of its
creditors; or




     (ix) Successor Borrower shall be terminated, dissolved or liquidated (as a matter of
law or otherwise); or




     (x) Successor Borrower shall at any time cease to be a Single Purpose Entity; or



 









 






     (xi) A proceeding or case shall be commenced, with or without the application or
consent of Pledgor or Successor Borrower as debtor, seeking (i) such debtor’s liquidation,
reorganization, dissolution or winding-up, or the composition or readjustment of its debts,
(ii) the appointment of a trustee, receiver, custodian, liquidator or the like of such
debtor for all or any part of its assets, (iii) relief in respect of such debtor under the
United States Bankruptcy Code or (iv) similar relief in respect of such debtor under any law
relating to bankruptcy, insolvency, reorganization, winding-up, or composition or adjustment
of debts, and in any such proceeding in which Pledgor is the debtor any claim shall
be asserted that all or any portion of the Pledged Collateral is an asset of the debtor’s
estate, or any aspect of the transaction effected pursuant to the Defeasance Documents, or
any exercise by Pledgee of its rights or remedies thereunder, is challenged, voided,
rescinded or set aside, or is subject to any stay or injunction; or




     (xii) Successor Borrower shall take any action that (a) causes any REMIC formed
pursuant to the Pooling and Servicing Agreement to lose its status as a REMIC or (b)
subjects any such REMIC to any tax under Chapter I, Subchapter M of the IRC.



     (b) If an Event of Default shall have occurred and be continuing, then and in every such case,
Pledgee may, at its sole option, take any one or more or all of the following actions:




     (i) instruct the Obligor or Obligors on the Securities or any agreement, instrument or
other obligation constituting Pledged Collateral to make any payment required by the terms
of such instrument, agreement or obligation directly to or as directed by Pledgee;




     (ii) cause all book entries in the records of Intermediary with respect to the
Securities to be changed or modified to show Pledgee or a designee of Pledgee as the record
owner of the Securities;




     (iii) exercise all the rights and remedies of a secured party under the Code with
respect to the Pledged Collateral;




     (iv) seek specific performance of, or enjoin actions in violation of, any party’s
obligations to Pledgee under the Defeasance Documents; and




     (v) exercise all other available rights, privileges and remedies, at law or in equity,
with respect to the Pledged Collateral, and may exercise such rights and remedies either in
the name of Pledgee or in the name of Pledgor for the use and benefit of Pledgee to the
fullest extent permitted by applicable law.



     (c) The proceeds of the exercise by Pledgee of any remedy hereunder shall be paid to Pledgee
and applied, in such order of priority and amounts as Pledgee in its discretion shall deem proper,
to the payment of all costs and expenses of any suit and of all proper compensation, expenses,
liabilities and advances, including expenses and attorneys’ fees, owed to, incurred by or made by
Pledgee and all taxes, assessments or liens superior to the lien hereof; to the payment of all
amounts due and owing in respect of the Secured Obligations; to the payment of the



 









 







expenses of the Pledgee or Servicer or any other party to the Pooling and Servicing Agreement
with respect to its obligations thereunder; and the balance, if any, to Pledgor or to another
Person lawfully entitled thereto as determined by a court of competent jurisdiction.



     (d) The parties acknowledge and agree that the Securities are sold on a recognized market and,
accordingly, Pledgee need not furnish Pledgor with notice of its intention to sell the Securities.
If, however, applicable law requires such notice, then upon the occurrence and during the
continuance of an Event of Default, Pledgee may, upon ten (10) business days’ prior written notice
to Pledgor of the time and place, (except as provided to the contrary in the final sentence of this
paragraph), sell, assign or otherwise dispose of all or any part of the Pledged Collateral or any
part thereof that shall then be in, or shall thereafter come into, the possession, custody or
control of Pledgee or any of its agents, at such place or places as Pledgee deems appropriate, and
for cash or for credit or for future delivery, at public or private sale, without demand of
performance or notice of intention to effect any such disposition or of the time or place thereof
(except such notice as is required above or required by applicable statute, which cannot be
waived), and Pledgee or anyone else may be the purchaser, assignee or recipient of any or all of
the Pledged Collateral so disposed of at any public sale (or, to the extent permitted by law, at
any private sale) and thereafter hold the same absolutely, free from any claim or right of any
kind, including any right of equity of redemption (statutory or otherwise) of Pledgor, and Pledgor
hereby expressly waives and releases any such demand of performance, notice (other than the notice
set forth above and any non-waiveable statutory notice) and right of equity of redemption. Pledgee
may, without notice or publication, adjourn any public or private sale or cause the same to be
adjourned from time to time by announcement at the time and place fixed for the sale, and such sale
may be made at any time or place to which the sale may be so adjourned.



     The proceeds of each collection, sale or other disposition under this Section 9(d)
shall be applied in accordance with Section 9(c) hereof.



     (e) Private Sale. Pledgee shall incur no liability as a result of the sale of the
Pledged Collateral, or any part thereof, at any private sale pursuant to Section 9(d)
hereof conducted in a commercially reasonable manner and in accordance with the Code. Pledgor
hereby waives any claims against Pledgee arising by reason of the fact that the price at which the
Pledged Collateral may have been sold at any such private sale was less than the price that might
have been obtained at a public sale or was less than the aggregate amount of the Secured
Obligations, even if Pledgee accepts the first offer received and does not offer the Pledged
Collateral to more than one offeree.



Section 10. No Waiver; Cumulative Remedies.




     (a) No failure on the part of Pledgee to exercise, no course of dealing with respect to, and
no delay on the part of Pledgee in exercising, any right, power or remedy hereunder shall operate
as a waiver thereof. No single or partial exercise of any such right, power or remedy hereunder
shall preclude any other or further exercise thereof or the exercise of any other right, power or
remedy. The remedies herein provided are cumulative and are not exclusive of any remedies provided
by law.



 









 





     (b) In the event Pledgee shall have instituted any proceeding to enforce any right, power or
remedy under this Agreement, and such proceeding shall have been discontinued or abandoned for any
reason or shall have been determined adversely to Pledgee, then and in every such case, Pledgor,
Pledgee and each other party to any of the Defeasance Documents shall be restored to their
respective former positions and rights hereunder with respect to the Pledged Collateral, and all
rights, remedies and powers of Pledgee shall continue as if no such proceeding had been instituted.



Section 11. Pledgee May Perform; Pledgee Appointed Attorney-in Fact.




     If Pledgor fails to do any act or thing that it has covenanted to do hereunder or if any
warranty on the part of Pledgor contained herein shall be breached and such breach continues beyond
any applicable grace period, Pledgee or Servicer may (but shall not be obligated to), upon prior
written notice to Pledgor specifying the action to be taken, do the same or cause it to be done or
remedy any such breach, and may expend funds for such purpose. Any and all amounts so expended by
Pledgee or Servicer (including, but not limited to, reasonable legal expenses and disbursements)
shall be paid by Pledgor promptly upon demand therefor, with interest at the default rate specified
in the Note, during the period from the date on which such payment is made to and including the
date of repayment. Pledgor hereby authorizes Pledgee and Servicer and appoints Pledgee and
Servicer as its attorneys-in-fact, with full authority in the place and stead of Pledgor and in the
name of Pledgor, or otherwise, from time to time in Pledgee’s or Servicer’s reasonable discretion
to take any action and to execute any instrument which is consistent and in accordance with the
terms of this Agreement and the other Defeasance Documents and which Pledgee or Servicer may deem
reasonably necessary or advisable to accomplish the purposes of this Agreement and the other
Defeasance Documents. The foregoing grant of authority is a power of attorney coupled with an
interest and such appointment shall be irrevocable for the term of this Agreement. Pledgor hereby
ratifies all actions that such attorney shall lawfully take or cause to be taken in accordance with
this Section 11.



Section 12. Modification in Writing.




     This Agreement, and any provisions hereof, may not be modified, amended, waived, extended,
changed, discharged or terminated orally or by any act or failure to act on the part of Pledgor or
Pledgee, but only by an agreement in writing and signed by Pledgor, Pledgee, and, with respect to
modification to Sections 7, 8, 9, 16, 22 and 25, the Intermediary. Any amendment, modification or
supplement of or to any provision of this Agreement, any waiver of any provision of this Agreement,
and any consent to any departure by Pledgor from the terms of any provision of this Agreement shall
be effective only in the specific instance and for the specific purpose for which made or given.
Except where notice is specifically required by this Agreement or the other Defeasance Documents,
no notice to or demand on Pledgor in any case shall entitle Pledgor to any other or further notice
or demand in similar or other circumstances.



Section 13. Termination; Release.




     When all of the Secured Obligations have been satisfied, performed in full, and released, this
Agreement shall terminate. Upon termination of this Agreement or any release of Pledged



 









 







Collateral in accordance with the provisions of the Defeasance Documents, Pledgee shall upon
the request and at the sole cost and expense of Pledgor forthwith assign, transfer and deliver, and
shall direct Intermediary, to assign, transfer and deliver, to Pledgor, or if applicable, Successor
Borrower, against receipt and without express or implied recourse to or warranty by Pledgee (i)
such of the Pledged Collateral to be released as may be in possession of Pledgee or Intermediary
and as shall not have been sold or otherwise applied pursuant to the terms hereof, and (ii) proper
instruments (including Code termination statements) acknowledging the termination of this Agreement
or the release of such Pledged Collateral, as the case may be.



Section 14. Notices.




     All notices or other communications hereunder by any party to the other party shall be in
writing and shall be delivered by first class certified mail, postage prepaid, return receipt
requested or by nationally-recognized commercial overnight courier. Such notices or communications
shall be deemed to be received by the addressee on the third (3rd) day following the day
such notice is deposited with the United States postal service first class certified mail, postage
prepaid, return receipt requested, or on the first (1st) day after deposit with such
overnight courier, in either case addressed to the address set forth below for the party to whom
such notice is to be given, or to such other address as Pledgor, Pledgee or Intermediary, as the
case may be, shall in like manner designate in writing.



	 	 	 	 	 
	 

	 	Pledgor:
	 	Casa Munras Hotel Partners, L.P.
	 

	 	 	 	4661 Arriba Drive
	 

	 	 	 	Tarzana, CA 91356
	 

	 	 	 	Attn: John F. Rothman
	 
	 	 	 	 
	 

	 	Intermediary:
	 	Wells Fargo Bank, N.A.
	 

	 	 	 	100 West Washington Street, 22nd Floor
	 

	 	 	 	MAC S4101-22E
	 

	 	 	 	Phoenix, Arizona 85003
	 

	 	 	 	Attention: Eunice Ortega
	 
	 	 	 	 
	 

	 	Pledgee:
	 	% GMAC Commercial Mortgage Corporation
	 

	 	 	 	200 Witmer Road
	 

	 	 	 	Horsham, Pennsylvania 19044
	 

	 	 	 	Attention: CSFB Series 1998-PS2 Servicing






Section 15. Continuing Security Interest; Assignment.




     This Agreement shall create a continuing security interest in the Pledged Collateral and shall
(i) be binding upon each party hereto and each of its successors and assigns, and (ii) inure to the
benefit of Pledgee and its successors and assigns. Without limiting the generality of the
foregoing clause (ii), Pledgee may assign or otherwise transfer any of the Secured Obligations to
any other Person, and such other Person shall thereupon become vested with all the benefits in
respect thereof granted to Pledgee, herein or otherwise. Pledgor shall not, without the written
consent of Pledgee and, if necessary, each rating agency that has issued a rating of the



 









 




Certificates, assign its rights under this Agreement; provided, however, that
Pledgor may assign certain of its rights and obligations under this Agreement to Successor
Borrower, pursuant to that certain Assignment and Assumption Agreement of even date herewith.




Section 16. Governing Law; Venue.




     THE STATE SHALL BE THE “SECURITIES INTERMEDIARY’S JURISDICTION” AS DEFINED IN THE FEDERAL
BOOK-ENTRY REGULATIONS AND THE CODE.



     THIS AGREEMENT, THE CREATION, ATTACHMENT, PERFECTION, EFFECT OF PERFECTION OR NON-PERFECTION
AND PRIORITY OF THE RIGHTS AND INTERESTS OF PLEDGEE IN THE PLEDGED COLLATERAL, AND ALL OTHER RIGHTS
AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE, INCLUDING THE CODE AND INCLUDING NEW YORK
GENERAL OBLIGATIONS LAW SECTIONS 5-1401 AND 5-1402 BUT OTHERWISE WITHOUT REGARD TO LAWS OF THE
STATE CONCERNING CONFLICTS OF LAWS OR CHOICE OF FORUM.



     PLEDGOR, PLEDGEE AND INTERMEDIARY HEREBY IRREVOCABLY SUBMIT TO PERSONAL JURISDICTION IN THE
STATE AND TO THE NON EXCLUSIVE JURISDICTION OF ANY NEW YORK STATE OR FEDERAL COURT SITTING IN THE
CITY OF NEW YORK OVER ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
JURISDICTION AND VENUE OF ANY ACTION BROUGHT TO ENFORCE THIS AGREEMENT OR ANY OTHER DEFEASANCE
DOCUMENT OR ANY ACTION RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY OR THE RELATIONSHIPS
CREATED BY OR UNDER THE DEFEASANCE DOCUMENTS (“ACTION”) SHALL, AT THE ELECTION OF PLEDGEE, BE IN
(AND IF ANY ACTION IS ORIGINALLY BROUGHT IN ANOTHER VENUE, THE ACTION SHALL AT THE ELECTION OF
PLEDGEE BE TRANSFERRED TO) A STATE OR FEDERAL COURT OF APPROPRIATE JURISDICTION LOCATED IN THE
STATE. PLEDGOR, PLEDGEE AND INTERMEDIARY HEREBY CONSENT AND SUBMIT TO THE PERSONAL JURISDICTION OF
THE COURTS OF THE STATE AND OF FEDERAL COURTS LOCATED IN THE STATE IN CONNECTION WITH ANY ACTION
AND HEREBY WAIVE ANY AND ALL PERSONAL RIGHTS UNDER THE LAWS OF ANY OTHER STATE TO OBJECT TO
JURISDICTION WITHIN THE STATE FOR PURPOSES OF ANY ACTION. PLEDGOR, PLEDGEE AND INTERMEDIARY HEREBY
WAIVE AND AGREE NOT TO ASSERT, AS A DEFENSE TO ANY ACTION OR A MOTION TO TRANSFER VENUE OF ANY
ACTION, (I) ANY CLAIM THAT IT IS NOT SUBJECT TO SUCH JURISDICTION; (II) ANY CLAIM THAT ANY ACTION
MAY NOT BE BROUGHT AGAINST IT OR IS NOT MAINTAINABLE IN THOSE COURTS OR THAT THIS AGREEMENT MAY NOT
BE ENFORCED IN OR BY THOSE COURTS, OR THAT IT IS EXEMPT OR IMMUNE FROM EXECUTION; (III) THAT THE
ACTION IS BROUGHT IN AN INCONVENIENT FORUM; OR (IV) THAT THE VENUE FOR THE ACTION IS IN ANY WAY
IMPROPER.



 









 





Section 17. Severability of Provisions.




     Any provision of this Agreement which is prohibited or determined by a court of law to be
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining provisions hereof or
affecting the validity or enforceability of such provision in any other jurisdiction.



Section 18. Execution in Counterparts.




     This Agreement and any amendments, waivers, consents or supplements hereto may be executed in
any number of counterparts and by different parties hereto in separate counterparts, each of which
when so executed and delivered shall be deemed to be an original, but all such counterparts shall
constitute one and the same Agreement.



Section 19. Headings.




     The Section headings used in this Agreement are for convenience of reference only and shall
not affect the construction of this Agreement.



Section 20. Entire Agreement; Successors and Assigns.




     This Agreement, together with those other agreements referenced herein, constitutes the entire
agreement and understanding of the parties hereto with respect to the matters and transactions
contemplated hereby and supersedes all prior agreements and understandings whatsoever relating to
such matters and transactions. This Agreement shall be binding upon and, subject to Section
15 above, shall inure to the benefit of the successors and assigns of the parties hereto.



Section 21. Limitation on Duty of Pledgee in Respect of Collateral.




     Beyond the exercise of reasonable care in the custody thereof, Pledgee shall have no duty as
to any Pledged Collateral in its possession or control or in the possession or control of any agent
or bailee or any income thereon or as to the preservation of rights against prior parties or any
other rights pertaining thereto. Pledgee shall be deemed to have exercised reasonable care in the
custody and preservation of the Pledged Collateral in its possession if the Pledged Collateral is
accorded treatment substantially equal to that which it accords its own property, and shall not be
liable or responsible for any loss or damage to any of the Pledged Collateral, or for any
diminution in the value thereof, by reason of the act or omission of any agent or bailee selected
by Pledgee in good faith.



Section 22. Indemnification.




     Pledgor agrees to indemnify Pledgee, Intermediary and Servicer and hold Pledgee, Intermediary
and Servicer harmless from and against any and all liabilities, losses, damages, costs and expenses
of any kind, including, without limitation, the reasonable fees and disbursements of counsel, which
may be incurred by Pledgee, Intermediary or Servicer in connection with its actions hereunder or in
connection with any investigative, administrative or



 









 







judicial proceedings (whether or not Pledgee, Intermediary or Servicer shall be designated a
party thereto) relating to or arising out of this Agreement, the Pledged Collateral or the other
Defeasance Documents (including, without limitation, any such proceeding by Pledgor against
Pledgee, Intermediary or Servicer or by Pledgee, Intermediary or Servicer against Pledgor if such
party seeking indemnification is the prevailing party in such proceeding); provided that
none of Pledgee, Intermediary or Servicer shall have the right to be indemnified hereunder for its
own gross negligence (and with respect to Intermediary only, its own negligence) or willful
misconduct as determined by a court of competent jurisdiction.



Section 23. Authority.




     Any Person executing this Agreement in a fiduciary or other representative capacity represents
that it has full power and authority to do so and that any applicable or required court,
partnership, corporate or other authority has been duly and properly given and continues as of the
date hereof.


Section 24. Intentionally Omitted.



Section 25. Waiver of Trial by Jury.




     PLEDGOR, PLEDGEE AND INTERMEDIARY EACH HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE
TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH
RIGHT SHALL NOW OR HEREAFTER MAY EXIST WITH REGARD TO THIS AGREEMENT OR ANY DOCUMENT RELATED
THERETO, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH. THIS WAIVER
OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY PLEDGOR, PLEDGEE AND INTERMEDIARY,
AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH A RIGHT TO TRIAL
BY JURY WOULD OTHERWISE ACCRUE. PLEDGOR, PLEDGEE AND INTERMEDIARY EACH IS HEREBY AUTHORIZED TO
FILE A COPY OF THIS SECTION IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY EACH OTHER.



(Signatures On Following Page)




 









 





     IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be executed and
delivered by its duly authorized officer as of the date first above written.



	 	 	 	 	 	 	 	 	 
	 	 	Pledgor:	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	CASA MUNRAS HOTEL PARTNERS, L.P.,

a California limited partnership
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	Casa Munras GP, LLC, a California limited

liability company, its general partner
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ JOHN F. ROTHMAN	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	John F. Rothman	 	 
	 

	 	 	 	 	 	Managing Member	 	 






(Signatures Continued On Following Page)




 









 








	 	 	 	 	 	 	 	 	 
	 

	 	Pledgee:	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	U.S. BANK NATIONAL ASSOCIATION, successor-in-interest to State Street Bank and
Trust Company, as Trustee under the Pooling and Servicing Agreement, dated as
of October 1, 1998, for the Registered Holders of Credit Suisse First Boston
Mortgage Securities Corp., Commercial Mortgage Pass-Through Certificates,
Series 1998-PS2
	 
	 	 	 	 	 	 	 	 
	 	 	By:	 	GMAC Commercial Mortgage Corporation,
successor-in-interest to AMRESCO
Services, L.P., as Servicer
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	By:
	 	/s/ JILLIAN M. BRITTIN	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Name: Jillian M. Brittin	 	 
	 

	 	 	 	 	 	Title: Vice President	 	 






(Signatures Continued On Following Page)




 









 







WELLS FARGO BANK, N.A., acting in its capacity as Securities Intermediary, hereby acknowledges its
agreement to be bound by the provisions set forth in Sections 7, 8, 9, 16, 22 and 25 of this
Agreement, as of the date first above written.




	 	 	 	 	 
	WELLS FARGO BANK, N.A.	 	 
	 
	 	 	 	 
	By:

	 	/s/ KENNETH HOFFMAN	 	 
	 

	 	 	 	 
	 

	 	Name: Kenneth Hoffman	 	 
	 

	 	Title: Assistant Vice President	 	 






 









 






EXHIBIT A




Securities




 









 





EXHIBIT B




     “Single Purpose Entity” means a business trust, corporation, limited partnership, or
limited liability company (for purposes of this definition, the “Entity”) which, at all
times since its formation and thereafter for so long as any of the Secured Obligations remain
outstanding and not discharged in full:




     (i) was and will be organized solely for the purpose of owning the Pledged Collateral
and owning pledged collateral related to other Defeasance Transactions and performing and
complying with the related Defeasance Documents, and has not and will not engage in any
business unrelated to such purposes;




     (ii) has not and will not have any assets other than the Pledged Collateral and pledged
collateral from other Defeasance Transactions;




     (iii) has not and will not transfer, convey, grant, assign or pledge or permit the
transfer, conveyance, granting, assignment or pledge of any of its assets or any interest
therein;




     (iv) has not and will not fail to correct any misunderstanding by a third party
regarding the separate identity of such Entity when such Entity is aware of such
misunderstanding;




     (v) has not permitted, cooperated with or sought involuntarily and will not permit,
cooperate with or seek involuntarily the occurrence of any (a) bankruptcy, insolvency or
reorganization petition or any relief under any laws relating to the relief from debts or
the protection of debtors generally; (b) the appointment of a receiver, liquidator,
assignee, trustee, sequestrator, custodian or any similar official; or (c) assignment for
the benefit of creditors with respect to any beneficiary, partner or member of the Entity;




     (vi) has maintained and will maintain its accounts, books and records separate from any
other person or entity;




     (vii) has maintained and will maintain its books, records, resolutions and agreements
as official records;




     (viii) has not commingled and will not commingle its funds or assets with those of any
other person or entity;




     (ix) has held and will hold its assets in its own name;




     (x) has conducted and will conduct its business in its name;



 









 






     (xi) has maintained and will maintain its financial statements, accounting records and
other entity documents separate from any other person or entity;




     (xii) has paid and will pay its own liabilities out of its own funds and assets;




     (xiii) has observed and will observe all trust, partnership, corporate or limited
liability company formalities, as applicable;




     (xiv) has maintained and will maintain an arms-length relationship with its affiliates;




     (xv) has and will have no obligations other than the obligations under the Defeasance
Documents and the defeasance documents for the other Defeasance Transactions;




     (xvi) has not and will not assume any contingent obligations;




     (xvii) has not acquired and will not acquire obligations or securities of its
beneficiaries, partners, members or shareholders (as the case may be);




     (xviii) has allocated and will allocate fairly and reasonably shared expenses with any
affiliates, including, shared office space, and uses separate stationery, invoices and
checks;




     (xix) has not and will not pledge its assets for the benefit of any other person or
entity other than to Pledgee pursuant to the Defeasance Documents and the defeasance
documents for the other Defeasance Transactions;




     (xx) has held and identified itself and will hold itself out and identify itself as a
separate and distinct entity under its own name and not as a division or part of any other
person or entity;




     (xxi) has not made and will not make loans to any other person or entity;




     (xxii) has not and will not identify its beneficiaries, partners, members or
shareholders (as the case may be), or any affiliates of any of them as a division or part of
it;




     (xxiii) has not entered and will not enter into or be a party to, any transaction other
than the transaction described in the Defeasance Documents and other Defeasance
Transactions;




     (xxiv) has paid and will pay the salaries of its own employees from its own funds,




     (xxv) has maintained and will maintain adequate capital in light of its contemplated
business operations,



 









 






     (xxvi) if such Entity is a limited liability company or limited partnership, then such
Entity shall continue (and not dissolve) for so long as a solvent member or partner, as
applicable, exists, and such Entity’s organizational documents shall so provide;




     (xxvii) has expressly incorporated these (or materially similar, as determined by
Pledgee) Single Purpose Entity provisions into its organizational documents together with a
provision requiring the prior written consent of the Pledgee to change, waive or amend any
of such provisions for so long as the Secured Obligations remain outstanding; and




     (xxviii) will conduct its business so that the assumptions made with respect to such
Entity in any “substantive non-consolidation” opinion letter delivered in connection with
the defeasance transaction will continue to be true and correct in all respects.



     In addition to the foregoing, for so long as any of the Secured Obligations remain outstanding
and not discharged in full, such Entity will have an independent trustee, director or manager, or a
trustee, general partner or manager that is a corporation that has among its directors an
independent director, and the organizational documents for such Entity will provide that, without
the unanimous consent of all trustees, managers, partners, or directors, including such independent
trustee, director or manager, no person shall have authority on behalf of such Entity to:




     (i) seek the dissolution or winding up, in whole or in part, of such Entity;




     (ii) merge into or consolidate with any person or entity or dissolve, terminate or
liquidate, in whole or in part, transfer or otherwise dispose of all or substantially all of
its assets or change its legal structure;




     (iii) file a voluntary petition or otherwise initiate proceedings to have such Entity
adjudicated bankrupt or insolvent, or consent to the institution of bankruptcy or insolvency
proceedings against such Entity, or file a petition seeking or consenting to reorganization
or relief of such Entity as debtor under any applicable federal or state law relating to
bankruptcy, insolvency, or other relief for debtors with respect to such Entity; or seek or
consent to the appointment of any trustee, receiver, conservator, assignee, sequestrator,
custodian, liquidator (or other similar official) of such Entity or of all or any
substantial part of the properties and assets of such Entity, or make any general assignment
for the benefit of creditors of such Entity, or admit in writing the inability of such
Entity to pay its debts generally as they become due or declare or effect a moratorium on
such Entity’s debts or take any action in furtherance of any such action; or




     (iv) amend, modify or alter such provisions of such Entity’s organizational documents.



     In addition to the foregoing, for so long as any of the Secured Obligations remains
outstanding and not discharged in full, the organizational documents for such Entity shall provide
that no trustee, manager, general partner or director of such entity shall have authority to



 









 







take any action in items (i) through (iv) above without the written consent of the holder of
the Defeasance Documents.



     For purposes of this definition, the term “independent” shall mean, with respect to any
individual director, trustee, managing member or general partner, not being at the time of
appointment as such director, trustee, managing member or general partner of any Entity, at any
time after such appointment, or at any time in the five (5) years preceding such appointment (a) a
direct or indirect legal or beneficial owner of such Entity or any of its affiliates, (b) a
creditor, supplier, employee, officer, manager or contractor of such Entity or any of its
affiliates, (c) a person who controls such Entity or any of its affiliates, or (d) a member of the
immediate family of a person described in (a), (b) or (c) above.