Exhibit 10.1


 


EXECUTED COPY


 


AMENDMENT NO. 4 TO SALE AND
SERVICING AGREEMENT
(Ares Capital CP Funding LLC)


 


THIS AMENDMENT NO. 4 TO THE SALE AND SERVICING AGREEMENT,
dated as of November 14, 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)                                  Section 1.1
of the Sale and Servicing Agreement is hereby amended by deleting in their
entirety the following defined terms: (i) LOT Loan, (ii) RIC/BDC
Requirements, (iii) RIC/BDC Sale, (iv) RIC/BDC Sale Date, (v) RIC/BDC
Sale Notice, (vi) Senior Secured Loan, and (vii) Stretch Senior
Secured Loan.


 


(b)                                 Section 1.1
of the Sale and Servicing Agreement is hereby amended by adding the following
defined terms in the proper alphabetical order:


 


“Broadly Syndicated Loan”: 
Any Loan that is a Term Loan or a Revolving Loan that (i) arises
under an Underlying Instrument where at least four lending financial institutions
or other lender institutions (including Ares Capital Corporation) will be
parties thereto within 15 days from the closing date of the Underlying
Instrument, (ii) is made to an Obligor with EBITDA of at least $40,000,000
on a trailing 12 month basis, (iii) has a public rating of such Loan by
either S&P or Moody’s and (iv) is secured by a valid and perfected
first priority Lien on all of the Obligor’s assets constituting Related
Property for the Loan, subject to such exceptions that are


 





















 


generally acceptable to lending institutions
in connection with their regular commercial lending activities, and such other
exceptions to which similar Related Property is commonly subject and which do
not individually, or in the aggregate, materially and adversely affect the
benefits of the security intended to be provided by the related Underlying
Instruments and UCC financing statements.  For avoidance of doubt, (i) Broadly
Syndicated Loans may include multiple tranches of a single facility and (ii) a
Broadly Syndicated Loan that satisfies some but not all of the foregoing
provisions of this definition may still be eligible for purchase by the
Borrower as another loan type, subject to such Loan’s satisfaction of the
criteria set forth in the definitions of those Loans and in the definition of
Eligible Loan.


 


“Canadian Dollar”: The lawful currency of Canada.


 


“Discretionary Sale”: 
Defined in Section 2.20(a).


 


“Discretionary Sale Date”: The Business Day identified by the
Borrower to the Administrative Agent and the Trustee in a Discretionary Sale
Notice as the proposed date of a Discretionary Sale.


 


“Discretionary Sale Notice”: 
Defined in Section 2.20(a)(i).


 


“Euro”:  The lawful
currency of Participating Member States.


 


“First Lien Loan”:  Any
Loan that is a Term Loan or Revolving Loan that (i) is secured by a valid
and first priority Lien on all of the Obligor’s assets constituting Related
Property for the Loan, (ii) has a Loan-to-Value Ratio not greater than (a) 60%
where the Loan is not a Material Mortgage Loan or the Related Property is not
primarily real estate and (b) 75% where the Loan is a Material Mortgage
Loan or the Related Property is primarily real estate, and (iii) provides
that the payment obligation of the Obligor on such Loan is either senior to, or
pari passu with, all other
Indebtedness of such Obligor.


 


“Group I Country”:  Any of
The Netherlands, the United Kingdom, Australia and New Zealand.


 


“Group II Country”:  Any
of Germany, Ireland, Sweden and Switzerland.


 


“Group III Country”:  Any
of Austria, Belgium, Denmark, Finland, France, Iceland, Liechtenstein,
Luxembourg, Norway and Spain.


 


“Participating Member States”: 
Means any member state of the European Community that adopts or has
adopted the Euro as its lawful currency in accordance with legislation of the
European Community relating to Economic and Monetary Union.


 


“Qualified Second Lien Loan”: All of the following:


 


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(a)                                  Any
First Lien Loan or Second Lien Loan which has a Loan-to-Value Ratio of not
greater than (i) 70% where the Loan is not a Material Mortgage Loan or the
Related Property is not primarily real estate and (ii) 80% where the Loan
is a Material Mortgage Loan or Related Property is primarily real estate;


 


(b)                             Any
Second Lien Loan as to which the ratio, for the related Obligor, of (x) the sum
of (i) the maximum availability (as provided in the applicable loan
documentation) of such Loan as of the date of its origination plus (ii) the
maximum availability under all other indebtedness of the related Obligor which
ranks either senior to, or pari passu with, such Loan to (y) such Obligor’s
earnings before interest, taxes, depreciation and amortization for the twelve
calendar months preceding such date shall not exceed (I) in the case of Obligors
in the media and telecommunications industries, 6.5:1.0 and (II) in the case of
all other Obligors, 4.5:1.0, provided,
that for the avoidance of doubt, an Obligor’s earnings before interest, taxes,
depreciation and amortization shall be calculated in accordance with the Credit
and Collection Policy; and


 


(c)                                  Any
Second Lien Loan with respect to which the underlying loan agreement (i) contains
a limit on the amount of indebtedness senior to such Loan which may be incurred
by the related Obligor, (ii) preserves enforcement rights for the lender
of such Loan after a default under the related underlying loan agreement, and (iii) contains
either or both (x) a standstill period applicable to the holders of such Loan
of not longer than 180 days following a default under the loan agreement
governing the senior indebtedness of such Obligor, and (y) provisions requiring
the consent of the holders of such Loan to release all or substantially all of
the Related Property securing such Loan unless the majority of the proceeds of
the disposition of such Related Property are used to repay the indebtedness
which is senior to or pari passu with such Loan, or to repay such Loan.


 


“Sterling”:  The lawful
currency of the United Kingdom.


 


(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:


 


	
  Type of Loan

  	
   

  	
  Advance Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Broadly Syndicated Loan

  	
   

  	
  90%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Senior Secured ABL

  	
   

  	
  85%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  First Lien Loan

  	
   

  	
  80%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Qualified Second Lien Loan

  	
   

  	
  75%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Second Lien Loan

  	
   

  	
  70%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Senior Subordinated Loan

  	
   

  	
  63%

  	
   

  



 


3





















 


	
  Type of Loan

  	
   

  	
  Advance Rate

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Junior Subordinated Loan

  	
   

  	
  50%

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  DIP Loan

  	
   

  	
  70%

  	
   

  



 


(d)                                 The  definition of “Concentration Limits” in Section 1.1
of the Sale and Servicing Agreement is hereby amended by deleting clause (a) thereof
in its entirety and replacing it with the following:


 


(a)                                  [Reserved];


 


(e)                                  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), (d), (e), (f), (g) and (h) 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 $30,000,000;


 


(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 the
greater of 5% or $13,500,000;


 


(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 $40,000,000;


 


(e)                                          the sum of
the Outstanding Loan Balances of Eligible Loans that are DIP Loans shall not
exceed the greater of 5% or $10,000,000;


 


(f)                                            the sum of
the Outstanding Loan Balances of Eligible Loans that are Revolving Loans shall
not exceed the greater of 20% or $40,000,000;


 


(g)                                         the sum of the
Outstanding Loan Balances of Eligible Loans that have a Risk Rating of (i) 1,
shall not exceed 0%, and (ii) 2, shall not exceed the greater of 10% or $12,500,000;


 


(h)                                         the sum of the
Outstanding Loan Balances of Eligible Loans that are PIK Loans with a current
annual cash coupon of less than (i) the Ares LIBOR Rate + 5.0%, if such
Loan is a Floating Rate Loan with an interest rate based on Ares LIBOR Rate, (ii) the
Ares Prime Rate + 3.0%, if such Loan is a Floating Rate Loan with an interest
rate based on the Ares Prime Rate, and (iii) 8.0% if such Loan is a Fixed
Rate Loan, shall not exceed 0%;


 


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(f)                                    The
definition of “Concentration Limits” in Section 1.1 of the Sale and
Servicing Agreement is hereby amended by deleting the word “and” from the end
of clause (g) thereof, by replacing the period at the end of clause (h) with
“; and” and by adding the following clause (i), thereto:


 


“(i)                               the
sum of the Outstanding Loan Balances of Eligible Loans that are Loans to
Obligors organized under the laws of, or all or substantially all of the assets
of which are located in, Canada, any Group I Country, Group II Country or Group
III Country shall not exceed the greater of 10% or $20,000,000; provided that the sum of the Outstanding
Loan Balances of Eligible Loans to Obligors that are organized under the laws
of, or all or substantially all of the assets of which are located in, any
Group I Country, Group II Country or Group III Country shall not exceed the
greater of 5% or $10,000,000.


 


(g)                                 The
definition of “Eligible Loan” in Section 1.1 of the Sale and Servicing
Agreement is hereby amended by amending and restating clause (B)(d) thereof
in its entirety with the following:


 


(d)                                 such
Loan is denominated and payable only in Dollars in the United States and does
not permit the currency or country in which such Loan is payable to be changed
provided that certain Loans may be denominated in Sterling, Euros or Canadian
dollars but payable in Dollars subject to currency hedging approved by the
Administrative Agent (in its sole discretion);


 


(h)                                 The
definition of “Eligible Loan” in Section 1.1 of the Sale and Servicing
Agreement is hereby amended by amending and restating clause (B)(f) thereof
in its entirety with the following:


 


(f)                                    such
Loan (i) if a Broadly Syndicated Loan, Senior Secured ABL, First Lien
Loan, Qualified Second Lien Loan, Second Lien Loan or DIP Loan has an original
term to maturity that does not exceed 96 months and (ii) if a Senior
Subordinated Loan or Junior Subordinated Loan, has an original term to maturity
that does not exceed 120 months;


 


(i)                                     The
definition of “Eligible Obligor” in Section 1.1 of the Sale and Servicing
Agreement is hereby amended by amending and restating clause (vi) thereof
in its entirety as follows:


 


(vi)                              such
Obligor’s principal office is located in the United States, Canada, any Group I
Country, any Group II Country or any Group III Country;


 


(j)                                     The
definition of “Measurement Date” in Section 1.1 of the Sale and Servicing
Agreement is hereby amended by deleting the words “RIC/BDC Sale Date” in clause
(x) thereof and replacing them with the words “Discretionary Sale Date”
thereto.


 


5





















 


(k)                                  Section 1.1
of the Sale and Servicing Agreement is hereby amended by amending and restating
in their entirety the following defined terms:


 


“Facility Amount”:  The
lesser of (a) $350,000,000, as such amount may vary from time to time upon
the written agreement of the parties hereto, and (b) the aggregate Commitments
then in effect; provided that, on
or after the Termination Date, the Facility Amount shall be equal to the
Advances Outstanding.


 


“Junior Subordinated Loan”: 
Any Term Loan that (i) may or may not be secured by a Lien on the
Obligor’s assets constituting Related Property for the Loan, (ii) has a
Loan-to-Value Ratio not greater than (a) 80% where the Loan is not a
Material Mortgage Loan or the Related Property is not primarily real estate,
and (b) 90% where the Loan is a Material Mortgage Loan or the Related
Property is primarily real estate, and (iii) that contains terms which,
upon the occurrence of an event of default under the Underlying Instruments or
in the case of any liquidation or foreclosure on the Related Property, provide
that the Borrower’s portion of such Loan would be paid only after the other
lenders party to such Loan (including any lender party making any Broadly
Syndicated Loan, Senior Secured ABL, First Lien Loan, Qualified Second Lien
Loan, Second Lien Loan or Senior Subordinated Loan whose right to payment is
contractually senior to the Borrower) is paid in full.


 


“Large Obligor Coverage Amount”: 
As of any Measurement Date, an amount equal to the product of (i) 1.5
and (ii) the sum of the Outstanding Loan Balances of all Eligible Loans to
the Obligor representing the highest aggregate Outstanding Loan Balance included
in the Borrowing Base on such date (net of amounts in excess of the
Concentration Limits).


 


“Loan”:  Any Broadly
Syndicated Loan, DIP Loan, First Lien Loan, Junior Subordinated Loan, Qualified
Second Lien Loan, Second Lien Loan, Senior Secured ABL or Senior Subordinated
Loan originated or acquired by the Originator in the ordinary course of its
business, which loan includes, without limitation, (i) the Required Loan
Documents and Loan File, and (ii) all right, title and interest of the
Originator in and to the loan and any Related Property, but excluding, in each
case, the Retained Interest, any Attached Equity and Excluded Amounts.


 


“Senior Subordinated Loan”: 
Any Term Loan that (i) has a Loan-to-Value Ratio not greater than (a) 75%
where the Loan is not a Material Mortgage Loan or the Related Property is not
primarily real estate, and (b) 85% where the Loan is a Material Mortgage
Loan or the Related Property is primarily real estate, and (ii) contains
terms which, upon the occurrence of an event of default under the Loan
Documents or in the case of any liquidation or foreclosure on the Related
Property, provide that the Borrower’s portion of such Loan would be paid only
after the other lender party to such Loan (including any lender party making
any Broadly Syndicated Loan, Senior Secured ABL, First Lien Loan, Qualified
Second Lien Loan or Second Lien Loan whose right to payment is contractually
senior to the Borrower) is paid in full.


 


6





















 


(l)                                     Section 5.2(c) of
the Sale and Servicing Agreement is hereby amended by deleting the words “RIC/BDC
Sale” in the third line thereof and replacing them with the words “Discretionary
Sale” thereto.


 


(m)                               Section 8.9(f) of
the Sale and Servicing Agreement is hereby amended by deleting the words “RIC/BDC
Sale” thereof and replacing them with the words “Discretionary Sale” thereto.


 


(n)                                 Section 9.2(v) of
the Sale and Servicing Agreement is hereby amended by deleting the words “RIC/BDC
Sale” thereof and replacing them with the words “Discretionary Sale” thereto.


 


(o)                                 Section 10.1(j)
of the Sale and Servicing Agreement is hereby deleted in its entirety and
replaced with the following:


 


(j)                                     [Reserved];


 


(p)                                 Section 2.20
is hereby amended and restated in its entirety as follows:


 


Section 2.20.              Discretionary
Sales.


 


(a)                                  Prior
to the occurrence of an Unmatured Termination Event, a Termination Event, on
any Discretionary Sale Date, the Borrower shall have the right to prepay all or
a portion of the Advances Outstanding in connection with the sale and
assignment to the Borrower by the Trustee, for the benefit of the Secured
Parties, of one or more Loans (each, a “Discretionary
Sale”), subject to the following terms and conditions:


 


(i)                                     At
least one Business Day prior to such Discretionary Sale Date, the Borrower
shall have recommended to the Administrative Agent in writing that the related
Loan should be sold and shall have given the Administrative Agent (with a copy
to the Trustee) written notice of its intent to effect a Discretionary Sale
(each such notice, a “Discretionary Sale Notice”), specifying the Discretionary
Sale Date, including a list of all Loans to be sold and assigned pursuant to
such Discretionary Sale;


 


(ii)                                  Any
Discretionary Sale shall be made by the Borrower to an unaffiliated third party
purchaser in a transaction (w) in accordance with the Servicing Standard, (x)
reflecting arms-length market terms, (y) in which the Borrower makes no
representations, warranties or covenants and provides no indemnification for
the benefit of any other party to the Discretionary Sale (other than any
representations, warranties or covenants relating to the Borrower’s ownership
of or title to the Loan that is the subject of the Defaulted Loan Sale that are
standard and customary in connection with such a sale or for which the
Originator has agreed to fully indemnify the Borrower) and (z) the primary


 


7





















 


purpose of
which is other than to maximize gain or minimize loss on the Borrower’s assets
and such purpose of the transaction shall be set forth in writing by Borrower
in the notice delivered pursuant to sub-clause (i) above;


 


(iii)                               The
Servicer shall deliver to the Administrative Agent (with a copy to the Trustee)
a completed Borrowing Base Certificate and other evidence to the reasonable
satisfaction of the Administrative Agent that (x) the Borrower shall have
sufficient funds on the related Discretionary Sale Date to effect the
contemplated Discretionary Sale in accordance with this Agreement (unless a Discretionary
Sale is to be effected on a Payment Date, in which case there must be
sufficient Available Funds to effect the contemplated Discretionary Sale in
accordance with the terms of this Agreement), and (y) the sum of the
Outstanding Loan Balances of all Loans that have been sold pursuant to Discretionary
Sales during the 12 month period immediately preceding the proposed date of
sale (or such lesser number of months as shall have elapsed as of such date)
does not exceed 20% of the Facility Amount;


 


(iv)                              After
giving effect to the Discretionary Sale and the assignment to the Borrower of
the related Collateral on any Discretionary Sale Date, (a) each of the
Availability and the Pre-Funded Availability shall be equal to or greater than
zero, (b) the representations and warranties contained in Section 4.1
hereof shall continue to be correct in all material respects, except to the
extent relating to an earlier date, and (c) neither an Unmatured
Termination Event nor a Termination Event shall have resulted; and


 


(v)                                 On
the related Discretionary Sale Date, the Trustee on behalf of the Secured
Parties shall have received, into the Collection Account, in immediately
available funds, an amount equal to the sum of (a) the portion of the
Advances Outstanding to be prepaid that are attributable to the Collateral to
be sold by the Borrower pursuant to this Section 2.20  plus (b) an amount equal to all unpaid
Interest to the extent reasonably determined by the Administrative Agent and
the Purchaser Agents to be attributable to that portion of the Advances
Outstanding to be paid in connection with the Discretionary Sale plus (c) an aggregate amount equal to the
sum of all other amounts due and owing to the Administrative Agent, the Trustee
and the Backup Servicer, the Purchaser Agents, the applicable Purchaser, any
other Affected Parties and the Hedge Counterparties, as applicable, under this
Agreement and the other Transaction Documents, to the extent accrued to such
date and to accrue to the next Payment Date (including, without limitation,
Breakage Costs, Hedge Breakage Costs and any other payments owing to the Hedge
Counterparties in respect of the termination of any Hedge Transaction) in each
case, to the extent attributable to the Collateral to be sold by the Borrower
pursuant to this Section 2.20; provided that the Trustee,
the Administrative Agent and each Purchaser Agent shall have the right to
determine whether the amount paid (or proposed to be paid) by the Borrower on
the


 


8





















 


Discretionary
Sale Date is sufficient to satisfy such requirements and is sufficient to
reduce the Advances Outstanding to the extent requested by the Borrower in
connection with the Discretionary Sale; provided,
further, that any proceeds of
such Discretionary Sale in excess of the amount so deposited into the
Collection Account also shall be deposited into the Collection Account and used
to prepay Advances Outstanding on such Discretionary Sale Date.


 


(b)                                 In
connection with any Discretionary Sale, following receipt by the Purchaser
Agents of the amounts referred to in clause (v) above,
there shall be sold and assigned to the Borrower (for further sale to a
third-party unaffiliated with the Borrower, the Originator or the Servicer)
without recourse, representation or warranty all of the right, title and
interest of the Administrative Agent, the Trustee, the Purchaser Agents, the
Purchasers and the Secured Parties in, to and under the portion of the
Collateral subject to such Discretionary Sale and such portion of the
Collateral so transferred shall be released from the Lien of this Agreement
(subject to the requirements of clauses (iii) and
(iv) above).


 


(c)                                  The
Originator hereby agrees to pay the reasonable legal fees and expenses of the
Administrative Agent, the Trustee, each Purchaser Agent and the Secured Parties
in connection with any Discretionary Sale (including, but not limited to,
expenses incurred in connection with the release of the Lien of the
Administrative Agent, the Trustee, the Secured Parties and any other party
having an interest in the Collateral in connection with such Discretionary
Sale).


 


(d)                                 In
connection with any Discretionary Sale, on the related Discretionary Sale Date,
the Trustee shall, at the expense of the Borrower (i) execute such
instruments of release with respect to the portion of the Collateral to be
retransferred to the Borrower, in recordable form if necessary, in favor of the
Borrower as the Borrower may reasonably request, (ii) deliver any portion
of the Collateral to be retransferred to the Borrower in its possession to the
Borrower and (iii) otherwise take such actions, and cause or permit the
Trustee to take such actions, as are necessary and appropriate to release the
Lien of the Trustee and the Secured Parties on the portion of the Collateral to
be retransferred to the Borrower and release and deliver to the Borrower such
portion of the Collateral to be retransferred to the Borrower.


 


(q)                                 The
following Section 4.6 is hereby added to Article IV of the Sale and
Servicing Agreement in its appropriate numerical order:


 


Section 4.6.                Representations
and Warranties of the Purchasers.


 


Each Purchaser hereby represents and warrants
that it is a “Qualified Purchaser” within the meaning of Section 2(a)(51)
of the 1940 Act, as amended.


 


(r)                                    Annex
B is hereby amended and restated in its entirety by replacing the figure “$225,000,000”
therein with the figure “$350,000,000” under the “Commitment” heading.


 


9





















 


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,
(ii) execution and delivery of the Second Amended and Restated VFCC Fee
Letter, (iii) execution and delivery of the Second Amended, Restated and
Substituted VFCC Certificate and (iv) payment to the Administrative


 


10





















 


Agent of the Facility Increase Structuring
Fee in connection with this Amendment as required by the Second 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.


 


(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]


 


11





















 


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

  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:   
  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 F. Nguyen

  	
   

  
	
   

  	
   

  	
  Name:  
  Daniel F. Nguyen

  
	
   

  	
   

  	
  Title:    
  Chief Financial Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE ORIGINATOR

  AND SERVICER:

  	
  ARES CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
    /s/
  Michael Arougheti

  	
   

  
	
   

  	
   

  	
  Name:  
  Michael Arougheti

  
	
   

  	
   

  	
  Title:    
  President