FSA FINANCE, INC., as Issuer,
MELLON MORTGAGE COMPANY, as Master Servicer
and
FIRST UNION NATIONAL BANK, as Trustee
------------------------
AMENDMENT
dated as of December 22, 1998
To
MASTER SERVICING AGREEMENT
dated as of May 22, 1995
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Collateralized Commercial Mortgage
Notes, Classes A, B and C
THIS AMENDMENT, dated as of December 22, 1998 (the "Amendment"), 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 a Master
Servicing Agreement dated as of May 22, 1995 (the "Master Servicing Agreement"),
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 Master
Servicing Agreement).
WHEREAS, the parties entered into the Master Servicing Agreement to
provide for the servicing of a certain Mortgage Loan, which secures Notes issued
pursuant to an Indenture (the "Indenture"), dated as of May 22, 1995, by and
among the Issuer, the Master Servicer and the Trustee;
WHEREAS, the Mortgage Loan is evidenced by a 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 Mortgage Loan;
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 Mortgage Loan;
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, the parties have entered into a Supplement of even date
herewith to the Indenture, pursuant to Section 901 of the Indenture, reflecting
the transfer of the Mortgaged Properties to the New Borrower and the Additional
Mortgage, the Pledge Agreement and the collateral pledged thereby to secure the
Mortgage Loan, and the parties desire to make corresponding changes to the
Master Servicing Agreement;
WHEREAS, Section 6.3 of the Master Servicing Agreement provides that the
Issuer, the Master Servicer and the Trustee may at any time enter into an
amendment thereto, provided that, among other things, the amendment does not (i)
materially adversely affect the interests of any Holder, (ii) reduce the
percentage in principal amount of the Outstanding Notes the consent of the
Holders of which is required for any reason under this Agreement (including,
without limitation, any action under Section 4.29 of the Master Servicing
Agreement), or (iii) defer the date or reduce the amount of any payment required
to be made under the Mortgage Loan, without the consent of each Holder affected
thereby;
WHEREAS, the Trustee has determined that such amendment may be properly
entered into pursuant to Section 6.3 of the Master Servicing Agreement.
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:
Section 1. Amendments to Master Servicing Agreement.
1.1 Definitions. Article I of the Master Servicing Agreement 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 "Allocated Loan Amount" is hereby deleted in its
entirety and the following is substituted in lieu thereof:
"Allocated Loan Amount" has the meaning set forth in the
Loan Assumption Agreement.
(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.
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(d) The definition of "Central Account" is hereby amended by deleting
the words "Bank One, Columbus, NA" and inserting in their place the following
words: "First Union National Bank."
(e) The definition of "Collateral" is hereby amended by deleting the
reference to "(C)" in the eleventh line thereof and inserting a reference to
"(D)" in its place and by adding the following new clause (C):
(C) the cash collateral pledged to and retained by the Trustee
pursuant to the Pledge Agreement,
(f) 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.
(g) 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."
(h) 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.
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(i) 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.
(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.
(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.
(l) The definition of "Special Servicing Period" is hereby amended by
inserting in the sixth line thereof immediately following the word "Property"
the following additional language: "or with respect to the collateral pledged
pursuant to the Pledge Agreement."
1.2. Enforcement of Rights of Trustee and Issuer. The following new
Section 6.13 is hereby inserted immediately following Section 6.12:
Section 6.13. Enforcement of Rights of Trustee and Issuer. The
parties acknowledge that the Trustee, as Trustee under the
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 Agreement to the contrary, whenever this
Agreement 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
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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 Master Servicing Agreement.
As supplemented and amended by this Amendment, the Master Servicing
Agreement is in all respects ratified and confirmed, and the Master Servicing
Agreement as so supplemented and amended by this Amendment shall be read, taken
and construed as one and the same instrument.
Section 3. Counterparts.
This Amendment 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.
Section 4. Governing Law.
This Amendment 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 Amendment to be duly executed by their respective duly authorized
officers all as of the day and year first above written.
FSA FINANCE, INC.
By:
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Title:
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MELLON MORTGAGE COMPANY,
as Master Servicer
By:
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Title:
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FIRST UNION NATIONAL BANK,
as Trustee
By:
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Title:
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