Exhibit 10.4
EXECUTION COPY
AMENDMENT NO. 1 TO COMMERCIAL
LOAN SALE AGREEMENT
(ARCC CLO 2006 LLC)
THIS AMENDMENT NO. 1 TO THE
COMMERCIAL LOAN SALE AGREEMENT , dated as of July 17, 2009 (this “
Amendment ”), is entered into in connection with that
certain Commercial Loan Sale Agreement, dated as of July 7,
2006 (as amended, modified, waived, supplemented or restated
through the date hereof, the “ Sale Agreement
”), by and between Ares Capital Corporation, a Maryland
corporation, as the originator (together with its successors and
assigns in such capacity, the “ Originator ”)
and ARCC CLO 2006 LLC, a Delaware limited liability company, as the
trust depositor (together with its successors and assigns in such
capacity, the “ Trust Depositor ”).
Capitalized terms used and not otherwise defined herein shall have
the meanings given to such terms in the Sale Agreement or in the
Sale and Servicing Agreement, dated as of July 7, 2006 (as
amended, modified, waived, supplemented or restated through the
date hereof, the “ Sale and Servicing Agreement
”), by and among ARCC Commercial Loan Trust 2006, a statutory
trust created and existing under the laws of the State of Delaware,
as the issuer (together with its successors and assigns in such
capacity, the “ Issuer ”), ARCC CLO 2006 LLC, a
Delaware limited liability company, as the trust depositor
(together with its successors and assigns in such capacity, the
“ Trust Depositor ”), Ares Capital Corporation,
a Maryland corporation, as the servicer (together with its
successor and assigns, in such capacity, the “
Servicer ”), and as the originator (together with its
successor and assigns, in such capacity, the “
Originator ”), U.S. Bank National Association as the
trustee (together with its successors and assigns, in such
capacity, the “ Trustee ”), and as the
collateral administrator (together with its successor and assigns,
in such capacity, the “ Collateral Administrator
”), Lyon Financial Services as the backup servicer (together
with its successors and assigns, in such capacity, the “
Backup Servicer ”), and Wilmington Trust Company as
the owner trustee (together with its successors and assigns, in
such capacity, the “ Owner Trustee
”).
R E C I T A L S
WHEREAS , the Trust Depositor and the Originator have
entered into the Sale Agreement, and, pursuant to and in accordance
with Section 8.01 thereof, the parties hereto desire to amend
the Sale 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.
AMENDMENT .
The opening paragraph of
Section 3.01(p) of the Sale Agreement is hereby
amended and restated in its entirety as follows:
“(p)
Nonconsolidation . Each of the Trust Depositor and the
Originator conducts its affairs such that the Trust Depositor or
the Originator would not be substantively consolidated in the
estate of the other and their respective separate existences would
not be disregarded in the event of the Originator’s
bankruptcy. Without
