Exhibit 10.17


 


WAIVER AND AMENDMENT NO. 7 TO SALE AND SERVICING
AGREEMENT


(VFCC Transaction with Ares Capital CP Funding LLC)


 


THIS WAIVER AND AMENDMENT NO. 7 TO THE SALE AND
SERVICING AGREEMENT, dated as of March 8, 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
Pool Yield is less than the Minimum Pool Yield, (b) the Pool Yield is
greater than or equal to the Minimum Pool Yield but less than 4.0% and the sum
of the Outstanding Loan Balances of all Fixed Rate Loans is greater than
$40,000,000, (c) the Pool Yield is greater than or equal to 4.0% but less
than 5.0% and the sum of the Outstanding Loan Balances of all Fixed Rate Loans
is greater than $70,000,000, or (d) the 


 

















 


Pool Yield is greater than or equal to 5.0% but less
than 7.5% and the sum of the Outstanding Loan Balances of all Fixed Rate Loans
is greater than $120,000,000, then, in each such case, an amount equal to the
product of (i) the Weighted Average Advance Rate with respect to Fixed
Rate Loans as of such date times (ii) the sum of the Outstanding
Loan Balances of all Fixed Rate Loans included in the Collateral on such
date.  If the Pool Yield is greater than
or equal to 7.5%, the Hedge Amount is $0. 
The Hedge Amount for Floating Rate Loans is $0.  The applicable Pool Yield for any day on
which the Pool Yield is not calculated shall be the most recently calculated
Pool Yield.”


 


(b)           Section 10.1(n) of the Sale
and Servicing Agreement is hereby amended and restated in its entirety as
follows:


 


“(n)         on any day, the aggregate Hedge
Notional Amount in effect for that day under all Hedge Transactions is less
than the Hedge Amount on that day, and the same continues unremedied for a
period of the later of 15 calendar days or the next succeeding Reporting Date;
or”


 


Pursuant to Section 8.6(h) of
the Sale and Servicing Agreement, the Administrative Agent hereby directs the
Trustee to enter into this Amendment.


 


SECTION 2.         WAIVER.


 


Each
of the undersigned parties hereby waives any and all defaults under the Sale
and Servicing Agreement (including Section 10.1(n) of the Sale and
Servicing Agreement), Unmatured Termination Events or Termination Events which
are or may be, immediately or with the passage of time, a result of or
occasioned solely by, for each date from and including January 1, 2007 to
and including the effective date of this Amendment, the occurrence of the
aggregate Hedge Notional Amount in effect for such date under all Hedge
Transactions being less than the Hedge Amount on such date.


 


SECTION 3.         AGREEMENT IN FULL
FORCE AND EFFECT AS WAIVED AND AMENDED.


 


Except
as specifically waived and amended hereby, all provisions of the Sale and
Servicing Agreement are hereby ratified and 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 4.         REPRESENTATIONS.


 


Each
of the Borrower and the Servicer represent and warrant as of the date of this
Amendment as follows:


 


 


- 2 -

















 


(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, as amended hereby; and


 


(vii)         upon giving effect
to this Amendment, there is no Termination Event, Unmatured Termination Event,
or Servicer Default.


 


SECTION 5.         CONDITIONS TO
EFFECTIVENESS.


 


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


 


(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 or
the Sale and Servicing Agreement.


 


 


- 3 -

















 


(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]


 


 


- 4 -

















 


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.


 


	
  CONDUIT
  PURCHASER:

  	
  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: Director

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE
  ADMINISTRATIVE AGENT  

  AND THE VFCC AGENT:

  	
  WACHOVIA
  CAPITAL MARKETS, LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Manav Suri

  
	
   

  	
   

  	
   Name: Manav Suri

  
	
   

  	
   

  	
   Title: Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE
  BORROWER:

  	
  ARES
  CAPITAL CP FUNDING LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Richard S. Davis

  
	
   

  	
   

  	
   Name: Richard S.
  Davis

  
	
   

  	
   

  	
   Title: Executive
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
  THE
  ORIGINATOR  

  AND THE SERVICER:

  	
  ARES
  CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Arougheti

  
	
   

  	
   

  	
   Name: Michael
  Arougheti

  
	
   

  	
   

  	
   Title: President

  



 


 


[SIGNATURES CONTINUED ON FOLLOWING
PAGE]


 

















 


	
  THE
  TRUSTEE:

  	
  U.S.
  BANK NATIONAL ASSOCIATION, 

  not in its individual capacity but solely as 

  Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Joel D. Cough

  
	
   

  	
   

  	
   Name: Joel D.
  Cough

  
	
   

  	
   

  	
   Title: Assistant
  Vice President

  



 


 


[SIGNATURES CONTINUED ON FOLLOWING
PAGE]


 

















 


	
  Acknowledged and Agreed
  to 

  as of the date first written above:

  	
   

  
	
   

  	
   

  
	
  WACHOVIA
  BANK, NATIONAL ASSOCIATION,

  as a Hedge Counterparty

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By: 

  	
  /s/ Kim V. Farr

  	
   

  
	
   

  	
   Name: Kim V. Farr

  	
   

  
	
   

  	
   Title: Director