Exhibit 10.18
WAIVER AND AMENDMENT NO. 8 TO
SALE AND SERVICING AGREEMENT
(VFCC Transaction with Ares
Capital CP Funding LLC)
THIS WAIVER AND AMENDMENT NO. 8
TO THE SALE AND SERVICING AGREEMENT , dated as of August 6, 2007 (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.
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
provide for a one time waiver of certain provisions of the Sale and
Servicing Agreement and 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 definition of “Hedge Amount” set forth in
Section 1.1 of the Sale and Servicing Agreement is hereby
amended and restated in its entirety as follows:
““ Hedge Amount
”: On any day that (a) the Weighted Average Coupon
is less than LIBOR Rate plus 5.0%, the Hedge Amount shall be
an amount as determined by the Administrative Agent in its sole
discretion and (b) the Weighted Average Coupon is greater than
or equal to the LIBOR Rate plus 5.0%, the Hedge Amount shall
be $0. The Hedge Amount for Floating Rate Loans is
$0.”
