approved
by the Administrative Agent, in its sole discretion, by delivery of an Approval
Notice.
3.
As of the related Cut-Off Date, each such Loan Asset is not (a) a
participation interest in all or a portion of a loan (for the avoidance of
doubt, a syndication or co-lending interest which is not documented as a
participation interest shall not be deemed a participation interest), (b) a
letter of credit, (c) a bond, (d) a Structured Finance Obligation or (e) a
Floating Rate Note.
4.
As of the related Cut-Off Date, the Obligor with respect to each
such Loan Asset is organized under the laws of the United States or any state
thereof and domiciled in the United States, as reasonably determined by the
Administrative Agent.
5.
The funding obligations for each such Loan Asset and the Loan
Agreement under which such Loan Asset was created have been fully satisfied and
all sums available thereunder have been fully advanced, or if such Loan Asset is
a Revolving Loan Asset or Delayed Draw Loan Asset, then (a) the sum of (i) the
aggregate commitments under the
Sch. II- 1
Exhibit C
CONFORMED CUSTODY AGREEMENT
EXECUTION COPYExecution Version
Conformed Copy
CUSTODY AGREEMENT
dated as of September 16, 2011
by and among
FIFTH STREET FUNDING II, LLC
("Company"),
FIFTH STREET FINANCE CORP.
("Servicer" and "Transferor"),
SUMITOMO MITSUI BANKING CORPORATION
("Collateral Agent" and "Administrative Agent")
and
U.S. BANK NATIONAL ASSOCIATION
("Custodian")
TABLE OF CONTENTS
Page 1. DEFINITIONS 1 2. APPOINTMENT OF CUSTODIAN 45
3. DUTIES OF CUSTODIAN 56 4. REPORTING 1213 5. DEPOSIT IN U.S. SECURITIES
SYSTEMS 13 6. CERTAIN GENERAL TERMS 1314 7. COMPENSATION OF CUSTODIAN 1516 8.
RESPONSIBILITY OF CUSTODIAN 16 9. SECURITY CODES 1819 10. TAX LAW 1819 11.
EFFECTIVE PERIOD, TERMINATION AND AMENDMENT 19 12. REPRESENTATIONS AND
WARRANTIES; Covenants 20 13. PARTIES IN INTEREST; NO THIRD PARTY BENEFIT 2122
14. NOTICES 2122 15. CHOICE OF LAW AND JURISDICTION 2324 16. ENTIRE AGREEMENT;
COUNTERPARTS 2324 17. AMENDMENT; WAIVER 2324 18. SUCCESSOR AND ASSIGNS 24 19.
SEVERABILITY 2425 20. INSTRUMENT UNDER SEAL; HEADINGS 2425 21. REQUEST FOR
INSTRUCTIONS 2425 22. OTHER BUSINESS 2526 23. REPRODUCTION OF DOCUMENTS 2526 24.
CONFIDENTIALITY 2526 25. MISCELLANEOUS 2627 SCHEDULES
SCHEDULE A - Initial
Authorized Persons
i
THIS CUSTODY AGREEMENT (this "Agreement") is dated as of September 16, 2011 and
is by and among FIFTH STREET FUNDING II, LLC, a Delaware limited liability
company (or any successor or permitted assign hereunder, the "Company"), FIFTH
STREET FINANCE CORP., a Delaware corporation, as the servicer and as the
transferor (or any successor or permitted assign hereunder, the "Servicer" or
the "Transferor"), SUMITOMO MITSUI BANKING CORPORATION, a Japanese banking
corporation (or any successor or permitted assign acting as the collateral agent
or as the administrative agent hereunder, the "Collateral Agent" or the
"Administrative Agent", respectively, and "SMBC"), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association (or any successor or permitted
assign acting as custodian hereunder, the "Custodian").
RECITALS
WHEREAS, the Company, the Administrative Agent, the Collateral Agent and each