<PAGE>   1
                                                                  EXHIBIT 10.T.2

                          TRUST AND SERVICING AGREEMENT
                          Dated as of September 1, 1998


                                      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
<PAGE>   2
                                TABLE OF CONTENTS

<TABLE>
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                                    ARTICLE I

                                   DEFINITIONS

 Section 1.01 Definitions.......................................................................................     1
 Section 1.02 Other Definitional Provisions.....................................................................    30


                                   ARTICLE II

                                  ORGANIZATION

 Section 2.01 Name ..............................................................................................  31
 Section 2.02 Office ............................................................................................  31
 Section 2.03 Purposes and Powers................................................................................  31
 Section 2.04 Appointment of Owner Trustee.......................................................................  32
 Section 2.05 Initial Capital Contribution of Owner Trust Estate.................................................  32
 Section 2.06 Declaration of Trust...............................................................................  32
 Section 2.07 Title to Trust Property............................................................................  33
 Section 2.08 Situs of Trust.....................................................................................  33
                                                                                                                   
                                                                                                                   
                                   ARTICLE III                                                                     
                                                                                                                   
                      CONVEYANCE OF THE OWNER TRUST ESTATE;
               ADDITIONAL CLASS A CERTIFICATE PRINCIPAL 
                                    BALANCES
                                                                                                                   
 Section 3.01 Conveyance of the Owner Trust Estate; Additional Class A Certificate Principal Balances............  34
 Section 3.02 Ownership and Possession of Loan Files.............................................................  35
 Section 3.03 Books and Records; Intention of the Parties........................................................  36
 Section 3.04 Delivery of Loan Documents.........................................................................  36
 Section 3.05 Acceptance by the Owner Trustee of the Loans; Certain                                                
              Substitutions and Repurchases; Certification by the Custodian................................ .....  39
 Section 3.06 Conditions Precedent to Transfer Dates and Purchase Value Excess Dates.............................  40
 Section 3.07 Termination of Revolving Period....................................................................  42
</TABLE>

                                   ARTICLE IV

                         REPRESENTATIONS AND WARRANTIES

                                      -i-
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<TABLE>
<S>                                                                                                                <C>
 Section 4.01 Representations and Warranties of the Depositor....................................................  43
 Section 4.02 Representations and Warranties of the Loan Originator..............................................  46
 Section 4.03 Representations, Warranties and Covenants of the Servicer..........................................  49
 Section 4.04 Representations and Warranties Regarding Loans.....................................................  52
 Section 4.05 Purchase and Substitution..........................................................................  62
 Section 4.06 Dispositions.......................................................................................  65
 Section 4.07 Loan Originator Put; Servicer Call.................................................................  67
 Section 4.08 Modification of Underwriting Guidelines............................................................  68
 Section 4.09 Covenants of Trust.................................................................................  68
 Section 4.10 Representations and Warranties of the Transfer Obligor.............................................  74
                                                                                                                   
                                                                                                                   
                                    ARTICLE V
                                                                                                                   
                    ADMINISTRATION AND SERVICING OF THE LOANS
                                                                                                                   
 Section 5.01 Duties of the Servicer.............................................................................  76
 Section 5.02 Authority of the Servicer..........................................................................  78
 Section 5.03 Subservicing Agreements Between Servicer and Subservicers..........................................  79
 Section 5.04 Escrow Accounts; Collection of Taxes, Assessments and Similar 
                Items............................................................................................  80
 Section 5.05 Maintenance of Insurance Policies..................................................................  81
 Section 5.06 Inspections........................................................................................  82
 Section 5.07 "Due-on-Sale" Clauses; Assumption Agreements.......................................................  82
 Section 5.08 Servicing Advances.................................................................................  83
 Section 5.09 Periodic Advances..................................................................................  83
 Section 5.10 Realization Upon Mortgaged Properties..............................................................  84
 Section 5.11 Sale of Foreclosure Properties.....................................................................  86
 Section 5.12 Management of Foreclosure Property.................................................................  86
 Section 5.13 Release of Files...................................................................................  88
 Section 5.14 Access to Information..............................................................................  88
 Section 5.15 Release of Loan Files..............................................................................  89
 Section 5.16 Servicing Compensation.............................................................................  90
 Section 5.17 Statement as to Compliance and Financial Statements................................................  90
 Section 5.18 Independent Public Accountants' Servicing Report...................................................  92
 Section 5.19 Modifications, Waivers, Amendments and Consents....................................................  92
 Section 5.20 Administration of Lockbox Accounts by the Servicer.................................................  92
 Section 5.21 Collections Lockbox Account........................................................................  93
 Section 5.22 Year 2000 Compliance...............................................................................  94
                                                                                                                   
                                                                                                                   
                                   ARTICLE VI                                                                      
                                                                                                                   
                     CERTIFICATES AND TRANSFER OF INTERESTS                                                        
                                                                                                                   
 Section 6.01 Initial Ownership..................................................................................  94
 Section 6.02 The Certificates...................................................................................  94
</TABLE>


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<TABLE>
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 Section 6.03 Execution, Authentication and Delivery of Certificates.............................................   95
 Section 6.04 Additional Class A Certificate Principal Balance...................................................   95
 Section 6.05 Mutilated, Destroyed, Lost or Stolen Certificates..................................................   96
 Section 6.06 Persons Deemed Certificateholders..................................................................   96
 Section 6.07 Access to List of Certificateholders' Names and Addresses..........................................   96
 Section 6.08 Maintenance of Office or Agency....................................................................   96
 Section 6.09 Restrictions on Transfer of Certificates...........................................................   97
 Section 6.10 Registration; Registration of Transfer and Exchange................................................   98
 Section 6.11 Distribution of Principal and/or Interest; Defaulted Interest......................................   99
 Section 6.12 Reserved..........................................................................................   100
 Section 6.13 144A Information..................................................................................   100
                                                                                                                   
                                                                                                                   
                                   ARTICLE VII                                                                     
                                                                                                                   
                         ESTABLISHMENT OF TRUST ACCOUNTS                                                           
                                                                                                                   
 Section 7.01 Collection Account and Distribution Account.......................................................   101
 Section 7.02 Distributions to Certificateholders...............................................................   105
 Section 7.03 Trust Accounts; Trust Account Property............................................................   105
 Section 7.04 Advance Account...................................................................................   108
 Section 7.05 Transfer Obligation Account.......................................................................   108
 Section 7.06 Transfer Obligation...............................................................................   109
                                                                                                                   
                                                                                                                   
                                  ARTICLE VIII                                                                     
                                                                                                                   
                             STATEMENTS AND REPORTS                                                                
                                                                                                                   
 Section 8.01 Statements........................................................................................   111
 Section 8.02 Reserved..........................................................................................   114
 Section 8.03 Valuation of Loans, Hedge Value and Retained Securities Value; 
                 Market Value Agent.............................................................................   114
                                                                                                                   
                                                                                                                   
                                   ARTICLE IX                                                                      
                                                                                                                   
                                     HEDGING                                                                       
                                                                                                                   
 Section 9.01 Hedging Instruments...............................................................................   115
                                                                                                                   
                                                                                                                   
                                    ARTICLE X                                                                      
                                                                                                                   
                            ACTIONS BY OWNER TRUSTEE                                                               
                                                                                                                   
 Section 10.01 Prior Notice to Certificateholders with Respect to Certain Matters...............................   116
 Section 10.02 Action by Certificateholders with Respect to Certain Matters.....................................   119
 Section 10.03 Restrictions on Certificateholders' Power........................................................   119
</TABLE>

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<TABLE>
<S>                                                                                                               <C>
 Section 10.04 Majority Control.................................................................................  120
                                                                                                                  
                                                                                                                  
                                   ARTICLE XI
                                                                                                                  
                      AUTHORITY AND DUTIES OF OWNER TRUSTEE
                                                                                                                  
 Section 11.01 General Authority................................................................................  120
 Section 11.02 General Duties...................................................................................  120
 Section 11.03 Action Upon Instruction..........................................................................  120
 Section 11.04 No Duties Except as Specified in this Agreement, the Basic Documents or in Instructions..........  121
 Section 11.05 No Action Except Under Specified Documents or Instructions.......................................  122
 Section 11.06 Restrictions.....................................................................................  122
 Section 11.07 Accounting of Trust Funds; Withholding...........................................................  122
 Section 11.08 Accounting and Reports to Certificateholders, the Internal Revenue Service and Others............  123
                                                                                                                  
                                                                                                                  
                                   ARTICLE XII
                                                                                                                  
                   CONCERNING THE OWNER TRUSTEE; COMPENSATION
                                                                                                                  
 Section 12.01 Acceptance of Trusts and Duties..................................................................  123
 Section 12.02 Furnishing of Documents..........................................................................  124
 Section 12.03 Representations and Warranties...................................................................  125
 Section 12.04 Reliance; Advice of Counsel......................................................................  125
 Section 12.05 Not Acting in Individual Capacity................................................................  126
 Section 12.06 Owner Trustee Not Liable for Certificates or Loans...............................................  126
 Section 12.07 Licenses.........................................................................................  126
 Section 12.08 Fees and Expenses................................................................................  126
 Section 12.09 Indemnification..................................................................................  127
 Section 12.10 Payments to the Owner Trustee....................................................................  127
                                                                                                                  
                                                                                                                  
                                  ARTICLE XIII                                                                    
                                                                                                                  
                     SUCCESSOR OWNER TRUSTEES AND ADDITIONAL
                                 OWNER TRUSTEES
                                                                                                                  
 Section 13.01 Eligibility Requirements for Owner Trustee.......................................................  127
 Section 13.02 Resignation or Removal of Owner Trustee..........................................................  128
 Section 13.03 Successor Owner Trustee..........................................................................  128
 Section 13.04 Merger or Consolidation of Owner Trustee.........................................................  129
 Section 13.05 Appointment of Co-Owner Trustee or Separate Owner Trustee........................................  129
</TABLE>



                                   ARTICLE XIV

                                      -iv-
<PAGE>   6
                                  THE SERVICER

<TABLE>
<S>                                                                                                               <C>
 Section 14.01 Indemnification; Third Party Claims..............................................................  130
 Section 14.02 Merger or Consolidation of the Servicer..........................................................  132
 Section 14.03 Limitation on Liability of the Servicer and Others...............................................  132
 Section 14.04 Servicer Not to Resign; Assignment...............................................................  132
 Section 14.05 Relationship of Servicer to Trust and the Owner Trustee..........................................  133
 Section 14.06 Servicer May Own Certificates....................................................................  133
 Section 14.07 Indemnification of the Initial Class A Certificateholder.........................................  133
                                                                                                                  
                                                                                                                  
                                   ARTICLE XV
                                                                                                                  
                 SERVICER EVENTS OF DEFAULT; CERTIFICATE EVENTS
                              OF DEFAULT; REMEDIES
                                                                                                                  
 Section 15.01 Events of Default................................................................................  134
 Section 15.02 Appointment of Successor.........................................................................  135
 Section 15.03 Performance and Enforcement of Certain Obligations...............................................  136
 Section 15.04 Accounting Upon Termination of Servicer..........................................................  137
 Section 15.05 Certificate Events of Default....................................................................  137
 Section 15.06 Acceleration of Maturity; Rescission and Annulment...............................................  139
 Section 15.07 Collection of Indebtedness and Suits for Enforcement by Owner Trustee............................  140
 Section 15.08 Remedies; Priorities.............................................................................  142
 Section 15.09 Reserved.........................................................................................  144
 Section 15.10 Limitation of Suits..............................................................................  144
 Section 15.11 Unconditional Rights of Class A Certificateholders to Receive Principal and/or Interest..........  145
 Section 15.12 Restoration of Rights and Remedies...............................................................  145
 Section 15.13 Rights and Remedies Cumulative...................................................................  145
 Section 15.14 Delay or Omission Not a Waiver...................................................................  146
 Section 15.15 Control by Certificateholders....................................................................  146
 Section 15.16 Waiver of Past Defaults..........................................................................  146
 Section 15.17 Undertaking for Costs............................................................................  147
 Section 15.18 Waiver of Stay or Extension Laws.................................................................  147
 Section 15.19 Action on Certificates...........................................................................  147
                                                                                                                  
                                                                                                                  
                                   ARTICLE XVI                                                                    
                                                                                                                  
                             TERMINATION; PUT OPTION                                                              
                                                                                                                  
 Section 16.01 Termination......................................................................................  148
 Section 16.02 Optional Termination.............................................................................  148
 Section 16.03 Notice of Termination; Cancellation of Certificate of Trust......................................  150
 Section 16.04 Put Option.......................................................................................  150
</TABLE>


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<TABLE>
<S>                                                                                                               <C>
 Section 16.05 Form of Put Option Notice........................................................................  150
 Section 16.06 Class A Certificates Mature on Put Date..........................................................  150
                                                                                                                  
                                                                                                                  
                                  ARTICLE XVII
                                                                                                                  
                            MISCELLANEOUS PROVISIONS
                                                                                                                  
 Section 17.01 Acts of Certificateholders.......................................................................  151
 Section 17.02 Amendment........................................................................................  151
 Section 17.03 Recordation of Agreement.........................................................................  152
 Section 17.04 Duration of Agreement............................................................................  152
 Section 17.05 Governing Law....................................................................................  152
 Section 17.06 Notices..........................................................................................  152
 Section 17.07 Severability of Provisions.......................................................................  153
 Section 17.08 No Legal Title to Owner Trust Estate in Certificateholders.......................................  153
 Section 17.09 Counterparts.....................................................................................  153
 Section 17.10 Successors and Assigns...........................................................................  154
 Section 17.11 Headings.........................................................................................  154
 Section 17.12 Actions of Certificateholders....................................................................  154
 Section 17.13 Non-Petition Agreement...........................................................................  154
 Section 17.14 Holders of the Certificates......................................................................  155
 Section 17.15 Due Diligence Fees, Due Diligence................................................................  155
</TABLE>


EXHIBIT A           Form of Notice of Additional Class A Certificate Principal 
                    Balance

EXHIBIT B           Form of Servicer's Remittance Report to Owner Trustee

EXHIBIT C           Form of T&SA Assignment

EXHIBIT D           [Reserved]

EXHIBIT E-1         Form of Class A Certificate

EXHIBIT E-2         Form of Class B Certificate

EXHIBIT F           Form of Certificate of Trust

EXHIBIT G           Bailee Agreement

EXHIBIT H-1         Form of Transferor Affidavit (144A)

EXHIBIT H-2         Form of Transferee Affidavit (Accredited Investor)

EXHIBIT H-3         Form of Transfer Affidavit

ANNEX A             Tax Considerations


                                      -vi-
<PAGE>   8
                  This Trust and Servicing Agreement is entered into effective
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 (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").

                              W I T N E S S E T H:

                  In consideration of the mutual agreements herein contained,
the Trust, the Depositor, the Loan Originator, the Transfer Obligor, the
Servicer and the Owner Trustee hereby agree as follows for the benefit of each
of them and for the benefit of the holders of Certificates issued hereunder:


                                    ARTICLE I

                                   DEFINITIONS

                  Section 1.01      Definitions.

                  Whenever used in this Agreement, the following words and
phrases, unless the context otherwise requires, shall have the meanings
specified in this Article. Unless otherwise specified, all calculations of
interest described herein shall be made on the basis of a 360-day year and the
actual number of days elapsed in each Accrual Period.

                  Accrual Period: With respect to the Class A Certificates, the
period commencing on and including the preceding Distribution Date (or, in the
case of the first Distribution Date, the period commencing on and including the
first Transfer Date) and ending on the day preceding the related Distribution
Date.

                  Act or Securities Act: The Securities Act of 1933, as amended.

                  Additional Class A Certificate Principal Balance:

                  (a) With respect to each Transfer Date, the aggregate Purchase
         Value of all Loans conveyed on such date less any Overcollateralization
         Shortfall as of such date.

                  (b) With respect to each Purchase Value Excess Date, an amount
         equal to the Additional Class A Certificate Principal Balance that the
         Trust sells to the Initial Class A Certificateholder pursuant to the
         Certificate Purchase Agreement on such Purchase Value Excess Date.


                                      -1-
<PAGE>   9
                  Adjustable Rate Loan: Any Loan, the Loan Interest Rate with
respect to which is subject to adjustment.

                  Administration Agreement: The Administration Agreement, dated
as of September 1, 1998, among the Trust and FINOVA Capital Corporation, as
Administrator and as Servicer.

                  Administrator: FINOVA Capital Corporation, or any successor in
interest thereto, in its capacity as Administrator under the Administration
Agreement.

                  Advance Account: The account established and maintained
pursuant to Section 7.04.

                  Advance Factor: With respect to each Loan, 85%. 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.

                  Affiliate: With respect to any specified Person, any other
Person controlling or controlled by or under common control with such specified
Person. For the purposes of this definition, the term "control", when used with
respect to any specified Person, means the power to direct the management and
policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise, and the terms "controlling" and
"controlled" have corresponding meanings.

                  Agreement: This Agreement, as the same may be amended and
supplemented from time to time.

                  ALTA: The American Land Title Association and its successors
in interest.

                  Appraised Value: The value set forth in an appraisal made in
connection with the origination of the related Loan as the value of the
Mortgaged Property.

                  Assignment:  A LPA Assignment or T&SA Assignment.

                  Assignment of Mortgage: With respect to any Loan, an
assignment in blank of the related Mortgage, notice of transfer or equivalent
instrument in recordable form, sufficient under the laws of the jurisdiction
wherein the related Mortgaged Property is located to reflect the assignment and
pledge of such Mortgage.

                  Bailee: An entity approved by the Initial Class A
Certificateholder in its sole discretion to act as a bailee under the Bailee
Agreement.

                  Bailee Agreement: A Bailee Agreement, among the Loan
Originator, the Initial Class A Certificateholder, and a Bailee, substantially
in the form of Exhibit G attached hereto as the same may be amended,
supplemented, or otherwise modified from time to time.


                                      -2-
<PAGE>   10
                  Bailee Loan: A Loan (i) which has been designated as such by
the Initial Class A Certificateholder in its sole discretion and (ii) for which
the associated Custodial Loan Files will be held by a Bailee under the Bailee
Agreement and will be delivered to the Custodian as required by Section
3.05(b)(i).

                  Basic Documents: This Agreement, the Administration Agreement,
the Custodial Agreement, the Loan Purchase Agreement, the Certificate Purchase
Agreement, each Hedging Instrument, the Master Loan Purchase Agreement and, as
and when required to be executed and delivered, the Assignments and the Lockbox
Agreement.

                  Benefit Plan Investor: Shall have the meaning assigned to such
term in Section 6.09(b).

                  Best's: Best's Key Rating Guide, as the same shall be amended
from time to time.

                  Borrower: The obligor or obligors on a Promissory Note.

                  Business Day: Any day other than (i) a Saturday or Sunday, or
(ii) a day on which banking institutions in New York City or in the city in
which the corporate trust office of the Owner Trustee is located or the city in
which the Servicer's servicing operations are located are authorized or
obligated by law or executive order to be closed.

                  Business Trust Statute: Chapter 38 of Title 12 of the Delaware
Code, 12 Del. Code Section 3801 et seq., as the same may be amended from time to
time.

                  CERCLA: The Comprehensive Environmental Response, Compensation
and Liability Act, or any successor statute thereto.

                  Certificate: Any one of the Class A Certificates or Class B
Certificates.

                  Certificate Event of Default: shall have the meaning provided
in Section 15.05 hereof.

                  Certificate of Trust: The Certificate of Trust in the form of
Exhibit F to be filed for the Trust pursuant to Section 3810(a) of the Business
Trust Statute.

                  Certificate Purchase Agreement: The Certificate Purchase
Agreement among MSSFI, the Trust and the Depositor, dated as of September 29,
1998.

                  Certificate Register and Certificate Registrar have the
respective meanings specified in Section 6.10 hereof.

                  Certificateholder or Holder: The Person in whose name a
Certificate is registered.


                                      -3-
<PAGE>   11
                  Class A Certificate: Any one of the Class A Certificates
executed by the Trust and authenticated by the Owner Trustee in substantially
the form set forth in Exhibit E-1 hereto.

                  Class A Certificate Interest Rate: Interest will accrue on the
Class A Certificates on each day at a per annum interest rate equal to LIBOR for
the related LIBOR Determination Date plus the LIBOR Margin for such day.

                  Class A Certificate Principal Balance: With respect to the
Class A Certificates, as of any date of determination (a) the sum of the
Additional Class A Certificate Principal Balances of all Class A Certificates
transferred on or prior to such date pursuant to the Certificate Purchase
Agreement less (b) all amounts previously distributed in respect of principal of
the Class A Certificates prior to such day.

                  Class A Certificate Redemption Amount: As of any date of
determination, an amount without duplication equal to the sum of (i) then
outstanding Class A Certificate Principal Balance plus all accrued and unpaid
interest thereon (ii) any Trust Fees and Expenses due and unpaid on such date,
(iii) any Servicing Advance Reimbursement Amount and (iv) any Nonrecoverable
Periodic Advances.

                  Class A Certificateholder: The person in whose name a Class A
Certificate is registered.

                  Class B Certificate: Any one of the Class B Certificates
executed by the Trust and authenticated by the Owner Trustee in substantially
the form set forth in Exhibit E-2 hereto.

                  Class B Certificateholder: The person in whose name a Class B
Certificate is registered.

                  Clean-up Call Date: The first Distribution Date occurring on
or after the end of the Revolving Period on which the Class A Certificate
Principal Balance declines to 10% or less of the aggregate Class A Certificate
Principal Balance as of the end of the Revolving Period.

                  Closing Date: September 29, 1998.

                  Code: The Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated by the United States Treasury
thereunder.

                  Collection Account: The account designated as such,
established and maintained by the Servicer in accordance with Section 7.01(a)(1)
hereof.

                  Collection Account Trigger Event: In the event the Servicer
does not have a long term unsecured debt rating from Moody's of at least "Baa2"
and a long term unsecured debt rating of at least "BBB" by S&P.


                                      -4-
<PAGE>   12
                  Collections Lockbox Account: An Eligible Account held by the
Collections Lockbox Bank acceptable to the Majority Certificateholders.

                  Collections Lockbox Agreement: An agreement acceptable to the
Owner Trustee and the Majority Certificateholders among the Collections Lockbox
Bank, the Servicer, the Depositor, the Trust and the Owner Trustee.

                  Collections Lockbox Bank: A depository institution named by
the Servicer and agreed to by the Majority Certificateholders.

                  Collections Lockbox Trigger Event: The Majority
Certificateholders, in their sole discretion may declare the occurrence of a
Collections Lockbox Trigger Event at any time after Midland Loan Services, Inc.
(or another Subservicer acceptable to the Majority Certificateholders) ceases to
be a Subservicer hereunder. The foregoing notwithstanding, the Majority
Certificateholders shall not be entitled to declare the occurrence of a
Collections Lockbox Trigger Event (1) if Servicer services the Loans directly
without a Subservicer or (2) if FINOVA Portfolio Services Inc. is Subservicer.

                  Commercial Loan: A Loan secured by a first mortgage lien on a
retail, office, hotel or other commercial property.

                  Commission:  The Securities and Exchange Commission.

                  Condemnation Proceeds: With respect to a Loan, all awards or
settlements in respect of the related Mortgaged Property, whether permanent or
temporary, partial or entire, by exercise of the power of eminent domain or
condemnation.

                  Corporate Trust Office: With respect to the Owner Trustee, the
principal corporate trust office of the Owner Trustee located at Rodney Square
North , Attention: Corporate Trust Administration, telecopy number: (302)
651-8882, telephone number: (302) 651-1000; or at such other address in the
State of Delaware as the Owner Trustee may designate by notice to the
Certificateholders and the Depositor, or the principal corporate trust office of
any successor Owner Trustee (the address (which shall be in the State of
Delaware) of which the successor Owner Trustee will notify the Owners).

                  Custodial Agreement: The custodial agreement dated as of
September 1, 1998, among the Trust, the Owner Trustee, the Servicer and the
Custodian, providing for the retention of the Custodial Loan Files by the
Custodian on behalf of the Owner Trustee.

                  Custodial Loan File:  As defined in Section 3.04.

                  Custodian: Any custodian pursuant to the Custodial Agreement,
which custodian shall not be affiliated with the Servicer, the Loan Originator,
any Subservicer or the Depositor. LaSalle National Bank, a national banking
association, shall be the initial Custodian pursuant to the terms of the
Custodial Agreement.



                                      -5-
<PAGE>   13
                  Custodian Fee: If applicable, the annual fee payable to the
Custodian, calculated and payable monthly on each Distribution Date pursuant to
Section 7.01(c)(3)(i) hereof equal to the fee, if any, set forth in the
Custodial Agreement.

                  Daily Interest Accrual Amount: With respect to each day,
interest accrued at the Class A Certificate Interest Rate with respect to such
day on the Class A Certificate Principal Balance as of the preceding Business
Day after giving effect to all changes to the Class A Certificate Principal
Balance on or prior to such preceding day.

                  Deemed Cured: A Performance Trigger or Rapid Amortization
Trigger shall be Deemed Cured on the 31st consecutive day on which the condition
that originally gave rise to such event has not continued, provided, however, if
all Put/Call Loans that are 30 or more days Delinquent are purchased as the
result of the exercise of a Servicer Call, then a Performance Trigger or a Rapid
Amortization Trigger, as the case may be, shall be Deemed Cured as of the date
of the receipt of the Purchase Price therefor.

                  Default: Any occurrence that is, or with notice or the lapse
of time or both would become, an Servicer Event of Default or a Certificate
Event of Default.

                  Defaulted Loan: With respect to any date of determination, any
Loan, including, without limitation, any Liquidated Loan with respect to which
any of the following has occurred as of the end of the preceding Due Period: (a)
foreclosure or similar proceedings have been commenced; (b) any portion of a
Monthly Payment becomes 59 days past due by the related Borrower; or (c) the
Servicer or any Subservicer has determined in good faith and in accordance with
the Servicing Standard that such Loan is in default or imminent default.

                  Defective Loan: As defined in Section 4.05(a) hereof.

                  Deleted Loan: A Loan replaced or to be replaced by one or more
than one Qualified Substitute Loan.

                  Delinquent: A Loan is "Delinquent" if any Monthly Payment due
thereon is not made by the close of business on the day such Monthly Payment is
required to be paid. A Loan is "30 days Delinquent" if any Monthly Payment due
thereon has not been received by the close of business on the corresponding day
of the month immediately succeeding the month in which such Monthly Payment was
required to be paid or, if there is no such corresponding day (e.g., as when a
30-day month follows a 31-day month in which a payment was required to be paid
on the 31st day of such month), then on the last day of such immediately
succeeding month. The determination of whether a Loan is "60 days Delinquent,"
"90 days Delinquent", etc., shall be done in like manner.

                  Delivery: When used with respect to Trust Account Property
means:

               (a) with respect to bankers' acceptances, commercial paper,
          negotiable certificates of deposit and other obligations that
          constitute "instruments" within the meaning of Section 9-105(1)(i) of
          the UCC and are susceptible of physical delivery


                                      -6-
<PAGE>   14
          (except with respect to Trust Account Property consisting of
          certificated securities (as defined in Section 8-102(a)(4) of the
          UCC)), physical delivery to the Owner Trustee or its custodian
          endorsed to the Owner Trustee or its custodian or endorsed in blank;

                  (b) with respect to a certificated security (i) delivery of
         such certificated security endorsed to, or registered in the name of,
         the Owner Trustee or endorsed in blank to a securities intermediary (as
         defined in Section 8-102(a)(14) of the UCC) and the making by such
         securities intermediary of appropriate entries in its records
         identifying such certificated securities as credited to the securities
         account (as defined in Section 8-501(a) of the UCC) of the Owner
         Trustee, or (ii) by delivery thereof to a "clearing corporation" (as
         defined in Section 8-102(5) of the UCC) and the making by such clearing
         corporation of appropriate entries in its records crediting the
         securities account of a securities intermediary by the amount of such
         certificated security and the making by such securities intermediary of
         appropriate entries in its records identifying such certificated
         securities as credited to the securities account of the Owner Trustee
         (all of the Trust Account Property described in subsections (a) and
         (b), "Physical Property");

                  and, in any event, any such Physical Property in registered
         form shall be registered in the name of the Owner Trustee or its
         nominee or custodian; and such additional or alternative procedures as
         may hereafter become appropriate to effect the complete transfer of
         ownership of any such Trust Account Property (as defined herein) to the
         Owner Trustee or its nominee or custodian, consistent with then
         applicable law or regulations or the interpretation thereof;

                  (c) with respect to any security issued by the U.S. Treasury,
         FNMA or FHLMC that is a book-entry security held through the Federal
         Reserve System pursuant to federal book-entry regulations, the
         following procedures, all in accordance with applicable law, including
         applicable federal regulations and Articles 8 and 9 of the UCC: the
         making by a Federal Reserve Bank of an appropriate entry crediting such
         Trust Account property to an account of a securities intermediary that
         is also a "participant" pursuant to applicable federal regulations; the
         making by such securities intermediary of appropriate entries in its
         records crediting such book-entry security held through the Federal
         Reserve System pursuant to federal book-entry regulations and Articles
         8 and 9 of the UCC to the securities account of the Owner Trustee; and
         such additional or alternative procedures as may hereafter become
         appropriate to effect complete transfer of ownership of any such Trust
         Account Property to the Owner Trustee or its nominee or custodian,
         consistent with then applicable law or regulations or the
         interpretation thereof; and

                  (d) with respect to any item of Trust Account Property that is
         an uncertificated security (as defined in Section 8-102(a)(18) of the
         UCC) and that is not governed by clause (c) above, registration in the
         records of the Trust thereof in the name of the securities
         intermediary, and the making by such securities intermediary of


                                      -7-
<PAGE>   15
         appropriate entries in its records crediting such uncertificated
         certificates to the Owner Trustee.

                  Depositor: FINOVA Realty Capital Warehouse Funding, L.P., a
Delaware limited partnership, and any successor thereto.

                  Determination Date: With respect to any Distribution Date, the
second Business Day immediately preceding such Distribution Date.

                  Disclosure Certificates: means the loan disclosure
certificates prepared by the Loan Originator's counsel for each Loan and
included in the Due Diligence Package for each Loan and any separate disclosure
certificates with respect to any Loan which has been prepared by the Loan
Originator and is included in the Due Diligence Package for such Loan.

                  Disposition: A Securitization, Whole Loan Sale transaction, or
other disposition of Loans, in each case by the Trust.

                  Disposition Agent: Morgan Stanley & Co. Incorporated and its
successors and assigns acting at the direction of the Majority
Certificateholders.

                  Disposition Participant: With respect to a Disposition, any
"depositor" with respect to such Disposition, the Disposition Agent, the
Majority Certificateholders, the Trust, the Servicer, the trustee and the
custodian thereunder, any nationally recognized credit rating agency, the
related underwriters, the related placement agent, the related credit enhancer,
the related whole-loan purchaser, the related purchaser of securities and/or any
other party necessary or, in the good faith belief of any of the foregoing,
desirable to effect a Disposition.

                  Disposition Proceeds: With respect to a Disposition, (x) the
proceeds of the Disposition remitted to the Trust in respect of the Loans
transferred on the date of and with respect to such Disposition, including
without limitation, any cash and Retained Securities created in any related
Securitization less all costs, fees and expenses incurred in connection with
such Disposition, including, without limitation, all amounts deposited into any
reserve funds upon the closing thereof plus or minus (y) the net positive or net
negative value of all Hedging Instruments terminated in connection with such
Disposition minus (z) all other amounts agreed upon in writing by the Initial
Class A Certificateholder, the Trust and the Servicer.

                  Distribution Account: The account established and maintained
pursuant to Section 7.01(a)(2) hereof.

                  Distribution Date: The 11th day of each calendar month
commencing on the first such 11th day to occur after the first Transfer Date, or
if any such day is not a Business Day, the first Business Day immediately
following such day, provided that the final Distribution Date will be the Put
Date or date of a Disposition. From time to time, the Majority
Certificateholders and the Trust may agree, upon written notice to the Owner
Trustee, to additional Distribution Dates in accordance with Section 7.01(c)(4).


                                      -8-
<PAGE>   16
                  Due Date: The day of the month on which the Monthly Payment is
due from the Borrower with respect to a Loan.

                  Due Diligence Fees: Shall have the meaning provided in Section
17.15 hereof.

                  Due Diligence Package: With respect to Loans transferred on a
Transfer Date: (i) the Disclosure Certificate, (ii) a credit committee approval,
including: (a) a summary of the transaction, (b) a summary of the appraisal, (c)
a summary of the environmental report, (d) a summary of the engineering report,
(e) a summary of any other third party reports, if applicable, and (f) the
Initial Class A Certificateholder reserves the right to request originals of any
of the foregoing documents.

                  Due Period: With respect to any Determination Date or
Distribution Date, the period commencing on and including the preceding
Determination Date (or, in the case of the first Distribution Date, the period
commencing on and including the first Transfer Date) and ending on the day
preceding the related Determination Date.

                  Eligible Account: At any time, an account which is: (i)
maintained with a depository institution or trust company (A) the long-term debt
obligations of which are at such time rated by each Rating Agency in one of
their three highest long-term rating categories or (B) the short-term debt
obligations of which are then rated by each Rating Agency in their highest
short-term rating category; (ii) fully insured by either the Bank Insurance Fund
or the Savings Association Insurance Fund of the FDIC; (iii) a trust account
(which shall be a "segregated trust account") maintained with the corporate
trust department of a federal or state chartered depository institution or trust
company with trust powers and acting in its fiduciary capacity for the benefit
of the Owner Trustee and the Trust, which depository institution or trust
company shall have capital and surplus of not less than $50,000,000; or (iv)
with the prior written consent of the Majority Certificateholders, any other
account. (Each reference in this definition of "Eligible Account" to the Rating
Agency shall be construed as a reference to Moody's and S&P).

                  Eligible Servicer: A Person that (a) (i) has demonstrated the
ability professionally and competently to service a portfolio of commercial
mortgage loans similar to the Loans and (ii) has a net worth calculated in
accordance with GAAP of at least $5,000,000 or (b) any other Person to which the
Majority Certificateholders may consent in writing.

                  Environmental Laws: Any environmental law, ordinance, rule,
regulation or order of a federal, state or local governmental authority,
including, without limitation, the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended (42 U.S.C. Sections
9601 et seq.), the Hazardous Material Transportation Act, as amended (49 U.S.C.
Sections 1801 et seq.), the Resource Conservation and Recovery Act, as
amended (42 U.S.C. Sections 6901 et seq.), the Federal Water Pollution
Control Act, as amended (33 U.S.C. Sections 1251 et seq.), the Clean Air
Act (42 U.S.C. Sections 7401 et seq.) and the regulations promulgated
pursuant thereto.

                  ERISA: The Employee Retirement Income Security Act of 1974, as
amended.


                                      -9-
<PAGE>   17
                  Escrow Account:  As defined in Section 5.04.

                  Escrow Payments: With respect to any Loan, the amounts
constituting ground rents, taxes, assessments, water rates, sewer rents,
municipal charges, fire, hazard, liability and other insurance premiums,
condominium charges, and any other payments required to be escrowed by the
related Borrower with the lender pursuant to the Mortgage or any other document.

                  Event of Default: Either a Servicer Event of Default or a
Certificate Event of Default.

                  Exchange Act: The Securities Exchange Act of 1934, as amended.

                  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 a Disposition.

                  Expenses: Shall have the meaning assigned to such term in
Section 12.09.

                  FDIC: The Federal Deposit Insurance Corporation and any
successor thereto.

                  FHLMC: The Federal Home Loan Mortgage Corporation and any
successor thereto.

                  Final Put Date: As defined in Section 16.05 hereof.

                  FNMA: The Federal National Mortgage Association and any
successor thereto.

                  Foreclosed Loan: As of any date of determination, any Loan
that as of the end of the preceding Due Period has been discharged as a result
of (i) the completion of foreclosure or comparable proceedings by the Servicer,
on behalf of the Trust; (ii) the Owner Trustee's acceptance of the deed or other
evidence of title to the related Mortgaged Property in lieu of foreclosure or
other comparable proceeding; or (iii) the acquisition by the Owner Trustee of
title to the related Mortgaged Property by operation of law.

                  Foreclosure Property: Any real property securing a Foreclosed
Loan that has been acquired by the Servicer on behalf of the Trust through
foreclosure, deed in lieu of foreclosure or similar proceedings in respect of
the related Loan.

                  GAAP: Generally accepted accounting principles as in effect in
the United States.

                  General Partner: FINOVA Warehouse Funding Inc., the general
partner of the Depositor.


                                      -10-
<PAGE>   18
                  Ground Lease: A lease for all or any portion of the real
property comprising the Mortgaged Property, the lessee's interest in which is
held by the Borrower of the related Loan.

                  Gross Margin: With respect to each Adjustable Rate Loan, the
fixed percentage amount set forth in the related Promissory Note.

                  Hazardous Materials: Any substance or material as may be
defined as a hazardous or toxic substance under any applicable Environmental
Law, including, without limitation, gasoline, petroleum products, explosives,
radioactive materials, polychlorinated biphenyls or related or similar
materials, or asbestos or any material containing asbestos.

                  Hedge Funding Requirement: With respect to any day, all
amounts required to be paid or delivered by the Trust under any Hedging
Instrument, whether in respect of payments thereunder or in order to meet
margin, collateral or other requirements thereof.

                  Hedge Value: With respect to any Business Day and a specific
Hedging Instrument, the positive amount, if any, that is equal to the amount
that would be paid to the Trust in consideration of an agreement between the
Trust and an unaffiliated third party, that would have the effect of preserving
for the Trust the net economic equivalent, as of such Business Day, of all
payment and delivery requirements payable to and by the Trust under such Hedging
Instrument until the termination thereof, as determined by the Market Value
Agent in accordance with Section 8.03 hereof.

                  Hedging Counterparty: A Person (i) (A) the long-term and
commercial paper or short-term deposit ratings of which are acceptable to the
Majority Certificateholders and (B) which shall agree in writing that, in the
event that any of its long-term or commercial paper or short-term deposit
ratings cease to be at or above the levels deemed acceptable by the Majority
Certificateholders, it shall secure its obligations in accordance with the
reasonable request of the Majority Certificateholders, (ii) that has entered
into a Hedging Instrument and (iii) that is acceptable to the Majority
Certificateholders.

                  Hedging Instrument: Any interest rate cap agreement, interest
rate floor agreement, interest rate swap agreement or other interest rate
hedging agreement entered into by the Trust with a Hedging Counterparty, and
which requires the Hedging Counterparty to deposit all amounts payable thereby
directly to the Collection Account. Each Hedging Instrument shall meet the
requirements set forth in Article IX hereof with respect thereto.

                  Indemnified Party: Any Person whom the Trust or the Depositor
is required to indemnify under any Trust/Depositor Indemnity.

                  Independent: When used with respect to any specified Person,
such Person (i) is in fact independent of the Loan Originator, the Transfer
Obligor, the Servicer, the Depositor or any of their respective Affiliates, (ii)
does not have any direct financial interest in, or any material indirect
financial interest in, any of the Loan Originator, the Transfer Obligor, the
Servicer, the Depositor or any of their respective Affiliates and (iii) is not


                                      -11-
<PAGE>   19
connected with any of the Loan Originator, the Transfer Obligor, the Servicer,
the Depositor or any of their respective Affiliates, as an officer, employee,
promoter, underwriter, trustee, partner, director or Person performing similar
functions; provided, however, that a Person shall not fail to be Independent of
the Loan Originator, the Transfer Obligor, the Servicer, the Depositor or any of
their respective Affiliates merely because such Person is the beneficial owner
of 1% or less of any class of securities issued by the Loan Originator, the
Transfer Obligor, the Servicer, the Depositor or any of their respective
Affiliates, as the case may be.

                  Index: With respect to each Adjustable Rate Loan, the index
set forth in the related Promissory Note for the purpose of calculating the
interest rate thereon.

                  Initial Class A Certificateholder:  MSSFI.

                  Insurance Policies: With respect to any Mortgaged Property,
any related insurance policy.

                  Insurance Proceeds: With respect to any Mortgaged Property,
all amounts collected in respect of Insurance Policies and not required either
pursuant to applicable law or the related Loan Documents to be applied to the
restoration of the related Mortgaged Property or paid to the related Borrower.

                  Interest Carry-Forward Amount: With respect to any
Distribution Date, the excess, if any, of (A) the Interest Payment Amount for
such Distribution Date plus the Interest Carry-Forward Amount for the prior
Distribution Date over (B) the amount in respect of interest that is actually
distributed from the Distribution Account on such Distribution Date in respect
of the interest for such Distribution Date.

                  Interest Distribution Amount: With respect to any Distribution
Date, the sum of the Daily Interest Accrual Amounts for all days in the related
Accrual Period.

                  Interest Rate Adjustment Date means, with respect to each
Adjustable Rate Loan, the date, specified in the related Promissory Note and the
Loan Schedule, on which the Loan Interest Rate is adjusted.

                  Large Balance Loans: Multifamily Loans or Commercial Loans
which have an outstanding principal balance equal to or greater than
$25,000,000.

                  LIBOR: With respect to each day, the rate for United States
dollar deposits for one month that appears on the Telerate Screen Page 3750 as
of 11:00 a.m., London time, on the related LIBOR Determination Date. If such
rate does not appear on such page (or such other page as may replace that page
on that service, or if such service is no longer offered, such other service for
displaying LIBOR or comparable rates as may be reasonably selected by the
Initial Class A Certificateholder), LIBOR for the applicable day will be the
Reference Bank Rate. If no such quotations can be obtained by the Initial Class
A Certificateholder and no Reference Bank Rate is available, LIBOR will be LIBOR
applicable to the first preceding day on which LIBOR has been determined in
accordance with this definition.


                                      -12-
<PAGE>   20
                  LIBOR Business Day: Any day on which banks are open for
dealing in foreign currency and exchange in London and New York City.

                  LIBOR Determination Date: With respect to each day that is a
LIBOR Business Day, such LIBOR Business Day, and with respect to any day that is
not a LIBOR Business Day, the LIBOR Business Day preceding such day, as
determined by the Initial Class A Certificateholder.

                  LIBOR Margin: With respect to each day, the percentage
corresponding to the Value Shortfall Percentage as of such day, as set forth in
the following table:

LIBOR Margin:                        Value Shortfall Percentage:

0.65%                                >= 8.00%

1.15%                                >=5.00%, but <8.00%

2.15%                                <5.00%

provided that the LIBOR Margin shall be equal to 2.15% upon the occurrence of an
Event of Default or for the period commencing on the Clean-up Call Date

                  Liquidated Loan: With respect to any date of determination,
any Foreclosure Property or any Loan in respect of which a Monthly Payment is in
excess of 30 days past due and as to which the Servicer has determined, in
accordance with the Servicing Standard, that all amounts which it reasonably and
in good faith expects to collect have been recovered from or on account of such
Loan or the related Foreclosure Property; provided, however, that in any event
such Loan or the related Foreclosure Property shall be deemed uncollectible and
therefore be a Liquidated Loan upon the earliest to occur of: (a) the
liquidation of the related Foreclosure Property, (b) the determination by the
Servicer, in accordance with the Servicing Standard, that no further amounts are
collectible from the Loan and any related Mortgaged Property, or (c) the date on
which any portion of a Monthly Payment on any Loan is in excess of 59 days past
due (without regard to any applicable grace periods).

                  Liquidated Loan Losses: With respect to any date of
determination, the difference between (i) the aggregate Principal Balances as of
such date of all Loans that became Liquidated Loans and (ii) all Liquidation
Proceeds allocable to principal received prior to such date.

                  Liquidation Proceeds: With respect to a Liquidated Loan, any
cash amounts received in connection with the liquidation of such Liquidated
Loan, whether through trustee's sale, foreclosure sale or other disposition, any
cash amounts received in connection with the management of the Mortgaged
Property from Defaulted Loans and any other amounts required to be deposited in
the Collection Account pursuant to Section 7.01(b)(1) hereof, in each case other
than Insurance Proceeds and Released Mortgaged Property Proceeds.


                                      -13-
<PAGE>   21
                  Loan: Any Commercial Loan or Multifamily Loan sold to the
Trust hereunder, which loan includes, without limitation, (i) a Promissory Note
and related Mortgage and (ii) all right, title and interest of the Loan
Originator in and to the Mortgaged Property covered by such Mortgage. The term
Loan shall be deemed to include the related Promissory Note, related Mortgage
and related Foreclosure Property, if any. The term Loan shall exclude any Loan
which has been removed from the Trust pursuant to the terms of the Basic
Documents.

                  Loan Documents: With respect to a Loan, the documents
comprising the Custodial Loan File for such Loan.

                  Loan File: With respect to each Loan, the Custodial Loan File
and the Servicer's Loan File.

                  Loan Interest Rate: With respect to each Loan, the annual rate
of interest borne by the related Promissory Note, as shown on the Loan Schedule,
as the same may be modified by the Servicer in accordance with Section 5.01
hereof and, in the case of an Adjustable Rate Loan, as the same may be
periodically adjusted in accordance with the terms of such Loan.

                  Loan Interest Rate Cap: With respect to an Adjustable Rate
Loan, the limit on each Loan Interest Rate adjustment as set forth in the
related Promissory Note.

                  Loan Originator: FINOVA Capital Corporation, in its capacity
as the Loan Originator hereunder.

                  Loan Originator Put: The mandatory repurchase by the Loan
Originator, at the option of the Majority Certificateholders, of a Loan pursuant
to Section 4.07(a) hereof.

                  Loan Pool: As of any date of determination, the pool of all
Loans conveyed to the Trust pursuant to this Agreement on all Transfer Dates up
to and including such date of determination, which Loans have not been conveyed
by the Trust pursuant to the terms of the Basic Documents, together with the
rights and obligations of a holder thereof, and the payments thereon and
proceeds therefrom received after the applicable Transfer Cutoff Date, as
identified from time to time on the Loan Schedule.

                  Loan Purchase Agreement: The Loan Purchase Agreement between
the Loan Originator and the Depositor, dated as of September 1, 1998, and all
supplements thereto.

                  Loan Schedule: The schedule of Loans conveyed to the Trust and
delivered to the Initial Class A Certificateholder in the form of a
computer-readable transmission specifying the following information with respect
to each Loan conveyed on such date: (i) the Loan identifying number, (ii) the
Borrower's name, (iii) the street address, city, county, state and zip code of
the related Mortgaged Property, (iv) the Transfer Cutoff Date Principal Balance,
(v) the Loan Interest Rate as of the Transfer Cutoff Date, (vi) if such Loan is
an Adjustable Rate Loan, the Index thereof, the Gross Margin thereof, the Loan
Interest Rate of the Loan, the Loan Interest Rate Cap, the loan interest floor,
if any, and the Interest Rate Adjustment Date of the Loan, (vii) if such Loan is
an Adjustable Rate Loan converting to a fixed rate


                                      -14-
<PAGE>   22
Loan, or vice versa, the conversion date thereof, (viii) whether the Loan is a
Commercial Loan or a Multifamily Loan, (ix) the origination date of the Loan,
(x) the maturity date of the Loan, (xi) the amount of the Monthly Payment, (xii)
the current Loan Interest Rate, (xiii) a flag indicating a balloon payment,
(xiv) the Appraised Value, (xv) the LTV, (xvi) whether a "lockout" period
exists, and if so, the duration thereof, (xvii) the property type, i.e. office
or retail, (xviii) a code indicating whether the Loan is a Bailee Loan, (xix)
the Advance Factor, and (xx) such other information as may be reasonably
requested by the Majority Certificateholders.

                  Loan Schedule and Exceptions Report: The meaning set forth in
the Custodial Agreement.

                  Loan Servicing: As defined in Section 5.01.

                  Loan-to-Value Ratio or LTV: With respect to any Loan, the
ratio of the original outstanding principal amount of the Loan to the lesser of
(a) the Appraised Value of the Mortgaged Property at origination or (b) if the
Mortgaged Property was purchased within 12 months of the origination of the
Loan, the purchase price of the Mortgaged Property.

                  Lockbox Account: A "lockbox" or similar account required to be
established under the terms of any Loan for the collection of rents, accounts
receivable or other funds or amounts, with respect to the related Mortgaged
Property.

                  LPA Assignment: An Assignment of Loans from the Loan
Originator to the Depositor under the Loan Purchase Agreement.

                  Majority Certificateholders: The holder or holders of in
excess of 50% of the Class A Certificate Principal Balance.

                  Market Value: With respect to each Loan and each Business Day,
the Market Value of such Loan as of such Business Day as determined by the
Market Value Agent in accordance with Section 8.03 hereof.

                  Market Value Agent: Morgan Stanley & Co. Incorporated and its
successors and assigns.

                  Master Loan Purchase Agreement: The Master Loan Purchase
Agreement among the Loan Originator, FINOVA Realty Capital, Inc. and FINOVA
Realty Capital of Greater Florida, Inc., dated as of September 1, 1998, and all
supplements thereto.

                  Maximum Certificate Principal Balance: $1,000,000,000.

                  Monthly Payment: The scheduled monthly payment of principal
and/or interest required to be made by an Borrower on the related Loan, as set
forth in the related Promissory Note.

                  Moody's: Moody's Investors Service, Inc., or any successor
thereto.


                                      -15-
<PAGE>   23
                  Mortgage: With respect to any Loan, the mortgage, deed of
trust or other instrument securing the related Promissory Note, which creates a
first lien on the fee in real property and/or a first lien on the leasehold
estate in real property securing the Promissory Note and the assignment of rents
and leases related thereto.

                  Mortgaged Property: With respect to a Loan, the related
Borrower's fee and/or leasehold interest in the real property (and/or all
improvements, buildings, fixtures, building equipment and personal property
thereon (to the extent applicable) and all additions, alterations and
replacements made at any time with respect to the foregoing) and all other
collateral securing repayment of the debt evidenced by the related Promissory
Note.

                  MSSFI:  Morgan Stanley Securitization Funding Inc.

                  Multifamily Loan: A Loan secured by a first mortgage lien on a
five-or-more family residential property.

                  Net Liquidation Proceeds: With respect to any Distribution
Date, Liquidation Proceeds received during the period commencing on the
preceding Distribution Date and ending on the Business Day immediately prior to
such Distribution Date, net of any reimbursements to the Servicer made from such
amounts for any unreimbursed Servicing Compensation, Servicing Advances and
Periodic Advances (including Nonrecoverable Servicing Advances and
Nonrecoverable Periodic Advances) made and any other fees and expenses paid in
connection with the foreclosure, conservation and liquidation of the related
Liquidated Loans or Foreclosure Properties pursuant to Section 5.11 hereof.

                  Net Loan Interest Rate: With respect to each Loan, the related
Loan Interest Rate, less the rate at which the Servicing Fee is calculated.

                  Net Loan Losses: With respect to any Defaulted Loan that is
subject to a modification pursuant to Section 5.19 hereof, an amount equal to
the portion of the Principal Balance, if any, released in connection with such
modification.

                  Non-permitted Foreign Holder: Shall have the meaning set forth
in Section 6.09.

                  Nonrecoverable Periodic Advance: Any portion of a Periodic
Advance previously made or proposed to be made in respect of a Loan which has
not been previously reimbursed to the Servicer and which, in the good faith
judgment of the Servicer, will not, or in the case of a proposed Periodic
Advance would not, be ultimately recoverable from Liquidation Proceeds or other
recoveries in respect of the related Loan. The determination by the Servicer
that (i) it has made a Nonrecoverable Periodic Advance or (ii) that any proposed
advance, if made, would constitute a Nonrecoverable Periodic Advance, shall be
evidenced by a certificate of a Servicing Officer promptly delivered to the
Initial Class A Certificateholder detailing the reasons for such determination.


                                      -16-
<PAGE>   24
                  Nonrecoverable Servicing Advance: With respect to any
Foreclosure Property, (a) any Servicing Advance previously made and not
reimbursed from late collections, Liquidation Proceeds, Insurance Proceeds or
the Released Property Proceeds or (b) a Servicing Advance proposed to be made in
respect of a Loan or Foreclosure Property either of which, in the good faith
business judgment of the Servicer, as evidenced by an Officer's Certificate
delivered to the Initial Class A Certificateholder, would not be ultimately
recoverable.

                  Non-U.S. Person:  A person other than a "U.S. Person."

                  Officer's Certificate: A certificate signed by a Responsible
Officer of the Depositor, the Servicer, the Trust, the Transfer Obligor or the
Loan Originator, in each case, as required by this Agreement.

                  Opinion of Counsel: A written opinion of counsel who may be
employed by the Transfer Obligor, Loan Originator, the Servicer, the Depositor
or any of their respective Affiliates.

                  Origination Date: With respect to each Loan, the date of the
Promissory Note relating to such Loan, unless such information is not provided
by the Loan Originator with respect to such Loan, in which case the Origination
Date shall be deemed to be the date that is 40 days prior to the date of the
first payment under the Promissory Note relating to such Loan.

                  Outstanding: With respect to any Certificate and as of the
date of determination, any Certificate theretofore authenticated and delivered
under this Agreement except:

                  (i) Certificates theretofore canceled by the Certificate
         Registrar or delivered to the Certificate Registrar for cancellation;

                  (ii) Certificates or portions thereof the payment for which
         money in the necessary amount has theretofore been deposited with the
         Owner Trustee or any Paying Agent in trust for the Certificateholders
         (provided, however, that if such Certificates are to be redeemed,
         notice of such redemption has been duly given pursuant to this
         Agreement or provision for such notice satisfactory to the Owner
         Trustee has been made); and

                  (iii) Certificates in exchange for or in lieu of which other
         Certificates have been authenticated and delivered pursuant to this
         Agreement unless proof satisfactory to the Owner Trustee is presented
         that any such Certificates are held by a bona fide purchaser; provided,
         however, that in determining whether the Certificateholders
         representing the requisite Percentage Interests of the Outstanding
         Certificates have given any request, demand, authorization, direction,
         notice, consent or waiver hereunder or under any Basic Document,
         Certificates owned by the Depositor, any other obligor upon the
         Certificates, the Loan Originator or any Affiliate of any of the
         foregoing Persons shall be disregarded and deemed not to be
         Outstanding, except that, in determining whether the Owner Trustee
         shall be protected in relying upon any such


                                      -17-
<PAGE>   25
         request, demand, authorization, direction, notice, consent or waiver,
         only Certificates that the Owner Trustee actually knows to be owned in
         such manner shall be disregarded. Certificates owned in such manner
         that have been pledged in good faith may be regarded as Outstanding if
         the pledgee certifies to the Owner Trustee (i) that the pledgee has the
         right so to act with respect to such Certificates and (ii) that the
         pledgee is not the Trust, any other obligor upon the Certificates, the
         Loan Originator or any Affiliate of any of the foregoing Persons.

                  Overcollateralization Shortfall: With respect to any Business
Day, an amount equal to the positive difference, if any, between (a) the Class A
Certificate Principal Balance on such Business Day and (b) (i) the aggregate
Purchase Value of all Loans in the Loan Pool on such Business Day, or (ii) in
the event that a Performance Trigger shall have occurred and not been Deemed
Cured, the aggregate Purchase Value of all Loans in the Loan Pool on such
Business Day multiplied by 0.98, provided, however, that on (A) the Expected
Final Distribution Date, (B) the occurrence of a Rapid Amortization Trigger, or
(C) the Distribution Date on which the Trust is to be terminated pursuant to
Section 16.02 hereof, the Overcollateralization Shortfall shall be equal to the
Class A Certificate Principal Balance. Notwithstanding anything to the contrary
herein, in no event shall the Overcollateralization Shortfall with respect to
any Distribution Date exceed the Class A Certificate Principal Balance as of
such date. With the written consent of the Majority Certificateholders in their
sole discretion, if as of such Business Day, no Rapid Amortization Trigger or
Event of Default shall be in effect, the Overcollateralization Shortfall shall
be reduced (but in no event to an amount below zero) by all or any portion of
the aggregate Hedge Value as of such Business Day as the Majority
Certificateholders may, in their sole discretion, designate in writing.

                  Owner Trustee: Wilmington Trust Company, a Delaware banking
corporation, not in its individual capacity but solely as Owner Trustee under
this Agreement, and any successor Owner Trustee hereunder.

                  Owner Trustee Fee: The annual fee calculated for each year
during the term of this Agreement. Such fee shall be $4,000 if the Class A
Certificate Principal Balance on September 30th of such year is less than or
equal to $500,000,000, and shall be $5,000 if the Class A Certificate Principal
Balance on September 30th of such year is greater than $500,000,000, such fee
shall be payable in equal monthly installments to the Servicer which shall in
turn pay, in one lump sum, such fee to the Owner Trustee on September 30th each
year during the term of this Agreement. The fee payable on September 30, 1999
shall be $4,000.

                  Owner Trust Estate: The contribution of $1 referred to in
Section 2.05 and the assets subject to this Agreement and assigned to the Trust,
which assets consist of: (i) such Loans as from time to time are subject to this
Agreement as listed in the Loan Schedule, as the same may be amended or
supplemented on each Transfer Date, by the removal of Deleted Loans and by the
addition of Qualified Substitute Loans, together with the Servicer's Loan Files
and the Custodial Loan Files relating thereto and all proceeds thereof, (ii) the
Mortgages and security interests in Mortgaged Property, (iii) all payments in
respect of interest due with 


                                      -18-
<PAGE>   26
respect to each Loan on or after the related Transfer Cutoff Date and all
payments in respect of principal received after such Transfer Cutoff Date, (iv)
such assets as from time to time are identified as Foreclosure Property, (v)
such assets and funds as are from time to time deposited in the Distribution
Account, Collection Account, the Transfer Obligation Account, the Lockbox
Account, if any, and each REO Account, if any, including, without limitation,
amounts on deposit in such accounts that are invested in Permitted Investments,
(vi) lenders' rights under all Insurance Policies and to any Insurance Proceeds,
(vii) lenders' rights to any Condemnation Proceeds, (viii) Net Liquidation
Proceeds and Released Mortgaged Property Proceeds, (ix) all right, title and
interest of the Loan Originator in and to the obligations of Hedging
Counterparties under Hedging Instruments and (x) all right, title and interest
of the Depositor and Trust in and under the Basic Documents including, without
limitation, the obligations of the Loan Originator under the Loan Purchase
Agreement pursuant to which the Depositor acquired the Loans from the Loan
Originator, and all proceeds of any of the foregoing.

                  Paying Agent: The Wilmington Trust Company or any other Person
that meets the eligibility standards for the Owner Trustee specified in Section
4.09(c) hereof and is authorized by the Trust to make payments to and
distributions from the Collection Account and the Distribution Account,
including distribution of principal of or interest on the Certificates on behalf
of the Trust.

                  Payment Statement:  As defined in Section 8.01(b) hereof.

                  Percentage Interest: With respect to the Class A Certificates
or Class B Certificates, the Percentage Interest as set forth on the face
thereof.

                  Performance Trigger: With respect to any Business Day, a
Performance Trigger shall mean the existence of one or more of the following
conditions as of such Business Day:

                  (i)      the aggregate Principal Balance of all Loans that are
                           30 or more days Delinquent as of such Business Day
                           divided by the Pool Principal Balance as of such
                           Business Day is greater than 1.0%;

                  (ii)     the aggregate Principal Balance of all Loans that are
                           60 or more days Delinquent as of such Business Day
                           divided by the Pool Principal Balance as of such
                           Business Day is greater than 0.05%; 

                  (iii)    the aggregate Liquidated Loan Losses from the Closing
                           Date are greater than $100,000; and

                  (iv)     (x) the aggregate Liquidated Loan Losses for the
                           three calendar month period preceding such Business
                           Day divided by (y) the average Pool Principal Balance
                           of the Loans during such three calendar month period
                           is greater than 0.10%.


                                      -19-
<PAGE>   27
                  A Performance Trigger shall continue to exist until Deemed
Cured.

                  Periodic Advance: The aggregate of the advances made by the
Servicer on any Distribution Date pursuant to Section 5.09, the amount of any
such advances being equal to the total of all Monthly Payments (net of the
related Servicing Fee) on the Loans, that (x) were Delinquent as of the related
Remittance Date and (y) have not been determined by the Servicer to be
Nonrecoverable Periodic Advances.

                  Permitted Investments:  Each of the following:

                  (1) obligations of, or guaranteed as to principal and interest
         by, the United States or any agency or instrumentality thereof if
         backed by the full faith and credit of the United States;

                  (2) direct U.S. government obligations or obligations of a
         federal agency that are backed by the full faith and credit of the U.S.
         government or by FNMA or FHLMC which are subject to a repurchase
         agreement that satisfies the following criteria: (A) it must be between
         the Owner Trustee and either (x) primary dealers on the Federal Reserve
         reporting dealer list which are rated in one of the three highest
         categories for long-term unsecured debt obligations by each Rating
         Agency or (y) banks rated in one of the three highest categories for
         long-term unsecured debt obligations by each Rating Agency; and (B) it
         must be in writing and include the following terms: (a) a term no
         greater than 60 days for any repurchase transaction; (b) the collateral
         must be delivered to the Owner Trustee or a third party custodian
         acting as agent for the Owner Trustee by appropriate book entries and
         confirmation statements, and must have been delivered before or
         simultaneously with payment (i.e., perfection by possession of
         certificated securities); and (c) the securities sold thereunder must
         be valued weekly, marked-to-market at current market price plus accrued
         interest and the value of the collateral must be equal to at least 104%
         of the amount of cash transferred by or on behalf of the Owner Trustee
         under the repurchase agreement and, if the value of the securities held
         as collateral declines to an amount below 104% of the cash transferred
         by or on behalf of the Owner Trustee plus accrued interest (i.e., a
         margin call), then additional cash and/or acceptable securities must be
         transferred to the Owner Trustee to satisfy such margin call; provided,
         however, that if the securities used as collateral are obligations of
         FNMA or FHLMC, then the value of the securities held as collateral must
         equal at least 105% of the cash transferred by or on behalf of the
         Owner Trustee under such repurchase agreement;

                  (3) certificates of deposit, time deposits and bankers
         acceptances of any United States depository institution or trust
         company incorporated under the laws of the United States or any state
         thereof, including the Owner Trustee; provided, however, that the debt
         obligations of such depository institution or trust company at the date
         of the acquisition thereof have been rated by each Rating Agency in one
         of its three highest long-term rating categories;


                                      -20-
<PAGE>   28
                  (4) deposits, including deposits with the Owner Trustee, that
         are fully insured by the Bank Insurance Fund or the Savings Association
         Insurance Fund of the FDIC;

                  (5) commercial paper of any corporation incorporated under the
         laws of the United States or any state thereof, including corporate
         Affiliates of the Owner Trustee, which at the time the investment is
         made is rated by each Rating Agency in its highest short-term rating
         category and which has an original maturity of not more than 365 days;

                  (6) debt obligations rated by each Rating Agency at the time
         the investment is made in one of its three highest long-term rating
         categories (or those investments specified in paragraph (3) above with
         depository institutions which have debt obligations rated by each
         Rating Agency in one of its three highest long-term rating categories);

                  (7) money market funds that are rated by each Rating Agency at
         the time the investment is made in one of its three highest long-term
         rating categories; provided, that money market funds that allow for
         withdrawals on demand shall be deemed to satisfy any maturity
         requirements for Permitted Investments set forth in this Agreement; or

                  (8) any other investments that the Majority Certificateholders
         may consent to in writing prior to the time at which such investment is
         made;

provided, however, that no instrument described in foregoing subparagraphs (1)
through (7) shall evidence either the right to receive (a) only interest with
respect to the obligations underlying such instrument or (b) both principal and
interest payments derived from obligations underlying such instrument where the
interest and principal payments with respect to such instrument provide a yield
to maturity at par greater than 120% of the yield to maturity at par of the
underlying obligations; and provided, further, that no instrument described in
the foregoing subparagraphs may be purchased at a price greater than par if such
instrument may be prepaid or called at a price less than its purchase price
prior to its stated maturity.

                  Each reference in this definition of "Permitted Investments"
to the Rating Agency shall be construed, in the case of each subparagraph above
referring to each Rating Agency, as a reference to each of S&P and Moody's.

                  Person: Any individual, corporation, partnership, joint
venture, limited liability company, association, joint-stock company, trust,
national banking association, unincorporated organization or government or any
agency or political subdivision thereof.

                  Physical Property: As defined in clause (b) the definition of
"Delivery" above.

                  Pool Principal Balance: With respect to any date of
determination, the aggregate Principal Balances of the Loans as of the end of
the preceding day; provided, 


                                      -21-
<PAGE>   29
however, that the Pool Principal Balance on any Distribution Date on which the
Termination Price is to be distributed to Certificateholders will be deemed to
have been equal to zero as of such date.

                  Principal Balance: With respect to any Loan or related
Foreclosure Property, (i) at the Transfer Cutoff Date, the outstanding unpaid
principal balance of the Loan as of the Transfer Cutoff Date and (ii) with
respect to any other date of determination, the outstanding unpaid principal
balance of the Loan as of the prior Business Day (after giving effect to all
payments received thereon and the allocation of any Net Loan Losses with respect
thereto for a Defaulted Loan on such Business Day); provided, however, that any
Liquidated Loan shall be deemed to have a Principal Balance of zero.

                  Principal Carry-Forward Amount: With respect to any
Distribution Date, the excess, if any, of (A) the Overcollateralization
Shortfall for such Distribution Date plus the Principal Carry-Forward Amount for
the prior Distribution Date over (B) the amount in respect of principal that is
actually distributed from the Distribution Account on such Distribution Date.

                  Proceeding: Means any suit in equity, action at law or other
judicial or administrative proceeding.

                  Promissory Note: With respect to a Loan, the original executed
promissory note or other evidence of the indebtedness of the related Borrower or
Borrowers.

                  Purchase Percentage: With respect to each Loan and any
Business Day, a percentage determined as follows:

                  (i)      with respect to any Loan that is 0 to 29 days
                           Delinquent as of the most recent Determination Date,
                           the Advance Factor relating thereto;

                  (ii)     with respect to any Loan that is 30 or more days
                           Delinquent as of the most recent Determination Date,
                           0%; and

                  (iii)    with respect to any Loan that as of the most recent
                           Determination Date is in litigation or which is
                           Foreclosure Property, 0%.

                  Purchase Price: With respect to a Loan, the Principal Balance
thereof as of the date of purchase or repurchase, plus all accrued and unpaid
interest on such Loan to and including the date of purchase or repurchase
computed at the applicable Loan Interest Rate, plus the amount of any
unreimbursed Servicing Advances and any unreimbursed Periodic Advances made by
the Servicer with respect to such Loan (after deducting therefrom any amounts
received in respect of such purchased or repurchased Loan and being held in the
Collection Account for future distribution to the extent such amounts represent
recoveries of principal not yet applied to reduce the related Principal Balance
or interest (net of the Servicing Fee) for the period from and after the date of
repurchase), plus if such Loan is being purchased by the Loan Originator
pursuant to Section 4.05 or Section 3.05, all reasonable out-of-pocket 


                                      -22-
<PAGE>   30
expenses reasonably incurred or to be incurred by the Trust, the Depositor and
the Owner Trustee in respect of the breach or defect giving rise to the
repurchase obligation, including any expenses arising out of the enforcement of
the repurchase obligation. The Purchase Price shall be (i) increased by the net
negative value or (ii) decreased by the net positive value of all Hedging
Instruments terminated with respect to the purchase of such Loan. To the extent
the Servicer does not reimburse itself for amounts, if any, in respect of the
Servicing Advance Reimbursement Amount or Nonrecoverable Periodic Advances
pursuant to Section 7.01(c)(1) hereof, with respect to such Loan, the Purchase
Price shall be reduced by such amounts.

                  Purchase Value: With respect to each Loan and each Business
Day, an amount equal to (i) the Purchase Percentage of 100% of the Principal
Balance of such Loan after giving effect to all payments received in respect of
principal thereon prior to such Business Day less (ii) the aggregate
unreimbursed Servicing Advances and Periodic Advances attributable to such Loan
as of the most recent Determination Date; provided, however, that the Purchase
Value shall be zero with respect to each Loan (i) which the Loan Originator is
required to repurchase pursuant to Section 3.05 or Section 4.05 hereof and (ii)
for which the related Promissory Note has been released from the possession of
the Custodian under the Custodial Agreement to the Servicer or its Affiliates
for a period in excess of 10 days, (iii) is a Bailee Loan and for which the
Custodian has failed to receive the related Loan Documents by the third Business
Day following the applicable Transfer Date or (iv) which is a Bailee Loan for
which the Custodian has failed to receive a copy of the related Promissory Note
and such other documents as are prescribed in Section 3.04(a)(B) on or prior to
the related Transfer Date.

                  Purchase Value Excess: With respect to any Business Day, an
amount equal to the positive difference, if any, between (a) (i) the aggregate
Purchase Value of all Loans in the Loan Pool on such Business Day, or (ii) in
the event that a Performance Trigger shall have occurred and not been Deemed
Cured, the aggregate Purchase Value of all Loans in the Loan Pool on such
Business Day multiplied by 0.98 and (b) the Class A Certificate Principal
Balance on such Business Day.

                  Purchase Value Excess Date: Any Business Day on which a
Purchase Value Excess exists and on which the Initial Class A Certificateholder
purchases Additional Class A Certificate Principal Balance in respect thereof
pursuant to Section 3.01 hereof.

                  Put Date: The date on which the Class A Certificates are to be
purchased by the Trust as a result of the exercise of the Put Option.

                  Put Option: The right of the Majority Certificateholders to
require the Trust to repurchase the Class A Certificates in accordance with
Section 16.04 herein.

                  Qualified Originator: Means an originator of Loans acceptable
to the Initial Class A Certificateholder.

                  Qualified Substitute Loan: A Loan or Loans substituted for a
Deleted Loan pursuant to Section 4.05 hereof, which (i) has or have been
approved in writing by the 


                                      -23-
<PAGE>   31
Majority Certificateholders and (ii) complies or comply as of the date of
substitution with each representation and warranty set forth in Section 4.04
hereof and is or are not more than 29 days Delinquent as of the date of
substitution for such Deleted Loan or Loans.

                  Rapid Amortization Trigger: With respect to any Business Day,
a Rapid Amortization Trigger shall mean the existence of one or more of the
following conditions as of such Business Day:

     (i)   the aggregate Principal Balance of all Loans that are 30 or more days
           Delinquent as of such Business Day divided by the Pool Principal
           Balance as of such Business Day is greater than 2.5%;

     (ii)  the aggregate Principal Balance of all Loans that are 60 or more days
           Delinquent as of such Business Day divided by the Pool Principal
           Balance as of such Business Day is greater than 1.0%;

     (iii) the aggregate Liquidated Loan Losses since the Closing Date are
           greater than $250,000;

     (iv)  (x) the aggregate Liquidated Loan Losses for the three calendar month
           period preceding such Business Day divided by (y) the average Pool
           Principal Balance of the Loans during such three calendar month
           period is greater than 0.20%; and

     (v)   on any day, the Market Value Agent shall have determined the
           aggregate Market Value of the Loans is less than 112% of the
           aggregate Class A Certificate Principal Balance.

                  A Rapid Amortization Trigger shall continue to exist until it
is Deemed Cured.

                  Rating Agencies: S&P and Moody's or such other nationally
recognized credit rating agencies as may from time to time be designated in
writing by the Majority Certificateholders in their sole discretion.

                  Record Date: With respect to each Distribution Date, the close
of business on the prior Business Day.

                  Redemption Date: In the case of a redemption of the Class A
Certificates pursuant to Section 16.02 hereof, the Distribution Date specified
by the Servicer or the Trust pursuant to such Section 16.02.

                  Reference Bank Rate: With respect to any day, the arithmetic
mean (rounded upwards, if necessary, to the nearest one sixteenth of a percent)
of the offered rates for United States dollar deposits for one month that are
offered by the Reference Banks as of 11:00 a.m., New York City time, on the
related LIBOR Determination Date to prime banks in the London interbank market
for a period of one month in amounts approximately equal to the Class A


                                      -24-
<PAGE>   32
Certificate Principal Balance, provided that at least two such Reference Banks
provide such rate. If fewer than two offered rates appear, the Reference Bank
Rate will be arithmetic mean of the rates quoted by one or more major banks in
New York City, selected by the Initial Class A Certificateholder, as of 11:00
a.m., New York City time, on such day for loans in U.S. Dollars to leading
European Banks for a period of one month in amounts approximately equal to the
outstanding Class A Certificate Principal Balance. If no such quotation can be
obtained, the Reference Bank Rate will be the Reference Bank Rate applicable to
the preceding day.

                  Reference Banks: Three money center banks selected by the
Initial Class A Certificateholder.

                  Released Mortgaged Property Proceeds: With respect to any
Loan, proceeds received by the Servicer in connection with (i) a taking of an
entire Mortgaged Property by exercise of the power of eminent domain or
condemnation or (ii) any release of part of the Mortgaged Property from the lien
of the related Mortgage, whether by partial condemnation, sale or otherwise;
which proceeds in either case are not released to the Borrower in accordance
with applicable law, the Servicing Standard or this Agreement.

                  Remittance Date: With respect to any Distribution Date, the
Business Day immediately preceding such Distribution Date.

                  REO Account: As defined in Section 5.12 (a).

                  Responsible Officer: When used with respect to the Owner
Trustee or Custodian, any officer within the corporate trust office of such
Owner Trustee or Custodian, including any Vice President, Assistant Vice
President, Secretary, Assistant Secretary or any other officer of such Owner
Trustee or Custodian customarily performing functions similar to those performed
by any of the above designated officers and also, with respect to a particular
matter, any other officer to whom such matter is referred because of such
officer's knowledge of and familiarity with the particular subject. When used
with respect to the Trust, any officer of the Owner Trustee who is authorized to
act for the Owner Trustee in matters relating to the Trust and who is identified
on the list of Authorized Officers delivered by the Owner Trustee on the Closing
Date (as such list may be modified or supplemented from time to time thereafter)
and, so long as the Administration Agreement is in effect, any Vice President or
more senior officer of the Administrator who is authorized to act for the
Administrator in matters relating to the Trust and to be acted upon by the
Administrator pursuant to the Administration Agreement and who is identified on
the list of Responsible Officers delivered by the Administrator to the Owner
Trustee on the Closing Date (as such list may be modified or supplemented from
time to time thereafter). When used with respect to the Depositor, the Loan
Originator, the Transfer Obligor or the Servicer, the President, any Vice
President, the Treasurer, or General Partner, as applicable.

                  Retained Securities: With respect to a Securitization, any
subordinated securities issued or expected to be issued, or excess collateral
value retained or expected to be retained, in connection therewith to the extent
the Loan Originator or an Affiliate thereof decides in its sole discretion to
retain, instead of sell, such securities.



                                      -25-
<PAGE>   33
                  Retained Securities Value: With respect to any Business Day
and a Retained Certificate, the market value thereof as determined by the Market
Value Agent in accordance with Section 8.03(d) hereof.

                  Revolving Period: The period commencing on the Closing Date
and ending on the earlier of (i) the date on which the Revolving Period is
terminated pursuant to Section 3.07, (ii) 540 days after the Closing Date and
(iii) the occurrence of a Disposition.

                  Sale Agent: Has the meaning assigned to such term in Section
15.15 hereof.

                  Secretary of State: The Secretary of State of the State of
Delaware.

                  Securitization: A sale or transfer of loans, including Loans,
to an Affiliate of the Depositor in order to effect one or a series of
structured-finance securitization transactions.

                  Servicer: FINOVA Capital Corporation, in its capacity as the
servicer hereunder, or any successor appointed as herein provided.

                  Servicer Call: The optional repurchase by the Servicer of a
Loan pursuant to Section 4.07(b) hereof.

                  Servicer Event of Default: As described in Section 15.01
hereof.

                  Servicer's Fiscal Year: January 1st through December 31st of
each year.

                  Servicer's Loan File: With respect to each Loan, the file held
by the Servicer, consisting of all documents (or electronic images thereof)
relating to such Loan, including, without limitation, (i) copies of all of the
Loan Documents included in the related Custodial Loan File and (ii) all
servicing agreements, files, documents, records, data bases, computer tapes,
copies of computer tapes, proof of insurance coverage, insurance policies,
appraisals, other closing documentation, payment history records, and any other
records relating to or evidencing the servicing of the Loans.

                  Servicer's Remittance Report: A report prepared and computed
by the Servicer in substantially the form of Exhibit B attached hereto.

                  Servicer Termination Event: The termination of the Servicer
pursuant to Section 15.01(b) hereof.

                  Servicing Advance Reimbursement Amount: With respect to any
Determination Date, the amount of any Servicing Advances that have not been
reimbursed as of such date, including Nonrecoverable Servicing Advances.

                  Servicing Advances: All insurance premiums, real estate taxes,
assessments, ground rents and similar charges or assessments paid or incurred in
connection with the Servicer's obligations hereunder, and any expense included
within the definition of Servicing 


                                      -26-
<PAGE>   34
Expenses, to the extent the Servicer, consistent with the Servicing Standard,
deems to be in the best economic interests of the Certificateholders.

                  Servicing Compensation: The Servicing Fee and other amounts to
which the Servicer is entitled pursuant to Section 5.16.


                  Servicing Expenses: All customary, reasonable and necessary
out-of-pocket costs and expenses paid or incurred in connection with the
Servicer's obligations hereunder, including without limitation:

                           (a) any expense necessary in order to prevent or cure
                  any violation of applicable laws, regulations, codes,
                  ordinances, rules, orders, judgments, decrees, injunctions or
                  restrictive covenants;

                           (b) any cost or expense necessary in order to
                  maintain or release the lien on each Mortgaged Property and
                  related collateral, including any mortgage registration taxes,
                  release fees, or recording or filing fees;

                           (c) customary expenses for the collection,
                  enforcement or foreclosure of the Loans and the collection of
                  deficiency judgments against Borrowers and guarantors
                  (including but not limited to the fees and expenses of any
                  trustee under a deed of trust, foreclosure title searches and
                  other lien searches);

                           (d) costs and expenses of any appraisals, valuations,
                  inspections, environmental assessments (including but not
                  limited to the fees and expenses of environmental
                  consultants), audits or consultations, engineers, architects,
                  accountants, on-site property managers, market studies, title
                  and survey work and financial investigating services;

                           (e) customary expenses for liquidation,
                  restructuring, modification or loan workouts, such as sales
                  brokerage expenses and other costs of conveyance; and

                           (f) any other reasonable costs and expenses,
                  including without limitation, legal fees and expenses,
                  incurred by the Servicer under this Agreement in connection
                  with the enforcement, collection, foreclosure, disposition,
                  condemnation or destruction of the Loans or related Mortgaged
                  Properties, as applicable, the maintenance, leasing,
                  operation, management and sale of the Foreclosure Properties,
                  and the performance of Loan Servicing by the Servicer under
                  this Agreement.

                  Servicing Fee: As to each Loan (including any Loan that has
been foreclosed and has become a Foreclosure Property, but excluding any
Liquidated Loan), the fee payable monthly to the Servicer on each Distribution
Date, which shall be deemed to be equal to the monthly compensation that would
be payable to the servicer under the Midland Servicing 


                                      -27-
<PAGE>   35
Agreement, between the Servicer and Midland Loan Services, Inc. as in effect on
the date hereof as if such servicer was servicing such Loan.

                  Servicing Officer: Any officer of the Servicer or Subservicer
involved in, or responsible for, the administration and servicing of the Loans
whose name and specimen signature appears on a list of servicing officers
annexed to an Officer's Certificate furnished by the Servicer or the
Subservicer, respectively, on the Closing Date to the Trust and the Owner
Trustee, on behalf of the Certificateholders, as such list may from time to time
be amended.

                  Servicing Standard: As defined in Section 5.01.

                  S&P: Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.

                  State: Means any one of the States of the United States of
America or the District of Columbia.

                  Subservicer: Any Person with which the Servicer has entered
into a Subservicing Agreement and which is an Eligible Servicer and satisfies
any requirements set forth in Section 5.03 hereof in respect of the
qualifications of a Subservicer.

                  Subservicing Agreement: Any agreement between the Servicer and
any Subservicer relating to subservicing and/or administration of any or all
Loans as provided in Section 5.03 hereof, copies of which shall be made
available, along with any modifications thereto, to the Initial Class A
Certificateholder.

                  Substitution Adjustment: As to any date on which a
substitution occurs pursuant to Section 3.05 or Section 4.05 hereof, the amount,
if any, by which (a) the sum of the aggregate principal balance (after
application of principal payments received on or before the date of
substitution) of any Qualified Substitute Loans as of the date of substitution,
plus any accrued and unpaid interest thereon to the date of substitution, is
less than (b) the sum of the aggregate of the Principal Balances, together with
accrued and unpaid interest thereon to the date of substitution, of the related
Deleted Loans.

                  Termination Price: With respect to any Distribution Date, an
amount without duplication equal to the greater of (A) the Class A Certificate
Redemption Amount and (B) the sum of (i) the Principal Balance of each Loan
included in the Trust as of the end of the preceding Due Period; (ii) all unpaid
interest accrued on the Principal Balance of each such Loan at the related Net
Loan Interest Rate to the end of the preceding Due Period; and (iii) the
aggregate fair market value of each Foreclosure Property included in the Trust
as of the end of the preceding Due Period, as determined by an Independent
appraiser acceptable to the Majority Certificateholders as of a date not more
than 30 days prior to such Distribution Date.

                  Transfer Cutoff Date: With respect to each Loan, the first day
of the month in which the Transfer Date with respect to such Loan occurs.


                                      -28-
<PAGE>   36
                  Transfer Cutoff Date Principal Balance: As to each Loan, its
Principal Balance as of the opening of business on the Transfer Cutoff Date
(after giving effect to any payments received on the Loan on or before the
Transfer Cutoff Date).

                  Transfer Date: With respect to each Loan, the day such Loan is
sold to the Depositor pursuant to the Loan Purchase Agreement and to the Trust
pursuant to Section 3.01 hereof.

                  Transfer Obligation: The obligation of the Transfer Obligor
under Section 7.06 to make certain payments in connection with Dispositions and
other related matters.

                  Transfer Obligation Account: The account designated as such,
established and maintained pursuant to Section 7.05 hereof.

                  Transfer Obligation Target Amount: With respect to any date of
determination, the cumulative total of all withdrawals pursuant to Section
7.05(e), 7.05(f), 7.05(g) and 7.05(h) hereof from the Transfer Obligation
Account since the Closing Date minus any amount withdrawn from the Transfer
Obligation Account to return to the Transfer Obligor pursuant to Section
7.05(i)(A).

                  Transfer Obligor: FINOVA Capital Corporation, a Delaware
corporation.

                  Treasury Regulations: The regulations, including proposed or
temporary regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.

                  Trust: FINOVA Commercial Mortgage Loan Owner Trust 1998-1, the
Delaware business trust created pursuant to this Agreement.

                  Trust Account Property: The Trust Accounts, all amounts and
investments held from time to time in the Trust Accounts and all proceeds of the
foregoing.

                  Trust Accounts: The Distribution Account, the Collection
Account, the Transfer Obligation Account, the Lockbox Account, if any, and each
Escrow Account and REO Account, if any.

                  Trust Fees and Expenses: As of each Distribution Date, an
amount equal to the Servicing Compensation, the Owner Trustee Fee and the
Custodian Fee, if any.

                  Trust Order and Trust Request: A written order or request
signed in the name of the Trust by any one of its Responsible Officers and
delivered to the Owner Trustee.

                  Trust/Depositor Indemnity: Each obligation of the Trust or the
Depositor to indemnify any Person under Section 9.01 of the Certificate Purchase
Agreement.


                                      -29-
<PAGE>   37
                  T&SA Assignment: An Assignment, in the form of Exhibit C
hereto, of Loans and other property from the Depositor to the Trust pursuant to
this Agreement.

                  UCC: The Uniform Commercial Code as in effect in the State of
New York.

                  UCC Assignment: A form "UCC-2" or "UCC-3" statement meeting
the requirements of the Uniform Commercial Code of the relevant jurisdiction to
reflect an assignment of a secured party's interest in collateral.

                  UCC-1 Financing Statement: A financing statement meeting the
requirements of the Uniform Commercial Code of the relevant jurisdiction.

                  Underwriting Guidelines: The underwriting guidelines
(including the loan origination guidelines) provided to the Initial Class A
Certificateholder on or prior to the Closing Date by the Loan Originator or an
Affiliate thereof.

                  U.S. Person: A citizen or resident of the United States, a
corporation, partnership (except as provided in applicable Treasury regulations)
or other entity created or organized in or under the laws of the United States
or any political subdivision thereof, an estate that is subject to United States
federal income tax regardless of the source of its income, or a trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more such U.S. Persons have authority to
control all substantial decisions of the trust (or, to the extent provided in
Treasury Regulations, certain trusts in existence on August 20, 1996 which are
eligible to be treated as U.S. Persons).

                  Value Shortfall: With respect to any date of distribution, an
amount equal to (x) the sum of (A) 10% less $1,000 of the aggregate Purchase
Value (as of the related Transfer Date) 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 5.06 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.

                  Value Shortfall Percentage: As of any date of determination,
an amount equal to (x) the Value Shortfall as of such date, divided by (y) 100%
of the aggregate Purchase Value as of the related Transfer Date of all Loans
sold hereunder since the Closing Date.

                  Whole Loan Sale: A Disposition of Loans pursuant to a
whole-loan sale.

                  Section 1.02 Other Definitional Provisions.

                  (a) Any agreement, instrument or statute defined or referred
to herein or in any instrument or certificate delivered in connection herewith
means such agreement, instrument or statute as from time to time amended,
modified or supplemented and includes (in 


                                      -30-
<PAGE>   38
the case of agreements or instruments) references to all attachments thereto and
instruments incorporated therein; references to a Person are also to its
permitted successors and assigns.

                  (b) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto unless otherwise defined therein.

                  (c) As used in this Agreement and in any certificate or other
document made or delivered pursuant hereto or thereto, accounting terms not
defined in this Agreement or in any such certificate or other document, and
accounting terms partly defined in this Agreement or in any such certificate or
other document to the extent not defined, shall have the respective meanings
given to them under GAAP. To the extent that the definitions of accounting terms
in this Agreement or in any such certificate or other document are inconsistent
with the meanings of such terms under GAAP, the definitions contained in this
Agreement or in any such certificate or other document shall control.

                  (d) The words "hereof," "herein," "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement; Article, Section,
Schedule and Exhibit references contained in this Agreement are references to
Articles, Sections, Schedules and Exhibits in or to this Agreement unless
otherwise specified; and the term "including" shall mean "including without
limitation."

                  (e) The definitions contained in this Agreement are applicable
to the singular as well as the plural forms of such terms and to the masculine
as well as to the feminine and neuter genders of such terms.


                                   ARTICLE II

                                  ORGANIZATION

                  Section 2.01      Name.

                  The Trust created hereby shall be known as "FINOVA Commercial
Mortgage Loan Owner Trust 1998-1," in which name the Owner Trustee may conduct
the business of the Trust, make and execute contracts and other instruments on
behalf of the Trust and sue and be sued.

                  Section 2.02      Office.

                  The office of the Trust shall be in care of the Owner Trustee
at the Corporate Trust Office or at such other address in Delaware as the Owner
Trustee may designate by written notice to the Certificateholders.

                  Section 2.03      Purposes and Powers.


                                      -31-
<PAGE>   39
                  (a) The purpose of the Trust is to engage in the following
activities:

                           (i) to issue the Certificates pursuant to this
                  Agreement and to sell such Certificates;

                           (ii) with the proceeds of the sale of the Class A
                  Certificates, to pay the organizational, start-up and
                  transactional expenses of the Trust;

                           (iii) to purchase, hold, assign, grant, transfer,
                  pledge, mortgage and convey the Owner Trust Estate pursuant to
                  this Agreement and to hold, manage and distribute to the
                  Certificateholders pursuant to the terms of this Agreement any
                  portion of the Owner Trust Estate released from the lien of,
                  and remitted to the Trust pursuant to, this Agreement;

                           (iv) to enter into and perform its obligations under
                  the Basic Documents to which it is to be a party;

                           (v) to engage in those activities, including entering
                  into agreements, that are necessary, suitable or convenient to
                  accomplish the foregoing or are incidental thereto or
                  connected therewith;

                           (vi) subject to compliance with the Basic Documents,
                  to engage in such other activities as may be required in
                  connection with conservation of the Owner Trust Estate and the
                  making of distributions to the Certificateholders; and

                           (vii) to issue the Certificates pursuant to this
                  Agreement.

                  The Trust is hereby authorized to engage in the foregoing
activities. The Trust shall not engage in any activity other than in connection
with the foregoing or other than as required or authorized by the terms of this
Agreement or the Basic Documents.

                  Section 2.04 Appointment of Owner Trustee.

                  The Depositor hereby appoints the Owner Trustee as trustee of
the Trust effective as of the date hereof, to have all the rights, powers and
duties set forth herein.

                  Section 2.05 Initial Capital Contribution of Owner Trust
Estate.

                  The Depositor hereby sells, assigns, transfers, conveys and
sets over to the Owner Trustee, as of the date hereof, the sum of $1. The Owner
Trustee hereby acknowledges receipt in trust from the Depositor, as of the date
hereof, of the foregoing contribution, which shall constitute the initial Owner
Trust Estate. The Depositor or the Servicer shall pay reasonable organizational
expenses of the Trust as they may arise or shall, upon the request of the Owner
Trustee, promptly reimburse the Owner Trustee for any such expenses paid by the
Owner Trustee.

                  Section 2.06 Declaration of Trust.


                                      -32-
<PAGE>   40
                  The Owner Trustee hereby declares that it will hold the Owner
Trust Estate in trust upon and subject to the conditions set forth herein for
the use and benefit of the Certificateholders, subject to the obligations of the
Trust under the Basic Documents. It is the intention of the parties hereto that
the Trust constitute a business trust under the Business Trust Statute and that
this Agreement constitute the governing instrument of such business trust. It is
the intention of the parties hereto that, solely for federal, state and local
income and franchise tax purposes the Trust shall be treated as a partnership,
with the assets of the partnership being the Loans and other assets held by the
Trust and the partners of the partnership being the holders of the Class A
Certificates and the Class B Certificates. The Trust shall not elect to be
treated as an association under Treasury Regulations Section 301.7701-3(a) for
federal income tax purposes. The parties agree that, unless otherwise required
by appropriate tax authorities, the Trust will file or cause to be filed annual
or other necessary returns, reports and other forms consistent with the
characterization of the Trust as provided in the second preceding sentence for
such tax purposes. Effective as of the date hereof, the Owner Trustee shall have
all rights, powers and duties set forth herein and in the Business Trust Statute
with respect to accomplishing the purposes of the Trust.

                  Section 2.07 Title to Trust Property.

                  (a) Legal title to all the Owner Trust Estate shall be vested
at all times in the Trust as a separate legal entity except where applicable law
in any jurisdiction requires title to any part of the Owner Trust Estate to be
vested in a trustee or trustees, in which case title shall be deemed to be
vested in the Owner Trustee and/or a separate trustee, as the case may be.

                  (b) The Certificateholders shall not have legal title to any
part of the Owner Trust Estate. No transfer by operation of law or otherwise of
any interest of the Certificateholders shall operate to terminate this Agreement
or the trusts hereunder or entitle any transferee to an accounting or to the
transfer to it of any part of the Owner Trust Estate.

                  Section 2.08 Situs of Trust.

                  The Trust will be located and administered in the State of
Delaware. All bank accounts maintained by the Owner Trustee on behalf of the
Trust shall be located in the State of Delaware or the State of New York. The
Trust shall not have any employees; provided, however, that nothing herein shall
restrict or prohibit the Owner Trustee from having employees within or without
the State of Delaware. Payments will be received by the Trust only in Delaware
or New York, and payments will be made by the Trust only from Delaware or New
York. The only office of the Trust will be at the Corporate Trust Office in
Delaware.


                                   ARTICLE III

            CONVEYANCE OF THE OWNER TRUST ESTATE; ADDITIONAL CLASS A
                         CERTIFICATE PRINCIPAL BALANCES


                                      -33-
<PAGE>   41
                  Section 3.01 Conveyance of the Owner Trust Estate; Additional
Class A Certificate Principal Balances.

                  (a) (i) On the terms and conditions of this Agreement, on each
Transfer Date, the Depositor agrees to offer for sale and to sell Loans and
deliver related Loan Documents to or at the direction of the Trust. To the
extent the Trust has or is able to obtain sufficient funds for the purchase
thereof, the Trust agrees to purchase such Loans offered for sale by the
Depositor.

                  (ii) In consideration of the distribution of the Additional
Class A Certificate Principal Balance pursuant to Section 3.06 hereof, the
Depositor, as of the Closing Date and concurrently with the execution and
delivery hereof, does hereby sell, transfer, assign, set over and otherwise
convey to the Trust, without recourse, but subject to the other terms and
provisions of this Agreement, all of the right, title and interest of the
Depositor in and to the Owner Trust Estate.

                  (iii) During the Revolving Period, on each Transfer Date,
subject to the conditions precedent set forth in Section 3.06(a) and in
accordance with the procedures set forth in Section 3.01(c), the Depositor,
pursuant to a T&SA Assignment, will assign to the Trust without recourse all the
right, title and interest of the Depositor in and to the Loans and all proceeds
thereof listed on the Loan Schedule attached to such T&SA Assignment, including
all interest and principal received by the Loan Originator, the Depositor or the
Servicer on or with respect to the Loans after the related Transfer Cutoff Date
(and including Monthly Payments due after the related Transfer Cutoff Date but
received by the Loan Originator on or before the related Transfer Cutoff Date
and held for application on the related scheduled Due Dates, but not including
Monthly Payments due on the Loans on or before the related Transfer Cutoff
Date), together with all right, title and interest in and to the proceeds of any
related Insurance Policies and all of the Depositor's right, title and interest
in and to (but none of its obligations under) the Loan Purchase Agreement and
all proceeds of the foregoing.

                  (iv) The foregoing sales, transfers, assignments, set overs
and conveyances do not, and are not intended to, result in a creation or an
assumption by the Trust of any obligation of the Depositor, the Loan Originator
or any other Person in connection with the Owner Trust Estate or under any
agreement or instrument relating thereto except as specifically set forth
herein.

                  (b) As of the Closing Date and as of each Transfer Date, the
Trust acknowledges (or will acknowledge pursuant to the T&SA Assignment) the
conveyance to it of the Owner Trust Estate, including all right, title and
interest of the Depositor in and to the Owner Trust Estate, receipt of which is
hereby acknowledged by the Trust (or will be acknowledged by the Trust pursuant
to the T&SA Assignment). In addition, concurrently with such delivery and in
exchange therefor, the Owner Trustee, pursuant to the instructions of the
Depositor, has executed (not in its individual capacity, but solely as Owner
Trustee on behalf of the Trust) and caused the Class A Certificates to be
authenticated and delivered to the Initial Class A Certificateholder and the
Class B Certificates to the Depositor.


                                      -34-
<PAGE>   42
                  (c) (i) Pursuant to and subject to the Certificate Purchase
Agreement, the Trust may, at its sole option, from time to time request that the
Initial Class A Certificateholder advance on any Transfer Date and on any
Purchase Value Excess Date, Additional Class A Certificate Principal Balances
and the Initial Class A Certificateholder shall remit on such Transfer Date or
Purchase Value Excess Date, as the case may be, to the Advance Account an amount
equal to the Additional Class A Certificate Principal Balance.

                  (ii) Notwithstanding anything to the contrary herein, in no
event shall the Initial Class A Certificateholder be required to advance
Additional Class A Certificate Principal Balances on a Transfer Date if the
conditions precedent to a transfer of the Loans under Section 3.06(a) and the
conditions precedent to the purchase of Additional Class A Certificate Principal
Balances set forth in Section 3.01 of the Certificate Purchase Agreement have
not been fulfilled.

                  (iii) Notwithstanding anything to the contrary herein, in no
event shall the Initial Class A Certificateholder be required to advance
Additional Class A Certificate Principal Balance on a Purchase Value Excess Date
if the conditions precedent thereto set forth in Section 3.06(b) and the
conditions precedent to the purchase of Additional Class A Certificate Principal
Balances set forth in Section 3.01 of the Certificate Purchase Agreement have
not been fulfilled.

                  (iv) The Servicer shall appropriately note such Additional
Class A Certificate Principal Balance (and the increased Class A Certificate
Principal Balance) in the next succeeding Payment Statement; provided, however,
that failure to make any such notation in such Payment Statement or any error in
such notation shall not adversely affect any Certificateholder's rights with
respect to its Class A Certificate Principal Balance and its right to receive
interest and principal payments in respect of the Class A Certificate Principal
Balance held by such Certificateholder. The Initial Class A Certificateholder
shall record on the schedule attached to such Certificateholder's Class A
Certificate, the date and amount of any Additional Class A Certificate Principal
Balance advanced by it; provided, that failure to make such recordation on such
schedule or any error in such schedule shall not adversely affect any
Certificateholder's rights with respect to its Class A Certificate Principal
Balance and its right to receive interest payments in respect of the Class A
Certificate Principal Balance held by such Certificateholder.

                  (v) Absent manifest error, the Class A Certificate Principal
Balance of each Class A Certificate as set forth in the Initial Class A
Certificateholder's records shall be binding upon the Certificateholders and the
Trust, notwithstanding any notation made by the Servicer in its Payment
Statement pursuant to the preceding paragraph.

                  Section 3.02 Ownership and Possession of Loan Files.

                  With respect to each Loan, as of the related Transfer Date the
ownership of the related Promissory Note, the related Mortgage and the contents
of the related Servicer's Loan File and Custodial Loan File shall be vested in
the Trust for the benefit of the Certificateholders, although possession of the
Servicer's Loan File (other than items required 


                                      -35-
<PAGE>   43
to be maintained in the Custodial Loan Files) on behalf of and for the benefit
of the Certificateholders shall remain with the Servicer, and the Custodian
shall take possession of the Custodial Loan Files as contemplated in Section
3.05 hereof.

                  Section 3.03      Books and Records; Intention of the Parties.

                  (a) As of each Transfer Date, the sale of each of the Loans
conveyed on such Transfer Date shall be reflected on the balance sheets and
other financial statements of the Depositor or the Loan Originator, as the case
may be, as a sale of assets by the Depositor or the Loan Originator, as the case
may be, under GAAP. Each of the Servicer and the Custodian shall be responsible
for maintaining, and shall maintain, a complete set of books and records for
each Loan which shall be clearly marked to reflect the ownership of each Loan,
as of the related Transfer Date, by the Owner Trustee and for the benefit of the
Certificateholders.

                  (b) It is the intention of the parties hereto that, other than
for federal, state and local income or franchise tax purposes, the transfers and
assignments of the Owner Trust Estate on the Closing Date, on each Transfer Date
and as otherwise contemplated by the Basic Documents and the Assignments shall
constitute a sale of the Owner Trust Estate including, without limitation, the
Loans and all other property comprising the Owner Trust Estate specified in
Section 3.01(a) hereof, from the Depositor to the Trust and such property shall
not be property of the Depositor.

                  (c) If any of the assignments and transfers of the Loans and
the other property of the Owner Trust Estate specified in Section 3.01(a) hereof
to the Owner Trustee pursuant to this Agreement or the conveyance of the Loans
or any of such other property of the Owner Trust Estate to the Owner Trustee, is
held or deemed not to be a sale or is held or deemed to be a pledge of security
for a loan, the Depositor intends that the rights and obligations of the parties
shall be established pursuant to the terms of this Agreement and that, in such
event, with respect to such property, (i) consisting of Loans and related
property, the Depositor hereby grants, as of the related Transfer Date, to the
Owner Trustee a first priority security interest in the entire right, title and
interest of the Depositor in and to such Loans and proceeds and all other
property conveyed to the Owner Trustee as of such Transfer Date, (ii) consisting
of any other property specified in Section 3.01(a), the Depositor hereby grants,
as of the Closing Date, to the Owner Trustee a first priority security interest
in the entire right, title and interest of the Depositor in and to such property
and the proceeds thereof. In such event, with respect to such property, this
Agreement shall constitute a security agreement under applicable law.

                  (d) Within ten (10) days of the date first above written, the
Depositor shall, at Depositor's sole expense, cause to be filed UCC-1 Financing
Statements naming the Owner Trustee as "secured party" and describing the Owner
Trust Estate being sold by the Depositor to the Trust with the office of the
Secretary of State of the state in which the Depositor is located.

                  Section 3.04      Delivery of Loan Documents.


                                      -36-
<PAGE>   44
                  (a)(A) With respect to each Loan that is not a Bailee Loan,
the Loan Originator and/or the Depositor, as the case may be, shall, on or
before the related Transfer Date, deliver or cause to be delivered to the
Custodian, as the designated agent of the Owner Trustee, each of the following
documents (collectively, the "Custodial Loan File"):

                  (1) The original Promissory Note bearing all intervening
endorsements, endorsed "Pay to the order of _________ without recourse" and
signed in the name of the last endorsee (the "Last Endorsee") by an authorized
Person (in the event that the Loan was acquired by the Last Endorsee in a
merger, the signature must be in the following form: "[Last Endorsee], successor
by merger to [name of predecessor]"; in the event that the Loan was acquired or
originated by the Last Endorsee while doing business under another name, the
signature must be in the following form: "[Last Endorsee], formerly known as
[previous name]").

                  (2) The original of any guarantee executed in connection with
the Promissory Note (if any).

                  (3) The original Mortgage with evidence of recording thereon,
or a copy thereof together with an Officer's Certificate of the Loan Originator
certifying that such represents a true and correct copy of the original and that
such original has been submitted for recordation in the appropriate governmental
recording office of the jurisdiction where the Mortgaged Property is located.

                  (4) The originals of all assumption, modification,
consolidation or extension agreements with evidence of recording thereon, or
copies thereof together with an Officer's Certificate of the Loan Originator
certifying that such represent true and correct copies of the originals and that
such originals have each been submitted for recordation in the appropriate
governmental recording office of the jurisdiction where the Mortgaged Property
is located.

                  (5) The original Assignment of Mortgage in blank for each
Loan, in form and substance acceptable for recording and signed in the name of
the Last Endorsee (in the event that the Loan was acquired by the Last Endorsee
in a merger, the signature must be in the following form: "[Last Endorsee],
successor by merger to [name of predecessor]"; in the event that the Loan was
acquired or originated while doing business under another name, the signature
must be in the following form: "[Last Endorsee], formerly known as [previous
name]").

                  (6) The originals of all intervening assignments of mortgage
with evidence of recording thereon, or copies thereof together with an Officer's
Certificate of the Loan Originator certifying that such represent true and
correct copies of the originals and that such originals have each been submitted
for recordation in the appropriate governmental recording office of the
jurisdiction where the Mortgaged Property is located.

                  (7) The original attorney's opinion of title and abstract of
title or the original mortgagee title insurance policy, or if the original
mortgagee title insurance policy has not been issued, the irrevocable commitment
to issue the same.


                                      -37-
<PAGE>   45
                  (8) The original of any security agreement, chattel mortgage
or equivalent document executed in connection with the Loan.

                  (9) The original assignment of leases and rents, if any, with
evidence of recording thereon, or a copy thereof together with an Officer's
Certificate of the Loan Originator certifying that such copy represents a true
and correct copy of the original that has been submitted for recordation in the
appropriate governmental recording office of the jurisdiction where the
Mortgaged Property is located.

                  (10) The original assignment of assignment of leases and
rents, if any, from the Loan Originator in blank, in form and substance
acceptable for recording.

                  (11) A copy of the UCC-1 Financing Statements, certified as
true and correct by the Loan Originator, and all necessary UCC-3 Continuation
Statements with evidence of filing thereon or copies thereof certified by the
Loan Originator to have been sent for filing, and UCC-3 Assignments executed by
the Loan Originator in blank, which UCC-3 Assignments shall be in form and
substance acceptable for filing.

                  (12) An environmental indemnity agreement (if any).

                  (13) An omnibus assignment in blank (if any).

                  (14) A disbursement letter from the Borrower to the original
mortgagee (if any).

                  (15) Borrower's certificate or title affidavit (if any).

                  (16) A survey of the Mortgaged Property (if any).

                  (17) A copy of the Borrower's opinion of counsel (if any).

                  (B) With respect to each Bailee Loan:



                  (i) By no later than 10:00 a.m., New York City Time, on the
Transfer Date, the Loan Originator shall cause the Bailee to deliver to the
Custodian by facsimile copies of:

                  (1) a fully executed Bailee Agreement and a trust receipt
issued thereunder (as required in the Bailee Agreement) (to the extent that the
Promissory Notes and Assignment of Mortgage have not been previously delivered
to the Custodian); and

                  (2) the fully executed Promissory Note (to the extent that the
original Promissory Note has not been previously delivered to the Custodian);
and


                                      -38-
<PAGE>   46
                      (3) the Assignment of Mortgage (to the to the extent that
the original Assignment of Mortgage has not been previously delivered to the
Custodian.

                  (ii) Within three Business Days following the Transfer Date,
the Loan Originator shall have delivered or caused to be delivered to the
Custodian, by fully insured courier service reasonably acceptable to the Initial
Class A Certificateholders, the Custodial Loan File documents not previously
delivered pursuant hereto.

                  (b) With respect to each Loan, the Loan Originator and the
Depositor shall, on the related Transfer Date, deliver or cause to be delivered
to the Servicer for the benefit of the Owner Trustee, as secured party on behalf
of the Certificateholders, the related Servicer's Loan File.

                  (c) The Owner Trustee shall cause the Custodian to take and
maintain continuous physical possession of the Custodial Loan Files in the State
of Illinois and, in connection therewith, shall act solely as agent for the
Certificateholders in accordance with the terms hereof and not as agent for the
Loan Originator, the Servicer or any other party.

                  Section 3.05      Acceptance by the Owner Trustee of the
                                    Loans; Certain Substitutions and
                                    Repurchases; Certification by the Custodian.

                  (a) The Owner Trustee declares that it will cause the
Custodian to hold the Custodial Loan Files and any additions, amendments,
replacements or supplements to the documents contained therein, as well as any
other assets included in the Owner Trust Estate and delivered to the Custodian,
in trust, upon and subject to the conditions set forth herein. The Owner Trustee
further agrees to cause the Custodian to execute and deliver such certifications
as are required under the Custodial Agreement and to otherwise direct the
Custodian to perform all of its obligations with respect to the Custodial Loan
Files in strict accordance with the terms of the Custodial Agreement.

                  (b) (i) With respect to any Loans which are set forth as
exceptions in the Loan Schedule and Exceptions Report, the Loan Originator shall
cure such exception by delivering such missing documents to the Custodian or
otherwise curing the defect no later than (A) 5 Business Days after the receipt
of the Initial Certification or the first Loan Schedule and Exceptions Report
with respect to such Loan (or in the case of a Bailee Loan, 5 Business days
after the related Transfer Date with respect thereto) or (B) in the case of Loan
Documents which have been delivered to recording or filing offices and have not
been returned to the Loan Originator to permit their delivery to the Custodian
at the time required, 90 days after the related Transfer Date.

                      (ii) In the event that, with respect to any Loan, the Loan
Originator does not comply with the document delivery requirements of this
Section 3.05, the Loan Originator shall purchase such Loan at the Purchase Price
with respect to such Loan by depositing such Purchase Price in the Collection
Account. The Loan Originator shall provide the Servicer, the Owner Trustee, the
Trust and the Initial Class A Certificateholder with a certification of a
Responsible Officer prior to such repurchase indicating that the Loan


                                      -39-
<PAGE>   47
Originator intends to repurchase such Loan. In lieu of such a repurchase, the
Depositor and Loan Originator may comply with the substitution provisions of
Section 3.05 hereof.

                           (iii) It is understood and agreed that the obligation
of the Loan Originator to repurchase any such Loan
pursuant to this Section 3.05(b) shall constitute the sole remedy against it
with respect to such failure to comply with the foregoing delivery requirements.

                  (c) In performing its reviews of the Custodial Loan Files
pursuant to the Custodial Agreement, the Custodian shall have no responsibility
to determine the genuineness of any document contained therein and any signature
thereon. The Custodian shall not have any responsibility for determining whether
any document is valid and binding, whether the text of any assignment or
endorsement is in proper or recordable form, whether any document has been
recorded in accordance with the requirements of any applicable jurisdiction or
whether a blanket assignment is permitted in any applicable jurisdiction.

                  (d) The Servicer's Loan File shall be held in the custody of
the Servicer (i) for the benefit of, and as agent for, the Certificateholders
and (ii) for the benefit of the Owner Trustee, on behalf of the Class A
Certificateholders, for so long as the Class A Certificates are outstanding;
after the Class A Certificates are not outstanding, the Servicer's Loan File
shall be held in the custody of the Servicer for the benefit of, and as agent
for, the Class B Certificateholders. It is intended that, by the Servicer's
agreement pursuant to this Section 3.05(d), the Owner Trustee shall be deemed to
have possession of the Servicer's Loan Files for purposes of Section 9-305 of
the UCC of the state in which such documents or instruments are located. The
Servicer shall promptly report to the Owner Trustee any failure by it to hold
the Servicer's Loan File as herein provided and shall promptly take appropriate
action to remedy any such failure. In acting as custodian of such documents and
instruments, the Servicer agrees not to assert any legal or beneficial ownership
interest in the Loans or such documents or instruments. The Servicer agrees to
indemnify the Certificateholders and the Owner Trustee, its officers, directors,
employees, agents and "control persons" as such term is used under the Act and
under the Securities Exchange Act of 1934, as amended for any and all
liabilities, obligations, losses, damages, payments, costs or expenses of any
kind whatsoever which may be imposed on, incurred by or asserted against the
Certificateholders or the Owner Trustee as the result of any act or omission by
the Servicer relating to the maintenance and custody of such documents or
instruments which have been delivered to the Servicer; provided, however, that
the Servicer will not be liable for any portion of any such amount resulting
from the negligence or willful misconduct of any Certificateholders or the Owner
Trustee; and provided, further, that the Servicer will not be liable for any
portion of any such amount resulting from the Servicer's compliance with any
instructions or directions consistent with this Agreement issued to the Servicer
by the Owner Trustee. The Owner Trustee shall have no duty to monitor or
otherwise oversee the Servicer's performance as custodian hereunder.

                  Section 3.06 Conditions Precedent to Transfer Dates and
Purchase Value Excess Dates.


                                      -40-
<PAGE>   48
                  (a) On each Transfer Date, the Depositor shall convey to the
Trust, the Loans and the other property and rights related thereto described in
the related T&SA Assignment. The Trust, only upon the satisfaction of each of
the conditions set forth below on or prior to such Transfer Date, shall deposit
or cause to be deposited cash in the amount of the Additional Class A
Certificate Principal Balance in the Advance Account in respect thereof, and the
Servicer shall, promptly after such deposit, withdraw the amount deposited in
respect of applicable Additional Class A Certificate Principal Balance from the
Advance Account, and distribute such amount to or at the direction of the
Depositor. 

                           (i)      the Depositor shall have delivered to the
                                    Trust and the Initial Class A
                                    Certificateholder duly executed Assignments,
                                    which shall have attached thereto a Loan
                                    Schedule setting forth the appropriate
                                    information with respect to all Loans
                                    conveyed on such Transfer Date and shall
                                    have delivered to the Initial Class A
                                    Certificateholder a computer readable
                                    transmission of such Loan Schedule;

                           (ii)     the Depositor shall have deposited in the
                                    Collection Account all collections received
                                    with respect to each of the Loans after but
                                    not including the applicable Transfer Cutoff
                                    Date;

                           (iii)    as of such date, neither the Loan
                                    Originator, the Trust nor the Depositor
                                    shall (A) be insolvent, (B) be made
                                    insolvent by its respective sale of Loans or
                                    (C) have reason to believe that its
                                    insolvency is imminent;

                           (iv)     the Revolving Period shall not have
                                    terminated;

                           (v)      the Initial Class A Certificateholder shall
                                    have received the Due Diligence Packages for
                                    such Loans as are to be transferred on such
                                    Transfer Date at least five Business Days
                                    prior to the related Transfer Date, shall
                                    have completed its due diligence
                                    investigation of such Loans and shall have
                                    approved, in its sole discretion, each such
                                    Loan;

                           (vi)     the Trust shall have delivered the Custodial
                                    Loan File to the Custodian in accordance
                                    with the Custodial Agreement and the Initial
                                    Class A Certificateholder shall have
                                    received a copy of the Loan Schedule and
                                    Exceptions Report reflecting such delivery;

                           (vii)    each of the representations and warranties
                                    made by the Loan Originator pursuant to
                                    Section 4.04 with respect to the Loans shall
                                    be true and correct as of the related
                                    Transfer Date with the same effect as if
                                    then made, and the Depositor shall have
                                    performed all obligations to be performed by
                                    it under the Basic Documents on or prior to
                                    such Transfer Date;

                                      -41-
<PAGE>   49
                           (viii)   the Depositor shall, at its own expense, on
                                    or prior to the Transfer Date, indicate in
                                    its computer files that the Loans identified
                                    in the LPA Assignment and T&SA Assignment
                                    have been sold to the Trust pursuant to this
                                    Agreement and the T&SA Assignment;

                           (ix)     the Depositor shall have taken any action
                                    required to maintain the ownership interest
                                    of the Trust in the Owner Trust Estate; 

                           (x)      no selection procedures believed by the
                                    Depositor to be adverse to the interests of
                                    the Certificateholders shall have been
                                    utilized in selecting the Loans to be
                                    conveyed on such Transfer Date;

                           (xi)     the Depositor shall have provided the Trust,
                                    the Owner Trustee and the Initial Class A
                                    Certificateholder no later than two Business
                                    Days prior to such date a Notice of
                                    Additional Class A Certificate Principal
                                    Balance in the form of Exhibit A hereto;

                           (xii)    after giving effect to the Additional Class
                                    A Certificate Principal Balance associated
                                    therewith, the Class A Certificate Principal
                                    Balance will not exceed the Maximum Class A
                                    Certificate Principal Balance;

                           (xiii)   all conditions precedent to the Depositor's
                                    purchase of Loans pursuant to the Loan
                                    Purchase Agreement shall have been fulfilled
                                    as of such Transfer Date; and

                           (xiv)    all conditions precedent to the
                                    Certificateholders' purchase of Additional
                                    Class A Certificate Principal Balance
                                    pursuant to the Certificate Purchase
                                    Agreement shall have been fulfilled as of
                                    such date.

                  (b) On each Purchase Value Excess Date, upon the satisfaction
of conditions set forth in subclauses (iii), (iv), (ix), (xi), (xii), (xiii) and
(xiv) of Section 3.06(a) on such Purchase Value Excess Date, the Trust shall
deposit or cause to be deposited into (i) the Transfer Obligation Account, cash
in the amount equal to the lesser of (A) the Additional Class A Certificate
Principal Balance and (B) the Transfer Obligation Target Amount and (ii) the
Advance Account the excess (if any) of the Additional Class A Certificate
Principal Balance over the amount deposited into the Transfer Obligation Account
pursuant to clause (i) above. The Servicer shall withdraw the amount deposited
in respect of Additional Class A Certificate Principal Balance from the Advance
Account in respect of such deposit and distribute such amount to or at the
direction of the Depositor.

                  Section 3.07      Termination of Revolving Period.


                                      -42-
<PAGE>   50
                  Upon the occurrence of (i) an Event of Default or Default
under this Agreement or (ii) a Rapid Amortization Trigger, the Initial Class A
Certificateholder (if still a Certificateholder) may, in its sole discretion,
terminate the Revolving Period.


                                   ARTICLE IV

                         REPRESENTATIONS AND WARRANTIES

                  Section 4.01 Representations and Warranties of the Depositor.

                  The Depositor hereby represents, warrants and covenants to the
other parties hereto and the Certificateholders that as of the Closing Date, as
of each Transfer Date and as of each Purchase Value Excess Date:

                  (a) The Depositor is a Delaware limited partnership duly
         organized, validly existing and in good standing under the laws of the
         State of Delaware and has, and had at all relevant times, full power to
         own its property, to carry on its business as currently conducted, to
         enter into and perform its obligations under each Basic Document to
         which it is a party;

                  (b) The execution and delivery of each Basic Document to which
         it is a party by the Depositor and its performance of and compliance
         with all of the terms thereof will not violate the Depositor's
         organizational documents or constitute a default (or an event which,
         with notice or lapse of time, or both, would constitute a default)
         under, or result in the breach or acceleration of, any material
         contract, agreement or other instrument to which the Depositor is a
         party or which may be applicable to the Depositor or any of its assets;

                  (c) The Depositor has the full power and authority to enter
         into and consummate the transactions contemplated by each Basic
         Document to which it is a party, has duly authorized the execution,
         delivery and performance of each Basic Document to which it is a party
         and has duly executed and delivered each Basic Document to which it is
         a party. Each Basic Document to which it is a party, assuming due
         authorization, execution and delivery by the other party or parties
         thereto, constitutes a valid, legal and binding obligation of the
         Depositor, enforceable against it in accordance with the terms thereof,
         except as such enforcement may be limited by bankruptcy, insolvency,
         reorganization, receivership, moratorium or other similar laws relating
         to or affecting the rights of creditors generally, and by general
         equity principles (regardless of whether such enforcement is considered
         in a proceeding in equity or at law);

                  (d) The Depositor is not in violation of, and the execution
         and delivery of each Basic Document to which it is a party by the
         Depositor and its performance and compliance with the terms of each
         Basic Document to which it is a party will not constitute a violation
         with respect to, any order or decree of any court or any order or


                                      -43-
<PAGE>   51
         regulation of any federal, state, municipal or governmental agency
         having jurisdiction, which violation would materially and adversely
         affect the condition (financial or otherwise) or operations of the
         Depositor or its properties or materially and adversely affect the
         performance of its duties hereunder;

                  (e) There are no actions or proceedings against, or
         investigations of, the Depositor currently pending with regard to which
         the Depositor has received service of process and no action or
         proceeding against, or investigation of, the Depositor is, to the
         knowledge of the Depositor, threatened or otherwise pending before any
         court, administrative agency or other tribunal that (A) if determined
         adversely to the Depositor, would prohibit its entering into any of the
         Basic Documents to which it is a party or render the Certificates
         invalid, (B) seek to prevent the issuance of the Certificates or the
         consummation of any of the transactions contemplated by any of the
         Basic Documents to which it is a party or (C) if determined adversely
         to the Depositor, would prohibit or materially and adversely affect the
         performance by the Depositor of its obligations under, or the validity
         or enforceability of, any of the Basic Documents to which it is a party
         or the Certificates;

                  (f) No consent, approval, authorization or order of any court
         or governmental agency or body is required for the execution, delivery
         and performance by the Depositor of, or compliance by the Depositor
         with, any of the Basic Documents to which it is a party or the
         Certificates, or for the consummation of the transactions contemplated
         by any of the Basic Documents to which it is a party, except for such
         consents, approvals, authorizations and orders, if any, that have been
         obtained prior to the Closing Date;

                  (g) The Depositor is solvent, is able to pay its debts as they
         become due and has capital sufficient to carry on its business and its
         obligations hereunder; it will not be rendered insolvent by the
         execution and delivery of any of the Basic Documents to which it is a
         party or the assumption of any of its obligations thereunder; no
         petition of bankruptcy (or similar insolvency proceeding) has been
         filed by or against the Depositor;

                  (h) As of the Transfer Date related thereto, the Depositor did
         not sell the Loans sold thereon to the Trust with any intent to hinder,
         delay or defraud any of its creditors; nor will the Depositor be
         rendered insolvent as a result of such sale;

                  (i) As of the Transfer Date related thereto, the Depositor had
         good title to, and was the sole owner of, each Loan sold thereon free
         and clear of any lien other than any such lien released simultaneously
         with the sale contemplated herein, and, immediately upon each transfer
         and assignment herein contemplated, the Depositor will have delivered
         to the Trust good title to, and the Trust will be the sole owner of,
         each Loan transferred thereon free and clear of any lien;

                  (j) As of the Transfer Date related thereto, the Depositor
         acquired title to each of the Loans sold thereon in good faith, without
         notice of any adverse claim;


                                      -44-
<PAGE>   52
                  (k) The information, reports, financial statements, exhibits
         and schedules furnished in writing by or on behalf of the Depositor to
         the Initial Class A Certificateholder in connection with the
         negotiation, preparation or delivery of the Basic Documents to which it
         is a party, or delivered pursuant thereto, when taken as a whole, do
         not contain any untrue statement of material fact or omit to state any
         material fact necessary to make the statements therein, in light of the
         circumstances under which they were made, not misleading. All written
         information furnished after the date hereof by or on behalf of the
         Depositor to the Initial Class A Certificateholder in connection with
         the Basic Documents to which it is a party and the transactions
         contemplated thereby will be true, complete and accurate in every
         material respect, or (in the case of projections) based on reasonable
         estimates, on the date as of which such information is stated or
         certified. There is no fact known to a Responsible Officer of the
         Depositor, after due inquiry, that could reasonably be expected to have
         a material adverse effect on (a) the property, business, operations,
         financial condition or prospects of the Depositor, (b) the ability of
         the Depositor to perform its obligations under any Basic Document to
         which it is a party, (c) the validity or enforceability of any of the
         Basic Documents, (d) the rights and remedies of the Initial Class A
         Certificateholder and the Owner Trustee under any of the Basic
         Documents, (e) the timely distribution of the principal of or interest
         on the Certificates or other amounts distributable in connection
         therewith or (f) the Owner Trust Estate that has not been disclosed to
         the Initial Class A Certificateholder in a report, financial statement,
         exhibit, schedule, disclosure letter or other writing furnished to the
         Initial Class A Certificateholder for use in connection with the
         transactions contemplated thereby;

                  (l) The Depositor is not required to be registered as an
         "investment company" under the Investment Company Act of 1940, as
         amended;

                  (m) As of the Transfer Date related thereto, the transfer,
         assignment and conveyance of the Loans by the Depositor thereon
         pursuant to this Agreement is not subject to the bulk transfer laws or
         any similar statutory provisions in effect in any applicable
         jurisdiction;

                  (n) The Depositor's principal place of business and chief
         executive offices are located at 1850 N. Central Ave., Phoenix, AZ
         85004;

                  (o) The Depositor covenants with the Owner Trustee that during
         the continuance of this Agreement it will comply in all respects with
         the provisions of its organizational documents in effect from time to
         time;

                  (p) The General Partner is a Delaware corporation duly
         organized, validly existing and in good standing under the laws of the
         State of Delaware and has, and had at all relevant times, full power to
         own its property, to carry on its business as currently conducted, to
         enter into and perform its obligations under each Basic Document to
         which it is a party;


                                      -45-
<PAGE>   53
                  (q) The execution and delivery of each Basic Document on
         behalf of the Depositor which the Depositor is a party will not violate
         the General Partner's certificate of incorporation or by-laws or
         constitute a default (or an event which, with notice or lapse of time,
         or both, would constitute a default) under, or result in the breach or
         acceleration of, any material contract, agreement or other instrument
         to which the General Partner is a party or which may be applicable to
         the General Partner or any of its assets;

                  (r) The General Partner has the full power and authority to
         cause the Depositor to enter into and consummate the transactions
         contemplated by each Basic Document to which the Depositor is a party,
         has duly authorized the execution, delivery and performance on behalf
         of the Depositor of each Basic Document to which the Depositor is a
         party and has duly executed and delivered on behalf of the Depositor
         each Basic Document to which the Depositor is a party;

                  (s) The General Partner is not in violation of, and the
         execution and delivery of each Basic Document to which it is a party by
         the General Partner and its performance and compliance with the terms
         of each Basic Document to which it is a party will not constitute a
         violation with respect to, any order or decree of any court or any
         order or regulation of any federal, state, municipal or governmental
         agency having jurisdiction, which violation would materially and
         adversely affect the condition (financial or otherwise) or operations
         of the General Partner or its properties or materially and adversely
         affect the performance of its duties hereunder;

                  (t) The General Partner is solvent, is able to pay its debts
         as they become due and has capital sufficient to carry on its business
         and its obligations; no petition of bankruptcy (or similar insolvency
         proceeding) has been filed by or against the General Partner; and

                  (u) The General Partner covenants with the Owner Trustee that
         during the continuance of this Agreement it will comply in all respects
         with the provisions of its organizational documents in effect from time
         to time.

                  Section 4.02 Representations and Warranties of the Loan
Originator.

                  The Loan Originator hereby represents and warrants to the
         other parties hereto and the Certificateholders that as of the Closing
         Date, as of each Transfer Date and as of each Purchase Value Excess
         Date:

                  (a) The Loan Originator is a corporation duly organized,
         validly existing and in good standing under the laws of the State of
         Delaware and (i) is duly qualified, in good standing and if required by
         law, licensed to carry on its business in each state where any
         Mortgaged Property is located to the extent required under applicable
         law and (ii) is in compliance with the laws of any such state, in both
         cases, to the extent necessary to ensure the enforceability of the
         Loans in accordance with the terms thereof and had at all relevant
         times, full corporate power to originate the Loans, to own its


                                      -46-
<PAGE>   54
         property, to carry on its business as currently conducted and to enter
         into and perform its obligations under each Basic Document to which it
         is a party;

                  (b) The execution and delivery by the Loan Originator of each
         Basic Document to which it is a party and its performance of and
         compliance with the terms thereof will not violate the Loan
         Originator's articles of incorporation or by-laws or constitute a
         default (or an event which, with notice or lapse of time, or both,
         would constitute a default) under, or result in the breach or
         acceleration of, any contract, agreement or other instrument to which
         the Loan Originator is a party or which may be applicable to the Loan
         Originator or any of its assets;

                  (c) The Loan Originator has the full power and authority to
         enter into and consummate all transactions contemplated by the Basic
         Documents to be consummated by it, has duly authorized the execution,
         delivery and performance of each Basic Document to which it is a party
         and has duly executed and delivered each Basic Document to which it is
         a party. Each Basic Document to which it is a party, assuming due
         authorization, execution and delivery by each of the other parties
         thereto, constitutes a valid, legal and binding obligation of the Loan
         Originator, enforceable against it in accordance with the terms hereof,
         except as such enforcement may be limited by bankruptcy, insolvency,
         reorganization, receivership, moratorium or other similar laws relating
         to or affecting the rights of creditors generally, and by general
         equity principles (regardless of whether such enforcement is considered
         in a proceeding in equity or at law);

                  (d) The Loan Originator is not in violation of, and the
         execution and delivery of each Basic Document to which it is a party by
         the Loan Originator and its performance and compliance with the terms
         of each Basic Document to which it is a party will not constitute a
         violation with respect to, any order or decree of any court or any
         order or regulation of any federal, state, municipal or governmental
         agency having jurisdiction, which violation would materially and
         adversely affect the condition (financial or otherwise) or operations
         of the Loan Originator or its properties or materially and adversely
         affect the performance of its duties under any Basic Document to which
         it is a party;

                  (e) There are no actions or proceedings against, or
         investigations of, the Loan Originator currently pending with regard to
         which the Loan Originator has received service of process and no action
         or proceeding against, or investigation of, the Loan Originator is, to
         the knowledge of the Loan Originator, threatened or otherwise pending
         before any court, administrative agency or other tribunal that (A) if
         determined adversely to the Loan Originator, would prohibit its
         entering into any Basic Document to which it is a party or render the
         Certificates invalid, (B) seek to prevent the issuance of the
         Certificates or the consummation of any of the transactions
         contemplated by any Basic Document to which it is a party or (C) if
         determined adversely to the Loan Originator, would prohibit or
         materially and adversely affect the sale of the Loans to the Depositor,
         the performance by the Loan Originator of its obligations under, or the


                                      -47-
<PAGE>   55
         validity or enforceability of, any Basic Document to which it is a
         party or the Certificates;

                  (f) No consent, approval, authorization or order of any court
         or governmental agency or body is required for: (1) the execution,
         delivery and performance by the Loan Originator of, or compliance by
         the Loan Originator with, any Basic Document to which it is a party,
         (2) the issuance of the Certificates, (3) the sale of the Loans under
         the Loan Purchase Agreement or (4) the consummation of the transactions
         required of it by any Basic Document to which it is a party, except
         such as shall have been obtained before such date;

                  (g) Immediately prior to the Transfer Date related thereto,
         the Loan Originator had good title to the Loans sold on such Transfer
         Date without notice of any adverse claim;

                  (h) The information, reports, financial statements, exhibits
         and schedules furnished in writing by or on behalf of the Loan
         Originator to the Initial Class A Certificateholder in connection with
         the negotiation, preparation or delivery of the Basic Documents to
         which it is a party or delivered pursuant thereto, when taken as a
         whole, do not contain any untrue statement of material fact or omit to
         state any material fact necessary to make the statements therein, in
         light of the circumstances under which they were made, not misleading.
         All written information furnished after the date hereof by or on behalf
         of the Loan Originator to the Initial Class A Certificateholder in
         connection with the Basic Documents to which it is a party and the
         transactions contemplated thereby will be true, complete and accurate
         in every material respect, or (in the case of projections) based on
         reasonable estimates, on the date as of which such information is
         stated or certified. There is no fact known to a Responsible Officer of
         the Loan Originator, after due inquiry, that could reasonably be
         expected to have a material adverse effect on (a) the property,
         business, operations, financial condition or prospects of the Loan
         Originator, (b) the ability of the Loan Originator to perform its
         obligations under any Basic Document to which it is a party, (c) the
         validity or enforceability of any of the Basic Documents, (d) the
         rights and remedies of the Initial Class A Certificateholder and the
         Owner Trustee under any of the Basic Documents, (e) the timely
         distribution of the principal of or interest on the Certificates or
         other amounts distributable in connection therewith or (f) the Owner
         Trust Estate that has not been disclosed to the Initial Class A
         Certificateholder in a report, financial statement, exhibit, schedule,
         disclosure letter or other writing furnished to the Initial Class A
         Certificateholder for use in connection with the transactions
         contemplated thereby;

                  (i) The Loan Originator is solvent, is able to pay its debts
         as they become due and has capital sufficient to carry on its business
         and its obligations under each Basic Document to which it is a party;
         it will not be rendered insolvent by the execution and delivery of this
         Agreement or by the performance of its obligations under each Basic
         Document to which it is a party; no petition of bankruptcy (or similar
         insolvency proceeding) has been filed by or against the Loan Originator
         prior to the date hereof;



                                      -48-
<PAGE>   56
                  (j) As of the Transfer Date related thereto, the Loan
         Originator has transferred the Loans transferred on or prior to such
         Transfer Date without any intent to hinder, delay or defraud any of its
         creditors;

                  (k) As of the Transfer Date related thereto, the Loan
         Originator has received fair consideration and reasonably equivalent
         value in exchange for the Loans sold on such Transfer Date to the
         Depositor; and

                  (l) The Loan Originator's principal place of business and
         chief executive offices are located at 1850 N. Central Ave., Phoenix,
         AZ 85004.

                  It is understood and agreed that the representations and
warranties set forth in this Section 4.02 shall survive delivery of the
respective Custodial Loan Files to the Custodian (as the agent of the Owner
Trustee) and shall inure to the benefit of the Certificateholders, the
Depositor, the Servicer, the Owner Trustee and the Trust. Upon discovery by any
of the Loan Originator, the Depositor, the Servicer, the Owner Trustee or the
Trust of a breach of any of the foregoing representations and warranties that
materially and adversely affects the value of any Loan or the interests of the
Certificateholders therein, the party discovering such breach shall give prompt
written notice (but in no event later than five Business Days following such
discovery) to the other parties. The obligations of the Loan Originator set
forth in Sections 3.05 and 4.05 hereof to cure any breach or to substitute for
or repurchase an affected Loan shall constitute the sole remedies available
hereunder to the Certificateholders, the Depositor, the Servicer, the Owner
Trustee or the Trust respecting a breach of the representations and warranties
contained in this Section 4.02. The fact that the Initial Class A
Certificateholder has conducted or has failed to conduct any partial or complete
due diligence investigation of the Loan Files shall not affect the
Certificateholders' rights to demand repurchase or substitution as provided
under this Agreement.

                  Section 4.03 Representations, Warranties and Covenants of the
Servicer.

                  The Servicer hereby represents and warrants to and covenants
with the other parties hereto and the Certificateholders that as of the Closing
Date, as of each Transfer Date and as of each Purchase Value Excess Date:

                  (a) The Servicer is a corporation duly organized, validly
         existing and in good standing under the laws of the State of Delaware
         and (i) is duly qualified, in good standing and licensed to carry on
         its business in each state where any Mortgaged Property is located, and
         (ii) is in compliance with the laws of any such state, in both cases,
         to the extent necessary to ensure the enforceability of the Loans in
         accordance with the terms thereof and to perform its duties under each
         Basic Document to which it is a party and had at all relevant times,
         full corporate power to own its property, to carry on its business as
         currently conducted, to service the Loans and to enter into and perform
         its obligations under each Basic Document to which it is a party;

                  (b) The execution and delivery by the Servicer of each Basic
         Document to which it is a party and its performance of and compliance
         with the terms thereof will 


                                      -49-
<PAGE>   57
         not violate the Servicer's articles of incorporation or by-laws or
         constitute a default (or an event which, with notice or lapse of time,
         or both, would constitute a default) under, or result in the breach or
         acceleration of, any material contract, agreement or other instrument
         to which the Servicer is a party or which may be applicable to the
         Servicer or any of its assets;

                  (c) The Servicer has the full power and authority to enter
         into and consummate all transactions contemplated by each Basic
         Document to which it is a party, has duly authorized the execution,
         delivery and performance of each Basic Document to which it is a party
         and has duly executed and delivered each Basic Document to which it is
         a party. Each Basic Document to which it is a party, assuming due
         authorization, execution and delivery by each of the other parties
         thereto, constitutes a valid, legal and binding obligation of the
         Servicer, enforceable against it in accordance with the terms hereof,
         except as such enforcement may be limited by bankruptcy, insolvency,
         reorganization, receivership, moratorium or other similar laws relating
         to or affecting the rights of creditors generally, and by general
         equity principles (regardless of whether such enforcement is considered
         in a proceeding in equity or at law);

                  (d) The Servicer is not in violation of, and the execution and
         delivery of each Basic Document to which it is a party by the Servicer
         and its performance and compliance with the terms of each Basic
         Document to which it is a party will not constitute a violation with
         respect to, any order or decree of any court or any order or regulation
         of any federal, state, municipal or governmental agency having
         jurisdiction, which violation would materially and adversely affect the
         condition (financial or otherwise) or operations of the Servicer or
         materially and adversely affect the performance of its duties under any
         Basic Document to which it is a party;

                  (e) There are no actions or proceedings against, or
         investigations of, the Servicer currently pending with regard to which
         the Servicer has received service of process and no action or
         proceeding against, or investigation of, the Servicer is, to the
         knowledge of the Servicer, threatened or otherwise pending before any
         court, administrative agency or other tribunal that (A) if determined
         adversely to the Servicer, would prohibit its entering into any Basic
         Document to which it is a party, (B) seek to prevent the consummation
         of any of the transactions contemplated by any Basic Document to which
         it is a party or (C) if determined adversely to the Servicer, would
         prohibit or materially and adversely affect the performance by the
         Servicer of its obligations under, or the validity or enforceability
         of, any Basic Document to which it is a party or the Certificates;

                  (f) No consent, approval, authorization or order of any court
         or governmental agency or body is required for the execution, delivery
         and performance by the Servicer of, or compliance by the Servicer with,
         any Basic Document to which it is a party or the Certificates, or for
         the consummation of the transactions contemplated 


                                      -50-
<PAGE>   58
         by any Basic Document to which it is a party, except for such consents,
         approvals, authorizations and orders, if any, that have been obtained
         prior to such date;

                  (g) The information, reports, financial statements, exhibits
         and schedules furnished in writing by or on behalf of the Servicer to
         the Initial Class A Certificateholder in connection with the
         negotiation, preparation or delivery of the Basic Documents to which it
         is a party or delivered pursuant thereto, when taken as a whole, do not
         contain any untrue statement of material fact or omit to state any
         material fact necessary to make the statements therein, in light of the
         circumstances under which they were made, not misleading. All written
         information furnished after the date hereof by or on behalf of the
         Servicer to the Initial Class A Certificateholder in connection with
         the Basic Documents to which it is a party and the transactions
         contemplated thereby will be true, complete and accurate in every
         material respect, or (in the case of projections) based on reasonable
         estimates, on the date as of which such information is stated or
         certified. There is no fact known to a Responsible Officer of the
         Servicer, after due inquiry, that could reasonably be expected to have
         a material adverse effect on (a) the property, business, operations,
         financial condition or prospects of the Servicer, (b) the ability of
         the Servicer to perform its obligations under any Basic Document to
         which it is a party, (c) the validity or enforceability of any of the
         Basic Documents, (d) the rights and remedies of the Initial Class A
         Certificateholder and the Owner Trustee under any of the Basic
         Documents, (e) the timely distribution of the principal of or interest
         on the Certificates or other amounts distributable in connection
         therewith or (f) the Owner Trust Estate that has not been disclosed to
         the Initial Class A Certificateholder in a report, financial statement,
         exhibit, schedule, disclosure letter or other writing furnished to the
         Initial Class A Certificateholder for use in connection with the
         transactions contemplated thereby;

                  (h) The Servicer is solvent and will not be rendered insolvent
         as a result of the performance of its obligations pursuant to under the
         Basic Documents to which it is a party;

                  (i) The Servicer acknowledges and agrees that the Servicing
         Fee represents reasonable compensation for the performance of its
         services hereunder and that the entire Servicing Fee shall be treated
         by the Servicer, for accounting purposes, as compensation for the
         servicing and administration of the Loans pursuant to this Agreement;
         and

                  (j) The Servicer is an Eligible Servicer and covenants to
         remain an Eligible Servicer or, if not an Eligible Servicer, each
         Subservicer is an Eligible Servicer and the Servicer covenants to
         utilize Subservicers that are Eligible Servicers.

                  It is understood and agreed that the representations,
warranties and covenants set forth in this Section 4.03 shall survive delivery
of the respective Custodial Loan Files to the Owner Trustee or the Custodian on
its behalf and shall inure to the benefit of the Depositor, the
Certificateholders, the Owner Trustee and the Trust. Upon discovery by any of
the Loan 

                                      -51-
<PAGE>   59
Originator, the Depositor, the Servicer, the Owner Trustee or the Trust of a
breach of any of the foregoing representations, warranties and covenants that
materially and adversely affects the value of any Loans or the interests of the
Certificateholders therein, the party discovering such breach shall give prompt
written notice (but in no event later than five Business Days following such
discovery) to the other parties. The fact that the Initial Class A
Certificateholder has conducted or has failed to conduct any partial or complete
due diligence investigation shall not affect the Certificateholders' rights to
exercise their remedies as provided under this Agreement.

                  Section 4.04 Representations and Warranties Regarding Loans.

                  The Loan Originator hereby represents and warrants to the
Depositor, the Trust, the Owner Trustee and the Certificateholders, with respect
to each Loan as of the related Transfer Date (except as otherwise expressly
agreed in writing by the Majority Certificateholders).

                  (a) The information set forth in the Loan Schedule as to the
Loan is complete, true and correct in all material respects;

                  (b) The Loan Originator is the sole owner and holder of the
Loan and has good and marketable title thereto, has full right, power and
authority to sell and assign such Loan free and clear of any interest or claim
of a third party;

                  (c) The Loan has not been since the date of origination by the
applicable Qualified Originator, and currently is not, thirty or more days
delinquent, and the Borrower is not in default thereunder beyond any applicable
grace period for the payment of any obligation to pay principal and interest,
taxes, insurance premiums and required reserves;

                  (d) The Loan Originator has not advanced funds, or knowingly
received any advance of funds from a party other than the Borrower subject to
the related Mortgage, directly or indirectly, for the payment of any amount
required by the Loan;

                  (e) The Loan Documents have been duly and properly executed,
and the Loan Documents are legal, valid and binding obligations of the Borrower,
and their terms are enforceable against the Borrower, subject only to
bankruptcy, insolvency, moratorium, fraudulent transfer, fraudulent conveyance
and similar laws affecting rights of creditors generally and to the application
of general principles of equity;

                  (f) The lien of each Mortgage is insured by an ALTA lender's
title insurance policy or its equivalent as adopted in the applicable
jurisdiction issued by one or more nationally recognized title insurance
companies, insuring the Qualified Originator, its successors and assigns, as to
the first priority lien of the Mortgage in the original principal amount of the
Loan after all advances of principal, subject only to (a) the lien of current
real property taxes, ground rents, water charges, sewer rents and assessments
not yet due and payable, (b) covenants, conditions and restrictions, rights of
way, easements and other matters of public record, none of which, individually
or in the aggregate, in the reasonable judgment of the Loan Originator,
materially interferes with the current use of the related Mortgaged Property or
the security intended to be provided by such Mortgage or with the Borrower's
ability to pay its obligations when they become due or the value of the related
Mortgaged Property and (c) the exceptions (general and specific) set forth in
such policy, none of which, individually or in the aggregate, in the reasonable
judgment

                                      -52-
<PAGE>   60
of the Loan Originator, materially interferes with the current use of the
related Mortgaged Property or security intended to be provided by such Mortgage,
with the Borrower's ability to pay its obligations when they become due or the
value of the related Mortgaged Property (or if a title insurance policy has not
yet been issued in respect of the Loan, a policy meeting the foregoing
description is evidenced by a commitment for title insurance "marked-up" at the
closing of the Loan). No material claims have been made under such title policy
and no claims have been made thereunder;

                  (g) As of the date of origination of the Loan there were no,
and there are no, mechanics', materialman's or other similar liens or claims
which have been filed for work, labor or materials affecting the Mortgaged
Property which are or may be liens prior to, or equal or coordinate with, the
lien of the Mortgage, unless such lien is insured against under the related
title insurance policy;

                  (h) Each building or other improvement located on any
Mortgaged Property was insured by a fire and extended perils insurance policy,
issued by an insurer or reinsured by an insurer meeting the requirements of the
Loan Documents, in an amount not less than the replacement cost of the Mortgaged
Property; each Mortgaged Property was also covered by business interruption
insurance and comprehensive general liability insurance in amounts generally
required by institutional lenders for similar properties; all premiums on such
insurance policies required to be paid as of the date hereof have been paid;
such insurance policies require prior notice to the insured of termination or
cancellation, and no such notice has been received; and (B) the Loan Documents
obligate the Borrower to maintain all such insurance and, at the Borrower's
failure to do so, authorize the mortgagee to maintain such insurance at the
Borrower's cost and expense and to seek reimbursement therefor from such
Borrower;

                  (i) No building or other improvement on any Mortgaged Property
has been affected in any material manner or suffered any material loss as a
result of any fire, wind, explosion, accident, riot, war, or act of God or the
public enemy, and each Mortgaged Property is free of any material damage that
would affect materially and adversely the value of the Mortgaged Property as
security for the Loan and is in good repair. The Loan Originator has neither
received notice, nor is otherwise aware, of any proceedings pending for the
total condemnation of any Mortgaged Property or a partial condemnation of any
portion material to the Loan Originator's ability to perform its obligations
under its related Loan;

                  (j) None of the improvements included for the purpose of
determining the Appraised Value of each Mortgaged Property at the time of the
origination of the Loan lies outside of the boundaries and building restriction
lines of the Mortgaged Property, and no improvements on adjoining properties
materially encroach upon the Mortgaged Property except 


                                      -53-
<PAGE>   61
those which are insured against by the title insurance policy (including
endorsements thereto) issued in connection with the Loan and all improvements on
the Mortgaged Property comply with the applicable zoning laws and/or set-back
ordinances in force when improvements were added (except as disclosed in the
Disclosure Certificates);

                  (k) The Loan, and all parties involved in the origination and
servicing of the Loan (to the extent required for the purpose required for usury
exemption), complied as of the date of origination with, or is exempt from,
applicable state or federal laws, regulations and other requirements pertaining
to usury. To the extent applicable to the Loan, any and all other requirements
of any federal, state or local laws, including, without limitation,
truth-in-lending, real estate settlement procedures, equal credit opportunity or
disclosure laws, applicable to the Loan have been complied with;

                  (l) Since the date of origination of the Loan, the terms of
the Loan have not been impaired, waived, altered, satisfied, canceled,
subordinated or modified in any respect (except with respect to modifications
the economic terms of which are reflected in the mortgage loan schedule and
which are evidenced by documents in the Custodial Loan File and except as
required by the Loan Documents or as disclosed in the Disclosure Certificates)
and no portion of the Mortgaged Property has been released from the lien of the
Mortgage in any manner;

                  (m) All applicable Mortgage recording taxes and other filing
fees have been paid in full or deposited with the issuer of the title insurance
policy issued in connection with the Loan for payment upon recordation of the
relevant documents;

                  (n) Each assignment of leases and rents, if any, creates a
valid assignment of, or a valid security interest in, certain rights under the
related leases, subject only to a license granted to the relevant mortgagor to
exercise certain rights and to perform certain obligations of the lessor under
such leases, including the right to operate the related Mortgaged Property,
subject only to those exceptions described in clause (f) above. No person other
than the relevant Borrower owns any interest in any payments due under such
leases that is superior to or of equal priority with the mortgagee's interest
therein, subject only to those exceptions described in clause (f) above;

                  (o) Each Mortgage, upon due recordation, is a valid and
enforceable first lien on the related Mortgaged Property, subject only to those
exceptions described in clause (f) above;

                  (p) The Loan Originator has not taken any action, nor to the
Loan Originator's knowledge has the Borrower, except as disclosed in the
Disclosure Certificates, taken any action, that would cause the representations
and warranties made by the Borrower in the Loan Documents not to be true;

                  (q) Except as expressly set forth in the Loan Documents and in
the Disclosure Certificates, the proceeds of the Loan have been fully disbursed
and there is no requirement for future advances thereunder and the Loan
Originator covenants that it will not


                                      -54-
<PAGE>   62
make any future advances under the Loan to the Borrower. Except for the escrows
and disbursements therefrom as contemplated by the Loan Documents, any Borrower
requirements for on or off-site improvements as to disbursement of any escrow
funds therefor have been complied with;

                  (r) The Loan Originator has inspected or caused to be
inspected each Mortgaged Property within the past twelve months preceding the
date hereof. The Loan File includes a title survey, certified to the Loan
Originator, its successors and assigns, and the title insurance company,
reciting that it is in accordance with most recent minimum standards for title
surveys as determined by the American Land Title Association, with the signature
and seal of a licensed engineer or surveyor affixed thereto;

                  (s) The Loan does not have a shared appreciation feature,
other contingent interest feature or negative amortization. The indebtedness
evidenced by the Promissory Note is not convertible to an ownership interest in
the Mortgaged Property or the Mortgage and the Loan Originator has not financed,
nor does it own, directly or indirectly, any equity of any form in the Mortgaged
Property or the Borrower. The Promissory Note does not by its terms provide for
the capitalization or forbearance of interest;

                  (t) The Loan is not cross-collateralized with other mortgaged
properties not subject to this Loan Agreement is a whole loan and contains no
equity participation by the lender;

                  (u) No fraudulent acts were committed by the Loan Originator
in connection with the origination process of the Loan;

                  (v) All taxes, ground rents, water charges, sewer rates,
governmental assessments, insurance premiums, leasehold payments and any other
outstanding fees or charges that prior to the date of origination of the Loan
became due and owing in respect of each Mortgaged Property have been paid, or an
escrow of funds in an amount sufficient to cover such payments has been
established or are insured against by the title insurance policy issued in
connection with the origination of the Loan;

                  (w) To the extent required under applicable law, the Loan
Originator was authorized to transact and do business in each jurisdiction in
which a Mortgaged Property is located at all times when it held the Loan;

                  (x) There is no material default, breach, violation or event
of acceleration existing under any of the Loan Documents and the Loan Originator
has not received actual notice of any event (other than payments due but not yet
delinquent) which, with the passage of time or with notice and the expiration of
any grace or cure period, would and does constitute a default, breach, violation
or event of acceleration; no waiver of the foregoing exists and no person other
than the Initial Class A Certificateholder may declare any of the foregoing;

                  (y) Each Mortgage contains customary and enforceable
provisions such as to render the rights and remedies of the holder thereof
adequate for the practical realization 


                                      -55-
<PAGE>   63
against each related Mortgaged Property of the material benefits of the security
upon the occurrence of a material default under the Mortgage, including
realization by judicial or, if applicable, non-judicial foreclosure, and there
is no exemption available to the mortgagor which would materially interfere with
such right to foreclosure provided, the Mortgage is enforced in accordance with
applicable laws;

                  (z) With respect to each Mortgaged Property, a Phase I
environmental report and, in certain cases, a Phase II environmental report or
an update to such Phase I report was conducted by a licensed qualified engineer.
The Loan Originator has reviewed each such report and update. The Loan
Originator, having made no independent inquiry other than reviewing the
environmental reports and updates referenced herein and without other
investigation or inquiry, has no knowledge of any material and adverse
environmental condition or circumstance affecting any Mortgaged Property that
was not disclosed in the related report and/or update. Except as disclosed in
the Disclosure Certificates, the Loan Originator has not received any actual
notice of a material violation of CERCLA or any applicable federal, state or
local environmental law with respect to any Mortgaged Property that was not
disclosed in the related report and/or update. The Loan Originator has not taken
any actions which would cause any Mortgaged Property not to be in compliance
with all federal, state and local laws pertaining to environmental hazards;

                  (aa) The Mortgage contains provisions for the acceleration of
the payment of the unpaid principal balance of the Loan if (A) the Borrower
voluntarily transfers or encumbers all or any portion of any related Mortgaged
Property, or (B) any direct or indirect interest in the Borrower is voluntarily
transferred or assigned, other than, in each case, as permitted under the terms
and conditions of the Loan Documents;

                  (bb) To the Loan Originator's knowledge, there is no pending
action, suit or proceeding, arbitration or governmental investigation against
the Borrower or any Mortgaged Property an adverse outcome of which could
materially affect the Borrower's performance of its obligations under the Loan
Documents;

                  (cc) The servicing and collection practices used by the Loan
Originator, and the origination practices of the related Qualified Originator,
have been in all respects legal, proper and prudent and have met customary
industry standards except to the extent that, in connection with its
origination, such standards were modified by the applicable Qualified Originator
in its reasonable discretion;

                  (dd) In connection with the assignment, transfer or conveyance
of any individual Mortgage, the Promissory Note and Mortgage contain no
provision limiting the right or ability of the applicable Qualified Originator
to assign, transfer and convey the Mortgage to any other person or entity;

                  (ee) If any Mortgaged Property is subject to any leases (other
than any Ground Lease referred to in (ii) below), the Borrower is the owner and
holder of the landlord's interest under any leases, and the related Mortgage and
assignment of leases, rents and profits, if any, provides for the appointment of
a receiver for rents or allows the mortgagee to enter


                                      -56-
<PAGE>   64
into possession to collect rent or provide for rents to be paid directly to
mortgagee in the event of a default, subject to the exceptions described in
clause (f) hereof;

                  (ff) If a Mortgage is a deed of trust, a trustee, duly
qualified under applicable law to serve as such, has been properly designated
and currently so serves and is named in the deed of trust, and no fees or
expenses are or will become payable to the trustee under the deed of trust,
except in connection with the sale or release of the Mortgaged Property
following default or payment of the loan;

                  (gg) Any insurance proceeds in respect of a casualty loss or
taking will be applied either to the repair or restoration of all or part of the
related Mortgaged Property, with the mortgagee or a trustee appointed by it
having the right to hold and disburse such proceeds (provided that such proceeds
exceed the threshold amount described in the loan documents) as the repair or
restoration progresses, or to the payment of the outstanding principal balance
of the Loan together with any accrued interest thereon, except to the extent of
any excess proceeds after restoration;

                  (hh) Except as disclosed in the Disclosure Certificates, no
Mortgaged Property is located in a special flood hazard area as defined by the
Federal Emergency Management Agency. If any portion of the Mortgaged Property is
in an area identified by any federal Governmental Authority as having special
flood hazards, and flood insurance is available, a flood insurance policy
meeting the current guidelines of the Federal Insurance Administration is in
effect with a generally acceptable insurance carrier, in an amount representing
coverage not less than the least of (1) the outstanding Principal Balance of the
Loan, (2) the full insurable value of the Mortgaged Property, and (3) the
maximum amount of insurance available under the Flood Disaster Protection Act of
1973, as amended;

                  (ii) With respect to any Mortgage which is secured in whole or
in part by the interest of a borrower as a lessee under a Ground Lease and based
upon the terms of the Ground Lease or an estoppel letter from the ground lessor
the following apply to such Ground Lease:

                      (1)The Ground Lease or a memorandum thereof has been duly
                         recorded, the Ground Lease permits the interest of the
                         lessee thereunder to be encumbered by the related
                         Mortgage, does not restrict the use of the Mortgaged
                         Property by the lessee or its successors and assigns in
                         a manner that would adversely affect the security
                         provided by the related Mortgage, and there has not
                         been a material change in the terms of the Ground Lease
                         since its recordation, with the exception of written
                         instruments which are part of the related Loan
                         Documents delivered to the Custodian.

                      (2)The Ground Lease is not subject to any liens or
                         encumbrances superior to, or of equal priority with,
                         the related Mortgage, other than the related ground
                         lessor's related fee interest.


                                      -57-
<PAGE>   65
                      (3)The Loan Originator's interest in the Ground Lease is
                         assignable to the holder of the Mortgage upon notice
                         to, but without the consent of (except as disclosed in
                         the Disclosure Certificates), the lessor thereunder
                         and, in the event that it is so assigned, it is further
                         assignable by the trustee and its successors and
                         assigns upon notice to, but without a need to obtain
                         the consent of, such lessor.

                      (4)As of the Origination Date of the Loan, the Ground
                         Lease was in full force and effect and no material
                         default had occurred under the Ground Lease and there
                         was no existing condition which, but for the passage of
                         time or the giving of notice, would result in a default
                         under the terms of the Ground Lease. No notice of
                         default under the Ground Lease has been received by the
                         Loan Originator.

                      (5)The Ground Lease requires the lessor thereunder to
                         give notice of any default by the lessee to the
                         mortgagee; and the Ground Lease, or an estoppel letter
                         received by the mortgagee from the lessor, further
                         provides that notice of termination given under the
                         Ground Lease is not effective against the mortgagee
                         unless a copy of the notice has been delivered to the
                         mortgagee in the manner described in such Ground Lease
                         or estoppel letter.

                      (6)The mortgagee is permitted a reasonable opportunity
                         (including, where necessary, sufficient time to gain
                         possession of the interest of the lessee under the
                         Ground Lease) to cure any default under the Ground
                         Lease which is curable after the receipt of notice of
                         any default, before the lessor thereunder may terminate
                         the Ground Lease.

                      (7)The Ground Lease either (i) has a term which extends
                         not less than 10 years beyond the maturity date of the
                         related Loan or (ii) grants the lessee the option to
                         extend the term of the lease for a period (in the
                         aggregate) which exceeds ten years beyond the maturity
                         date of the related Loan.

                      (8)Except as disclosed in the Disclosure Certificates,
                         the Ground Lease requires the lessor to enter into a
                         new lease with the mortgagee upon termination of the
                         Ground Lease for any reason, including rejection of the
                         Ground Lease in a bankruptcy proceeding, provided the
                         mortgagee cures the lessee's defaults to the extent
                         they are curable and succeeds to the interest of the
                         mortgagee.

                      (9)Except as disclosed in the Disclosure Certificates,
                         under the terms of the Ground Lease and the related
                         Mortgage, taken together, any related insurance
                         proceeds will be applied either to the repair or
                         restoration of all or part of the related Mortgaged
                         Property, with the mortgagee or a trustee appointed by
                         it having the right to hold and disburse the proceeds
                         as the


                                      -58-
<PAGE>   66
                          repair or restoration progresses, or to the payment
                          of the outstanding principal balance of the Loan
                          together with any accrued interest thereon.

                      (10) Except as disclosed in the Disclosure Certificates,
                         such Ground Lease does not impose any material
                         restrictions on subletting.

                      (11) Either the Ground Lease or the related Mortgage
                         contains the Loan Originator's covenant that such
                         Ground Lease shall not be amended, canceled, or
                         terminated without the prior written consent of the
                         mortgagee.

                      (12) Either the Ground Lease or an estoppel letter
                         contains a covenant that the lessor thereunder is not
                         permitted in the absence of an uncured default under
                         the Ground Lease, to disturb the possession, interest
                         or quiet enjoyment of any lessee in the relevant
                         portion of the Mortgaged Property subject to such
                         Ground Lease for any reason, or in any manner, which
                         would materially adversely affect the security provided
                         by the related Mortgage;

                  (jj) (1) The Loan is directly secured by a Mortgage on a
commercial or multifamily real property, and (2) the fair market value of such
real property, as evidenced by an appraisal conducted within 12 months of the
origination of the Loan, or as determined by the Loan Originator based on market
studies and pursuant to its Underwriting Guidelines, was at least equal to 80%
of the principal amount of the Loan (I) at origination (or if the Loan has been
modified in a manner that constituted a deemed exchange under Section 1001 of
the Code at a time when the Loan was not in default or default with respect
thereto was not reasonably foreseeable, the date of the last such modification)
or (II) at the related Transfer Date; provided that the fair market value of the
real property interest must first be reduced by (a) the amount of any lien on
the real property interest that is senior to the Loan (unless such senior lien
also secures a Loan, in which event the computation described in (I) and (II)
shall be made on an aggregated basis) and (b) a proportionate amount of any lien
that is in parity with the Loan (unless such other lien secures a Loan that is
cross-collateralized with such Loan, in which event the computation described in
(I) and (II) shall be made on an aggregate basis);

                  (kk) Certificates of occupancy (or its equivalent) and
building permits, as applicable, have been issued with respect to the Mortgaged
Property (except as disclosed in the Disclosure Certificates);

                  (ll) Any escrow accounts for taxes or other reserves required
to be funded on the date of origination of the Loan pursuant to the Loan
Documents have been funded and all such escrow accounts required to have been
funded as of the Transfer Date (taking into account any applicable notice and
grace period) have been funded;

                  (mm) The related Assignment of Mortgage constitutes a legal,
valid and binding assignment of such Mortgage to the Trust, and the related
reassignment of assignment of leases, rents and profits, if any, constitutes a
legal, valid and binding assignment thereof to the Trust;


                                      -59-
<PAGE>   67
                  (nn) The related Promissory Note is not, and has not been
since the date of origination of the Loan, secured by any collateral except the
lien of the related Mortgage, any related assignment of leases, rents and
profits and any related security agreement and escrow agreement; the security
for the Loan consists only of the related Mortgaged Property or Properties, any
leases (including without limitation any credit leases) thereof, and any
appurtenances, fixtures and other property located thereon; and such Mortgaged
Property or Properties do not secure any mortgage loan other than the Loan being
transferred and assigned to the Trust hereunder (except for Loans, if any, which
are cross-collateralized with other Loans being conveyed to the Trust or
subsequent transferee hereunder and identified on the Loan Schedule);

                  (oo) Except as disclosed in the Disclosure Certificates, as of
the date of origination of each Loan, the related Borrower was in possession of
all material licenses, permits and franchises required by applicable law for the
ownership and operation of the related Mortgaged Property as it was then
operated;

                  (pp) The Loan is directly secured by a first lien on one or
more parcels of real estate upon which is located one or more commercial
structures; and the Loan was originated by a savings and loan association,
savings bank, commercial bank, credit union, insurance company, or similar
institution which is supervised and examined by a Federal or State authority, or
by a mortgagee approved by the Secretary of Housing and Urban Development
pursuant to sections 203 and 211 of the National Housing Act;

                  (qq) With respect to each Large Balance Loan (or groups of
Loans that have an aggregate original principal balance in excess of
$25,000,000, as described in clauses (2) and (3) below):

                  (1) The Borrower is an entity whose organizational documents
provide that it is, and at least so long as the Loan is outstanding will
continue to be, a single-purpose entity. (For this purpose, "single-purpose
entity" shall mean a person, other than an individual, which is formed or
organized solely for the purpose of owning and operating a single property, does
not engage in any business unrelated to such property and its financing, does
not have any assets other than those related to its interest in the property or
its financing, or any indebtedness other than as permitted by the related
Mortgage or the other Loan Documents, has its own books and records and accounts
separate and apart from any other person, and holds itself out as being a legal
entity, separate and apart from any other person);

                  (2) A non-consolidation opinion was obtained for the Borrower
or affiliated group of the Borrower of Loans or groups of Loans with an original
principal balance in excess of $25,000,000;

                  (3) The general partners or managing members of the Borrower
or Affiliates of the Borrower of Loans or groups of Loans having an original
principal balance in excess of $25,000,000 have an independent director;



                                      -60-
<PAGE>   68
                  (rr) To the extent required under applicable law, each holder
of the Loan was authorized to transact and do business in the jurisdiction in
which the related Mortgaged Property is located at all times when it held the
Loan;

                  (ss) The Loan-to-Value Ratio for the Loan does not exceed 80%,
except as otherwise pre-approved in writing by the Initial Class A
Certificateholder;

                  (tt) With respect to Mortgaged Property occupied by commercial
tenants under leases: (i) each such tenant is conducting business only in that
portion of the Mortgaged Property covered by its lease; (ii) no leases contain
any option to purchase, any right of first refusal to lease or purchase, any
right to terminate the lease or vacate the premises prior to expiration of the
lease term, or any other similar provisions which adversely affect the Mortgaged
Property or which might adversely affect the rights of any holder of the Loan;
and (iii) a non-disturbance or similar recognition agreement exists, or if such
agreement exists, there are no circumstances or conditions with respect to such
tenant or the applicable lease that could cause a prudent lender to refuse to
grant such agreement;

                  (uu) As to each Loan secured by Mortgaged Property which is
leased to tenants:

                           (i) the Mortgaged Property is not subject to any
         leases other than the leases described in the rent roll contained in
         the Loan Documents (hereinafter referred to as the "Leases"), and such
         rent roll is accurate and complete in all material respects, including
         description of the rent and term and any extraordinary rights of
         tenants (such as option, rights of first refusal and rights of
         termination). No Person has any possessory interest in the Mortgaged
         Property or right to occupy the same except under and pursuant to the
         provisions of the Leases. Each Lease of all or any portion of the
         Mortgaged Property is subordinate to the Mortgage, unless otherwise
         approved by the Initial Class A Certificateholder; and

                           (ii) except as provided in subsection (z), no Lease
         contains a non-disturbance or similar recognition agreement; and

                           (iii)(A) there are no prior recorded assignments of
         the Leases or of any portion of the rents, additional rents, charges,
         issues or profits due and payable or to become due and payable
         thereunder (hereinafter collectively referred to as the "Rents") which
         are now outstanding and have priority over the assignment of leases
         contained in the Loan Documents and given in connection with the Loan,
         (B) except as may be disclosed in the rent roll contained in the Loan
         Documents, no tenant is more than twenty-nine (29) days delinquent in
         the payment of rent nor in default under any material provision of its
         Lease, all material conditions and obligations on the Borrower's part
         to be fulfilled under the terms of any Lease of the Mortgaged Property
         have been satisfied or fully performed, and all Leases are in full
         force and effect, (C) each Lease relating to a Mortgaged Property in a
         mobile home community provides for the tenant to acquire, locate and
         maintain on the pad constituting the leased premises a 


                                      -61-
<PAGE>   69
         mobile home or manufactured housing residential unit affixed to the
         Mortgaged Property in compliance with applicable law, and (D) each
         Lease provides for payment of rent by check on a monthly basis; no
         tenant has advanced more than one (1) month's payment under any Lease;
         and no Person affiliated with the Borrower is a tenant under any Lease;

                  (vv) The Loan Originator has not been served with notice that
any mortgagor is a debtor in any state or federal bankruptcy or insolvency
proceeding;

                  (ww) Except as disclosed in the Disclosure Certificates, ,at
the time of origination, (i) all amenities, access routes or other items crucial
to the related appraised value of the Mortgaged Property were under the direct
control of the Borrower or, subject to easements for the benefit of the
Borrower, are public property, and (ii) the Mortgaged Property was contiguous to
a physically open, dedicated all-weather public street, had all necessary
permits and approvals for ingress and egress, was adequately serviced by public
water, sewer systems and utilities and was on a separate tax parcel, separate
and apart from any other property owned by the Borrower or any other person.
Each Mortgaged Property has all necessary access by public roads or by easements
which in each case are not terminable and are not subordinated to any mortgage
other the related Mortgage;

                  (xx) The Loan File contains an appraisal of the related
Mortgaged Property which appraisal is signed by a qualified appraiser, duly
appointed by the Loan Originator, who, to the Loan Originator's knowledge, had
no interest, direct or indirect, in the Mortgaged Property or in any loan made
on the security thereof, and whose compensation is not affected by the approval
or disapproval of the Loan, and the appraisal and appraiser both satisfy the
requirements of Title XI of the Federal Institutions Reform, Recovery, and
Enforcement Act of 1989 and the regulations promulgated thereunder, all as in
effect on the date the Loan was originated; and

                  (yy) The Promissory Note, Mortgage, the Assignment of Mortgage
and any other documents in the Custodial Loan File with respect to each Loan
pursuant to Section 3.04, have been or shall be delivered to the Custodian all
in compliance with the specific requirements of Section 3.04. With respect to
each Loan, a complete Servicer's Loan File has been delivered to the Servicer or
its designee, except that the Loan File contains copies of those documents which
have been or will be delivered to the Custodian.

                  (zz) The Loan was underwritten in accordance with the
Underwriting Guidelines.

                  Section 4.05      Purchase and Substitution.

                  (a) It is understood and agreed that the representations and
warranties set forth in Section 4.04 hereof shall survive the conveyance of the
Loans to the Owner Trustee on behalf of the Trust, and the delivery of the
Certificates to the Certificateholders. Upon discovery by the Depositor, the
Servicer, the Loan Originator, the Custodian, the Trust, the Owner Trustee or
any Certificateholder of a breach of any of such representations and 


                                      -62-
<PAGE>   70
warranties or the representations and warranties set forth in Section 4.02 which
materially and adversely affects the value of the Loans or the interests of the
Certificateholders in the related Loan (notwithstanding that such representation
and warranty was made to the Loan Originator's best knowledge), the party
discovering such breach shall give prompt written notice to the others. The Loan
Originator shall within 5 Business Days of any breach of a representation or
warranty as a result of an attribute of the aggregate Loan Pool which would not
otherwise cause a breach of any other representation or warranty, promptly cure
such breach in all material respects. If within 5 Business Days after the
earlier of the Loan Originator's discovery of such breach or the Loan
Originator's receiving notice thereof such breach has not been remedied by the
Loan Originator and such breach materially and adversely affects the interests
of the Certificateholders or in the related Loan (the "Defective Loan"), the
Loan Originator shall promptly upon receipt of written instructions from the
Majority Certificateholders either (i) remove such Defective Loan from the Trust
(in which case it shall become a Deleted Loan) and substitute one or more
Qualified Substitute Loans in the manner and subject to the conditions set forth
in this Section 4.05 or (ii) purchase such Defective Loan at a purchase price
equal to the Purchase Price with respect to such Defective Loan by depositing
such Purchase Price in the Collection Account. The Loan Originator shall provide
the Servicer, the Owner Trustee, the Initial Class A Certificateholder and the
Trust with a certification of a Responsible Officer on the Determination Date
next succeeding the end of such 5 Business Days period indicating whether the
Loan Originator is purchasing the Defective Loan or substituting in lieu of such
Defective Loan a Qualified Substitute Loan.

                  Any substitution of Loans pursuant to this Section 4.05(a)
shall be accompanied by payment by the Loan Originator of the Substitution
Adjustment, if any, to be deposited in the Collection Account pursuant to
Section 7.01(b)(1) hereof.

                  It is understood and agreed that the obligation of the Loan
Originator to repurchase or substitute any such Loan pursuant to this Section
4.05 shall constitute the sole remedy against it with respect to such breach of
the foregoing representations or warranties or the existence of the foregoing
conditions. With respect to representations and warranties made by the Loan
Originator pursuant to Section 4.04 hereof that are made to the Loan
Originator's best knowledge, if it is discovered by any of the Depositor, the
Loan Originator, the Owner Trustee or the Trust that the substance of such
representation and warranty is inaccurate and such inaccuracy materially and
adversely affects the value of the related Loan, notwithstanding the Loan
Originator's lack of knowledge, such inaccuracy shall be deemed a breach of the
applicable representation and warranty.

                  (b) As to any Deleted Loan for which the Loan Originator
substitutes a Qualified Substitute Loan or Loans, the Loan Originator shall
effect such substitution by delivering to the Owner Trustee and Initial Class A
Certificateholder (i) a certification executed by a Responsible Officer of the
Loan Originator to the effect that the Substitution Adjustment has been credited
to the Collection Account and (ii) the documents constituting the Custodial Loan
File for such Qualified Substitute Loan or Loans.



                                      -63-
<PAGE>   71
                  The Servicer shall deposit in the Collection Account all
payments received in connection with such Qualified Substitute Loan or Loans
after the date of such substitution. Monthly Payments received with respect to
Qualified Substitute Loans on or before the date of substitution will be
retained by the Loan Originator. The Trust will be entitled to all payments
received on the Deleted Loan on or before the date of substitution and the Loan
Originator shall thereafter be entitled to retain all amounts subsequently
received in respect of such Deleted Loan. The Loan Originator shall give written
notice to the Trust, the Servicer, the Owner Trustee and Initial Class A
Certificateholder that such substitution has taken place and the Servicer shall
amend the Loan Schedule to reflect (i) the removal of such Deleted Loan from the
terms of this Agreement and (ii) the substitution of the Qualified Substitute
Loan. The Loan Originator shall promptly deliver to the Trust, the Servicer (if
the Loan Originator is not then acting as such), the Owner Trustee and Initial
Class A Certificateholder, a copy of the amended Loan Schedule. Upon such
substitution, such Qualified Substitute Loan or Loans shall be subject to the
terms of this Agreement in all respects, and the Loan Originator shall be deemed
to have made with respect to such Qualified Substitute Loan or Loans, as of the
date of substitution, the covenants, representations and warranties set forth in
Section 4.04 hereof. On the date of such substitution, the Loan Originator will
deposit into the Collection Account an amount equal to the related Substitution
Adjustment, if any. In addition, on the date of such substitution, the Servicer
shall cause such Qualified Substitute Loan to be transferred and assigned to the
Owner Trustee as part of the Owner Trust Estate.

                  (c) With respect to all Defective Loans or other Loans
repurchased by the Loan Originator pursuant to this Agreement, upon the deposit
of the Purchase Price therefor into the Collection Account, the Owner Trustee
shall assign to the Loan Originator, without recourse, representation or
warranty, all the Owner Trustee's right, title and interest in and to such
Defective Loans or Loans, which right, title and interest were conveyed to the
Owner Trustee pursuant to Section 3.01 hereof. The Owner Trustee shall, at the
expense of the Loan Originator, take any actions as shall be reasonably
requested by the Loan Originator to effect the repurchase of any such Loans.

                  (d) It is understood and agreed that the obligations of the
Loan Originator set forth in this Section 4.05 to cure, purchase or substitute
for a Defective Loan (and to indemnify the Trust for certain losses as described
herein in connection with a Defective Loan) constitute the sole remedies
hereunder of the Depositor, the Trust, the Owner Trustee and the
Certificateholders respecting a breach of the representations and warranties
contained in Section 4.02 and Section 4.04 hereof. Any cause of action against
the Loan Originator relating to or arising out of a defect in a Custodial Loan
File as contemplated by Section 3.05 hereof or against the Loan Originator
relating to or arising out of a breach of any representations and warranties
made in Section 4.04 hereof shall accrue as to any Loan upon (i) discovery of
such defect or breach by any party and notice thereof to the Loan Originator or
notice thereof by the Loan Originator to the Owner Trustee, (ii) failure by the
Loan Originator to cure such defect or breach or purchase or substitute such
Loan as specified above, and (iii) demand upon the Loan Originator, as
applicable, by the Trust or the Majority Certificateholders for all amounts
payable in respect of such Loan.


                                      -64-
<PAGE>   72
                  (e) Neither the Trust nor the Owner Trustee shall have any
duty to conduct any affirmative investigation other than as specifically set
forth in this Agreement as to the occurrence of any condition requiring the
repurchase or substitution of any Loan pursuant to this Section or the
eligibility of any Loan for purposes of this Agreement.

                  Section 4.06      Dispositions.

                  (a) (i) In consideration of the consideration received from
the Depositor under the Loan Purchase Agreement, the Loan Originator hereby
agrees and covenants that in connection with each Disposition it shall effect
the following at the direction of the Disposition Agent with respect to the
Loans it sold to the Trust:

                  (A) 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 Loan Originator shall not
         be required to make any representation or warranty beyond the scope or
         substance of the representations and warranties delineated herein;

                  (B) supply such information, opinions of counsel, letters from
         law and/or accounting firms and other documentation and certificates
         regarding the origination of the Loans as any Disposition Participant
         shall reasonably request to effect a Disposition and enter into such
         indemnification agreements relating to or in connection with the
         Disposition as the Disposition Agent may reasonably require;

                  (C) make itself available for and engage in good faith
         consultation with the Disposition Participants concerning information
         to be contained in any document, agreement, private placement
         memorandum, or filing with the Securities and Exchange Commission
         relating to the Loan Originator or the Loans in connection with a
         Disposition and shall use reasonable efforts to compile any information
         and prepare any reports and certificates, into a form, whether written
         or electronic, suitable for inclusion in such documentation;

                  (D) to implement the foregoing and to otherwise effect a
         Disposition, enter into, or cause its Affiliates to enter into
         insurance and indemnity agreements, underwriting or placement
         agreements, servicing agreements, purchase agreements and any other
         documentation which may be required of or deemed appropriate by the
         Disposition Participants in order to effect a Disposition; and

                  (E) take such further actions as may be reasonably necessary
         to effect the foregoing;

                  provided, that notwithstanding anything to the contrary, (a)
         the Loan Originator shall have no liability for the Loans arising from
         or relating to the ongoing ability of the related Borrowers to pay
         under the Loans; (b) none of the indemnities hereunder shall 


                                      -65-
<PAGE>   73
         constitute a guarantee by the Loan Originator of collectibility of the
         Loans; (c) the Loan Originator shall have no obligation with respect to
         the financial inability of any Borrower to pay principal, interest or
         other amount owing by such Borrower under a Loan and (d) the Loan
         Originator shall only be required to enter into documentation in
         connection with Dispositions that is consistent with the prior public
         securitizations of affiliates of the Loan Originator, provided that the
         indemnities and informational representations and warranties shall be
         consistent with those in the Basic Documents and, to the extent
         requested by the Loan Originator, shall be set forth in a separate
         agreement between an Affiliate of the Initial Class A Certificateholder
         and the Loan Originator.

                  (ii) In connection with Dispositions the Loan Originator (A)
         may participate as a concurrent bidder for the Loans subject to such
         Whole Loan Sale, but may not pay a price higher than the fair market
         value thereof (as reasonably determined by the Market Value Agent), and
         (B) shall retain such underwriters or sales agents as shall be agreed
         in writing between the Servicer and the Disposition Agent.

                  (iii) Conditions to Dispositions. The following conditions
         shall apply to all Dispositions:

                  (A) There shall occur only one Disposition (or multiple
         simultaneous Dispositions) either as a result of the exercise of the
         Put Option or the Disposition Agent's decision to effect a Disposition.

                  (B) After receiving notice of the exercise of the Put Option,
         the Loan Originator, the Trust and the Depositor shall use commercially
         reasonable efforts to effect a Disposition at the direction of the
         Disposition Agent prior to the Final Put Date.

                  (b) In accordance with the terms of Section 4.06(a) or upon
the exercise of the Put Option, the Trust shall effect Dispositions at the
direction of the Disposition Agent. In connection therewith, the Trust agrees to
assist the Loan Originator in such Dispositions and accordingly it shall, at the
request and direction of the Disposition Agent:

                  (i)      transfer, deliver and sell all or a portion of the
                           Loans, as of the "cutoff dates" of the related
                           Dispositions, to such Disposition Participants as may
                           be necessary to effect the Dispositions; provided,
                           that any such sale shall be for "fair market value,"
                           as determined by the Disposition Agent in its
                           reasonable discretion;


                  (ii)     deposit the cash Disposition Proceeds into the
                           Collection Account pursuant to Section 7.01(b)(1) and
                           retain any Retained Securities created in any
                           Securitizations in accordance with the terms of this
                           Agreement;

                  (iii)    to the extent that a Securitization creates any
                           Retained Securities, to accept such Retained
                           Securities as a part of the Disposition Proceeds; and


                                      -66-
<PAGE>   74
                  (iv)     take such further actions as may be reasonably
                           necessary to effect such Dispositions.

                  (c) The Servicer hereby covenants that it will take such
actions as may be reasonably necessary to effect Dispositions as the Disposition
Agent may request and direct, including without limitation providing the Loan
Originator such information as may be required to make representations and
warranties required hereunder.

                  (d) The Disposition Agent may effect Whole Loan Sales upon
written notice to the Servicer of their intent to cause the Trust to effect a
Whole Loan Sale at least 5 Business Days in advance thereof. The Disposition
Agent shall serve as agent for Whole Loan Sales and will receive a reasonable
fee for such services. The Loan Originator or its Affiliates may concurrently
bid to purchase Loans in a Whole Loan Sale; however, it shall not pay a price in
excess of the fair market value thereof as reasonably determined by the
Disposition Agent.

                  (e) The parties' obligations to incur an obligation under this
Section 4.06 shall continue notwithstanding the occurrence of an Event of
Default.

                  (f) The Disposition Agent (and the Majority Certificateholders
to the extent directing the Disposition Agent) shall be an independent
contractor to the Trust and shall have no fiduciary obligations thereto. In that
connection, the Disposition Agent shall not be liable for any error of judgment
made in good faith and shall not be liable with respect to any action it takes
or omits to take in good faith in the performance of its duties.

                  Section 4.07      Loan Originator Put; Servicer Call.

                  (a) Loan Originator Put. The Loan Originator shall promptly
         repurchase, upon the written demand of the Majority Certificateholders,
         (i) any Loan that has become 30 or more days Delinquent, (ii) any
         Defaulted Loan, (iii) any Loan that has been in default for a period of
         30 days or more, (iv) any Loan that is in litigation or is a
         Foreclosure Property, (v) any Loan that has been determined to be
         ineligible for a Securitization (or otherwise unacceptable to any
         Disposition Participant) by mutual agreement of the Majority
         Certificateholders and the Servicer or (vi) any Loan that is
         inconsistent with the intended tax status of the Securitization (each
         such Loan, a "Put/Call Loan").

                  (b) Servicer Call. At any time the Transfer Obligor is
         required to make a payment under the Transfer Obligation, the Servicer
         may repurchase any Put/Call Loan (as defined in Section 4.07(a)
         hereof). Such Servicer Calls shall be solely at the option of the
         Servicer. Prior to exercising a Servicer Call, the Servicer shall
         deliver written notice to the Majority Certificateholders and the Owner
         Trustee which notice shall identify each Loan to be repurchased and the
         Purchase Price therefor.

                  (c) In connection with each Loan Originator Put, the Loan
         Originator shall remit to the Servicer for deposit into the Collection
         Account, the Purchase Price for the Loans to be repurchased. In
         connection with each Servicer Call, the Servicer shall


                                      -67-
<PAGE>   75
         deposit into the Collection Account the Purchase Price for the Loans to
         be repurchased. The aggregate Purchase Price of all Loans transferred
         pursuant to Section 4.07(a) shall in no event exceed the Value
         Shortfall at the time of such Loan Originator Put.

                  Section 4.08      Modification of Underwriting Guidelines.

         The Loan Originator shall give the Initial Class A Certificateholder
prompt written notification of any modification or change to the Underwriting
Guidelines.

                  Section 4.09      Covenants of Trust.

                  (a) Distribution of Principal and/or Interest. The Trust will
duly and punctually distribute (or will cause to be distributed duly and
punctually) the principal of and interest on the Class A Certificates in
accordance with the terms of the Class A Certificates and this Agreement.
Without limiting the foregoing, subject to and in accordance with Section 7.01
hereof, the Trust will cause to be distributed all amounts on deposit in the
Collection Account and the Distribution Account on each applicable Distribution
Date deposited therein pursuant to this Agreement. Amounts properly withheld
under the Code by any Person from a distribution to any Class A
Certificateholder of interest and/or principal shall be considered as having
been distributed by the Trust to such Class A Certificateholder for all purposes
of this Agreement. The Certificates shall be non-recourse obligations of the
Trust and shall be limited in right of distribution to amounts available from
the Owner Trust Estate, as provided in this Agreement. The Trust shall not
otherwise be liable for payments on the Class A Certificates. If any other
provision of this Agreement shall be deemed to conflict with the provisions of
this Section 4.09(a), the provisions of this Section 4.09(a) shall control.

                  (b) Maintenance of Office or Agency. The Owner Trustee shall
maintain at the Corporate Trust Office an office or agency where Class A
Certificates may be surrendered for registration of transfer or exchange and
where notices and demands to or upon the Trust in respect of the Class A
Certificates and this Agreement may be served. The Trust hereby initially
appoints the Owner Trustee to serve as its agent for the foregoing purposes and
to serve as Paying Agent with respect to the Certificates. The Owner Trustee
shall give prompt written notice to the Trust of the location, and of any change
in the location, of any such office or agency.

                  (c) Money for Payments to Be Held in Trust. As provided in
Section 7.03 hereof, all payments of amounts due and distributable with respect
to any Certificate that are to be made from amounts withdrawn from the
Distribution Account pursuant to Section 7.01 hereof shall be made on behalf of
the Trust by the Owner Trustee or by the Paying Agent, and no amounts so
withdrawn from the Distribution Account for payments on Certificates shall be
paid over to the Trust except as provided in this Section 4.09(c).

                  Any Paying Agent shall be appointed by Trust Order with
written notice thereof to the Owner Trustee. Any Paying Agent appointed by the
Trust shall be a Person which would be eligible to be Owner Trustee hereunder as
provided in Section 13.01 hereof.



                                      -68-
<PAGE>   76
                  The Trust will cause each Paying Agent other than the Owner
Trustee to execute and deliver to the Owner Trustee an instrument in which such
Paying Agent shall agree with the Owner Trustee (and if the Owner Trustee acts
as Paying Agent, it hereby so agrees), subject to the provisions of this Section
4.09(c), that such Paying Agent will:

                  (i) hold all sums held by it for the distribution of amounts
         due with respect to the Certificates in trust for the benefit of the
         Persons entitled thereto until such sums shall be distributed to such
         Persons or otherwise disposed of as herein provided and distribute such
         sums to such Persons as herein provided;

                  (ii) give the Owner Trustee notice of any Default by the Trust
         (or any other obligor upon the Certificates) of which it has actual
         knowledge in the making of any distribution required to be made with
         respect to the Certificates;

                  (iii) at any time during the continuance of any such Default,
         upon the written request of the Owner Trustee, forthwith pay to the
         Owner Trustee all sums so held in trust by such Paying Agent;

                  (iv) immediately resign as a Paying Agent and forthwith pay to
         the Owner Trustee all sums held by it in trust for the distribution of
         Certificates if at any time it ceases to meet the standards required to
         be met by a Paying Agent at the time of its appointment; and

                  (v) comply with all requirements of the Code with respect to
         the withholding from any payments made by it on any Certificate of any
         applicable withholding taxes imposed thereon and with respect to any
         applicable reporting requirements in connection therewith; provided,
         however, that with respect to withholding and reporting requirements
         applicable to original issue discount (if any) on the Certificates, the
         Trust shall have first provided the calculations pertaining thereto to
         the Owner Trustee.

                  The Trust may at any time, for the purpose of obtaining the
satisfaction and discharge of this Agreement or for any other purpose, by Trust
Order direct any Paying Agent to pay to the Owner Trustee all sums held in trust
by such Paying Agent, such sums to be held by the Owner Trustee upon the same
trusts as those upon which the sums were held by such Paying Agent; and upon
such payment by any Paying Agent to the Owner Trustee, such Paying Agent shall
be released from all further liability with respect to such money.

                  Subject to applicable laws with respect to escheat of funds or
abandoned property, any money held by the Owner Trustee or any Paying Agent in
trust for the distribution of any amount due with respect to any Certificate and
remaining unclaimed for two years after such amount has become due and
distributable shall be discharged from such trust and be distributed to the
Trust on Trust Request; and the Holder of such Certificate shall thereafter, as
an unsecured general creditor, look only to the Trust for distribution thereof
(but only to the extent of the amounts so distributed to the Trust), and all
liability of the Owner Trustee or such Paying Agent with respect to such trust
money shall thereupon cease; 


                                      -69-
<PAGE>   77
provided, however, that the Owner Trustee or such Paying Agent, before being
required to make any such repayment, shall at the expense and direction of the
Trust cause to be published, once in a newspaper of general circulation in the
City of New York customarily published in the English language on each Business
Day, notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication,
any unclaimed balance of such money then remaining will be repaid to the Trust.
The Owner Trustee shall also adopt and employ, at the expense and direction of
the Trust, any other reasonable means of notification of such repayment
(including, but not limited to, mailing notice of such repayment to
Certificateholders whose Certificates have been called but have not been
surrendered for redemption or whose right to or interest in moneys due and
distributable but not claimed at the last address of record for each such
Certificateholder determinable from the records of the Owner Trustee or of any
Paying Agent.

                  (d) Existence. (i) Subject to clause (ii) of this Section
4.09(d), the Trust will keep in full effect its existence, rights and franchises
as a business trust under the laws of the State of Delaware (unless it becomes,
or any successor Trust hereunder is or becomes, organized under the laws of any
other State or of the United States of America, in which case the Trust will
keep in full effect its existence, rights and franchises under the laws of such
other jurisdiction) and will obtain and preserve its qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Basic Documents to
which it is a party, the Certificates and the Owner Trust Estate.

                  (ii) Any successor to the Owner Trustee appointed pursuant to
Section 13.03 of this Agreement shall be the successor Owner Trustee under this
Agreement without the execution or filing of any paper, instrument or further
act to be done on the part of the parties hereto.

                  (iii) Upon any consolidation or merger of or other succession
to the Owner Trustee, the Person succeeding to the Owner Trustee under this
Agreement may exercise every right and power of the Owner Trustee under this
Agreement with the same effect as if such Person had been named as the Owner
Trustee herein.

                  (e) Protection of Owner Trust Estate. The Trust will from time
to time execute and deliver all such reasonable supplements and amendments
hereto and all such financing statements, continuation statements, instruments
of further assurance and other instruments, and will take such other action
necessary or advisable to:

                  (i) maintain or preserve the Owner Trust Estate under this
         Agreement or carry out more effectively the purposes hereof;

                  (ii) perfect, publish notice of or protect the validity of any
         transfer and assignment made or to be made by this Agreement;

                  (iii) enforce any rights with respect to the Owner Trust
         Estate; or


                                      -70-
<PAGE>   78
                  (iv) preserve and defend title to the Owner Trust Estate and
         the rights of the Owner Trustee and the Certificateholders in the Owner
         Trust Estate against the claims of all Persons and parties.

                  The Trust hereby designates the Administrator, its agent and
attorney-in-fact to execute any financing statement, continuation statement or
other instrument required to be executed pursuant to this Section 4.09(e).

                  (f) Performance of Obligations; Servicing of Loans.

                  (i) The Trust will not take any action and will use its best
efforts not to permit any action to be taken by others that would release any
Person from any of such Person's material covenants or obligations under any
instrument or agreement included in the Owner Trust Estate or that would result
in the amendment, hypothecation, subordination, termination or discharge of, or
impair the validity or effectiveness of, any such instrument or agreement,
except as expressly provided in the Basic Documents or such other instrument or
agreement.

                  (ii) The Trust may contract with or otherwise obtain the
assistance of other Persons (including, without limitation, the Administrator
under the Administration Agreement) to assist it in performing its duties under
this Agreement, and any performance of such duties by a Person identified to the
Owner Trustee in an Officer's Certificate of the Trust shall be deemed to be
action taken by the Trust. Initially, the Trust has contracted with the Servicer
and the Administrator to assist the Trust in performing its duties under this
Agreement.

                  (iii) The Trust will punctually perform and observe all of its
obligations and agreements contained in this Agreement, in the Basic Documents
and in the instruments and agreements included in the Owner Trust Estate,
including but not limited to (A) filing or causing to be filed all UCC Financing
Statements and continuation statements required to be filed by the terms of this
Agreement and (B) recording or causing to be recorded all Mortgages, Assignments
of Mortgage, all intervening assignments of mortgage and all assumption and
modification agreements required to be recorded by the terms of this Agreement,
in accordance with and within the time periods provided for in this Agreement.
Except as otherwise expressly provided therein, the Trust shall not waive,
amend, modify, supplement or terminate any Basic Document or any provision
thereof without the consent of the Owner Trustee and the Majority
Certificateholders.

                  (iv) If the Trust shall have knowledge of the occurrence of an
Event of Default, the Trust shall promptly notify the Owner Trustee and the
Majority Certificateholders thereof, and shall specify in such notice the
action, if any, the Trust is taking with respect to such default.

                  (v) The Trust agrees (A) that it will not, without the prior
written consent of the Owner Trustee, amend, modify, waive, supplement,
terminate or surrender, or agree to any amendment, modification, supplement,
termination, waiver or surrender of, the terms of any part of the Owner Trust
Estate (except to the extent otherwise permitted by the Basic 

                                      -71-
<PAGE>   79
Documents), or waive timely performance or observance by the Loan Originator,
the Servicer or the Depositor under this Agreement; and (B) that any such
amendment shall not (1) increase or reduce in any manner the amount of, or
accelerate or delay the timing of, distributions that are required to be made
for the benefit of the Certificateholders or (2) reduce the percentage of the
Certificates that is required to consent to any such amendment, without the
consent of Certificateholders evidencing 100% Percentage Interests of the
Outstanding Certificates. If any such amendment, modification, supplement or
waiver shall so be consented to by the Majority Certificateholders, the Trust
agrees, promptly following a request by the Owner Trustee to do so, to execute
and deliver, in its own name and at its own expense, such agreements,
instruments, consents and other documents as the Owner Trustee may deem
necessary or appropriate in the circumstances.

                  (g) Negative Covenants. So long as any Class A Certificates
are Outstanding, the Trust shall not:

                  (i) except as expressly permitted by the Basic Documents,
         sell, transfer, exchange or otherwise dispose of any of the properties
         or assets of the Trust, including those included in any part of the
         Owner Trust Estate, unless directed to do so by the Initial Class A
         Certificateholder;

                  (ii) claim any credit on, or make any deduction from the
         principal or interest distributable in respect of, the Class A
         Certificates (other than amounts properly withheld from such payments
         under the Code) or assert any claim against any present or former Class
         A Certificateholder by reason of the payment of the taxes levied or
         assessed upon any part of the Owner Trust Estate;

                  (iii) engage in any business or activity other than as
         expressly permitted by this Agreement and the other Basic Documents,
         other than in connection with, or relating to, the issuance of
         Certificates pursuant to this Agreement, or amend this Agreement as in
         effect on the Closing Date other than in accordance with Section 17.02
         thereof;

                  (iv) issue any certificates or other obligations except as
         under this Agreement;

                  (v) incur or assume any indebtedness or guaranty any
         indebtedness of any Person, except for such indebtedness as may be
         incurred by the Trust in connection with the issuance of the
         Certificates pursuant to this Agreement;

                  (vi) dissolve or liquidate in whole or in part or merge or
         consolidate with any other Person;

                  (vii) (A) permit the validity or effectiveness of this
         Agreement to be impaired, or permit the lien of this Agreement to be
         amended, hypothecated, subordinated, terminated or discharged, or
         permit any Person to be released from any covenants or obligations with
         respect to the Certificates under this Agreement except as may


                                      -72-
<PAGE>   80
         expressly be permitted hereby, (B) except as provided in the Basic
         Documents, permit any lien, charge, excise, claim, security interest,
         mortgage or other encumbrance to be created on or extend to or
         otherwise arise upon or burden the Owner Trust Estate or any part
         thereof or any interest therein or the proceeds thereof (other than tax
         liens, mechanics' liens and other liens that arise by operation of law,
         in each case, on any Mortgaged Property and arising solely as a result
         of an action or omission of the related Borrowers) or (C) permit any
         Person other than itself, the Owner Trustee and the Certificateholders
         to have any right, title or interest in the Owner's Trust Estate;

                  (viii) remove the Administrator without the prior written
         consent of the Majority Certificateholders; or

                  (ix) take any other action or fail to take any action which
         may cause the Trust to be taxable as a taxable mortgage pool pursuant
         to Section 7701(i) of the Code.

                  (h) Annual Statement as to Compliance. The Trust will deliver
to the Owner Trustee, within 120 days after the end of each fiscal year of the
Trust (commencing in the fiscal year 1998), an Officer's Certificate stating, as
to the best knowledge of the Responsible Officer signing such Officer's
Certificate, that:

                  (i) a review of the activities of the Trust during such year
         and of its performance under this Agreement has been made under such
         Responsible Officer's supervision; and

                  (ii) to the best of such Responsible Officer's knowledge,
         based on such review, the Trust has complied with all conditions and
         covenants under this Agreement throughout such year, or, if there has
         been a default in its compliance with any such condition or covenant,
         specifying each such default known to such Responsible Officer and the
         nature and status thereof.

                  (i) Servicer's Obligations. The Trust shall cause the Servicer
to comply with this Agreement.

                  (j) Restricted Payments. The Trust shall not, directly or
indirectly, (i) pay any dividend or make any distribution (by reduction of
capital or otherwise), whether in cash, property, securities or a combination
thereof, to the Owner Trustee or any owner of a beneficial interest in the Trust
or otherwise with respect to any ownership or equity interest or security in or
of the Trust or to the Servicer, (ii) redeem, purchase, retire or otherwise
acquire for value any such ownership or equity interest or security or (iii) set
aside or otherwise segregate any amounts for any such purpose; provided,
however, that the Trust may make, or cause to be made, distributions to the
Servicer, the Owner Trustee, the Custodian, the Hedging Counterparties and the
Certificateholders as contemplated by, and to the extent funds are available for
such purpose under this Agreement. The Trust will not, directly or indirectly,
make or cause to be made payments to or distributions from the Distribution
Account except in accordance with this Agreement and the Basic Documents.


                                      -73-
<PAGE>   81
                  (k) Notice of Events of Default. The Trust shall give the
Owner Trustee and the Class A Certificateholders prompt written notice of each
Servicer Event of Default hereunder, each default on the part of the Servicer or
the Loan Originator of its obligations under this Agreement.

                  (l) Further Instruments and Acts. Upon request of the Owner
Trustee, the Trust will execute and deliver such further instruments and do such
further acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Agreement.

                  Section 4.10 Representations and Warranties of the Transfer
Obligor.

                  The Transfer Obligor hereby represents, warrants and covenants
to the other parties hereto and the Certificateholders that as of the Closing
Date, as of each Transfer Date and as of each Purchase Value Excess Date:

                  (a) The Transfer Obligor is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has, and had at all relevant times, full power to own its property, to carry
on its business as currently conducted, to enter into and perform its
obligations under each Basic Document to which it is a party;

                  (b) The execution and delivery of each Basic Document to which
it is a party by the Transfer Obligor and its performance of and compliance with
all of the terms thereof will not violate the Transfer Obligor's articles of
incorporation or by-laws or constitute a default (or an event which, with notice
or lapse of time, or both, would constitute a default) under, or result in the
breach or acceleration of, any material contract, agreement or other instrument
to which the Transfer Obligor is a party or which is applicable to the Transfer
Obligor or any of its material assets;

                  (c) The Transfer Obligor has the full power and authority to
enter into and consummate the transactions contemplated by each Basic Document
to which it is a party, has duly authorized the execution, delivery and
performance of each Basic Document to which it is a party and has duly executed
and delivered each Basic Document to which it is a party. Each Basic Document to
which it is a party, assuming due authorization, execution and delivery by the
other party or parties thereto, constitutes a valid, legal and binding
obligation of the Transfer Obligor, enforceable against it in accordance with
the terms thereof, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, receivership, moratorium or other similar laws
relating to or affecting the rights of creditors generally, and by general
equity principles (regardless of whether such enforcement is considered in a
proceeding in equity or at law);

                  (d) The Transfer Obligor is not in violation of, and the
execution and delivery of each Basic Document to which it is a party by the
Transfer Obligor and its performance and compliance with the terms of each Basic
Document to which it is a party will not constitute a violation with respect to,
any order or decree of any court or any order or regulation of any federal,
state, municipal or governmental agency having jurisdiction, which violation
would materially and adversely affect the condition (financial or otherwise) or


                                      -74-
<PAGE>   82
operations of the Transfer Obligor or its properties or materially and adversely
affect the performance of its duties hereunder;

                  (e) There are no actions or proceedings against, or
investigations of, the Transfer Obligor currently pending with regard to which
the Transfer Obligor has received service of process and no action or proceeding
against, or investigation of, the Transfer Obligor is, to the knowledge of the
Transfer Obligor, threatened or otherwise pending before any court,
administrative agency or other tribunal that (A) if determined adversely to the
Transfer Obligor, would prohibit its entering into any of the Basic Documents to
which it is a party or render the Securities invalid, (B) seek to prevent the
issuance of the Securities or the consummation of any of the transactions
contemplated by any of the Basic Documents to which it is a party or (C) if
determined adversely to the Transfer Obligor, would prohibit or materially and
adversely affect the performance by the Transfer Obligor of its obligations
under, or the validity or enforceability of, any of the Basic Documents to which
it is a party or the Securities;

                  (f) No consent, approval, authorization or order of any court
or governmental agency or body is required for the execution, delivery and
performance by the Transfer Obligor of, or compliance by the Transfer Obligor
with, any of the Basic Documents to which it is a party or the Securities, or
for the consummation of the transactions contemplated by any of the Basic
Documents to which it is a party, except for such consents, approvals,
authorizations and orders, if any, that have been obtained prior to the Closing
Date;

                  (g) The Transfer Obligor is solvent, is able to pay its debts
as they become due and has capital sufficient to carry on its business and its
obligations hereunder; it will not be rendered insolvent by the execution and
delivery of any of the Basic Documents to which it is a party or the assumption
of any of its obligations thereunder; no petition of bankruptcy (or similar
insolvency proceeding) has been filed by or against the Transfer Obligor; and

                  (h) The information, reports, financial statements, exhibits
and schedules furnished in writing by or on behalf of the Transfer Obligor to
the Initial Class A Certificateholder in connection with the negotiation,
preparation or delivery of the Basic Documents to which it is a party or
delivered pursuant thereto, when taken as a whole, do not contain any untrue
statement of material fact or omit to state any material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading. All written information furnished after the date hereof by
or on behalf of the Transfer Obligor to the Initial Class A Certificateholder in
connection with the Basic Documents to which and the transactions contemplated
thereby will be true, complete and accurate in every material respect, or (in
the case of projections) based on reasonable estimates, on the date as of which
such information is stated or certified. There is no fact known to a Responsible
Officer of the Transfer Obligor, after due inquiry, that could reasonably be
expected to have a material adverse effect on (a) the property, business,
operations, financial condition or prospects of the Transfer Obligor, (b) the
ability of the Transfer Obligor to perform its obligations under any Basic
Document to which it is a party, (c) the validity or enforceability of any of
the Basic Documents, (d) the rights and remedies of


                                      -75-
<PAGE>   83
the Certificateholders and Owner Trustee under any of the Basic Documents, (e)
the timely distribution of the principal of or interest on the Certificates or
other amounts distributable in connection therewith or (f) the Owner Trust
Estate that has not been disclosed to the Initial Class A Certificateholder in a
report, financial statement, exhibit, schedule, disclosure letter or other
writing furnished to the Initial Class A Certificateholder for use in connection
with the transactions contemplated thereby.

                                    ARTICLE V
                    ADMINISTRATION AND SERVICING OF THE LOANS

                  Section 5.01      Duties of the Servicer.

                  (a) Acting directly or through one or more Subservicers as
provided in Section 5.03, the Servicer, as an independent contract servicer,
shall service and administer the Loans in accordance with this Agreement and
shall have full power and authority, acting alone, to do or cause to be done any
and all things in connection with such servicing and administration which it may
deem necessary or desirable and consistent with the terms of this Agreement.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the
Servicer shall not have any duties, responsibilities, or fiduciary relationship
with the parties hereto except those expressly set forth herein, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or shall otherwise exist against the Servicer.

                  (b) The Servicer hereby agrees to serve as the loan servicer
with respect to each of the Loans and to perform Loan Servicing as described
herein and as otherwise provided herein, upon and subject to the terms of this
Agreement. Subject to any limitation of authority under Section 5.02, "Loan
Servicing" shall mean those services pertaining to the Loans which, applying the
Servicing Standard, are required hereunder to be performed by the Servicer, and
which shall include:

                           (i) reviewing all available documents pertaining to
                  the Loans, organizing, administering and maintaining the
                  Servicing Files, and inputting all relevant information into
                  the Servicer's loan servicing computer system;

                           (ii) preparing and filing or recording all financing
                  statements, continuation statements and other documents or
                  instruments and taking such other action necessary to maintain
                  the lien of any Mortgage on the related Mortgaged Property;

                           (iii) monitoring each Borrower's maintenance of
                  insurance coverage on each Mortgaged Property as required by
                  the related Loan Documents and causing to be maintained
                  adequate insurance coverage on each Mortgaged Property in
                  accordance with Section 5.05;



                                      -76-
<PAGE>   84
                           (iv) monitoring the status of real estate taxes,
                  assessments, ground rents and other similar items and
                  verifying the payment of such items for each Mortgaged
                  Property in accordance with Section 5.04;

                           (v) preparing and delivering all reports and
                  information required hereunder;

                           (vi) procuring and supervising the services of third
                  parties (other than subservicers pursuant to Section 5.03)
                  necessary or appropriate in connection with the servicing of
                  the Loans by the Servicer;

                           (vii) performing payment processing, record keeping,
                  administration of escrow and other accounts, interest rate
                  adjustment, and other routine customer service functions;

                           (viii) determining and notifying each Borrower of the
                  amount of each payment of principal and interest due under the
                  terms of the related Loan, including without limitation
                  determining and notifying the related Borrower of the interest
                  rate for any Adjustable Rate Loan;

                           (ix) administering Lockbox Accounts in accordance
                  with Section 5.20;

                           (x) monitoring any casualty losses or condemnation
                  proceedings and administering any proceeds related thereto in
                  accordance with the related Loan Documents, provided, that if
                  such Loan Documents provide for any decision or discretion
                  with respect to application of such proceeds, Servicer shall
                  notify the Initial Class A Certificateholder with respect to
                  such application;

                           (xi) notifying all Borrowers of the appropriate place
                  for communications and payments, and collecting and
                  continuously monitoring all payments made with respect to the
                  Loans;


                           (xii) administering any requests for assumptions of a
                  Loan or transfers of ownership of or placement of subordinate
                  financing on a Mortgaged Property, in accordance with Section
                  5.07;

                           (xiii) commencing on behalf of the Trust any
                  litigation or proceeding relating to the foreclosure or other
                  realization upon the collateral under any of the Loans, and
                  retaining legal counsel in connection therewith, all in
                  accordance with Section 5.10.

                           (xiv) selling any Foreclosure Property in accordance
                  with Section 5.11;

                           (xv) managing and operating each Foreclosure Property
                  in accordance with Section 5.12; and


                                      -77-
<PAGE>   85
                           (xvi) administering any proposals for modifications,
                  waivers, amendments or consents with respect to any term of a
                  Loan, in accordance with Section 5.19.

                  (c) The Servicer shall perform its services hereunder (a) in
accordance with (i) applicable laws, (ii) the terms and provisions of the Loan
Documents, (iii) the express terms hereof, and (iv) the customary and usual
standards of practice of prudent institutional commercial mortgage loan
servicers with respect to commercial mortgage loans, and (b) to the extent
consistent with the foregoing requirements, in the same manner in which the
Servicer services and administers commercial mortgage loans, warehouse loans and
hotel loans, as applicable, for other third party portfolios of such loans
similar to the Loans, but without regard to any relationship which the Servicer
or any Affiliate of the Servicer may have with the related Borrower or any
Affiliate of such Borrower or to the Servicer's right to receive compensation
for its services hereunder or to the ownership or servicing by the Servicer of
any other property or loans. The servicing standards described in the preceding
sentence are herein referred to as "Servicing Standard".

                  (d) Termination of Servicing. (i) In the event of a
Disposition or other removal of a Loan from the Owner Trust Estate, the Servicer
shall be terminated hereunder with respect to such Loan.

                      (ii) The Servicer agrees that in the event that any
Certificates are outstanding after the Expected Final Distribution Date, the
Servicer will resign and the Majority Certificateholders shall appoint a
successor in accordance with provisions of Section 15.02. The Majority
Certificateholders may, by written notice to the Servicer and the Owner Trustee,
elect to have the Servicer continue its duties hereunder.

                  Section 5.02 Authority of the Servicer.

                  In performing its Loan Servicing obligations hereunder, the
Servicer shall, except as otherwise provided herein and subject to the terms of
this Agreement, have full power and authority, acting alone or through others,
to take any and all actions in connection with such Loan Servicing that it deems
necessary or appropriate and, consistent with the Servicing Standard, in the
best economic interests of the Certificateholders. Without limiting the
generality of the foregoing, the Servicer is hereby authorized and empowered by
the Trust and the Certificateholders when the Servicer deems it appropriate in
its best judgment, to execute and deliver, on behalf of such Persons, (a) any
and all financing statements, continuation statements and other documents or
instruments necessary to maintain the lien of each Mortgage on the related
Mortgaged Property and any other related collateral; and (b) any and all
instruments of satisfaction or cancellation, or of partial or full release or
discharge and all other comparable instruments with respect to each of the
Loans; provided, however, that the Servicer shall notify the Initial Class A
Certificateholder in writing in the event that the Servicer intends to execute
and deliver any such instrument referred to in clause (b) above, except in
connection with any payment in full of any Loan. The Trust and Owner Trustee
will cooperate with the Servicer by either executing and delivering to the
Servicer from time to time (i) powers of 


                                      -78-
<PAGE>   86
attorney evidencing the Servicer's authority and power under this Section, or
(ii) such documents or instruments deemed necessary or appropriate by the
Servicer to enable the Servicer to carry out its Loan Servicing obligations
hereunder.

                  Section 5.03 Subservicing Agreements Between Servicer and
Subservicers.

                  (a) Until the Servicer becomes an Eligible Servicer, the
Servicer shall, and after becoming an Eligible Servicer, the Servicer may, enter
into Subservicing Agreements for any servicing and administration of Loans with
any Subservicer which is in compliance with the laws of each state necessary to
enable it to perform its obligations under such Subservicing Agreement and is
approved by the Majority Certificateholders. The Servicer shall give notice to
the Owner Trustee and the Majority Certificateholders of the appointment of any
Subservicer. For purposes of this Agreement, the Servicer shall be deemed to
have received payments on Loans when any Subservicer has received such payments.
Unless otherwise consented to by the Initial Class A Certificateholder, any such
Subservicing Agreement shall be consistent with and not violate the provisions
of this Agreement.

                  (b) The Servicer shall be entitled to terminate any
Subservicing Agreement in accordance with the terms and conditions of such
Subservicing Agreement and to either itself directly service the related Loans
or enter into a Subservicing Agreement with a successor Subservicer which
qualifies under Section 5.03.

                  (c) The Servicer shall not be relieved of its obligations
under this Agreement notwithstanding any Subservicing Agreement or any of the
provisions of this Agreement relating to agreements or arrangements between the
Servicer and a Subservicer or otherwise, and the Servicer shall be obligated to
the same extent and under the same terms and conditions as if it alone were
servicing and administering the Loans. The Servicer shall be entitled to enter
into any agreement with a Subservicer for indemnification of the Servicer by
such Subservicer and nothing contained in such Subservicing Agreement shall be
deemed to limit or modify this Agreement.

                  (d) The Servicer shall be responsible for the servicing of all
of the Loans. The Servicer shall not be relieved of its obligations under this
Agreement notwithstanding the fact that the Loans may be serviced prior to a
Transfer Date by a party other than the Servicer or a Subservicer and the
Servicer shall be obligated to the same extent and under the same terms and
conditions as if it were servicing and administering all of the Loans.

                  (e) Any Subservicing Agreement and any other transactions or
services relating to the Loans involving a Subservicer shall be deemed to be
between the Subservicer and the Servicer alone and no party hereto nor the
Certificateholders shall not be deemed parties thereto and shall have no claims,
rights, obligations, duties or liabilities with respect to any Subservicer
except as set forth in Section 5.03(f).

                  (f) In connection with the assumption of the responsibilities,
duties and liabilities and of the authority, power and rights of the Servicer
hereunder by a successor Servicer pursuant to Section 15.02, it is understood
and agreed that the Servicer's rights and 

                                      -79-
<PAGE>   87
obligations under any Subservicing Agreement then in force between the Servicer
and a Subservicer may be assumed or terminated by the successor Servicer at its
option without the payment of any fee (notwithstanding any contrary provision in
any Subservicing Agreement).

                  The Servicer shall, upon request of the successor Servicer,
but at the expense of the Servicer, deliver to the assuming party documents and
records relating to each Subservicing Agreement and an accounting of amounts
collected and held by it and otherwise use its best reasonable efforts to effect
the orderly and efficient transfer of the Subservicing Agreements to the
assuming party.

                  Section 5.04 Escrow Accounts; Collection of Taxes, Assessments
and Similar Items.

                  (a) Subject to and as required by the terms of the related
Loan Documents, the Servicer shall establish and maintain one or more segregated
custodial accounts (each, an "Escrow Account") into which any or all Escrow
Payments shall be deposited promptly after receipt and identification. Escrow
Accounts shall be Eligible Accounts and shall be denominated "Escrow Account,
[Servicer] in trust for Wilmington Trust Company, as Owner Trustee, for the
benefit of the FINOVA Commercial Mortgage Loan Asset-Backed Certificates 1998-1
and certain Borrowers." The Servicer shall notify the Initial Class A
Certificateholder in writing of the location and account number of each Escrow
Account it establishes and shall notify the Initial Class A Certificateholder
prior to any change thereof. Withdrawals of amounts from an Escrow Account may
be made, subject to any express provisions to the contrary herein, applicable
laws, and to the terms of the related Loan Documents governing the use of the
Escrow Payments, only: (i) to effect payment of taxes, assessments, insurance
premiums, ground rents and other items required or permitted to be paid from
escrow; (ii) to refund to the Borrowers any sums determined to be in excess of
the amounts required to be deposited therein; (iii) to pay interest, if required
under the Loan Documents, to the Borrowers on balances in the Escrow Accounts;
(iv) to pay to the Servicer from time to time any interest or investment income
earned on funds deposited therein provided such funds are invested in Permitted
Investments; (v) to apply funds to the indebtedness or outstanding capital
contribution, as applicable, of the Loan in accordance with the terms thereof;
(vi) to reimburse the Servicer for any Servicing Expense or Servicing Advance
for which Escrow Payments should have been made by the Borrowers, but only from
amounts received on the Loan which represent late collections of Escrow Payments
thereunder; (vii) to withdraw any amount deposited in the Escrow Accounts which
was not required to be deposited therein; or (viii) to clear and terminate the
Escrow Accounts at the termination of this Agreement.

                  (b) The Servicer shall maintain accurate records with respect
to each Mortgaged Property reflecting the status of taxes, assessments and other
similar items that are or may become a lien thereon and the status of insurance
premiums payable with respect thereto as well as the payment of ground rents
with respect to each Ground Lease (to the extent such information is reasonably
available). To the extent that the related Loan Documents require Escrow
Payments to be made by a Borrower, the Servicer shall obtain, from time to time,
all bills for the payment of such items, and shall effect payment prior to the
applicable penalty or


                                      -80-
<PAGE>   88
termination date, employing for such purpose Escrow Payments paid by the
Borrower pursuant to the terms of the Loan and deposited in the related Escrow
Account by the Servicer. To the extent that the Loan does not require a Borrower
to make Escrow Payments, the Servicer shall use its best efforts to require that
any such payment be made by the Borrowers prior to the applicable penalty or
termination date. Subject to Section 5.05 with respect to the payment of
insurance premiums, if a Borrower fails to make any such payment on a timely
basis or collections from the Borrower are insufficient to pay any such item
when due, the amount of any shortfall shall be paid by the Servicer as a
Servicing Advance.

                  Section 5.05      Maintenance of Insurance Policies.

                  (a) The Servicer shall use its best efforts to cause each
Borrower to maintain or to cause to be maintained for each Loan such insurance
as is required to be maintained pursuant to the related Loan Documents. If the
Borrower fails to maintain such insurance, then the Servicer shall notify the
Initial Class A Certificateholder of such breach and, to the extent available at
commercially reasonable rates, cause to be maintained (i) fire and hazard
insurance with extended coverage in an amount which is at least equal to the
lesser of the current principal balance of such Loan and the replacement cost of
the improvements which are a part of the related Mortgaged Property and (ii) to
the extent that the Mortgaged Property is located in a federally designated
special flood hazard area, flood insurance in respect thereof. Such flood
insurance shall be in an amount equal to the lesser of (y) the unpaid principal
balance of the related Loan or (z) the maximum amount of such insurance as is
available for the related Mortgaged Property under the National Flood Insurance
Act. After notifying the Initial Class A Certificateholder pursuant to the
second preceding sentence, the Servicer shall take such action as the Servicer
deems to be in the best economic interests of the Certificateholders with
respect to the maintenance of any other forms of insurance which are required to
be maintained pursuant to the related Loan Documents, except to the extent that
such insurance is not available or the mortgagee, does not have an insurable
interest. The Servicer shall, to the extent available at commercially reasonable
rates, maintain for each Foreclosure Property no less insurance coverage than
was previously required with respect to the related Mortgaged Property. All such
policies shall be endorsed with standard mortgagee clauses with loss payable to
the Owner Trustee, and shall be in an amount sufficient to avoid the application
of any co-insurance clause. The costs of maintaining the insurance policies
which the Servicer is required to maintain pursuant to this Section shall be
paid by the Servicer as a Servicing Advance; provided, however, that the costs
of maintaining insurance with respect to each Foreclosure Property shall be paid
pursuant to Section 5.12.

                  (b) The Servicer may fulfill its obligation to maintain
insurance, as provided in Section 5.05(a), through a master force placed
insurance policy, the cost of which shall be paid by the Servicer as a Servicing
Advance, provided that such cost is limited to the incremental cost of such
policy allocable to such Mortgaged Property or Foreclosure Property (i.e., other
than any minimum or standby premium payable for such policy whether or not any
Mortgaged Property is then covered thereby, which shall be paid by the
Servicer). Such master force placed insurance policy may contain a deductible
clause, in which case the Servicer shall, in the event that there shall not have
been maintained on the related Mortgaged Property or 


                                      -81-
<PAGE>   89
Foreclosure Property a policy otherwise complying with the provisions of Section
5.05(a), and there shall have been one or more losses which would have been
covered by such a policy had it been maintained, immediately (or, prior to a
Collection Account Trigger Event, in the Distribution Account as permitted by
Section 7.01(b)(1) and 7.01(c)(1)) deposit into the Collection Account from its
own funds the amount not otherwise payable under the master force placed
insurance policy because of such deductible to the extent that such deductible
exceeds the deductible limitation required under the related Loan Documents, or,
in the absence of such deductible limitation, the deductible limitation which is
consistent with the Servicing Standard.

                  (c) The Servicer shall maintain at its own expense a fidelity
bond in form and amount that is consistent with the Servicing Standard. In
addition, the Servicer shall keep in force or cause the Subservicer, at its own
expense during the term of this Agreement, a policy or policies of insurance in
form and amounts that are consistent with the Servicing Standard, covering loss
occasioned by the errors and omissions of the Servicer's officers and employees
in connection with its obligations hereunder. The Servicer will promptly report
in writing to the Initial Class A Certificateholder any material changes that
may occur in their fidelity bond, if any, and/or their errors and omissions
insurance policy or policies, as the case may be, and will furnish to the
Initial Class A Certificateholder certificates evidencing that such bond, if
any, and insurance policies are in full force and effect.

                  Section 5.06 Inspections.

                  The Servicer shall perform a physical inspection of each
Mortgaged Property or Foreclosure Property at least annually, to the extent that
the Loan has a Transfer Cutoff Date Principal Balance of $1,500,000 or more and
every two years, to the extent that the Loan has a Transfer Cutoff Date
Principal Balance less than $1,500,000 or if (a) the related Loan becomes
delinquent for a period of 60 days or more, or (b) the Servicer determines that
it is prudent to conduct such an inspection. The Servicer shall prepare a
written report of each such inspection and shall promptly deliver a copy of such
report to the Initial Class A Certificateholder. The reasonable out-of-pocket
expenses incurred by the Servicer in connection with any such inspections
(including any out-of-pocket expenses related to travel and lodging and any
charges incurred through the use of a qualified third party to perform such
services) shall be paid as a Servicing Expense; provided, however, that with
respect to the scheduled inspection of any Mortgaged Property, such expenses
shall be borne by the Servicer.

                  Section 5.07 "Due-on-Sale" Clauses; Assumption Agreements.

                  When any Borrower proposes to convey or encumber all or any
portion of its interests in a Mortgaged Property or if such conveyance or
encumbrance has actually occurred, to the extent that the Servicer has actual
knowledge of such conveyance or encumbrance, the Servicer shall give notice
within Five (5) Business Days thereof to the Initial Class A Certificateholder
and consistent with the Servicing Standard, shall take such actions as it deems
in the best economic interests of the Certificateholders, including (i) waiving
or enforcing any due-on-sale clause or due-on-encumbrance clause contained in
the related Loan Documents, to the extent permitted under the terms of the
related Loan Documents and applicable law, (ii)


                                      -82-
<PAGE>   90
taking or entering into an assumption or substitution agreement from or with the
Person to whom such Mortgaged Property has been or is about to be conveyed, and
(iii) releasing the original Borrower from liability upon the related Loan and
substituting the new Borrower as obligor thereon. The Servicer shall immediately
give notice of any such action to the Initial Class A Certificateholder.


                  The Servicer may, as a condition to granting any such request
require (to the extent permitted by applicable law) that such Borrower pay to
it, as Servicing Compensation, a reasonable and customary fee consistent with
the Servicing Standard in connection with such request, together with any
related costs and expenses incurred by the Servicer.

                  Section 5.08 Servicing Advances.

                  (a) The Servicer shall make Servicing Advances in the
performance of the Loan Servicing hereunder. Notwithstanding any obligation by
the Servicer to make a Servicing Advance hereunder with respect to a Loan,
before making any Servicing Advance, the Servicer shall assess the reasonable
likelihood of (i) recovering such Servicing Advance and any prior Servicing
Advances for such Loan and (ii) recovering any amounts attributable to
outstanding interest and principal owing on such Loan for the benefit of the
Certificateholders in excess of the costs, expenses and other deductions to
obtain such recovery, including without limitation any Servicing Advances
therefor and, if applicable, the outstanding indebtedness of all. The Servicer
shall only make a Servicing Advance with respect to a Loan to the extent that
the Servicer determines in its reasonable, good faith judgment that such
Servicing Advance would likely be recovered as aforesaid; provided, however,
that the Servicer will be entitled to be reimbursed for any Nonrecoverable
Servicing Advances in accordance with the terms of this Agreement. The Servicer
may recover Servicing Advances from the Borrowers to the extent permitted by the
Loans or, if not theretofore recovered from the Borrower on whose behalf such
Servicing Advance was made, from Liquidation Proceeds realized upon the
liquidation of the related Loan. In no case may the Servicer recover Servicing
Advances from the principal and interest payments on any other Loan or from any
amounts relating to any other Loan.

                  (b) Notwithstanding any other provision hereof, the Servicer
shall notify the Initial Class A Certificateholder prior to incurring any
Servicing Expense or Servicing Advance, except for any Servicing Expense or
Servicing Advance which is (i) incurred by the Servicer pursuant to Section
5.04(b) or 5.05, (ii) made for any purposes other than those described in item
(i) above, and is not over $25,000.00 and is made in an emergency situation to
preserve and protect the Mortgaged Property or the safety of the public in
connection with such Mortgaged Property, or (iii) made for any purpose other
than those described in items (i) and (ii) above and is not over $5,000.00 per
item. Unless otherwise provided herein, no Majority Certificateholder approval
shall be required prior to the Servicer making any Servicing Advance or
incurring any Servicing Expense.

                  Section 5.09 Periodic Advances.


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<PAGE>   91
                  (a) If, on any Remittance Date, the Servicer determines that
any Monthly Payments due in the Due Period immediately preceding such
Distribution Date have not been received as of the related Remittance Date, the
Servicer shall determine the amount of any Periodic Advance required to be made
with respect to the related Distribution Date. The Servicer shall, on or prior
to such Distribution Date, furnish a statement to the Owner Trustee (the
information in such statement to be made available to the Initial Class A
Certificateholder upon request) setting forth the amount of such Monthly
Payments which were not received as of the related Remittance Date preceding the
related Distribution Date, and shall include in the amount to be deposited in
the Collection Account on such Distribution Date an amount equal to the Periodic
Advance, if any, from its own funds.

                  (b) The Servicer shall be permitted to fund its payment of
Periodic Advances on any Remittance Date from collections on any Loan deposited
to the Collection Account subsequent to the related Due Period, and shall
deposit to such Collection Account with respect to Periodic Advances funded from
amounts on deposit in such Collection Account (i) collections from the Borrower
whose Delinquency gave rise to the shortfall which resulted in such Periodic
Advance and (ii) Liquidation Proceeds recovered on account of the related Loan
to the extent of the amount of aggregate Periodic Advances related thereto. In
any event, to the extent the Servicer uses such funds, the Servicer must
reimburse the Collection Account by the next Remittance Date to the extent
necessary to provide for payments pursuant to Section 7.01(c)(3)(i)-(vi).

                  (c) The Servicer shall designate on its records the specific
Loans and related installments (or portions thereof) as to which such Periodic
Advance shall be deemed to have been made for purposes of withdrawals from the
Collection Account pursuant to Section 7.01(c)(1).

                  Section 5.10 Realization Upon Mortgaged Properties.

                  (a) Upon the failure of any Borrower to make any required
payment of principal, interest or other amounts due under a Loan, or otherwise
to perform fully any material obligations under any of the related Loan
Documents, in either case within any applicable grace period, the Servicer
shall, upon discovery of such failure, promptly notify the Initial Class A
Certificateholder in writing. Consistent with the Servicing Standard, the
Servicer shall take such actions as it deems in the best economic interests of
the Certificateholders, including without limitation, issuing notices of
default, declaring events of default, declaring due the entire outstanding
principal balance, and otherwise taking all reasonable actions under the related
Loan, as the case may be, in preparation for the realization upon the underlying
Mortgaged Property. The Servicer shall, consistent with the Servicing Standard,
and as permitted under the provisions of each related Mortgage, foreclose upon
or otherwise comparably convert the ownership of the related Mortgaged Property.
In connection with such foreclosure or other conversion, the Servicer shall
follow such practices and procedures as it shall deem necessary or advisable and
as shall be consistent with the Servicing Standard. All costs and expenses
incurred by the Servicer in any such proceedings shall be 

                                      -84-
<PAGE>   92
paid by the Servicer as a Servicing Expense. The Servicer shall give notice
within one (1) Business Day of the commencement of any such action to the
Initial Class A Certificateholder.

                  (b) If title to any Mortgaged Property is acquired in
foreclosure or by deed in lieu of foreclosure, the deed or certificate of sale
shall be taken in the name of the Trust or its nominee, but in no event shall
such deed or certificate be taken in the name of the Servicer. Notwithstanding
any such acquisition of title and cancellation of the related Loan, such Loan
shall be considered to be a Foreclosed Loan until such time as the related
Foreclosure Property shall be sold, transferred or conveyed. Consistent with the
foregoing, for purposes of all calculations hereunder, so long as such
Foreclosed Loan shall be considered to be an outstanding Loan, payments and
collections with respect to the related Foreclosure Property received in any
month (net of related expenses) shall be applied to amounts which would have
been payable under the related Promissory Note in accordance with the terms of
such Promissory Note.

                  (c) The Servicer shall not obtain title to any Mortgaged
Property as a result or in lieu of foreclosure or otherwise, and shall not
otherwise acquire possession of, or take other action with respect to, any
Mortgaged Property, if, as a result of any such action, the Certificateholders
or Owner Trustee would be considered to hold title to, to be a
"mortgagee-in-possession" of, or to be an "owner" or "operator" of such
Mortgaged Property within the meaning of any Environmental Law, or a
"discharger" or "responsible party" thereunder, unless the Servicer has also
previously determined, based on a report, prepared by a Person who regularly
conducts environmental site assessments, that:

                           (i) such Mortgaged Property is in compliance with
                  applicable Environmental Laws or, if not, that taking such
                  actions as are necessary to bring such Mortgaged Property into
                  compliance therewith is reasonably likely to produce a greater
                  recovery on a present value basis than not taking such
                  actions; and

                           (ii) there are no circumstances present on such
                  Mortgaged Property relating to the use, management or disposal
                  of any Hazardous Materials for which investigation, testing,
                  monitoring, containment, clean-up or remediation could be
                  required under any applicable Environmental Law, or that, if
                  any such Hazardous Materials are present for which such action
                  could be required, taking such actions with respect to the
                  affected Mortgaged Property is reasonably likely to produce a
                  greater recovery on a present value basis than not taking such
                  actions.

                  If the Servicer has so determined based on satisfaction of the
criteria in clauses (i) and (ii) above that it would be in the best economic
interest of the Certificateholders to take any such actions, the Servicer shall
notify the Initial Class A Certificateholder of such proposed action. The
Servicer shall take such action only if authorized by the Majority
Certificateholders in writing. The costs of any such compliance, containment,
clean-up or remediation shall be paid by the Servicer as a Servicing Expense.
The Servicer shall give 


                                      -85-
<PAGE>   93
notice within one (1) Business Day of the completion of any such action to the
Initial Class A Certificateholder.

                  If the environmental assessment first obtained by the Servicer
with respect to a Mortgaged Property indicates that such Mortgaged Property may
not be in compliance with applicable Environmental Laws or that Hazardous
Materials may be present but does not definitively establish such fact, the
Servicer shall cause such further environmental assessments to be conducted.

                  (d) The environmental site assessments contemplated by Section
5.10(c) shall be prepared by any Person who is approved by the Servicer in
accordance with the Servicing Standard. The cost of preparation of any
environmental assessment shall be paid by the Servicer as a Servicing Expense.

                  (e) If the Servicer determines, pursuant to Section 5.10(c),
that taking such actions as are necessary to bring any Mortgaged Property into
compliance with applicable Environmental Laws, or taking such actions with
respect to the containment, clean-up, removal or remediation of hazardous
substances, hazardous materials, hazardous wastes, or petroleum-based materials
affecting any such Mortgaged Property, is not reasonably likely to produce a
greater recovery on a present value basis than not taking such actions, then the
Servicer shall take such action it would be in the best economic interest of the
Certificateholders, including, without limitation, releasing the lien of the
related Mortgage with respect to the affected Mortgaged Property. The Servicer
shall give notice within one (1) Business Day of any such action to the Initial
Class A Certificateholder.

                  Section 5.11 Sale of Foreclosure Properties.

                  (a) With respect to any Foreclosure Property, the Servicer
shall use its best efforts to sell to any Person (other than an Affiliate of the
Servicer) such Foreclosure Property on commercially reasonable terms which are
consistent with the Servicing Standard; provided, however, that any such sale
must be approved in writing by the Majority Certificateholders in their
reasonable discretion.

                  (b) Subject to Section 5.11(a), the Servicer shall act on
behalf of the Trust and Certificateholders in negotiating and taking any such
action necessary or appropriate in connection with the sale of any defaulted
Loan or Foreclosure Property, including the collection of all amounts payable in
connection therewith. Any sale of any defaulted Loan or Foreclosure Property
shall be without recourse to, or representation or warranty by, the Trust, the
Servicer, or any other Person (except that any contract of sale and conveyance
documents may contain customary warranties of title and condition). The Net
Liquidation Proceeds shall be promptly deposited by the Servicer in the
Collection Account (or, prior to a Collection Account Trigger Event, in the
Distribution Account as permitted by Sections 7.01(b)(1) and 7.01(c)(1)).

                  Section 5.12 Management of Foreclosure Property.


                                      -86-
<PAGE>   94
                  (a) Upon the acquisition by the Trust of any Foreclosure
Property, the Servicer shall have full power and authority, subject to the
specific requirements and prohibitions of this Agreement, to do or authorize to
be done any and all things in connection therewith as are consistent with the
manner in which the Servicer manages and operates similar properties owned or
managed by the Servicer or any of its Affiliates, all on terms and for such
period as the Servicer deems to be in the best economic interest of the
Certificateholders. The Servicer shall segregate and hold all revenues received
by it with respect to any Foreclosure Property separate and apart from its own
funds and general assets and shall establish and maintain with respect to any
Foreclosure Property one or more segregated custodial accounts (each, an "REO
Account") for the purposes set forth herein. REO Accounts shall be Eligible
Accounts held at the Owner Trustee and shall be denominated "REO Account,
Wilmington Trust Company as Owner Trustee for the benefit of the FINOVA
Commercial Mortgage Loan Asset-Backed Certificates 1998-1" or in such other
manner as the Majority Certificateholders prescribe. Funds on deposit in an REO
Account shall be invested pursuant to Section 7.03. In connection therewith, the
Servicer shall deposit or cause to be deposited in the REO Account on a daily
basis within two Business Days after receipt all revenues received by it with
respect to any Foreclosure Property (except for any Net Liquidation Proceeds),
and the Owner Trustee at the direction of the Servicer shall withdraw therefrom
funds necessary for the proper maintenance, leasing, operation, management and
sale of any Foreclosure Property, including:

                           (i) all insurance premiums due and payable in respect
                  of such Foreclosure Property;

                           (ii) all taxes and assessments in respect of such
                  Foreclosure Property that could result or have resulted in the
                  imposition of a lien thereon;

                           (iii) all ground rental payments, if applicable, with
                  respect to such Foreclosure Property; and

                           (iv) all costs and expenses necessary to maintain,
                  lease, operate, manage and sell such Foreclosure Property,
                  including the management fee payable to the property manager
                  engaged by Servicer pursuant to Section 5.12(b).

                  To the extent that amounts on deposit in any REO Account are
insufficient for the purposes set forth above, the Servicer shall pay the amount
of such shortfall as a Servicing Expense. The Owner Trustee, at the direction of
the Servicer shall withdraw from each REO Account and deposit into the
Collection Account on a monthly basis (or, prior to a Collection Account Trigger
Event, into the Distribution Account as permitted by Sections 7.01(b)(1) and
7.01(c)(1)) prior to the related Remittance Date the income, net of expenses,
received or collected from each Foreclosure Property; provided, however, that
the Servicer may retain in each REO Account funds sufficient for the payment of
the items set forth in clauses (i) through (iv) above, including, without
limitation, the creation of reasonable reserves for repairs, replacements, and
necessary capital improvements and other related expenses.


                                      -87-
<PAGE>   95
                  (b) The Servicer may contract with any Person as a property
manager for the operation and management of any Foreclosure Property; provided,
however, that:

                           (i) the terms and conditions of any such contract
                  shall not be inconsistent herewith;

                           (ii) none of the provisions of this Section relating
                  to any such contract or to actions taken through any such
                  Person shall be deemed to relieve the Servicer of any of its
                  duties and obligations to the Trust with respect to the
                  operation and management of such Foreclosure Property; and

                           (iii) the Servicer shall be obligated with respect
                  thereto to the same extent as if it alone were performing all
                  duties and obligations in connection with the operation and
                  management of such Foreclosure Property.

                  Section 5.13 Release of Files.

                  Upon the payment in full of any Loan (including the repurchase
of any Loan or any liquidation of such Loan through foreclosure or otherwise),
or the receipt by the Servicer of a notification that payment in full will be
escrowed in a manner customary for such purposes, the Servicer shall deliver to
the Custodian a Request for Release and Receipt in accordance with the terms of
the Custodial Agreement. The Servicer shall either hold such Custodial File in
trust or deliver it to (i) an escrow agent or (ii) any employee, agent or
attorney of the Owner Trustee, in each case pending its release by the Servicer,
such escrow agent or such employee, agent or attorney of the Owner Trustee, as
the case may be. Upon any such payment in full, or the receipt of such
notification that such funds have been placed in escrow, the Servicer is
authorized to give, as attorney-in-fact for the Trust and the Owner Trustee and
the mortgagee under the Mortgage which secured the Promissory Note, an
instrument of satisfaction (or assignment of Mortgage without recourse)
regarding the Mortgaged Property relating to such Mortgage, which instrument of
satisfaction or assignment, as the case may be, shall be delivered to the Person
or Persons entitled thereto against receipt therefor of payment in full, it
being understood and agreed that no expense incurred in connection with such
instrument of satisfaction or assignment, as the case may be, shall be
chargeable to the Collection Account. In lieu of executing any such satisfaction
or assignment, as the case may be, the Servicer may prepare and submit to the
Owner Trustee, a satisfaction (or assignment without recourse, if requested by
the Person or Persons entitled thereto) in form for execution by the Owner
Trustee with all requisite information completed by the Servicer; in such event,
the Owner Trustee shall execute and acknowledge such satisfaction or assignment,
as the case may be, and deliver the same with the related Custodial File, as
aforesaid.

                  Section 5.14 Access to Information.

                  (a) The Servicer understands that, in connection with the
transfer of the Certificates, Certificateholders may request that the Servicer
make available to the 


                                      -88-
<PAGE>   96
Certificateholders and to prospective Certificateholders annual audited
financial statements of the Servicer for any or all of the most recently
completed five fiscal years for which such statements are available, which
request shall not be unreasonably denied.

                  (b) So long as any Certificates remain outstanding, each of
the Trust and any Certificateholder shall, at any time and from time to time
during regular business hours, upon reasonable notice to the Servicer and the
Servicer shall permit the Trust and any Certificateholder, or its agents or
representatives to:

                           (i) examine all books, records and documents
                  (including computer tapes and disks) in the possession or
                  under the control of the Servicer relating to the Loans, the
                  servicing of the Loans and the compliance of the terms of the
                  Basic Documents, as may be reasonably requested;

                           (ii) visit the offices and property of the Servicer
                  for the purpose of examining such materials described in
                  clause (b)(i) above;

                           (iii) consult with such professionals as may
                  reasonably be aware of the operations or condition of the
                  Servicer, including, without limitation, accountants and
                  auditors, and the Servicer shall cause such professionals to
                  cooperate with any examination conducted in accordance with
                  the terms of this Section 5.14 and to provide access to those
                  materials listed in subclause (b)(i) above in the possession
                  or under the control of such professionals.

                  The Servicer agrees that in the event that a Default shall
have occurred and be continuing, the Servicer shall reimburse the Initial Class
A Certificateholder for the reasonable costs and expenses incurred by the
Initial Class A Certificateholder in connection with the Initial Class A
Certificateholder's activities pursuant to this Section 5.14.

                  Section 5.15 Release of Loan Files.

                  If with respect to any Loan:

                  (i)      the outstanding Principal Balance of such Loan plus
                           all interest accrued thereon shall have been paid;

                  (ii)     such Loan has become a Defective Loan and has been
                           repurchased or a Qualified Substitute Loan has been
                           conveyed to the Trust pursuant to Section 4.05
                           hereof;

                  (iii)    such Loan or the related Foreclosure Property has
                           been sold in connection with the termination of the
                           Trust pursuant to Section 16.01 hereof;

                  (iv)     such Loan has been purchased by the Loan Originator
                           in accordance with the terms of Section 4.07;


                                      -89-
<PAGE>   97
                  (v)      the related Foreclosure Property has been sold
                           pursuant to Section 5.12 hereof; or

                  (vi)     such Loan has been included in a Disposition and
                           concurrently with such release the cash Disposition
                           Proceeds associated therewith will be deposited into
                           the Collection Account.

                  In each such case, the Servicer shall deliver a certificate to
the effect that the Servicer has complied with all of its obligations under this
Agreement with respect to such Loan and requesting that the Owner Trustee
release to the Servicer the related Custodial Loan File, and the Owner Trustee
shall, within five Business Days or such shorter period as may be required by
applicable law, release, or cause the Custodian to release (unless such
Custodial Loan File has previously been released), the related Custodial Loan
File to the Servicer and execute and deliver such instruments of transfer or
assignment prepared and delivered to it by the Servicer, in each case without
recourse, representation or warranty as shall be necessary to vest ownership of
such Loan in the Servicer or such other Person as may be specified in such
certificate, the forms of any such instrument to be appended to such
certificate.

                  Section 5.16 Servicing Compensation.

                  As compensation for its services hereunder, the Servicer shall
be entitled to retain from collections on the Loans or otherwise withdraw from
the Collection Account the Servicing Fee, out of which the Servicer shall pay
any servicing fees owed or payable to any Subservicer to the extent such amount
would be otherwise payable pursuant to Section 7.01(c)(3). Additional servicing
compensation in the form of assumption fees, modification fees, and other
administrative fees, and any prepayment premiums, insufficient funds charges,
amounts remitted pursuant to Section 7.01 hereof and late payment charges shall
be part of the Servicing Compensation payable to the Servicer hereunder and
shall be paid either by the Servicer's retaining such additional servicing
compensation prior to deposit into the Collection Account pursuant to Section
7.01(b) hereof or, if deposited into the Collection Account, as part of the
Servicing Compensation withdrawn therefrom pursuant to Section 7.01 hereof.

                  The Servicer shall be required to pay all expenses incurred by
it in connection with its servicing activities hereunder and shall not be
entitled to reimbursement therefor except as specifically provided for herein.
The Servicer also agrees to pay all reasonable costs and expenses incurred by
any successor Servicer or the Owner Trustee in replacing the Servicer in the
event of a default by the Servicer in the performance of its duties under the
terms and conditions of this Agreement.

                  Section 5.17 Statement as to Compliance and Financial
Statements.

                  The Servicer will deliver to the Initial Class A
Certificateholder:

                  (a) as soon as available and in any event within 45 days after
the end of each of the first three quarterly fiscal periods of each fiscal year
of the Servicer, Depositor, Loan Originator and Transfer Obligor the
consolidated balance sheets of such Persons and their 


                                      -90-
<PAGE>   98
consolidated subsidiaries as at the end of such period and the related unaudited
consolidated statements of income and retained earnings and of cash flows for
such Persons and their consolidated subsidiaries for such period and the portion
of the fiscal year through the end of such period, setting forth in each case in
comparative form the figures for the previous year, accompanied by a certificate
of a Responsible Officer of such Persons, which certificate shall state that
said consolidated financial statements fairly present the consolidated financial
condition and results of operations of such Persons and their subsidiaries in
accordance with GAAP, consistently applied, as at the end of, and for, such
period (subject to normal year-end audit adjustments);

                  (b) as soon as available and in any event within 90 days after
the end of each fiscal year of the Servicer, Depositor, Loan Originator and
Transfer Obligor the consolidated balance sheets of such Persons and their
consolidated subsidiaries as at the end of such fiscal year and the related
consolidated statements of income and retained earnings and of cash flows for
such Persons and their consolidated subsidiaries for such year, setting forth in
each case in comparative form the figures for the previous year, accompanied by
an opinion thereon of independent certified public accountants of recognized
national standing, which opinion shall not be qualified as to scope of audit or
going concern and shall state that said consolidated financial statements fairly
present the consolidated financial condition and results of operations of such
Persons and their consolidated subsidiaries as at the end of, and for, such
fiscal year in accordance with GAAP, and a certificate of such accountants
stating that, in making the examination necessary for their opinion, they
obtained no knowledge, except as specifically stated, of any Default or Event of
Default;

                  (c) from time to time such other information regarding the
financial condition, operations, or business of the Servicer, Depositor, Loan
Originator and Transfer Obligor as the Initial Class A Certificateholder may
reasonably request;

                  (d) the Servicer, Depositor, Loan Originator and Transfer
Obligor will furnish to the Initial Class A Certificateholder, at the time it
furnishes each set of financial statements pursuant to paragraphs (a) and (b)
above, a certificate of a Responsible Officer of such Persons to the effect
that, to the best of such Responsible Officer's knowledge, such Persons during
such fiscal period or year have observed or performed all of their covenants and
other agreements, and satisfied every condition, contained in the Basic
Documents to be observed, performed or satisfied by them, and that such
Responsible Officer has obtained no knowledge of any Default or Event of Default
except as specified in such certificate (and, if any Default or Event of Default
has occurred and is continuing, describing the same in reasonable detail and
describing the action such Persons have taken or proposes to take with respect
thereto); and

                  (e) within 10 days after service of process on any of the
following, notice of all legal or arbitrable proceedings affecting the Servicer
or any of its subsidiaries that questions or challenges the validity or
enforceability of any of the Basic Documents or as to which there is a
reasonable likelihood of adverse determination which would result in a material
adverse 


                                      -91-
<PAGE>   99
effect with respect to the value of the Loans or the interests of any of the
Certificateholders therein.

                  Section 5.18 Independent Public Accountants' Servicing Report.

                  On or before March 30 of each year, beginning with March 30,
1999, the Servicer and any Subservicer at their expense shall cause a nationally
recognized firm of Independent public accountants (who may also render other
services to the Servicer or a Subservicer, as applicable) to furnish to the
Owner Trustee, the Depositor and the Initial Class A Certificateholder a
statement to the effect that such firm has examined certain documents and
records relating to the servicing of the Loans under this Agreement or the
servicing of mortgage loans similar to the Loans under substantially similar
agreements for the preceding 12 months and that the assertion of management of
the Servicer or of management of a Subservicer, as applicable, that it
maintained an effective internal control system over the servicing of such
mortgage loans is fairly stated in all material respects, based upon established
criteria, which statement meets the standards applicable to accountant's reports
intended for general distribution; provided that each of the Servicer or the
Subservicer, as applicable, shall not be required to cause the delivery of such
statement until April 30 in any given year.

                  Section 5.19 Modifications, Waivers, Amendments and Consents.

                  (a) When any Borrower proposes any modification, waiver or
amendment of any term of any Loan or requests any consents related thereto, the
Servicer shall promptly give notice thereof to the Initial Class A
Certificateholder and shall take such action as the Servicer deems to be in the
best economic interest of the Certificateholders. All modifications, waivers or
amendments of any Loan or consents related thereto shall be in writing. The
Servicer shall promptly give notice of any such action to the Initial Class A
Certificateholder.

                  (b) The Servicer may, as a condition to granting any request
by a Borrower for any consent, modification, waiver or amendment require (to the
extent permitted by applicable law) that such Borrower pay to it, as Servicing
Compensation, a reasonable and customary fee consistent with Servicing Standard
in connection with such request, together with any related costs and expenses
incurred by the Servicer.

                  Section 5.20 Administration of Lockbox Accounts by the
Servicer.

                  Whenever the terms of the Loan provide for the maintenance of
a Lockbox Account (whether at all times or upon certain contingencies), the
Servicer shall take the following actions with respect to such Lockbox Account,
except to the extent otherwise required under applicable law or expressly
provided by the terms of such Loan:

                  (a) The Servicer shall establish and maintain such Lockbox
Account as an Eligible Account in the name of Midland Loan Services, Inc., or
such other entity as is acceptable to the Initial Class A Certificateholder,
promptly after receipt of the appropriate Loan Documents requiring such account
and thereafter shall maintain such account as an Eligible Account. In the event
that a Lockbox Account for the related Loan has been 


                                      -92-
<PAGE>   100
established prior to the Transfer Date for such Loan, the Servicer shall cause
all funds therein to be transferred to the Lockbox Account maintained by Midland
Loan Services, Inc., or such other entity as is acceptable to the Initial Class
A Certificateholder. The Servicer may transfer the Lockbox Accounts to a
different Eligible Account from time to time. The Servicer shall promptly notify
the Initial Class A Certificateholder of such transfer.

                  (b) (i) The Servicer shall monitor the Borrower's, as the case
may be, compliance with its obligation to cause all Persons making payments that
are required to be deposited into a Lockbox Account to mail or otherwise
transmit such payments directly to the Lockbox Account; to the extent that such
compliance can be reasonably ascertained by the Servicer, (ii) promptly notify
the Initial Class A Certificateholder if the Servicer has knowledge that the
Borrower is not in compliance with such obligation, and (iii) take such action
with respect to such noncompliance as the Servicer deems to be in the best
economic interest of the Certificateholders. The Servicer shall give notice
within one (1) Business Day of any such action to the Initial Class A
Certificateholder.

                  (c) The Servicer shall make transfers and payments from the
Lockbox Account in accordance with the terms of the related Loan Documents to
the extent that the Owner Trustee or its designee is permitted to make such
transfers and payments; provided, however, that the Servicer may not make any
discretionary transfer or payment from any Lockbox Account without prior written
direction of the Majority Certificateholders.

                  (d) The Servicer shall maintain accurate records of each
deposit to and withdrawal from each Lockbox Account, and upon request, shall
provide the Certificateholders with copies of any statements or information
provided by the related Borrower, with respect to such account or amounts
required to be deposited therein not later than the later of (A) the Remittance
Date following the calendar month to which such statements or information relate
and (B) promptly after the Servicer's receipt of such statements or information.

                  (e) Upon the occurrence of a default under the related Loans
as to which the Servicer has actual knowledge or has received notice, the
Servicer shall not release any funds in a Lockbox Account to the related
Borrower, or any Affiliate thereof, except as permitted by the Loan Documents,
and shall apply such funds in accordance with the Servicing Standard.

                  (f) The Servicer shall (i) monitor the Borrower's compliance
with its obligation to maintain a first priority perfected security interest in
favor of the Owner Trustee in each Lockbox Account; and the cash and Permitted
Investments therein, (ii) promptly notify the Initial Class A Certificateholder
if the Servicer has knowledge that the Borrower is not in compliance with such
obligation, (iii) take such action with respect to such noncompliance as the
Servicer deems to be in the best economic interest of the Certificateholders;
and (iv) take all actions as may be taken by the mortgagee under the Loan
Documents to maintain the perfection and priority of such security interest,
including the filing of Uniform Commercial Code continuation statements. The
Servicer shall give notice within one (1) Business Day of any such action to the
Initial Class A Certificateholder.

                  Section 5.21 Collections Lockbox Account.


                                      -93-
<PAGE>   101
                  In the event of the occurrence of a Collections Lockbox
Trigger Event:

                  (a) The Servicer, Depositor and Trust shall each promptly
execute and deliver the Collections Lockbox Agreement.

                  (b) The Servicer shall promptly cause Borrowers to make all
payments on the Loans irrespective of method of payment, directly to the
Collections Lockbox Bank pursuant to the Collections Lockbox Agreement. Amounts
received by a Collections Lockbox Bank in respect of the Loans may initially be
deposited into a demand deposit account maintained by the Collections Lockbox
Bank for the benefit of the Owner Trustee, as secured party on behalf of the
Certificateholders. The Collections Lockbox Agreement shall require the
Collections Lockbox Bank to deposit all payments on the Loans in the Collections
Lockbox Account no later than the Business Day after receipt, and to cause all
amounts credited to the Collections Lockbox Account on account of such payments
to be transferred to the Collection Account or Escrow Account, as the case may
be, in accordance with the written instructions of the Servicer, no later than
the second Business Day after receipt of such payments. The Servicer shall pay
all fees and costs incurred in connection with the entering into of the
Collections Lockbox Agreement, the establishment of the Collections Lockbox
Account and the administration of the provisions of the Collections Lockbox
Agreement.

                  Section 5.22 Year 2000 Compliance.

                  The Servicer will maintain all hardware, firmware or software,
or any system consisting of one or more thereof, including, without limitation,
any and all enhancements, upgrades, customizations, modifications, maintenance
and the like (collectively, the "System"), used by or for the benefit of the
Servicer in order for the Servicer to perform its obligations under the Basic
Documents to which it is a party in a manner that permits the Servicer to
record, store, process, provide and where appropriate, insert, true and accurate
dates and calculations for dates and spans, including and following January 1,
2000 (herein referred to as "Year 2000 Compliant"). In addition, "Year 2000
Compliant" shall mean that the System will support the ability for its continued
normal usage such that neither the performance nor the correct functioning of
the System will be affected by the approach, and passing into, the year 2000.



                                   ARTICLE VI

                     CERTIFICATES AND TRANSFER OF INTERESTS

                  Section 6.01 Initial Ownership.

                  Upon the formation of the Trust by the contribution of the
Depositor pursuant to Section 2.05, the Initial Class A Certificateholder shall
be the sole Class A Certificateholder and the Depositor shall be the sole Class
B Certificateholder of the Trust.

                  Section 6.02 The Certificates.


                                      -94-
<PAGE>   102


         The Certificates shall be executed on behalf of the Trust by manual or
facsimile signature of a Trust Officer of the Owner Trustee. Certificates
bearing the manual or facsimile signatures of individuals who were, at the time
when such signatures shall have been affixed, authorized to sign on behalf of
the Trust, shall be valid and binding obligations of the Trust, notwithstanding
that such individuals or any of them shall have ceased to be so authorized prior
to the authentication and delivery of such Certificates or did not hold such
offices at the date of authentication and delivery of such Certificates. The
Class B Certificates shall not be issued with a principal amount and shall not
bear interest.

         A transferee of a Certificate shall become an Certificateholder, and
shall be entitled to the rights and subject to the obligations of an
Certificateholder hereunder and under this Agreement, upon such transferee's
acceptance of a Certificate duly registered in such transferee's name pursuant
to Section 6.04.

         Section 6.03 Execution, Authentication and Delivery of Certificates.

         On the first Closing Date, the Owner Trustee shall cause the Class A
Certificates and Class B Certificates, each representing 100% of the Percentage
Interests of such Class to be executed on behalf of the Trust, authenticated and
delivered to or upon the written order of the Depositor, signed by its chairman
of the board, its president or any vice president, without further corporate
action by the Depositor, in authorized denominations. No Certificate shall
entitle its holder to any benefit under this Agreement, or shall be valid for
any purpose, unless there shall appear on such Certificate a certificate of
authentication substantially in the form set forth in Exhibit E, executed by the
Owner Trustee or the Administrator, as the Owner Trustee's authenticating agent,
by manual or facsimile signature; such authentication shall constitute
conclusive evidence that such Certificate shall have been duly authenticated and
delivered hereunder. All Class A Certificates shall be dated the date of their
authentication.

         Section 6.04 Additional Class A Certificate Principal Balance.

         In the event of an advance of Additional Class A Certificate Principal
Balance by the Class A Certificateholders as provided in Section 3.01(c), each
Class A Certificateholder shall, and is hereby authorized to, record on the
schedule attached to its Class A Certificate the date and amount of any
Additional Class A Certificate Principal Balance advanced by it and each
repayment thereof; provided that failure to make any such recordation on such
schedule or any error in such schedule shall not adversely affect any Class A
Certificateholder's rights with respect to its Additional Class A Certificate
Principal Balance and its right to receive interest payments in respect of the
Additional Class A Certificate Principal Balance held by such Class A
Certificateholder.

         Absent manifest error, the Class A Certificate Principal Balance of
each Class A Certificate as set forth in the notations made by the related Class
A Certificateholder on such Class A Certificate shall be binding upon the Owner
Trustee and the Trust; provided that failure by a Class A Certificateholder to
make such recordation on its Class A Certificate or any error in such notation
shall not adversely affect any Class A Certificateholder's rights with 


                                      -95-
<PAGE>   103
respect to its Class A Certificate Principal Balance and its right to receive
principal and interest payments in respect thereof.

         Section 6.05 Mutilated, Destroyed, Lost or Stolen Certificates.

         If (a) any mutilated Certificate shall be surrendered to the
Certificate Registrar, or if the Certificate Registrar shall receive evidence to
its satisfaction of the destruction, loss or theft of any Certificate and (b)
there shall be delivered to the Certificate Registrar and the Owner Trustee such
security or indemnity as may be required by them to save each of them harmless,
then in the absence of notice that such Certificate shall have been acquired by
a bona fide purchaser, the Owner Trustee on behalf of the Trust shall execute,
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Certificate, a new Certificate of like tenor and
denomination. In connection with the issuance of any new Certificate under this
Section, the Owner Trustee or the Certificate Registrar may require the payment
of a sum sufficient to cover any tax or other governmental charge that may be
imposed in connection therewith. Any duplicate Certificate issued pursuant to
this Section shall constitute conclusive evidence of ownership in the Trust, as
if originally issued, whether or not the lost, stolen or destroyed Certificate
shall be found at any time.

         Section 6.06 Persons Deemed Certificateholders.

         Prior to due presentation of a Certificate for registration of
transfer, the Owner Trustee or the Certificate Registrar may treat the Person in
whose name any Certificate shall be registered in the Certificate Register as
the owner of such Certificate for the purpose of receiving distributions
pursuant to Section 7.01 of this Agreement and for all other purposes
whatsoever, and neither the Owner Trustee nor the Certificate Registrar shall be
bound by any notice to the contrary.

         Section 6.07 Access to List of Certificateholders' Names and Addresses.

         The Owner Trustee shall furnish or cause to be furnished to the Initial
Class A Certificateholder, the Paying Agent, the Servicer and the Depositor,
within 5 days after receipt by the Owner Trustee of a request therefor from any
such Person in writing, a list, in such form as the Owner Trustee, the Paying
Agent, the Servicer or the Depositor may reasonably require, of the names and
addresses of the Certificateholders as of the most recent Record Date. Each
Certificateholder, by receiving and holding a Certificate, shall be deemed to
have agreed not to hold any of the Depositor, the Servicer, the Certificate
Registrar or the Owner Trustee accountable by reason of the disclosure of its
name and address, regardless of the source from which such information was
derived.

         Section 6.08 Maintenance of Office or Agency.

         The Owner Trustee shall maintain an office or offices or agency or
agencies where Certificates may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Owner Trustee in respect
of the Certificates and the Basic Documents may be served. The Owner Trustee
initially designates its Corporate Trust Office 


                                      -96-
<PAGE>   104
as its principal corporate trust office for such purposes. The Owner Trustee
shall give prompt written notice to the Servicer and to the Certificateholders
of any change in the location of the Certificate Register or any such office or
agency.

         Section 6.09 Restrictions on Transfer of Certificates.

         (a) The Certificates have not been and will not be registered under the
Securities Act and will not be listed on any exchange. No transfer of a
Certificate shall be made unless such transfer is made pursuant to an effective
registration statement under the Securities Act and all applicable state
securities laws or is exempt from the registration requirements under the
Securities Act and such state securities laws. In order to assure compliance
with the Securities Act and state securities laws, any transfer of a Certificate
shall be made (A) in reliance on Rule 144A under the Securities Act, in which
case, the Owner Trustee shall require that the transferor deliver a
certification substantially in the form of Exhibit H-1 hereto, or (B) to an
institutional "accredited investor" within the meaning of Rule 501(a)(1), (2),
(3) or (7) of Regulation D under the Securities Act that is not a "qualified
institutional buyer," in which case the Owner Trustee shall require that the
transferee deliver a certification substantially in the form of Exhibit H-2
hereto. In the event of a transfer of a Certificate, other than pursuant to an
effective registration statement under the Securities Act and all applicable
state securities laws, the Owner Trustee shall require that the transferee
deliver a certification substantially in the form of Exhibit H-3 hereto.

         (b) Each prospective Certificateholder, other than the Depositor or its
Affiliates, shall either:

             (i) represent and warrant, in writing, to the Owner Trustee and the
         Certificate Registrar and any of their respective successors that the
         prospective Certificateholder is not (A) an "employee benefit plan"
         within the meaning of Section 3(3) of ERISA, or (B) a "plan" within the
         meaning of Section 4975(e)(1) of the Code or (C) an entity, including
         an insurance company separate account or general account, whose
         underlying assets include plan assets by reason of a plan's investment
         in the entity (each, a "Benefit Plan Investor") and is not directly or
         indirectly purchasing such Certificate on behalf of, as investment
         manager of, as named fiduciary of, as trustee of, or with the assets of
         a Benefit Plan Investor; or

             (ii) furnish to the Owner Trustee and the Certificate Registrar and
         any of their respective successors an opinion of counsel acceptable to
         such persons that (A) the proposed transfer of the Certificate to such
         Prospective Certificateholder will not cause any assets of the Trust to
         be deemed "plan assets" within the meaning of United States Department
         of Labor Regulation Section 2510.3-101, or (B) the proposed transfer of
         the Certificate will not give rise to a transaction described in
         Section 406 of ERISA or Section 4975(c)(1) of the Code for which a
         statutory or administrative exemption is unavailable.

                                      -97-
<PAGE>   105
         (c) By its acceptance of a Class B Certificate, each prospective
Certificateholder acknowledges that it is not a Non-Permitted Foreign Holder and
agrees to execute a Rule 144A Transfer Certificate in the form of Exhibit H-1
hereto and acknowledges that no legal or beneficial interest in all or any
portion of the Class B Certificate may be transferred directly or indirectly to
an individual, corporation, partnership or other person who is a Non-U.S.
Person, unless such person holds the Class B Certificate in connection with the
conduct of a trade or business within the United States, as evidenced by a duly
completed and submitted Form 4224 or successor form, updated at the time or
times and in the manner specified by the Code (any such Non-U.S. Person who does
not meet such exception being referred to herein as a "Non-permitted Foreign
Holder"), and any such purported transfer shall be void and have no effect.

         (d) The Owner Trustee shall not execute, and shall not countersign and
deliver, a Class B Certificate in connection with any transfer thereof unless
the transferor shall have provided to the Owner Trustee a certificate, signed by
the transferee, which certificate shall contain the consent of the transferee to
any amendments of this Agreement as may be required to effectuate further the
foregoing restrictions on transfer of the Class B Certificates, and an agreement
by the transferee that it will not transfer a Class B Certificate without
providing to the Owner Trustee a substantially identical certificate, signed by
the prospective Certificateholder to whom the Class B Certificate is to be
transferred.

         (e) Prior to such execution, authentication and delivery of a Class B
Certificate, the Owner Trustee shall have received an Opinion of Counsel to the
effect that the proposed transfer will not (i) cause the Trust to be
characterized as an association (or a publicly traded partnership) taxable as a
corporation, or (ii) alter the tax characterization of the Class A Certificates
for federal income tax purposes.

         (f) No transfer of any Certificate shall be permitted if such transfer
shall, after giving effect to such transfer, cause the number of direct or
indirect holders of an interest in Certificates ("Targeted Holders") to exceed a
number equal to ninety-five. Further, there shall not at any time be more than
ninety-five Targeted Holders of Certificates. Finally, any transfer of a
Certificate to the Servicer, (including participants or assignees thereof) shall
be a void transfer.

         (g) The Certificates shall bear an additional legend referring to the
foregoing restrictions contained in paragraphs (c) through (f) above.

         Section 6.10. Registration; Registration of Transfer and Exchange.

         The Trust shall cause to be kept a register (the "Certificate
Register") in which, subject to such reasonable regulations as it may prescribe,
the Trust shall provide for the registration of Certificates and the
registration of transfers of Certificates. The Owner Trustee initially shall be
the "Certificate Registrar" for the purpose of registering Certificates and
transfers of Certificates as herein provided. Upon any resignation of any
Certificate Registrar, the Trust shall promptly appoint a successor or, if it
elects not to make such an appointment, assume the duties of Certificate
Registrar.

                                      -98-
<PAGE>   106
         If a Person other than the Owner Trustee is appointed by the Trust as
Certificate Registrar, the Trust will give the Owner Trustee prompt written
notice of the appointment of such Certificate Registrar and of the location, and
any change in the location, of the Certificate Register, and the Owner Trustee
shall have the right to inspect the Certificate Register at all reasonable times
and to obtain copies thereof, and the Owner Trustee shall have the right to rely
upon a certificate executed on behalf of the Certificate Registrar by an
Responsible Officer thereof as to the names and addresses of the
Certificateholders and the principal amounts and number of the Certificates.

         Upon surrender for registration of transfer of any Certificate at the
office or agency of the Trust to be maintained as provided in Section 6.08
hereof, the Trust shall execute, and the Owner Trustee shall authenticate and
the Certificateholder shall obtain from the Owner Trustee, in the name of the
designated transferee or transferees, one or more new Certificates in any
authorized denominations, of a like aggregate Class A Certificate Principal
Balance or Percentage Interest.

         At the option of the Holder, Certificates may be exchanged for other
Certificates in any authorized denominations, of a like aggregate principal
amount, upon surrender of the Certificates to be exchanged at such office or
agency. Whenever any Certificates are so surrendered for exchange, the Trust
shall execute, and the Owner Trustee shall authenticate and the
Certificateholder shall obtain from the Owner Trustee, the Certificates which
the Certificateholder making the exchange is entitled to receive.

         All Certificates issued upon any registration of transfer or exchange
of Certificates shall be the valid obligations of the Trust, evidencing the same
debt, and entitled to the same benefits under this Agreement, as the
Certificates surrendered upon such registration of transfer or exchange.

         Every Certificate presented or surrendered for registration of transfer
or exchange shall be duly endorsed by, or be accompanied by a written instrument
of transfer in the form attached to the form of Certificate attached as Exhibit
E hereto duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing, with such signature guaranteed by an "eligible guarantor
institution" meeting the requirements of the Securities Transfer Agents'
Medallion Program ("STAMP").

         No service charge shall be made to a Certificateholder for any
registration of transfer or exchange of Certificates, but the Trust may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of
Certificates.

         The preceding provisions of this Section 6.10 notwithstanding, the
Trust shall not be required to make, and the Certificate Registrar need not
register, transfers or exchanges of Certificates selected for redemption or of
any Certificate for a period of 15 days preceding the due date for any
distribution with respect to such Certificate.

         Section 6.11. Distribution of Principal and/or Interest; Defaulted
Interest.

                                      -99-
<PAGE>   107
         (a) The Certificates shall accrue interest at the Class A Certificate
Interest Rate, and such interest shall be distributable on each Distribution
Date, subject to Section 4.09 hereof. The Class B Certificates shall have no
principal balance and no interest rate and shall entitle the Holder thereof only
to distributions when and to the extent provided in this Agreement. Any
installment of interest, principal, if any, or other distribution distributable
on any Certificate that is punctually distributed or duly provided for by the
Trust on the applicable Distribution Date shall be distributed to the Person in
the name of which such Certificate is registered on the Record Date by wire
transfer if written instructions therefor are provided to the Owner Trustee no
later than five Business Days prior to such Distribution Date, and otherwise by
check mailed first-class postage prepaid to such Person's address as it appears
on the Certificate Register on such Record Date, except that with respect to
Certificates registered on the Record Date in the name of the nominee of the
Initial Class A Certificateholder or Depositor, distribution will be made by
wire transfer in immediately available funds to the account designated by such
nominee and except for the final installment of principal distributable with
respect to such Certificate on a Distribution Date or on the Expected Final
Distribution Date (and except for the Termination Price for any Certificate
called for redemption pursuant to Section 16.01) hereof, which shall be
distributable as provided in Section 6.11(b) below. The funds represented by any
such checks returned undelivered shall be held in accordance with Section
4.09(c) hereof.

         (b) The principal of each Class A Certificate shall be distributable in
installments on each Distribution Date as provided in the form of the
Certificates set forth in Exhibit E hereto. Notwithstanding the foregoing, the
entire unpaid principal amount of the Certificates shall be due and
distributable, if not previously distributed, on the earlier of (i) the Expected
Final Distribution Date, (ii) the Redemption Date or (iii) the date on which an
Event of Default shall have occurred and be continuing, if the Owner Trustee or
the Majority Certificateholders shall have declared the Certificates to be
immediately distributable in the manner provided in Section 15.06 hereof.

         All principal payments on the Certificates shall be made pro rata to
the Certificateholders based on their respective Percentage Interests. The Owner
Trustee shall notify the Person in the name of which a Certificate is registered
at the close of business on the Record Date preceding the Distribution Date on
which the Trust expects that the final installment of principal of and interest
on such Certificate will be distributed. Such notice shall be mailed or
transmitted by facsimile prior to such final Distribution Date and shall specify
that such final installment will be distributable only upon presentation and
surrender of such Certificate and shall specify the place where such Certificate
may be presented and surrendered for distribution of such installment. Notices
in connection with redemptions of Certificates shall be provided to
Certificateholders as set forth in Section 16.02 hereof.

         Section 6.12. Reserved.

         Section 6.13. 144A Information.

                                     -100-
<PAGE>   108
         (a) The Servicer shall provide to the Owner Trustee, upon its request,
information regarding the Certificates and the Loans and such other information
as the Owner Trustee shall be required to deliver to any Certificateholder and
any prospective transferee designated by a Certificateholder to satisfy a
condition of eligibility set forth under Rule 144A(d)(4) under the Securities
Act of 1933, as amended (the "Securities Act").

         (b) The Owner Trustee, to the extent it has any such information in its
possession, shall provide to any Certificateholder and any prospective
transferee designated by any such Certificateholder information regarding the
Certificates and the Loans and such other information as shall be necessary to
satisfy the condition to eligibility set forth in Rule 144A(d)(4) under the
Securities Act for transfer of any such Certificate without registration thereof
under the Securities Act pursuant to the registration exemption provided by Rule
144A under the Securities Act.


                                   ARTICLE VII

                         ESTABLISHMENT OF TRUST ACCOUNTS

         Section 7.01 Collection Account and Distribution Account.

         (a) (1) Establishment of Collection Account. The Servicer, for the
benefit of the Certificateholders, shall cause to be established and maintained
one or more Collection Accounts (collectively, the "Collection Account"), which
shall be separate Eligible Accounts entitled "Collection Account, Wilmington
Trust Company, as Owner Trustee, for the benefit of the FINOVA Commercial
Mortgage Loan Asset-Backed Certificates, Series 1998-1". The Collection Account
may be maintained with the Owner Trustee or any other depository institution
which satisfies the requirements set forth in the definition of Eligible
Account. The creation of any Collection Account other than one maintained with
the Owner Trustee shall be evidenced by a letter agreement between the Servicer
and the depository institution acceptable to the Majority Certificateholders. A
copy of such letter agreement shall be furnished to the Majority
Certificateholders and the Owner Trustee and, upon request of any
Certificateholder, to such Certificateholder. Funds in the Collection Account
shall not be invested.

         The Collection Account shall be established, as of the date hereof, as
an Eligible Account pursuant to the definition thereof. The Collection Account
may, upon written notice to the Trust and the Owner Trustee, be transferred by
the Servicer to a different depository institution so long as such transfer is
to an Eligible Account acceptable to the Majority Certificateholders.

         (2) Establishment of Distribution Account. No later than the date
hereof, the Servicer, for the benefit of the Certificateholders, shall cause to
be established and maintained with Wilmington Trust Company one or more
Distribution Accounts (collectively, the "Distribution Account"), which shall be
separate Eligible Accounts, entitled "Distribution Account, Wilmington Trust
Company, as Owner Trustee, for the benefit of the FINOVA 


                                     -101-
<PAGE>   109
Commercial Mortgage Loan Asset-Backed Certificates, Series 1998-1." Funds in the
Distribution Account shall be invested in accordance with Section 7.03 hereof.

         (b) (1) Deposits to Collection Account. Prior to the occurrence of a
Collection Account Trigger Event, the Servicer shall retain all collections
specified in clauses (i) through (iv) below and shall remit such amounts to the
Distribution Account on the succeeding Remittance Date. The Servicer shall
deposit or cause to be deposited (without duplication) into the Collection
Account:

         (i)      on or after the occurrence of a Collection Account Trigger
                  Event, all payments on or in respect of each Loan collected
                  after the related Transfer Cutoff Date net of any Servicing
                  Compensation retained therefrom) within two (2) Business Days
                  after receipt thereof;

         (ii)     on or after the occurrence of a Collection Account Trigger
                  Event, all Net Liquidation Proceeds pursuant to Section 5.11
                  hereof in accordance with the last sentence of this Section
                  7.01(b) and all amounts required to be deposited pursuant to
                  Section 5.12(a) hereof concurrently with receipt thereof;

         (iii)    on or after the occurrence of a Collection Account Trigger
                  Event, all Insurance Proceeds not required to be applied to
                  restoration or repair of Mortgaged Property pursuant to
                  Section 5.05 in accordance with the last sentence of this
                  Section 7.01(b);

         (iv)     on or after the occurrence of a Collection Account Trigger
                  Event, all Released Mortgaged Property Proceeds in accordance
                  with the last sentence of this Section 7.01(b);

         (v)      any amounts payable in connection with the repurchase of any
                  Loan and the amount of any Substitution Adjustment pursuant to
                  Sections 3.05 and 4.05 hereof in accordance with the last
                  sentence of this Section 7.01(b);

         (vi)     any Purchase Price payable in connection with a Servicer Call
                  pursuant to Section 4.07 hereof concurrently with payment
                  thereof;

         (vii)    the deposit of the Termination Price under Section 16.02
                  hereof concurrently with payment thereof;

         (viii)   any Periodic Advances pursuant to Section 5.09 concurrently
                  with payment thereof;

         (ix)     any cash Disposition Proceeds pursuant to Section 4.06 or
                  Class A Certificate Redemption Amount, pursuant to Section
                  16.04(b) in accordance with the last sentence of this Section
                  7.01(b);

                                     -102-
<PAGE>   110
         (x)      any payments received under Hedging Instruments or the return
                  of amounts by the Hedging Counterparty pledged pursuant to
                  prior Hedge Funding Requirements in accordance with the last
                  sentence of this Section 7.01(b); and

         (xi)     any Purchase Price payable in connection with a Loan
                  Originator Put remitted by the Loan Originator pursuant to
                  Section 4.07 hereof in accordance with the last sentence of
                  this Section 7.01(b).

         The Servicer agrees that it will cause the Loan Originator, Borrower or
other appropriate Person paying such amounts, as the case may be, to remit
directly to the Owner Trustee for deposit into the Collection Account all
amounts referenced in clauses (ii) (but only on or after the occurrence of a
Collection Account Trigger Event), (iii) (but only on or after the occurrence of
a Collection Account Trigger Event), (iv) (but only on or after the occurrence
of a Collection Account Trigger Event), (v), (ix), (x) and (xi) to the extent
such amounts are in excess of a Monthly Payment on the related Loan. To the
extent the Servicer receives any such amounts, it will deposit them into the
Collection Account on the same Business Day as receipt thereof.

         (c) Withdrawals From Collection Account; Deposits to Distribution
Account.

         (1) Withdrawals From Collection Account -- Reimbursement Items.
      Periodically, the Owner Trustee, at the direction of the Servicer, shall
      make the following withdrawals from the Collection Account (to the extent
      the Servicer has not otherwise reimbursed itself from collections
      retained) prior to any other withdrawals, in no particular order of
      priority:

         (i)      to withdraw any amount not required to be deposited in the
                  Collection Account or deposited therein in error;

         (ii)     to withdraw the Servicing Advance Reimbursement Amount;

         (iii)    to clear and terminate the Collection Account in connection
                  with the termination of this Agreement; and

         (iv)     to reimburse the Servicer for any Nonrecoverable Periodic
                  Advances (but only to the extent made from the Servicer's own
                  funds).

         (2)      Owner Trustee Deposits to Distribution Account - Distribution
                  Dates.


                  (a) On the Business Day prior to each Distribution Date, the
         Owner Trustee shall deposit into the Distribution Account such amounts
         as are required from the Transfer Obligation Account pursuant to
         Section 7.05(e), 7.05(f) and 7.05(g).

                                     -103-
<PAGE>   111
                  (b) After making all withdrawals specified in Section
         7.01(c)(1) above, on each Business Day, the Owner Trustee, (based on
         information provided by the Servicer for such Distribution Date) shall
         withdraw from the Collection Account not later than 12:00 Noon, New
         York City time and deposit into the Distribution Account all remaining
         funds on deposit therein. On each Remittance Date prior to the
         occurrence of a Collection Account Trigger Event, the Servicer shall
         deposit into the Distribution Account all collections specified in
         Section 7.01(b)(1) clauses (i) through (iv) that it shall have retained
         and shall remit such amounts to the Owner Trustee for deposit into the
         Distribution Account not later than 12:00 Noon, New York City time.

              (3) Withdrawals From Distribution Account -- Distribution Dates. 
         On each Distribution Date, to the extent funds are available in the
         Distribution Account, the Owner Trustee (based on the information
         provided by the Servicer contained in the Servicer's Remittance Report
         for such Distribution Date) shall make withdrawals therefrom by 1:00
         p.m. (New York City time), for application in the following order of
         priority:

                  (i)      to distribute on such Distribution Date the following
                           amounts in the following order: (a) to the Owner
                           Trustee, an amount equal to the Owner Trustee Fee and
                           all unpaid Owner Trustee Fees from prior Distribution
                           Dates, (b) to the Custodian, an amount equal to the
                           Custodian Fee, if any, and all unpaid Custodian Fees
                           from prior Distribution Dates, (c) to the Servicer,
                           (x) only if the Servicer is not FINOVA Capital
                           Corporation or any Affiliate thereof, an amount equal
                           to the Servicing Compensation and all unpaid
                           Servicing Compensation from prior Distribution Dates
                           and (y) all Nonrecoverable Servicing Advances not
                           previously reimbursed and (d) to the Servicer, in
                           trust for the Owner Trustee, an amount equal to the
                           Owner Trustee Fee and all unpaid Owner Trustee Fees
                           from prior Distribution Dates.

                  (ii)     to distribute on such Distribution Date, the Hedge
                           Funding Requirement to the appropriate Hedging
                           Counterparties; provided, that only cash on or in
                           respect of fixed rate Loans (including cash
                           Disposition Proceeds received therefrom) shall be
                           distributed for such purpose and; provided, further,
                           that amounts distributed pursuant to clause (i) above
                           to the extent not attributable to a specific Loan
                           shall be deemed paid from fixed rate or hybrid Loans,
                           pro rata based on their aggregate Principal Balances
                           relative to the Pool Principal Balance on such
                           Distribution Date;

                  (iii)    to the holders of the Class A Certificates pro rata,
                           the sum of the Interest Distribution Amount for such
                           Distribution Date and the Interest Carry-Forward
                           Amount for the preceding Distribution Date;

                                     -104-
<PAGE>   112
                  (iv)     to the holders of the Class A Certificates pro rata,
                           the sum of the Overcollateralization Shortfall for
                           such Distribution Date and the Principal
                           Carry-Forward Amount for the preceding Distribution
                           Date; provided, however, that if (a) a Rapid
                           Amortization Trigger shall have occurred and not been
                           Deemed Cured or (b) an Event of Default or Default
                           shall have occurred, the holders of the Class A
                           Certificates shall receive, in respect of principal,
                           all remaining amounts on deposit in the Distribution
                           Account.

                  (v)      to the appropriate Person, amounts in respect of
                           Trust/Depositor Indemnities and Due Diligence Fees
                           until such amounts are paid in full;

                  (vi)     to the Transfer Obligation Account, all remaining
                           amounts until the balance therein equals the Transfer
                           Obligation Target Amount;

                  (vii)    to the Servicer if the Servicer is the Loan
                           Originator or an Affiliate thereof, an amount equal
                           to the unpaid Servicing Compensation for the related
                           Distribution Date and all unpaid Servicing
                           Compensation from prior Distribution Dates; and

                  (viii)   to the holders of the Class B Certificates of record
                           on the next preceding Record Date, pro rata, all
                           amounts remaining therein.

                  (4) To the extent that there is deposited in the Collection
         Account any amounts referenced in Section 7.01(b), (ii), (iii), (iv),
         (v), (ix), (x) or (xi), the Majority Certificateholders and the Trust
         may agree, upon written notice to the Owner Trustee, to additional
         Distribution Dates. The Trust and the Majority Certificateholders shall
         give the Owner Trustee at least one (1) Business Day's written notice
         prior to such additional Distribution Date and such notice shall
         specify each amount in Section 7.01(c) to be withdrawn from the
         Collection Account and Distribution Account on such day.

                  Section 7.02 Distributions to Certificateholders.

                  All distributions made on the Certificates on each
Distribution Date will be made on a pro rata basis among the Certificateholders
of record of the Certificates on the next preceding Record Date based on the
Percentage Interest represented by their respective Certificates, without
preference or priority of any kind.

                  Section 7.03 Trust Accounts; Trust Account Property.

                  (a) Control of Trust Accounts. The Depositor has conveyed all
of its right, title and interest in each of the Trust Accounts established
hereunder to the Owner Trustee for the benefit of the Certificateholders.
Amounts distributed from each Trust Account in accordance with the terms of this
Agreement shall be released from the Owner Trust Estate upon such distribution
thereunder or hereunder. The Owner Trustee shall possess all right,


                                     -105-
<PAGE>   113
title and interest in and to all funds on deposit from time to time in the Trust
Accounts and in all proceeds thereof (including all income thereon) and all such
funds, investments, proceeds and income shall be part of the Trust Account
Property and the Owner Trust Estate. If, at any time, any Trust Account ceases
to be an Eligible Account, the Owner Trustee (or the Servicer on its behalf)
shall, within ten Business Days (or such longer period, not to exceed 30
calendar days, with the prior written consent of the Majority
Certificateholders) (i) establish a new Trust Account as an Eligible Account,
(ii) terminate the ineligible Trust Account, and (iii) transfer any cash and
investments from such ineligible Trust Account to such new Trust Account.

         With respect to the Trust Accounts, the Owner Trustee agrees, by its
acceptance hereof, that each such Trust Account shall be subject to the sole and
exclusive dominion, custody and control of the Owner Trustee for the benefit of
the Certificateholders, and, except as may be consented to in writing by the
Majority Certificateholders, the Owner Trustee shall have sole signature and
withdrawal authority with respect thereto.

         The Servicer shall have the power, revocable by the Majority
Certificateholder or by the Owner Trustee, to instruct the Owner Trustee to make
withdrawals and payments from the Trust Accounts for the purpose of permitting
the Servicer to carry out its duties hereunder.

         (b) (1) Investment of Funds. Funds held in the Distribution Account,
         the Transfer Obligation Account and the REO Account may be invested (to
         the extent practicable and consistent with any requirements of the
         Code) in Permitted Investments, as directed by the Servicer prior to
         the occurrence and continuation of an Event of Default, and by the
         Majority Certificateholders thereafter, in writing or by telephone or
         facsimile transmission confirmed in writing by the Servicer or Majority
         Certificateholders, as applicable. In any case, funds in the
         Distribution Account and the Transfer Obligation Account must be
         available for withdrawal without penalty, and any Permitted Investments
         must mature or otherwise be available for withdrawal one Business Day
         prior to the next Distribution Date and shall not be sold or disposed
         of prior to its maturity subject to subsection (b)(2) of this Section.
         All interest and any other investment earnings on amounts or
         investments held in the Distribution Account and the Transfer
         Obligation Account shall be deposited into the Distribution Account or
         the Transfer Obligation Account, as the case may be, immediately upon
         receipt by the Owner Trustee. All Permitted Investments in which funds
         in the Distribution Account or the Transfer Obligation Account are
         invested must be held by or registered in the name of "Wilmington Trust
         Company, as Owner Trustee, in trust for the FINOVA Commercial Mortgage
         Loan Asset-Backed Certificates, Series 1998-1."

               (2) Insufficiency and Losses in Trust Accounts. If any amounts
         are needed for disbursement from the Distribution Account or the
         Transfer Obligation Account held by or on behalf of the Owner Trustee
         and sufficient uninvested funds are not available to make such
         disbursement, the Owner Trustee (or the Servicer, as applicable) shall
         cause to be sold or otherwise converted to cash a sufficient amount of
         the 


                                     -106-
<PAGE>   114
         investments in the Distribution Account or the Transfer Obligation
         Account, as the case may be. The Owner Trustee shall not be liable for
         any investment loss or other charge resulting therefrom, unless such
         loss or charge is caused by the failure of the Owner Trustee to perform
         in accordance with written directions provided pursuant to this Section
         7.03.

                  If any losses are realized in connection with any investment
in the Distribution Account or the Transfer Obligation Account pursuant to this
Agreement, then the Servicer shall deposit the amount of such losses (to the
extent not offset by income from other investments in the Distribution Account
or the Transfer Obligation Account, as the case may be) into the Distribution
Account or the Transfer Obligation Account, as the case may be, immediately upon
the realization of such loss. All interest and any other investment earnings on
amounts held in the Distribution Account and the Transfer Obligation Account
shall be taxed to the Trust and for federal and state income tax purposes the
Trust shall be deemed to be the owner of the Distribution Account and/or the
Transfer Obligation Account, as the case may be.

                  (c) Subject to Section 12.01 hereof, the Owner Trustee shall
not in any way be held liable by reason of any insufficiency in any Trust
Account held by the Owner Trustee resulting from any investment loss on any
Permitted Investment included therein (except to the extent that the Owner
Trustee is an obligor and has defaulted thereon).

                  (d) With respect to the Trust Account Property, the Owner
Trustee acknowledges and agrees that:

                  (1) any Trust Account Property that is held in deposit
         accounts shall be held solely in the Eligible Accounts, subject to the
         last sentence of subsection (a) of this Section 7.03; and each such
         Eligible Account shall be subject to the sole and exclusive dominion,
         custody and control of the Owner Trustee; and, without limitation on
         the foregoing, the Owner Trustee shall have sole signature authority
         with respect thereto;

                  (2) any Trust Account Property that constitutes Physical
         Property shall be delivered to the Owner Trustee in accordance with
         paragraph (a) of the definition of "Delivery" in Section 1.01 hereof
         and shall be held, pending maturity or disposition, solely by the Owner
         Trustee or a financial intermediary (as such term is defined in section
         8-102(a)(14) of the UCC) acting solely for the Owner Trustee;

                  (3) any Trust Account Property that is a book-entry security
         held through the Federal Reserve System pursuant to federal book-entry
         regulations shall be delivered in accordance with paragraph (b) of the
         definition of "Delivery" in Section 1.01 hereof and shall be maintained
         by the Owner Trustee, pending maturity or disposition, through
         continued book-entry registration of such Trust Account Property as
         described in such paragraph; and

                  (4) any Trust Account Property that is an "uncertificated
         security" under Article 8 of the UCC and that is not governed by clause
         (3) above shall be delivered to 


                                     -107-
<PAGE>   115
         the Owner Trustee in accordance with paragraph (c) of the definition of
         "Delivery" in Section 1.01 hereof and shall be maintained by the Owner
         Trustee, pending maturity or disposition, through continued
         registration of the Owner Trustee's (or its nominee's) ownership of
         such security.

                  (e) The Servicer shall have the power, revocable by the
Majority Certificateholders, to instruct the Owner Trustee to make withdrawals
and payments from the Trust Accounts for the purpose of permitting the Servicer
or the Trust to carry out their respective duties under the Basic Documents or
permitting the Owner Trustee to carry out its duties under the Basic Documents.

                  Section 7.04 Advance Account.

                  (a) The Servicer shall cause to be established and maintained
in its name, an Advance Account (the "Advance Account"), which need not be a
segregated account. The Advance Account shall be maintained with any financial
institution the Servicer elects.

                  (b) Deposits and Withdrawals. Amounts in respect of the
transfer of Additional Class A Certificate Principal Balances and Loans shall be
deposited in and withdrawn from the Advance Account as provided in Sections
3.01(c) and 3.06 hereof, Section 3.01 of the Certificate Purchase Agreement and
Section 2.1 of the Loan Purchase Agreement.

                  Section 7.05 Transfer Obligation Account.

                  (a) The Servicer, for the benefit of the Class A
Certificateholders, shall cause to be established and maintained in the name of
the Owner Trustee a Transfer Obligation Account (the "Transfer Obligation
Account"), which shall be a separate Eligible Account and may be
interest-bearing, entitled "Transfer Obligation Account, Wilmington Trust
Company, as Owner Trustee, in trust for the FINOVA Commercial Mortgage Loan
Asset-Backed Certificates, Series 1998-1." The Transfer Obligation Account may
be maintained with the Owner Trustee or any other depository institution which
satisfies the requirements set forth in the definition of Eligible Account. The
establishment of a Transfer Obligation Account with a depositary institution
other than the Owner Trustee shall be evidenced by a letter agreement between
the Servicer and such depository institution acceptable to the Owner Trustee. A
copy of such letter agreement shall be furnished to the Owner Trustee and, upon
request of any Certificateholder, to such Certificateholder. Amounts in the
Transfer Obligation Account shall be invested in accordance with Section 7.03.

                  (b) In accordance with Section 2.3(b) of the Loan Purchase
Agreement, the Loan Originator shall deposit into the Transfer Obligation
Account such amounts as may be required thereby.

                  (c) On each Distribution Date, the Owner Trustee will deposit
in the Transfer Obligation Account any amounts required to be deposited therein
pursuant to Section 7.01(c)(3)(v).

                                     -108-
<PAGE>   116
                  (d) On the date of each Disposition, the Owner Trustee shall
withdraw from the Transfer Obligation Account such amount on deposit therein as
may be requested by the Majority Certificateholders in writing to effect such
Disposition.

                  (e) On each Distribution Date, the Owner Trustee, upon the
written direction of the Servicer shall withdraw from the Transfer Obligation
Account and deposit into the Distribution Account on such Distribution Date the
lesser of (x) the amount then on deposit in the Transfer Obligation Account and
(y) the Interest Carry-Forward Amount as of such date.

                  (f) If with respect to any Distribution Date the
Overcollateralization Shortfall exceeds the lesser of (x) 1% of the aggregate
Principal Balance of all Loans as of the prior Business Day and (y) $250,000,
the Owner Trustee, upon the written direction of the Servicer shall withdraw
from the Transfer Obligation Account and deposit into the Distribution Account
on the Business Day prior to such Distribution Date the lesser of the amount
then on deposit in the Transfer Obligation Account and the amount of such
Overcollateralization Shortfall as of such date.

                  (g) If with respect to any Distribution Date there shall exist
a Hedge Funding Requirement, the Owner Trustee, upon the written direction of
the Servicer shall withdraw from the Transfer Obligation Account and deposit
into the Distribution Account on the Business Day prior to such Distribution
Date the lesser of (x) the amount then on deposit in the Transfer Obligation
Account (after making all other required withdrawals therefrom with respect to
such Distribution Date) and (y) the amount of such Hedge Funding Requirement as
of such date.

                  (h) In the event of the occurrence of an Event of Default, the
Owner Trustee shall withdraw all remaining funds from the Transfer Obligation
Account and apply such funds in satisfaction of the Class A Certificates as
provided in Section 15.08(b) hereof.

                  (i) (A) The Owner Trustee shall return to the Transfer Obligor
(as the Transfer Obligor shall agree) all amounts on deposit in the Transfer
Obligation Account (after making all other withdrawals pursuant to this Section
7.05) until the Majority Certificateholders provide written notice to the Owner
Trustee (with a copy to the Transfer Obligor) of the occurrence of a default or
event of default (however defined) under any Basic Document with respect to the
Trust, Transfer Obligor, the Depositor, Servicer or any of their Affiliates and
(B) upon the date of the termination of this Agreement pursuant to Article XVI,
the Owner Trustee, at the written direction of the Transfer Obligor, shall
withdraw any remaining amounts from the Transfer Obligation Account and remit
all such amounts to the Transfer Obligor.

                  Section 7.06 Transfer Obligation.

                  (a) In consideration of the transactions contemplated by the
Basic Documents, the Transfer Obligor hereby agrees and covenants with the
Depositor that:

                                     -109-
<PAGE>   117
                  (i) In connection with each Securitization it shall fund, or
         cause to be funded, reserve funds, pay credit enhancer fees, pay, or
         cause to be paid, underwriting fees (or with respect to a Whole Loan
         Sale, any agency fees), and in the case of all Dispositions, it shall
         fund any difference between the cash Disposition Proceeds and the
         aggregate Class A Certificate Principal Balance at the time of such
         Disposition, and make, or cause to be made, such other payments as may
         be, in the reasonable opinion of the Disposition Agent, necessary to
         effect Dispositions, in each case to the extent that Disposition
         Proceeds are insufficient to pay such amounts;

                  (ii) In connection with Hedging Instruments, on the Business
         Day prior to each Distribution Date, it shall deliver to the Owner
         Trustee for deposit into the Transfer Obligation Account any Hedge
         Funding Requirement (to the extent amounts available on the related
         Distribution Date pursuant to Section 7.01 are insufficient to make
         such payment), when as and if due to any Hedging Counterparty;

                  (iii) If any Interest Carry-Forward Amount shall occur, it
         shall deposit into the Transfer Obligation Account any such Interest
         Carry-Forward Amount on or before the Business Date preceding such
         related Distribution Date;

                  (iv) If on any Business Day, the Overcollateralization
         Shortfall exceeds the lesser of (x) 1% of the aggregate Principal
         Balance of all Loans in the Loan Pool as of the prior Business Day and
         (y) $250,000, it shall, on the following Business Day, deposit into the
         Transfer Obligation Account the full amount of the
         Overcollateralization Shortfall as of such date; and

                  (v) Notwithstanding anything to the contrary herein, in the
         event of the occurrence of an Event of Default under the Indenture, the
         Transfer Obligor shall promptly deposit into the Transfer Obligation
         Account the entire amount of the Value Shortfall;

provided, that notwithstanding anything to the contrary contained herein, the
Transfer Obligor's cumulative payments under or in respect of the Transfer
Obligations (after subtracting therefrom any amounts returned to the Transfer
Obligor pursuant to Section 7.05(i)(A)) together with the Loan Originator's
payments in respect of any Loan Originator Puts shall not in the aggregate
exceed the Value Shortfall.

                  (b) The Transfer Obligor shall pay such amounts upon one
Business Day's notice from either the Servicer or the Majority
Certificateholders.

                  (c) The Transfer Obligor agrees that the Certificateholders,
as ultimate assignee of the rights of the Depositor under this Agreement and the
other Basic Documents, may enforce the rights of the Depositor directly against
the Transfer Obligor.


                                  ARTICLE VIII

                             STATEMENTS AND REPORTS

                                     -110-
<PAGE>   118
                  Section 8.01 Statements.

                  (a) On each Determination Date, the Servicer shall deliver to
the Owner Trustee and the Initial Class A Certificateholder by facsimile, the
receipt and legibility of which shall be confirmed by telephone, and with hard
copy thereof to be delivered no later than one (1) Business Day after such
Determination Date, the Servicer's Remittance Report, setting forth the date of
such Report (day, month and year), the name of the Trust (i.e., "FINOVA
Commercial Mortgage Loan Owner Trust 1998-1"), and the date of this Agreement,
all in substantially the form set out in Exhibit B hereto. Furthermore, on each
Determination Date, the Servicer shall deliver to the Owner Trustee and the
Initial Class A Certificateholder a magnetic tape or computer disk providing,
with respect to each Loan in the Loan Pool as of the last day of the related Due
Period: (i) the Loan Originator's internal loan identifying number; (ii) if such
Loan is an Adjustable Rate Loan, the current Loan Interest Rate; (iii) the
current Principal Balance with respect to such Loan; (iv) the date of the last
Monthly Payment paid in full; and (v) such other information as may be
reasonably requested by the Initial Class A Certificateholder.

                  (b) (i) On any Business Day, upon the request of the Initial
Class A Certificateholder, the Servicer shall prepare and provide a statement
setting forth the following information as of the close of business on the prior
Business Day:

                  (1)   for each Loan with respect to which a Servicing Advance
                        or Periodic Advance is outstanding, (i) the aggregate
                        amount of Servicing Advances outstanding, (ii) the
                        aggregate amount of Periodic Advances outstanding and
                        (iii) the outstanding Principal Balance of such Loan;
                        and

                  (2)   the Pool Principal Balance.

                  (ii) On each Determination Date, the Servicer shall prepare
and provide to the Owner Trustee, the Initial Class A Certificateholder and each
Certificateholder, a statement (the "Payment Statement"), stating each date of a
purchase of Additional Class A Certificate Principal Balance (day, month and
year), the name of the Trust (i.e., "FINOVA Commercial Mortgage Loan Owner Trust
1998-1"), the date of this Agreement and the following information:

                  (1)   the aggregate amount of collections in respect of
                        principal of the Loans received by the Servicer during
                        the preceding Due Period;

                  (2)   the aggregate amount of collections in respect of
                        interest on the Loans received by the Servicer during
                        the preceding Due Period;

                  (3)   all Insurance Proceeds received by the Servicer and not
                        required to be applied to restoration or repair of the
                        related Mortgaged Property during the preceding Due
                        Period;

                                     -111-
<PAGE>   119
                  (4)   all Net Liquidation Proceeds deposited by the Servicer
                        into the Collection Account during the preceding Due
                        Period;

                  (5)   all Released Mortgaged Property Proceeds deposited by
                        the Servicer into the Collection Account during the
                        preceding Due Period;

                  (6)   the aggregate amount of all Periodic Advances and all
                        Servicing Advances, set forth separately, made by the
                        Servicer during the preceding Due Period;

                  (7)   the aggregate of all amounts deposited into the
                        Collection Account in respect of the repurchase of
                        Defective Loans and the repurchase of Loans pursuant to
                        Section 3.05 hereof during the preceding Due Period;

                  (8)   the aggregate Principal Balance of all Loans for which a
                        Servicer Call was exercised during the preceding Due
                        Period;

                  (9)   the aggregate Principal Balance of all Loans for which a
                        Loan Originator Put was exercised during the preceding
                        Due Period;

                  (10)  the aggregate amount of all payments received under
                        Hedging Instruments during the preceding Due Period;

                  (11)  the aggregate amount of all withdrawals from the
                        Collection Account pursuant to Section 7.01(c)(1)(i)
                        hereof during the preceding Due Period;

                  (12)  the aggregate amount of cash Disposition Proceeds
                        received during the preceding Due Period;

                  (13)  withdrawals from the Collection Account in respect of
                        the Servicing Advance Reimbursement Amount during the
                        preceding Due Period;

                  (14)  withdrawals from the Collection Account in respect of
                        Nonrecoverable Periodic Advances during the preceding
                        Due Period;

                  (15)  the number and aggregate Principal Balance of all Loans
                        that are (i) 30-59 days Delinquent, (ii) 60-89 days
                        Delinquent, (iii) 90 or more days Delinquent as of the
                        related Distribution Date;

                  (16)  the aggregate amount of Liquidated Loan Losses incurred
                        (i) during the preceding Due Period and (ii) during the
                        preceding three Due Periods;

                  (17)  the aggregate of the Principal Balances of all Loans in
                        the Loan Pool as of the related Distribution Date;

                                     -112-
<PAGE>   120
                  (18)  the aggregate amount of all deposits into the
                        Distribution Account from the Transfer Obligation
                        Account pursuant to Section 7.05(e), 7.05(f) and 7.05(g)
                        on the preceding Distribution Date;

                  (19)  if the Servicer is not FINOVA Capital Corporation or an
                        Affiliate thereof, the aggregate amount of distributions
                        in respect of Servicing Compensation to the Servicer,
                        and unpaid Servicing Compensation from prior
                        Distribution Dates for the related Distribution Date;

                  (20)  the aggregate amount of distributions in respect of
                        Owner Trustee Fees and unpaid Owner Trustee Fees from
                        prior Distribution Dates for the related Distribution
                        Date;

                  (21)  the aggregate amount of distributions in respect of the
                        Custodian Fee and unpaid Custodian Fees from prior
                        Distribution Dates for the related Distribution Date;

                  (22)  if a Rapid Amortization Trigger shall have occurred and
                        not been Deemed Cured or a Default or Event of Default
                        shall have occurred, the aggregate amount of
                        distributions on the Class A Certificates in respect of
                        the Overcollateralization Shortfall and the Principal
                        Carry-Forward Amount for the related Distribution Date;

                  (23)  the aggregate amount of distributions in respect of
                        Servicing Compensation and unpaid Servicing Compensation
                        from prior Distribution Dates, to the Servicer, if
                        FINOVA Capital Corporation or an Affiliate thereof is
                        the Servicer, for the related Distribution Date;

                  (24)  the aggregate amount of distributions to the Transfer
                        Obligation Account for the related Distribution Date;

                  (25)  the aggregate amount of distributions in respect of
                        Trust/Depositor Indemnities for the related Distribution
                        Date;

                  (26)  the aggregate amount of distributions to the holders of
                        the Class B Certificates for the related Distribution
                        Date; and

                  (27)  the Class A Certificate Principal Balance of the Class A
                        Certificates before and after giving effect to
                        distributions made to the holders of the Class A
                        Certificates for the related Distribution Date.

                  Such Payment Statement shall be in the form of a magnetic tape
                  or computer disk in a form mutually agreed to by and between
                  the Initial Class A Certificateholder and the Servicer.

                                     -113-
<PAGE>   121
                  (iii) On each Business Day, the Servicer shall cause to be
delivered to the Initial Class A Certificateholder by facsimile, the receipt and
legibility of which shall be confirmed by telephone, and with hard copy thereof
to be delivered no later than one (1) Business Day after such Business Day, a
statement setting forth the total deposits into the Collection Account on the
prior Business Day and the balance in the Collection Account as of the close of
business on the prior Business Day.

                  (c) If the Collection Account is not maintained with the Owner
Trustee, then not later than 25 days after each Record Date, the Servicer shall
forward to the Owner Trustee a statement, certified by a Servicing Officer,
setting forth the status of the Collection Account as of the close of business
on the preceding Record Date and showing, for the period covered by such
statement, the aggregate of deposits into the Collection Account for each
category of deposit specified in Section 7.01(b)(1) hereof, the aggregate of
withdrawals from the Collection Account for each category of withdrawal
specified in Section 7.01(c)(1) hereof, in each case, for the related Due
Period.

                  (d) On each Distribution Date, the Owner Trustee shall forward
to the holders of the Certificates a copy of the Payment Statement in respect of
such Distribution Date and a statement setting forth the amounts actually
distributed to such holders of the Certificates on such Distribution Date,
together with such other information as the Owner Trustee deems necessary or
appropriate.

                  Section 8.02 Reserved.

                  Section 8.03. Valuation of Loans, Hedge Value and Retained
Securities Value; Market Value Agent.

                  (a) The Trust hereby irrevocably appoints the Market Value
Agent to determine the Market Value of each Loan, the Hedge Value of each
Hedging Instrument and the Retained Securities Value of all Retained Securities.

                  (b) The Market Value Agent shall determine the Market Value of
each Loan in its sole judgment. In determining the Market Value of each Loan,
the Market Value Agent may consider any information that it may deem relevant
and shall base such determination on primarily on the lesser of its estimate of
the projected proceeds from such Loan's inclusion in a (i) a Securitization
(inclusive of the projected Retained Securities Value of any Retained Securities
to be issued in connection with such Securitization) and (ii) a Whole Loan Sale,
in each case, net of such Loan's ratable share of all costs and fees associated
with such Disposition, including, without limitation, any costs of issuance,
sale, underwriting and funding reserve accounts. The Market Value Agent's
determination, in its sole judgment, of Market Value shall be conclusive and
binding upon the parties hereto.

                  (c) On each Business Day the Market Value Agent shall
determine in its sole judgment the Hedge Value of each Hedging Instrument as of
such Business Day. In making such determination the Market Value Agent may rely
exclusively on quotations provided by the Hedging Counterparty, by leading
dealers in instruments similar to such Hedging Instrument,


                                     -114-
<PAGE>   122
which leading dealers may include the Market Value Agent and its Affiliates and
such other sources of information as the Market Value Agent may deem
appropriate.

                  (d) On each Business Day, the Market Value Agent shall
determine in its sole judgment the Retained Securities Value of the Retained
Securities, if any, expected to be issued pursuant to such Securitization as of
the closing date of such Securitization. In making such determination the Market
Value Agent may rely exclusively on quotations provided by leading dealers in
instruments similar to such Retained Securities, which leading dealers may
include the Market Value Agent and its Affiliates and such other sources of
information as the Market Value Agent may deem appropriate.


                                   ARTICLE IX

                                     HEDGING

                  Section 9.01 Hedging Instruments.

                  (a) The Trust, with the approval of the Market Value Agent on
behalf of the Majority Certificateholders, shall enter into or assume 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 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).

                  (b) Each Hedging Instrument shall expressly provide that in
the event of a Disposition or other removal of the loan from the Trust, such
portion of the Hedging Instrument shall terminate as the Disposition Agent deems
appropriate to facilitate the hedging of the risks specified in Section 9.01(a).
In the event that the Hedging Instrument is not otherwise terminated, it shall
contain provisions that allow the position of the Trust to be assumed by an
Affiliate of the Trust upon the liquidation of the Trust. The terms of the
assignment documentation and the credit quality of the successor to the Trust
shall be subject to the Hedging Counterparty's approval.

                  (c) Any Hedging Instrument that provides for any payment
obligation on the part of the Trust must (i) be without recourse to the assets
of the Trust, (ii) contain a non-petition covenant provision in the form of
Section 17.l3, (iii) limit payment dates thereunder to Distribution Dates and
(iv) contain a provision limiting any cash payments due on any day under such
Hedging Instrument solely to funds available therefor in the Collection Account
on such day pursuant to Section 7.01(c)(3)(ii) hereof and funds available
therefor in the Transfer Obligation Account.

                  (d) Each Hedging Instrument must (i) provide for the direct
payment of any amounts thereunder to the Collection Account pursuant to Section
7.01(b)(1)(x), (ii) provide 


                                     -115-
<PAGE>   123
that in the event of the occurrence of an Event of Default, such Hedging
Instrument shall terminate upon the direction of the Majority
Certificateholders, (iii) prohibit the Hedging Counterparty from "setting-off"
or "netting" other obligations of the Trust or its Affiliates against such
Hedging Counterparty's payment obligations thereunder, (iv) provide that the
appropriate portion of the Hedging Instrument will terminate upon the removal of
the related Loans from the Owner Trust Estate and (v) have economic terms that
are fixed and not subject to alteration after the date of assumption or
execution.

                  (e) If agreed to by the Majority Certificateholders, the Trust
may pledge its assets in order to secure its obligations in respect of Hedge
Funding Requirements, provided that such right shall be limited solely to
Hedging Instruments for which an Affiliate of the Initial Class A
Certificateholder is a Hedging Counterparty.


                                    ARTICLE X

                            ACTIONS BY OWNER TRUSTEE

                  Section 10.01 Prior Notice to Certificateholders with Respect
to Certain Matters. (a) With respect to the following matters, the Owner Trustee
shall not take action, and the Certificateholders shall not direct the Owner
Trustee to take any action, unless at least 30 days before the taking of such
action, the Owner Trustee shall have notified the Certificateholders and the
Initial Class A Certificateholder in writing of the proposed action and the
Majority Certificateholders shall not have notified the Owner Trustee in writing
prior to the 30th day after such notice is given that such Certificateholders
have withheld consent or the Certificateholders have provided alternative
direction:

                           (i) the initiation of any claim or lawsuit by the
         Trust (except claims or lawsuits brought in connection with the
         collection of the Loans) and the compromise of any action, claim or
         lawsuit brought by or against the Trust (except with respect to the
         aforementioned claims or lawsuits for collection of the Loans);

                           (ii) the election by the Trust to file an amendment
         to the Certificate of Trust (unless such amendment is required to be
         filed under the Business Trust Statute);

                           (iii) the amendment or other change to this Agreement
         or any Basic Document in circumstances where the consent of any
         Certificateholder is required;

                           (iv) the amendment or other change to this Agreement
         or any Basic Document in circumstances where the consent of any
         Certificateholder is not required and such amendment materially
         adversely affects the interest of the Certificateholders;

                           (v) the appointment of a successor Certificate
         Registrar or Payment Agent;

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<PAGE>   124
                           (vi) the consent to the calling or waiver of any
         default of any Basic Document;

                           (vii) the consent to the assignment by the Owner
         Trustee or Servicer of their respective obligations under any Basic
         Document;

                           (viii) except as provided in Article XVI hereof, the
         dissolution, termination or liquidation of the Trust in whole or in
         part;

                           (ix) the merger or consolidation of the Trust with or
         into any other entity, or the conveyance or transfer all or
         substantially all of the Trust's assets to any other entity;

                           (x) causing the Trust to incur, assume or guaranty
         any indebtedness other than as set forth in this Agreement;

                           (xi) the performance of any act that conflicts with
         any other Basic Document;

                           (xii) the performance of any act which would make it
         impossible to carry on the ordinary business of the Trust;

                           (xiii) the confession of a judgment against the
         Trust;

                           (xiv) the possession of Trust assets, or assignment
         of the Trust's right to property, for other than a Trust purpose;

                           (xv) causing the Trust to lend any funds to any
         entity; or

                           (xvi) changing the Trust's purpose and powers from
         those set forth in this Agreement.

                  (b)      The Trust agrees to abide by the following 
restrictions:

                           (i) Other than as contemplated by the Basic Documents
         and related documentation, the Trust shall not incur any indebtedness.

                           (ii) Other than as contemplated by the Basic
         Documents and related documentation, the Trust shall not engage in any
         dissolution, liquidation, consolidation, merger or sale of assets.

                           (iii) The Trust shall not engage in any business
         activity in which it is not currently engaged other as contemplated by
         the Basic Documents and related documentation.

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<PAGE>   125
                           (iv) The Trust shall not form, or cause to be formed,
         any subsidiaries and shall not own or acquire any asset other than as
         contemplated by the Basic Documents and related documentation.

                           (v) Other than as contemplated by the Basic Documents
         and related documentation, the Trust shall not follow the directions or
         instructions of FINOVA Capital Corporation.

                  (c)      The Trust shall:

                           (i) Maintain books and records separate from any
         other person or entity.

                           (ii) Maintain its bank accounts separate from any
         other person or entity.

                           (iii) Not commingle its assets with those of any
         other person or entity.

                           (iv)     Conduct its own business in its own name.

                           (v) Other than as contemplated by the Basic Documents
         and related documentation, pay its own liabilities and expenses only
         out of its own funds.

                           (vi) Observe all formalities required under the
         Business Trust Statute.

                           (vii) Enter into transactions with Affiliates of
         FINOVA Capital Corporation only if each such transaction is
         intrinsically fair, commercially reasonable, and on the same terms as
         would be available in an arm's length transaction with a person or
         entity that is not an Affiliate.

                           (viii) Not guarantee or become obligated for the
         debts of any other entity or person.

                           (ix) Not hold out its credit as being available to
         satisfy the obligation of any other person or entity.

                           (x) Not acquire the obligations or securities of
         FINOVA Capital Corporation or its Affiliates.

                           (xi) Other than as contemplated by the Basic
         Documents and related documentation, not make loans to any other person
         or entity or buy or hold evidence of indebtedness issued by any other
         person or entity.

                           (xii) Other than as contemplated by the Basic
         Documents and related documentation, not pledge its assets for the
         benefit of any other person or entity.

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<PAGE>   126
                           (xiii) Hold itself out as a separate entity from
         FINOVA Capital Corporation and not conduct any business in the name of
         FINOVA Capital Corporation.

                           (xiv) Correct any known misunderstanding regarding
         its separate identity.

                           (xv) Not identify itself as a division of any other
         person or entity.

                  So long as the Class A Certificates are Outstanding or any
amounts are owed under this Agreement to the Class A Certificateholders, the
Trust shall not amend this Section 4.1 without the prior written consent of 100%
of the Voting Interests of the Certificates, in addition to the requirements
under Section 11.1.

                  (d) The Owner Trustee shall not have the power, except upon
the direction of the Certificateholders acting with the prior written consent of
the Majority Certificateholders, and to the extent otherwise consistent with the
Basic Documents, to (i) cause the Trust to admit in writing its inability to pay
its debts generally as they become due, (ii) institute proceedings to have the
Trust declared or adjudicated a bankrupt or insolvent, (iii) consent to the
institution of bankruptcy or insolvency proceedings against the Trust, (iv) file
a petition or consent to a petition seeking reorganization or relief on behalf
of the Trust under any applicable federal or state law relating to bankruptcy,
(v) consent to the appointment of a receiver, liquidator, assignee, trustee,
sequestrator (or any similar official) of the Trust or a substantial portion of
the property of the Trust, (vi) make any assignment for the benefit of the
Trust's creditors, or (vii) take any action, or cause the Trust to take any
action, in furtherance of any of the foregoing (any of the above, a "Bankruptcy
Action"). So long as this Agreement remains in effect, no Certificateholder
shall have the power to take, and shall not take, any Bankruptcy Action with
respect to the Trust or the Depositor or direct the Owner Trustee to take any
Bankruptcy Action with respect to the Trust or the Depositor.

                  Section 10.02 Action by Certificateholders with Respect to
Certain Matters. The Owner Trustee shall not have the power, except upon the
direction of the Majority Certificateholders, to (a) remove the Administrator
under the Administration Agreement pursuant to Section 8 thereof, (b) appoint a
successor Administrator pursuant to Section 8 of the Administration Agreement,
(c) remove the Servicer under this Agreement pursuant to Section 15.01 thereof.
The Owner Trustee shall take the actions referred to in the preceding sentence
only upon written instructions signed by the Certificateholders and consented to
in a prior writing by the Majority Certificateholders.

                  Section 10.03 Restrictions on Certificateholders' Power. The
Certificateholders shall not direct the Owner Trustee to take or refrain from
taking any action if such action or inaction would be contrary to any obligation
of the Trust or the Owner Trustee under this Agreement or any of the Basic
Documents or would be contrary to Section 2.03 nor shall the Owner Trustee be
obligated to follow any such direction, if given.

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<PAGE>   127
                  Section 10.04 Majority Control. Except as expressly provided
herein, any action that may be taken by the Certificateholders under this
Agreement may be taken by the Majority Certificateholders. Except as expressly
provided herein, any written notice of the Certificateholders delivered pursuant
to this Agreement shall be effective if signed by the Majority
Certificateholders at the time of the delivery of such notice.


                                   ARTICLE XI

                      AUTHORITY AND DUTIES OF OWNER TRUSTEE

                  Section 11.01 General Authority. The Owner Trustee is
authorized and directed to execute and deliver or cause to be executed and
delivered the Certificates and each Basic Document to which the Trust is to be a
party and each certificate or other document attached as an exhibit to or
contemplated by each Basic Document to which the Trust is to be a party and any
amendment or other agreement or instrument described in Article II, in each
case, in such form as the Loan Originator shall approve, as evidenced
conclusively by the Owner Trustee's execution thereof, and, on behalf of the
Trust, to direct the Owner Trustee to authenticate and deliver the Certificates.
The Owner Trustee shall authenticate and deliver, or cause to be authenticated
and delivered, the Certificates. In addition to the foregoing, the Owner Trustee
is authorized, but shall not be obligated, to take all actions required of the
Trust, pursuant to the Basic Documents.

                  Section 11.02 General Duties. It shall be the duty of the
Owner Trustee:

                  (a) to discharge (or cause to be discharged) all of its
responsibilities pursuant to the terms of this Agreement and the Basic Documents
to which the Trust is a party and to administer the Trust in the interest of the
Certificateholders, subject to the Basic Documents and in accordance with the
provisions of this Agreement. Notwithstanding the foregoing, the Owner Trustee
shall be deemed to have discharged its duties and responsibilities hereunder and
under the Basic Documents to the extent the Administrator or the Servicer has
agreed in the Administration Agreement or this Agreement, respectively, to
perform any act or to discharge any duty of the Owner Trustee or the Trust
hereunder or under any Basic Document, and the Owner Trustee shall not be held
liable for the default or failure of the Administrator or the Servicer to carry
out its obligations under the Administration Agreement or this Agreement,
respectively; and

                  (b) to obtain and preserve, the Trust's qualification to do
business in each jurisdiction in which such qualification is or shall be
necessary to protect the validity and enforceability of the Certificates, the
Owner Trust Estate and each other instrument and agreement included in the Owner
Trust Estate.

                  Section 11.03 Action Upon Instruction.

                  (a) Subject to Article X and in accordance with the terms of
the Basic Documents, the Majority Certificateholders may by written instruction
direct the Owner 


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<PAGE>   128
Trustee in the management of the Trust but only to the extent consistent with
the limited purpose of the Trust. Such direction may be exercised at any time by
written instruction of the Majority Certificateholders pursuant to Article X.

                  (b) The Owner Trustee shall not be required to take any action
hereunder or under any Basic Document if the Owner Trustee shall have reasonably
determined, or shall have been advised by counsel in writing, that such action
is likely to result in liability on the part of the Owner Trustee or is contrary
to the terms hereof or of any Basic Document or is otherwise contrary to law.

                  (c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any Basic Document, the Owner Trustee shall promptly give
notice (in such form as shall be appropriate under the circumstances) to the
Certificateholders and the Initial Class A Certificateholder requesting
instruction from the Certificateholders as to the course of action to be
adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Majority Certificateholders, the Owner
Trustee shall not be liable on account of such action to any Person. If the
Owner Trustee shall not have received appropriate instruction within 10 days of
receipt of such notice (or within such shorter period of time as reasonably may
be specified in such notice or may be necessary under the circumstances) it may,
but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the Basic Documents, as it shall deem to be
in the best interests of the Certificateholders, and shall have no liability to
any Person for such action or inaction.

                  (d) In the event that the Owner Trustee is unsure as to the
application of any provision of this Agreement or any Basic Document or any such
provision is ambiguous as to its application, or is, or appears to be, in
conflict with any other applicable provision, or in the event that this
Agreement permits any determination by the Owner Trustee or is silent or is
incomplete as to the course of action that the Owner Trustee is required to take
with respect to a particular set of facts, the Owner Trustee may give notice (in
such form as shall be appropriate under the circumstances) to the
Certificateholders requesting instruction and, to the extent that the Owner
Trustee acts or refrains from acting in good faith in accordance with any such
instruction of the Majority Certificateholders, received, the Owner Trustee
shall not be liable, on account of such action or inaction, to any Person. If
the Owner Trustee shall not have received appropriate instruction within 10 days
of receipt of such notice (or within such shorter period of time as reasonably
may be specified in such notice or may be necessary under the circumstances) it
may, but shall be under no duty to, take or refrain from taking such action, not
inconsistent with this Agreement or the Basic Documents, as it shall deem to be
in the best interests of the Certificateholders, and shall have no liability to
any Person for such action or inaction.

                  Section 11.04 No Duties Except as Specified in this Agreement,
the Basic Documents or in Instructions. The Owner Trustee shall not have any
duty or obligation to manage, make any payment with respect to, register,
record, sell, dispose of, or otherwise deal with the Owner Trust Estate, or to
otherwise take or refrain from taking any action under, or 


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<PAGE>   129
in connection with, any document contemplated hereby to which the Owner Trustee
is a party, except as expressly provided by the terms of this Agreement, any
Basic Document or in any document or written instruction received by the Owner
Trustee pursuant to Section 11.03; and no implied duties or obligations shall be
read into this Agreement or any Basic Document against the Owner Trustee. The
Owner Trustee shall have no responsibility for filing any financing or
continuation statement in any public office at any time or to otherwise perfect
or maintain the perfection of any security interest or lien granted to it
hereunder or to prepare or file any Securities and Exchange Commission filing
for the Trust or to record this Agreement or any Basic Document. The Owner
Trustee nevertheless agrees that it will, at its own cost and expense, promptly
take all action as may be necessary to discharge any liens on any part of the
Owner Trust Estate that result from actions by, or claims against, the Owner
Trustee that are not related to the ownership or the administration of the Owner
Trust Estate.

                  Section 11.05 No Action Except Under Specified Documents or
Instructions. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Owner Trust Estate except (i) in
accordance with the powers granted to and the authority conferred upon the Owner
Trustee pursuant to this Agreement, (ii) in accordance with the Basic Documents
and (iii) in accordance with any document or instruction delivered to the Owner
Trustee pursuant to Section 11.03.

                  Section 11.06 Restrictions. The Owner Trustee shall not take
any action (a) that is inconsistent with the purposes of the Trust set forth in
Section 2.03 or (b) that, to the actual knowledge of the Owner Trustee, would
result in the Trust's becoming taxable as a corporation for Federal income tax
purposes. The Certificateholders shall not direct the Owner Trustee to take
action that would violate the provisions of this Section.

                  Section 11.07 Accounting of Trust Funds; Withholding.

                  (a) On or prior to each Distribution Date, the Owner Trustee
shall cause the Servicer to deliver to each Certificateholder the statement
provided by the Servicer pursuant to Section 8.01(b) of this Agreement with
respect to such Distribution Date.

                  (b) In the event that any withholding tax is imposed on the
Trust's distribution (or allocations of income) to a Certificateholder, such tax
shall reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. The Owner Trustee is hereby authorized and
directed to retain or cause the Paying Agent to retain from amounts otherwise
distributable to the Certificateholders sufficient funds for the payment of any
tax that is legally owed by the Trust (but such authorization shall not prevent
the Owner Trustee from contesting any such tax in appropriate proceedings, and
withholding payment of such tax, if permitted by law, pending the outcome of
such proceedings). The amount of any withholding tax imposed with respect to an
Certificateholder shall be treated as cash distributed to such Certificateholder
at the time it is withheld by the Trust and remitted to the appropriate taxing
authority. In the event of any claimed overwithholding, Certificateholders shall
have no claim for recovery against the Trust or other Certificateholders. If the
amount withheld was not withheld from actual distributions, the Trust may, at
its option, (i) require the Certificateholder to 


                                     -122-
<PAGE>   130
reimburse the Trust for such withholding (and each Certificateholder agrees to
reimburse the Trust promptly following such request) or (ii) reduce any
subsequent distributions by the amount of such withholding. If there is a
possibility that withholding tax is payable with respect to a distribution (such
as a distribution to a Non-U.S. Person), the Owner Trustee may in its sole
discretion withhold or cause to be withheld such amounts in accordance with this
paragraph (b). In the event that an Certificateholder wishes to apply for a
refund of any such withholding tax, the Owner Trustee shall reasonably cooperate
with such owner in making such claim so long as such Certificateholder agrees to
reimburse the Owner Trustee for any out-of-pocket expenses incurred.

                  Section 11.08 Accounting and Reports to the
Certificateholders, the Internal Revenue Service and Others. The Owner Trustee
shall deliver or cause to be delivered to each Certificateholder, as may be
required by the Code and applicable Treasury Regulations, or as may be requested
by such Certificateholder, such information, reports or statements as may be
necessary to enable each Certificateholder to prepare its federal and state
income tax returns. Consistent with the Trust's characterization for tax
purposes as a partnership between the Class A Certificateholders and Class B
Certificateholders, the Owner Trustee shall prepare or shall cause to be
prepared federal and, if applicable, state or local partnership tax returns
required to be filed by the Trust and shall remit such returns to the Depositor
(or if the Depositor no longer owns any Class B Certificates, the Class B
Certificateholder designated for such purpose by the Depositor to the Owner
Trustee in writing) at least five (5) days before such returns are due to be
filed, and (y) capital accounts shall be maintained for each Certificateholder
in accordance with the Treasury Regulations under Section 704(b) of the Code
reflecting each such Class A Certificateholder's and Class B Certificateholder's
share of the income, gains, deductions, and losses of the Trust and
contributions to, and distributions from, the Trust (as set forth in Annex A
hereto). The Depositor (or such designee Class B Certificateholder, as
applicable) shall promptly sign such returns and deliver such returns after
signature to the Owner Trustee and such returns shall be filed or cause to be
filed by the Owner Trustee with the appropriate tax authorities.


                                   ARTICLE XII

                   CONCERNING THE OWNER TRUSTEE; COMPENSATION

                  Section 12.01 Acceptance of Trusts and Duties. The Owner
Trustee accepts the trusts hereby created and agrees to perform its duties
hereunder with respect to such trusts but only upon the terms of this Agreement
and the Basic Documents. The Owner Trustee also agrees to disburse all moneys
actually received by it constituting part of the Owner Trust Estate upon the
terms of the Basic Documents and this Agreement. The Owner Trustee shall not be
answerable or accountable hereunder or under any Basic Document under any
circumstances, except (i) for its own willful misconduct or negligence or (ii)
in the case of the inaccuracy of any representation or warranty contained in
Section 12.03 expressly made by the Owner Trustee. In particular, but not by way
of limitation (and subject to the exceptions set forth in the preceding
sentence):

                                     -123-
<PAGE>   131
                  (a) the Owner Trustee shall not be liable for any error of
judgment made by a responsible officer of the Owner Trustee;

                  (b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the instructions of
the Administrator or the Certificateholders;

                  (c) no provision of this Agreement or any Basic Document shall
require the Owner Trustee to expend or risk funds or otherwise incur any
financial liability in the performance of any of its rights or powers hereunder
or under any Basic Document if the Owner Trustee shall have reasonable grounds
for believing that repayment of such funds or adequate indemnity against such
risk or liability is not reasonably assured or provided to it;

                  (d) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under any of the Basic Documents,
including the principal of and interest on the Certificates;

                  (e) the Owner Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the other parties hereto or for the form, character,
genuineness, sufficiency, value or validity of any of the Owner Trust Estate or
for or in respect of the validity or sufficiency of the Basic Documents, other
than the certificate of authentication on the Certificates, and the Owner
Trustee shall in no event assume or incur any liability, duty, or obligation to
any Certificateholder, other than as expressly provided for herein and in the
Basic Documents;

                  (f) the Owner Trustee shall not be liable for the default or
misconduct of any other party under any of the Basic Documents or otherwise and
the Owner Trustee shall have no obligation or liability to perform the
obligations of the Trust under this Agreement or the Basic Documents that are
required to be performed by the Administrator under the Administration Agreement
or the Servicer under this Agreement; and

                  (g) the Owner Trustee shall be under no obligation to exercise
any of the rights or powers vested in it by this Agreement, or to institute,
conduct or defend any litigation under this Agreement or otherwise or in
relation to this Agreement or any Basic Document, at the request, order or
direction of any of the Certificateholders, unless such Certificateholders have
offered to the Owner Trustee security or indemnity satisfactory to it in its
reasonable discretion against the costs, expenses and liabilities that may be
incurred by the Owner Trustee therein or thereby. The right of the Owner Trustee
to perform any discretionary act enumerated in this Agreement or in any Basic
Document shall not be construed as a duty, and the Owner Trustee shall not be
answerable for other than its negligence or willful misconduct in the
performance of any such act provided, that the Owner Trustee shall be liable for
its negligence or willful misconduct in the event that it assumes the duties and
obligations of the Owner Trustee under this Agreement pursuant to Section 13.05.

                  Section 12.02 Furnishing of Documents. The Owner Trustee shall
furnish (a) to the Certificateholders promptly upon receipt of a written request
therefor, duplicates or 


                                     -124-
<PAGE>   132
copies of all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Owner Trustee under the
Basic Documents and (b) to Certificateholders promptly upon written request
therefor, copies of this Agreement and the Administration Agreement.

                  Section 12.03 Representations and Warranties.

                  The Owner Trustee hereby represents and warrants to the other
parties hereto, for the benefit of the Certificateholders, that:

                          (i) It is a banking corporation duly organized and
         validly existing in good standing under the laws of the State of
         Delaware. It has all requisite corporate power and authority to
         execute, deliver and perform its obligations under this Agreement.

                         (ii) It has taken all corporate action necessary to
         authorize the execution and delivery by it of this Agreement, and this
         Agreement will be executed and delivered by one of its officers who is
         duly authorized to execute and deliver this Agreement on its behalf.

                        (iii) Neither the execution nor the delivery by it of
         this Agreement nor the consummation by it of the transactions
         contemplated hereby nor compliance by it with any of the terms or
         provisions hereof will contravene any Federal or Delaware law,
         governmental rule or regulation governing the banking or trust powers
         of the Owner Trustee or any judgment or order binding on it, or
         constitute any default under its charter documents or by-laws or any
         indenture, mortgage, contract, agreement or instrument to which it is a
         party or by which any of its properties may be bound.

                  Section 12.04 Reliance; Advice of Counsel.

                  (a) The Owner Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond, or other document or paper believed
by it to be genuine and believed by it to be signed by the proper party or
parties. The Owner Trustee may accept a certified copy of a resolution of the
board of directors or other governing body of any corporate party as conclusive
evidence that such resolution has been duly adopted by such body and that the
same is in full force and effect. As to any fact or matter the method of the
determination of which is not specifically prescribed herein, the Owner Trustee
may for all purposes hereof rely on a certificate, signed by a Responsible
Officer, as to such fact or matter and such certificate shall constitute full
protection to the Owner Trustee for any action taken or omitted to be taken by
it in good faith in reliance thereon.

                  (b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement or the
Basic Documents, the Owner Trustee (i) may act directly or through its agents or
attorneys pursuant to agreements entered into with any of them, and the Owner
Trustee shall not be liable for the conduct or 


                                     -125-
<PAGE>   133
misconduct of such agents or attorneys if such agents or attorneys shall have
been selected by the Owner Trustee with reasonable care, and (ii) may consult
with counsel, accountants and other skilled persons to be selected with
reasonable care and employed by it. The Owner Trustee shall not be liable for
anything done, suffered or omitted in good faith by it in accordance with the
written opinion or advice of any such counsel, accountants or other such persons
and not contrary to this Agreement or any Basic Document.

                  Section 12.05 Not Acting in Individual Capacity. Except as
provided in this Article XII, in accepting the trusts hereby created Wilmington
Trust Company acts solely as Owner Trustee hereunder and not in its individual
capacity and all Persons having any claim against the Owner Trustee by reason of
the transactions contemplated by this Agreement or any Basic Document shall look
only to the Owner Trust Estate for payment or satisfaction thereof.

                  Section 12.06 Owner Trustee Not Liable for Certificates or
Loans. The recitals contained herein and in the Certificates (other than the
signature and countersignature of the Owner Trustee on the Certificates) shall
be taken as the statements of the Depositor, and the Owner Trustee assumes no
responsibility for the correctness thereof. The Owner Trustee makes no
representations as to the validity or sufficiency of this Agreement, of any
Basic Document or of the Certificates (other than the signature and
countersignature of the Owner Trustee on the Certificates and as specified in
Section 12.03), or of any Loans or related documents. The Owner Trustee shall at
no time have any responsibility or liability for or with respect to the
legality, validity and enforceability of any Loan, or the perfection and
priority of any security interest created by any Loan or the maintenance of any
such perfection and priority, or for or with respect to the sufficiency of the
Owner Trust Estate or its ability to generate the payments to be distributed to
Certificateholders under this Agreement, including, without limitation: the
existence, condition and ownership of any Mortgaged Property; the existence and
enforceability of any insurance thereon; the existence and contents of any Loan
on any computer or other record thereof, the validity of the assignment of any
Loan to the Trust or of any intervening assignment; the completeness of any
Loan; the performance or enforcement of any Loan; the compliance by the
Depositor, the Loan Originator or the Servicer with any warranty or
representation made under any Basic Document or in any related document or the
accuracy of any such warranty or representation or any action of the
Administrator, the Owner Trustee or the Servicer or any subservicer taken in the
name of the Owner Trustee.

                  Section 12.07 Licenses. The Owner Trustee shall cause the
Trust to use its best efforts to obtain and maintain the effectiveness of any
licenses required in connection with this Agreement and the Basic Documents and
the transactions contemplated hereby and thereby until such time as the Trust
shall terminate in accordance with the terms hereof.

                  Section 12.08 Fees and Expenses. The Owner Trustee shall
receive as compensation for its services hereunder such fees as have been
separately agreed upon before the date hereof between the Servicer and the Owner
Trustee, which fees may not be altered without the prior written consent of the
Majority Certificateholders. The Owner Trustee shall look solely to the Servicer
for reimbursement for its other reasonable expenses hereunder, 


                                     -126-
<PAGE>   134
including the reasonable compensation, expenses and disbursements of such
agents, representatives, experts and counsel as the Owner Trustee may employ in
connection with the exercise and performance of its rights and its duties
hereunder unless and to the extent the Owner Trustee is reimbursed for such
expenses by the Trust or other Person.

                  Section 12.09 Indemnification. The Servicer shall be liable
for, and shall indemnify the Owner Trustee and its successors, assigns, agents
and servants (collectively, the "Indemnified Parties") from and against, any and
all liabilities, obligations, losses, damages, taxes, claims, actions and suits,
and any and all reasonable costs, expenses and disbursements (including
reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "Expenses") which may at any time be imposed on, incurred by, or
asserted against the Owner Trustee or any Indemnified Party in any way relating
to or arising out of this Agreement, the other Basic Documents, the Owner Trust
Estate, the administration of the Owner Trust Estate or the action or inaction
of the Owner Trustee hereunder, except only that the Servicer shall not be
liable for or required to indemnify an Indemnified Party from and against
Expenses arising or resulting from such Indemnified Party's willful misfeasance,
bad faith or negligence in the performance of the duties, or by reason of
reckless disregard of its duties under the Basic Documents. The indemnities
contained in this Section shall survive the resignation or termination of the
Owner Trustee or the termination of this Agreement. In any event of any claim,
action or proceeding for which indemnity will be sought pursuant to this
Section, the Owner Trustee's choice of legal counsel shall be subject to the
approval of the Servicer, which approval shall not be unreasonably withheld.

                  Section 12.10 Payments to the Owner Trustee . Any amounts paid
to the Owner Trustee pursuant to this Article XII shall be deemed not to be a
part of the Owner Trust Estate immediately after such payment.


                                  ARTICLE XIII


             SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES

                  Section 13.01 Eligibility Requirements for Owner Trustee. The
Owner Trustee shall at all times be a corporation satisfying the provisions of
Section 3807(a) of the Business Trust Statute; authorized to exercise corporate
powers having a combined capital and surplus of at least $50,000,000 and subject
to supervision or examination by Federal or state authorities; and having (or
having a parent which has) a long-term rating of at least "A" by S&P and
Moody's. If such corporation shall publish reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising or
examining authority, then for the purpose of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. In
case at any time the Owner Trustee shall cease to be eligible in accordance with
the provisions of this Section, the Owner Trustee shall resign immediately in
the manner and with the effect specified in Section 13.02.

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<PAGE>   135
                  Section 13.02 Resignation or Removal of Owner Trustee. The
Owner Trustee may at any time resign and be discharged from the trusts hereby
created by giving written notice thereof to the Administrator. Upon receiving
such notice of resignation, the Administrator shall promptly appoint a successor
Owner Trustee by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Owner Trustee and one copy to the successor
Owner Trustee. If no successor Owner Trustee shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.

                  If at any time the Owner Trustee shall cease to be eligible in
accordance with the provisions of Section 13.01 and shall fail to resign after
written request therefor by the Administrator, or if at any time the Owner
Trustee shall be legally unable to act, or shall be adjudged bankrupt or
insolvent, or a receiver of the Owner Trustee or of its property shall be
appointed, or any public officer shall take charge or control of the Owner
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Administrator may remove the Owner
Trustee. If the Administrator shall remove the Owner Trustee under the authority
of the immediately preceding sentence, the Administrator shall promptly appoint
a successor Owner Trustee by written instrument in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee and payment of all fees owed to the outgoing
Owner Trustee.

                  Any resignation or removal of the Owner Trustee and
appointment of a successor Owner Trustee pursuant to any of the provisions of
this Section shall not become effective until acceptance of appointment by the
successor Owner Trustee pursuant to Section 13.03 and payment of all fees and
expenses owed to the outgoing Owner Trustee. The Administrator shall provide
notice of such resignation or removal of the Owner Trustee to the Initial Class
A Certificateholder.

                  Section 13.03 Successor Owner Trustee. Any successor Owner
Trustee appointed pursuant to Section 13.02 shall execute, acknowledge and
deliver to the Administrator and to its predecessor Owner Trustee an instrument
accepting such appointment under this Agreement, and thereupon the resignation
or removal of the predecessor Owner Trustee shall become effective and such
successor Owner Trustee, without any further act, deed or conveyance, shall
become fully vested with all the rights, powers, duties, and obligations of its
predecessor under this Agreement, with like effect as if originally named as
Owner Trustee. The predecessor Owner Trustee shall upon payment of its fees and
expenses deliver to the successor Owner Trustee all documents and statements and
monies held by it under this Agreement; and the Administrator and the
predecessor Owner Trustee shall execute and deliver such instruments and do such
other things as may reasonably be required for fully and certainly vesting and
confirming in the successor Owner Trustee all such rights, powers, duties, and
obligations.

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<PAGE>   136
                  No successor Owner Trustee shall accept appointment as
provided in this Section 13.03 unless at the time of such acceptance such
successor Owner Trustee shall be eligible pursuant to Section 13.01.

                  Upon acceptance of appointment by a successor Owner Trustee
pursuant to this Section, the Administrator shall mail notice of the successor
of such Owner Trustee to the Owner Trustee and the Certificateholders. If the
Administrator fails to mail such notice within 10 days after acceptance of
appointment by the successor Owner Trustee, the successor Owner Trustee shall
cause such notice to be mailed at the expense of the Administrator.

                  Section 13.04 Merger or Consolidation of Owner Trustee. Any
corporation into which the Owner Trustee may be merged or with which it may be
consolidated or any corporation resulting from any merger or consolidation to
which the Owner Trustee shall be a party, or any corporation succeeding to all
or substantially all of the corporate trust business of the Owner Trustee, shall
be the successor of the Owner Trustee hereunder, provided such corporation shall
be eligible pursuant to Section 13.01, without the execution or filing of any
instrument or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding; provided further that the Owner Trustee
shall mail notice of such merger or consolidation to the Initial Class A
Certificateholder.

                  Section 13.05 Appointment of Co-Owner Trustee or Separate
Owner Trustee. Notwithstanding any other provisions of this Agreement, at any
time, for the purpose of meeting any legal requirements of any jurisdiction in
which any part of the Owner Trust Estate or any Mortgaged Property may at the
time be located, and for the purpose of performing certain duties and
obligations of the Owner Trustee with respect to the Trust and the Certificates
under this Agreement, the Administrator and the Owner Trustee acting jointly
shall have the power and shall execute and deliver all instruments to appoint
one or more Persons approved by the Owner Trustee to act as co-Owner Trustee,
jointly with the Owner Trustee, or separate trustee or separate trustees, of all
or any part of the Owner Trust Estate, and to vest in such Person, in such
capacity, such title to the Trust, or any part thereof, and, subject to the
other provisions of this Section, such powers, duties, obligations, rights and
trusts as the Administrator and the Owner Trustee may consider necessary or
desirable. If the Administrator shall not have joined in such appointment within
25 days after the receipt by it of a request so to do, the Owner Trustee shall
have the power to make such appointment. No co-Owner Trustee or separate Owner
Trustee under this Agreement shall be required to meet the terms of eligibility
as a successor trustee pursuant to Section 13.01 and no notice of the
appointment of any co-trustee or separate Owner Trustee shall be required
pursuant to Section 13.01.

                  Each separate Owner Trustee and co-Owner Trustee shall, to the
extent permitted by law, be appointed and act subject to the following provision
and conditions:

                          (i) all rights, powers, duties and obligations
         conferred or imposed upon the Owner Trustee shall be conferred upon and
         exercised or performed by the Owner Trustee and such separate Owner
         Trustee or co-Owner Trustee jointly (it being 


                                     -129-
<PAGE>   137
         understood that such separate Owner Trustee or co-Owner Trustee is not
         authorized to act separately without the Owner Trustee joining in such
         act), except to the extent that under any law of any jurisdiction in
         which any particular act or acts are to be performed, the Owner Trustee
         shall be incompetent or unqualified to perform such act or acts, in
         which event such rights, powers, duties, and obligations (including the
         holding of title to the Trust or any portion thereof in any such
         jurisdiction) shall be exercised and performed singly by such separate
         Owner Trustee or co-Owner Trustee, but solely at the direction of the
         Owner Trustee;

                         (ii) no Owner Trustee under this Agreement shall be
         personally liable by reason of any act or omission of any other Owner
         Trustee under this Agreement; and

                        (iii) the Administrator and the Owner Trustee acting
         jointly may at any time accept the resignation of or remove any
         separate Owner Trustee or co-Owner Trustee.

                  Any notice, request or other writing given to the Owner
Trustee shall be deemed to have been given to the separate Owner Trustees and
co-Owner Trustees, as if given to each of them. Every instrument appointing any
separate Owner Trustee or co-Owner Trustee, other than this Agreement, shall
refer to this Agreement and to the conditions of this Article. Each separate
Owner Trustee and co-Owner Trustee, upon its acceptance of appointment, shall be
vested with the estates specified in its instrument of appointment, either
jointly with the Owner Trustee or separately, as may be provided therein,
subject to all the provisions of this Agreement, specifically including every
provision of this Agreement relating to the conduct of, affecting the liability
of, or affording protection to, the Owner Trustee. Each such instrument shall be
filed with the Owner Trustee and a copy thereof given to the Administrator.

                  Any separate Owner Trustee or co-Owner Trustee may at any time
appoint the Owner Trustee as its agent or attorney-in-fact with full power and
authority, to the extent not prohibited by law, to do any lawful act under or in
respect of this Agreement on its behalf and in its name. If any separate Owner
Trustee or co-Owner Trustee shall die, become incapable of acting, resign or be
removed, all of its estates, properties, rights, remedies and trusts shall vest
in and be exercised by the Owner Trustee, to the extent permitted by law,
without the appointment of a new or successor trustee.


                                   ARTICLE XIV

                                  THE SERVICER

                  Section 14.01 Indemnification; Third Party Claims.

                  (a) The Servicer shall indemnify the Loan Originator, the
Owner Trustee, the Trust, the Depositor, the Owner Trustee and the
Certificateholders, their respective 


                                     -130-
<PAGE>   138
officers, directors, employees, agents and "control persons," as such term is
used under the Act and under the Securities Exchange Act of 1934 as amended
(each an "Indemnified Party") and hold harmless each of them against any and all
claims, losses, damages, penalties, fines, forfeitures, reasonable legal fees
and related costs, judgments, and other costs and expenses resulting from any
claim, demand, defense or assertion based on or grounded upon, or resulting
from, a breach of any of the Servicer's representations and warranties and
covenants contained in this Agreement or in any way relating to the failure of
the Servicer to perform its duties and service the Loans in compliance with the
terms of this Agreement; provided, however, that if the Servicer is not liable
pursuant to the provisions of Section 14.01(d) hereof for its failure to perform
its duties and service the Loans in compliance with the terms of this Agreement,
then the provisions of this Section 14.01 shall have no force and effect with
respect to such failure.

                  (b) The Loan Originator, the Depositor, the Owner Trustee or
the Certificateholders, as the case may be, shall promptly notify the Servicer
if a claim is made by a third party with respect to a breach of any of the
Servicer's representations and warranties and covenants contained in this
Agreement or in any way relating to the failure of the Servicer to perform its
duties and service the Loans in compliance with the terms of this Agreement. The
Servicer shall promptly notify the Owner Trustee and the Depositor of any claim
of which it has been notified pursuant to this Section 14.01 by a Person other
than the Depositor, and, in any event, shall promptly notify the Depositor of
its intended course of action with respect to any claim.

                  (c) The Servicer shall be entitled to participate in and, upon
notice to the Indemnified Party, assume the defense of any such action or claim
in reasonable cooperation with, and with the reasonable cooperation of, the
Indemnified Party. The Indemnified Party will have the right to employ its own
counsel in any such action in addition to the counsel of the Servicer, but the
fees and expenses of such counsel will be at the expense of such Indemnified
Party, unless (i) the employment of counsel by the Indemnified Party at its
expense has been authorized in writing by the Servicer, (ii) the Servicer has
not in fact employed counsel to assume the defense of such action within a
reasonable time after receiving notice of the commencement of the action, or
(iii) the named parties to any such action or proceeding (including any
impleaded parties) include both the Servicer and one or more Indemnified
Parties, and the Indemnified Parties shall have been advised by counsel that
there may be one or more legal defenses available to them which are different
from or additional to those available to the Servicer. The Servicer shall not be
liable for any settlement of any such claim or action unless the Servicer shall
have consented thereto or be in default on its obligations hereunder. Any
failure by an Indemnified Party to comply with the provisions of this Section
14.01 shall relieve the Servicer of liability only if such failure is materially
prejudicial to the defense of the Servicer of such claim or action and then only
to the extent of such prejudice.

                  (d) None of the Loan Originator, the Depositor or the Servicer
or any of their respective Affiliates, directors, officers, employees or agents
shall be under any liability to the Owner Trustee, the Trust, the Owner Trustee
or the Certificateholders for any action 


                                     -131-
<PAGE>   139
taken, or for refraining from the taking of any action, in good faith pursuant
to this Agreement, or for errors in judgment; provided, however, that this
provision shall not protect the Loan Originator, the Depositor, the Servicer or
any of their respective Affiliates, directors, officers, employees, agents
against the remedies provided herein for the breach of any warranties,
representations or covenants made herein, or against any expense or liability
specifically required to be borne by such party without right of reimbursement
pursuant to the terms hereof, or against any expense or liability which would
otherwise be imposed by reason of misfeasance, bad faith or negligence in the
performance of the respective duties of the Servicer, the Depositor or the Loan
Originator, as the case may be. The Loan Originator, the Depositor, the Servicer
and any of their respective Affiliates, directors, officers, employees, agents
may rely in good faith on any document of any kind which, prima facie, is
properly executed and submitted by any Person respecting any matters arising
hereunder.

                  Section 14.02 Merger or Consolidation of the Servicer.

                  The Servicer shall keep in full effect its existence, rights
and franchises as a corporation, and will obtain and preserve its qualification
to do business as a foreign corporation and maintain such other licenses and
permits in each jurisdiction necessary to protect the validity and
enforceability of each Basic Document to which it is a party and each of the
Loans and to perform its duties under each Basic Document to which it is a
party; provided, however, that the Servicer may merge or consolidate with any
other corporation upon the satisfaction of the conditions set forth in the
following paragraph.

                  Any Person into which the Servicer may be merged or
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Servicer shall be a party, or any Person succeeding
to the business of the Servicer, shall be an Eligible Servicer and shall be the
successor of the Servicer, as applicable hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding. The Servicer shall send notice
of any such merger, conversion, consolidation or succession to the Owner Trustee
and the Trust.

                  Section 14.03 Limitation on Liability of the Servicer and
Others.

                  The Servicer and any director, officer, employee or agent of
the Servicer may rely on any document of any kind which it in good faith
reasonably believes to be genuine and to have been adopted or signed by the
proper authorities respecting any matters arising hereunder. Subject to the
terms of Section 14.01 hereof, the Servicer shall have no obligation to appear
with respect to, prosecute or defend any legal action which is not incidental to
the Servicer's duty to service the Loans in accordance with this Agreement.

                  Section 14.04 Servicer Not to Resign; Assignment.

                  The Servicer shall not resign from the obligations and duties
hereby imposed on it except (a) with the consent of the Majority
Certificateholders or (b) upon determination that its duties hereunder are no
longer permissible under applicable law. Any such determination pursuant to
clause (b) of the preceding sentence permitting the resignation of the Servicer
shall 


                                     -132-
<PAGE>   140
be evidenced by an independent opinion of counsel to such effect delivered (at
the expense of the Servicer) to the Owner Trustee and Majority
Certificateholders. No resignation of the Servicer shall become effective until
a successor servicer, appointed pursuant to the provisions of Section 15.02
hereof and satisfying the requirements of Section 5.03 hereof with respect to
the qualifications of a successor Servicer, shall have assumed the Servicer's
responsibilities, duties, liabilities (other than those liabilities arising
prior to the appointment of such successor) and obligations under this
Agreement.

                  Except as expressly provided herein, the Servicer shall not
assign or transfer any of its rights, benefits or privileges hereunder to any
other Person, or delegate to or subcontract with, or authorize or appoint any
other Person to perform any of the duties, covenants or obligations to be
performed by the Servicer hereunder and any agreement, instrument or act
purporting to effect any such assignment, transfer, delegation or appointment
shall be void.

                  The Servicer agrees to cooperate with any successor Servicer
in effecting the transfer of the Servicer's servicing responsibilities and
rights hereunder pursuant to the first paragraph of this Section 14.04,
including, without limitation, the transfer to such successor of all relevant
records and documents (including any Loan Files in the possession of the
Servicer) and all amounts received with respect to the Loans and not otherwise
permitted to be retained by the Servicer pursuant to this Agreement. In
addition, the Servicer, at its sole cost and expense, shall prepare, execute and
deliver any and all documents and instruments to the successor Servicer
including all Loan Files in its possession and do or accomplish all other acts
necessary or appropriate to effect such termination and transfer of servicing
responsibilities.

                  Section 14.05 Relationship of Servicer to Trust and the Owner
Trustee.

                  The relationship of the Servicer (and of any successor to the
Servicer as servicer under this Agreement) to the Trust and the Owner Trustee
under this Agreement is intended by the parties hereto to be that of an
independent contractor and not of a joint venturer, agent or partner of the
Trust or the Owner Trustee.

                  Section 14.06 Servicer May Own Certificates.

                  Each of the Servicer and any Affiliate of the Servicer may in
its individual or any other capacity become the owner or pledgee of Certificates
with the same rights as it would have if it were not the Servicer or an
Affiliate thereof except as otherwise specifically provided herein. Certificates
so owned by or pledged to the Servicer or such Affiliate shall have an equal and
proportionate benefit under the provisions of this Agreement, without
preference, priority, or distinction as among all of the Certificates; provided,
however, that any Certificates owned by the Servicer or any Affiliate thereof,
during the time such Certificates are owned by them, shall be without voting
rights for any purpose set forth in this Agreement. The Servicer shall notify
the Owner Trustee promptly after it or any of its Affiliates becomes the owner
or pledgee of a Certificate.

                  Section 14.07 Indemnification of the Initial Class A
Certificateholder.

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<PAGE>   141
                  The Servicer agrees to indemnify the Initial Class A
Certificateholder in accordance with Section 9.01 of the Certificate Purchase
Agreement as if it were a signatory thereto.


                                   ARTICLE XV

       SERVICER EVENTS OF DEFAULT; CERTIFICATE EVENTS OF DEFAULT; REMEDIES

                  Section 15.01 Servicer Events of Default.

                  (a) In case one or more of the following Servicer Events of
Default shall occur and be continuing, that is to say:

                  (i) any failure by Servicer to deposit (A) into the Collection
         Account in accordance with Section 7.01(b) any amount required to be
         deposited by it under any Basic Document to which it is a party, which
         failure continues unremedied for two days following the date on which
         such deposit was first requested to be made or (B) the full amount of
         any Periodic Advance required to be made on the day such Periodic
         Advances are required to be made, which failure continues unremedied
         until 12:00 p.m. New York City time on the Business Day following such
         day; or

                  (ii) any failure on the part of the Servicer duly to observe
         or perform in any material respect any other of the material covenants
         or agreements on the part of the Servicer, contained in any Basic
         Document to which it is a party, which continues unremedied for a
         period of 30 days (or, in the case of payment of insurance premiums,
         for a period of 15 days) after the date on which written notice of such
         failure, requiring the same to be remedied, shall have been given to
         the Servicer by any other party hereto or to the Servicer (with copy to
         each other party hereto), by Holders of 25% of the Percentage Interests
         of the Class A Certificates or the Certificates; or

                  (iii) any breach on the part of the Servicer of any
         representation or warranty contained in any Basic Document to which it
         is a party that materially and adversely affects the interests of any
         of the parties hereto or any Certificateholder and which continues
         unremedied for a period of 30 days after the date on which notice of
         such breach, requiring the same to be remedied, shall have been given
         to the Servicer by any other party hereto or to the Servicer (with copy
         to each other party hereto), by the Initial Class A Certificateholder
         or Holders of 25% of the Percentage Interests of the Class A
         Certificates; or

                  (iv) there shall have been commenced before a court or agency
         or supervisory authority having jurisdiction in the premises an
         involuntary proceeding against the Servicer under any present or future
         federal or state bankruptcy, insolvency or similar law for the
         appointment of a conservator, receiver, liquidator, trustee or similar
         official in any bankruptcy, insolvency, readjustment of debt,
         marshalling of 


                                     -134-
<PAGE>   142
         assets and liabilities or similar proceedings, or for the winding-up or
         liquidation of its affairs, which action shall not have been dismissed
         for a period of 60 days; or

                  (v) the Servicer shall consent to the appointment of a
         conservator, receiver, liquidator, trustee or similar official in any
         bankruptcy, insolvency, readjustment of debt, marshalling of assets and
         liabilities or similar proceedings of or relating to it or of or
         relating to all or substantially all of its property; or

                  (vi) the Servicer shall admit in writing its inability to pay
         its debts generally as they become due, file a petition to take
         advantage of any applicable bankruptcy, insolvency or reorganization
         statute, make an assignment for the benefit of its creditors,
         voluntarily suspend payment of its obligations, or take any corporate
         action in furtherance of the foregoing.

                  (b) Then, and in each and every such case, so long as an
Servicer Event of Default shall not have been remedied, the Owner Trustee or the
Majority Certificateholders, by notice in writing to the Servicer may, in
addition to whatever rights such Person may have at law or in equity to damages,
including injunctive relief and specific performance, may terminate all the
rights and obligations of the Servicer under this Agreement and in and to the
Loans and the proceeds thereof, as servicer under this Agreement. Upon receipt
by the Servicer of such written notice, all authority and power of the Servicer
under this Agreement, whether with respect to the Loans or otherwise, shall,
subject to Section 15.02 hereof, pass to and be vested in a successor servicer,
and the successor servicer is hereby authorized and empowered to execute and
deliver, on behalf of the Servicer, as attorney-in-fact or otherwise, any and
all documents and other instruments and do or cause to be done all other acts or
things necessary or appropriate to effect the purposes of such notice of
termination, including, but not limited to, the transfer and endorsement or
assignment of the Loans and related documents. The Servicer agrees to cooperate
with the successor servicer in effecting the termination of the Servicer's
responsibilities and rights hereunder, including, without limitation, the
transfer to the successor servicer for administration by it of all amounts which
shall at the time be credited by the Servicer to each Collection Account or
thereafter received with respect to the Loans.

                  Section 15.02 Appointment of Successor.

                  On and after the date the Servicer receives a notice of
termination pursuant to Section 15.01 hereof, or the Owner Trustee receives the
resignation of the Servicer evidenced by an Opinion of Counsel or accompanied by
the consents required by Section 14.04 hereof, or the Servicer is removed as
servicer pursuant to this Article XV or Section 5.01, then, the Majority
Certificateholders shall appoint a successor servicer to be the successor in all
respects to the Servicer in its capacity as Servicer under this Agreement and
the transactions set forth or provided for herein and shall be subject to all
the responsibilities, duties and liabilities relating thereto placed on the
Servicer by the terms and provisions hereof; provided, however, that the
successor servicer shall not be liable for any actions of any servicer prior to
it.

                  The successor servicer shall be obligated to make Servicing
Advances hereunder. As compensation therefor, the successor servicer appointed
pursuant to the 


                                     -135-
<PAGE>   143
following paragraph, shall be entitled to all funds relating to the Loans which
the Servicer would have been entitled to receive from the Collection Account
pursuant to Section 7.01(c) hereof as if the Servicer had continued to act as
servicer hereunder, together with other Servicing Compensation in the form of
assumption fees, late payment charges or otherwise as provided in Section 5.16
hereof. The Servicer shall not be entitled to any termination fee if it is
terminated pursuant to Section 15.01 hereof but shall be entitled to any accrued
and unpaid Servicing Fee to the date of termination.

                  Any collections received by the Servicer after removal or
resignation shall be endorsed by it to the Owner Trustee and remitted directly
to the successor servicer. The compensation of any successor servicer appointed
shall be the Servicing Fee, together with other Servicing Compensation provided
for herein. The Owner Trustee, the Trust, any Custodian, the Servicer and any
such successor servicer shall take such action, consistent with this Agreement,
as shall be reasonably necessary to effect any such succession. Any costs or
expenses incurred by the Owner Trustee in connection with the termination of the
Servicer and the succession of a successor servicer shall be an expense of the
outgoing Servicer and, to the extent not paid thereby, an expense of such
successor servicer. The Servicer agrees to cooperate with the Owner Trustee and
any successor servicer in effecting the termination of the Servicer's servicing
responsibilities and rights hereunder and shall promptly provide the successor
servicer all documents and records reasonably requested by it to enable it to
assume the Servicer's functions hereunder and shall promptly also transfer to
the successor servicer all amounts which then have been or should have been
deposited in any Trust Account maintained by the Servicer or which are
thereafter received with respect to the Loans. Upon the occurrence of an Event
of Default, the Majority Certificateholders shall have the right to order the
Servicer's Loan Files and all other files of the Servicer relating to the Loans
and all other records of the Servicer and all documents relating to the Loans
which are then or may thereafter come into the possession of the Servicer or any
third party acting for the Servicer (including, without limitation, computer
programs, tapes, disks, data processing software and related property and
rights) to be delivered to such custodian or servicer as it selects and the
Servicer shall deliver to such custodian or servicer such assignments as the
Majority Certificateholders shall request. No successor servicer shall be held
liable by reason of any failure to make, or any delay in making, any
distribution hereunder or any portion thereof caused by (i) the failure of the
Servicer to deliver, or any delay in delivering, cash, documents or records to
it or (ii) restrictions imposed by any regulatory authority having jurisdiction
over the Servicer hereunder. No appointment of a successor to the Servicer
hereunder shall be effective until written notice of such proposed appointment
shall have been provided by the Owner Trustee to the Initial Class A
Certificateholder, the Trust and the Depositor and the Depositor, the Majority
Certificateholders and the Trust shall have consented in writing thereto.

                  In connection with such appointment and assumption, the
Majority Certificateholder may make such arrangements for the compensation of
such successor servicer out of payments on the Loans as they and such successor
servicer shall agree.

                  Section 15.03. Performance and Enforcement of Certain
Obligations.

                                     -136-
<PAGE>   144
                  (a) Promptly following a request from the Owner Trustee to do
so and at the Servicer's expense, the Trust shall take all such lawful action as
the Owner Trustee may request to compel or secure the performance and observance
by the Loan Originator and the Servicer, as applicable, of each of their
obligations to the Trust under or in connection with this Agreement, and to
exercise any and all rights, remedies, powers and privileges lawfully available
to the Trust under or in connection with this Agreement to the extent and in the
manner directed by the Owner Trustee, including the transmission of notices of
default on the part of the Loan Originator or the Servicer thereunder and the
institution of legal or administrative actions or proceedings to compel or
secure performance by the Loan Originator or the Servicer of each of their
obligations under this Agreement.

                  (b) If an Event of Default has occurred and is continuing, the
Owner Trustee may, and at the direction (which direction shall be in writing or
by telephone, confirmed in writing promptly thereafter) of the Majority
Certificateholders shall, subject to Section 15.10(c) exercise all rights,
remedies, powers, privileges and claims of the Trust against the Loan Originator
or the Servicer under or in connection with this Agreement, including the right
or power to take any action to compel or secure performance or observance by the
Loan Originator or the Servicer, as the case may be, of each of their
obligations to the Trust thereunder and to give any consent, request, notice,
direction, approval, extension, or waiver under this Agreement, and any right of
the Trust to take such action shall be suspended.

                  Section 15.04 Accounting Upon Termination of Servicer.

                  Upon termination of the Servicer under this Article XV, the
Servicer shall, at its own expense:

                  (a) deliver to its successor or, if none shall yet have been
appointed, to the Owner Trustee the funds in any Trust Account maintained by the
Servicer;

                  (b) deliver to its successor or, if none shall yet have been
appointed, to the Owner Trustee all Loan Files and related documents and
statements held by it hereunder and a Loan portfolio computer tape;

                  (c) deliver to its successor or, if none shall yet have been
appointed, to the Owner Trustee and to the Trust and the Certificateholders a
full accounting of all funds, including a statement showing the Monthly Payments
collected by it and a statement of monies held in trust by it for payments or
charges with respect to the Loans; and

                  (d) execute and deliver such instruments and perform all acts
reasonably requested in order to effect the orderly and efficient transfer of
servicing of the Loans to its successor and to more fully and definitively vest
in such successor all rights, powers, duties, responsibilities, obligations and
liabilities of the Servicer under this Agreement.

                  Section 15.05. Certificate Events of Default.

                                     -137-
<PAGE>   145
                  "Certificate Events of Default," wherever used herein, means
any one of the following events (whatever the reason for such Certificate Event
of Default and whether it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):

                  (a) notwithstanding any insufficiency of funds in the
Distribution Account for distribution thereof on the related Distribution Date,
default in the distribution of any interest on any Certificate when the same
becomes distributable, and continuance of such default for a period of five (5)
days; or

                  (b) notwithstanding any insufficiency of funds in the
Distribution Account for distribution thereof on the related Distribution Date,
default in the distribution of any installment of the Overcollateralization
Shortfall of any Class A Certificate (i) on any Distribution Date or (ii) on the
Expected Final Distribution Date; or

                  (c) the occurrence of a Servicer Event of Default; or

                  (d) default in the observance or performance of any covenant
or agreement of the Trust made in any Basic Document to which it is a party
(other than a covenant or agreement, a default in the observance or performance
of which is elsewhere in this Section 5.01 specifically dealt with), or any
representation or warranty of the Trust made in any Basic Document to which it
is a party or in any certificate or other writing delivered pursuant thereto or
in connection therewith proving to have been incorrect in any material respect
as of the time when the same shall have been made, and such default shall
continue or not be cured, or the circumstance or condition in respect of which
such misrepresentation or warranty was incorrect shall not have been eliminated
or otherwise cured, for a period of 30 days after there shall have been given,
by registered or certified mail, to the Trust by the Owner Trustee, or to the
Trust, the Depositor and the Owner Trustee by Class A Certificateholders
evidencing at least 25% Percentage Interests, a written notice specifying such
default or incorrect representation or warranty and requiring it to be remedied
and stating that such notice is a notice of Default hereunder; or

                  (e) default in the observance or performance of any covenant
or agreement of the Transfer Obligor, Depositor or Loan Originator made in any
Basic Document to which it is a party or any representation or warranty of the
Transfer Obligor, Depositor or Loan Originator made in any Basic Document to
which it is a party, proving to have been incorrect in any material respect as
of the time when the same shall have been made, and such default shall continue
or not be cured, or the circumstance or condition in respect of which such
misrepresentation or warranty was incorrect shall not have been eliminated,
otherwise cured or remedied, for a period of 30 days (or such other time as
specified with respect to such representation or warranty) after there shall
have been given, by registered or certified mail, to the Transfer Obligor, Trust
and the Depositor by the Owner Trustee, or to the Trust, the Depositor and the
Owner Trustee by Class A Certificateholders evidencing at least 25% Percentage
Interests, a written notice specifying such Default or incorrect representation 
or


                                     -138-
<PAGE>   146
warranty and requiring it to be remedied and stating that such notice is a
notice of Default hereunder; or

                  (f) the filing of a decree or order for relief by a court
having jurisdiction over the Transfer Obligor, Loan Originator, Trust or the
Depositor in an involuntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or the
appointing of a receiver, liquidator, assignee, custodian, trustee, sequestrator
or similar official of the Transfer Obligor, Loan Originator, Trust or the
Depositor, or the ordering of the winding-up or liquidation of the affairs of
the Transfer Obligor, Loan Originator, Trust or the Depositor, and such decree
or order shall remain unstayed and in effect for a period of 60 consecutive
days; or

                  (g) the commencement by the Transfer Obligor, Loan Originator,
Trust or the Depositor of a voluntary case under any applicable federal or state
bankruptcy, insolvency or other similar law now or hereafter in effect, or the
consent by the Transfer Obligor, Loan Originator, Trust or the Depositor to the
entry of an order for relief in an involuntary case under any such law, or the
consent by the Trust to the appointment or taking possession by a receiver,
liquidator, assignee, custodian, trustee, sequestrator or similar official of
the Transfer Obligor, Loan Originator, Trust or the Depositor or for any
substantial part of the Owner Trust Estate, or the making by the Trust or the
Depositor of any general assignment for the benefit of creditors, or the failure
by the Transfer Obligor, Loan Originator, Trust or the Depositor generally to
pay its respective debts as such debts become due, or the taking of any action
by the Transfer Obligor, Loan Originator, Trust or the Depositor in furtherance
of any of the foregoing; or

                  (h) the Certificates shall be Outstanding on the day after the
Final Put Date; or

                  (i) on any day after the Closing Date, the Value Shortfall is
equal to or less than two percent of the Pool Principal Balance;

                  or

                  (j) on any day, the Market Value Agent shall have determined
the aggregate Market Value of the Loans is less than 112% of the aggregate Class
A Certificate Principal Balance;

                  The Trust shall deliver to the Owner Trustee, within five days
after the occurrence thereof, written notice in the form of an Officer's
Certificate of any event which with the giving of notice and the lapse of time
would become an Certificate Event of Default under clauses (d), (f) or (g)
above, the status of such event and what action the Trust or the Depositor, as
applicable, is taking or proposes to take with respect thereto.

                  Section 15.06. Acceleration of Maturity; Rescission and
Annulment.

                                     -139-
<PAGE>   147
                  If an Certificate Event of Default should occur and be
continuing, then and in every such case the Owner Trustee, at the direction or
upon the prior written consent of the Majority Certificateholders, may declare
all the Class A Certificates to be immediately due and distributable, by a
notice in writing to the Trust (and to the Owner Trustee if given by Class A
Certificateholders), and upon any such declaration the unpaid principal amount
of such Class A Certificates, together with accrued and unpaid interest thereon
through the date of acceleration, shall become immediately due and
distributable.

                  At any time after such declaration of acceleration of maturity
has been made and before a judgment or decree for distribution of the moneys due
has been obtained by the Owner Trustee as hereinafter in this Article XV
provided, the Majority Certificateholders, by written notice to the Trust and
the Owner Trustee, may rescind and annul such declaration and its consequences
if:

                  (a) the Trust has paid or deposited with the Owner Trustee a
sum sufficient to pay:

         1.       all payments of principal of and/or interest on all Class A
                  Certificates and all other amounts that would then be due
                  hereunder or upon such Class A Certificates if the Certificate
                  Event of Default giving rise to such acceleration had not
                  occurred; and

         2.       all sums paid or advanced by the Owner Trustee hereunder and
                  the reasonable compensation, expenses, disbursements and
                  advances of the Owner Trustee and its agents and counsel; and

                  (b) all Certificate Events of Default, other than the
nonpayment of the Class A Certificates that has become due solely by such
acceleration, have been cured or waived as provided in Section 15.16 hereof. No
such rescission shall affect any subsequent default or impair any right
consequent thereto.

                  Section 15.07. Collection of Indebtedness and Suits for
Enforcement by Owner Trustee.

                  (a) The Trust covenants that if (i) default is made in the
distribution of any interest on any Class A Certificate when the same becomes
due and distributable, and such default continues for a period of five days, or
(ii) default is made in the distribution of the principal of or any installment
of the principal of any Class A Certificate when the same becomes due and
distributable, the Trust will, upon demand of the Owner Trustee, pay to the
Owner Trustee, for the benefit of the Class A Certificateholders, the whole
amount then due and distributable on such Class A Certificates for principal
and/or interest, with interest upon the overdue principal and, to the extent
distribution at such rate of interest shall be legally enforceable, upon overdue
installments of interest at the rate borne by the Class A Certificates and in
addition thereto such further amount as shall be sufficient to cover the costs
and expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Owner Trustee and its agents and counsel.

                                     -140-
<PAGE>   148
                  (b) In case the Trust shall fail forthwith to distribute such
amounts upon such demand, the Owner Trustee shall at the direction of the
Majority Certificateholders, subject to Section 15.10(c) institute a Proceeding
for the collection of the sums so due and unpaid, and may prosecute such
Proceeding to judgment or final decree, and may enforce the same against the
Trust or other obligor upon such Class A Certificates and collect in the manner
provided by law out of the property of the Trust or other obligor upon such
Class A Certificates, wherever situated, the moneys adjudged or decreed to be
distributable.

                  (c) If an Certificate Event of Default occurs and is
continuing, the Owner Trustee shall at the direction of the Majority
Certificateholders, as more particularly provided in Section 15.08 hereof,
subject to Section 15.10(c) hereof, proceed to protect and enforce its rights
and the rights of the Certificateholders by such appropriate Proceedings as the
Owner Trustee shall deem most effective to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Agreement or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy or legal or equitable right vested in the Owner Trustee
by this Agreement or by law.

                  (d) In case there shall be pending, relative to the Trust or
any other obligor upon the Certificates or any Person having or claiming an
ownership interest in the Owner Trust Estate, Proceedings under Title 11 of the
United States Code or any other applicable federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall
have been appointed for or taken possession of the Trust or its property or such
other obligor or Person, or in case of any other comparable judicial Proceedings
relative to the Trust or other obligor upon the Class A Certificates, or to the
creditors or property of the Trust or such other obligor, the Owner Trustee,
irrespective of whether the principal of any Class A Certificates shall then be
due and distributable as therein expressed or by declaration or otherwise and
irrespective of whether the Owner Trustee shall have made any demand pursuant to
the provisions of this Section 15.07, shall be entitled and empowered by
intervention in such Proceedings or otherwise:

                  (i) to file and prove a claim or claims for the whole amount
         of principal and/or interest owing and unpaid in respect of the Class A
         Certificates and to file such other papers or documents as may be
         necessary or advisable in order to have the claims of the Owner Trustee
         (including any claim for reasonable compensation to the Owner Trustee,
         each predecessor Owner Trustee, and its agents, attorneys and counsel,
         and for reimbursement of all expenses and liabilities incurred, and all
         advances made, by the Owner Trustee and each predecessor Owner Trustee,
         except as a result of negligence or bad faith) and of the Class A
         Certificateholders allowed in such Proceedings;

                  (ii) unless prohibited by applicable law and regulations, to
         vote on behalf of the Class A Certificateholders in any election of a
         trustee, a standby trustee or Person performing similar functions in
         any such Proceedings;

                                     -141-
<PAGE>   149
                  (iii) to collect and receive any moneys or other property
         payable or deliverable on any such claims and to distribute all amounts
         received with respect to the claims of the Class A Certificateholders
         and the Owner Trustee on their behalf; and

                  (iv) to file such proofs of claim and other papers or
         documents as may be necessary or advisable in order to have the claims
         of the Owner Trustee or the Class A Certificateholders allowed in any
         judicial proceedings relative to the Trust, its creditors and its
         property; and any trustee, receiver, liquidator, custodian or other
         similar official in any such Proceeding is hereby authorized by each of
         such Class A Certificateholders to make payments to the Owner Trustee
         and, in the event that the Owner Trustee shall consent to the making of
         payments directly to such Class A Certificateholders, to pay to the
         Owner Trustee such amounts as shall be sufficient to cover reasonable
         compensation to the Owner Trustee, each predecessor Owner Trustee and
         their respective agents, attorneys and counsel, and all other expenses
         and liabilities incurred and all advances made by the Owner Trustee and
         each predecessor Owner Trustee except as a result of negligence or bad
         faith.

                  (e) Nothing herein contained shall be deemed to authorize the
Owner Trustee to authorize or consent to or vote for or accept or adopt on
behalf of any Class A Certificateholder any plan of reorganization, arrangement,
adjustment or composition affecting the Class A Certificates or the rights of
any Holder thereof or to authorize the Owner Trustee to vote in respect of the
claim of any Class A Certificateholder in any such proceeding except, as
aforesaid, to vote for the election of a trustee in bankruptcy or similar
Person.

                  (f) All rights of action and of asserting claims under this
Agreement, or under any of the Class A Certificates, may be enforced by the
Owner Trustee without the possession of any of the Class A Certificates or the
production thereof in any trial or other Proceedings relative thereto, and any
such action or Proceedings instituted by the Owner Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment,
subject to the payment of the expenses, disbursements and compensation of the
Owner Trustee, each predecessor Owner Trustee and their respective agents,
attorneys and counsel, shall be for the ratable benefit of the Class A
Certificateholders.

                  (g) In any Proceedings brought by the Owner Trustee (and also
any Proceedings involving the interpretation of any provision of this Agreement
to which the Owner Trustee shall be a party), the Owner Trustee shall be held to
represent all the Class A Certificateholders, and it shall not be necessary to
make any Class A Certificateholder a party to any such Proceedings.

                  Section 15.08. Remedies; Priorities.

                  (a) If a Certificate Event of Default shall have occurred and
be continuing, the Owner Trustee, at the direction of the Majority
Certificateholders, shall do one or more of the following (subject to Section
15.09 hereof):

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<PAGE>   150
                  (i) institute Proceedings in its own name for the collection
         of all amounts then distributable on the Class A Certificates or under
         this Agreement with respect thereto, whether by declaration or
         otherwise, enforce any judgment obtained, and collect from the Trust
         and any other obligor upon such Certificates moneys adjudged due;

                  (ii) institute Proceedings from time to time for the complete
         or partial foreclosure of this Agreement with respect to the Owner
         Trust Estate;

                  (iii) exercise any remedies of a secured party under the UCC
         and take any other appropriate action to protect and enforce the rights
         and remedies of the Owner Trustee or the Class A Certificateholders;
         and

                  (iv) sell the Owner Trust Estate or any portion thereof or
         rights or interest therein in a commercially reasonable manner, at one
         or more public or private sales called and conducted in any manner
         permitted by law; provided, however, that the Owner Trustee may not
         sell or otherwise liquidate the Owner Trust Estate following an Event
         of Default, unless the Holders of 100% Percentage Interests of the
         Outstanding Class A Certificates consent thereto, (B) the proceeds of
         such sale or liquidation distributable to the Class A
         Certificateholders are sufficient to discharge in full all amounts then
         due and unpaid upon such Class A Certificates for principal and/or
         interest or (C) the Owner Trustee determines that the Owner Trust
         Estate will not continue to provide sufficient funds for the
         distribution of principal of and interest on the Class A Certificates
         as they mature if the early maturity of the Class A Certificates had
         not been declared, and the Owner Trustee obtains the consent of Holders
         of not less than 66-2/3% Percentage Interests of the Outstanding Class
         A Certificates. In determining such sufficiency or insufficiency with
         respect to clause (B) and (C) of this subsection (a)(iv), the Owner
         Trustee may, but need not, obtain and rely upon an opinion of an
         Independent investment banking or accounting firm of national
         reputation as to the feasibility of such proposed action and as to the
         sufficiency of the Owner Trust Estate for such purpose.

                  (b) If the Owner Trustee collects any money or property
pursuant to this Article XV, it shall pay out the money or property in the
following order:

                  FIRST: in the following order of priority: (a) to the Owner
         Trustee, an amount equal to all unreimbursed Owner Trustee Fees and
         indemnities and any other amounts payable to the Owner Trustee pursuant
         to the Basic Documents and to the Owner Trustee or Sale Agents, as
         applicable, all reasonable fees and expenses incurred by them and their
         agents and representatives in connection with the enforcement of the
         remedies provided for in this Article XV, (b) to the Custodian, an
         amount equal to all unpaid Custodian Fees and indemnities and any other
         amounts payable to the Custodian pursuant to the Basic Documents, (c)
         to the Servicer, but only if the Servicer is not FINOVA Capital
         Corporation or any Affiliate thereof, an amount equal to (i) all
         unreimbursed Servicing Compensation and (ii) all unreimbursed
         Nonrecoverable 


                                     -143-
<PAGE>   151
         Servicing Advances, and (d) to the Servicer, in trust for the Owner
         Trustee, an amount equal to the Owner Trustee Fee and all unpaid Owner
         Trustee Fees from prior Distribution Dates;

                  SECOND: to distribute on a Distribution Date, the Hedge
         Funding Requirement to the appropriate Hedging Counterparties;
         provided, that only cash on or in respect of fixed rate or hybrid Loans
         (including cash Disposition Proceeds received therefrom) shall be
         distributed for such purpose and; provided, further, that amounts
         distributed pursuant to clause FIRST above shall be deemed paid from
         Loans bearing a fixed Loan Interest Rate, pro rata based on their
         aggregate Principal Balances relative to the Pool Principal Balance on
         such Distribution Date;

                  THIRD: to the Class A Certificateholders pro rata, all amounts
         in respect of interest due and owing under the Class A Certificates;

                  FOURTH: to the Class A Certificateholders pro rata, all
         amounts in respect of unpaid principal of the Class A Certificates;

                  FIFTH: to the appropriate Person, amounts in respect of
         Trust/Depositor Indemnities and Due Diligence Fees until such amounts
         are paid in full;

                  SIXTH: to the Servicer if the Servicer is the Loan Originator
         or an Affiliate thereof, an amount equal to any unreimbursed Servicing
         Compensation; and

                  SEVENTH: to the Owner Trustee, for any amounts to be
         distributed pro rata to the holders of the Class B Certificates
         pursuant to this Agreement.

                  The Owner Trustee may fix a record date and Distribution Date
for any distribution to be made to the Certificateholders pursuant to this
Section 15.08. At least 15 days before such record date, the Owner Trustee shall
mail to each Certificateholder and the Trust a notice that states the record
date, the Distribution Date and the amount to be distributed.

                  Section 15.09. Reserved.

                  Section 15.10. Limitation of Suits. No Class A
Certificateholder shall have any right to institute any Proceeding, judicial or
otherwise, with respect to this Agreement or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:

                  (a) such Class A Certificateholder has previously given
         written notice to the Owner Trustee of a continuing Certificate Event
         of Default;

                  (b) the Class A Certificateholders evidencing not less than
         25% Percentage Interests of the Outstanding Class A Certificates have
         made written request to the Owner Trustee to institute such Proceeding
         in respect of such Certificate Event of Default in its own name as
         Owner Trustee hereunder;

                                     -144-
<PAGE>   152
                  (c) such Class A Certificateholders have offered to the Owner
         Trustee reasonable indemnity against the costs, expenses and
         liabilities to be incurred in complying with such request;

                  (d) the Owner Trustee for 30 days after its receipt of such
         notice, request and offer of indemnity has failed to institute such
         Proceeding; and

                  (e) no direction inconsistent with such written request has
         been given to the Owner Trustee during such 30-day period by the
         Majority Certificateholders.

                  It is understood and intended that no one or more
Certificateholders shall have any right in any manner whatever by virtue of, or
by availing of, any provision of this Agreement to affect, disturb or prejudice
the rights of any other Certificateholders or to obtain or to seek to obtain
priority or preference over any other Certificateholders or to enforce any right
under this Agreement, except in the manner herein provided.

                  In the event the Owner Trustee shall receive conflicting or
inconsistent requests and indemnity from two or more groups of Class A
Certificateholders, neither of which evidences Percentage Interests of the
Outstanding Class A Certificates greater than 50%, the Owner Trustee in its sole
discretion may determine what action, if any, shall be taken, notwithstanding
any other provisions of this Agreement and shall have no obligation or liability
to any such group of Certificateholders for such action or inaction.

                  Section 15.11. Unconditional Rights of Class A
Certificateholders to Receive Principal and/or Interest.

                  Notwithstanding any other provisions in this Agreement, any
Class A Certificateholder shall have the right, which is absolute and
unconditional, to receive distribution of the principal of and interest, if any,
on such Class A Certificate on or after the applicable Expected Final
Distribution Date thereof expressed in such Class A Certificate or in this
Agreement (or, in the case of redemption, on or after the Redemption Date) and
to institute suit for the enforcement of any such distribution, and such right
shall not be impaired without the consent of such Class A Certificateholder.

                  Section 15.12. Restoration of Rights and Remedies.

                  If the Owner Trustee or any Class A Certificateholder has
instituted any Proceeding to enforce any right or remedy under this Agreement
and such Proceeding has been discontinued or abandoned for any reason or has
been determined adversely to the Owner Trustee or to such Class A
Certificateholder, then and in every such case the Trust, the Owner Trustee and
the Class A Certificateholders shall, subject to any determination in such
Proceeding, be restored severally and respectively to their former positions
hereunder, and thereafter all rights and remedies of the Trustee and the Class A
Certificateholders shall continue as though no such Proceeding had been
instituted.

                  Section 15.13. Rights and Remedies Cumulative.

                                     -145-
<PAGE>   153
                  No right or remedy herein conferred upon or reserved to the
Owner Trustee or to the Certificateholders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.

                  Section 15.14. Delay or Omission Not a Waiver.

                  No delay or omission of Owner Trustee or any Certificateholder
to exercise any right or remedy accruing upon any Default or Event of Default
shall impair any such right or remedy or constitute a waiver of any such Default
or Event of Default or an acquiescence therein. Every right and remedy given by
this Article XV or by law to the Owner Trustee or to the Certificateholders may
be exercised from time to time, and as often as may be deemed expedient, by the
Owner Trustee or by the Certificateholders, as the case may be.

                  Section 15.15. Control by Certificateholders.

                  The Majority Certificateholders shall have the right to direct
the time, method and place of conducting any Proceeding for any remedy available
to the Owner Trustee with respect to the Certificates or exercising any trust or
power conferred on the Owner Trustee; provided, however, that:

                  (a) such direction shall not be in conflict with any rule of
         law or with this Agreement;

                  (b) subject to the express terms of Section 15.08(a)(iv)
         hereof, any direction to the Owner Trustee to sell or liquidate the
         Owner Trust Estate shall be by Holders of Certificates representing
         Percentage Interests of the Outstanding Certificates of not less than
         100%; and

                  (c) the Owner Trustee may take any other action deemed proper
         by the Owner Trustee that is not inconsistent with such direction.

                  In connection with any sale of the Owner Trust Estate, the
Majority Certificateholders may, in their sole discretion appoint agents to
effect the sale of the Collateral (such agents, "Sale Agents"), which Sale
Agents may be Affiliates of any Certificateholder. The Sale Agents shall be
entitled to reasonable compensation in connection with such activities from the
proceeds of such sale.

                  Notwithstanding the rights of the Class A Certificateholders
set forth in this Section 15.15, subject to Section 12.01 hereof, the Owner
Trustee need not take any action that it determines might involve it in
liability or might materially adversely affect the rights of any Class A
Certificateholders not consenting to such action.

                  Section 15.16. Waiver of Past Defaults.

                                     -146-
<PAGE>   154
                  The Majority Certificateholders may waive any past Default or
Event of Default and its consequences, except a Default (a) in the distribution
of principal of or interest on any of the Class A Certificates or (b) in respect
of a covenant or provision hereof that cannot be modified or amended without the
consent of each Class A Certificateholder. In the case of any such waiver, the
Trust, the Owner Trustee and Class A Certificateholders shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other Default or impair any right consequent
thereto.

                  Upon any such waiver, such Default shall cease to exist and be
deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured and not to have occurred,
for every purpose of this Agreement; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereto.

                  Section 15.17. Undertaking for Costs.

                  All parties to this Agreement agree, and each
Certificateholder by such Certificateholder's acceptance thereof shall be deemed
to have agreed, that any court may in its discretion require, in any suit for
the enforcement of any right or remedy under this Agreement, or in any suit
against the Owner Trustee for any action taken, suffered or omitted by it as
Owner Trustee, the filing by any party litigant in such suit of an undertaking
to pay the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees, against any party
litigant in such suit, having due regard to the merits and good faith of the
claims or defenses made by such party litigant; but the provisions of this
Section 15.17 shall not apply to (a) any suit instituted by the Owner Trustee,
(b) any suit instituted by any Class A Certificateholder, or group of Class A
Certificateholders, in each case holding in the aggregate Percentage Interests
of the Outstanding Class A Certificates of more than 10% or (c) any suit
instituted by any Class A Certificateholder for the enforcement of the
distribution of principal of or interest on any Class A Certificate on or after
the respective due dates expressed in such Class A Certificate and in this
Agreement (or, in the case of redemption, on or after the Redemption Date).

                  Section 15.18. Waiver of Stay or Extension Laws.

                  The Trust covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead or in any manner whatsoever,
claim or take the benefit or advantage of, any stay or extension law wherever
enacted, now or at any time hereafter in force, that may affect the covenants or
the performance of this Agreement; and the Trust (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Owner Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.

                  Section 15.19. Action on Certificates.

                                     -147-
<PAGE>   155
                  The Owner Trustee's right to seek and recover judgment on the
Class A Certificates or under this Agreement shall not be affected by the
seeking, obtaining or application of any other relief under or with respect to
this Agreement. Neither the lien of this Agreement nor any rights or remedies of
the Owner Trustee or the Certificateholders shall be impaired by the recovery of
any judgment by the Owner Trustee against the Trust or by the levy of any
execution under such judgment upon any portion of the Owner Trust Estate. Any
money or property collected by the Owner Trustee shall be applied in accordance
with Section 15.08(b) hereof.


                                   ARTICLE XVI

                             TERMINATION; PUT OPTION

                  Section 16.01 Termination.

                  (a) This Agreement shall terminate upon either: (a) the later
of (i) the distribution to the Class A Certificateholders of all amounts
distributable in accordance with the provisions hereof or (ii) the disposition
of all funds with respect to the last Loan and the remittance of all funds due
hereunder and the payment of all amounts due and payable, including, in both
cases, without limitation, indemnification payments payable pursuant to any
Basic Document to the Owner Trustee, the Trust and the Custodian, written notice
of the occurrence of either of which shall be provided to the Owner Trustee by
the Servicer; or (b) the mutual consent of the Servicer, the Depositor, the Loan
Originator and all Certificateholders in writing and delivered to the Owner
Trustee by the Servicer.

                  (b) This Agreement (other than Article XII) and the Trust
shall terminate and be of no further force or effect on the earlier of: (i) the
termination of this Agreement; and (ii) the expiration of 21 years from the
death of the last survivor of the descendants of Joseph P. Kennedy (the late
ambassador of the United States to the Court of St. James's) alive on the date
hereof. The bankruptcy, liquidation, dissolution, death or incapacity of any
Certificateholder shall not (x) operate to terminate this Agreement or the
Trust, nor (y) entitle such Certificateholder's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Owner Trust Estate
nor (z) otherwise affect the rights, obligations and liabilities of the parties
hereto.

                  (c) The Certificates shall be subject to an early redemption
or termination at the option of the Majority Certificateholders in the manner
and subject to the provisions of Section 16.02 of this Agreement.

                  (d) Except as provided in Sections 16.01 and 16.02, none of
the Depositor, the Servicer nor any Certificateholder shall be entitled to
revoke or terminate the Trust.

                  Section 16.02 Optional Termination.

                                     -148-
<PAGE>   156
                  (a) Class B Certificateholders evidencing a majority of the
Percentage Interest (the "Class B Majority") may, at their option, effect an
early termination of the Trust on any Distribution Date on or after the Clean-up
Call Date. The Class B Majority shall effect such early termination by providing
notice thereof to the Owner Trustee and by purchasing all of the Loans at a
purchase price, payable in cash, equal to or greater than the Termination Price.
The expense of any Independent appraiser required under this Section 16.02 shall
be a nonreimbursable expense of the Class B Majority.

                  Any such early termination by the Class B Majority shall be
accomplished by depositing into the Collection Account on the third Business Day
prior to the Distribution Date on which the purchase is to occur the amount of
the Termination Price to be distributed. The Termination Price and any amounts
then on deposit in the Collection Account (other than any amounts withdrawable
pursuant to Section 7.01(c)(1) hereof) shall be distributed by the Owner Trustee
pursuant to Section 7.01(c)(3) of this Agreement on the next succeeding
Distribution Date; and any amounts received with respect to the Loans and
Foreclosure Properties subsequent to the final Distribution Date shall belong to
the purchaser thereof.

                  (b) Form of Redemption Notice. Notice of redemption under
Section 16.02 hereof shall be by first-class mail, postage prepaid, or by
facsimile mailed or transmitted not later than 10 days prior to the applicable
Redemption Date to each Certificateholder, as of the close of business on the
Record Date preceding the applicable Redemption Date, at such
Certificateholder's address or facsimile number appearing in the Certificate
Register.

                  All notices of redemption shall state:

                  (i) the Redemption Date;

                  (ii) that on the Redemption Date Class A Certificateholders
         shall receive the Class A Certificate Redemption Amount; and

                  (iii) the place where such Class A Certificates are to be
         surrendered for distribution of the Termination Price (which shall be
         the office or agency of the Trust to be maintained as provided in
         Section 4.09(b) hereof).

                  Notice of redemption of the Class A Certificates shall be
given by the Owner Trustee in the name of the Trust and at the expense of the
Servicer. Failure to give to any Class A Certificateholder notice of redemption,
or any defect therein, shall not impair or affect the validity of the redemption
of any other Class A Certificate.

                  (c) Class A Certificates Mature on Redemption Date; Provision
for Payment of Owner Trustee. The Class A Certificates to be redeemed shall,
following notice of redemption as required by Section 16.02 hereof, on the
Redemption Date shall mature in an amount equal to the Class A Certificate
Redemption Amount and (unless the Trust shall default in the distribution of the
Class A Certificate Redemption Amount) no interest shall accrue thereon for any
period after the date to which accrued interest is calculated for purposes of
calculating the Class A Certificate Redemption Amount. The Trust may not redeem
the Class 


                                     -149-
<PAGE>   157
A Certificates unless (i) all outstanding obligations under the Class A
Certificates have been fulfilled and (ii) the Owner Trustee has been paid all
amounts to which it is entitled hereunder.

                  Section 16.03 Notice of Termination; Cancellation of
Certificate of Trust.

                  (a) Notice of termination of this Agreement or of early
redemption and termination of the Trust shall be sent by the Owner Trustee to
the Certificateholders in accordance with Section 16.02 of this Agreement.

                  (b) Upon the winding up of the Trust and its termination, the
Owner Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.

                  Section 16.04 Put Option.

                  (a) The Majority Certificateholders may, at their option, put
the Class A Certificates to the Trust on any date upon giving notice in the
manner set forth in Section 16.05. On the Put Date, the Trust shall purchase the
Certificates in the manner specified in and subject to the provisions of Section
16.04(b).

                  (b) On the Business Day prior to the Distribution Date on
which the exercise of the Put Option is to occur the Trust shall deposit the
Class A Certificate Redemption Amount into the Collection Account and any
amounts then on deposit in the Collection Account (other than any amounts
withdrawable pursuant to Section 7.01(c)(1) hereof) shall be distributed by the
Owner Trustee pursuant to Section 7.01(c)(3) of this Agreement on the next
succeeding Distribution Date; and any amounts received with respect to the Loans
and Foreclosure Properties subsequent to the final Distribution Date shall
belong to the Trust.

                  Section 16.05 Form of Put Option Notice.

                  Notice of exercise of the Put Option under Section 16.04
hereof shall be given by the Majority Certificateholders by first-class mail,
postage prepaid, or by facsimile mailed or transmitted not later than 15 days
prior to the date on which the Class A Certificates shall be repurchased by the
Trust (the "Final Put Date"). The Final Put Date may be extended with the
consent of the Majority Certificateholders. All notices of exercise of the Put
Option shall state the Final Put Date. The Put Date will be subject to mutual
agreement between the Trust and the Majority Certificateholders, but in any case
will not be later than the Final Put Date.

                  Section 16.06 Class A Certificates Mature on Put Date.

                  The Class A Certificates to be put to the Trust shall,
following notice of the exercise of the Put Option as required by Section 16.05
hereof, on the Put Date shall mature in an amount equal to the Class A
Certificate Redemption Amount and (unless the Trust shall default in the
distribution of the Class A Certificate Redemption Amount) no interest shall


                                     -150-
<PAGE>   158
accrue thereon for any period after the date to which accrued interest is
calculated for purposes of calculating the Class A Certificate Redemption
Amount.


                                  ARTICLE XVII

                            MISCELLANEOUS PROVISIONS

                  Section 17.01 Acts of Certificateholders.

                  Except as otherwise specifically provided herein, whenever
action, consent or approval of the Certificateholders is required under this
Agreement, such action, consent or approval shall be deemed to have been taken
or given on behalf of, and shall be binding upon, all Certificateholders if the
Majority Certificateholders agree to take such action or give such consent or
approval.

                  Section 17.02 Amendment.

                  (a) This Agreement may be amended from time to time by the
Depositor, the Servicer, the Loan Originator, the Owner Trustee and the Trust by
written agreement with notice thereof to the Certificateholders, without the
consent of any of the Certificateholders, to cure any error or ambiguity, to
correct or supplement any provisions hereof which may be defective or
inconsistent with any other provisions hereof or to add any other provisions
with respect to matters or questions arising under this Agreement; provided,
however, that such action will not adversely affect in any material respect the
interests of the Certificateholders. An amendment described above shall be
deemed not to adversely affect in any material respect the interests of the
Certificateholders if an Opinion of Counsel is obtained to such effect.

                  (b) This Agreement may also be amended from time to time by
the Depositor, the Servicer, the Loan Originator, the Owner Trustee and the
Trust by written agreement, with the prior written consent of the Majority
Certificateholders, for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Agreement, or of
modifying in any manner the rights of the Certificateholders; provided, however,
that no such amendment shall (i) reduce in any manner the amount of, or delay
the timing of, collections of payments on Loans or distributions which are
required to be made on any Certificate, without the consent of the holders of
100% of the Certificates, (ii) adversely affect in any material respect the
interests of any of the holders of the Certificates in any manner other than as
described in clause (i), without the consent of the holders of 100% of the
Certificates, or (iii) reduce the percentage of the Certificates, the consent of
which is required for any such amendment, without the consent of the holders of
100% of the Certificates.

                  (c) It shall not be necessary for the consent of
Certificateholders under this Section to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve the
substance thereof.

                  Prior to the execution of any amendment to this Agreement, the
Trust and the Owner Trustee shall be entitled to receive and rely upon an
Opinion of Counsel stating that the 


                                     -151-
<PAGE>   159
execution of such amendment is authorized or permitted by this Agreement. The
Trust and the Owner Trustee may, but shall not be obligated to, enter into any
such amendment which affects the Trust's own rights, duties or immunities of the
Trust or the Owner Trustee, as the case may be, under this Agreement.

                  Section 17.03 Recordation of Agreement.

                  To the extent permitted by applicable law, this Agreement, or
a memorandum thereof if permitted under applicable law, is subject to
recordation in all appropriate public offices for real property records in all
of the counties or other comparable jurisdictions in which any or all of the
Mortgaged Property is situated, and in any other appropriate public recording
office or elsewhere, such recordation to be effected by the Servicer at the
Certificateholders' expense on direction of the Majority Certificateholders but
only when accompanied by an Opinion of Counsel to the effect that such
recordation materially and beneficially affects the interests of the
Certificateholders or is necessary for the administration or servicing of the
Loans.

                  Section 17.04 Duration of Agreement.

                  This Agreement shall continue in existence and effect until
terminated as herein provided.

                  Section 17.05 Governing Law.

                  THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES
HEREUNDER SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS, WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.

                  Section 17.06 Notices.

                  All demands, notices and communications hereunder shall be in
writing and shall be deemed to have been duly given if (i) delivered personally,
mailed by overnight mail, certified mail or registered mail, postage prepaid, or
(ii) transmitted by telecopy, upon telephone confirmation of receipt thereof
(with a copy delivered by overnight courier), as follows: (I) in the case of the
Depositor, to FINOVA Realty Capital Warehouse Funding, L.P., c/o FINOVA Realty
Capital Funding Inc., 1850 N. Central Ave., Phoenix, AZ 85004, Attention:
Frederick C. Bauman, telecopy number: (602) 207-5036, telephone number: (602)
207-6904 or such other addresses or telecopy or telephone numbers as may
hereafter be furnished to the Certificateholders and the other parties hereto in
writing by the Depositor; (II) in the case of the Trust, to FINOVA Commercial
Mortgage Loan Owner Trust 1998-1, c/o Wilmington Trust Company, Rodney Square
North, 1100 North Market Street, Wilmington, Delaware 19890, Attention:
Corporate Trust Administration, telecopy number: (302) 651-8882, telephone
number: (302) 651-1000 or such other address or telecopy or telephone numbers as
may hereafter be furnished to the Certificateholders and the other parties
hereto in 


                                     -152-
<PAGE>   160
writing by the Depositor; (III) in the case of the Loan Originator, to FINOVA
Capital Corporation, 1850 N. Central Ave., Phoenix, AZ 85004, Attention:
Frederick C. Bauman, telecopy number: (602) 207-5036, telephone number: (602)
207-6904 or such other addresses or telecopy or telephone numbers as may
hereafter be furnished to the Certificateholders and the other parties hereto in
writing by the Loan Originator or Servicer, (IV) in the case of the Owner
Trustee, to Wilmington Trust Company, Rodney Square North, 1100 North Market
Street, Wilmington, Delaware 19890, Attention: Corporate Trust Administration,
telecopy number: (302) 651-8882, telephone number: (302) 651-1000 or such other
addresses or telecopy or telephone numbers as may hereafter be furnished to the
Certificateholders and the other parties hereto in writing by the Owner Trustee
(V) in the case of the Transfer Obligor, to FINOVA Capital Corporation, 1850 N.
Central Ave., Phoenix, AZ 85004, Attention: Frederick C. Bauman, telecopy
number: (602) 207-5036, telephone number: (602) 207-6904 or such other addresses
or telecopy or telephone numbers as may hereafter be furnished to the
Certificateholders and the other parties hereto in writing by the Transfer
Obligor (VI) in the case of the Servicer, to FINOVA Capital Corporation, 1850 N.
Central Ave., Phoenix, AZ 85004, Attention: Frederick C. Bauman, telecopy
number: (602) 207-5036, telephone number: (602) 207-6904 or such other addresses
or telecopy or telephone numbers as may hereafter be furnished to the
Certificateholders and the other parties hereto in writing by the Servicer; and
(VII) in the case of the Certificateholders, as set forth in the Certificate
Register. Any such notices shall be deemed to be effective with respect to any
party hereto upon the receipt of such notice or telephone confirmation thereof
by such party, except; provided, that notices to the Certificateholders shall be
effective upon mailing or personal delivery.

                  Section 17.07 Severability of Provisions.

                  If any one or more of the covenants, agreements, provisions or
terms of this Agreement shall be held invalid for any reason whatsoever, then
such covenants, agreements, provisions or terms shall be deemed severable from
the remaining covenants, agreements, provisions or terms of this Agreement and
shall in no way affect the validity or enforceability of the other covenants,
agreements, provisions or terms of this Agreement.

                  Section 17.08 No Legal Title to Owner Trust Estate in
Certificateholders.

                  The Certificateholders shall not have legal title to any part
of the Owner Trust Estate. The Certificateholders shall be entitled to receive
distributions with respect to their undivided ownership interest therein only in
accordance with the terms of this Agreement. No transfer, by operation of law or
otherwise, of any right, title, or interest of the Certificateholders to and in
their ownership interest in the Owner Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Owner
Trust Estate.

                  Section 17.09 Counterparts.

                  This Agreement may be executed in one or more counterparts and
by the different parties hereto on separate counterparts, each of which, when so
executed, shall be 


                                     -153-
<PAGE>   161
deemed to be an original; such counterparts, together, shall constitute one and
the same Agreement.

                  Section 17.10 Successors and Assigns.

                  This Agreement shall inure to the benefit of and be binding
upon the Servicer, the Loan Originator, the Depositor, the Owner Trustee, the
Trust and the Certificateholders and their respective successors and permitted
assigns.

                  Section 17.11 Headings.

                  The headings of the various sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed to be
part of this Agreement.

                  Section 17.12 Actions of Certificateholders.

                  (a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Agreement to be given or taken
by Certificateholders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Certificateholders in
person or by agent duly appointed in writing; and except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Depositor, the Servicer or the Trust. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Agreement and conclusive in favor of the
Depositor, the Servicer and the Trust if made in the manner provided in this
Section 17.12.

                  (b) The fact and date of the execution by any
Certificateholder of any such instrument or writing may be proved in any
reasonable manner which the Depositor, the Servicer or the Trust deems
sufficient.

                  (c) Any request, demand, authorization, direction, notice,
consent, waiver or other act by a Certificateholder shall bind every holder of
every Certificate issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof, in respect of anything done, or omitted to
be done, by the Depositor, the Servicer or the Trust in reliance thereon,
whether or not notation of such action is made upon such Certificate.

                  (d) The Depositor, the Servicer or the Trust may require
additional proof of any matter referred to in this Section 17.12 as it shall
deem necessary.

                  Section 17.13 Non-Petition Agreement.

                  Notwithstanding any prior termination of any Basic Document,
the Loan Originator, the Servicer, the Depositor and the Owner Trustee each
severally and not jointly covenants that it shall not, prior to the date which
is one year and one day after the distribution in full of the all of the Class A
Certificates, acquiesce, petition or otherwise, directly or indirectly, invoke
or cause the Trust or the Depositor to invoke the process of any 


                                     -154-
<PAGE>   162
governmental authority for the purpose of commencing or sustaining a case
against the Trust or Depositor under any Federal or state bankruptcy, insolvency
or similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Trust or Depositor or
any substantial part of their respective property or ordering the winding up or
liquidation of the affairs of the Trust or the Depositor.

                  Section 17.14 Holders of the Certificates.

                  (a) Any sums to be distributed or otherwise distributed
hereunder or under this Agreement to the holders of the Certificates shall be
distributed to such holders pro rata based on their Percentage Interests;

                  (b) Where any act or event hereunder is expressed to be
subject to the consent or approval of the holders of the Certificates, such
consent or approval shall be capable of being given by the holder or holders
evidencing in the aggregate not less than 51% of the Percentage Interests.

                  Section 17.15 Due Diligence Fees, Due Diligence.

                  (a) The Trust agrees to pay the Initial Class A
Certificateholder in accordance with Section 7.01(c)(3)(vi) all of the
reasonable out-of-pocket costs and expenses incurred in connection with the
administration of the transactions contemplated by the Basic Documents including
without limitation all the due diligence, inspection, testing and review costs
and expenses incurred by the Initial Class A Certificateholder with respect to
Loans conveyed under this Agreement, including, but not limited to, those costs
and expenses incurred by the Initial Class A Certificateholder pursuant to
Section 17.15 hereof (the "Due Diligence Fees"), provided that unless a Trigger
Event (as defined below) shall have occurred with respect to the applicable
Loans, such Due Diligence Fees shall be limited to $25,000 per annum with
respect to all Loans other than the Loans listed in clause (1) above.

                  (b) For purposes of this Section, a "Trigger Event" shall mean
(A) with respect to all Loans, either (i) an Event of Default, or (ii) greater
than 10% of the Loans (measured by number of Loans) reviewed pursuant to this
Section during any period of time materially and adversely fail to conform to
Loan Originator's Underwriting Guidelines.

                  (c) Each of the Servicer, Loan Originator and Trust
acknowledge that the Initial Class A Certificateholder has the right to perform
continuing due diligence reviews with respect to the Loans, for purposes of
verifying compliance with the representations, warranties and specifications
made hereunder, or otherwise, and the Servicer, Loan Originator and the Trust
agree that upon reasonable (but no less than one (1) Business Day's) prior
notice to the Servicer, the Loan Originator and the Trust, the Initial Class A
Certificateholder or its authorized representatives will be permitted during
normal business hours to examine, inspect, and make copies and extracts of, the
Custodial Loan Files and any and all documents, records, agreements, instruments
or information relating to such Loans in the possession or under the control of
the Servicer, the Loan Originator and the Trust and/or the Custodian including
without limitation, copies of all internal credit analysis and professional
reports. The Servicer, 


                                     -155-
<PAGE>   163
the Loan Originator and the Trust also shall make available to the Initial Class
A Certificateholder a knowledgeable financial or accounting officer for the
purpose of answering questions respecting the Custodial Loan Files and the
Loans. Without limiting the generality of the foregoing, the Servicer, Loan
Originator and the Trust acknowledge that the Initial Class A Certificateholder
may purchase the Class A Certificates based solely upon the information provided
by each of the Servicer, Loan Originator and the Trust to the Initial Class A
Certificateholder in the Servicer's Loan Files and the representations,
warranties and covenants contained herein, and that the Initial Class A
Certificateholder, at its option, has the right at any time to conduct a partial
or complete due diligence review on some or all of the Loans securing such
purchase, including without limitation ordering new credit reports and new
appraisals on the related Mortgaged Properties and otherwise re-generating the
information used to originate such Loan. The Initial Class A Certificateholder
may underwrite such Loans itself or engage a mutually agreed upon third party
underwriter to perform such underwriting. The Servicer, the Loan Originator and
the Trust agree to cooperate with the Initial Class A Certificateholder and any
third party underwriter in connection with such underwriting, including, but not
limited to, providing the Initial Class A Certificateholder and any third party
underwriter with access to any and all documents, records, agreements,
instruments or information relating to such Loans in the possession or under the
control, of the Servicer, the Loan Originator and the Trust.


                                     -156-
<PAGE>   164
                  IN WITNESS WHEREOF, the Trust, the Depositor, the Servicer,
the Loan Originator, the Transfer Obligor and the Owner Trustee have caused
their names to be signed by their respective officers thereunto duly authorized,
as of the day and year first above written, to this TRUST AND SERVICING
AGREEMENT.

                           FINOVA COMMERCIAL MORTGAGE LOAN OWNER TRUST 1998-1,

                                 By: Wilmington Trust Company,
                                      not in its individual capacity
                                      but solely as Owner Trustee


                                By:              /s/ James P. Lawler     
                                    ------------------------------------------ 
                                    Name:   James P. Lawler
                                    Title:  Vice President

                           FINOVA REALTY CAPITAL WAREHOUSE FUNDING, L.P.,
                             as Depositor

                                By: FINOVA Warehouse Funding Inc.,
                                    as General Partner


                                By:                /s/ Melissa Huckins        
                                    ------------------------------------------ 
                                    Name:   Melissa Huckins
                                    Title:  Vice President - Assistant Treasurer

                                FINOVA CAPITAL CORPORATION,
                                  as Loan Originator


                                By:              /s/ Meilee Smythe             
                                    ------------------------------------------ 
                                    Name:   Meilee Smythe
                                    Title:  Senior Vice President - Treasurer

                                FINOVA CAPITAL CORPORATION,
                                  as Transfer Obligor


                                By:           /s/  Meilee Smythe 
                                    ------------------------------------------ 
                                      Name:   Meilee Smythe
                                      Title:  Senior Vice President - Treasurer
<PAGE>   165
                                FINOVA CAPITAL CORPORATION,
                                  as Servicer


                                By:          /s/  Bruno A. Marzowski  
                                    ------------------------------------------ 
                                      Name:   Bruno A. Marzowski
                                      Title:  Senior Vice President - Controller
                                              & Chief Financial Officer

                                WILMINGTON TRUST COMPANY,
                                  as Owner Trustee


                                By:         /s/ James P. Lawler 
                                    ------------------------------------------ 
                                      Name:   James P. Lawler
                                      Title:  Vice President

                                FINOVA WAREHOUSE FUNDING INC.,
                                as to Sections 4.01(p) to 4.01(u)


                                By:         /s/ Virginia Nelson  
                                    ------------------------------------------ 
                                      Name:   Virginia Nelson
                                      Title:  Vice President - Cash Management &
                                      Treasury Operations
<PAGE>   166
 THE STATE OF  New York        )
              ---------------- )
COUNTY OF    New York          )
          -------------------

                  BEFORE ME, the undersigned authority, a Notary Public, on this
24th day of September 1998 personally appeared James Lawler, known to me to be a
person and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said Wilmington Trust
Company, not in its individual capacity but in its capacity as Responsible
Officer of FINOVA COMMERCIAL MORTGAGE LOAN OWNER TRUST 1998-1 as Trust, and that
he executed the same as the act of such corporation for the purpose and
consideration therein expressed, and in the capacity therein stated.

                  GIVEN UNDER MY HAND AND SEAL OF WILMINGTON TRUST COMPANY this
the 24th day of September, 1998.

                                               /s/ Patricia A. Keogh
                                               Notary Public, State of New York
<PAGE>   167
THE STATE OF Arizona      )
                          )
COUNTY OF Maricopa        )

                  BEFORE ME, the undersigned authority, a Notary Public, on this
29th day of September 1998 personally appeared Melissa Huckins, known to me to
be the person and officer whose name is subscribed to the foregoing instrument
and acknowledged to me that the same was the act of the said FINOVA Warehouse
Funding Inc., the general partner of the Depositor, FINOVA Realty Capital
Warehouse Funding, L.P., and that she executed the same as the act of such
corporate for the purpose and consideration therein expressed, and in the
capacity therein stated.

                  GIVEN UNDER MY HAND AND SEAL OF this the 29th day of
September, 1998.

                                            /s/Gail B. McCollum
                                            Notary Public, State of Arizona
<PAGE>   168
THE STATE OF Arizona         )
                             )
COUNTY OF Maricopa           )

                  BEFORE ME, the undersigned authority, a Notary Public, on this
29th day of September 1998 personally appeared Meilee Smythe, known to me to be
the person and officer whose name is subscribed to the foregoing instrument and
acknowledged to me that the same was the act of the said FINOVA CAPITAL
CORPORATION as the Transfer Obligor, and that she executed the same as the act
of such entity for the purposes and consideration therein expressed, and in the
capacity therein stated.

                  GIVEN UNDER MY HAND AND SEAL OF this the 29th day of
September, 1998.

                                             /s/Gail B. McCollum
                                             Notary Public, State of Arizona
<PAGE>   169
THE STATE OF Arizona          )
                              )
COUNTY OF Maricopa            )

                  BEFORE ME, the undersigned authority, a Notary Public, on this
29th day of September 1998 personally appeared Virginia Nelson, known to me to
be the person and officer whose name is subscribed to the foregoing instrument
and acknowledged to me that the same was the act of the said FINOVA WAREHOUSE
FUNDING INC., and that she executed the same as the act of such entity for the
purposes and consideration therein expressed, and in the capacity therein
stated.

                  GIVEN UNDER MY HAND AND SEAL OF this the 29th day of
September, 1998.

                                                /s/ Gail B. McCollum
                                                Notary Public, State of Arizona


<PAGE>   170
                                    EXHIBIT D

                                   [Reserved]


                                      D-1
<PAGE>   171
                                   EXHIBIT E-1
                      TO THE TRUST AND SERVICING AGREEMENT

                           FORM OF CLASS A CERTIFICATE


                                      E-1
<PAGE>   172
                                    EXHIBIT F
                      TO THE TRUST AND SERVICING AGREEMENT

                            CERTIFICATE OF TRUST OF
               FINOVA COMMERCIAL MORTGAGE LOAN OWNER TRUST 1998-1

         THIS Certificate of Trust of FINOVA Commercial Mortgage Loan Owner
Trust 1998-1 (the "Trust"), dated September __, 1998, is being duly executed and
filed by Wilmington Trust Company, a Delaware banking corporation, as trustee,
to form a business trust under the Delaware Business Trust Act (12 Del. Code,
Section 3801 et seq.).

         1. Name. The name of the business trust formed hereby is FINOVA
Commercial Mortgage Loan Owner Trust 1998-1.
 
         2. Delaware Trustee. The name and business address of the trustee of
the Trust in the State of Delaware is Wilmington Trust Company, 1100 North
Market Street, Wilmington, Delaware, Attention: Corporate Trust Administration,
telecopy number: (302) 651-8882, telephone number: (302) 651-1000.

                                      * * *


                                      F-1
<PAGE>   173
         IN WITNESS WHEREOF, the undersigned, being the owner trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.

                                        WILMINGTON TRUST COMPANY,
                                              not in its individual capacity but
                                              solely as owner trustee under a 
                                              Trust and Servicing Agreement 
                                              dated as of September 1, 1998

                                        By:    ________________________________
                                               Name:
                                               Title:


                                       F-2
<PAGE>   174
                                    EXHIBIT G
                      TO THE TRUST AND SERVICING AGREEMENT

                                BAILEE AGREEMENT
                               September ___, 1998

[NAME OF BAILEE]
[ADDRESS OF BAILEE]
Attention: ______________________

         Re:      Bailee Agreement (the "Bailee Agreement") in connection with 
                  the sale of certain Loans by FINOVA Capital Corporation (the 
                  "Loan Originator") and FINOVA Realty Capital Warehouse 
                  Funding, L.P. (the "Depositor") to FINOVA Commercial Mortgage 
                  Loan Owner Trust 1998-1 (the "Trust").

Gentlemen and Mesdames:

         In consideration of the mutual promises set forth herein and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Loan Originator, Morgan Stanley Securitization Funding Inc.
(the "Initial Class A Certificateholder") and ________________________ (the
"Bailee") hereby agree as follows:

          1. The Loan Originator shall deliver to the Bailee in connection with
any Loans delivered to the Bailee hereunder an Identification Certificate in the
form of Attachment A attached hereto to which shall be attached a Loan Schedule
identifying which Loans are being delivered to the Bailee hereunder. Such Loan
Schedule shall contain the following fields of information: (i) the Loan
identifying number, (ii) the Borrower's name, (iii) the street address, city,
county, state and zip code of the related Mortgaged Property, (iv) the Transfer
Cutoff Date Principal Balance, (v) the Loan Interest Rate as of the Transfer
Cutoff Date, (vi) if such Loan is an Adjustable Rate Loan, the Index thereof,
the Gross Margin thereof, the Loan Interest Rate of the Loan, the Loan Interest
Rate Cap, the loan interest floor, if any, and the Interest Rate Adjustment Date
of the Loan, (vii) if such Loan is an Adjustable Rate Loan converting to a fixed
rate Loan, or vice versa, the conversion date thereof, (viii) whether the Loan
is a Commercial Loan or a Multifamily Loan, (ix) the origination date of the
Loan, (x) the maturity date of the Loan, (xi) the amount of the Monthly Payment,
(xii) the current Loan Interest Rate, (xiii) a flag indicating a balloon
payment, (xiv) the Appraised Value, (xv) the LTV, (xvi) whether a "lockout"
period exists, and if so, the duration thereof, and (xvii) the property type,
i.e. office or retail.

         2. On or prior to the date indicated on the Identification Certificate
delivered by the Loan Originator (the "Transfer Date"), the Loan Originator
shall have caused to be delivered to the Bailee, as bailee for hire, the
following original documents (collectively, 


                                      G-1
<PAGE>   175
the "Custodial Loan File") for each loan (the "Loans") listed in Exhibit 1
attached hereto (the "Loan Schedule"):

         (a)      The original Promissory Note bearing all intervening
                  endorsements, endorsed "Pay to the order of _________ without
                  recourse" and signed in the name of the last endorsee (the
                  "Last Endorsee") by an authorized Person (in the event that
                  the Loan was acquired by the Last Endorsee in a merger, the
                  signature must be in the following form: "[Last Endorsee],
                  successor by merger to [name of predecessor]"; in the event
                  that the Loan was acquired or originated by the Last Endorsee
                  while doing business under another name, the signature must be
                  in the following form: "[Last Endorsee], formerly known as
                  [previous name]"). 

         (b)      The original of any guarantee executed in connection with the
                  Promissory Note (if any).

         (c)      The original Mortgage with evidence of recording thereon, or a
                  copy thereof together with an Officer's Certificate of the
                  Loan Originator certifying that such represents a true and
                  correct copy of the original and that such original has been
                  submitted for recordation in the appropriate governmental
                  recording office of the jurisdiction where the Mortgaged
                  Property is located.

         (d)      The originals of all assumption, modification, consolidation
                  or extension agreements with evidence of recording thereon, or
                  copies thereof together with an Officer's Certificate of the
                  Loan Originator certifying that such represent true and
                  correct copies of the originals and that such originals have
                  each been submitted for recordation in the appropriate
                  governmental recording office of the jurisdiction where the
                  Mortgaged Property is located.
                  

         (e)      The original Assignment of Mortgage in blank for each Loan, in
                  form and substance acceptable for recording and signed in the
                  name of the Last Endorsee (in the event that the Loan was
                  acquired by the Last Endorsee in a merger, the signature must
                  be in the following form: "[Last Endorsee], successor by
                  merger to [name of predecessor]"; in the event that the Loan
                  was acquired or originated while doing business under another
                  name, the signature must be in the following form: "[Last
                  Endorsee], formerly known as [previous name]").
                  

         (f)      The originals of all intervening assignments of mortgage with
                  evidence of recording thereon, or copies thereof together with
                  an Officer's Certificate of the Loan Originator certifying
                  that such represent true and correct copies of the originals
                  and that such 


                                      G-2
<PAGE>   176
                  originals have each been submitted for recordation in the
                  appropriate governmental recording office of the jurisdiction
                  where the Mortgaged Property is located.
                  

         (g)      The original attorney's opinion of title and abstract of title
                  or the original mortgagee title insurance policy, or if the
                  original mortgagee title insurance policy has not been issued,
                  the irrevocable commitment to issue the same.

         (h)      The original of any security agreement, chattel mortgage or
                  equivalent document executed in connection with the Loan.

         (i)      The original assignment of leases and rents, if any, with
                  evidence of recording thereon, or a copy thereof together with
                  an Officer's Certificate of the Loan Originator certifying
                  that such copy represents a true and correct copy of the
                  original that has been submitted for recordation in the
                  appropriate governmental recording office of the jurisdiction
                  where the Mortgaged Property is located.

         (j)      The original assignment of assignment of leases and rents, if
                  any, from the Loan Originator in blank, in form and substance
                  acceptable for recording.

         (k)      A copy of the UCC-1 Financing Statements, certified as true
                  and correct by the Loan Originator, and all necessary UCC-3
                  Continuation Statements with evidence of filing thereon or
                  copies thereof certified by the Loan Originator to have been
                  sent for filing, and UCC-3 Assignments executed by the Loan
                  Originator in blank, which UCC-3 Assignments shall be in form
                  and substance acceptable for filing.

         (l)      An environmental indemnity agreement (if any).

         (m)      An omnibus assignment in blank (if any).

         (n)      A disbursement letter from the Borrower to the original
                  mortgagee (if any).
                  

         (o)      Borrower's certificate or title affidavit (if any).

         (p)      A survey of the Mortgaged Property (if any).

         (q)      A copy of the Borrower's opinion of counsel (if any).

         3. The Bailee shall issue and deliver to the Owner Trustee and the
Custodian prior to 10:00 a.m. New York City time on the Transfer Date by
facsimile (a) in the 


                                      G-3
<PAGE>   177
name of the Owner Trustee, an initial trust receipt and certification in the
form of Attachment B attached hereto (the "Trust Receipt") which Trust Receipt
shall state that the Bailee has received the documents comprising each Custodial
Loan File as listed in Paragraph 2 hereof for each Loan listed on the Loan
Schedule except for such documents listed on the Loan Schedule and Exception
report attached thereto and (b) a copy of the executed documents listed in
Paragraph 2(a), and (e). 

         For purposes of this Bailee Agreement:

         (a) the "Loan Schedule and Exception Report" shall mean a list of Loans
delivered by the Bailee to the Initial Class A Certificateholder and the Owner
Trustee on the Transfer Date, reflecting the Loans held by the Bailee for the
benefit of the Owner Trustee, which includes codes indicating any Exceptions
with respect to each Loan listed thereon. Each Loan Schedule and Exception
Report shall set forth (a) the Loans being conveyed to the Owner Trustee on the
Transfer Date as well as the Loans previously conveyed to the Owner Trustee (if
any) and held by the Bailee under this Bailee Agreement, and (b) all Exceptions
with respect thereto, with any updates thereto from the time last delivered; and

         (b) an "Exception" shall mean, with respect to any Loan, any of the
following: (i). the variances from the requirements of Section 2 hereof with
respect to the Custodial Loan Files (giving effect to the Loan Originator's
right to deliver certified copies in lieu of original documents in certain
circumstances), and (ii) any Loan with respect to which the Bailee receives
written notice or has actual knowledge of a lien or security interest in favor
of a person other than the Owner Trustee with respect to such Loan.

         4. On the applicable Transfer Date, in the event that the Initial Class
A Certificateholder fails to Purchase Class A Certificates secured by the Loans
identified in the related Identification Certificate, the Initial Class A
Certificateholder shall deliver by facsimile to the Bailee at ( ) ____-______ to
the attention of ______________ an authorization (the "Facsimile Authorization")
to release the Custodial Loan Files with respect to the Loans identified therein
to the Loan Originator. Upon receipt of such Facsimile Authorization, the Bailee
shall release the Custodial Loan Files to the Loan Originator in accordance with
the Loan Originator's instructions.

         5. Following the Transfer Date, the Bailee shall forward the Custodial
Loan Files to (i) LaSalle National Bank, 135 South LaSalle Street, Suite 1625,
Chicago, Illinois 60674-4107 Attention: FINOVA Commercial Mortgage Loan Owner
Trust 1998-1 c/o Mark Henrikson (the "Custodian") by insured overnight courier
for receipt by the Custodian or (ii) the Loan Originator at the direction of the
Initial Class A Certificateholder with respect to Loans for which the Bailee
received a Facsimile Authorization, in each case no later than three (3)
Business Days following the applicable Transfer Date (the "Delivery Date").

         6. From and after the applicable Transfer Date until the time of
receipt of the Facsimile Authorization, the Bailee (a) shall maintain continuous
custody and control of the related Custodial Loan Files as bailee for the Owner
Trustee unless the same are delivered to the Custodian in accordance with
paragraph 5, and (b) is holding the related Loans as sole and 


                                      G-4
<PAGE>   178
exclusive bailee for the Owner Trustee unless and until otherwise instructed in
writing by the Owner Trustee.

         7. The Loan Originator agrees to indemnify and hold the Bailee and its
directors, officers, agents and employees harmless against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever, including
reasonable attorney's fees, that may be imposed on, incurred by, or asserted
against it or them in any way relating to or arising out of this Bailee
Agreement or any action taken or not taken by it or them hereunder unless such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements were imposed on, incurred by or asserted
against the Bailee because of the breach by the Bailee of its obligations
hereunder, which breach was caused by negligence, lack of good faith or willful
misconduct on the part of the Bailee or any of its directors, officers, agents
or employees. The foregoing indemnification shall survive any resignation or
removal of the Bailee or the termination or assignment of this Bailee Agreement.

         8. (a) In the event that the Bailee fails to deliver a Promissory Note,
Assignment of Mortgage or any other document related to a Loan that was in its
possession (a "Custodial Delivery Failure"), and provided that the Bailee
previously delivered to the Owner Trustee a Trust Receipt which did not list
such document as an Exception on the Transfer Date; the Bailee shall indemnify
the Owner Trustee or Loan Originator in accordance with the succeeding paragraph
of this Section 8. 

            (b) The Bailee agrees to indemnify and hold the Owner Trustee and
Loan Originator, and their respective affiliates and designees harmless against
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever, including reasonable attorney's fees, that may be imposed on,
incurred by, or asserted against it or them in any way relating to or arising
out of a Custodial Delivery Failure or the Bailee's negligence, lack of good
faith or willful misconduct. The foregoing indemnification shall survive any
termination or assignment of this Bailee Agreement.

         9. The Bailee hereby represents, warrants and covenants that the Bailee
is not an affiliate of or otherwise controlled by the Loan Originator or its
Affiliates.

         10. The agreement set forth in this Bailee Agreement letter may not be
modified, amended or altered, except by written instrument, executed by all of
the parties hereto.

         11. This Bailee Agreement may not be assigned by the Loan Originator or
the Bailee without the prior written consent of the Initial Class A
Certificateholder.

         12. For the purpose of facilitating the execution of this Bailee
Agreement letter as herein provided and for other purposes, this Bailee
Agreement letter may be executed in any number of counterparts, each of which
counterparts shall be deemed to be an original, and such counterparts shall
constitute and be one and the same instrument.


                                      G-5
<PAGE>   179
         13. Capitalized words used and not otherwise defined herein have the
meanings assigned to them in the Trust and Servicing Agreement.


                                      G-6
<PAGE>   180
         14. THIS BAILEE AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE CHOICE OF LAWS PROVISIONS
THEREOF, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL
BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.

                                          FINOVA CAPITAL CORPORATION,
                                          Loan Originator

                                          By: ________________________________
                                             Name:
                                             Title:


                                          MORGAN STANLEY SECURITIZATION FUNDING 
                                          INC.,
                                          Initial Class A Certificateholder

                                          By: ________________________________
                                             Name:
                                             Title:

                                          [NAME OF BAILEE],
                                          Bailee

                                          By: _____________________________
                                          Name:
                                          Title:


                                       G-7
<PAGE>   181
                                  Attachment A

                           IDENTIFICATION CERTIFICATE

         On this _____ day of ____ __, 1998, FINOVA Capital Corporation
(the "Loan Originator"), under that certain Bailee Agreement, dated as of ____
__, 1998 (the "Bailee Agreement"), among the Loan Originator, ________________
(the "Bailee"), and Morgan Stanley Securitization Funding Inc., does hereby
instruct the Bailee to hold, in its capacity as Bailee, the Custodial Loan Files
with respect to the Loans listed on Exhibit 1 hereto, which Loans shall be
subject to the terms of the Bailee Agreement as of the date hereof. The Transfer
Date relating to the Custodial Loan File is___________.

         Capitalized terms used herein and not otherwise defined shall have the
meanings set forth in the Bailee Agreement.

         IN WITNESS WHEREOF, the Loan Originator has caused this Identification
Certificate to be executed and delivered by its duly authorized officer as of
the day and year first above written. 

                                        FINOVA CAPITAL CORPORATION 

                                        By:  ___________________________ 
                                             Name: 
                                             Title:
<PAGE>   182
                                                       Exhibit 1 to Attachment A

                                 [Loan Schedule]

<PAGE>   183
                                  Attachment B

                        TRUST RECEIPT AND CERTIFICATION

                                                                   ____ __, 1998

LaSalle National Bank, as Custodian
135 South LaSalle Street, Suite 1625
Chicago, Illinois 60674-4107
Attention:  FINOVA Commercial Mortgage
Loan Owner Trust 1998-1
c/o Mark Henrikson

         Re:      Bailee Letter, dated as of ______, 1998 (the "Bailee
                  Agreement") among FINOVA Capital Corporation, Morgan Stanley
                  Securitization Funding Inc., and ________________________ (the
                  "Bailee") 

Gentlemen and Mesdames:

         In accordance with the provisions of Paragraph 3 of the
above-referenced Bailee Agreement, the undersigned, as the Bailee, hereby
certifies that as to each loan described in the loan schedule (Exhibit 1), a
copy of which is attached hereto, it has reviewed the Custodial Loan File and
has determined that (subject to the exceptions listed in the Loan Schedule and
Exception Report attached hereto) (i) all documents listed in Paragraph 2 of the
Bailee Agreement are in its possession and (ii) such documents have been
reviewed by it and appear regular on their face and relate to such loan, and
(iii) based on its examination, the foregoing documents on their face satisfy
the requirements set forth in Paragraph 2 of the Bailee Agreement. 

         The Bailee hereby confirms that it is holding each such Custodial Loan
File as agent and bailee for the exclusive use and benefit of the Owner Trustee
pursuant to the terms of the Bailee Agreement.

         All initially capitalized terms used herein shall have the meanings
ascribed to them in the above-referenced Bailee Agreement. 


                                       ________________________________________
                                       BAILEE

                                       By: ____________________________________
                                           Name:
                                           Title:

<PAGE>   184
\                                   EXHIBIT H-1

                      TO THE TRUST AND SERVICING AGREEMENT

                     FORM OF RULE 144A TRANSFER CERTIFICATE

         Re:      FINOVA Commercial Mortgage Loan Asset-Backed Owner Trust
                  1998-1 Commercial Mortgage Loan Asset-Backed Certificates 
                  Series

         Reference is hereby made to the Trust and Servicing Agreement dated as
of September 1, 1998 (the "Trust and Servicing Agreement") among FINOVA
Commercial Mortgage Loan Owner Trust 1998-1 (the "Trust") FINOVA Capital
Corporation as Loan Originator, FINOVA Capital Corporation, as Transfer Obligor,
FINOVA Capital Corporation, as Servicer and Wilmington Trust Company (the "Owner
Trustee"). Capitalized terms used but not defined herein shall have the meanings
given to them in the Trust and Servicing Agreement.

         The undersigned (the "Transferor") has requested a transfer of
$_________ current principal balance Certificates to [insert name of
transferee]. 

         In connection with such request, and in respect of such Certificates,
the Transferor hereby certifies that:

                  (a) Such Certificates are being transferred in accordance with
(i) the transfer restrictions set forth in the Trust and Servicing Agreement and
the Certificates and (ii) Rule 144A under the Securities Act of 1933, as amended
to a purchaser that the Transferor reasonably believes is a "qualified
institutional buyer" within the meaning of Rule 144A purchasing for its own
account or for the account of a "qualified institutional buyer," which purchaser
is aware that the sale to it is being made in reliance upon Rule 144A, in a
transaction meeting the requirements of Rule 144A and in accordance with any
applicable securities laws of any state of the United States or any other
applicable jurisdiction.


                  (b) We have neither acquired nor will we transfer any
         Certificate we purchase (or any interest therein) or cause any such
         Certificates (or any interest therein) to be marketed on or through an
         "established securities market" within the meaning of section
         7704(b)(1) of the Internal Revenue Code of 1986, as amended (the
         "Code"), including, without limitation, an over-the-counter market or
         an interdealer quotation system that regularly disseminates firm buy or
         sell quotations. 

                  (c) We either (i) are not, and will not become, a partnership,
         Subchapter S corporation, or grantor trust for U.S. federal income tax
         purposes or (ii) are such an entity, but none of the direct or indirect
         beneficial owners of any of the interests in us have allowed or caused,
         or will allow or cause, 50% or more (or such other percentage as the
         Trust may establish prior to the time of such proposed transfer) of the
         value of such interests to be attributable to our ownership of
         Certificates.


                                     H-1-1
<PAGE>   185
                  (d) We understand that the opinion of counsel that the Trust
         is not a publicly traded partnership taxable as a corporation is
         dependent in part on the accuracy of the representations in paragraphs
         (c) and (d).

                  (e) We are a person who is either (A)(i) a citizen or resident
         of the United States, (ii) a corporation, partnership, or other entity
         organized in or under the laws of the United States or any political
         subdivision thereof or (iii) a person not described in (A)(i) or (ii)
         whose ownership of the Certificates is effectively connected with such
         person's conduct of a trade or business within the United States
         (within the meaning of the Code) and its ownership of any interest in a
         Certificate will not result in any withholding obligation with respect
         to any payments with respect to the Certificates by any person (other
         than withholding, if any, under Section 1446 of the Code) or (B) an
         estate the income of which is subject to United States federal income
         tax, regardless of source or a trust if a court within the United
         States is able to exercise primary supervision over the administration
         of such trust and one or more persons described in this paragraph have
         the authority to control all substantial decisions of such trust. We
         agree that we will provide a certification of non-foreign status signed
         under penalties of perjury and, alternatively, that if we are a person
         described in clause (A)(iii) above, we will furnish to the Trust a
         properly executed IRS Form 4224 and a new Form IRS 4224 upon the
         expiration or obsolescence of any previously delivered form (and such
         other certifications, representations or opinions of counsel as may be
         requested by the Trust).

                  (f) We understand that any purported transfer of any
         Certificate (or any interest therein) in contravention of the
         restrictions and conditions above will be null and void (each, a "Void
         Transfer"), and the purported transferee in a Void Transfer will not be
         recognized by the Trust or any other person as a Certificateholder for
         any purpose. 

                  (g) We agree that if we determine to transfer any of the
         Certificates we will cause our proposed transferee to provide the Trust
         and the Certificate Registrar a letter substantially in the form of
         this Exhibit H-1 or Exhibit H-2 to the Trust and Servicing Agreement,
         as applicable or such other written statement as the Trust shall
         prescribe.

         This certificate and the statements contained herein are made for your
benefit and the benefit of the Depositor.

                                         ______________________________________
                                         [Name of Transferor]


                                          By:  _________________________________
                                                Name:
                                                Title:
Dated: ________________, _______


                                      H-1-2
<PAGE>   186
                                   EXHIBIT H-2
                      TO THE TRUST AND SERVICING AGREEMENT
                         FORM OF PURCHASER'S LETTER FOR
                        INSTITUTIONAL ACCREDITED INVESTOR

                                                                          [Date]
Dear Sirs:

In connection with our proposed purchase of $_________________ Class A
Certificate Principal Balance Commercial Mortgage Loan Asset-Backed
Certificates, Series _________ (the "Offered Certificates") issued by FINOVA
Commercial Mortgage Loan Owner Trust 1998-1 (the "Trust"), we confirm that:

(1)      We understand that the Offered Certificates have not been, and will not
         be, registered under the Securities Act of 1933, as amended (the "1933
         Act") or any state securities laws, and may not be sold except as
         permitted in the following sentence. We agree, on our own behalf and on
         behalf of any accounts for which we are acting as hereinafter stated,
         that if we should sell any Offered Certificates we will do so only (A)
         pursuant to a registration statement which has been declared effective
         under the 1933 Act, (B) for so long as the Offered Certificates are
         eligible for resale pursuant to Rule 144A under the 1933 Act, to a
         Person we reasonably believe is a "qualified institutional buyer" as
         defined in Rule 144A that purchases for its own account or for the
         account of a qualified institutional buyer to whom notice is given that
         the transfer is being made in reliance on Rule 144A, (C) to an
         institutional "accredited investor" within the meaning of subparagraph
         (a)(1), (2), (3) or (7) of Rule 501 under the 1933 Act (an
         "Institutional Accredited Investor") that is acquiring the Offered
         Certificates for its own account, or for the account of such an
         Institutional Accredited Investor, for investment purposes and not with
         a view to, or for offer or sale in connection with, any distribution in
         violation of the 1933 Act, in each case in compliance with the
         requirements of the Trust and Servicing Agreement dated as of September
         1, 1998 among FINOVA Commercial Mortgage Loan Owner Trust 1998-1,
         FINOVA Capital Corporation, as Loan Originator, FINOVA Capital
         Corporation, as Transfer Obligor, FINOVA Capital Corporation, as
         Servicer, FINOVA Realty Capital Warehouse Funding, L.P., as Depositor
         and Wilmington Trust Company, as Owner Trustee, and applicable state
         securities laws; and we further agree, in the capacities stated above,
         to provide to any person purchasing any of the Offered Certificates
         from us a notice advising such purchaser that resales of the Offered
         Certificates are restricted as stated herein.

(2)      We understand that, in connection with any proposed resale of any
         Offered Certificates to an Institutional Accredited Investor, we will
         be required to furnish to the Owner Trustee and the Depositor a
         certification from such transferee as provided in Section 6.13 of the
         Trust and Servicing Agreement to confirm that the proposed sale is
         being made pursuant to an exemption from, or in a transaction not
         subject to, the 


                                     H-2-1
<PAGE>   187
         registration requirements of the 1933 Act and applicable state
         securities laws. We further understand that the Offered Certificates
         purchased by us will bear a legend to the foregoing effect.

(3)      We are acquiring the Offered Certificates for investment purposes and
         not with a view to, or for offer or sale in connection with, any
         distribution in violation of the 1933 Act. We have such knowledge and
         experience in financial and business matters as to be capable of
         evaluating the merits and risks of our investment in the Offered
         Certificates, and we and any account for which we are acting are each
         able to bear the economic risk of such investment.

(4)      We are an Institutional Accredited Investor and we are acquiring the
         Offered Certificates purchased by us for our own account or for one or
         more accounts (each of which is an Institutional Accredited Investor)
         as to each of which we exercise sole investment discretion.

(5)      We have received such information as we deem necessary in order to make
         our investment decision.

                  (a) We have neither acquired nor will we transfer any
         Certificate we purchase (or any interest therein) or cause any such
         Certificates (or any interest therein) to be marketed on or through an
         "established securities market" within the meaning of section
         7704(b)(1) of the Internal Revenue Code of 1986, as amended (the
         "Code"), including, without limitation, an over-the-counter market or
         an interdealer quotation system that regularly disseminates firm buy or
         sell quotations. 

                  (b) We either (i) are not, and will not become, a partnership,
         Subchapter S corporation, or grantor trust for U.S. federal income tax
         purposes or (ii) are such an entity, but none of the direct or indirect
         beneficial owners of any of the interests in us have allowed or caused,
         or will allow or cause, 50% or more (or such other percentage as the
         Trust may establish prior to the time of such proposed transfer) of the
         value of such interests to be attributable to our ownership of
         Certificates. 

                  (c) We understand that the opinion of counsel that the Trust
         is not a publicly traded partnership taxable as a corporation is
         dependent in part on the accuracy of the representations in paragraphs
         (c) and (d).

                  (d) We are a person who is either (A)(i) a citizen or resident
         of the United States, (ii) a corporation, partnership, or other entity
         organized in or under the laws of the United States or any political
         subdivision thereof or (iii) a person not described in (A)(i) or (ii)
         whose ownership of the Certificates is effectively connected with such
         person's conduct of a trade or business within the United States
         (within the meaning of the Code) and its ownership of any interest in a
         Certificate will not result in any withholding obligation with respect
         to any payments with respect to the Certificates by any person (other
         than withholding, if any, under Section 1446 of the Code) or (B) an
         estate the income of which is subject to United States federal income
         tax, regardless of 


                                     H-2-2
<PAGE>   188
         source or a trust if a court within the United States is able to
         exercise primary supervision over the administration of such trust and
         one or more persons described in this paragraph have the authority to
         control all substantial decisions of such trust. We agree that we will
         provide a certification of non-foreign status signed under penalties of
         perjury and, alternatively, that if we are a person described in clause
         (A)(iii) above, we will furnish to the Trust a properly executed IRS
         Form 4224 and a new Form IRS 4224 upon the expiration or obsolescence
         of any previously delivered form (and such other certifications,
         representations or opinions of counsel as may be requested by the
         Trust). 

         (e)      We understand that any purported transfer of any Certificate
                  (or any interest therein) in contravention of the restrictions
                  and conditions above will be null and void (each, a "Void
                  Transfer"), and the purported transferee in a Void Transfer
                  will not be recognized by the Trust or any other person as a
                  Certificateholder for any purpose. 

         (f)      We agree that if we determine to transfer any of the
                  Certificates we will cause our proposed transferee to provide
                  the Trust and the Certificate Registrar a letter substantially
                  in the form of this Exhibit H-1 or Exhibit H-2 to the Trust
                  and Servicing Agreement, as applicable or such other written
                  statement as the Trust shall prescribe. 

         Terms used in this letter which are not otherwise defined herein have
the respective meanings assigned thereto in the Trust and Servicing Agreement.


         You and the Depositor are entitled to rely upon this letter and are
irrevocably authorized to produce this letter or a copy hereof to any interested
party in any administrative or legal proceeding or official inquiry with respect
to the matters covered hereby. 

                                        Very truly yours,

                                        -------------------------------------
                                        [Purchaser]


                                        By: --------------------------------- 
                                             Name: 
                                             Title:



                                     H-2-3

<PAGE>   189

                                   EXHIBIT H-3
                      TO THE TRUST AND SERVICING AGREEMENT
                          [FORM OF TRANSFER AFFIDAVIT]

STATE OF _____________ )
                       )       ss.:
COUNTY OF ___________  )


         The undersigned, being first duly sworn, deposes and says as follows:

         1. The undersigned is the __________ of ________________________ (the
"Investor"), a [corporation duly organized] and existing under the laws of
_____________ on behalf of which he makes this affidavit.

         2. The Investor either (i) is not, and is not acquiring the Offered
Certificates on behalf of or with the assets of, an employee benefit plan or
other retirement plan or arrangement subject to Title I of ERISA or Section 4975
of the Code, or (b) is, or is acquiring the Offered Certificates on behalf of or
with the assets of, an employee benefit plan or other retirement plan or
arrangement subject to Title I of ERISA of Section 4975 of the Code and the
conditions for exemptive relief under at least one of the following prohibited
transaction class exemptions have been satisfied: Prohibited Transaction Class
Exemption ("PTCE") 96-23 (relating to transactions effected by an "in-house
asset manager"), PTCE 95-60 (relating to transactions involving insurance
company general accounts, PTCE 91-38 (relating to transactions involving bank
collective investment funds), PTCE 90-1 (relating to transactions involving
insurance company pooled separate accounts), and PTCE 84-14 (relating to
transactions effected by a "qualified professional asset manager").

         3. The Investor hereby acknowledges that under the terms of the Trust
and Servicing Agreement (the "Agreement") between FINOVA Commercial Mortgage
Loan Owner Trust 1998-1 and Wilmington Trust Company, as owner trustee, dated as
of September __, 1998, no transfer of the Class A Certificates shall be
permitted to be made to any person unless the Depositor and Owner Trustee have
received a certificate from such transferee in the form hereof.

                   [FOR TRANSFERS IN RELIANCE UPON RULE 144A]

         4. The Investor is a "qualified institutional buyer" (as such term is
defined under Rule 144A under the Securities Act of 1933, as amended (the "1933
Act"), and is acquiring the Offered Certificates for its own account or as a
fiduciary or agent for others (which others also are "qualified institutional
buyers"). The Investor is familiar with Rule 144A under the 1933 Act, and is
aware that the transferor of the Offered Certificates and other parties intend
to rely on the statements made herein and the exemption from the registration
requirements of the 1933 Act provided by Rule 144A.


                                     H-3-1
<PAGE>   190
         IN WITNESS WHEREOF, the Investor has caused this instrument to be
executed on its behalf, pursuant to proper authority, by its duly authorized
officer, duly attested, this_______ day of _____________, ____.


                                     _______________________________________
                                     [Investor]


                                     By:  __________________________________
                                          Name:
                                          Title:
ATTEST:

______________________



                                     H-3-2


<PAGE>   191
STATE OF _____________ )
                       )       ss.:
COUNTY OF ___________  )

         Personally appeared before me the above-named _________________, known
         or proved to me to be the same person who executed the foregoing
         instrument and to be the ___________ of the Investor, and acknowledged
         that he executed the same as his free act and deed and the free act and
         deed of the Investor. 

Subscribed and sworn before me this ______ day of _______________, 199__.



                                          ______________________________________
                                          NOTARY PUBLIC

                                          My commission expires the
                                          __________ day of ______________, ____




                                     H-3-3
<PAGE>   192
                                     ANNEX A

                               TAX CONSIDERATIONS


                  SECTION 1 Characterization of Trust for Tax Purposes. For
United States federal and state income tax purposes, it is the intention of the
Depositor and of each Holder that Trust shall be treated as a partnership (the
"Tax Partnership") whose partners are the Class A Certificateholders and the
Class B Certificateholders (which are hereinafter collectively referred to as
the "Tax Partners").

                  SECTION 2 Capital Contributions and Capital Accounts.

                  (a) The value of the interests represented by the Class A
Certificates shall equal the amount paid by the Class A Certificateholders for
such interests on the date of initial issuance thereof (the "Formation Date"),
or if such Class A Certificates are issued for property, the fair market value
of such property on the Formation Date, and such amounts shall constitute the
opening balance in their Capital Accounts (as hereinafter defined). The value of
the interests represented by the Class B Certificates shall equal the aggregate
fair market value of the Owner Trust Estate on the Formation Date less the value
attributed to the Class A Certificates as described above. Such amount shall
constitute the opening balance in the Class B Certificateholders' Capital
Accounts.

                  (b) An individual capital account (a "Capital Account") shall
be maintained for each Tax Partner in compliance with Treasury Regulations
Sections 1.704-1(b)(2)(iv) and 1.704-2 and accordingly, except as otherwise
provided herein:

                  (i) The Capital Account of each Tax Partner shall be credited
         by (A) the amount of cash and the fair market value of property other
         than cash contributed (or deemed contributed pursuant to Code Section
         708) by such Tax Partner to the Tax Partnership (net of any liabilities
         assumed by the Tax Partnership upon such contribution or to which such
         property is subject at the time of such contribution); and (B) the
         amount of any item of taxable income or gain and the amount of any item
         of income or gain exempt from tax allocated to such Tax Partner.

                  (ii) The Capital Account of each Tax Partner shall be debited
         by (A) the amount of any item of tax deduction or loss allocated to
         such Tax Partner; (B) such Tax Partner's allocable share of
         expenditures not deductible in computing taxable income and not
         properly chargeable as capital expenditures; and (C) the amount of cash
         and the fair market value of any property other than cash (net of any
         liabilities assumed by such Tax Partner or to which such property is
         subject at the time of distribution) distributed to such Tax Partner.

                  (iii) Immediately prior to any distribution of property in
         kind, the Tax Partners' Capital Accounts shall be adjusted by assuming
         that the distributed properties were sold for cash at their respective
         fair market values as of the date of distribution 


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                  and crediting or debiting each Tax Partner's Capital Account
                  with its respective share of the hypothetical gains or losses
                  resulting from such assumed sales in the same manner as gains
                  or losses on actual sales of such properties would be
                  allocated under Section 4 below.

                  (iv) The Owner Trustee or the Tax Matters Partner (as defined
                  herein) shall not make or cause to be made the election
                  provided under Section 754 of the Code. 

                  SECTION 3 Federal and State Income Tax Returns and Elections.

                  (a) The Tax Partners agree that the Depositor (or if the
         Depositor or an Affiliate thereof is not a Holder, the holder of the
         largest Percentage Interest in the Class B Certificates) shall serve as
         the "tax matters partner" (as such term is defined in Code Section
         6231(a)(7)) (the "Tax Matters Partner") of the Tax Partnership. The Tax
         Matters Partner shall (i) apply or cause application to be made to the
         Internal Revenue Service for a taxpayer identification number for the
         Tax Partnership, (ii) elect or cause an election to be made to adopt
         the accrual method of accounting and, if permitted by applicable
         federal tax law, the calendar year as the Tax Partnership's fiscal
         year, (iii) except as otherwise provided herein, make or cause to be
         made such other elections as it deems proper, and (iv) prepare, execute
         and file or cause to be prepared, executed and filed the necessary
         federal and state partnership income tax returns for the Tax
         Partnership. Each Tax Partner agrees to furnish the Tax Matters Partner
         with all pertinent information relating to activities under the Trust
         Agreement which is necessary for the Tax Matters Partner to prepare and
         file federal and state partnership returns. In acting as Tax Matters
         Partner, the Tax Matters Partner shall use its best efforts, but shall
         incur no liability to the other Tax Partners.

                  (b) Within 60 days after the end of each of the Tax
         Partnership's taxable years, the Tax Matters Partner shall send or
         cause to be sent to each Tax Partner who has been a Tax Partner at any
         time during the taxable year then ended such tax information as shall
         be necessary for the preparation by such Tax Partner of its federal
         income tax return and state income and other tax returns, if any, in
         states where the Tax Partnership is organized or is doing business.

                  SECTION 4 Allocations.

                     (a) (i) "Net Income" and "Net Loss" respectively, for any
                  period, means the income or losses of the Tax Partnership as
                  determined in accordance with the method of accounting
                  followed by the Tax Partnership for federal income tax
                  purposes, including, for all purposes, any income exempt from
                  tax and any expenditures of the Tax Partnership described in
                  Code Section 705(a)(2)(B); provided, however, (i) that any
                  item allocated under Section 4(c) shall be excluded from the
                  computation of Net Income and Net Loss and (ii) that if, as a
                  result of the contribution of an asset whose fair market value
                  differs from its adjusted basis for federal income tax
                  purposes or as a result of the revaluation of the Tax
                  Partnership's assets, the book value of any Tax Partnership
                  asset differs from its adjusted basis for federal income tax
                  purposes, gain, loss, depreciation and amortization with
                  respect to such asset shall be computed using


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                  the asset's book value consistently with the requirements of
                  Treasury Regulations Section 1.704-1(b)(2)(iv)(g). 

                  (ii) "Period" shall mean the calendar month; provided, that as
                  to the month in which the Formation Date occurs, "Period"
                  shall mean the period commencing on the Formation Date and
                  ending on the last day of that calendar month, and as to the
                  month in which the Tax Partnership terminates, "Period" shall
                  mean the period beginning on the first day of such month and
                  ending on the date of the Tax Partnership's termination. 

                  (b) The Tax Partners agree that the Tax Partnership's Net
         Income and Net Loss and each item of income, gain, loss or deduction
         entering into the computation thereof for any Fiscal Year shall be
         allocated by first allocating the Tax Partnership's Net Income and Net
         Loss (and each item of income, gain, loss, or deduction entering into
         the computation thereof) for each Period within such Fiscal Year (as if
         such Period were a complete fiscal year) and then aggregating the
         allocations for each Period within the Fiscal Year. In the case of the
         transfer of any interest in the Tax Partnership, the items of Net
         Income and Net Loss allocated for any Period with respect to the
         transferred interest shall be allocated to the holder of that interest
         on the first business day of the month following the end of such Period
         (or in the case of the Period in which the Tax Partnership terminates,
         the last day of such Period). If the Tax Matters Partner determines
         that this method of allocation of items of Net Income and Net Loss is
         not consistent with the requirements of the Code and applicable
         Treasury Regulations, it may revise such method of allocation to
         conform with such requirements. The Tax Partnership's Net Income and
         Net Loss for each Period within a Fiscal Year shall be allocated as
         follows: 

                  (i) Net Income for such Period shall be allocated as follows:

                           (A)(I) An amount of Net Income equal to the excess of
                  (x) the sum for such Period and each preceding period up to
                  the Period beginning with the Formation Date of (1) the
                  product of the Class A Certificate Interest Rate and (2) the
                  Class A Certificate Principal Balance for such Period (and
                  each such preceding period) LESS, if the initial issue price
                  of the Class A Certificates exceeded their initial Class A
                  Certificate Principal Balance, an amount equal to the excess
                  of the sum for such Period and each preceding Period up to the
                  Period beginning with the Formation Date, of that portion of
                  any excess of the initial issue price of the Class A
                  Certificates over their Class A Certificate Principal Balance
                  that would have accrued with respect to such Periods if the
                  Class A Certificates were indebtedness and such excess were
                  amortizable bond premium, over (y) all amounts previously
                  allocated to the Class A Certificateholders pursuant to this
                  Section 5.8(b)(1)(A)(I) shall be allocated 100% to the Class A
                  Certificateholders, in proportion to their holdings of Class A
                  Certificates; provided that the product of (1) and (2) in
                  clause (x) shall be computed on the basis of the actual number
                  of days 


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                  in a calendar month [and a 360 day year], and that any such
                  product shall be appropriately prorated for any Period that is
                  not a full calendar month in a manner consistent with the
                  computation of cash distributions with respect to such Periods
                  as provided by the Sale and Servicing Agreement. 

                           (II) If the Imputed Principal Balance of the Class A
                  Certificates exceeded their initial issue price, an amount of
                  Net Income equal to the excess of (x) the sum for such Period
                  and each preceding Period up to the Period beginning with the
                  Formation Date, of that portion of any excess of the Class A
                  Certificate Principal Balance of the Class A Certificates over
                  their initial issue price that would have accrued with respect
                  to such Periods if the Class A Certificates were indebtedness
                  and such excess were original issue discount over (y) all
                  amounts previously allocated to the Class A Certificateholders
                  pursuant to this Section 4(b)(1)(a)(II) shall be allocated
                  100% to the Class A Certificateholders, in proportion to their
                  holders of Class A Certificates. 

                           (B) Any remaining Net Income shall be allocated 100%
                  to the Class B Certificateholders. 

                  (ii) Net Losses for such Periods shall be allocated as
         follows: 

                           (A) 100% to the Class B Certificateholders until the
                  Adjusted Capital Account (as hereinafter defined) balance of
                  the Class B Certificateholders equals zero.

                           (B) 100% to the Class A Certificateholders, in
                  proportion to their holdings of Class A Certificates, until
                  the Adjusted Capital Account balances of the Class A
                  Certificateholders equal zero.

                           (C) Any remaining Net Losses shall be allocated 100%
                  to the Class B Certificateholders.

(c) (i) Any deductions attributable to (x) payments to the Owner Trustee and (y)
payments to the Servicer shall be specially allocated to the Class B
Certificateholders.

         (ii) If there is a net decrease in "partnership minimum gain" (within
the meaning of Treasury Regulations Section 1.704-2(d)) for a Fiscal Year, then
there shall be allocated to each Tax Partner items of income and gain for that
year equal to that Tax Partner's share of the net decrease in partnership
minimum gain (within the meaning of Treasury Regulations Section 1.704-2(g)(2)),
subject to the exceptions set forth in Treasury Regulations Sections
1.704-2(f)(2), (3) and (5), provided, that if the Tax Partnership has any
discretion as to an exception set forth pursuant to Treasury Regulations Section
1.704-2(f)(5), the Tax Matters Partner may exercise such discretion


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on behalf of the Tax Partnership. In the event the application of the minimum
gain chargeback requirement would cause a distortion in the economic arrangement
among the Tax Partners, the Tax Matters Partner shall request the Internal
Revenue Service to waive the minimum gain chargeback requirement pursuant to
Treasury Regulations Section 1.704-2(f)(4). The foregoing is intended to be a
"minimum gain chargeback" provision as described in Treasury Regulations Section
1.704-2(f) and shall be interpreted and applied in all respects in accordance
with that Treasury Regulation. 

         If during a Fiscal Year there is a net decrease in partner nonrecourse
debt minimum gain (as determined in accordance with Treasury Regulations Section
1.704-2(i)(3)), then, in addition to the amounts, if any, allocated pursuant to
the preceding paragraph, any Tax Partner with a share of that partner
nonrecourse debt minimum gain (determined in accordance with Treasury
Regulations Section 1.704-2(i)(5)) as of the beginning of the Fiscal Year shall,
subject to the exceptions set forth in Treasury Regulations Section
1.704-2(i)(4), including exceptions analogous to those provided pursuant to
Treasury Regulations Sections 1.704-2(f)(2), (3) and (5) (provided, that if the
Tax Partnership has any discretion as to an exception set forth pursuant to
Treasury Regulations Section 1.704-2(f)(5) as made applicable by Treasury
Regulations Section 1.704-2(i)(4), the Tax Matters Partner may exercise such
discretion on behalf of the Tax Partnership) be allocated items of income and
gain for the year (and, if necessary, for succeeding years) equal to that Tax
Partner's share of the net decrease in the partner nonrecourse minimum gain. If
the event the application of the minimum gain chargeback requirement would cause
a distortion in the economic arrangement among the Tax Partners, the Tax Matters
Partner shall request the Internal Revenue Service to waive the minimum gain
chargeback requirement pursuant to Treasury Regulations Sections 1.704-2(i)(4)
and 1.704-2(f)(4). The foregoing is intended to be the "chargeback of partner
nonrecourse debt minimum gain" required by Treasury Regulations Section
1.704-2(i)(4) and shall be interpreted and applied in all respects in accordance
with that Treasury Regulation. 

         (iii) If during any Fiscal Year of the Tax Partnership a Tax Partner
unexpectedly receives an adjustment, allocation or distribution described in
Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) or (6), which causes
or increases a deficit balance in the Tax Partner's Adjusted Capital Account (as
defined below), there shall be allocated to the Tax Partner items of income and
gain (consisting of a pro rata portion of each item of Tax Partnership income,
including gross income, and gain for such year) in an amount and manner
sufficient to eliminate such deficit as quickly as possible. The foregoing is
intended to be a "qualified income offset" provision as described in Treasury
Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted and applied in
all respects in accordance with the Treasury Regulations. 

                  A Tax Partner's "Adjusted Capital Account," at any time, shall
equal the Tax Partner's Capital Account at such time (x) increased by the sum of
(A) the amount of the Tax Partner's share of partnership minimum gain (as
defined in Treasury Regulations Section 1.704-1(g)(1) and (3)), (B) the amount
of the Tax Partner's share 


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of partner nonrecourse debt minimum gain (as defined in Treasury Regulations
Section 1.704-2(i)(5)), and (C) any amount of the deficit balance in its Capital
Account that the Tax Partner is obligated to restore on liquidation of the Tax
Partnership and (y) decreased by reasonably expected adjustments, allocations
and distributions described in Treasury Regulations Sections
1.704-1(b)(2)(ii)(d)(4), (5) and (6). 

         (iv) Notwithstanding anything to the contrary in this Section 4, Tax
Partnership losses, deductions, or Code Section 705(a)(2)(B) expenditures that
are attributable to a particular partner nonrecourse liability shall be
allocated to the Tax Partner that bears the economic risk of loss for the
liability in accordance with the rules of Treasury Regulations Section
1.704-2(i).

         (v) Notwithstanding any provision of Sections 4(b) and 4(c)(i), no
allocation of items of loss or deduction shall be made to a Tax Partner if it
would cause the Tax Partner to have a negative balance in its Adjusted Capital
Account. Allocations of items of loss or deduction that would be made to a Tax
Partner but for this Section 4(c)(v) shall instead be made first to the Class B
Certificateholders to the extent not inconsistent with this Section 4(c)(v), and
second, to the Class A Certificateholders. To the extent allocations of items of
loss or deduction cannot be made to any Tax Partner because of this Section
4(c)(v), such allocations shall be made to the Tax Partners in accordance with
Section 4(b) and Section 4(c)(i) notwithstanding this Section 4(c)(v).

         (vi) To the extent that any item of income, gain, loss or deduction has
been specially allocated pursuant to Sections 4(c)(iii) and (v) and such
allocation is inconsistent with the way in which the same amount otherwise would
have been allocated under Sections 4(b) and 4(c)(i), subsequent allocations
under Section 4(b) and 4(c)(i) shall be made, to the extent possible and without
duplication, in a manner consistent with Section 4(c)(ii), (iii), (iv) and (v)
which negate as rapidly as possible the effect of all such inconsistent
allocations.

         (vii) Any allocations made pursuant to this Section 4 shall be made in
the following order:

               (1) Section 4(c)(ii)

               (2) Section 4(c)(iii)
 
               (3) Section 4(c)(iv) 

               (4) Section 4(c)(vi) 

               (5) Section 4(c)(i) 

               (6) Section 4(b)(i) and (ii) 

These provisions shall be applied as if all distributions and allocations were
made at the end of the Fiscal Year. Where any provision depends on the Capital
Account of any Tax Partner, that Capital Account shall be determined after the
operation of all preceding provisions for the year. These allocations shall be
made consistently with the requirements of Treasury Regulations Section
1.704-2(j). 


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                  (d) The income, gains, losses, deductions and credits of the
Tax Partnership for federal, state and local income tax purposes shall be
allocated in the same manner as the corresponding items entering into the
computation of Net Income and Net Losses were allocated pursuant to Sections
4(b) and (c); provided that solely for federal, local and state income and
franchise tax purposes and not for book or Capital Account purposes, income,
gain, loss and deduction with respect to property properly carried on the Tax
Partnership's books at a value other than its tax basis shall be allocated (i)
in the case of property contributed in kind, in accordance with the requirements
of Code Section 704(c) and such Treasury Regulations as may be promulgated
thereunder from time to time, and (ii) in the case of other property, in
accordance with the principles of Code Section 704(c) and the Treasury
Regulations thereunder as incorporated among the requirements of the relevant
provisions of the Treasury Regulations under Code Section 704(b).

                  SECTION 5 Sale of Interests. The Tax Partners agree that any
sale by a Tax Partner of any ownership interest in a Trust Certificate shall be
deemed to be a sale of all or a portion of such Tax Partner's interest in the
Tax Partnership.

                  SECTION 6 Termination of a Tax Partner's Interest. Any
distribution by the Tax Partnership in termination of any Tax Partner's interest
in the Tax Partnership other than pursuant to Section 7 below shall be in an
amount of cash or property other than cash having a net fair market value equal
to the positive Capital Account balance of such Tax Partner at the time such
interest is terminated, after such Capital Account balance has been adjusted in
accordance with Sections 2 and 4 above for all operations preceding such
distribution and the applicable Treasury Regulations under Code Section 704(b),
and shall be made by the later of: (a) the end of the Tax Partnership's taxable
year in which such termination occurs; or (b) within 90 days after the date of
such termination.

                  SECTION 7 Distributions upon Termination. Upon termination of
the Agreement pursuant to its terms, the activities of the Tax Partners shall be
concluded and the assets subject to the Agreement shall be distributed to the
Tax Partners in the manner and in the order set forth below:

                  (a) Debts of the Tax Partnership created pursuant to the
         Agreement, other than to the Tax Partners, shall be paid.

                  (b) Debts owed among the Tax Partners created pursuant to the
         Agreement shall be paid.

                  (c) All cash on hand representing unexpended contributions by
         any Tax Partner shall be returned to the contributor.

                  (d) The Tax Partners' Capital Accounts shall be adjusted by:
         (i) assuming the sale of all remaining assets at their fair market
         values as of the date of termination of the Agreement; and (ii)
         debiting or crediting each Tax Partner's Capital Account with the Tax
         Partner's respective share of the hypothetical gains or losses
         resulting from such assumed sales in the same manner as such Tax
         Partner's Capital Account


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would be debited or credited under Section 4 above for gains or losses on actual
sales of such properties. 

                  (e) All Tax Partnership assets shall be distributed to the Tax
         Partners in accordance with their respective Capital Account balances
         as so adjusted by the later of (i) the end of the tax Partnership's
         taxable year in which the termination occurs, or (ii) within 90 days
         after the date of such termination, in the following order or priority:
         

                  (i) to the Class A Certificateholders; and

                  (ii) to the Class B Certificateholders.

                  If property subject to the Agreement is distributed pursuant
to this paragraph, the amount of the distribution shall be equal to the net fair
market value of the distributed property.

                  SECTION 8 Liability for Tax Matters. In no event shall the
Owner Trustee, the Depositor (or other Tax Matters Partner, as applicable) the
Servicer or the Transfer Obligor be liable for any liabilities, costs or
expenses of the Trust arising out of the application of any tax law, including
federal, state, foreign or local income or excise taxes or any other tax imposed
on or measured by income (or any interest, penalty or addition with respect
thereto or arising from a failure to comply therewith) except for any such
liability, cost or expense attributable to any act or omission by the Owner
Trustee, the Depositor (or other Tax Matters Partner, as applicable), the
Servicer or the Transfer Obligor as the case may be, in breach of its
obligations under this Agreement.


                                      AN-8