Consent to Jurisdiction; Service of Process
137
Section 11.12
Characterization of Conveyances Pursuant to the Purchase and Sale Agreements
137
Section 11.13
Confidentiality
139
Section 11.14
Non-Confidentiality of Tax Treatment
140
Section 11.15
Waiver of Set Off
141
Section 11.16
Headings and Exhibits
141
Section 11.17
Breaches of Representations, Warranties and Covenants
141
Section 11.18
Assignments of Loan Assets
141
Section 11.19
Affirmation
142
Section 11.20
Back-Up Servicer Removal
142
Each of the parties hereto agree that Lyon shall no longer be a party to this
Agreement and that Lyon is hereby released from and shall have no further rights
or obligations under this Agreement
142
ARTICLE XII.
COLLATERAL CUSTODIAN
142
Section 12.01
Designation of Collateral Custodian
142
Section 12.02
Duties of Collateral Custodian
142
Section 12.03
Merger or Consolidation
145
Section 12.04
Collateral Custodian Compensation
145
Section 12.05
Collateral Custodian Removal
145
Section 12.06
Limitation on Liability
146
Section 12.07
Collateral Custodian Resignation
147
Section 12.08
Release of Documents
147
Section 12.09
Return of Required Loan Documents
148
iv
TABLE OF CONTENTS
(continued)
Page
Section 12.10
Access to Certain Documentation and Information Regarding the Collateral
Portfolio; Audits of Servicer
148
Section 12.11
Custodian as Agent of Trustee
149
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
Original Loan Assets
SCHEDULE VII
Disclosed Matters
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 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)
WELLS FARGO BANK, NATIONAL ASSOCIATION (as successor by merger to
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