of Maximum Facility Amount)
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)
i
This AMENDED AND RESTATED SALE 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)
WACHOVIA BANK, NATIONAL ASSOCIATION, as the Note Purchaser (as
defined herein);
(4)
WELLS FARGO SECURITIES, LLC, as agent for the Note Purchaser
("Agent"); 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 Markets, LLC) (together with its
successors and assigns, "WFS"), as the administrative agent and as the purchaser
agent for VFCC, Ares Capital CP Funding II, as the guarantor (the "Guarantor")
the Trustee, as the trustee, and Lyon Financial Services, Inc. d/b/a U.S. Bank
Portfolio Services ("Lyon"), as the backup servicer (as amended, restated,
supplemented or modified prior to the date hereof, the "Original Agreement");
WHEREAS, the parties hereto no longer desire to maintain a backup servicer,
and, pursuant to Section 11.20, the parties hereto hereby agree that Lyon is
released from and shall have no further rights or obligations under this
Agreement;
WHEREAS, VFCC, as a conduit purchaser under the Original Agreement, acknowledges
that it has been paid in full all amounts previously owed to it and the parties
hereto acknowledge and agree that VFCC is hereby released from and shall have no
further rights or obligations under this Agreement;
WHEREAS, the Guarantor and the parties hereto hereby agree that the Guarantor is
released from and shall have no further rights or obligations under this
Agreement;
WHEREAS, the parties hereto hereby amend and restate the Original Agreement;
WHEREAS, the Note Purchaser has 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 from