EXHIBIT 99.5
SERVICING RIGHTS PURCHASE AGREEMENT
SUNTRUST BANK
(Seller)
and
WELLS FARGO BANK, NATIONAL ASSOCIATION
(Purchaser)
As of March 29, 2007
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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 Wells 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 Morgan Stanley 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 Morgan Stanley Capital I Inc., as Depositor,
Wells 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
