AMENDMENT NO. 4
dated as of April 26, 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. 4
TO THE
TRUST AND SERVICING AGREEMENT
dated as of April 26, 1999
AMENDMENT NO. 4 TO THE TRUST AND SERVICING AGREEMENT, dated as
of April 26, 1999 ("Amendment No. 4") 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.
Section 9.01(a) is hereby amended by deleting the section in
its entirety and replacing such section with the following:
(a) In connection with the sale of Loans on the related
Transfer Date, the Trust, with the approval of the Market Value Agent on behalf
of the Majority Certificateholders, shall assume, but only concurrently with the
sale, such Hedging Instruments as it deems necessary in order to hedge the
interest rate with respect to the fixed rate or hybrid Loans relative to the
expected Disposition Proceeds therefrom. Such Hedging Instruments shall be
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transferred by the Loan Originator to the Depositor and by the Depositor to the
Trust. In deciding to approve any Hedging Instrument hereunder, the Market Value
Agent shall determine, in its sole discretion, whether any Hedging Instrument
conforms to the requirements of Section 9.01(b), (c) and (d).
3. 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.
4. Full Force and Effect. Except as modified by this Amendment
No. 4, the Trust and Servicing Agreement shall otherwise remain in full force
and effect against any and all of the parties thereunder.
5. Governing Law. This Amendment No. 4 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.
6. Counterparts. This Amendment No. 4 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. 4 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: Senior 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: Senior Vice President-Treaurer
FINOVA CAPITAL CORPORATION,
as Transfer Obligor
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Senior Vice President-Treaurer
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FINOVA CAPITAL CORPORATION,
as Servicer
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Senior Vice President
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Xxxxxxxx Pentano
Name: Xxxxxxxx Pentano
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
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