Amendment

Amendment No. 4

by Ares
May 3rd, 2011

Exhibit 10.3

 

EXECUTION VERSION

 

AMENDMENT NO. 4

 

AMENDMENT NO. 4 dated as of March 25, 2011 between ARES CAPITAL CORPORATION (the “Borrower”), the “Lenders” party hereto and JPMORGAN CHASE BANK, N.A., in its capacity as Administrative Agent (the “Administrative Agent”) and as Issuing Bank (the “Issuing Bank”) under the Credit Agreement referred to below.

 

The Borrower, the “Lenders” and the Administrative Agent, are parties to a Senior Secured Revolving Credit Agreement dated as of December 28, 2005 and amended and restated as of January 22, 2010 (as modified and supplemented and in effect from time to time, the “Credit Agreement”), providing, subject to the terms and conditions thereof, for extensions of credit (by means of loans and letters of credit) to be made by said lenders to the Borrower in an aggregate principal or face amount not exceeding $810,000,000.

 

The Borrower has issued its convertible notes on the terms described in (a) the offering memorandum attached hereto as Exhibit A (the “Notes Prospectus”) and (b) the indenture attached hereto as Exhibit B (the “March Indenture” and, together with the Indenture (as defined in Amendment No. 3 to the Credit Agreement, dated as of January 25, 2011 (“Amendment No. 3”)) and any other indenture entered into by the Borrower with Similar Conversion Rights (as defined below), collectively, the “Indenture”), which terms include “conversion rights” triggered upon the occurrence of the events (i) summarized on page 17 of the Notes Prospectus and as more fully described therein under “Description of Notes—Conversion Rights” and (ii) set forth in Article 13 of the March Indenture (such conversion rights, including Physical Settlement, Cash Settlement and/or Combination Settlement, as each such term is defined in the March Indenture, referred to herein, collectively, as the “2011 Conversion Rights”).

 

The Borrower may in the future in accordance with the applicable terms of the Credit Agreement issue other convertible notes with conversion rights that are substantially consistent with the 2011 Conversion Rights (other than quantitative differences or differences in the maturity, timing, or amounts with respect to such 2011 Conversion Rights), including provision for “Physical Settlement”, “Cash Settlement” and/or “Combination Settlement” in substantially the same manner as the 2011 Conversion Rights (any such future conversion rights, “Similar Conversion Rights”).

 

The 2011 Conversion Rights or any Similar Conversion Rights, along with the Conversion Feature (as defined in Amendment No. 3) are referred to herein collectively as a “Permitted Conversion Feature”.

 

The parties hereto wish now to clarify in certain respects the interpretation of certain provisions of the Credit Agreement, taking into consideration the 2011 Conversion Rights and the possibility of convertible notes with Similar Conversion Rights in the future.

 

Section 1.  Definitions.  Except as otherwise defined in this Amendment No. 4, terms defined in the Credit Agreement are used herein as defined therein.

 



 

Section 2.  Amendment.  The last sentence of Section 1.03 of the Credit Agreement is hereby amended and restated in its entirety as follows:

 

“For the avoidance of doubt, (a) any settlement in respect of a Permitted Conversion Feature (as defined in Amendment No. 4 to this Agreement, dated as of March 25, 2011 (“Amendment No. 4”)) to the extent made through the delivery of common stock does not constitute a Restricted Payment and (b) a Permitted Conversion Feature (or the triggering and/or settlement thereof) shall not (i) constitute “amortization” for purposes of clause (a) of the definition of “Unsecured Indebtedness”, and any cash payment made by the Borrower in respect thereof shall constitute a “regularly scheduled payment, prepayment or redemption of principal and interest” within the meaning of clause (a) of Section 6.12 or (ii) constitute an event or condition described in clause (h) of Article VII unless the Borrower’s actions or omissions in respect of such Permitted Conversion Feature (or the triggering and/or settlement thereof) results in an Event of Default as defined in the Indenture (solely for purposes of this sentence, as defined in Amendment No. 4).  Any cash payments made in respect of a Permitted Conversion Feature shall otherwise comply with the terms and conditions of this Agreement.”

 

Section 3.  Effectiveness.  This Amendment No. 4 shall become effective upon receipt by the Administrative Agent of counterparts of this Amendment No. 4 executed by the Borrower, the Administrative Agent, the Issuing Bank and the Required Lenders.

 

Section 4.  Representations and Warranties.  The Borrower represents and warrants to the Lenders, the Issuing Bank and the Administrative Agent that (a) the representations and warranties 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 as if each reference in said Article III to “this Agreement” included reference to this Amendment No. 4 and (b) no Default or Event of Default has occurred and is continuing.

 

Section 5.  Miscellaneous.  Except as herein provided, the Credit Agreement shall remain unchanged and in full force and effect.  This Amendment No. 4 shall constitute a “Loan Document” for all purposes of the Credit Agreement and the other Loan Documents. This Amendment No. 4 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 Amendment No. 4 by signing any such counterpart.  This Amendment No. 4 shall be governed by, and construed in accordance with, the law of the State of New York.

 



 

IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 to the Credit Agreement to be duly executed and delivered as of the day and year first above written.

 

 

ARES CAPITAL CORPORATION

 

 

 

 

 

By:

/s/ Penni F. Roll

 

 

Name: Penni F. Roll

 

 

Title: Chief Financial Officer

 



 

 

ADMINISTRATIVE AGENT AND ISSUING BANK

 

 

 

JPMORGAN CHASE BANK, N.A.,

 

as Administrative Agent and Issuing Bank

 

 

 

 

 

By:

/s/ Sangeeta Mahadevan

 

 

Name: Sangeeta Mahadevan

 

 

Title: Executive Director

 



 

 

LENDERS

 

 

 

 

 

MULTICURRENCY LENDERS

 

 

 

DEUTSCHE BANK AG NEW YORK BRANCH,

 

as a Multicurrency Lender

 

 

 

 

 

By:

/s/ Kathleen Bowers

 

 

Name: Kathleen Bowers

 

 

Title: Director

 

 

 

 

 

 

 

By:

/s/ John S. McGill

 

 

Name: John S. McGill

 

 

Title: Director

 



 

 

LENDERS

 

 

 

 

 

MULTICURRENCY LENDERS

 

 

 

Bank of America, N.A.,

 

as a Multicurrency Lender

 

 

 

 

 

By:

/s/ James H. Harper

 

 

Name: James H. Harper

 

 

Title: Vice President

 



 

 

LENDERS

 

 

 

 

 

MULTICURRENCY LENDERS

 

 

 

The Bank of New York Mellon,

 

as a Multicurrency Lender

 

 

 

 

 

By:

/s/ Steven P. Cavaluzzo

 

 

Name: Steven P. Cavaluzzo

 

 

Title: Managing Director

 



 

 

LENDERS

 

 

 

 

 

MULTICURRENCY LENDERS

 

 

 

SunTrust Bank,

 

as a Multicurrency Lender

 

 

 

 

 

By:

/s/ William Christensen

 

 

Name: William Christensen

 

 

Title: Director

 



 

 

LENDERS

 

 

 

 

 

MULTICURRENCY LENDERS

 

 

 

UBS LOAN FINANCE LLC,

 

as a Multicurrency Lender

 

 

 

 

 

By:

/s/ Irja R. Otsa

 

 

Name: Irja R. Otsa

 

 

Title: Associate Director

 

 

 

 

 

 

 

By:

/s/ April Varner-Nanton

 

 

Name: April Varner-Nanton

 

 

Title: Director

 



 

 

DOLLAR LENDERS

 

 

 

BRANCH BANKING & TRUST COMPANY,

 

as a Dollar Lender

 

 

 

 

 

By:

/s/ Steve Whitcomb

 

 

Name: Steve Whitcomb

 

 

Title: Senior Vice President