Exhibit 4.7
LOAN SALE AGREEMENT
This Loan Sale Agreement (the "AGREEMENT"), dated as of ____________,
1998, is between ICIFC Secured Assets Corp., as purchaser (the "PURCHASER"), and
______________________, as Seller (the "SELLER").
Capitalized terms used in this Agreement not defined herein shall have
the meanings set forth in the Pooling and Servicing Agreement dated as of
_____________, 1998 (the "POOLING AND SERVICING AGREEMENT") among the Purchaser,
as depositor, _________________________, as servicer, _______________________,
as special servicer, and _______________________, as trustee (in such capacity,
the "TRUSTEE"), pursuant to which the Purchaser will sell the Mortgage Loans (as
defined herein) to a trust fund and certificates representing ownership interest
in the Mortgage Loans will be issued by the trust fund. For purposes of this
Agreement, the "Mortgage Loans" refer to the mortgage loans listed on Exhibit A
hereto and "Mortgaged Properties" refer to the properties securing such Mortgage
Loans.
The Purchaser and the Seller wish to prescribe the manner of sale of
the Mortgage Loans from the Seller to the Purchaser and in consideration of the
premises and the mutual agreements hereinafter set forth, agree as follows:
SECTION I. SALE AND CONVEYANCE OF MORTGAGES: POSSESSION OF MORTGAGE
FILE. The Seller does hereby sell, transfer, assign, set over and convey to the
Purchaser all of its right, title, and interest in and to the Mortgage Loans
described in Exhibit A hereto, including all interest and principal received on
or with respect to the Mortgage Loans after the Cut-off Date (other than
payments of principal and interest first due on the Mortgage Loans on or before
the Cut-off Date), each related Mortgage File and, to the extent of its rights
and obligations thereunder with respect to the Mortgage Loans, each Servicing
Agreement. Upon sale of the Mortgage Loans, the ownership of each Mortgage Note,
the Mortgage and the contents of the related Mortgage File will be vested in the
Purchaser and immediately thereafter the Trustee and the ownership of records
and documents with respect to the related Mortgage Loan prepared by or which
come into the possession of the Seller shall immediately vest in the Purchaser
and immediately thereafter the Trustee and shall be retained and maintained in
trust, by the Seller at the will of the Purchaser and the Trustee in such
custodial capacity only. The Seller's records will accurately reflect the sale
of each Mortgage Loan to the Trustee. The Seller shall release its custody of
the contents of any Mortgage File only in accordance with the Custodial
Agreement.
As the purchase price of the Mortgage Loans, the Purchaser shall pay to
the Seller or at the Seller's direction the sum of (a) the net proceeds of the
offering of the Certificates (net of any underwriting and placement agent fees)
plus (b) the amount, as determined by the Seller and notified to the Purchaser,
of any costs or expenses incurred by the Seller in connection with unwinding any
hedges placed by the Seller on the Mortgage Loans.
SECTION II. BOOKS AND RECORDS. From and after the sale of the Mortgage
Loans to the Purchaser, record title to each Mortgage and the related Mortgage
Note shall be transferred to the Trustee in accordance with this Agreement. All
rights arising out of the Mortgage Loans, including, but not limited to, all
funds received on or in connection with a Mortgage Loan, shall be received and
held by the Seller in trust for the benefit of the Trustee as the owner of the
Mortgage Loans.
The transfer of each Mortgage Loan shall be reflected on the Seller's
balance sheets and other financial statements as a sale of the Mortgage Loans by
the Seller to the Purchaser. The Seller shall be responsible for maintaining,
and shall maintain, a set of records for each Mortgage Loan which shall be
clearly marked to reflect the ownership of each Mortgage Loan by the Trustee
pursuant to the Pooling and Servicing Agreement.
SECTION III. DELIVERY OF MORTGAGE LOAN DOCUMENTS. On the Delivery Date,
the Seller shall deliver or cause to be delivered to the Trustee or its
custodian each of the following documents for each Mortgage Loan:
a. the original or, if accompanied by a "lost note"
affidavit, a copy of the Mortgage Note, endorsed by
the Seller in blank or to the order of the Trustee;
b. the original Mortgage, and any intervening
assignments (or certified copies of such
assignments) thereof, in each case with evidence of
recording indicated thereon or a certified copy
thereof if not returned from the applicable
recording officer;
c. originals or certified copies of any related
Assignment of Leases and Rents and any related
Security Agreement (if, in either case, such item
is a document separate from the Mortgage), any
intervening assignments of each such document or
instrument, and any related UCC Financing
Statements;
d. an assignment of the Mortgage, executed by the
Seller in blank or to the order of the Trustee,
with the assignment to the Trustee in the following
form: "______________________, as trustee for ICIFC
Secured Assets Corp. Pass-Through Certificates,
Series 199__-__", in recordable form;
e. assignments of any related Assignment of Leases and
Rents and any related Security Agreement (if, in
either case, such item is a document separate from
the Mortgage), executed by the Seller or the prior
holder which transferred such Mortgage Loan in
blank or to the order of the Trustee, with the
assignment to the trustee in the following form:
"_________________, as trustee for ICIFC Secured
Assets Corp. Pass-Through Certificates, Series
__-__";
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f. originals or certified copies of all assumption,
modification and substitution agreements in those
instances where the terms or provisions of the
Mortgage or Mortgage Note have been modified or the
Mortgage Note has been assumed;
g. the originals or certificates of a lender's title
insurance policy issued on the date of the
origination of such Mortgage Loan or, with respect
to each Mortgage Loan not covered by a lender's
title insurance policy, an attorney's opinion of
title given by an attorney licensed to practice law
in the jurisdiction where the Mortgage Property is
located;
h. with respect to any Mortgage Loan secured by a
leasehold interest, a certified copy of the related
ground lease;
i. either (i) the originals of all intervening
assignments, including warehousing assignments,
with evidence of recording thereon, (ii) copies of
such assignments certified by a title company or
escrow company to be true and complete copies
thereof where the originals have been transmitted
for recording until such time as the originals are
returned by the public recording office or (iii)
copies of such assignments certified by the public
recording offices where such assignments were
recorded to be true and complete copies thereof in
those instances where the public recording offices
retain the originals or where the original recorded
assignments are lost;
j. either (i) copies of the UCC-1 financing statements
and any related continuation statements, each
showing the mortgagor as debtor and the originator
as secured party and each with evidence of filing
thereon, together with a copy of each intervening
UCC-2 or UCC-3 financing statement showing a
complete chain of assignment from the secured party
named in such UCC-1 financing statement to the
Trustee with evidence of filing thereon disclosing
the assignment to the Trustee of the security
interest in the personal property securing the
Mortgage Loan or (ii) copies of such financing
statements certified to be true and complete copies
thereof in instances where the original financing
statements have been sent to the appropriate public
filing office for filing;
k. the original appraisal; and
l. any escrow, guarantee and environmental liability
agreement.
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SECTION IV. TREATMENT AS A SECURITY AGREEMENT. The Seller, concurrently
with the execution and delivery hereof, has conveyed to the Purchaser, all of
its right, title and interest in and to the Mortgage Loans. The parties intend
that such conveyance of the Seller's right, title and interest in and to the
Mortgage Loans pursuant to this Agreement shall constitute a purchase and sale
and not a loan. If such conveyance is deemed to be a pledge and not a sale, then
the parties also intend and agree that the Seller shall be deemed to have
granted, and does hereby grant, to the Purchaser, a first priority perfected
security interest in all of its right, title and interest in, to and under the
Mortgage Loans, all payments of principal or interest on such Mortgage Loans,
all other payments made and to be made in respect of such Mortgage Loans and all
proceeds thereof and that this Agreement shall constitute a security agreement
under applicable law. If such conveyance is deemed to be a pledge and not a
sale, the Seller consents to the Purchaser hypothecating and transferring such
security interest in favor of the Trustee and transferring the obligation
secured thereby to the Trustee.
SECTION V. RECORDATION OF ASSIGNMENTS OF MORTGAGE. The Purchaser shall
require, to the extent required in the Pooling and Servicing Agreement, the
Seller to record in the appropriate public recording office for real property
the intermediate assignments of the Mortgage Loans and the Assignments of
Mortgage from the Seller to the Trustee in connection with the Pooling and
Servicing Agreement. All recording fees relating to the initial recordation of
such intermediate assignments and Assignments of Mortgage shall be paid by the
Seller.
SECTION VI. REPRESENTATIONS AND WARRANTIES.
A. The Purchaser represents and warrants it is a corporation duly
organized, validly existing, and in good standing in the State of California.
B. The Seller represents and warrants it is a limited partnership duly
organized, validly existing, and in good standing in the State of
[_____________________].
C. The Seller represents and wan-ants that immediately prior to the
sale and assignment contemplated herein, the Seller was the sole owner of the
Mortgage Loans free and clear of any and all liens, pledges, charges of security
interests of any nature and has full right and authority to sell and assign the
same.
D. The Seller and the Purchaser each represents and warrants to the
other that:
1. it has the power and authority to own its property
and to carry on its business as now conducted;
2. it has the power to execute, deliver and perform
this Agreement;
3. the execution, delivery and performance of this Agreement
have been duly authorized by all requisite action by such
entity's board of directors or general
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partner and will not violate or breach any provision of any
organizational document or other agreement or instrument to
which such entity is a party or by which it is bound, or
constitute a default or result in an acceleration under any of
the foregoing, or results in the violation of any law, rule,
regulation, order, judgment or decree to which such party or
its property is subject; and
4. this Agreement constitutes a legal, valid and binding
obligation of such party enforceable in accordance with its
terms, except as such enforcement may be limited by the
provisions of any bankruptcy or insolvency law, or law
relating to enforcement of creditors' rights generally, and by
general principles of equity, regardless of whether
enforcement is sought in a proceeding at law or in equity.
E. The Seller further makes the representations and warranties as to
the Mortgage Loans set forth in Exhibit B hereto as of the Delivery Date. The
Seller hereby covenants and agrees that is shall cure any breach of such
representations and warranties or repurchase any Mortgage Loans as to which
there has been any such breach at the Purchase Price, to the extent that such
breach materially and adversely affects the value of any Mortgage Loan or the
interest of any Certificateholders therein. Such cure or repurchase shall occur
within 90 days of the receipt of notice by the Seller of any such breach of a
representation and warranty in accordance with Section 2.04 of the Pooling and
Servicing Agreement.
F. The representations and warranties of the parties hereto shall
survive the execution and delivery and any termination of this Agreement.
SECTION VII. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.
SECTION VIII. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of ____________ and the obligations,
rights and remedies of the parties hereunder shall be determined in accordance
with such laws.
SECTION IX. NO THIRD-PARTY BENEFICIARIES. The parties do not intend the
benefits of this Agreement to insure to any third party except as expressly set
forth in Section X.
SECTION X. ASSIGNMENT. The Seller hereby acknowledges that the
Purchaser has, concurrently with the execution hereof, executed and delivered in
the Pooling and Servicing Agreement and that, in connection therewith, it has
assigned its rights hereunder to the Trustee for the benefit of the
Certificateholders.
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SECTION XI. NOTICES. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by first class or registered mail, postage prepaid, to
(i) in the case of the Purchaser, ICIFC Secured Assets Corp., 20371 Irvine
Avenue, Santa Ana Heights, California 92707, Attention: Bill Endersen, (ii) in
the case of the Seller, _________________________________,
_______________________, ________________________ Attention: ______________, and
(iii) in the case of any of the preceding parties, such other address as may
hereafter be furnished to the other party in writing by such Parties.
SECTION XII. AMENDMENT. This Agreement may be amended only by a written
instrument which specifically refers to this Agreement and is executed by the
Purchaser and the Seller. This Agreement shall not be deemed to be amended
orally or by virtue of any continuing custom or practice.
SECTION XIII. COUNTERPARTS. This Agreement may be executed in any
number of counterparts, and by the parties hereto in separate counterparts, each
of which when executed and delivered shall be deemed to be an original and all
of which taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Purchaser and the Seller have caused their
names to be signed hereto by this respective officers thereunto duly authorized
as of the day and year first above
written.
ICIFC SECURED ASSETS CORP.
By:______________________________
Name:____________________________
Title:___________________________
[SELLER]
By:_____________________________
Name:___________________________
Title:__________________________
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EXHIBIT A
MORTGAGE LOAN SCHEDULE