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)
ANNEXES
ANNEX A
Commitments
-v-
This LOAN AND SERVICING AGREEMENT is made as of November 16, 2009,
among:
(1) FIFTH STREET FUNDING, LLC, a Delaware limited liability company
(together with its successors and assigns in such capacity, the "Borrower");
(2) FIFTH STREET FINANCE CORP., a Delaware corporation, as the Servicer (as
defined herein) and the Transferor (as defined herein);
(3) EACH OF THE CONDUIT LENDERS FROM TIME TO TIME PARTY HERETO, as a
Conduit Lender;
(4) EACH OF THE INSTITUTIONAL LENDERS FROM TIME TO TIME PARTY HERETO, as an
Institutional Lender;
(5) EACH OF THE LENDER AGENTS FROM TIME TO TIME PARTY HERETO, as a Lender
Agent;
(6) WELLS FARGO SECURITIES, LLC, as Administrative Agent ("Administrative
Agent"); and
(7) WELLS FARGO BANK, NATIONAL ASSOCIATION ("Wells Fargo"), as the
Collateral Agent (together with its successors and assigns in such capacity, the
"Collateral Agent"), the Account Bank (as defined herein) and the Collateral
Custodian (together with its successors and assigns in such capacity, the
"Collateral Custodian").
PRELIMINARY STATEMENT
The Lenders have agreed, on the terms and conditions set forth herein,
to provide a secured revolving credit facility which shall provide for Advances
under the Variable Funding Note(s) from time to time in an aggregate principal
amount not to exceed the Borrowing Base. The proceeds of the Advances will be
used to finance the Borrower's purchase, on a "true sale" basis, of Eligible
Loan Assets from the Transferor, approved by the Administrative Agent, pursuant
to the Purchase and Sale Agreement between the Borrower and the Transferor.
Accordingly, the parties agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01 Certain Defined Terms.
(a) Certain capitalized terms used throughout this Agreement are
defined above or in this Section 1.01.
(b) As used in this Agreement and the exhibits and schedules thereto
(each of which is hereby incorporated herein and made a part hereof), the
following terms shall have the
following meanings (such meanings to be equally applicable to both the singular
and plural forms of the terms defined):
"1940 Act" means the Investment Company Act of 1940, as amended, and
the rules and regulations promulgated thereunder.
"Account Bank" means Wells Fargo, in its capacity as the "Account
Bank" pursuant to each of the Collection Account Agreement and the Unfunded