Exhibit 10.11


 


AMENDMENT NO. 1 TO SALE AND
SERVICING AGREEMENT


(Ares Capital CP Funding LLC)


 


THIS AMENDMENT NO. 1 TO THE
SALE AND SERVICING AGREEMENT, dated as of December 30, 2004 (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, Ares Capital
Corporation, as the originator and as 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 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.    The
definition of “Concentration Limits” in Section 1.1 of the Sale and
Servicing Agreement is hereby amended by amending and restating clauses (b), (c) and
(d) thereof in their entirety as follows:


 


“(b)         the
sum of the Outstanding Loan Balances of Eligible Loans that are Loans to a
single Obligor (including any Affiliates thereof) shall not exceed (x) $20,000,000,
at any time when the Facility Amount is less than $200,000,000, or (y) $25,000,000,
at any time when the Facility Amount is greater than or equal to $200,000,000;


 


(c)           the
sum of the Outstanding Loan Balances of all Eligible Loans divided by the
number of Eligible Obligors (including Affiliates thereof) shall not exceed (x) the
greater of 5% or $10,000,000, at any time when the Facility Amount is less than
$200,000,000, or (y) the greater of 5% or $12,000,000, at any time when
the Facility Amount is greater than or equal to $200,000,000;


 


(d)           the
sum of the Outstanding Loan Balances of Eligible Loans that are Loans to
Eligible Obligors in the same Moody’s Industry Classification Group shall not
exceed the greater of 20% or $25,000,000;”


 

















 


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
Agent.


 


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 


 


 


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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 

  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Wachovia Capital Markets,
  LLC, 

  as attorney-in-fact

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Douglas R. Wilson, Sr.

  
	
   

  	
   

  	
   Name:
  Douglas R. Wilson, Sr.

  
	
   

  	
   

  	
   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/ Daniel Nguyen

  
	
   

  	
   

  	
   Name:
  Daniel Nguyen 

  
	
   

  	
   

  	
   Title:
  CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE ORIGINATOR

  AND SERVICER:

  	
  ARES CAPITAL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Arougheti

  
	
   

  	
   

  	
   Name:
  Michael Arougheti

  
	
   

  	
   

  	
   Title:
  President