Exhibit 10.1


 


AMENDMENT NO. 12
TO SALE AND SERVICING AGREEMENT
 (VFCC
Transaction with Ares Capital CP Funding LLC)


 


THIS AMENDMENT
NO. 12 TO THE SALE AND SERVICING AGREEMENT,
dated as of December 5, 2008 (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 through the date hereof, the “Sale and Servicing Agreement”), by
and among Ares Capital CP Funding LLC, as the borrower (together with its
successors and assigns in such capacity, the “Borrower”), Ares Capital
Corporation, as the originator (together with its successors and assigns in
such capacity, the “Originator”)
and as the servicer (together with its successors and assigns 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 (together with its successors and assigns in such capacity, the “Administrative
Agent”) and as the Purchaser Agent with respect to Variable Funding Capital
Company LLC (f/k/a Variable Funding Capital Corporation), as Conduit Purchaser
(together with its successors and assigns in such capacity, the “VFCC Agent”),
U.S. Bank National Association, as the trustee (together with its successors
and assigns in such capacities, the “Trustee”), and Lyon Financial
Services, Inc. (d/b/a U.S. Bank Portfolio Services) as the backup servicer
(together with its successors and assigns in such capacity, 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.


 


RECITALS


 


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 Recital, 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.                            AMENDMENTS.


 


(a)                                  The
“Recitals” of the Sale and Servicing Agreement are hereby amended by
deleting reference to the word “Tenth” and replacing it with the word “Twelfth”.


 


(b)                                 Section 1.1
of the Sale and Servicing Agreement is hereby amended by inserting the
following defined terms in appropriate alphabetical sequence:


 


““Asset
Coverage Ratio”: The ratio, determined on a consolidated basis, without
duplication, in accordance with GAAP, of (a) the fair market value of the
total assets of Ares Capital Corporation and its Subsidiaries as required by,
and in accordance with, the 1940 Act and any orders of the Securities and
Exchange Commission issued to the Originator, to be determined by the Board of
Directors of the Originator and reviewed by its auditors, less all liabilities
(other than Indebtedness, including Indebtedness 


 

















 


hereunder) of Ares
Capital Corporation and its Subsidiaries, to (b) the aggregate amount of
Indebtedness of Ares Capital Corporation and its Subsidiaries.”


 


““Twelfth
Amendment Effective Date”: December 5, 2008.”


 


(c)                                  The
definition of “Advance Rate” in Section 1.1 of the Sale and
Servicing Agreement is hereby amended by replacing the table in the definition
with the following:


 


ELIGIBLE LOANS


 


	
  TYPE OF ELIGIBLE LOAN

  	
   

  	
  ADVANCE RATE

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Broadly Syndicated Loans

  	
   

  	
  65

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  First Lien Loans

  	
   

  	
  65

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Second Lien Loans

  	
   

  	
  50

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  Subordinated Loans

  	
   

  	
  40

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  DIP Loans

  	
   

  	
  50

  	
  %

  



 


(d)                                 Section 2.14(e) of
the Sale and Servicing Agreement is hereby amended by deleting reference to the
word “Tenth” and replacing it with the word “Twelfth”.


 


(e)                                  Section 6.15(i) of
the Sale and Servicing Agreement is hereby amended and restated in its entirety
as follows:


 


“(i)                               at
any time, Ares Capital Corporation fails to maintain the Asset Coverage Ratio
at greater than or equal to 2:1;”


 


(f)                                    Section 6.15(j) of
the Sale and Servicing Agreement is hereby amended and restated in its entirety
as follows:


 


“(j)                               Ares
Capital Corporation fails to maintain the aggregate of its GAAP stockholders’
equity and subscribed stockholders’ equity in an amount equal to at least
$850,000,000, as increased by 75% of the proceeds of any equity offerings of
Ares Capital Corporation consummated after the Twelfth Amendment Effective
Date;”


 


SECTION 2.                            [RESERVED].


 


SECTION 3.                            Agreement in Full Force and Effect as AMENDED.


 


Except as
specifically amended hereby, all provisions of the Sale and Servicing Agreement
are hereby ratified and shall remain in full force and effect.  After this Amendment becomes effective, all
references to the Sale and Servicing Agreement, and corresponding references
thereto or therein such as “hereof,” “herein,” or words of similar effect
referring to the Sale and Servicing Agreement shall be deemed to mean the Sale
and Servicing Agreement as amended hereby. 
This Amendment shall not be deemed to expressly or impliedly waive,
amend 


 


2

















 


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 4.                            Representations.


 


Each of the
Originator, the Servicer and the Borrower, severally for itself only, represents
and warrants 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 and the Sale and
Servicing Agreement as amended hereby 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
and the Sale and Servicing Agreement as amended hereby by or against it;


 


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


 


(v)                                 each
of this Amendment and the Sale and Servicing Agreement as amended hereby 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, as amended hereby;
and


 


(vii)                           upon
giving effect to this Amendment, there is no Termination Event, Unmatured
Termination Event, or Servicer Default.


 


SECTION 5.                            Conditions to Effectiveness.


 


The
effectiveness of this Amendment is conditioned upon: (i) payment of the
outstanding fees and disbursements of the Purchasers; (ii) payment of the
outstanding fees and disbursements of Dechert LLP, as counsel to the
Administrative Agent and the Purchasers; and (iii) delivery of executed
signature pages by all parties hereto to the Administrative Agent.


 


SECTION 6.                            Miscellaneous.


 


(a)                                  Without
in any way limiting any other obligation hereunder or under the Transaction
Documents, the Borrower agrees to provide, from time to time, any additional
documentation and to execute additional acknowledgements, amendments,
instruments or other 


 


3

















 


agreements as may be reasonably requested and
required by the Administrative Agent to effectuate the foregoing.


 


(b)                                 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.


 


(c)                                  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.


 


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


 


(e)                                  The
failure or unenforceability of any provision hereof shall not affect the other provisions
of this Amendment or the Sale and Servicing Agreement.


 


(f)                                    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.


 


(g)                                 This
Amendment and the Sale and Servicing Agreement represent 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.


 


(h)                                 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
CHOICE OF LAW PROVISIONS SET FORTH IN THE SALE AND SERVICING AGREEMENT AND
SHALL BE SUBJECT TO THE WAIVER OF JURY TRIAL AND NOTICE PROVISIONS SET FORTH IN
THE SALE AND SERVICING AGREEMENT.


 


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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.


 


 


	
  THE BORROWER:

  	
  ARES CAPITAL CP FUNDING LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Joshua M. Bloomstein

  
	
   

  	
   

  	
  Name: Joshua M. Bloomstein

  
	
   

  	
   

  	
  Title: Authorized Signatory

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE ORIGINATOR

  	
  ARES CAPITAL CORPORATION

  
	
  AND THE SERVICER:

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Richard S. Davis

  
	
   

  	
   

  	
  Name: Richard S. Davis

  
	
   

  	
   

  	
  Title: Chief Financial Officer

  



 


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  CONDUIT PURCHASER:

  	
  VARIABLE FUNDING CAPITAL

  COMPANY LLC (f/k/a 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: Director

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE ADMINISTRATIVE AGENT

  	
  WACHOVIA CAPITAL MARKETS, LLC

  
	
  AND THE VFCC AGENT:

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Kevin Sunday

  
	
   

  	
   

  	
  Name: Kevin Sunday

  
	
   

  	
   

  	
  Title: Vice President

  



 


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  THE TRUSTEE:

  	
  U.S. BANK NATIONAL ASSOCIATION,

  not in its individual capacity but solely as

  Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/John T. Edwards

  
	
   

  	
   

  	
  Name: John T. Edwards

  
	
   

  	
   

  	
  Title: Assistant Vice President