EXHIBIT 4.4
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[NAME OF MASTER SERVICER],
as Master Servicer,
[NAME OF SERVICER],
as Servicer,
and
ICIFC SECURED ASSETS CORP.
as Issuer
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SERVICING AGREEMENT
Dated as of _______________
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________________Mortgage Loans
ICIFC MBN Trust Series 19__-__
TABLE OF CONTENTS
PAGE
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ARTICLE ONE
DEFINITIONS............................................................................................-1-
Section 1.01. DEFINED TERMS........................................................................-1-
ARTICLE TWO
ADMINISTRATION AND SERVICING OF ASSETS................................................................-18-
Section 2.01. THE SERVICER TO ACT AS SERVICER.....................................................-18-
Section 2.02. SUBSERVICERS; INDEPENDENT CONTRACTORS...............................................-20-
Section 2.03. COLLECTION OF TAXES, ASSESSMENTS AND SIMILAR ITEMS; ESCROW ACCOUNTS
...................................................................................-21-
Section 2.04. COLLECTION ACCOUNT; RESERVE ACCOUNT.................................................-21-
Section 2.05. PERMITTED WITHDRAWALS FROM THE COLLECTION ACCOUNT AND THE RESERVE
ACCOUNT.............................................................................-22-
Section 2.06. REQUESTS FOR ADVANCES...............................................................-23-
Section 2.07. INVESTMENT OF FUNDS IN THE COLLECTION ACCOUNT, THE RESERVE ACCOUNT AND
ESCROW ACCOUNTS.....................................................................-24-
Section 2.08. MAINTENANCE OF INSURANCE POLICIES AND ERRORS AND OMISSIONS AND FIDELITY
COVERAGE............................................................................-24-
Section 2.09. ENVIRONMENTAL ASSESSMENT PRIOR TO FORECLOSURE.......................................-27-
Section 2.10. DELIVERY OF PLEDGE DOCUMENTS; CERTIFICATIONS FOR RELEASE OF PLEDGE
DOCUMENTS...........................................................................-28-
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Section 2.11. SERVICING COMPENSATION.................................................................-29-
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Section 2.12. TITLE AND MANAGEMENT OF REO............................................................-29-
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Section 2.13. SALE OF LOANS AND REO..................................................................-30-
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Section 2.14. MODIFICATION, WAIVERS, AMENDMENTS AND CONSENTS....................................-30-
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Section 2.15. ADDITIONAL FEES...................................................................-32-
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Section 2.16. PROPERTY PROTECTION EXPENSES, DISPOSITION EXPENSES OR PROPERTY
--------------------------------------------------------------
IMPROVEMENT EXPENSES................................................................-32-
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Section 2.17. SERVICER TO CHECK FOR BREACHES OF REPRESENTATIONS......................................-33-
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Section 2.18. RESERVED............................................................................-33-
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Section 2.19. THE SERVICER NOT REQUIRED TO MAKE ADVANCES..........................................-33-
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Section 2.20. POWER OF ATTORNEY...................................................................-33-
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Section 2.21. PRE-CLOSING INTEREST DISTRIBUTIONS; SUSPENSE ACCOUNT; PROPERTY
--------------------------------------------------------------
MANAGEMENT RECEIPTS.................................................................-33-
Section 2.22. ISSUER DELEGATION OF RIGHTS.........................................................-34-
Section 2.23. ADDITIONAL SERVICING OBLIGATIONS....................................................-34-
Section 2.24. APPROVAL OF ESTIMATED BUDGETS AND PAYMENT REQUESTS.........................-35-
(i)
ARTICLE THREE
STATEMENTS AND REPORTS................................................................................-36-
Section 3.01. REPORTING BY THE SERVICER...........................................................-36-
Section 3.02. ANNUAL CERTIFICATE..................................................................-38-
Section 3.03. ANNUAL ACCOUNTANTS' REPORTS.........................................................-38-
Section 3.04. TAX REPORTING WITH RESPECT TO FORECLOSURE AND ABANDONED PROPERTY
...................................................................................-38-
ARTICLE FOUR
SERVICER..............................................................................................-38-
Section 4.01. REPRESENTATIONS AND WARRANTIES CONCERNING THE SERVICER..............................-38-
Section 4.02. MERGER OR CONSOLIDATION OF THE SERVICER.............................................-40-
Section 4.03. REMOVAL OF THE SERVICER.............................................................-40-
Section 4.04. SERVICER RESIGNATION AND ASSIGNMENT.................................................-41-
Section 4.05. LIABILITY OF THE SERVICER...........................................................-41-
ARTICLE FIVE
DEFAULT...............................................................................................-43-
Section 5.01. EVENTS OF DEFAULT...................................................................-43-
Section 5.02. RIGHTS CUMULATIVE...................................................................-45-
ARTICLE SIX
MISCELLANEOUS PROVISIONS.....................................................................-45-
Section 6.01. TERMINATION OF AGREEMENT............................................................-45-
Section 6.02. AMENDMENT...........................................................................-45-
Section 6.03. RIGHTS HEREUNDER OF THE INDENTURE TRUSTEE, THE NOTEHOLDERS AND
REPLACEMENT MANAGEMENT..............................................................-46-
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Section 6.04. GOVERNING LAW.......................................................................-46-
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Section 6.05. NOTICES.............................................................................-46-
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Section 6.06. SEVERABILITY OF ....................................................................-47-
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Section 6.07. INSPECTION AND AUDIT RIGHTS.........................................................-47-
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Section 6.08. BINDING EFFECT: NO OTHER BENEFICIARIES..............................................-47-
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Section 6.09. ARTICLE AND SECTION HEADINGS........................................................-47-
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Section 6.10. EFFECT OF TERMS OF INDENTURE........................................................-47-
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Section 6.11. SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE OF PROCESS.............-48-
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(ii)
SERVICING AGREEMENT (this "Agreement"), dated as of _________,
1998, among ICIFC Secured Assets Corp., as Issuer, [___________________], as
Master Servicer, and ___________________, a _________________, as Servicer (the
"Servicer").
PRELIMINARY STATEMENT
Capitalized terms used but not defined in this Preliminary
Statement have the meaning given such terms in Article 1 or elsewhere in this
Agreement.
Pursuant to the Agreement for the Sale of Commercial Loans
(the "Sale Agreement"), dated the date hereof, ___________________, a
____________ corporation, has conveyed to the Issuer certain mortgage loans
purchased by ___________________ from the sellers listed on Exhibit A-1 (each, a
"Seller" and collectively, the "Sellers") and listed on Exhibit A-2 (the
"Loans") pursuant to the agreements listed on Exhibit A-1 (each, a "Purchase
Agreement" and collectively, the "Purchase Agreements").
Pursuant to a trust indenture between the Issuer and
__________________, a _________________, as indenture trustee, dated as of the
date hereof, the Issuer will issue its Secured Notes, Series 199__-__ (the
"Notes"). As security for the indebtedness represented by the Notes, the Issuer
pursuant to the Indenture will grant to the Indenture Trustee a security
interest in the Loans and any REO (as defined herein) arising therefrom
(collectively, the "Assets"). The parties desire to enter into this Agreement to
provide, among other things, for the servicing by the Servicer of the Assets.
The Servicer acknowledges that, in order to further secure the
Notes, the Issuer will collaterally assign to the Indenture Trustee its interest
in this Agreement, and the Servicer agrees that all covenants and agreements
made by the Servicer herein shall also be for the benefit and security of the
Indenture Trustee and the Noteholders.
ARTICLE ONE
DEFINITIONS
Section 1.01. DEFINED TERMS.
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"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
control when used with respect to any specified Person means the power to direct
the management and policies of such Person, directly or indirectly, whether
through the ownership of voting securities, by contract or otherwise; and the
terms "controlling" and "controlled" have meanings correlative to the foregoing.
"Approved Budget" means each estimated budget prepared by the
Servicer annually and revised if necessary to reflect the occurrence of any
material event and approved by the Issuer, which approval shall not be
unreasonably withheld or delayed, with respect to each applicable Mortgaged
Property or REO.
"Asset Status Report" has the meaning set forth in Section
3.01.
"Assets" has the meaning set forth in the Recitals.
"Authorized Officer" means any officer of or other person
representing the Servicer who is authorized to act for the Servicer in matters
relating to, and binding upon, the Servicer, and whose name appears on a list of
such authorized officers and persons furnished by the Servicer to the Indenture
Trustee, as such list may be amended or supplemented in writing from time to
time.
"Balloon Payment" means, with respect to any Loan, a scheduled
monthly payment of principal and interest that is substantially disproportionate
to other scheduled monthly payments due thereon.
"_____" means ___________________, a _____________ company.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday that is not a day on which banking institutions in the [location of
Servicer], The City of New York or the city in which the Corporate Trust Office
is located (as of the date of this Indenture, ___________, _________) are
authorized or obligated by law or executive order to close.
"Business Plan" means, with respect to each Loan, the business
plan developed by the Servicer annually and revised if necessary to reflect the
occurrence of any material event and approved by the Issuer pursuant to Section
2.24 of this Agreement, substantially in the form of Exhibit H hereto.
"Class" means one of the classes of Notes issued pursuant to
the Indenture.
"Closing Date" means the date on which the Notes are issued,
as specified in the Indenture.
"Collection Account" means the custodial account or accounts
created and maintained by the Servicer which shall be an Eligible Account and,
if the Indenture has not been discharged, shall be entitled "Servicer as agent
for Indenture Trustee in trust for Holders of Secured Notes issued by ICIFC
Secured Assets Corp. under the Indenture dated as of _______, 1998", or, if the
Indenture has been discharged, shall be in the name of the Issuer.
"Collection Period" means, with respect to any Payment Date,
the period from (and including) the twentieth day of the calendar month second
preceding the calendar month in which such Payment Date occurs to (and
including) the nineteenth day of the calendar month preceding the calendar month
in which such Payment Date occurs (or, in the case of the initial Payment Date,
the period from (and including) ________ __, 1998 to (and including) ______ __,
1998.
"Conditional Receipt" means (A) a payment with respect to a
Loan where (i) such payment represents less than the full amount of the payment
or other amount then payable in
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connection with such Loan or (ii) the related Loan is in the process of being
modified, restructured or foreclosed or (iii) the Issuer's rights under the
Pledge Documents may be adversely affected by accepting such payment from an
Obligor or (B) a deposit under a purchase contract with respect to an Asset that
may pursuant to the terms of such purchase contract be refundable to the
counterparty.
"Default" means any occurrence or circumstance that, with
notice or lapse of time or both, would be an Event of Default.
"Deferred Interest" means, with respect to the Notes of a
Class and any Payment Date, the aggregate amount of interest that was payable on
the Notes of such Class on all preceding Payment Dates less the aggregate amount
thereof actually paid on the Notes of such Class on all prior Payment Dates plus
interest accrued thereon at the applicable interest rate from time to time in
effect on the Notes of such Class, compounded monthly as of the end of each
Interest Period to the end of the Interest Period preceding the Payment Date
when paid.
"Delinquent Loan" means any Loan, in each case without giving
effect to any grace period permitted by the related Mortgage or Mortgage Note,
(i) that is delinquent in an amount equal to at least two Monthly Payments
(exclusive of Balloon Payments), (ii) that is more than fifteen days delinquent
in the payment of any Balloon Payment, (iii) as to which any other material
default has occurred under the Mortgage or Mortgage Note, or (iv) as to which
the related Obligor files for or is placed in bankruptcy or similar insolvency
proceedings or is otherwise insolvent or unable to pay its debts as they become
due.
"Disposition" means (i) the taking of a Mortgaged Property by
exercise of the power of eminent domain or condemnation, (ii) the payment or
prepayment of principal under a Loan in accordance with its terms, including a
discounted pay-off of a Loan, (iii) the liquidation of a Loan through a
trustee's sale, foreclosure sale or other sale or (iv) a sale of an Asset.
"Disposition Expenses" means the following expenses:
(a) sales brokerage expenses;
(b) in the case of a sale of REO, other costs of conveyance
customarily paid by a seller of commercial properties of the type sold in the
geographic area in which the Mortgaged Property is located;
(c) in the case of an insured complete or partial destruction
of a Mortgaged Property, the fees of an independent insurance adjustor, legal
counsel, appraisers, architects and other professionals reasonably necessary to
evaluate proposed settlements and collect amounts owed by an insurance company
in connection with such destruction;
(d) in the case of a condemnation of a Mortgaged Property,
legal and other expenses reasonably necessary to evaluate proposed settlements
and maximize net condemnation proceeds from the Mortgaged Property;
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(e) in the case of a sale or resolution of a Loan, the fees of
legal counsel, appraisers, and other professionals or other costs reasonably
necessary to evaluate proposed sales, settlements or resolutions and otherwise
document or complete such dispositions; and
(f) other expenses approved in writing by the Issuer as costs
reasonably incurred in connection with such sale, condemnation, destruction or
other conveyance;
provided in each case that such expenses are reasonable for the types of goods
and services provided in the related geographical area.
"Disposition Fee" means, with respect to each Asset identified
as a "Disposition Fee Asset" on Exhibit A and each other Delinquent Loan or REO
Asset for which a Final Recovery Determination has been made, [1]% of the Net
Disposition Proceeds.
"Disposition Proceeds" means the cash amount (other than Net
Insurance Proceeds) received in connection with a Disposition.
"Due Date" means, with respect to any Loan and Collection
Period, the date on which the related Monthly Payment is first due.
"Eligible Account" means any (i) deposit account maintained
with an Eligible Institution or (ii) segregated trust account maintained in the
corporate trust department of a federal or state chartered depository
institution or trust company acting in its fiduciary capacity, provided that any
such state chartered depository institution is subject to regulations regarding
fiduciary funds on deposit similar to Title 12 of the Code of Federal
Regulations Section 9.10(b).
["Eligible Institution" means [(1) _____________________ or
(2)] any federal or state chartered depository institution or trust company
whose debt obligations are rated (A)(i) for deposits of 30 days or less, at
least A-1 or F-1 by each Rating Agency and (ii) for deposits of 30 or more days,
at least AA- by each Rating Agency or (B) such lower rating as will not result
in the downgrading, withdrawal or qualification of the rating or ratings then
assigned to any Class of Notes by any Rating Agency, as confirmed in writing by
each Rating Agency.]
"Environmental Assessment" means an "Environmental Assessment"
as described in, and meeting the criteria of the American Society for Testing
and Materials ("ASTM") standard E 1527, as amended from time to time,
supplemented by an evaluation of asbestos, lead and petroleum products. Each
Environmental Assessment must address applicable federal, state and local
environmental laws and regulations. An Environmental Assessment may be an update
of an existing environmental assessment.
"Equity Holder" means the holder of any beneficial interests
in Issuer. Initially, the Equity Holders are ______ Trust and Servicer.
"Escrow Account" means an Eligible Account maintained by the
Servicer on behalf of the Issuer, with an Eligible Institution for deposit of
Escrow Payments.
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"Escrow Payment" means any payment received by the Servicer
for the account of any Obligor for application toward the payment of taxes,
insurance premiums, assessments, ground rents, tenant improvements, leasing
commissions, property maintenance or repair, capital expenditures or other
similar items in respect of the related Mortgaged Property.
"Event of Default" has the meaning set forth in Section 5.01.
"FDIC" means the Federal Deposit Insurance Corporation, or its
successor as an insurer of deposits, if any.
"FHLMC" means the Federal Home Loan Mortgage Corporation, or
any successor thereto.
"Final Recovery Determination" means, with respect to any
Asset, the actual recovery of the full amount of all Net Insurance Proceeds,
Disposition Proceeds and other payments or recoveries (including proceeds of the
final sale of any Loan or REO) that the Servicer, in its reasonable judgment as
evidenced by a certificate of an Authorized Officer delivered to the Master
Servicer, expects to be finally recoverable, without regard to any obligation of
the Servicer to make payments from its own funds pursuant to Section 2.08.
"FNMA" means the Federal National Mortgage Association, or any
successor thereto.
"Ground Lease" means, with respect to any Mortgaged Property,
a leasehold interest therein instead of a fee interest therein.
"Hazardous Substances" means, without limitation: (i) any
hazardous substance as defined in Section 101 (14) of the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 (14) and the regulations promulgated thereunder; and (ii)
any other substances, materials and wastes that are or become regulated under
applicable local, state or federal laws or regulations, or that are classified
as hazardous or toxic under federal, state or local laws or regulations, that
require remediation of such substance, material or waste. Notwithstanding the
foregoing, it is expressly understood that the term Hazardous Substances as used
in this Agreement shall not include (a) non-friable asbestos or (b) radon,
unless it has been determined pursuant to an Environmental Assessment that a
particular location presents a high radon risk.
"Indenture" means the Indenture dated as of __________ __,
1998 between the Issuer and ____________________ as indenture trustee, as from
time to time in effect.
"Indenture Trustee" means the trustee under the Indenture,
together with its successors thereunder.
"Independent" means, when used with respect to any specified
Person, any such Person who (i) does not have any direct financial interest, or
any material indirect financial
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interest, in the Equity Holders, the Issuer, the Servicer, or any Affiliate
thereof, and (ii) is not connected with the Equity Holders, the Issuer, the
Servicer or any Affiliate thereof as an officer, employee, promoter,
underwriter, trustee, partner, director or Person performing similar functions;
provided, however, that a Person shall not fail to be Independent of the Equity
Holders, the Issuer, the Servicer, the Master Servicer or any Affiliate thereof
merely because such Person is the beneficial owner of 1% or less of any class of
securities issued by the Equity Holders, the Issuer, the Servicer, the Master
Servicer or any Affiliate thereof, as the case may be.
"Interest Period" means, with respect to any Payment Date, the
period from (and including) the 1st day of the second preceding calendar month
(or the Closing Date in the case of the initial Payment Date) to (and including)
the last day of such calendar month.
"Improvements" means, with respect to any real property or
Mortgaged Property, all improvements and betterments thereof, and all additions
and appurtenances thereto (and all renewals, substitutes and replacements
thereof), whether currently existing or hereafter acquired, constructed,
assembled or placed on such real property or Mortgaged Property by the Issuer,
or any Special Purpose Vehicle, or the mortgagor of any Mortgaged Property.
"Issuer" means ICIFC Secured Assets Corp., together with its
permitted successors and assigns.
"Issuer Expenses" means, for any period, overhead and all
other costs, expenses and liabilities of the Issuer, Replacement Management or
any Special Purpose Vehicle (other than Property Expenses) payable by them
during such period in connection with the conduct of the Issuer's business, in
each case determined on a cash basis, including but not limited to the
following:
(i) accounting, audit and data processing expenses;
(ii) except to the extent included in Property Expenses,
legal fees and expenses;
(iii) except to the extent included in Property Expenses,
other professional fees (including the fees of the Servicer);
(iv) the amounts due the Trustee pursuant to Section 6.07 of
the Indenture;
(v) the amounts due the Issuer Trustee pursuant to the
Trust Agreement;
(vi) surveillance fees assessed by the Rating Agencies;
(vii) except to the extent included in Property Expenses,
taxes (including income or franchise taxes, real estate, personal or
other property taxes, and all sales, value added, use and similar
taxes);
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(viii) in the event the Servicer or the Issuer discovers,
subsequent to Receipts having been deposited by or on behalf of the
Issuer into any Account, that a portion of the amount so remitted (the
"Mistaken Remittance") was mistakenly remitted and did not in fact
constitute Receipts hereunder (whether because such monies were
mistakenly allocated by the Servicer to the Assets but should have been
allocated to other assets serviced by such Servicer, because under the
operative documents such monies were to be retained for the benefit of
the Obligor on an Asset in an escrow or similar account, or otherwise)
and the Issuer submits a Request for Withdrawal to the Indenture
Trustee specifying such amount and in reasonable detail the
circumstances which gave rise to the mistaken remittance of such amount
to the Indenture Trustee, the amount of the Mistaken Remittance; and
(ix) the fees and expenses of Replacement Management, if
any.
Notwithstanding the foregoing, Issuer Expenses shall not
include (1) depreciation or amortization, (2) the principal of and interest on
the Notes, and (3) Property Expenses. The Master Servicer will pay the costs and
expenses set forth in (i) through (vi) above from the fees it receives under the
Master Servicing Agreement.
"Issuer Mortgage" means a mortgage or deed of trust or similar
instrument which conforms with applicable legal requirements of the
jurisdictions in which such instrument will be filed. Loans has the meaning set
forth in the Recitals.
"Issuer Trustee" means [Trustee] as Trustee under the Trust
Agreement dated ____________, 1998 among [_____], [_____] and the Issuer
Trustee.
"Lease" means any lease, sublease, further sublease, license,
occupancy agreement or other agreement permitting the use or enjoyment of any
space in or any part of any Asset, including any agreement relating to a loan or
other advance of funds made in connection with any such Lease, any guarantee by
any Person of the performance and observance of the covenants, conditions and
agreements to be performed and observed under any such Lease and every modi
fication, amendment or other agreement relating to any such Lease.
"Majority Holders" means the Noteholders holding a majority in
aggregate principal amount of the Outstanding Notes of (i) the Class A Notes,
for so long as the Class A Notes are Outstanding; (ii) at any time when there
are no Class A Notes Outstanding, the Class B Notes, for so long as the Class B
Notes are Outstanding; (iii) at any time when there are no Class A or Class B
Notes Outstanding, the Class C Notes, for so long as the Class C Notes are
Outstanding; (iv) at any time when there are no Class A, Class B or Class C
Notes Outstanding, the Class D Notes for so long as the Class D Notes are
Outstanding; (v) at any time when there are no Class A, Class 8, Class C or
Class D Notes Outstanding, the Class E Notes, for so long as the Class E Notes
are Outstanding; and (vi) at any time when there are no Class A, Class B, Class
β β Class D or Class E Notes Outstanding, the Class F Notes, for so long as the
Class F Notes are Outstanding.
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"Master Servicer" means _____, or any successor thereto or
replacement thereof.
"Master Servicing Agreement" means the agreement identified as
such in the Recitals to the Indenture, as it may be amended from time to time in
accordance with the terms hereof and thereof.
"Master Servicing Fees" means, with respect to any Loan or REO
and Collection Period, the fee, payable monthly in arrears, that accrues,
starting ________, 1998, at an annual rate per annum equal to[0.15%] of the
Principal Balance of each outstanding Loan (or, with respect to REO, the Loan
with respect to which such REO was acquired, less any Disposition Proceeds
received in respect of such REO, until such date that the REO is no longer an
Asset, after which date the Principal Balance shall be zero).
"Maturity Date" means with respect to any Loan, the final
scheduled Due Date therefor.
"Modification" means any extension of the maturity date of a
Loan, any change in the index or terms for repayment of a Loan, any other waiver
or modification to a Loan, except any amendment, waiver or modification of any
representation, warranty, covenant or condition of any Loan (other than a
covenant relating to the amount, time or calculation of any scheduled payment).
"Monthly Payment" means, with respect to any Loan and any
period, the scheduled monthly payment of principal and interest, excluding any
Balloon Payment, on such Loan that is payable by an Obligor in such period under
the related Mortgage Note. With respect to REO, the monthly payment, excluding
any Balloon Payment, that would otherwise have been payable for the related
period, assuming the related Mortgage Note has not been discharged, determined
as set forth in the preceding sentence and on the assumption that: all other
amounts, if any, due thereunder are paid when due.
"Mortgage" means the mortgage deed of trust or other
instrument, including any amendments or modifications, creating a first or
junior lien on or ownership interest in a Mortgaged Property securing a Mortgage
Note.
"Mortgage Note" means, with respect to any Loan as of any date
of determination, the note or other evidence of indebtedness and/or agreements
evidencing the indebtedness of an Obligor under such Loan, including any
amendments or modifications, or any renewal or substitution notes, as of such
date.
"Mortgaged Property" means the underlying property securing a
Loan, consisting of a fee simple estate or Ground Lease in a parcel of land
improved by a building or facility, together with any personal property,
fixtures, leases and other property or rights pertaining thereto. The term
Mortgaged Property shall be deemed to refer to the property described in the
preceding sentence even after the same has become REO.
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"Net Disposition Proceeds" means the excess of Disposition
Proceeds received with respect to any Asset over the amount of Disposition
Expenses incurred with respect thereto.
"Net Insurance Proceeds" means net proceeds of any fire and
hazard insurance policy, title policy or other insurance policy relating to an
Asset, after all recovery expenses with respect thereto, and to the extent such
proceeds are not to be applied to the restoration of the related Mortgaged
Property or released to the Obligor in accordance with the express requirements
of the Mortgage or Mortgage Note or other documents included in the Pledge
Documents binding upon the lender, or in accordance with prudent and customary
servicing practices.
"Net REO Proceeds" means the difference between (i)
collections from operations of each REO, less (ii) Property Protection Expenses
or Property Improvement Expenses incurred in connection with operations of each
REO that do not in the aggregate exceed (A) 115% of any line item on an Approved
Budget for such REO during such Collection Period, (B) amounts otherwise
expressly consented to by the Issuer, (C) emergency repairs costing not in
excess of $50,000, that the Servicer has reasonably determined are necessary to
(x) protect such REO from damage or to maintain services or (y) protect the
safety of persons at such REO and (D) the amount of the line item on an Approved
Budget to be held for the payment of emergency expenses and expenses that will
occur between the Remittance Date and the date that collections from such REO
are received during the next Collection Period; provided that all capital
improvements, tenant improvements and leasing commissions are paid from any
applicable Escrow Account or the Reserve Account to the extent that there are
sufficient funds in such Accounts to pay such expenses.
"Noteholder" means a Person in whose name a Note is registered
in the Note Register as defined in the Indenture.
"Notes" means the Issuer's Secured Notes, Series 199__-__,
issued pursuant to the Indenture.
"Obligor" means each Person now or hereafter liable for the
full or partial payment or performance of any of the Loans, whether such Person
is obligated directly or indirectly, primarily or secondarily, jointly or
severally.
"Operating and Administrative Expenses" means, for any period,
the aggregate of the Issuer Expenses and Property Expenses for such period.
"Opinion of Counsel" means a written opinion of counsel, who
may be counsel for and/or an employee of the Issuer or the Issuer Trustee and
who shall be reasonably acceptable to the Indenture Trustee.
"Outstanding", when used with respect to Notes of a Class,
means, as of the date of determination, all Notes of such Class theretofore
authenticated and delivered under the Indenture, EXCEPT:
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(i) Notes theretofore canceled by the Indenture Trustee
or delivered to the Indenture Trustee for cancellation;
(ii) Notes for whose payment, redemption or purchase money
in the necessary amount has been theretofore deposited with the
Indenture Trustee or any Paying Agent in trust for the Holders of such
Notes; and
(iii) Notes that have been paid pursuant to Section 5.07 or
in exchange for or in lieu of which other Notes have been authenticated
and delivered pursuant to the Indenture other than any such Notes in
respect of which there shall have been presented to the Indenture
Trustee proof satisfactory to it that such Notes are held by a bona
fide purchaser in whose hands such Notes are valid obligations of the
Issuer.
"Payment Account" means the trust account created and
maintained by the Indenture Trustee, as specified in the Indenture.
"Payment Date", when used with respect to any Note or any
instalment of principal or interest thereon, means the date set forth in such
Note on which such instalment of principal or interest is due and payable, which
date shall be the first Business Day of the applicable month.
"Permitted Investment" means, with respect to any Account, any
one or more of the following obligations or securities, regardless of whether
issued by Issuer, Servicer, Master Servicer, the Issuer Trustee or any of their
respective Affiliates and having at the time of purchase, or at such other time
as may be specified, the required ratings, if any, provided for in this
definition:
(i) obligations of, or obligations guaranteed as to timely
payment of principal and interest by, the United States or any agency
or instrumentality thereof, provided that such obligations are backed
by the full faith and credit of the United States of America;
(ii) Federal Housing Administration debentures;
(iii) debt obligations of the Federal Home Loan Mortgage
Corporation, the Federal National Mortgage Association, the Student
Marketing Association, the Financing Corporation or the Resolution
Funding Corporation; consolidated systemwide bonds and notes of the
Farm Credit System; or consolidated debt obligations of Federal Home
Loan Banks;
(iv) federal funds, unsecured certificates of deposit, time
deposits, banker's acceptances, and repurchase agreements having
maturities of not more than one year, of any bank, the short-term debt
obligations of which are rated at the highest short term rating from
each Rating Agency;
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(v) deposits that are fully insured by the Federal Deposit
Insurance Corporation;
(vi) debt obligations maturing in one year or less that have
ratings of not less than ___ or ____ from each Rating Agency;
(vii) commercial paper (including both non-interest-bearing
discount obligations and interest-bearing obligations payable on demand
or on a specified date not more than one year after the date of
issuance thereof) maturing in one year or less that are rated at the
highest short-term rating from each Rating Agency;
(viii) short term debt obligations, including commercial
paper, federal funds, repurchase agreements, unsecured certificates of
deposit, demand and time deposits and banker's acceptances, of issuers
rated not less than ____ or ____ by each Rating Agency; PROVIDED
HOWEVER, that the total amount of such investments at any time may not
exceed the principal and interest payable with respect to the Notes on
the next Payment Date or represent more than [20%] of the Outstanding
Principal Balance of the Notes and each investment must mature within
30 days;
(ix) investments in money market funds rated "_____" or
"______" by S&P and equivalently rated by _______;
(x) such other obligations as will not result in the
downgrading, withdrawal or qualification of the rating or ratings then
assigned to any Class of Notes by any Rating Agency, as confirmed in
writing by each Rating Agency;
provided, however, that no instrument or security shall be a Permitted
Investment if (a) such instrument or security evidences a right to receive only
interest payments, (b) the right to receive principal and interest payments
derived from the underlying investment provides a yield to maturity in excess of
120% of the yield to maturity at par of such underlying investment, (c) it is
rated less than "____ by the Rating Agencies (or rated less than "___" by _____
if the term to maturity of such instrument or security is less than one year) or
(d) excluding those instruments described in (ix) and (x) above, (1) the amount
of principal due at maturity is not a predetermined fixed dollar amount that
cannot vary or change, (2) it has an "r" highlighter affixed to its rating by
S&P, (3) it pays variable interest and such interest is tied to anything other
than a single interest rate index plus a single fixed spread, or such interest
does not move proportionately with such index or (4) it may be liquidated prior
to maturity and such liquidation would involve a loss of principal owed or other
penalty or (e) its term to maturity is greater than one year.
If the Indenture has been discharged, "Permitted Investments"
shall mean short-term liquid investments suitable for the interim investment of
funds and rated at least investment grade by either of the Rating Agencies.
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"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Pledge Documents" has the meaning set forth in the Indenture.
"Principal Balance" means, with respect to any Loan, as of any
date, the contractual principal balance owed by the Obligor as of such date
according to the terms of the loan agreement then in effect, taking into
consideration principal receipts through such date. "Principal Balance" shall
exclude accrued interest, late payment fees, default or penalty interest,
extension fees and similar fees and charges, unless such amounts are capitalized
in a modification or restructuring.
"Proceeding" means any suit in equity, action at law or other
judicial or administrative proceeding.
"Property Expenses" means Property Protection Expenses,
Property Improvement Expenses and Disposition Expenses.
"Property Improvement Expenses" means, for any period, costs
and expenses payable by the Issuer, Replacement Management, a Stipulated
Receiver or any Special Purpose Vehicle during such period, determined on a cash
basis, in connection with maintaining or improving a Mortgaged Property that are
not immediately necessary to operate it, but are reasonably deemed advisable by
the Servicer to maximize the proceeds from the related Loan or REO, including
but not limited to the following:
(a) cosmetic improvements such as painting and landscaping
intended to improve the salability of the property;
(b) build-out or modification to suit a particular prospective
or actual tenant or-buyer;
(c) replacement of items which are obsolete or wearing out but
which are not dysfunctional; and
(d) moneys paid to a tenant or buyer for a purpose similar to
a Property Improvement Expense or Property Protection Expense;
but only to the extent such costs and expenses are paid to Persons who are not
Affiliates of the Servicer, the Master Servicer or the Issuer and such expenses
are reasonable for the types of goods or services provided in the geographical
area in which such goods or services are provided.
"Property Protection Expenses" means, for any period, costs
and expenses payable by the Issuer, the Servicer, Replacement Management, a
Stipulated Receiver or any Special Purpose Vehicle during such period determined
on a cash basis, in connection with the following:
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(a) real estate taxes, assessments and similar charges;
(b) premiums for insurance the cost of which is designated
herein as a Property Protection Expense;
(c) utility costs;
(d) payments required under service contracts, including but
not limited to service contracts for heating, ventilation, air conditioning,
fire and safety systems, elevators, landscape maintenance, pest extermination,
security, model furniture, swimming pool service, trash removal, answering
service and credit checks;
(e) payroll costs and benefits for on-site maintenance
personnel, including but not limited to housekeeping employees, porters and
general maintenance and security employees;
(f) costs required in connection with the enforcement of any
lease, including but not limited to reasonable attorneys' fees, charges for lock
changes and storage and moving expenses for furniture, fixtures and equipment;
(g) advertising and rent-up expenses, including tenant rent
concessions, promotions for existing and prospective tenants, banners and signs;
(h) out-of-pocket maintenance and repair expenses;
(i) a property management fee payable monthly in arrears;
(j) any expense, the total cost of which will be passed
through to a tenant pursuant to an executed lease, so long as such tenant is not
in default under such lease;
(k) usual and customary leasing brokerage expenses and
commissions and the additional payroll and benefit costs of on-site and
temporary leasing employees;
(l) permits, licenses and registration fees and costs;
(m) any expense necessary in order to prevent a material
breach by the Obligor under a lease with a non-Affiliate of the Obligor;
(n) any expense necessary in order to prevent or cure a
material violation of any applicable law, regulation, code or ordinance;
(o) reasonable legal expenses for foreclosure of Loans or
other means of acquiring title and collection of deficiency judgments against
Obligors and guarantors thereunder or incurred in connection with one or more
Loans or REO;
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(p) the fees of any trustee under a deed of trust and other
reasonable expenses of foreclosure of Loans;
(q) costs and expenses of any environmental remediation;
(r) costs and expenses of any appraisals, valuations, surveys,
inspections, environmental assessments or market studies, including inspections
by the Servicer of each Mortgaged Property securing a Delinquent Loan, but
excluding inspections by the Servicer of each of the Mortgaged Properties
conducted annually;
(s) costs and expenses of prosecuting remedies for breaches of
representations and warranties made to the Issuer, including attorney's fees;
(t) litigation expenses of the Issuer, including but not
limited to surety bond premiums and indemnification and reimbursement
obligations under surety bonds obtained and undertakings given by the Issuer in
connection with any such litigation;
(u) the payment of any obligation secured by a lien senior to
or pari passu with that of the related Loan;
(v) engineering, accounting and other professional fees
(including, without limitation, fees of any appraisers, consultants or advisors,
but excluding legal fees to the extent otherwise included as a Property
Protection Expense) and expenses related to the Assets or the administration
thereof;
(w) emergency repair expenses with respect to Assets;
(x) moneys paid to settle a claim or resolve a dispute or
potential claim with respect to the Mortgaged Property; and
(y) other reasonable fees and expenses, including attorneys'
fees, reasonably incurred by the Servicer in connection with the enforcement,
collection, foreclosure, modification, management and operation of the assets of
the Trust and the performance of its servicing activities;
but only to the extent such costs and expenses are reasonable for the types of
goods or services provided in the geographical area in which such goods or
services are provided.
"Qualified Affiliate" means an Affiliate of the Servicer that
is (a) a corporation, limited liability company or partnership wholly owned,
directly or indirectly, by the Servicer or by all of the stockholders or
partners of the Servicer or by individuals or entities that directly or
indirectly own the stockholders or partners of the Servicer, (b) a mortgage
servicing institution having a net worth of not less than $25,000,000 or such
lesser amount as will not result in a downgrading, withdrawal or qualification
of the rating of any Class of Notes as confirmed in writing by each Rating
Agency, (c) organized and doing business under the laws of any state of
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the United States or the District of Columbia and (d) authorized under such laws
to perform the duties of a servicer of mortgage loans.
["Qualified Insurer" means (i) Lloyd's of London for so long
as it is rated no lower than 5 Crowns, (2) an insurance company or security or
bonding company Independent of the Servicer qualified to write the related
insurance policy in the relevant jurisdiction whose claims paying ability at the
time of determination is rated at least the higher of (a) one category lower
than the highest rating of any Class of Notes then Outstanding and (b) "____" by
both ____ and _____, or (3) such insurance company as will not result in the
downgrading, withdrawal or qualification of the rating of any Class of Notes as
confirmed in writing by each Rating Agency.]
"Qualified Servicer" means any corporation, limited liability
company or partnership which at the time of determination is approved by the
Issuer and the Indenture Trustee and will not result in the downgrading,
withdrawal or qualification of the rating or ratings then assigned to any Class
of Notes by any Rating Agency, as confirmed in writing by each Rating Agency.
"Qualifying Property Management Agreement" means a Servicing
Agreement between the Issuer or the Servicer on the Issuer's behalf and a
subservicer who is a real estate property manager under which (i) the
subservicer is required to deposit tenant lease payments and other amounts
received by the subservicer with respect to REO serviced by the subservicer into
an Eligible QPMA Individual Account or an Eligible QPMA Sweep Account, in either
case in the sole name of the Servicer or the Issuer (and over which only the
Servicer or the Issuer has signing and withdrawal authority), by not later than
one Business Day after the subservicer has received such funds, (ii) monies in
any such Eligible QPMA Individual Account may not be commingled with any other
funds, including funds held under other Qualifying Property Management
Agreements, of the Issuer, the Master Servicer, the Servicer or such
subservicer, PROVIDED, HOWEVER, that monies in the Eligible QPMA Sweep Account
may be commingled with funds held under other Qualifying Property Management
Agreements and (iii) the subservicer thereunder is required to account for the
expenses for which the subservicer has received advances from such Eligible QPMA
Individual Account or Eligible QPMA Sweep Account and the Issuer or the Servicer
on the Issuer's behalf is required to advance to the subservicer, on a monthly
basis, an amount not to exceed the approved budgeted expenses for the month. For
purposes of the foregoing:
(i) "Eligible QPMA Individual Account" means a deposit
account maintained in a federal or state chartered depository
institution that is insured by the Federal Deposit Insurance
Corporation and in which there is not at any time on deposit an amount
exceeding $90,000 (it being understood that any such deposit account
will lose its statu as an Eligible QPMA Individual Account to the
extent amounts on deposit therein exceed $90,000); and
(ii) "Eligible QPMA Sweep Account" means an Eligible
Account.
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The Servicer agrees to take appropriate steps to insure that amounts deposited
into an Eligible QPMA Individual Account which, after giving effect thereto,
would result in the amount on deposit therein exceeding $90,000 are swept on a
daily basis to an Eligible QPMA Sweep Account
"Rating Agency" means either _____ or ____ or, if _____ or
____ or both shall not make a rating required hereunder publicly available, a
nationally recognized statistical rating organization or organizations, as the
case may be, selected by the Issuer at such time, which shall be substituted for
_____ or _____ or both, as the case may be.
"Receipts" means any and all cash payments received by or on
behalf of the Issuer on or with respect to the Assets and the Collateral, or on
or with respect to any non-cash proceeds thereof, on or after the Closing Date,
including, without limitation, payments received in connection with any
Disposition or Lease of any Asset, or any Permitted Investment, any and all
payments received on any other assets included in the Trust Estate, any and all
other moneys received by or on behalf of the Issuer in connection with the
holding, operation and liquidation of the Trust Estate after ________ ___, 1998
and any and all other moneys deposited by the Issuer or the Trustee in any
Account; PROVIDED, HOWEVER, that Receipts shall not include (i) collections of
Monthly Payments in respect of interest on the Loans due and received on or
prior to _________ ___, 1998, (ii) net income from REO that is allocable to any
time on or prior to _________ ___, 1998, (iii) amounts on deposit in the
Suspense Account or the Escrow Accounts or Conditional Receipts until such
amounts are deposited in an Account in accordance with the Servicing Agreements
or amounts received other than by the Servicer until such amounts are collected
or (iv) amounts remitted to the Issuer or the Servicer on the Issuer's behalf
pursuant to a Qualifying Property Management Agreement by the subservicer
thereunder until the monthly date under such Qualifying Real Property Management
Agreement on which such subservicer is required to account to the Issuer or the
Servicer on the Issuer's behalf for (A) tenant lease payments and other amounts
received by such servicer during the most recent month and (B) the amount of
expenses owed by the Issuer or the Servicer on the Issuer's behalf to the
subservicer for the most recent month.
"Remittance Amount" means, with respect to any Remittance
Date, the balance in the Collection Account, after withdrawal of amounts
permitted to be withdrawn pursuant to Section 2.05(i)-(v) and other than amounts
that have not cleared all depository institutions or have been returned for any
reason, as of the last day of the related Collection Period.
"Remittance Date" means, with respect to each Collection
Period, one Business Day prior to the related Payment Date, commencing in
_________ __, 1998.
"REO" means (a) fee simple or leasehold interests of the
Issuer in any real estate asset acquired (by foreclosure or otherwise) after the
Closing Date in the course of administering or servicing the Assets and (b) all
the estate, right, title and interest of every nature whatsoever of the Issuer
in and to all the following and every part and parcel thereof: all Improvements
on such real estate assets and all fixtures, materials, equipment, apparatus,
furniture, furnishings and other property, real and personal, installed or used
on such real estate assets or such Improvements, including, but not limited to,
any heating, lighting, refrigeration, plumbing,
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ventilation, incinerating, water-heating, cooking and air-conditioning
equipment, fixtures and appurtenances, window screens, window shades, venetian
blinds, awnings, draperies, rugs, and other floor coverings and shrubbery and
other chattels and personal property used in or furnished in connection with the
operation, use and enjoyment of such real estate assets and such Improvements
(if any, and only to the extent in the possession or control of the Issuer or
any Affiliate thereof, other than in its capacity as a tenant or lessee, if
applicable), all rights to future rents, revenues, income and profits, if any,
arising from any part of such real estate assets and the use thereof, including
all rents, revenues, bonus money, royalties, rights and benefits which would
accrue to the Issuer under all present and future oil, gas and mineral leases on
any part of such real estate asset, and all related rights, titles and interests
owned, held, accruing and to accrue to and for the benefit of the owner of a
legal or beneficial interest in such properties, transferable or assignable
governmental permits, franchises or licenses, tenant deposits ( if any, and only
to the extent in the Issuer's possession), payment bonds and performance bonds,
and leases or other contracts.
"Replacement Management" means a Person appointed by the
Indenture Trustee pursuant to Section 6.08 of the Indenture.
"Request for Release" means a request for release signed by an
Authorized Officer, substantially in the form of Exhibit B hereto.
"Reserve Account" means the trust account created and
maintained by the Servicer, which shall be an Eligible Account and, if the
Indenture has not been discharged, shall be entitled "[Servicer], as agent for
[Trustee] in trust for Holders of Secured Notes issued by ICIFC Secured Assets
Corp. under the Indenture dated as of ____________, 1998," or, if the Indenture
has been discharged, shall be in the name of the Issuer.
"S&P" means Standard & Poor's Ratings Services, a division of
ββββββ-ββββ, Inc., or any successor thereto.
"Sale Agreement" has the meaning set forth in the Recitals.
"Servicer" means _______________________ or any successor or
assign permitted hereunder.
"Servicer's Certificate" means a certificate signed by an
Authorized Officer and delivered to the Indenture Trustee, the Master Servicer
and the Issuer.
"Servicing Agreements" means the Servicing Agreement and the
Master Servicing Agreement.
"Servicing Fees" means, with respect to any Loan or REO and
Collection Period, the fee, payable monthly in arrears, that accrues, starting
_____________, 1998, at an annual rate per annum equal to _______% of the
Principal Balance of each outstanding Loan as of the beginning of each
Collection Period (or __________, 1998 with respect to the first Collection
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Period) (or, with respect to REO, the Loan with respect to which such REO was
acquired). For purposes of computing the Servicing Fee with respect to REO, the
Principal Balance shall be deemed to be the Principal Balance as of the date
such REO was acquired, less any Disposition Proceeds received in respect of such
REO, until such date that the REO is no longer an Asset, after which date the
Principal Balance shall be zero.
"Servicing File" means the servicing documents and other
information maintained by the Servicer in respect of an Asset, which shall
include, for each Loan, an inventory of the contents of the Servicing File as of
the Closing Date and all subsequent additions, including, each of the items set
forth on Exhibit C, to the extent applicable, and an electronic database in a
software format reasonably acceptable to the Master Servicer containing
information in the fields set forth in Exhibit D, which information shall be
consistent with the documents in the Servicing File and the knowledge of the
Authorized Officers.
"Special Purpose Vehicle" means a corporation, partnership or
other legal entity (i) all of the capital stock, partnership interests or
ownership interests of which at all times are directly or indirectly owned by
the Issuer, (ii) which at no time issues, incurs or guarantees indebtedness for
borrowed money, and (iii) which at no time incurs any obligation or conducts any
activities not directly related to owning, operating and disposing of the Assets
or their proceeds.
"Stated Maturity" with respect to the Notes of a Class has the
meaning set forth in the form of Note of such Class.
"Suspense Account" means an Eligible Account established by
the Issuer (or the Servicer, on behalf of the Issuer) with an Eligible
Institution in the name of the Issuer, for the deposit of Conditional Receipts
pending their return to the Obligor or their deposit in the Collection Account
or for the temporary deposit of any amount where further information is required
to determine whether such amount should be deposited in the Collection Account,
an Escrow Account, another Eligible Account or paid to a third party.
"Trust Estate" has the meaning set forth in the Indenture.
ARTICLE TWO
ADMINISTRATION AND SERVICING OF ASSETS
Section 2.01. THE SERVICER TO ACT AS SERVICER.
The Issuer hereby appoints the Servicer to service and manage
the Assets, and the Servicer hereby accepts such appointment and hereby agrees
to service and manage the Assets pursuant to the terms of this Agreement. The
Servicer agrees that its servicing and management of Assets shall be carried out
in accordance with (i) applicable law, (ii) the provisions of all applicable
Loan documents, (iii) the express terms of this Agreement and the Indenture,
(iv) the
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servicing and asset management standards for performing and nonperforming
commercial mortgage loans, as the case may be, for REO and for other collateral
that are customarily employed by the Servicer in servicing and managing
comparable mortgage loans in other portfolios owned by third parties and by
prudent servicers servicing comparable mortgage loans for their own account, as
applicable, (v) the objectives of (A) realizing upon the Assets in such a way
that there will be sufficient funds in the Payment Account on each Payment Date
for the payment in full of all interest due on the Notes, including Deferred
Interest, (B) providing sufficient funds for the payment in full of the Notes of
each Class on or prior to their respective Stated Maturities and (C) subject to
clauses (A) and (B) above, maximizing proceeds recovered from the Assets and
(vi) the directions given from time to time by the Issuer; but without regard
to:
(1) any relationship that the Servicer, any subservicer, or
any Affiliate of the Servicer or any subservicer may have with the
related obligor or with the Master Servicer;
(2) the ownership of any Note or equity interest in the Issuer
(or any interest in any Note or equity interest in the Issuer) by the
Servicer, any Affiliate of the Servicer, the Master Servicer or any
Affiliate of the Master Servicer; or
(3) the Servicer's right to receive compensation for its
services under the Servicing Agreement or with respect to any
particular transaction.
In the event that the Servicer believes that it is unable to
comply with the requirements of this Section 2.01 with respect to any particular
Loan or REO as a result of one or more of the factors described in the foregoing
clauses (A) through (C), it may, in accordance with Section 2.02, enter into a
subservicing agreement pursuant to which a subservicer (who shall be the Master
Servicer, unless the Master Servicer shall decline to subservice such Asset)
shall perform its duties with respect to such Loan or REO. In such event, so
long as such subservicer performs such duties on behalf of the Servicer in
accordance with the requirements of this Section 2.01, then the Servicer shall
be deemed to be in compliance therewith; PROVIDED, HOWEVER, that the entry of
the Servicer into any such subservicing agreement shall not relieve the Servicer
of its obligations with respect to such Loan or REO, and if both (x) the
Servicer fails to perform such duties and (y) such subservicer fails to perform
such duties on behalf of the Servicer (unless such subservicer is the Master
Servicer), then the Servicer shall be deemed not to be in compliance with the
terms of this Agreement.
In servicing and administering the Assets under this
Agreement, the Servicer shall, subject to the terms of this Agreement, have full
power and authority, acting itself or through subservicers, to do any and all
things in connection with such servicing and administration that are reasonably
necessary or desirable. Without limiting the generality of the foregoing, the
Servicer is hereby required, authorized and empowered by the Issuer to execute
and deliver, in the name and on behalf of the Issuer, any and all financing
statements, continuation statements and other documents or instruments necessary
to maintain the lien on each Mortgaged Property and related collateral, any and
all leases and lease modifications or amendments or consents pursuant to any
lease of less than 20% of the leasable square footage of any REO, and any and
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all instruments of satisfaction or cancellation or of partial or full release or
discharge, all documents, affidavits and pleadings necessary to conduct any
litigation or other proceedings involving the Issuer or its assets and all other
comparable instruments with respect to the Assets and with respect to the
Mortgaged Properties and related collateral. The Servicer shall take all actions
reasonably necessary or desirable to maintain the lien on each Mortgaged
Property and related collateral. Upon the execution and delivery of this
Agreement, the Servicer shall deliver to the Issuer and the Indenture Trustee a
list of Authorized Officers, which list shall be updated by the Servicer after
each change in Authorized Officers.
Unless otherwise directed by the Issuer, the Servicer may in
its discretion waive any late payment charge, whether accrued or prospective, in
connection with any delinquent Monthly Payment or Balloon Payment.
Except as expressly provided in this Agreement, the Servicer
shall have no authority, without the prior written consent of the Issuer, to (i)
sell or in any way hypothecate any Asset; (ii) enter into an agreement modifying
or waiving the terms of any Loan or releasing any Obligor on any Loan from
liability; ( iii) sign any document in the name or on behalf of the Issuer,
except pursuant to a duly authorized and executed power of attorney; or (iv) act
on behalf of, or hold itself out as having authority to act on behalf of, the
Issuer in any manner which is beyond the scope of the terms of this Agreement.
With respect to any action by the Servicer requiring the
consent of the Issuer or the Master Servicer, the Servicer shall provide to such
Person a description (including any revised Business Plan, if necessary, as
described in Section 2.23(d)) and a recommendation in respect of the proposed
action, forms of documents (if any) required to be executed by such Person and
the date (which shall not be earlier than 10 Business Days or, in the case of an
emergency, 5 Business Days, after the date of the Servicer's notice to such
Person) by which such decision must be made to avoid penalties or other adverse
consequences. In the case of an emergency, the Servicer shall promptly notify
the Master Servicer or the Issuer, as the case may be, by telephone and send
such documents by facsimile and by overnight courier to the Issuer or the Master
Servicer, as the case may be, accompanied by a cover sheet in at least 30-point
bold type stating "This is a request for emergency approval pursuant to Section
2.01 of the Servicing Agreement dated as of ____________, 1998, ICIFC Secured
Assets Corp.". Prior to receipt of such response, the Servicer shall have no
liability for failure to act, and if the Servicer receives no response by the
required date, the Servicer shall act in accordance with the first paragraph of
this Section 2.01.
Section 2.02. SUBSERVICERS; INDEPENDENT CONTRACTORS.
The Servicer may, at its own expense, contract with any
subservicer or Independent contractor satisfactory to the Issuer to perform all
or any portion of its duties hereunder, provided that the Servicer shall give
the Issuer not less than 10 Business Days prior notice of such contracting and
shall remain liable hereunder to the full extent of its duties and obligations
specified herein. The Master Servicer shall be entitled to all servicing fees
for any Asset subserviced by the Master Servicer.
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Section 2.03. COLLECTION OF TAXES, ASSESSMENTS AND SIMILAR
ITEMS; ESCROW ACCOUNTS.
(a) The Servicer shall establish and maintain Escrow Accounts
into which all Escrow Payments shall be deposited. The Servicer shall notify the
Indenture Trustee and the Issuer in writing of the location and account number
of each Escrow Account it establishes and shall notify the Indenture Trustee and
the Issuer prior to any change thereof. Withdrawals of amounts from an Escrow
Account may be made, subject to the terms governing the use of the related
Escrow Payments, only to: (i) effect payment of taxes, assessments, tenant
improvements, leasing commissions, insurance premiums, property maintenance or
repair expenses, capital expenditure, ground rents and comparable items; (ii)
refund to Obligors any sums determined to be overages or remove funds
erroneously deposited therein; (iii) pay interest, if required, to Obligors on
balances in the Escrow Account; (iv) withdraw interest or other income which
lawfully belongs to the Issuer; (v) clear and terminate the Escrow Account at
the termination of this Agreement and (vi) if permitted by the terms of the Loan
documents, apply such amounts or any portion thereof to principal, interest or
other amounts due and owing on such Loan. The Servicer shall inform the Master
Servicer prior to any advance or need for an advance to pay Escrow Payments in
the manner set forth in the last paragraph of Section 2.01.
(b) With respect to each Mortgaged Property and REO, the
Servicer shall monitor and evaluate compliance by the applicable Obligors of
their obligations and shall maintain accurate records, with respect to the
status of taxes, assessments and other similar items that are or may become a
lien thereon and the status of insurance premiums payable with respect thereto
as well as the payment of ground rents with respect to each Ground Lease. The
Servicer shall use reasonable and diligent efforts to obtain, from time to time,
originals or copies of all bills for the payment of such items (including
renewal premiums), and shall cause the applicable Obligor to pay or, if and to
the extent the Servicer holds adequate funds in an Escrow Account maintained for
such expenses with respect to such Loan, shall itself pay from such Escrow
Account, such amounts, prior to the applicable penalty or termination date. To
the extent that a Loan does not require an Obligor to make payments for taxes,
assessments, insurance premiums and other similar items in escrow, the Servicer
shall use reasonable and diligent efforts to require that any such payment be
made by the Obligor at the time they first become due. If an Obligor fails to
make any such payment on a timely basis or collections from an Obligor are
insufficient to pay any such item prior to delinquency, the amount of any
shortfall shall be paid by the Servicer as a Property Protection Expense, except
to the extent such payment is inconsistent with the provisions of the final
sentence of Section 2.16 (b).
Section 2.04. COLLECTION ACCOUNT; RESERVE ACCOUNT.
(a) The Servicer shall establish and maintain the Collection
Account and the Reserve Account in trust for the benefit, and subject to the
direction, of the Indenture Trustee, and, after the Notes have been paid in
full, the Issuer. The Servicer shall cause the Collection Account and the
Reserve Account to be Eligible Accounts. The Servicer shall deposit in the
Collection Account, promptly after receipt thereof, all Receipts received by it
on or after the Closing Date, including the following:
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(i) all payments on account of principal, including
payments of principal received in advance of their scheduled Due Dates;
(ii) all payments on account of interest;
(iii) all Net Insurance Proceeds and Disposition Proceeds;
(iv) all Net REO Proceeds; and
(v) all proceeds from Permitted Investments of funds in the
Collection Account.
(b) Funds in the Collection Account and the Reserve Account
may be invested only in Permitted Investments in accordance with the provisions
of Section 2.07. The Servicer shall give written notice to the Indenture Trustee
and the Issuer of the location and account number of the Collection Account and
the Reserve Account and shall notify the Indenture Trustee and the Issuer in
writing prior to any subsequent change thereof.
Section 2.05. PERMITTED WITHDRAWALS FROM THE COLLECTION
ACCOUNT AND THE RESERVE ACCOUNT.
(a) The Servicer may make withdrawals from the Collection
Account only:
(i) to remove funds erroneously deposited therein;
(ii) to pay Servicing Fees, Disposition Fees and Master
Servicing Fees and expenses due to the Servicer and the Master Servicer
as of the last day of the prior Collection Period;
(iii) to reimburse the Servicer and the Master Servicer for
unreimbursed advances, together with accrued and unpaid interest
thereon at the _____ prime lending rate as in effect from time to time;
(iv) with respect to any Mortgaged Property or REO, (A) to
pay for Operating and Administrative Expenses (including Issuer
Expenses directed to be paid by Issuer from time to time), (1) that do
not in the aggregate exceed 115% of any line item (excluding any Issuer
Expenses) on an Approved Budget for such Mortgaged Property or REO
during such Collection Period, (2) with the Master Servicer's express
consent or (3) for emergency repairs costing not in excess of $50,000,
that the Servicer has reasonably determined are necessary to (x)
protect such Mortgaged Property or REO from damage or to maintain
services or (y) protect the safety of persons at such Mortgaged
Property or REO and (B) to fund the amount of the line item on an
Approved Budget to be held for the payment of emergency expenses and
expenses that will occur between the last day of each Collection Period
and the date that collections are received during the next
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Collection Period; provided that capital improvements, tenant
improvements and leasing commissions may be paid from the Collection
Account only to the extent that there are insufficient funds to pay
such expenses in any applicable Escrow Account or the Reserve Account;
(v) provided that the Servicer shall determine that to do
so is consistent with its obligations under this Agreement, to pay to
third parties amounts necessary to purchase or effect the release of
encumbrances permitted under the Indenture ranking prior to or pari
passu with the lien of the Indenture on any Loan or the lien on the
property securing any Loan; and
(vi) to remit to the Payment Account on each Remittance Date
with respect to any Collection Period, an amount equal to the
Remittance Amount.
Amounts required to be remitted by the Servicer to the Payment
Account on each Remittance Date shall be in immediately available funds. The
Servicer shall keep and maintain separate accounting on an Asset-by-Asset basis.
(b) The Servicer may make withdrawals from the Reserve Account
only:
(i) in accordance with Section 3.01 of the Indenture, to
pay any capital expenses, tenant improvements or leasing commissions
then due and payable with respect to any Mortgaged Property or REO; and
(ii) in the event that on any Payment Date, absent a deposit
from the Reserve Account to the Payment Account pursuant to this clause
(ii) of this Section 2.05(b), there would be a deficiency in the amount
available in the Payment Account to pay the amounts specified in
clauses FIRST, SECOND, THIRD, and FOURTH of Section 4.10 of the
Indenture on such Payment Date, the Servicer shall to the extent of
available funds in the Reserve Account withdraw from the Reserve
Account an amount equal to such deficiency and remit such amount to the
Payment Account on the Remittance Date.
The Reserve Account will not be required to be replenished in
respect of any withdrawal therefrom, whether to pay Operating and Administrative
Expenses or for any other reason.
Section 2.06. REQUESTS FOR ADVANCES.
If there are insufficient funds in the Collection Account and
the Reserve Account (to the extent that funds in the Reserve Account may be used
for such expenditures) for Operating and Administrative Expenses currently due
and payable, the Servicer shall promptly deliver to the Master Servicer and the
Fiscal Agent a request for an Advance, which request shall specify the types and
amounts of such unpaid Operating and Administrative Expenses, provided that the
Master Servicer shall not be obligated to advance any amounts to pay any tax
liabilities of the
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Issuer if it is determined that the Issuer is taxable as a corporation. The
Master Servicer shall either make such Advance or deliver a Nonrecoverability
Certificate (as defined in the Master Servicing Agreement) within five Business
Days after each such request. In the event that the Master Servicer, by the last
day of the applicable time period set forth herein, shall have failed either to
make an Advance or to deliver a Nonrecoverability Certificate, the Fiscal Agent
shall make such required Advance on the next Business Day following such last
day and shall succeed to the Master Servicer's rights hereunder with respect to
such Advance.
Section 2.07. INVESTMENT OF FUNDS IN THE COLLECTION
ACCOUNT, THE RESERVE ACCOUNT AND ESCROW
ACCOUNTS.
The Issuer may, but shall not be required to, direct the
Servicer to direct any depository institution maintaining the Collection
Account, the Reserve Account or one or more Escrow Accounts to invest the funds
therein. Any such investment shall only be made in one or more Permitted
Investments bearing interest or sold at a discount, and maturing, unless payable
on demand, as to any Escrow Account before payments need to be effected from
such account and as to the Collection Account (i) no later than the Business Day
preceding the date on which such funds are required to be withdrawn from the
Collection Account pursuant to this Agreement, if a Person other than the
Indenture Trustee is the obligor thereon, and (ii) no later than the date on
which such funds are required to be withdrawn from the Collection Account
pursuant to this Agreement, if the Indenture Trustee is the obligor thereon. All
such Permitted Investments shall be held to maturity, unless payable on demand.
Any investment of funds shall be made in the name of the Indenture Trustee while
the Notes are outstanding, and in the name of the Issuer at all other times. Any
net gain and net loss from investment of amounts in the Reserve Account shall be
for the account of the Reserve Account, and any net gain or loss from investment
of amounts in the Escrow Account and the Collection Account shall be for the
account of the Servicer.
Section 2.08. MAINTENANCE OF INSURANCE POLICIES AND ERRORS
AND OMISSIONS AND FIDELITY COVERAGE.
(a) The Servicer shall maintain or cause the related Obligor
to maintain with respect to each Loan, fire and hazard insurance with extended
coverage on the related Mortgaged Property in an amount which is at least equal
to the lesser of the replacement cost of the improvements which are part of such
property and the Principal Balance thereof, but in no event greater than the
maximum amount of such insurance required by the terms of the related Mortgage
Note or Mortgage. Notwithstanding the foregoing, if the maintenance of such
lesser amount of fire and hazard insurance as required by the terms of the
related Mortgage Note or Mortgage would be insufficient, in the Servicer's
judgment, to avoid the application of any co-insurance clause, then the Servicer
shall maintain or require the related Obligor to maintain such greater amount of
insurance as would be sufficient to avoid the application of any co- insurance
clause. The cost of any such insurance, if not paid by the Obligor, shall be a
Property Protection Expense. If a loss occurs, the Servicer will deposit in the
Collection Account at its own expense an amount equal to the lesser of such loss
and the amount of any reduction in recovery under a fire and hazard insurance
policy required to be maintained, provided (i) such reduction in recovery
results
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from the application of a co-insurance clause in such policy, and (ii) if the
proceeds of such policy were applied to the restoration and repair of the
related Mortgaged Property, such proceeds would not be sufficient to restore
such Mortgaged Property to its condition as of the date hereof, reasonable wear
and tear excepted, because of such reduction in recovery. The Servicer shall
also cause to be maintained with a Qualified Insurer fire and hazard insurance
with extended coverage including general liability on each REO in an amount
which is at least equal to the greater of (i) an amount not less than is
necessary to avoid the application of any co-insurance clause contained in the
related fire and hazard insurance policy and (ii) the replacement cost of the
improvements which are a part of such property. The cost of any such insurance
shall be a Property Protection Expense. Any amounts to be collected under any
such policies (other than amounts to be applied to the restoration or repair of
the related Mortgaged Property or amounts to be released to the Obligor in
accordance with the terms of the related Mortgage Note) shall immediately upon
receipt be deposited in the Collection Account.
If permitted by the related Mortgage Note or Mortgage, the
Servicer may, and, in the case of REO, shall, maintain with a Qualified Insurer,
if reasonably commercially available, or, if applicable, may require the related
Obligor to maintain, other forms of insurance including without limitation loss
of rents endorsements, business interruption insurance or comprehensive public
liability insurance. Notwithstanding the preceding sentence, the Servicer shall
maintain earthquake insurance with respect to each REO if in the judgment of the
Servicer such REO is located in an area where maintaining such insurance is
consistent with prudent asset management standards for similar properties. Any
such earthquake insurance shall be obtained from a Qualified Insurer and shall
be in an amount equal to the probable maximum loss on the related Mortgaged
Property. The cost of any insurance described in this paragraph shall be a
Property Protection Expense to the extent any such cost is not paid by the
Obligor under the terms of the related Loan. If the Mortgaged Property is
located in a federally designated special flood hazard area, the Servicer will
cause the related Obligor to maintain or will itself obtain flood insurance in
respect thereof to the extent reasonably commercially available, the cost
thereof being a Property Protection Expense. Such flood insurance shall be in an
amount equal to the lesser of (i) the unpaid Principal Balance of the related
Loan and (ii) the greater of (x) the maximum amount of such insurance required
by the terms of the related Mortgage Note or Mortgage and (y) the maximum amount
of such insurance as is available for the related property under the national
flood insurance program (assuming that the area in which such property is
located is participating in such program). If a Mortgaged Property that has
become an REO is located in a federally designated special flood hazard area,
the Servicer will obtain flood insurance in respect of such REO providing
substantially the same coverage as described in the preceding sentence, the cost
thereof being a Property Protection Expense. If the Servicer fails to maintain
such insurance and a recovery under a flood or fire and hazard insurance policy
in respect of an REO located in a federally designated special flood area would
have been available if such insurance were maintained thereon in accordance with
the terms herein, the Servicer shall either (i) immediately deposit into the
Collection Account at its own expense the amount that would have been recovered
or (ii) apply to the restoration and repair of the property at its own expense
the amount that would have been recovered.
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The Servicer agrees to prepare and present claims under each
related insurance policy in a timely fashion in accordance with the terms of
such policy and to take such reasonable steps as are necessary to receive
payment or to permit recovery thereunder.
All policies required hereunder shall name the Indenture
Trustee and the Issuer as loss payees.
(b) If the Servicer determines that the Issuer would realize a
cost saving as a result, the Servicer may elect to provide the insurance
required by Section 2.08(a) by one or more multiproperty policies in lieu of by
individual fire and hazard insurance policies with extended coverage for each
property. Any such multiproperty policy shall be with a Qualified Insurer or
will not result in the downgrading, withdrawal or qualification of the rating of
any Class of Notes as confirmed in writing by each Rating Agency. The cost of
any such multiproperty policy reasonably allocable to the Mortgaged Properties
and REO shall be a Property Protection Expense. The cost of any such
multiproperty policy not reasonably allocable to the Mortgaged Properties and
REO shall be at the expense of the Servicer and any amount not payable under
such policy because of a standard deductible clause contained in such policy
shall be the responsibility of the Servicer.
(c) The Servicer shall maintain at its own expense a fidelity
bond issued by a Qualified Insurer and in the form and amount at least equal to
that maintained by the Servicer with respect to comparable mortgage loans and
properties in other portfolios owned by third parties and by prudent servicers
servicing comparable mortgage loans for their own account, as applicable. The
issuer of such fidelity bond shall be required to give at least fifteen days
prior written notice of cancellation or nonrenewal of such fidelity bond to the
Issuer and the Master Servicer and, until the Indenture is discharged, the
Indenture Trustee. In addition, the Servicer, at its own expense, shall keep in
force with a Qualified Insurer, during the term of this Agreement a policy or
policies of insurance covering loss occasioned by the errors and omissions of
the Servicer's officers, employees and agents in connection with its obligations
hereunder. The Servicer shall cause each and every subservicer to maintain a
policy of insurance covering errors and omissions and a fidelity bond that meet
such requirements.
(d) The Servicer shall notify the Issuer and the Master
Servicer and, while the Notes are outstanding, the Indenture Trustee, of any
material changes that may occur in any policy of insurance covering errors and
omissions and any fidelity bond and shall, upon written request of the Issuer,
the Master Servicer or the Indenture Trustee, furnish to the requesting party
copies of all binders and policies or certificates evidencing that such bond and
insurance policy are in effect. The Servicer shall promptly notify the Issuer
and the Master Servicer and, while the Notes are outstanding, the Indenture
Trustee, of all cases of embezzlement or fraud or irregularities of operation,
suspected or otherwise, relating to the servicing of the Assets by the Servicer
and its employees, officers, directors, agents and representatives if such
events involve funds relating to the Assets. 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 Servicer's bonding companies or insurers, relating to the Assets or the
servicing thereof, a copy of such
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report (which report may omit any references to individuals suspected of such
embezzlement, fraud or irregularities of operation) shall be promptly furnished
by the Servicer to the Issuer and the Master Servicer and, while the Notes are
outstanding, the Indenture Trustee and the Rating Agencies.
Section 2.09. ENVIRONMENTAL ASSESSMENT PRIOR TO
FORECLOSURE.
(a) Notwithstanding any other provision of this Agreement, the
Servicer shall not obtain title to a Mortgaged Property as a result of or in
lieu of foreclosure or otherwise, and shall not otherwise acquire possession of
any Mortgaged Property, if as a result of any such action the Issuer or the
Indenture Trustee would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of the Comprehensive Environmental
Response, Compensation and Liability Act of 1980, as amended from time to time,
or any comparable law, unless the Servicer has previously determined, based on
an Environmental Assessment prepared by an Independent Person who regularly
conducts environmental audits, that:
(A) such Mortgaged Property is in compliance with applicable
environmental laws or, if not, that the Servicer has obtained the
Issuer's written consent to take such actions as are necessary to bring
the Mortgaged Property in compliance therewith, and
(B) there are no circumstances present at such Mortgaged
Property relating to the use, management or disposal of any Hazardous
Substances for which investigation, testing, monitoring, containment,
clean-up or remediation could be required under any then effective
federal, state or local laws or regulation, or that, if any such
Hazardous Substances are present for which such action could be
required, the Servicer has obtained the Issuer's written consent to
take such actions with respect to the affected Mortgaged Property.
In the event that the Environmental Assessment first obtained
by the Servicer with respect to a Mortgaged Property indicates that such
Mortgaged Property may not be in compliance with applicable environmental laws
or that Hazardous Substances may be present but does not definitively establish
such fact, the Servicer shall cause such further environmental tests as the
Servicer shall reasonably deem prudent. Any such tests shall be deemed part of
the Environmental Assessment obtained by the Servicer for purposes of this
Section.
(b) The Environmental Assessment shall be prepared by an
Independent Person approved by the Issuer who regularly conducts environmental
audits for commercial property. The cost of preparing an Environmental
Assessment shall be a Property Protection Expense.
(c) If the Servicer has obtained the Issuer's written consent
to take such actions as are necessary to bring any such Mortgaged Property in
compliance with applicable environmental laws or to take such action with
respect to the containment, clean-up or remediation of Hazardous Substances
affecting any such Mortgaged Property, the Servicer shall take such action in
accordance with such consent and the recommendations in the Environmental
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Assessment. The cost of any such compliance, containment, clean-up or
remediation shall be a Property Protection Expense.
Section 2.10. DELIVERY OF PLEDGE DOCUMENTS; CERTIFICATIONS
FOR RELEASE OF PLEDGE DOCUMENTS.
The Issuer shall cause the predecessor servicer to deliver to
the Servicer all documents in its possession relating to the servicing of the
Assets and such other information regarding the Assets as the Servicer needs to
service the Assets in accordance with this Agreement.
On the Closing Date and at any time thereafter that a Pledge
Document shall come into the Servicer's possession, other than as provided in
this Section 2.10, the Servicer, at the Servicer's expense, shall deliver all
Pledge Documents in the Servicer's possession to the Indenture Trustee and
retain a copy of each such Pledge Document in the appropriate Servicing File.
Upon the Final Recovery Determination for any Asset in respect
of which the Obligor is entitled to receive any Pledge Document, the Servicer
shall immediately notify the Issuer, the Master Servicer and the Indenture
Trustee by a certification (which certification shall include a statement to the
effect that all amounts received or to be received in connection with such Asset
which are required to be deposited in the Collection Account have been or will
be so deposited) of an Authorized Officer and shall request delivery to it of
such Pledge Documents. Except where prohibited by state law or contrary to local
custom, expenses incurred in connection with any instrument of satisfaction or
deed of reconveyance shall be paid by the Obligor, and otherwise by the Servicer
from its own funds. If necessary, the Servicer shall request the Indenture
Trustee or the Issuer, as appropriate, to execute any releases or instruments of
satisfaction.
When appropriate in connection with its servicing obligations
hereunder, the Servicer may request the Indenture Trustee or the Issuer, as
applicable, by delivery of a Request for Release, to deliver all or a portion of
one or more Pledge Documents. The Servicer shall return any such Pledge
Documents to the Indenture Trustee when the need therefor by the Servicer no
longer exists, unless the related Asset shall have been liquidated. The Servicer
hereby acknowledges that prior to the discharge of the Indenture, the Servicer
shall hold any portion of the Pledge Documents delivered to it pursuant to this
Section exclusively as agent for the Indenture Trustee.
The Servicer may also request the Indenture Trustee and/or the
Issuer by delivery of a Servicer's Certificate to execute and deliver to the
Servicer any court pleading, requests for trustees sale or other documents
prepared by the Servicer, its agents or attorneys, necessary to the foreclosure
or trustee's sale in respect of a Mortgaged Property or to any legal action
brought to obtain judgment against any Obligor on the Mortgage Note or Mortgage
or to obtain a deficiency judgment, or to enforce any other remedies or rights
provided by the Mortgage Note or Mortgage or otherwise available at law or in
equity. Each such certification shall include a request that such
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pleading or documents be executed by the Indenture Trustee and the Issuer and a
statement that such documents or pleading are reasonably required.
Any certification required pursuant to this Section 2.10 shall
be substantially in the form of Exhibit B hereto.
Section 2.11. SERVICING COMPENSATION.
As full and complete compensation for its services hereunder,
the Servicer shall be entitled to Servicing Fees, Disposition Fees and certain
income, reimbursements and fees set forth in Sections 2.07, 2.15 and 2.16, to
the extent payable, for the related Collection Period. The Servicing Fee payable
with respect to each Asset shall begin accruing on __________, 1998 and continue
until the earlier of the Final Recovery Determination and the termination of
this Agreement, with respect to such Asset. Fifty percent of each Disposition
Fee will be paid upon the Final Recovery Determination for the related Asset.
Payment of the deferred portion, the remaining fifty percent, of the Disposition
Fees will only be made after all payments of principal of and interest on the
Notes have been paid in full. On each Remittance Date, the Servicer shall
deliver to the Master Servicer a statement showing the Servicer's calculation of
such Fees for the prior Collection Period payable and accrued and the Servicer
may pay the applicable Fees which are then payable from the Collection Account.
In the event that the amount in the Collection Account to pay the Servicing Fee
and the Master Servicing Fee for the prior Collection Period is insufficient,
such fees or such portion thereof, together with interest on such unpaid amount
at the _____ prime lending rate in effect from time to time, shall be aggregated
and postponed as an accrued and unpaid Operating and Administrative Expense
until such time as there are sufficient funds to make such payment in accordance
with this Agreement.
Section 2.12. TITLE AND MANAGEMENT OF REO.
In the event that title to any Mortgaged Property is acquired
in foreclosure or by deed-in-lieu of foreclosure, the deed or certificate of
sale shall be taken in the name of: (x) unless any Note or other secured
indebtedness of the Issuer is outstanding, the Issuer or a Special Purpose
Vehicle owned by the Issuer or (y) if any Note or other secured indebtedness of
the Issuer is outstanding, a Special Purpose Vehicle owned by the Issuer or such
other Person or name as may be approved by the Indenture Trustee (or the trustee
for such other secured indebtedness). In connection with any judicial or
non-judicial foreclosure proceedings required or permitted by this Agreement, if
the Servicer determines that the action described in this sentence would permit
the Issuer or its Affiliates to "credit bid" in such proceedings or that such
action would otherwise facilitate foreclosure of the relevant Loan, the Servicer
may, pursuant to the power-of-attorney with respect to such Loan granted to the
Servicer by the Issuer and the Indenture Trustee by this Section 2.12, cause
such Loan or any judgment obtained in such proceedings to be assigned to a
Special Purpose Vehicle at any time prior to commencement of or during the
pendency of such proceedings. Upon the conclusion of such proceedings and the
acquisition of title to a Mortgaged Property by a Special Purpose Vehicle, (i)
if any deficiency remains due and owing upon the Mortgage Note secured by such
Mortgaged Property, the Servicer shall cause the Special Purpose Vehicle to
execute and deliver to the Indenture Trustee a new mortgage of such Mortgaged
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Property in favor of the Indenture Trustee and (ii) the Servicer, with respect
to each REO, shall coordinate the delivery to the Indenture Trustee of Pledge
Documents for such REO. The Servicer is hereby authorized to enter into and
execute any documents necessary in order to acquire title to any Mortgaged
Property.
Section 2.13. SALE OF LOANS AND REO.
(a) The Servicer, after written presentation to the Issuer and
with the Issuer's written consent, may offer to sell for a fair price to any
Person a Loan or any REO; provided that the Servicer shall not sell any Loan or
REO to the Issuer or the Servicer or an Affiliate of either.
(b) In determining whether any bid constitutes a fair price
for any Loan or any REO, the Servicer shall take into account, among other
factors, the period and amount of any delinquency on the affected Loan, the
physical condition of the Mortgaged Property or REO or condition of any other
collateral pledged as security for such Loan, the state of the local economy,
and the expected value of the Loan using the valuation methodology reasonable
and customary in the locale or as otherwise described in Chapters [___] and
[___] of The Appraisal of Real Estate, 11th Edition, published by the American
Institute of Real Estate Appraisers.
(c) Any sale of a Loan or any REO shall be without recourse,
except that a subordinate interest may be retained by the Issuer in a Loan and
except that any contract of sale and assignment and conveyance documents may
contain customary warranties of title and customary warranties of condition, if
any, and such other representations and warranties as are acceptable to the
Issuer, so long as (i) the only recourse for breach thereof is to the Issuer or
the applicable Special Purpose Vehicle and (ii) except in the case of a
representation or warranty with respect to liens and encumbrances or ownership
of a Loan, any such representations and warranties shall terminate and no longer
be in effect upon termination of the Issuer. In connection with the sale of a
Loan or REO the Servicer may, with the express written consent of the Issuer,
arrange to provide Issuer financing to the purchaser and for the Issuer to
receive the purchaser's note in the amount of the portion of the purchase price
remaining unpaid.
(d) The Disposition Proceeds shall immediately upon receipt be
deposited in the Collection Account.
Section 2.14. MODIFICATION, WAIVERS, AMENDMENTS AND
CONSENTS.
(a) Upon receipt by the Servicer of any request for a
modification, waiver or amendment of a Loan, the Servicer shall use reasonable
efforts to obtain and furnish to the Issuer operating statements for the related
Mortgaged Property for the most recent full calendar year for which operating
statements are available, the last annual rent roll for the related Mortgaged
Property, an estoppel certificate and a financial statement for each related
Obligor, each certified by the Obligor as being true and correct. The Servicer
shall agree to a modification, waiver or amendment of any term of a Loan only
with the Issuer's prior written consent; provided that the Servicer may, without
the Issuer's consent, waive an interest rate increase with respect to a variable
rate Loan if the Servicer determines that such increase would cause a default on
such
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Loan by the related Obligor. The Servicer may not reduce the interest rate of
any Loan to an interest rate lower than the weighted average interest rate of
the Notes then Outstanding and the Servicer may not extend the maturity of any
Loan to a date later than three years prior to the maturity of any Note then
Outstanding. All modifications, waivers or amendments of any Loan shall be in
writing.
(b) The Servicer may permit an Obligor to substitute
collateral for all or a portion of a Mortgaged Property (or other collateral
pledged as security for a Loan), pledge additional collateral for the Loan or
release part of the Mortgaged Property (or other collateral pledged as security
for a Loan), provided, however, the Servicer shall not permit an Obligor to
substitute or add any collateral pursuant to this Section unless (i) the
Servicer shall have first determined, based upon a report prepared by an
Independent Person who regularly conducts environmental audits, that such
collateral is in compliance with applicable environmental law, and that there
are no circumstances inherent at such collateral relating to the use, management
or disposal of any Hazardous Substances for which investigation, testing,
monitoring, containment, clean-up or remediation would be required under any
currently effective federal, state or local law or regulation, (ii) the Servicer
shall first obtain the written consent of the Issuer if the Principal Balance of
the Loan exceeds $250,000 and (iii) if the substitute collateral or the
additional collateral is real property, such substitution or addition will not
result in the downgrading, withdrawal or qualification of the rating of any
Class of Notes as confirmed in writing by each Rating Agency; provided further,
that the Servicer shall not effect any substitution or addition of collateral or
hold any such collateral that will have an adverse effect on the value of any
Loan, require the Indenture Trustee or the Issuer, respectively, to undertake
any additional duties or obligations or incur any additional expense or cause
the Issuer to become an investment company within the meaning of the Investment
Company Act of 1940, as amended (and for the purposes of making an investment
company determination, the Servicer may obtain an Opinion of Counsel as an
Issuer Expense). If the security interest in such collateral would be perfected
by possession or if such collateral is perishable or otherwise requires special
care or protection then, prior to agreeing to such substitution or addition of
collateral, the Servicer shall make arrangements for such possession, care or
protection.
(c) The Servicer may charge an Obligor for any reasonable,
actual, out-of-pocket costs and expenses incurred by the Servicer in connection
with any request for a consent, modification, waiver or amendment, provided that
the Servicer shall have given the Obligor prior notice of such charge.
(d) The Servicer shall notify the Indenture Trustee, the
Master Servicer and the Issuer of any modification, waiver or amendment of any
term of any Loan and the date thereof, and shall deliver to the Indenture
Trustee for deposit in the related Pledge Documents an executed copy of the
agreement relating to such modification, waiver or amendment, together with the
Mortgage Documents relating to any substitute or additional collateral given in
connection therewith, promptly following the execution thereof.
(e) The Servicer shall send to the Indenture Trustee notice of
and copies of any documentation relating to any assumption of a Loan, any sale
or other transfer of the related
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Mortgaged Property or the creation of any lien or other encumbrance with respect
to such Mortgaged Property.
Section 2.15. ADDITIONAL FEES.
The Servicer may charge an Obligor a reasonable or customary
modification fee, assumption fee, forebearance fee or similar fee, provided such
modification fee is included in the applicable Business Plan or is otherwise
approved by the Issuer. Such fees may be retained by the Servicer in each case
in which the review and approval of the proposed action by the Master Servicer
or the Issuer is not required. All other similar fees and reimbursements and any
additional fees charged by the Servicer or in an approved Business Plan, except
as otherwise expressly set forth in Section 2.14, shall be for the benefit of
the Issuer and shall immediately upon receipt be deposited in the Collection
Account.
Section 2.16. PROPERTY PROTECTION EXPENSES, DISPOSITION
EXPENSES OR PROPERTY IMPROVEMENT EXPENSES.
(a) All expenses incurred by the Servicer hereunder shall be
for its own account, without any right of reimbursement therefor, except for any
expenses that are Property Protection Expenses, Disposition Expenses or Property
Improvement Expenses made from its own funds.
(b) Property Protection Expenses, Disposition Expenses or
Property Improvement Expenses shall be paid by the Servicer from the Collection
Account as provided in Section 2.05 or, to the extent applicable, from an Escrow
Account or the Reserve Account. Anything in this Agreement to the contrary
notwithstanding, no Property Protection Expenses, Disposition Expenses or
Property Improvement Expenses shall be paid by the Servicer unless the Servicer
reasonably believes that such expenses are recoverable from payments and
collections on the related Loan or REO, out of Net Insurance Proceeds,
Disposition Proceeds or otherwise, or unless such expenses are required to
comply with applicable law; PROVIDED, HOWEVER, that the Servicer shall notify
the Master Servicer and the Issuer immediately upon its determination that any
such expense is not recoverable and thereafter proceed as directed by the Master
Servicer or the Issuer.
(c) The Servicer may effect a withdrawal from the Reserve
Account only (i) as provided in Section 2.05(b) or (ii) if (A) there are
insufficient funds to pay such expenses in any Escrow Account established for
the payment of such expenses and (B) such withdrawal is being made for the
exclusive purpose of, and shall be exclusively applied to the payment of,
capital expenses, tenant improvements or leasing commissions then due and
payable with respect to any Mortgaged Property or REO.
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Section 2.17. SERVICER TO CHECK FOR BREACHES OF
REPRESENTATIONS.
Each Seller made certain representations and warranties in its
Purchase Agreement and the Indenture Trustee may be entitled to certain remedies
if such representations and warranties should prove to be incorrect.
With respect to representations and warranties which, if
incorrect, result in a remedy of repurchase or cure, the Servicer shall at all
appropriate times (E.G., foreclosure of a Loan) attempt to determine whether any
representations and warranties remaining in effect were incorrect as to a
particular Asset. If the Servicer believes, in its reasonable judgment, that any
representation and warranty of any Seller made pursuant to the related Purchase
Agreement remaining in effect was incorrect, it shall promptly prepare and
deliver to _____, the Indenture Trustee and the Issuer a certificate in the form
attached hereto as Exhibit E specifying the relevant details. The Servicer shall
not be responsible for enforcing or pursuing the enforcement of any such remedy.
Section 2.18. RESERVED.
Section 2.19. THE SERVICER NOT REQUIRED TO MAKE ADVANCES.
The Servicer shall not be required to make any advances with
respect to the payment of principal or interest on the Notes or any Property
Protection Expenses, Disposition Expenses or Property Improvement Expenses. The
Servicer shall be entitled to reimbursement for advances made by it from its own
funds only for Property Protection Expenses, Disposition Expenses or Property
Improvement Expenses as provided in Section 2.16, plus interest on such amounts
at the _____ prime lending rate as in effect from time to time.
Section 2.20. POWER OF ATTORNEY.
The Servicer may request from the Issuer and the Indenture
Trustee a power of attorney with respect to each Asset and related assets
substantially in the form set forth as Exhibit F hereto. Any such request shall
be accompanied by a certification and power of attorney in form for execution in
the form set forth in Exhibit F. The Servicer agrees that it shall use such
power of attorney only in such respects as are consistent with the terms,
provisions and scope of authority of the Servicer under this Agreement. The
Servicer agrees to notify the Issuer if the Servicer receives from the Indenture
Trustee or the Issuer a revocation of any power of attorney theretofore given.
Any such revocation must be in writing and given in accordance with Section 6.05
hereof. The cost of recording such power of attorney shall be deemed a Property
Protection Expense.
Section 2.21. PRE-CLOSING INTEREST DISTRIBUTIONS; SUSPENSE
ACCOUNT; PROPERTY MANAGEMENT RECEIPTS.
(a) The Servicer shall remit to _____ from time to time any
amounts received by the Servicer prior to ________, 1998 and any amounts
received by the Servicer after
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____________, 1998 paid in respect of amount which became due prior to
_________, 1998 on any Asset which was not a Delinquent Loan or REO representing
Monthly Payments on the Loans. Such amounts have not been conveyed to the Issuer
and no security interest therein has been granted to the Indenture Trustee, and
shall not be subject to the Lien of the Indenture.
(b) The Servicer shall not deposit Conditional Receipts in the
Collection Account, but shall deposit Conditional Receipts in a Suspense Account
until such time as the proper application of such amounts has been determined.
(c) The Servicer shall not deposit to the Collection Account
amounts remitted to the Issuer or the Servicer on the Issuer's behalf pursuant
to a Qualifying Property Management Agreement by the subservicer thereunder
until the monthly date under such Qualifying Real Property Management Agreement
on which such subservicer is required to account to the Issuer or the Servicer
on the Issuer's behalf for (1) tenant lease payments and other amounts received
by such subservicer during the most recent month and (2) the amount of expenses
owed by the Issuer or the Servicer on the Issuer's behalf to the subservicer for
the most recent month.
Section 2.22. ISSUER DELEGATION OF RIGHTS.
The Issuer, in its sole discretion, may delegate its rights to
make decisions or give or withhold its approval or consent, with respect to
actions of the Servicer pursuant to this Agreement to the Master Servicer, so
long as _____ is the Master Servicer.
Section 2.23. ADDITIONAL SERVICING OBLIGATIONS.
(a) The Servicer shall inspect or cause to be inspected each
Mortgaged Property (other than Mortgaged Properties securing Loans that are not
Delinquent Loans with an outstanding principal balance less than $1,000,000), at
least once a year at its own expense and, if any Loan becomes a Delinquent Loan,
the related Mortgaged Property shall be inspected by the Servicer as soon as
practicable thereafter with the expense thereof being a Property Protection
Expense. On the basis of such inspections, the Servicer shall develop a schedule
of required maintenance, repairs or capital items for each Mortgaged Property
(the expense of which shall be a Property Protection Expense) and notify the
related Obligors of the work that needs to be performed.
(b) The Servicer shall use reasonable efforts (which shall
include at a minimum requests by telephone and mail) to collect and review
estoppel certificates with respect to each Loan, rent rolls and operating
statements with respect to each Mortgaged Property and a financial statement for
each Obligor on an annual basis, whether or not the Loan documents require the
Obligor to deliver such information to the lender. Within 90 days after the end
of each calendar year, the Servicer shall prepare and deliver to the Master
Servicer and the Issuer a summary report in matrix form, reasonably acceptable
to the Issuer, respecting such statements including but not limited to debt
service coverage ratios, occupancy percentages, net operating income and leases
in place cash flow analysis.
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(c) The Obligors have made certain continuing representations
and warranties in various Loan documents and the Issuer may be entitled to
certain remedies if such representations and warranties should prove to be
incorrect. The Servicer is familiar with such representations and warranties and
shall have in place reasonable industry standard procedures to check, whether
any of such representations and warranties were in fact incorrect and will use
reasonable efforts to pursue such remedies.
(d) The Servicer shall develop a written Business Plan for
each Loan that becomes a Delinquent Loan in respect of the payment of any
principal or interest due thereon within four weeks of the occurrence and
continuance of the default, including advising the Issuer as to actions
necessary or desirable to achieving collection, settlement or compromise of such
Loan or obtaining title to and subsequently disposing of any collateral securing
such Loan.
(e) The Servicer shall notify Obligors of any management
practices recommended in any environmental assessment and periodically take
reasonable steps to determine if they are being followed.
(f) The Servicer shall develop or cause to be developed
standard form Subordination and Nondisturbance Agreements and other commonly
used documents for use with respect to the Assets, the cost of which development
shall be a Property Protection Expense.
(g) The Servicer shall review each request for consent from an
Obligor, assemble all relevant legal documentation and analysis and property,
operating and leasing information and analysis and submit the same to the Issuer
with a memorandum containing a summary of the facts and the Servicer's
recommendation, and shall follow any instructions of the Issuer with respect
thereto.
(h) The Servicer shall advise the Master Servicer and the
Issuer promptly of any pending or threatened litigation of which it has received
notice with respect to the Issuer or any Asset.
(i) The Servicer shall maintain records, prepared by an
Authorized Officer, of each Final Recovery Determination until the earlier of
(i) its termination as Servicer hereunder and the transfer of such records to a
successor servicer and (ii) five years following the termination hereof.
Section 2.24. APPROVAL OF ESTIMATED BUDGETS AND PAYMENT
REQUESTS.
The Issuer shall review each estimated budget and Business
Plan prepared by the Servicer and submitted to the Issuer for approval and shall
give the Servicer and the Master Servicer prompt written notice of its approval
or rejection of such budget or Business Plan. In the event that the Issuer shall
reject an estimated budget or Business Plan submitted by the Servicer, the
Issuer, or the Master Servicer on behalf of the Issuer, shall promptly confer
with the Servicer regarding the reasons for its rejection of such budget or
Business Plan.
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ARTICLE THREE
STATEMENTS AND REPORTS
Section 3.01. REPORTING BY THE SERVICER.
(a) On or before (1) the [twenty-fourth] day of each month, or
if such day is not a Business Day, the next succeeding Business Day, the
Servicer shall render to the Master Servicer and (2) each Remittance Date, the
Servicer shall render to the Issuer, the Indenture Trustee and the Rating
Agencies, a report (the "Asset Status Report"), substantially in the form
attached hereto as Exhibit G, as of the close of the preceding Collection Period
reflecting activity since the end of the last Collection Period identified in
the previous report (or since the Closing Date in the case of the first report),
unless otherwise set forth below, setting forth the following:
(i) the aggregate deposits to and withdrawals from the
Collection Account and the Reserve Account for each category of deposit
and withdrawal permitted under this Agreement and the opening and
closing balances in such accounts;
(ii) a categorized list and aggregate amount of Property
Protection Expenses, Disposition Expenses and Property Improvement
Expenses paid or reimbursed, including any amounts paid from the
Reserve Account, together with the source of payment;
(iii) the amount of any Disposition Proceeds and a detailed
accounting of Net Disposition Proceeds, including, for each Loan, as
applicable, principal, accrued interest and prepayment penalty, and for
each REO, gross sales proceeds and itemized closing costs;
(iv) the amount of income from any Permitted Investments of
funds on deposit in the Collection Account;
(v) a summary of the Servicer's Certificates relating to
breaches of representations and warranties and the remedy for each;
(vi) a summary of material modifications, material waivers
or material amendments of any Loans;
(vii) an aged delinquency schedule of Delinquent Loans,
including days past due, accrued interest and next payment date;
(viii) as to any applicable Mortgaged Property or REO, a
budget of income and expenses for the period to be covered by the next
report, together with an itemized list of budgeted and actual income
and expenses for the preceding
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Collection Period and, where appropriate, an explanation for
differences between the budgeted and actual amounts;
(ix) with respect to each Loan, the aggregate amount of
Monthly Payments under the related Mortgage Notes, including Balloon
Payments, and of all full prepayments, the scheduled monthly principal
and interest due, the collected principal and interest for such Loan,
each stated separately in respect of the period covered by such report
and since the Closing Date to the end of such period;
(x) as to any Asset as to which a Final Recovery
Determination was made, (i) the date of such Final Recovery
Determination, (ii) the Principal Balance and the amount recovered with
respect to the related Asset and (iii) Obligor guarantee proceeds,
Obligor reimbursement proceeds and escrow proceeds, if any;
(xi) the loan number and amount of any principal prepayments
received;
(xii) the amount of any Servicing Fees and Disposition Fees
or other fees payable from the Collection Account and total accrual of
fees to the Master Servicer, if any;
(xiii) for each Loan, (A) the Principal Balance, (B) the
Principal Balance as of the Closing Date, (C) the performance status,
(D) number of days delinquent on a contractual basis, (E) the property
type and (F) the state;
(xiv) For each Non-Performing Loan, (A) the Principal
Balance, (B) the stated Maturity Date, (C) the property type, (D) the
state, (E) the estimated recovery value, and (F) the estimated recovery
date; and
(xv) for each REO, (A) the property type, (B) the state, (C)
the estimated recovery value and (D) the estimated recovery date.
(b) The Servicer shall also render to the Master Servicer, the
Rating Agencies, the Indenture Trustee and the Issuer, upon the request of any
of them, such other reports as the Servicer produces in the ordinary course of
business with respect to the Loans and REO and such other reports as are
necessary for tax or regulatory purposes. The Servicer shall also render to each
Rating Agency copies of any reports prepared by the Servicer for the Issuer
stating the operating results of the Servicer's management of Loans or REO. In
addition, the Servicer shall render to each Rating Agency such other information
with respect to the Loans and REO as may be reasonably requested by such Rating
Agency. Notwithstanding anything herein to the contrary, the reasonable
out-of-pocket costs and expenses of providing information to any Rating Agency
pursuant to the immediately preceding sentence shall be borne by the Issuer.
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Section 3.02. ANNUAL CERTIFICATE.
On or before each __________ 1, commencing in 1998, the
Servicer shall deliver to the Issuer, each Rating Agency, the Master Servicer
and the Indenture Trustee a Servicer's Certificate (i) to the effect as to each
signatory thereof that a review of the activities of the Servicer through the
end of the last Collection Period covered by a report pursuant to Section 3.01
has been made under the supervision of such officer and that, to the best of
such officer's knowledge, based on such review, the Servicer has fulfilled all
of its obligations under this Agreement throughout such period, or, if there has
been a default in the fulfillment of any such obligation, specifying each such
default known to such officer, the nature and status thereof and what action the
Servicer proposes to take with respect thereto and (ii) remaking, as of the date
of the certificate, the representations and warranties contained in Section 4.01
hereof.
Section 3.03. ANNUAL ACCOUNTANTS' REPORTS.
On or before 120 days after the end of the first fiscal year
of the Servicer that ends more than three months after the Closing Date and of
each fiscal year thereafter, the Servicer at its expense shall cause a firm of
independent public accountants (who may also render other services to the
Servicer) which is a member of the American Institute of Certified Public
Accountants to furnish a statement to the Indenture Trustee, the Master
Servicer, each Rating Agency and the Issuer to the effect that such firm has,
with respect to the Servicer's overall servicing operations examined such
operations in accordance with the requirements of the Uniform Single Attestation
Program for Mortgage Bankers, and in each case stating such firms' conclusions
relating thereto.
Section 3.04. TAX REPORTING WITH RESPECT TO FORECLOSURE
AND ABANDONED PROPERTY.
The Servicer shall report to the Internal Revenue Service and
to the related Obligor, in the manner required by applicable law, the
information required to be reported regarding interest collected or refunded on
the related Loan or any Mortgaged Property which is abandoned or foreclosed. The
Servicer shall deliver a copy of any such report to the Issuer, the Master
Servicer and the Indenture Trustee.
ARTICLE FOUR
SERVICER
Section 4.01. REPRESENTATIONS AND WARRANTIES CONCERNING
THE SERVICER.
The Servicer represents and warrants to the Issuer as follows:
(a) The Servicer (i) is a [corporation] duly organized,
validly existing and in good standing under the laws of
_________________________, (ii) has qualified or will qualify
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or is exempt from qualifying to do business as a foreign corporation and will
remain so qualified or exempt, and is and will remain in good standing, in each
jurisdiction where the character of its properties or the Trust Estate or the
nature of its activities makes such qualification necessary and in which failure
to so qualify would have a material adverse effect upon the Servicer or its
ability to perform its obligations hereunder, (iii) has and will have full
corporate power to own its property, to carry on its business as presently
conducted, and to enter into and perform its obligations under this Agreement
and (iv) has and will have all licenses or other governmental approvals
necessary to perform its obligations hereunder.
(b) The execution and delivery by the Servicer of this
Agreement have been duly authorized by all necessary corporate action on the
part of the Servicer. Neither the execution and delivery of this Agreement, nor
compliance with the provisions hereof, will conflict with or result in a breach
of, or constitute a default under, any of the provisions of any law,
governmental rule, regulation, judgment, decree or order binding on the Servicer
or its properties or the articles of incorporation of the Servicer, or any
material provisions of any indenture, mortgage, contract or other instrument to
which the Servicer is a party or by which it is bound or result in the creation
or imposition of any lien, charge or encumbrance upon any of its property
pursuant to the terms of any such indenture, mortgage, contract or other
instrument.
(c) The execution, delivery and performance by the Servicer of
this Agreement do not require the consent or approval of, the giving of notice
to, the registration with, or the taking of any other action in respect of, any
state, federal or other governmental authority or agency.
(d) This Agreement has been duly executed and delivered by the
Servicer and, assuming due authorization, execution and delivery by the other
parties hereto, constitutes a valid and binding obligation of the Servicer
enforceable against it in accordance with its terms (subject to applicable
bankruptcy and insolvency laws and other similar laws affecting the enforcement
of the rights of creditors generally).
(e) There are no actions, suits or proceedings pending or, to
the knowledge of the Servicer, threatened or likely to be asserted against or
affecting the Servicer before or by any court, administrative agency, arbitrator
or governmental body (i) with respect to any of the transactions contemplated by
this Agreement or the Indenture or (ii) with respect to any other matter which
in the judgment of the Servicer will be determined adversely to the Servicer or
if determined adversely to the Servicer, will materially and adversely affect it
or its business, assets, operations or condition, financial or otherwise, or
adversely affect the Servicer's ability to perform its obligations under this
Agreement. The Servicer is not in default with respect to any order of any
court, administrative agency, arbitrator or governmental body so as to
materially and adversely affect the transactions contemplated by the
above-mentioned documents.
(f) No consents, approvals, waivers or notifications of
stockholders, creditors, lessors or other nongovernmental persons are required
to be obtained by the Servicer in connection with the execution and delivery of
this Agreement and the consummation of all the transactions herein contemplated.
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(g) The Servicer has appointed an agent for process in
accordance with Section 6.11 hereof.
(h) The Servicer has reviewed the Preliminary Offering
Circular dated _______, 1998 and the Offering Circular dated __________, 1998,
prepared in connection with the offering of the Notes and, to the Servicer's
knowledge, the description of the Servicer, its assets and its operations does
not, as of the date hereof, contain an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading.
(i) The Servicer has obtained a fidelity bond and errors and
omissions insurance in accordance with Section 2.08(c) hereof.
Section 4.02. MERGER OR CONSOLIDATION OF THE SERVICER.
The Servicer will keep in full effect its existence, rights
and franchises as a corporation under the laws of __________________, and will
obtain and preserve its qualification to do business in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement, the Indenture or any of the Assets and to
perform its duties under this Agreement.
The Servicer may not be merged or consolidated other than with
a Qualified Affiliate, without the written consent of the Issuer, which consent
shall not be unreasonably denied. While any Notes are Outstanding, the Servicer
may not be merged or consolidated, unless the entity resulting from such merger
or consolidation is a Qualified Servicer. Any Person into which the Servicer may
be merged or consolidated, or any entity resulting from any merger or
consolidation to which the Servicer shall be a party, or any Person succeeding
to the business of the Servicer shall be the successor of the Servicer
hereunder, without the execution or filing of any paper or any further act on
the part of any of the parties hereto, anything herein to the contrary
notwithstanding.
Section 4.03. REMOVAL OF THE SERVICER.
(a) The Issuer may remove the Servicer as Servicer with
respect to all or some of the Assets after an Event of Default or appointment of
Replacement Management or any other exercise of remedies by the Indenture
Trustee in accordance with Article Six of the Indenture, upon 10 days notice to
the Servicer.
(b) Upon an Event of Default pursuant to Section 5.01(a)(iv),
(v) or (vi), the Servicer shall be deemed removed with respect to all of the
Assets and the Master Servicer shall be deemed successor Servicer, and no
further action or notification on the part of the Issuer or any other person
shall be required to effect the Servicers' removal and replacement.
(c) Upon removal of the Servicer pursuant to this Section
4.03, the Servicer, with respect to the applicable Asset(s), shall pay all
moneys in the Collection Account, the
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Reserve Account and any Escrow Accounts to the successor Servicer or any other
persons entitled thereto, shall pay over to the successor Servicer or any other
person entitled thereto all other moneys held by the Servicer and shall deliver
an accounting of all moneys collected and held by it, all Servicing Files
(including copies of electronic databases) and other documents and records
(including copies of loan servicing and accounting computer records on disk in a
software format reasonably acceptable to the Master Servicer) in its possession
relating to this Agreement or to any such Asset to the successor Servicer or any
other person entitled thereto and will use all reasonable efforts to effect the
orderly and efficient transfer of this Agreement (or such part thereof as has
been transferred) to the successor Servicer or any other person entitled
thereto. Notwithstanding the foregoing, the Servicer shall be entitled to
retain, with respect to the applicable Assets and upon delivery of an invoice
detailing the same to the successor Servicer, only the accrued and unpaid
Servicing Fee to the effective date of the servicing termination, the accrued
and unpaid Disposition Fees, not including the deferred portion thereof (payment
of which shall be deferred until the date that such amount would have been
payable had the Servicer not been removed), to the date the Servicer received
notice of its removal, any amounts it would have been permitted to receive
pursuant to Sections 2.07, 2.11, 2.15 and 2.16 as of the date of such removal,
any other reimbursement to which it would otherwise be entitled of amounts
theretofore advanced by it and any amounts payable pursuant to its rights under
Section 4.05, and thereafter shall have no further rights hereunder with respect
to such Assets.
Section 4.04. SERVICER RESIGNATION AND ASSIGNMENT.
(a) The Servicer may resign as Servicer with respect to all of
the Assets at any time upon 4 months notice to the Issuer; provided, however,
that no such resignation shall become effective unless and until a Qualified
Servicer enters into a servicing agreement with the Issuer in form and substance
substantially similar to this Agreement. All reasonable costs and expenses
incurred by the Issuer in connection with such resignation shall be paid by the
Servicer.
(b) The Servicer may not assign this Agreement or any of its
rights, powers, duties or obligations hereunder without the written consent of
the Issuer and unless such assignment is to a Qualified Servicer.
(c) The duties and obligations of the Servicer under this
Agreement shall continue until this Agreement shall have been terminated as
provided in Section 6.01, the Servicer resigns, pursuant to this Section 4.04 or
the Servicer is removed pursuant to Section 4.03, and shall otherwise survive
the exercise by the Issuer or the Indenture Trustee of any right or remedy under
this Agreement, or the enforcement by the Issuer, the Indenture Trustee or any
Noteholder of any provision of the Indenture, the Notes or this Agreement.
Section 4.05. LIABILITY OF THE SERVICER.
(a) Neither the Servicer nor any of the directors, officers,
employees or agents thereof shall be under any liability to the Issuer or any
third party for any action taken, or for refraining from the taking of any
action, in good faith pursuant to this Agreement, or for errors in business
judgment; provided, however, that the Servicer or any such Person shall be
liable for
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any breach of warranties or representations made herein, and for any liability
which would otherwise be imposed by reason of willful misconduct, bad faith,
negligence in the handling of funds or gross negligence, in the performance of
duties or by reason of reckless disregard of obligations or duties hereunder.
The Servicer and any director, officer, employee or agent of the Servicer may
rely in good faith on any document of any kind which, PRIMA FACIE, is properly
executed and submitted by any appropriate Person respecting any matters arising
hereunder. The Servicer and any director, officer, employee or agent of the
Servicer shall be indemnified and held harmless by the Trust Estate against any
loss, liability or expense (including reasonable attorneys' fees) incurred in
connection with any legal action relating to this Agreement, other than any
loss, liability or expense: (i) incurred by reason of any breach of warranties
or representation made herein, willful misconduct, bad faith, negligence in the
handling of funds or gross negligence in the performance of duties or by reason
of reckless disregard of obligation or duties hereunder; or (ii) incurred in
connection with any violation by it of any state or federal securities law; or
(iii) imposed by any taxing authority if such loss, liability or expense is not
specifically reimbursable pursuant to the terms of this Agreement and is not
reasonably characterized as a tax on the Assets; or (iv) incurred by reason of
its failure to observe the express terms of this Agreement. The Servicer shall
not be under any obligation to appear in, prosecute or defend any legal action
unless such action is related to its duties under this Agreement and appearing
in, prosecuting or defending such action does not expose it to any material
expense or liability; provided, however, that the Servicer may in its discretion
undertake any action related to its obligations hereunder that it may reasonably
deem necessary or desirable with respect to this Agreement and the rights and
duties of the parties hereto and the interests of the Issuer hereunder. In such
event, the legal expenses and costs of such action and any liability resulting
therefrom shall be Property Protection Expenses; provided, however, that no such
expenses, costs or liability shall be a Property Protection Expense to the
extent the Servicer's own breach of warranties or representations made herein,
willful misconduct, bad faith, negligence in the handling of funds or gross
negligence contributes to such expenses, costs or liabilities.
(b) The Servicer agrees to indemnify the Indenture Trustee
from, and hold it harmless against, any and all losses, liabilities, damages,
claims or expenses (including reasonable attorneys' fees) arising in respect of
the Servicer's acts or omissions in connection with this Agreement except to the
extent the Indenture Trustee's own bad faith, willful misconduct, negligence or
gross negligence contributes to the loss, liability, damage, claim or expense.
(c) The Servicer agrees to indemnify the Master Servicer from,
and hold it harmless against, any and all losses, liabilities, damages, claims
or expenses (including reasonable attorneys' fees) arising in respect of the
Servicer's acts or omissions in connection with this Agreement except to the
extent the Master Servicer's own bad faith, willful misconduct, negligence or
gross negligence contributes to the loss, liability, damage, claim or expense.
(d) The Servicer hereby agrees to indemnify the Issuer and
_____ (which is acknowledged hereby to be an intended third party beneficiary
hereof) for any liability imposed upon either of them as a result of any actual
or alleged material misstatement or omissions from any written information
regarding the Servicer that is provided by the Servicer specifically for use
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in any offering document for the Notes or for submission to the Rating Agencies
or any regulatory agency or body.
ARTICLE FIVE
DEFAULT
Section 5.01. EVENTS OF DEFAULT.
(a) Any of the following acts or occurrences shall constitute
an Event of Default by the Servicer under this Agreement:
(i) Any failure by the Servicer to remit to the Indenture
Trustee any amount required to be so remitted in accordance with the
terms of this Agreement that continues unremedied for one Business Day
after the date required to be remitted; or
(ii) Failure on the part of the Servicer duly to observe or
perform in any material respect its covenants set forth in Section
4.02; or
(iii) Failure on the part of the Servicer duly to observe or
perform in any material respect any other covenant or agreement on the
part of the Servicer in this Agreement (specifically including the
Servicer's agreement to adhere to the requirements of Sections 2.01,
2.17, 2.18, 2.23 and 3.01) that continues unremedied for a period of 30
days after the date on which written notice of such failure, requiring
the same to be remedied, shall have been given to the Servicer by the
Issuer; or
(iv) A decree or order of a court or agency or supervisory
authority having jurisdiction in respect of the Servicer for the
appointment of a conservator or receiver or liquidator in any
insolvency, readjustment of debt, marshaling of assets and liabilities
or similar proceeding, or for the winding-up or liquidation of its
affairs, shall have been entered against the Servicer and such decree
or order shall have remained in force undischarged or unstayed for a
period of 60 days; or
(v) The Servicer shall consent to the appointment of a
conservator or receiver or liquidator in any insolvency, readjustment
of debt, marshaling of assets and liabilities or similar proceeding of
or relating to the Servicer or of or relating to all or substantially
all of its property; or
(vi) The Servicer shall admit in writing its inability to
pay its debts generally as they become due, file a petition to take
advantage of any applicable insolvency or reorganization statute, make
an assignment for the benefit of its creditors, or voluntarily suspend
payment of its obligations; or
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(vii) Any representation, warranty or statement of the
Servicer made in this Agreement or any certificate, report or other
writing delivered pursuant hereto shall prove to be incorrect in any
material respect as of the time made and, within 30 days after written
notice thereof shall have been given to the Servicer by the Issuer, the
circumstance or condition in respect of which such representation,
warranty or statement was incorrect shall not have been eliminated or
otherwise cured.
(b) If any Event of Default shall have occurred and be
continuing, the Issuer (subject to the provisions of the Indenture), by notice
given to the Servicer (with a copy to the parties not giving such notice), shall
terminate all of the rights and powers of the Servicer under this Agreement. On
and after the receipt of any such notice, all rights, powers, duties and
responsibilities of the Servicer under this Agreement shall vest in and be
assumed by a Qualified Servicer appointed by the Issuer. The Issuer is hereby
authorized and empowered to execute and deliver, on behalf of the Servicer, as
attorney-in-fact or otherwise, all documents and other instruments (including
any notices to Obligors deemed necessary or advisable by the Issuer), and to do
or accomplish all other acts or things necessary or appropriate to effect such
vesting and assumption.
The Issuer, in addition to terminating all of the rights and
powers of the Servicer pursuant to the immediately preceding paragraph upon the
occurrence of an Event of Default of the type described in clause (i), (iii) or
(vii) above, may institute Proceedings for the collection of all amounts then
due from the Servicer under this Agreement or for the specific performance of
any provision of this Agreement. The Issuer shall be required to deal with any
amounts collected in any such Proceeding in the same manner as if such amounts
had been paid by the Servicer in accordance with the terms of this Agreement;
provided, however, that the Issuer shall be authorized to collect from the
Servicer, and the Servicer hereby agrees to pay, to the extent not prohibited by
applicable law, all reasonable expenses, disbursements and advances incurred or
made by the Issuer in connection with any such Proceeding (including the
reasonable compensation and the expenses and disbursements of the Issuer's
agents and counsel), except any such expenses, disbursement or advance as may be
attributable to the Issuer's negligence or bad faith, and any amounts so
recovered by the Indenture Trustee from the Servicer shall be for its own
account.
The Servicer agrees following termination of its rights and
powers under this Agreement pursuant to this Section 5.01(b) to deliver to any
successor the Servicer appointed hereunder (or the Issuer, if no one is so
appointed) all of its books and records, electronic and otherwise, relating to
the servicing of the Assets as well as all funds in its possession in the
Collection Account and other accounts maintained by it for the benefit of the
Issuer or the Indenture Trustee.
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Section 5.02. RIGHTS CUMULATIVE.
All rights and remedies from time to time conferred upon or
reserved to the Issuer, the Indenture Trustee or the Noteholders or to any or
all of the foregoing are cumulative, and none is intended to be exclusive of
another. No delay or omission in insisting upon the strict observance or
performance of any provision of this Agreement, or in exercising any right or
remedy, shall be construed as a waiver or relinquishment of such provision, nor
shall it impair such right or remedy. Every right and remedy may be exercised
from time to time and as often as deemed expedient.
ARTICLE SIX
MISCELLANEOUS PROVISIONS
Section 6.01. TERMINATION OF AGREEMENT.
The respective duties and obligations of the Servicer and the
Issuer created by this Agreement shall terminate upon the earlier to occur of
(i) the final payment or other liquidation of the last remaining Asset and (ii)
the satisfaction and discharge of the Indenture pursuant to Section 8.04 of the
Indenture. Upon the termination of this Agreement pursuant to this Section 6.01,
the Servicer shall pay all moneys in the Collection Account, the Reserve Account
and the Escrow Account to the persons entitled thereto, shall pay over to the
Issuer or any other person entitled thereto all other moneys held by the
Servicer and shall deliver all Servicing Files (including copies of electronic
databases on disk in a software format acceptable to the Master Servicer) and
other items in its possession relating to the Assets or its obligations
hereunder to the Issuer or any other person entitled thereto.
Section 6.02. AMENDMENT.
(a) This Agreement may be amended from time to time, without
the consent of any of the Noteholders or the Indenture Trustee, provided that
such action shall not adversely affect in any material respect the interests of
any Noteholder, as evidenced by an Opinion of Counsel to such effect.
(b) This Agreement may also be amended from time to time, with
the consent of the Indenture Trustee, for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Agreement, provided, however, that no such amendment shall, without consent of
each Noteholder, (i) reduce in any manner the amount of, or the timing of,
payments received on the related Assets which are required to be deposited in
the Collection Account; (ii) alter the priorities with which any allocation of
funds shall be made under this Agreement; permit the creation of any lien on the
Trust Estate or any portion thereof or deprive any such Noteholder of the
benefit of this Agreement with respect to the Trust Estate or any portion
thereof, except as otherwise permitted in the Indenture; or (iv) modify this
Section 6.02 or Section 4.04.
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(c) It shall not be necessary for any consent of Noteholders
under this Section 6.02 to approve the particular form of any proposed
amendment, but it shall be sufficient if such consent shall approve the
substance thereof. The manner of obtaining such consents and of evidencing the
authorization of the execution thereof by Noteholders shall be subject to such
reasonable regulations as the Indenture Trustee may prescribe.
Section 6.03. RIGHTS HEREUNDER OF THE INDENTURE TRUSTEE,
THE NOTEHOLDERS AND REPLACEMENT MANAGEMENT.
The Servicer acknowledges that, pursuant to the Indenture, the
Indenture Trustee, the Noteholders and Replacement Management, respectively,
have rights in certain circumstances (including circumstances involving an Event
of Default hereunder) to exercise, or demand that the Issuer exercise, the
rights and remedies available to the Issuer hereunder, and the Servicer hereby
agrees to the exercise, or demand of exercise, of such rights and remedies in
accordance with and subject to the terms and conditions of the Indenture. This
Agreement shall be assignable by the Issuer (including without limitation by way
of collateral assignment) to the Indenture Trustee or any other Person. The
Issuer and the Servicer hereby agree and acknowledge that the Indenture Trustee
and the Noteholders are intended third-party beneficiaries of all of the
provisions and terms of this Agreement. Notwithstanding anything set forth
herein, any notice required to be given to, or any consent required to be
obtained from, the Indenture Trustee or the Noteholders shall only be required
while Notes are outstanding under the Indenture.
Section 6.04. GOVERNING LAW.
THIS AGREEMENT AND ALL RIGHTS, REMEDIES, LIABILITIES, POWERS
AND DUTIES OF THE PARTIES TO THIS AGREEMENT, SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
Section 6.05. NOTICES.
All demands, notices and communications hereunder shall be in
writing and shall be delivered or mailed by registered or certified United
States mail, postage prepaid, and addressed in each case as follows: (a) if to
the Issuer, at _____________________________, Attention:
______________________________, with a copy to ___________________,
___________________, Attention: ______________; (b) if to the Servicer, at
_______________________________, Attention: _______________, (c) if to the
Indenture Trustee, at ____________________________, Attention:
_____________________ - ICIFC Secured Assets Corp., (d) if to the Master
Servicer, at _______________________, Attention: _________________ and (e) in
the case of an emergency pursuant to Section 2.01 [provide contacts]. Any of the
persons listed above may change its address for notices hereunder by giving
notice of such change to the other persons. All notices and demands shall be
deemed to have been given either at the time of the delivery thereof to any
officer of the person entitled to receive such notices and demands at the
address of such person for notices hereunder.
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Section 6.06. SEVERABILITY OF PROVISIONS.
If one or more of the provisions of this Agreement shall be
for any reason whatever held invalid or unenforceable, such provisions shall be
deemed severable from the remaining covenants, agreements and provisions of this
Agreement and such invalidity or unenforceability shall in no way affect the
validity or enforceability of such remaining provisions, the rights of any
parties hereto, or the rights of the Master Servicer, the Indenture Trustee or
any Noteholders. To the extent permitted by law, the parties hereto hereby waive
any provision of law that renders any provision of this Agreement invalid or
unenforceable in any respect.
Section 6.07. INSPECTION AND AUDIT RIGHTS.
At all times during the term of this Agreement and at all
times during the twelve-month period following the expiration or termination of
this Agreement, the Servicer shall maintain a Servicing File with respect to
each Loan. The Servicer agrees that, on reasonable prior notice, it will permit
any representative of the Indenture Trustee, the Master Servicer or the Issuer,
during the Servicer's normal business hours, to examine all the books of
account, records, reports and other papers of the Servicer relating to the
Assets or the servicing thereof, to make copies and extracts therefrom, to cause
such books to be audited by Independent Accountants selected by the Indenture
Trustee or the Issuer, as the case may be, and to discuss its affairs, finances
and accounts relating to the Assets with its officers, employees and Independent
Accountants (and by this provision the Servicer hereby authorizes such
Independent Accountants to discuss with such representatives such affairs,
finances and accounts), all at such reasonable times and as often as may be
reasonably requested. Any cost incurred by the Indenture Trustee, the Master
Servicer or the Issuer in connection with the exercise of its rights under this
Section 6.07 shall be borne by the Indenture Trustee, the Master Servicer or the
Issuer, as the case may be, provided that if an audit is made during the
continuance of an Event of Default, the expense incidental to such audit shall
in all cases be borne by the Servicer.
Section 6.08. BINDING EFFECT: NO OTHER BENEFICIARIES.
The provisions of this Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of each of the
parties hereto. Except as expressly provided herein, no Person not a party
hereto shall have any rights or benefits hereunder.
Section 6.09. ARTICLE AND SECTION HEADINGS.
The article and section headings herein are for convenience of
reference only, and shall not limit or otherwise affect the meaning thereof.
Section 6.10. EFFECT OF TERMS OF INDENTURE.
So long as the Notes are outstanding, the Servicer hereby
acknowledges and agrees to be bound by the terms of the Indenture applicable to
it.
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Section 6.11. SUBMISSION TO JURISDICTION; APPOINTMENT OF
AGENT FOR SERVICE OF PROCESS.
Each party hereby irrevocably and unconditionally agrees (i)
to be subject to the jurisdiction of the courts of the State of New York and of
the federal courts sitting in the State of New York, and (ii) (A) to the extent
such party is not otherwise subject to service of process in the State of New
York, to appoint and maintain an agent in the State of New York as such party's
agent for acceptance of legal process, and (B) that service of process may also
be made on such party by prepaid certified mail with a proof of mailing receipt
validated by the United States Postal Service constituting evidence of valid
service, and that service made pursuant to (ii)(A) or (B) above shall have the
same legal force and effect as if served upon such party personally within the
State of New York.
* * *
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IN WITNESS WHEREOF, the Issuer, the Master Servicer and the
Servicer have caused this Agreement to be duly executed by their respective
officers thereunto duly authorized as of the day and year first above written.
ICIFC SECURED ASSETS CORP.
By: [TRUSTEE],
as Issuer Trustee
By:____________________________
Name:
Title:
[MASTER SERVICER]
By:___________________________________
Name:
Title:
[SERVICER]
By:___________________________________
Name:
Title:
EXHIBIT A-1
-----------
SELLER PURCHASE AGREEMENT
------ ------------------
A-1 (1)
EXHIBIT A-2
-----------
LOANS
Control
NUMBER PROPERTY NAME CITY STATE
----------------- ---------------------- ---------------------- ----------
A-2 (1)
EXHIBIT B
---------
REQUEST FOR RELEASE
Date:_____________
To: ____________________________________________, Indenture Trustee
Re: ICIFC Secured Assets Corp.
[RER] Control No.: _________ Loan Name: ___________________
Loan No.: _____________________ Obligor Name: ________________
City or County: _______________ State: _______________________
_____ All loan documents are requested in connection with the full payoff of
the subject loan, payment for which has been or will be deposited in
the Collection Account.
_____ All loan documents are requested in connection with the anticipated
settlement of the subject loan and the settlement monies will be
deposited in the Collection Account upon receipt.
_____ All loan documents are requested in connection with the anticipated
sale of the subject loan and the settlement monies will be deposited in
the Collection Account upon receipt.
_____ Final Recovery Determination
The undersigned hereby certifies that all amounts received or to be
received in connection with the above-referenced Loan which are
required to be deposited in the Collection Account have been or will be
so deposited.
_____ All loan documents are requested in connection with the anticipated
foreclosure of the loan.
_____ All loan documents are requested in connection with litigation
involving the loan.
_____ All loan documents are requested for use in the preparation of partial
release of property described as:
---------------------------------------------------------------------
_____ ---------------------------------------------------------------------
The Promissory Note contained in the Loan Documents is to be stamped
"PAID IN FULL".
B-1
_____ The Promissory Note contained in the Loan Documents is NOT to be
stamped "PAID IN FULL".
Documents requested:
_____ are to be executed by the Indenture Trustee
_____ are to be executed by the Issuer
_____ are not to be executed by the Indenture Trustee or the Issuer
The documents requested to be executed by the Indenture Trustee or the
Issuer, if any, are reasonably required.
The undersigned, on behalf of the Servicer, hereby certifies that this
request is made in accordance with the Servicing Agreement dated as of , 1998
among ICIFC Secured Assets Corp., ___________________, Master Servicer, and ,
Servicer. The Servicer will return to the Indenture Trustee the requested
documents when the Servicer's need therefor has ended, unless the documents
requested are to be delivered to a third party pursuant to a reconveyance. The
undersigned hereby acknowledges that it will hold such documents as agent and
bailee of the Indenture Trustee.
-------------------------
Authorized Officer
B-2
EXHIBIT C
---------
SERVICING FILES
1. Note
2. Modification(s) of Note (dated: )
3. Endorsement(s) of Note by Each Payee to BT
4. Mortgage/Deed of Trust
5. Modification(s) of Mortgage/Deed of Trust (dated: )
--------
6. Assignment(s) of Mortgage by Each Mortgagee to BT
7. Does Mortgage/DOT restrict sale/transfer/assignment by Mortgagor?
8. Assignment of Leases and Rents
9. Modification(s) of Assignment of Leases and Rents (dated: )
--------
10. Assignment() of Assignment of Leases and Rents by Each Mortgagee to BT
11. Guarantee
12. Loan Application, Loan Agreement or Commitment Letter
13. Loan Application Approval
14. Title Policy
15. Note: Policy Number, Date, Issuing Company, Telephone/Fax #s of Issuing
Office
16. Bring Down of Title Status to date of last transfer (dated: )
--------
17. Endorsement of Policy by Each Insured to BT
18. Amount of Coverage under Policy
19. Evidence that all real taxes due have been paid (to date: )
--------
20. Evidence of single tax lot
C-1
21. Insurance - Fire & Hazard
22. Carrier, Amount, Effective Dates, covers ____ as additional
insured/mortgagee?
23. Insurance - Owner's Liability
24. UCC
25. Assignment (UCC-2 or UCC-3) of Financing Statement to ___
26. Attorney's Opinion
27. Any limitations (contractual or statutory) noted on enforcement of the
loan?
28. Survey
29. Plans and Specifications
30. Environmental Assessment (if so, reproduce conclusion paragraph below)
31. Indemnity for Hazardous Substances
32. Mechanical/Structure Engineering Assessment
33. Property Inspection Report (dated: )
--------
34. Cash Collateral (L/Cs, Bonds, Securities)
35. Partnership Agreement
36. Corp. Borrowing Resolution
37. Pledge Agreement(s)
38. Security Agreement
39. Participation Agreement(s)
40. Form of Space Lease
41. Rent Roll
42. Date:
43. Ground Lease
C-2
44. Non-Disturbance Agreements - which tenants covered?
45. Easement Agreement
46. Reciprocal Easement Agreement for Shopping Center Properties? Any
operating name covenants, continuous operation covenants, termination
provisions burdening BT's security?
47. Trust Agreement
48. Estoppels from tenants:
from lender:
49. Business Interruption Insurance
50. Term of Coverage
51. Cross Default with Other Loans
52. Hotel Franchise, Management or License Agreement, if applicable
53. Appraisal
54. Financial Statements - Borrower (dated: )
Evidence of Bankruptcy or Receiver Appointed?
55. Financial Statements - Guarantor (dated: )
--------
56. Operating Statements (dated: )
--------
57. Certificate of Occupancy
58. Property Inspection Reports
59. Correspondence File
60. Releases, Waiver, Satisfactions
C-3
EXHIBIT D
---------
ELECTRONIC DATABASE FIELDS
D-1
EXHIBIT E
---------
-------------------
[Indenture Trustee]
Re: ICIFC Secured Assets Corp. Servicer Certificate
Pursuant to Section 2.17 of Servicing Agreement
Dear Ladies and Gentlemen:
In connection with our obligations set forth in Section 2.17
of the Servicing Agreement dated as of _____________, 1998 between ICIFC Secured
Assets Corp. (the "Issuer"), and [Servicer], as Servicer, to determine whether
any representations and warranties made by a Seller remaining in effect were
incorrect. Capitalized terms not otherwise defined herein have the meaning set
forth in the Servicing Agreement.
Investor Loan No.:
Name:
State:
Purchase Agreement Date and Seller Name:
Clause of Purchase Agreement
containing breached representation or warranty:
[Servicer],
Authorized Officer
E-1
EXHIBIT F
---------
LOAN NO.__________
LIMITED POWER OF ATTORNEY
-------------------------
KNOW ALL MEN by these presents that the undersigned ICIFC
SECURED ASSETS CORP., a Delaware business trust (the "Issuer"), acting through
[Trustee], its trustee ("Issuer Trustee"), and _____________________ (the
"Indenture Trustee") whose address for purposes of this Limited Power of
Attorney is __________________________, Attention: __________________________
-ICIFC Secured Assets Corp., under that certain Indenture, dated as of
__________, 1998 (the "Indenture") between the Issuer and the Indenture Trustee,
pursuant to Section 6.08 of the Indenture, hereby make, constitute and appoint ,
acting in its capacity as servicer under the Servicing Agreement referred to
below and by and through the officers named in Schedule I attached hereto and
made a part hereof, as the true and lawful attorney-in-fact for the Issuer and
the Indenture Trustee (but such appointment is expressly limited to the
Indenture Trustee's capacity as Indenture Trustee under the Indenture) and in
the name, place and stead of the Issuer and the Indenture Trustee, and for the
use and benefit of the Issuer and the Indenture Trustee with respect to such
loan and other asset(s) more particularly described on EXHIBIT A attached hereto
and made a part hereof (the "Asset"), and in accordance with the provisions
hereof and the applicable terms and conditions of the Indenture and Servicing
Agreement:
1. To transfer, sell, convey or assign the Asset to a person, entity or nominee
such that such transferee or assignee may act, in lieu of the Issuer or the
Indenture Trustee, for matters related to the Asset as are specified herein and
so long as such acts are consistent with the limitations imposed on said
attorney-in-fact herein and in the Servicing Agreement, dated as of
____________, 1998 among the Issuer, _____ and said attorney-in-fact (the
"Servicing Agreement").
2. To ask, demand, recover, collect, receive, hold, possess
all sums of money, debts, dues, goods, wares, merchandise, chattels, effects,
bonds, notes, checks, drafts, accounts, deposits, safe deposit boxes, interest,
dividends, stock certificates, certificates of deposit, insurance benefits and
proceeds, documents of title, personal and real property, tangible and
intangible property, and property rights, liquidated and unliquidated, which now
are or hereafter shall be or become due, owing, payable, or belonging to the
Issuer or the Indenture Trustee, in respect of the Asset and upon receipt
thereof or any part thereof, to make, sign, execute and
F-1
deliver such receipts, releases or other discharges for the same as said
attorney-in-fact shall deem necessary or appropriate.
3. To lease, purchase and acquire and to bargain, contract and
agree for the lease, purchase and acquisition of and to take, receive, possess
and manage any real or personal property related in any way to the Asset,
tangible and intangible, or any interest therein, on such terms and conditions
and under such covenants as said attorney-in-fact shall reasonably deem
necessary or appropriate.
4. To enter into and upon each of the real properties
constituting a part of or related in any way to the Asset and to let, manage and
improve such real property and to list, manage and improve the real property or
any part thereof and to repair and otherwise improve or alter and to insure any
buildings or structures thereon.
5. To market and sell, either at public or private sale any
part or parts of the Issuer's or the Indenture Trustee's real or personal
properties relating to the Asset, including indebtedness or evidence thereof
constituting a part of or relating in any way to the Asset for such
consideration upon such terms as said attorney-in-fact shall think necessary or
appropriate including sales on credit, and for that purpose to bargain, contract
and agree with respect to the sale of such properties and to execute and deliver
good and sufficient deeds, bills of sale, assignments or other instruments or
endorsements for the conveyance or transfer of the same with such limited
covenants of warranty of ownership through or under the Issuer or the Indenture
Trustee, as applicable, and not otherwise as said attorney-in-fact shall
reasonably deem necessary or appropriate and to give receipts for all or part of
the purchase price or other consideration.
6. To sign, endorse, execute, acknowledge, deliver, receive
and possess such applications, contracts, agreements, options, covenants, deeds,
conveyances, trust deeds, security agreements, bills of sale, leases, mortgages,
assignments, insurance policies, bills of lading, warehouse receipts, documents
of title, bills, bonds, debentures, checks, drafts, bills of exchange, notes,
stock certificates, proxies, warrants, commercial paper, receipts, withdrawal
receipts and deposit instruments related to accounts or deposits in or
certificates of deposit of banks, savings and loan or other institutions as
associations, proofs of loss, evidence of debts, partial or full releases and
satisfactions or mortgages, judgments, liens, security agreements and other
debts and obligations and other instruments in writing of whatever kind and
nature as may be necessary and proper in the exercise of the rights and powers
herein granted related to the Asset.
7. To deposit any monies which may come to said
attorney-in-fact in such capacity in either: (i) any account permitted pursuant
to the terms of the Indenture or the Servicing Agreement or (ii) any temporary
account created with respect to the Asset by or under the jurisdiction of any
court.
8. To engage, employ, dismiss any agents, accountants,
advisors, consultants, attorneys, property managers, brokers or other persons in
the performance of these presents as may be required by law, rule or regulation
or as attorney-in-fact shall reasonably deem proper or with prior written
consent of the Indenture Trustee to appoint substitute attorneys-in-fact, as
F-2
said attorney-in-fact reasonably deems proper regarding the Asset.
9. To make demands, appoint or replace trustee or substitute
trustees, give notice of default, notices of intent to accelerate, notices of
acceleration or such other notices as the attorney-in-fact reasonably deems
necessary or appropriate and to take other actions and exercise other rights
which may be taken by the Issuer or the Indenture Trustee under the terms of any
loan agreements, security agreements, guarantees or other documents or
agreements evidencing or otherwise related to the Asset including foreclosure,
lease, sale, taking possession of, realization upon or any other disposition of
any Asset or any collateral there for or guarantee thereof.
10. To βββ on or otherwise prosecute any claim or cause of
action or commence or seek any legal or equitable, administrative or other
remedy in any legal, administrative, arbitration, mediation or other proceeding
whatsoever including non-judicial repossessions and foreclosures or similar
actions to recover collateral, to compromise, settle or receive or make, execute
or deliver any endorsements, acquittances, releases, receipts or other
discharges of any claim, cause of action, determination, judgment or other
proceeding for or in the name of the Issuer or the Indenture Trustee related to
the Asset.
11. To sign any federal or state or local tax information
form, disclosure, protest or affidavit relating to the Asset.
12. To otherwise act or take such action as is permitted to be
taken by the attorney-in-fact appointed hereunder pursuant to the Servicing
Agreement.
This instrument is to be construed and interpreted as a
Limited Power of Attorney regarding the Asset. The foregoing enumeration of
specific items, acts, rights and powers is not intended to, nor does it give
rise to, and it is not to be construed as general power of attorney in respect
of the Asset. Should any provision of this Power of Attorney be held to be
invalid or unenforceable, such provision shall be deemed severed from this
instrument and remaining provisions of this Power of Attorney shall remain in
full force and effect.
The attorney-in-fact appointed hereunder shall not be
obligated to furnish bond or other security in connection with the actions
hereunder.
This Limited Power of Attorney is executed by the Indenture
Trustee solely in its capacity as trustee under the Indenture and not
individually and by the Issuer as the owner of the Asset. The Issuer acquired
the Asset pursuant to an Assignment and Assumption of Mortgage, Fixture Filing
and Other Documents, dated as of ______________, 1998, from _____. Pursuant to
the Indenture, the Issuer granted to the Indenture Trustee, for the benefit of
holders of the Issuer's Secured Notes, Series 199__-__ (the "Notes"), a security
interest in all of the Issuer's right, title and interest in the Asset and
certain related instruments.
Nothing herein shall be deemed to amend or modify the
Indenture or Servicing Agreement and the respective rights and obligations of
the Indenture Trustee, the Issuer and the
F-3
attorney-in-fact as service thereunder. Notice is hereby given that neither the
Indenture Trustee nor the Issuer shall be liable for any misuse of this power.
Until 11:59 p.m. on the first day of the calendar month which
begins more than three full years after the date of execution hereof, this
instrument shall continue in full force and effect unless it is earlier revoked
as provided below by either the Issuer or the Indenture Trustee or modified by
the Issuer and the Indenture Trustee by a written instrument, PROVIDED, HOWEVER,
that such revocation or modification shall in no way effect any obligations or
liabilities of the Issuer or the Indenture Trustee lawfully incurred by such
attorney-in-fact on behalf of the Issuer or the Indenture Trustee pursuant
hereto, prior to the date of the written revocation or modification and provided
further that in the event this instrument is so modified it shall continue in
full force and effect except as so modified.
This Limited Power of Attorney shall remain in effect until
the earliest to occur of one of the following events: (i) a revocation executed
by either the Indenture Trustee or the Issuer; (ii) the suspension or
termination of the attorney-in-fact under the Servicing Agreement or Indenture;
or (iii) the transfer of servicing under the Indenture or Servicing Agreement;
PROVIDED, HOWEVER, that absent actual knowledge of any such events on the part
of any person dealing with the attorney-in-fact, this limited Power of Attorney
shall remain effective, absent actual notice to the contrary, as against any
person dealing with the attorney-in-fact unless a written instrument of
revocation executed by the Indenture Trustee or the Issuer is recorded in the
Real Property Records of the jurisdiction in which the real property described
on EXHIBIT A is located. Parties dealing with or acting in reliance on this
Power of Attorney shall not be required to inquire, verify or otherwise
determine the status of said attorney-in-fact or the authorization for the
actions taken hereunder, nor shall such parties have any duty or obligation,
before relying on this Limited Power of Attorney, to inquire, verify or
otherwise determine that this Power of Attorney is unmodified and unrevoked.
IN WITNESS WHEREOF, the Issuer, acting through the Issuer
Trustee, and the Indenture Trustee have each hereunto caused this Power of
Attorney to be signed in the names of their respective appointed representative
or authorized officer by authority granted under the Indenture this th day of ,
1998.
ISSUER
ICIFC SECURED ASSETS CORP.
By: [Trustee],
as Issuer Trustee
By: _____________________
Name:
Title:
F-4
INDENTURE TRUSTEE
-----------------
___________________, as Indenture Trustee
and not in its individual capacity
By: ____________________
Name:
Title:
β-β
βββββ ββ βββ ββββ )
)
COUNTY OF NEW YORK )
On the ___th day of , 1998, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say that
s/he resides at ______________________; that s/he is the of [Trustee], as Issuer
Trustee, the corporation that executed the above instrument; and that s/he
signed her/his name thereto by order of the Board of Directors of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
[NOTARIAL SEAL]
---------------------------------
Notary Public
STATE OF NEW YORK )
)
COUNTY OF NEW YORK )
On the _____th day of , 1998, before me personally came ,
to me known, who, being by me duly sworn, did depose
and say that s/he
resides at _____________________, ______________; that s/he is the
_______________________ of _________________________________, as Indenture
Trustee, the corporation that executed the above instrument; and that s/he
signed her/his name thereto by order of the Board of Directors of said
corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
[NOTARIAL SEAL] __________________________
Notary Public
F-6
EXHIBIT G
---------
ASSET STATUS REPORT*
-------------------------------
* _________ to provide.
G-1
EXHIBIT G
---------
_______________________________, SERVICER
___________________, MASTER SERVICER,
ICIFC SECURED ASSETS CORP., ISSUER
COLLECTION ACCOUNT STATUS REPORT
COLLECTION PERIOD: ________, 1998 TO ___________, 1998
REMITTANCE DATE: ___________, 1998
Collection Account Status Amount Comments
BEGINNING BALANCE 0.00
Deposits per Section 2.04
(i)Principal Payments 0.00
Principal Prepayments 0.00
(ii)Interest Payments 0.00
(iii)Net Insurance and Disposition Proceeds 0.00
(iv)Net REO Proceeds 0.00
(v)Investment Income 0.00
Total Deposits 0.00
Withdrawals per Section 2.05
(i)To correct funds deposited in error 0.00
(ii)Servicing Fees 0.00
Disposition Fees 0.00
Master Servicing Fees 0.00
(iii)Reimbursement for Advances 0.00
by Master Servicer & Interest thereon
(iv)Operating and Administrative Expenses 0.00
Emergency Expenses
(v) Amounts to third parties to purchase or effect
the release of encumbrances permitted under the 0.00
Indenture
(vi)Remittance to Payment Account 0.00
Total Withdrawals 0.00
ENDING BALANCE 0.00
G-2
_______________________________, SERVICER
ICIFC SECURED ASSETS CORP., ISSUER
___________________, MASTER SERVICER
EXPENSE SUMMARY
FOR THE PERIOD ENDING ____________, 1998
Summary of Expenses
Property Protection Expenses 0.00
Property Improvement Expenses 0.00
Disposition Expenses 0.00
Total 0.00
________ of Payment
Collection Account 0.00
Reserve Account 0.00
Escrow Account 0.00
Master Servicer Advance 0.00
Total 0.00
G-3
_______________________________, SERVICER
ICIFC SECURED ASSETS CORP., ISSUER
___________________, MASTER SERVICER
EXPENSE DETAIL
FOR THE PERIOD ENDING ____________, 1998
DATE EXPENSE EXPENSE
ASSET # ASSET NAME PAID AMOUNT TYPE CATEGORY
-------------------------------------------------------------------------------------------------------------------------
1 Sample 1 mm/dd/yy 0.00 Property Protection Taxes
mm/dd/yy 0.00 Property Improvement Landscaping
mm/dd/yy 0.00 Disposition Sales Commissions
Total Sample 1 0.00
2 Sample 2 mm/dd/yy 0.00 Legal
Total Sample 2 0.00
GRAND TOTAL 0.00
G-4
_______________________________, SERVICER
ICIFC SECURED ASSETS CORP., ISSUER
___________________, MASTER SERVICER
DISPOSITION REPORT
FOR THE PERIOD __________, 1998 TO ____________, 1998
DISPOSITION PROCEEDS
PREPAYMENT GROSS REO
ASSET # ASSET NAME LOAN/REO PRINCIPAL INTEREST PENALTIES SALES PROCEEDS
----------------------------------------------------------------------------------------------------------------------------
1 Sample 1 Loan $2,500,000.00 $0.00 $0.00 $0.00
2 Sample 2 Loan $3,000,000.00 $250,000.00 $0.00 $0.00
----------------------------------------------------------------------------
Loan Subtotal $5,500,000.00 $250,000.00 $0.00 $0.00
----------------------------------------------------------------------------
3 Sample 3 REO $0.00 $0.00 $0.00 $5,000,000.00
4 Sample 4 REO $0.00 $0.00 $0.00 $1,000,000.00
----------------------------------------------------------------------------
REO Subtotal $0.00 $0.00 $0.00 $6,000,000.00
----------------------------------------------------------------------------
----------------------------------------------------------------------------
Total $5,500,000.00 $250,000.00 $0.00 $6,000,000.00
============================================================================
TOTAL TOTAL
GROSS DISPOSITION DISPOSITION NET DISPOSITION
ASSET # ASSET NAME LOAN/REO PROCEEDS EXPENSES PROCEEDS
-------------------------------------------------------------------------------------------------------------
1 Sample 1 Loan $2,500,000.00 $0.00 $2,500,000.00
2 Sample 2 Loan $3,250,000.00 $0.00 $3,250,000.00
-----------------------------------------------------------
Loan Subtotal $5,750,000.00 $0.00 $5,750,000.00
-----------------------------------------------------------
3 Sample 3 REO $5,000,000.00 ($75,000.00) $4,925,000.00
4 Sample 4 REO $1,000,000.00 ($25,000.00) $975,000.00
-----------------------------------------------------------
REO Subtotal $6,000,000.00 ($100,000.00) $5,900,000.00
-----------------------------------------------------------
-----------------------------------------------------------
Total $11,750,000.00 ($100,000.00) $11,650,000.00
===========================================================
G-5
_______________________________, SERVICER
ICIFC SECURED ASSETS CORP., ISSUER
___________________, MASTER SERVICER
SUMMARY OF SERVICER CERTIFICATES
BREACHES OF REPRESENTATIONS AND WARRANTIES
AS OF ___________, 1998
DATE OF APPLICABLE CLAUSE ESTIMATED
SERVICER'S OF PURCHASE RESULTING RESOLUTION
ASSET # NAME STATE CERTIFICATE AGREEMENT LOSS REMEDY DATE
----------------------------------------------------------------------------------------------------------------------------------
1 Sample 1 NY mm/dd/yy 0.00 mm/dd/yy
2 Sample 2 CA mm/dd/yy 0.00
3 Sample 3 MA mm/dd/yy 0.00
G-6
_________________________, SERVICER
ICIFC SECURED ASSETS CORP., ISSUER
___________________, MASTER SERVICER
SUMMARY OF MODIFICATIONS, WAIVERS AND AMENDMENTS
AS OF ___________, 1998
DATE OF
MODIFICATION
LOAN # NAME OFFICER WAIVER OF AMENDMENT DESCRIPTION
-----------------------------------------------------------------------------
1 Sample 1
2 Sample 2
3 Sample 3
G-7
_________________________, SERVICER
ICIFC SECURED ASSETS CORP., ISSUER
___________________, MASTER SERVICER
DELINQUENCY REPORT
AS OF ___________, 1998
OUTSTANDING # DAYS ACCRUED NEXT
LOAN # LOAN NAME PRINCIPAL BALANCE PAST DUE INTEREST PAYMENT DATE
0-29 Days Past Due
1 Sample 1 0.00 0 0.00 mm/dd/yy
2 Sample 2 0.00 0 0.00 mm/dd/yy
3 Sample 3 0.00 0 0.00 mm/dd/yy
30-59 Days Past Due
4 Sample 1 0.00 0 0.00 mm/dd/yy
60-89 Days Past Due
5 Sample 1 0.00 0 0.00 mm/dd/yy
6 Sample 2 0.00 0 0.00 mm/dd/yy
90+ Days Past Due
7 Sample 1 0.00 0 0.00 mm/dd/yy
G-8
_________________________, SERVICER
ICIFC SECURED ASSETS CORP., ISSUER
___________________, MASTER SERVICER
BUDGET-TO-ACTUAL REPORT
AS OF __________, 1998
Asset #
Asset Name
Officer
CURRENT PERIOD CURRENT PERIOD CURRENT PERIOD NEXT PERIOD
BUDGET ACTUAL VARIANCE BUDGET
--------------------------------------------------------------------------------------------------------------------------------
Income
Rent Revenue 0 0 0 0
Other 0 0 0 0
Total Income 0 0 0 0
Expense: Operating
Operating 0 0 0 0
Taxes 0 0 0 0
Insurance 0 0 0 0
Expenses: Non-Operating
Legal 0 0 0 0
Tenant Improvements 0 0 0 0
Capital Improvements 0 0 0 0
Leasing Commissions 0 0 0 0
Other 0 0 0 0
Total Expense 0 0 0 0
Net Income/(Expense) 0 0 0 0
---------------------- ---------------------- ---------------------- ----------------------
G-9
_________________________, SERVICER
ICIFC SECURED ASSETS CORP., ISSUER
___________________, MASTER SERVICER
MONTHLY PAYMENTS AND FULL PREPAYMENTS
AS OF ___________, 1998
CURRENT COLLECTION PERIOD INCEPTION-TO-DATE
MONTHLY BALLOON PRINCIPAL FULL MONTHLY BALLOON PRINCIPAL FULL
LOAN # LOAN NAME P&I PAYMENTS PREPAYMENTS PREPAYMENTS P&I PAYMENTS PREPAYMENTS PREPAYMENTS
--------------------------------------------------------------------------------------------------------------------
1 Sample 1 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
2 Sample 2 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
3 Sample 3 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
Total 0.00 0.00 0.00 0.00 0.00 0.00 0.00 0.00
G-10
_________________________, SERVICER
ICIFC SECURED ASSETS CORP., ISSUER
___________________, MASTER SERVICER
MONTHLY PAYMENTS AND FULL PREPAYMENTS
AS OF ___________, 1998
FINAL RECOVERY
DETERMINATION PRINCIPAL BOOK RESULTING GUARANTEE REIMBURSEMENT ESCROW
ASSET # NAME DATE BALANCE VALUE LOSS PROCEEDS PROCEEDS PROCEEDS
-----------------------------------------------------------------------------------------------------------
1 Sample 1 MM/DD/YY 0.00 0.00 0.00 0.00 0.00 0.00
2 Sample 2 MM/DD/YY 0.00 0.00 0.00 0.00 0.00 0.00
3 Sample 3 MM/DD/YY 0.00 0.00 0.00 0.00 0.00 0.00
Total 0.00 0.00
G-11
_________________________, SERVICER
ICIFC SECURED ASSETS CORP., ISSUER
___________________, MASTER SERVICER
CALCULATION OF SERVICING FEES
FOR PERIOD _________, 1998 TO ___________, 1998
OUTSTANDING PRINCIPAL SERVICE
LOAN # LOAN NAME BALANCE AS OF ________ FEE RATE FEE
--------------------------------------------------------------------------------------------
1 Sample 1 0.00 0.350% 0.00
2 Sample 2 0.00 0.350% 0.00
3 Sample 3 0.00 0.350% 0.00
Total 0.00 0.00
G-12
_________________________, SERVICER
ICIFC SECURED ASSETS CORP., ISSUER
___________________, MASTER SERVICER
CALCULATION OF DISPOSITION FEES
FOR PERIOD ___________, 1998 TO __________, 1998
NET DISPOSITION DISPOSITION
LOAN # LOAN NAME PROCEEDS FEE RATE FEE
----------------------------------------------------------------------------------------------------------------
1 Sample 1 1,500,000.00 [1.00]% 15,000.00
2 Sample 2 2,000,000.00 [1.00]% 20,000.00
3 Sample 3 2,500,000.00 [1.00]% 25,000.00
Total 6,000,000.00 60,000.00
G-13
_________________________, SERVICER
ICIFC SECURED ASSETS CORP., ISSUER
___________________, MASTER SERVICER
CALCULATION OF MASTER SERVICING FEES
FOR PERIOD ___________, 1998 TO ___________, 1998
OUTSTANDING PRINCIPAL
BALANCE AS OF SERVICING
LOAN # LOAN NAME __________ FEE RATE FEE
--------------------------------------------------------------------------------------------------------------------
1 Sample 1 0.00 [0.150]% 0.00
2 Sample 2 0.00 [0.150]% 0.00
3 Sample 3 0.00 [0.150]% 0.00
Total 0.00 0.00
G-14
_________________________, SERVICER
ICIFC SECURED ASSETS CORP., ISSUER
___________________, MASTER SERVICER
MORTGAGE LOAN TRIAL BALANCE
AS OF __________, 1998
OUTSTANDING PRINCIPAL CURRENT OUTSTANDING PERFORMANCE # DAYS PROPERTY
LOAN # LOAN NAME BALANCE AS OF CLOSING PRINCIPAL BALANCE STATUS PAST DUE TYPE STATE
------------------------------------------------------------------------------------------------------------------------------
1 Sample 1 0.00 0.00 -- 0 Office NY
2 Sample 2 0.00 0.00 -- 0 Retail MA
3 Sample 3 0.00 0.00 -- 0 Multifamily CA
Total 0.00 0.00
G-15
_________________________, SERVICER
ICIFC SECURED ASSETS CORP., ISSUER
___________________, MASTER SERVICER
REO TRIAL BALANCE
AS OF ___________, 1998
REO BALANCE CURRENT PROPERTY ESTIMATED ESTIMATED
ASSET # PROPERTY NAME AT ACQUISITION REO BALANCE TYPE RECOVERY VALUE RECOVERY DATE
------------------------------------------------------------------------------------------------------------------------------------
1 Sample 1 0.00 0.00 Office 0.00 MM/DD/YY
2 Sample 2 0.00 0.00 Retail 0.00 MM/DD/YY
3 Sample 3 0.00 0.00 Multifamily 0.00 MM/DD/YY
Total 0.00
G-16