FSA FINANCE, INC., as Issuer,
MELLON MORTGAGE COMPANY, as Master Servicer
and
FIRST UNION NATIONAL BANK, as Trustee
------------------------
SUPPLEMENT
dated as of December 22, 1998
To
INDENTURE
dated as of May 22, 1995
----------------------
Collateralized Commercial Mortgage
Notes, Classes A, B and C
THIS SUPPLEMENT, dated as of December 22, 1998 (the "Supplement"), is
executed by and among FSA FINANCE, INC., as Issuer (the "Issuer"), MELLON
MORTGAGE COMPANY, as Successor Master Servicer (the "Master Servicer"), and
FIRST UNION NATIONAL BANK, as Successor Trustee (the "Trustee") under an
Indenture dated as of May 22, 1995 (the "Indenture"), by and among the Issuer,
Fleet Management and Recovery Corporation, as Master Servicer, and Bank One,
Columbus, NA, as Trustee (capitalized terms used but not defined herein shall
have the respective meanings set forth in the Indenture).
WHEREAS, pursuant to the Indenture, the Notes issued thereunder are
secured by a grant, pledge, assignment and conveyance of all of the Issuer's
right, title and interest in the Trust Estate, which includes the Mortgage Note
made by FSA Properties, Inc. (the "Original Borrower"), which Mortgage Note is,
in turn, secured by certain Mortgaged Properties pursuant to one or more
Mortgages under which the Original Borrower is the mortgagor, grantor and
trustor;
WHEREAS, pursuant to deeds and a ▇▇▇▇ of Sale, dated as of December 22,
1998, the Original Borrower transferred, sold and conveyed all of its right,
title and interest in and to the Mortgaged Properties (other than two Mortgaged
Properties that, at the request of the Original Borrower and the New Borrower
(as defined herein), are being released from the lien of the Mortgages (the
"Released Properties")) to KPT REMIC Loan LLC (the "New Borrower"), and pursuant
to a Loan Assumption Agreement, dated as of December 22, 1998, all of the
obligations of the Original Borrower under the Mortgage Note and the Mortgages
have been assumed by the New Borrower;
WHEREAS, the New Borrower has entered into a Deed of Trust, Mortgage,
Security Agreement, Fixture Filing, Financing Statement and Assignment of Leases
and Rents, dated as of December 22, 1998 (the "Additional Mortgage"), whereby
the New Borrower granted to the Trustee, for the benefit of the Noteholders, a
lien on and security interest in certain additional Mortgaged Properties (the
"Additional Mortgaged Properties") to secure further the New Borrower's
obligations under the Mortgage Note and the loan evidenced thereby;
WHEREAS, the New Borrower also has entered into a Pledge Agreement,
dated as of December 22, 1998 (the "Pledge Agreement"), whereby the New Borrower
pledged to the Trustee, for the benefit of the Noteholders, cash in the amount
of $2,400,000 (the "Cash Collateral") to secure further the New Borrower's
obligations under the Mortgage Note and the loan evidenced thereby;
WHEREAS, in consideration for its consent to the release of the Released
Properties from the lien of the Mortgages, the Issuer, as the beneficial owner
of the Mortgage Note and the collateral security therefor, has agreed that the
Additional Mortgaged Properties and the Cash Collateral should be transferred,
pledged and collaterally assigned to the Trustee, as legal holder of the
Mortgage Note and the collateral security therefor, for the benefit of the
Noteholders;
WHEREAS, Section 901 of the Indenture provides that the Issuer, the
Master Servicer and the Trustee may at any time enter into a supplemental
indenture, without the consent of the Holders, to (1) convey, transfer, assign,
mortgage or pledge any property to the Trustee and (2) correct or amplify the
description of any property subject to the lien of the Indenture;
WHEREAS, the Issuer desires to pledge and grant to the Trustee, for the
benefit of the Noteholders, all of the Issuer's right, title and interest in, to
and under the Additional Mortgage and the Pledge Agreement, to further secure
the Issuer's obligations under Notes, as follows:
GRANTING CLAUSE
NOW, THEREFORE, THIS SUPPLEMENT WITNESSETH that, to secure the
payment of the principal of and interest on the Notes and the
performance of the covenants therein and in the Indenture and this
Supplement, and in consideration of the premises and of the release of
the Released Properties, the Company, by these presents, does grant,
assign, pledge, set over and confirm to the Trustee, and grant to the
Trustee a security interest in, all of the Company's estate, right,
title and interest in, to and under the Additional Mortgage and the
Pledge Agreement (including any and all extensions and modifications
thereof), any and all rights to make claims for, collect and receive any
and all rents, income, revenues, issues, proceeds, profits, security and
other monies payable or receivable thereunder or with respect thereto,
to bring proceedings thereunder or for the specific or other enforcement
thereof or with respect thereto, in the name of the Company or
otherwise, and the right to make all waivers and agreements, to grant or
refuse requests, to give or withhold notices, and to execute and
deliver, in the name and on behalf of the Company, as agent and
attorney-in-fact, any and all instruments in connection therewith and to
do any and all things which the Company is or may be entitled to do
thereunder all as may be limited by and more fully described in the
Additional Mortgage and the Pledge Agreement, but no obligation of the
Company or the Borrower under the provisions of either of the Additional
Mortgage or the Pledge Agreement or with respect thereto shall be
impaired or diminished by virtue thereof, nor shall any such obligation
be imposed upon the Trustee;
HABENDUM
TO HAVE AND TO HOLD all and singular the Additional Mortgage and
the Pledge Agreement unto the Trustee and its successors and assigns
forever, for the benefit of the Holders of the Notes;
GRANT IN TRUST
IN TRUST for the equal and proportionate benefit and security of
the Holders from time to time of all the Notes issued and to be issued
under the Indenture (equally and ratably among the Notes of a class
without any priority or preference of any Note over any other Note of
its class), and for enforcement of the payment of the Notes in
accordance with their terms and of all other sums payable under the
Indenture or on the Notes, and for the performance and observance of and
compliance with the provisions of the Indenture and the Security
Documents, all in accordance with the Indenture.
NOW, THEREFORE, the Issuer, the Master Servicer (at the request of the
Trustee and in reliance upon the consent so given by the Trustee) and the
Trustee hereby agree as follows:
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Section 1. Amendments to Indenture.
1.1 Definitions. Article I of the Indenture is hereby amended and
supplemented as follows:
(a) The following new definition shall be inserted immediately following
the definition of "Act:"
"Additional Mortgage" means the Deed of Trust, Mortgage, Security
Agreement, Fixture Filing, Financing Statement and Assignment of
Leases and Rents, dated as of December 22, 1998, between the
Borrower and the Trustee, covering Mortgaged Properties, as may
be amended, modified or supplemented from time to time as
permitted hereby and thereby.
(b) The definition of "Assignment of Leases and Rents" is hereby deleted
in its entirety and the following is substituted in lieu thereof:
"Assignment of Leases and Rents" means, collectively, the two
separate Assignments of Leases and Rents and the New York
Assignment of Leases and Rents, as such terms are defined in the
Mortgage."
(c) The definition of "Borrower" is hereby deleted in its entirety and
the following is substituted in lieu thereof:
"Borrower" means KPT REMIC Loan LLC, a limited liability company
organized under the laws of the State of Delaware, and its
permitted successors and assigns under the Mortgage.
(d) The following new definition shall be inserted immediately following
the definition of "Liquidation Proceeds:"
"Loan Assumption Agreement" means the Loan Assumption Agreement,
dated as of December 22, 1998, by and among FSA Properties, Inc.,
the Borrower and the Trustee.
(e) The definition of "Manager's Consent and Subordination Agreement" is
hereby deleted in its entirety and the following is substituted in lieu thereof:
"Manager's Consent and Subordination Agreement" means the
Manager's Consent and Subordination of Management Agreement dated
as of December 22, 1998 among the Borrower, Konover Property
Trust, Inc. and the Trustee.
(f) The definition of "Master Servicer" is hereby amended by deleting
the words, "Fleet Management and Recovery Corporation, a Rhode Island
corporation" and inserting in their place the words "Mellon Mortgage Company."
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(g) The definition of "Mortgage" is hereby deleted in its entirety and the
following is substituted in lieu thereof:
"Mortgage" means, collectively, (i) the Modified and Consolidated
Deed of Trust, Mortgage, Security Agreement, Fixture Filing,
Financing Statement and Assignment of Leases and Rents, dated as
of May 22, 1995, between FSA Properties, Inc. and the Originator,
covering 17 Mortgaged Properties, as the same may be rerecorded
in the County of Salt Lake, Utah, pursuant to the letter of
instructions dated May 22, 1995 by and among FSA Properties,
Inc., the Originator, the Company and the Trustee for the purpose
of subjecting to the lien thereof the ▇▇▇▇▇▇ Outparcels (as
defined in the Mortgage), the obligations of FSA Properties, Inc.
thereunder having been assumed by the Borrower pursuant to the
Loan Assumption Agreement, (ii) the Modified and Consolidated
Mortgage, Security Agreement, Fixture Filing, Financing Statement
and Assignment of Leases and Rents, dated as May 22, 1995,
between FSA Properties, Inc. and the Originator, covering the
Mortgaged Property located at ▇▇▇▇ ▇▇▇▇▇▇, New York, the
obligations of FSA Properties, Inc. thereunder having been
assumed by the Borrower pursuant to the Loan Assumption
Agreement, and (iii) the Additional Mortgage, in each case as
amended, modified or supplemented from time to time as permitted
hereby and thereby.
(h) The definition of "Mortgage Note" is hereby deleted it in its
entirety and the following is substituted in lieu thereof:
"Mortgage Note" means the Consolidated, Amended and Restated
Promissory Note dated as of May 22, 1995 by FSA Properties, Inc.
to the Originator in the actual principal amount of $95,000,000
consisting of the Class A Component, the Class B Component and
the Class C Component, and all amendments or supplements to such
Mortgage Note in accordance with the terms of the Mortgage, the
obligations of FSA Properties, Inc. thereunder having been
assumed by the Borrower pursuant to the Loan Assumption
Agreement.
(i) The definitions of "Paying Agent" and "Principal Paying Agent" are
hereby amended by deleting the words "Bank One, Columbus, NA" in each such
definition and inserting in their place the words "First Union National Bank."
(j) The following new definition shall be inserted immediately following
the definition of "Person":
"Pledge Agreement" means the Pledge Agreement, dated as of
December 22, 1998, by and between the Borrower and the Trustee.
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(k) The definition of "Security Documents" is hereby amended by adding
the following language immediately following the end of such definition:
"Security Documents" shall also include the Additional Mortgage,
the Pledge Agreement, the Loan Assumption Agreement, each other
Loan Document executed in connection therewith, and each
additional document, instrument, certificate or agreement related
thereto or delivered in connection therewith to establish, create
or maintain the security interest of the Trustee in the Mortgaged
Property or other collateral described therein to secure payment
of the Mortgage Note, including all accounts established pursuant
to the Additional Mortgage and all insurance policies required
under the Additional Mortgage."
1.2 Enforcement of Rights of Trustee and Issuer. The following new
paragraph is hereby inserted in Section 404 of the Indenture immediately
following the existing paragraph:
The parties acknowledge that the Trustee, as Trustee under this
Indenture and legal holder of the Mortgage Loan, is the
mortgagee, grantee, beneficiary and secured party under the
Additional Mortgage and the pledgee and secured party under the
Pledge Agreement. The parties hereby agree that, notwithstanding
any provision of this Indenture to the contrary, whenever this
Indenture refers to the enforcement or exercise of the rights of
the Issuer under any one or more of the Security Documents, or
the taking of any action or the exercise of any remedy under any
one or more of the Security Documents (including, but not limited
to, the right to foreclose upon or take any other action or
exercise any remedy available under the Mortgage or the Mortgage
Note), such rights, action or remedy shall be deemed to include
the rights, actions or remedies available to the Trustee under
the Additional Mortgage and the Pledge Agreement.
Section 2. Ratification of Indenture.
As supplemented and amended by this Supplement, the Indenture is in all
respects ratified and confirmed, and the Indenture as so supplemented and
amended by this Supplement shall be read, taken and construed as one and the
same instrument.
Section 3. Counterparts.
This Supplement may be executed in any number of counterparts, each of
which when so executed shall be deemed to be an original, but all of such
counterparts shall together constitute but one and the same instrument.
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Section 4. Governing Law.
This Supplement shall be governed by and construed in accordance with
the laws of the State of New York without reference to the conflict of laws
provisions thereof.
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IN WITNESS WHEREOF, the Issuer, the Master Servicer and the Trustee have
caused this Supplement to be duly executed by their respective duly authorized
officers all as of the day and year first above written.
FSA FINANCE, INC.
By:______________________________
Title:___________________________
MELLON MORTGAGE COMPANY,
as Master Servicer
By:______________________________
Title:___________________________
FIRST UNION NATIONAL BANK,
as Trustee
By:______________________________
Title:___________________________
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