Consolidation
172173
Section 12.04
Collateral Custodian Compensation
172173
Section 12.05
Collateral Custodian Removal
172174
Section 12.06
Limitation on Liability
172174
Section 12.07
Collateral Custodian Resignation
173175
Section 12.08
Release of Documents
174175
Section 12.09
Return of Required Loan Documents
175176
Section 12.10
Access to Certain Documentation and Information Regarding the Collateral
Portfolio; Audits of Servicer
175176
Section 12.11
Custodian as Agent of Trustee
175177
iv
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'sGICS 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
Form of Notice and Request for Consent
EXHIBIT J
Form of Certificate of Closing Attorneys
EXHIBIT K
Form of Servicing Report
EXHIBIT L
Form of Servicer's Certificate (Servicing Report)
EXHIBIT M
Form of Release of Required Loan Documents
EXHIBIT N
Form of Transferee Letter
EXHIBIT O
Form of Power of Attorney for Servicer
EXHIBIT P
Form of Power of Attorney for Borrower
EXHIBIT Q
Form of Servicer's Certificate (Loan Asset Register)
EXHIBIT R
Form of U.S. Tax Compliance Certificates
ANNEXES
ANNEX A
Commitments
v
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 BANK, NATIONAL ASSOCIATION, as
agent (together with its successor and assigns in such capacity, the "Agent")
and as swingline lender (together with its successor and assigns in such
capacity, the "Swingline Lender");
(4)
EACH OF THE LENDERS FROM TIME TO TIME PARTY
HERETO, as a Lender; and
(5)
U.S. BANK NATIONAL ASSOCIATION ("U.S.
Bank"), as the Trustee (together with its successors and assigns in such
capacity, the "Trustee"), the Bank (as defined herein) and the Collateral
Custodian (together with its successors and assigns in such capacity, the
"Collateral Custodian").
PRELIMINARY STATEMENT
WHEREAS, certain parties hereto were party to a Sale and Servicing Agreement,
dated as of November 3, 2004, by and among the Servicer, as the servicer, the
Transferor, as the originator, the Borrower, as the borrower, Ares CP Funding II
LLC, as the guarantor, Variable Funding Capital Company LLC ("VFCC"), as a
conduit purchaser, the Note Purchaser, as an institutional purchaser, Wells
Fargo Securities, LLC (f/k/a Wachovia Capital