Exhibit
10.1


 


EXECUTION COPY


 


 


FIRST AMENDMENT AGREEMENT
AND WAIVER


 


FIRST AMENDMENT AGREEMENT AND WAIVER dated as of November 13, 2007 (“this
Agreement”) between ARES CAPITAL CORPORATION (the “Borrower”),
the Subsidiary Guarantors party hereto and the Lenders executing this Agreement.


 


The Borrower, the Lenders party thereto, and JPMorgan Chase Bank, N.A.,
in its capacity as Administrative Agent thereunder, are parties to a Senior
Secured Revolving Credit Agreement dated as of December 28, 2005 (as in effect
immediately prior to the effectiveness of the amendments and waivers set forth
in this Agreement, the “Credit Agreement”).


 


The Borrower has requested the Lenders to waive (a) compliance with
Section 5.08(b) of the Credit Agreement and Section 7.03 of the Guarantee and
Security Agreement, dated as of December 28, 2005 (the “Guarantee Agreement”)
as they relate to the Borrower’s ownership interests in ARCC LVCG Holdings LLC,
ARCC CLPB Corp., ARCC IGS Corp., ARCC PAH Corp., ARCC TTL Corp., ARCC VTH
Corp., ARCC WMA Corp. and a non-wholly owned subsidiary that may be established
in connection with Borrower’s investment in Ivy Hill Middle Market Credit Fund,
Ltd. (each, together with its respective subsidiaries, an “Excluded Entity”),
(b) compliance by each Excluded Entity with any covenant set forth in the
Credit Agreement or the Guarantee Agreement, (c) the requirement of the
Borrower to add each Excluded Entity as a “Subsidiary Guarantor” in accordance
with Section 5.08(a) of the Credit Agreement, (d) the Administrative Agent’s
right to reasonably request an account control agreement under Section
5.08(c)(ii) of the Credit Agreement with respect to the bank account identified
in Schedule 1 hereto (the “Imperial Account”) and (e) the Administrative
Agent’s right to request an opinion of counsel under Section 5.08(a) with
respect to the Subsidiary Guarantors party hereto becoming party to the
Guarantee and Security Agreement.  The
Lenders are willing to waive such requirements on the terms and conditions set
forth herein.


 


The Borrower and the Lenders wish now to amend the Credit Agreement in
certain respects, and accordingly, the parties hereto hereby agree as follows:


 


Section 1.  Definitions.  Except as otherwise defined in this Agreement,
 terms defined in the Credit Agreement
are used herein as defined therein.


 


Section 2.  Amendments.  Subject to the satisfaction of the conditions
precedent specified in Section 5 below, but effective as of the date
hereof:


 


(a)           Section 2.07(e)(i)(A) of the Credit
Agreement shall be amended to read in its entirety as follows:


 


“(A)        the minimum amount of such increase
shall be $25,000,000 (or such other amount as shall be determined in the
discretion of the Administrative Agent) or a larger multiple of $25,000,000 (or
such other amount) in excess thereof, and the maximum amount of all increases
pursuant to this clause (e) (excluding (i) the Commitment Increase from
$250,000,000 to $350,000,000 on March 1, 2007 and (ii) the expected Commitment
Increase from $350,000,000 to $510,000,000 on November 13, 2007) shall not
exceed $255,000,000;”


 


 


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(b)           The parenthetical in
each of Sections 5.13(a), (b) and (d) shall be amended and restated to read as
follows:


 


“(which, for purposes of this calculation, shall exclude the aggregate
amount of investments in, and advances to, Designated Subsidiaries and Excluded
Entities (as defined in the First Amendment Agreement and Waiver hereto))”


 


Section 3.  Waiver.  Subject to the satisfaction of the conditions
precedent specified in Section 5 below and the additional conditions set forth
in this Section 3, but effective as of the date hereof, the Lenders hereby
waive (a) compliance by the Borrower with Section 5.08(b) of the Credit
Agreement and with Section 7.03 of the Guarantee Agreement as they relate to
the Borrower’s ownership interests in each Excluded Entity, (b) compliance by
each Excluded Entity with any covenant set forth in the Credit Agreement or the
Guarantee Agreement, (c) the requirement of the Borrower to add each Excluded
Entity as a “Subsidiary Guarantor” in accordance with Section 5.08(a) of the
Credit Agreement, (d) the Administrative Agent’s right to reasonably request an
account control agreement under Section 5.08(c)(ii) with respect to the
Imperial Account, and (e) the Administrative Agent’s right to request an
opinion of counsel under Section 5.08(a) with respect to the Subsidiary
Guarantors party hereto becoming party to the Guarantee and Security Agreement;
in each case on the condition that (x) with respect to the waivers referred to
in the foregoing clauses (a), (b) and (c), any ownership interest in, any investment
in, and any advances to, an Excluded Entity shall be excluded from the
calculation of the Borrowing Base under Section 5.13 of the Credit Agreement, (y)
in the case of the waiver referred to in the foregoing clause (d), the average
daily closing balance during any 30-day period shall be at all times not more than
$300,000, and (z) in the case of the waiver referred to in the foregoing clause
(e), the Borrower will deliver to the Administrative Agent within 45 days after
the date hereof an opinion of counsel covering no conflicts relating to (i) the
Sale and Servicing Agreement dated as of November 3, 2004 as amended, restated
or otherwise modified on or prior to the date hereof (the “Sale and
Servicing Agreement”) between Ares Capital Corporation, as the Originator
and as the Servicer, Ares Capital CP Funding LLC, as the Borrower, each of the
conduit purchasers and institutional purchasers, from time to time party
thereto, as the Purchasers, each of the purchaser agents from time to time
party thereto, as the Purchaser Agents, Wachovia Capital Markets, LLC, as the
Administrative Agent, U.S. Bank National Association, as the Trustee and Lyon
Financial Services, Inc., as the Backup Servicer, (ii) the Purchase and Sale
Agreement dated as of November 3, 2004 as amended, restated or otherwise
modified on or prior to the date hereof (the “Purchase and Sale Agreement”)
between Ares Capital Corporation, as the Seller and Ares Capital CP Funding
LLC, as the Buyer, (iii) the Sale and Servicing Agreement dated as of July 7,
2006 as amended, restated or otherwise modified on or prior to the date hereof
(the “2006 Sale and Servicing Agreement”) between ARCC Commercial Loan
Trust 2006, as the Issuer, ARCC CLO 2006 LLC, as the Trust Depositor, Ares
Capital Corporation, as the Originator and as the Servicer, U.S. Bank National
Association, as the Trustee and as the Collateral Administrator, Lyon Financial
Services, Inc. (d/b/a U.S. Bank Portfolio Services), as the Backup Servicer and
Wilmington Trust Company, as the Owner Trustee, and (iv) certain other
agreements to be agreed.  The waivers
contained in this Agreement shall be limited as written and nothing herein
shall be deemed to constitute a waiver of any other term, provision or
condition of the Credit Agreement or any other Loan Document in any other
instance than as set forth in this Agreement or prejudice any right or remedy
that the Administrative Agent, the Collateral Agent or any Lender may have or
may in the future have under the Credit Agreement or any other Loan Document.


 


 


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Section 4.  Representations and Warranties.  Each Obligor represents and warrants to the
Lenders and the Administrative Agent, that, after giving effect to the waivers
set forth in Section 3 herein, (a) the representations and warranties
applicable to it set forth in Article III of the Credit Agreement, and in each
of the other Loan Documents, are true and correct in all material respects on
the date hereof as if made on and as of the date hereof (or, if any such
representation or warranty is expressly stated to have been made as of a
specific date, such representation or warranty shall be true and correct in all
material respects as of such specific date) and after giving effect to this Agreement,
and (b) no Default or Event of Default has occurred and is continuing.


 


Section 5.  Conditions Precedent.  The amendments and waivers set forth in
Sections 2 and 3 hereof shall become effective, as of the date hereof,
upon the execution and delivery of this Agreement by the Borrower, the
Subsidiary Guarantors and the Required Lenders, consisting, as provided in the Credit
Agreement, of Lenders having Revolving Credit Exposures and unused Commitments
representing more than 50% of the sum of the total Revolving Credit Exposures
and unused Commitments as at the date hereof.


 


Section 6.  Miscellaneous.


 


Except as herein provided, the Credit Agreement shall remain unchanged
and in full force and effect.  This Agreement
may be executed in any number of counterparts, all of which taken together
shall constitute one and the same amendatory instrument and any of the parties hereto
may execute this Agreement by signing any such counterpart.  Delivery of an executed counterpart of a
signature page to this Agreement by electronic transmission shall be effective
as delivery of a manually executed counterpart of this Agreement.  This Agreement shall be governed by, and
construed in accordance with, the law of the State of New York.


 


Section 7.  Confirmation of Security Documents. By
its execution on the respective signature lines provided below, each of the
Obligors hereby confirms and ratifies all of its obligations and the Liens
granted by it under the Security Documents to which it is a party and confirms that all references in such Security
Documents to the “Credit Agreement” (or words of similar import) refer to the Credit
Agreement as amended hereby without impairing any such obligations or Liens in
any respect.


 


Section 8.  Loan Documents.  This Agreement is a Loan Document for all purposes
of the Credit Agreement.  References in
the Credit Agreement (including references to the Credit Agreement as amended
hereby) to “this Agreement” (and indirect references such as “hereunder”, “hereby”,
“herein” and “hereof”) shall be deemed to be references to the Credit Agreement
as amended hereby.


 


 


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IN WITNESS WHEREOF, the
parties hereto have caused this Agreement to the Credit Agreement to be duly
executed and delivered as of the day and year first above written.


 


	
   

  	
  BORROWER

  
	
   

  	
   

  
	
   

  	
  ARES CAPITAL CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard Davis

  
	
   

  	
   

  	
  Name:

  	
  Richard Davis

  
	
   

  	
   

  	
  Title:

  	
  CFO

  



 


 


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  SUBSIDIARY GUARANTORS

  
	
   

  	
   

  
	
   

  	
  ARES CAPITAL FL HOLDINGS
  LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Michael Arougheti

  
	
   

  	
   

  	
  Name: 

  	
  Michael Arougheti

  
	
   

  	
   

  	
  Title: 

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
  ARCC CIC FLEX CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Richard Davis

  
	
   

  	
   

  	
  Name: 

  	
  Richard Davis

  
	
   

  	
   

  	
  Title: 

  	
  Secretary & Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARCC IMPERIAL CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Richard Davis

  
	
   

  	
   

  	
  Name: 

  	
  Richard Davis

  
	
   

  	
   

  	
  Title: 

  	
  CFO

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARCC IMPERIAL LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  ARCC Imperial Corporation, its Managing Member

  
	
   

  	
   

  	
   

  
	
   

  	
  By:
  

  	
  /s/
  Richard Davis

  
	
   

  	
   

  	
  Name: 

  	
  Richard Davis

  
	
   

  	
   

  	
  Title:

  	
  CFO

  



 


 


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  LENDERS

  
	
   

  
	
   

  	
  BMO Capital
  Markets Financing, Inc.

  
	
   

  
	
   

  	
  By:

  	
   /s/ Masami Hida

  	
   

  
	
   

  	
  Name:

  	
  Masami Hida

  
	
   

  	
  Title:

  	
  Vice President

  
					



 


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  LENDERS

  
	
   

  
	
   

  	
  Merrill Lynch
  Capital Corporation

  
	
   

  
	
   

  	
  By:

  	
   /s/ John C. Rowland

  	
   

  
	
   

  	
  Name:

  	
  John C. Rowland

  
	
   

  	
  Title:

  	
  Vice President

  
					



 


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  LENDERS

  
	
   

  
	
   

  	
  SUNTRUST BANK

  
	
   

  
	
   

  	
  By:

  	
   /s/ Robert S. Ashcom

  	
   

  
	
   

  	
  Name:

  	
  Robert S. Ashcom

  
	
   

  	
  Title:

  	
  Director

  
					



 


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  LENDERS

  
	
   

  
	
   

  	
  Commerzbank AG,
  New York and Grand

  Cayman Branches

  
	
   

  
	
   

  	
  By:

  	
   /s/ Arndt E. Bruns

  	
   

  
	
   

  	
  Name:

  	
  Arndt E. Bruns

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  
	
   

  	
  By:

  	
   /s/ Joseph J. Hayes

  	
   

  
	
   

  	
  Name:

  	
  Joseph J. Hayes

  
	
   

  	
  Title:

  	
  Vice President

  
					



 


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  LENDERS

  
	
   

  
	
   

  	
  UBS LOAN FINANCE
  LLC

  
	
   

  	
  [insert above name of lender]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Mary E. Evans

  	
   

  
	
   

  	
  Name:

  	
  Mary E. Evans

  
	
   

  	
  Title:

  	
  Associate
  Director

  
	
   

  
	
   

  	
  By:

  	
   /s/ Irja R. Otsa

  	
   

  
	
   

  	
  Name:

  	
  Irja R. Otsa

  
	
   

  	
  Title:

  	
  Associate
  Director

  
					



 


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  JPMORGAN CHASE
  BANK, N.A.,

  
	
   

  	
  As LENDER

  
	
   

  
	
   

  	
   

  
	
   

  
	
   

  	
  By:

  	
   /s/ Richard J. Poworoznek

  	
   

  
	
   

  	
  Name:

  	
  Richard J.
  Poworoznek

  
	
   

  	
  Title:

  	
  Executive
  Director

  
	
   

  	
   

  	
  JPMorgan Chase
  Bank, N.A.

  
					



 


 


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  LENDERS

  
	
   

  
	
   

  	
  WACHOVIA BANK,
  NATIONAL ASSOCIATION

  
	
   

  
	
   

  	
  By:

  	
   /s/ David Shutley

  	
   

  
	
   

  	
  Name:

  	
  David Shutley

  
	
   

  	
  Title:

  	
  Director

  
					



 


 


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  LENDERS

  
	
   

  
	
   

  	
  KBC Bank N.V.

  
	
   

  
	
   

  	
  By:

  	
   /s/ Lawrence J. Manochio

  	
   

  
	
   

  	
  Name:

  	
  Lawrence J.
  Manochio

  
	
   

  	
  Title:

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
  By:

  	
   /s/ Robert Shauffer

  	
   

  
	
   

  	
  Name:

  	
  Robert Shauffer

  
	
   

  	
  Title:

  	
  First Vice
  President

  
					



 


 


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