Exhibit 10.1
EXECUTION COPY
AMENDMENT NO. 5 TO
AMENDED AND RESTATED SALE AND SERVICING AGREEMENT
THIS AMENDMENT NO. 5 TO AMENDED AND RESTATED SALE AND SERVICING AGREEMENT, dated
as of June 7, 2012, (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, National
Association (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 further 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;
WHEREAS, the parties hereto desire to join Wells Fargo Bank, National
Association as the swingline lender (in such capacity, the "Swingline Lender")
to the Agreement, and acknowledge that Wells Fargo Bank, National Association
hereby assumes its obligations as the Swingline Lender;
WHEREAS, the parties hereto desire to join (i) EverBank Commercial Finance, Inc.
("EverBank") as a lender (in such capacity, a "Lender") to the Agreement, and
acknowledge that EverBank hereby assumes its obligations as a Lender and
(ii) Royal Bank of Canada ("RBC") as a lender (in such capacity, a "Lender") to
the Agreement, and acknowledge that RBC hereby assumes its obligations as a
Lender; and
WHEREAS, the parties hereto desire to further amend the Agreement in certain
respects 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.
The Agreement, including all exhibits and schedules thereto, is hereby amended
such that, after giving effect to all such amendments, it shall read in its
entirety as Exhibit A attached hereto.
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