ADMINISTRATION AGREEMENT
THIS ADMINISTRATION AGREEMENT, dated as of ____________ (this
"Agreement"), among _______________________, as owner trustee (the "Owner
Trustee"), and on behalf of ICCMAC Commercial Trust [______] (the "Trust"), a
business trust created under the laws of the State of [Delaware] pursuant to the
Deposit Trust Agreement referred to below and acting through ___________, not in
its individual capacity but solely as owner-trustee under such Deposit Trust
Agreement (the "Owner-Trustee", which term includes any successor entity
hereunder and thereunder) and _________________________, a _____________, as
administrator (the "Administrator").
W I T N E S S E T H :
WHEREAS, the Trust was established pursuant to a Deposit Trust
Agreement, dated as of ______________ (the "Deposit Trust Agreement"), between
Imperial Credit Commercial Mortgage Acceptance Corp., as depositor (in such
capacity, the "Depositor") and initial holder of the Owner Trust Certificates
issued thereunder, and the Owner Trustee.
WHEREAS, the Trust is issuing certain bonds (the "Bonds") pursuant to
an Indenture, dated as of _______________ (the "Indenture"), between the Owner
Trustee, on behalf of the Trust, and ______________ as indenture trustee (the
"Indenture Trustee") for the benefit of holders of the Bonds.
WHEREAS, pursuant to the Indenture, the Trust is required to perform
certain duties in connection with the Bonds and the collateral therefor pledged
pursuant to the Indenture (the "Collateral").
WHEREAS, the Trust desires to have the Administrator perform certain
duties of the Trust referred to in the Indenture and to provide such additional
services consistent with the terms of this Agreement as the Trust may from time
to time request.
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Trust and the
Owner Trustee on the terms set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:
1. Definitions. Capitalized terms used but not otherwise defined
herein shall have the respective meanings assigned thereto in the Deposit
Trust Agreement as in effect on the date hereof or, if not defined therein, in
the Indenture as in effect on the date hereof.
2. Duties of the Administrator.
(a) Duties with Respect to the Indenture.
The Administrator agrees to perform all its duties as Administrator and
certain of the duties of the Trust under the Indenture. The Administrator shall
monitor the performance by the Trust of its duties under the Indenture and shall
advise the Owner Trustee when action is necessary to comply with the Trust's
duties under the Indenture. The Administrator shall prepare or cause to be
prepared for execution by the Owner Trustee on behalf of the Trust, all such
documents, reports, filings, instruments, certificates and opinions that the
Trust is required to prepare, file or deliver pursuant to the Indenture and the
Deposit Trust Agreement. In furtherance of the foregoing, the Administrator
shall take all appropriate action that the Trust is required to take pursuant to
the Indenture (including, without limitation, [(i) Section 2.12(c) of the
Indenture, (ii) Section 3.07 of the Indenture, (iii) Sections 6.09(c), (g) and
(h) of the Indenture, (iv) Section 7.04(a) of the Indenture, (v) Section 9.01 of
the Indenture, (vi) Section 9.02 of the Indenture, (vii) Section 3.02 of the
Indenture, (viii) Section 12.01 of the Indenture and (ix) Section 14.15 of the
Indenture [add references to other appropriate sections]),] except any such
duties that (a) constitute non-ministerial matters (as defined and described in
Section 2(c) below), (b) are expressly required to be performed by the Owner
Trustee on behalf of the Issuer or (c) constitute payment obligations of the
Issuer (it being understood and agreed that the Administrator in its individual
capacity shall not be responsible for any payment obligations of the Issuer).
(b) Performance of Duties.
(i) In carrying out the duties of the Trust under the Indenture
and any of its other obligations under this Agreement, the Administrator
may enter into transactions or otherwise deal with any of its affiliates;
provided, however, that the terms of any such transactions or dealings shall
be in accordance with any directions received from the Trust and shall be on
terms and conditions that are, in the Administrator's judgment, no less
favorable to the Trust than would be available from unaffiliated parties.
(ii) In carrying out any of its obligations under this Agreement,
the Administrator may act either directly or through agents, attorneys,
accountants, independent contractors and auditors and enter into agreements with
any of them.
(c) Non-Ministerial Matters.
(i) With respect to matters that in the reasonable judgment of
the Administrator are non-ministerial, the Administrator shall not be under any
obligation to take any action, and in any event shall not take any action unless
the Administrator shall have received instructions from the Owner Trustee or
from Certificateholders entitled to a majority of the Voting Rights under the
Deposit Trust Agreement. For the purpose of the preceding sentence,
"non-ministerial matters" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Trust and the
compromise or settlement of any action, claim or lawsuit
brought by or against the Trust;
(C) the involvement in any lawsuit or other legal
action against the Indenture Trustee, including, without
limitation, consenting to the settlement of any third party
claim by the Indenture Trustee;
(D) [exercising discretion with respect to any action or
proposed action in connection with the Pledged Mortgage
Loans to the extent the Issuer has the right to exercise
such discretion under the terms of Section ___ of the
Servicing and Administration Agreement];
(E) the appointment of successor Indenture Trustees pursuant
to the Indenture;
(F) the removal of the Owner Trustee;
(G) the removal of the Indenture Trustee; and
(H) any action that the Issuer is entitled but not obligated to
take under the Indenture;
provided that, notwithstanding the foregoing, the Administrator may, with the
consent of the Owner Trustee or Certificateholders entitled to a majority of the
Voting Rights under the Deposit Trust Agreement, take any action with respect to
non-ministerial matters that the Administrator, in its good faith judgment,
deems to be the best interests of the Trust. The Administrator shall be entitled
to be reimbursed by the Trust for any expenses or liabilities incurred without
willful misconduct, bad faith or [gross] negligence in connection with
non-ministerial matters.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not, take any
action that the Trust directs the Administrator not to take on its behalf.
3. Records. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Trust, the
Depositor and the Certificateholders at any time during normal business hours.
4. Compensation. As compensation for the performance of the
Administrator's obligations under this Agreement, the Administrator shall be
entitled to: (i) a fee payable as provided under the Indenture equal to
_______________; [and (ii) interest and investment income earned on funds held
on deposit in the Bond Account from time to time, which interest and income
shall be payable as provided under the Indenture. The Administrator may, subject
to and in accordance with the terms of the Indenture, direct the Indenture
Trustee to invest funds on deposit in the Bond Account from time to time and
shall, in accordance with the Indenture, deposit into the Bond Account an amount
sufficient to cover any losses in respect of the funds so invested promptly
following the occurrence of each such loss, if any.]
5. Independence of the Administrator. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Trust, the Owner Trustee or the Indenture
Trustee with respect to the manner in which it performs its obligations
hereunder. Except to the extent expressly set forth herein or otherwise
authorized by the Trust, the Administrator shall not have any authority to act
for or represent the Trust, the Owner Trustee or the Indenture Trustee in any
way and shall not otherwise be deemed an agent of the Trust or the Indenture
Trustee.
6. No Joint Venture. Nothing contained in this Agreement (i) shall
constitute the Administrator and the Trust, the Owner Trustee, the Indenture
Trustee or the Depositor as members of any partnership, joint venture,
association, syndicate, unincorporated business or other separate entity, (ii)
shall be construed to impose on any of them liability as such a member or (iii)
shall be deemed to confer on any of them any express, implied or apparent
authority to incur any obligation or liability on behalf of the others.
7. Other Activities of the Administrator. Nothing herein shall
prohibit the Administrator or its Affiliates from (in its or their sole
discretion) engaging in other businesses or from acting in a similar capacity as
a general administrator or manager for any other person or entity, even though
such person or entity may engage in business activities similar to those of the
Trust, the Owner Trustee or the Indenture Trustee.
8. Term of Agreement; Resignation and Removal of Administrator.
(a) This Agreement shall continue in force until the dissolution,
liquidation or other termination of the Trust, upon which event this Agreement
shall automatically terminate.
(b) The Administrator shall not be permitted to resign from the
obligations and duties hereby imposed on it, except upon the determination that
such obligations and duties hereunder are no longer permissible under applicable
law or are in material conflict by reason of applicable law with any other
activities carried on by it. Any such determination permitting the resignation
of the Administrator shall be evidenced by an opinion of counsel to such effect
delivered to the Owner Trustee on behalf of the Trust.
(c) Subject to Section 8(e) of this Agreement, the Trust may remove
the Administrator without cause by providing the Administrator with at least 60
days' prior written notice.
(d) Subject to Section 8(e) of this Agreement, at the sole option of
the Trust, the Administrator may be removed immediately upon written notice of
termination from the Trust to the Administrator if any of the following events
shall occur:
(i) the Administrator shall default in the performance of any
of its duties under this Agreement and, after notice of such default, shall not
cure such default within ten days (or, if such default cannot be cured in such
time, shall not give within ten days such assurance of cure as shall be
reasonably satisfactory to the Owner Trustee on behalf of the Trust);
(ii) a court having jurisdiction in the premises shall enter a
decree or order for relief, and such decree or order shall not have been
vacated within 60 days, in respect of the Administrator in any involuntary case
under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect or appoint a receiver, liquidator, assignee, custodian,
trustee, sequestrator or similar official for the Administrator or any
substantial part of its property or order the winding-up or liquidation of its
affairs; or
(iii) the Administrator shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, shall consent to the entry of an order for relief in an involuntary
case under any such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official
for the Administrator or any substantial part of its property, shall consent
to the taking of possession by any such official of any substantial part
of its property, shall make any general assignment for the benefit of
creditors or shall fail generally to pay its debts generally as they become due.
The Administrator agrees that if any of the events specified in clauses (ii) or
(iii) of this Section shall occur, it shall give written notice thereof to the
Trust, the Owner Trustee and the Indenture Trustee within seven days following
the occurrence of such event.
(e) No resignation or removal of the Administrator pursuant to this
Section shall be effective unless and until (i) a successor Administrator shall
have been appointed by the Depositor (with the consent of the Owner Trustee,
which consent shall not be unreasonably withheld) and (ii) such successor
Administrator shall have agreed in writing to be bound by the terms of this
Agreement in the same manner as the predecessor Administrator is bound
hereunder.
(f) The appointment of any successor Administrator shall be effective
only after each Rating Agency, after having been given ten days prior notice of
such proposed appointment, shall have confirmed in writing that such appointment
will not result in a qualification, downgrade or withdrawal of the rating then
assigned by such Rating Agency to any Class of the Bonds.
9. Action upon Termination, Resignation or Removal. Promptly upon the
effective date of any termination of this Agreement pursuant to Section 8(a) of
this Agreement or the resignation or removal of the Administrator pursuant to
Section 8(b), 8(c) or 8(d) of this Agreement, respectively, the Administrator
shall be entitled to be paid all fees and reimbursable expenses accruing to it
to the date of such termination, resignation or removal. The Administrator shall
forthwith upon such termination pursuant to Section 8(a) of this Agreement
deliver to the Trust all property and documents of or relating to the Bonds or
the Collateral then in the custody of the Administrator. In the event of the
resignation or removal of the Administrator pursuant to Section 8(b), 8(c) or
8(d) of this Agreement, respectively, the Administrator shall cooperate with the
Trust and take all reasonable steps requested to assist the Trust in making an
orderly transfer of the duties of the Administrator.
10. Notices. Any notice, report or other communication given hereunder
shall be in writing and addressed as follows:
(a) if to the Trust or Owner Trustee, to:
ICCMAC Commercial Trust [______]
c/o ____________________________
________________________________
________________________________
Attention: ICCMAC Commercial Trust [______],
Series 199__-__
(b) If to the Administrator, to:
________________________________
________________________________
________________________________
Facsimile number: ______________
Attention: ____________________
with a copy to:
________________________________
________________________________
Attention: ____________________
(c) If to the Indenture Trustee, to:
________________________________
________________________________
________________________________
Facsimile number: ______________
Attention: ____________________
or to such other address as any such party shall have provided to the other
parties in writing. Any notice required to be in writing hereunder shall be
deemed given if such notice is mailed by certified mail, postage prepaid, or
hand-delivered to the address of such party as provided above.
11. Amendments.
(a) This Agreement may be amended from time to time by the parties
hereto as specified in this Section, provided that any amendment be accompanied
by the written consent of the Indenture Trustee and an opinion of counsel shall
be furnished to the Indenture Trustee stating that such amendment complies with
the provisions of this Section.
(b) If the purpose of the amendment is to prevent the imposition of
any federal or state taxes at any time that any Bonds are outstanding (i.e.
technical in nature), it shall not be necessary to obtain the consent of any
Bondholder to such amendment, but the Indenture Trustee shall be furnished with
an opinion of counsel that such amendment is necessary or helpful to prevent the
imposition of such taxes and is not materially adverse to any Bondholder.
(c) If the purpose of the amendment is to add or eliminate or change
any provision of this Agreement other than as contemplated in clause (b) above,
it shall not be necessary to obtain the consent of any Bondholder to such
amendment, but such amendment shall not be effective unless the Indenture
Trustee shall have been furnished with a letter from each Rating Agency
confirming that such amendment will not result in the qualification, downgrading
or withdrawal of the rating then assigned by such Rating Agency to any Class of
the Bonds.
12. Successors and Assigns. This Agreement shall not be assigned by the
Administrator unless (i) such assignment is previously consented to in writing
by the Trust [and the Indenture Trustee], (ii) each Rating Agency, after having
been given 10 days' prior written notice of such assignment, shall have
confirmed in writing confirming that such assignment will not result in a
qualification, downgrade or withdrawal of the rating then assigned by such
Rating Agency to any Class of the Bonds and (iii) the assignee shall have agree
in writing to be bound by the terms of this Agreement in the same manner as the
predecessor Administrator is bound hereunder. Notwithstanding the preceding
sentence, the Administrator may be merged with or consolidated with or into any
Person, or transfer all or substantially all of its assets to any Person, in
which case any Person resulting from any merger or consolidation to which the
Administrator shall be a party, or any Person succeeding to the business of the
Administrator, shall be the successor of the Administrator hereunder, without
the execution or filing of any paper or any further act on the part of any of
the parties hereto [; provided, however, that no such successor or resulting
Person shall succeed to the rights or duties of the Administrator hereunder
unless each Rating Agency shall have confirmed in writing that such succession
will not result in the qualification, downgrading or withdrawal of the rating
then assigned by such Rating Agency to any Class of the Bonds]. Subject to the
foregoing, this Agreement shall bind any successors or assigns of the parties
hereto.
13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF [NEW YORK], WITHOUT REFERENCE TO ITS CONFLICT OF
LAW PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
14. Headings. The section headings hereof have been inserted for
convenience of reference only and shall not be construed to affect the meaning,
construction or effect of this Agreement.
15. Counterparts. This Agreement may be executed in counterparts,
each of which when so executed shall together constitute but one and the same
agreement.
16. Severability. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof and any such prohibition or unenforceability in any jurisdiction shall
not invalidate or render unenforceable such provision in any other jurisdiction.
17. Limitation of Liability of Owner Trustee. Notwithstanding
anything contained herein to the contrary, this instrument has been executed
by __________________ not in its individual capacity but solely in its capacity
as Owner Trustee of the Trust and in no event shall ________________ in
its individual capacity have any liability for the representations, warranties,
covenants, agreements or other obligations of the Trust hereunder, as to all of
which recourse shall be had solely to the assets of the Trust.
18. Third-Party Beneficiary. The Indenture Trustee on behalf of the
Bondholders is a third-party beneficiary to this Agreement and is entitled to
the rights and benefits hereunder and may enforce the provisions hereof as if it
were a party hereto.
* * * * * * * *
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered as of the day and year first above written.
ICCMAC COMMERCIAL TRUST [________]
By: ____________________, not in its individual
capacity but solely as Owner Trustee
By: _________________________
Name:
Title:
_________________________________,
as Administrator
By: ____________________________,
its general partner
By: _________________________
Name:
Title: