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EXHIBIT 10.T.5
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AMENDMENT NO. 2
dated as of December 29, 1998
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. 2
TO THE
TRUST AND SERVICING AGREEMENT
dated as of December 29, 1998
AMENDMENT NO. 2 TO THE TRUST AND SERVICING AGREEMENT, dated as
of December 29, 1998 ("Amendment No. 2") 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.
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2. Amendment to Trust and Servicing Agreement.
(a) Section 1.01 is hereby amended by:
(i) deleting the definition of "Advance Factor" and
by replacing such definition with the following:
Advance Factor: With respect to each Loan,
95%. The Loan Originator and Initial Class A
Certificateholder may agree to such lower Advance
Factor as is specified in a supplemental writing with
respect to a Loan.
With respect to each Loan currently owned by
the Trust, the parties hereto agree that each Loan
indicated thereon shall have a revised Advance Factor
as set forth in Exhibit A.
(ii) deleting the definition of "LIBOR Margin" and by
replacing such definition with the following:
LIBOR Margin: With respect to each day, the
percentage corresponding to the Weighted Average
Purchase Value Factor as of such day, as set forth in
the following table:
Weighted Average
LIBOR Margin: Purchase Value Factor:
1.50% <12%
1.00% = >12%
provided that the LIBOR Margin shall:
(a) increase by an additional 0.50% to the extent
that the Value Shortfall Percentage is less than
8.00% as of such day; and
(b) increase by an additional 1.00% (in addition to
the increase specified in clause (a) above) to the
extent that the Value Shortfall Percentage is less
than 5.00% as of such day or an Event of Default or
the Clean-up Call Date shall have occurred.
(iii) deleting the last sentence of
"Overcollateralization Shortfall".
(iv) adding at the end of the definition of "Purchase
Value" the following two sentences:
The aggregate Purchase Value of the Loans
shall be determined taking into consideration the
aggregate Hedge Value (or any
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aggregate net negative value) of each Hedging
Instrument (as determined by the Market Value Agent
in accordance with Section 8.03(c)) entered into by
the Trust as of such Business Day. With the written
consent of the Majority Certificateholders in their
sole discretion, as of such Business Day, the
aggregate Purchase Value shall be increased (but in
no event to an amount greater than par value of all
Loans) or decreased, as the case may be, by all or
any portion of the aggregate Hedge Value or aggregate
net negative value of all Hedging Instruments entered
into by the Trust of such Business Day, as the
Majority Certificateholders may, in their sole
discretion, designate in writing.
(v) deleting the definition of "Value Shortfall" and
by replacing such definition with the following:
Value Shortfall: With respect to any date of
determination, an amount equal to (x) the sum of (A) 10% less
$1,000 of the aggregate Purchase Value (as specified below) of
all Loans sold hereunder, plus (B) any amounts withdrawn from
the Transfer Obligation Account for return to the Transfer
Obligor pursuant to Section 7.05(i)(A) hereof since the
Closing Date and prior to such Distribution Date, less (y) the
sum of (i) the aggregate amount of payments actually made by
the Transfer Obligor in respect of the Transfer Obligation
pursuant to Section 7.06 and (ii) the aggregate amount of the
Purchase Prices paid by the Loan Originator in respect of any
Loan Originator Puts, since the Closing Date. The Purchase
Value shall be based on the Advance Factor most recently
agreed upon by the Initial Class A Certificateholder and the
Loan Originator provided that the Advance Factor shall be as
of the Transfer Date for all Loans sold to the Trust prior to
December 29, 1998.
(vi) adding the definition of "Weighted Average
Purchase Value Factor" as follows:
"Weighted Average Purchase Value Factor"
with respect to each day, a percentage equivalent of
(I) the sum of for each Loan of (a) the Market Value
of all Loans as of such day less (b) the Class A
Certificate Principal Balance as of such day divided
by (II) the aggregate Principal Balance for all Loans
as of such day. To the extent that clause (I) is
negative for the aggregate of all Loans, the Weighted
Average Purchase Value Factor shall be deemed zero.
The computation of Market Value in clause (I) shall
be adjusted, in the Majority Certificateholder's sole
discretion, for the value of Hedge Instruments, as
provided in the definition of Market Value.
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(b) Section 8.03(b) is hereby amended by adding the following
immediately before the last sentence thereof:
The aggregate Market Value of the Loans shall be determined
taking into consideration the aggregate Hedge Value (or any
aggregate net negative value) of each Hedging Instrument (as
determined by the Market Value Agent in accordance with
Section 8.03(c)) entered into by the Trust as of such Business
Day. With the written consent of the Majority
Certificateholders in their sole discretion, as of such
Business Day, the aggregate Market Value shall be increased
(but in no event to an amount greater than par value of all
Loans) or decreased, as the case may be, by all or any portion
of the aggregate Hedge Value or aggregate net negative value
of all Hedging Instruments entered into by the Trust of such
Business Day, as the Majority Certificateholders may, in their
sole discretion, designate in writing.
(c) Section 15.05(j) is hereby amended by deleting the first
sentence of current Section 15.05(j) and replacing such section with the
following:
(j) on any day, the Market Value Agent shall have determined
the aggregate Market Value of the Loans is less than 104% of
the aggregate Class A Certificate Principal Balance. The
computation of aggregate Market Value shall be adjusted, in
the Majority Certificateholder's sole discretion, for the
value of Hedge Instruments, as provided in the definition of
Market Value.
(d) Section 16.05 is hereby amended by deleting the words "15
days" and inserting in its place "7 days".
2. Attorneys Fees. The Servicer agrees to pay as and when
billed by the Initial Class A Certificateholder the reasonable fees,
disbursements and expenses of counsel to the Initial Class A Certificateholder
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. 2, 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. 2 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. 2 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.
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IN WITNESS WHEREOF the parties have executed this Amendment No. 2 as of the date
first above written.
FINOVA COMMERCIAL MORTGAGE LOAN OWNER
TRUST 1998-1,
By: Wilmington Trust Company,
not in its individual capacity
but solely as Owner Trustee
By: /s/Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
Title: Financial Services Officer
FINOVA REALTY CAPITAL WAREHOUSE FUNDING,
L.P.,
as Depositor
By: FINOVA WAREHOUSE FUNDING INC.,
as General Partner
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
FINOVA CAPITAL CORPORATION,
as Loan Originator
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
FINOVA CAPITAL CORPORATION,
as Transfer Obligor
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
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FINOVA CAPITAL CORPORATION,
as Servicer
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Vice President
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
Title: Financial Services Officer
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EXHIBIT A
