Exhibit 10.1


 


AMENDMENT NO. 2 TO SALE AND SERVICING
AGREEMENT
(Ares Capital CP Funding LLC)


 


THIS AMENDMENT NO. 2 TO THE SALE AND
SERVICING AGREEMENT, dated as of April 8,
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)           The following definition in Section 1.1
of the Sale and Servicing Agreement is hereby amended and restated in its
entirety as follows:


 


“Facility
Amount”:  The lesser of (a) $225,000,000,
as such amount may vary from time to time upon the written agreement of the
parties hereto, and (b) the aggregate Commitments then if effect; provided that, on or after the Termination
Date, the Facility Amount shall be equal to the Advances Outstanding.


 


(b)           Annex B is hereby amended and
restated in its entirety by replacing the number $150,000,000 therein with the
number $225,000,000 under the “Commitment” heading.


 


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 (i) delivery of
executed signature pages by all parties hereto to the Agent, (ii) execution
and delivery of the Amended and Restated VFCC Fee Letter, (iii) execution
and delivery of the Amended, Restated and Substituted VFCC Certificate and (iv) payment
to the Agent of the Facility Increase Structuring Fee in connection with this
Amendment as required by the Amended and Restated VFCC Fee Letter.


 


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


 


2





















 


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]


 


3





















 


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/ Kevin A. Frankel

  	
   

  
	
   

  	
  Name:

  	
  Kevin A. Frankel

  
	
   

  	
  Title:

  	
  Secretary

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE ORIGINATOR

  AND SERVICER:

  	
  ARES CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Arougheti

  	
   

  
	
   

  	
  Name:

  	
  Michael Arougheti

  
	
   

  	
  Title:

  	
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE TRUSTEE

  	
  U.S. BANK NATIONAL ASSOCIATION,

  not in its individual capacity but solely as

  Trustee.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Anne E. Chlebnik

  	
   

  
	
   

  	
  Name: 
  Anne E. Chlebnik

  
	
   

  	
  Title: 
  Vice President