Exhibit
10.12


 


AMENDMENT
NO. 3 TO SALE AND SERVICING AGREEMENT

(Ares Capital CP Funding LLC)


THIS AMENDMENT NO. 3 TO THE SALE AND SERVICING AGREEMENT, dated as of
October 31, 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.


The definition of “Termination Date” in Section 1.1 of the Sale and
Servicing Agreement is hereby amended by replacing the date “November 2, 2005”
in clause (c) thereof with the date “November 1, 2006.”


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 Administrative Agent and
(ii) payment to the Administrative Agent of the Liquidity Renewal 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 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.


 


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(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.


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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

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Douglas R. Wilson

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  



 


	
  THE ADMINISTRATIVE AGENT

  	
   

  	
  WACHOVIA CAPITAL MARKETS, LLC

  
	
  AND THE VFCC AGENT:

  	
   

  	
   

  



 


	
   

  	
   

  	
  By:

  	
  /s/Craig Benton

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Craig Benton

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  



 


[Signatures
Continued on the Following Page]

















 


	
  THE BORROWER:

  	
   

  	
  ARES CAPITAL CP FUNDING LLC

  



 


	
   

  	
   

  	
  By:

  	
  /s/Michael Arougheti

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Michael Arougheti

  
	
   

  	
   

  	
   

  	
  Title: President

  



 


	
  THE ORIGINATOR

  	
   

  	
  ARES CAPITAL CORPORATION

  
	
  AND SERVICER:

  	
   

  	
   

  



 


	
   

  	
   

  	
  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:

  	
  Dawn M. Zanotti

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Dawn M. Zanotti

  
	
   

  	
   

  	
   

  	
  Title: Vice President

  



[Signatures
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  THE BACKUP SERVICER:

  	
   

  	
  LYON FINANCIAL SERVICES, INC.,

  
	
   

  	
   

  	
  d/b/a U.S. Bank Portfolio Services not in its individual capacity but
  solely as Backup Servicer

  



 


	
   

  	
   

  	
  By:

  	
  /s/Joseph Andries

  	
   

  
	
   

  	
   

  	
   

  	
  Name: Joseph Andries

  
	
   

  	
   

  	
   

  	
  Title: Senior Vice President

  



 


 


[Signatures
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Acknowledged and Agreed to
as of the date first written above.


	
  WACHOVIA BANK, NATIONAL

  
	
  ASSOCIATION, as a Hedge Counterparty

  



 


	
  By:

  	
  /s/ Kim V. Farr

  	
   

  
	
   

  	
  Name: Kim V. Farr

  
	
   

  	
  Title: Director