EXHIBIT 99.5
SERVICING RIGHTS PURCHASE AGREEMENT
SUNTRUST BANK
(Seller)
and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
(Purchaser)
As of March 29, 2007
This Servicing Rights Purchase Agreement ("Agreement") is made as of March
29, 2007, and is executed between SunTrust Bank, a Georgia banking corporation,
as seller (the "Seller"), and ▇▇▇▇▇ Fargo Bank, National Association, a national
banking association, as purchaser (the "Purchaser").
PRELIMINARY STATEMENT
Certain multifamily and/or commercial mortgage loans are identified on
Exhibit A hereto (the "Mortgage Loans");
On the Closing Date, the Mortgage Loans will be transferred by the Seller
to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc. ("Depositor");
The Seller and the Purchaser wish to set forth the terms and conditions
relating to the sale by the Seller to the Purchaser of the right to be the
"Master Servicer" of the Mortgage Loans pursuant to the terms of the PSA (the
"Servicer Appointment Right").
In consideration of the mutual agreements hereinafter set forth, the
Seller and the Purchaser agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Unless the context indicates otherwise,
whenever used in this Agreement, each of the following terms and phrases shall
have the meaning specified in this Article. Any capitalized term or phrase
defined in the Preliminary Statement to this Agreement shall have the same
meaning throughout the remainder of this Agreement. Any capitalized term or
phrase used but not defined herein shall have the meaning ascribed thereto in
the PSA unless the context indicates otherwise.
"Agreement": This Servicing Rights Purchase Agreement including all
schedules, exhibits and supplements hereto and amendments hereof.
"Closing Date": March 29, 2007.
"PSA": That certain Pooling and Servicing Agreement to be dated as of
March 1, 2007, among ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc., as Depositor, ▇▇▇▇▇ Fargo
Bank, National Association, as General Master Servicer, LNR Partners, Inc., as
General Special Servicer, NCB, FSB, as NCB Master Servicer, National Consumer
Cooperative Bank, as Co-op Special Servicer, and U.S. Bank National Association,
as Trustee, Paying Agent and Certificate Registrar, relating to the Commercial
Mortgage Pass-Through Certificates, Series 2007-IQ13.
"Purchase Price Percentage": For each Mortgage Loan, the purchase price
percentage for such Mortgage Loan set forth under the column "Purchase Price
Percentage" on Exhibit A attached hereto.
"Securitization": The transaction involving the issuance of mortgage
pass-through certificates evidencing beneficial ownership interests in the
Mortgage Loans (and certain other mortgage loans) to be serviced by the
Purchaser pursuant to the PSA.
ARTICLE II
SALE AND CONVEYANCE OF SERVICER APPOINTMENT RIGHT;
REPRESENTATIONS AND WARRANTIES
Section 2.01 Agreement to Sell Servicer Appointment Right.
(a) Subject to the terms and provisions of this Agreement, the Purchaser
hereby agrees to purchase from the Seller and the Seller hereby agrees to sell,
transfer, assign, convey and set over to the Purchaser, as of the Closing Date,
the Servicer Appointment Right, and the Purchaser hereby agrees to service or
master service (as applicable) the Mortgage Loans pursuant to, and subject to
the terms and conditions of, the PSA.
(b) The Purchaser acknowledges that it is not purchasing any interest in
the Mortgage Loans and that the Seller will transfer the Mortgage Loans to the
Depositor in connection with the Securitization, free and clear of any interest
of the Purchaser therein. The Purchaser is solely purchasing the right to serve
as the Master Servicer under the PSA. The Seller covenants and agrees to cause
the Depositor to appoint the Purchaser as the Master Servicer under the PSA and
by its joinder to this Agreement, the Depositor agrees and consents thereto.
(c) Upon execution and delivery of the PSA by all parties thereto, and
acceptance by the Seller of the applicable Purchase Price referred to in Section
2.02, the transfer of the Servicer Appointment Right contemplated by this
Section 2.01 shall be deemed effective.
Section 2.02 Purchase Price.
(a) The purchase price to be paid on the Closing Date by the Purchaser to
the Seller for the Servicer Appointment Right shall be an amount (the "Purchase
Price") equal to $489,000. In determining the Purchase Price (and the Purchase
Price Percentages), the Purchaser has relied on the information regarding the
Mortgage Loans delivered to the Purchaser by the Seller prior to the Closing
Date, including the terms and assumptions set forth in the servicing proposal
dated March 26, 2007 (a copy of which is attached hereto as Exhibit B) and the
information set forth in the final Prospectus Supplement dated March 22, 2007
(collectively, the "Assumed Characteristics").
The Purchase Price shall be paid by wire transfer in immediately available
funds according to wire transfer instructions provided by the Seller prior to
the Closing Date.
Provided that all of the conditions to closing set forth in Section 2.03
are satisfied (or waived in writing by the party for whose benefit such
conditions run), the Purchase Price will be deemed non-refundable on the Closing
Date, subject to Section 2.02(b) and (c).
(b) Upon any repurchase of any Mortgage Loan pursuant to Section 2.3 of
the PSA, the Seller shall repay to the Purchaser, at the same time as the
repurchase of such Mortgage Loan, an amount equal to the product of (x) the
Purchase Price Percentage of such repurchased Mortgage Loan, (y) the Principal
Balance of such repurchased loan as of the date of the repurchase and (z) a
fraction, the numerator of which is the remaining term to maturity of such
Mortgage Loan (if such Mortgage Loan is not an ARD Loan) or the remaining term
to the Anticipated Repayment Date of such Mortgage Loan (if such Mortgage Loan
is an ARD Loan) as of the Cut-Off Date minus the number of months between the
Cut-Off Date and the Due Date falling in the Collection Period in which the
repurchase takes place, and the denominator of which is the remaining term to
maturity of such Mortgage Loan (if such Mortgage Loan is not an ARD Loan) or the
remaining term to the Anticipated Repayment Date of such Mortgage Loan (if such
Mortgage Loan is an ARD Loan) as of the Cut-Off Date; provided, however, that no
such payment shall be required in respect of any Mortgage Loan for which the
related Purchase Price Percentage is zero or negative. Any such repayment shall
be effected by wire transfer of such funds as directed by the Purchaser.
(c) To the extent that the Purchaser determines within ninety (90) days
after the Closing Date that the actual characteristics of one or more Mortgage
Loans differ from the Assumed Characteristics, the Purchaser shall be entitled
to recalculate (for purposes of this Section 2.02(c) only), on the basis of such
actual characteristics, the Purchase Price Percentages for each Mortgage Loan
with respect to which any such difference exists, and it shall recalculate the
amount of the Purchase Price that would have been paid hereunder on the basis of
the recalculated Purchase Price Percentages. If the amount of the Purchase Price
that would have been paid hereunder on the basis of the actual characteristics
of the Mortgage Loans, as recalculated by the Purchaser and reasonably agreed to
by the Seller, is at least two and one-half percent (2.5%) less than the amount
of the Purchase Price that was actually paid on the Closing Date, the Seller
shall repay to the Purchaser the amount by which the amount of the Purchase
Price that was actually paid on the Closing Date exceeds the recalculated
Purchase Price. In connection with any recalculation of the Purchase Price, the
Purchaser shall provide to the Seller documentation supporting such
recalculation.
Section 2.03 Closing Conditions.
(a) The Purchaser's obligation to consummate its purchase of the Servicer
Appointment Right pursuant to this Agreement is subject to the satisfaction or
waiver on or prior to the Closing Date of the following conditions:
(i) The Seller shall have performed in all material respects all of
its covenants and agreements contained herein to the extent that (A) such
covenants and agreements are required to be performed by it on or prior to
the Closing Date and (B) the Purchaser has not waived such covenants and
agreements;
(ii) all representations and warranties of the Seller contained
herein are true and correct in all material respects as of the Closing
Date; and
(iii) the parties thereto shall have executed and delivered the PSA
in a form reasonably acceptable to the Purchaser (the execution and
delivery of the PSA by the Purchaser shall be considered acceptance by the
Purchaser of the terms thereof).
(b) The obligation of the Seller to consummate the sale of the Servicer
Appointment Right to the Purchaser pursuant to this Agreement is subject to the
satisfaction or waiver on or prior to the Closing Date of the following
conditions:
(i) The Purchaser shall have performed in all material respects all
of its covenants and agreements contained herein which are required to be
performed by it on or prior to the Closing Date;
(ii) all representations and warranties of the Purchaser contained
herein are true and correct in all material respects as of the Closing
Date; and
(iii) the PSA shall have been executed and delivered by the parties
thereto.
(c) In the event that any of the conditions precedent to closing set forth
in Section 2.03 are not satisfied (or waived in writing by the party for whose
benefit such conditions run), then this Agreement will automatically terminate
unless extended in writing by the Purchaser and the Seller.
Section 2.04 Representations, Warranties and Covenants of the Seller.
(a) The Seller hereby represents and warrants to, and covenants with, the
Purchaser as of the date hereof that:
(i) The Seller is a banking corporation, duly organized, validly
existing and in good standing under the laws of the State of Georgia.
(ii) The execution and delivery of this Agreement by the Seller, and
the performance and compliance with the terms of this Agreement by the
Seller, will not violate the Seller's organizational documents or
constitute a 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.
(iii) The Seller owns the Servicer Appointment Right free and clear
of all claims by any other person or entity and has the full 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.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Purchaser, constitutes a valid, legal and binding
obligation of the Seller, enforceable against the Seller in accordance
with the terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium or 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.
(v) The Seller 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, any
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 Seller's good faith and reasonable
judgment, is likely to affect materially and adversely the ability of the
Seller to consummate all transactions contemplated by this Agreement.
(vi) No litigation is pending with regard to which the Seller has
received service of process or, to the best of the Seller's knowledge,
threatened against the Seller which would prohibit the Seller from
entering into this Agreement or, in the Seller's good faith and reasonable
judgment, is likely to materially and adversely affect the ability of the
Seller to consummate all transactions contemplated by this Agreement.
(vii) No third party has any servicing rights with respect to the
Mortgage Loans other than the parties, if any, listed on Exhibit A; and in
the case of each Mortgage Loan (other than any Mortgage Loan for which a
third party has servicing rights as set forth on Exhibit A), the Seller
has delivered notice of the termination of any servicing rights to any
third party that holds such rights and such delivery occurred not less
than 15 days prior to the Closing Date and will be effective not later
than the Closing Date.
Section 2.05 Representations, Warranties and Covenants of the Purchaser.
(a) The Purchaser hereby represents and warrants to, and covenants with,
the Purchaser as of the date hereof that:
(i) The Purchaser is a national banking association, duly organized,
validly existing and in good standing under the laws of the United States
of America.
(ii) The execution and delivery of this Agreement by the Purchaser,
and the performance and compliance with the terms of this Agreement by the
Purchaser, will not violate the Purchaser's organizational documents or
constitute a 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.
(iii) The Purchaser has the full 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.
(iv) This Agreement, assuming due authorization, execution and
delivery by the Seller, constitutes a valid, legal and binding obligation
of the Purchaser, enforceable against the Purchaser in accordance with the
terms hereof, subject to (A) applicable bankruptcy, insolvency,
reorganization, moratorium or 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.
(v) The Purchaser 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, any
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 Purchaser's good faith and reasonable
judgment, is likely to affect materially and adversely the ability of the
Purchaser to consummate all transactions contemplated by this Agreement.
(vi) No litigation is pending with regard to which the Purchaser has
received service of process or, to the best of the Purchaser's knowledge,
threatened against the Purchaser which would prohibit the Purchaser from
entering into this Agreement or, in the Purchaser's good faith and
reasonable judgment, is likely to materially and adversely affect the
ability of the Purchaser to consummate all transactions contemplated by
this Agreement.
ARTICLE III
CLOSING DATE DELIVERIES; ADDITIONAL MATTERS
Section 3.01 Required Documents Schedules and Exhibits.
As of the Closing Date, the Seller shall have delivered or caused to have
been delivered to the Purchaser copies of the Servicing Files with respect to
the Mortgage Loans.
Section 3.02 Transfer Expenses.
Except as otherwise provided in this Agreement, the Seller and the
Purchaser shall bear their own expenses incurred in connection with the
transactions contemplated by this Agreement.
Section 3.03 Cooperation.
From time to time prior and subsequent to the Closing Date, to the extent
reasonably requested by the Purchaser to enable the Purchaser to service a
Mortgage Loan, the Seller agrees to afford reasonable cooperation to facilitate
obtaining reports, information and documentation from any prior servicers of
such Mortgage Loan.
Section 3.04 Additional Matters.
(a) In the case of each Mortgage Loan (other than any Mortgage Loan for
which a third party has servicing rights as set forth on Exhibit A), the Seller
shall cause the Person that is the servicer of such Mortgage Loan immediately
prior to the Closing Date to (or, if the Seller is the servicer of such Mortgage
Loan, then the Seller shall): (x) retain (but hold as custodian for the
Purchaser in its capacity as Master Servicer under the PSA) any escrow funds,
reserve funds or other similar amounts required for the performance of the
following functions after the Closing Date, and perform such functions after the
Closing Date in accordance with the Servicing Standard: (1) the payment of any
real estate taxes, assessments or similar amounts or any insurance premiums that
are due within 60 days following the Closing Date; and (2) payment of any
disbursements from any escrow funds, reserve funds or similar amounts or
accounts for which a Mortgagor request was received prior to the Closing Date
and that has not been effected as of the Closing Date; (y) receive, process and
remit funds subject to lockbox and/or cash management agreements until such time
as the related accounts and funds on deposit therein, the related documentation
and the related responsibilities are transferred to the Purchaser; and (z)
provide, not later than the Closing Date, a comprehensive list of significant
work in process including assumptions, modifications and collections. The Seller
shall deliver or cause to be delivered to the Purchaser, not later than the
Closing Date, a schedule setting forth (in a summary format with explanations)
all Mortgage Loans that contain servicing triggers (i.e. releases of reserves,
establishment of reserves, letters of credit or lockboxes, etc.). The Seller
shall also deliver or cause to be delivered to the Purchaser, not later than ten
(10) days after the Closing Date, a CMSA Loan Set-Up File with respect to the
Mortgage Loans, which file shall be in CMSA format and contain all the
information called for by the form of CMSA Loan Set-Up File as in effect under
CMSA guidelines in effect on the date hereof.
(b) Seller acknowledges that Purchaser is relying on, among other things,
the Assumed Characteristics with respect to the Due Dates and grace periods for
Scheduled Payments on the Mortgage Loans and restrictions on the prepayment of
Mortgage Loans. Except as provided in subsections (c) and (d) below, if and to
the extent that (i) there is an inaccuracy in the information comprising the
Assumed Characteristics with respect to the Due Dates and grace periods for
Scheduled Payments on the Mortgage Loans, or with respect to the dates, if any,
on which the Mortgage Loans are permitted to be prepaid without accompaniment by
a full month's interest, and (ii) as a result of such inaccuracy, the Purchaser
is required on any date to make a payment of, or the servicing fees payable to
the Purchaser as Master Servicer under the PSA are to be reduced by, any
Compensating Interest pursuant to Section 8.10(c) of the PSA, the Seller (to
such extent) shall reimburse the Purchaser for the full amount of such
Compensating Interest promptly following request therefor by the Purchaser (it
being acknowledged, however, that in no event shall there be any reimbursement
obligation in connection with Prepayment Interest Shortfalls resulting from (A)
Principal Prepayments of any Specially Serviced Mortgage Loans or (B) the
failure of the Master Servicer to apply or cause to be applied the proceeds of
Mortgagor payments in accordance with the terms of the related Mortgage Loan
documents and applicable law). Any such reimbursement shall be effected by wire
transfer of such funds as directed by the Purchaser.
(c) If and to the extent that any Mortgage Loan is identified in Schedule
XII to the PSA (that is, it has a Due Date and grace period that, when
considered together, are scheduled to occur and expire after the Determination
Date in any month), for which circumstances specific provision is made in the
PSA, the Seller shall not have the liability otherwise imposed under subsection
(b) with respect to such Mortgage Loan.
(d) The Seller shall not have liability under subsection (b) if and to the
extent that the Purchaser as Master Servicer is reimbursed for the relevant
amount by means of a payment thereof by the Primary Servicer or subservicer for
the applicable Mortgage Loan or by means of the reduction in the servicing
compensation retained by or paid to such Primary Servicer or subservicer under
the applicable primary servicing agreement or subservicing agreement.
ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01 Amendment.
This Agreement may be amended from time to time by the Purchaser and the
Seller by written agreement signed by the Purchaser and the Seller.
Section 4.02 Governing Law.
This Agreement and the rights, duties, obligations and responsibilities of
the parties hereto shall be governed in accordance with the internal laws of the
State of New York. The parties hereto intend that the provisions of Section
5-1401 of the New York General Obligations Law shall apply to this Agreement. In
the event any action or proceeding is initiated to enforce or interpret this
Agreement, then in addition to any other damages or remedies available at law or
in equity, the prevailing party shall be entitled to recover its attorneys' fees
and costs.
Section 4.03 General Interpretive Principles.
For purposes of this Agreement, except as otherwise expressly provided or
unless the context otherwise requires:
(a) the terms defined in this Agreement have the meaning assigned to them
in this Agreement and include the plural as well as the singular, and the use of
any gender herein shall be deemed to include the other gender;
(b) accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting principles;
(c) references herein to "Articles", "Sections", "Subsections",
"Paragraphs", and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, Paragraphs and other subdivisions of
this Agreement;
(d) a reference to a Subsection without further reference to a Section is
a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to Paragraphs and other
subdivisions;
(e) the words "herein", "hereof", "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any particular provisions;
and
(f) the term "include" or "including" shall mean without limitation by
reason of enumeration.
Section 4.04 Notices.
All directions, demands and notices hereunder shall be in writing and
shall be deemed to have been duly given if personally delivered at or mailed by
first class mail, postage prepaid, or by recognized overnight courier or
transmitted by telecopy with hard copy mailed as described above in
confirmation, to: (a) in the case of the Seller, addressed to the Seller at ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇
▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; or such other address as may hereafter
be furnished to the Purchaser in writing by the Seller; and (b) in the case of
the Purchaser, ▇▇▇▇▇ Fargo Bank, National Association, Commercial Mortgage
Servicing, ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, telecopy number: (▇▇▇) ▇▇▇-▇▇▇▇, or such other
address as may hereafter be furnished to the Seller in writing by the Purchaser.
Section 4.05 Exhibits.
The exhibits to this Agreement are hereby incorporated and made a part
hereof and are an integral part of this Agreement.
Section 4.06 Reproduction of Documents.
This Agreement and all documents relating hereto (other than the Mortgage
Files), including, without limitation, (i) consents, waivers and modifications
which may hereafter be executed, (ii) documents received by any party at the
closing, and (iii) financial statements, certificates and other information
previously or hereafter furnished, may be reproduced by any photographic,
photostatic, microfilm, micro-card, miniature photographic or other similar
process. The parties agree that any such reproduction shall be admissible in
evidence as the original itself in any judicial or administrative proceeding,
whether or not the original is in existence and whether or not such reproduction
was made by a party in the regular course of business, and that any enlargement,
facsimile or further reproduction of such reproduction shall likewise be
admissible in evidence.
Section 4.07 Severability of Provisions.
If any one or more of the covenants, agreements, provisions or terms of
this Agreement shall be held invalid for any reason whatsoever, then such
covenants, agreements, provisions or terms shall be deemed severable from the
remaining covenants, agreements, provisions or terms of this Agreement and shall
in no way affect the validity or enforceability of the other provisions of this
Agreement. If the invalidity of any part, provisions, representation or warranty
of this Agreement shall deprive any party of the economic benefit intended to be
conferred by this Agreement, the parties shall negotiate in good faith to
develop a structure the economic effect of which is nearly as possible the same
as the economic effect of this Agreement without regard to such invalidity.
Section 4.08 Execution; Successors and Assigns.
This Agreement may be executed in one or more counterparts and by the
different parties hereto on separate counterparts, each of which, when so
executed, shall be deemed to be an original; such counterparts, together, shall
constitute one and the same agreement. This Agreement and any rights, remedies,
obligations or liabilities under or by reasons of the Agreement shall inure to
the benefit of and be binding on the parties hereto and on their respective
successors and permitted assigns.
Section 4.09 Assignment.
Each party to this Agreement may assign its rights and obligations
hereunder only after receiving, in writing, consent to such assignment by each
other party hereto. Notwithstanding the preceding sentence, any Person into
which the Purchaser or the Seller may be merged or consolidated, or any Person
resulting from any merger, conversion, other change in form or consolidation to
which the Purchaser or the Seller shall be a party, or any Person succeeding to
the business of the Purchaser or the Seller, shall be the successor of the
Purchaser or the Seller, as the case may be, hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto.
Section 4.10 Survival.
Each representation, warranty and covenant made or deemed made by the
Seller herein shall survive the Closing Date.
IN WITNESS WHEREOF, the parties have caused their names to be signed
hereto by their respective officers thereunto duly authorized as of the date
first above written.
SUNTRUST BANK
(Seller)
By:/s/ ▇▇▇▇ ▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
(Purchaser)
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Sr. Vice President
JOINDER BY DEPOSITOR:
By its execution of this Joinder, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Capital I Inc. consents
to the terms of this Agreement and, subject to Section 2.03(c), agrees to cause
Purchaser to be appointed as the Master Servicer under the PSA.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ CAPITAL I INC.
(Depositor)
By:/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
EXHIBIT A
---------
CMSA Loan Administrative Total Primary
Loan Seller No. Property Name Cost Rate WFB Fees Servicer
----------- --------- ------------------------------------------------ ---------------- -------- ---------
Natixis 3 Gateway I 2.085 2.00 WFB
Natixis 14 United Investors Portfolio Roll-Up 2.085 2.00 WFB
Natixis 15 Mount Airy Shopping Center 2.085 2.00 WFB
Natixis 16 Plaza Continental 2.085 2.00 WFB
Natixis ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 2.085 2.00 WFB
Natixis 19 Giant Foods 2.085 2.00 WFB
Natixis 24 Country Club Centre - ▇▇▇▇▇ 2.085 2.00 WFB
Natixis ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇▇ 2.085 2.00 WFB
Natixis 26 Shoppes at Lakewood - ▇▇▇▇▇ 2.085 2.00 WFB
Natixis 28 Down Under 2.085 2.00 WFB
Natixis 29 WeHo 7 Portfolio LA Multis Portfolio Roll-Up 2.085 2.00 WFB
Natixis 33 Pan Western 6.085 2.00 LJ Melody
Natixis 34 Pacifica II - Sandcastle Inn 2.085 2.00 WFB
Natixis 36 Renaissance Hotel 2.085 2.00 WFB
Natixis 38 Pico & Main 2.085 2.00 WFB
Natixis ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ & ▇▇▇▇ 8.085 2.00 LJ Melody
Natixis 46 WeHo 2 Portfolio LA Multis Roll-Up 2.085 2.00 WFB
Natixis ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇ 2.085 2.00 WFB
Natixis 54 385 Clinton 2.085 2.00 WFB
Natixis 59 Pacifica II - Holiday Inn Express Marina Del Rey 2.085 2.00 WFB
Natixis 60 Kempsville Marketplace 2.085 2.00 WFB
Natixis 61 Pacifica II - Inn at Venice 2.085 2.00 WFB
Natixis 62 Shadow Medical 2.085 2.00 WFB
Natixis 67 Kohl's NC 2.085 2.00 WFB
Natixis ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 2.085 2.00 WFB
Natixis ▇▇ ▇▇▇▇▇▇▇ ▇▇▇ - ▇▇▇▇▇▇▇▇ 7.085 2.00 Lauraete
Natixis ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇) 2.085 2.00 WFB
Natixis ▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 2.085 2.00 WFB
Natixis 77 ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ 2.085 2.00 WFB
Natixis 79 Lowe's Ground Lease 2.085 2.00 WFB
Natixis ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (ADF) 2.085 2.00 WFB
Natixis ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇.▇▇▇ ▇.▇▇ ▇▇▇
▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇.▇▇▇ ▇.▇▇ ▇▇▇
Natixis 99 ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 2.085 2.00 WFB
Natixis 101 IAA Building 2.085 2.00 WFB
Natixis 112 610 ▇. ▇▇▇▇▇▇▇▇▇ Student Housing 2.085 2.00 WFB
Natixis ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ 2.085 2.00 WFB
----------- --------- ------------------------------------------------ ---------------- -------- ---------
Non-WFB Primary/ Purchase Price
Loan Seller Subservicer Fee Trustee Fee Percentage Cut-Off Date Balance
----------- ---------------- ----------- -------------- --------------------
Natixis 0.00 0.085 0.71988% $ 95,000,000.00
Natixis 0.00 0.085 0.93045% $ 21,500,000.00
Natixis 0.00 0.085 0.66017% $ 21,000,000.00
Natixis 0.00 0.085 0.61356% $ 21,000,000.00
Natixis 0.00 0.085 0.51523% $ 20,900,000.00
Natixis 0.00 0.085 0.40066% $ 20,000,000.00
Natixis 0.00 0.085 0.77106% $ 6,150,000.00
Natixis 0.00 0.085 0.96564% $ 4,950,000.00
Natixis 0.00 0.085 1.43483% $ 4,900,000.00
Natixis 0.00 0.085 0.97355% $ 15,500,000.00
Natixis 0.00 0.085 0.79878% $ 14,335,000.00
Natixis 4.00 0.085 0.25098% $ 12,000,000.00
Natixis 0.00 0.085 0.41572% $ 11,900,000.00
Natixis 0.00 0.085 1.19851% $ 10,800,000.00
Natixis 0.00 0.085 0.16482% $ 10,000,000.00
Natixis 6.00 0.085 0.21909% $ 8,988,082.77
Natixis 0.00 0.085 0.48178% $ 8,640,000.00
Natixis 0.00 0.085 0.51898% $ 8,250,000.00
Natixis 0.00 0.085 0.44979% $ 7,500,000.00
Natixis 0.00 0.085 0.42457% $ 7,100,000.00
Natixis 0.00 0.085 0.63446% $ 7,100,000.00
Natixis 0.00 0.085 0.34746% $ 6,500,000.00
Natixis 0.00 0.085 0.58482% $ 6,500,000.00
Natixis 0.00 0.085 0.18562% $ 6,200,000.00
Natixis 0.00 0.085 0.82251% $ 6,170,000.00
Natixis 5.00 0.085 0.22974% $ 6,000,000.00
Natixis 0.00 0.085 0.57382% $ 5,800,000.00
Natixis 0.00 0.085 0.29684% $ 5,700,000.00
Natixis 0.00 0.085 0.74609% $ 5,350,000.00
Natixis 0.00 0.085 0.27671% $ 5,000,000.00
Natixis 0.00 0.085 0.54713% $ 4,600,000.00
Natixis 0.00 0.085 0.20361% $ 4,100,000.00
Natixis 0.00 0.085 0.37854% $ 3,800,000.00
Natixis 0.00 0.085 0.17133% $ 3,630,000.00
Natixis 0.00 0.085 -0.05850% $ 3,500,000.00
Natixis 0.00 0.085 0.39775% $ 3,068,455.66
Natixis 0.00 0.085 0.54661% $ 3,000,000.00
----------- ---------------- ----------- -------------- --------------------
Total: $ 2,530,000.00
EXHIBIT B
---------
[▇▇▇▇▇ FARGO LOGO]
Commercial Mortgage Servicing
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
MAC # A0194-025
March 29, 2007
▇▇▇-▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (p)
(▇▇▇) ▇▇▇-▇▇▇▇ (f)
Re: Servicing bid for MSCI 2007- IQ13
Dear ▇▇▇-▇▇▇▇:
Thank you again for the opportunity to make this proposal to act as master
servicer and primary servicer on this transaction. Our bid is attached and is
based on the following terms, conditions and assumptions:
1. Terms and conditions are as specified in the servicing tape, RFP, and
email correspondence, except as listed or clarified below.
2. Our bid assumes that ▇▇▇▇▇ Fargo will act as master servicer on 114
securitized loans and 134 properties and primary servicer on 69
securitized loans and 82 properties, for a loan pool with an outstanding
principal balance of $1.442bn, not including B Notes expected at closing.
3. Our bid assumes that there are $41mm of borrower Replacement Reserves,
TILC Reserves, and other reserve balances (i.e. Deferred Maintenance,
Environmental, Debt Service, and Other) currently in place. Our bid
assumes that there are no prohibitions, under cash management agreements
or otherwise under the loan documents, against transferring such impounds
or balances to accounts at ▇▇▇▇▇ Fargo Bank, including, but not limited
to, the loans for ▇▇. ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ I , ▇▇-▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ Road Technical Center, and AT&T Tower. Springing lockbox accounts
may also be set up at ▇▇▇▇▇ Fargo Bank.
4. Our bid assumes total monthly constants of the following escrows/reserves:
(i) Taxes $1.004mm; (ii) Insurance $128k; (iii) Replacement Reserves
$125k; and (iv) TILC $220k. No funds are required to be invested in money
funds or at the specific investment direction of the borrower. Any
interest payable to borrowers on such escrows/reserves may be paid at an
interest rate selected by ▇▇▇▇▇ Fargo, which rate may include the Bank
Rate Monitor National Index money market rate, and which rate may be less
than the interest rate/index currently being paid to borrowers by the
interim loan servicer(s). Each seller shall confirm with ▇▇▇▇▇ Fargo, on
or prior to closing, the actual rate/index currently being paid by each
interim loan servicer for loans specified by ▇▇▇▇▇ Fargo. Additionally,
each seller shall, promptly, upon request, deliver copies of the loan
documents (including any provisions relating to the interest rate/index
payable on escrows/reserves) for the Large Value Loans to ▇▇▇▇▇ Fargo
prior to closing so that ▇▇▇▇▇ Fargo can confirm the pricing assumptions
contained in paragraphs 3 and 4 herein.
5. Our bid is indicative and final pricing will be provided after receipt of
a pricing tape reflecting final data on the closed loans in the
transaction. Final pricing may vary from initial pricing due to
differences in loan characteristics, including the effect of loan dropouts
and loan closings, differences in escrow and reserve payments and balances
and the recipient of interest on those balances, call protection
differences, and other factors. Repricing also may be performed if the
closing date is extended beyond the dates in the RFP.
6. The final price paid at closing is subject to due diligence by ▇▇▇▇▇
Fargo, to be concluded within ninety (90) days of closing. If differences
are found during due diligence that result in value differences in excess
of two and one-half percent (2.5%) calculated on the bids, ▇▇▇▇▇ Fargo is
entitled to a price adjustment.
7. Our bid assumes that no loans to be primary serviced by ▇▇▇▇▇ Fargo have
escrows or reserves in the form of letters of credit, except as
specifically disclosed on the servicing tape.
8. Securitization documents (including the Pooling and Servicing Agreement
("PSA")), servicing agreement terms, and subservicing agreement terms
shall be substantially the same as those in the IQ11 securitization
transaction, subject to detailed review by ▇▇▇▇▇ Fargo's counsel and
otherwise acceptable to ▇▇▇▇▇ Fargo. This transaction is subject to
standard securitization servicing terms and requirements.
9. Primary Servicing Agreements for primary servicers other than ▇▇▇▇▇ Fargo
and including SunTrust, shall be substantially the same as those in the
IQ11 securitization transaction, subject to detailed review by ▇▇▇▇▇
Fargo's counsel and otherwise acceptable to ▇▇▇▇▇ Fargo.
10. For all other subservicers (cashiering and non-cashiering), standard ▇▇▇▇▇
Fargo subservicing agreements, including provisions for indemnities from
subservicers, may be used without significant modification or negotiation
(each, a "Non-negotiated Agreement"). Each subservicer shall not be
permitted to terminate its subservicing agreement with ▇▇▇▇▇ Fargo without
the prior written consent of ▇▇▇▇▇ Fargo. If any subservicer does not
execute the Non-negotiated Agreement and the applicable seller does not
deliver or cause the delivery to ▇▇▇▇▇ Fargo of such subservicer's
signature counterpart on or prior to the closing date, then (i) the
applicable seller shall immediately terminate such subservicer on the
closing date and purchase such subservicer's servicing rights, (ii) ▇▇▇▇▇
Fargo shall reimburse the applicable seller for the cost of such
reimbursement, and (iii) ▇▇▇▇▇ Fargo shall thereafter primary service the
applicable loans.
11. Depositor shall deliver or shall cause the delivery to ▇▇▇▇▇ Fargo of
twenty (20) copies each of the "virtual red" and "black" printed
prospectus, once printed.
12. Our bid assumes that all late charges and default interest on subserviced
loans will be payable to ▇▇▇▇▇ Fargo. No fees are payable to any
subservicers out of ▇▇▇▇▇ Fargo's servicing fees.
13. Our bid assumes that the Distribution Date will be the 15th of every
month, or if the 15th is not a business day, then the next business day.
Determination Date will be the earlier of (i) the 10th day of the month in
which such Distribution Date occurs or, if such day is not a business day,
the immediately preceding business day, and (ii) the 5th business day
prior to the related Distribution Date.
14. Subservicers will remit P&I and Payoffs on the earlier of (i) three (3)
days prior to the Distribution Date or (ii) one (1) business day after
receipt, unless otherwise specified in the servicing tape; provided,
however, that the remittance date for primary servicer SunTrust shall be
the later of (a) the 11th of the month or (ii) one (1) business day after
receipt.
15. Our bid assumes that all loans are assumed to have assumption fee
provisions as disclosed in the servicing tape and follow up email
correspondence. Assumption fees and other fees paid by the borrower on
performing loans relating to items requiring special servicer approval or
consent will be distributed as follows: Fifty percent (50%) to ▇▇▇▇▇ Fargo
as master servicer and fifty percent (50%) to the special servicer for
non-subserviced loans; provided, however, that for cashiering subserviced
loans, fifty percent (50%) of the fees payable to ▇▇▇▇▇ Fargo shall be
distributed to the cashiering subservicer.
16. Our bid assumes that fees collected by ▇▇▇▇▇ Fargo on performing loans for
items not requiring special servicer consent or approval, or representing
reimbursement of costs, will be distributed one hundred percent (100%) to
▇▇▇▇▇ Fargo as master servicer.
17. Our bid assumes that ▇▇▇▇▇ Fargo will not be responsible for paying rating
agency annual surveillance fees.
18. Our bid assumes there are no tax monitoring service contracts in place on
any of the properties.
19. Our bid assumes that no loans have potential prepayment or balloon
interest shortfalls and therefore such loans cannot be paid off on a day
other than the due date unless a full month of interest is also paid at
payoff. Our bid further assumes that ▇▇▇▇▇ Fargo will not be responsible
for shortfalls created by unscheduled payments relating to condemnation or
insurance proceeds. On master serviced loans, ▇▇▇▇▇ Fargo retains all
prepayment interest excess and is responsible for prepayment shortfalls,
net of excess, to the extent of 2.0bps of servicing fees.
20. Our bid assumes that ▇▇▇▇▇ Fargo will receive a 1.0 bp primary servicing
fee in connection with $147mm RREEF Multifamily Portfolio pari passu loan.
21. Master servicing fees in excess of 1.0 bp, if any, and primary servicing
fees in excess of 1.0 bp, if any, will be considered "excess" servicing
fee strips that may be retained even if ▇▇▇▇▇ Fargo is terminated as
master servicer or primary servicer.
22. If ▇▇▇▇▇ Fargo is terminated as master servicer or primary servicer, ▇▇▇▇▇
Fargo will have the right to cause the trustee to conduct a sale of the
servicing rights to an acceptable successor servicer. This provision shall
include any termination of master servicer caused by any "clean-up call"
or purchase of loans which constitute greater than one percent (1%) of the
initial outstanding principal balance of the pool.
23. For loans in which primary servicing will transfer to ▇▇▇▇▇ Fargo, sellers
will (i) terminate the existing servicer on such loans on a date that is
acceptable to ▇▇▇▇▇ Fargo, (ii) terminate the existing cash
management/lockbox bank, if applicable, on such loans on a mutually
acceptable date, and (iii) transfer such responsibilities to ▇▇▇▇▇ Fargo.
Sellers, or, if applicable, the existing servicer and/or cash management
bank at the direction of sellers, will:
(a) pay any taxes or insurance premiums due within sixty (60) days
following the closing date;
(b) provide a list of any unpaid reserve disbursements requests received
from the borrower as of the closing date;
(c) receive, process, and remit funds subject to lockbox and cash
management agreements until such time as accounts and
responsibilities can be transferred to ▇▇▇▇▇ Fargo;
(d) provide a comprehensive list of significant work in process
including assumptions, modifications, and collections;
(e) transfer all escrow, reserve and other loan related funds to ▇▇▇▇▇
Fargo on or prior to the closing date, subject to (a) and (c) above;
(f) if the securitization closing is scheduled on a date that falls
between the 15th and the last day of the month, deliver all loan
information reasonably requested by ▇▇▇▇▇ Fargo no later than ten
(10) days prior to the closing date; and
(g) within one (1) business day after receipt, remit to ▇▇▇▇▇ Fargo any
and all payments made to seller after the closing date.
24. Except as otherwise provided herein, all other copies of executed mortgage
loan documents, including intercreditor, co-lender or other applicable
documentation, will be provided upon completion. Drafts of such documents
will also be provided upon the request of ▇▇▇▇▇ Fargo.
25. Our bid assumes that advances for scheduled P&I payments and for property
protection expenses will be made by ▇▇▇▇▇ Fargo at the prime lending rate,
subject to a non-recoverability determination made by ▇▇▇▇▇ Fargo in its
sole discretion exercised in good faith that will be conclusive and
binding.
26. Our bid assumes that no P&I advancing will be required on any B Notes or
on other portions of loans not in the securitization.
27. Our bid assumes that all TILC constants will be collected over the life of
the loan and that there are no caps on any reserves or escrows except as
disclosed in the servicing tape.
28. The PSA will include anti-Shiloh advancing provisions, including expanded
non-recoverability definitions, provision that advances are provided for
liquidity and provision for repayment of non-recoverable and Shiloh
advances, that at a minimum are equivalent to provisions in a prior PSA or
are otherwise acceptable to ▇▇▇▇▇ Fargo.
29. Our bid assumes that no loans have due dates or grace periods that extend
past the Determination Date, except as disclosed in the servicing tape.
30. Sellers or issuer will provide ▇▇▇▇▇ Fargo with a list of servicing
triggers at closing and will provide a CMSA input data file.
31. Sellers will provide ▇▇▇▇▇ Fargo on or before the closing date a complete
set of asset status reports, detailed underwriting cash flow data and
tenant files/leasing summaries in electronic form for all properties.
32. ▇▇▇▇▇ Fargo may perform routine servicing functions such as waivers,
consents, and approvals of routine or immaterial matters without the
consent of the special servicer.
33. Any "litigation control" or similar provision in the PSA which would allow
the special servicer to direct, manage, prosecute, defend and/or settle
any claims and/or litigation against ▇▇▇▇▇ Fargo shall include the
following: (i) special servicer shall provide ▇▇▇▇▇ Fargo with copies of
any notices, process and/or pleadings submitted and/or filed in any such
action, suit, litigation or proceeding; (ii) ▇▇▇▇▇ Fargo may retain its
own counsel, whose reasonable costs shall be paid by the Trust, and appear
in any action, suit, litigation or proceeding on its own behalf in order
to represent, protect and defend its interests; and (iii) ▇▇▇▇▇ Fargo
shall have the right to approve or disapprove of any judgment, settlement,
final order or decree that that may impose liability on ▇▇▇▇▇ Fargo or
otherwise materially and adversely affect ▇▇▇▇▇ Fargo, including, but not
limited to, damage to ▇▇▇▇▇ Fargo's reputation as a master servicer.
34. If a loan is repurchased by a seller under the PSA, ▇▇▇▇▇ Fargo will
either continue as primary servicer or be paid an amount for the servicing
rights, calculated pursuant to a mutually acceptable servicing rights
purchase agreement to be entered into in connection with this transaction.
35. Our bid does not include ▇▇▇▇▇ Fargo's legal fees of $45,000, plus an
additional $5,000 for any cashiering subservicing agreements or primary
servicing agreements (other than SunTrust) that are not Non-negotiated
Agreements, to be reimbursed at closing.
36. Reg AB provisions shall be substantially the same as those in the IQ11
securitization transaction, except as otherwise negotiated in good faith
by the parties to this transaction.
Please contact me at (▇▇▇) ▇▇▇-▇▇▇▇ for additional information or clarification.
Thank you again for this opportunity. We look forward to doing business with
you.
Sincerely,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President
Via E-Mail
IQ13 Final Bid
--------------
Base
Seller Principal Servicing Fee Bid ($) Bid(bp)
-------- ------------- ------------- ------------- -------
IXIS 416,431,538 2 bps 2,530,000 60.75
MSMC 833,302,673 2 bps* 3,231,000 38.77
SunTrust 193,052,720 3 bps 489,000 25.33
TOTAL 1,442,786,931 6,250,000 43.32
*RREEF Portfolio includes only 1 bp of base servicing fee