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