Exhibit 99.9
Capstone Sub-Servicing Agreement
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SUBSERVICING AGREEMENT
dated as of November 1, 2007
between
CAPMARK FINANCE INC.
as Capmark Master Servicer
and
CAPSTONE REALTY ADVISORS, LLC, as Subservicer
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TO BE ENTERED INTO IN CONNECTION WITH
THAT CERTAIN POOLING AND SERVICING AGREEMENT
Dated as of November 1, 2007
between
XXXXXX XXXXXXX CAPITAL I INC.,
as Depositor,
CAPMARK FINANCE INC.,
as Capmark Master Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Xxxxx Fargo Master Servicer,
NCB, FSB,
as NCB Master Servicer,
CENTERLINE SERVICING INC.,
as General Special Servicer,
NATIONAL CONSUMER COOPERATIVE BANK,
as Co-op Special Servicer,
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as Paying Agent, Certificate Registrar, and Authenticating Agent,
and
LASALLE BANK NATIONAL ASSOCIATION,
as Trustee and Custodian
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES
SERIES 2007-IQ16
This SUBSERVICING AGREEMENT, dated and effective as of November 1, 2007,
by and between CAPSTONE REALTY ADVISORS, LLC (in the capacity of subservicer,
the "Subservicer") and CAPMARK FINANCE INC., acting solely in its capacity as
Capmark Master Servicer under the Pooling and Servicing Agreement (as defined
below) (the "Capmark Master Servicer").
Preliminary Statement
WHEREAS, Xxxxxx Xxxxxxx Capital I Inc., as depositor, Capmark Master
Servicer, Xxxxx Fargo Bank, National Association, as Xxxxx Fargo Master
Servicer, NCB, FSB, as NCB Master Servicer, Centerline Servicing Inc., as
General Special Servicer (together with its successors and assigns in such
capacity, the "General Special Servicer"), National Consumer Cooperative Bank,
as Co-op Special Servicer, Xxxxx Fargo Bank, National Association, as Paying
Agent, Certificate Registrar, and Authenticating Agent, and LaSalle Bank
National Association, as Trustee and Custodian (together with its successors and
assigns in such capacity, the "Trustee"), have entered into a Pooling and
Servicing Agreement, dated as of November 1, 2007, relating to the Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ16 (as amended, from time to
time, the "Pooling and Servicing Agreement"), a copy of which is attached hereto
as Exhibit A;
WHEREAS, the Capmark Master Servicer desires that the Subservicer
act as Subservicer with respect to the mortgage loans listed on Schedule I
hereto (each, a "Mortgage Loan") and provide, on behalf of the Capmark Master
Servicer, the necessary servicing of the 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 Subservicer and the Capmark Master Servicer
hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the following
terms shall have the meanings set forth below. Capitalized terms not defined
herein shall have the meanings ascribed to them in the Pooling and Servicing
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 trust established
under the Pooling and Servicing Agreement constitutes an ABS Issuing Entity.
"Agreement": This Subservicing Agreement, as modified, amended and
supplemented from time to time, including all exhibits, schedules and addenda
hereto.
"Applicable Depositor": The Depositor under the IQ16 Transaction or
the depositor with respect to an ABS Issuing Entity other than the IQ16 Trust.
"Capmark Master Servicer": As defined in the preamble to this
Agreement.
"Capmark Master Servicer Servicing Documents": A copy of the
documents contained in the Mortgage File for the Mortgage Loans.
"Day One Report": With respect to each Mortgage Loan, a statement in
the form of the CMSA Loan Periodic Update File (in the form and containing the
information called for by the version of such report in effect at the time under
the reporting standards of the CMSA) setting forth the scheduled payments of
interest and principal and the amount of any unanticipated prepayments of which
the Subservicer has received notice (including without limitation those for
which a notice has been given to the effect that the prepayment will be made at
any time during the applicable Collection Period), indicating the Mortgage Loan
and on account of what type of payment such amount is to be applied on behalf of
the related Mortgagor.
"Depositor": means Xxxxxx Xxxxxxx Capital I Inc., a Delaware
corporation, and its successors in interest.
"Enhancement Provider": Any person that the Capmark Master Servicer
notifies the Subservicer is an enhancement or support provider contemplated by
Item 1114 or Item 1115 of Regulation AB with respect to an ABS Issuing Entity.
"Form 8-K": Form 8-K under the Exchange Act.
"Form 10-D": Form 10-D under the Exchange Act.
"Form 10-K": Form 10-K under the Exchange Act.
"General Special Servicer": As defined in the Preliminary Statement.
"IQ16 Transaction": The transaction to which the Pooling and
Servicing Agreement relates.
"IQ16 Trust": The ABS Issuing Entity to which the Pooling and
Servicing Agreement relates.
"Loan Status Reports": The form of reports to be submitted by
Subservicer with respect to reporting about the status of real estate taxes,
status of insurance and status of UCC financing statement for the Mortgage Loans
as more particularly described and set forth in Exhibit B-3.
"Monthly Remittance Report": The Monthly Remittance Report described
in Exhibit B-2 hereto and required to be delivered by the Subservicer to the
Capmark Master Servicer under the Task Description.
"Mortgage Loan": As defined in the Preliminary Statement.
"Officer's Certificate": In the case of the Subservicer, a
certificate signed by one or more of the Chairman of the Board, any Vice
Chairman, the President, or any Senior Vice President, Vice President or
Assistant Vice President or an employee designated as a Subservicing Officer
pursuant to this Agreement.
"Originator": Any person (or group of affiliated persons) that the
Capmark Master Servicer notifies the Subservicer has, within the meaning of Item
1110 of Regulation AB, originated, or is expected to originate, 10% or more of
the pool assets of an ABS Issuing Entity.
"Other Material Party": Any person that the Capmark Master Servicer
notifies the Subservicer is a material party related to the asset-backed
securities issued by an ABS Issuing Entity.
"Payment and Collection Description": The description of the
obligations of the Subservicer with respect to collection and remittance of
payments on the Mortgage Loans as more particularly described in Section 2.1(e).
"Payment and Loan Status Reports": Collectively, the Monthly
Remittance Reports, the Loan Status Reports and the following reports described
in the Task Description: the CMSA Operating Statement Analysis Reports, the CMSA
NOI Adjustment Worksheets, the CMSA Loan Periodic Update File, the CMSA Property
File, the CMSA Loan Level Reserve/LOC Report, the CMSA Servicer Watch List, the
CMSA Comparative Financial Status Report and any other CMSA reports referred to
on the Task Description.
"Pooling and Servicing Agreement": As defined in the preamble to
this Agreement.
"Power of Attorney": A power of attorney of the Capmark Master
Servicer in favor of the Subservicer substantially in the form of Exhibit C
hereto.
"Regulations": The rules, regulations and policy statements of the
SEC as in effect from time to time.
"Relevant Servicing Criteria": The Servicing Criteria applicable to
the Subservicer, as set forth on Exhibit F hereto, which for this purpose shall
be construed as if the Subservicer were a "Primary Servicer" referred to
therein.
"SEC": The Securities and Exchange Commission.
"Services": Those activities to be provided by the Subservicer for
the Servicing of the Mortgage Loans pursuant to the provisions of this
Agreement.
"Servicing": With respect to any Mortgage Loan, the right and
obligation of the Subservicer to administer such Mortgage Loan in accordance
with the provisions hereof.
"Servicing Documents": The Capmark Master Servicer Servicing
Documents and Subservicer Servicing Documents.
"Servicing Standard": With respect to the Subservicer, to service
and administer the Mortgage Loans that the Subservicer 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 determined by the Subservicer 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, to the extent
consistent with the foregoing, further as follows: (a) with the same care, skill
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; (b) with a
view to the timely collection of all scheduled payments of principal and
interest under the Mortgage Loans; and without regard to: (I) any other
relationship that the Subservicer, or any Affiliate thereof, may have with the
related Mortgagor; (II) the ownership of any Certificate by the Subservicer, or
any Affiliate thereof; (III) the Capmark Master Servicer's obligation to make
Advances; and (IV) the right of the Subservicer (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.
"Significant Obligor": With respect to the IQ16 Transaction, a
person that the Capmark Master Servicer notifies the Subservicer is a
"significant obligor" within the meaning of Item 1101(k) of Regulation AB.
"Subservicer": As defined in the preamble to this Agreement.
"Subservicer Collection Account": An account which is an Eligible
Account established by Subservicer for the purposes set forth in this Agreement
in the name of "Capstone Realty Advisors, LLC, as Subservicer for Capmark
Finance Inc., as Capmark Master Servicer for LaSalle Bank, National Association,
as Trustee for the Holders of Xxxxxx Xxxxxxx Capital I Trust 2007-IQ16,
Commercial Mortgage Pass-Through Certificates, Series 2007-IQ16"
"Subservicer Default": As defined in Section 6.1 hereof.
"Subservicer Determination Date": The Business Day immediately
preceding each Determination Date.
"Subservicer Errors and Omissions Insurance Policy": As defined in
Section 5.3(a) hereof.
"Subservicer Fidelity Bond": As defined in Section 5.3(a) hereof.
"Subservicer Form 8-K Information Report": As defined in Section
5.12(c)(i) hereof.
"Subservicer Form 10-D Information Report": As defined in Section
5.12(c)(ii) hereof.
"Subservicer Form 10-K Information Report": As defined in Section
5.12(c)(iii) hereof.
"Subservicer Remittance Date": For each Distribution Date, the
Business Day immediately succeeding the related Subservicer Determination Date.
"Subservicer Servicing Documents": (a) A copy of the documents
contained in the Mortgage Files for the Mortgage Loans and (b) all other
servicing documents and records in possession of Subservicer that relate to or
are used for the servicing of the Mortgage Loans and that are not required to be
part of the applicable Mortgage Files.
"Subservicing Fee": For each calendar month, as to each Mortgage
Loan, an amount equal to the portion of the interest accrued during such
calendar month on such Mortgage Loan at a rate per annum equal to the
Subservicing Fee Rate and on the same interest accrual basis, for the same
period and on the same principal balance on which the Capmark Master Servicer's
"master servicing fee" accrues with respect to such Mortgage Loan under the
Pooling and Servicing Agreement.
"Subservicing Fee Rate": With respect to each Mortgage Loan, a rate
per annum equal to the number of basis points set forth opposite such Mortgage
Loan on Schedule I hereto.
"Subservicing Officer": Any officer or employee of the Subservicer
involved in, or responsible for, the administration and servicing of the
Mortgage Loans whose name and specimen signature appear on a list of servicing
officers or employees furnished to the Capmark Master Servicer by the
Subservicer and signed by an officer of the Subservicer, as such list may from
time to time be amended.
"Subservicing Termination Date": As defined in Section 6.2 hereof.
"Successor Subservicer": The Person selected by the Capmark Master
Servicer upon the termination of the Subservicer resulting from any Subservicer
Default, if any, who shall thereafter perform the Services with respect to the
Mortgage Loans; provided, that the Capmark Master Servicer shall perform all
Services with respect to the Mortgage Loan until such Person, if any, is
selected.
"Task Description": The outline description of the obligations of
the Subservicer and Capmark Master Servicer with respect to the Mortgage Loans
as set forth in Exhibit B-5 attached to this Agreement.
"Trustee": As defined in the Preliminary Statement.
"20% Servicer": Any person that the Capmark Master Servicer notifies
the Subservicer is, within the meaning of Item 1108(a)(3) of Regulation AB, a
servicer of 20% or more of the pool assets of an ABS Issuing Entity.
"20% Subservicer": The Subservicer, if the Capmark Master Servicer
notifies it that it is a 20% Servicer.
ARTICLE II
SUBSERVICING
Section 2.1 Subservicing.
(a) From the Closing Date until the Subservicing Termination Date,
Capmark Master Servicer hereby authorizes and directs Subservicer to service,
and the Subservicer hereby agrees to service, the Mortgage Loans as Subservicer
on behalf and at the direction of the Capmark Master Servicer as provided in
this Agreement.
(b) The Subservicer shall perform all tasks and responsibilities
necessary to satisfy the requirements set forth under the Task Description, in
each case in a manner not inconsistent with the Pooling and Servicing Agreement.
(c) On or before the Closing Date the Subservicer shall establish
the Subservicer Collection Account, which shall be an Eligible Account, notify
the Capmark Master Servicer in writing of the name and address of the depository
institution at which the Subservicer Collection Account is maintained and the
number of the Subservicer Collection Account. The Subservicer shall deliver to
the Capmark Master Servicer prior written notice of any change in the location,
name or address of the applicable depository institution or account number of
the Subservicer Collection Account.
(d) The Subservicer shall make efforts consistent with the Servicing
Standard to collect all monthly payments of principal and interest with respect
to the Mortgage Loans (except for payments due on or prior to the Cut-Off Date),
as well as late charges, default interest, Prepayment Premiums, 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 for each Mortgage Loan; 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 Subservicer shall use efforts consistent with the
Servicing Standard to cause such payments to be made. The Subservicer shall
deposit all payments and collections received by the Subservicer into the
Subservicer Collection Account on a daily basis; provided, however, that the
Subservicer shall be entitled to retain and pay to itself the related
Subservicing Fee from the interest portion of any such payments. Payments and
collections on the Mortgage Loans received by the Subservicer, including any
full or partial prepayments, payments at maturity or other payoffs, that are
made in accordance with the related Mortgage Loan documents shall be posted by
the Subservicer to the Mortgagor records maintained by the Subservicer not more
than two Business Days after receipt and shall be allocated to principal,
interest or other items (e.g., escrow) in accordance with the related Mortgage
Loan documents. On a monthly or more frequent basis, the Subservicer shall
maintain records documenting the Subservicer's collection efforts in connection
with any delinquencies that may arise and such records shall describe the
Subservicer's activities in monitoring delinquent Mortgage Loans, including, for
example, phone calls, letters and other communications.
(e) The Subservicer shall not withdraw funds from the Subservicer
Collection Account, except as follows: (1) on the Subservicer Remittance Date
occurring in each month, the Subservicer shall remit to the Capmark Master
Servicer by wire transfer of immediately available funds any and all amounts on
deposit in the Subservicer Collection Account as of the close of business on the
Subservicer Determination Date occurring in such month (net of any amounts
permitted to be withdrawn prior thereto), other than any amounts that represent
Scheduled Payments received for a Due Date occurring after such Subservicer
Determination Date; (2) the Subservicer shall remit to the Capmark Master
Servicer by wire transfer of immediately available funds within one Business Day
following the receipt thereof any late payments and any principal prepayments or
other unscheduled payments or Balloon Payments (in each case including the
related interest payment paid by the Mortgagor); (3) the Subservicer shall be
entitled to withdraw and pay to itself any investment or other income earned on
amounts on deposit in the Subservicer Collection Account to the extent provided
below; (4) the Subservicer shall withdraw and pay to itself each other item of
compensation to which it is entitled (but only from the amounts from which such
compensation is payable as otherwise provided herein) and (5) the Subservicer
shall be entitled to withdraw from the Subservicer Collection Account at any
time any amounts on deposit therein that were not required to be deposited into
the Subservicer Collection Account. The Subservicer shall provide the Capmark
Master Servicer immediate notice of the Subservicer becoming aware that any
Principal Prepayment is to be made on any Determination Date. The Subservicer
shall keep and maintain separate accounting for the purpose of justifying any
withdrawals made from the Subservicer Collection Account. In the event any
payments received by Subservicer becomes NSF after the monies associated with
that payment have been remitted to the Capmark Master Servicer, the Capmark
Master Servicer will return such moneys to Subservicer by wire transfer in
immediately available funds within one Business Day following notice from the
Subservicer. Funds in the Subservicer Collection Account may be invested and, if
invested, shall be invested by, and at the risk of, the Subservicer in Eligible
Investments selected by the Subservicer which shall mature, unless payable on
demand, not later than the Business Day immediately preceding the next date on
which such funds are required to be remitted to the Capmark Master Servicer, and
any such Eligible Investment shall not be sold or disposed of prior to its
maturity unless payable on demand. All such Permitted Investments shall be made
in the name of "LaSalle Bank, National Association, as Trustee for the Holders
of the Xxxxxx Xxxxxxx Capital I Trust 2007-IQ16, Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16." An amount equal to all income and
gain realized from any such investment shall be for the account of the
Subservicer as additional servicing compensation and the Subservicer shall be
entitled to withdraw such income and gain from the Subservicer Collection
Account at any time and from time to time. The amount of any losses incurred in
respect of any such investments shall be for the account of the Subservicer,
which shall deposit the amount of such loss (to the extent such loss is not
offset by income from other investments) in the Subservicer Collection Account
out of its own funds immediately as realized.
(f) With respect to escrow or reserve payments as listed on the Task
Description, the Subservicer shall collect escrow or reserve amounts with
respect to the Mortgage Loans, and shall deposit such funds in an escrow account
(the "Subservicer 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 for each Mortgage Loan and with respect to the
Capmark Master Servicer under the Pooling and Servicing Agreement. The
Subservicer 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 Subservicer Escrow Account the amount of any
investment losses to the extent required in the Pooling and Servicing Agreement.
The Subservicer shall have the benefit and shall retain all interest and income
earned on the Subservicer Escrow Account for the Mortgage Loans that is not paid
to Mortgagors. In connection with such funds and all other funds (if any) held
by or maintained under the control of the Subservicer hereunder on behalf of the
Mortgagors, the Subservicer shall analyze such funds (according to the related
Mortgage Loan documents) not less frequently than annually; the Subservicer
shall pay or credit to the related Mortgagors interest or income on such funds
to which they are entitled, all in accordance with the related Mortgage Loan
documents and applicable state law; and the Subservicer shall return the
remainder of such funds to the Mortgagor within 30 days following the full
repayment of the related Mortgage Loan. If the Subservicer is required under
this Agreement to make payments or disbursements to third parties (such as tax
or insurance payments) on behalf of a Mortgagor from funds held by or maintained
under the control of the Subservicer hereunder on behalf of such Mortgagor, such
payment or disbursement shall be made on or before the related penalty or
expiration dates, as indicated on the appropriate bills or notices for such
payments, provided that such support has been received by the Subservicer at
least 30 calendar days prior to these dates. Any late payment penalties in
connection with any such payment or disbursement to be made on behalf of a
Mortgagor shall be paid from the Subservicer's funds (without right of
reimbursement therefor) and not charged to the Mortgagor, unless the late
payment was due to the Mortgagor's error or omission. Any such payments or
disbursements made on behalf of a Mortgagor shall be posted by the Subservicer
to the Mortgagor records maintained by the Subservicer, in each case within two
Business Days after the payment or disbursement.
(g) Notwithstanding any contrary provision of the Task Description,
the Subservicer shall actively monitor each Mortgagor to determine whether it is
maintaining insurance coverage required by the related mortgage loan documents
and the Pooling and Servicing Agreement. If at any time the Subservicer
determines that any Mortgagor may not be maintaining or does not maintain
terrorism or other insurance coverage required by the mortgage loan documents
and the Pooling and Servicing Agreement, the Subservicer shall promptly notify
the Capmark Master Servicer of such possible or actual failure and, if
requested, provide the Capmark Master Servicer with details of the Mortgagor's
insurance coverage. The Capmark Master Servicer will make (i) the determination
of whether or not the insurance coverage meets the requirements of the mortgage
loan documents and the Pooling and Servicing Agreement, including any assessment
of the availability of such insurance at commercial reasonable rates and terms,
(ii) any decision to advance or force place insurance and (iii) any
determination to waive or enforce any such insurance requirement.
Section 2.2 Standard of Care. The Subservicer shall perform all
Services on behalf of the Capmark Master Servicer in accordance with the terms
of this Agreement, the Servicing Standard and the applicable provisions of the
Pooling and Servicing Agreement. Subservicer and the Capmark Master Servicer
agree that, in connection with the performance of its obligations hereunder, the
Subservicer 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
Subservicer, to the extent necessary to clarify any ambiguities in the terms of
this Agreement. The Capmark Master Servicer further agrees that the Subservicer
shall be entitled to rely upon any such written instructions. The Capmark Master
Servicer shall be entitled from time to time to provide reasonable instructions
to the Subservicer regarding the actions or inactions that comply with the
Servicing Standard under the Pooling and Servicing Agreement and the Subservicer
shall comply with such instructions.
Section 2.3 Compensation and Other Payments to the Subservicer. As
consideration for the Subservicer's performance of the Services hereunder, the
Subservicer shall be entitled to deduct (and retain from the remittance
otherwise required to be made to the Capmark Master Servicer) the Subservicing
Fee in accordance with Section 2.1(e) of this Agreement, with respect to the
related Collection Period for the Mortgage Loans, and only with respect to such
Mortgage Loan for which a payment was received by the Capmark Master Servicer or
forwarded to the Capmark Master Servicer by the Subservicer. Notwithstanding the
foregoing, Subservicer shall not be entitled to a Subservicing Fee with respect
to any 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 Subservicer has been terminated as Subservicer under this Agreement
and the Pooling and Servicing Agreement.
Subservicer shall have the benefit and shall retain all interest and
income earned on the Subservicer Collection Account for the Mortgage Loans to
the extent provided in Section 2.1(e) and on the Subservicer Escrow Account to
the extent provided in Section 2.1(f). If Subservicer is terminated under this
Agreement, it shall be entitled to collect all such interest and income that
accrues through the date of termination. If any Mortgage Loan becomes a
Specially Serviced Mortgage Loan, Subservicer 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 becomes a Rehabilitated Mortgage Loan.
The Subservicer shall also be entitled to retain the fees or
portions of fees set forth in the Task Description and Exhibit B-6. The
Subservicer shall not be entitled to receive any default interest or late fees
collected from the Mortgagor, and the Subservicer 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. Subservicer
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 Subservicer is not
entitled.
The Subservicer 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 Subservicer 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 Subservicer
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
mortgage loan documents and the Mortgagor makes such reimbursement.
Section 2.4 Subservicer Representations and Warranties. The
Subservicer hereby makes the following representations and warranties for the
benefit of the Capmark Master Servicer:
(a) The Subservicer is a limited liability company duly organized,
validly existing and in good standing under the laws of the State of Ohio, and
the Subservicer is in compliance with the laws of each state in which any
Mortgaged Property is located to the extent necessary to perform its obligations
under this Agreement;
(b) The execution and delivery of this Agreement by the Subservicer
and the performance and compliance with the terms of this Agreement by the
Subservicer will not violate the Subservicer's organizational documents or
constitute default (or an event which, with notice or lapse of time, or both,
would constitute a default) under, or result in the breach of, any material
agreement or other instrument to which it is a party or which is applicable to
it or any of its assets;
(c) The Subservicer has the power and authority to enter into and
consummate all transactions contemplated by this Agreement, has duly authorized
the execution, delivery and performance of this Agreement and has duly executed
and delivered this Agreement;
(d) This Agreement, assuming due authorization, execution and
delivery by the Capmark Master Servicer, constitutes a valid, legal and binding
obligation of the Subservicer enforceable against the Subservicer in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium and other laws affecting the enforcement of
creditors' rights generally and (B) general principles of equity, regardless of
whether such enforcement is considered in a proceeding in equity or at law;
(e) The Subservicer is not in violation of, and its execution and
delivery of this Agreement and its performance and compliance with the terms of
this Agreement will not constitute a violation of, any law, order or decree of
any court or arbiter, or any order, regulation or demand of any federal, state
or local governmental or regulatory authority, which violation, in the
Subservicer's good faith and reasonable judgment, is likely to affect materially
and adversely either the ability of the Subservicer to perform its obligations
under this Agreement or the financial condition of the Subservicer;
(f) No litigation is pending or, to the best of the Subservicer's
knowledge, threatened against the Subservicer the outcome of which, in the
Subservicer's good faith and reasonable judgment, could reasonably be expected
to prohibit the Subservicer from entering into this Agreement or materially and
adversely affect the ability of the Subservicer to perform its obligations under
this Agreement;
(g) No consent, approval, authorization or order, registration or
filing with or notice to, any governmental authority or court is required, under
federal or state law, for the execution, delivery and performance of or
compliance by the Subservicer with this Agreement or the consummation by the
Subservicer of any transaction contemplated hereby, other than (1) such
consents, approvals, authorizations, qualifications, registrations, filings or
notices as have been obtained or made and (2) where the lack of such consent,
approval, authorization, qualification, registration, filing or notice would not
have a material adverse effect on the performance by the Subservicer under this
Agreement.
(h) Since the origination of the Mortgage Loans, the Subservicer (in
its capacity as interim servicer of the Mortgage Loans prior to the date hereof)
has serviced the Mortgage Loans in accordance with their terms and in accordance
with any interim servicing agreement applicable to such Mortgage Loans.
(i) The Subservicer is not aware and has not received notice that
any default, early amortization or other performance triggering event has
occurred as to any securitization due to any act or failure to act on the part
of the Subservicer.
(j) The Subservicer has not been terminated as servicer or
subservicer in a commercial mortgage loan securitization, due to a servicing
default, an application of a servicing performance test or trigger, or a default
in any of its Servicing duties.
(k) No material noncompliance with the Servicing Criteria applicable
to the Subservicer under any commercial mortgage loans securitizations has been
disclosed or reported by the Subservicer.
(l) There is no material risk that the effect on one or more aspects
of Servicing resulting from the financial condition of the Sub-Servicer could
have a material impact on the performance of the Mortgage Loans or the
performance of the Certificates.
(m) The Subservicer has not failed, in any other commercial mortgage
loan securitization, to deliver to the related Capmark Master Servicer or
depositor, in a timely, complete and accurate manner, (i) any disclosure of the
type required to be delivered pursuant to Section 5.12(c) or (ii) any reports,
certifications and other information of the type required to be delivered
pursuant to clauses (i) through (v) of Section 5.12(c).
ARTICLE III
DOCUMENTS AND OTHER MATTERS
Section 3.1 Segregation of Loan Documents. The Subservicer shall
segregate the Subservicer Servicing Documents related to the Mortgage Loans from
all other assets of the Subservicer and, upon request, forward to the Capmark
Master Servicer copies of such documents or originals of such documents if in
the possession of Subservicer and not part of the Mortgage File forwarded to the
Trustee.
Section 3.2 Access to Documents; Provision of Certain Information.
The Subservicer shall make available to the Capmark Master Servicer or any
Successor Subservicer, at a reasonable time, such information as the Capmark
Master Servicer or such Successor Subservicer shall reasonably request in
writing and shall make available to the Capmark Master Servicer or any Successor
Subservicer or Persons designated by the Capmark Master Servicer or such
Successor Subservicer such documents as the Capmark Master Servicer shall
reasonably request in writing. The Subservicer shall afford access to the
information described in Section 8.15(b) of the Pooling and Servicing Agreement
to those Persons identified in such Section as entitled to access to such
information from the Capmark Master Servicer. The Capmark Master Servicer shall
make available to the Subservicer, at a reasonable time, such information as the
Subservicer shall reasonably request in writing in connection with the
performance of the Services and, subject to the terms and conditions of Section
8.15(b) of the Pooling and Servicing Agreement, shall make available to the
Subservicer or Persons designated by the Subservicer such documents related to
the Mortgage Loans and the Servicing of the Mortgage Loans as the Subservicer
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 Subservicer to enable the
Subservicer 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 Subservicer. Notwithstanding any
other provision of this Agreement to the contrary (including any contrary
provision of Exhibit B-5), the Subservicer 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 Subservicer, the Capmark Master Servicer may require the Subservicer to
execute a receipt therefor or, in the event of a Mortgage Loan that has been
repaid in full, a certificate with respect to the payment in full of the related
Mortgage Loan.
(b) The Capmark Master Servicer shall deliver to the Subservicer the
Power of Attorney on or before the Closing Date. If required in connection with
the provision of the Services, the Capmark Master Servicer shall furnish, or
cause to be furnished, to the Subservicer, upon request, any powers of attorney
of the Capmark Master Servicer or the Trustee, empowering the Subservicer to
take such actions as it determines to be reasonably necessary to comply with its
Servicing duties hereunder or to enable the Subservicer to service and
administer the Mortgage Loans and carry out its duties hereunder, in each case
in accordance with the Servicing Standard and the terms of this Agreement. The
Subservicer 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 Subservicer shall
promptly notify the Capmark Master Servicer and the General Special Servicer,
with respect to each Specially Serviced Mortgage Loan, 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 Subservicer and such other matters as would, consistent with the
Servicing Standard, require notification to the owner or the servicer of the
Mortgage Loan. The Capmark Master Servicer shall notify the Subservicer 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 General Special Servicer and shall request, upon request by the Subservicer,
from the General Special Servicer copies of all relevant documents received by
the General Special Servicer during the time that such Mortgage Loan was a
Specially Serviced Mortgage Loan and deliver to the Subservicer such documents
promptly following the Capmark Master Servicer's receipt thereof, together with
any relevant documents received by the Capmark Master Servicer (other than from
the Subservicer) during the time that such Mortgage Loan was a Specially
Serviced Mortgage Loan.
ARTICLE V
ADDITIONAL SUBSERVICER COVENANTS
Section 5.1 Additional Notices. The Subservicer shall promptly
notify the Capmark Master Servicer of any significant events which become known
to Subservicer affecting the Mortgage Loans, the related Mortgagor or related
Mortgaged Property, such as a payment default, a bankruptcy, a judicial lien or
casualty event, and the Subservicer shall also promptly advise the Capmark
Master Servicer of all material collection and customer service issues and, if
requested, shall furnish the Capmark Master Servicer with copies of any
correspondence or other documents in the possession of the Subservicer related
to any such matter. If litigation is instituted with respect to a Mortgage Loan,
the Subservicer, if aware of such litigation, shall notify the Capmark Master
Servicer immediately as to the status of the litigation related to such 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 Subservicer's possession related to such litigation,
including, without limitation, copies of related Servicing Documents.
Section 5.2 No Personal Solicitation. The Subservicer 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 by any Mortgagor. The Subservicer agrees not to forward to any
Mortgagor or other obligors under a Mortgage Loan, any correspondence or
documents between Capmark Master Servicer and Subservicer without the consent of
the Capmark Master Servicer or General Special Servicer (each acting in its sole
discretion), unless required by law.
Section 5.3 Fidelity Bond and Errors and Omissions Insurance Policy.
(a) The Subservicer, at its own expense, shall maintain in effect a
fidelity bond (the "Subservicer Fidelity Bond") and an errors and omissions
policy (the "Subservicer Errors and Omissions Insurance Policy") with a
Qualified Insurer, naming the Capmark Master Servicer as additional insured,
affording coverage for all directors, officers and employees (it being
acknowledged that a "Qualified Insurer" shall for this purpose include any
entity that satisfies all of the criteria, other than the ratings criteria, set
forth in the definition of "Qualified Insurer" and whose obligations under the
related Subservicer Fidelity Bond or Subservicer Errors and Omissions Insurance
Policy are guaranteed or backed by an entity that satisfies the ratings criteria
set forth in the definition of "Qualified Insurer" (construed as if such entity
were an insurer referred to therein)). The Subservicer Errors and Omissions
Insurance Policy and Subservicer Fidelity Bond shall be in such form and amount
that would satisfy the requirements for such policies as the Capmark Master
Servicer must satisfy as set forth in Section 8.2 of the Pooling and Servicing
Agreement. The Subservicer shall furnish to the Capmark Master Servicer, not
later than thirty (30) days after the Closing Date, evidence (which evidence may
consist of a certificate from the applicable insurance company or companies) of
the Subservicer's compliance with this Section 5.3(a).
(b) The Subservicer shall promptly report in writing to the Capmark
Master Servicer any material adverse changes that may occur in the Subservicer
Fidelity Bond or the Subservicer Errors and Omissions Insurance Policy and shall
furnish to the Capmark Master Servicer upon written request copies of all
certificates from the applicable insurance company or companies evidencing that
such bond and insurance policy are in full force and effect. The Subservicer
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 by the Subservicer and its employees, officers, directors,
agents and representatives if such events involve funds relating to the Mortgage
Loans. 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 Subservicer's bonding companies or insurers
relating to the 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 Subservicer's Financial Statements and Related
Information. The Subservicer shall deliver to the Capmark Master Servicer,
within 120 days after the end of its fiscal year, a copy of its annual financial
statements, such financial statements to be audited if then customarily audited,
and with respect to any unaudited financial statements provided by the
Subservicer, which financial statements shall be certified by the Subservicer's
chief financial officer to be true, correct and complete. The Subservicer shall
notify the Capmark Master Servicer, as of the Closing Date, of the Subservicer'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
Subservicer make or have an obligation to make any Advances. The Subservicer
will promptly notify the Capmark Master Servicer in accordance with the Task
Description if the Subservicer believes that a Servicing Advance is or will be
required to be made with respect to any Mortgage Loan.
Section 5.6 Inspection Rights. The Subservicer 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 Mortgage Loans, and all accounts, insurance policies
and other relevant matters relating to this Agreement, and access to
Subservicing Officers of the Subservicer responsible for its obligations
hereunder. Without limiting the foregoing, the Capmark Master Servicer may visit
the offices of the Subservicer no more than once annually (including visits
under similar subservicing agreements between the Capmark Master Servicer and
the Subservicer for commercial mortgage loans) for the purpose of reviewing the
Subservicer's compliance with this Agreement and such similar agreements, upon
reasonable notice and during normal business hours, and Subservicer will
cooperate with Capmark Master Servicer to provide Capmark Master Servicer with
the information that Capmark Master Servicer reasonably requests to permit such
review.
Section 5.7 Authorized Officer. Subservicer shall provide Capmark
Master Servicer promptly with a written list of authorized Subservicing Officers
of Subservicer, which may be amended from time to time by written notice from
Subservicer to Capmark Master Servicer; provided, however, that such list shall
denote one principal Subservicing Officer responsible for the Subservicer's
obligations under this Agreement.
Section 5.8 Additional Reports. Subservicer shall produce such
additional written reports with respect to the Mortgage Loans as the Capmark
Master Servicer may from time to time reasonably request in order to comply with
its obligations under the Pooling and Servicing Agreement, provided that if any
Person is requesting the report from the Capmark Master Servicer pursuant to the
Pooling and Servicing Agreement, such report constitutes an ad-hoc non-standard
report, no additional recalculation or combinations of the information provided
by the Subservicer are required for the Capmark Master Servicer to produce such
report and the Capmark Master Servicer receives a fee for the production of such
report, then the Capmark Master Servicer shall pay such fee to the Subservicer.
Section 5.9 Consents. Proposed modifications, waivers, consents or
amendments shall be handled as set forth in Exhibit B-6.
Section 5.10 Prepayment Interest Shortfalls. For any Mortgage Loan,
Subservicer 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 Subservicer 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 Subservicer 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 Subservicer from its own
funds without reimbursement therefor equal to any Prepayment Interest Shortfall
that results from such Principal Prepayment; provided, however, that for all
Principal Prepayments received during any Collection Period, the Subservicer
shall in no event be required to remit an amount greater than the amount of the
aggregate of the Subservicing Fees for such Collection Period.
Section 5.11 Quarterly Servicing Accounts Reconciliation
Certification. The Subservicer shall execute and deliver to the Capmark Master
Servicer a certification substantially in the form set forth in Exhibit D hereto
no later than the 25th calendar day of each January, April, July and October,
commencing in April 2008 (the date of such delivery, in each case, a
"Reconciliation Certification Date"), with respect to the three consecutive
calendar months immediately preceding the calendar month in which such
Reconciliation Certification Date falls.
Section 5.12 Exchange Act Reports; Annual Compliance Documents.
(a) Regulation AB Compliance. The Subservicer shall comply with the
reporting and certification requirements required to be complied with by a
"Reporting Servicer", a "Sub-Servicer", a "Servicing Function Participant"
and/or an "Additional Servicer" under Articles XIII of the Pooling and Servicing
Agreement (whether or not the Subservicer's activities satisfy the percentage
requirement set forth in the 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 foregoing requirements shall be subject to
Section 5.12(b) through Section 5.12(h), which in certain cases shall limit and
in certain cases shall expand the requirements to be complied with by the
Subservicer pursuant to the preceding sentence.
(b) Filing Obligations - General. The Subservicer shall provide
reasonable cooperation to the Capmark Master Servicer, the Paying Agent, the
Depositor and any other Applicable Depositor in connection with the satisfaction
of the Trust's (or another ABS Issuing Entity's) reporting requirements under
the Exchange Act.
(c) Certain Reports, Certifications and Compliance Information. With
respect to each ABS Issuing Entity, the Subservicer shall comply with the
following provisions of this Section 5.12(c) in furtherance of Section 5.12(a)
and the Pooling and Servicing Agreement provisions identified below (and, unless
the Capmark Master Servicer reasonably advises the Subservicer (on a
going-forward basis) that additional deliveries are required, such compliance by
the Subservicer shall satisfy the Subservicer's requirements under Section
5.12(a) with respect to such Pooling and Servicing Agreement provisions):
(i) Form 8-K Information. In furtherance of Section 13.7 of
the Pooling and Servicing Agreement, with respect to each ABS Issuing
Entity (for so long as it is subject to Exchange Act reporting
requirements), not later than one Business Day after the Subservicer
becomes aware of the occurrence of any event described below, the
Subservicer shall deliver to the Capmark Master Servicer a report (a
"Subservicer Form 8-K Information Report") setting forth the information
specified below with respect to such event (to the extent that such
information relates to the Subservicer or to the mortgage loans serviced
by the Subservicer hereunder):
(A) In connection with the termination or expiration, or
the amendment of any provisions, of a material sub-subservicing
agreement:
(1) the date of termination of the agreement, the
identity of the parties to the agreement, and a brief
description of any material relationship between the
Subservicer or its affiliates and any of the parties other
than in respect of the agreement;
(2) a brief description of the terms and conditions
of the agreement that are material to the Subservicer;
(3) a brief description of the material
circumstances surrounding the termination;
(4) any material early termination penalties
incurred by the Subservicer; and
(5) a copy of the termination agreement (if any) or
amendment.
(B) In connection with any instance of a bankruptcy or
insolvency proceeding involving the Subservicer or any Significant
Obligor:
(1) the name or other identification of the
proceeding; and
(2) the date on which (x) jurisdiction was assumed
by a court or governmental authority over the assets or
business of the Subservicer or any Significant Obligor or (y)
any order confirming a plan of reorganization, arrangement or
liquidation of the Subservicer or any Significant Obligor; and
(3) such other information as the Capmark Master
Servicer may reasonably request of the Subservicer with
respect to such bankruptcy or insolvency proceeding (the
purpose of such information being to enable the Capmark Master
Servicer and/or the Depositor to be responsive to the
informational requirements of Item 1.03 of Form 8-K).
(C) In connection with the resignation, removal,
replacement or substitution of a sub-subservicer of the Subservicer,
or the appointment of a new such sub-subservicer:
(1) the date on which the event occurred and the
circumstances surrounding the change; and
(2) the material terms regarding such resignation,
removal, replacement, substitution or appointment, including
(I) provisions for selecting a successor sub-subservicer and
financial or other requirements that must be met by a
successor sub-subservicer, (II) the process for transferring
servicing to a successor sub-subservicer and (III) provisions
for payment of expenses associated with the servicing transfer
and any additional fees charged by a successor sub-subservicer
(specifying the amount of any funds set aside for such
servicing transfer);
(3) a copy of the written instruments or agreements
pursuant to which such resignation, removal, replacement,
substitution or appointment was effect; and
(4) such other information as the Capmark Master
Servicer may reasonably request of the Subservicer with
respect to such resignation, removal, replacement or
substitution (the purpose of such information being to enable
the Capmark Master Servicer and/or the Depositor to be
responsive to the informational requirements of Item 6.02 of
Form 8-K);
provided, however, that to the extent that any information called
for by this Section 5.12(c)(i)(C) regarding such sub-subservicer is
not determined or is unavailable at the time of the Form 8-K filing
as to which such information applies, the Subservicer shall include
a statement to this effect in the Subservicer Form 8-K Information
Report and then must deliver an amendment to such report containing
the undetermined or unavailable information within one Business Day
after such information is determined or becomes available.
(D) any other information of importance to
Certificateholders (determined by the Subservicer in accordance with
the Servicing Standard) that (A) is not otherwise required to be
included in any report to be delivered or otherwise made available
to the Capmark Master Servicer hereunder, (B) the Subservicer has
determined, in accordance with the Servicing Standard, could have an
adverse effect on payments to any Class of Certificateholders, and
(C) is directly related to a Mortgage Loan.
(ii) Form 10-D Information. In furtherance of Section 13.4 of
the Pooling and Servicing Agreement, 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 when the Subservicer
is required to deliver to the Capmark Master Servicer the CMSA Loan
Periodic Update File under the other provisions of this Agreement, the
Subservicer shall deliver to the Capmark Master Servicer a report (a
"Subservicer Form 10-D Information Report") setting forth the information
specified below relating to the Distribution Date occurring in such month,
to the extent that such information relates to the Subservicer or to the
mortgage loans serviced by the Subservicer hereunder:
(A) a description of (x) any material legal proceedings
that involve the Subservicer of a Significant Obligor or to which
any of its or such Significant Obligor's property is subject or (y)
any changes in the status of such legal proceedings;
(B) if any mortgage loan serviced hereunder and held by
the applicable ABS Issuing Entity involves a Significant Obligor,
any financial information and/or financial statements regarding such
Significant Obligor that the Capmark Master Servicer may reasonably
request of the Subservicer to enable the Capmark Master Servicer to
be responsive to the informational requirements of Item 6 of Form
10-D and Item 1112(b) of Regulation AB referred to therein;
(C) any change in how the Subservicer defines or
determines delinquencies, charge-offs and uncollectible accounts
with respect to the mortgage loans serviced by the Subservicer
hereunder, addressing the effect of any grace period, reaging,
restructure, partial payments considered current or other practices
on delinquency in loss experience;
(D) any other material information regarding
delinquencies and losses specific to the asset type represented by
the mortgage loans serviced by the Subservicer, such as repossession
information, foreclosure information and real estate owned (REO) or
similar information;
(E) information as to the mortgage loans serviced by the
Subservicer (such interest rate information to be provided for such
mortgage loans, if applicable in appropriate distributional groups
or incremental ranges);
(F) information as to beginning and ending balances of
transaction accounts, such as reserve accounts, and material account
activity during the relevant period; and
(G) such other information as the Capmark Master
Servicer may reasonably request of the Subservicer (the purpose of
such information being to enable the Capmark Master Servicer and/or
the Depositor to be responsive to the informational requirements of
Form 10-D).
(iii) Form 10-K Information (Other than Annual Compliance
Information). In furtherance of Section 13.5 of the Pooling and Servicing
Agreement, with respect to each ABS Issuing Entity (for so long as it is
subject to Exchange Act reporting requirements), not later than March 1 of
each year, the Subservicer shall deliver to the Capmark Master Servicer a
report (a "Subservicer Form 10-K Information Report") setting forth the
information specified below (excluding any report regarding its assessment
of compliance, any report by a registered public accounting firm that
attests to and reports on such assessment report, and any statement of
compliance, which reports and statements shall be governed by Section
5.12(c)(iv)), to the extent such information relates to the most recently
ended calendar year and to the Subservicer or the mortgage loans serviced
by the Subservicer hereunder:
(A) a description of (x) any material legal proceedings
that involve the Subservicer or a Significant Obligor or to which
any of its or such Significant Obligor's property is subject or (y)
any changes in the status of such legal proceedings;
(B) if any mortgage loan serviced hereunder and held by
the applicable ABS Issuing Entity involves a Significant Obligor,
any financial information and/or financial statements regarding such
Significant Obligor that the Capmark Master Servicer may reasonably
request of the Subservicer to enable the Capmark Master Servicer to
be responsive to the informational requirements of Instruction
J(2)(b) to Form 10-K and Item 1112(b) of Regulation AB referred to
in such instruction;
(C) the following descriptions of affiliations:
(I) a description of the existence and nature of
any affiliation between the Subservicer, on the one hand, and
(u) the Trustee, (v) a 20% Servicer, (w) an Originator, (x) a
Significant Obligor, (y) an Enhancement Provider or (z) an
Other Material Party, on the other hand; and
(II) a description of the existence and character
of any relationship, agreement, arrangement, transaction or
understanding between the Subservicer or any affiliate of the
Subservicer, on the one hand, and any of the persons described
in clause (u) through clause (z) of Section
5.12(c)(iii)(C)(I), on the other hand.
(iv) Annual Compliance Information. Not later than March 1 of
each year, the Subservicer shall deliver to the Capmark Master Servicer
the following reports and certifications:
(A) In furtherance of Section 13.10 of the Pooling and
Servicing Agreement, a report regarding the Subservicer's assessment
of compliance with the Relevant Servicing Criteria, 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 IQ16
Transaction, which report of assessment shall contain the following:
(I) a statement of the Subservicer's
responsibility for assessing compliance with the Relevant
Servicing Criteria;
(II) a statement that the Subservicer used the
Servicing Criteria to assess compliance with the Relevant
Servicing Criteria;
(III) the Subservicer's assessment of compliance
with the Relevant Servicing Criteria as of and for the period
ending the end of the prior calendar year (such assessment to
include (y) disclosure of any material instance of
noncompliance identified by the Subservicer with respect to
the Relevant Servicing Criteria and (z) a discussion of the
nature and status of each such instance of noncompliance); and
(IV) a statement that a registered public
accounting firm has issued an attestation report on the
Subservicer's assessment of compliance with the Relevant
Servicing Criteria as of and for the period ending the end of
the prior calendar year;
(B) In furtherance of Section 13.11 of the Pooling and
Servicing Agreement, a report by a registered public accounting firm
(registered with the Public Company Accounting Oversight Board and
subject to the reasonable approval of the Capmark Master Servicer)
that attests to, and reports on, the assessment described in the
preceding clause (A), which report shall be made in a manner that
conforms or would conform to the standards for attestation
engagements issued or adopted by the Public Company Accounting
Oversight Board and would conform to the requirements of Item
1122(b) and Item 1122(c)(1) of Regulation AB and shall be
accompanied by a consent from such registered public accounting firm
authorizing the filing of such report with the SEC;
(C) In furtherance of Section 13.9 of the Pooling and
Servicing Agreement, a statement of compliance from the Subservicer
signed by an authorized officer of the Subservicer, to the effect
that: (a) a review of the Subservicer'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; and
(D) such other information as the Capmark Master
Servicer may reasonably request of the Subservicer (the purpose of
such information being to enable the Capmark Master Servicer and/or
the Depositor to be responsive to the informational requirements of
Form 10-K).
In addition, the Subservicer shall cooperate with the Depositor with
respect to any consultation described in Article XIII of the Pooling
and Servicing Agreement.
(v) Xxxxxxxx-Xxxxx Back-Up Certification. In furtherance of
Section 13.6 of the Pooling and Servicing Agreement, simultaneously with
its delivery of the Subservicer Form 10-K Information Report, the
Subservicer shall execute and deliver to or as directed by the Capmark
Master Servicer and/or the Depositor a backup certification, which shall
be in the precise form attached as Exhibit BB-6 to the Pooling and
Servicing Agreement.
(d) Forms of Reports. Each report and certification delivered by the
Subservicer 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 Subservicer itself shall be signed by the senior officer of the
Subservicer in charge of the servicing function of the Subservicer. In no event
shall any statement or legend (whether such statement 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 applicable 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.
(e) Evidence of Engagement of Accounting Firm. Not later than
November 1 of each calendar year, the Subservicer shall deliver to the Capmark
Master Servicer evidence (reasonably satisfactory to the Capmark Master
Servicer) of the Subservicer's engagement of an accounting firm (registered with
the Public Company Accounting Oversight Board and subject to the reasonable
approval of Capmark Master Servicer) to perform the report described in
subsection (c)(iv)(B).
(f) Development of Applicable Servicing Criteria. If the Capmark
Master Servicer determines that any Relevant Servicing Criteria are not
applicable to the Subservicer and the Capmark Master Servicer so requests, the
Subservicer shall cooperate with a Capmark Master Servicer in developing a
subset of the Relevant Servicing Criteria that are applicable to the Subservicer
based on the activities it performs with respect to asset-backed securities
transactions taken as a whole involving the Subservicer and that are backed by
the same asset type backing the Certificates.
(g) Reliance on Information. For purposes of its obligations under
this Section, the Subservicer 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, (ii) any reports delivered from time to time by the
Capmark Master Servicer, the 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 and (iii) information provided by the Depositor.
(h) Servicing Transfers. Notwithstanding any resignation, removal or
termination of the Subservicer, or any assignment of the obligations of the
Subservicer, pursuant to the other provisions of this Agreement, the Subservicer
shall remain obligated to comply from time to time with the reporting and
certification obligations that would have been applicable under Section
5.12(c)(iii)(C) (report of affiliations), Section 5.12(c)(iii)(D) (assessment of
compliance and related assessment by a public accounting firm), Section
5.12(c)(iii)(E) (compliance certification) and/or Section 5.12(c)(iv)
(Xxxxxxxx-Xxxxx backup certification) 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
Subservicer 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 Subservicer shall be obligated to cause the
predecessor Subservicer 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 Subservicer.
(i) 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 Subservicer 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).
(j) 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
Subservicer on the one hand, and the Capmark Master Servicer or the Applicable
Depositor (pursuant to such agreements as they may enter into between each other
in their respective sole discretion), on the other, the determination of the
Capmark Master Servicer or the Applicable Depositor shall be conclusive and
binding in the absence of manifest error. The Subservicer shall be entitled to
rely on any such determination that is made by the Capmark Master Servicer or
the Applicable Depositor. In the event that the Subservicer initiates legal
proceedings asserting an interpretation that differs from any such determination
of the Capmark Master Servicer or the Applicable Depositor, then the Subservicer
shall comply with such determination of the Capmark Master Servicer or the
Applicable Depositor 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 Subservicer receives notice of
interpretations hereunder from the Capmark Master Servicer and the Applicable
Depositor that conflict with each other, the Subservicer shall promptly notify
the Capmark Master Servicer and the Applicable Depositor, in which case the
Subservicer shall comply with the interpretation described in the applicable
notice from the Capmark Master Servicer. In any event, the initial
interpretations set forth on Exhibit G hereto shall be binding on the
Subservicer except to the extent otherwise set forth in a notice regarding
interpretation delivered to the Subservicer by the Mater Servicer or the
Applicable Depositor pursuant to the foregoing provisions of this subsection
(i).
(k) 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 Subservicer
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) effect the reporting and
certification obligations of the Subservicer hereunder. The compliance
obligation otherwise described in the preceding sentence shall not be required
unless there shall have been delivered to the Subservicer 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.
(l) Indemnification. The Subservicer shall indemnify and hold
harmless each of the Capmark Master Servicer, any master servicer for an ABS
Issuing Entity other than the IQ16 Trust, and each Certification Party (and any
comparable party in an Other Securitization) (each such person, an "Indemnified
Person") against any losses, damages, penalties, fines, forfeitures, legal fees
and expenses and related costs, judgments and other costs and expenses incurred
by such Indemnified Person arising out of (i) a breach of the Subservicer's
representations and warranties under clauses (i) through (m) of Section 2.4,
(ii) any failure on the part of the Subservicer to perform any of its
obligations under this Section 5.12 or clause (7) of Article VII or (iii)
negligence, bad faith or willful misconduct on the part of the Subservicer in
the performance of such obligations.
If the indemnification provided for herein is unavailable or
insufficient to hold harmless any Indemnified Person, then the Subservicer shall
contribute to the amount paid or payable to the Indemnified Person as a result
of the losses, claims, damages or liabilities of the Indemnified Person in such
proportion as is appropriate to reflect the relative fault of the Indemnified
Person on the one hand and the Subservicer on the other in connection with any
breach, failure, negligence, bad faith or willful misconduct described in clause
(i), (ii) or (iii) of the preceding paragraph.
(l) No Delegation. The Subservicer shall not delegate or subcontract
any of its duties under this Section 5.12 under any circumstances,
notwithstanding any provisions of this Agreement that otherwise authorizes the
Subservicer to delegate its obligations under this Agreement.
(m) Disclosure. The Subservicer 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 any 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 Subservicer shall negotiate in good faith with
the Capmark Master Servicer for an amendment to this Section 5.12 to result in
compliance with such law or regulation as so amended (if applicable to the
Subservicer). 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 any ABS Issuing Entity, the Capmark Master Servicer shall
negotiate in good faith with the Subservicer for an amendment to this Section
5.12 to result in compliance with such law or regulation as so amended.
(o) Beneficiaries. This Section shall inure to the benefit of and be
enforceable by the Capmark Master Servicer, the Trustee and the Depositor; the
master servicer, the trustee, paying agent or certificate administrator and the
depositor for an ABS Issuing Entity other than the IQ16 Trust; and, with respect
to subsection (l), each person or entity referred to therein.
ARTICLE VI
SUBSERVICER DEFAULT; TERMINATION;
POST-TERMINATION OBLIGATIONS
Section 6.1 Subservicer Default. Each of the following events shall
constitute a "Subservicer Default" hereunder:
(i) any failure by the Subservicer to remit to the Capmark
Master Servicer when due any amount required to be remitted under this
Agreement; or
(ii) except in the case of Section 6.1(iii), any failure by
the Subservicer duly to observe or perform in any material respect any of
the covenants or agreements on the part of the Subservicer 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 to the
Subservicer by the Capmark Master Servicer; provided, however, that to the
extent the Capmark Master Servicer determines, in its reasonable
discretion, that the Subservicer is in good faith attempting to remedy
such failure and the Certificateholders shall not be materially and
adversely affected thereby, such cure period may be extended to the extent
necessary to permit the Subservicer to cure such failure; provided further
that such cure period may not exceed sixty (60) days; and provided further
that no such cure period shall apply if such failure to perform on the
part of the Subservicer would result in an Event of Default by the Capmark
Master Servicer under the Pooling and Servicing Agreement;
(iii) any breach of the representations and warranties made
pursuant to clauses (i) through (m) of Section 2.4 hereof or any failure
by the Subservicer to comply with one or more provisions of Section 5.12
or clause (7) 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 Subservicer is in good faith
attempting to remedy such failure and no Certification Party will be
materially and adversely affected by giving the Subservicer an
opportunity to cure such failure, the Capmark Master Servicer may,
following consultation with the Applicable Depositor, give the
Subservicer 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 Subservicer would result in either
failure by the Capmark Master Servicer (or the 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; and
(D) unless the Capmark Master Servicer otherwise
consents, the cure period described in this Section 6.1(iii) 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 Subservicer 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 Subservicer; or
(iv) any breach of the representations and warranties made
pursuant to clauses (a) through (m) of Section 2.4 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 Subservicer;
provided, however, that to the extent the Capmark Master Servicer
determines in its reasonable discretion that the Subservicer is in good
faith attempting to remedy such breach and the Certificateholders shall
not be materially and adversely affected thereby, such cure period may be
extended to the extent necessary to permit the Subservicer 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 Subservicer 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,
then the cure periods described in this Section 6.1(iv) shall not apply;
or
(v) 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 Subservicer
is insufficient to maintain such rating; or
(vi) 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 Subservicer and such decree or order shall have remained in force
undischarged or unstayed for a period of sixty (60) days; or
(vii) the Subservicer 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
(viii) the Subservicer 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
(ix) any compliance assessment delivered by the Subservicer,
or any attestation thereof by an accounting firm, includes an exception or
variance from the criteria assessed therein that the Capmark Master
Servicer determines, in its reasonable and good faith judgment, is a
material exception or variance from the servicing criteria addressed
therein or from the established practices of prudent institutional
servicers of commercial mortgage loans held by securitization vehicles; or
(x) any other event caused by the Subservicer which creates an
Event of Default (or an event that with notice or the passage time would
constitute such an Event of Default) of the Capmark Master Servicer under
the Pooling and Servicing Agreement;
(xi) the Subservicer shall fail to deliver any Exchange Act
reporting items required to be delivered by the Subservicer under Section
5.12 of this Agreement at the times required under such section, or the
failure of the Subservicer to comply with any requirements to deliver any
items required by Items 1122 and 1123 of Regulation AB under any other
pooling and servicing agreement relating to any transaction similar to the
IQ16 Transaction; or
(xii) the Subservicer is a "Sub-Servicer" (as defined in the
Pooling and Servicing Agreement) and is deemed to be a "Prohibited Party"
(as defined in the Pooling and Servicing Agreement) at any time during
which the Trust is subject to the reporting requirements of the Exchange
Act.
The Subservicer agrees to give prompt written notice to the Capmark
Master Servicer and the Depositor (and any other Applicable Depositor) upon the
occurrence of any Subservicer Default.
If the Subservicer fails to remit to the Capmark Master Servicer
when due any amount required to be remitted under this Agreement (whether or not
such failure constitutes a Subservicer Default), then interest shall accrue on
the amount that was required to be remitted, and the Subservicer 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.
Section 6.2 Termination.
(a) The obligations and responsibilities of the Subservicer as
created hereby (other than as expressly provided herein) shall terminate upon
the earliest to occur of (i) the receipt by the Subservicer of the Capmark
Master Servicer's written notice of such termination delivered at the Capmark
Master Servicer's option following the occurrence of a Subservicer Default other
than as described in Section 6.1(iii), (ii) the occurrence of a Subservicer
Default described in Section 6.1(iii), (iii) the final payment or other
liquidation of the last Mortgage Loan remaining outstanding and (iv) the date
set forth as the date of termination in an instrument executed by both the
Subservicer and the Capmark Master Servicer and evidencing their mutual consent
that this Agreement be terminated (the date on which any of the events described
in clause (i), (ii) or (iii) of this sentence takes place (the "Subservicing
Termination Date"). From and after the Subservicing Termination Date, the
Subservicer shall, if applicable, continue to cooperate in the transfer of
subservicing, including the delivery of files and transfer of accounts as
contemplated hereby but shall have no further obligations under this Agreement.
(b) Without limiting the foregoing, the Subservicer agrees that the
rights and duties of the Capmark Master Servicer under this Agreement and the
Pooling and Servicing 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.
(c) Subservicer's rights and obligations shall expressly survive a
termination of Capmark Master Servicer's servicing rights pursuant to the
Pooling and Servicing Agreement (except a termination of Capmark Master Servicer
caused by a Subservicer Default). In the event of such a termination, any
successor Capmark 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.
(d) Upon the request of Subservicer, the successor Capmark Master
Servicer or Trustee, as applicable, shall confirm to Subservicer in writing that
this Agreement remains in full force and effect. Upon the request of the
successor Capmark Master Servicer or Trustee, Subservicer shall confirm to the
successor Capmark Master Servicer or Trustee, as applicable, in writing that
this Agreement remains in full force and effect.
(e) The Capmark Master Servicer's reimbursement obligations to the
Subservicer hereunder shall survive the Subservicing Termination Date, but only
to the extent such reimbursement relates to a period prior to the termination of
all of the Subservicer's obligations hereunder.
(f) The rights of Capmark Master Servicer to terminate Subservicer
upon the occurrence of a Subservicer 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 Assignment by Subservicer. This Agreement and the rights
and benefits hereunder of the Subservicer shall not be assignable, and the
duties and obligations hereunder of such party shall not be delegable; provided,
however, that (i) the Subservicer may assign, sell or transfer its rights and
duties under this Agreement (in whole and not in part) to a parent company of
Subservicer or a wholly-owned subsidiary or affiliate of such party, or a
successor by merger of Subservicer; (ii) the Subservicer shall be entitled to
employ subcontractors to the extent provided in Article VII and (iii) the
Subservicer shall be entitled to assign, sell or transfer its rights and duties
under this Agreement (in whole and not in part) with the reasonable approval of
the Capmark Master Servicer and the Depositor, provided that (in the case of
this subclause (iii)) the proposed successor to the Subservicer then (a) is
rated "above average" or the equivalent by each Rating Agency, (b) has at least
$15,000,000 in total assets and (c) is appropriately qualified to do business
and/or is licensed in all jurisdictions where such qualification and/or
licensing is necessary to service the Mortgage Loans. Any such assignment under
this Section 6.3 (other than one described in clause (ii) above) shall (i) not
be effective until such successor Subservicer enters into a written agreement
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
Subservicer 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 Subservicer. Any assignment or delegation or
attempted assignment or delegation in contravention of this Agreement shall be
null and void. Notwithstanding the provisions of this Section 6.3 (except for
the preceding sentence), for so long as any ABS Issuing Entity is subject to the
reporting requirements of the Exchange Act, the actions described in clause (i)
above may not be taken without prior written consent of the Depositor.
Section 6.4 Resignation of Subservicer. The Subservicer shall not
resign from the obligations and duties hereby imposed on it (except as otherwise
permitted under Section 6.3) unless it determines that the Subservicer'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 Subservicer 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
Subservicer's responsibilities and obligations under this Agreement.
Section 6.5 Post-Termination Obligations.
(a) In the event of a termination of the Subservicer's rights and
duties hereunder due to a Subservicer Default, any assignment of the
Subservicer's rights and duties hereunder permitted under Section 6.3 or any
resignation of the Subservicer from its rights and duties hereunder permitted
under Section 6.4, as the case may be, the Subservicer shall promptly (i)
deliver the Servicing Documents to the Capmark Master Servicer or a Successor
Subservicer, as directed by the Capmark Master Servicer, (ii) remit to or at the
direction of the Capmark Master Servicer, by wire transfer of immediately
available funds, all cash held by the Subservicer with respect to the Mortgage
Loans, and (iii) if so requested by the Capmark Master Servicer, assign to the
Capmark Master Servicer or a Successor Subservicer, as directed by the Capmark
Master Servicer, and in such event the Capmark Master Servicer shall assume, or
cause the Successor Subservicer to assume, all service contracts related to the
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 Subservicer shall use all reasonable efforts to obtain the
consents required to effect such assignments.
(b) On and after the Subservicing Termination Date, the date of any
assignment of the Subservicer's rights and duties hereunder in accordance with
Section 6.3 or the date of any resignation by the Subservicer from its rights
and duties hereunder in accordance with Section 6.4, as the case may be, the
Subservicer shall promptly endorse and send to or at the direction of the
Capmark Master Servicer via overnight mail or delivery service any checks or
other funds in respect of the Mortgage Loans which are received by the
Subservicer.
(c) The Subservicer shall provide to the Capmark Master Servicer
promptly (but in no event later than ten (10) Business Days) after the
Subservicing Termination Date, the date of any assignment of the Subservicer's
rights and duties hereunder in accordance with Section 6.3 or the date of any
resignation by the Subservicer from its rights and duties hereunder in
accordance with Section 6.4, as the case may be, 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 Subservicer with regard
to the Mortgage Loans, 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
such Mortgage Loan.
(d) On a date to be agreed upon by the Subservicer and the Capmark
Master Servicer, but not later than the Business Day following the Subservicing
Termination Date, the date of any assignment of the Subservicer's rights and
duties hereunder in accordance with Section 6.3 or the date of any resignation
by the Subservicer from its rights and duties hereunder in accordance with
Section 6.4, as the case may be, the Subservicer shall commence and continue
diligently to completion at its own expense, to notify the Mortgagors under the
Mortgage Loans of the address to which payments on such Mortgage Loans should be
sent after the Subservicing Termination Date, the date of any assignment of the
Subservicer's rights and duties hereunder in accordance with Section 6.3 or the
date of any resignation by the Subservicer from its rights and duties hereunder
in accordance with Section 6.4, as the case may be; provided, however, that in
any event, Subservicer shall be obligated to notify Mortgagors within seven (7)
Business Days following the Subservicing Termination Date, the date of any
assignment of the Subservicer's rights and duties hereunder in accordance with
Section 6.3 or the date of any resignation by the Subservicer from its rights
and duties hereunder in accordance with Section 6.4, as the case may be.
(e) The Subservicer shall promptly forward to the Capmark Master
Servicer, at the Subservicer's expense all Mortgagor correspondence, insurance
notices, tax bills or any other correspondence or documentation related to any
Mortgage Loan which is received by the Subservicer after the Subservicing
Termination Date, the date of any assignment of the Subservicer's rights and
duties hereunder in accordance with Section 6.3 or the date of any resignation
by the Subservicer from its rights and duties hereunder in accordance with
Section 6.4, as the case may be.
(f) The Subservicer shall otherwise cooperate in the orderly
transfer of the servicing of the Mortgage Loans and shall forward to the Capmark
Master Servicer and any Successor Subservicer such documents as it may receive
from time to time regarding any Mortgage Loan transferred and provide such other
assistance as may reasonably be required by the Capmark Master Servicer or any
Successor Subservicer regarding such transfer.
(g) Subservicer shall be entitled to all fees, compensation,
interest and earnings on the Mortgage Loans accrued through the date of
termination of its obligations and rights under this Agreement.
Section 6.6 Additional Terminations. Notwithstanding any provision
herein to the contrary, this Agreement shall terminate with respect to any
Mortgage Loan if and when (i) such Mortgage Loan becomes a Specially Serviced
Mortgage Loan or an REO Mortgage Loan (provided that this Agreement shall resume
as to such Mortgage Loan if and when such Mortgage Loan becomes a Rehabilitated
Mortgage Loan), (ii) such Mortgage Loan is sold or otherwise disposed of by or
on behalf of the Trust or (iii) such Mortgage Loan is defeased. In the event of
such termination, the Subservicer shall comply with Section 6.5 as if a
Subservicer Default had occurred, except that such Section shall be construed to
relate only to such Mortgage Loan and references therein to Subservicing
Termination Date shall be construed to mean the date of such termination, and
(ii) the Subservicer shall cooperate in the orderly transfer of the servicing of
such 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. The Subservicer shall be entitled to all fees,
compensation, interest and earnings on such Mortgage Loan (to which the
Subservicer is otherwise entitled hereunder) accrued through the date of
termination of its obligations and rights with respect to such Mortgage Loan
under this Agreement, except that the Capmark Master Servicer shall be entitled
to any and all fees actually collected in connection with the defeasance of any
Mortgage Loan. If a Mortgage Loan subsequently becomes a Rehabilitated Mortgage
Loan, then the Subservicer shall promptly resume the servicing of such Mortgage
Loan in accordance with the terms hereof.
ARTICLE VII
SUBCONTRACTORS
Without prior notice to or the prior written consent of the Capmark
Master Servicer, the Subservicer shall be permitted to employ, at its own
expense, subcontractors to perform selected services (such as the engagement of
tax monitoring services, property inspections, etc.) in connection with
Subservicer's performance of the Services for the Mortgage Loans; provided,
however, that: (1) the Subservicer shall remain fully liable at all times for
the timely performance of all Services and for all other obligations hereunder;
(2) the terms of such an arrangement shall not be binding upon the Capmark
Master Servicer or any successor primary servicer or subservicer of the Mortgage
Loans; (3) no such arrangement shall obligate the Capmark Master Servicer to
communicate or deal with any Person under this Agreement other than the
Subservicer; (4) no such arrangement shall result in the delegation by the
Subservicer of its duty to make any recommendation for the granting or
withholding of any consent or waiver or the making of any other decision on the
part of the holder of any Mortgage Loan; (5) such arrangements taken together
shall not result in the delegation by the Subservicer of substantially all of
its duties hereunder to any one Person or group of Affiliated Persons; (6) the
Subservicer shall maintain and perform policies and procedures to monitor such
subcontractors' performance of the services for which they are employed; and (7)
following written notice from the Capmark Master Servicer to the Subservicer
that the Subservicer is a "Sub-Servicer" as defined in the Pooling and Servicing
Agreement, (i) the Subservicer 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) 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 Subservicer shall,
with respect to each such Subcontractor with which it has entered into a
servicing relationship with respect to the Mortgage Loans, (A) include in a
written agreement between the Subservicer and such Subcontractor provisions
analogous to those of Section 5.12, Section 6.1(iii), clauses (i) through (m) of
Section 2.4, this clause (7) of this Article VII, the last sentence of Section
10.10, and the last sentence of Section 10.12 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
SUBSERVICER TO HOLD PROPERTY FOR THE CAPMARK MASTER SERVICER
All records relating to the Mortgage Loans held by the Subservicer,
including but not limited to the Subservicer 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 Subservicer 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 Subservicer's Indemnity.
(a) The Subservicer 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 Subservicer or any
Person hired by the Subservicer to perform properly any of the Services to be
performed by the Subservicer pursuant to the Payment and Collection Description,
the Payment and Loan Status Reports and Task Description, (ii) any failure by
the Subservicer to perform its obligations under this Agreement, or (iii) breach
of any of the Subservicer's representations and warranties hereunder; provided,
however, that the Subservicer 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 or under the Pooling and Servicing
Agreement (except to the extent that such failure was caused by the
Subservicer's failure to perform its obligations hereunder). The indemnification
provided under this Section 9.1 shall survive the Subservicing Termination Date.
The Capmark Master Servicer shall promptly notify the Subservicer if a claim is
made by a third party with respect to this Agreement or the Mortgage Loans
entitling the Capmark Master Servicer to indemnification hereunder. The
Subservicer 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 Subservicer shall not affect any of the
Capmark Master Servicer's rights to indemnification.
(b) Neither the Subservicer nor any of the directors, officers,
employees or agents of the Subservicer shall be under any liability to the
Capmark Master Servicer, the holders of the Certificates, 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 Subservicer 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 Subservicer
and any director, officer, employee or agent of the Subservicer 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 use all reasonable efforts to obtain the benefits of the rights
of indemnification in favor of Capmark Master Servicer contained in the Pooling
and Servicing Agreement on behalf of the Subservicer and the Subservicer's
agents, employees and subcontractors insofar as such indemnification relates to
losses, liabilities, expenses, claims, demands, costs or judgments against the
Subservicer arising out of or related to the Subservicer's performance
hereunder. The rights of the Subservicer provided under this Section 9.2 shall
survive the Subservicing 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
estop 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 Successors and Assigns. 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 successors and permitted assigns.
Section 10.6 Prior Understandings. This Agreement supersedes any and
all prior discussions and agreements between or among the Subservicer and the
Capmark Master Servicer with respect to the Servicing of the Mortgage Loans and
the other matters contained herein. This Agreement, together with the Pooling
and Servicing Agreement, contains the sole and entire understanding between the
parties hereto with respect to the transactions contemplated herein. If a
conflict exists between this Agreement and the Pooling and Servicing Agreement,
then the Pooling and Servicing Agreement shall control. If this Agreement
requires Subservicer to perform a task or duty, the details and obligations of
which (a) are set forth in this Agreement and (b)(i) are not set forth in the
Pooling and Servicing Agreement or (ii) are set forth in the Pooling and
Servicing Agreement only in general terms, then Subservicer shall perform such
task and duties in accordance with the details and obligations set forth in this
Agreement. If this Agreement requires Subservicer 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, then the Subservicer shall
perform such task and duties in accordance with the Pooling and Servicing
Agreement.
Section 10.7 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 10.8 Governing Laws. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AND THE
OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE DETERMINED IN
ACCORDANCE WITH SUCH LAWS WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES.
Section 10.9 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 Master Servicer:
at the address set forth in Section 15.5 of the Pooling and
Servicing Agreement;
If to the Subservicer:
Capstone Realty Advisors, LLC
0000 Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx, Chief Operating Officer
Fax: 000-000-0000
Section 10.10 Amendment. In the event that the Pooling and Servicing
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, but no such amendment to the Pooling and Servicing Agreement or
deemed amendment to this Agreement shall increase the obligations or decrease
the rights of Subservicer under this Agreement without its express written
consent which consent shall not be unreasonably withheld or delayed. This
Agreement may not otherwise be altered or modified except by a written
instrument executed by the party against whom enforcement is sought. 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 5.12, Section 6.1(iii), clauses (i) through (n) of Section 2.4, clause
(7) of Article VII, the last sentence of Section 10.12 or this sentence without
the Depositor's prior written consent.
Section 10.11 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 10.12 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. Such parties to the Pooling and Servicing
Agreement, the Underwriters, any other Applicable Depositor and any master
servicer for an ABS Issuing Entity other than the IQ16 Trust are intended
third-party beneficiaries of this Agreement.
[signature page follows]
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
----------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
CAPSTONE REALTY ADVISORS, LLC, as Subservicer
By: /s/ Xxxxxxx Xxxxx
----------------------------------------------
Name: Xxxxxxx Xxxxx
Title: Chief Operating Officer
SCHEDULE I
LOAN SCHEDULE
Subservicing
Fee Rate
Loan Cut-Off Date (basis
Number Property Name Balance points)
------ ---------------------------- ------------ ------------
54 IDG Retail Portfolio Roll-Up 9,600,000.00 5.00000
00 Xxxxxxx Xxxxxx Office 9,576,283.56 5.00000
00 Xxxxxxxx Xxxxx 6,050,000.00 5.00000
112 Xxxxxxxxx MHP 4,300,000.00 5.00000
164 Riviera Apartments 2,198,422.24 5.00000
EXHIBIT A
Pooling and Servicing Agreement
EXHIBIT B
Exhibit B-1: Form of Day One Report
Exhibit B-2: Form of Monthly Remittance Report
Exhibit B-3: Forms of Loan Status Reports
Exhibit B-4: Form of Monthly Report on Pending Special Requests
Exhibit B-5: Task Description
Exhibit B-6: Consent Procedures and Compensation
EXHIBIT B-1
Form of Day One Report
Subservicer Name
Pool Name
For Payment
Due:________________
Beginning Actual Scheduled Scheduled Scheduled
Capmark Subservicer Principal Paid to Monthly P&I Principal Interest
Loan # Loan # Balance Date Payment Payment Payment
------- ----------- --------- ------- ----------- --------- ---------
$- $- $- $-
$- $- $- $-
$- $- $- $-
------- ----------- --------- ------- ----------- --------- ---------
TOTAL $- $- $- $-
Ending
Capmark Principal Interest Subservicing Subservicing Prepayment Partial Full Prepayment
Loan # Balance Rate Fee Rate Fee Penalty Prepayment Prepayment Date
------- --------- -------- ------------ ------------ ---------- ---------- ---------- ----------
$- 0.000% 0.000% $- $- $- $-
$- 0.000% 0.000% $- $- $- $-
$- 0.000% 0.000% $- $- $- $-
------- --------- -------- ------------ ------------ ---------- ---------- ---------- ----------
TOTAL $- $- $- $- $-
Prepared By:_________________
Title:________________________
EXHIBIT B-2
Form of Monthly Remittance Report
Subservicer Name
Address
Pool Name
Monthly Remittance Report - mm/dd/yy
Capmark Subservicer Beginning Gross Net Principal Gross Interest Interest
Loan # Loan # Principal Balance P&I Payment Payment Payment Basis
---------------- ----------- ------------------ ------------ ------------------ --------------- ---------
$- $- $- $- 0.000%
$- $- $- $- 0.000%
$- $- $- $- 0.000%
---------------- ----------- ------------------ ------------ ------------------ --------------- ---------
TOTAL REMITTANCE $- $- $- $- 0.000
Payment
Capmark Sub-servicing Net Interest Late Charge Total Net Ending Date Rec'd From Paid to
Loan # Fee Amount Payment Payment Remittance Principal Balance Borrower Date
---------------- -------------- ------------- ------------ ----------- ------------------ --------------- -------
$- $- $- $-
$- $- $- $-
$- $- $- $-
---------------- -------------- ------------- ------------ ----------- ------------------ --------------- -------
TOTAL REMITTANCE $- $- $- $- $-
Prepared By:_________________
Title:________________________
EXHIBIT B-3
Forms of Loan Status Reports
Exhibit B-3(a): Real estate tax monitoring report
Exhibit B-3(b): Insurance monitoring report
Exhibit B-3(c): UCC monitoring report
EXHIBIT B-3(a)
(Real estate tax monitoring report)
Pool Name
TAX MONITORING REPORT
DATED AS OF (month end)
Subservicer:
CAPMARK Subservicer Property Parcel Taxing Last Tax Last Date Next Tax Next Tax
Loan # Loan # Borrower Name Address Number Authority Amount Paid Tax Paid Amount Due Due Date
------- ----------- ------------- -------- ------ --------- ----------- --------- ---------- --------
Prepared By:_________________
Title:________________________
EXHIBIT B-3(b)
(Insurance monitoring report)
Pool Name
INSURANCE MONITORING REPORT
DATED AS OF (month end)
Subservicer:
CAPMARK Subservicer Xxxx. Expir. Type of Pol. Prem.
Loan # Loan # Name Date Coverage Number Amount Carrier
------- ----------- ----- ------ -------- ------ ------ -------
Loss Payee Meets
Reflects Insurance
CAPMARK Trust Rating Agent Agent Policy Loan Coverage
Loan # (Y or N) (Y or N) Agent City State Amount Bal. Difference
------- ---------- --------- ----- ----- ----- ------ ---- ----------
Prepared By:_________________
Title:________________________
EXHIBIT B-3(c)
(UCC monitoring report)
Pool Name
UCC MONITORING REPORT
DATED AS OF (month end)
Subservicer:
Jurisdiction
(Secretary of
CAPMARK Subservicer State or Original Continuation Next
Loan # Loan # Borrower Name County) Filing Date Filing Number Filing Date
------- ----------- ------------- ------------- ----------- ------------- -----------
EXHIBIT B-4
(Report on Pending Special Requests)
QUARTERLY REPORT ON PENDING SPECIAL REQUESTS
Pool Name:
Date:
Subservicer:
Subservicer Loan Capmark Master Property Type of Date Request Status of Anticipated
Number Servicer Loan Number Name Request Received Request Close Date
---------------- -------------------- -------- ------- ------------ --------- -----------
EXHIBIT B-5
TASK DESCRIPTION
CAPMARK MASTER SERVICER/SUBSERVICER TASK LIST
COMMERCIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2007-IQ16
Note: Some listed tasks designate more than one party to perform that function
by placing an "X" in more than one column. In these instances, the parties
shall follow any specific guidance about the allocation of
responsibilities in completing the task found in the terms of this
Agreement. 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 GENERAL TRUSTEE
MASTER SPECIAL /PAYING
SERVICER SUBSERVICER SERVICER AGENT
1. Asset Files
Original collateral file (security) X
Authorized parties list for request for release of collateral from X X
Trustee
Establish servicing files criteria X
Establish and maintain servicing files X
Provide access to servicing files and copies of servicing files or X
of specific documents upon request to the Capmark Master Servicer
Request delivery of files from Trustee upon request and X
certification of Subservicer
2. Property Taxes
Monitoring of tax status - Loans with/without escrows X
Recommendation of payment of taxes - Loans with/without escrows X
Notification of advance requirement not less than 3 business days X
prior to advance being required
Payment of taxes - with sufficient escrows X
Payment of taxes - with escrow shortfall X
3. Property Insurance
Monitoring of insurance status - Loans with/without escrows X
Ensure insurance carrier meets Pooling and Servicing Agreement X
qualifications
Ensure insurance in favor of the Capmark Master Servicer on behalf X
of the Trustee
Recommendation of payment or force placement of insurance X
with/without escrow
Notification of advance requirement or force placement of insurance X
not less than 3 business days prior to advance being required
Payment of insurance - with sufficient escrows X
Payment of insurance or force placement - with escrow shortfall X
Manage processing of insurance claims in accordance with Mortgage X
Loan documents and the Pooling and Servicing Agreement
Collection of insurance proceeds X
Consent to application of insurance proceeds X
4. UCC Continuation Filings
Maintain and monitory tickler system of the refiling dates on all X
Loans
File UCC Continuation Statements X
Pay recording fees X
5. Collection/Deposit/Remittance of P&I payments and Principal
Prepayments
Collection and deposit of loan P&I payments and Principal Prepayments X
Remittance of available Subservicer P&I payments (net of X
Subservicing Fee) to Capmark Master Servicer
Remittance of collections to the Trustee X
Remittance of Special Servicer compensation to the General Special X
Servicer
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 not more than 3 days after X
date of delinquency
Send 30 day delinquent notices X
Send notice of balloon payment to each Mortgagor one year, 180 days X
and 90 days prior to the related maturity date
Provide copy of balloon payment notice to Capmark Master Servicer X
8. Escrows
Setup and monitor Escrow Accounts including escrow analysis X
Pay borrower investment income as required under mortgage loan documents or X
applicable law
Prepare annual escrow analysis X
9. Loan payment history/calculation
Maintain loan payment history X
Create payoff/reinstatement statements and telecopy to Capmark X
Master Servicer
Approve payoff calculations and telecopy approval to Subservicer X
within five (5) Business Days
10. Monitoring of Financial and Legal Covenants
Collect annual operating statements, budgets, rent rolls and X
borrower financial statements, as applicable
For each Mortgaged Property, no later than the earlier of (i) 95 X
calendar days after the end of each of the first three quarters (in
each year) and (ii) 30 days after receipt of the underlying
operating statements from the related Mortgagor, commencing for the
quarter ending on September 30, 2007, in each case for the trailing
or quarterly information received, deliver one (1) copy of completed
annual operating statement analysis using the CMSA Operating
Statement Analysis Report and a completed CMSA Financial File (in
each case in the form and containing the information called for by
the version of such report in effect at the time under the reporting
standards of the CMSA) (in electronic format) for each Mortgaged
Property to the Capmark Master Servicer, prepared using
non-normalized quarterly, year-to-date or trailing 12-month
operating statements and rent rolls received from the related
Mortgagor.
With respect to each calendar year, beginning in 2008 for year-end X
2007, no later than the earlier of (i) 30 days after receipt of the
underlying operating statements from the related Mortgagor and (ii)
June 1 of each calendar year, deliver to the Capmark Master Servicer
an operating statement analysis report using the CMSA Operating
Statement Analysis Report, a completed CMSA Financial File and a
completed NOI Adjustment Worksheet (in each case in the form and
containing the information called for by the version of such report
in effect at the time under the reporting standards of the CMSA) for
each Mortgage Loan (in electronic format), based on the most
recently available year-end, year-to-date or trailing 12-month
financial statements and most recently available rent rolls of each
applicable Mortgagor (to the extent provided to the Subservicer by
or on behalf of each Mortgagor), containing such information and
analyses for each Mortgage Loan provided for in the respective forms
of Operating Statement Analysis Report, CMSA Financial File and NOI
Adjustment Worksheet as would customarily be included in accordance
with the Servicing Standard, including without limitation, Debt
Service Coverage Ratios and income.
Deliver to Capmark Master Servicer copies of any annual, monthly or X
quarterly financial statements and rent rolls collected with respect
to the Mortgaged Properties, in each case within 30 days following
receipt thereof by the Subservicer. As and to the extent requested
by Capmark Master Servicer following request therefor received by
General Special Servicer, make inquiry of any Mortgagor with respect
to such information or as regards the performance of the related
Mortgaged Property in general.
11. Advancing
Determination of Non-Recoverability X
12. Reporting (Electronic mail)
Prepare and deliver to the Capmark Master Servicer the Day One X
Report (in the form of and setting the information called for by
Exhibit B-1) on the first business day of each month
Prepare and deliver to the Capmark Master Servicer a Monthly X
Remittance Report (in the form of and setting the information called
for by Exhibit B-2) for payments received on Mortgage Loans on each
day that funds are required to be wired to the Capmark Master
Servicer under Section 2 of this Agreement
Prepare and deliver to the Capmark Master Servicer a CMSA Delinquent X
Loan Status Report (in the form and containing the information
called for by the version of such report in effect at the time under
the reporting standards of the CMSA) on all Mortgage Loans on the
Subservicer Remittance Date occurring in each month reflecting
information as of the close of business on the Subservicer
Determination Date occurring in such month
Deliver on each April 25, July 25, October 25, and January 25 of X
each year a Quarterly Servicing Accounts Reconciliation
Certification in the form of Exhibit D
Prepare Loan Status Reports (in the forms of and setting the X
information called for by Exhibit B-3) in each January, April, July
and October of each year; deliver same to Capmark Master Servicer
not later than the Subservicer Remittance Date
Prepare Loan Status Reports (in the forms of and setting the X
information called for by Exhibit B-3) in each January, April, July
and October of each year; deliver same to Capmark Master Servicer
not later than the Subservicer Remittance Date
Complete and deliver CMSA Loan Setup File (in the form and X X
containing the information called for by the version of such report
in effect at the time under the reporting standards of the CMSA) for
Mortgage Loans in accordance with Pooling and Servicing Agreement
Complete CMSA Loan Periodic Update File (in the form and containing X
the information called for by the version of such report in effect
at the time under the reporting standards of the CMSA) for Mortgage
Loans reflecting information as of the close of business on the
Subservicer Determination Date in each month; deliver same to
Capmark Master Servicer not later than the Subservicer Remittance
Date occurring in such month; such report to be in addition to the
Day One Report
Complete CMSA Property File (in the form and containing the X
information called for by the version of such report in effect at
the time under the reporting standards of the CMSA) for Mortgage
Loans reflecting information as of the close of business on the
Subservicer Determination Date in each month; deliver same to
Capmark Master Servicer not later than the Subservicer Remittance
Date occurring in such month
Complete CMSA Servicer Watch List (in the form and containing the X
information called for by the version of such report in effect at
the time under the reporting standards of the CMSA) for Mortgage
Loans reflecting information (including the information required
under Section 8.11(h) of the Pooling and Servicing Agreement) as of
the close of business on the Subservicer Determination Date in each
month; deliver same to Capmark Master Servicer not later than the
Subservicer Remittance Date occurring in such month
Complete and deliver CMSA Comparative Financial Status Report (in X
the form and containing the information called for by the version of
such report in effect at the time under the reporting standards of
the CMSA) reflecting information as of the close of business on the
Subservicer Determination Date in each month; deliver same to
Capmark Master Servicer not later than the Subservicer Remittance
Date occurring in such month
Complete CMSA Loan Level Reserve/LOC Report (in the form and X
containing the information called for by the version of such report
in effect at the time under the reporting standards of the CMSA) for
Mortgage Loans reflecting information as of the close of business on
the Subservicer Determination Date in each month; deliver same to
Capmark Master Servicer not later than the Subservicer Remittance
Date occurring in such month
Complete all other CMSA reports (in the form and containing the X
information called for by the version of each such report in effect
at the time under the reporting standards of the CMSA) required to
be provided by the Capmark Master Servicer under the Pooling and
Servicing Agreement, reflecting information as of the close of
business on the Subservicer Determination Date in each month;
deliver same to Capmark Master Servicer not later than the
Subservicer Remittance Date occurring in such month
13. Property Annual Inspections
Conduct site inspection in accordance with requirement of Section X
3.12 of the Pooling and Servicing Agreement
Provide one copy of Inspection Reports (in the form of and setting X
forth the information called for by Exhibit L to the Pooling and
Servicing Agreement) to the Capmark Master Servicer within 30 days
of inspection
14. Preparation of servicing transfer letters X
15. Preparation of IRS Reporting (1098s and 1099s or other tax reporting X
requirements) and delivery of copies to the Capmark Master Servicer
by January 31st of each year
16. Provide Subservicer Form 8-K Information Reports, Subservicer Form X
10-D Information Reports and Subservicer Form 10-K Information
Reports at the times and in the manner set forth in Section 5.12(c)
of this Subservicing Agreement.
17. Provide annual statement of compliance at the times and in the X
manner set forth in Section 5.12(c) of this Subservicing Agreement.
18. Provide a report regarding Subservicer's assessment of compliance X
with servicing criteria and a report by a registered public
accounting firm that attests to and reports on such assessment
report, at the times, in the manner and as specified in Section
5.12(c) of this Subservicing Agreement.
19. Provide annual Xxxxxxxx-Xxxxx back-up certification at the times and X
in the manner set forth in Section 5.12(c)(v) of this Subservicing
Agreement.
20. Compensation
Subservicing Fee X
Investment earnings on Subservicer Collection Account, to the extent X
provided in Section 2.1(e) of this Agreement
Investment earnings on escrow or reserve accounts not payable to X
borrower, to the extent provided in Section 2.1(f) of this Agreement
Compensation specified on Exhibit B-6 in connection with X
modifications, waivers, consents or amendments
Late charges and default interest to the extent collected from X
borrowers (offsets advance interest per Pooling and Servicing
Agreement with remainder to Capmark Master Servicer)
EXHIBIT B-6
CONSENT PROCEDURES AND COMPENSATION
1. With respect to each immaterial proposed Mortgage Loan modification,
waiver, consent or amendment requested by a borrower, the Subservicer shall
obtain the relevant information from the related borrower and analyze the
request and, if the Subservicer (acting in a manner that is consistent with the
Servicing Standard) determines to enter into the requested transaction, the
Subservicer shall execute and deliver the relevant agreement or other instrument
and otherwise consummate the transaction. In connection with such immaterial
matter, the Subservicer shall be entitled to 100% of any consent or similar fee
actually collected and otherwise payable to the Capmark Master Servicer under
the Pooling and Servicing Agreement.
2. With respect to each material proposed Mortgage Loan modification,
waiver, consent or amendment requested by a borrower, the Subservicer shall
obtain the relevant information from the related borrower and analyze the
request and, unless the Subservicer (acting in a manner that is consistent with
the Servicing Standard) determines to disapprove the requested transaction, the
Subservicer shall deliver to the Capmark Master Servicer a recommendation with
an analysis and supporting documentation information (in such form as may be
prescribed in the Pooling and Servicing Agreement or by the Capmark Master
Servicer). The Capmark Master Servicer shall determine whether or not to approve
any transaction for which the Subservicer has recommended approval, and the
Capmark Master Servicer shall be responsible for submitting a recommendation to
any Person entitled to approve or review the matter under the Pooling and
Servicing Agreement; and, if the Capmark Master Servicer approves the
transaction, it shall notify the Subservicer and the Subservicer shall execute
and deliver the relevant agreement or other instrument and otherwise consummate
the transaction. In connection with such material matter, the Subservicer shall
be entitled to 50%, and the Capmark Master Servicer shall be entitled to the
remainder, of any consent or similar fee actually collected and otherwise
payable to the Capmark Master Servicer under the Pooling and Servicing
Agreement. In no event shall the Capmark Master Servicer's approval be a
condition to a determination by the Subservicer to disapprove any modification,
waiver, consent or amendment that is material.
3. All matters listed below as Material Decisions are hereby deemed to be
material. All matters listed below as Immaterial Decisions are hereby deemed to
be immaterial. With respect to any matter that is not listed as a Material
Decision or an Immaterial Decision, the Subservicer shall notify the Capmark
Master Servicer of the Subservicer's preliminary determination of the matter's
materiality or immateriality, and the Capmark Master Servicer shall have 5
business days to disagree with such determination. Unless the Capmark Master
Servicer disagrees, the matter shall be considered material or immaterial
according to the Subservicer's preliminary determination. If the Capmark Master
Servicer disagrees, the matter shall be considered material or immaterial
according to the Capmark Master Servicer's determination.
4. Notwithstanding the foregoing, the Capmark Master Servicer alone shall
make any determination to grant or withhold approval of any defeasance of the
Mortgage Loan in whole or in part, and it shall process the defeasance and be
entitled to the entirety of any fees payable by the borrower in connection with
any such defeasance.
5. For purposes of the foregoing, for material decisions, if the fee
chargeable to the borrower in connection with any proposed modification, waiver,
consent or amendment is not prescribed in the mortgage loan documents, the
Capmark Master Servicer shall have the right to consent to the amount of the fee
to be charged.
6. Notwithstanding Item 1, Item 2 and Item 3 above, with respect to each
proposed Mortgage Loan modification, waiver, consent or amendment as to which
the General Special Servicer (or another Person other than the Capmark Master
Servicer) under the Pooling and Servicing Agreement is exclusively entitled to
make a determination to approve or disapprove (and/or to make a recommendation
to another Person), the Subservicer shall forward the borrower request to the
Capmark Master Servicer and the Subservicer shall not be entitled to approve or
disapprove the request, to make a recommendation or to receive any compensation
therefor.
7. The Subservicer shall provide to the Capmark Master Servicer, quarterly
on the Subservicer Remittance Date in January, April, July and October of each
year, a report in form of Exhibit B-4 to the Subservicing Agreement setting
forth the information called for by such form with respect to (i) all immaterial
decisions that are pending but have not yet been consummated, (ii) all
immaterial decisions that have been consummated since the prior such report and
(iii) all material matters that were disapproved by the Subservicer.
Each of the following Items 1 through 11 shall constitute a "Material Decision"
for purposes of the Subservicing Agreement:
1. any modification, waiver, consent or amendment under any Mortgage Loan
requiring the consent or approval of the General Special Servicer or other
Person under the Pooling and Servicing Agreement
2. consent or approval of any waiver of any due-on-sale provision or of any
assignment and assumption of the Mortgaged Property
3. consent or approval of any assignment of direct or indirect ownership
interests in the Mortgaged Property or in the mortgagor not expressly
permitted in the mortgage loan documents
4. consent or approval of any waiver of a due-on-encumbrance provision or of
the entering into any additional indebtedness by the mortgagor.
5. any determination of whether or not to release any condemnation proceeds
or proceeds of any casualty insurance policy to the mortgagor or another
Person
6. waiver of any default interest or late payment charge under the Mortgage
Loan
7. any modification, waiver or amendment of any restriction on principal
prepayment set forth under the terms of the Mortgage Loan
8. any initiation, prosecution or continuation of any legal proceedings
(including any foreclosure proceedings) or any determination to obtain a
deed in lieu of foreclosure
9. approval of any provisions regarding the establishment, maintenance or
termination of any reserve fund, escrow account, letter of credit or other
additional collateral
10. approval of any draw on any letter of credit or other additional
collateral under the Mortgage Loan 11. any approval of a new, modified,
terminated or amended lease for more than 20% of the net rentable area of
the property or 10,000 square feet (whichever is greater)
Each of the following Items 1 through 4 shall constitute an "Immaterial
Decision" for purposes of the Subservicing Agreement:
1. any waiver of a minor covenant default (other than financial covenants),
including late financial statements
2. any release of a non-material parcel or other portion of the Mortgaged
Property if the release is expressly permitted under the Mortgage Loan
documents
3. the grant of any other routine approval (such as the grant of a
subordination and nondisturbance agreement, if it affects less than the
lesser of (a) 30% of the net rentable area of the Mortgaged Property or
(b) 30,000 square feet, or disbursement of reserve funds)
4. the approval of the annual budget for the operation of the Mortgaged
Property
EXHIBIT C
Form of Power of Attorney from Capmark Master Servicer
RECORDING REQUESTED BY:
AND WHEN RECORDED MAIL TO:
Attention: Commercial Mortgage Pass-
Through Certificates Series 2007-IQ16
Space above this line for Recorder's use
--------------------------------------------------------------------------------
LIMITED POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that CAPMARK FINANCE INC., acting solely in its
capacity as Capmark Master Servicer ("Capmark Master Servicer"), under the
Pooling and Servicing Agreement dated November 1, 2007 (the "Pooling and
Servicing Agreement") and a Subservicing Agreement dated as of November 1, 2007
(the "Subservicing Agreement"), in each case relating to the Commercial Mortgage
Pass-Through Certificates, Series 2007-IQ16, does hereby nominate, constitute
and appoint Capstone Realty Advisors, LLC, as Subservicer under the Subservicing
Agreement ("Subservicer"), 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
Subservicer to service and administer the Mortgage Loans (as defined in the
Subservicing Agreement) in connection with the performance by Subservicer of its
duties as Subservicer under the Subservicing Agreement, giving and granting unto
Subservicer 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 Subservicer 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 Subservicing Agreement
By:_______________________________________
Name:
Title:
EXHIBIT D
Quarterly Servicing Accounts Reconciliation Certification
Subservicer: Capstone Realty Advisors, LLC
RE: Xxxxxx Xxxxxxx Capital I Trust 2007-IQ16, Commercial Mortgage Pass-Through
Certificates, Series 2007-IQ16
Pursuant to the Subservicing Agreement between Capmark Finance Inc. ("Capmark
Finance Inc.") and Capstone Realty Advisors, LLC ("Subservicer") for the
transaction referenced above, I hereby certify with respect to each mortgage
loan subserviced by Subservicer for Capmark Finance Inc. 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 Subservicer's management,
except as otherwise noted below:
EXCEPTIONS: ______________________________________________
__________________________ [Signature]
Name: [INSERT NAME OF SERVICING OFFICER]
Title: Servicing Officer, [Name of Subservicer]
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 subservicer.
Capmark Master Servicer: Capmark Finance Inc.
Subservicer: ________________________________________________
Subservicer Contact Person: [Name][telephone][facsimile][email address]
This Report Contains the Following Information:
Immediate Reporting:
|_| Form 8- K Reporting Information
Monthly Reporting:
|_| Form 10-D Reporting Information
Annual Reporting:
|_| Form 10-K Reporting Information
Annual Compliance:
|_| Compliance Assessment Report (Item 1122(a)) by
Subservicer 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
EXHIBIT F
SERVICING CRITERIA TO BE ADDRESSED IN ASSESSMENT OF COMPLIANCE
The assessment of compliance to be delivered shall address, at a minimum,
the criteria identified below as "Relevant Servicing Criteria". This Exhibit
shall not be construed to impose any substantive servicing duty on the
Subservicer that is not otherwise set forth in the main body of this Agreement.
References to "Primary Servicer" shall be construed to mean the Subservicer.
Applicable
Relevant Servicing Criteria Party(ies)
Reference Criteria
General Servicing Considerations
Paying Agent
Capmark Master
Servicer
General
Special
Servicer
Co-op Special
Policies and procedures are instituted to monitor any Servicer
performance or other triggers and events of default in Primary
1122(d)(1)(i) accordance with the transaction agreements. Servicer
Paying Agent
Capmark Master
Servicer
General
Special
Servicer
If any material servicing activities are outsourced to third Co-op Special
parties, policies and procedures are instituted to monitor the Servicer
third party's performance and compliance with such servicing Primary
1122(d)(1)(ii) activities. Servicer
Any requirements in the transaction agreements to maintain a
1122(d)(1)(iii) back-up servicer for the mortgage loans are maintained. N/A
Paying Agent
Trustee
Capmark Master
Servicer
General
Special
A fidelity bond and errors and omissions policy is in effect on Servicer
the party participating in the servicing function throughout Co-op Special
the reporting period in the amount of coverage required by and Servicer
otherwise in accordance with the terms of the transaction Primary
1122(d)(1)(iv) agreements. Servicer
Cash Collection and Administration
Paying Agent
Capmark Master
Servicer
General
Special
Servicer
Payments on mortgage loans are deposited into the appropriate Co-op Special
custodial bank accounts and related bank clearing accounts no Servicer
more than two business days following receipt, or such other Primary
1122(d)(2)(i) number of days specified in the transaction agreements. Servicer
Disbursements made via wire transfer on behalf of an obligor or
1122(d)(2)(ii) to an investor are made only by authorized personnel. Paying Agent
Capmark Master
Servicer
General
Special
Advances of funds or guarantees regarding collections, cash Servicer
flows or distributions, and any interest or other fees charged Co-op Special
for such advances, are made, reviewed and approved as specified Servicer
1122(d)(2)(iii) in the transaction agreements. Trustee
Paying Agent
Capmark Master
Servicer
General
Special
The related accounts for the transaction, such as cash reserve Servicer
accounts or accounts established as a form of Co-op Special
overcollateralization, are separately maintained (e.g., with Servicer
respect to commingling of cash) as set forth in the transaction Primary
1122(d)(2)(iv) agreements. Servicer
Paying Agent
Capmark Master
Servicer
Each custodial account is maintained at a federally insured General
depository institution as set forth in the transaction Special
agreements. For purposes of this criterion, "federally insured Servicer
depository institution" with respect to a foreign financial Co-op Special
institution means a foreign financial institution that meets Servicer
the requirements of Rule 13k-1(b)(1) of the Securities Exchange Primary
1122(d)(2)(v) Act. Servicer
Capmark Master
Servicer
General
Special
Servicer
Co-op Special
Servicer
Paying Agent
Unissued checks are safeguarded so as to prevent unauthorized Primary
1122(d)(2)(vi) access. Servicer
Reconciliations are prepared on a monthly basis for all
asset-backed securities related bank accounts, including
custodial accounts and related bank clearing accounts. These Paying Agent
reconciliations are (A) mathematically accurate; (B) prepared Capmark Master
within 30 calendar days after the bank statement cutoff date, Servicer
or such other number of days specified in the transaction General
agreements; (C) reviewed and approved by someone other than the Special
person who prepared the reconciliation; and (D) contain Servicer
explanations for reconciling items. These reconciling items are Co-op Special
resolved within 90 calendar days of their original Servicer
identification, or such other number of days specified in the Primary
1122(d)(2)(vii) transaction agreements. Servicer
Investor Remittances and Reporting
Reports to investors, including those to be filed with the
Commission, are maintained in accordance with the transaction
agreements and applicable Commission requirements.
Specifically, such reports (A) are prepared in accordance with
timeframes and other terms set forth in the transaction
agreements; (B) provide information calculated in accordance
with the terms specified in the transaction agreements; (C) are
filed with the Commission as required by its rules and
regulations; and (D) agree with investors' or the trustee's
records as to the total unpaid principal balance and number of
1122(d)(3)(i) mortgage loans serviced by the Servicer. Paying Agent
Amounts due to investors are allocated and remitted in
accordance with timeframes, distribution priority and other
1122(d)(3)(ii) terms set forth in the transaction agreements. Paying Agent
Disbursements made to an investor are posted within two
business days to the Servicer's investor records, or such other
1122(d)(3)(iii) number of days specified in the transaction agreements. Paying Agent
Amounts remitted to investors per the investor reports agree
with cancelled checks, or other form of payment, or custodial
1122(d)(3)(iv) bank statements. Paying Agent
Pool Asset Administration
Trustee
Capmark Master
Servicer
General
Special
Servicer
Co-op Special
Collateral or security on mortgage loans is maintained as Servicer
required by the transaction agreements or related mortgage loan Primary
1122(d)(4)(i) documents. Servicer
Mortgage loan and related documents are safeguarded as required
1122(d)(4)(ii) by the transaction agreements. Trustee
Trustee
Capmark Master
Servicer
General
Special
Servicer
Co-op Special
Any additions, removals or substitutions to the asset pool are Servicer
made, reviewed and approved in accordance with any conditions Primary
1122(d)(4)(iii) or requirements in the transaction agreements. Servicer
Capmark Master
Servicer
Payments on mortgage loans, including any payoffs, made in General
accordance with the related mortgage loan documents are posted Special
to the Servicer's obligor records maintained no more than two Servicer
business days after receipt, or such other number of days Co-op Special
specified in the transaction agreements, and allocated to Servicer
principal, interest or other items (e.g., escrow) in accordance Primary
1122(d)(4)(iv) with the related mortgage loan documents. Servicer
Capmark Master
The Servicer's records regarding the mortgage loans agree with Servicer
the Servicer's records with respect to an obligor's unpaid Primary
1122(d)(4)(v) principal balance. Servicer
Capmark Master
Servicer
General
Special
Changes with respect to the terms or status of an obligor's Servicer
mortgage loans (e.g., loan modifications or re-agings) are Co-op Special
made, reviewed and approved by authorized personnel in Servicer
accordance with the transaction agreements and related pool Primary
1122(d)(4)(vi) asset documents. Servicer
Capmark Master
Servicer
Loss mitigation or recovery actions (e.g., forbearance plans, General
modifications and deeds in lieu of foreclosure, foreclosures Special
and repossessions, as applicable) are initiated, conducted and Servicer
concluded in accordance with the timeframes or other Co-op Special
1122(d)(4)(vii) requirements established by the transaction agreements. Servicer
Records documenting collection efforts are maintained during Capmark Master
the period a mortgage loan is delinquent in accordance with the Servicer
transaction agreements. Such records are maintained on at least General
a monthly basis, or such other period specified in the Special
transaction agreements, and describe the entity's activities in Servicer
monitoring delinquent mortgage loans including, for example, Co-op Special
phone calls, letters and payment rescheduling plans in cases Servicer
where delinquency is deemed temporary (e.g., illness or Primary
1122(d)(4)(viii) unemployment). Servicer
Capmark Master
Adjustments to interest rates or rates of return for mortgage Servicer
loans with variable rates are computed based on the related Primary
1122(d)(4)(ix) mortgage loan documents. Servicer
Regarding any funds held in trust for an obligor (such as
escrow accounts): (A) such funds are analyzed, in accordance
with the obligor's mortgage loan documents, on at least an
annual basis, or such other period specified in the transaction
agreements; (B) interest on such funds is paid, or credited, to
obligors in accordance with applicable mortgage loan documents
and state laws; and (C) such funds are returned to the obligor Capmark Master
within 30 calendar days of full repayment of the related Servicer
mortgage loans, or such other number of days specified in the Primary
1122(d)(4)(x) transaction agreements. Servicer
Payments made on behalf of an obligor (such as tax or insurance
payments) are made on or before the related penalty or
expiration dates, as indicated on the appropriate bills or
notices for such payments, provided that such support has been Capmark Master
received by the servicer at least 30 calendar days prior to Servicer
these dates, or such other number of days specified in the Primary
1122(d)(4)(xi) transaction agreements. Servicer
Any late payment penalties in connection with any payment to be Capmark Master
made on behalf of an obligor are paid from the servicer's funds Servicer
and not charged to the obligor, unless the late payment was due Primary
1122(d)(4)(xii) to the obligor's error or omission. Servicer
Disbursements made on behalf of an obligor are posted within Capmark Master
two business days to the obligor's records maintained by the Servicer
servicer, or such other number of days specified in the Primary
1122(d)(4)(xiii) transaction agreements. Servicer
Capmark Master
Delinquencies, charge-offs and uncollectible accounts are Servicer
recognized and recorded in accordance with the transaction Primary
1122(d)(4)(xiv) agreements. Servicer
Any external enhancement or other support, identified in Item
1114(a)(1) through (3) or Item 1115 of Regulation AB, is
1122(d)(4)(xv) maintained as set forth in the transaction agreements. N/A
EXHIBIT G
Initial Interpretational Guidelines
1. Determination of "sponsor":
In connection with any trust fund, unless otherwise determined by the
applicable Capmark Master Servicer or applicable depositor for such trust fund,
the term "sponsor" shall be construed to include each entity identified as a
sponsor in the final prospectus supplement (as it may be amended or
supplemented) for the initial offering of the securities issued by such trust
fund.
2. Determination of Significant Obligor:
For purposes of determining whether a person or entity is a Significant
Obligor, the applicable percentage of the asset pool (e.g., 10%) for which a
person, entity or property is an obligor shall be measured at the designated
cut-off date for the transaction (i.e., the date on and after which collections
on the pool assets accrue for the benefit of asset-backed security holders), but
if the percentage of the asset pool for which such person, entity or property is
an obligor falls below the specified percentage at which such person or entity
would constitute a Significant Obligor under Regulation AB, then such person is
no longer a Significant Obligor.
3. Determination of servicer concentration:
For purposes of determining the percentage of the pool assets of the
applicable trust fund for which a servicing entity is the applicable servicer,
the applicable percentage of the asset pool (e.g., 10% or 20%) shall be measured
in the following manner. The percentage concentration shall be determined as of
the beginning of each monthly period covered by the report and an average of the
results shall be calculated for the number of months included in the reporting
period. For example, if the securitization closed on February 1, 2006, for
purposes of an Annual Report on Form 10-K delivered in March of 2007 for the
calendar year 2006, assume that the percentage of the pool assets that was
serviced by a particular servicer at the beginning of each monthly "collection
period" were 8% for each of the first 3 monthly periods, 10% for the next 4
monthly period and 11% for each of the final 4 monthly periods, then the average
percentage would be 10.55%, which is the sum of:
(8%*1/11) for Month 2 (Feb)
(8%*1/11) for Month 3 (Mar)
(8%*1/11) for Month 4 (Apr)
(10%*1/11) for Month 5 (May)
(10%*1/11) for Month 6 (Jun)
(10%*1/11) for Month 7 (Jul)
(10%*1/11) for Month 8 (Aug)
(11%*1/11) for Month 9 (Sept)
(11%*1/11) for Month 10 (Oct)
(11%*1/11) for Month 11 (Nov)
(11%*1/11) for Month 12 (Dec)
4. Determination of other concentrations:
Other concentration percentages shall be determined in the same manner as
concentration percentages are determined for purposes of identifying the
applicable servicer percentages, as described in the prior item.
