Exhibit 99.6
Principal Primary Servicing Agreement
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PRIMARY SERVICING AGREEMENT
Dated as of August 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 August 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 and XX Xxxxxx Special Servicer,
CENTERLINE SERVICING, INC.,
as General Special Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Trustee and Custodian
U.S. BANK NATIONAL ASSOCIATION,
as Paying Agent, Certificate Registrar, and Authenticating Agent
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-IQ15
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
CAPMARK MASTER SERVICER
ARTICLE IX. INDEMNIFICATION.................................................
SECTION 9.1 PRIMARY SERVICER'S INDEMNITY................................
SECTION 9.2 CAPMARK 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.....................................................
SECTION 10.11 AMENDMENT...................................................
SECTION 10.12 OTHER.......................................................
SECTION 10.13 BENEFITS OF AGREEMENT.......................................
This PRIMARY SERVICING AGREEMENT, dated and effective as of August
1, 2007, (the "Agreement") by and between PRINCIPAL GLOBAL INVESTORS, LLC (in
the capacity of primary servicer, the "Primary Servicer") and CAPMARK FINANCE
INC., (acting solely in its capacity as Capmark Master Servicer under the
Pooling and Servicing Agreement, the "Capmark Master Servicer").
WHEREAS, Xxxxxx Xxxxxxx Capital I Inc., as Depositor, Capmark Master
Servicer, as Capmark Master Servicer, Prudential Asset Resources, Inc., as
Prudential Master Servicer and XX Xxxxxx Special Servicer, Centerline Servicing,
Inc., as General Special Servicer, Xxxxx Fargo Bank, National Association, as
Trustee and Custodian, and U.S. Bank National Association, as Paying Agent,
Certificate Registrar, and Authenticating Agent, have entered into a Pooling and
Servicing Agreement, dated as of August 1, 2007, relating to the Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ15 (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 IQ15
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 IQ15 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 IQ15 Trust.
"B Note": With respect to any A/B Mortgage Loan, the related
subordinated mortgage note not included in the IQ15 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 Loss Report": A report which is one
element of the supplemental reports of the CMSA Investor Reporting Package, the
form of which is set forth in the Pooling and Servicing Agreement.
"CMSA Historical Loan Modification and Corrected Mortgage 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 IQ15 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.
"IQ15 Trust": The trust established under the Pooling and Servicing
Agreement.
"Lease": A lease, proposed lease, or amendment, modification,
restatement, extension or termination of a lease, in each case of space and any
other ancillary and associated rights in a building or on the real estate
constituting all or a portion of a Mortgaged Property.
"Mandatory Prepayment Date Assumption": The assumption set forth in
Exhibit B (Prepayment Term) to the PCFII Servicing Rights Purchase Agreement to
the effect that, except as disclosed to the Capmark Master Servicer, no Mortgage
Loan under such agreement has terms under which it may be paid off, in whole or
in part, on a date other than a due date or maturity date (including during open
periods) without payment of a full month of interest.
"Materiality Determination": With respect to a Category 1 Request,
the determination by Primary Servicer, exercised in good faith using the
Servicing Standard set forth in the Pooling and Servicing Agreement, whether a
Category 1 Consent Aspect is material and should be referred to the Special
Servicer for consent in accordance with this Agreement and the Pooling and
Servicing Agreement.
"Mortgage Loan": A Mortgage Note secured by a Mortgage, and all
amendments and modifications thereto, identified on the schedule attached to
this Agreement as Schedule I, as amended from time to time, and conveyed,
transferred, sold, assigned to or deposited with the Trustee pursuant to Section
2.1 or Section 2.3 of the Pooling and Servicing Agreement; the term Mortgage
Loan shall also include any Defeasance Loan.
"Mortgage Loan Documents": The Mortgage, the Mortgage Note, together
with all other documents evidencing, securing or pertaining to each Mortgage
Loan.
"Non-Mandatory Prepayment Date Mortgage Loan": As defined in Section
5.10(a) hereof.
"Officer's Certificate": In the case of the Primary Servicer, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Executive Vice President, Senior Vice President,
Vice President or Assistant Vice President or an employee designated as a
Servicing Officer pursuant to this Agreement.
"Payment and Collection Description": The description of the
obligations of the Primary Servicer with respect to collection and remittance of
payments on the Mortgage Loans and the A/B Mortgage Loans, as more particularly
described in Section 2.1(c) hereof.
"Payment and Mortgage Loan Status Reports": The reports to be
submitted by Primary Servicer to the Capmark Master Servicer with respect to
reporting about collection and remittance of payments, delinquencies, status of
real estate taxes, status of insurance and status of UCC financing statements
for the Mortgage Loans and with respect to an A/B Mortgage Loan, the holder of
the B Note, if required by the applicable A/B Intercreditor Agreement, as more
particularly described and in the forms attached hereto as Exhibit B-1.
"POA Notice": As defined in the Post-Closing Matters Description in
Exhibit B-2.
"PCFII Servicing Rights Purchase and Sale Agreement": The servicing
rights purchase and sale agreement dated August 23, 2007 between Principal
Commercial Funding II, LLC, as Seller, and Capmark Master Servicer, as
Purchaser.
"Post Closing Matters Description": The description of the relative
obligations of the Primary Servicer and Capmark Master Servicer with respect to
requests from Mortgagors on Mortgage Loans and A/B Mortgage Loans that have not
become Defaulted Mortgage Loans, a Specially Serviced Mortgage Loan or one on
which a Servicing Transfer Event has occurred, which obligations are more
particularly described and set forth on Exhibit B-2.
"Post Closing Request": As defined in the Post Closing Matters
Description in Exhibit B-2(a).
"Primary Servicer Collection Account": An account, which shall be an
Eligible Account, established by Primary Servicer for the purposes set forth in
this Agreement, the income and earnings on which shall inure entirely to the
benefit of Primary Servicer. The Primary Servicer Collection Account shall be
established in the name of "Principal Global Investors, LLC, as Primary Servicer
for Capmark Finance, Inc., as Capmark Master Servicer for Xxxxx Fargo Bank,
National Association, as Trustee for the Certificateholders of Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series
2007-IQ15."
"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 Capmark Master Servicer's obligation to make
advances; and (IV) the right of the Primary Servicer (or any Affiliate thereof)
to receive reimbursement of costs, or the sufficiency of any compensation
payable to it, hereunder or with respect to any particular transaction;
provided, however, that in no event shall the foregoing standards be less than
the applicable provisions of the Servicing Standard set forth in the Pooling and
Servicing Agreement and with respect to an A/B Mortgage Loan, the servicing
standards set forth in the related A/B Intercreditor Agreement.
"Significant Leases": A Lease at a Mortgaged Property covering or
proposed to cover more than the greater of either (a) 30,000 net rentable square
feet or (b) thirty percent (30%) of the net rentable square footage of the
Mortgaged Property.
"Significant Obligor": A "significant obligor" within the meaning of
Item 1101(k) of Regulation AB.
"SNDA": A Subordination, Non-Disturbance and Attornment Agreement
with respect to a Lease on a form customarily used by Primary Servicer with
respect to Mortgaged Properties of similar type and consistent with the
Servicing Standard.
"Special Servicer": Centerline Servicing, Inc. or any successor
thereto as special servicer under the Pooling and Servicing
Agreement.
"Successor Primary Servicer": The Person selected by the Capmark
Master Servicer upon the termination of the Primary Servicer resulting from any
Primary Servicer Default, if any, who shall thereafter perform the Services with
respect to the Mortgage Loans and the A/B Mortgage Loans; provided, that the
Capmark Master Servicer shall perform all Services with respect to the Mortgage
Loans and the A/B Mortgage Loans until such Person, if any, is selected.
"Task Description": The outline description of the obligations of
the Primary Servicer and Capmark Master Servicer with respect to the Mortgage
Loans and the A/B Mortgage Loans as set forth in Exhibit B-4 attached to this
Agreement.
ARTICLE II
PRIMARY SERVICING
Section 2.1.Primary Servicing
From the Closing Date until the Primary Servicing Termination Date,
Capmark Master Servicer hereby authorizes and directs Primary Servicer to
Service each Mortgage Loan and each A/B Mortgage Loan as Primary Servicer on
behalf of and at the direction of the Capmark Master Servicer as provided in
this Agreement. The Services shall consist of the following:
(a) Primary Servicer shall perform all tasks and responsibilities
necessary to meet the requirements delegated to the Primary Servicer in
the Task Description, the Post Closing Matters Description, the Payment
and Collection Description and the Payment and Mortgage Loan Status
Reports, in each case in accordance with the terms of this Agreement and,
with respect to each B Note, the terms of the related A/B Intercreditor
Agreement, and in a manner not inconsistent with the Pooling and Servicing
Agreement. Primary Servicer shall also perform the obligations to which it
has expressly agreed under the Pooling and Servicing Agreement and the
Capmark Master Servicer's obligations set forth in Sections 2.1(c),
2.1(d), that portion of 5.1(g) relating to the Escrow Status Report,
8.11(i), if applicable, and 8.14 of the Pooling and Servicing Agreement
relating to Annual Statement and Rent Roll Reporting with respect to the
Mortgage Loans and the A/B Mortgage Loans.
(b) Capmark Master Servicer and Primary Servicer agree and
acknowledge that the Task Description is a chart that enumerates a list of
tasks and the general allocation of responsibility of servicing
obligations between the Capmark Master Servicer and the Primary Servicer
for such tasks, and the Post Closing Matters Description sets forth a
specific method for classifying post closing requests of a Mortgagor and
allocating responsibility for handling such requests based upon such
classification. Capmark Master Servicer and Primary Servicer have made
efforts to reconcile the Task Description and Post Closing Matters
Description.
(c) Without limiting the foregoing, Primary Servicer shall collect
and remit payments on the Mortgage Loans and the A/B Mortgage Loans in
accordance with the Payment and Collection Description. For the purposes
of this Agreement, the "Payment and Collection Description" shall
encompass all of the following responsibilities and obligations set forth
in the following subsections (i) through (viii) and subsection (xii):
(i) On or prior to the Closing Date, the Primary Servicer
shall establish a Primary Servicer Collection Account, and give the
Capmark Master Servicer prior written notice of the name and address
of the depository institution at which such Primary Servicer
Collection Account is maintained and the account number of the
Primary Servicer Collection Account. Primary Servicer may direct the
investment of funds on deposit in the Primary Servicer Collection
Account subject to and in accordance with the criteria and
requirements set forth in the applicable A/B Intercreditor
Agreement, as they relate to a particular B Note and those set forth
in the Pooling and Servicing Agreement relating to the Collection
Account established thereunder (construed as if the Primary Servicer
Collection Account were such Collection Account), including without
limitation the obligation, if any, to deposit into such account the
amount of any investment losses to the extent required in the
Pooling and Servicing Agreement and, with respect to each B Note,
the terms of the related A/B Intercreditor Agreement.
(ii) The Primary Servicer shall make efforts consistent with
the Servicing Standard to collect all monthly payments of principal
(including without limitation Balloon Payments) and interest with
respect to the Mortgage Loans and the A/B Mortgage Loans (except for
payments due on or prior to the Cut-Off Date), as well as any
required Principal Prepayments, Prepayment Premiums, late charges,
Insurance Proceeds, Condemnation Proceeds and any and all other
amounts due from the Mortgagor or a third party with respect to the
Mortgage Loans pursuant to the Mortgage Loan Documents ; provided,
however, that with respect to any payments that are required under
the terms of the applicable Mortgage Loan Documents to be made
directly to a Person other than the holder of the related Mortgage
Loan, the Primary Servicer shall use efforts consistent with the
Servicing Standard to cause such payments to be made.
(iii) The Primary Servicer shall deposit all such payments
received with respect to each A/B Mortgage Loan and each Mortgage
Loan (less any related Aggregate Servicing Fee and any other
payments due to Primary Servicer under this Agreement with respect
to such Mortgage Loan) into the Primary Servicer Collection Account
on or before the next Business Day after receiving each such
payment. With respect to funds deposited into the Primary Servicer
Collection Account for each A/B Mortgage Loan, on or before the end
of the third (3rd) Business Day after the Primary Servicer receives
such funds the Primary Servicer shall determine, in accordance with
the provisions of the applicable A/B Intercreditor Agreement, the
amount (if any) of such funds required to be paid to the holder of
the related B Note (less any Primary Servicing Fee or other fee, if
any, agreed to be paid by the holder of such B Note to the Primary
Servicer pursuant to the applicable A/B Intercreditor Agreement or
other agreement between the Primary Servicer and such B Note holder,
together with any other payments related to such B Note, which are
payable to the Primary Servicer). Such amounts shall be paid to each
holder of a B Note, at the times and in the manner required pursuant
to the provisions of the applicable A/B Intercreditor Agreement.
(iv) Subject to the previous subsection, and after making the
determination of the amount required to be paid to the holder of the
B Note, the Primary Servicer shall remit to the Capmark Master
Servicer from the Primary Servicer Collection Account, by wire
transfer of immediately available funds, all funds in such account
(other than income and earnings on such account), and shall not
withdraw funds therefrom for any other purpose, except to withdraw
amounts required to be paid to the holder of the B Note and any
other amounts deposited therein by error, as follows: (1) in the
case of any payments received and collected during a Collection
Period on or before the Determination Date for such Collection
Period, Primary Servicer shall remit such payments on such
Determination Date; and (2) in the case of any payments received and
collected by Primary Servicer after the Determination Date for such
Collection Period, Primary Servicer shall remit all such payments on
the first Business Day following receipt of the amount of any such
payments; provided, however, that notwithstanding any contrary
provision of clause (1) or clause (2) all of the following
provisions shall apply:
(1) in the case of any payment received on a
Determination Date for a Collection Period, Primary Servicer
shall (i) provide Capmark Master Servicer with immediate
notice of Primary Servicer's receipt of such payment and (ii)
shall use its reasonable best efforts to remit such payment to
Capmark Master Servicer on the date of receipt and in any
event shall remit such payment to Capmark Master Servicer
within one (1) Business Day following receipt (and Primary
Servicer shall in any event provide Capmark Master Servicer
with immediate notice of Primary Servicer becoming aware that
any Principal Prepayment is to be made on a Determination
Date);
(2) any Scheduled Payment due during a Collection Period
but received after the end of such Collection Period shall be
remitted by Primary Servicer within one (1) Business Day
following Primary Servicer's receipt of such Scheduled
Payment;
(3) Primary Servicer shall use its reasonable best
efforts to remit to Capmark Master Servicer on the date of
receipt of, and in any event shall remit to Capmark Master
Servicer within one (1) Business Day following receipt of, any
unscheduled payments or Balloon Payments that would result in
a Prepayment Interest Shortfall; and
(4) any Scheduled Payment received and collected during
a Collection Period, but due on a Due Date occurring after the
end of such Collection Period, shall be remitted on the
Determination Date for the Collection Period in which such Due
Date occurs.
(v) In the event any payments received by Primary Servicer
becomes "NSF" (i.e., there are insufficient funds) after the monies
associated with that payment have been remitted to the Capmark
Master Servicer, the Capmark Master Servicer will return such moneys
to Primary Servicer by wire transfer in immediately available funds
within one (1) Business Day of notice from the Primary Servicer. If
the Primary Servicer fails to remit to the Capmark Master Servicer
when due the total pool remittance required to be remitted under
this Agreement (whether or not such failure constitutes a Primary
Servicer Default), then interest shall accrue on the amount of the
total pool remittance and the Primary Servicer shall promptly pay
such interest to the Capmark Master Servicer, at a per annum rate
equal to the Advance Rate from and including the date when such
remittance was required to be made to but excluding the day when
such remittance is actually made. If the Primary Servicer fails to
remit a single loan remittance more than five (5) days after the
single loan remittance was received by the Primary Servicer, then
interest shall accrue on the amount of such single loan remittance
and the Primary Servicer shall promptly pay such interest to the
Capmark Master Servicer, at a per annum rate equal to the Advance
Rate from and including the date when such remittance was required
to be made to but excluding the date when such remittance is
actually made.
(vi) With respect to escrow or reserve payments as listed on
the Task Description, the Primary Servicer shall collect escrow or
reserve amounts with respect to the Mortgage Loans and A/B Mortgage
Loans, and shall deposit such funds in an escrow account, which
shall be an Eligible Account, and shall maintain, disburse and
account for such funds as provided in the Task Description, for real
estate taxes, insurance and reserves, and escrows for repairs,
replacements, principal and interest payments and lease payments and
any other matters specified in any agreement in which funds are held
at the time, and in the manner and for the purposes as otherwise
required or delineated in the Mortgage Loan Documents and with
respect to the Capmark Master Servicer under the Pooling and
Servicing Agreement. The Primary Servicer may direct the investment
of such funds subject to and in accordance with the criteria and
requirements set forth in the Pooling and Servicing Agreement
relating to Escrow Accounts, including without limitation the
obligation to deposit into the Escrow Account the amount of any
investment losses to the extent required in the Pooling and
Servicing Agreement. Primary Servicer shall have the benefit and
shall retain all interest and income earned on the Escrow Accounts
for the Mortgage Loans and A/B Mortgage Loans that is not paid to
Mortgagors.
(vii) Primary Servicer shall submit the following Payment and
Mortgage Loan Status Reports, in each case, in the form attached as
Exhibit B-1 and at the time specified in the succeeding sentences of
this sub-section (vii): (1) a remittance report for payments
received on Mortgage Loans and A/B Mortgage Loans; (2) a delinquency
report; (3) a real estate tax delinquency report which may be based
upon information provided by Primary Servicer's real estate tax
service (if any) if engaged in accordance with Article VII of this
Agreement; (4) an insurance monitoring report; (5) a UCC form
monitoring report; and (6) the Day One Report. Primary Servicer
shall submit the Payment and Mortgage Loan Status Report described
by clause (1) above by electronic mail on each day that payments or
funds are remitted to the Capmark Master Servicer pursuant to
Section 2.1(c) of this Agreement. Primary Servicer shall submit the
Payment and Mortgage Loan Status Report described by clause (2)
above by electronic mail, monthly no later than the tenth (10th) day
of each month for the previous month. Primary Servicer shall submit
the Payment and Mortgage Loan Status Reports described by clauses
(3), (4) and (5) above by electronic mail, quarterly no later than
January 15, April 15, July 15 and October 15 for the previous
quarter. Primary Servicer shall submit the Payment and Mortgage Loan
Status Report described by clause (6) above by electronic mail,
monthly no later than the first (1st) day of each month in which the
applicable Distribution Date occurs for the then current Collection
Period. If the day on which any Payment and Mortgage Loan Status
Report is otherwise due as described above does not constitute a
Business Day, then such report shall be due on the immediately
succeeding Business Day.
(viii) Capmark Master Servicer and Primary Servicer hereby
allocate responsibility for completing the CMSA Investor Reporting
Package for the Mortgage Loans and the A/B Mortgage Loans as
follows:
(1) Capmark Master Servicer shall complete all fields
and aspects of the CMSA Loan Setup File that are available
from the Final Prospectus Supplement. Upon completing all of
such fields, Capmark Master Servicer shall forward the CMSA
Loan Setup File for the Mortgage Loans and the A/B Mortgage
Loans to Primary Servicer who shall complete the fields and
aspects of the CMSA Loan Setup File for the Mortgage Loans and
the A/B Mortgage Loans that are not available from the Final
Prospectus Supplement and return to Capmark Master Servicer
the completed CMSA Loan Setup File for the Mortgage Loans and
the A/B Mortgage Loans within five (5) Business Days of
receiving such file from Capmark Master Servicer. Capmark
Master Servicer shall deliver a CMSA Loan Setup File to
Primary Servicer (a) for the Mortgage Loans and the A/B
Mortgage Loans only; (b) in electronic form; (c) using an
Excel file; and (d) with all fields in the same order as the
CMSA Loan Setup File. Primary Servicer and Capmark Master
Servicer acknowledge that delivery of the CMSA Loan Setup File
is to commence with the report date in October, 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):
--------------------------------------------------------------------------------------------------
Month of Time of Required
Description of Initial Frequency of Delivery to the Capmark Master
Report Report Report Servicer
==================================================================================================
CMSA October, 2007 Monthly One (1) Business Day following
Property File the Determination Date
---------------------------------------------------------------------------------------------------
CMSA Operating June Annually With respect to each calendar
Statement 2008 year, beginning in 2008 for
Analysis Report, (for year year-end 2007, the earlier of
CMSA Financial ending 2007) (i) thirty (30) days after
File and CMSA receipt of the underlying
NOI Adjustment operating statements from the
Worksheet Borrower or (ii) June 1.
---------------------------------------------------------------------------------------------------
CMSA Loan Level One (1) Business Day following
Reserve/LOC October, 2007 Monthly the Determination Date
Report
---------------------------------------------------------------------------------------------------
CMSA Servicer October, 2007 Monthly One (1) Business Day following
Watch List the Determination Date
---------------------------------------------------------------------------------------------------
CMSA Comparative October, 2007 Monthly* One (1) Business Day following
Financial Status the Determination Date
Report
---------------------------------------------------------------------------------------------------
CMSA Quarterly January 2008 Quarterly* With respect to a calendar
Operating (with but with quarter, within ten (10) days
Statement respect to respect to prior to the due date provided
Analysis Report calendar only the in the Pooling and Servicing
and CMSA quarter first three Agreement.
Quarterly ending (3)
Financial File September calendar
30, 2007) quarters in
each year.
==================================================================================================
* With respect to these reports, the Primary Servicer will only be required to
deliver these reports at the level of frequency at which the underlying Mortgage
Loan Documents required the Borrower to deliver the applicable financial
information to the lender, which will generally be annually.
(3) The Capmark Master Servicer shall have the
responsibility to complete and deliver the following reports
in accordance with the Pooling and Servicing Agreement: CMSA
Loan Setup File, CMSA Loan Periodic Update File; CMSA
Delinquent Loan Status Report; CMSA REO Status Report; CMSA
Historical Loan Modification and Corrected Mortgage Loan
Report and CMSA Historical Liquidation Loss Report.
(4) Notwithstanding the foregoing: (a) Primary Servicer
shall reasonably cooperate to provide to Capmark Master
Servicer specific information or data in Primary Servicer's
possession and necessary to complete a report for which
Capmark Master Servicer is responsible, upon the written
request of Capmark Master Servicer; and (b) the Capmark Master
Servicer shall reasonably cooperate to provide to the Primary
Servicer specific information or data in the Capmark Master
Servicer's possession, as may be requested in writing by the
Primary Servicer, to enable the Primary Servicer to prepare
and deliver to each holder of a B Note any reports or notices
required to be delivered to each such holder of a B Note,
pursuant to the provisions of the applicable A/B Intercreditor
Agreement.
(5) Notwithstanding the definitions of various CMSA
reports in this Agreement that directly link such reports to a
form attached as part of Exhibit W and Exhibit X to the
Pooling and Servicing Agreement, Capmark Master Servicer shall
be entitled to amend the forms of such reports that Primary
Servicer must deliver under this Agreement, provided that (a)
the Commercial Mortgage Securities Association has amended the
applicable reports and published such amendments as its
revised form on its website; (b) Capmark Master Servicer gives
Primary Servicer no less than one hundred twenty (120) days
notice of any required amendments or revisions to a report
prior to their becoming effective as the form of report to
deliver under this Agreement; and (c) any such amendments or
revisions (either singly or in the aggregate) shall not impose
undue additional burden or costs upon Primary Servicer to
collect, format, calculate or report information to Capmark
Master Servicer.
(6) All Operating Statement Analysis Reports, NOI
Adjustment Worksheets, financial statements, rent rolls, and
budgets delivered by the Primary Servicer to the Capmark
Master Servicer pursuant hereto shall be labeled according to
the Centerline Naming Convention for Electronic File Delivery.
(ix) Capmark Master Servicer and Primary Servicer have made
efforts to reconcile the Task Description, the Payment and
Collection Description and Payment and Mortgage Loan Status Reports.
In the event of any conflict between (1) the Task Description and
(2) the Payment and Collection Description and Payment and Mortgage
Loan Status Reports, then the Payment and Collection Description and
Payment and Mortgage Loan Status Reports shall govern.
(x) The Primary Servicer shall be responsible for the
calculation of any and all Prepayment Premiums payable under each
Mortgage Loan and each A/B Mortgage Loan.
(xi) Within thirty (30) days following the Closing Date,
Primary Servicer shall deliver to Capmark Master Servicer a report
listing the tax parcels coinciding with the Mortgaged Properties.
(xii) All amounts collected by the Primary Servicer during a
Collection Period with respect to the A/B Mortgage Loan, which are
payable to the holder of the applicable B Note pursuant to the
provisions of the applicable Intercreditor Agreement, shall be paid
by the Primary Servicer to such B Note holder no later than three
(3) Business Days after collection of such funds. In the event that
the Primary Servicer determines (in its sole discretion) that in
order to confirm the amount to be disbursed to a B Note holder
pursuant to the provisions of the A/B Intercreditor Agreement, the
Primary Servicer requires information from the Capmark Master
Servicer, the Primary Servicer shall have the right, within three
(3) Business Days after collection of the funds at issue, to deliver
to the Capmark Master Servicer a written request for such
information. The Capmark Master Servicer shall provide the
information requested, to the extent that such information is in the
possession of the Capmark Master Servicer or involves a calculation
to be made by the Capmark Master Servicer on the basis of
information in the possession of the Capmark Master Servicer, no
later than three (3) Business Days after the Capmark Master Servicer
receives the Primary Servicer's written request, and the Primary
Servicer shall make the disbursement at issue to the B Note holder
no later than three (3) Business Days after it receives the
information from the Capmark Master Servicer needed to confirm the
disbursement at issue. In the event that the Capmark Master Servicer
determines (in its sole discretion) that it is necessary or
desirable to direct the Primary Servicer as to how to allocate
amounts collected for an A/B Mortgage Loan between the holders of
the related Mortgage Loan and its related B Note, the Capmark Master
Servicer shall have the right, no later than the end of the second
(2nd) Business Day after each of the A/B Mortgage Loan's scheduled
monthly payment dates, to deliver a written direction notice to the
Primary Servicer. The Primary Servicer shall comply with the Capmark
Master Servicer's directions, absent a disagreement (which shall be
promptly communicated in writing to the Capmark Master Servicer) and
addressed by the Capmark Master Servicer and the Primary Servicer
within the time frames set forth in this Section 2.1(c)(xii). If
there is any disagreement between the Capmark Master Servicer and
the Primary Servicer with respect to the allocation of funds on the
A/B Mortgage Loan, then the Capmark Master Servicer and the Primary
Servicer shall consult with each other in good faith but the
determination of the Capmark Master Servicer shall control and no
consultation shall extend in duration beyond the date reasonably
necessary for allocations, remittances and reporting to be timely
made to the holders of the A Note and B Note. In the event that
collection responsibilities for an A/B Mortgage Loan are transferred
from the Primary Servicer to the Capmark Master Servicer or Special
Servicer pursuant to the applicable provisions of this Agreement or
the Pooling and Servicing Agreement, all amounts that are collected
by the Capmark Master Servicer or the Special Servicer, as
applicable, during a Collection Period with respect to such A/B
Mortgage Loan and are payable to the holder of the applicable B Note
pursuant to the provisions of the related A/B Intercreditor
Agreement shall be remitted by the Capmark Master Servicer to such B
Note holder no later than three (3) Business Days after the
collection of such funds, notwithstanding any provision of the
applicable A/B Intercreditor Agreement that may provide the Servicer
with a longer period of time to remit such collected funds to the B
Note holder (except that if the related Mortgaged Property has
become an REO Property, then the funds on deposit in the related REO
Account related to such REO Property shall be remitted to the
Capmark Master Servicer by the Special Servicer as and to the extent
otherwise provided in Section 9.14 (b) of the Pooling and Servicing
Agreement and then, to the extent remittable to the holder of the
applicable B Note, shall be so remitted on the next succeeding
Master Servicer Remittance Date).
(d) Commencing in the year 2008, Primary Servicer shall inspect, or
cause to be inspected, each of the Mortgaged Properties for the Mortgage
Loans and the A/B Mortgage Loans in accordance with Section 8.17 of the
Pooling and Servicing Agreement and, promptly upon completion of such
inspection, shall deliver to Capmark Master Servicer and with respect to
an A/B Mortgage Loan, to the holder of the related B Note, if required by
the applicable A/B Intercreditor Agreement, a property inspection report
in the form attached as Exhibit B-3 (the "Property Inspection
Description"). Each property inspection report delivered by the Primary
Servicer shall be imaged with the Centerline Naming Convention for
Electronic File Delivery.
Capmark Master Servicer and Primary Servicer have made efforts to
reconcile the Task Description and the Property Inspection Description. In the
event of any conflict between (1) the Task Description and (2) the Property
Inspection Description, then the Property Inspection Description shall govern.
(e) Primary Servicer shall promptly notify the Capmark Master
Servicer of any significant events affecting any one or more of the
Mortgage Loans and A/B Mortgage Loans, the related Mortgagors or the
related Mortgaged Properties which become known to Primary Servicer or of
which the Primary Servicer receives notice, such as a payment default, a
bankruptcy, a judicial lien or casualty or condemnation event, and the
Primary Servicer shall also promptly advise the Capmark Master Servicer of
all material collection and customer service issues and, promptly
following any request therefor by the Capmark Master Servicer, shall
furnish to the Capmark Master Servicer with copies of any correspondence
or other documents in the possession of the Primary Servicer related to
any such matter. The Primary Servicer shall use reasonable efforts to
promptly notify the Capmark Master Servicer as soon as the Primary
Servicer (exercising good faith and reasonable judgment in accordance with
the Servicing Standard) becomes aware that any Servicing Advance will be
required (or may reasonably be expected to be required) to be made with
respect to any Mortgage Loan or any A/B Mortgage Loan under the standards
imposed on the Capmark Master Servicer by the Pooling and Servicing
Agreement.
(f) Within thirty (30) days following the Closing Date, Primary
Servicer shall deliver to Capmark Master Servicer for each of its Mortgage
Loans and A/B Mortgage Loans to be included in the Escrow Status Report,
the deadline or expiration date contained in the applicable escrow or
reserve agreement for completing the specific immediate engineering work,
completion of additional construction, environmental remediation or
similar one-time projects for which such Mortgage Loan or A/B Mortgage
Loan is to appear in the Escrow Status Report.
(g) In addition, the Primary Servicer shall deliver or cause to be
delivered to Capmark Master Servicer any and all information as may
reasonably be necessary for the Capmark Master Servicer to perform its
obligations under Section 8.3(i) of the Pooling and Servicing Agreement
(to the extent related to the Mortgage Loans and/or A/B Mortgage Loans);
provided, however, that in the event that the Primary Servicer has sent a
notice to a ground lessor as contemplated by such Section 8.3(i) of the
Pooling and Servicing Agreement, the delivery to the Capmark Master
Servicer of a copy of such notice shall satisfy the Primary Servicer's
obligation under this section with respect to such ground lease.
(h) Primary Servicer shall perform all other obligations of the
Primary Servicer as set forth herein.
Primary Servicer and the Capmark Master Servicer agree that, in
connection with the performance of its obligations hereunder, the Primary
Servicer shall be entitled to request from the Capmark Master Servicer, and the
Capmark Master Servicer agrees that it shall provide, express instructions for
the completion of any of the Services to be performed or completed by the
Primary Servicer, to the extent necessary to clarify any ambiguities in the
terms of this Agreement. The Capmark Master Servicer further agrees that the
Primary Servicer shall be entitled to rely upon any such written instructions.
The Primary Servicer and the Capmark Master Servicer, shall perform all of their
respective obligations as allocated and set forth in this Agreement, and it is
understood that the Primary Servicer shall have no obligations with respect to
the primary servicing of the Mortgage Loans and the A/B Mortgage Loans, except
as specifically set forth in this Agreement and in the Pooling and Servicing
Agreement.
Section 2.2 Standard of Care
The Primary Servicer shall perform all Services on behalf of the
Capmark Master Servicer in accordance with the terms of this Agreement and the
Servicing Standard and in a manner consistent with the applicable provisions of
the Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan,
the applicable provisions of the related A/B Intercreditor Agreement.
Section 2.3 Compensation and Other Payments to the Primary Servicer
As consideration for the Primary Servicer's performance of the
Services hereunder: (a), the Primary Servicer shall be entitled to deduct the
Aggregate Servicing Fee in accordance with Section 2.1(c)(iii) of this
Agreement, with respect to the related Collection Period for each Mortgage Loan
for which a payment was received by the Capmark Master Servicer or forwarded to
the Capmark Master Servicer by the Primary Servicer; and (b) with respect to
each A/B Mortgage Loan, the Primary Servicer shall be entitled to deduct any
Primary Servicing Fee or other fee payable to the Primary Servicer as may be
agreed to by the holder of the related B Note, from each payment received by the
Primary Servicer and which is allocable to such holder of the related B Note,
all in accordance with the provisions of Section 2.1 of this Agreement.
Notwithstanding the foregoing, Primary Servicer shall not be entitled to a
Primary Servicing Fee with respect to any Mortgage Loan (other than an A/B
Mortgage Loan) for which a Servicing Transfer Event has occurred (unless such
Mortgage Loan becomes a Rehabilitated Mortgage Loan) or with respect to which
the Primary Servicer has been terminated as Primary Servicer under this
Agreement and the Pooling and Servicing Agreement.
The Primary Servicer shall retain all rights to the Excess Servicing
Fee for all Mortgage Loans, even if (a) any Mortgage Loan or Mortgage Loans
become Specially Serviced Mortgage Loans; (b) Primary Servicer's servicing is
terminated with respect to particular Mortgage Loans or (c) Primary Servicer is
in default, is terminated or resigns under this Agreement. If Primary Servicer
is unable to deduct the Excess Servicing Fee in accordance with Section
2.1(c)(iii) because it no longer services a Mortgage Loan or Mortgage Loans or
for any other reason (other than transfer or assignment of the rights to the
Excess Servicing Fee), then Capmark Master Servicer (and any successor) shall
cause the Excess Servicing Fee to be paid on the Mortgage Loans to Primary
Servicer monthly in accordance with the terms of the Pooling and Servicing
Agreement.
The Primary Servicer shall have the benefit and shall retain all
interest and income earned on the Primary Servicer Collection Account for the
Mortgage Loans and the A/B Mortgage Loans. If Primary Servicer is terminated
under this Agreement, it shall be entitled to collect all such interest and
income that accrues through the date of termination. If a Mortgage Loan or an
A/B Mortgage Loan becomes and remains a Specially Serviced Mortgage Loan,
Primary Servicer shall be entitled to collect all such interest and income that
accrues through the date of the applicable Servicing Transfer Event. The right
to retain such interest and income shall resume if such Mortgage Loan or an A/B
Mortgage Loan becomes and remains a Rehabilitated Mortgage Loan.
The Primary Servicer shall also be entitled to retain the fees or
portions of fees set forth in the Post Closing Matters Description. Except as
specifically provided in this Agreement, the Primary Servicer shall not be
entitled to receive any default interest or late fees collected from the
Borrower, and the Primary Servicer shall promptly, upon collection of such
amounts, forward such interest and fees to the Capmark Master Servicer in
accordance with the Payment and Collection Description. Primary Servicer may
waive the right to collect a fee or portion of a fee to which it is entitled
under this Agreement but may not waive or otherwise affect the rights of other
parties to any other fees or portions of fees to which Primary Servicer is not
entitled.
The Primary Servicer shall be required to pay out of its own funds,
without reimbursement, all overhead and general and administrative expenses
incurred by it in connection with its servicing activities hereunder, including
costs for office space, office equipment, supplies and related expenses,
employee salaries and related expenses and similar internal costs and expenses,
and Primary Servicer shall be required to pay all expenses that it incurs in the
administration of this Agreement (but not those incurred at the direction or
request of Capmark Master Servicer or a third party which direction or request
requires the performance of a task or obligation not contemplated of Primary
Servicer under this Agreement) and shall not be entitled to reimbursement of
such costs and expenses, except (1) as may be specifically provided in this
Agreement or (2) to the extent expenses are reimbursable by a Mortgagor under
the applicable Loan Documents and the Mortgagor makes such reimbursement.
In no event shall the Primary Servicer be responsible for
reimbursing or paying any independent costs or expenses incurred by the Capmark
Master Servicer in connection with a request for a modification, waiver or
amendment of a Mortgage Loan unless the Capmark Master Servicer has first
notified the Primary Servicer of its intent to incur such cost or expense and
the Primary Servicer has agreed to pay (or cause to be paid) such cost or
expense.
Section 2.4 Primary Servicer Representations and Warranties
The Primary Servicer hereby makes for the benefit of the Capmark
Master Servicer the same representations and warranties as are made by the
Capmark Master Servicer under Section 8.20 of the Pooling and Servicing
Agreement; provided, however, that (i) references therein to the Capmark Master
Servicer shall be deemed references to the Primary Servicer and references to
the Trustee shall be deemed references to the Capmark Master Servicer and (ii)
in lieu of the representation described in the first clause of Section
8.20(a)(i) of the Pooling and Servicing Agreement, the Primary Servicer
represents that the Primary Servicer is duly organized, validly existing and in
good standing as a corporation under the laws of the jurisdiction of its
organization. Primary Servicer further represents that since origination of each
Mortgage Loan and A/B Mortgage Loan, Primary Servicer has serviced each of the
Mortgage Loans Capmark Master Servicer and A/B Mortgage Loans in accordance with
its terms.
ARTICLE III.
DOCUMENTS AND OTHER MATTERS
Section 3.1 Segregation of Mortgage Loan Documents
The Primary Servicer shall segregate the Primary Servicer Servicing
Documents related to the Mortgage Loans and the A/B Mortgage Loans from all
other assets of the Primary Servicer and, upon request, forward to the Capmark
Master Servicer copies of such documents or originals of such documents if in
the possession of Primary Servicer and not part of the Mortgage File forwarded
to the Trustee. The Primary Servicer acknowledges that any letter of credit held
by it shall be held in its capacity as agent of the IQ15 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 IQ15 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
IQ15 Trust for any loss caused by the ineffectiveness of such assignment.
Section 3.2 Access to Documents; Provision of Certain Information
The Primary Servicer shall make available to the Capmark Master
Servicer or any Successor Primary Servicer, at a reasonable time, such
information as the Capmark Master Servicer or such Successor Primary Servicer
shall reasonably request in writing and shall make available to the Capmark
Master Servicer or any Successor Primary Servicer or Persons designated by the
Capmark Master Servicer or such Successor Primary Servicer such documents as the
Capmark Master Servicer shall reasonably request in writing. The Capmark Master
Servicer shall make available to the Primary Servicer, at a reasonable time,
such information as the Primary Servicer shall reasonably request in writing in
connection with the performance of the Services and, subject to the terms and
conditions of Section 8.15 of the Pooling and Servicing Agreement, shall make
available to the Primary Servicer or Persons designated by the Primary Servicer
such documents related to the Mortgage Loan and the A/B Mortgage Loans and the
Servicing of the Mortgage Loans and the A/B Mortgage Loans as the Primary
Servicer shall reasonably request in writing.
ARTICLE IV.
CAPMARK MASTER SERVICER ASSISTANCE
Section 4.1 Capmark Master Servicer Assistance
(a) The Capmark Master Servicer shall make reasonable efforts to do
any and all things reasonably requested by the Primary Servicer to enable
the Primary Servicer to render the Services, including, without
limitation, delivering to the Trustee any receipts or other documentation
that the Trustee may require to allow it to release any Mortgage Files or
documents contained therein or acquired in respect thereof requested by
the Primary Servicer. Notwithstanding any other provision of this
Agreement to the contrary and any other notwithstanding provisions in this
Agreement (including any contrary provision of Exhibit B-2), the Primary
Servicer shall do any and all things reasonably requested by the Capmark
Master Servicer to enable the Capmark Master Servicer to comply with its
obligations under the Pooling and Servicing Agreement. Before the Capmark
Master Servicer releases all or any portion of any Mortgage File or
document contained therein or acquired in respect thereof to the Primary
Servicer, the Capmark Master Servicer may require the Primary Servicer to
execute a receipt therefor or, in the event of a Mortgage Loan or an A/B
Mortgage Loan that has been repaid in full, a certificate with respect to
the payment in full of the related Mortgage Loan or A/B Mortgage Loan.
(b) If required in connection with the provision of the Services,
the Capmark Master Servicer shall furnish, or cause to be furnished, to
the Primary Servicer, upon request, any powers of attorney of the Capmark
Master Servicer or the Trustee, empowering the Primary Servicer to take
such actions as it determines to be reasonably necessary to comply with
its Servicing duties hereunder or to enable the Primary Servicer to
service and administer such Mortgage Loans and A/B Mortgage Loans and
carry out its duties hereunder, in each case in accordance with the
Servicing Standard and the terms of this Agreement. The Primary Servicer
hereby agrees to indemnify the Capmark Master Servicer and the Trustee
from any loss, damage, expense or claim relating to misuse or wrongful use
of any such power of attorney.
Section 4.2 Specially Serviced Mortgage Loans
The Primary Servicer shall promptly notify the Capmark Master
Servicer and Special Servicer with respect to Specially Serviced Mortgage Loans
of any questions, complaints, legal notices, or other communications relating to
the foreclosure or default of such loans or bankruptcy proceedings of a
Mortgagor that are received by the Primary Servicer and with respect to such
Mortgage Loan or A/B Mortgage Loan such other matters as would, consistent with
the Servicing Standard, require notification to the owner or the servicer of the
Mortgage Loan or A/B Mortgage Loan. The Capmark Master Servicer shall notify the
Primary Servicer of any Specially Serviced Mortgage Loan becoming a
Rehabilitated Mortgage Loan promptly following the Capmark Master Servicer's
receipt of notice to such effect from the Special Servicer and shall provide
Primary Servicer with all relevant documents received during the time that the
relevant Mortgage Loan or A/B Mortgage Loan was a Specially Serviced Mortgage
Loan following the Capmark Master Servicer's receipt of such documents from the
Special Servicer. Upon the request of Primary Servicer, Capmark Master Servicer
shall request from the Special Servicer all such relevant documents with respect
to a Rehabilitated Mortgage Loan. Notwithstanding anything contained herein to
the contrary, the Primary Servicer shall not without the Trustee's written
consent: (i) initiate any action, suit or proceeding solely under the Trustee's
name without indicating the Primary Servicer's representative capacity, or (ii)
knowingly take any action that causes the Trustee to be registered to do
business in any state, provided, however, that the preceding clause (i) shall
not apply to the initiation of actions relating to a Mortgage Loan that the
Primary Servicer is servicing pursuant to its duties herein (in which case the
Primary Servicer shall give three (3) Business Days prior notice to the Trustee
of the initiation of such action).
ARTICLE V.
ADDITIONAL PRIMARY SERVICER COVENANTS
Section 5.1 Notice of Litigation
With respect to any Mortgage Loan or A/B Mortgage Loan as to which
litigation is instituted, the Primary Servicer, if aware of such litigation,
shall notify the Capmark Master Servicer immediately as to the status of the
litigation related to such Mortgage Loan or A/B Mortgage Loan and shall, when
reasonably required or requested by the Capmark Master Servicer, provide to the
Capmark Master Servicer copies of all pertinent information in the Primary
Servicer's possession related to such litigation, including, without limitation,
copies of related Servicing Documents.
Section 5.2 No Personal Solicitation
The Primary Servicer hereby agrees that it will not knowingly take
any action or cause any action to be taken by any of its agents or Affiliates,
or independent contractors or working on its behalf, to personally, by telephone
or mail, solicit the prepayment of any Mortgage Loan or A/B Mortgage Loan by any
Mortgagor. Primary Servicer agrees not to forward to any Mortgagor or other
obligors under a Mortgage Loan or A/B Mortgage Loan, any correspondence or
documents between Capmark Master Servicer and Primary Servicer regarding a Post
Closing Request (except the Requirements List (as defined in Exhibit B-2(c))
without the consent of the Capmark Master Servicer or Special Servicer (acting
in its sole discretion), unless required by law.
Section 5.3 Fidelity Bond and Errors and Omissions Insurance Policy
(a) The Primary Servicer, at its own expense, shall maintain in
effect a fidelity bond (the "Primary Servicer Fidelity Bond") and an
errors and omissions policy (the "Primary Servicer Errors and Omissions
Insurance Policy") with a Qualified Insurer, naming the Capmark Master
Servicer as loss payee, affording coverage for all directors, officers and
employees. The Primary Servicer Errors and Omissions Insurance Policy and
Primary Servicer Fidelity Bond shall be in such form and amount that would
satisfy the same requirements for such policies as the Capmark Master
Servicer must satisfy as set forth in Section 8.2 of the Pooling and
Servicing Agreement. Notwithstanding any other provisions of this
Agreement, the Primary Servicer shall be permitted to self-insure with
respect to its obligations to maintain the Primary Servicer Fidelity Bond
and a Primary Servicer Errors and Omissions Policy to the extent the
Capmark Master Servicer is permitted under Section 8.2 of the Pooling and
Servicing Agreement (construed as if the references therein to the Capmark
Master Servicer were instead references to the Primary Servicer). The
Primary Servicer shall furnish to the Capmark Master Servicer, not later
than thirty (30) days after the Closing Date, evidence of the Primary
Servicer's compliance with this Section 5.3(a).
(b) The Primary Servicer shall promptly report in writing to the
Capmark Master Servicer any material adverse changes that may occur in the
Primary Servicer Fidelity Bond or the Primary Servicer Errors and
Omissions Insurance Policy and shall furnish to the Capmark Master
Servicer upon written request copies of all binders and policies or
certificates evidencing that such bond and insurance policy are in full
force and effect. The Primary Servicer shall promptly report in writing to
the Capmark Master Servicer all cases of embezzlement or fraud or
irregularities of operation relating to the servicing of the Mortgage
Loans and of the A/B Mortgage Loan by the Primary Servicer and its
employees, officers, directors, agents and representatives if such events
involve funds relating to the Mortgage Loans and the A/B Mortgage Loan.
The total of such losses, regardless of whether claims are filed with the
applicable insurer or surety, shall be disclosed in such reports together
with the amount of such losses covered by insurance. If a bond or
insurance claim report is filed with any of the Primary Servicer's bonding
companies or insurers relating to the Mortgage Loans or the A/B Mortgage
Loans or the servicing thereof, a copy of such report (which report may
omit any references to individuals suspected of such embezzlement, fraud
or irregularities of operation) shall be promptly furnished to the Capmark
Master Servicer.
Section 5.4 Primary Servicer's Financial Statements and Related
Information
The Primary Servicer shall deliver to the Capmark Master Servicer,
within one hundred twenty (120) days after the end of its fiscal year, a copy of
its annual financial statements, such financial statements to be audited if then
customarily audited, and with respect to any unaudited financial statements
provided by the Primary Servicer, which financial statements shall be certified
by the Primary Servicer's chief financial officer to be true, correct and
complete. The Primary Servicer shall notify the Capmark Master Servicer, as of
the Closing Date, of the Primary Servicer's fiscal year and shall notify the
Capmark Master Servicer promptly after any change thereof.
Section 5.5 No Advancing
Under no circumstance shall the Primary Servicer make or have an
obligation to make any Advances.
Section 5.6 REMIC Compliance
The Primary Servicer shall comply with all of the obligations
otherwise imposed on the Capmark Master Servicer under Article XII of the
Pooling and Servicing Agreement insofar as such obligations relate to the
Mortgage Loans and/or the A/B Mortgage Loans.
Section 5.7 Inspection Rights
The Primary Servicer shall afford the Capmark Master Servicer and
the Trustee, upon reasonable notice and during normal business hours, reasonable
access to all records, information, books and documentation regarding the
applicable Mortgage Loans and the A/B Mortgage Loans, and all accounts,
insurance policies and other relevant matters relating to this Agreement, and
access to Primary Servicing Officers of the Primary Servicer responsible for its
obligations hereunder. Without limiting the preceding sentence, Capmark Master
Servicer may visit the offices of Primary Servicer no more than once annually
for the purpose of reviewing Primary Servicer's compliance with this Agreement
upon reasonable notice and during normal business hours, and Primary Servicer
shall reasonably cooperate with Capmark Master Servicer to provide Capmark
Master Servicer with the information that Capmark Master Servicer reasonably
requests to permit such review. Primary Servicer shall reimburse Capmark Master
Servicer for its reasonable and actual travel expenses incurred in connection
with such review in an amount not to exceed $5,000 annually in total for this
Agreement and all similar commercial mortgage loan servicing agreements in place
between Primary Servicer and Capmark Master Servicer. Primary Servicer shall
have no obligation to provide access to non-public information not pertaining to
the Mortgage Loans or the A/B Mortgage Loans or to proprietary information
relating to Primary Servicer.
Section 5.8 Authorized Officer
Primary Servicer shall provide Capmark Master Servicer promptly with
a written list of authorized Servicing Officers of Primary Servicer, which may
be amended from time to time by written notice from Primary Servicer to Capmark
Master Servicer; provided, however, that such list shall denote one principal
Servicing Officer responsible for the Primary Servicer's obligations under this
Agreement.
Section 5.9 Additional Reports
Primary Servicer shall produce such additional written reports with
respect to the Mortgage Loans and the A/B Mortgage Loans as the Capmark Master
Servicer may from time to time reasonably request in accordance with the
Servicing Standard and shall reasonably cooperate with Capmark Master Servicer
to aid Capmark Master Servicer in its obligations to produce additional reports
and respond to inquiries under the Pooling and Servicing Agreement.
Section 5.10 Prepayment Interest Shortfalls and Excesses
(a) For any Mortgage Loan, Primary Servicer shall require Principal
Prepayments to be made so as not to cause a Prepayment Interest Shortfall.
If the Mortgage Loan Documents of a related Mortgage Loan do not allow
Primary Servicer to require Principal Prepayments (or condition acceptance
of Principal Prepayments) on a date that will avoid a Prepayment Interest
Shortfall ("Non-Mandatory Prepayment Date Mortgage Loan"), then the
Primary Servicer shall pay to Capmark Master Servicer on the date
specified in Section 2.1(c)(iv) of this Agreement, in addition to all
other amounts due for such Principal Prepayment, an amount payable by the
Primary Servicer from its own funds without reimbursement therefor equal
to any Prepayment Interest Shortfall that results from such Principal
Prepayment (for the avoidance of doubt, no such reimbursement shall be
required with respect to any B Notes); provided, however, that for all
Principal Prepayments received during any Collection Period with respect
to Non-Mandatory Prepayment Date Mortgage Loans, the Primary Servicer
shall in no event be required to remit an amount greater than the amount
of the Primary Servicing Fees for such Collection Period, plus any
investment income earned on the amount prepaid prior to the related
Distribution Date.
(b) If the Mandatory Prepayment Date Assumption proves to be
inaccurate as to any Mortgage Loan and, as a direct consequence of that
inaccuracy, the Capmark Master Servicer is required to make a payment of
Compensating Interest on any Master Servicer Remittance Date pursuant to
Section 8.10(c) of the Pooling and Servicing Agreement in respect of
Prepayment Interest Shortfalls arising on that Mortgage Loan during the
then most recently ended Collection Period, the Primary Servicer shall
reimburse the Capmark Master Servicer the amount of such Compensating
Interest payment attributable to that Mortgage Loan promptly following
request therefor by the Capmark Master Servicer (for the avoidance of
doubt, no such reimbursement shall be required with respect to any B
Note). The amount of damages, if any, due and owing from the Primary
Servicer under the PCFII Servicing Rights Purchase Agreement with respect
to an inaccuracy of the Mandatory Prepayment Date Assumption shall be
reduced by the amount of any Compensating Interest paid by the Primary
Servicer hereunder with respect to the applicable Mortgage Loan. For the
avoidance of doubt, no such reimbursement shall be required to be made in
connection with Prepayment Interest Shortfalls resulting from involuntary
Principal Prepayments incurred in respect of any Specially Serviced
Mortgage Loans or Defaulted Mortgage Loans, except to the extent the
Primary Servicer did not apply the proceeds of such involuntary Principal
Prepayments in accordance with the terms of the related Mortgage Mortgage
Loan Documents.
(c) If any Principal Prepayment on any Mortgage Loan results in a
Prepayment Interest Excess, then Primary Servicer shall remit such
Principal Prepayment and accompanying collections as required under
Section 2.1 and Capmark Master Servicer shall, on the Master Servicer
Remittance Date immediately following the remittance of the Principal
Prepayment by the Primary Servicer to the Capmark Master Servicer, remit
to Primary Servicer a pro rata portion (based upon all Prepayment Interest
Excesses remitted to Capmark Master Servicer by all Primary Servicers (as
defined in the Pooling and Servicing Agreement) with respect to such
Collection Period) of the amount by which the amount of the Prepayment
Interest Excesses for such Collection Period exceed all Prepayment
Interest Shortfalls (excluding, with respect to all of the Primary
Servicers, any Prepayment Interest Shortfalls of the type described in
clause (b) above) for such Collection Period with respect to any of the
mortgage loans (whether or not the subject of this Agreement) that are
serviced under the Pooling and Servicing Agreement (except that if the
aggregate pro rata portion owed to Primary Servicer during any Collection
Period as a result of such calculation exceeds $20,000, Capmark Master
Servicer shall remit to Primary Servicer such pro rata portion no later
than three (3) Business Days prior to the Distribution Date for the
applicable Collection Period).
Section 5.11 Consents
Primary Servicer shall (a) obtain the consent of the Special
Servicer with respect to assignments and assumptions of Mortgage Loans or A/B
Mortgage Loans in accordance and subject to the terms of Section A.1(c)(ii) of
Exhibit B-2(c) of this Agreement and Sections 8.7 of the Pooling and Servicing
Agreement; (b) obtain the consent of the Capmark Master Servicer with respect to
the defeasance of Mortgage Loans in accordance with and subject to the terms of
Section A.1(c)(i) of Exhibit B-2(c) of this Agreement; (c) obtain the consent of
the Special Servicer with respect to additional liens, monetary encumbrances and
mezzanine financings in accordance with and subject to the terms of Section
A.1(c)(iii) of Exhibit B-2(c) of this Agreement and Sections 8.7 and 9.5 of the
Pooling and Servicing Agreement; (d) notify Capmark Master Servicer of any
Materiality Determination, which shall thereafter be handled in accordance with
Sections A.1(a) and (c)(iv) of Exhibit B-2(c) of this Agreement; and (e) with
respect to an A/B Mortgage Loan, if required by the related A/B Intercreditor
Agreement, obtain the consent of the holder of the related B Note for those
actions which require the consent of such B Note holder.
Section 5.12 Quarterly Servicing Accounts Reconciliation Certification
Primary Servicer shall execute and deliver to Capmark Master
Servicer a certification substantially in the form set forth in Exhibit D hereto
no later than the 25th calendar day of each January, April, July and October,
commencing in 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 IQ15 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 IQ15 Trust and such "Note A-2"
is held by a different commercial mortgage trust, then (i) one set of the
reports required hereunder must be prepared and delivered with respect to
the trust that holds such "Note A-1" and a second set of the reports
required hereunder must be prepared and delivered with respect to the
trust that holds such "Note A-2", (ii) for purposes of measuring
percentages of pool assets, the first set of reports must reflect (where
applicable) a measurement of percentages of pool assets by reference to
the pool of assets held by the trust that holds such "Note A-1" and the
second set of reports must reflect (where applicable) a measurement of
percentages of pool assets by reference to the pool of assets held by the
trust that holds such "Note A-2" and (iii) references in the succeeding
provisions of this Section to the "ABS Issuing Entity" shall mean, for
purposes of the first set of reports, the trust that holds such "Note
A-1" and, for purposes of the second set of reports, the trust that holds
such "Note A-2".
(c) Certain Reports, Certifications and Compliance Information. The
Primary Servicer shall comply with the following provisions:
(i) Form 8-K Information. With respect to each ABS Issuing
Entity (for so long as it is subject to Exchange Act reporting
requirements), not later than the date set forth in Section 13.7 of
the Pooling and Servicing Agreement with respect to any event
described below of which the Primary Servicer becomes aware, the
Primary Servicer shall deliver to the Depositor or other Applicable
Depositor (with a copy to the Capmark Master Servicer) a report (a
"Primary Servicer Form 8-K Information Report") setting forth all of
the information regarding such event that is required to be included
in a Current Report on Form 8-K ("Form 8-K") under the Exchange Act,
to the extent that the Primary Servicer is required to deliver such
information under Article XIII of the Pooling and Servicing
Agreement.
(ii) Form 10-D Information. With respect to each ABS Issuing
Entity and each Distribution Date (for so long as such ABS Issuing
Entity is subject to Exchange Act reporting requirements), not later
than the date (in each month) set forth in Section 13.4 of the
Pooling and Servicing Agreement, the Primary Servicer shall deliver
to the Depositor or other Applicable Depositor (with a copy to the
Capmark Master Servicer) a report (a "Primary Servicer Form 10-D
Information Report") setting forth all of the information that is
required to be included in the Asset-Backed Issuer Distribution
Report on Form 10-D ("Form 10-D") under the Exchange Act relating to
the Distribution Date occurring in such month, to the extent that
the Primary Servicer is required to deliver such information under
Article XIII of the Pooling and Servicing Agreement.
(iii) Form 10-K Information (Other than Annual Compliance
Information). With respect to each ABS Issuing Entity (for so long
as it is subject to Exchange Act reporting requirements), not later
than the date in each month set forth in Section 13.5 of the Pooling
and Servicing Agreement, the Primary Servicer shall deliver to the
Depositor or other Applicable Depositor (with a copy to the Capmark
Master Servicer) a report (a "Primary Servicer Form 10-K Information
Report") setting forth all of the information (other than a report
regarding its assessment of compliance, a report by a registered
public accounting firm that attests to and reports on such
assessment report and a statement of compliance, which reports and
statements shall be governed by subsection (c)(iv)) that is required
to be included in an Annual Report on Form 10-K (a "Form 10-K")
under the Exchange Act relating to the most recently ended calendar
year, to the extent that the Primary Servicer is required to deliver
such information under Article XIII of the Pooling and Servicing
Agreement.
(iv) Annual Compliance Information. Not later than the fifth
(5th) Business Day prior to the date when the Primary Servicer is
required to deliver such reports and statement under the Pooling and
Servicing Agreement, the Primary Servicer shall deliver to the
Capmark Master Servicer the following reports and statement:
(A) a report regarding its assessment of compliance with
the servicing criteria specified in Item 1122(d) of Regulation
AB, as of and for the period ending the end of the prior
calendar year, with respect to asset-backed securities
transactions taken as a whole that are backed by the same
asset type as that included in the ABS Issuing Entity, which
report of assessment shall or would conform to the criteria
set forth in Item 1122(a) and Item 1122(c)(1) of Regulation
AB;
(B) a report by a registered public accounting firm that
attests to, and reports on, the assessment described in the
preceding clause (A), which report shall be made in a manner
that conform or would conform to the standards for attestation
engagements issued or adopted by the Public Company Accounting
Oversight Board and shall or would conform to the requirements
of Item 1122(b) and Item 1122(c)(1) of Regulation AB; and
(C) a statement of compliance from the Primary Servicer
that shall or would comply with Item 1123 of Regulation AB,
and signed by an authorized officer of the Primary Servicer,
to the effect that: (a) a review of the Primary Servicer's
activities during the then most-recently ended calendar year
and of its performance under this Agreement has been made
under such officer's supervision and (b) to the best of such
officer's knowledge, based on such review, the servicer has
fulfilled all of its obligations under this Agreement in all
material respects throughout the then most-recently ended
calendar year or, if there has been a failure to fulfill any
such obligation in any material respect, specifying each such
failure known to such officer and the nature and status
thereof.
(v) Xxxxxxxx-Xxxxx Back-Up Certification. Not later than the
fifth (5th) Business Day prior to the date when the Primary Servicer
is required to deliver such backup certification under the Pooling
and Servicing Agreement, the Primary Servicer shall execute and
deliver to the Capmark Master Servicer a backup certification, which
shall be substantially in the form attached as Exhibit BB-1 to the
Pooling and Servicing Agreement in support of any certification
obligation to which the Capmark Master Servicer, the depositor for
the ABS Issuing Entity, the trustee for the ABS Issuing Entity, the
Capmark Master Servicer for the ABS Issuing Entity (if other than
the Capmark Master Servicer) or other similar party is subject under
the governing agreement for the ABS Issuing Entity in connection
with the certification requirements of the Xxxxxxxx-Xxxxx Act of
2002, as amended, and Rule 302 of the Regulations with respect to
the mortgage loans serviced by the Primary Servicer under this
Agreement.
(d) [Reserved.]
(e) Forms of Reports. Each report and certification delivered by the
Primary Servicer shall appear under a cover substantially in the form
attached hereto as Exhibit E. Each report, certification and statement
that is delivered or rendered by the Primary Servicer itself shall be
signed by an officer of the Primary Servicer responsible for reviewing the
activities performed by the Primary Servicer under this Agreement. Each
report delivered by the Primary Servicer that contains Primary Servicer
Form 8-K Reporting Information, Primary Servicer Form 10-D Reporting
Information or Primary Servicer Form 10-K Reporting Information shall
appear in the same form that a Form 8-K, Form 10-D or Form 10-K is
required to appear under the Regulations, except that such report shall:
(i) omit the cover page that would be required under the
applicable form under the Regulations (but the report shall
nonetheless appear under a cover substantially in the form attached
hereto as Exhibit E, as contemplated above); and
(ii) omit to comply with the signature requirements that would
apply under the applicable form under the Regulations (but the
report shall nonetheless be signed by an officer of the Primary
Servicer responsible for reviewing the activities performed by the
Primary Servicer under this Agreement, as contemplated above, and
shall contain a statement to the effect that the report is submitted
in connection with the reporting obligations associated with the ABS
Issuing Entity under the Exchange Act).
In no event shall any statement or legend (whether such statement or
legend is included in, accompanies or is referred to in a report or
certification hereunder) that purports to disclaim liability for any report or
certification, or any portion thereof, have any force or effect to the extent
that such limitation on liability would not be given effect under the Securities
Act, the Exchange Act or the Regulations if a similar statement or legend were
made by or on behalf of the ABS Issuing Entity, the Capmark Master Servicer or
the Depositor in a report or certification filed with the SEC or otherwise
pursuant to the Regulations. The preceding statement shall not be construed to
allow any limitation on liability that is not otherwise contemplated under this
Section.
(f) Reliance on Information. For purposes of its obligations under
this Section, the Primary Servicer shall be entitled to rely on the
following information to the extent that such information relates to
mortgage loans that are not serviced under this Agreement: (i) the final
prospectus supplement prepared by the Depositor with respect to the
offering of the securities issued by the ABS Issuing Entity and (ii) any
reports delivered from time to time by the Capmark Master Servicer, the
Capmark Master Servicer for the ABS Issuing Entity (if such party is not
the Capmark Master Servicer), the trustee for the ABS Issuing Entity
and/or the paying agent, certificate administrator or other similar party
for the ABS Issuing Entity.
(g) Servicing Transfers. Notwithstanding any resignation, removal or
termination of the Primary Servicer, or any assignment of the obligations
of the Primary Servicer, pursuant to the other provisions of this
Agreement, the Primary Servicer shall remain obligated to comply from time
to time with the reporting and certification obligations that would have
been applicable under subsection (c) in the absence of -------------- such
resignation, removal, termination or assignment, but only to the extent
related to the time period prior to the effective date of such
resignation, removal termination or assignment. Without limiting the
generality of the preceding statement, if the Primary Servicer voluntarily
assigns its obligations under this Agreement pursuant to the other
provisions of this Agreement (or with the consent of the Capmark Master
Servicer), then the successor Primary Servicer shall be obligated to cause
the predecessor Primary Servicer to perform the surviving reporting and
certification obligations set forth above and the failure to do so will
constitute an "event of default" on the part of the successor Primary
Servicer.
(h) Acknowledgments. The parties acknowledge that the terms and
conditions of this Agreement may result in the commencement of one or more
reporting and/or certification obligations on a date that is subsequent to
the date of this Agreement. The parties acknowledge that the provisions of
this Section shall not be construed to require the Primary Servicer to
sign any Form 8-K, Form 10-D or Form 10-K to be filed with respect to the
ABS Issuing Entity with the SEC (except to the extent, if any, that the
Regulations require such signature).
(i) Certain Determinations. Insofar as the determination of any
reporting or certification obligation hereunder depends on an
interpretation of the Securities Act, the Exchange Act or the Regulations,
then, as between the Primary Servicer on the one hand, and the Capmark
Master Servicer on the other, the determination of the Capmark Master
Servicer, as set forth in a written notice to the Primary Servicer, shall
be conclusive and binding in the absence of manifest error, and, for the
purposes of this Agreement, the Primary Servicer shall be entitled to rely
on any such determination. If the Primary Servicer initiates legal
proceedings asserting an interpretation that differs from any such
determination of the Capmark Master Servicer, as set forth in a written
notice to the Primary Servicer, the Primary Servicer shall comply with
such determination of the Capmark Master Servicer unless and until a
final, nonappealable judgment is rendered in connection with such
proceedings, in which case such final, nonappealable judgment shall
control. If the Primary Servicer receives notice of interpretations
hereunder from the Capmark Master Servicer that conflict with each other,
the Primary Servicer shall promptly notify the Capmark Master Servicer, in
which case the Primary Servicer shall comply with the interpretation
described in the applicable written notice from the Capmark Master
Servicer.
(j) Specific Regulatory Determinations. Notwithstanding any contrary
provisions set forth in this Agreement, if the SEC or its staff issues any
order, no-action letter or staff interpretation that relates specifically
to asset-backed securities issuers or transactions established by the
Applicable Depositor and/or its affiliates or specifically to the
applicable ABS Issuing Entity, then, subject to the immediately succeeding
sentence, the Primary Servicer shall comply with such order, no-action
letter or staff interpretation insofar as such order, no-action letter or
staff interpretation, or the interpretations reflected therein, does or
would (if implemented) affect the reporting and certification obligations
of the Primary Servicer hereunder. The compliance obligation otherwise
described in the preceding sentence shall not be required unless there
shall have been delivered to the Primary Servicer a notice of such order,
no-action letter or staff interpretation, which notice attaches a copy of
the applicable order, no-action letter or staff interpretation or relevant
excerpts thereof.
(k) [Reserved.]
(l) No Delegation. The Primary Servicer shall not delegate or
subcontract any of its duties under this Section 5.13 under any
circumstances, notwithstanding any provisions of this Agreement that
otherwise authorizes the Primary Servicer to delegate its obligations
under this Agreement.
(m) Disclosure. The Primary Servicer hereby consents to the filing
with the SEC, and the unrestricted disclosure to the public, of this
Agreement, any amendment to this Agreement and any and all reports and
certifications delivered under this Agreement.
(n) Changes in Law. In the event that the Securities Act, the
Exchange Act or the Regulations are amended to impose additional or more
stringent reporting and/or certification obligations with respect to the
ABS Issuing Entity, which additional or more stringent reporting and/or
certification obligations are not otherwise effective pursuant to the
other provisions of this Agreement, the parties hereto shall negotiate in
good faith for an amendment to this Section 5.13 to result in compliance
with such law or regulation as so amended. In the event that the
Securities Act, the Exchange Act or the Regulations are amended to reduce
reporting and/or certification obligations with respect to the ABS Issuing
Entity, the parties hereto shall negotiate in good faith for an amendment
to this Section 5.13 to result in compliance with such law or regulation
as so amended.
ARTICLE VI.
PRIMARY SERVICER DEFAULT; TERMINATION;
POST-TERMINATION OBLIGATIONS
Section 6.1 Primary Servicer Default
Each of the following events shall constitute a "Primary Servicer
Default" hereunder:
(a) any failure by the Primary Servicer to remit to the Capmark
Master Servicer when due any amount required to be remitted under this
Agreement; or
(b) except in the case of Section 6.1(c), any failure by the Primary
Servicer duly to observe or perform in any material respect any of the
covenants or agreements on the part of the Primary Servicer contained in
this Agreement, which failure continues unremedied for a period of
twenty-five (25) days after the date on which written notice of such
failure, requiring the same to be remedied, shall have been given by the
Capmark Master Servicer to Primary Servicer; provided, however, that to
the extent the Capmark Master Servicer determines in its reasonable
discretion that the Primary Servicer is in good faith attempting to remedy
such failure and the Certificateholders and holders of any B Note shall
not be materially and adversely affected thereby, such cure period may be
extended to the extent necessary to permit the Primary Servicer to cure
such failure; provided, however, that such cure period may not exceed
sixty (60) days; and provided, further, that if such failure to observe or
perform on the part of the Primary Servicer would result in an Event of
Default (or an event that with notice or the passage of time would
constitute such an Event of Default) by the Capmark Master Servicer under
the Pooling and Servicing Agreement or applicable A/B Intercreditor
Agreement, then the cure periods described in this Section 6.1(b) shall
not apply; or
(c) any breach of the representations and warranties made pursuant
to Section 2.4(b) hereof or any failure by the Primary Servicer to comply
with one or more provisions of Section 5.13 or clause (d) of Article VII;
provided, however, that all of the following provisions shall apply:
(A) to the extent the Capmark Master Servicer
determines, in its reasonable discretion, following consultation
with the Applicable Depositor, that the Primary Servicer is in good
faith attempting to remedy such failure and no Certification Party
will be materially and adversely affected by giving the Primary
Servicer an opportunity to cure such failure, the Capmark Master
Servicer may, following consultation with the Applicable Depositor,
give the Primary Servicer such opportunity;
(B) the period of time to cure such failure may not
exceed three (3) days;
(C) no such cure period shall apply if such failure to
perform on the part of the Primary Servicer would result in either
failure by the Capmark Master Servicer (or Capmark as master
servicer in any other securitization) to submit to the Depositor (or
another Applicable Depositor, as applicable), or failure by the
Depositor (or another Applicable Depositor) to submit to the SEC,
timely, complete and accurate reports of the type described in
Article XIII of the Pooling and Servicing Agreement;
(D) unless the Capmark Master Servicer otherwise
consents, the cure period described in this Section 6.1(c) shall end
on the earlier of (I) the date on which the Capmark Master Servicer
has delivered (or would be required to deliver) a report or
certification to the Applicable Depositor or to the SEC, which
report is or would be inaccurate, incomplete or unable to be
rendered as a result of such failure of the Primary Servicer and
(II) the date on which the Applicable Depositor has delivered (or
would be required to deliver) a report or certification to the SEC,
which report is or would be inaccurate, incomplete or unable to be
rendered as a result of such failure of the Primary Servicer; and
(E) if, following the Primary Servicer's failure to
comply with any of its obligations under Section 5.13(c)(i),
5.13(c)(ii), 5.13(c)(iii), 5.13(c)(iv)(A), 5.13(c)(iv)(B) or
5.13(c)(iv)(C) hereof on or prior to the dates by which such
obligations are to be performed pursuant to, and as set forth in,
such Sections, (x) the Primary Servicer subsequently complies with
such obligations before the Capmark Master Servicer gives written
notice to the Primary Servicer that it is terminated in accordance
with this Section 6.1(c) and Section 6.2, (y) the Primary Servicer's
failure to comply does not cause termination of the Capmark Master
Servicer under Section 8.28(b)(iii) and Section 8.29 of the Pooling
and Servicing Agreement, (z) the Primary Servicer's failure to
comply does not cause the Paying Agent to fail in its obligations to
timely file the related Form 8-K, Form 10-D or Form 10-K, as the
case may be, by the related 8-K Filing Deadline, 10-D Filing
Deadline or 10-K Filing Deadline, then such failure of the Primary
Servicer to so comply shall cease to be a Primary Servicer Default
under this Section 6.1(c) on the date on which such Form 8-K, Form
10-D or Form 10-K is so filed; or
(d) any breach of the representations and warranties made pursuant
to Section 2.4(a) hereof that materially and adversely affects the
interest of the Capmark Master Servicer and that continues unremedied for
a period of twenty-five (25) days after the date on which written notice
of such breach, requiring the same to be remedied, shall have been given
by the Capmark Master Servicer to Primary Servicer; provided, however,
that to the extent the Capmark Master Servicer determines in its
reasonable discretion that the Primary Servicer is in good faith
attempting to remedy such breach and the Certificateholders and holders of
any B Note shall not be materially and adversely affected thereby, such
cure period may be extended to the extent necessary to permit the Primary
Servicer to cure such breach; provided, however, that such cure period may
not exceed sixty (60) days; and provided, further, that if such failure to
perform on the part of the Primary Servicer results in an Event of Default
(or an event that with notice or the passage of time would constitute such
an Event of Default) by the Capmark Master Servicer under the Pooling and
Servicing Agreement or applicable A/B Intercreditor Agreement, then the
cure periods described in this Section 6.1(d) shall not apply; or
(e) any Rating Agency shall qualify, lower or withdraw the
outstanding rating of any Class of Certificates because the prospective
financial condition or mortgage loan servicing capacity of the Primary
Servicer is insufficient to maintain such rating; or
(f) a decree or order of a court or agency or supervisory authority
having jurisdiction in the premises in an involuntary case under any
present or future federal or state bankruptcy, insolvency or similar law
for the appointment of a conservator, receiver, liquidator, trustee or
similar official in any bankruptcy, insolvency, readjustment of debt,
marshalling of assets and liabilities or similar proceedings, or for the
winding-up or liquidation of its affairs, shall have been entered against
the Primary Servicer and such decree or order shall have remained in force
undischarged or unstayed for a period of sixty (60) days; or
(g) the Primary Servicer shall consent to the appointment of a
conservator, receiver, liquidator, trustee or similar official in any
bankruptcy, insolvency, readjustment of debt, marshalling of assets and
liabilities or similar proceedings or of or relating to all or
substantially all of its property; or
(h) the Primary Servicer shall admit in writing its inability to pay
its debts generally as they become due, file a petition to take advantage
of any applicable bankruptcy, insolvency or reorganization statute, make
an assignment for the benefit of its creditors, voluntarily suspend
payment of its obligations, or take any corporate action in furtherance of
the foregoing; or
(i) any other event caused by the Primary Servicer which creates an
Event of Default (or an event that with notice or the passage time would
constitute or result in such an Event of Default) of the Capmark Master
Servicer under the Pooling and Servicing Agreement or under an A/B
Intercreditor Agreement;
(j) if Primary Servicer becomes or serves as Capmark Master Servicer
at any time, any failure by the Primary Servicer duly to observe or
perform in any material respect any of the covenants or agreements of
Capmark Master Servicer under the Pooling and Servicing Agreement or under
an A/B Intercreditor Agreement, which failure continues unremedied beyond
the expiration of applicable cure periods; or
(k) the Primary Servicer shall fail to terminate any sub-servicer
appointed by it that is a Reporting Servicer subject to and in accordance
with Section 8.4(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 Capmark Master Servicer's written notice of such termination delivered
at the Capmark Master Servicer's option following the occurrence of a
Primary Servicer Default other than as described in Section 6.1(c), (ii)
the occurrence of a Primary Servicer Default described in Section 6.1(c)
and (iii) the later of the final payment or other liquidation of (x) the
last Mortgage Loan or (y) the A/B Mortgage Loan (the "Primary Servicing
Termination Date"). From and after the Primary Servicing Termination Date,
the Primary Servicer shall, if applicable, continue to cooperate in the
transfer of primary servicing, including the delivery of files and
transfer of accounts as contemplated hereby but shall have no further
obligations under this Agreement.
Without limiting the foregoing, the Primary Servicer agrees that the
rights and duties of the Capmark Master Servicer under this Agreement, the
Pooling and Servicing Agreement and each A/B Intercreditor Agreement may be
assumed by a successor Capmark Master Servicer or the Trustee upon a termination
of the Capmark Master Servicer's servicing rights pursuant to the Pooling and
Servicing Agreement.
Primary Servicer's rights and obligations shall expressly survive a
termination of Capmark's Master Servicer's servicing rights pursuant to the
Pooling and Servicing Agreement (except a termination of Capmark Master Servicer
caused by a Primary Servicer Default). In the event of such a termination, any
successor master servicer or the Trustee (if it assumes the servicing
obligations of the Capmark Master Servicer) shall be deemed to automatically
have assumed and agreed to this Agreement without further action upon becoming
the successor Capmark Master Servicer.
Upon the request of Primary Servicer, Capmark Master Servicer shall
confirm to Primary Servicer in writing that this Agreement remains in full force
and effect. Upon the request of Primary Servicer, the successor Capmark Master
Servicer or Trustee, as applicable, shall confirm to Primary Servicer in writing
that this Agreement remains in full force and effect. Upon the request of the
successor Capmark Master Servicer or Trustee, Primary Servicer shall confirm to
the successor Capmark Master Servicer or Trustee, as applicable, in writing that
this Agreement remains in full force and effect.
(b) The Capmark Master Servicer's reimbursement obligations to the
Primary Servicer hereunder shall survive the Primary Servicing Termination
Date, but only to the extent such reimbursement relates to a period prior
to the termination of all of the Primary Servicer's obligations hereunder.
(c) The rights of Capmark Master Servicer to terminate Primary
Servicer upon the occurrence of a Primary Servicer Default shall be in
addition to any other rights Capmark Master Servicer may have at law or in
equity, including injunctive relief or specific performance.
Section 6.3 Post-Termination Obligations
(a) In the event of a termination of primary servicing due to a
Primary Servicer Default, the Primary Servicer shall promptly deliver the
Primary Servicer Servicing Documents as directed by the Capmark Master
Servicer and remit to the Capmark Master Servicer, by wire transfer of
immediately available funds, all cash held by the Primary Servicer with
respect to the related Mortgage Loans and A/B Mortgage Loans, and shall,
if so requested by the Capmark Master Servicer, assign to the Capmark
Master Servicer or a Successor Primary Servicer, as directed by the
Capmark Master Servicer, and in such event the Capmark Master Servicer
shall assume, or cause the Successor Primary Servicer to assume, all
service contracts related to the Mortgage Loans and the A/B Mortgage Loans
transferred thereon but only to the extent such contracts are assignable
and the required consents (if any) to such assignments have been obtained.
The Primary Servicer shall use all reasonable efforts to obtain the
consents required to effect such assignments.
(b) On and after the Primary Servicing Termination Date, the Primary
Servicer shall promptly endorse and send to the Capmark Master Servicer
via overnight mail or delivery service any checks or other funds in
respect of any Mortgage Loan and any A/B Mortgage Loan which are received
by the Primary Servicer.
(c) The Primary Servicer shall provide to the Capmark Master
Servicer promptly (but in no event later than ten (10) Business Days)
after the Primary Servicing Termination Date the following information, in
each case as of such date: (a) a ledger accounting itemizing the dates and
amounts of all payments made, received or applied by the Primary Servicer
with regard to each Mortgage Loan and each A/B Mortgage Loan, further
itemizing principal and interest payments, tax payments, special
assessments, hazard insurance, mortgage insurance premiums, ground rents,
if any, and all other payments and (b) a current trial balance for each
such Mortgage Loan and A/B Mortgage Loan.
(d) On a date to be agreed upon by the Primary Servicer and the
Capmark Master Servicer, but not later than the Business Day following the
Primary Servicing Termination Date, the Primary Servicer shall commence
and continue diligently to completion at its own expense, to notify
Mortgagors under the related Mortgage Loans and A/B Mortgage Loans of the
address to which payments on such Mortgage Loans and A/B Mortgage Loans
should be sent after the Primary Servicing Termination Date; provided,
however, that in any event, Primary Servicer shall be obligated to notify
Mortgagors within seven (7) Business Days of the Primary Servicing
Termination Date.
(e) The Primary Servicer shall promptly forward to the Capmark
Master Servicer, at the Primary Servicer's expense all Mortgagor
correspondence, insurance notices, tax bills or any other correspondence
or documentation related to any Mortgage Loan and any A/B Mortgage Loan
which is received by the Primary Servicer after the Primary Servicing
Termination Date.
(f) The Primary Servicer shall otherwise cooperate in the orderly
transfer of the servicing of the Mortgage Loans and A/B Mortgage Loans and
shall forward to the Capmark Master Servicer and any Successor Primary
Servicer such documents as it may receive from time to time regarding any
Mortgage Loan or A/B Mortgage Loan transferred and provide such other
assistance as may reasonably be required by the Capmark Master Servicer or
any Successor Primary Servicer regarding such transfer.
(g) The Primary Servicer shall be entitled to all fees,
compensation, interest and earnings on the Mortgage Loans and A/B Mortgage
Loans accrued through the date of termination of its obligations and
rights under this Agreement; provided, however, Primary Servicer shall
continue to collect the Excess Servicing Fee after termination in
accordance with the terms of this Agreement and the Pooling and Servicing
Agreement.
Section 6.4 Additional Termination
Notwithstanding any provision herein to the contrary, this Agreement
shall terminate with respect to any individual Mortgage Loan or A/B Mortgage
Loan (i) if and when such Mortgage Loan or A/B Mortgage Loan becomes a Specially
Serviced Mortgage Loan or an REO Mortgage Loan or (ii) if and when such Mortgage
Loan or A/B Mortgage Loan is sold or otherwise disposed of by or on behalf of
the IQ15 Trust (which sale or disposition shall not include the transformation
of a Mortgage Loan or A/B Mortgage Loan into a Defeasance Loan). In the event of
such termination, the Primary Servicer shall comply with Section 6.3 as if a
Primary Servicer Default had occurred, except that such Section shall be
construed to relate only to such Mortgage Loan or A/B Mortgage Loan and
references therein to Primary Servicing Termination Date shall be construed to
mean the date of such termination, and (ii) the Primary Servicer shall cooperate
in the orderly transfer of the servicing of such Mortgage Loan or A/B Mortgage
Loan and shall forward to the Capmark Master Servicer such documents as it may
receive from time to time with respect thereto and provide such other assistance
as may reasonably be required by the Capmark Master Servicer with respect
thereto. Primary Servicer shall be entitled to all fees, compensation, interest
and earnings on such Mortgage Loan or A/B Mortgage Loan accrued through the date
of termination of its obligations and rights with respect to such Mortgage Loan
or A/B Mortgage Loan under this Agreement; provided, however, Primary Servicer
shall continue to collect the Excess Servicing Fee after termination in
accordance with the terms of this Agreement and the Pooling and Servicing
Agreement. If such Mortgage Loan or A/B Mortgage Loan subsequently becomes a
Rehabilitated Mortgage Loan, then the Primary Servicer shall promptly resume the
servicing of such Mortgage Loan or A/B Mortgage Loan in accordance with the
terms hereof.
ARTICLE VII.
SUBCONTRACTORS
Upon prior notice to but without the consent of Capmark Master
Servicer in the case of material subcontracts and without prior notice to or the
prior written consent of the Capmark Master Servicer in the case of non-material
subcontracts, the Primary Servicer shall be permitted to employ, at its own
expense, subcontractors to perform the Services for the Mortgage Loans and A/B
Mortgage Loans; provided, however, that (a) the Primary Servicer shall remain
fully liable at all times for the performance of all Services and for all other
obligations hereunder; (b) in no event shall any such subcontractors make any of
the decisions, be given discretion to make any Capmark Master Servicer
decisions, or have any authority to make any decisions, required as part of a
Category 1 Request or Category 2 Request or any decision or recommendation
involving the exercise of the Primary Servicer's Capmark Master Servicer Capmark
Master Servicer discretion as a "lender" under any of the Mortgage Loan
Documents for the Mortgage Loans and the A/B Mortgage Loans; (c) the Primary
Servicer shall maintain and perform policies and procedures to monitor such
subcontractors' performance of the services for which they are employed; and
(d)(i) the Primary Servicer shall not, for so long as any ABS Issuing Entity is
subject to the reporting requirements of the Exchange Act, engage any
"Subcontractor" (as defined in the Pooling and Servicing Agreement) after the
Closing Date without the Capmark Master Servicer's and the Depositor's prior
written consent, which, in either case, shall not be unreasonably withheld and
(ii) the Primary Servicer shall, with respect to each such Subcontractor with
which it has entered into a servicing relationship with respect to the Mortgage
Loans after the Closing Date, (A) include in a written agreement between the
Primary Servicer and such Subcontractor provisions analogous to those of Section
5.13 hereof, Section 6.1(c) hereof, Section 2.4(b) hereof, this clause (d) of
this Article VII, the last sentence of Section 10.11 hereof, the last sentence
of Section 10.13 hereof and the last sentence of Section 13.12 of the Pooling
and Servicing Agreement and (B) use reasonable efforts to cause such
Subcontractor to comply with the report delivery, indemnification and
contribution obligations set forth in such analogous provisions.
ARTICLE VIII.
PRIMARY SERVICER TO HOLD PROPERTY FOR THE CAPMARK MASTER SERVICER
All records relating to the Mortgage Loans and the A/B Mortgage
Loans held by the Primary Servicer, including but not limited to the Primary
Servicer Servicing Documents, mortgage servicing documents, books, computer
tapes and other documents and records (except for microfilm records) as well as
any reproductions or copies of such records furnished for the purposes of
performing Services from the Cut-off Date are, and shall continue at all times
to be, held by the Primary Servicer for the benefit of the Capmark Master
Servicer and for the Trustee and shall not be released, disseminated or
otherwise made available to third parties without the prior written consent of
the Capmark Master Servicer.
ARTICLE IX.
INDEMNIFICATION
Section 9.1 Primary Servicer's Indemnity
(a) The Primary Servicer shall indemnify the Capmark Master
Servicer, its officers, employees and agents against, and hold the Capmark
Master Servicer harmless from, any and all losses, liabilities, expenses,
claims, demands, costs, or judgment of any type against the Capmark Master
Servicer arising out of or related to (i) a negligent or willful failure
of the Primary Servicer or any Person hired by the Primary Servicer to
perform properly any of the Services to be performed by the Primary
Servicer pursuant to the Payment and Collection Description, the Payment
and Mortgage Loan Status Reports, Post Closing Matters Description and
Task Description, (ii) any failure by the Primary Servicer to perform its
obligations under this Agreement, or (iii) breach of any of the Primary
Servicer's representations and warranties hereunder; provided, however,
that the Primary Servicer shall not be required to indemnify the Capmark
Master Servicer, its officers, employees or agents against or hold the
Capmark Master Servicer, its officers, employees or agents harmless from
any losses to the extent that such loss is caused by the actions of the
Capmark Master Servicer, its officers, employees or agents in violation of
the Capmark Master Servicer's duties under this Agreement, under the
Pooling and Servicing Agreement or under an A/B Intercreditor Agreement
(except to the extent that such failure was caused by the Primary
Servicer's failure to perform its obligations hereunder). The
indemnification provided under this Section 9.1 shall survive the Primary
Servicing Termination Date. The Capmark Master Servicer shall promptly
notify the Primary Servicer if a claim is made by a third party with
respect to this Agreement or the Mortgage Loans or the A/B Mortgage Loans
entitling the Capmark Master Servicer to indemnification hereunder. The
Primary Servicer shall assume the defense of any such claim (with counsel
reasonably satisfactory to the Capmark Master Servicer) and pay all
expenses in connection therewith, including counsel fees, and promptly
pay, discharge and satisfy any judgment or decree which may be entered
against it or them in respect of such claim. Any failure to so notify the
Primary Servicer shall not affect any of the Capmark Master Servicer's
rights to indemnification.
(b) Neither the Primary Servicer nor any of the directors, officers,
employees or agents of the Primary Servicer shall be under any liability
to the Capmark Master Servicer, the holders of the Certificates, any
holder of a B Note, the Depositor, the Trustee or any other Person for any
action taken or for refraining from the taking of any action in good faith
and using its reasonable business judgment pursuant to this Agreement, or
for errors in judgment; provided that this provision shall not protect the
Primary Servicer or any such person against any breach of a covenant,
representation or warranty contained herein or any liability which would
otherwise be imposed by reason of willful misfeasance, bad faith or
negligence in its performance of duties or by reason of reckless disregard
for its obligations and duties under this Agreement. The Primary Servicer
and any director, officer, employee or agent of the Primary Servicer may
rely in good faith on any document of any kind prima facie properly
executed and submitted by any Person respecting any matters arising
hereunder.
Section 9.2 Capmark Master Servicer's Indemnity
The Capmark Master Servicer shall indemnify the Primary Servicer,
its officers, employees and agents against, and hold the Primary Servicer
harmless from, any and all losses, liabilities, expenses, claims, demands,
costs, or judgment of any type against the Primary Servicer, to the extent
arising out of, or related to reliance by the Primary Servicer on, (i) pursuant
to Section 5.13(i), an interpretation of the Securities Act, the Exchange Act or
the Regulations set forth in a written notice from the Capmark Master Servicer
to the Primary Servicer or (ii) any incorrect asset pool balance supplied by the
Capmark Master Servicer with respect to the IQ15 Trust, if such incorrect
balance is the cause of any incorrect determination by the Primary Servicer that
an obligor on a Mortgage Loan is not a Significant Obligor. The indemnification
provided under this Section 9.2 shall survive the Primary Servicing Termination
Date.
ARTICLE X.
MISCELLANEOUS
Section 10.1 Severability
If any term, covenant, condition or provision hereof is unlawful,
invalid, or unenforceable for any reasons whatsoever, and such illegality,
invalidity, or unenforceability does not affect remaining part of this
Agreement, then all such remaining parts hereof shall be valid and enforceable
and have full force and effect as if the invalid or unenforceable part had not
been included.
Section 10.2 Rights Cumulative; Waivers
The rights of each of the parties under this Agreement are
cumulative and may be exercised as often as any party considers appropriate. The
rights of each of the parties hereunder shall not be capable of being waived or
amended other than by an express waiver or amendment in writing. Any failure to
exercise (or any delay in exercising) any of such rights shall not operate as a
waiver or amendment of that or any other such right. Any defective or partial
exercise of any of such right shall not preclude any other or further exercise
of that or any other such right. No act or course of conduct or negotiation on
the part of any party shall in any way stop or preclude such party from
exercising any such right or constitute a suspension or any waiver of any such
right.
Section 10.3 Headings
The headings of the Sections and Articles contained in this
Agreement are inserted for convenience only and shall not affect the meaning or
interpretation of this Agreement or any provision hereof.
Section 10.4 Construction
Unless the context otherwise requires, singular nouns and pronouns,
when used herein, shall be deemed to include the plural of such noun or pronoun
and pronouns of one gender shall be deemed to include the equivalent pronoun of
the other gender. This Agreement is the result of arm's-length negotiations
between the parties and has been reviewed by each party hereto and its counsel.
Each party agrees that any ambiguity in this Agreement shall not be interpreted
against the party drafting the particular clause which is in question.
Section 10.5 Assignment
(a) This Agreement and the terms, covenants, conditions, provisions,
obligations, undertakings, rights and benefits hereof, shall be binding
upon, and shall inure to the benefit of, the undersigned parties and their
respective permitted successors and assigns. This Agreement and the rights
and benefits hereunder of the Primary Servicer shall not be assignable,
and the duties and obligations hereunder of such party shall not be
delegable, except that in the following instances, Primary Servicer may
assign, sell or transfer its rights under this Agreement without the
consent of (but upon written notice to) the Capmark Master Servicer:
(i) Primary Servicer may assign, sell or transfer its rights
and obligations under this Agreement (in whole and not in part) to a
parent company of Primary Servicer or a wholly-owned subsidiary or
Affiliate of such party, or a successor by merger or as the result
of a demutualization of a parent company of Primary Servicer, as
long as such successor has net assets and net worth equal to or
greater than the net assets and net worth of the Primary Servicer.
(ii) Primary Servicer may assign, sell or transfer its rights
and obligations under this Agreement (in whole and not in part) to
an entity that then serves as a primary servicer for other mortgage
loans held by the IQ15 Trust at the time of such assignment, sale or
transfer.
(iii) With the prior written consent of the Capmark Master
Servicer and the Depositor which consent shall not be unreasonably
withheld or delayed, Primary Servicer may assign, sell or transfer
its rights and obligations under this Agreement (in whole and not in
part) to any master or primary servicer, if (1) such entity is
either (a) rated by the Rating Agencies as satisfactory or its
equivalent in such capacity or (b) approved by the Special Servicer
and Operating Advisor (in addition to Capmark Master Servicer as
provided above), which approval shall not be unreasonably withheld
or delayed, and (2) Primary Servicer at its sole cost receives
Rating Agency Confirmation from the Rating Agencies prior to such
assignment, sale or transfer.
(iv) Primary Servicer may subcontract certain of its rights
and obligations under this Agreement as expressly provided in and
subject to the terms of Article VII of this Agreement.
Any such assignment under this Section 10.5(a) shall (i) not be
effective until such Successor Primary Servicer enters into a written agreement
reasonably satisfactory to the Capmark Master Servicer and the Depositor
agreeing to be bound by the terms and provisions of this Agreement (but not
altering the obligations under this Agreement); and (ii) not relieve the
assigning Primary Servicer of any duties or liabilities arising or incurred
prior to such assignment. Any costs or expenses incurred in connection with such
assignment shall be payable by the assigning Primary Servicer. Any assignment or
delegation or attempted assignment or delegation in contravention of this
Agreement shall be null and void. The proceeds of any assignment, sale or
transfer permitted under this Section 10.5 or to which consent was granted shall
belong solely to the assignor of such rights, and Capmark Master Servicer shall
have no claim to them.
(b) Resignation of Primary Servicer. Except as otherwise provided in
Section 10.6(b) hereof, the Primary Servicer shall not resign from the
obligations and duties hereby imposed on it unless it determines that the
Primary Servicer's duties hereunder are no longer permissible under
applicable law or are in material conflict by reason of applicable law
with any other activities carried on by it. Any such determination
permitting the resignation of the Primary Servicer shall be evidenced by
an Opinion of Counsel to such effect delivered to the Capmark Master
Servicer. No such resignation shall become effective until a successor
servicer designated by the Capmark Master Servicer shall have assumed the
Primary Servicer's responsibilities and obligations under this Agreement,
and Special Servicer and Operating Advisor shall have consented to such
successor servicer which consent shall not be unreasonably withheld or
delayed; provided that the designation and assumption by Capmark Master
Servicer of Primary Servicer's responsibilities and obligations under this
Agreement pursuant to this Section 10.6(a) shall not require the consent
of Special Servicer or Operating Advisor.
(c) The Primary Servicer may resign from the obligations and duties
imposed on it, upon sixty (60) days' notice to the Capmark Master
Servicer, provided that (i) the Primary Servicer bears all costs
associated with its resignation and the transfer of servicing; (ii)
Primary Servicer designates a successor servicer to assume Primary
Servicer's responsibilities and obligations under this Agreement; (iii)
Capmark Master Servicer, Special Servicer and Operating Advisor shall
consent to such successor servicer which consent shall not be unreasonably
withheld or delayed; and (iv) such successor servicer assumes Primary
Servicer's responsibilities and obligations under this Agreement;
provided, however, that the designation and assumption by Capmark Master
Servicer of Primary Servicer's responsibilities and obligations under this
Agreement pursuant to this Section 10.6(b) shall not require the consent
of Special Servicer or Operating Advisor.
(d) In connection with any resignation under subsections (a) or (b)
above, the Primary Servicer shall comply with Section 6.3 as if a Primary
Servicer Default occurred, except that reference in such Section to
Primary Servicing Termination Date shall be construed to mean the date of
resignation under subsections (a) or (b) above, as the case may be.
Section 10.6 Prior Understandings
This Agreement supersedes any and all prior discussions and
agreements between or among the Seller, the Primary Servicer and the Capmark
Master Servicer with respect to the Servicing of the Mortgage Loans and the A/B
Mortgage Loans and the other matters contained herein. This Agreement, together
with the Pooling and Servicing Agreement and each A/B Intercreditor Agreement,
contain the sole and entire understanding between the parties hereto with
respect to the transactions contemplated herein. Every effort shall be made to
construe this Agreement, the Pooling and Servicing Agreement and each A/B
Intercreditor Agreement consistently. If a conflict exists between such
agreements, then the Pooling and Servicing Agreement and with respect to an A/B
Mortgage Loan, the applicable A/B Intercreditor Agreement shall control. If this
Agreement requires Primary Servicer to perform a task or duty, the details and
obligations of which are (a) set forth in this Agreement and (b)(i) are not set
forth in the Pooling and Servicing Agreement or with respect to an A/B Mortgage
Loan, the applicable A/B Intercreditor Agreement, (ii) are set forth in the
Pooling and Servicing Agreement and with respect to an A/B Mortgage Loan, the
applicable A/B Intercreditor Agreement only in general terms, then Primary
Servicer shall perform such task and duties in accordance with the details and
obligations set forth in this Agreement. If this Agreement requires Primary
Servicer to perform a task or duty, the details and obligations of which are not
set forth in this Agreement but are contained in the Pooling and Servicing
Agreement and with respect to an A/B Mortgage Loan, the applicable A/B
Intercreditor Agreement, then the Primary Servicer shall perform such task and
duties in accordance with the Pooling and Servicing Agreement.
Section 10.7 Integrated Agreement
This Agreement constitutes the final complete expression of the
intent and understanding of the Primary Servicer and the Capmark Master Servicer
and may not be altered or modified except by a subsequent writing, signed by the
Primary Servicer and the Capmark Master Servicer.
Section 10.8 Counterparts
This Agreement may be executed in any number of counterparts, each
of which shall constitute one and the same instrument. Any party hereto may
execute this Agreement by signing any such counterpart.
Section 10.9 Governing Laws
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without regard to conflicts of law principles,
and the obligations, rights and remedies of the parties hereunder shall be
determined in accordance with such laws.
Section 10.10 Notices
Unless otherwise provided for herein, all notices and other
communications required or permitted hereunder shall be in writing (including a
writing delivered by facsimile transmission) and shall be deemed to have been
duly given (a) when delivered, if sent by registered or certified mail (return
receipt requested), if delivered personally or by facsimile or (b) on the second
following Business Day, if sent by overnight mail or overnight courier, in each
case to the parties at the following addresses (or at such other addresses as
shall be specified by like notice):
If to the Capmark As set forth in Section 15.5 of
Master Servicer: the Pooling and Servicing Agreement
If to the Primary Principal Global Investors, LLC
Servicer: 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 IQ15 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/ Xxxxx X. Xxxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxxx
Title: Assistant General Counsel
By: /s/ Xxxxxx X. Xxxxxxxxx
-----------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: General Counsel
SCHEDULE I
MORTGAGE LOAN SCHEDULES
Primary
Prospectus Cut-Off Servicing
Tab Date Fee Rate
Number Loan Name Balance ($) (basis points
------ --------- ----------- -------------
000 Xxxxx Xxxxxx 160,000,000 1.00000
Royal Centre 77,000,000 1.00000
Broadstone Ladera Apartments 18,000,000 1.00000
West Wind Landing Apartments 14,880,000 1.00000
Palmetto Health Parkridge 13,500,000 1.00000
Camden Taravue Apartments 11,860,000 1.00000
Summit Medical Center 10,545,000 1.00000
000 Xxxxxx Xxxx 10,500,000 1.00000
Market Pointe I 10,029,856 1.00000
Magnolia Villas Apartments 9,040,000 1.00000
000 Xxxx Xxxxx 9,040,000 1.00000
Hampton Inn 7,774,052 1.00000
000 Xxxxxxxxx Xxxxxx 4,556,260 1.00000
Coral Desert Health Center 4,400,000 1.00000
00000-00 Xxxxxxx Xxxxxxx 3,995,646 1.00000
Triarch Portfolio Roll-Up 3,850,000 1.00000
00 Xxxxx Xxxxxx 3,437,020 1.00000
Xxxxx Xxxxx Xxxxxxxxxx 0,000,000 0.00000
Xxxxxxxx Xxxxx 3,397,032 1.00000
Xxxxxx'x Supermarket 3,247,299 1.00000
Hanover Village MHP 3,197,277 1.00000
Dolly Creek 3,100,000 1.00000
20 Aquarium 2,997,408 1.00000
Sandalfoot Plaza 2,897,403 1.00000
Academy Crossing 2,894,730 1.00000
0000 Xxxxxx Xxxxxx Xxxx 2,860,494 1.00000
Arrowhead Shops Shopping Center 2,744,677 1.00000
3950 and 0000 Xxxxx Xxx Xxxxx
Xxxxxxxxx 2,600,000 1.00000
00000 Xxxxxxxx Xxxxx 2,497,823 1.00000
Buellton Town Plaza 2,300,000 1.00000
American Safe 'N' Sound 1,979,615 1.00000
0000-0000 Xxxxxxxx Xxx 1,748,546 1.00000
The Ridge At White Oaks Apartments 1,700,000 1.00000
The Xxxxx Shopping Center 1,444,264 1.00000
MidPoint Plaza 1,423,200 1.00000
Hillandale Medical Office Building 1,300,000 1.00000
0000 Xxxx 000xx Xxxxxx 1,178,526 1.00000
Sunset Plaza Shopping Center 1,079,131 1.00000
4125 & 0000 Xxxx Xxxxx Xxxxx 999,186 1.00000
SCHEDULE II
[RESERVED]
EXHIBIT A
POOLING AND SERVICING AGREEMENT
See copy of signed Pooling and Servicing Agreement delivered under separate
cover.
EXHIBIT B
Exhibit B-1 Payment and Mortgage Loan Status Reports
Exhibit B-2: Overview of Methodology of Allocation of Responsibility
on Post Closing Requests
Exhibit B-3: Form of Property Inspection Reports
Exhibit B-4: Task Description
EXHIBIT B-1
PAYMENT AND MORTGAGE LOAN STATUS REPORTS
Exhibit B-1(a): Remittance report for payments received on Mortgage Loans
during the applicable Collection Period
Exhibit B-1(b): Delinquency report
Exhibit B-1(c): Real estate tax delinquency report
Exhibit B-1(d): Insurance monitoring report
Exhibit B-1(e): UCC form monitoring report
Exhibit B-1(f): Day One Report
EXHIBIT B-2
OVERVIEW OF METHODOLOGY OF ALLOCATION OF RESPONSIBILITY ON POST CLOSING REQUESTS
Exhibit B-2(a): Overview of Methodology of Allocation of Responsibility on
Post Closing Requests
Exhibit B-2(b): Chart Showing Classification of Post Closing Requests
Exhibit B-2(c): Process for Handling Post Closing Requests Upon
Classification
EXHIBIT B-2(a)
OVERVIEW OF METHODOLOGY OF ALLOCATION OF
RESPONSIBILITY ON POST CLOSING REQUESTS
When Primary Servicer receives a request from a Mortgagor or other
obligor under the Mortgage Loan or A/B Mortgage Loan, as applicable, for action
("Post Closing Request") on its related Mortgage Loan or A/B Mortgage Loan,
Primary Servicer shall classify each Post Closing Request into one of the
following three (3) categories:
a. Post Closing Requests over which Primary Servicer shall have
decision making authority to analyze, consent to, approve and
process such requests, subject to consent rights in certain
circumstances set forth in Exhibit B-2(c) below and, where
applicable, Deemed Category 1 Requests ("Category 1 Requests");
b. Post Closing Requests in which Primary Servicer shall gather
information from Mortgagor and shall deliver such information
together with a written analysis and recommendation for the consent
and approval of such requests to the Capmark Master Servicer or
Special Servicer, as applicable; other than Deemed Category 1
Requests ("Category 2 Requests"); and
c. Post Closing Requests in which Primary Servicer will have no
involvement but will refer the request to the Special Servicer
("Category 3 Requests").
The attached chart details how a Post Closing Request will be
classified into one of the three (3) categories specified above and the
materials that follow detail how each Post Closing Request will be handled after
classification.
The objective is to process each Post Closing Request in accordance
with the Servicing Standard, the terms of this Agreement, the Pooling and
Servicing Agreement and with respect to any A/B Mortgage Loan, its applicable
A/B Intercreditor Agreement, the REMIC Provisions, while providing responsive
service to Mortgagors.
The attached chart does not address Payment and Collection
Description, Payment and Collection Reporting or Property Inspection
Description, which is covered elsewhere in this Agreement.
EXHIBIT B-2(b)
CHART SHOWING CLASSIFICATION OF POST CLOSING REQUESTS
--------------------------------------------------------------------------------------------------------
Category When Applicable Examples Allocation of Fees
--------------- ------------------ -------------------------- --------------------------
1 Category 1 Post Closing Transfer rights Primary Servicer
Requests Request is either contemplated in Mortgage collects entire
(other than (a) specifically Loan Documents administrative or
Deemed authorized in the (including without processing fee
Category 1 related Mortgage limitation assignment and (including without
Requests) Loan Documents assumption rights); limitation defeasance
(as defined in partial releases fees), legal fees and
Exhibit contemplated in Mortgage out-of-pocket
B-2(c)(A.1(b)), Loan Documents ; expenses and 80% of
either expressly easements contemplated in any additional fees
as a matter of Mortgage Loan Documents ; or portions of fees
right in favor of evaluation of alterations (including without
the Mortgagor or under specified limitation transfer
upon the threshold; administer, fees) payable to
satisfaction of monitor and release of Capmark Master
certain specified reserve or escrow amounts Servicer under
conditions in accordance with Pooling and Servicing
(including the reserve or escrow Agreement (i.e.
exercise of any agreements; approval of transfer fee). Other
specified standard leases below threshold 20% of such
of consent or specified in Mortgage additional fees are
judgment within Loan Documents ; payable to Capmark
such conditions additional lien, monetary Master Servicer.
subject to the encumbrance or mezzanine Special Servicer
terms of this financing placed on would receive any
Agreement); or (b) Mortgaged Property that portion of fees due
seeks the approval is specifically it under the Pooling
of the related contemplated in Mortgage and Servicing
Mortgagee under Loan Documents under Agreement. Capmark
the related specified conditions; or Master Servicer may
Mortgage Loan process of defeasing a also collect its
Documents for a Mortgage Loan (except out-of-pocket
Lease and/or the defeasance of a Specially expenses which it
issuance of an Serviced Mortgage Loans shall itemize in
SNDA for a Lease. which shall not be the reasonable detail.(1)
responsibility of the
Primary Servicer) and
servicing of Mortgage
Loans and A/B Mortgage
Loans that have been
defeased; approval of a
Lease requiring such
approval of Mortgagee
under the Mortgage Loan
Documents ; or issuance
of an SNDA.
--------------------------------------------------------------------------------------------------------
2 Category 2 Post Closing Consent to easement not For all Mortgage
Requests for Request (other contemplated in Mortgage Loans, other than A/B
all Mortgage than Category 3 Loan Documents; partial Mortgage Loans:
Loans (other Request) is (a) releases not specifically Primary Servicer
than A/B not specifically contemplated in Mortgage entitled to one
Mortgage authorized or is Loan Documents; or hundred percent
Loans) and prohibited or not subordinate or mezzanine (100%) of
Deemed addressed in the financing not administrative or
Category 1 Mortgage Loan specifically contemplated processing fee.
Requests Documents ; and in Mortgage Loan Additional fees are
(b) not seeking Documents. payable to Capmark
approval of a Master Servicer
Lease requiring and/or Special
such approval of Servicer as specified
Mortgagee under in Pooling and
the related Servicing Agreement.
Mortgage Loan Capmark Master
Documents or Servicer may also
issuance of an collect its
SNDA. out-of-pocket
expenses.(1)
For all A/B Mortgage
Loans: Same
allocation of fees as
Category 1 Requests.
--------------------------------------------------------------------------------------------------------
3 Category 3 Post Closing Changes to maturity date, Primary Servicer not
Requests Requests to Money interest rate, principal entitled to fee.
Terms, Defaulted balance, amortization Capmark Master
Mortgage Loans or term, payment amount or Servicer or Special
Mortgage Loans frequency; or Servicer is entitled
upon which a any actions to loan in to fees as provided
Servicing Transfer default. in the Pooling and
Event has occurred. Servicing
Agreement.(1)
--------------------------------------------------------------------------------------------------------
-------------------------
(1) No reference is made in this chart to the Aggregate Servicing Fee
which shall be collected and governed in accordance with the terms
of Sections 2.1, 2.3, 6.3 and 6.4 of this Agreement.
EXHIBIT B-2(c)
PROCESS FOR HANDLING POST CLOSING REQUESTS UPON CLASSIFICATION
I. PROCESS FOR DISPOSITION OF POST CLOSING REQUESTS ONCE CLASSIFICATION IS MADE.
Upon classification of a Post Closing Request into one of the three (3)
categories enumerated above, Primary Servicer shall process the Post Closing
Request as follows:
(A) Category 1 Requests and Deemed Category 1 Requests:
(i) If Primary Servicer classifies a Post Closing Request as a
Category 1 Request or Deemed Category 1 Request, it shall promptly (but in
no event more than five (5) Business Days after receiving such request)
notify Capmark Master Servicer of (a) such request; (b) Primary Servicer's
classification of the Post Closing Request as a Category 1 Request or
Deemed Category 1 Request; and (c) Primary Servicer's Materiality
Determination regarding any Category 1 Consent Aspect involved in such
request. Notwithstanding the foregoing, as a result of the quarterly
reconciliation of reserve accounts that Primary Servicer provides to
Capmark Master Servicer under this Agreement, Primary Servicer shall have
no obligation (a) except as required under Section 8.18(d) of the Pooling
and Servicing Agreement, to notify or seek the consent of Capmark Master
Servicer or Special Servicer (as applicable) of any disbursement made from
an escrow or reserve account pursuant to and in accordance with the terms
of such agreement governing such reserve or escrow or (b) to seek consent
of Capmark Master Servicer to extend (1) the time available to a Mortgagor
to complete repairs, replacements or improvements pursuant to an escrow or
reserve agreement or (2) the expiration date of any letters of credit
associated with such escrow or reserve, as long as (i) Primary Servicer
promptly notifies Capmark Master Servicer in writing of such extension;
(ii) the amount being held pursuant to the applicable escrow or reserve
agreement at the time of the proposed extension is less than
$1,000,000.00; (iii) the length of such extension when added to all other
extensions granted after the Closing Date does not exceed one hundred
eighty (180) days; and (iv) any such extension is in accordance with the
terms of this Agreement (including without limitation the Servicing
Standard) and the Pooling and Servicing Agreement and with respect to an
A/B Mortgage Loan, the applicable A/B Intercreditor Agreement.
(ii) Primary Servicer shall evaluate the Category 1 Request or
Deemed Category 1 Request and process such request to meet the
requirements set forth in the Mortgage Loan Documents for the applicable
Mortgage Loan ("Mortgage Loan Documents") in a manner that complies with
the terms of this Agreement and the Pooling and Servicing Agreement and
with respect to an A/B Mortgage Loan, the applicable A/B Intercreditor
Agreement. Such evaluation and processing may commence, and continue but
may not be completed prior to Primary Servicer's notice to Capmark Master
Servicer of the Category 1 Request or Deemed Category 1 Request. Primary
Servicer shall draft, or cause to be drafted, all documents necessary or
appropriate to effect the Category 1 Request or Deemed Category 1 Request
in accordance with the terms of the Mortgage Loan Documents, this
Agreement and the Pooling and Servicing Agreement with respect to an A/B
Mortgage Loan, the applicable A/B Intercreditor Agreement.
(iii) Notwithstanding the foregoing, the following additional
requirements shall apply to particular types or aspects of Category 1
Requests:
(a) If a Mortgagor requests to defease a Mortgage Loan or A/B
Mortgage Loan (other than a Specially Serviced Mortgage Loan) and
the Mortgage Loan Documents for such Mortgage Loan or A/B Mortgage
Loan expressly provide for a defeasance, Primary Servicer shall
treat such request as a Category 1 Request but shall, in addition to
the other provisions of this Section I of Exhibit B-2(c), seek the
prior written consent of Capmark Master Servicer prior to consenting
to such defeasance, which consent shall not be withheld or delayed
unreasonably when Primary Servicer submits to Capmark Master
Servicer the items substantially as set forth on Appendix 1 of this
Agreement relating to such defeasance, and any such decision of
Capmark Master Servicer shall be in accordance with the terms of the
Mortgage Loan Documents and the Servicing Standard. Failure of the
Capmark Master Servicer to notify the Primary Servicer in writing of
Capmark Master Servicer's determination to grant or withhold such
consent, within five (5) Business Days following the Primary
Servicer's delivery of the request for defeasance described above
and the relevant information collected on such defeasance, shall be
deemed to constitute a grant of such consent.
(b) If a Mortgagor requests consent to transfer the related
Mortgaged Property and assign the related Mortgage Loan or A/B
Mortgage Loan (other than a Specially Serviced Mortgage Loan) to
another Person who shall assume the Mortgage Loan or A/B Mortgage
Loan and the Mortgage Loan Documents expressly permit such
assignment and assumption, subject to any conditions set forth in
the Mortgage Loan Documents , Primary Servicer may treat such
request as a Category 1 Request but shall, in addition to the other
provisions of this Section I of Exhibit B-2(c), seek the prior
written consent of Special Servicer prior to consenting to such
assignment and assumption in accordance with the terms of Section
8.7 of the Pooling and Servicing Agreement (subject to any time
periods applicable to Primary Servicer or Special Servicer for the
giving, granting or deemed granting of such consent contained in the
Pooling and Servicing Agreement) by submitting to Special Servicer
the items substantially as set forth on Appendix 2 of this Agreement
relating to such assignment and assumption. For the purpose of the
foregoing sentence, the term "expressly permits" shall have the
meaning assigned to it in Section 8.7 of the Pooling and Servicing
Agreement.
(c) If a Mortgagor requests consent to place an additional
lien, monetary encumbrance or mezzanine financing on the related
Mortgaged Property and the Mortgage Loan Documents expressly permit
such additional lien, monetary encumbrance or mezzanine financing,
subject to any conditions set forth in the Mortgage Loan Documents ,
Primary Servicer may treat such request as a Category 1 Request but
shall, in addition to the other provisions of this Section I of
Exhibit B-2(c), seek the prior written consent of Special Servicer
prior to consenting to such additional lien, monetary encumbrance or
mezzanine financing in accordance with the terms of Section 8.7 of
the Pooling and Servicing Agreement (subject to any time periods
applicable to Primary Servicer or Special Servicer for the giving,
granting or deemed granting of such consent contained in the Pooling
and Servicing Agreement) by submitting to Special Servicer the items
substantially as set forth on Appendix 3 of this Agreement relating
to such additional lien, monetary encumbrance or mezzanine
financing. For the purpose of the foregoing sentence, the term
"expressly permits" shall have the meaning assigned to it in Section
8.7 of the Pooling and Servicing Agreement.
(d) If a Mortgagor requests consent to enter into a Lease on
the related Mortgaged Property (and/or the associated issuance of an
SNDA for such Lease), which Lease (a) requires the consent of the
Mortgagee under the related Mortgage Loan Documents and (b)
qualifies as a Significant Lease, Primary Servicer may treat such
request as a Category 1 Request but shall, in addition to the other
provisions of this Section I of Exhibit B-2(c), seek the prior
written consent of Capmark Master Servicer, which consent shall not
be withheld or delayed unreasonably, prior to consenting to or
disapproving of such Significant Lease (and/or the related SNDA) by
submitting to Capmark Master Servicer the items substantially as set
forth on Appendix 4 of this Agreement relating to such Significant
Lease (and/or related SNDA). Failure of the Capmark Master Servicer
to notify the Primary Servicer in writing of Capmark Master
Servicer's determination to grant or withhold such consent within
ten (10) Business Days following the Primary Servicer's delivery of
the request for consent to the Lease, shall be deemed to constitute
a grant of such consent.
(e) If Primary Servicer makes a Materiality Determination that
a Category 1 Consent Aspect is material, then Primary Servicer shall
treat such request as a Category 1 Request, but shall, in addition
to the other provisions of this Section A.1 of this Exhibit B-2(c),
seek the prior written consent of Special Servicer prior to
consenting to the applicable Category 1 Request, which consent shall
not be withheld or delayed unreasonably, and any such decision of
Special Servicer shall relate only to the Category 1 Consent Aspect
and shall be in accordance with the terms of the Mortgage Loan
Documents and the Servicing Standard. Failure of the Special
Servicer to notify the Primary Servicer in writing of Special
Servicer's determination to grant or withhold such consent, within
five (5) Business Days following the Primary Servicer's delivery of
the request for consent to the Category 1 Consent Aspect, shall be
deemed to constitute a grant of such consent.
(iv) Upon conclusion of the negotiations of the documentation for
the Category 1 Request or Deemed Category 1 Request, Primary Servicer may
execute and deliver the operative documents to be executed to effect the
Category 1 Request and take the other actions necessary or appropriate to
conclude such request, in each case in accordance with the terms of this
Agreement and the Pooling and Servicing Agreement and with respect to an
A/B Mortgage Loan, the related A/B Intercreditor Agreement.
(v) Concurrently with the execution of this Agreement, Capmark
Master Servicer shall provide to Primary Servicer a counterpart original
of the Power of Attorney executed by the IQ15 Trust in favor of the
Capmark Master Servicer and shall execute and deliver to Primary Servicer
a Power of Attorney attached to this Agreement as Exhibit C. Primary
Servicer shall promptly notify Capmark Master Servicer of the execution
and delivery of any document on behalf of the Capmark Master Servicer and
Trustee under such Power of Attorney ("POA Notice").
(vi) Upon the request of Primary Servicer, Capmark Master Servicer
shall execute and deliver the documents necessary or appropriate to effect
a Category 1 Request or Deemed Category 1 Request. Such request shall not
relieve Primary Servicer of its obligations under this Agreement regarding
a Category 1 Request or Deemed Category 1 Request, including without
limitation its obligation to evaluate and process such request in
accordance with this Agreement and the Pooling and Servicing Agreement and
with respect to an A/B Mortgage Loan, the related A/B Intercreditor
Agreement and any indemnification obligation of Primary Servicer.
(vii) Upon completion of each Category 1 Request or Deemed Category
1 Request, Primary Servicer shall promptly (but in no event more than five
(5) Business Days after concluding such request) notify Capmark Master
Servicer and Special Servicer (if its consent was required) and shall
accompany such notice with a brief summary of the Category 1 Request or
Deemed Category 1 Request, a brief summary of Primary Servicer's analysis
and decision regarding such request, a POA Notice (if required) and a
counterpart original or copy of the operative documents executed or
received to effect the Category 1 Request or Deemed Category 1 Request.
(viii) Notwithstanding the foregoing with the consent of Capmark
Master Servicer, Primary Servicer may elect to classify and treat a Post
Closing Request that otherwise qualifies as a Category 1 Request or Deemed
Category 1 Request, as a Category 2 Request instead. In such case, Primary
Servicer shall adhere to the provisions of this Agreement regarding
Category 2 Requests or Deemed Category 1 Requests, and all aspects of such
request (including without limitation the allocation of fees) shall be
governed by the terms of this Agreement covering Category 2 Requests.
Primary Servicer's decision in any one instance to treat a Post Closing
Request that otherwise qualifies as a Category 1 Request or Deemed
Category 1 Request, as a Category 2 Request instead, shall not compromise
or affect its right on any other occasion to treat a similar request as a
Category 1 Request or Deemed Category 1 Request.
(ix) Notwithstanding anything to the contrary in this Section 1, if
a Category 1 Request or Deemed Category 1 Request involves an action
requiring the consent of Special Servicer under Section 8.18(d) of the
Pooling and Servicing Agreement, Primary Servicer shall not be permitted
to take any such actions without the consent of Special Servicer in
accordance with such Section 8.18(d). For any action relating to a
Mortgage Loan or an A/B Mortgage Loan requiring the consent of Special
Servicer under Section 8.18(d) of the Pooling and Servicing Agreement,
Primary Servicer shall have the responsibility to seek the consent of
Special Servicer in accordance with such section. The foregoing conditions
and requirements shall be in addition to the other conditions and
requirements for Category 1 Requests or Deemed Category 1 Requests as set
forth above.
(B) Category 2 Requests (other than Deemed Category 1 Requests):
(i) If Primary Servicer classifies a Post Closing Request as a
Category 2 Request, it shall promptly (but in no event more than five (5)
Business Days after Primary Servicer's receiving such request) notify
Capmark Master Servicer of receiving such request, of the type of request
and of Primary Servicer's classification of the Post Closing Request as a
Category 2 Request. As part of such notice, Primary Servicer shall include
the following:
(a) If such type of request has not previously been the
subject of a Category 2 Request or a Requirements List (as defined
below) has not previously been provided to Primary Servicer, then
Primary Servicer shall request from Capmark Master Servicer a
detailed list of the requirements to be satisfied for such request
(the "Requirements List"). Capmark Master Servicer shall promptly
(but in no event more than five (5) Business Days after receiving
notification of such request) provide to Primary Servicer a
Requirements List for such request.
(b) If the type of Category 2 Request has previously been the
subject of a Post Closing Request, then Primary Servicer shall
submit the existing Requirements List to Capmark Master Servicer.
Primary Servicer may use such Requirements List for such request
unless Capmark Master Servicer provides to Primary Servicer a
replacement Requirements List within five (5) Business Days of such
notice.
(ii) A Requirements List (i) shall in no event be more burdensome
than that required by Capmark Master Servicer of other loans in the IQ15
Trust for similar Post Closing Requests; (ii) shall not require Primary
Servicer to incur additional third party costs or expenses; and (iii)
shall require the gathering, collection and assembling of information only
and not the preparation, evaluation, analysis of information or a
recommendation regarding the Post Closing Request.
(iii) Primary Servicer shall then use diligent efforts to collect
and assemble the items on the applicable Requirements List. Upon such
collection and assembly, Primary Servicer shall provide to Capmark Master
Servicer all of the assembled items, a list of the items collected from
the Requirements List, a list of any items not collected, any reasons why
such items were not collected, a written analysis of the Category 2
Request in light of the items collected in a form reasonably satisfactory
to Capmark Master Servicer, a recommendation whether to approve or
disapprove such request and the appropriate division of the applicable
fees in accordance with the terms of this Agreement and the Pooling and
Servicing Agreement.
(iv) Capmark Master Servicer shall use its reasonable best efforts
to notify Primary Servicer with a consent or disapproval of the Category 2
Request within ten (10) Business Days of receiving such assembled items,
analysis and recommendation. If Capmark Master Servicer disapproves such
request, it shall provide Primary Servicer the reasons for such
disapproval. If Capmark Master Servicer approves such request, Primary
Servicer shall promptly process the Category 2 Request in a manner that
complies with the terms of this Agreement and the Pooling and Servicing
Agreement and with respect to an A/B Mortgage Loan, the related A/B
Intercreditor Agreement. Primary Servicer shall draft, or cause to be
drafted, all documents necessary to effect the Category 2 Request in
accordance with the terms of the consent, the Mortgage Loan Documents ,
this Agreement and the Pooling and Servicing Agreement, and with respect
to an A/B Mortgage Loan, the related A/B Intercreditor Agreement. Primary
Servicer shall deal directly with the applicable Mortgagor regarding a
Category 2 Request after Primary Servicer submits the items on the
applicable Requirements List.
(v) Upon conclusion of the negotiations of the documentation for the
Category 2 Request for which Capmark Master Servicer has granted its
consent, Primary Servicer may execute and deliver the operative documents
to be executed to effect the Category 2 Request and take the other actions
necessary or appropriate to conclude such request, in each case in
accordance with the terms of this Agreement and the Pooling and Servicing
Agreement and with respect to an A/B Mortgage Loan, the related A/B
Intercreditor Agreement.
(vi) Upon the request of Primary Servicer, Capmark Master Servicer
shall execute and deliver the documents necessary or appropriate to effect
a Category 2 Request, which documents shall be prepared by the Primary
Servicer. Such request shall not relieve Primary Servicer of its
obligations under this Agreement regarding a Category 2 Request, including
without limitation its obligation to evaluate and process such request in
accordance with this Agreement and the Pooling and Servicing Agreement and
with respect to an A/B Mortgage Loan, the related A/B Intercreditor
Agreement and any indemnification obligation of Primary Servicer.
(vii) Upon completion of each Category 2 Request, Primary Servicer
shall promptly (but in no event more than ten (10) Business Days after
concluding such request) notify Capmark Master Servicer and shall
accompany such notice with a copy of the operative documents executed or
received to effect the Category 2 Request.
(viii) Notwithstanding anything to the contrary in this Section 2,
if a Category 2 Request involves an action requiring the consent of
Special Servicer under Section 8.18(d) of the Pooling and Servicing
Agreement, Primary Servicer shall not be permitted to take any such action
without the consent of Special Servicer in accordance with such Section
8.18(d). For any action relating to a Mortgage Loan or an A/B Mortgage
Loan requiring the consent of Special Servicer under Section 8.18(d) of
the Pooling and Servicing Agreement, Primary Servicer shall have the
responsibility to seek the consent of Special Servicer in accordance with
such section. The foregoing conditions and requirements shall be in
addition to the other conditions and requirements for Category 2 Requests
as set forth above.
(C) Category 3 Requests:
(i) If Primary Servicer classifies a Post Closing Request as a
Category 3 Request, it shall promptly (but in no event more than five (5)
Business Days after receiving such request) notify Capmark Master Servicer
and Special Servicer of receiving such request and of Primary Servicer's
classification of the Post Closing Request as a Category 3 Request and
shall refer such Category 3 Request to the Special Servicer for handling
in accordance with the Pooling and Servicing Agreement.
(ii) Upon such referral, Primary Servicer shall notify the
applicable Mortgagor of such referral and shall direct the Mortgagor that
all further correspondence and interaction regarding the applicable
Category 3 Request shall be directed to and through the Special Servicer
(unless the Special Servicer and Capmark Master Servicer shall otherwise
direct the Primary Servicer). Primary Servicer shall forward all
correspondence and other information regarding such request in its
possession to Special Servicer.
II. DISPUTE OF CLASSIFICATION.
(A) Notification of Dispute: If either Capmark Master Servicer or Special
Servicer disputes the classification of Primary Servicer of any Post Closing
Request (for purposes of this Section B, the term "classification" shall include
a Materiality Determination of Primary Servicer regarding a Category 1 Consent
Aspect with respect to such Post Closing Request), then Capmark Master Servicer
or Special Servicer, as applicable, shall notify Primary Servicer of such
dispute promptly (but in no event more than five (5) Business Days from Primary
Servicer's notice of such classification) in writing and the specific reasons
for such dispute. The parties shall then work in good faith for a period not
more than five (5) Business Days to resolve the classification of the Post
Closing Request. Primary Servicer's classification of a Post Closing Request
shall govern the handling of such request absent Primary Servicer's receipt of
notice of such dispute within the specified time period but shall not diminish
the obligation of Primary Servicer to classify Post Closing Requests in
accordance with this Agreement and to handle such requests in accordance with
this Agreement and the Pooling and Servicing Agreement and with respect to an
A/B Mortgage Loan, the related A/B Intercreditor Agreement.
(B) Resolution of Dispute in Absence of Agreement: If after such good
faith efforts to resolve such classification dispute the parties cannot agree to
a classification, then the following shall apply:
(i) for Mortgage Loans or A/B Mortgage Loans that individually, or
together with all other Mortgage Loans and A/B Mortgage Loans that have the same
or an affiliated Mortgagor or that are cross-collateralized with such Mortgage
Loans or A/B Mortgage Loans have a principal balance on the Cut-Off Date that is
in excess of two percent (2%) of the then Aggregate Principal Balance, then the
good faith classification of the Capmark Master Servicer or Special Servicer, as
applicable, shall govern;
(ii) for Mortgage Loans that individually, or together with all other
Mortgage Loans and A/B Mortgage Loans that have the same or an affiliated
Mortgagor or that are cross-collateralized with such Mortgage Loans or A/B
Mortgage Loans have a principal balance on the Cut-Off Date that is equal to or
less than two percent (2%) of the then Aggregate Principal Balance, then the
good faith classification of the Primary Servicer shall govern; provided that,
in no event, shall Primary Servicer's classification govern if such
classification would, in the sole judgment of Capmark Master Servicer or Special
Servicer (as applicable), conflict with any provision of the Pooling and
Servicing Agreement or result in a default by Capmark Master Servicer or Special
Servicer under the Pooling and Servicing Agreement.
(C) Processing of a Post Closing Request During a Dispute: During a
pending dispute over classification of a Post Closing Request, the parties shall
continue to cooperate to process such request in accordance with Primary
Servicer's initial classification until a resolution is achieved or, failing
resolution, the Post Closing Request is classified in accordance with the terms
of Section (II)(B) of this Exhibit B-2(c). Capmark Master Servicer and Primary
Servicer acknowledge that it is a goal of both parties not to unduly burden or
delay the processing of a Post Closing Request even though a dispute about
classification of such request may exist but in any event the processing of a
Post Closing Request must be accomplished in a manner consistent and in
compliance with the Pooling and Servicing Agreement and with respect to an A/B
Mortgage Loan, the related A/B Intercreditor Agreement.
EXHIBIT B-3
FORMS OF PROPERTY INSPECTION REPORTS
See CMSA Website
EXHIBIT B-4
TASK DESCRIPTION
CAPMARK MASTER SERVICER/PRIMARY SERVICER TASK LIST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-IQ15
Note: Some listed tasks designate more than one party to perform that function
by placing an "X" in more than one column. In these instances, the parties
shall follow any specific guidance about the allocation of
responsibilities in completing the task found in the terms of this
Agreement (including Exhibits B-2 and B-3). In the absence of specific
allocation of obligations in this Agreement, the parties shall work in
good faith to allocate responsibilities in a fair and equitable manner in
accordance with this Agreement and the Pooling and Servicing Agreement.
CAPMARK
MASTER PRIMARY SPECIAL
SERVICER SERVICER SERVICER TRUSTEE
----------------------------------------------------------------------------------------------
1. Asset Files
----------------------------------------------------------------------------------------------
Original credit file management X
----------------------------------------------------------------------------------------------
Original collateral file (security) X
----------------------------------------------------------------------------------------------
Authorized parties list for request for X X
release of collateral from Trustee
----------------------------------------------------------------------------------------------
Establish servicing files criteria X X
----------------------------------------------------------------------------------------------
Provide access to servicing files and X
copies of servicing files or of specific
docs upon request to the Capmark Master
Servicer
----------------------------------------------------------------------------------------------
Request delivery of files from Trustee X
upon request and certification of Primary
Servicer
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
2. Property Taxes
----------------------------------------------------------------------------------------------
Preparation and delivery of quarterly tax X
delinquency reports
----------------------------------------------------------------------------------------------
Monitoring of tax status - Loans X
with/without escrows
----------------------------------------------------------------------------------------------
Recommendation of payment of taxes - Loans X
with/without escrows
----------------------------------------------------------------------------------------------
Notification of advance requirement three X
(3) Business Days prior to advance being
required
----------------------------------------------------------------------------------------------
Payment of taxes - with sufficient escrows X
----------------------------------------------------------------------------------------------
Payment of taxes - with escrow shortfall X
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
3. Property Insurance
----------------------------------------------------------------------------------------------
Preparation and delivery of quarterly X
insurance tickler reports
----------------------------------------------------------------------------------------------
Monitoring of insurance status - Loans X
with/without escrows
----------------------------------------------------------------------------------------------
Ensure insurance carrier meets Pooling and X
Servicing Agreement qualifications
----------------------------------------------------------------------------------------------
Ensure insurance in favor of the Capmark X
Master Servicer on behalf of the Trustee
----------------------------------------------------------------------------------------------
Recommendation of payment or force X
placement of insurance with/without escrow
----------------------------------------------------------------------------------------------
Notification of advance requirement or X
force placement of insurance three (3)
Business Days prior to advance being
required
----------------------------------------------------------------------------------------------
Payment of insurance - with sufficient X
escrows
----------------------------------------------------------------------------------------------
Payment of insurance or force placement - X
with escrow shortfall
----------------------------------------------------------------------------------------------
Category 1 Requests and Deemed Category
1 Requests
----------------------------------------------------------------------------------------------
Preparation and presentment of claims X
----------------------------------------------------------------------------------------------
Collection of insurance proceeds X
----------------------------------------------------------------------------------------------
Category 2 Requests
----------------------------------------------------------------------------------------------
Preparation and presentment of claims X
----------------------------------------------------------------------------------------------
Collection of insurance proceeds X
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
4. UCC Continuation Filings
----------------------------------------------------------------------------------------------
Preparation and delivery of quarterly UCC X
tickler report
----------------------------------------------------------------------------------------------
Maintain tickler system of refiling the X
dates on all Loans
----------------------------------------------------------------------------------------------
File UCC Continuation Statements X
----------------------------------------------------------------------------------------------
Pay recording fees X
----------------------------------------------------------------------------------------------
Monitor tickler system X
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
5. Collection/Deposit/Distribution
of P&I payments and Principal Prepayments
----------------------------------------------------------------------------------------------
Collection and deposit of loan P&I payments X
----------------------------------------------------------------------------------------------
Remittance of available Primary Servicer X
P&I payments to Capmark Master Servicer
and B Note holders, as applicable (net of
Aggregate Servicing Fee and other fees
payable to the Primary Servicer by the B
----------------------------------------------------------------------------------------------
Note holders)
----------------------------------------------------------------------------------------------
Provide Collection Reports to Capmark X
----------------------------------------------------------------------------------------------
Master Servicer
----------------------------------------------------------------------------------------------
Distribution of P&I payments to the Trustee X
----------------------------------------------------------------------------------------------
Distribution of Special Servicer X
compensation
----------------------------------------------------------------------------------------------
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 X
three (3) days after delinquent date
----------------------------------------------------------------------------------------------
Send thirty (30) day delinquent notices. X
----------------------------------------------------------------------------------------------
Send notice of balloon payment to each X
Mortgagor one year, 180, and 90 days prior
to the related maturity date
----------------------------------------------------------------------------------------------
Provide copy of Balloon Mortgage Loan X
notice to Capmark Master Servicer
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
8. Escrows
----------------------------------------------------------------------------------------------
Setup and monitor Escrow Accounts X
including escrow analysis
----------------------------------------------------------------------------------------------
Pay borrower investment income required X
----------------------------------------------------------------------------------------------
Prepare annual escrow analysis X
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
9. Loan payment history/calculation
----------------------------------------------------------------------------------------------
Maintain loan payment history X
----------------------------------------------------------------------------------------------
Create payoff/reinstatement statements and X
telecopy to Capmark Master Servicer
----------------------------------------------------------------------------------------------
Approve payoff calculations and telecopy X
approval to Primary Servicer within five
(5) Business Days
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
10. Monitoring of Financial and Legal
Covenants
----------------------------------------------------------------------------------------------
Collect quarterly and annual operating X
statements, budgets, rent rolls and
borrower financial statements, as
applicable.
----------------------------------------------------------------------------------------------
Deliver Operating Statement Analysis X
Report, CMSA Financial File and NOI
Adjustment Worksheet in accordance with
Section 2.1(c)(viii) of this Agreement.
----------------------------------------------------------------------------------------------
Deliver one (1) copy of quarterly and X
annual operating statements, budgets, rent
rolls and borrower financial statement, as
applicable, within thirty (30) days of
Primary Servicer's receipt
----------------------------------------------------------------------------------------------
Complete CMSA Loan Setup File for Mortgage X X
Loans
----------------------------------------------------------------------------------------------
Complete CMSA Loan Periodic Update File X
for Mortgage Loans
----------------------------------------------------------------------------------------------
Complete and deliver CMSA Property File X
for Mortgage Loans
----------------------------------------------------------------------------------------------
Complete and deliver quarterly Operating X X
Statement Analysis Report and CMSA
Quarterly Financial File in accordance
with Section 2.1(c)(viii) of this
Agreement.
----------------------------------------------------------------------------------------------
Cash account Reconciliations - Copies of X
monthly bank statements for all deposit,
escrow and reserve accounts
----------------------------------------------------------------------------------------------
CMSA Supplemental Reports
----------------------------------------------------------------------------------------------
Complete Servicer Watch List X
----------------------------------------------------------------------------------------------
Complete Comparative Financial Status X
Report
----------------------------------------------------------------------------------------------
Delinquent Loan Status Report X
----------------------------------------------------------------------------------------------
REO Status Report X
----------------------------------------------------------------------------------------------
Historical Loan Modification and X
Corrected Loan Report
----------------------------------------------------------------------------------------------
Historical Liquidation Loss Report X
----------------------------------------------------------------------------------------------
Loan Level Reserve/LOC Report X
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
11. Advancing
----------------------------------------------------------------------------------------------
Determination of Non-Recoverability X
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
12. Borrower Inquiries/Performing Loans
----------------------------------------------------------------------------------------------
Performing Loans - respond to routine X
billing questions
----------------------------------------------------------------------------------------------
Category 1 Requests and Deemed Category 1
Requests
----------------------------------------------------------------------------------------------
Assumptions & Due on sale:
----------------------------------------------------------------------------------------------
Borrower contact and data gathering X
----------------------------------------------------------------------------------------------
Underwriting and analysis of request X
----------------------------------------------------------------------------------------------
Approval of assumption X
----------------------------------------------------------------------------------------------
Consent to assumption X
----------------------------------------------------------------------------------------------
Close assumption X
----------------------------------------------------------------------------------------------
Category 2 Requests
----------------------------------------------------------------------------------------------
Assumptions & Due on sale:
----------------------------------------------------------------------------------------------
Initial Borrower contact and data X
gathering
----------------------------------------------------------------------------------------------
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 X
encumbrance or mezzanine financing
----------------------------------------------------------------------------------------------
Consent to additional lien, monetary X
encumbrance or mezzanine financing
----------------------------------------------------------------------------------------------
Close additional lien, monetary X
encumbrance or mezzanine financing
----------------------------------------------------------------------------------------------
Category 2 Requests
----------------------------------------------------------------------------------------------
Additional Liens, Monetary Encumbrances
or Mezzanine Financing:
----------------------------------------------------------------------------------------------
Initial Borrower contact and data X
gathering
----------------------------------------------------------------------------------------------
Underwriting and analysis X X
----------------------------------------------------------------------------------------------
Approval of additional lien, X X
monetary encumbrance or mezzanine
financing
----------------------------------------------------------------------------------------------
Consent to additional lien, monetary X
encumbrance or mezzanine financing
----------------------------------------------------------------------------------------------
Close additional lien, monetary X
encumbrance or mezzanine financing
(directly with Borrower)
----------------------------------------------------------------------------------------------
13. Modifications (Non-Money Terms),
Waivers, Consents and Extensions up to
sixty (60) days (not otherwise provided in
this Agreement):
----------------------------------------------------------------------------------------------
14. Initial Borrower contact and data X
gathering
----------------------------------------------------------------------------------------------
15. Underwriting and analysis X
----------------------------------------------------------------------------------------------
16. Approval of modification and X
extensions up to sixty (60) days (Category
1 Requests and Deemed Category 1 Requests)
----------------------------------------------------------------------------------------------
17. Approval of modification and X
extensions up to sixty (60) days (Category
2 Request)
----------------------------------------------------------------------------------------------
18. Consent to modification and waivers X
and other consents (not otherwise
provided in this Agreement)
----------------------------------------------------------------------------------------------
19. Closing Documents and Closing X
----------------------------------------------------------------------------------------------
20. Modification (Money Terms): X
----------------------------------------------------------------------------------------------
21. Extensions of Maturity Date (more X
than sixty (60) days):
----------------------------------------------------------------------------------------------
22. Response to request for Discounted X
Payoffs, Workouts, Restructures,
Forbearances and Casualties
----------------------------------------------------------------------------------------------
23. Condemnation (only with respect to X X X
Specially Serviced Mortgage Loans the
Special Servicer will perform such
functions)
----------------------------------------------------------------------------------------------
24. Monthly Reporting (Hardcopy &
Electronic mail)
----------------------------------------------------------------------------------------------
25. Day One Report X
----------------------------------------------------------------------------------------------
26. Delinquency and past due reporting X
on all Loans
----------------------------------------------------------------------------------------------
27. Deliver on April 25, July 25, X
October 25 and January 25 of each year a
Quarterly Servicing Accounts
Reconciliation Certification in the form
of Exhibit D
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
28. Category 1 Requests and Deemed
Category 1 Requests
----------------------------------------------------------------------------------------------
Release of Collateral
----------------------------------------------------------------------------------------------
Determination if collateral should be X
released
----------------------------------------------------------------------------------------------
Consent to release collateral X
----------------------------------------------------------------------------------------------
Request delivery of files from Trustee X
upon Primary Servicer request and
certification
----------------------------------------------------------------------------------------------
Preparation and recordation of release X
deeds all Loans (full and partial)
----------------------------------------------------------------------------------------------
29. Category 2 Requests
----------------------------------------------------------------------------------------------
Release of Collateral
----------------------------------------------------------------------------------------------
Initial Borrower contact and data gathering X
----------------------------------------------------------------------------------------------
Underwriting and analysis X
----------------------------------------------------------------------------------------------
Determination if collateral should be X
released
----------------------------------------------------------------------------------------------
Consent to release collateral X
----------------------------------------------------------------------------------------------
Request delivery of files from Trustee X
----------------------------------------------------------------------------------------------
Preparation and recordation of release X
deeds all Loans (full and partial)
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
30. Property Annual Inspections
Conduct site inspection per Pooling and X
Servicing Agreement requirement
----------------------------------------------------------------------------------------------
Provide 3 copies of site inspection X
reports to the Capmark Master Servicer
within 30 days of inspection but not later
than December 15 of each year beginning in
2008
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
31. Preparation of servicing transfer X
letters
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
32. Preparation of IRS Reporting (1098s X
and 1099s or other tax reporting
requirements) and delivery of copies to
the Capmark Master Servicer by January 31
of each year
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
33. Provide Primary Servicer Form 8-K X
Information Reports, Primary Servicer Form
10-D Information Reports and Primary
Servicer Form 10-K Information Reports at
the times and in the manner set forth in
Section 5.13(c) of this Agreement
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
34. Provide annual statement of X
compliance at the times and in the manner
set forth in Section 5.13(c) of this
Agreement
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
35. Provide either (a) a report X
regarding Primary Servicer's assessment of
compliance with servicing criteria and a
report by a registered public accounting
firm that attests to and reports on such
assessment report or (b) a report of a
firm of independent public accounts based
on USAP-compliant examinations, as the
case may be, at the times, in the manner
and as specified in Section 5.13(c) of
this Agreement.
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
36. Provide annual Xxxxxxxx-Xxxxx X
back-up certification at the times and in
the manner set forth in Section 5.13(c)(v)
of this Agreement
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
37. Compensation
----------------------------------------------------------------------------------------------
Primary Servicer Fee and other fees X
payable to the Primary Servicer by the B
Note holders
----------------------------------------------------------------------------------------------
Investment earnings on Primary Servicer X
Collection Account
----------------------------------------------------------------------------------------------
Investment earnings on tax & insurance X
reserves not payable to borrower
----------------------------------------------------------------------------------------------
Investment earnings on reserve accounts X
not payable to borrower
----------------------------------------------------------------------------------------------
Late charges to the extent collected from X
borrower (offsets advance interest per
Pooling and Servicing Agreement)
----------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------
38. Defeasance
----------------------------------------------------------------------------------------------
Coordinate, analyze, approve, and process X
defeasance request
----------------------------------------------------------------------------------------------
Consent to defeasance X
----------------------------------------------------------------------------------------------
Service Defeasance Loans X
----------------------------------------------------------------------------------------------
Retain all fees associated with Defeasance X
Loans
----------------------------------------------------------------------------------------------
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-IQ15
Space above this line for Recorder's use
------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
(CAPMARK MASTER SERVICER)
CAPMARK FINANCE, INC, acting solely in its capacity as Capmark
Master Servicer ("Capmark Master Servicer"), under the Pooling and Servicing
Agreement dated as of August 1, 2007 (the "Pooling and Servicing Agreement") and
a Primary Servicing Agreement dated as of August 1, 2007 (the "Primary Servicing
Agreement"), in each case relating to the Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ15, 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-IQ15
Pursuant to the Primary Servicing Agreement between Capmark Finance,
Inc. ("Capmark") and Principal Global Investors, LLC ("Primary Servicer") for
the transaction referenced above, I hereby certify with respect to each mortgage
loan serviced by Primary Servicer for Capmark for such transaction that within
25 days after the end of each of the months of [January, February and
March][April, May and June][July, August and September][October, November and
December], any and all deposit accounts, escrow accounts and reserve accounts,
and any and all other collection accounts and servicing accounts, related to
such mortgage loan have been properly reconciled, and the reconciliations have
been reviewed and approved, by Primary Servicer's management, except as
otherwise noted below:
EXCEPTIONS: ______________________________________________
__________________________ [Signature]
Name: [INSERT NAME OF SERVICING OFFICER]
Title: Servicing Officer, Principal Global Investors, LLC
Date: [April, July, October, January] 25, [20__]
EXHIBIT E
FORM OF COVER PAGE FOR REPORT OR CERTIFICATION
Compliance Information Report
-----------------------------
Identifying Information for this Report:
Date of Submission: _______
Depositor: ________________________________________________
Trust: ________________________________________________
Pooling and Servicing Pooling and Servicing Agreement dated as of
Agreement: _______, ___, among ____________________________.
Subservicing Agreement: Subservicing Agreement dated as of ________, ___,
between Capmark Finance, Inc., as Capmark Master
Servicer, and ______________, as Primary Servicer.
Capmark Master Servicer: Capmark Finance, Inc.
Primary Servicer: ________________________________________________
Primary Servicer Contact [Name][telephone][facsimile][email address]
Person:
This Report Contains the Following Information:
Immediate Reporting:
[_] Form 8- K Reporting Information
Monthly Reporting:
[_] Form 10-D Reporting Information
Annual Reporting:
[_] Form 10-K Reporting Information
Annual Compliance:
[_] Compliance Assessment Report (Item 1122(a)) by
Primary Servicer on Compliance With Servicing
Criteria in Item 1122(d) of Regulation AB
[_] Attestation Report (Item 1122(b)) by Registered
Public Accounting Firm on Compliance Assessment
Report
[_] Statement of Compliance (Item 1123)
[_] Xxxxxxxx-Xxxxx Back-Up Certification
This Report Amends Prior Reporting Information:
[_] Yes - Date of Submission of Prior Reporting
Information:
_____/______/______
[_] No
APPENDIX 1
ITEMS REQUIRED FOR DEFEASANCE SUBMISSION TO CAPMARK MASTER SERVICER
REQUEST FOR CAPMARK MASTER SERVICER CONSENT TO DEFEASANCE
Primary Servicer shall submit to Capmark Master Servicer the
following listed items to seek the consent of Capmark Master Servicer to a
defeasance of a Mortgage Loan or an A/B Mortgage Loan that Primary Servicer is
permitted to process under this Primary Servicing Agreement.
Copy of written notice to Primary Servicer from Mortgagor requesting defeasance
of the applicable Mortgage Loan.
An Executed Certificate substantially in the form attached hereto at Exhibit A.
(i) A description of the proposed defeasance collateral, (ii) written
confirmation from an independent accountant stating that payments made on
such defeasance collateral are sufficient to pay the subject Mortgage
Loan, and (iii) a copy of the form of opinion of counsel from the related
Mortgagor or other counsel that the related Trust has the benefit of a
first lien, perfected security interest in the defeasance collateral.
Such other items as are reasonably required by Capmark Master Servicer
consistent with the Servicing Standard as long as such requirements may be
required of the related Mortgagor under the related Mortgage Loan
Documents without additional expense to Primary Servicer or Capmark Master
Servicer.
EXHIBIT A TO APPENDIX 1
PRIMARY SERVICER DEFEASANCE CERTIFICATE
[INSERT DATE], 20[_]
RE: Defeasance of the "[INSERT NAME OF MORTGAGE LOAN FROM SCHEDULE I]"
(Prospectus ID Number: [INSERT ID NUMBER]) mortgage loan (the "Mortgage Loan")
to [INSERT NAME OF MORTGAGOR] (the "Mortgagor") serviced by Principal Global
Investors, LLC, as primary servicer (the "Primary Servicer") pursuant to that
Primary Servicing Agreement (the "Primary Servicing Agreement") dated as of
August 1, 2007, between Primary Servicer and Capmark Finance, Inc., as Capmark
Master Servicer (the "Capmark Master Servicer") relating to the Xxxxxx Xxxxxxx
Capital I Inc., Commercial Mortgage Pass-Through Certificates, Series 2007-IQ15.
The undersigned hereby certifies to the Capmark Master Servicer on behalf of the
Primary Servicer as of the date hereof as follows:
1. The Mortgagor has the right to defease the Mortgage Loan pursuant to the
Mortgage Loan Documents (the "Mortgage Loan Documents ") related to the Mortgage
Loan.
2. The Mortgagor will have satisfied all of the requirements for the defeasance
of the Mortgage Loan under the Mortgage Loan Documents by the closing date of
the defeasance.
3. (i) The Primary Servicer has retained outside legal counsel with experience
reviewing and documenting the defeasance of commercial mortgage loans to review
the Loan Document defeasance provisions and to document the defeasance of the
Mortgage Loan in accordance therewith and (ii) the Primary Servicer has provided
or will provide such legal counsel with the Mortgage Loan Documents needed for
such purposes.
PRINCIPAL GLOBAL INVESTORS, LLC
By:
--------------------------------
Name:
Title:
APPENDIX 2
ASSIGNMENT AND ASSUMPTION SUBMISSION TO SPECIAL SERVICER
PRESENT MORTGAGOR:
PROPOSED MORTGAGOR:
PRIMARY SERVICER #:
SPECIAL SERVICER #:
COLLATERAL TYPE: (Retail, Industrial, Apartments, Office, etc.)
ADDRESS: Property Address
City, State, zip code
ASSET STATUS: As of (date)
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
1. Insurance Escrow Balance: $
Reserve Escrow Balance: $
Monthly (P&I) Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Maturity Date:
Origination Date:
Executive Summary:
1. Summarize the transaction
a. note any significant modification of terms of the Mortgage Loan
Documents permitting assumption that could result in Adverse REMIC
Event
2. Discuss proposed Mortgagor entity and ownership structure
a. include any changes in level of SAE or SPE compliance from existing
Mortgagor as noted on Asset Summary attached)
3. How will title be held
4. Source of cash for down payment
5. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. Prior year NOI and DSCR and Pro-forma NOI DSCR
6. Complete the chart below:
The sale terms and property characteristics are summarized as follows:
-----------------------------------------------------------
Purchase price $
-----------------------------------------------------------
Buyer down payment $ (%)
-----------------------------------------------------------
Estimated closing date
-----------------------------------------------------------
1% loan fee split: Principal 40% - $
-----------------------------------------------------------
WFB, Master Serv. 10% - $
-----------------------------------------------------------
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
XXXXXXXX 0
XXXXXXXXXX XXXX, MONETARY ENCUMBRANCE OR MEZZANINE FINANCING
SUBMISSION TO SPECIAL SERVICER
Mortgagor:
Capmark Master Servicer
Loan #:
Primary Servicer Loan #:
Collateral Type: (Retail, Industrial, Apartments, Office, etc.)
Address of Property:
Asset Status As of (date):
Principal Balance: $
Unpaid Accrued Interest: $
Unpaid Late Fees/other fees: $
Tax Escrow Balance: $
Insurance Escrow Balance: $
Monthly P+I Payment: $
Interest Rate: %
Date Principal Paid To:
Date Interest Paid To:
Origination Date:
Maturity Date:
Executive Summary:
1. Summarize the transaction
a. note deviations from requirements for subordinate/mezzanine
financing contained in Mortgage Loan Documents
b. if Rating Agency Confirmation is permitted under applicable Mortgage
Loan Documents , note if such Confirmation will be sought
2. State amount and purpose of Lien/Financing
3. Interest Rate
4. Amount of Monthly/Periodic Payment (identify if P&I or Interest only)
5. Identify Subordinate/Mezzanine Lender
a. provide any information furnished by Mortgagor regarding proposed
lender
6. Collateral pledged or mortgaged as security:
7. Briefly describe collateral
a. Size, occupancy, primary tenants, location
b. NOI and DSCR for prior year and, if available, prior two years and
Pro-forma NOI DSCR
8. Complete the chart below:
The transaction terms and property characteristics are summarized as follows:
Estimated closing date for financing:
--------------------------------------------------------
Administrative fee to Primary $
Servicer
--------------------------------------------------------
Additional Fees, if any $
(50%: Special Servicer; 10%:
Capmark Master Servicer; 40%:
Primary Servicer
--------------------------------------------------------
Most recent appraised value $
according to appraisal in Primary
Servicer's possession
--------------------------------------------------------
Loan-to-value as of initial %
underwriting
--------------------------------------------------------
Occupancy as of %
--------------------------------------------------------
12/31/__ NOI $
--------------------------------------------------------
Debt service coverage as of x
--------------------------------------------------------
Project Status & Description: (See attached Asset Summary, most recent
Inspection Report and most recent rent roll)
1. Describe any current, material issues regarding the operating status of the
property: (e.g. issues surrounding current occupancy, anchor tenants, tenant
rollover)
Property Financial Summary: (See attached most recent Income and Expense
Statement for Mortgaged Property and operating statement review)
Escrow Status:
1. Explain status of all Reserves
Collateral Valuation:
1. Discuss the original appraisal
A. Who prepared
B. Attach Executive Summary and discussion of approach to value given
most weight from most recent appraisal in Primary Servicer's
possession
2. Comparison of the following (original to actual property):
A. Vacancy
B. Rents
C. Taxes
D. Other Key Expenses
Current Market Conditions:
Briefly state material current real estate market dynamics and
economic influences that may affect the operational performance of the property.
Recommendation:
1. State recommendation for approval.
2. Highlight strengths and weaknesses. How are weaknesses mitigated? (bullet
points are fine)
Request for Special Servicer Consent:
Primary Servicer hereby recommends and requests consent of Special Servicer to
the foregoing [Subordinate/Mezzanine] Financing.
<>
By: _______________________________________
Title: _____________________________________
Date: _____________________________________
Consent to Additional Lien, Monetary Encumbrance or Mezzanine Financing as
described above is given:
CENTERLINE SERVICING INC., acting solely in its
capacity as Special Servicer
By: _______________________________________
Title: _____________________________________
Date: _____________________________________
Schedule of Exhibits to Additional Lien, Monetary Encumbrance or Mezzanine
Financing Submission
1. Most recent Income & Expense Statement for property and operating
statement review
2. Original Asset Summary for Mortgaged Property
3. [For Mezzanine financing: If available from Mortgagor, diagram of proposed
ownership structure, including percentages of ownership]
4. [For subordinate mortgage: Copy of Subordination/Intercreditor Agreement
in substantially the form to be executed with subordinate lender]
5. Copy of Note, Mortgage and any Loan Agreement
6. Copy of subordinate Mortgage Loan Documents in substantially the form to
be executed
7. Most recent Rent Roll.
8. Other items as required by the description set forth above
APPENDIX 4
LEASE SUMMARY SUBMISSION PACKAGE
Loan #__________________
Borrower Name:
_____________________________________________________________________________
Property Name:
_____________________________________________________________________________
Total Property NRSF (Per Rent Roll):
_____________________________________________________________________________
Lease Sq. Footage ________ % of Total NRSF
Is Lease A Major Lease Per Loan Docs (Y/N)
_____________________________________________________________________________
LEASE INFORMATION
_____________________________________________________________________________
1. Parties to Lease
a. Landlord:
____________________________________________________________________
b. Rent Commencement Date:
____________________________________________________________________
c. Tenant:
____________________________________________________________________
d. Parent Company (if applicable):
____________________________________________________________________
e. Subtenant and/or Assignee (if applicable):
____________________________________________________________________
f. If Yes, Is Original Tenant Liable? (Y/N)
____________________________________________________________________
g. Guarantor(s):
____________________________________________________________________
h. Tenant financial statements atached:
____________________________________________________________________
i. If not, why:
____________________________________________________________________
2. Basic Lease Terms
a. Lease Commencement Date:
____________________________________________________________________
b. Rent Commencement Date:
____________________________________________________________________
c. Lease Expiration:
____________________________________________________________________
d. Unexercised Extension Options (Y/N):
____________________________________________________________________
-If Yes, # of Options/Term (i.e. 1-3 yrs):
____________________________________________________________________
-Terms:
____________________________________________________________________
e. Lease Type (Credit/Form):
____________________________________________________________________
Use of Premises:
____________________________________________________________________
3. Lease Economic Terms
a. Current Base Annual Rent $
____________________________________________________________________
b. Scheduled Increases Date/New Annual:
____________________________________________________________________
c. Increases/Option Periods (Date/New Annual Rent/PSF):
____________________________________________________________________
d. Percentage Rent Clause? Breakpoint:
____________________________________________________________________
e. TI Amortization Component:
____________________________________________________________________
f. Rent Concessions (enter month):
____________________________________________________________________
4. Expense Reimbursement Recoverable From the Lease (Only note those that
apply):
a. Taxes
____________________________________________________________________
b. Insurance
____________________________________________________________________
c. Management Fees
____________________________________________________________________
d. Utilities
____________________________________________________________________
e. Non-Structural Maintanance/Repair
____________________________________________________________________
f. Contract Services
____________________________________________________________________
g. Administrative (% of CAM)
____________________________________________________________________
h. Professional Fees
____________________________________________________________________
i. CAM
____________________________________________________________________
5. Options
a. Purchase Option (Note Date/Terms):
____________________________________________________________________
b. Right of First Refusal (Note Date/Terms/Reference DOT):
____________________________________________________________________
6. Other Information (Only note those that apply):
a. Expense Stop Formula
____________________________________________________________________
b. Base Year
____________________________________________________________________
c. Security/Other Deposits
____________________________________________________________________
d. Tenant Improvement Allowance
____________________________________________________________________
-Above Standard TI's?
____________________________________________________________________
____________________________________________________________________
7. Compliance
a. Lease meets all requirements of the Mortgage Loan Documents. (Y/N)
If no, specify
____________________________________________________________________
b. Landlord has complied with all leasing requirements in the Mortgage
Loan Documents. (Y/N) If no, specify
____________________________________________________________________
8. Recommendation
Request for Capmark Master Servicer Consent:
Primary Servicer hereby recommends and requests consent of Capmark Master
Servicer to the foregoing Lease Approval.
By: ___________________________________
Title: ________________________________
Date: _________________________________
Consent to Lease Approval is given:
Capmark Finance, Inc., acting solely in its capacity as Capmark Master Servicer
By: _____________________________________
Title:___________________________________
Date: ____________________________________
Exhibits to Lease Summary Submission Package
1. Borrower's written request
2. Lease with amendments, if any
3. Current Rent Roll
4. Current Operating Statement
5. Tenant Financial Statement
6. Applicable provision of Mortgage Loan Documents
