Execution in Counterparts; Severability; Integration
157
Section 11.11
Consent to Jurisdiction; Service of Process
157
Section 11.12
Characterization of Conveyances Pursuant to the Purchase and Sale Agreements
158
Section 11.13
Confidentiality
160
Section 11.14
[Reserved]
161
Section 11.15
Waiver of Set Off
161
Section 11.16
Headings and Exhibits
161
Section 11.17
Ratable Payments
161
Section 11.18
Breaches of Representations, Warranties and Covenants
162
Section 11.19
Assignments of Loan Assets
162
Section 11.20
Affirmation
162
ARTICLE XII.
COLLATERAL CUSTODIAN
163
Section 12.01
Designation of Collateral Custodian
163
Section 12.02
Duties of Collateral Custodian
163
Section 12.03
Merger or Consolidation
166
Section 12.04
Collateral Custodian Compensation
166
Section 12.05
Collateral Custodian Removal
166
Section 12.06
Limitation on Liability
166
Section 12.07
Collateral Custodian Resignation
167
Section 12.08
Release of Documents
168
Section 12.09
Return of Required Loan Documents
168
Section 12.10
Access to Certain Documentation and Information Regarding the Collateral
Portfolio; Audits of Servicer
169
iv
TABLE OF CONTENTS
(continued)
Page
Section 12.11
Custodian as Agent of Trustee
169
v
LIST OF SCHEDULES AND EXHIBITS
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
SCHEDULE VI
Ares Competitor
SCHEDULE VII
Moody's Industry Classification Groups
SCHEDULE VIII
Moody's RiskCalc
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
Form of Notice of Reduction (Reduction of Aggregate Commitments)
EXHIBIT I-1
Form of Variable Funding Note
EXHIBIT I-2
Form of Swingline 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 U.S. Tax Compliance Certificates
ANNEXES
ANNEX A
Commitments
i
This LOAN AND SERVICING AGREEMENT (as amended, restated, supplemented or
modified from time to time, the "Loan and Servicing Agreement") is made as of
January 22, 2010, among:
(1)
ARES CAPITAL CP FUNDING LLC, a Delaware
limited liability company (together with its successors and assigns in such
capacity, the "Borrower");
(2)
ARES CAPITAL CORPORATION, a Maryland
corporation, as the Servicer (as defined herein) and the Transferor (as defined
herein);
(3)
WELLS FARGO SECURITIES, LLC, as agent
(together with its successors and assigns in such capacity, the "Agent");
(4)
WELLS FARGO BANK, NATIONAL ASSOCIATION, as
swingline lender (together with its successor and assigns in such capacity, the
"Swingline Lender");
(5)
EACH OF THE LENDERS FROM