Exhibit 10.1


 


AMENDED AND RESTATED 

INVESTMENT ADVISORY AND MANAGEMENT AGREEMENT

BETWEEN

ARES CAPITAL CORPORATION

AND

ARES CAPITAL MANAGEMENT LLC


 


Agreement made
this 1st day of June 2006, by and between ARES CAPITAL CORPORATION,
a Maryland corporation (the “Corporation”), and ARES CAPITAL MANAGEMENT LLC, a
Delaware limited liability company (the “Adviser”).


 


WHEREAS, the
Corporation is a closed-end management company that has elected to be treated
as a business development company under the Investment Company Act of 1940 (the
“Investment Company Act”);


 


WHEREAS, the
Adviser is an investment adviser that has registered under the Investment
Advisers Act of 1940 (the “Advisers Act”); and


 


WHEREAS, on September 30,
2004, the Corporation and the Adviser entered into an Investment Advisory and
Management Agreement (the “Original Agreement”), pursuant to which the Adviser
agreed to furnish investment advisory services to the Corporation, that they
now wish to amend and restate in its entirety.


 


NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the parties hereby agree that the Original Agreement is hereby
amended and restated in its entirety to read as follows (and that the Original
Agreement shall be deemed of no further force and effect whatsoever):


 


1.             Duties of the Adviser.


 


(a)           The
Corporation hereby employs the Adviser to act as the investment adviser to the
Corporation and to manage the investment and reinvestment of the assets of the
Corporation, subject to the supervision of the Board of Directors of the
Corporation (the “Board”), for the period and upon the terms herein set forth,


 


(i)            in
accordance with the investment objectives, policies and restrictions that are determined
by the Corporation’s Board of Directors from time to time and disclosed to the
Adviser, which objectives, policies and restrictions shall initially be those set
forth in the Corporation’s Registration Statement on Form N-2, filed with
the Securities and Exchange Commission (the “SEC”) on October 12, 2005(the
“Registration Statement”),


 


(ii)           in
accordance with the Investment Company Act and


 


(iii)          during
the term of this Agreement in accordance with all other applicable federal and
state laws, rules and regulations, and the Corporation’s charter and by-laws.


 

















 


Without
limiting the generality of the foregoing, the Adviser shall, during the term
and subject to the provisions of this Agreement,


 


(i)            determine
the composition of the portfolio of the Corporation, the nature and timing of
the changes therein and the manner of implementing such changes;


 


(ii)           identify,
evaluate and negotiate the structure of the investments made by the
Corporation;


 


(iii)          close
and monitor the Corporation’s investments;


 


(iv)          determine
the securities and other assets that the Corporation will purchase, retain, or
sell;


 


(v)           perform
due diligence on prospective portfolio companies; and


 


(vi)          provide
the Corporation with such other investment advisory, research and related
services as the Corporation may, from time to time, reasonably require for the
investment of its funds.


 


The Adviser
shall have the power and authority on behalf of the Corporation to effectuate
its investment decisions for the Corporation, including the execution and
delivery of all documents relating to the Corporation’s investments and the
placing of orders for other purchase or sale transactions on behalf of the
Corporation. In the event that the Corporation determines to incur debt
financing, the Adviser will arrange for such financing on the Corporation’s
behalf, subject to the oversight and approval of the Board. If it is necessary
for the Adviser to make investments on behalf of the Corporation through a
special purpose vehicle, the Adviser shall have authority to create or arrange
for the creation of such special purpose vehicle and to make such investments
through such special purpose vehicle in accordance with the Investment Company
Act.


 


(b)           The
Adviser hereby accepts such employment and agrees during the term hereof to
render the services described herein for the compensation provided herein.


 


(c)           Subject
to the requirements of the Investment Company Act, the Adviser is hereby
authorized to enter into one or more sub-advisory agreements with other
investment advisers (each, a “Sub-Adviser”) pursuant to which the Adviser may
obtain the services of the Sub-Adviser(s) to assist the Adviser in providing
the investment advisory services required to be provided by the Adviser under Section 1(a)
of this Agreement. Specifically, the Adviser may retain a Sub-Adviser to
recommend specific securities or other investments based upon the Corporation’s
investment objectives and policies, and work, along with the Adviser, in
structuring, negotiating, arranging or effecting the acquisition or disposition
of such investments and monitoring investments on behalf of the Corporation,
subject to the oversight of the Adviser and the Corporation. The Adviser, and
not the Corporation, shall be responsible for any compensation payable to any
Sub-Adviser. Any sub-advisory agreement entered into by the Adviser shall be in
accordance with the requirements of the Investment Company Act and other
applicable federal and state law. Nothing in this subsection (c) will
obligate the Adviser to pay any expenses that are the expenses of the
Corporation under Section 2.


 


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(d)           The
Adviser, and any Sub-Adviser, shall for all purposes herein provided each be
deemed to be an independent contractor and, except as expressly provided or
authorized herein, shall have no authority to act for or represent the
Corporation in any way or otherwise be deemed an agent of the Corporation.


 


(e)           The
Adviser shall keep and preserve for the period required by the Investment
Company Act any books and records relevant to the provision of its investment
advisory services to the Corporation and shall specifically maintain all books
and records with respect to the Corporation’s portfolio transactions and shall
render to the Board such periodic and special reports as the Board may
reasonably request. The Adviser agrees that all records that it maintains for
the Corporation are the property of the Corporation and will surrender promptly
to the Corporation any such records upon the Corporation’s request, provided that
the Adviser may retain a copy of such records.


 


2.             Corporation’s Responsibilities and Expenses
Payable by the Corporation. All
investment professionals of the Adviser and its staff, when and to the extent
engaged in providing investment advisory services required to be provided by
the Adviser under Section 1(a), and the compensation and routine overhead
expenses of such personnel allocable to such services, will be provided and
paid for by the Adviser and not by the Corporation. The Corporation will bear
all costs and expenses of its operations and transactions, including those
relating to:


 


•                                          organization;


 


•                                          calculating
the Corporation’s net asset value (including the cost and expenses of any
independent valuation firm);


 


•                                          expenses
incurred by the Adviser payable to third parties, including agents, consultants
or other advisors, in monitoring financial and legal affairs for the
Corporation and in monitoring the Corporation’s investments and performing due
diligence on its prospective portfolio companies;


 


•                                          interest
payable on debt, if any, incurred to finance the Corporation’s investments;


 


•                                          offerings
of the Corporation’s common stock and other securities;


 


•                                          investment
advisory and management fees;


 


•                                          administration
fees, if any, payable under the Administration Agreement (the “Administration
Agreement”) between the Corporation and Ares Technical Administration, LLC or
any successor thereto (the “Administrator”), the Corporation’s administrator;


 


•                                          fees
payable to third parties, including agents, consultants or other advisors,
relating to, or associated with, evaluating and making investments;


 


•                                          transfer
agent and custodial fees;


 


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•                                          federal
and state registration fees;


 


•                                          all
costs of registration and listing the Corporation’s shares on any securities
exchange;


 


•                                          federal,
state and local taxes;


 


•                                          independent
directors’ fees and expenses;


 


•                                          costs
of preparing and filing reports or other documents required by governmental
bodies (including the SEC);


 


•                                          costs
of any reports, proxy statements or other notices to stockholders, including
printing costs;


 


•                                          the
Corporation’s allocable portion of the fidelity bond, directors and
officers/errors and omissions liability insurance, and any other insurance
premiums;


 


•                                          direct
costs and expenses of administration, including printing, mailing, long
distance telephone, copying, secretarial and other staff, independent auditors
and outside legal costs; and


 


•                                          all
other expenses incurred by the Corporation or the Administrator in connection
with administering the Corporation’s business (including payments under the
Administration Agreement between the Corporation and the Administrator based
upon the Corporation’s allocable portion of the Administrator’s overhead in performing
its obligations under the Administration Agreement, including rent and the
allocable portion of the cost of the Corporation’s officers and their
respective staffs (including travel expenses)).


 


3.             Compensation of the Adviser. The Corporation agrees to pay, and the Adviser
agrees to accept, as compensation for the services provided by the Adviser
hereunder, a base management fee (“Base Management Fee”) and an incentive fee (“Incentive
Fee”) as hereinafter set forth. The Corporation shall make any payments due
hereunder to the Adviser or to the Adviser’s designee as the Adviser may
otherwise direct. To the extent permitted by applicable law, the Adviser may
elect, or the Corporation may adopt a deferred compensation plan pursuant to
which the Adviser may elect, to defer all or a portion of its fees hereunder
for a specified period of time.


 


(a)           The
Base Management Fee shall be 1.50% per annum of the Corporation’s total assets
(other than cash or cash equivalents but including assets purchased with borrowed
funds). For services rendered during the period commencing from October 8, 2004
(the “Commencement Date”), through and including the end of the first calendar
quarter of the Corporation’s operations, the Base Management Fee will be
payable monthly in arrears. For services rendered after such time, the Base
Management Fee will be payable quarterly in arrears. Until January 1, 2005, the
Base Management Fee will be calculated based on the initial value of 


 


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the Corporation’s total assets after giving effect to the purchase of
the portfolio assets (the “Portfolio”) as contemplated by the Agreement
Regarding Purchase of Loan Portfolio, dated as of September 16, 2004, by
and between the Corporation and Royal Bank of Canada (other than cash or cash
equivalents but including assets purchased with borrowed funds). Subsequently,
the Base Management Fee will be calculated based on the average value of the
Corporation’s total assets (other than cash or cash equivalents but including
assets purchased with borrowed funds) at the end of the two most recently
completed calendar quarters, and appropriately adjusted for any share issuances
or repurchases during the current calendar quarter. Base Management Fees for
any partial month or quarter will be appropriately pro rated.


 


(b)           The
Incentive Fee shall consist of two parts, as follows:


 


(i)            One
part will be calculated and payable quarterly in arrears based on the Pre-Incentive
Fee net investment income for the quarter. “Pre-Incentive Fee net investment
income” means interest income, dividend income and any other income (including
any other fees (other than fees for providing managerial assistance), such as
commitment, origination, structuring, diligence and consulting fees or other
fees that the Corporation receives from portfolio companies) accrued by the
Corporation during the calendar quarter, minus the Corporation’s operating
expenses for the quarter (including the Base Management Fee, expenses payable
under the Administration Agreement, and any interest expense and dividends paid
on any issued and outstanding preferred stock, but excluding the Incentive Fee).


 


Pre-incentive
fee net investment income includes, in the case of investments with a deferred
interest feature (such as market discount, debt instruments with
payment-in-kind interest, preferred stock with payment-in-kind dividends and
zero coupon securities), accrued income that we have not yet received in cash. Pre-Incentive
Fee net investment income does not include any realized capital gains, realized
and unrealized capital losses or unrealized capital appreciation or depreciation.


 


Pre-Incentive
Fee net investment income, expressed as a rate of return on the value of the
Corporation’s net assets (defined as total assets less indebtedness) at the end
of the immediately preceding calendar quarter, will be compared to a “hurdle
rate” of 2.00% per quarter (8% annualized). The Corporation will pay the Adviser
an Incentive Fee with respect to the Corporation’s pre-Incentive Fee net
investment income in each calendar quarter as follows:


 


(A)          no
Incentive Fee in any calendar quarter in which the Corporation’s pre-Incentive
Fee net investment income does not exceed the hurdle rate;


 


(B)           100%
of the Corporation’s pre-Incentive Fee net investment income with respect to
that portion of such pre-Incentive Fee net investment income, if any, that
exceeds the hurdle rate but is less than 2.50% in any calendar quarter (10%
annualized); and


 


(C)           20%
of the amount of the Corporation’s pre-Incentive Fee net investment income, if
any, that exceeds 2.50% in any calendar quarter (10% annualized).


 


These
calculations will be appropriately pro rated for any period of less than three
months and adjusted for any share issuances or repurchases during the current
quarter.


 


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(ii)           The
second part of the Incentive Fee (the “Capital Gains Fee”) will be determined
and payable in arrears as of the end of each calendar year (or upon termination
of this Agreement as set forth below), commencing with the calendar year ending
on December 31, 2004, and is calculated at the end of each applicable year by
subtracting (1) the sum of the Corporation’s cumulative aggregate realized
capital losses and aggregate unrealized capital depreciation from (2) the
Corporation’s cumulative aggregate realized capital gains, in each case
calculated from the Commencement Date. If such amount is positive at the end of
such year, then the Capital Gains Fee for such year is equal to 20.0% of such
amount, less the aggregate amount of Capital Gains Fees paid in all prior years.
If such amount is negative, then there is no Capital Gains Fee for such year. If
this Agreement shall terminate as of a date that is not a calendar year end, the
termination date shall be treated as though it were a calendar year end for
purposes of calculating and paying a Capital Gains Fee.


 


For purposes
of this Section 3(b)(ii):


 


The cumulative
aggregate realized capital gains are calculated as the sum of the
differences, if positive, between (a) the net sales price of each
investment in the Corporation’s portfolio when sold and (b) the accreted
or amortized cost basis of such investment.


 


The cumulative
aggregate realized capital losses are calculated as the sum of the amounts
by which (a) the net sales price of each investment in the Corporation’s
portfolio when sold is less than (b) the accreted or amortized cost basis
of such investment.


 


The aggregate
unrealized capital depreciation is calculated as the sum of the
differences, if negative, between (a) the valuation of each investment in
the Corporation’s portfolio as of the applicable Capital Gains Fee calculation
date and (b) the accreted or amortized cost basis of such investment.


 


This amendment
and restatement of the Original Agreement shall not be treated as such a
termination.


 


(iii)          Payment
of any Incentive Fee otherwise earned by the Adviser shall be deferred (“Deferred
Incentive Fees”) if, during the most recent four full calendar quarter period
ending on or prior to the date such payment is to be made, the sum of (a) the
Corporation’s aggregate distributions to its stockholders and (b) the
change in the Corporation’s net assets (before taking into account any
incentive fees payable during that period) is less than 8.0% of the Corporation’s
net assets at the beginning of such period. These calculations will be
appropriately pro rated for the first three calendar quarters after the date of
the Original Agreement and adjusted for any share issuances or repurchases
during the relevant period. Any Deferred Incentive Fees shall be carried over
for payment in subsequent calculation periods by the Corporation, to the extent
such payment could be otherwise be made under this Agreement.


 


4.             Covenants of the Adviser. The Adviser covenants that it is registered as
an investment adviser under the Advisers Act. The Adviser agrees that its
activities will at all times be in compliance in all material respects with all
applicable federal and state laws governing its operations and investments.


 


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5.             Excess Brokerage Commissions. The Adviser is hereby authorized, to the fullest
extent now or hereafter permitted by law, to cause the Corporation to pay a
member of a national securities exchange, broker or dealer an amount of
commission for effecting a securities transaction in excess of the amount of
commission another member of such exchange, broker or dealer would have charged
for effecting that transaction, if the Adviser determines in good faith, taking
into account such factors as price (including the applicable brokerage
commission or dealer spread), size of order, difficulty of execution, and
operational facilities of the firm and the firm’s risk and skill in positioning
blocks of securities, that such amount of commission is reasonable in relation
to the value of the brokerage and/or research services provided by such member,
broker or dealer, viewed in terms of either that particular transaction or its
overall responsibilities with respect to the Corporation’s portfolio, and
constitutes the best net results for the Corporation.


 


6.             Limitations on the Employment of the Adviser. The services of the Adviser to the Corporation
are not exclusive, and the Adviser may engage in any other business or render
similar or different services to others including, without limitation, the
direct or indirect sponsorship or management of other investment based accounts
or commingled pools of capital, however structured, having investment
objectives similar to those of the Corporation, and nothing in this Agreement
shall limit or restrict the right of any member, manager, partner, officer or
employee of the Adviser to engage in any other business or to devote his or her
time and attention in part to any other business, whether of a similar or
dissimilar nature, or to receive any fees or compensation in connection
therewith (including fees for serving as a director of, or providing consulting
services to, one or more of the Corporation’s portfolio companies, subject to
applicable law). So long as this Agreement or any extension, renewal or
amendment remains in effect, the Adviser shall be the only investment adviser
for the Corporation, subject to the Adviser’s right to enter into sub-advisory
agreements. The Adviser assumes no responsibility under this Agreement other
than to render the services called for hereunder. It is understood that
directors, officers, employees and stockholders of the Corporation are or may
become interested in the Adviser and its affiliates, as directors, officers,
employees, partners, stockholders, members, managers or otherwise, and that the
Adviser and directors, officers, employees, partners, stockholders, members and
managers of the Adviser and its affiliates are or may become similarly
interested in the Corporation as stockholders or otherwise.


 


7.             Responsibility of Dual Directors, Officers and/or
Employees. If any person who is a
member, manager, partner, officer or employee of the Adviser or the
Administrator is or becomes a director, officer and/or employee of the
Corporation and acts as such in any business of the Corporation, then such member,
manager, partner, officer and/or employee of the Adviser or the Administrator
shall be deemed to be acting in such capacity solely for the Corporation, and
not as a member, manager, partner, officer or employee of the Adviser or the
Administrator or under the control or direction of the Adviser or the
Administrator, even if paid by the Adviser or the Administrator.


 


8.             Limitation of Liability of the Adviser;
Indemnification. The Adviser, its
members and their respective officers, managers, partners, agents, employees,
controlling persons, members and any other person affiliated with any of them
(collectively, the “Indemnified Parties”), shall not be liable to the
Corporation for any action taken or omitted to be taken by the Adviser in
connection with the performance of any of its duties or obligations under this 


 


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Agreement or otherwise as an investment
adviser of the Corporation, except to the extent specified in Section 36(b)
of the Investment Company Act concerning loss resulting from a breach of
fiduciary duty (as the same is finally determined by judicial proceedings) with
respect to the receipt of compensation for services. The Corporation shall
indemnify, defend and protect the Indemnified Parties (each of whom shall be
deemed a third party beneficiary hereof) and hold them harmless from and
against all damages, liabilities, costs and expenses (including reasonable
attorneys’ fees and amounts reasonably paid in settlement) incurred by the
Indemnified Parties in or by reason of any pending, threatened or completed
action, suit, investigation or other proceeding (including an action or suit by
or in the right of the Corporation or its security holders) arising out of or
otherwise based upon the performance of any of the Adviser’s duties or
obligations under this Agreement or otherwise as an investment adviser of the
Corporation. Notwithstanding the foregoing provisions of this Section 8 to
the contrary, nothing contained herein shall protect or be deemed to protect
the Indemnified Parties against or entitle or be deemed to entitle the
Indemnified Parties to indemnification in respect of, any liability to the
Corporation or its security holders to which the Indemnified Parties would
otherwise be subject by reason of willful misfeasance, bad faith or gross
negligence in the performance of any Indemnified Party’s duties or by reason of
the reckless disregard of the Adviser’s duties and obligations under this
Agreement (as the same shall be determined in accordance with the Investment
Company Act and any interpretations or guidance by the SEC or its staff
thereunder).


 


9.             Effectiveness, Duration and Termination of
Agreement. This Agreement shall
become effective as of the first date above written. This Agreement shall
remain in effect for one year after such date, and thereafter shall continue
automatically for successive annual periods, provided that such continuance is
specifically approved at least annually by


 


(a)           the
vote of the Board, or by the vote of stockholders holding a majority of the
outstanding voting securities of the Corporation and


 


(b)           the
vote of a majority of the Corporation’s Directors who are not parties to this
Agreement or “interested persons” (as such term is defined in Section 2(a)(19)
of the Investment Company Act) of any party to this Agreement, in accordance
with the requirements of the Investment Company Act. This Agreement may be
terminated at any time, without the payment of any penalty, upon 60 days’
written notice, by the vote of stockholders holding a majority of the
outstanding voting securities of the Corporation, or by the vote of the
Corporation’s Directors or by the Adviser.


 


This Agreement will automatically terminate
in the event of its “assignment” (as such term is defined for purposes of Section 15(a)(4)
of the Investment Company Act). The provisions of Section 8 of this
Agreement shall remain in full force and effect, and the Adviser shall remain
entitled to the benefits thereof, notwithstanding any termination of this
Agreement. Further, notwithstanding the termination or expiration of this
Agreement as aforesaid, the Adviser shall be entitled to any amounts owed under
Section 3 through the date of termination or expiration and Section 8
shall continue in full force and effect and apply to the Adviser and its
representatives as and to the extent applicable.


 


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10.           Amendments of this Agreement. This Agreement may not be amended or modified
except by an instrument in writing signed by all parties hereto, but the
consent of the Corporation must be obtained in conformity with the requirements
of the Investment Company Act.


 


11.           Governing Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York, including without limitation Sections 5-1401
and 5-1402 of the New York General Obligations Law and New York Civil Practice
Laws and Rules 327(b), and the applicable provisions of the Investment
Company Act, if any. To the extent that the applicable laws of the State of New
York, or any of the provisions herein, conflict with the applicable provisions
of the Investment Company Act, if any, the latter shall control. The parties
unconditionally and irrevocably consent to the exclusive jurisdiction of the
courts located in the State of New York and waive any objection with respect
thereto, for the purpose of any action, suit or proceeding arising out of or
relating to this Agreement or the transactions contemplated hereby.


 


12.           No Waiver. The failure of either party to enforce at any time for any period the
provisions of or any rights deriving from this Agreement shall not be construed
to be a waiver of such provisions or rights or the right of such party
thereafter to enforce such provisions, and no waiver shall be binding unless
executed in writing by all parties hereto.


 


13.           Severability. If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any law or public policy, all other terms and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party.


 


14.           Headings. The descriptive headings contained in this Agreement are for convenience
of reference only and shall not affect in any way the meaning or interpretation
of this Agreement.


 


15.           Counterparts. This Agreement may be executed in one or more counterparts, each of
which when executed shall be deemed to be an original instrument and all of
which taken together shall constitute one and the same agreement.


 


16.           Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given or made (and shall be deemed
to have been duly given or made upon receipt) by delivery in person, by
overnight courier service (with signature required), by facsimile, or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties at their respective principal executive office addresses.


 


17.           Entire Agreement. This Agreement constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes all prior agreements and
undertakings (including the Original Agreement), both written and oral, between
the parties with respect to such subject matter.


 


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18.           Certain
Matters of Construction.


 


(a)           The
words “hereof”, “herein”, “hereunder” and words of similar import shall refer
to this Agreement as a whole and not to any particular Section or provision of
this Agreement, and reference to a particular Section of this Agreement shall
include all subsections thereof.


 


(b)           Definitions
shall be equally applicable to both the singular and plural forms of the terms
defined, and references to the masculine, feminine or neuter gender shall
include each other gender.


 


(c)           The
word “including” shall mean including without limitation.


 


 


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IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be duly executed on
the date above written.


 


	
   

  	
  ARES CAPITAL
  CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael
  J. Arougheti

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael J.
  Arougheti

  
	
   

  	
   

  	
  Title: 

  	
  President

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ARES CAPITAL
  MANAGEMENT LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel
  F. Nguyen

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Daniel F.
  Nguyen

  
	
   

  	
   

  	
  Title: 

  	
  Chief
  Financial Officer

  
						



 


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