Defeasance Assignment,
Assumption And Release Agreement
THIS DEFEASANCE
ASSIGNMENT, ASSUMPTION AND RELEASE AGREEMENT, dated as of
November 18, 2005 (this “ Agreement ”) made by
and among CASA MUNRAS HOTEL PARTNERS, L.P. , a California
limited partnership (“ Pledgor ”),
NEWCSFBMSC 98-PS2 LLC , a Delaware limited liability company
(“ Successor
Borrower ”), 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 (“ Pledgee ”), GMAC
COMMERCIAL MORTGAGE CORPORATION , successor-in-interest to
AMRESCO Services, L.P., as Servicer (“ Servicer ”) under the
Pooling and Servicing Agreement, and, for the sole purpose of
acknowledging the transactions effected by this Agreement, WELLS
FARGO BANK, N.A., as Securities Intermediary and Custodian
(“ Intermediary
”).
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
(collectively, with the Note and the 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 defined in the Security Agreement) 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
”), and, pursuant to the Loan Documents, and as a condition
precedent to Pledgee’s obligation to release its lien of the
Mortgage on the Real
Property,
Pledgor has granted to Pledgee, pursuant to a certain Defeasance
Pledge and Security Agreement of even date herewith among Pledgor,
Pledgee and Intermediary (the “ Security Agreement ”),
a security interest in the Securities and the proceeds thereof to
secure the payment and performance in full when due of all amounts
payable under the Loan Documents.
H. In
connection with the Security Agreement, Pledgor, Pledgee,
Intermediary and Servicer have entered into a certain Defeasance
Account Agreement of even date herewith (the “
Account
Agreement ”), pursuant to which Intermediary has
established and will maintain an account to hold the
Pledgor’s interest in the Securities and other
collateral.
I. In
connection with the release of the Real Property from the lien of
the Mortgage pursuant to the Loan Documents, Pledgor is required or
permitted to transfer and assign all obligations, rights and duties
under and to the Note and the other Defeasance Documents (as
defined in the Security Agreement), together with its interest in
the Pledged Collateral (as defined in the Security Agreement), to a
successor entity established or designated in accordance with the
Loan Documents.
J. Successor
Borrower has been established or designated to be the successor
entity to assume Pledgor’s rights and obligations under the
Defeasance Documents, and the Servicer, acting on behalf of the
Pledgee, has approved Successor Borrower to be the successor entity
to assume the Pledgor’s rights and obligations under the
Defeasance Documents.
K. Pledgor
desires to (i) obtain the release of the Real Property from
the lien of the Mortgage, (ii) transfer its rights and
obligations under the Defeasance Documents to Successor Borrower
and (iii) obtain a release of its rights and obligations under
the Defeasance Documents and the other Loan Documents to the extent
provided herein, and Successor Borrower desires to assume
Pledgor’s rights and obligations under the Defeasance
Documents and acquire Pledgor’s interest in the Pledged
Collateral.
NOW, THEREFORE, in
consideration of the mutual covenants and promises of the parties
hereto and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties agree
as follows:
Each capitalized
term used and not defined herein shall have the meaning assigned to
such term in the Security Agreement.
Section 2. Assignment of Secured Obligations and
Securities .
Pledgor hereby
sells, transfers and assigns to Successor Borrower, effective as of
the date hereof, (a) the Secured Obligations including all
obligations, rights and duties in, to and under, and subject to the
terms of, the Defeasance Documents, and (b) all of
Pledgor’s right, title and interest in and to the Pledged
Collateral, subject to the terms of the Defeasance Documents and to
the rights of the Pledgee and the obligations of the Intermediary
pursuant to the Security Agreement and the Account
Agreement.
Section 3. Assumption of Loan Obligations
.
Successor
Borrower, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, hereby assumes, and
agrees to be bound by and to perform each of the Secured
Obligations and all other covenants, agreements, representations
and warranties of Pledgor under the Note, the Security Agreement,
the Account Agreement and the Modification, Waiver and Consent,
first arising or accruing on or after the date of the transfer of
the Pledged Collateral to Successor Borrower, provided
however , Successor Borrower shall not assume any obligations
(i) under Section 4 of the Security Agreement (with
respect to the Securities transferred to Successor Borrower on the
date hereof), (ii) under Section 6 of the Security
Agreement to the extent that such obligations are to have been
fully performed by Pledgor or parties other than Successor Borrower
prior to transfer of the Securities to Successor Borrower, (iii)
[Intentionally Omitted], (iv) that may arise as a result of
the Pledgor’s failure to effect the initial perfection of
Pledgee’s interest in the Pledged Collateral prior to the
transfer of the Pledged Collateral to Successor Borrower,
(v) that may arise as a result of any misrepresentation or
misstatement made by Pledgor in any of the Defeasance Documents or
otherwise made by Pledgor in connection with the defeasance
transaction contemplated under this Agreement or (vi) arising
under the Note or other Loan Documents (to the extent that such
Loan Documents may be incorporated in the Note), which relate to
the use or operation of the Real Property or which are otherwise
materially similar to or which conflict with any express covenants
or obligations assumed by the Successor Borrower under the other
Defeasance Documents; and further provided however that,
except as otherwise expressly provided herein, Successor Borrower
shall be liable to Pledgee only to the extent of the Pledged
Collateral, and Pledgee shall have no recourse against, and Pledgee
shall not enforce any monetary judgment against, assets of
Successor Borrower other than the Pledged Collateral, with respect
to the Secured Obligations, except that Successor Borrower shall be
required to advance funds to cover any shortfall if at any time the
funds available in the Pledged Collateral Account are insufficient
to pay amounts then due with respect to the Secured Obligations and
such shortfall is a result of (i) any action or failure to act
by Successor Borrower in violation of its obligations under the
Note, the Security Agreement or the Account Agreement or
(ii) the delivery of insufficient collateral by Pledgor that
causes the funds available in the Pledged Collateral Account to be
insufficient to pay scheduled debt service under the Note. Except
as specified herein, nothing herein is intended to limit or
restrict Pledgee’s rights or remedies with respect to the
Pledged Collateral. Notwithstanding the foregoing, Successor
Borrower shall be personally liable for all claims, demands,
liabilities, deficiencies, losses, damages, judgments, costs, and
expenses, including without limitation reasonable attorneys fees
and costs of collection incurred, suffered or paid by Pledgee as a
result of:
(i) any
representation, warranty or certification made by or on behalf of
Successor Borrower 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 having been false or
misleading in any material respect as of the time made or
furnished;
(ii) the Pledged
Collateral or any part thereof or interest therein becoming subject
to any security interest, pledge, covenant, lien, or other
encumbrance whether junior or senior to the interest of Pledgee as
a result of actions of Successor Borrower;
(iii) the Pledged
Collateral or any part thereof or interest therein being sold,
assigned, transferred, conveyed or otherwise disposed of, or
becoming the subject of any attempted sale, assignment, transfer or
conveyance, by Successor Borrower, subject to the setoff terms of
Section 4(e) of the Account Agreement following payment of the
Loan;
(iv) any of the
Events of Default described in subsections (iv) through
(xi) of Section 9(a) of the Security Agreement shall occur as
a result of actions of Successor Borrower or circumstances relating
to Successor Borrower;
(v) Successor
Borrower’s failure at any time to be a Single Purpose Entity
in good standing in the jurisdiction of its formation and primary
place of business; or
(vi) Successor
Borrower’s failure to immediately deposit into the Pledged
Collateral Account an amount sufficient to pay any shortfall as
required pursuant to this Section 3.
Successor
Borrower’s assumption of the obligations of Pledgor as set
forth above under the Defeasance Documents is limited to those
obligations arising on and after the date hereof, except that
Successor Borrower expressly assumes liability under the Note for
interest accruing on the Loan from the first day of the interest
accrual period in which the defeasance contemplated herein occurs,
which shall be paid from Pledged Collateral deposited by the
Pledgor into the Pledged Collateral Account in accordance with the
provisions of the Account Agreement. In addition to the
Pledgee’s rights under the Defeasance Documents, Successor
Borrower hereby grants to Pledgee and Servicer a power of attorney
to file, at Successor Borrower’s cost, any franchise or other
administrative filings which may be required to maintain Successor
Borrower’s good standing and legal existence in the event
Successor Borrower fails to do so and such failure continues for
thirty (30) days after written notice.
In addition to any
other remedies that the Pledgee may have under the Defeasance
Documents, in the event of the failure of the Successor Borrower to
maintain its status as a Single Purpose Entity in good standing,
the Successor Borrower’s failure to file all required tax
returns and pay all taxes that it owes or the Successor
Borrower’s failure to file all forms and documents required
to maintain its separate legal existence, in each case, which
failure shall continue for thirty (30) days after written
notice, Successor Borrower hereby agrees to the assumption of the
Loan by, and the transfer of the Pledged Collateral to, a Single
Purpose Entity designated by Pledgee and hereby appoints Pledgee
and Servicer as attorneys-in-fact with power of attorney to affect
such transfer and assumption.
Notwithstanding
anything to the contrary set forth in this Section 3 ,
Pledgee agrees that it shall have no recourse for any claims,
demands, liabilities, deficiencies, losses, damages, judgments,
costs and expenses, including, without limitation, legal fees and
expenses, under this Section 3 or otherwise under the
Defeasance Documents against any securities (other than the Pledged
Collateral) of the Successor Borrower that have been pledged to
Pledgee pursuant to any other Defeasance Transaction until the
defeased promissory note related to such securities has been repaid
in full in accordance with its terms.
Section 4. Acknowledgment of Pledgee
.
Subject to
satisfaction, or written waiver, of all conditions to defeasance
set forth in the Loan Documents, Pledgee hereby recognizes the
transfer of Pledgor’s rights in the Pledged Collateral and
rights and obligations under the Defeasance Documents to Successor
Borrower and the assumption in accordance with
Section 3 above of Pledgor’s rights in
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