Exhibit 10.5


 


EXECUTION
COPY


 


AMENDMENT NO. 1


 


THIS
AMENDMENT NO. 1, dated as of May 6, 2010, (this “Amendment”)
is entered into by and among Ares Capital CP Funding, LLC as the borrower (in
such capacity, the “Borrower”); Ares Capital Corporation as the servicer
(in such capacity, the “Servicer”) and as the transferor (in such
capacity, the “Transferor”); Wells Fargo Bank, N.A. (as successor by
merger to Wachovia Bank, National Association) as the note purchaser (in such
capacity, the “Note Purchaser”); Wells Fargo Securities, LLC as the
agent (in such capacity, the “Agent”); and U.S. Bank National
Association as the collateral custodian (in such capacity, the “Collateral
Custodian”), the trustee (in such capacity, the “Trustee”) and as
the bank (in such capacity, the “Bank”). 
Capitalized terms used but not defined herein have the meanings provided
in the Agreement (as defined below).


 


R E C I T A L S


 


WHEREAS, reference is
made to the Amended and Restated Sale and Servicing Agreement, dated as of January 22,
2010 (as amended, modified, waived, supplemented or restated from time to time,
the “Agreement”), by and among the Borrower, the Servicer, the
Transferor, the Note Purchaser, the Agent, the Trustee, the Collateral
Custodian and the Bank; and


 


WHEREAS, the parties
hereto desire to make certain amendments to certain provisions of the Agreement
as specified herein, pursuant to and in accordance with Section 11.01 of
the Agreement;


 


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 parties hereto,
intending to be legally bound, hereby agree as follows:


 


SECTION 1.                            AMENDMENT.


 


(a)           Section 5.02(i) of the Agreement is hereby
amended by inserting the phrase “or to distribute such proceeds to the
Equityholder (so long as such distribution is permitted pursuant to Section 5.02(n))”
prior to the period at the end of the section.


 


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


 


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


 

















 


SECTION 3.                            REPRESENTATIONS.


 


Each of the Borrower, the
Servicer and the Transferor, 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 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 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 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; and


 


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


 


SECTION 4.                            LEGAL FEES.


 


The Borrower and the
Servicer each covenants and agrees to pay in full, to the extent invoiced, on
or prior to the date of the execution of this Amendment, all reasonable legal
fees of Dechert LLP, counsel to the Note Purchaser and the Agent, incurred in
connection with the execution of this Amendment.


 


SECTION 5.                            CONDITIONS TO EFFECTIVENESS.


 


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


 


SECTION 6.                            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.


 


2

















 


(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 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 number, 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 and the Agreement
represent the final agreement among the parties with respect to the matters set
forth therein and may not be contradicted by evidence of prior, contemporaneous
or subsequent oral agreements among the parties.  There are no unwritten oral agreements among
the parties with respect to such matters.


 


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


 


(h)           The
Agent hereby consents and directs U.S. Bank National Association in its
capacity as the Collateral Custodian, Trustee and Bank to execute this
Amendment in substantially the form presented to it.


 


[Remainder of Page Intentionally Left Blank]


 


3

















 


IN
WITNESS WHEREOF, the parties have caused this Amendment No. 1
to be executed by their respective officers thereunto duly authorized, as of
the date first above written.


 


	
   

  	
  ARES CAPITAL CP FUNDING, LLC,

  
	
   

  	
  as
  the Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard S. Davis

  
	
   

  	
   

  	
  Name:
  Richard S. Davis

  
	
   

  	
   

  	
  Title:
  Chief Financial Officer

  



 


[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]


 


Ares Capital CP Funding, LLC


Amendment
No. 1


 

















 


	
   

  	
  ARES CAPITAL CORPORATION,

  
	
   

  	
  as the Servicer and Transferor

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard S. Davis

  
	
   

  	
   

  	
  Name:
  Richard S. Davis

  
	
   

  	
   

  	
  Title: Chief Financial
  Officer

  



 


[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]


 


Ares Capital CP Funding, LLC


Amendment
No. 1


 

















 


	
  :

  	
  WELLS FARGO BANK, N.A. (as successor by merger to Wachovia
  Bank, National Association),

  
	
   

  	
  as the Note Purchaser

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Mike Romanzo

  
	
   

  	
   

  	
  Name: Mike Romanzo, CFA

  
	
   

  	
   

  	
  Title: Director

  



 


[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]


 


Ares Capital CP Funding, LLC


Amendment
No. 1


 

















 


	
   

  	
  WELLS FARGO SECURITIES, LLC,

  
	
   

  	
  as the Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Mike Romanzo

  
	
   

  	
   

  	
  Name:
  Mike Romanzo, CFA

  
	
   

  	
   

  	
  Title: Director

  



 


[SIGNATURES CONTINUE ON THE FOLLOWING PAGE]


 


Ares Capital CP Funding, LLC


Amendment
No. 1


 

















 


	
   

  	
  U.S. BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as the Collateral
  Custodian, the Trustee and the Bank

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ John T. Edwards

  
	
   

  	
   

  	
  Name: John T. Edwards

  
	
   

  	
   

  	
  Title: Assistant Vice
  President

  



 


Ares Capital CP Funding, LLC


Amendment
No. 1