AMENDMENT NO. 3
dated as of April 21, 1999
to the
TRUST AND SERVICING AGREEMENT
among
FINOVA COMMERCIAL MORTGAGE LOAN OWNER TRUST 1998-1
(Trust)
FINOVA REALTY CAPITAL WAREHOUSE FUNDING, L.P.
(Depositor)
FINOVA CAPITAL CORPORATION
(Loan Originator)
FINOVA CAPITAL CORPORATION
(Servicer)
FINOVA CAPITAL CORPORATION
(Transfer Obligor)
and
WILMINGTON TRUST COMPANY
(Owner Trustee)
FINOVA COMMERCIAL MORTGAGE LOAN OWNER TRUST 1998-1
COMMERCIAL MORTGAGE LOAN ASSET-BACKED CERTIFICATES
Dated as of September 1, 1998
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AMENDMENT NO. 3
TO THE
TRUST AND SERVICING AGREEMENT
dated as of April 21, 1999
AMENDMENT NO. 3 TO THE TRUST AND SERVICING AGREEMENT, dated as of April 21,
1999 ("AMENDMENT NO. 3") to that certain Trust and Servicing Agreement, dated as
of September 1, 1998 (the "TRUST AND SERVICING AGREEMENT") among FINOVA
COMMERCIAL MORTGAGE LOAN OWNER TRUST 1998-1, a Delaware business trust (the
"TRUST"), FINOVA REALTY CAPITAL WAREHOUSE FUNDING, L.P., a Delaware limited
partnership, as Depositor (the "DEPOSITOR"), FINOVA CAPITAL CORPORATION, a
Delaware corporation, as Loan Originator (the "LOAN ORIGINATOR"), FINOVA CAPITAL
CORPORATION, a Delaware corporation, as Transfer Obligor (the "TRANSFER
OBLIGOR"), FINOVA CAPITAL CORPORATION, as Servicer (the "SERVICER") and
WILMINGTON TRUST COMPANY, a Delaware banking corporation, as Owner Trustee on
behalf of the Certificateholders (in such capacity, the "OWNER TRUSTEE").
PRELIMINARY STATEMENTS
WHEREAS, the parties hereto have entered into the Trust and Servicing
Agreement, whereby the Owner Trust Estate was conveyed to the Trustee;
WHEREAS, Section 17.02 provides the Trust and Servicing Agreement may be
amended in writing by the parties thereto; and
WHEREAS the parties hereto wish to make certain amendments to the Trust and
Servicing Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereinafter set forth, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. DEFINITIONS. Unless otherwise defined herein, all capitalized terms
shall have the meaning set forth in the Trust and Servicing Agreement.
2. AMENDMENT TO TRUST AND SERVICING AGREEMENT.
(a) Section 1.01 is hereby amended by:
(i) deleting the definition of "EXPECTED FINAL DISTRIBUTION DATE" and
replacing such definition with the following:
EXPECTED FINAL DISTRIBUTION DATE: The Expected Final Distribution Date with
respect to the Class A Certificates shall be October 1, 2019, or, if such day is
not a Business Day, then the next Business Day, or such later date as may be
agreed in writing by the Majority Certificateholders, provided that if the
Majority Certificateholders shall exercise the Put Option or a Disposition shall
occur, the Expected Final Distribution Date shall be the earlier of the Put Date
and the date of the second Disposition (or such later date as the Majority
Certificateholders may agree in writing in their sole discretion).
(b) Section 2.03(a)(vi) is hereby amended by deleting the word "and" after
";".
(c) Section 2.03(a)(vii) is hereby amended by deleting "." and inserting ";
and".
(d) Section 2.03(a) is hereby amended by adding Section 2.03(a)(viii) as
follows:
(viii) notwithstanding Section 10.01 or any other provision of this
Agreement, to enter into and perform its obligations under that certain Mortgage
Loan Purchase Agreement, dated as of April 21, 1999 (the "MORTGAGE LOAN PURCHASE
AGREEMENT") among the Trust, as seller, FINOVA Realty Capital Inc. and Xxxxxx
Xxxxxxx Capital I Inc., as depositor, and to execute and deliver all other
certificates and documents required to be executed and delivered thereunder,
and, pursuant to Section 1(a)(i)(O) of the Administration Agreement, the
Administrator shall perform all administrative duties on behalf of the Trust
with respect to the Mortgage Loan Purchase Agreement.
(e) Section 4.06(a)(iii)(A) is hereby amended by deleting the entire
section and replacing such section with the following:
(A) There shall occur two Dispositions (or two sets of simultaneous
Dispositions) either as a result of the exercise of the Put Option or the
Disposition Agent's decision to effect a Disposition. To the extent that the
Issuer, Loan Originator and Majority Certificateholders so agree in writing,
there may occur additional Dispositions.
(f) Section 4.06(b)(iii) is hereby amended by deleting the word "and" after
";".
(g) Section 4.06(b)(iv) is hereby amended by deleting "." and inserting ";
and".
(h) Section 4.06(b) is hereby amended by adding Section 4.06(b)(v) as
follows:
(v) make such representations and warranties concerning the Loans as of the
"cutoff date" of the related Disposition to the Disposition Participants as may
be necessary to effect the Disposition and such additional representations and
warranties as may be necessary, in the reasonable opinion of any of the
Disposition Participants, to effect such Disposition; provided, that the Trust
shall not be required to make any representation or warranty beyond the scope or
substance of the representations and warranties delineated herein; provided
further that pursuant to Section 4.06(a)(i)(A) of this Agreement, the Loan
Originator shall guaranty such representations and warranties; provided further
that any obligations that result from any breach of the representations and
warranties made by the Trust are paid for from amounts otherwise payable
pursuant to 7.01(c)(3)(viii).
2. ATTORNEYS FEES. The Servicer agrees to pay as and when billed by the
Initial Class A Certificateholder and the Owner Trustee, respectively, the
reasonable fees, disbursements and expenses of counsel to the Initial Class A
Certificateholder and the Owner Trustee, respectively, in connection with the
amendments to the Basic Documents effected on the date hereof.
3. FULL FORCE AND EFFECT. Except as modified by this Amendment No. 3, the
Trust and Servicing Agreement shall otherwise remain in full force and effect
against any and all of the parties thereunder.
4. GOVERNING LAW. This Amendment No. 3 shall be governed by, and construed
in accordance with, the laws of the State of Delaware, without reference to its
conflicts of laws provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance therewith.
5. COUNTERPARTS. This Amendment No. 3 may be executed by the parties hereto
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute but one and the
same instrument.
IN WITNESS WHEREOF the parties have executed this Amendment No. 3 as of the
date first above written.
FINOVA COMMERCIAL MORTGAGE LOAN
OWNER TRUST 1998-1,
By: FINOVA Capital Corporation, as
Administrator on behalf of the Issuer
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Sr. Vice President/Treasurer
FINOVA REALTY CAPITAL WAREHOUSE FUNDING, L.P.,
as Depositor
By: FINOVA Warehouse Funding Inc.,
as General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President-Assistant Treasurer
FINOVA CAPITAL CORPORATION,
as Loan Originator
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Sr. Vice President/Treasurer
FINOVA CAPITAL CORPORATION,
as Transfer Obligor
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Sr. Vice President/Treasurer
FINOVA CAPITAL CORPORATION,
as Servicer
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Sr. Vice President/Treasurer
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Xxxxxxxx Xxxxxxx
Name: Xxxxxxxx Xxxxxxx
Title: Financial Services Officer
AGREED AND ACCEPTED:
FINOVA REALTY CAPITAL
WAREHOUSE FUNDING, L.P.,
as holder of 100% of the
Percentage Interests of the Class B Certificates
By: FINOVA WAREHOUSE FUNDING INC.,
as General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President-Assistant Treasurer
FINOVA COMMERCIAL MORTGAGE LOAN OWNER TRUST 1998-1
COMMERCIAL MORTGAGE LOAN ASSET-BACKED CERTIFICATES
INSTRUCTION TO OWNER TRUSTEE
Reference is hereby made to the Trust and Servicing Agreement (the "TRUST
AGREEMENT"), dated as of September 1, 1998 among FINOVA COMMERCIAL MORTGAGE LOAN
OWNER TRUST 1998-1, a Delaware business trust (the "TRUST"), FINOVA REALTY
CAPITAL WAREHOUSE FUNDING, L.P., a Delaware limited partnership, as Depositor
(the "DEPOSITOR"), FINOVA CAPITAL CORPORATION, a Delaware corporation, as Loan
Originator, FINOVA CAPITAL CORPORATION, a Delaware corporation, as Transfer
Obligor, FINOVA CAPITAL CORPORATION, as Servicer and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as Owner Trustee on behalf of the
Certificateholders (in such capacity, the "OWNER TRUSTEE"). Capitalized terms
not defined herein shall have the meanings ascribed to such terms in the Trust
Agreement.
1. Xxxxxx Xxxxxxx Securitization Funding Inc. hereby certifies that it is
the Initial Class A Certificateholder and is the Holder of 100% of the
Percentage Interests of the Class A Certificates and is the Majority
Certificateholder.
2. The Depositor certifies that it is holder of 100% of the Percentage
Interests of the Class B Certificates.
3. Section 17.02 of the Trust Agreement provides, among other things, that
the Trust Agreement may be amended from time to time by the parties thereto with
the prior written consent of the Majority Certificateholders, such consent is
hereby given.
4. Section 11.03 of the Trust Agreement provides that the Majority
Certificateholders, may with written instruction, direct the Owner Trustee in
the management of the Trust consistent with the purpose of the Trust.
5. Section 7.01(c)(4) of the Trust Agreement provides that the Majority
Certificateholders and the Trust may agree, upon written notice to the Owner
Trustee, on additional Distribution Dates, and shall specify within such notice
each amount to be withdrawn from the Collection Account and Distribution Account
on such day.
6. Xxxxxx Xxxxxxx Securitization Funding Inc., as the holder of 100% of the
Percentage Interests of the Class A Certificates and the Depositor, as the
holder of 100% of the Percentage Interests of the Class B Certificates, hereby
waive the written notice to the Certificateholders and the Intitial Class A
Certificateholder of Amendment No. 3, dated as of April 21, 1999 to the Trust
and Servicing Agreement (the "AMENDMENT NO. 3"), among the Trust, the Depositor,
the Loan Originator, the Transfer Obligor, the Servicer and the Owner Trustee.
7. Xxxxxx Xxxxxxx Securitization Funding Inc., as the holder of 100% of the
Percentage Interests of the Class A Certificates and the Depositor, as the
holder of 100% of the Percentage Interests of the Class B Certificates hereby
direct the Owner Trustee to execute the Amendment No. 3.
8. Xxxxxx Xxxxxxx Securitization Funding Inc. as the holder of 100% of the
Percentage Interests of the Class A Certificates and the Trust hereby notify and
direct the Owner Trustee to designate April 21, 1999 as an additional
Distribution Date (the "NEW DISTRIBUTION DATE").
9. Xxxxxx Xxxxxxx Securitization Funding Inc. as the holder of 100% of the
Percentage Interests of the Class A Certificates and the Trust direct the Owner
Trustee to distribute all amounts on deposit in the Collection Account and
Distribution Account on the date hereof in accordance with Schedule A.
10. Xxxxxx Xxxxxxx Securitization Funding Inc. as the holder of 100% of the
Percentage Interests of the Class A Certificates and the Trust direct the
Disposition Agent to remit the Disposition Proceeds to the Distribution Account
for distribution in accordance with the prior paragraph.
11. Xxxxxx Xxxxxxx Securitization Funding Inc., as the holder of 100% of
the Percentage Interests of the Class A Certificates and the Depositor, as the
holder of 100% of the Percentage Interests of the Class B Certificates hereby
direct the Owner Trustee to execute the Certificate, dated as of April 21, 1999,
attached to the opinion of counsel to FINOVA Realty Capital Inc.
[SIGNATURE PAGE FOLLOWS]
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As of April 21, 1999
XXXXXX XXXXXXX SECURITIZATION
FUNDING INC.,
as Majority Certificateholder of 100%
of the Percentage Interests of the
Class A Certificates
By: /s/ Xxxx Xxxxxxx
Name: Xxxx Xxxxxxx
Title: Vice President
FINOVA COMMERCIAL MORTGAGE LOAN OWNER
TRUST 1998-1,
By: Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
FINOVA REALTY CAPITAL WAREHOUSE
FUNDING, L.P.,
as holder of 100% of the Percentage
Interests of the Class B Certificates
By: FINOVA WAREHOUSE FUNDING INC.,
as General Partner
By: /s/ Xxxxxxx X. Xxxxxxx
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President-Assistant
Treasurer
[INSTRUCTION TO OWNER TRUSTEE]
3
SCHEDULE A
Owner Trustee Fee: $0
Custodian Fee: $0
Nonrecoverable Servicing Advances: $0
Hedge Funding Requirement: $0
Sum of Interest Distribution Amount and Interest
Carry-Forward Amount (paid to the Class A
Certificateholders): $1,029,545.12
Sum of Overcollateralization Shortfall and Principal
Carry-Forward Amount (paid to the Class A
Certificateholders): $480,511,114.81
Trust/Depositor Indemnities and Due Diligence Fees: $0
Servicing Compensation: $0
All Remaining Amounts to the Class B Certificateholder: $47,825,435.88
