as the Borrower
as the Servicer and the Transferor
as the Administrative Agent
TIME PARTY HERETO,
as the Lenders
as the Lender Agents
as the Issuing Lender
as the Collateral Agent, Account Bank and Collateral Custodian
Page | ||||
ARTICLE I. DEFINITIONS | 2 | |||
Section 1.01 Certain Defined Terms | 2 | |||
Section 1.02 Other Terms | 37 | |||
Section 1.03 Computation of Time Periods | 37 | |||
Section 1.04 Interpretation | 37 | |||
ARTICLE II. THE FACILITY | 38 | |||
Section 2.01 Variable Funding Note and Advances | 38 | |||
Section 2.02 Procedure for Advances | 39 | |||
Section 2.03 Determination of Yield | 41 | |||
Section 2.04 Remittance Procedures | 41 | |||
Section 2.05 Instructions to the Collateral Agent and the Account Bank | 46 | |||
Section 2.06 Borrowing Base Deficiency Payments | 47 | |||
Section 2.07 Substitution and Sale of Loan Assets; Affiliate Transactions | 47 | |||
Section 2.08 Payments and Computations, Etc. | 51 | |||
Section 2.09 Non-Usage Fee | 52 | |||
Section 2.10 Increased Costs; Capital Adequacy | 53 | |||
Section 2.11 Taxes | 54 | |||
Section 2.12 Collateral Assignment of Agreements | 56 | |||
Section 2.13 Grant of a Security Interest | 56 | |||
Section 2.14 Evidence of Debt | 57 | |||
Section 2.15 Survival of Representations and Warranties | 57 | |||
Section 2.16 Release of Loan Assets | 57 | |||
Section 2.17 Treatment of Amounts Received by the Borrower | 58 | |||
Section 2.18 Prepayment; Termination | 58 | |||
Section 2.19 Extension of Stated Maturity Date and Reinvestment Period | 58 | |||
Section 2.20 Collections and Allocations | 59 | |||
Section 2.21 Reinvestment of Principal Collections | 60 | |||
Section 2.22 Increase of Commitment; Maximum Facility Amount | 61 | |||
Section 2.23 Letters of Credit | 62 | |||
ARTICLE III. CONDITIONS PRECEDENT | 65 |
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(continued)
Page | ||||
Section 3.01 Conditions Precedent to Effectiveness | 65 | |||
Section 3.02 Conditions Precedent to All Advances | 67 | |||
Section 3.03 Advances Do Not Constitute a Waiver | 69 | |||
Section 3.04 Conditions to Pledges of Loan Assets | 69 | |||
ARTICLE IV. REPRESENTATIONS AND WARRANTIES | 70 | |||
Section 4.01 Representations and Warranties of the Borrower | 70 | |||
Section 4.02 Representations and Warranties of the Borrower Relating to the Agreement and the Collateral Portfolio | 78 | |||
Section 4.03 Representations and Warranties of the Servicer | 79 | |||
Section 4.04 Representations and Warranties of the Collateral Agent | 83 | |||
Section 4.05 Representations and Warranties of each Lender | 83 | |||
Section 4.06 Representations and Warranties of the Collateral Custodian | 84 | |||
ARTICLE V. GENERAL COVENANTS | 84 | |||
Section 5.01 Affirmative Covenants of the Borrower | 84 | |||
Section 5.02 Negative Covenants of the Borrower | 91 | |||
Section 5.03 Affirmative Covenants of the Servicer | 94 | |||
Section 5.04 Negative Covenants of the Servicer | 98 | |||
Section 5.05 Affirmative Covenants of the Collateral Agent | 100 | |||
Section 5.06 Negative Covenants of the Collateral Agent | 100 | |||
Section 5.07 Affirmative Covenants of the Collateral Custodian | 100 | |||
Section 5.08 Negative Covenants of the Collateral Custodian | 100 | |||
Section 5.09 Covenants of the Borrower Relating to Hedging of Loan Assets | 101 | |||
ARTICLE VI. ADMINISTRATION AND SERVICING OF CONTRACTS | 101 | |||
Section 6.01 Appointment and Designation of the Servicer | 101 | |||
Section 6.02 Duties of the Servicer | 103 | |||
Section 6.03 Authorization of the Servicer | 106 | |||
Section 6.04 Collection of Payments; Accounts | 106 | |||
Section 6.05 Realization Upon Loan Assets | 108 | |||
Section 6.06 Servicing Compensation | 109 | |||
Section 6.07 Payment of Certain Expenses by Servicer | 109 |
-ii-
(continued)
Page | ||||
Section 6.08 Reports to the Administrative Agent; Account Statements; Servicing Information | 109 | |||
Section 6.09 Annual Statement as to Compliance | 111 | |||
Section 6.10 Annual Independent Public Accountant’s Servicing Reports | 111 | |||
Section 6.11 The Servicer Not to Resign | 111 | |||
ARTICLE VII. EVENTS OF DEFAULT | 112 | |||
Section 7.01 Events of Default | 112 | |||
Section 7.02 Additional Remedies of the Administrative Agent | 115 | |||
ARTICLE VIII. INDEMNIFICATION | 117 | |||
Section 8.01 Indemnities by the Borrower | 117 | |||
Section 8.02 Indemnities by Servicer | 120 | |||
Section 8.03 Legal Proceedings | 122 | |||
Section 8.04 After-Tax Basis | 122 | |||
ARTICLE IX. THE ADMINISTRATIVE AGENT AND LENDER AGENTS | 122 | |||
Section 9.01 The Administrative Agent | 122 | |||
Section 9.02 The Lender Agents | 127 | |||
ARTICLE X. COLLATERAL AGENT | 129 | |||
Section 10.01 Designation of Collateral Agent | 129 | |||
Section 10.02 Duties of Collateral Agent | 129 | |||
Section 10.03 Merger or Consolidation | 131 | |||
Section 10.04 Collateral Agent Compensation | 132 | |||
Section 10.05 Collateral Agent Removal | 132 | |||
Section 10.06 Limitation on Liability | 132 | |||
Section 10.07 Collateral Agent Resignation | 133 | |||
ARTICLE XI. MISCELLANEOUS | 134 | |||
Section 11.01 Amendments and Waivers | 134 | |||
Section 11.02 Notices, Etc. | 134 | |||
Section 11.03 No Waiver; Remedies | 135 | |||
Section 11.04 Binding Effect; Assignability; Multiple Lenders | 135 | |||
Section 11.05 Term of This Agreement | 136 |
-iii-
(continued)
Page | ||||
Section 11.06 GOVERNING LAW; JURY WAIVER | 136 | |||
Section 11.07 Costs, Expenses and Taxes | 136 | |||
Section 11.08 No Proceedings | 137 | |||
Section 11.09 Recourse Against Certain Parties | 137 | |||
Section 11.10 Execution in Counterparts; Severability; Integration | 138 | |||
Section 11.11 Consent to Jurisdiction; Service of Process | 139 | |||
Section 11.12 Characterization of Conveyances Pursuant to the Purchase and Sale Agreement | 139 | |||
Section 11.13 Confidentiality | 140 | |||
Section 11.14 Non-Confidentiality of Tax Treatment | 142 | |||
Section 11.15 Waiver of Set Off | 142 | |||
Section 11.16 Headings and Exhibits | 142 | |||
Section 11.17 Ratable Payments | 142 | |||
Section 11.18 Failure of Borrower or Servicer to Perform Certain Obligations | 143 | |||
Section 11.19 Power of Attorney | 143 | |||
Section 11.20 Delivery of Termination Statements, Releases, etc. | 143 | |||
ARTICLE XII. COLLATERAL CUSTODIAN | 143 | |||
Section 12.01 Designation of Collateral Custodian | 143 | |||
Section 12.02 Duties of Collateral Custodian | 144 | |||
Section 12.03 Merger or Consolidation | 146 | |||
Section 12.04 Collateral Custodian Compensation | 147 | |||
Section 12.05 Collateral Custodian Removal | 147 | |||
Section 12.06 Limitation on Liability | 147 | |||
Section 12.07 Collateral Custodian Resignation | 148 | |||
Section 12.08 Release of Documents | 148 | |||
Section 12.09 Return of Required Loan Documents | 149 | |||
Section 12.10 Access to Certain Documentation and Information Regarding the Collateral Portfolio; Audits of Servicer | 149 | |||
Section 12.11 Bailment | 150 |
-iv-
SCHEDULES | ||
SCHEDULE I | Conditions Precedent Documents | |
SCHEDULE II | Prior Names, Tradenames, Fictitious Names and “Doing Business As” Names | |
SCHEDULE III | Eligibility Criteria | |
SCHEDULE IV | Agreed-Upon Procedures For Independent Public Accountants | |
SCHEDULE V | Loan Asset Schedule | |
EXHIBITS | ||
EXHIBIT A | Form of Approval Notice | |
EXHIBIT B | Form of Assignment of Mortgage | |
EXHIBIT C | Form of Borrowing Base Certificate | |
EXHIBIT D | Form of Disbursement Request | |
EXHIBIT E | Form of Joinder Supplement | |
EXHIBIT F | Form of Notice of Borrowing | |
EXHIBIT G | Form of Notice of Reduction (Reduction of Advances Outstanding) | |
EXHIBIT H | [Reserved] | |
EXHIBIT I | Form of Variable Funding Note | |
EXHIBIT J | Form of Notice and Request for Consent | |
EXHIBIT K | Form of Certificate of Closing Attorneys | |
EXHIBIT L | Form of Servicing Report | |
EXHIBIT M | Form of Servicer’s Certificate (Servicing Report) | |
EXHIBIT N | Form of Release of Required Loan Documents | |
EXHIBIT O | Form of Transferee Letter | |
EXHIBIT P | Form of Power of Attorney for Servicer | |
EXHIBIT Q | Form of Power of Attorney for Borrower | |
EXHIBIT R | Form of Servicer’s Certificate (Loan Asset Register) | |
EXHIBIT S | Form of Letter of Credit Request | |
ANNEXES | ||
ANNEX A | Commitments |
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where: | YR | = | the Yield Rate applicable on such day; | |||||
L | = | the Advances Outstanding on such day; and |
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D | = | 360 or, to the extent the Yield Rate is the Base Rate, 365 or 366 days, as applicable; |
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THE BORROWER: | FIFTH STREET FUNDING, LLC | |||
By: | /s/ Bernard D. Berman | |||
Name: | Bernard D. Berman | |||
Title: | Vice President and Secretary | |||
10 Bank Street, 12th Floor
White Plains, NY 10606
Attention: Bernard D. Berman
Facsimile: (914) 328-4214
Phone: (914) 286-6800
A&R Loan and Servicing Agreement
THE SERVICER: | FIFTH STREET FINANCE CORP. | |||
By: | /s/ Bernard D. Berman | |||
Name: | Bernard D. Berman | |||
Title: | President and Secretary | |||
10 Bank Street, 12th Floor
White Plains, NY 10606
Attention: Bernard D. Berman
Facsimile: (914) 328-4214
Phone: (914) 286-6800
A&R Loan and Servicing Agreement
THE TRANSFEROR: | FIFTH STREET FINANCE CORP. | |||
By: | /s/ Bernard D. Berman | |||
Name: | Bernard D. Berman | |||
Title: | President and Secretary | |||
10 Bank Street, 12th Floor
White Plains, NY 10606
Attention: Bernard D. Berman
Facsimile: (914) 328-4214
Phone: (914) 286-6800
A&R Loan and Servicing Agreement
THE ADMINISTRATIVE AGENT: | WELLS FARGO SECURITIES, LLC | |||
By: | /s/ Matt Jensen | |||
Name: | Matt Jensen, CFA | |||
Title: | Vice President | |||
301 S. College Street, D1053-082
Charlotte, North Carolina 28288
Attention: Matthew Jensen
Facsimile No.: (704) 715-0089
Confirmation No: (704) 715-8582
A&R Loan and Servicing Agreement
INSTITUTIONAL LENDER AND ISSUING LENDER: | WACHOVIA BANK, NATIONAL ASSOCIATION | |||
By: | /s/ Kevin Sunday | |||
Name: | Kevin Sunday | |||
Title: | Director | |||
One Wachovia Center, Mail Code: NC0600
Charlotte, North Carolina 28288
Attention: Kevin Sunday
Facsimile No.: (704) 715-0067
Confirmation No: (704) 374-6230
A&R Loan and Servicing Agreement
THE COLLATERAL AGENT: | WELLS FARGO BANK, NATIONAL ASSOCIATION | |||
By: | /s/ Brian S. Smith | |||
Name: | BRIAN S. SMITH | |||
Title: | VICE PRESIDENT | |||
9062 Old Annapolis Rd.
Columbia, Maryland 21045
Attn: CDO Trust Services—Fifth Street
Funding, LLC
Fax: (281) 667-3933
Phone: (410) 884-2000
A&R Loan and Servicing Agreement
THE ACCOUNT BANK: | WELLS FARGO BANK, NATIONAL ASSOCIATION | |||
By: | /s/ Brian S. Smith | |||
Name: | BRIAN S. SMITH | |||
Title: | VICE PRESIDENT | |||
9062 Old Annapolis Rd.
Columbia, Maryland 21045
Attn: CDO Trust Services—Fifth Street
Funding, LLC
Fax: (281) 667-3933
Phone: (410) 884-2000
A&R Loan and Servicing Agreement
THE COLLATERAL CUSTODIAN: | WELLS FARGO BANK, NATIONAL ASSOCIATION | |||
By: | /s/ Brian S. Smith | |||
Name: BRIAN S. SMITH | ||||
Title: VICE PRESIDENT |
ABS Custody Vault
1055 10th Avenue SE
MAC N9401-011
Minneapolis, MN 55414
Attention: Corporate Trust Services — Asset-
Backed Securities Vault
Phone: (612) 667-8058
Fax: (612) 667-1080
Sixth Street and Marquette Avenue
MAC N9311-161
Minneapolis, MN 55479
Attention: Corporate Trust Services — Asset-
Backed Administration
Phone: (612) 667-8058
Fax: (612) 667-3464
9062 Old Annapolis Rd.
Columbia, Maryland 21045
Attn: CDO Trust Services—Fifth Street
Funding, LLC
Fax: (281) 667-3933
Phone: (410) 884-2000
A&R Loan and Servicing Agreement
Sch. I-1
Sch. I-2
Sch. I-3
AND “DOING BUSINESS AS” NAMES
Sch. II-1
Sch. III-1
Sch. III-2
Sch. III-3
Sch. III-4
Sch. III-5
INDEPENDENT PUBLIC ACCOUNTANTS
• | Loan Asset List: |
○ | Obligor classification | ||
○ | Current principal amount | ||
○ | Fixed/Floating | ||
○ | Index, spread, PIK | ||
○ | Loan Asset Maturity Date | ||
○ | Loan Asset Origination Date | ||
○ | Loan Asset Purchase Date | ||
○ | Industry Classification | ||
○ | Loan Asset Type | ||
○ | Moody’s and S&P ratings (if applicable) | ||
○ | Days Delinquent | ||
○ | Risk Rating | ||
○ | Cut-Off Date (the date that the Loan Asset is added to the facility) |
• | Borrowing Base | ||
• | Advances Outstanding | ||
• | Cash Reconciliation report | ||
• | Discretionary Sales Calculations, Substitution Calculations, Lien Release Dividend Calculations |
Sch. IV-1
(a) | Loan Asset Number | |
(b) | Obligor Name | |
(c) | Loan Asset Type (Note or Noteless) | |
(d) | Original Loan Asset Amount | |
(e) | Secured by Mortgage (Yes or No) |
Sch. V-1
Conduit Lender | Commitment | |||
Institutional Lender | Commitment | |||
Wells Fargo Bank, N.A. | $ | 100,000,000 |
Sch. V-2
EXHIBIT A | Form of Approval Notice | |
EXHIBIT B | Form of Assignment of Mortgage | |
EXHIBIT C | Form of Borrowing Base Certificate | |
EXHIBIT D | Form of Disbursement Request | |
EXHIBIT E | Form of Joinder Supplement | |
EXHIBIT F | Form of Notice of Borrowing | |
EXHIBIT G | Form of Notice of Reduction (Reduction of Advances Outstanding) | |
EXHIBIT H | [Reserved] | |
EXHIBIT I | Form of Variable Funding Note | |
EXHIBIT J | Form of Notice and Request for Consent | |
EXHIBIT K | Form of Certificate of Closing Attorneys | |
EXHIBIT L | Form of Servicing Report | |
EXHIBIT M | Form of Servicer’s Certificate (Servicing Report) | |
EXHIBIT N | Form of Release of Required Loan Documents | |
EXHIBIT O | Form of Transferee Letter | |
EXHIBIT P | Form of Power of Attorney for Servicer | |
EXHIBIT Q | Form of Power of Attorney for Borrower | |
EXHIBIT R | Form of Servicer’s Certificate (Loan Asset Register) | |
EXHIBIT S | Form of Letter of Credit Request |
APPROVAL NOTICE
DATE | ||||
ELIGIBLE LOAN ASSET INFORMATION | ||||
Obligor Name | ||||
Tranche Description | ||||
Par Amount | ||||
Purchase Price | ||||
Unfunded Exposure Amount | ||||
Pricing | ||||
Maturity Date | ||||
Approved Exceptions to Eligibility Criteria for Loan Asset | See Attached Schedule 1. | |||
ASSIGNED VALUE | ||||
Assigned Value | ||||
Applicable Percentage | ||||
WELLS FARGO SECURITIES LLC APPROVAL | ||||
Fifth Street Commitment Termination | ||||
Approval Good Until | ||||
Approval Conditioned Upon |
RECORDATION RETURN TO:
[Attorney name]
Dechert LLP
[Address]
OF LOCAL COUNSEL, PREPARED BY:
[Attorney name]
Dechert LLP
[Address]
DOCUMENTS
Ex. B-2
[Entity], a[State of Inc./Formation] [Entity Type] | ||||
[By: , its ] | ||||
[SEAL] | ||||
Name: | ||||
Title: |
STATE OF | ) | |||||
) | ss. | |||||
COUNTY OF | ) |
[Notarial Seal] | ||||
Printed Name: | ||||
My Commission Expires: |
To Exhibit B
[Modify/add/delete as appropriate] | ||
1. | [Loan Agreement, dated as of ____, 20__ (together with all amendments and supplements from time to time thereto), between and relating to a loan in the original principal amount of $ . | |
2. | Promissory Note dated ____, 20__ in the original principal amount of $ issued by in favor of , or order. | |
3. | Mortgage/Deed Trust, dated as of ____, 20__ together with all amendments and supplements from time to time thereto, in favor of [ , as mortgagee] [ as deed of trust trustee and as beneficiary] and , as secured party. | |
4. | Assignment of Leases, Rents, dated as of ____, 20__, (together with all amendments and supplements from time to time thereto), from ___, as assignor, to ___, as assignee. | |
5. | UCC-1 Financing Statements showing , as debtor, and , as secured party. | |
6. | [Reference other major loan documents, such as: loan agreement, credit agreement, note purchase agreement, acquisition agreement, intercreditor agreement, guarantees, insurance policies and assumption or substitution agreements.] |
1 | Capitalized terms used but not defined herein shall have the meaning ascribed to them in the . |
To Exhibit B
To Exhibit B
FIFTH STREET FUNDING, LLC, | ||||||
as the Borrower | ||||||
By: | ||||||
Name: | ||||||
Title: | ||||||
FIFTH STREET FINANCE CORP., | ||||||
as the Transferor and as the Servicer | ||||||
By: | ||||||
Name: | ||||||
Title: |
To Exhibit C
as the Collateral Agent and the Account Bank
9062 Old Annapolis Rd.
Columbia, Maryland 21045
Attn: CDO Trust Services—Fifth Street Funding, LLC
Facsimile: (281) 667-3933
Phone: (410) 884-2000
as the Administrative
Agent One Wachovia Center, Mail Code: NC0600
Charlotte, North Carolina 28288
Attention: Kevin Sunday
Facsimile No.: (704) 715-0067
Confirmation No: (704) 374-6230
Bank Name: | ||||
ABA No.: | ||||
Account Name: | ||||
Account No.: | ||||
Reference: | ] |
DISBURSEMENTS PURSUANT TO SECTION 2.21]
FIFTH STREET FUNDING, LLC, | ||||||
as the Borrower | ||||||
By: | ||||||
Title: | ||||||
FIFTH STREET FINANCE CORP., | ||||||
as the Servicer | ||||||
By: | ||||||
Title: |
JOINDER SUPPLEMENT
JOINDER SUPPLEMENT
SIGNATURES FOR JOINDER SUPPLEMENT
Re: Amended and Restated Loan and Servicing Agreement, dated as of November 5, 2010, among Fifth Street Funding, LLC, as Borrower, the other parties thereto and Wells Fargo Securities, LLC, as Administrative Agent. |
Item 1: | Date of Joinder Supplement: | |||
Item 2: | Proposed Lender: | |||
Item 3: | Type of Lender: | Conduit Lender | ||
Institutional Lender | ||||
Item 4: | Commitment: | |||
Commitment Termination Date: | ||||
Item 5: | Name of Lender Agent (if a Conduit Lender): | |||
Item 6: | Signatures of Parties to Agreement: |
, | ||||||
as Proposed Lender | ||||||
By: | ||||||
Title: | ||||||
, as Proposed | ||||||
Lender Agent | ||||||
By: | ||||||
Title: |
FIFTH STREET FUNDING, LLC, | ||||||
as Borrower | ||||||
By: | ||||||
Title: | ||||||
WELLS FARGO SECURITIES, LLC,as | ||||||
Administrative Agent | ||||||
By: | ||||||
Title: | ||||||
WELLS FARGO BANK, NATIONAL ASSOCIATION, | ||||||
as Collateral Agent | ||||||
By: | ||||||
Title: | ||||||
[NAME OF LENDER AGENT][NAME OF | ||||||
INSTITUTIONAL LENDER], as [Lender | ||||||
Agent][Institutional Lender] | ||||||
By: | ||||||
Title: |
[NAME OF CONDUIT LENDER], as | ||||||
[Conduit Lender] | ||||||
By: | ||||||
Title: |
JOINDER SUPPLEMENT
AND
WIRE INSTRUCTIONS
Address for Notices: | ||||||
Telephone: | ||||||
Facsimile: | ||||||
email: | ||||||
With a copy to: | ||||||
Telephone: | ||||||
Facsimile: | ||||||
email: | ||||||
Wire Instructions: | Name of Bank: | |||||
A/C No.: | ||||||
ABA No. | ||||||
Reference: | ||||||
JOINDER SUPPLEMENT
JOINDER EFFECTIVE NOTICE
Very truly yours, | ||||||
WELLS FARGO SECURITIES, LLC, | ||||||
as Administrative Agent | ||||||
By: | ||||||
Title: |
To: | Wells Fargo Securities, LLC | Wells Fargo Bank, National Association | ||
as the Administrative Agent | as the Collateral Custodian | |||
One Wachovia Center, Mail Code: NC0600 | ABS Custody Vault | |||
Charlotte, North Carolina 28288 | 1055 10th Ave SE | |||
Attention: Kevin Sunday | MAC N9401-011 | |||
Facsimile No.: (704) 715-0067 | Minneapolis, Minnesota 55414 | |||
Confirmation No: (704) 374-6230 | Attention: Corporate Trust Services — | |||
Asset-Backed Securities Vault | ||||
[Lender Agent Name and Address] | Facsimile No.: (612) 667-8058 | |||
Phone No.: (612) 667-1080 | ||||
With a copy to: | With a copy to: | |||
Wells Fargo Bank, National Association | Wells Fargo Bank, National Association | |||
as the Collateral Agent | Sixth Street and Marquette Avenue | |||
9062 Old Annapolis Rd. | MAC N9311-161 | |||
Columbia, Maryland 21045 | Minneapolis, MN 55479 | |||
Attention: CDO Trust Services—Fifth Street | Attention: Corporate Trust Services — | |||
Funding, LLC | Asset-Backed Administration | |||
Facsimile: (281) 667-3933 | Phone: (612) 667-8058 | |||
Phone: (410) 884-2000 | Facsimile: (612) 667-3464 |
FIFTH STREET FUNDING, LLC, | ||||||
as the Borrower | ||||||
By: | ||||||
Title: | ||||||
FIFTH STREET FINANCE CORP., | ||||||
as the Servicer | ||||||
By: | ||||||
Title: |
as the Administrative Agent
One Wachovia Center, Mail Code: NC0600
Charlotte, North Carolina 28288
Attention: Kevin Sunday
Facsimile No.: (704) 715-0067
Confirmation No: (704) 374-6230
as the Collateral Agent
9062 Old Annapolis Rd.
Columbia, Maryland 21045
Attn: CDO Trust Services—Fifth Street Funding, LLC
Facsimile: (281) 667-3933
Phone: (410) 884-2000
FIFTH STREET FUNDING, LLC, | ||||||
as the Borrower | ||||||
By: | ||||||
Title: | ||||||
FIFTH STREET FINANCE CORP., | ||||||
as the Servicer | ||||||
By: | ||||||
Title: |
$ | [ ] [__], 2010 |
FIFTH STREET FUNDING, LLC | ||||||
By: | ||||||
Title: |
Date of | Principal | |||||
Advance or L/C | Amount of | Principal | Outstanding | |||
Advance or | Advance or L/C | Amount of | Principal | |||
Repayment | Advance | Repayment | Amount | |||
Ex. J-1
Ex. J-2
FIFTH STREET FUNDING, LLC, as the Borrower | ||||||
By: | ||||||
Title: | ||||||
FIFTH STREET FINANCE CORP., as the Transferor | ||||||
By: | ||||||
Title: |
Ex. J-3
TO THE LIEN RELEASE DIVIDEND
TO BE MADE ON [________] [____], 20[___]
as the Administrative Agent
By: | ||||
Title: |
Ex. J-4
To Notice and
Request for Consent
and Transferred by Borrower to Transferor
Ex. J-5
[_] [_], 20[_]
Wells Fargo Bank, National Association | Wells Fargo Bank, National Association | |
as the Collateral Custodian | Sixth Street and Marquette Avenue | |
ABS Custody Vault | MAC N9311-161 | |
1055 10th Ave SE | Minneapolis, MN 55479 | |
MAC N9401-011 | Attention: Corporate Trust Services — Asset- | |
Minneapolis, Minnesota 55414 | Backed Administration | |
Attention: Corporate Trust Services — Asset- | Phone: (612) 667-8058 | |
Backed Securities Vault | Facsimile: (612) 667-3464 | |
Facsimile No.: (612) 667-8058 | ||
Phone No.: (612) 667-1080 | With a copy to: | |
With a copy to: | Wells Fargo Bank, National Association | |
9062 Old Annapolis Rd. | ||
Wells Fargo Securities, LLC | Columbia, Maryland 21045 | |
as the Administrative Agent | Attention: CDO Trust Services—Fifth Street | |
One Wachovia Center, Mail Code: NC0600 | Funding, LLC | |
Charlotte, North Carolina 28288 | Facsimile: (281) 667-3933 | |
Attention: Kevin Sunday | Phone: (410) 884-2000 | |
Facsimile No.: (704) 715-0067 | ||
Confirmation No: (704) 374-6230 |
Re: | Loan Assets in the aggregate principal amount of $ (collectively, the “Loan Assets”) made to [Name of Obligor] (the “Obligor”) |
Ex. K-1
1. | The security interest and the rights in the Required Loan Documents granted to the Collateral Agent, for the benefit of the Secured Parties, are paramount and superior to the rights of the Transferor and the Borrower. |
2. | Outside Counsel shall not be required to perform any duties other than the duties expressly set forth in this letter. No implied obligations or duties shall be inferred by any other agreement, written or verbal, or any representation made by any party. |
3. | Outside Counsel is authorized to comply with and obey laws, orders, judgments, decrees and regulations of any governmental authority, court, tribunal or arbitrator. If Outside Counsel complies with any such law, order, judgment, decree or regulation Outside Counsel shall not be liable to the Collateral Custodian, the Collateral Agent, the Administrative Agent, the Transferor or the Borrower or to any other person even if such law, order, judgment, decree or regulation is subsequently reversed, modified, annulled, set aside, vacated, found to have been entered without jurisdiction, or found to be in violation or beyond the scope of the law. |
Ex. K-2
4. | Outside Counsel shall be responsible hereunder solely to hold the original promissory note(s) for the account of the Collateral Agent, on behalf of the Secured Parties and to deliver the original promissory note(s) and the other relevant documents to the Collateral Custodian in accordance with the terms of this letter. |
5. | Outside Counsel may act relative hereto upon the advice of counsel in reference to any matter in connection herewith and shall not be liable for any mistakes of fact or errors of judgment, or for any acts or omissions of any kind unless caused by its own willful misconduct or gross negligence. |
6. | Outside Counsel shall be entitled to rely or act upon any notice, direction, instrument or document believed by Outside Counsel to be genuine and to be executed and delivered by the proper person and shall have no obligation to verify any statements contained in any notice, instrument or document or the accuracy or due authorization of the execution of any notice, instrument or document. |
7. | Outside Counsel shall not be responsible or liable in any manner whatsoever for (a) the sufficiency, correctness, genuineness or validity of any document, agreement or instrument delivered to it, (b) the form of execution of any such document, agreement or instrument, (c) the identity, authority or rights of any person executing or delivering any such document, agreement or instrument, or (d) the terms and conditions of any instrument pursuant to which the parties may act. |
8. | Outside Counsel may serve and shall continue to serve as counsel to the Transferor in connection with the transactions contemplated by the Collateral Portfolio and other matters, and notwithstanding anything herein to the contrary, may represent the Transferor (or any affiliate) as its counsel in any action, suit or other proceeding in which the Collateral Custodian, the Collateral Agent, the Administrative Agent or the Transferor (or any affiliate) may be involved. |
9. | Outside Counsel shall be deemed to have satisfied any delivery requirement set forth herein if it shall have deposited the relevant documents for uninsured overnight delivery (properly addressed) with FedEx, UPS or other overnight courier of national standing. |
Very truly yours, | ||||||
By: | ||||||
Title: |
Ex. K-3
ACCEPTED AND AGREED: | ||||||
FIFTH STREET FINANCE CORP., as the Transferor and as the Servicer | ||||||
By: | ||||||
Title: | ||||||
WELLS FARGO BANK, NATIONAL ASSOCIATION,as the Collateral Agent, the Account Bank and the Collateral Custodian | ||||||
By: | ||||||
Title: | ||||||
WELLS FARGO SECURITIES, LLC,as the Administrative Agent | ||||||
By: | ||||||
Title: | ||||||
FIFTH STREET FUNDING, LLC,as the Borrower | ||||||
By: | ||||||
Title: |
Ex. K-4
to Certificate
of Closing Attorneys
Ex. K-5
Ex. L-1
(SERVICING REPORT)
(SERVICING REPORT)
A. | Fifth Street Finance Corp. is the Servicer under the Loan and Servicing Agreement. | ||
B. | The undersigned hereby certifies to the Administrative Agent, the Collateral Agent, the Lenders, the Lender Agents and the other Secured Parties that, as of the date hereof, no Event of Default has occurred and no Unmatured Event of Default exists (other than any Event of Default or Unmatured Event of Default which has been previously disclosed to the Administrative Agent as such). | ||
C. | The undersigned hereby certifies to the Administrative Agent, the Collateral Agent, the Lenders, the Lender Agents and the other Secured Parties that, as of the date hereof, each of the representations and warranties contained in the Loan and Servicing Agreement is true, correct and complete in all respects (other than any representation or warranty that is made as of a specific date). | ||
D. | The undersigned hereby certifies to the Administrative Agent, the Collateral Agent, the Lenders, the Lender Agents and the other Secured Parties that all of the foregoing information and all of the information set forth on the attached Schedule A is true, complete and accurate in all respects as of the date hereof. |
Ex. M-1
FIFTH STREET FINANCE CORP., as the Servicer | ||||||
By: | ||||||
Title: |
Ex. M-2
to Exhibit M
Ex. M-3
Wells Fargo Bank, National Association | Wells Fargo Bank, National Association | |
as the Collateral Custodian | Sixth Street and Marquette Avenue | |
ABS Custody Vault | MAC N9311-161 | |
1055 10th Ave SE | Minneapolis, MN 55479 | |
MAC N9401-011 | Attention: Corporate Trust Services — Asset- | |
Minneapolis, Minnesota 55414 | Backed Administration | |
Attention: Corporate Trust Services — Asset- | Phone: (612) 667-8058 | |
Backed Securities Vault | Facsimile: (612) 667-3464 | |
Facsimile No.: (612) 667-8058 | ||
Phone No.: (612) 667-1080 | With a copy to: | |
With a copy to: | Wells Fargo Bank, National Association | |
9062 Old Annapolis Rd. | ||
Wells Fargo Bank, National Association | Columbia, Maryland 21045 | |
as Collateral Agent | Attention: CDO Trust Services—Fifth Street | |
9062 Old Annapolis Rd. | Funding, LLC | |
Columbia, Maryland 21045 | Facsimile: (281) 667-3933 | |
Attention: CDO Trust Services—Fifth Street | Phone: (410) 884-2000 | |
Funding | ||
Facsimile: (281) 667-3933 | ||
Phone: (410) 884-2000 |
Re: | Amended and Restated Loan and Servicing Agreement, dated as of November 5, 2010 (as amended, modified, waived, supplemented or restated from time to time, the “Loan and Servicing Agreement”), by and among Fifth Street Funding, LLC, as the borrower (in such capacity, the “Borrower”), Fifth Street Finance Corp., as the transferor (in such capacity, the “Transferor”) and as the servicer (in such capacity, the “Servicer”), Wells Fargo Securities, LLC, as the administrative agent (in such capacity, the “Administrative Agent”), each of the Conduit Lenders and Institutional Lenders from time to time party thereto (the “Lenders”), each of the Lender Agents from time to time party thereto (the “Lender Agents”) and Wells Fargo Bank, National Association, as the collateral agent (in such capacity, the “Collateral Agent”), as the account bank (in such capacity, the “Account Bank”) and as the collateral custodian (in such capacity, the “Collateral Custodian”). |
Ex. N-1
Ex. N-2
___ 1. | Loan Asset paid in full. (The Servicer hereby certifies that all amounts received in connection with such Loan Asset have been credited to the Collection Account.) | |
___ 2. | Loan Asset liquidated by . (The Servicer hereby certifies that all proceeds of foreclosure, insurance, condemnation or other liquidation have been finally received and credited to the Collection Account.) | |
___ 3. | Loan Asset in foreclosure. | |
___ 4. | Loan Asset released pursuant to a Lien Release Dividend or sold or substituted in accordance with the applicable provisions of Section 2.07. | |
___ 5. | Loan Asset returned due to a failure to satisfy the Review Criteria pursuant to Section 12.02(b)(i). | |
___ 6. | Other (explain). |
Ex. N-3
FIFTH STREET FINANCE CORP., as the Servicer | ||||||
By: | ||||||
Title: | ||||||
Date: |
Ex. N-4
WELLS FARGO SECURITIES, LLC,as the Administrative Agent | ||||||
By: | ||||||
Title: | ||||||
Date: |
Ex. N-5
as the Transferor and as the Servicer
10 Bank Street, 12th Floor
White Plains, NY 10606
Attention: Bernard D. Berman
Facsimile No.: (914) 328-4214
Confirmation No.: (914) 286-6800
as the Borrower
10 Bank Street, 12th Floor
White Plains, NY 10606
Attention: Bernard D. Berman
Facsimile No.: (914) 328-4214
Confirmation No.: (914) 286-6800
as the Administrative Agent
One Wachovia Center, Mail Code: NC0600
Charlotte, North Carolina 28288
Attention: Kevin Sunday
Facsimile No.: (704) 715-0067
Confirmation No: (704) 374-6230
Ex. O-1
Very truly yours, | ||||||
Print Name of Transferee | ||||||
By: | ||||||
Ex. O-2
FIFTH STREET FINANCE CORP.
Ex. P-1
Ex. P-2
Ex. P-3
FIFTH STREET FINANCE CORP. | ||||||
By: | ||||||
Title: |
me this November 16, 2009:
Notary Public
Ex. P-4
FIFTH STREET FUNDING, LLC
Ex. Q-1
Ex. Q-2
FIFTH STREET FUNDING, LLC | ||||||
By: | ||||||
Title: |
me this November 16, 2009:
Notary Public
Ex. Q-3
(LOAN ASSET REGISTER)
(LOAN ASSET REGISTER)
A. | Fifth Street Finance Corp. is the Servicer under the Loan and Servicing Agreement. | ||
B. | The undersigned hereby certifies to the Administrative Agent, the Collateral Agent, the Collateral Custodian, the Lenders, the Lender Agents and the other Secured Parties that all of the foregoing information and all of the information set forth on the attached Schedule A is true, complete and accurate in all respects as of the date hereof. |
Ex. R-1
FIFTH STREET FINANCE CORP., as the Servicer | ||||||
By: | ||||||
Title: |
Ex. R-2
to Exhibit R
Ex. R-3
301 S. College Street, D1053-082
Charlotte, NC 28288
Facsimile No.: (704) 715-0067
via e-mail: scp.mmloans@wellsfargo.com
the Issuing Lender
Attention:
[Address]
Facsimile:
1. | Business Day on which issuance is requested: | ||
2. | Original Face Amount of Proposed Letter of Credit: | ||
3. | Beneficiary: |
Ex. S-1
4. | Purpose and Nature of Proposed Letter of Credit: | ||
5. | Documents to be presented for drawing: | ||
6. | Delivery instructions: | ||
7. | Letter of Credit format (see attached): |
Very truly yours, | ||||||
FIFTH STREET FUNDING, LLC,as the Borrower | ||||||
By: | ||||||
Title: |
Ex. S-2