Exhibit 99.8
Principal Primary Servicing Agreement
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PRIMARY SERVICING AGREEMENT
Dated as of November 1, 2007
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CAPMARK FINANCE INC.,
as Capmark Master Servicer,
PRINCIPAL GLOBAL INVESTORS, LLC,
as Primary Servicer,
TO BE ENTERED INTO IN CONNECTION WITH
THAT CERTAIN POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2007
among
XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor,
CAPMARK FINANCE INC.,
as Capmark Master Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Xxxxx Fargo Master Servicer,
NCB, FSB,
as NCB Master Servicer,
CENTERLINE SERVICING INC.,
as General Special Servicer,
NATIONAL CONSUMER COOPERATIVE BANK,
as Co-op Special Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Paying Agent, Certificate Registrar, and Authenticating Agent,
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee and Custodian
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-IQ16
TABLE OF CONTENTS
ARTICLE I. DEFINITIONS..........................................................
ARTICLE II. PRIMARY SERVICING...................................................
Section 2.1 Primary Servicing...............................................
Section 2.2 Standard of Care................................................
Section 2.3 Compensation and Other Payments to the Primary Servicer.........
Section 2.4 Primary Servicer Representations and Warranties.................
ARTICLE III. DOCUMENTS AND OTHER MATTERS........................................
Section 3.1 Segregation of Mortgage Loan Documents..........................
Section 3.2 Access to Documents; Provision of Certain Information...........
ARTICLE IV. CAPMARK MASTER SERVICER ASSISTANCE..................................
Section 4.1 Capmark Master Servicer Assistance..............................
Section 4.2 Specially Serviced Mortgage Loans...............................
ARTICLE V. ADDITIONAL PRIMARY SERVICER COVENANTS................................
Section 5.1 Notice of Litigation............................................
Section 5.2 No Personal Solicitation........................................
Section 5.3 Fidelity Bond and Errors and Omissions Insurance Policy.........
Section 5.4 Primary Servicers Financial Statements
and Related Information........................................
Section 5.5 No Advancing....................................................
Section 5.6 REMIC Compliance................................................
Section 5.7 Inspection Rights...............................................
Section 5.8 Authorized Officer..............................................
Section 5.9 Additional Reports..............................................
Section 5.10 Prepayment Interest Shortfalls and Excesses.....................
Section 5.11 Consents........................................................
Section 5.12 Quarterly Servicing Accounts Reconciliation Certification.......
Section 5.13 Exchange Act Reports; Annual Compliance Documents...............
ARTICLE VI. PRIMARY SERVICER DEFAULT; TERMINATION; POST-
TERMINATION OBLIGATIONS.......................................................
Section 6.1 Primary Servicer Default........................................
Section 6.2 Termination.....................................................
Section 6.3 Post-Termination Obligations....................................
Section 6.4 Additional Termination..........................................
ARTICLE VII. SUBCONTRACTORS.....................................................
ARTICLE VIII. PRIMARY SERVICER TO HOLD PROPERTY FOR THE CAPMARK MASTER SERVICER.
ARTICLE IX. INDEMNIFICATION.....................................................
Section 9.1 Primary Servicers Indemnity.....................................
Section 9.2 Capmark Master Servicers Indemnity..............................
ARTICLE X. MISCELLANEOUS........................................................
Section 10.1 Severability....................................................
Section 10.2 Rights Cumulative; Waivers......................................
Section 10.3 Headings........................................................
Section 10.4 Construction....................................................
Section 10.5 Assignment......................................................
Section 10.6 Prior Understandings............................................
Section 10.7 Integrated Agreement............................................
Section 10.8 Counterparts....................................................
Section 10.9 Governing Laws..................................................
Section 10.10 Notices.........................................................
Section 10.11 Amendment.......................................................
Section 10.12 Other...........................................................
Section 10.13 Benefits of Agreement...........................................
This PRIMARY SERVICING AGREEMENT, dated and effective as of November 1,
2007, (the "Agreement") by and between PRINCIPAL GLOBAL INVESTORS, LLC (in the
capacity of primary servicer, the "Primary Servicer") and CAPMARK FINANCE INC.,
(acting solely in its capacity as Capmark Master Servicer under the Pooling and
Servicing Agreement, the "Capmark Master Servicer").
WHEREAS, Xxxxxx Xxxxxxx Capital I Inc., as Depositor, Capmark Master
Servicer, as Capmark Master Servicer, Xxxxx Fargo Bank, National Association,
as Xxxxx Fargo Master Servicer, NCB, FSB, as NCB Master Servicer, Centerline
Servicing Inc., as General Special Servicer (together with its successors and
assigns in such capacity, the "General Special Servicer"), National Consumer
Cooperative Bank, as Co-op Special Servicer, Xxxxx Fargo Bank, National
Association, as Paying Agent, Certificate Registrar, and Authenticating Agent,
and LaSalle Bank National Association, as Trustee and Custodian (together with
its successors and assigns in such capacity, the "Trustee"), have entered into
a Pooling and Servicing Agreement, dated as of November 1, 2007, relating to
the Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16 (as
amended, from time to time, the "Pooling and Servicing Agreement"), a copy of
which is attached hereto as Exhibit A; and
WHEREAS, the Capmark Master Servicer desires that the Primary Servicer
act as Primary Servicer with respect to the Mortgage Loans listed on Schedule I
hereto and provide, on behalf of the Capmark Master Servicer, the necessary
servicing of such Mortgage Loans performed in a manner consistent with the
Servicing Standard and in a manner consistent with this Agreement and the
Pooling and Servicing Agreement from the Closing Date until this Agreement is
terminated in accordance herewith;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Primary Servicer and the Capmark Master Servicer hereby
agree as follows:
ARTICLE I.
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings
set forth below. Capitalized terms used and not defined herein shall have the
meanings ascribed to them in the Pooling and Servicing Agreement, provided,
however, that terms whose meanings are ascribed in the Pooling and Servicing
Agreement and by the provisions thereof pertain to one or more mortgage loans
that are the subject of the Pooling and Servicing Agreement shall be construed
for purposes of this Agreement to pertain to the related Mortgage Loan(s) that
are the subject of this Agreement.
"A/B Intercreditor Agreement": With respect to an A/B Mortgage Loan, the
related co-lender agreement, by and between the holder of the related Mortgage
Loan and the holder of the related B Note, setting forth the relative rights of
such holders, as the same may be further amended from time to time in
accordance with the terms thereof.
"A/B Mortgage Loan": Any A/B Mortgage Loan or any Mortgage Loan serviced
under this Agreement that is divided into a senior mortgage note and a
subordinated mortgage note, which senior mortgage note is included in the IQ16
Trust. There are no A/B Mortgage Loans relating to this Agreement.
"ABS Issuing Entity": Each trust or entity that has issued asset-backed
securities that directly or indirectly evidence interests in or are secured by
a pledge of one or more mortgage loans serviced hereunder (regardless of
whether such mortgage loan constitutes a "Mortgage Loan" under the other
provisions of this Agreement), it being understood that the IQ16 Trust
constitutes an ABS Issuing Entity.
"Aggregate Servicing Fee": The Primary Servicing Fee and the Excess
Servicing Fee.
"Agreement": This Primary Servicing Agreement, as modified, amended and
supplemented from time to time, including all exhibits, schedules and addenda
hereto.
"Annual Statement and Rent Roll Reporting": Copies of quarterly and
annual financial statements and rent rolls collected with respect to the
Mortgaged Properties securing the Mortgage Loans and A/B Mortgage Loans, to be
made available, within thirty (30) days following receipt thereof by the
Primary Servicer, to the Capmark Master Servicer (and, with respect to an A/B
Mortgage Loan, the holder of the B Note, if required by the applicable A/B
Intercreditor Agreement), the Operating Adviser, and, to any of the following
Persons upon written notification from Capmark Master Servicer of a request for
such information and the identity and address of the requesting Person
requesting: the Rating Agencies, the Special Servicer, or the Trustee.
"Applicable Depositor": The Depositor under the IQ16 Transaction or the
depositor with respect to an ABS Issuing Entity other than the IQ16 Trust.
"B Note": With respect to any A/B Mortgage Loan, the related subordinated
mortgage note not included in the IQ16 Trust, which is subordinated in right of
payment to the related A Note to the extent set forth in the related A/B
Intercreditor Agreement. There are no B Notes relating to this Agreement.
"Capmark Master Servicer Servicing Documents": A copy of the documents
contained in the Mortgage File for the Mortgage Loans and any A/B Mortgage
Loans.
"Category 1 Consent Aspect": A condition, term or provision of a Category
1 Request that requires, or specifies a standard of consent, or approval of the
applicable mortgagee under the Mortgage Loan Documents , but shall explicitly
exclude any such conditions, terms or provisions enumerated in (a) an escrow or
reserve agreement for disbursements made from an escrow or reserve account or
an extension of time to complete repairs, replacements or improvements in
accordance with the terms and conditions set forth in Exhibit B-2(c); (b) an
assignment and assumption request covered under Section A.1.(c)(ii) of Exhibit
B-2(c) of this Agreement; (c) an additional lien, monetary encumbrance or
mezzanine financing request covered under Section A.1.(c)(iii) of Exhibit
B-2(c) of this Agreement; or (d) a defeasance request covered under Section
A.1.(c)(i) of Exhibit B-2(c) of this Agreement.
"Category 1 Request": As defined in the Post Closing Matters Description
in Exhibit B-2(a).
"Category 2 Request": As defined in the Post Closing Matters Description
in Exhibit B-2(a).
"Category 3 Request": As defined in the Post Closing Matters Description
in Exhibit B-2(a).
"CMSA Comparative Financial Status Report": A report which is one element
of the supplemental reports of the CMSA Investor Reporting Package, the form of
which is set forth in the Pooling and Servicing Agreement.
"CMSA Delinquent Loan Status Report": A report which is one element of
the supplemental reports of the CMSA Investor Reporting Package, the form of
which is set forth in the Pooling and Servicing Agreement.
"CMSA Financial File": A report which is one element of the CMSA Investor
Reporting Package, the form of which is set forth in the Pooling and Servicing
Agreement.
"CMSA Historical Liquidation Report": A report which is one element of
the supplemental reports of the CMSA Investor Reporting Package, the form of
which is set forth in the Pooling and Servicing Agreement.
"CMSA Historical Loan Modification and Corrected Mortgage Loan Report": A
report which is one element of the supplemental reports of the CMSA Investor
Reporting Package, the form of which is set forth in the Pooling and Servicing
Agreement.
"CMSA Investor Reporting Package": The Commercial Mortgage Securities
Association Investor Reporting Package, the form of which is set forth in the
Pooling and Servicing Agreement.
"CMSA Loan Level Reserve/LOC Report": A report which is one element of
the supplemental reports of the CMSA Investor Reporting Package, the form of
which set forth in the Pooling and Servicing Agreement.
"CMSA Loan Periodic Update File": A report which is one element of the
CMSA Investor Reporting Package, the form of which is set forth in the Pooling
and Servicing Agreement.
"CMSA Loan Setup File": A report which is one element of the CMSA
Investor Reporting Package, the form of which is set forth in the Pooling and
Servicing Agreement.
"CMSA Operating Statement Analysis Report": A report which is one element
of the CMSA Investor Reporting Package, the form of which is set forth in the
Pooling and Servicing Agreement.
"CMSA Property File": A report which is one element of the CMSA Investor
Reporting Package, the form of which is set forth in the Pooling and Servicing
Agreement.
"CMSA Quarterly Financial File": A report which is one element of the
CMSA Investor Reporting Package, the form of which is set forth in the Pooling
and Servicing Agreement.
"CMSA REO Status Report": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package, the form of which
is set forth in the Pooling and Servicing Agreement.
"CMSA Servicer Watch List": A report which is one element of the
supplemental reports of the CMSA Investor Reporting Package, the form of which
is set forth in the Pooling and Servicing Agreement.
"Day One Report": With respect to each Mortgage Loan and A/B Mortgage
Loan, a statement in the form of Exhibit B-1(f) setting forth the scheduled
payments of interest and principal and the amount of any unanticipated
prepayments of which the Primary Servicer has received notice, indicating the
Mortgage Loan or A/B Mortgage Loan and on account of what type of payment such
amount is to be applied on behalf of the related Mortgagor.
"Deemed Category 1 Request": With respect to an A/B Mortgage Loan, a
Category 2 Request shall, for purposes of this Agreement, be deemed to be a
Category 1 Request and shall be processed, as such, by the Primary Servicer.
"Depositor": means Xxxxxx Xxxxxxx Capital I Inc., a Delaware
corporation, and its successors in interest.
"Distribution Date": With respect to the IQ16 Trust, as defined in the
Pooling and Servicing Agreement. With respect to any other ABS Issuing Entity
(as the context requires), the monthly date on which distributions are made on
the related certificates under the related pooling and servicing agreement.
"Escrow Status Report": A brief statement to be delivered to the Persons
designated in Section 5.1(g) of the Pooling and Servicing Agreement and with
respect to an A/B Mortgage Loan, the holder of the B Note, if required by the
applicable A/B Intercreditor Agreement, within twenty (20) days following the
first anniversary of the Closing Date, for each of the Mortgage Loans included
on Schedule VII of the Pooling and Servicing Agreement (and related B Notes),
about the status of the work or project based upon the most recent information
provided by the applicable Mortgagor.
"Excess Servicing Fee": For each calendar month, as to each Mortgage
Loan, the portion of the related Excess Servicing Fee Rate applicable to such
month (determined in the same manner as the applicable Mortgage Rate determined
for such Mortgage Loan for such month) multiplied by the Scheduled Principal
Balance of such Mortgage Loan immediately before the Due Date occurring in such
month, but prorated for the number of days during the calendar month for such
Mortgage Loan for which interest actually accrues on such Mortgage Loan and
only from collections on such Mortgage Loan.
"Excess Servicing Fee Rate": The rate of 0.0% per annum with respect to
each Mortgage Loan.
"IQ16 Trust": The trust established under the Pooling and Servicing
Agreement.
"Lease": A lease, proposed lease, or amendment, modification,
restatement, extension or termination of a lease, in each case of space and any
other ancillary and associated rights in a building or on the real estate
constituting all or a portion of a Mortgaged Property.
"Mandatory Prepayment Date Assumption": The assumption set forth in
Exhibit B (Prepayment Term) to the PCFII Servicing Rights Purchase Agreement to
the effect that, except as disclosed to the Capmark Master Servicer, no
Mortgage Loan under such agreement has terms under which it may be paid off, in
whole or in part, on a date other than a due date or maturity date (including
during open periods) without payment of a full month of interest.
"Materiality Determination": With respect to a Category 1 Request, the
determination by Primary Servicer, exercised in good faith using the Servicing
Standard set forth in the Pooling and Servicing Agreement, whether a Category 1
Consent Aspect is material and should be referred to the Special Servicer for
consent in accordance with this Agreement and the Pooling and Servicing
Agreement.
"Mortgage Loan": A Mortgage Note secured by a Mortgage, and all
amendments and modifications thereto, identified on the schedule attached to
this Agreement as Schedule I, as amended from time to time, and conveyed,
transferred, sold, assigned to or deposited with the Trustee pursuant to
Section 2.1 or Section 2.3 of the Pooling and Servicing Agreement; the term
Mortgage Loan shall also include any Defeasance Loan.
"Mortgage Loan Documents": The Mortgage, the Mortgage Note, together with
all other documents evidencing, securing or pertaining to each Mortgage Loan.
"Non-Mandatory Prepayment Date Mortgage Loan": As defined in Section
5.10(a) hereof.
"Officer's Certificate": In the case of the Primary Servicer, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Executive Vice President, Senior Vice
President, Vice President or Assistant Vice President or an employee designated
as a Servicing Officer pursuant to this Agreement.
"Payment and Collection Description": The description of the obligations
of the Primary Servicer with respect to collection and remittance of payments
on the Mortgage Loans and the A/B Mortgage Loans, as more particularly
described in Section 2.1(c) hereof.
"Payment and Mortgage Loan Status Reports": The reports to be submitted
by Primary Servicer to the Capmark Master Servicer with respect to reporting
about collection and remittance of payments, delinquencies, status of real
estate taxes, status of insurance and status of UCC financing statements for
the Mortgage Loans and with respect to an A/B Mortgage Loan, the holder of the
B Note, if required by the applicable A/B Intercreditor Agreement, as more
particularly described and in the forms attached hereto as Exhibit B-1.
"POA Notice": As defined in the Post-Closing Matters Description in
Exhibit B-2.
"PCFII Servicing Rights Purchase and Sale Agreement": The servicing
rights purchase and sale agreement dated November 29, 2007 between Principal
Commercial Funding II, LLC, as Seller, and Capmark Master Servicer, as
Purchaser.
"Post Closing Matters Description": The description of the relative
obligations of the Primary Servicer and Capmark Master Servicer with respect to
requests from Mortgagors on Mortgage Loans and A/B Mortgage Loans that have not
become Defaulted Mortgage Loans, a Specially Serviced Mortgage Loan or one on
which a Servicing Transfer Event has occurred, which obligations are more
particularly described and set forth on Exhibit B-2.
"Post Closing Request": As defined in the Post Closing Matters
Description in Exhibit B-2(a).
"Primary Servicer Collection Account": An account, which shall be an
Eligible Account, established by Primary Servicer for the purposes set forth in
this Agreement, the income and earnings on which shall inure entirely to the
benefit of Primary Servicer. The Primary Servicer Collection Account shall be
established in the name of "Principal Global Investors, LLC, as Primary
Servicer for Capmark Finance, Inc., as Capmark Master Servicer for LaSalle
Bank, National Association, as Trustee for the Certificateholders of Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-IQ16."
"Primary Servicer Default": As defined in Section 6.1 hereof.
"Primary Servicer Errors and Omissions Insurance Policy": As defined in
Section 5.3(a) hereof.
"Primary Servicer Fidelity Bond": As defined in Section 5.3(a) hereof.
"Primary Servicer Form 8-K Information Report": As defined in Section
5.13(c)(i) hereof.
"Primary Servicer Form 10-D Information Report": As defined in Section
5.13(c)(ii) hereof.
"Primary Servicer Form 10-K Information Report": As defined in Section
5.13(c)(iii) hereof.
"Primary Servicer Servicing Documents": (a) a copy of the documents
contained in the Mortgage File for the Mortgage Loans and A/B Mortgage Loans
and (b) all other servicing documents and records in possession of Primary
Servicer that relate to or are used for the servicing of the Mortgage Loans and
A/B Mortgage Loans and that are not required to be part of the applicable
Mortgage File.
"Primary Servicing Fee": For each calendar month, as to each Mortgage
Loan and each B Note, the portion of the Primary Servicing Fee Rate applicable
to such month (determined in the same manner as the applicable Mortgage Rate is
determined for such Mortgage Loan for such month) multiplied by the Scheduled
Principal Balance of such Mortgage Loan (or the Principal Balance in the case
of each B Note) immediately before the Due Date occurring in such month, but
prorated for the number of days during the calendar month for such Mortgage
Loan for which interest actually accrues on such Mortgage Loan and only from
collections on such Mortgage Loan.
"Primary Servicing Fee Rate": A rate of 0.01% per annum with respect to
each Mortgage Loan, except for Mill Pond Shoppes and 000 Xxxxxxxxxxxx Xxxxx,
each with a rate of 0.06% per annum.
"Primary Servicing Officer": Any officer or employee of the Primary
Servicer involved in, or responsible for, the administration and servicing of
the Mortgage Loans and A/B Mortgage Loans whose name and specimen signature
appear on a list of servicing officers or employees furnished to the Capmark
Master Servicer by the Primary Servicer and signed by an officer of the Primary
Servicer, as such list may from time to time be amended.
"Primary Servicing Termination Date": As defined in Section 6.2 hereof.
"Property Inspection Description": The description of the obligations of
the Primary Servicer with respect to inspection of the Mortgaged Properties for
each of the Mortgage Loans and the A/B Mortgage Loans as more particularly
described in Section 2.1(d) hereof and Exhibit B-3.
"Reconciliation Certification Date": As defined in Section 5.12 hereof.
"Regulations": The rules, regulations and policy statements of the
Commission as in effect from time to time.
"Requirements List": As defined in the Post Closing Matters Description
in Exhibit B-2.
"Services": Those activities to be provided by the Primary Servicer for
the Servicing of the Mortgage Loans and the A/B Mortgage Loans pursuant to the
provisions of this Agreement.
"Servicing": With respect to any Mortgage Loan and any A/B Mortgage Loan,
the right and obligation of the Primary Servicer to administer such Mortgage
Loan and any A/B Mortgage Loan in accordance with the provisions hereof.
"Servicing Documents": The Capmark Master Servicer Servicing Documents
and Primary Servicer Servicing Documents.
"Servicing Standard": With respect to the Primary Servicer, means the
standard by which the Primary Servicer shall service and administer the
Mortgage Loans and the A/B Mortgage Loans that it is obligated to service and
administer pursuant to this Agreement on behalf of the Capmark Master Servicer
and in the best interests of and for the benefit of the Certificateholders as a
collective whole and, with respect to each B Note, the holder(s) of each such B
Note (as determined by the Primary Servicer in its good faith and reasonable
judgment), in accordance with applicable law, the terms of this Agreement and
the terms of the respective Mortgage Loans and A/B Mortgage Loans and, to the
extent consistent with the foregoing, further as follows:
(a) with the same skill, care and diligence as is normal and usual in its
general mortgage servicing and REO property management activities on behalf of
third parties or on behalf of itself, whichever is higher, with respect to
mortgage loans and REO properties that are comparable to those for which it is
responsible hereunder; and
(b) with a view to the timely collection of all scheduled payments of
principal and interest under the Mortgage Loans and A/B Mortgage Loans;
but without regard to: (I) any other relationship that the Primary
Servicer, or any Affiliate thereof, may have with the related Mortgagor; (II)
the ownership of any Certificate or B Note by the Primary Servicer, or any
Affiliate thereof; (III) the Capmark Master Servicer's obligation to make
advances; and (IV) the right of the Primary Servicer (or any Affiliate thereof)
to receive reimbursement of costs, or the sufficiency of any compensation
payable to it, hereunder or with respect to any particular transaction;
provided, however, that in no event shall the foregoing standards be less than
the applicable provisions of the Servicing Standard set forth in the Pooling
and Servicing Agreement and with respect to an A/B Mortgage Loan, the servicing
standards set forth in the related A/B Intercreditor Agreement.
"Significant Leases": A Lease at a Mortgaged Property covering or
proposed to cover more than the greater of either (a) 30,000 net rentable
square feet or (b) thirty percent (30%) of the net rentable square footage of
the Mortgaged Property.
"Significant Obligor": A "significant obligor" within the meaning of Item
1101(k) of Regulation AB.
"SNDA": A Subordination, Non-Disturbance and Attornment Agreement with
respect to a Lease on a form customarily used by Primary Servicer with respect
to Mortgaged Properties of similar type and consistent with the Servicing
Standard.
"Special Servicer": Centerline Servicing, Inc. or any successor thereto
as special servicer under the Pooling and Servicing Agreement.
"Successor Primary Servicer": The Person selected by the Capmark Master
Servicer upon the termination of the Primary Servicer resulting from any
Primary Servicer Default, if any, who shall thereafter perform the Services
with respect to the Mortgage Loans and the A/B Mortgage Loans; provided, that
the Capmark Master Servicer shall perform all Services with respect to the
Mortgage Loans and the A/B Mortgage Loans until such Person, if any, is
selected.
"Task Description": The outline description of the obligations of the
Primary Servicer and those obligations of the Special Servicer and the Trustee
related to the duties of the Primary Servicer and Capmark Master Servicer with
respect to the Mortgage Loans and the A/B Mortgage Loans as set forth in
Exhibit B-4 attached to this Agreement.
ARTICLE II.
PRIMARY SERVICING
Section 2.1 Primary Servicing
From the Closing Date until the Primary Servicing Termination Date,
Capmark Master Servicer hereby authorizes and directs Primary Servicer to
Service each Mortgage Loan and each A/B Mortgage Loan as Primary Servicer on
behalf of and at the direction of the Capmark Master Servicer as provided in
this Agreement. The Services shall consist of the following:
(a) Primary Servicer shall perform all tasks and responsibilities
necessary to meet the requirements delegated to the Primary Servicer in the
Task Description, the Post Closing Matters Description, the Payment and
Collection Description and the Payment and Mortgage Loan Status Reports, in
each case in accordance with the terms of this Agreement and, with respect
to each B Note, the terms of the related A/B Intercreditor Agreement, and in
a manner not inconsistent with the Pooling and Servicing Agreement. Primary
Servicer shall also perform the obligations to which it has expressly agreed
under the Pooling and Servicing Agreement and the Capmark Master Servicer's
obligations set forth in Sections 2.1(c), 2.1(d), that portion of 5.1(g)
relating to the Escrow Status Report, 8.11(i), if applicable, and 8.14 of
the Pooling and Servicing Agreement relating to Annual Statement and Rent
Roll Reporting with respect to the Mortgage Loans and the A/B Mortgage Loans.
(b) Capmark Master Servicer and Primary Servicer agree and acknowledge
that the Task Description is a chart that enumerates a list of tasks and the
general allocation of responsibility of servicing obligations between the
Capmark Master Servicer and the Primary Servicer for such tasks, and the
Post Closing Matters Description sets forth a specific method for
classifying post closing requests of a Mortgagor and allocating
responsibility for handling such requests based upon such classification.
Capmark Master Servicer and Primary Servicer have made efforts to reconcile
the Task Description and Post Closing Matters Description.
(c) Without limiting the foregoing, Primary Servicer shall collect and
remit payments on the Mortgage Loans and the A/B Mortgage Loans in
accordance with the Payment and Collection Description. For the purposes of
this Agreement, the "Payment and Collection Description" shall encompass all
of the following responsibilities and obligations set forth in the following
subsections (i) through (viii) and subsection (xii):
(i) On or prior to the Closing Date, the Primary Servicer shall
establish a Primary Servicer Collection Account, and give the Capmark
Master Servicer prior written notice of the name and address of the
depository institution at which such Primary Servicer Collection Account
is maintained and the account number of the Primary Servicer Collection
Account. Primary Servicer may direct the investment of funds on deposit
in the Primary Servicer Collection Account subject to and in accordance
with the criteria and requirements set forth in the applicable A/B
Intercreditor Agreement, as they relate to a particular B Note and those
set forth in the Pooling and Servicing Agreement relating to the
Collection Account established thereunder (construed as if the Primary
Servicer Collection Account were such Collection Account), including
without limitation the obligation, if any, to deposit into such account
the amount of any investment losses to the extent required in the Pooling
and Servicing Agreement and, with respect to each B Note, the terms of
the related A/B Intercreditor Agreement.
(ii) The Primary Servicer shall make efforts consistent with the
Servicing Standard to collect all monthly payments of principal
(including without limitation Balloon Payments) and interest with respect
to the Mortgage Loans and the A/B Mortgage Loans (except for payments due
on or prior to the Cut-Off Date), as well as any required Principal
Prepayments, Prepayment Premiums, late charges, Insurance Proceeds,
Condemnation Proceeds and any and all other amounts due from the
Mortgagor or a third party with respect to the Mortgage Loans pursuant to
the Mortgage Loan Documents ; provided, however, that with respect to any
payments that are required under the terms of the applicable Mortgage
Loan Documents to be made directly to a Person other than the holder of
the related Mortgage Loan, the Primary Servicer shall use efforts
consistent with the Servicing Standard to cause such payments to be made.
(iii) The Primary Servicer shall deposit all such payments received
with respect to each A/B Mortgage Loan and each Mortgage Loan (less any
related Aggregate Servicing Fee and any other payments due to Primary
Servicer under this Agreement with respect to such Mortgage Loan) into
the Primary Servicer Collection Account on or before the next Business
Day after receiving each such payment. With respect to funds deposited
into the Primary Servicer Collection Account for each A/B Mortgage Loan,
on or before the end of the third (3rd) Business Day after the Primary
Servicer receives such funds the Primary Servicer shall determine, in
accordance with the provisions of the applicable A/B Intercreditor
Agreement, the amount (if any) of such funds required to be paid to the
holder of the related B Note (less any Primary Servicing Fee or other
fee, if any, agreed to be paid by the holder of such B Note to the
Primary Servicer pursuant to the applicable A/B Intercreditor Agreement
or other agreement between the Primary Servicer and such B Note holder,
together with any other payments related to such B Note, which are
payable to the Primary Servicer). Such amounts shall be paid to each
holder of a B Note, at the times and in the manner required pursuant to
the provisions of the applicable A/B Intercreditor Agreement.
(iv) Subject to the previous subsection, and after making the
determination of the amount required to be paid to the holder of the B
Note, the Primary Servicer shall remit to the Capmark Master Servicer
from the Primary Servicer Collection Account, by wire transfer of
immediately available funds, all funds in such account (other than income
and earnings on such account), and shall not withdraw funds therefrom for
any other purpose, except to withdraw amounts required to be paid to the
holder of the B Note and any other amounts deposited therein by error, as
follows: (1) in the case of any payments received and collected during a
Collection Period on or before the Determination Date for such Collection
Period, Primary Servicer shall remit such payments on such Determination
Date; and (2) in the case of any payments received and collected by
Primary Servicer after the Determination Date for such Collection Period,
Primary Servicer shall remit all such payments on the first Business Day
following receipt of the amount of any such payments; provided, however,
that notwithstanding any contrary provision of clause (1) or clause (2)
all of the following provisions shall apply:
(1) in the case of any payment received on a Determination
Date for a Collection Period, Primary Servicer shall (i) provide
Capmark Master Servicer with immediate notice of Primary Servicer's
receipt of such payment and (ii) shall use its reasonable best
efforts to remit such payment to Capmark Master Servicer on the
date of receipt and in any event shall remit such payment to
Capmark Master Servicer within one (1) Business Day following
receipt (and Primary Servicer shall in any event provide Capmark
Master Servicer with immediate notice of Primary Servicer becoming
aware that any Principal Prepayment is to be made on a
Determination Date);
(2) any Scheduled Payment due during a Collection Period but
received after the end of such Collection Period shall be remitted
by Primary Servicer within one (1) Business Day following Primary
Servicer's receipt of such Scheduled Payment;
(3) Primary Servicer shall use its reasonable best efforts to
remit to Capmark Master Servicer on the date of receipt of, and in
any event shall remit to Capmark Master Servicer within one (1)
Business Day following receipt of, any unscheduled payments or
Balloon Payments that would result in a Prepayment Interest
Shortfall; and
(4) any Scheduled Payment received and collected during a
Collection Period, but due on a Due Date occurring after the end of
such Collection Period, shall be remitted on the Determination Date
for the Collection Period in which such Due Date occurs.
(v) In the event any payments received by Primary Servicer becomes
"NSF" (i.e., there are insufficient funds) after the monies associated
with that payment have been remitted to the Capmark Master Servicer, the
Capmark Master Servicer will return such moneys to Primary Servicer by
wire transfer in immediately available funds within one (1) Business Day
of notice from the Primary Servicer. If the Primary Servicer fails to
remit to the Capmark Master Servicer when due the total pool remittance
required to be remitted under this Agreement (whether or not such failure
constitutes a Primary Servicer Default), then interest shall accrue on
the amount of the total pool remittance and the Primary Servicer shall
promptly pay such interest to the Capmark Master Servicer, at a per annum
rate equal to the Advance Rate from and including the date when such
remittance was required to be made to but excluding the day when such
remittance is actually made. If the Primary Servicer fails to remit a
single loan remittance more than five (5) days after the single loan
remittance was received by the Primary Servicer, then interest shall
accrue on the amount of such single loan remittance and the Primary
Servicer shall promptly pay such interest to the Capmark Master Servicer,
at a per annum rate equal to the Advance Rate from and including the date
when such remittance was required to be made to but excluding the date
when such remittance is actually made.
(vi) With respect to escrow or reserve payments as listed on the
Task Description, the Primary Servicer shall collect escrow or reserve
amounts with respect to the Mortgage Loans and A/B Mortgage Loans, and
shall deposit such funds in an escrow account, which shall be an Eligible
Account, and shall maintain, disburse and account for such funds as
provided in the Task Description, for real estate taxes, insurance and
reserves, and escrows for repairs, replacements, principal and interest
payments and lease payments and any other matters specified in any
agreement in which funds are held at the time, and in the manner and for
the purposes as otherwise required or delineated in the Mortgage Loan
Documents and with respect to the Capmark Master Servicer under the
Pooling and Servicing Agreement. The Primary Servicer may direct the
investment of such funds subject to and in accordance with the criteria
and requirements set forth in the Pooling and Servicing Agreement
relating to Escrow Accounts, including without limitation the obligation
to deposit into the Escrow Account the amount of any investment losses to
the extent required in the Pooling and Servicing Agreement. Primary
Servicer shall have the benefit and shall retain all interest and income
earned on the Escrow Accounts for the Mortgage Loans and A/B Mortgage
Loans that is not paid to Mortgagors.
(vii) Primary Servicer shall submit the following Payment and
Mortgage Loan Status Reports, in each case, in the form attached as
Exhibit B-1 and at the time specified in the succeeding sentences of this
sub-section (vii): (1) a remittance report for payments received on
Mortgage Loans and A/B Mortgage Loans; (2) a delinquency report; (3) a
real estate tax delinquency report which may be based upon information
provided by Primary Servicer's real estate tax service (if any) if
engaged in accordance with Article VII of this Agreement; (4) an
insurance monitoring report; (5) a UCC form monitoring report; and (6)
the Day One Report. Primary Servicer shall submit the Payment and
Mortgage Loan Status Report described by clause (1) above by electronic
mail on each day that payments or funds are remitted to the Capmark
Master Servicer pursuant to Section 2.1(c) of this Agreement. Primary
Servicer shall submit the Payment and Mortgage Loan Status Report
described by clause (2) above by electronic mail, monthly no later than
the tenth (10th) day of each month for the previous month. Primary
Servicer shall submit the Payment and Mortgage Loan Status Reports
described by clauses (3), (4) and (5) above by electronic mail, quarterly
no later than January 15, April 15, July 15 and October 15 for the
previous quarter. Primary Servicer shall submit the Payment and Mortgage
Loan Status Report described by clause (6) above by electronic mail,
monthly no later than the first (1st) day of each month in which the
applicable Distribution Date occurs for the then current Collection
Period. If the day on which any Payment and Mortgage Loan Status Report
is otherwise due as described above does not constitute a Business Day,
then such report shall be due on the immediately succeeding Business Day.
(viii) Capmark Master Servicer and Primary Servicer hereby allocate
responsibility for completing the CMSA Investor Reporting Package for the
Mortgage Loans and the A/B Mortgage Loans as follows:
(1) Capmark Master Servicer shall complete all fields and
aspects of the CMSA Loan Setup File that are available from the
Final Prospectus Supplement. Upon completing all of such fields,
Capmark Master Servicer shall forward the CMSA Loan Setup File for
the Mortgage Loans and the A/B Mortgage Loans to Primary Servicer
who shall complete the fields and aspects of the CMSA Loan Setup
File for the Mortgage Loans and the A/B Mortgage Loans that are not
available from the Final Prospectus Supplement and return to
Capmark Master Servicer the completed CMSA Loan Setup File for the
Mortgage Loans and the A/B Mortgage Loans within five (5) Business
Days of receiving such file from Capmark Master Servicer. Capmark
Master Servicer shall deliver a CMSA Loan Setup File to Primary
Servicer (a) for the Mortgage Loans and the A/B Mortgage Loans
only; (b) in electronic form; (c) using an Excel file; and (d) with
all fields in the same order as the CMSA Loan Setup File. Primary
Servicer and Capmark Master Servicer acknowledge that delivery of
the CMSA Loan Setup File is to commence with the report date in
January, 2008.
(2) Commencing in the applicable "Month of Initial Report"
set forth opposite each report described below, the Primary
Servicer shall complete such report at the frequency set forth
opposite such report below and deliver such report to the Capmark
Master Servicer at or before the time described opposite such
report below (and with respect to an A/B Mortgage Loan, deliver any
additional reports to the holder of the related B Note which may be
required to be delivered to the holder of such B Note, at such
times as may be required pursuant to the applicable A/B
Intercreditor Agreement):
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Description of Report Month of Initial Frequency of Time of Required
Report Report Delivery to the Capmark Master Servicer
---------------------------------------------------------------------------------------------------------------------
CMSA Property File January, 2008 Monthly One (1) Business Day following the
Determination Date
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With respect to each calendar year, beginning
CMSA Operating Statement in 2008 for year-end 2007, the earlier of (i)
Analysis Report, CMSA June 2008 thirty (30) days after receipt of the
Financial File and CMSA (for year ending Annually underlying operating statements from the
NOI Adjustment Worksheet 2007) Borrower or (ii) June 1.
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CMSA Loan Level January, 2008 Monthly One (1) Business Day following the
Reserve/LOC Report Determination Date
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CMSA Servicer Watch List January, 2008 Monthly One (1) Business Day following the
Determination Date
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CMSA Comparative Financial January, 2008 Monthly* One (1) Business Day following the
Status Report Determination Date
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Quarterly*, but
with respect to
CMSA Quarterly Operating April 2008 only the first
Statement Analysis Report (with respect to three (3) With respect to a calendar quarter, within ten
and CMSA Quarterly calendar quarter calendar (10) days prior to the due date provided in the
Financial File ending March 31, quarters in each Pooling and Servicing Agreement.
2008) year.
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* With respect to these reports, the Primary Servicer will only be required to
deliver these reports at the level of frequency at which the underlying
Mortgage Loan Documents required the Borrower to deliver the applicable
financial information to the lender, which will generally be annually.
(3) The Capmark Master Servicer shall have the responsibility
to complete and deliver the following reports in accordance with
the Pooling and Servicing Agreement: CMSA Loan Setup File, CMSA
Loan Periodic Update File; CMSA Delinquent Loan Status Report; CMSA
REO Status Report; CMSA Historical Loan Modification and Corrected
Mortgage Loan Report and CMSA Historical Liquidation Report.
(4) Notwithstanding the foregoing: (a) Primary Servicer shall
reasonably cooperate to provide to Capmark Master Servicer specific
information or data in Primary Servicer's possession and necessary
to complete a report for which Capmark Master Servicer is
responsible, upon the written request of Capmark Master Servicer;
and (b) the Capmark Master Servicer shall reasonably cooperate to
provide to the Primary Servicer specific information or data in the
Capmark Master Servicer's possession, as may be requested in
writing by the Primary Servicer, to enable the Primary Servicer to
prepare and deliver to each holder of a B Note any reports or
notices required to be delivered to each such holder of a B Note,
pursuant to the provisions of the applicable A/B Intercreditor
Agreement.
(5) Notwithstanding the definitions of various CMSA reports
in this Agreement that directly link such reports to a form
attached as part of Exhibit W and Exhibit X to the Pooling and
Servicing Agreement, Capmark Master Servicer shall be entitled to
amend the forms of such reports that Primary Servicer must deliver
under this Agreement, provided that (a) the Commercial Mortgage
Securities Association has amended the applicable reports and
published such amendments as its revised form on its website; (b)
Capmark Master Servicer gives Primary Servicer no less than one
hundred twenty (120) days notice of any required amendments or
revisions to a report prior to their becoming effective as the form
of report to deliver under this Agreement; and (c) any such
amendments or revisions (either singly or in the aggregate) shall
not impose undue additional burden or costs upon Primary Servicer
to collect, format, calculate or report information to Capmark
Master Servicer.
(6) All Operating Statement Analysis Reports, NOI Adjustment
Worksheets, financial statements, rent rolls, and budgets delivered
by the Primary Servicer to the Capmark Master Servicer pursuant
hereto shall be labeled according to the Centerline Naming
Convention for Electronic File Delivery.
(ix) Capmark Master Servicer and Primary Servicer have made efforts
to reconcile the Task Description, the Payment and Collection Description
and Payment and Mortgage Loan Status Reports. In the event of any
conflict between (1) the Task Description and (2) the Payment and
Collection Description and Payment and Mortgage Loan Status Reports, then
the Payment and Collection Description and Payment and Mortgage Loan
Status Reports shall govern.
(x) The Primary Servicer shall be responsible for the calculation
of any and all Prepayment Premiums payable under each Mortgage Loan and
each A/B Mortgage Loan.
(xi) Within thirty (30) days following the Closing Date, Primary
Servicer shall deliver to Capmark Master Servicer a report listing the
tax parcels coinciding with the Mortgaged Properties.
(xii) All amounts collected by the Primary Servicer during a
Collection Period with respect to the A/B Mortgage Loan, which are
payable to the holder of the applicable B Note pursuant to the provisions
of the applicable Intercreditor Agreement, shall be paid by the Primary
Servicer to such B Note holder no later than three (3) Business Days
after collection of such funds. In the event that the Primary Servicer
determines (in its sole discretion) that in order to confirm the amount
to be disbursed to a B Note holder pursuant to the provisions of the A/B
Intercreditor Agreement, the Primary Servicer requires information from
the Capmark Master Servicer, the Primary Servicer shall have the right,
within three (3) Business Days after collection of the funds at issue, to
deliver to the Capmark Master Servicer a written request for such
information. The Capmark Master Servicer shall provide the information
requested, to the extent that such information is in the possession of
the Capmark Master Servicer or involves a calculation to be made by the
Capmark Master Servicer on the basis of information in the possession of
the Capmark Master Servicer, no later than three (3) Business Days after
the Capmark Master Servicer receives the Primary Servicer's written
request, and the Primary Servicer shall make the disbursement at issue to
the B Note holder no later than three (3) Business Days after it receives
the information from the Capmark Master Servicer needed to confirm the
disbursement at issue. In the event that the Capmark Master Servicer
determines (in its sole discretion) that it is necessary or desirable to
direct the Primary Servicer as to how to allocate amounts collected for
an A/B Mortgage Loan between the holders of the related Mortgage Loan and
its related B Note, the Capmark Master Servicer shall have the right, no
later than the end of the second (2nd) Business Day after each of the A/B
Mortgage Loan's scheduled monthly payment dates, to deliver a written
direction notice to the Primary Servicer. The Primary Servicer shall
comply with the Capmark Master Servicer's directions, absent a
disagreement (which shall be promptly communicated in writing to the
Capmark Master Servicer) and addressed by the Capmark Master Servicer and
the Primary Servicer within the time frames set forth in this Section
2.1(c)(xii). If there is any disagreement between the Capmark Master
Servicer and the Primary Servicer with respect to the allocation of funds
on the A/B Mortgage Loan, then the Capmark Master Servicer and the
Primary Servicer shall consult with each other in good faith but the
determination of the Capmark Master Servicer shall control and no
consultation shall extend in duration beyond the date reasonably
necessary for allocations, remittances and reporting to be timely made to
the holders of the A Note and B Note. In the event that collection
responsibilities for an A/B Mortgage Loan are transferred from the
Primary Servicer to the Capmark Master Servicer or Special Servicer
pursuant to the applicable provisions of this Agreement or the Pooling
and Servicing Agreement, all amounts that are collected by the Capmark
Master Servicer or the Special Servicer, as applicable, during a
Collection Period with respect to such A/B Mortgage Loan and are payable
to the holder of the applicable B Note pursuant to the provisions of the
related A/B Intercreditor Agreement shall be remitted by the Capmark
Master Servicer to such B Note holder no later than three (3) Business
Days after the collection of such funds, notwithstanding any provision of
the applicable A/B Intercreditor Agreement that may provide the Servicer
with a longer period of time to remit such collected funds to the B Note
holder (except that if the related Mortgaged Property has become an REO
Property, then the funds on deposit in the related REO Account related to
such REO Property shall be remitted to the Capmark Master Servicer by the
Special Servicer as and to the extent otherwise provided in Section 9.14
(b) of the Pooling and Servicing Agreement and then, to the extent
remittable to the holder of the applicable B Note, shall be so remitted
on the next succeeding Master Servicer Remittance Date).
(d) Commencing in the year 2008, Primary Servicer shall inspect, or cause
to be inspected, each of the Mortgaged Properties for the Mortgage Loans and
the A/B Mortgage Loans in accordance with Section 8.17 of the Pooling and
Servicing Agreement and, promptly upon completion of such inspection, shall
deliver to Capmark Master Servicer and with respect to an A/B Mortgage Loan,
to the holder of the related B Note, if required by the applicable A/B
Intercreditor Agreement, a property inspection report in the form attached
as Exhibit B-3 (the "Property Inspection Description"). Each property
inspection report delivered by the Primary Servicer shall be imaged with the
Centerline Naming Convention for Electronic File Delivery.
Capmark Master Servicer and Primary Servicer have made efforts to
reconcile the Task Description and the Property Inspection Description. In the
event of any conflict between (1) the Task Description and (2) the Property
Inspection Description, then the Property Inspection Description shall govern.
(e) Primary Servicer shall promptly notify the Capmark Master Servicer of
any significant events affecting any one or more of the Mortgage Loans and
A/B Mortgage Loans, the related Mortgagors or the related Mortgaged
Properties which become known to Primary Servicer or of which the Primary
Servicer receives notice, such as a payment default, a bankruptcy, a
judicial lien or casualty or condemnation event, and the Primary Servicer
shall also promptly advise the Capmark Master Servicer of all material
collection and customer service issues and, promptly following any request
therefor by the Capmark Master Servicer, shall furnish to the Capmark Master
Servicer with copies of any correspondence or other documents in the
possession of the Primary Servicer related to any such matter. The Primary
Servicer shall use reasonable efforts to promptly notify the Capmark Master
Servicer as soon as the Primary Servicer (exercising good faith and
reasonable judgment in accordance with the Servicing Standard) becomes aware
that any Servicing Advance will be required (or may reasonably be expected
to be required) to be made with respect to any Mortgage Loan or any A/B
Mortgage Loan under the standards imposed on the Capmark Master Servicer by
the Pooling and Servicing Agreement.
(f) Within thirty (30) days following the Closing Date, Primary Servicer
shall deliver to Capmark Master Servicer for each of its Mortgage Loans and
A/B Mortgage Loans to be included in the Escrow Status Report, the deadline
or expiration date contained in the applicable escrow or reserve agreement
for completing the specific immediate engineering work, completion of
additional construction, environmental remediation or similar one-time
projects for which such Mortgage Loan or A/B Mortgage Loan is to appear in
the Escrow Status Report.
(g) In addition, the Primary Servicer shall deliver or cause to be
delivered to Capmark Master Servicer any and all information as may
reasonably be necessary for the Capmark Master Servicer to perform its
obligations under Section 8.3(i) of the Pooling and Servicing Agreement (to
the extent related to the Mortgage Loans and/or A/B Mortgage Loans);
provided, however, that in the event that the Primary Servicer has sent a
notice to a ground lessor as contemplated by such Section 8.3(i) of the
Pooling and Servicing Agreement, the delivery to the Capmark Master Servicer
of a copy of such notice shall satisfy the Primary Servicer's obligation
under this section with respect to such ground lease.
(h) Primary Servicer shall perform all other obligations of the Primary
Servicer as set forth herein.
Primary Servicer and the Capmark Master Servicer agree that, in
connection with the performance of its obligations hereunder, the Primary
Servicer shall be entitled to request from the Capmark Master Servicer, and the
Capmark Master Servicer agrees that it shall provide, express instructions for
the completion of any of the Services to be performed or completed by the
Primary Servicer, to the extent necessary to clarify any ambiguities in the
terms of this Agreement. The Capmark Master Servicer further agrees that the
Primary Servicer shall be entitled to rely upon any such written instructions.
The Primary Servicer and the Capmark Master Servicer, shall perform all of
their respective obligations as allocated and set forth in this Agreement, and
it is understood that the Primary Servicer shall have no obligations with
respect to the primary servicing of the Mortgage Loans and the A/B Mortgage
Loans, except as specifically set forth in this Agreement and in the Pooling
and Servicing Agreement.
Section 2.2 Standard of Care
The Primary Servicer shall perform all Services on behalf of the Capmark
Master Servicer in accordance with the terms of this Agreement and the
Servicing Standard and in a manner consistent with the applicable provisions of
the Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan,
the applicable provisions of the related A/B Intercreditor Agreement.
Section 2.3 Compensation and Other Payments to the Primary Servicer
As consideration for the Primary Servicer's performance of the Services
hereunder: (a), the Primary Servicer shall be entitled to deduct the Aggregate
Servicing Fee in accordance with Section 2.1(c)(iii) of this Agreement, with
respect to the related Collection Period for each Mortgage Loan for which a
payment was received by the Capmark Master Servicer or forwarded to the Capmark
Master Servicer by the Primary Servicer; and (b) with respect to each A/B
Mortgage Loan, the Primary Servicer shall be entitled to deduct any Primary
Servicing Fee or other fee payable to the Primary Servicer as may be agreed to
by the holder of the related B Note, from each payment received by the Primary
Servicer and which is allocable to such holder of the related B Note, all in
accordance with the provisions of Section 2.1 of this Agreement.
Notwithstanding the foregoing, Primary Servicer shall not be entitled to a
Primary Servicing Fee with respect to any Mortgage Loan (other than an A/B
Mortgage Loan) for which a Servicing Transfer Event has occurred (unless such
Mortgage Loan becomes a Rehabilitated Mortgage Loan) or with respect to which
the Primary Servicer has been terminated as Primary Servicer under this
Agreement and the Pooling and Servicing Agreement.
The Primary Servicer shall retain all rights to the Excess Servicing Fee
for all Mortgage Loans, even if (a) any Mortgage Loan or Mortgage Loans become
Specially Serviced Mortgage Loans; (b) Primary Servicer's servicing is
terminated with respect to particular Mortgage Loans or (c) Primary Servicer is
in default, is terminated or resigns under this Agreement. If Primary Servicer
is unable to deduct the Excess Servicing Fee in accordance with Section
2.1(c)(iii) because it no longer services a Mortgage Loan or Mortgage Loans or
for any other reason (other than transfer or assignment of the rights to the
Excess Servicing Fee), then Capmark Master Servicer (and any successor) shall
cause the Excess Servicing Fee to be paid on the Mortgage Loans to Primary
Servicer monthly in accordance with the terms of the Pooling and Servicing
Agreement.
The Primary Servicer shall have the benefit and shall retain all interest
and income earned on the Primary Servicer Collection Account for the Mortgage
Loans and the A/B Mortgage Loans. If Primary Servicer is terminated under this
Agreement, it shall be entitled to collect all such interest and income that
accrues through the date of termination. If a Mortgage Loan or an A/B Mortgage
Loan becomes and remains a Specially Serviced Mortgage Loan, Primary Servicer
shall be entitled to collect all such interest and income that accrues through
the date of the applicable Servicing Transfer Event. The right to retain such
interest and income shall resume if such Mortgage Loan or an A/B Mortgage Loan
becomes and remains a Rehabilitated Mortgage Loan.
The Primary Servicer shall also be entitled to retain the fees or
portions of fees set forth in the Post Closing Matters Description. Except as
specifically provided in this Agreement, the Primary Servicer shall not be
entitled to receive any default interest or late fees collected from the
Borrower, and the Primary Servicer shall promptly, upon collection of such
amounts, forward such interest and fees to the Capmark Master Servicer in
accordance with the Payment and Collection Description. Primary Servicer may
waive the right to collect a fee or portion of a fee to which it is entitled
under this Agreement but may not waive or otherwise affect the rights of other
parties to any other fees or portions of fees to which Primary Servicer is not
entitled.
The Primary Servicer shall be required to pay out of its own funds,
without reimbursement, all overhead and general and administrative expenses
incurred by it in connection with its servicing activities hereunder, including
costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
and Primary Servicer shall be required to pay all expenses that it incurs in
the administration of this Agreement (but not those incurred at the direction
or request of Capmark Master Servicer or a third party which direction or
request requires the performance of a task or obligation not contemplated of
Primary Servicer under this Agreement) and shall not be entitled to
reimbursement of such costs and expenses, except (1) as may be specifically
provided in this Agreement or (2) to the extent expenses are reimbursable by a
Mortgagor under the applicable Loan Documents and the Mortgagor makes such
reimbursement.
In no event shall the Primary Servicer be responsible for reimbursing or
paying any independent costs or expenses incurred by the Capmark Master
Servicer in connection with a request for a modification, waiver or amendment
of a Mortgage Loan unless the Capmark Master Servicer has first notified the
Primary Servicer of its intent to incur such cost or expense and the Primary
Servicer has agreed to pay (or cause to be paid) such cost or expense.
Section 2.4 Primary Servicer Representations and Warranties
The Primary Servicer hereby makes for the benefit of the Capmark Master
Servicer the same representations and warranties as are made by the Capmark
Master Servicer under Section 8.20 of the Pooling and Servicing Agreement;
provided, however, that (i) references therein to the Capmark Master Servicer
shall be deemed references to the Primary Servicer and references to the
Trustee shall be deemed references to the Capmark Master Servicer and (ii) in
lieu of the representation described in the first clause of Section 8.20(a)(i)
of the Pooling and Servicing Agreement, the Primary Servicer represents that
the Primary Servicer is duly organized, validly existing and in good standing
as a corporation under the laws of the jurisdiction of its organization.
Primary Servicer further represents that since origination of each Mortgage
Loan and A/B Mortgage Loan, Primary Servicer has serviced each of the Mortgage
Loans Capmark Master Servicer and A/B Mortgage Loans in accordance with its
terms.
ARTICLE III.
DOCUMENTS AND OTHER MATTERS
Section 3.1 Segregation of Mortgage Loan Documents
The Primary Servicer shall segregate the Primary Servicer Servicing
Documents related to the Mortgage Loans and the A/B Mortgage Loans from all
other assets of the Primary Servicer and, upon request, forward to the Capmark
Master Servicer copies of such documents or originals of such documents if in
the possession of Primary Servicer and not part of the Mortgage File forwarded
to the Trustee. The Primary Servicer acknowledges that any letter of credit
held by it shall be held in its capacity as agent of the IQ16 Trust, and if the
Primary Servicer sells its rights to service the applicable Mortgage Loan or
A/B Mortgage Loan, the Primary Servicer shall assign the applicable letter of
credit to the IQ16 Trust or at the direction of the Special Servicer to such
party as the Special Servicer may instruct, and the Primary Servicer shall
indemnify the IQ16 Trust for any loss caused by the ineffectiveness of such
assignment.
Section 3.2 Access to Documents; Provision of Certain Information
The Primary Servicer shall make available to the Capmark Master Servicer
or any Successor Primary Servicer, at a reasonable time, such information as
the Capmark Master Servicer or such Successor Primary Servicer shall reasonably
request in writing and shall make available to the Capmark Master Servicer or
any Successor Primary Servicer or Persons designated by the Capmark Master
Servicer or such Successor Primary Servicer such documents as the Capmark
Master Servicer shall reasonably request in writing. The Capmark Master
Servicer shall make available to the Primary Servicer, at a reasonable time,
such information as the Primary Servicer shall reasonably request in writing in
connection with the performance of the Services and, subject to the terms and
conditions of Section 8.15 of the Pooling and Servicing Agreement, shall make
available to the Primary Servicer or Persons designated by the Primary Servicer
such documents related to the Mortgage Loan and the A/B Mortgage Loans and the
Servicing of the Mortgage Loans and the A/B Mortgage Loans as the Primary
Servicer shall reasonably request in writing.
ARTICLE IV.
CAPMARK MASTER SERVICER ASSISTANCE
Section 4.1 Capmark Master Servicer Assistance
(a) The Capmark Master Servicer shall make reasonable efforts to do any
and all things reasonably requested by the Primary Servicer to enable the
Primary Servicer to render the Services, including, without limitation,
delivering to the Trustee any receipts or other documentation that the
Trustee may require to allow it to release any Mortgage Files or documents
contained therein or acquired in respect thereof requested by the Primary
Servicer. Notwithstanding any other provision of this Agreement to the
contrary and any other notwithstanding provisions in this Agreement
(including any contrary provision of Exhibit B-2), the Primary Servicer
shall do any and all things reasonably requested by the Capmark Master
Servicer to enable the Capmark Master Servicer to comply with its
obligations under the Pooling and Servicing Agreement. Before the Capmark
Master Servicer releases all or any portion of any Mortgage File or document
contained therein or acquired in respect thereof to the Primary Servicer,
the Capmark Master Servicer may require the Primary Servicer to execute a
receipt therefor or, in the event of a Mortgage Loan or an A/B Mortgage Loan
that has been repaid in full, a certificate with respect to the payment in
full of the related Mortgage Loan or A/B Mortgage Loan.
(b) If required in connection with the provision of the Services, the
Capmark Master Servicer shall furnish, or cause to be furnished, to the
Primary Servicer, upon request, any powers of attorney of the Capmark Master
Servicer or the Trustee, empowering the Primary Servicer to take such
actions as it determines to be reasonably necessary to comply with its
Servicing duties hereunder or to enable the Primary Servicer to service and
administer such Mortgage Loans and A/B Mortgage Loans and carry out its
duties hereunder, in each case in accordance with the Servicing Standard and
the terms of this Agreement. The Primary Servicer hereby agrees to indemnify
the Capmark Master Servicer and the Trustee from any loss, damage, expense
or claim relating to misuse or wrongful use of any such power of attorney.
Section 4.2 Specially Serviced Mortgage Loans
The Primary Servicer shall promptly notify the Capmark Master Servicer
and Special Servicer with respect to Specially Serviced Mortgage Loans of any
questions, complaints, legal notices, or other communications relating to the
foreclosure or default of such loans or bankruptcy proceedings of a Mortgagor
that are received by the Primary Servicer and with respect to such Mortgage
Loan or A/B Mortgage Loan such other matters as would, consistent with the
Servicing Standard, require notification to the owner or the servicer of the
Mortgage Loan or A/B Mortgage Loan. The Capmark Master Servicer shall notify
the Primary Servicer of any Specially Serviced Mortgage Loan becoming a
Rehabilitated Mortgage Loan promptly following the Capmark Master Servicer's
receipt of notice to such effect from the Special Servicer and shall provide
Primary Servicer with all relevant documents received during the time that the
relevant Mortgage Loan or A/B Mortgage Loan was a Specially Serviced Mortgage
Loan following the Capmark Master Servicer's receipt of such documents from the
Special Servicer. Upon the request of Primary Servicer, Capmark Master Servicer
shall request from the Special Servicer all such relevant documents with
respect to a Rehabilitated Mortgage Loan. Notwithstanding anything contained
herein to the contrary, the Primary Servicer shall not without the Trustee's
written consent: (i) initiate any action, suit or proceeding solely under the
Trustee's name without indicating the Primary Servicer's representative
capacity, or (ii) knowingly take any action that causes the Trustee to be
registered to do business in any state, provided, however, that the preceding
clause (i) shall not apply to the initiation of actions relating to a Mortgage
Loan that the Primary Servicer is servicing pursuant to its duties herein (in
which case the Primary Servicer shall give three (3) Business Days prior notice
to the Trustee of the initiation of such action).
ARTICLE V.
ADDITIONAL PRIMARY SERVICER COVENANTS
Section 5.1 Notice of Litigation
With respect to any Mortgage Loan or A/B Mortgage Loan as to which
litigation is instituted, the Primary Servicer, if aware of such litigation,
shall notify the Capmark Master Servicer immediately as to the status of the
litigation related to such Mortgage Loan or A/B Mortgage Loan and shall, when
reasonably required or requested by the Capmark Master Servicer, provide to the
Capmark Master Servicer copies of all pertinent information in the Primary
Servicer's possession related to such litigation, including, without
limitation, copies of related Servicing Documents.
Section 5.2 No Personal Solicitation
The Primary Servicer hereby agrees that it will not knowingly take any
action or cause any action to be taken by any of its agents or Affiliates, or
independent contractors or working on its behalf, to personally, by telephone
or mail, solicit the prepayment of any Mortgage Loan or A/B Mortgage Loan by
any Mortgagor. Primary Servicer agrees not to forward to any Mortgagor or other
obligors under a Mortgage Loan or A/B Mortgage Loan, any correspondence or
documents between Capmark Master Servicer and Primary Servicer regarding a Post
Closing Request (except the Requirements List (as defined in Exhibit B-2(c))
without the consent of the Capmark Master Servicer or Special Servicer (acting
in its sole discretion), unless required by law.
Section 5.3 Fidelity Bond and Errors and Omissions Insurance Policy
(a) The Primary Servicer, at its own expense, shall maintain in effect a
fidelity bond (the "Primary Servicer Fidelity Bond") and an errors and
omissions policy (the "Primary Servicer Errors and Omissions Insurance
Policy") with a Qualified Insurer, naming the Capmark Master Servicer as loss
payee, affording coverage for all directors, officers and employees. The
Primary Servicer Errors and Omissions Insurance Policy and Primary Servicer
Fidelity Bond shall be in such form and amount that would satisfy the same
requirements for such policies as the Capmark Master Servicer must satisfy
as set forth in Section 8.2 of the Pooling and Servicing Agreement.
Notwithstanding any other provisions of this Agreement, the Primary Servicer
shall be permitted to self-insure with respect to its obligations to
maintain the Primary Servicer Fidelity Bond and a Primary Servicer Errors
and Omissions Policy to the extent the Capmark Master Servicer is permitted
under Section 8.2 of the Pooling and Servicing Agreement (construed as if
the references therein to the Capmark Master Servicer were instead
references to the Primary Servicer). The Primary Servicer shall furnish to
the Capmark Master Servicer, not later than thirty (30) days after the
Closing Date, evidence of the Primary Servicer's compliance with this
Section 5.3(a).
(b) The Primary Servicer shall promptly report in writing to the Capmark
Master Servicer any material adverse changes that may occur in the Primary
Servicer Fidelity Bond or the Primary Servicer Errors and Omissions
Insurance Policy and shall furnish to the Capmark Master Servicer upon
written request copies of all binders and policies or certificates
evidencing that such bond and insurance policy are in full force and effect.
The Primary Servicer shall promptly report in writing to the Capmark Master
Servicer all cases of embezzlement or fraud or irregularities of operation
relating to the servicing of the Mortgage Loans and of the A/B Mortgage Loan
by the Primary Servicer and its employees, officers, directors, agents and
representatives if such events involve funds relating to the Mortgage Loans
and the A/B Mortgage Loan. The total of such losses, regardless of whether
claims are filed with the applicable insurer or surety, shall be disclosed
in such reports together with the amount of such losses covered by
insurance. If a bond or insurance claim report is filed with any of the
Primary Servicer's bonding companies or insurers relating to the Mortgage
Loans or the A/B Mortgage Loans or the servicing thereof, a copy of such
report (which report may omit any references to individuals suspected of
such embezzlement, fraud or irregularities of operation) shall be promptly
furnished to the Capmark Master Servicer.
Section 5.4 Primary Servicer's Financial Statements and Related Information
The Primary Servicer shall deliver to the Capmark Master Servicer, within
one hundred twenty (120) days after the end of its fiscal year, a copy of its
annual financial statements, such financial statements to be audited if then
customarily audited, and with respect to any unaudited financial statements
provided by the Primary Servicer, which financial statements shall be certified
by the Primary Servicer's chief financial officer to be true, correct and
complete. The Primary Servicer shall notify the Capmark Master Servicer, as of
the Closing Date, of the Primary Servicer's fiscal year and shall notify the
Capmark Master Servicer promptly after any change thereof.
Section 5.5 No Advancing
Under no circumstance shall the Primary Servicer make or have an
obligation to make any Advances.
Section 5.6 REMIC Compliance
The Primary Servicer shall comply with all of the obligations otherwise
imposed on the Capmark Master Servicer under Article XII of the Pooling and
Servicing Agreement insofar as such obligations relate to the Mortgage Loans
and/or the A/B Mortgage Loans.
Section 5.7 Inspection Rights
The Primary Servicer shall afford the Capmark Master Servicer and the
Trustee, upon reasonable notice and during normal business hours, reasonable
access to all records, information, books and documentation regarding the
applicable Mortgage Loans and the A/B Mortgage Loans, and all accounts,
insurance policies and other relevant matters relating to this Agreement, and
access to Primary Servicing Officers of the Primary Servicer responsible for
its obligations hereunder. Without limiting the preceding sentence, Capmark
Master Servicer may visit the offices of Primary Servicer no more than once
annually for the purpose of reviewing Primary Servicer's compliance with this
Agreement upon reasonable notice and during normal business hours, and Primary
Servicer shall reasonably cooperate with Capmark Master Servicer to provide
Capmark Master Servicer with the information that Capmark Master Servicer
reasonably requests to permit such review. Primary Servicer shall reimburse
Capmark Master Servicer for its reasonable and actual travel expenses incurred
in connection with such review in an amount not to exceed $5,000 annually in
total for this Agreement and all similar commercial mortgage loan servicing
agreements in place between Primary Servicer and Capmark Master Servicer.
Primary Servicer shall have no obligation to provide access to non-public
information not pertaining to the Mortgage Loans or the A/B Mortgage Loans or
to proprietary information relating to Primary Servicer.
Section 5.8 Authorized Officer
Primary Servicer shall provide Capmark Master Servicer promptly with a
written list of authorized Servicing Officers of Primary Servicer, which may be
amended from time to time by written notice from Primary Servicer to Capmark
Master Servicer; provided, however, that such list shall denote one principal
Servicing Officer responsible for the Primary Servicer's obligations under this
Agreement.
Section 5.9 Additional Reports
Primary Servicer shall produce such additional written reports with
respect to the Mortgage Loans and the A/B Mortgage Loans as the Capmark Master
Servicer may from time to time reasonably request in accordance with the
Servicing Standard and shall reasonably cooperate with Capmark Master Servicer
to aid Capmark Master Servicer in its obligations to produce additional reports
and respond to inquiries under the Pooling and Servicing Agreement.
Section 5.10 Prepayment Interest Shortfalls and Excesses
(a) For any Mortgage Loan, Primary Servicer shall require Principal
Prepayments to be made so as not to cause a Prepayment Interest Shortfall.
If the Mortgage Loan Documents of a related Mortgage Loan do not allow
Primary Servicer to require Principal Prepayments (or condition acceptance
of Principal Prepayments) on a date that will avoid a Prepayment Interest
Shortfall ("Non-Mandatory Prepayment Date Mortgage Loan"), then the Primary
Servicer shall pay to Capmark Master Servicer on the date specified in
Section 2.1(c)(iv) of this Agreement, in addition to all other amounts due
for such Principal Prepayment, an amount payable by the Primary Servicer
from its own funds without reimbursement therefor equal to any Prepayment
Interest Shortfall that results from such Principal Prepayment (for the
avoidance of doubt, no such reimbursement shall be required with respect to
any B Notes); provided, however, that for all Principal Prepayments received
during any Collection Period with respect to Non-Mandatory Prepayment Date
Mortgage Loans, the Primary Servicer shall in no event be required to remit
an amount greater than the amount of the Primary Servicing Fees for such
Collection Period, plus any investment income earned on the amount prepaid
prior to the related Distribution Date.
(b) If the Mandatory Prepayment Date Assumption proves to be inaccurate
as to any Mortgage Loan and, as a direct consequence of that inaccuracy, the
Capmark Master Servicer is required to make a payment of Compensating
Interest on any Master Servicer Remittance Date pursuant to Section 8.10(c)
of the Pooling and Servicing Agreement in respect of Prepayment Interest
Shortfalls arising on that Mortgage Loan during the then most recently ended
Collection Period, the Primary Servicer shall reimburse the Capmark Master
Servicer the amount of such Compensating Interest payment attributable to
that Mortgage Loan promptly following request therefor by the Capmark Master
Servicer (for the avoidance of doubt, no such reimbursement shall be
required with respect to any B Note). The amount of damages, if any, due and
owing from the Primary Servicer under the PCFII Servicing Rights Purchase
Agreement with respect to an inaccuracy of the Mandatory Prepayment Date
Assumption shall be reduced by the amount of any Compensating Interest paid
by the Primary Servicer hereunder with respect to the applicable Mortgage
Loan. For the avoidance of doubt, no such reimbursement shall be required to
be made in connection with Prepayment Interest Shortfalls resulting from
involuntary Principal Prepayments incurred in respect of any Specially
Serviced Mortgage Loans or Defaulted Mortgage Loans, except to the extent
the Primary Servicer did not apply the proceeds of such involuntary
Principal Prepayments in accordance with the terms of the related Mortgage
Mortgage Loan Documents.
(c) If any Principal Prepayment on any Mortgage Loan results in a
Prepayment Interest Excess, then Primary Servicer shall remit such Principal
Prepayment and accompanying collections as required under Section 2.1 and
Capmark Master Servicer shall, on the Master Servicer Remittance Date
immediately following the remittance of the Principal Prepayment by the
Primary Servicer to the Capmark Master Servicer, remit to Primary Servicer a
pro rata portion (based upon all Prepayment Interest Excesses remitted to
Capmark Master Servicer by all Primary Servicers (as defined in the Pooling
and Servicing Agreement) with respect to such Collection Period) of the
amount by which the amount of the Prepayment Interest Excesses for such
Collection Period exceed all Prepayment Interest Shortfalls (excluding, with
respect to all of the Primary Servicers, any Prepayment Interest Shortfalls
of the type described in clause (b) above) for such Collection Period with
respect to any of the mortgage loans (whether or not the subject of this
Agreement) that are serviced under the Pooling and Servicing Agreement
(except that if the aggregate pro rata portion owed to Primary Servicer
during any Collection Period as a result of such calculation exceeds
$20,000, Capmark Master Servicer shall remit to Primary Servicer such pro
rata portion no later than three (3) Business Days prior to the Distribution
Date for the applicable Collection Period).
Section 5.11 Consents
Primary Servicer shall (a) obtain the consent of the Special Servicer
with respect to assignments and assumptions of Mortgage Loans or A/B Mortgage
Loans in accordance and subject to the terms of Section A.1(c)(ii) of Exhibit
B-2(c) of this Agreement and Sections 8.7 of the Pooling and Servicing
Agreement; (b) obtain the consent of the Capmark Master Servicer with respect
to the defeasance of Mortgage Loans in accordance with and subject to the terms
of Section A.1(c)(i) of Exhibit B-2(c) of this Agreement; (c) obtain the
consent of the Special Servicer with respect to additional liens, monetary
encumbrances and mezzanine financings in accordance with and subject to the
terms of Section A.1(c)(iii) of Exhibit B-2(c) of this Agreement and Sections
8.7 and 9.5 of the Pooling and Servicing Agreement; (d) notify Capmark Master
Servicer of any Materiality Determination, which shall thereafter be handled in
accordance with Sections A.1(a) and (c)(iv) of Exhibit B-2(c) of this
Agreement; and (e) with respect to an A/B Mortgage Loan, if required by the
related A/B Intercreditor Agreement, obtain the consent of the holder of the
related B Note for those actions which require the consent of such B Note
holder.
Section 5.12 Quarterly Servicing Accounts Reconciliation Certification
Primary Servicer shall execute and deliver to Capmark Master Servicer a
certification substantially in the form set forth in Exhibit D hereto no later
than the 25th calendar day of each January, April, July and October, commencing
in April 2008 (the date of such delivery, in each case, a "Reconciliation
Certification Date"), with respect to the three consecutive calendar months
immediately preceding the calendar month in which such Reconciliation
Certification Date falls.
Section 5.13 Exchange Act Reports; Annual Compliance Documents
(a) Regulation AB Compliance. The Primary Servicer shall comply with the
reporting and certification requirements required to be complied with by a
"Reporting Servicer", a "Sub-Servicer", a "Servicing Function Participant" or
an "Additional Servicer" under Article XIII of the Pooling and Servicing
Agreement (whether or not the Primary Servicer's activities satisfy the
percentage requirement set forth in the Capmark Master Servicer definition
of "Servicing Function Participant" under the Pooling and Servicing
Agreement (or, implicitly, in the definitions of "Reporting Servicer" or
"Sub-Servicer" under the Pooling and Servicing Agreement) or the definitional
requirements of "Additional Servicer" under the Pooling and Servicing
Agreement). The parties acknowledge the entitlement granted to the Capmark
Master Servicer and the Primary Servicer under the Pooling and Servicing
Agreement to conclusively assume that there is no "significant obligor"
other than a party identified as such in the Prospectus Supplement. The
Primary Servicer shall be entitled to rely on such provisions of the Pooling
and Servicing Agreement and such acknowledgements for purposes of its duties
under this Section 5.13.
(b) Capmark Master Servicer General Reporting Obligations. The Primary
Servicer shall comply from time to time with the reporting and certification
requirements set forth in Section 5.13(c) with respect to each ABS Issuing
Entity. For such purpose, Section 5.13(c) shall be construed separately in
relation to each ABS Issuing Entity. If any mortgage loan serviced hereunder
is not initially held by the IQ16 Trust, then any ABS Issuing Entity to
which such mortgage loan may subsequently be transferred shall be recognized
as an ABS Issuing Entity for purposes of this Section from and after the
effective date set forth in a notice of such transfer delivered to the
Primary Servicer, which notice sets forth the name of the ABS Issuing
Entity, the name and address of the depositor for such ABS Issuing Entity,
the name and address of the trustee for such ABS Issuing Entity, the name
and address of any paying agent and/or certificate administrator for such
ABS Issuing Entity that is not the same person as the trustee for such ABS
Issuing Entity and the name and address of the applicable Capmark Master
Servicer for such ABS Issuing Entity. In no event shall such an effective
date occur earlier than the date that is five (5) Business Days following
the delivery of such notice.
For example and not as a limitation of the preceding paragraph, if a
hypothetical promissory note designated "Note A-1" and a hypothetical
promissory note designated "Note A-2" are secured by the same mortgaged
property, such "Note A-1" is held by the IQ16 Trust and such "Note A-2" is held
by a different commercial mortgage trust, then (i) one set of the reports
required hereunder must be prepared and delivered with respect to the trust
that holds such "Note A-1" and a second set of the reports required hereunder
must be prepared and delivered with respect to the trust that holds such "Note
A-2", (ii) for purposes of measuring percentages of pool assets, the first set
of reports must reflect (where applicable) a measurement of percentages of pool
assets by reference to the pool of assets held by the trust that holds such
"Note A-1" and the second set of reports must reflect (where applicable) a
measurement of percentages of pool assets by reference to the pool of assets
held by the trust that holds such "Note A-2" and (iii) references in the
succeeding provisions of this Section to the "ABS Issuing Entity" shall mean,
for purposes of the first set of reports, the trust that holds such "Note A-1"
and, for purposes of the second set of reports, the trust that holds such "Note
A-2".
(c) Certain Reports, Certifications and Compliance Information. The
Primary Servicer shall comply with the following provisions:
(i) Form 8-K Information. With respect to each ABS Issuing Entity
(for so long as it is subject to Exchange Act reporting requirements),
not later than the date set forth in Section 13.7 of the Pooling and
Servicing Agreement with respect to any event described below of which
the Primary Servicer becomes aware, the Primary Servicer shall deliver to
the Depositor or other Applicable Depositor (with a copy to the Capmark
Master Servicer) a report (a "Primary Servicer Form 8-K Information
Report") setting forth all of the information regarding such event that is
required to be included in a Current Report on Form 8-K ("Form 8-K")
under the Exchange Act, to the extent that the Primary Servicer is
required to deliver such information under Article XIII of the Pooling
and Servicing Agreement.
(ii) Form 10-D Information. With respect to each ABS Issuing Entity
and each Distribution Date (for so long as such ABS Issuing Entity is
subject to Exchange Act reporting requirements), not later than the date
(in each month) set forth in Section 13.4 of the Pooling and Servicing
Agreement, the Primary Servicer shall deliver to the Depositor or other
Applicable Depositor (with a copy to the Capmark Master Servicer) a
report (a "Primary Servicer Form 10-D Information Report") setting forth
all of the information that is required to be included in the
Asset-Backed Issuer Distribution Report on Form 10-D ("Form 10-D") under
the Exchange Act relating to the Distribution Date occurring in such
month, to the extent that the Primary Servicer is required to deliver
such information under Article XIII of the Pooling and Servicing
Agreement.
(iii) Form 10-K Information (Other than Annual Compliance
Information). With respect to each ABS Issuing Entity (for so long as it
is subject to Exchange Act reporting requirements), not later than the
date in each month set forth in Section 13.5 of the Pooling and Servicing
Agreement, the Primary Servicer shall deliver to the Depositor or other
Applicable Depositor (with a copy to the Capmark Master Servicer) a
report (a "Primary Servicer Form 10-K Information Report") setting forth
all of the information (other than a report regarding its assessment of
compliance, a report by a registered public accounting firm that attests
to and reports on such assessment report and a statement of compliance,
which reports and statements shall be governed by subsection (c)(iv))
that is required to be included in an Annual Report on Form 10-K (a "Form
10-K") under the Exchange Act relating to the most recently ended
calendar year, to the extent that the Primary Servicer is required to
deliver such information under Article XIII of the Pooling and Servicing
Agreement.
(iv) Annual Compliance Information. Not later than the fifth (5th)
Business Day prior to the date when the Primary Servicer is required to
deliver such reports and statement under the Pooling and Servicing
Agreement, the Primary Servicer shall deliver to the Capmark Master
Servicer the following reports and statement:
(A) a report regarding its assessment of compliance with the
servicing criteria specified in Item 1122(d) of Regulation AB, as of and
for the period ending the end of the prior calendar year, with respect to
asset-backed securities transactions taken as a whole that are backed by
the same asset type as that included in the ABS Issuing Entity, which
report of assessment shall or would conform to the criteria set forth in
Item 1122(a) and Item 1122(c)(1) of Regulation AB;
(B) a report by a registered public accounting firm that
attests to, and reports on, the assessment described in the preceding
clause (A), which report shall be made in a manner that conform or would
conform to the standards for attestation engagements issued or adopted by
the Public Company Accounting Oversight Board and shall or would conform
to the requirements of Item 1122(b) and Item 1122(c)(1) of Regulation AB;
and
(C) a statement of compliance from the Primary Servicer that
shall or would comply with Item 1123 of Regulation AB, and signed by an
authorized officer of the Primary Servicer, to the effect that: (a) a
review of the Primary Servicer's activities during the then most-recently
ended calendar year and of its performance under this Agreement has been
made under such officer's supervision and (b) to the best of such
officer's knowledge, based on such review, the servicer has fulfilled all
of its obligations under this Agreement in all material respects
throughout the then most-recently ended calendar year or, if there has
been a failure to fulfill any such obligation in any material respect,
specifying each such failure known to such officer and the nature and
status thereof.
(v) Xxxxxxxx-Xxxxx Back-Up Certification. Not later than the fifth
(5th) Business Day prior to the date when the Primary Servicer is
required to deliver such backup certification under the Pooling and
Servicing Agreement, the Primary Servicer shall execute and deliver to
the Capmark Master Servicer a backup certification, which shall be
substantially in the form attached as Exhibit BB-6 to the Pooling and
Servicing Agreement in support of any certification obligation to which
the Capmark Master Servicer, the depositor for the ABS Issuing Entity,
the trustee for the ABS Issuing Entity, the Capmark Master Servicer for
the ABS Issuing Entity (if other than the Capmark Master Servicer) or
other similar party is subject under the governing agreement for the ABS
Issuing Entity in connection with the certification requirements of the
Xxxxxxxx-Xxxxx Act of 2002, as amended, and Rule 302 of the Regulations
with respect to the mortgage loans serviced by the Primary Servicer under
this Agreement.
(d) [Reserved.]
(e) Forms of Reports. Each report and certification delivered by the
Primary Servicer shall appear under a cover substantially in the form
attached hereto as Exhibit E. Each report, certification and statement that
is delivered or rendered by the Primary Servicer itself shall be signed by
an officer of the Primary Servicer responsible for reviewing the activities
performed by the Primary Servicer under this Agreement. Each report
delivered by the Primary Servicer that contains Primary Servicer Form 8-K
Reporting Information, Primary Servicer Form 10-D Reporting Information or
Primary Servicer Form 10-K Reporting Information shall appear in the same
form that a Form 8-K, Form 10-D or Form 10-K is required to appear under the
Regulations, except that such report shall:
(i) omit the cover page that would be required under the applicable
form under the Regulations (but the report shall nonetheless appear under
a cover substantially in the form attached hereto as Exhibit E, as
contemplated above); and
(ii) omit to comply with the signature requirements that would
apply under the applicable form under the Regulations (but the report
shall nonetheless be signed by an officer of the Primary Servicer
responsible for reviewing the activities performed by the Primary
Servicer under this Agreement, as contemplated above, and shall contain a
statement to the effect that the report is submitted in connection with
the reporting obligations associated with the ABS Issuing Entity under
the Exchange Act).
In no event shall any statement or legend (whether such statement or
legend is included in, accompanies or is referred to in a report or
certification hereunder) that purports to disclaim liability for any report or
certification, or any portion thereof, have any force or effect to the extent
that such limitation on liability would not be given effect under the Securities
Act, the Exchange Act or the Regulations if a similar statement or legend were
made by or on behalf of the ABS Issuing Entity, the Capmark Master Servicer or
the Depositor in a report or certification filed with the SEC or otherwise
pursuant to the Regulations. The preceding statement shall not be construed to
allow any limitation on liability that is not otherwise contemplated under this
Section.
(f) Reliance on Information. For purposes of its obligations under this
Section, the Primary Servicer shall be entitled to rely on the following
information to the extent that such information relates to mortgage loans
that are not serviced under this Agreement: (i) the final prospectus
supplement prepared by the Depositor with respect to the offering of the
securities issued by the ABS Issuing Entity and (ii) any reports delivered
from time to time by the Capmark Master Servicer, the Capmark Master
Servicer for the ABS Issuing Entity (if such party is not the Capmark Master
Servicer), the trustee for the ABS Issuing Entity and/or the paying agent,
certificate administrator or other similar party for the ABS Issuing Entity.
(g) Servicing Transfers. Notwithstanding any resignation, removal or
termination of the Primary Servicer, or any assignment of the obligations of
the Primary Servicer, pursuant to the other provisions of this Agreement,
the Primary Servicer shall remain obligated to comply from time to time with
the reporting and certification obligations that would have been applicable
under subsection (c) in the absence of such resignation, removal,
termination or assignment, but only to the extent related to the time period
prior to the effective date of such resignation, removal termination or
assignment. Without limiting the generality of the preceding statement, if
the Primary Servicer voluntarily assigns its obligations under this
Agreement pursuant to the other provisions of this Agreement (or with the
consent of the Capmark Master Servicer), then the successor Primary Servicer
shall be obligated to cause the predecessor Primary Servicer to perform the
surviving reporting and certification obligations set forth above and the
failure to do so will constitute an "event of default" on the part of the
successor Primary Servicer.
(h) Acknowledgments. The parties acknowledge that the terms and
conditions of this Agreement may result in the commencement of one or more
reporting and/or certification obligations on a date that is subsequent to
the date of this Agreement. The parties acknowledge that the provisions of
this Section shall not be construed to require the Primary Servicer to sign
any Form 8-K, Form 10-D or Form 10-K to be filed with respect to the ABS
Issuing Entity with the SEC (except to the extent, if any, that the
Regulations require such signature).
(i) Certain Determinations. Insofar as the determination of any reporting
or certification obligation hereunder depends on an interpretation of the
Securities Act, the Exchange Act or the Regulations, then, as between the
Primary Servicer on the one hand, and the Capmark Master Servicer on the
other, the determination of the Capmark Master Servicer, as set forth in a
written notice to the Primary Servicer, shall be conclusive and binding in
the absence of manifest error, and, for the purposes of this Agreement, the
Primary Servicer shall be entitled to rely on any such determination. If the
Primary Servicer initiates legal proceedings asserting an interpretation
that differs from any such determination of the Capmark Master Servicer, as
set forth in a written notice to the Primary Servicer, the Primary Servicer
shall comply with such determination of the Capmark Master Servicer unless
and until a final, nonappealable judgment is rendered in connection with
such proceedings, in which case such final, nonappealable judgment shall
control. If the Primary Servicer receives notice of interpretations
hereunder from the Capmark Master Servicer that conflict with each other,
the Primary Servicer shall promptly notify the Capmark Master Servicer, in
which case the Primary Servicer shall comply with the interpretation
described in the applicable written notice from the Capmark Master Servicer.
(j) Specific Regulatory Determinations. Notwithstanding any contrary
provisions set forth in this Agreement, if the SEC or its staff issues any
order, no-action letter or staff interpretation that relates specifically to
asset-backed securities issuers or transactions established by the
Applicable Depositor and/or its affiliates or specifically to the applicable
ABS Issuing Entity, then, subject to the immediately succeeding sentence,
the Primary Servicer shall comply with such order, no-action letter or staff
interpretation insofar as such order, no-action letter or staff
interpretation, or the interpretations reflected therein, does or would (if
implemented) affect the reporting and certification obligations of the
Primary Servicer hereunder. The compliance obligation otherwise described in
the preceding sentence shall not be required unless there shall have been
delivered to the Primary Servicer a notice of such order, no-action letter
or staff interpretation, which notice attaches a copy of the applicable
order, no-action letter or staff interpretation or relevant excerpts thereof.
(k) [Reserved.]
(l) No Delegation. The Primary Servicer shall not delegate or subcontract
any of its duties under this Section 5.13 under any circumstances,
notwithstanding any provisions of this Agreement that otherwise authorizes
the Primary Servicer to delegate its obligations under this Agreement.
(m) Disclosure. The Primary Servicer hereby consents to the filing with
the SEC, and the unrestricted disclosure to the public, of this Agreement,
any amendment to this Agreement and any and all reports and certifications
delivered under this Agreement.
(n) Changes in Law. In the event that the Securities Act, the Exchange
Act or the Regulations are amended to impose additional or more stringent
reporting and/or certification obligations with respect to the ABS Issuing
Entity, which additional or more stringent reporting and/or certification
obligations are not otherwise effective pursuant to the other provisions of
this Agreement, the parties hereto shall negotiate in good faith for an
amendment to this Section 5.13 to result in compliance with such law or
regulation as so amended. In the event that the Securities Act, the Exchange
Act or the Regulations are amended to reduce reporting and/or certification
obligations with respect to the ABS Issuing Entity, the parties hereto shall
negotiate in good faith for an amendment to this Section 5.13 to result in
compliance with such law or regulation as so amended.
ARTICLE VI.
PRIMARY SERVICER DEFAULT; TERMINATION;
POST-TERMINATION OBLIGATIONS
Section 6.1 Primary Servicer Default
Each of the following events shall constitute a "Primary Servicer
Default" hereunder:
(a) any failure by the Primary Servicer to remit to the Capmark Master
Servicer when due any amount required to be remitted under this Agreement; or
(b) except in the case of Section 6.1(c), any failure by the Primary
Servicer duly to observe or perform in any material respect any of the
covenants or agreements on the part of the Primary Servicer contained in
this Agreement, which failure continues unremedied for a period of
twenty-five (25) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given by the
Capmark Master Servicer to Primary Servicer; provided, however, that to the
extent the Capmark Master Servicer determines in its reasonable discretion
that the Primary Servicer is in good faith attempting to remedy such failure
and the Certificateholders and holders of any B Note shall not be materially
and adversely affected thereby, such cure period may be extended to the
extent necessary to permit the Primary Servicer to cure such failure;
provided, however, that such cure period may not exceed sixty (60) days; and
provided, further, that if such failure to observe or perform on the part of
the Primary Servicer would result in an Event of Default (or an event that
with notice or the passage of time would constitute such an Event of
Default) by the Capmark Master Servicer under the Pooling and Servicing
Agreement or applicable A/B Intercreditor Agreement, then the cure periods
described in this Section 6.1(b) shall not apply; or
(c) any breach of the representations and warranties made pursuant to
Section 2.4(b) hereof or any failure by the Primary Servicer to comply with
one or more provisions of Section 5.13 or clause (d) of Article VII;
provided, however, that all of the following provisions shall apply:
(A) to the extent the Capmark Master Servicer determines, in its
reasonable discretion, following consultation with the Applicable
Depositor, that the Primary Servicer is in good faith attempting to
remedy such failure and no Certification Party will be materially and
adversely affected by giving the Primary Servicer an opportunity to cure
such failure, the Capmark Master Servicer may, following consultation
with the Applicable Depositor, give the Primary Servicer such opportunity;
(B) the period of time to cure such failure may not exceed three
(3) days;
(C) no such cure period shall apply if such failure to perform on
the part of the Primary Servicer would result in either failure by the
Capmark Master Servicer (or Capmark as master servicer in any other
securitization) to submit to the Depositor (or another Applicable
Depositor, as applicable), or failure by the Depositor (or another
Applicable Depositor) to submit to the SEC, timely, complete and accurate
reports of the type described in Article XIII of the Pooling and
Servicing Agreement;
(D) unless the Capmark Master Servicer otherwise consents, the cure
period described in this Section 6.1(c) shall end on the earlier of (I)
the date on which the Capmark Master Servicer has delivered (or would be
required to deliver) a report or certification to the Applicable
Depositor or to the SEC, which report is or would be inaccurate,
incomplete or unable to be rendered as a result of such failure of the
Primary Servicer and (II) the date on which the Applicable Depositor has
delivered (or would be required to deliver) a report or certification to
the SEC, which report is or would be inaccurate, incomplete or unable to
be rendered as a result of such failure of the Primary Servicer; and
(E) if, following the Primary Servicer's failure to comply with any
of its obligations under Section 5.13(c)(i), 5.13(c)(ii), 5.13(c)(iii),
5.13(c)(iv)(A), 5.13(c)(iv)(B) or 5.13(c)(iv)(C) hereof on or prior to
the dates by which such obligations are to be performed pursuant to, and
as set forth in, such Sections, (x) the Primary Servicer subsequently
complies with such obligations before the Capmark Master Servicer gives
written notice to the Primary Servicer that it is terminated in
accordance with this Section 6.1(c) and Section 6.2, (y) the Primary
Servicer's failure to comply does not cause termination of the Capmark
Master Servicer under Section 8.28(b)(iii) and Section 8.29 of the
Pooling and Servicing Agreement, (z) the Primary Servicer's failure to
comply does not cause the Paying Agent to fail in its obligations to
timely file the related Form 8-K, Form 10-D or Form 10-K, as the case may
be, by the related 8-K Filing Deadline, 10-D Filing Deadline or 10-K
Filing Deadline, then such failure of the Primary Servicer to so comply
shall cease to be a Primary Servicer Default under this Section 6.1(c) on
the date on which such Form 8-K, Form 10-D or Form 10-K is so filed; or
(d) any breach of the representations and warranties made pursuant to
Section 2.4(a) hereof that materially and adversely affects the interest of
the Capmark Master Servicer and that continues unremedied for a period of
twenty-five (25) days after the date on which written notice of such breach,
requiring the same to be remedied, shall have been given by the Capmark
Master Servicer to Primary Servicer; provided, however, that to the extent
the Capmark Master Servicer determines in its reasonable discretion that the
Primary Servicer is in good faith attempting to remedy such breach and the
Certificateholders and holders of any B Note shall not be materially and
adversely affected thereby, such cure period may be extended to the extent
necessary to permit the Primary Servicer to cure such breach; provided,
however, that such cure period may not exceed sixty (60) days; and provided,
further, that if such failure to perform on the part of the Primary Servicer
results in an Event of Default (or an event that with notice or the passage
of time would constitute such an Event of Default) by the Capmark Master
Servicer under the Pooling and Servicing Agreement or applicable A/B
Intercreditor Agreement, then the cure periods described in this Section
6.1(d) shall not apply; or
(e) any Rating Agency shall qualify, lower or withdraw the outstanding
rating of any Class of Certificates because the prospective financial
condition or mortgage loan servicing capacity of the Primary Servicer is
insufficient to maintain such rating; or
(f) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any present
or future federal or state bankruptcy, insolvency or similar law for the
appointment of a conservator, receiver, liquidator, trustee or similar
official in any bankruptcy, insolvency, readjustment of debt, marshalling of
assets and liabilities or similar proceedings, or for the winding-up or
liquidation of its affairs, shall have been entered against the Primary
Servicer and such decree or order shall have remained in force undischarged
or unstayed for a period of sixty (60) days; or
(g) the Primary Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or of or relating to all or substantially
all of its property; or
(h) the Primary Servicer shall admit in writing its inability to pay its
debts generally as they become due, file a petition to take advantage of any
applicable bankruptcy, insolvency or reorganization statute, make an
assignment for the benefit of its creditors, voluntarily suspend payment of
its obligations, or take any corporate action in furtherance of the
foregoing; or
(i) any other event caused by the Primary Servicer which creates an Event
of Default (or an event that with notice or the passage time would
constitute or result in such an Event of Default) of the Capmark Master
Servicer under the Pooling and Servicing Agreement or under an A/B
Intercreditor Agreement;
(j) if Primary Servicer becomes or serves as Capmark Master Servicer at
any time, any failure by the Primary Servicer duly to observe or perform in
any material respect any of the covenants or agreements of Capmark Master
Servicer under the Pooling and Servicing Agreement or under an A/B
Intercreditor Agreement, which failure continues unremedied beyond the
expiration of applicable cure periods; or
(k) the Primary Servicer shall fail to terminate any sub-servicer
appointed by it that is a Reporting Servicer subject to and in accordance
with Section 8.4 of the Pooling and Servicing Agreement; provided that the
Depositor may waive any such Event of Default under this clause (k) in its
sole discretion.
Primary Servicer agrees to give prompt written notice to the Capmark
Master Servicer and the Depositor (and any other Applicable Depositor) upon the
occurrence of any Primary Servicer Default.
Section 6.2 Termination
(a) The obligations and responsibilities of the Primary Servicer as
created hereby (other than as expressly provided herein) shall terminate
upon the earliest to occur of (i) the receipt by the Primary Servicer of the
Capmark Master Servicer's written notice of such termination delivered at
the Capmark Master Servicer's option following the occurrence of a Primary
Servicer Default other than as described in Section 6.1(c), (ii) the
occurrence of a Primary Servicer Default described in Section 6.1(c) and
(iii) the later of the final payment or other liquidation of (x) the last
Mortgage Loan or (y) the A/B Mortgage Loan (the "Primary Servicing
Termination Date"). From and after the Primary Servicing Termination Date,
the Primary Servicer shall, if applicable, continue to cooperate in the
transfer of primary servicing, including the delivery of files and transfer
of accounts as contemplated hereby but shall have no further obligations
under this Agreement.
Without limiting the foregoing, the Primary Servicer agrees that the
rights and duties of the Capmark Master Servicer under this Agreement, the
Pooling and Servicing Agreement and each A/B Intercreditor Agreement may be
assumed by a successor Capmark Master Servicer or the Trustee upon a
termination of the Capmark Master Servicer's servicing rights pursuant to the
Pooling and Servicing Agreement.
Primary Servicer's rights and obligations shall expressly survive a
termination of Capmark's Master Servicer's servicing rights pursuant to the
Pooling and Servicing Agreement (except a termination of Capmark Master
Servicer caused by a Primary Servicer Default). In the event of such a
termination, any successor master servicer or the Trustee (if it assumes the
servicing obligations of the Capmark Master Servicer) shall be deemed to
automatically have assumed and agreed to this Agreement without further action
upon becoming the successor Capmark Master Servicer.
Upon the request of Primary Servicer, Capmark Master Servicer shall
confirm to Primary Servicer in writing that this Agreement remains in full
force and effect. Upon the request of Primary Servicer, the successor Capmark
Master Servicer or Trustee, as applicable, shall confirm to Primary Servicer in
writing that this Agreement remains in full force and effect. Upon the request
of the successor Capmark Master Servicer or Trustee, Primary Servicer shall
confirm to the successor Capmark Master Servicer or Trustee, as applicable, in
writing that this Agreement remains in full force and effect.
(b) The Capmark Master Servicer's reimbursement obligations to the
Primary Servicer hereunder shall survive the Primary Servicing Termination
Date, but only to the extent such reimbursement relates to a period prior to
the termination of all of the Primary Servicer's obligations hereunder.
(c) The rights of Capmark Master Servicer to terminate Primary Servicer
upon the occurrence of a Primary Servicer Default shall be in addition to
any other rights Capmark Master Servicer may have at law or in equity,
including injunctive relief or specific performance.
Section 6.3 Post-Termination Obligations
(a) In the event of a termination of primary servicing due to a Primary
Servicer Default, the Primary Servicer shall promptly deliver the Primary
Servicer Servicing Documents as directed by the Capmark Master Servicer and
remit to the Capmark Master Servicer, by wire transfer of immediately
available funds, all cash held by the Primary Servicer with respect to the
related Mortgage Loans and A/B Mortgage Loans, and shall, if so requested by
the Capmark Master Servicer, assign to the Capmark Master Servicer or a
Successor Primary Servicer, as directed by the Capmark Master Servicer, and
in such event the Capmark Master Servicer shall assume, or cause the
Successor Primary Servicer to assume, all service contracts related to the
Mortgage Loans and the A/B Mortgage Loans transferred thereon but only to
the extent such contracts are assignable and the required consents (if any)
to such assignments have been obtained. The Primary Servicer shall use all
reasonable efforts to obtain the consents required to effect such
assignments.
(b) On and after the Primary Servicing Termination Date, the Primary
Servicer shall promptly endorse and send to the Capmark Master Servicer via
overnight mail or delivery service any checks or other funds in respect of
any Mortgage Loan and any A/B Mortgage Loan which are received by the
Primary Servicer.
(c) The Primary Servicer shall provide to the Capmark Master Servicer
promptly (but in no event later than ten (10) Business Days) after the
Primary Servicing Termination Date the following information, in each case
as of such date: (a) a ledger accounting itemizing the dates and amounts of
all payments made, received or applied by the Primary Servicer with regard
to each Mortgage Loan and each A/B Mortgage Loan, further itemizing
principal and interest payments, tax payments, special assessments, hazard
insurance, mortgage insurance premiums, ground rents, if any, and all other
payments and (b) a current trial balance for each such Mortgage Loan and A/B
Mortgage Loan.
(d) On a date to be agreed upon by the Primary Servicer and the Capmark
Master Servicer, but not later than the Business Day following the Primary
Servicing Termination Date, the Primary Servicer shall commence and continue
diligently to completion at its own expense, to notify Mortgagors under the
related Mortgage Loans and A/B Mortgage Loans of the address to which
payments on such Mortgage Loans and A/B Mortgage Loans should be sent after
the Primary Servicing Termination Date; provided, however, that in any
event, Primary Servicer shall be obligated to notify Mortgagors within seven
(7) Business Days of the Primary Servicing Termination Date.
(e) The Primary Servicer shall promptly forward to the Capmark Master
Servicer, at the Primary Servicer's expense all Mortgagor correspondence,
insurance notices, tax bills or any other correspondence or documentation
related to any Mortgage Loan and any A/B Mortgage Loan which is received by
the Primary Servicer after the Primary Servicing Termination Date.
(f) The Primary Servicer shall otherwise cooperate in the orderly
transfer of the servicing of the Mortgage Loans and A/B Mortgage Loans and
shall forward to the Capmark Master Servicer and any Successor Primary
Servicer such documents as it may receive from time to time regarding any
Mortgage Loan or A/B Mortgage Loan transferred and provide such other
assistance as may reasonably be required by the Capmark Master Servicer or
any Successor Primary Servicer regarding such transfer.
(g) The Primary Servicer shall be entitled to all fees, compensation,
interest and earnings on the Mortgage Loans and A/B Mortgage Loans accrued
through the date of termination of its obligations and rights under this
Agreement; provided, however, Primary Servicer shall continue to collect the
Excess Servicing Fee after termination in accordance with the terms of this
Agreement and the Pooling and Servicing Agreement.
Section 6.4 Additional Termination
Notwithstanding any provision herein to the contrary, this Agreement
shall terminate with respect to any individual Mortgage Loan or A/B Mortgage
Loan (i) if and when such Mortgage Loan or A/B Mortgage Loan becomes a
Specially Serviced Mortgage Loan or an REO Mortgage Loan or (ii) if and when
such Mortgage Loan or A/B Mortgage Loan is sold or otherwise disposed of by or
on behalf of the IQ16 Trust (which sale or disposition shall not include the
transformation of a Mortgage Loan or A/B Mortgage Loan into a Defeasance Loan).
In the event of such termination, the Primary Servicer shall comply with
Section 6.3 as if a Primary Servicer Default had occurred, except that such
Section shall be construed to relate only to such Mortgage Loan or A/B Mortgage
Loan and references therein to Primary Servicing Termination Date shall be
construed to mean the date of such termination, and (ii) the Primary Servicer
shall cooperate in the orderly transfer of the servicing of such Mortgage Loan
or A/B Mortgage Loan and shall forward to the Capmark Master Servicer such
documents as it may receive from time to time with respect thereto and provide
such other assistance as may reasonably be required by the Capmark Master
Servicer with respect thereto. Primary Servicer shall be entitled to all fees,
compensation, interest and earnings on such Mortgage Loan or A/B Mortgage Loan
accrued through the date of termination of its obligations and rights with
respect to such Mortgage Loan or A/B Mortgage Loan under this Agreement;
provided, however, Primary Servicer shall continue to collect the Excess
Servicing Fee after termination in accordance with the terms of this Agreement
and the Pooling and Servicing Agreement. If such Mortgage Loan or A/B Mortgage
Loan subsequently becomes a Rehabilitated Mortgage Loan, then the Primary
Servicer shall promptly resume the servicing of such Mortgage Loan or A/B
Mortgage Loan in accordance with the terms hereof.
ARTICLE VII.
SUBCONTRACTORS
Upon prior notice to but without the consent of Capmark Master Servicer
in the case of material subcontracts and without prior notice to or the prior
written consent of the Capmark Master Servicer in the case of non-material
subcontracts, the Primary Servicer shall be permitted to employ, at its own
expense, subcontractors to perform the Services for the Mortgage Loans and A/B
Mortgage Loans; provided, however, that (a) the Primary Servicer shall remain
fully liable at all times for the performance of all Services and for all other
obligations hereunder; (b) in no event shall any such subcontractors make any
of the decisions, be given discretion to make any Capmark Master Servicer
decisions, or have any authority to make any decisions, required as part of a
Category 1 Request or Category 2 Request or any decision or recommendation
involving the exercise of the Primary Servicer's Capmark Master Servicer
Capmark Master Servicer discretion as a "lender" under any of the Mortgage Loan
Documents for the Mortgage Loans and the A/B Mortgage Loans; (c) the Primary
Servicer shall maintain and perform policies and procedures to monitor such
subcontractors' performance of the services for which they are employed; and
(d)(i) the Primary Servicer shall not, for so long as any ABS Issuing Entity is
subject to the reporting requirements of the Exchange Act, engage any
"Subcontractor" (as defined in the Pooling and Servicing Agreement) after the
Closing Date without the Capmark Master Servicer's and the Depositor's prior
written consent, which, in either case, shall not be unreasonably withheld and
(ii) the Primary Servicer shall, with respect to each such Subcontractor with
which it has entered into a servicing relationship with respect to the Mortgage
Loans after the Closing Date, (A) include in a written agreement between the
Primary Servicer and such Subcontractor provisions analogous to those of
Section 5.13 hereof, Section 6.1(c) hereof, Section 2.4(b) hereof, this clause
(d) of this Article VII, the last sentence of Section 10.11 hereof, the last
sentence of Section 10.13 hereof and the last sentence of Section 13.12 of the
Pooling and Servicing Agreement and (B) use reasonable efforts to cause such
Subcontractor to comply with the report delivery, indemnification and
contribution obligations set forth in such analogous provisions.
ARTICLE VIII.
PRIMARY SERVICER TO HOLD PROPERTY FOR THE CAPMARK MASTER SERVICER
All records relating to the Mortgage Loans and the A/B Mortgage Loans
held by the Primary Servicer, including but not limited to the Primary Servicer
Servicing Documents, mortgage servicing documents, books, computer tapes and
other documents and records (except for microfilm records) as well as any
reproductions or copies of such records furnished for the purposes of
performing Services from the Cut-off Date are, and shall continue at all times
to be, held by the Primary Servicer for the benefit of the Capmark Master
Servicer and for the Trustee and shall not be released, disseminated or
otherwise made available to third parties without the prior written consent of
the Capmark Master Servicer.
ARTICLE IX.
INDEMNIFICATION
Section 9.1 Primary Servicer's Indemnity
(a) The Primary Servicer shall indemnify the Capmark Master Servicer, its
officers, employees and agents against, and hold the Capmark Master Servicer
harmless from, any and all losses, liabilities, expenses, claims, demands,
costs, or judgment of any type against the Capmark Master Servicer arising
out of or related to (i) a negligent or willful failure of the Primary
Servicer or any Person hired by the Primary Servicer to perform properly any
of the Services to be performed by the Primary Servicer pursuant to the
Payment and Collection Description, the Payment and Mortgage Loan Status
Reports, Post Closing Matters Description and Task Description, (ii) any
failure by the Primary Servicer to perform its obligations under this
Agreement, or (iii) breach of any of the Primary Servicer's representations
and warranties hereunder; provided, however, that the Primary Servicer shall
not be required to indemnify the Capmark Master Servicer, its officers,
employees or agents against or hold the Capmark Master Servicer, its
officers, employees or agents harmless from any losses to the extent that
such loss is caused by the actions of the Capmark Master Servicer, its
officers, employees or agents in violation of the Capmark Master Servicer's
duties under this Agreement, under the Pooling and Servicing Agreement or
under an A/B Intercreditor Agreement (except to the extent that such failure
was caused by the Primary Servicer's failure to perform its obligations
hereunder). The indemnification provided under this Section 9.1 shall
survive the Primary Servicing Termination Date. The Capmark Master Servicer
shall promptly notify the Primary Servicer if a claim is made by a third
party with respect to this Agreement or the Mortgage Loans or the A/B
Mortgage Loans entitling the Capmark Master Servicer to indemnification
hereunder. The Primary Servicer shall assume the defense of any such claim
(with counsel reasonably satisfactory to the Capmark Master Servicer) and
pay all expenses in connection therewith, including counsel fees, and
promptly pay, discharge and satisfy any judgment or decree which may be
entered against it or them in respect of such claim. Any failure to so
notify the Primary Servicer shall not affect any of the Capmark Master
Servicer's rights to indemnification.
(b) Neither the Primary Servicer nor any of the directors, officers,
employees or agents of the Primary Servicer shall be under any liability to
the Capmark Master Servicer, the holders of the Certificates, any holder of
a B Note, the Depositor, the Trustee or any other Person for any action
taken or for refraining from the taking of any action in good faith and
using its reasonable business judgment pursuant to this Agreement, or for
errors in judgment; provided that this provision shall not protect the
Primary Servicer or any such person against any breach of a covenant,
representation or warranty contained herein or any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in its performance of duties or by reason of reckless disregard
for its obligations and duties under this Agreement. The Primary Servicer
and any director, officer, employee or agent of the Primary Servicer may
rely in good faith on any document of any kind prima facie properly executed
and submitted by any Person respecting any matters arising hereunder.
Section 9.2 Capmark Master Servicer's Indemnity
The Capmark Master Servicer shall indemnify the Primary Servicer, its
officers, employees and agents against, and hold the Primary Servicer harmless
from, any and all losses, liabilities, expenses, claims, demands, costs, or
judgment of any type against the Primary Servicer, to the extent arising out
of, or related to reliance by the Primary Servicer on, (i) pursuant to Section
5.13(i), an interpretation of the Securities Act, the Exchange Act or the
Regulations set forth in a written notice from the Capmark Master Servicer to
the Primary Servicer or (ii) any incorrect asset pool balance supplied by the
Capmark Master Servicer with respect to the IQ16 Trust, if such incorrect
balance is the cause of any incorrect determination by the Primary Servicer
that an obligor on a Mortgage Loan is not a Significant Obligor. The
indemnification provided under this Section 9.2 shall survive the Primary
Servicing Termination Date.
ARTICLE X.
MISCELLANEOUS
Section 10.1 Severability
If any term, covenant, condition or provision hereof is unlawful,
invalid, or unenforceable for any reasons whatsoever, and such illegality,
invalidity, or unenforceability does not affect remaining part of this
Agreement, then all such remaining parts hereof shall be valid and enforceable
and have full force and effect as if the invalid or unenforceable part had not
been included.
Section 10.2 Rights Cumulative; Waivers
The rights of each of the parties under this Agreement are cumulative and
may be exercised as often as any party considers appropriate. The rights of
each of the parties hereunder shall not be capable of being waived or amended
other than by an express waiver or amendment in writing. Any failure to
exercise (or any delay in exercising) any of such rights shall not operate as a
waiver or amendment of that or any other such right. Any defective or partial
exercise of any of such right shall not preclude any other or further exercise
of that or any other such right. No act or course of conduct or negotiation on
the part of any party shall in any way stop or preclude such party from
exercising any such right or constitute a suspension or any waiver of any such
right.
Section 10.3 Headings
The headings of the Sections and Articles contained in this Agreement are
inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement or any provision hereof.
Section 10.4 Construction
Unless the context otherwise requires, singular nouns and pronouns, when
used herein, shall be deemed to include the plural of such noun or pronoun and
pronouns of one gender shall be deemed to include the equivalent pronoun of the
other gender. This Agreement is the result of arm's-length negotiations between
the parties and has been reviewed by each party hereto and its counsel. Each
party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
Section 10.5 Assignment
(a) This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights and benefits hereof, shall be binding
upon, and shall inure to the benefit of, the undersigned parties and their
respective permitted successors and assigns. This Agreement and the rights
and benefits hereunder of the Primary Servicer shall not be assignable, and
the duties and obligations hereunder of such party shall not be delegable,
except that in the following instances, Primary Servicer may assign, sell or
transfer its rights under this Agreement without the consent of (but upon
written notice to) the Capmark Master Servicer:
(i) Primary Servicer may assign, sell or transfer its rights and
obligations under this Agreement (in whole and not in part) to a parent
company of Primary Servicer or a wholly-owned subsidiary or Affiliate of
such party, or a successor by merger or as the result of a
demutualization of a parent company of Primary Servicer, as long as such
successor has net assets and net worth equal to or greater than the net
assets and net worth of the Primary Servicer.
(ii) Primary Servicer may assign, sell or transfer its rights and
obligations under this Agreement (in whole and not in part) to an entity
that then serves as a primary servicer for other mortgage loans held by
the IQ16 Trust at the time of such assignment, sale or transfer.
(iii) With the prior written consent of the Capmark Master Servicer
and the Depositor which consent shall not be unreasonably withheld or
delayed, Primary Servicer may assign, sell or transfer its rights and
obligations under this Agreement (in whole and not in part) to any master
or primary servicer, if (1) such entity is either (a) rated by the Rating
Agencies as satisfactory or its equivalent in such capacity or (b)
approved by the Special Servicer and Operating Advisor (in addition to
Capmark Master Servicer as provided above), which approval shall not be
unreasonably withheld or delayed, and (2) Primary Servicer at its sole
cost receives Rating Agency Confirmation from the Rating Agencies prior
to such assignment, sale or transfer.
(iv) Primary Servicer may subcontract certain of its rights and
obligations under this Agreement as expressly provided in and subject to
the terms of Article VII of this Agreement.
Any such assignment under this Section 10.5(a) shall (i) not be effective
until such Successor Primary Servicer enters into a written agreement
reasonably satisfactory to the Capmark Master Servicer and the Depositor
agreeing to be bound by the terms and provisions of this Agreement (but not
altering the obligations under this Agreement); and (ii) not relieve the
assigning Primary Servicer of any duties or liabilities arising or incurred
prior to such assignment. Any costs or expenses incurred in connection with
such assignment shall be payable by the assigning Primary Servicer. Any
assignment or delegation or attempted assignment or delegation in contravention
of this Agreement shall be null and void. The proceeds of any assignment, sale
or transfer permitted under this Section 10.5 or to which consent was granted
shall belong solely to the assignor of such rights, and Capmark Master Servicer
shall have no claim to them.
(b) Resignation of Primary Servicer. Except as otherwise provided in
Section 10.6(b) hereof, the Primary Servicer shall not resign from the
obligations and duties hereby imposed on it unless it determines that the
Primary Servicer's duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law with
any other activities carried on by it. Any such determination permitting the
resignation of the Primary Servicer shall be evidenced by an Opinion of
Counsel to such effect delivered to the Capmark Master Servicer. No such
resignation shall become effective until a successor servicer designated by
the Capmark Master Servicer shall have assumed the Primary Servicer's
responsibilities and obligations under this Agreement, and Special Servicer
and Operating Advisor shall have consented to such successor servicer which
consent shall not be unreasonably withheld or delayed; provided that the
designation and assumption by Capmark Master Servicer of Primary Servicer's
responsibilities and obligations under this Agreement pursuant to this
Section 10.6(a) shall not require the consent of Special Servicer or
Operating Advisor.
(c) The Primary Servicer may resign from the obligations and duties
imposed on it, upon sixty (60) days' notice to the Capmark Master Servicer,
provided that (i) the Primary Servicer bears all costs associated with its
resignation and the transfer of servicing; (ii) Primary Servicer designates
a successor servicer to assume Primary Servicer's responsibilities and
obligations under this Agreement; (iii) Capmark Master Servicer, Special
Servicer and Operating Advisor shall consent to such successor servicer
which consent shall not be unreasonably withheld or delayed; and (iv) such
successor servicer assumes Primary Servicer's responsibilities and
obligations under this Agreement; provided, however, that the designation
and assumption by Capmark Master Servicer of Primary Servicer's
responsibilities and obligations under this Agreement pursuant to this
Section 10.6(b) shall not require the consent of Special Servicer or
Operating Advisor.
(d) In connection with any resignation under subsections (a) or (b)
above, the Primary Servicer shall comply with Section 6.3 as if a Primary
Servicer Default occurred, except that reference in such Section to Primary
Servicing Termination Date shall be construed to mean the date of
resignation under subsections (a) or (b) above, as the case may be.
Section 10.6 Prior Understandings
This Agreement supersedes any and all prior discussions and agreements
between or among the Seller, the Primary Servicer and the Capmark Master
Servicer with respect to the Servicing of the Mortgage Loans and the A/B
Mortgage Loans and the other matters contained herein. This Agreement, together
with the Pooling and Servicing Agreement and each A/B Intercreditor Agreement,
contain the sole and entire understanding between the parties hereto with
respect to the transactions contemplated herein. Every effort shall be made to
construe this Agreement, the Pooling and Servicing Agreement and each A/B
Intercreditor Agreement consistently. If a conflict exists between such
agreements, then the Pooling and Servicing Agreement and with respect to an A/B
Mortgage Loan, the applicable A/B Intercreditor Agreement shall control. If
this Agreement requires Primary Servicer to perform a task or duty, the details
and obligations of which are (a) set forth in this Agreement and (b)(i) are not
set forth in the Pooling and Servicing Agreement or with respect to an A/B
Mortgage Loan, the applicable A/B Intercreditor Agreement, (ii) are set forth
in the Pooling and Servicing Agreement and with respect to an A/B Mortgage
Loan, the applicable A/B Intercreditor Agreement only in general terms, then
Primary Servicer shall perform such task and duties in accordance with the
details and obligations set forth in this Agreement. If this Agreement requires
Primary Servicer to perform a task or duty, the details and obligations of
which are not set forth in this Agreement but are contained in the Pooling and
Servicing Agreement and with respect to an A/B Mortgage Loan, the applicable
A/B Intercreditor Agreement, then the Primary Servicer shall perform such task
and duties in accordance with the Pooling and Servicing Agreement.
Section 10.7 Integrated Agreement
This Agreement constitutes the final complete expression of the intent
and understanding of the Primary Servicer and the Capmark Master Servicer and
may not be altered or modified except by a subsequent writing, signed by the
Primary Servicer and the Capmark Master Servicer.
Section 10.8 Counterparts
This Agreement may be executed in any number of counterparts, each of
which shall constitute one and the same instrument. Any party hereto may
execute this Agreement by signing any such counterpart.
Section 10.9 Governing Laws
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York without regard to conflicts of law principles,
and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
Section 10.10 Notices
Unless otherwise provided for herein, all notices and other
communications required or permitted hereunder shall be in writing (including a
writing delivered by facsimile transmission) and shall be deemed to have been
duly given (a) when delivered, if sent by registered or certified mail (return
receipt requested), if delivered personally or by facsimile or (b) on the
second following Business Day, if sent by overnight mail or overnight courier,
in each case to the parties at the following addresses (or at such other
addresses as shall be specified by like notice):
If to the Capmark As set forth in Section 15.5 of
Master Servicer: the Pooling and Servicing Agreement
If to the Primary Servicer: Principal Global Investors, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxx, Managing
Director
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Section 10.11 Amendment
In the event that the Pooling and Servicing Agreement or an A/B
Intercreditor Agreement is amended, this Agreement shall be deemed to have been
amended and to the extent necessary to reflect such amendment to the Pooling
and Servicing Agreement or such A/B Intercreditor Agreement, but no such
amendment to the Pooling and Servicing Agreement or A/B Intercreditor Agreement
or deemed amendment to this Agreement shall increase the obligations or
decrease the rights of Primary Servicer under this Agreement without its
express written consent which consent shall not be unreasonably withheld or
delayed. For so long as any ABS Issuing Entity is subject to the reporting
requirements of the Exchange Act, the parties hereto may not amend or modify
any provision of Section 5.13, Section 6.1(c), Section 2.4(b), clause (d) of
Article VII, the last sentence of Section 10.13, or this sentence without the
Depositor's prior written consent.
Notwithstanding anything to the contrary contained in this Section 10.11,
the parties hereto agree that this Agreement may be amended pursuant to Section
5.11 herein without any notice to or consent of any of the Certificateholders,
any B Note holder, Opinions of Counsel, Officer's Certificates or Rating Agency
Confirmation.
Section 10.12 Other
This Agreement shall not be construed to grant to any party hereto any
claim, right or interest in, to or against the Trust Fund created pursuant to
the Pooling and Servicing Agreement or any assets of such Trust Fund.
Section 10.13 Benefits of Agreement
Nothing in this Agreement, express or implied, shall be construed to
grant to any Mortgagor or other Person, other than the parties to this
Agreement and the parties to the Pooling and Servicing Agreement, any benefit
or any legal or equitable right, power, remedy or claim under this Agreement,
except that the Depositor, any other Applicable Depositor and any Capmark
Master Servicer for an ABS Issuing Entity other than the IQ16 Trust are
intended third-party beneficiaries of Section 5.13 and Section 6.1.
[end of page]
IN WITNESS WHEREOF, this Agreement has been signed on behalf of each of
the parties hereto by an authorized representative, all as of the day and year
first above written.
CAPMARK FINANCE, INC., acting solely in its
capacity as Capmark Master Servicer under
the Pooling and Servicing Agreement
By: /s/ Xxxxxxx X. Xxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxx
Vice President
PRINCIPAL GLOBAL INVESTORS, LLC
By: /s/ Xxxxxxxxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxxxxxxxx X. Xxxxxxxxx
Title: Vice President and Assistant
General Counsel
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant General Counsel
SCHEDULE I
MORTGAGE LOAN SCHEDULES
Primary
Cut-Off Servicing
Loan Date Fee Rate
Number Loan Name Balance ($) (basis points
------ --------- -------------- -------------
4 Hilton Daytona Beach 94,730,000.00 1.00000
9 Marriott Columbia 41,300,000.00 1.00000
13 Hilton Antlers Colorado Springs 36,432,000.00 1.00000
31 Summit Professional Plaza 15,925,000.00 1.00000
46 00 Xxxxxx Xxxxxx 11,000,000.00 1.00000
48 Paloma Village Center 10,500,000.00 1.00000
52 000 Xxxxxxx Xxxxxx 9,992,806.05 1.00000
61 Wellington Corporate Center 8,600,000.00 1.00000
87 0000 Xxxxxxx Xxxxxx 5,500,000.00 1.00000
124 San Diego Spectrum 3,700,000.00 1.00000
125 0000 Xxxx Xxxxx Xxxxx 3,697,029.37 1.00000
131 Hertz Equipment Rental Facility 3,400,000.00 1.00000
153 000 Xxxxxxx Xxxxx 2,648,093.61 1.00000
000 Xxxxxx Xxxxxx Village 1,372,765.68 1.00000
182 Xxxxxxxxxx Retail 1,300,000.00 1.00000
000 Xxxx Xxxx Shoppes 3,400,000.00 6.00000
128 000 Xxxxxxxxxxxx Xxxxx 3,495,849.74 6.00000
SCHEDULE II
[RESERVED]
EXHIBIT A
POOLING AND SERVICING AGREEMENT
See copy of signed Pooling and Servicing Agreement delivered under separate
cover.
EXHIBIT B
Exhibit B-1 Payment and Mortgage Loan Status Reports
Exhibit B-2: Overview of Methodology of Allocation of Responsibility
on Post Closing Requests
Exhibit B-3: Form of Property Inspection Reports
Exhibit B-4: Task Description
EXHIBIT B-1
PAYMENT AND MORTGAGE LOAN STATUS REPORTS
Exhibit B-1(a): Remittance report for payments received on Mortgage Loans
during the applicable Collection Period
Exhibit B-1(b): Delinquency report
Exhibit B-1(c): Real estate tax delinquency report
Exhibit B-1(d): Insurance monitoring report
Exhibit B-1(e): UCC form monitoring report
Exhibit B-1(f): Day One Report
EXHIBIT B-1(a)
Remittance Report for payments received on Mortgage Loans
Principal Global Investors, LLC
000 Xxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000
Monthly Remittance Report -
112
------------------------------------------------------------------------------------------------------------------------------------
Late Payment
Master Sub- Charge Total Date
Servicer Sub- Beginning Gross Net Gross service Net Payment/ Net Ending Recd Paid
Loan servicer Principal P&I Principal Interest Interest Fee Interest Default Remit Principal From to
Number Loan # Balance Payment Payment Payment Rate Amount Payment Payment tance Balance Borrower Date
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
TOTAL REMITTANCE
===================================================================================================================
EXHIBIT B-1(b)
[INTENTIONALLY OMITTED]
EXHIBIT B-1(c)
TAX MONITORING REPORT
DATED AS OF ______
FOR THE ____ QUARTER ____
Sub Servicer:
------------- -------- -------- -------- ------ --------- -------- ---------- ----------
Master Sub-
Servicer Loan Servicer Borrower Property Parcel Taxing Base Tax Delinquent
# Loan # Name Address Number Authority Amount * Date* Comments *
------------- -------- -------- -------- ------ --------- -------- ---------- ----------
EXHIBIT B-1(d)
Quarterly Insurance Monitoring Report and Certification
INSURANCE MONITORING REPORT
Dated as of
For the ____ Quarter _____
Sub-Servicer:
-------- -------- -------- -------- ---------- -------- ------ ------- ------- -------- --------- -----
Loss
Payee
Master Sub- Reflects Meets Ins
Servicer Servicer Borrower Property Expiration Type of Policy Premium Trust Rating
Loan # Loan # Name Type Date Coverage Number Amount Carrier (Y or N) (Y or N) Agent
-------- -------- -------- -------- ---------- -------- ------ ------- ------- -------- --------- -----
-------- --------- ------ ------- ---------- -------
Master Agency
Servicer City & Policy Loan Coverage
Loan # State Zip Amount Balance Difference Comment
-------- --------- ------ ------- ---------- -------
Completed By: _____________________________ Date: _____________________________
Title: _____________________________
EXHIBIT B-1(e)
Quarterly UCC Monitoring Report and Certification
UCC MONITORING REPORT
DATED AS OF _____
FOR THE _____ QUARTER ____
Sub-Servicer: Principal Global
--------------------------------------------------------------------------------
Master Sub- Jurisdiction Current Next
Servicer Servicer Borrower (Secretary of Original Filing Filing
Loan # Loan # Name State or County) Filing Date Number Date
--------------------------------------------------------------------------------
EXHIBIT B-1(f)
[INTENTIONALLY OMITTED]
EXHIBIT B-2
OVERVIEW OF METHODOLOGY OF ALLOCATION OF RESPONSIBILITY ON POST CLOSING REQUESTS
Exhibit B-2(a): Overview of Methodology of Allocation of Responsibility on Post
Closing Requests
Exhibit B-2(b): Chart Showing Classification of Post Closing Requests
Exhibit B-2(c): Process for Handling Post Closing Requests Upon Classification
EXHIBIT B-2(a)
OVERVIEW OF METHODOLOGY OF ALLOCATION OF
RESPONSIBILITY ON POST CLOSING REQUESTS
When Primary Servicer receives a request from a Mortgagor or other
obligor under the Mortgage Loan or A/B Mortgage Loan, as applicable, for action
("Post Closing Request") on its related Mortgage Loan or A/B Mortgage Loan,
Primary Servicer shall classify each Post Closing Request into one of the
following three (3) categories:
a. Post Closing Requests over which Primary Servicer shall have
decision making authority to analyze, consent to, approve and
process such requests, subject to consent rights in certain
circumstances set forth in Exhibit B-2(c) below and, where
applicable, Deemed Category 1 Requests ("Category 1 Requests");
b. Post Closing Requests in which Primary Servicer shall gather
information from Mortgagor and shall deliver such information
together with a written analysis and recommendation for the consent
and approval of such requests to the Capmark Master Servicer or
Special Servicer, as applicable; other than Deemed Category 1
Requests ("Category 2 Requests"); and
c. Post Closing Requests in which Primary Servicer will have no
involvement but will refer the request to the Special Servicer
("Category 3 Requests").
The attached chart details how a Post Closing Request will be classified
into one of the three (3) categories specified above and the materials that
follow detail how each Post Closing Request will be handled after
classification.
The objective is to process each Post Closing Request in accordance with
the Servicing Standard, the terms of this Agreement, the Pooling and Servicing
Agreement and with respect to any A/B Mortgage Loan, its applicable A/B
Intercreditor Agreement, the REMIC Provisions, while providing responsive
service to Mortgagors.
The attached chart does not address Payment and Collection Description,
Payment and Collection Reporting or Property Inspection Description, which is
covered elsewhere in this Agreement.
EXHIBIT B-2(b)
CHART SHOWING CLASSIFICATION OF POST CLOSING REQUESTS
===========================================================================================================================
Category When Applicable Examples Allocation of Fees
---------------------------------------------------------------------------------------------------------------------------
1 Category 1 Post Closing Request is Transfer rights contemplated Primary Servicer collects
Requests (other than either (a) specifically in Mortgage Loan Documents entire administrative or
Deemed Category 1 authorized in the related (including without limitation processing fee (including
Requests) Mortgage Loan Documents assignment and assumption without limitation
(as defined in Exhibit rights); partial releases defeasance fees), legal
B-2(c)(A.1(b)), either contemplated in Mortgage Loan fees and out-of-pocket
expressly as a matter of Documents ; easements expenses and 80% of any
right in favor of the contemplated in Mortgage Loan additional fees or
Mortgagor or upon the Documents ; evaluation of portions of fees
satisfaction of certain alterations under specified (including without
specified conditions threshold; administer, monitor limitation transfer fees)
(including the exercise of and release of reserve or payable to Capmark Master
any specified standard of escrow amounts in accordance Servicer under Pooling and
consent or judgment within with reserve or escrow Servicing Agreement (i.e.
such conditions subject to agreements; approval of leases transfer fee). Other 20%
the terms of this below threshold specified in of such additional fees
Agreement); or (b) seeks Mortgage Loan Documents ; are payable to Capmark
the approval of the additional lien, monetary Master Servicer. Special
related Mortgagee under encumbrance or mezzanine Servicer would receive any
the related Mortgage Loan financing placed on Mortgaged portion of fees due it
Documents for a Lease Property that is specifically under the Pooling and
and/or the issuance of an contemplated in Mortgage Loan Servicing Agreement.
SNDA for a Lease. Documents under specified Capmark Master Servicer
conditions; or process of may also collect its
defeasing a Mortgage Loan out-of-pocket expenses
(except defeasance of a which it shall itemize in
Specially Serviced Mortgage reasonable detail.(1)
Loans which shall not be the
responsibility of the Primary
Servicer) and servicing of
Mortgage Loans and A/B
Mortgage Loans that have been
defeased; approval of a Lease
requiring such approval of
Mortgagee under the Mortgage
Loan Documents ; or issuance
of an SNDA.
---------------------------------------------------------------------------------------------------------------------------
2 Category 2 Post Closing Request Consent to easement not For all Mortgage Loans,
Requests for all (other than Category 3 contemplated in Mortgage Loan other than A/B Mortgage
Mortgage Loans (other Request) is (a) not Documents; partial releases Loans: Primary Servicer
than A/B Mortgage specifically authorized or not specifically contemplated entitled to one hundred
Loans) and Deemed is prohibited or not in Mortgage Loan Documents; or percent (100%) of
Category 1 Requests addressed in the Mortgage subordinate or mezzanine administrative or
Loan Documents ; and (b) financing not specifically processing fee. Additional
not seeking approval of a contemplated in Mortgage Loan fees are payable to Capmark
Lease requiring such Documents. Master Servicer and/or
approval of Mortgagee Special Servicer as
under the related Mortgage specified in Pooling and
Loan Documents or issuance Servicing Agreement.
of an SNDA. Capmark Master Servicer may
also collect its
out-of-pocket expenses.(1)
For all A/B Mortgage Loans:
Same allocation of fees as
Category 1 Requests.
---------------------------------------------------------------------------------------------------------------------------
3 Category 3 Post Closing Requests to Changes to maturity date, Primary Servicer not
Requests Money Terms, Defaulted interest rate, principal entitled to fee. Capmark
Mortgage Loans or Mortgage balance, amortization term, Master Servicer or Special
Loans upon which a payment amount or frequency; Servicer is entitled to
Servicing Transfer Event or any actions to loan in fees as provided in the
has occurred. default. Pooling and Servicing
Agreement.(1)
---------------------------------------------------------------------------------------------------------------------------
----------
(1) No reference is made in this chart to the Aggregate Servicing Fee which
shall be collected and governed in accordance with the terms of Sections 2.1,
2.3, 6.3 and 6.4 of this Agreement.
EXHIBIT B-2(c)
PROCESS FOR HANDLING POST CLOSING REQUESTS UPON CLASSIFICATION
I. PROCESS FOR DISPOSITION OF POST CLOSING REQUESTS ONCE CLASSIFICATION IS MADE.
Upon classification of a Post Closing Request into one of the three (3)
categories enumerated above, Primary Servicer shall process the Post Closing
Request as follows:
(A) Category 1 Requests and Deemed Category 1 Requests:
(i) If Primary Servicer classifies a Post Closing Request as a Category
1 Request or Deemed Category 1 Request, it shall promptly (but in no event
more than five (5) Business Days after receiving such request) notify Capmark
Master Servicer of (a) such request; (b) Primary Servicer's classification of
the Post Closing Request as a Category 1 Request or Deemed Category 1
Request; and (c) Primary Servicer's Materiality Determination regarding any
Category 1 Consent Aspect involved in such request. Notwithstanding the
foregoing, as a result of the quarterly reconciliation of reserve accounts
that Primary Servicer provides to Capmark Master Servicer under this
Agreement, Primary Servicer shall have no obligation (a) except as required
under Section 8.18(d) of the Pooling and Servicing Agreement, to notify or
seek the consent of Capmark Master Servicer or Special Servicer (as
applicable) of any disbursement made from an escrow or reserve account
pursuant to and in accordance with the terms of such agreement governing such
reserve or escrow or (b) to seek consent of Capmark Master Servicer to extend
(1) the time available to a Mortgagor to complete repairs, replacements or
improvements pursuant to an escrow or reserve agreement or (2) the expiration
date of any letters of credit associated with such escrow or reserve, as long
as (i) Primary Servicer promptly notifies Capmark Master Servicer in writing
of such extension; (ii) the amount being held pursuant to the applicable
escrow or reserve agreement at the time of the proposed extension is less
than $1,000,000.00; (iii) the length of such extension when added to all
other extensions granted after the Closing Date does not exceed one hundred
eighty (180) days; and (iv) any such extension is in accordance with the
terms of this Agreement (including without limitation the Servicing Standard)
and the Pooling and Servicing Agreement and with respect to an A/B Mortgage
Loan, the applicable A/B Intercreditor Agreement.
(ii) Primary Servicer shall evaluate the Category 1 Request or Deemed
Category 1 Request and process such request to meet the requirements set
forth in the Mortgage Loan Documents for the applicable Mortgage Loan
("Mortgage Loan Documents") in a manner that complies with the terms of this
Agreement and the Pooling and Servicing Agreement and with respect to an A/B
Mortgage Loan, the applicable A/B Intercreditor Agreement. Such evaluation
and processing may commence, and continue but may not be completed prior to
Primary Servicer's notice to Capmark Master Servicer of the Category 1
Request or Deemed Category 1 Request. Primary Servicer shall draft, or cause
to be drafted, all documents necessary or appropriate to effect the Category
1 Request or Deemed Category 1 Request in accordance with the terms of the
Mortgage Loan Documents, this Agreement and the Pooling and Servicing
Agreement with respect to an A/B Mortgage Loan, the applicable A/B
Intercreditor Agreement.
(iii) Notwithstanding the foregoing, the following additional
requirements shall apply to particular types or aspects of Category 1
Requests:
(a) If a Mortgagor requests to defease a Mortgage Loan or A/B
Mortgage Loan (other than a Specially Serviced Mortgage Loan) and the
Mortgage Loan Documents for such Mortgage Loan or A/B Mortgage Loan
expressly provide for a defeasance, Primary Servicer shall treat such
request as a Category 1 Request but shall, in addition to the other
provisions of this Section I of Exhibit B-2(c), seek the prior written
consent of Capmark Master Servicer prior to consenting to such
defeasance, which consent shall not be withheld or delayed
unreasonably when Primary Servicer submits to Capmark Master Servicer
the items substantially as set forth on Appendix 1 of this Agreement
relating to such defeasance, and any such decision of Capmark Master
Servicer shall be in accordance with the terms of the Mortgage Loan
Documents and the Servicing Standard. Failure of the Capmark Master
Servicer to notify the Primary Servicer in writing of Capmark Master
Servicer's determination to grant or withhold such consent, within
five (5) Business Days following the Primary Servicer's delivery of
the request for defeasance described above and the relevant
information collected on such defeasance, shall be deemed to
constitute a grant of such consent.
(b) If a Mortgagor requests consent to transfer the related
Mortgaged Property and assign the related Mortgage Loan or A/B
Mortgage Loan (other than a Specially Serviced Mortgage Loan) to
another Person who shall assume the Mortgage Loan or A/B Mortgage Loan
and the Mortgage Loan Documents expressly permit such assignment and
assumption, subject to any conditions set forth in the Mortgage Loan
Documents , Primary Servicer may treat such request as a Category 1
Request but shall, in addition to the other provisions of this Section
I of Exhibit B-2(c), seek the prior written consent of Special
Servicer prior to consenting to such assignment and assumption in
accordance with the terms of Section 8.7 of the Pooling and Servicing
Agreement (subject to any time periods applicable to Primary Servicer
or Special Servicer for the giving, granting or deemed granting of
such consent contained in the Pooling and Servicing Agreement) by
submitting to Special Servicer the items substantially as set forth on
Appendix 2 of this Agreement relating to such assignment and
assumption. For the purpose of the foregoing sentence, the term
"expressly permits" shall have the meaning assigned to it in Section
8.7 of the Pooling and Servicing Agreement.
(c) If a Mortgagor requests consent to place an additional lien,
monetary encumbrance or mezzanine financing on the related Mortgaged
Property and the Mortgage Loan Documents expressly permit such
additional lien, monetary encumbrance or mezzanine financing, subject
to any conditions set forth in the Mortgage Loan Documents , Primary
Servicer may treat such request as a Category 1 Request but shall, in
addition to the other provisions of this Section I of Exhibit B-2(c),
seek the prior written consent of Special Servicer prior to consenting
to such additional lien, monetary encumbrance or mezzanine financing
in accordance with the terms of Section 8.7 of the Pooling and
Servicing Agreement (subject to any time periods applicable to Primary
Servicer or Special Servicer for the giving, granting or deemed
granting of such consent contained in the Pooling and Servicing
Agreement) by submitting to Special Servicer the items substantially
as set forth on Appendix 3 of this Agreement relating to such
additional lien, monetary encumbrance or mezzanine financing. For the
purpose of the foregoing sentence, the term "expressly permits" shall
have the meaning assigned to it in Section 8.7 of the Pooling and
Servicing Agreement.
(d) If a Mortgagor requests consent to enter into a Lease on the
related Mortgaged Property (and/or the associated issuance of an SNDA
for such Lease), which Lease (a) requires the consent of the Mortgagee
under the related Mortgage Loan Documents and (b) qualifies as a
Significant Lease, Primary Servicer may treat such request as a
Category 1 Request but shall, in addition to the other provisions of
this Section I of Exhibit B-2(c), seek the prior written consent of
Capmark Master Servicer, which consent shall not be withheld or
delayed unreasonably, prior to consenting to or disapproving of such
Significant Lease (and/or the related SNDA) by submitting to Capmark
Master Servicer the items substantially as set forth on Appendix 4 of
this Agreement relating to such Significant Lease (and/or related
SNDA). Failure of the Capmark Master Servicer to notify the Primary
Servicer in writing of Capmark Master Servicer's determination to
grant or withhold such consent within ten (10) Business Days following
the Primary Servicer's delivery of the request for consent to the
Lease, shall be deemed to constitute a grant of such consent.
(e) If Primary Servicer makes a Materiality Determination that a
Category 1 Consent Aspect is material, then Primary Servicer shall
treat such request as a Category 1 Request, but shall, in addition to
the other provisions of this Section A.1 of this Exhibit B-2(c), seek
the prior written consent of Special Servicer prior to consenting to
the applicable Category 1 Request, which consent shall not be withheld
or delayed unreasonably, and any such decision of Special Servicer
shall relate only to the Category 1 Consent Aspect and shall be in
accordance with the terms of the Mortgage Loan Documents and the
Servicing Standard. Failure of the Special Servicer to notify the
Primary Servicer in writing of Special Servicer's determination to
grant or withhold such consent, within five (5) Business Days
following the Primary Servicer's delivery of the request for consent
to the Category 1 Consent Aspect, shall be deemed to constitute a
grant of such consent.
(iv) Upon conclusion of the negotiations of the documentation for the
Category 1 Request or Deemed Category 1 Request, Primary Servicer may
execute and deliver the operative documents to be executed to effect the
Category 1 Request and take the other actions necessary or appropriate to
conclude such request, in each case in accordance with the terms of this
Agreement and the Pooling and Servicing Agreement and with respect to an A/B
Mortgage Loan, the related A/B Intercreditor Agreement.
(v) Concurrently with the execution of this Agreement, Capmark Master
Servicer shall provide to Primary Servicer a counterpart original of the
Power of Attorney executed by the IQ16 Trust in favor of the Capmark Master
Servicer and shall execute and deliver to Primary Servicer a Power of
Attorney attached to this Agreement as Exhibit C. Primary Servicer shall
promptly notify Capmark Master Servicer of the execution and delivery of any
document on behalf of the Capmark Master Servicer and Trustee under such
Power of Attorney ("POA Notice").
(vi) Upon the request of Primary Servicer, Capmark Master Servicer
shall execute and deliver the documents necessary or appropriate to effect a
Category 1 Request or Deemed Category 1 Request. Such request shall not
relieve Primary Servicer of its obligations under this Agreement regarding a
Category 1 Request or Deemed Category 1 Request, including without limitation
its obligation to evaluate and process such request in accordance with this
Agreement and the Pooling and Servicing Agreement and with respect to an A/B
Mortgage Loan, the related A/B Intercreditor Agreement and any
indemnification obligation of Primary Servicer.
(vii) Upon completion of each Category 1 Request or Deemed Category 1
Request, Primary Servicer shall promptly (but in no event more than five (5)
Business Days after concluding such request) notify Capmark Master Servicer
and Special Servicer (if its consent was required) and shall accompany such
notice with a brief summary of the Category 1 Request or Deemed Category 1
Request, a brief summary of Primary Servicer's analysis and decision
regarding such request, a POA Notice (if required) and a counterpart
original or copy of the operative documents executed or received to effect
the Category 1 Request or Deemed Category 1 Request.
(viii) Notwithstanding the foregoing with the consent of Capmark Master
Servicer, Primary Servicer may elect to classify and treat a Post Closing
Request that otherwise qualifies as a Category 1 Request or Deemed Category
1 Request, as a Category 2 Request instead. In such case, Primary Servicer
shall adhere to the provisions of this Agreement regarding Category 2
Requests or Deemed Category 1 Requests, and all aspects of such request
(including without limitation the allocation of fees) shall be governed by
the terms of this Agreement covering Category 2 Requests. Primary Servicer's
decision in any one instance to treat a Post Closing Request that otherwise
qualifies as a Category 1 Request or Deemed Category 1 Request, as a
Category 2 Request instead, shall not compromise or affect its right on any
other occasion to treat a similar request as a Category 1 Request or Deemed
Category 1 Request.
(ix) Notwithstanding anything to the contrary in this Section 1, if a
Category 1 Request or Deemed Category 1 Request involves an action requiring
the consent of Special Servicer under Section 8.18(d) of the Pooling and
Servicing Agreement, Primary Servicer shall not be permitted to take any
such actions without the consent of Special Servicer in accordance with such
Section 8.18(d). For any action relating to a Mortgage Loan or an A/B
Mortgage Loan requiring the consent of Special Servicer under Section
8.18(d) of the Pooling and Servicing Agreement, Primary Servicer shall have
the responsibility to seek the consent of Special Servicer in accordance
with such section. The foregoing conditions and requirements shall be in
addition to the other conditions and requirements for Category 1 Requests or
Deemed Category 1 Requests as set forth above.
(B) Category 2 Requests (other than Deemed Category 1 Requests):
(i) If Primary Servicer classifies a Post Closing Request as a Category
2 Request, it shall promptly (but in no event more than five (5) Business
Days after Primary Servicer's receiving such request) notify Capmark Master
Servicer of receiving such request, of the type of request and of Primary
Servicer's classification of the Post Closing Request as a Category 2
Request. As part of such notice, Primary Servicer shall include the
following:
(a) If such type of request has not previously been the subject of
a Category 2 Request or a Requirements List (as defined below) has not
previously been provided to Primary Servicer, then Primary Servicer
shall request from Capmark Master Servicer a detailed list of the
requirements to be satisfied for such request (the "Requirements
List"). Capmark Master Servicer shall promptly (but in no event more
than five (5) Business Days after receiving notification of such
request) provide to Primary Servicer a Requirements List for such
request.
(b) If the type of Category 2 Request has previously been the
subject of a Post Closing Request, then Primary Servicer shall submit
the existing Requirements List to Capmark Master Servicer. Primary
Servicer may use such Requirements List for such request unless
Capmark Master Servicer provides to Primary Servicer a replacement
Requirements List within five (5) Business Days of such notice.
(ii) A Requirements List (i) shall in no event be more burdensome than
that required by Capmark Master Servicer of other loans in the IQ16 Trust
for similar Post Closing Requests; (ii) shall not require Primary Servicer
to incur additional third party costs or expenses; and (iii) shall require
the gathering, collection and assembling of information only and not the
preparation, evaluation, analysis of information or a recommendation
regarding the Post Closing Request.
(iii) Primary Servicer shall then use diligent efforts to collect and
assemble the items on the applicable Requirements List. Upon such collection
and assembly, Primary Servicer shall provide to Capmark Master Servicer all
of the assembled items, a list of the items collected from the Requirements
List, a list of any items not collected, any reasons why such items were not
collected, a written analysis of the Category 2 Request in light of the
items collected in a form reasonably satisfactory to Capmark Master
Servicer, a recommendation whether to approve or disapprove such request and
the appropriate division of the applicable fees in accordance with the terms
of this Agreement and the Pooling and Servicing Agreement.
(iv) Capmark Master Servicer shall use its reasonable best efforts to
notify Primary Servicer with a consent or disapproval of the Category 2
Request within ten (10) Business Days of receiving such assembled items,
analysis and recommendation. If Capmark Master Servicer disapproves such
request, it shall provide Primary Servicer the reasons for such disapproval.
If Capmark Master Servicer approves such request, Primary Servicer shall
promptly process the Category 2 Request in a manner that complies with the
terms of this Agreement and the Pooling and Servicing Agreement and with
respect to an A/B Mortgage Loan, the related A/B Intercreditor Agreement.
Primary Servicer shall draft, or cause to be drafted, all documents
necessary to effect the Category 2 Request in accordance with the terms of
the consent, the Mortgage Loan Documents , this Agreement and the Pooling
and Servicing Agreement, and with respect to an A/B Mortgage Loan, the
related A/B Intercreditor Agreement. Primary Servicer shall deal directly
with the applicable Mortgagor regarding a Category 2 Request after Primary
Servicer submits the items on the applicable Requirements List.
(v) Upon conclusion of the negotiations of the documentation for the
Category 2 Request for which Capmark Master Servicer has granted its
consent, Primary Servicer may execute and deliver the operative documents to
be executed to effect the Category 2 Request and take the other actions
necessary or appropriate to conclude such request, in each case in
accordance with the terms of this Agreement and the Pooling and Servicing
Agreement and with respect to an A/B Mortgage Loan, the related A/B
Intercreditor Agreement.
(vi) Upon the request of Primary Servicer, Capmark Master Servicer
shall execute and deliver the documents necessary or appropriate to effect a
Category 2 Request, which documents shall be prepared by the Primary
Servicer. Such request shall not relieve Primary Servicer of its obligations
under this Agreement regarding a Category 2 Request, including without
limitation its obligation to evaluate and process such request in accordance
with this Agreement and the Pooling and Servicing Agreement and with respect
to an A/B Mortgage Loan, the related A/B Intercreditor Agreement and any
indemnification obligation of Primary Servicer.
(vii) Upon completion of each Category 2 Request, Primary Servicer
shall promptly (but in no event more than ten (10) Business Days after
concluding such request) notify Capmark Master Servicer and shall accompany
such notice with a copy of the operative documents executed or received to
effect the Category 2 Request.
(viii) Notwithstanding anything to the contrary in this Section 2, if a
Category 2 Request involves an action requiring the consent of Special
Servicer under Section 8.18(d) of the Pooling and Servicing Agreement,
Primary Servicer shall not be permitted to take any such action without the
consent of Special Servicer in accordance with such Section 8.18(d). For any
action relating to a Mortgage Loan or an A/B Mortgage Loan requiring the
consent of Special Servicer under Section 8.18(d) of the Pooling and
Servicing Agreement, Primary Servicer shall have the responsibility to seek
the consent of Special Servicer in accordance with such section. The
foregoing conditions and requirements shall be in addition to the other
conditions and requirements for Category 2 Requests as set forth above.
(C) Category 3 Requests:
(i) If Primary Servicer classifies a Post Closing Request as a Category
3 Request, it shall promptly (but in no event more than five (5) Business
Days after receiving such request) notify Capmark Master Servicer and Special
Servicer of receiving such request and of Primary Servicer's classification
of the Post Closing Request as a Category 3 Request and shall refer such
Category 3 Request to the Special Servicer for handling in accordance with
the Pooling and Servicing Agreement.
(ii) Upon such referral, Primary Servicer shall notify the applicable
Mortgagor of such referral and shall direct the Mortgagor that all further
correspondence and interaction regarding the applicable Category 3 Request
shall be directed to and through the Special Servicer (unless the Special
Servicer and Capmark Master Servicer shall otherwise direct the Primary
Servicer). Primary Servicer shall forward all correspondence and other
information regarding such request in its possession to Special Servicer.
II. DISPUTE OF CLASSIFICATION.
(A) Notification of Dispute: If either Capmark Master Servicer or Special
Servicer disputes the classification of Primary Servicer of any Post Closing
Request (for purposes of this Section B, the term "classification" shall
include a Materiality Determination of Primary Servicer regarding a Category
1 Consent Aspect with respect to such Post Closing Request), then Capmark
Master Servicer or Special Servicer, as applicable, shall notify Primary
Servicer of such dispute promptly (but in no event more than five (5)
Business Days from Primary Servicer's notice of such classification) in
writing and the specific reasons for such dispute. The parties shall then
work in good faith for a period not more than five (5) Business Days to
resolve the classification of the Post Closing Request. Primary Servicer's
classification of a Post Closing Request shall govern the handling of such
request absent Primary Servicer's receipt of notice of such dispute within
the specified time period but shall not diminish the obligation of Primary
Servicer to classify Post Closing Requests in accordance with this Agreement
and to handle such requests in accordance with this Agreement and the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan,
the related A/B Intercreditor Agreement.
(B) Resolution of Dispute in Absence of Agreement: If after such good
faith efforts to resolve such classification dispute the parties cannot
agree to a classification, then the following shall apply:
(i) for Mortgage Loans or A/B Mortgage Loans that individually, or
together with all other Mortgage Loans and A/B Mortgage Loans that have the
same or an affiliated Mortgagor or that are cross-collateralized with such
Mortgage Loans or A/B Mortgage Loans have a principal balance on the Cut-Off
Date that is in excess of two percent (2%) of the then Aggregate Principal
Balance, then the good faith classification of the Capmark Master Servicer
or Special Servicer, as applicable, shall govern;
(ii) for Mortgage Loans that individually, or together with all other
Mortgage Loans and A/B Mortgage Loans that have the same or an affiliated
Mortgagor or that are cross-collateralized with such Mortgage Loans or A/B
Mortgage Loans have a principal balance on the Cut-Off Date that is equal to
or less than two percent (2%) of the then Aggregate Principal Balance, then
the good faith classification of the Primary Servicer shall govern; provided
that, in no event, shall Primary Servicer's classification govern if such
classification would, in the sole judgment of Capmark Master Servicer or
Special Servicer (as applicable), conflict with any provision of the Pooling
and Servicing Agreement or result in a default by Capmark Master Servicer or
Special Servicer under the Pooling and Servicing Agreement.
(C) Processing of a Post Closing Request During a Dispute: During a
pending dispute over classification of a Post Closing Request, the parties
shall continue to cooperate to process such request in accordance with
Primary Servicer's initial classification until a resolution is achieved or,
failing resolution, the Post Closing Request is classified in accordance
with the terms of Section (II)(B) of this Exhibit B-2(c). Capmark Master
Servicer and Primary Servicer acknowledge that it is a goal of both parties
not to unduly burden or delay the processing of a Post Closing Request even
though a dispute about classification of such request may exist but in any
event the processing of a Post Closing Request must be accomplished in a
manner consistent and in compliance with the Pooling and Servicing Agreement
and with respect to an A/B Mortgage Loan, the related A/B Intercreditor
Agreement.
EXHIBIT B-3
FORMS OF PROPERTY INSPECTION REPORTS
See CMSA Website
EXHIBIT B-4
TASK DESCRIPTION
CAPMARK MASTER SERVICER/PRIMARY SERVICER TASK LIST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-IQ16
Note: Some listed tasks designate more than one party to perform that function
by placing an "X" in more than one column. In these instances, the parties
shall follow any specific guidance about the allocation of
responsibilities in completing the task found in the terms of this
Agreement (including Exhibits B-2 and B-3). In the absence of specific
allocation of obligations in this Agreement, the parties shall work in
good faith to allocate responsibilities in a fair and equitable manner in
accordance with this Agreement and the Pooling and Servicing Agreement.
-----------------------------------------------------------------------------------------------------------------------------
CAPMARK MASTER PRIMARY
SERVICER SERVICER SPECIAL SERVICER TRUSTEE
-----------------------------------------------------------------------------------------------------------------------------
1. Asset Files
Original credit file management X
Original collateral file (security) X
Authorized parties list for request for release of X X
collateral from Trustee
Establish servicing files criteria X X
Provide access to servicing files and copies of X
servicing files or of specific docs upon request to
the Capmark Master Servicer
Request delivery of files from Trustee upon request X
and certification of Primary Servicer
2. Property Taxes
Preparation and delivery of quarterly tax delinquency X
reports
Monitoring of tax status - Loans with/without escrows X
Recommendation of payment of taxes - Loans X
with/without escrows
Notification of advance requirement three (3) Business X
Days prior to advance being required
Payment of taxes - with sufficient escrows X
Payment of taxes - with escrow shortfall X
3. Property Insurance
Preparation and delivery of quarterly insurance X
tickler reports
Monitoring of insurance status - Loans with/without X
escrows
Ensure insurance carrier meets Pooling and Servicing X
Agreement qualifications
Ensure insurance in favor of the Capmark Master X
Servicer on behalf of the Trustee
Recommendation of payment or force placement of X
insurance with/without escrow
Notification of advance requirement or force placement X
of insurance three (3) Business Days prior to advance
being required
Payment of insurance - with sufficient escrows X
Payment of insurance or force placement - with escrow X
shortfall
Category 1 Requests and Deemed Category 1
Requests
Preparation and presentment of claims X
Collection of insurance proceeds X
Category 2 Requests
Preparation and presentment of claims X
Collection of insurance proceeds X
4. UCC Continuation Filings
Preparation and delivery of quarterly UCC tickler X
report
Maintain tickler system of refiling the dates on all X
Loans
File UCC Continuation Statements X
Pay recording fees X
Monitor tickler system X
5. Collection/Deposit/Distribution of P&I payments
and Principal Prepayments
Collection and deposit of loan P&I payments X
Remittance of available Primary Servicer P&I payments X
to Capmark Master Servicer and B Note holders, as
applicable (net of Aggregate Servicing Fee and other
fees payable to the Primary Servicer by the B Note
holders)
Provide Collection Reports to Capmark Master Servicer X
Distribution of P&I payments to the Trustee X
Distribution of Special Servicer compensation X
Approval of Prepayment Premiums X
6. Collection/Deposit/Disbursement of Reserves
Collection and deposit of reserves X
Disbursement of reserves X
7. Customer Billing, Collection and Customer Service
Contact delinquent borrowers by phone three (3) days X
after delinquent date
Send thirty (30) day delinquent notices. X
Send notice of balloon payment to each Mortgagor one X
year, 180, and 90 days prior to the related maturity
date
Provide copy of Balloon Mortgage Loan notice to X
Capmark Master Servicer
8. Escrows
Setup and monitor Escrow Accounts including escrow X
analysis
Pay borrower investment income required X
Prepare annual escrow analysis X
9. Loan payment history/calculation
Maintain loan payment history X
Create payoff/reinstatement statements and telecopy X
to Capmark Master Servicer
Approve payoff calculations and telecopy approval to X
Primary Servicer within five (5) Business Days
10. Monitoring of Financial and Legal Covenants
Collect quarterly and annual operating statements, X
budgets, rent rolls and borrower financial
statements, as applicable.
Deliver Operating Statement Analysis Report, CMSA X
Financial File and NOI Adjustment Worksheet in
accordance with Section 2.1(c)(viii) of this
Agreement.
Deliver one (1) copy of quarterly and annual X
operating statements, budgets, rent rolls and
borrower financial statement, as applicable, within
thirty (30) days of Primary Servicer's receipt
Complete CMSA Loan Setup File for Mortgage Loans X X
Complete CMSA Loan Periodic Update File for Mortgage X
Loans
Complete and deliver CMSA Property File for Mortgage X
Loans
Complete and deliver quarterly Operating Statement X X
Analysis Report and CMSA Quarterly Financial File in
accordance with Section 2.1(c)(viii) of this
Agreement.
Cash account Reconciliations - Copies of monthly bank X
statements for all deposit, escrow and reserve
accounts
CMSA Supplemental Reports
Complete Servicer Watch List X
Complete Comparative Financial Status Report X
Delinquent Loan Status Report X
REO Status Report X
Historical Loan Modification and Corrected Loan X
Report
Historical Liquidation Report X
Loan Level Reserve/LOC Report X
11. Advancing
Determination of Non-Recoverability X
12. Borrower Inquiries/Performing Loans
Performing Loans - respond to routine billing X
questions
Category 1 Requests and Deemed Category 1 Requests
Assumptions & Due on sale:
Borrower contact and data gathering X
Underwriting and analysis of request X
Approval of assumption X
Consent to assumption X
Close assumption X
Category 2 Requests
Assumptions & Due on sale:
Initial Borrower contact and data gathering X
Underwriting and analysis X X
Approval of assumption X X
Consent to assumption X
Close assumption (directly with Borrower) X
Category 1 Requests and Deemed Category 1 Requests
Additional Liens, Monetary Encumbrances or
Mezzanine Financing:
Borrower contact and data gathering X
Underwriting and analysis of request X
Approval of additional lien, monetary encumbrance X
or mezzanine financing
Consent to additional lien, monetary encumbrance X
or mezzanine financing
Close additional lien, monetary encumbrance or X
mezzanine financing
Category 2 Requests
Additional Liens, Monetary Encumbrances or
Mezzanine Financing:
Initial Borrower contact and data gathering X
Underwriting and analysis X X
Approval of additional lien, monetary encumbrance X X
or mezzanine financing
Consent to additional lien, monetary encumbrance X
or mezzanine financing
Close additional lien, monetary encumbrance or X
mezzanine financing (directly with Borrower)
13. Modifications (Non-Money Terms), Waivers, Consents
and Extensions up to sixty (60) days (not otherwise
provided in this Agreement):
14. Initial Borrower contact and data gathering X
15. Underwriting and analysis X
16. Approval of modification and extensions up to X
sixty (60) days (Category 1 Requests and Deemed
Category 1 Requests)
17. Approval of modification and extensions up to X
sixty (60) days (Category 2 Request)
18. Consent to modification and waivers and other X
consents (not otherwise provided in this Agreement)
19. Closing Documents and Closing X
20. Modification (Money Terms): X
21. Extensions of Maturity Date (more than sixty (60) X
days):
22. Response to request for Discounted Payoffs, X
Workouts, Restructures, Forbearances and Casualties
23. Condemnation (only with respect to Specially X X X
Serviced Mortgage Loans the Special Servicer will
perform such functions)
24. Monthly Reporting (Hardcopy & Electronic mail)
25. Day One Report X
26. Delinquency and past due reporting on all Loans X
27. Deliver on April 25, July 25, October 25 and X
January 25 of each year a Quarterly Servicing
Accounts Reconciliation Certification in the form of
Exhibit D
28. Category 1 Requests and Deemed Category 1 Requests
Release of Collateral
Determination if collateral should be released X
Consent to release collateral X
Request delivery of files from Trustee upon Primary X
Servicer request and certification
Preparation and recordation of release deeds all X
Loans (full and partial)
29. Category 2 Requests
Release of Collateral
Initial Borrower contact and data gathering X
Underwriting and analysis X
Determination if collateral should be released X
Consent to release collateral X
Request delivery of files from Trustee X
Preparation and recordation of release deeds all X
Loans (full and partial)
30. Property Annual Inspections
Conduct site inspection per Pooling and Servicing X
Agreement requirement
Provide 3 copies of site inspection reports to the X
Capmark Master Servicer within 30 days of inspection
but not later than December 15 of each year beginning
in 2008
31. Preparation of servicing transfer letters X
32. Preparation of IRS Reporting (1098s and 1099s or X
other tax reporting requirements) and delivery of
copies to the Capmark Master Servicer by January 31 of
each year
33. Provide Primary Servicer Form 8-K Information X
Reports, Primary Servicer Form 10-D Information
Reports and Primary Servicer Form 10-K Information
Reports at the times and in the manner set forth in
Section 5.13(c) of this Agreement
34. Provide annual statement of compliance at the X
times and in the manner set forth in Section 5.13(c)
of this Agreement
35. Provide either (a) a report regarding Primary X
Servicer's assessment of compliance with servicing
criteria and a report by a registered public
accounting firm that attests to and reports on such
assessment report or (b) a report of a firm of
independent public accounts based on USAP-compliant
examinations, as the case may be, at the times, in
the manner and as specified in Section 5.13(c) of
this Agreement.
36. Provide annual Xxxxxxxx-Xxxxx back-up X
certification at the times and in the manner set
forth in Section 5.13(c)(v) of this Agreement
37. Compensation
Primary Servicer Fee and other fees payable to the X
Primary Servicer by the B Note holders
Investment earnings on Primary Servicer Collection X
Account
Investment earnings on tax & insurance reserves not X
payable to borrower
Investment earnings on reserve accounts not payable X
to borrower
Late charges to the extent collected from borrower X
(offsets advance interest per Pooling and Servicing
Agreement)
38. Defeasance
Coordinate, analyze, approve, and process defeasance X
request
Consent to defeasance X
Service Defeasance Loans X
Retain all fees associated with Defeasance Loans X
EXHIBIT C
FORM OF POWER OF ATTORNEY FROM CAPMARK MASTER SERVICER
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
Attention: Commercial Mortgage Pass-Through Certificates Series 2007-IQ16
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(CAPMARK MASTER SERVICER)
CAPMARK FINANCE, INC, acting solely in its capacity as Capmark Master
Servicer ("Capmark Master Servicer"), under the Pooling and Servicing Agreement
dated as of November 1, 2007 (the "Pooling and Servicing Agreement") and a
Primary Servicing Agreement dated as of November 1, 2007 (the "Primary
Servicing Agreement"), in each case relating to the Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16, does hereby nominate, constitute
and appoint Principal Global Investors, LLC ("PGI"), as Primary Servicer under
the Primary Servicing Agreement ("Primary Servicing Agreement"), as its true
and lawful attorney-in-fact for it and in its name, place, stead and for its
use and benefit:
To perform any and all acts which may be necessary or appropriate to
enable PGI to service and administer the Mortgage Loans (as defined in the
Primary Servicing Agreement) in connection with the performance by PGI of its
duties as Primary Servicer under the Primary Servicing Agreement, giving and
granting unto PGI full power and authority to do and perform any and every act
necessary, requisite, or proper in connection with the foregoing and hereby
ratifying, approving or confirming all that PGI shall lawfully do or cause to
be done by virtue hereof.
IN WITNESS WHEREOF, the undersigned has caused this limited power of
attorney to be executed as of this ___ day of ______________.
CAPMARK FINANCE, INC., acting solely in
its capacity as Capmark Master Servicer
under the Pooling and Servicing Agreement
and the Primary Servicing Agreement
By:______________________________________
Name:
Title:
EXHIBIT D
QUARTERLY SERVICING ACCOUNTS RECONCILIATION CERTIFICATION
Primary Servicer: Principal Global Investors, LLC
RE: Xxxxxx Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16
Pursuant to the Primary Servicing Agreement between Capmark Finance, Inc.
("Capmark") and Principal Global Investors, LLC ("Primary Servicer") for the
transaction referenced above, I hereby certify with respect to each mortgage
loan serviced by Primary Servicer for Capmark for such transaction that within
25 days after the end of each of the months of [January, February and
March][April, May and June][July, August and September][October, November and
December], any and all deposit accounts, escrow accounts and reserve accounts,
and any and all other collection accounts and servicing accounts, related to
such mortgage loan have been properly reconciled, and the reconciliations have
been reviewed and approved, by Primary Servicer's management, except as
otherwise noted below:
EXCEPTIONS: ______________________________________________
__________________________ [Signature]
Name: [INSERT NAME OF SERVICING OFFICER]
Title: Servicing Officer, Principal Global Investors, LLC
Date: [April, July, October, January] 25, [20__]
EXHIBIT E
FORM OF COVER PAGE FOR REPORT OR CERTIFICATION
Compliance Information Report
Identifying Information for this Report:
Date of Submission: _______
Depositor: ________________________________________________
Trust: ________________________________________________
Pooling and Servicing Pooling and Servicing Agreement dated as of
Agreement: _______, ___, among
____________________________________.
Subservicing Agreement: Subservicing Agreement dated as of ________, ___,
between Capmark Finance, Inc., as Capmark Master
Servicer, and ______________, as Primary Servicer.
Capmark Master Servicer: Capmark Finance, Inc.
Primary Servicer: ________________________________________________
Primary Servicer Contact [Name][telephone][facsimile][email address]
Person:
This Report Contains the Following Information:
Immediate Reporting:
|_| Form 8- K Reporting Information
Monthly Reporting:
|_| Form 10-D Reporting Information
Annual Reporting:
|_| Form 10-K Reporting Information
Annual Compliance:
|_| Compliance Assessment Report (Item 1122(a)) by
Primary Servicer on Compliance With Servicing
Criteria in Item 1122(d) of Regulation AB
|_| Attestation Report (Item 1122(b)) by Registered
Public Accounting Firm on Compliance Assessment
Report
|_| Statement of Compliance (Item 1123)
|_| Xxxxxxxx-Xxxxx Back-Up Certification
This Report Amends Prior Reporting Information:
|_| Yes - Date of Submission of Prior Reporting
Information:
_____/______/______
|_| No
APPENDIX 1
ITEMS REQUIRED FOR DEFEASANCE SUBMISSION TO CAPMARK MASTER SERVICER
REQUEST FOR CAPMARK MASTER SERVICER CONSENT TO DEFEASANCE
Primary Servicer shall submit to Capmark Master Servicer the
following listed items to seek the consent of Capmark Master Servicer to a
defeasance of a Mortgage Loan or an A/B Mortgage Loan that Primary Servicer is
permitted to process under this Primary Servicing Agreement.
Copy of written notice to Primary Servicer from Mortgagor requesting defeasance
of the applicable Mortgage Loan.
An Executed Certificate substantially in the form attached hereto at Exhibit A.
(i) A description of the proposed defeasance collateral, (ii) written
confirmation from an independent accountant stating that payments made on
such defeasance collateral are sufficient to pay the subject Mortgage
Loan, and (iii) a copy of the form of opinion of counsel from the related
Mortgagor or other counsel that the related Trust has the benefit of a
first lien, perfected security interest in the defeasance collateral.
Such other items as are reasonably required by Capmark Master Servicer
consistent with the Servicing Standard as long as such requirements may be
required of the related Mortgagor under the related Mortgage Loan
Documents without additional expense to Primary Servicer or Capmark Master
Servicer.
EXHIBIT A TO APPENDIX 1
PRIMARY SERVICER DEFEASANCE CERTIFICATE
[INSERT DATE], 20[_]
RE: Defeasance of the "[INSERT NAME OF MORTGAGE LOAN FROM SCHEDULE I]"
(Prospectus ID Number: [INSERT ID NUMBER]) mortgage loan (the "Mortgage Loan")
to [INSERT NAME OF MORTGAGOR] (the "Mortgagor") serviced by Principal Global
Investors, LLC, as primary servicer (the "Primary Servicer") pursuant to that
Primary Servicing Agreement (the "Primary Servicing Agreement") dated as of
November 1, 2007, between Primary Servicer and Capmark Finance, Inc., as
Capmark Master Servicer (the "Capmark Master Servicer") relating to the Xxxxxx
Xxxxxxx Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-IQ16.
The undersigned hereby certifies to the Capmark Master Servicer on behalf of
the Primary Servicer as of the date hereof as follows:
1. The Mortgagor has the right to defease the Mortgage Loan pursuant to the
Mortgage Loan Documents (the "Mortgage Loan Documents ") related to the
Mortgage Loan.
2. The Mortgagor will have satisfied all of the requirements for the defeasance
of the Mortgage Loan under the Mortgage Loan Documents by the closing date of
the defeasance.
3. (i) The Primary Servicer has retained outside legal counsel with experience
reviewing and documenting the defeasance of commercial mortgage loans to review
the Loan Document defeasance provisions and to document the defeasance of the
Mortgage Loan in accordance therewith and (ii) the Primary Servicer has
provided or will provide such legal counsel with the Mortgage Loan Documents
needed for such purposes.
PRINCIPAL GLOBAL INVESTORS, LLC
By:
------------------------------------
Name:
Title:
APPENDIX 2
ASSIGNMENT AND ASSUMPTION SUBMISSION TO SPECIAL SERVICER
PRESENT MORTGAGOR:
PROPOSED MORTGAGOR:
PRIMARY SERVICER #:
SPECIAL SERVICER #:
COLLATERAL TYPE: (Retail, Industrial, Apartments, Office, etc.)
ADDRESS: Property Address
City, State, zip code
ASSET STATUS: As of (date)
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
1. Insurance Escrow Balance: $
Reserve Escrow Balance: $
Monthly (P&I) Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Maturity Date:
Origination Date:
Executive Summary:
1. Summarize the transaction
a. note any significant modification of terms of the Mortgage Loan
Documents permitting assumption that could result in Adverse REMIC
Event
2. Discuss proposed Mortgagor entity and ownership structure
a. include any changes in level of SAE or SPE compliance from existing
Mortgagor as noted on Asset Summary attached)
3. How will title be held
4. Source of cash for down payment
5. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. Prior year NOI and DSCR and Pro-forma NOI DSCR
6. Complete the chart below:
The sale terms and property characteristics are summarized as follows:
Purchase price $
Buyer down payment $ (%)
Estimated closing date
1% loan fee split: Principal 40% - $
WFB, Master Serv. 10% - $
Centerline, Special Serv. 50% - $
Most recent appraised value $
according to appraisal in Primary
Servicer's possession
Loan-to-value as if initial %
underwriting
Occupancy as of %
12/31/__ NOI $
Debt service coverage as of x
Financial Condition of Proposed Mortgagor/Guarantor:
1. Explain background and experience of the proposed Mortgagor/principals;
describe any deficiencies in Mortgagor's ability to meet creditworthiness
and experience requirements of Mortgage Loan Documents and compare
creditworthiness and experience of proposed Mortgagor to that of
transferring Mortgagor to the extent information about transferring
Mortgagor is available.
2. State date of the financial statement, who prepared, if CPA, state the
opinion rendered, how assets are valued
3. Highlight Balance sheet and Income statement
a. Describe significant assets (e.g. obtain from proposed Mortgagor and
Guarantor (as applicable) information about how it values its
assets)
b. Related debt
4. For public companies that have historical financial information:
a. Spread Balance Sheet for minimum of two (2) years (request three (3)
years, if available)
b. Spread and commonsize Income statement for minimum of two (2) years
(request three (3) years, if available);
5. Explain results of credit checks, legal searches and banking credit
references (two required)
6. If Rating Agency Confirmation is permitted under applicable Mortgage Loan
Documents , note if such Confirmation will be sought
7. Describe whether assigning Mortgagor and/or Guarantors will be released
from its obligations under the Mortgage Loan Documents [from and after the
date of the transfer]. If so, describe extent of release and rationale for
it.
Project Status & Description: (See attached Asset Summary, most recent
Inspection Report and most recent rent roll)
1. Describe any current, material issues regarding the operating status of
the property:
(e.g. issues surrounding current occupancy, anchor tenants, tenant rollover)
Property Financial Summary: (See attached Income and Expense Statements for
Mortgaged Property and year-to-date operating statements)
New Environmental and Engineering Developments (if any) and Status of Issues
identified in Original Reports or Mortgage Loan Documents as needing
Remediation: (See attached Asset Summary)
1. Describe any material issues requiring remediation contained in original
reports
2. Describe current status of issue and remediation
Escrow Status:
1. Explain status of all reserves
Property Management Summary:
1. Who is proposed property management firm
2. Background and Experience
Collateral Valuation:
1. Discuss the original appraisal
A. Who prepared
B. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
2. Comparison of the following (original to actual property):
A. Vacancy
B. Rents
C. Taxes
D. Other Key Expenses
Current Market Conditions:
Briefly state material current real estate market dynamics and
economic influences that may affect the operational performance of the property.
Recommendation:
1. State recommendation for approval.
2. Highlight strengths and weaknesses. How are weaknesses mitigated? (bullet
points are fine)
Request for Special Servicer Consent:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing Assignment and Assumption.
< >
By: ________________________________________
Title: _____________________________________
Date: ______________________________________
Consent to Assignment & Assumption is given:
CENTERLINE SERVICING, INC.., acting solely in its
capacity as Special Servicer
By: ________________________________________
Title: _____________________________________
Date: ______________________________________
Schedule of Exhibits to Assumption Submission
1. Financial statements of purchasing entity and any guarantors (audited, if
available)
2. Financial statement of selling entity only if available
3. Bank and /or credit references for transferee
4. Credit report for principal(s) of the proposed borrowing entity.
5. Most recent Income & Expense Statement for Mortgaged Property and
operating statement review
6. Income & Expense Statement for Mortgaged Property for previous two (2)
years to the extent available
7. Most recent Property Inspection report
8. Original Asset Summary for Mortgaged Property
9. Purchase and Sale Agreement
10. If available from Mortgagor, diagram of proposed ownership structure,
including percentages of ownership
11. Proposed property management agreement
12. Description and source of equity being used for the purchase, if available
13. Most recent Rent Roll
14. Copy of Promissory Note, Mortgage and any Loan Agreement
15. Other items as required by the description set forth above
XXXXXXXX 0
XXXXXXXXXX XXXX, MONETARY ENCUMBRANCE OR MEZZANINE FINANCING SUBMISSION TO
SPECIAL SERVICER
Mortgagor:
Capmark Master Servicer
Loan #:
Primary Servicer Loan #:
Collateral Type: (Retail, Industrial, Apartments, Office, etc.)
Address of Property:
Asset Status As of (date):
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
Insurance Escrow Balance: $
Monthly P+I Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Origination Date:
Maturity Date:
Executive Summary:
1. Summarize the transaction
a. note deviations from requirements for subordinate/mezzanine
financing contained in Mortgage Loan Documents
b. if Rating Agency Confirmation is permitted under applicable Mortgage
Loan Documents , note if such Confirmation will be sought
2. State amount and purpose of Lien/Financing
3. Interest Rate
4. Amount of Monthly/Periodic Payment (identify if P&I or Interest only)
5. Identify Subordinate/Mezzanine Lender
a. provide any information furnished by Mortgagor regarding proposed
lender
6. Collateral pledged or mortgaged as security:
7. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. NOI and DSCR for prior year and, if available, prior two years and
Pro-forma NOI DSCR
8. Complete the chart below:
The transaction terms and property characteristics are summarized as follows:
Estimated closing date for financing:
Administrative fee to Primary $
Servicer
Additional Fees, if any $
(50%: Special Servicer; 10%:
Capmark Master Servicer; 40%:
Primary Servicer
Most recent appraised value $
according to appraisal in Primary
Servicer's possession
Loan-to-value as of initial %
underwriting
Occupancy as of %
12/31/__ NOI $
Debt service coverage as of x
Project Status & Description: (See attached Asset Summary, most recent
Inspection Report and most recent rent roll)
1. Describe any current, material issues regarding the operating status of the
property:
(e.g. issues surrounding current occupancy, anchor tenants, tenant rollover)
Property Financial Summary: (See attached most recent Income and Expense
Statement for Mortgaged Property and operating statement review)
Escrow Status:
1. Explain status of all Reserves
Collateral Valuation:
1. Discuss the original appraisal
A. Who prepared
B. Attach Executive Summary and discussion of approach to value given most
weight from most recent appraisal in Primary Servicer's possession
2. Comparison of the following (original to actual property):
A. Vacancy
B. Rents
C. Taxes
D. Other Key Expenses
Current Market Conditions:
Briefly state material current real estate market dynamics and
economic influences that may affect the operational performance of the property.
Recommendation:
1. State recommendation for approval.
2. Highlight strengths and weaknesses. How are weaknesses mitigated? (bullet
points are fine)
Request for Special Servicer Consent:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing [Subordinate/Mezzanine] Financing.
< >
By: ________________________________________
Title: _____________________________________
Date: ______________________________________
Consent to Additional Lien, Monetary Encumbrance or Mezzanine Financing as
described above is given:
CENTERLINE SERVICING INC., acting solely in its
capacity as Special Servicer
By: ________________________________________
Title: _____________________________________
Date: ______________________________________
Schedule of Exhibits to Additional Lien, Monetary Encumbrance or Mezzanine
Financing Submission
1. Most recent Income & Expense Statement for property and operating statement
review
2. Original Asset Summary for Mortgaged Property
3. [For Mezzanine financing: If available from Mortgagor, diagram of proposed
ownership structure, including percentages of ownership]
4. [For subordinate mortgage: Copy of Subordination/Intercreditor Agreement in
substantially the form to be executed with subordinate lender]
5. Copy of Note, Mortgage and any Loan Agreement
6. Copy of subordinate Mortgage Loan Documents in substantially the form to be
executed
7. Most recent Rent Roll.
8. Other items as required by the description set forth above
APPENDIX 4
LEASE SUMMARY SUBMISSION PACKAGE
Loan #_________________
--------------------------------------------------------------------------------
Borrower Name:
--------------------------------------------------------------------------------
Property Name:
--------------------------------------------------------------------------------
Total Property NRSF (Per Rent Roll):
--------------------------------------------------------------------------------
Lease Sq. Footage ________ % of Total NRSF
Is Lease A Major Lease Per Loan Docs (Y/N)
--------------------------------------------------------------------------------
LEASE INFORMATION
--------------------------------------------------------------------------------
1. Parties to Lease
a. Landlord:
--------------------------------------------------------------------------
b. Rent Commencement Date:
--------------------------------------------------------------------------
c. Tenant:
--------------------------------------------------------------------------
d. Parent Company (if applicable):
--------------------------------------------------------------------------
e. Subtenant and/or Assignee (if applicable):
--------------------------------------------------------------------------
f. If Yes, Is Original Tenant Liable? (Y/N)
--------------------------------------------------------------------------
g. Guarantor(s):
--------------------------------------------------------------------------
h. Tenant financial statements atached:
--------------------------------------------------------------------------
i. If not, why:
--------------------------------------------------------------------------
--------------------------------------------------------------------------------
2. Basic Lease Terms
a. Lease Commencement Date:
--------------------------------------------------------------------------
b. Rent Commencement Date:
--------------------------------------------------------------------------
c. Lease Expiration:
--------------------------------------------------------------------------
d. Unexercised Extension Options (Y/N):
--------------------------------------------------------------------------
-If Yes, # of Options/Term (i.e. 1-3 yrs):
--------------------------------------------------------------------------
-Terms:
--------------------------------------------------------------------------
e. Lease Type (Credit/Form):
--------------------------------------------------------------------------
Use of Premises:
--------------------------------------------------------------------------
--------------------------------------------------------------------------------
3. Lease Economic Terms
a. Current Base Annual Rent
$
-------------------------------------------------------------------------
b. Scheduled Increases Date/New Annual:
--------------------------------------------------------------------------
c. Increases/Option Periods (Date/New Annual Rent/PSF):
--------------------------------------------------------------------------
d. Percentage Rent Clause? Breakpoint:
--------------------------------------------------------------------------
e. TI Amortization Component:
--------------------------------------------------------------------------
f. Rent Concessions (enter month):
--------------------------------------------------------------------------
--------------------------------------------------------------------------------
4. Expense Reimbursement Recoverable From the Lease (Only note those that
apply):
a. Taxes
--------------------------------------------------------------------------
b. Insurance
--------------------------------------------------------------------------
c. Management Fees
--------------------------------------------------------------------------
d. Utilities
--------------------------------------------------------------------------
e. Non-Structural Maintanance/Repair
--------------------------------------------------------------------------
f. Contract Services
--------------------------------------------------------------------------
g. Administrative (% of CAM)
--------------------------------------------------------------------------
h. Professional Fees
--------------------------------------------------------------------------
i. CAM
--------------------------------------------------------------------------
--------------------------------------------------------------------------------
5. Options
a. Purchase Option (Note Date/Terms):
--------------------------------------------------------------------------
b. Right of First Refusal (Note Date/Terms/Reference DOT):
--------------------------------------------------------------------------
--------------------------------------------------------------------------------
6. Other Information (Only note those that apply):
a. Expense Stop Formula
--------------------------------------------------------------------------
b. Base Year
--------------------------------------------------------------------------
c. Security/Other Deposits
--------------------------------------------------------------------------
d. Tenant Improvement Allowance
--------------------------------------------------------------------------
-Above Standard TI's?
_____________________________________________________________________
_____________________________________________________________________
--------------------------------------------------------------------------------
7. Compliance
a. Lease meets all requirements of the Mortgage Loan Documents. (Y/N) If
no, specify
--------------------------------------------------------------------------
b. Landlord has complied with all leasing requirements in the Mortgage Loan
Documents. (Y/N) If no, specify
--------------------------------------------------------------------------
8. Recommendation
Request for Capmark Master Servicer Consent:
Primary Servicer hereby recommends and requests consent of Capmark Master
Servicer to the foregoing Lease Approval.
By: ____________________________________
Title: _________________________________
Date: __________________________________
Consent to Lease Approval is given:
Capmark Finance, Inc., acting solely in its capacity as Capmark Master Servicer
By: _____________________________________
Title:____________________________________Date:
____________________________________
Exhibits to Lease Summary Submission Package
1. Borrower's written request
2. Lease with amendments, if any
3. Current Rent Roll
4. Current Operating Statement
5. Tenant Financial Statement
6. Applicable provision of Mortgage Loan Documents
