Exhibit 99.9
Principal Primary Servicing Agreement
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PRIMARY SERVICING AGREEMENT
Dated as of May 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 May 1, 2007
among
XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor,
CAPMARK FINANCE INC.,
as Capmark Master Servicer,
PRUDENTIAL ASSET RESOURCES, INC.,
as Prudential Master Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Xxxxx Fargo Master Servicer,
CENTERLINE SERVICING INC.,
as Special Servicer,
THE BANK OF NEW YORK TRUST COMPANY, NATIONAL ASSOCIATION
as Trustee
and
LASALLE BANK NATIONAL ASSOCIATION,
as Paying Agent, Custodian, Certificate Registrar and Authenticating Agent
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-IQ14
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 Servicer's 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 MASTER SERVICER
ARTICLE IX
INDEMNIFICATION
Section 9.1 Primary Servicer's Indemnity......................................
Section 9.2 Master Servicer's 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 54
Section 10.11 Amendment.........................................................
Section 10.12 Other 55
Section 10.13 Benefits of Agreement.............................................
This PRIMARY SERVICING AGREEMENT, dated and effective as of May 1,
2007, 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, the Capmark
Master Servicer, Prudential Asset Resources, Inc., as Prudential Master
Servicer, Xxxxx Fargo Bank, National Association, as Xxxxx Fargo Master
Servicer, Centerline Servicing Inc., as the Special Servicer, The Bank of New
York Trust Company, National Association, as Trustee, and LaSalle Bank National
Association, as Paying Agent, Custodian, Certificate Registrar and
Authenticating Agent have entered into a Pooling and Servicing Agreement, dated
as of May 1, 2007, relating to the Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ14 (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 IQ14
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 IQ14 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 with respect to an ABS Issuing
Entity other than the IQ14 Trust.
"B Note": With respect to any A/B Mortgage Loan, the related
subordinated mortgage note not included in the IQ14 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 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.
"Distribution Date": With respect to the IQ14 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.
"IQ14 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 (Servicing Proposal) to the PCFII Servicing Rights Purchase Agreement
to the effect that, except as disclosed to the 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.
"Master Servicer": As defined in the preamble to this Agreement.
"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. "Non-Mandatory Prepayment Date
Mortgage Loan": As defined in Section 5.10(a) hereof.
"Mortgage Loan Documents": The Mortgage, the Mortgage Note, together
with all other documents evidencing, securing or pertaining to each Mortgage
Loan.
"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 Agreement": The servicing rights
purchase agreement dated May 30, 2007 between Principal Commercial Funding II,
LLC, as Seller and Capmark Master Servicer, as Purchaser.
"Pooling and Servicing Agreement": As defined in the preamble to
this Agreement.
"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 The Bank of New York
Trust Company, as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ14."
"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.
"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 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) 20,000 net rentable square
feet or (b) twenty percent (20%) 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 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.
"Trustee": As defined in the preamble of 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 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 June, 2007.
(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):
----------------------------------- -------------- ---------------------- ----------------------------------------------------------
Time of Required
Month of Delivery to the
Description of Report Initial Report Frequency of Report Capmark Master Servicer
----------------------------------- -------------- ---------------------- ----------------------------------------------------------
CMSA Property File July 2007 Monthly 10th Business Day for the prior month but in no event
later than the Business Day prior to the Report Date in
such month.
----------------------------------- -------------- ---------------------- ----------------------------------------------------------
CMSA Operating Statement Analysis January 2008 Annually With respect to each calendar year, beginning in 2008,
Report, CMSA Financial File and NOI for year-end 2007 the earlier of (i) 30 days after
Adjustment Worksheet receipt of the underlying operating statements from the
borrower or (ii) June 1.
----------------------------------- -------------- ---------------------- ----------------------------------------------------------
CMSA Loan Level Reserve/LOC Report July 2007 Monthly 10th Business Day for the prior month but in no event
later than the Business Day prior to the Report Date in
such month.
----------------------------------- -------------- ---------------------- ----------------------------------------------------------
CMSA Servicer Watch List July 2007 Monthly 10th Business Day for the prior month but in no event
later than the Business Day prior to the Report Date in
such month.
----------------------------------- -------------- ---------------------- ----------------------------------------------------------
CMSA Comparative Financial Status July 2007 Monthly 10th Business Day for the prior month but in no event
Report later than the Business Day prior to the Report Date in
such month.
----------------------------------- -------------- ---------------------- ----------------------------------------------------------
CMSA Quarterly Operating Statement January 2008 Quarterly, but with With respect to a calendar quarter, 95 days following
Analysis Report and CMSA Quarterly (with respect respect to only the the end of such calendar quarter.
Financial File to Calender first three calendar
Quarter ending quarters in each
September year.
2007)
----------------------------------- -------------- ---------------------- ----------------------------------------------------------
* 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 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 Master Servicer; and (b) the Capmark Master
Servicer shall reasonably cooperate to provide to the Primary
Servicer specific information or data in the 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 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 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
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 AB 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 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 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. (a) 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 IQ14 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 IQ14 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 IQ14 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 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 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 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 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 Master
Servicer.
Section 5.4 Primary Servicer's Financial Statements and Related
Information. The Primary Servicer shall deliver to the Master Servicer, within
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 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 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 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 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 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 July 2007 (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 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 IQ14 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 IQ14 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 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
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 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
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 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-1 to the Pooling and
Servicing Agreement in support of any certification obligation
to which the 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 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 Master Servicer, the Capmark
Master Servicer for the ABS Issuing Entity (if such party is not the
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 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 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 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
Master Servicer, in which case the Primary Servicer shall comply with the
interpretation described in the applicable written notice from the 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) Capmark Master Servicer Capmark Master Servicer Capmark Master
Servicer Capmark Master Servicer 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 the Capmark Master Servicer in an
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 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) Capmark Master Servicer Capmark Master Servicer 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(c) 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 Master Servicer's written notice of such termination delivered
at the 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 AM Intercreditor Agreement may be
assumed by a successor Capmark Master Servicer or the Trustee upon a termination
of the Master Servicer's servicing rights pursuant to the Pooling and Servicing
Agreement.
Primary Servicer's rights and obligations shall expressly survive a
termination of 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
Capmark Master Servicer or the Trustee (if it assumes the servicing obligations
of the Master Servicer) shall be deemed to automatically have assumed and agreed
to this Agreement without further action upon becoming the successor 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 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 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 Master Servicer, assign to the Capmark Master
Servicer or a Successor Primary Servicer, as directed by the 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
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 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 IQ14 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 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 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 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 Master Servicer.
ARTICLE IX
INDEMNIFICATION
Section 9.1 Primary Servicer's Indemnity. (a) The Primary Servicer
shall indemnify the 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 Master Servicer, its officers,
employees or agents against or hold the Master Servicer, its officers, employees
or agents harmless from any losses to the extent that such loss is caused by the
actions of the Master Servicer, its officers, employees or agents in violation
of the 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 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 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 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 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 IQ14 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 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 IQ14 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 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 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 60 days' notice to the 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) 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 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 Master Servicer: As set forth in Section 15.5
of 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 IQ14 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/ Xxxxxx X. Xxxxxxxxx
-----------------------------------
Xxxxxx X. Xxxxxxxxx
Vice President and Associate
General Counsel
By: /s/ Xxxxxxxx X. Xxxxx
-----------------------------------
Xxxxxxxx X. Xxxxx
Assistant Secretary
SCHEDULE I
MORTGAGE LOAN SCHEDULES
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Primary
Servicing
Prospectus Fee Rate
Tab Cut-Off Date (basis
Number Loan Name Balance points)
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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-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:
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");
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
Capmark Master Servicer Capmark Master Servicer applicable; other
than Deemed Category 1 Requests ("Category 2 Requests"); and
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
========================== =================================== ================================================
1 Category 1 Requests Post Closing Request is either Transfer rights contemplated in Mortgage Loan
(other than Deemed (a) specifically authorized in Documents (including without limitation
Category 1 Requests) the related Mortgage Loan assignment and assumption rights); partial
Documents (as defined in Exhibit releases contemplated in Mortgage Loan
B-2(c)(A.1(b)), either expressly Documents; easements contemplated in Mortgage
as a matter of right in favor of Loan Documents; evaluation of alterations
the Mortgagor or upon the under specified threshold; administer, monitor
satisfaction of certain specified and release of reserve or escrow amounts in
conditions (including the accordance with reserve or escrow agreements;
exercise of any specified approval of leases below threshold specified
standard of consent or judgment in Mortgage Loan Documents; additional lien,
within such conditions subject to monetary encumbrance or mezzanine financing
the terms of this Agreement); or placed on Mortgaged Property that is
(b) seeks the approval of the specifically contemplated in Mortgage Loan
related Mortgagee under the Documents under specified conditions; or
related Mortgage Loan Documents process of defeasing a Mortgage Loan (except
for a Lease and/or the issuance defeasance of a Specially Serviced Mortgage
of an SNDA for a Lease. 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 Requests for Post Closing Request (other than Consent to easement not contemplated in
all Mortgage Loans Category 3 Request) is (a) not Mortgage Loan Documents; partial releases not
(other than A/B Mortgage specifically authorized or is specifically contemplated in Mortgage Loan
Loans) and Deemed prohibited or not addressed in Documents; or subordinate or mezzanine
Category 1 Requests the Mortgage Loan Documents; and financing not specifically contemplated in
(b) not seeking approval of a Mortgage Loan Documents.
Lease requiring such approval of
Mortgagee under the related
Mortgage Loan Documents or
issuance of an SNDA.
-------------------------- ----------------------------------- ------------------------------------------------
3 Category 3 Requests Post Closing Requests to Money Changes to maturity date, interest rate,
Terms, Defaulted Mortgage Loans principal balance, amortization term, payment
or Mortgage Loans upon which a amount or frequency; or any actions to loan in
Servicing Transfer Event has default.
occurred.
-------------------------- ----------------------------------- ------------------------------------------------
-------------------------- ------------------------------------------
Category Allocation of Fees
========================== ==========================================
1 Category 1 Requests Primary Servicer collects entire
(other than Deemed administrative or processing fee
Category 1 Requests) (including without limitation defeasance
fees), legal fees and out-of-pocket
expenses and 80% of any additional fees
or portions of fees (including without
limitation transfer fees) payable to
Capmark Master Servicer under Pooling
and Servicing Agreement (i.e. transfer
fee). Other 20% of such additional fees
are payable to Capmark Master Servicer.
Special Servicer would receive any
portion of fees due it under the Pooling
and Servicing Agreement. Capmark Master
Servicer may also collect its
out-of-pocket expenses which it shall
itemize in reasonable detail.(1)
========================== ==========================================
2 Category 2 Requests for For all Mortgage Loans, other than A/B
all Mortgage Loans Mortgage Loans: Primary Servicer
(other than A/B Mortgage entitled to one hundred percent (100%)
Loans) and Deemed of administrative or processing fee.
Category 1 Requests Additional fees are payable to Capmark
Master Servicer and/or Special Servicer
as specified in Pooling and Servicing
Agreement. 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
-------------------------- ------------------------------------------
3 Category 3 Requests Primary Servicer not entitled to fee.
Capmark Master Servicer or Special
Servicer is entitled to fees as provided
in the 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
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:
Category 1 Requests and Deemed Category 1 Requests:
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.
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.
Notwithstanding the foregoing, the following additional requirements
shall apply to particular types or aspects of Category 1 Requests:
(i) 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 1
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 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.
(ii) 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 1 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.
(iii) 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 1 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.
(iv) 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 1 of Exhibit
B-2(c), seek the prior written consent of 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 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.
(v) 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.
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.
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 IQ14 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").
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.
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.
Notwithstanding the foregoing with the consent of 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.
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.
Category 2 Requests (other than Deemed Category 1 Requests):
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:
(vi) 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.
(vii) 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 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.
A Requirements List (i) shall in no event be more burdensome than
that required by Capmark Master Servicer of other loans in the IQ14 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.
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 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.
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.
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.
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.
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.
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.
Category 3 Requests:
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.
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.
Dispute of Classification.
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.
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: 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. 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.
Processing of Post Closing Request During 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 B.2 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
Capmark Master Servicer Capmark Master Servicer
Forms of Property Inspection Reports
See CMSA Website
EXHIBIT B-4
TASK DESCRIPTION
MASTER SERVICER/PRIMARY SERVICER TASK LIST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-IQ14
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.
-------------------------------------------------------------------------------- -------- -------- -------- -------
MASTER PRIMARY SPECIAL TRUSTEE
SERVICER SERVICER SERVICER
-------------------------------------------------------------------------------- -------- -------- -------- -------
-------------------------------------------------------------------------------- -------- -------- -------- -------
1. Asset Files
-------------------------------------------------------------------------------- -------- -------- -------- -------
Original credit file management X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Original collateral file (security) X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Authorized parties list for request for release of collateral from
Trustee X X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Establish servicing files criteria X X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Provide access to servicing files and copies of servicing files or of
specific docs upon request to the Master Servicer X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Request delivery of files from Trustee upon request and certification
of Primary Servicer X
-------------------------------------------------------------------------------- -------- -------- -------- -------
-------------------------------------------------------------------------------- -------- -------- -------- -------
2. Property Taxes
-------------------------------------------------------------------------------- -------- -------- -------- -------
Preparation and delivery of quarterly tax delinquency reports X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Monitoring of tax status - Loans with/without escrows X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Recommendation of payment of taxes - Loans with/without escrows X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Notification of advance requirement 3 business days prior to advance
being required X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Payment of taxes - with sufficient escrows X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Payment of taxes - with escrow shortfall X
-------------------------------------------------------------------------------- -------- -------- -------- -------
-------------------------------------------------------------------------------- -------- -------- -------- -------
3. Property Insurance
-------------------------------------------------------------------------------- -------- -------- -------- -------
Preparation and delivery of quarterly insurance tickler reports X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Monitoring of insurance status - Loans with/without escrows X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Ensure insurance carrier meets Pooling and Servicing Agreement
qualifications X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Ensure insurance in favor of the Capmark Master Servicer on behalf of
the Trustee X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Recommendation of payment or force placement of insurance with/without
escrow X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Notification of advance requirement or force placement of insurance
3 business days prior to X
advance being required
-------------------------------------------------------------------------------- -------- -------- -------- -------
Payment of insurance - with sufficient escrows X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Payment of insurance or force placement - with escrow shortfall X
-------------------------------------------------------------------------------- -------- -------- -------- -------
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 report X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Maintain tickler system of refiling the dates on all Loans X
-------------------------------------------------------------------------------- -------- -------- -------- -------
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 to Capmark Master
Servicer and B Note holders, as applicable (net of Aggregate Servicing X
Fee and other fees payable to the Primary Servicer by the B Note
holders)
-------------------------------------------------------------------------------- -------- -------- -------- -------
Provide Collection Reports to 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 3 days after delinquent date X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Send 30 day delinquent notices. X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Send notice of balloon payment to each Mortgagor one year, 180, and 90
days prior to the related maturity date X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Provide copy of Balloon Mortgage Loan notice to Master Servicer X
-------------------------------------------------------------------------------- -------- -------- -------- -------
-------------------------------------------------------------------------------- -------- -------- -------- -------
8. Escrows
-------------------------------------------------------------------------------- -------- -------- -------- -------
Setup and monitor Escrow Accounts including escrow analysis X
-------------------------------------------------------------------------------- -------- -------- -------- -------
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 to Capmark Master
Servicer X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Approve payoff calculations and telecopy approval to Primary Servicer
within five (5) Business Days X
-------------------------------------------------------------------------------- -------- -------- -------- -------
-------------------------------------------------------------------------------- -------- -------- -------- -------
10. Monitoring of Financial and Legal Covenants
-------------------------------------------------------------------------------- -------- -------- -------- -------
Collect quarterly and annual operating statements, budgets, rent rolls
and borrower financial statements, as applicable. X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Deliver Operating Statement Analysis Report, CMSA Financial File and
NOI Adjustment Worksheet in accordance with Section 2.1(c)(viii) of X
this Agreement.
-------------------------------------------------------------------------------- -------- -------- -------- -------
Deliver one (1) copy of quarterly and annual operating statements,
budgets, rent rolls and borrower financial statement, as applicable, X
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 Loans X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Complete and deliver CMSA Property File for Mortgage Loans X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Complete and deliver quarterly Operating Statement Analysis Report
and CMSA Quarterly Financial File in accordance with Section 2.1(c)(viii) X X
of this Agreement.
-------------------------------------------------------------------------------- -------- -------- -------- -------
Cash account Reconciliations - Copies of monthly bank statements for
all deposit, escrow and reserve accounts X
-------------------------------------------------------------------------------- -------- -------- -------- -------
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 Status Report X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Historical Liquidation Report X
-------------------------------------------------------------------------------- -------- -------- -------- -------
CMSA Loan Level Reserve/LOC Report X
-------------------------------------------------------------------------------- -------- -------- -------- -------
-------------------------------------------------------------------------------- -------- -------- -------- -------
11. Advancing
-------------------------------------------------------------------------------- -------- -------- -------- -------
Determination of Non-Recoverability X
-------------------------------------------------------------------------------- -------- -------- -------- -------
-------------------------------------------------------------------------------- -------- -------- -------- -------
12. Borrower Inquiries/Performing Loans
-------------------------------------------------------------------------------- -------- -------- -------- -------
Performing Loans - respond to routine billing questions X
-------------------------------------------------------------------------------- -------- -------- -------- -------
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 or mezzanine
financing X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Consent to additional lien, monetary encumbrance or
mezzanine financing X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Close additional lien, monetary encumbrance or mezzanine
financing X
-------------------------------------------------------------------------------- -------- -------- -------- -------
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 or mezzanine
financing X X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Consent to additional lien, monetary encumbrance or mezzanine
financing X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Close additional lien, monetary encumbrance or mezzanine
financing (directly with Borrower) X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Modifications (Non-Money Terms), Waivers, Consents and Extensions up
to 60 days (not otherwise provided in this Agreement):
-------------------------------------------------------------------------------- -------- -------- -------- -------
Initial Borrower contact and data gathering X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Underwriting and analysis X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Approval of modification and extensions up to 60 days (Category 1
Requests and Deemed Category 1 Requests) X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Approval of modification and extensions up to 60 days
(Category 2 Request) X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Consent to modification and waivers and other consents (not
otherwise provided in this Agreement) X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Closing Documents and Closing X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Modification (Money Terms): X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Extensions of Maturity Date (more than 60 days): X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Response to request for Discounted Payoffs, Workouts, Restructures,
Forbearances and Casualties X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Condemnation (only with respect to Specially Serviced Mortgage Loans
the Special Servicer will perform such functions) X X X
-------------------------------------------------------------------------------- -------- -------- -------- -------
-------------------------------------------------------------------------------- -------- -------- -------- -------
13. Monthly Reporting (Hardcopy & Electronic mail)
-------------------------------------------------------------------------------- -------- -------- -------- -------
Day One Report X
-------------------------------------------------------------------------------------------------------------------
Delinquency and past due reporting on all Loans X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Deliver on April 25, July 25, October 25 and January 25 of each year a
Quarterly Servicing Accounts Reconciliation Certification in the form of X
Exhibit D
-------------------------------------------------------------------------------- -------- -------- -------- -------
-------------------------------------------------------------------------------- -------- -------- -------- -------
14. 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 Servicer
request and certification X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Preparation and recordation of release deeds all Loans (full
and partial) X
-------------------------------------------------------------------------------- -------- -------- -------- -------
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 Loans (full
and partial) X
-------------------------------------------------------------------------------- -------- -------- -------- -------
-------------------------------------------------------------------------------- -------- -------- -------- -------
15. Property Annual Inspections
-------------------------------------------------------------------------------- -------- -------- -------- -------
Conduct site inspection per Pooling and Servicing Agreement requirement X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Provide 3 copies of site inspection reports to the Capmark Master
Servicer within 30 days of inspection but not later than December 15 X
of each year beginning in 2008
-------------------------------------------------------------------------------- -------- -------- -------- -------
-------------------------------------------------------------------------------- -------- -------- -------- -------
16. Preparation of servicing transfer letters X
-------------------------------------------------------------------------------- -------- -------- -------- -------
-------------------------------------------------------------------------------- -------- -------- -------- -------
17. Preparation of IRS Reporting (1098s and 1099s or other tax reporting
requirements) and delivery of copies to the Capmark Master Servicer by X
January 31 of each year
-------------------------------------------------------------------------------- -------- -------- -------- -------
-------------------------------------------------------------------------------- -------- -------- -------- -------
18. Provide Primary Servicer Form 8-K Information Reports, Primary Servicer
Form 10-D Information Reports and Primary Servicer Form 10-K Information X
Reports at the times and in the manner set forth in Section 5.13(c) of
this Primary Servicing Agreement
-------------------------------------------------------------------------------- -------- -------- -------- -------
-------------------------------------------------------------------------------- -------- -------- -------- -------
19. Provide annual statement of compliance at the times and in the manner
set forth in Section 5.13(c) of this Primary Servicing Agreement X
-------------------------------------------------------------------------------- -------- -------- -------- -------
-------------------------------------------------------------------------------- -------- -------- -------- -------
20. Provide either (a) a report regarding Primary Servicer's assessment of
compliance with servicing criteria and a report by a registered public X
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 Primary Servicing
Agreement.
-------------------------------------------------------------------------------- -------- -------- -------- -------
-------------------------------------------------------------------------------- -------- -------- -------- -------
21. Provide annual Xxxxxxxx-Xxxxx back-up certification at the times and
in the manner set forth in Section 5.13(c)(v) of this Primary X
Servicing Agreement
-------------------------------------------------------------------------------- -------- -------- -------- -------
-------------------------------------------------------------------------------- -------- -------- -------- -------
22. Compensation
-------------------------------------------------------------------------------- -------- -------- -------- -------
Primary Servicer Fee and other fees payable to the Primary Servicer by
the B Note holders X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Investment earnings on Primary Servicer Collection Account X
-------------------------------------------------------------------------------------------------------------------
Investment earnings on tax & insurance reserves not payable to borrower X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Investment earnings on reserve accounts not payable to borrower X
-------------------------------------------------------------------------------- -------- -------- -------- -------
Late charges to the extent collected from borrower (offsets advance
interest per Pooling and Servicing Agreement) X
-------------------------------------------------------------------------------- -------- -------- -------- -------
-------------------------------------------------------------------------------- -------- -------- -------- -------
23. Defeasance
-------------------------------------------------------------------------------- -------- -------- -------- -------
Coordinate, analyze, approve, and process defeasance request X
-------------------------------------------------------------------------------- -------- -------- -------- -------
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-IQ14
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(MASTER SERVICER)
CAPMARK FINANCE, INC, acting solely in its capacity as Capmark
Master Servicer ("Master Servicer"), under the Pooling and Servicing Agreement
dated as of May 1, 2007 (the "Pooling and Servicing Agreement") and a Primary
Servicing Agreement dated as of May 1, 2007 (the "Primary Servicing Agreement"),
in each case relating to the Commercial Mortgage Pass-Through Certificates,
Series 2007-IQ14, 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-IQ14
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
Capmark Master Servicer: _______________, as Primary Servicer.
Primary Servicer:
Primary Servicer Contact Person: Capmark Master Servicer: Capmark Finance, Inc.
Primary Servicer:________________________________________________________
Primary Servicer Contact __________________________________________
Person: [Name] [telephone] [facsimile]
[email address]
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 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 AB 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 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 May
1, 2007, between Primary Servicer and Capmark Finance, Inc., as Capmark Master
Servicer (the "Master Servicer") relating to the Xxxxxx Xxxxxxx Capital I Inc.,
Commercial Mortgage Pass-Through Certificates, Series 2007- IQ14.
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: $
(i) 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% - $
------------------------------------------------------------------------------------ ---------------
ARCap, 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
APPENDIX 3
Additional Lien, 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%: 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
attached:____________________________________________
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):
_____________________________________________________
f. 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
Maintenance/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
