Exhibit 10.15


 


AMENDMENT NO. 5 TO SALE AND SERVICING AGREEMENT


(Ares Capital CP Funding LLC)


 


THIS AMENDMENT NO. 5 TO THE SALE AND SERVICING
AGREEMENT,
dated as of December 28, 2005 (this “Amendment”),
is entered into in connection with that certain Sale and Servicing Agreement,
dated as of November 3, 2004 (as amended, modified, waived, supplemented
or restated from time to time, the “Sale and Servicing Agreement”), by
and among Ares Capital CP Funding LLC, as the borrower (the “Borrower”),
Ares Capital Corporation, as the originator and as the servicer (in such
capacity, the “Servicer”), each of the Conduit Purchasers and
Institutional Purchasers from time to time party thereto, each of the Purchaser
Agents from time to time party thereto, Wachovia Capital Markets, LLC, as the
administrative agent, U.S. Bank National Association, as the trustee, and Lyon
Financial Services, Inc. (d/b/a U.S. Bank Portfolio Services), as the
backup servicer.  Capitalized terms used
and not otherwise defined herein shall have the meanings given to such terms in
the Sale and Servicing Agreement.


 


R  E  C  I  T  A  L  S


 


WHEREAS, the above-named parties have entered into the Sale
and Servicing Agreement, and, pursuant to and, in accordance with Section 13.1
thereof, the parties hereto desire to amend the Sale and Servicing Agreement in
certain respects as provided herein;


 


NOW, THEREFORE, based upon the above Recitals, the mutual premises
and agreements contained herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned,
intending to be legally bound, hereby agree as follows:


 


SECTION 1.               AMENDMENT.


 


(a) Section 5.4(c) of
the Sale and Servicing Agreement is hereby amended and restated in its entirety
as follows:


 


“(c) Obligations
and Compliance with Collateral.  The
Servicer will duly fulfill and comply with all obligations on the part of the
Borrower to be fulfilled or complied with under or in connection with the
administration of each item of Collateral and will do nothing to impair the
rights of the Trustee, for the benefit of the Secured Parties, or of the
Secured Parties in, to and under the Collateral.  It is understood and agreed that the Servicer
does not hereby assume any obligations of the Borrower in respect of any
Advances or assume any responsibility for the performance by the Borrower of
any of its obligations hereunder or under any other agreement executed in
connection herewith that would be inconsistent with the limited recourse
undertaking of the Servicer, in its capacity as Seller, under Section 2.1(d) of
the Sale Agreement.”


 


(b)                Section 13.13(a) of
the Sale and Servicing Agreement is hereby amended by inserting the following
sentence before the last sentence thereof:


 


“Notwithstanding the foregoing provisions of this Section 13.13(a),
the Servicer may, subject to Applicable Law and the terms of any Underlying
Instruments, make 


 

















 


available copies
of the documents in the Servicing Files and such other documents it holds in
its capacity as Servicer pursuant to the terms of this Agreement, to any of its
creditors.”


 


SECTION 2.               AGREEMENT IN FULL FORCE AND EFFECT AS AMENDED.


 


Except
as specifically amended hereby, all provisions of the Sale and Servicing
Agreement shall remain in full force and effect.  This Amendment shall not be deemed to
expressly or impliedly waive, amend or supplement any provision of the Sale and
Servicing Agreement other than as expressly set forth herein, and shall not
constitute a novation of the Sale and Servicing Agreement.


 


SECTION 3.               REPRESENTATIONS.


 


Each
of the Borrower and Servicer represent and warrant as of the date of this
Amendment as follows:


 


(i)    it is duly
incorporated or organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization;


 


(ii)   the
execution, delivery and performance by it of this Amendment are within its
powers, have been duly authorized, and do not contravene (A) its charter,
by-laws, or other organizational documents, or (B) any Applicable Law;


 


(iii)  no
consent, license, permit, approval or authorization of, or registration, filing
or declaration with any governmental authority, is required in connection with
the execution, delivery, performance, validity or enforceability of this
Amendment by or against it;


 


(iv)  this
Amendment has been duly executed and delivered by it;


 


(v)   this
Amendment constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms, except as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar laws affecting the enforcement of creditors’ rights generally or by
general principles of equity;


 


(vi)  it is not
in default under the Sale and Servicing Agreement; and


 


(vii) there is no
Termination Event, Unmatured Termination Event, or Servicer Default.


 


SECTION 4.               CONDITIONS TO EFFECTIVENESS.


 


The
effectiveness of this Amendment is conditioned upon delivery of executed
signature pages by all parties hereto to the Administrative Agent.


 


 


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SECTION 5.               MISCELLANEOUS.


 


(a) This
Amendment may be executed in any number of counterparts (including by
facsimile), and by the different parties hereto on the same or separate
counterparts, each of which shall be deemed to be an original instrument but
all of which together shall constitute one and the same agreement.


 


(b)                The
descriptive headings of the various sections of this Amendment are inserted for
convenience of reference only and shall not be deemed to affect the meaning or
construction of any of the provisions hereof.


 


(c) This
Amendment may not be amended or otherwise modified except as provided in the
Sale and Servicing Agreement.


 


(d)                The
failure or unenforceability of any provision hereof shall not affect the other
provisions of this Amendment.


 


(e) Whenever the
context and construction so require, all words used in the singular number
herein shall be deemed to have been used in the plural, and vice versa, and the
masculine gender shall include the feminine and neuter and the neuter shall
include the masculine and feminine.


 


(f) This
Amendment represents the final agreement between the parties only with respect
to the subject matter expressly covered hereby and may not be contradicted by evidence
of prior, contemporaneous or subsequent oral agreements between the
parties.  There are no unwritten oral
agreements between the parties.


 


(g)                THIS AMENDMENT
AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AMENDMENT SHALL BE
GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS.


 


[Remainder
of Page Intentionally Left Blank]


 


 


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IN WITNESS WHEREOF, the undersigned have caused this
Amendment to be executed by their respective officers thereunto duly
authorized, as of the date first above written.


 


	
  VFCC:

  	
  VARIABLE
  FUNDING CAPITAL 

  COMPANY LLC (f/k/a
  Variable Funding 

  Capital Corporation)

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Wachovia Capital
  Markets, LLC, 

  as attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Bryan P. McGrath

  
	
   

  	
   

  	
   Name Bryan P.
  McGrath

  
	
   

  	
   

  	
   Title: Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE
  ADMINISTRATIVE AGENT  

  AND THE VFCC AGENT:

  	
  WACHOVIA
  CAPITAL MARKETS, LLC

  
	
   

  	
   

  
	
   

  	
  By

  	
  /s/ Paul A. Burkhart

  
	
   

  	
   

  	
   Name: Paul A.
  Burkhart

  
	
   

  	
   

  	
   Title: Vice
  President

  
				



 


[Signatures Continued on the
Following Page]


 

















 


	
  THE
  BORROWER:

  	
  ARES
  CAPITAL CP FUNDING LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Kevin Frankel

  
	
   

  	
   

  	
   Name: Kevin
  Frankel 

  
	
   

  	
   

  	
   Title: Vice
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE
  ORIGINATOR

  AND SERVICER:

  	
  ARES
  CAPITAL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Arougheti

  
	
   

  	
   

  	
   Name: Michael
  Arougheti

  
	
   

  	
   

  	
   Title: President