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
