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


 

















 


limitation
to any of the foregoing, the Trust Depositor has not and shall not, and solely
with respect to clause (xxxii) below, the Originator has not and shall
not:”


 


SECTION 2.         AGREEMENT IN FULL FORCE AND EFFECT AS AMENDED.


 


Except as specifically
amended hereby, all provisions of the Sale Agreement are hereby ratified and
shall remain in full force and effect. 
After this Amendment becomes effective, all references to the Sale
Agreement, and corresponding references thereto or therein such as “hereof,” “herein,”
or words of similar effect referring to the Sale Agreement shall be deemed to
mean the Sale Agreement as amended hereby. 
This Amendment shall not be deemed to expressly or impliedly waive,
amend or supplement any provision of the Sale Agreement other than as expressly
set forth herein, and shall not constitute a novation of the Sale Agreement.


 


SECTION 3.         REPRESENTATIONS.


 


Each of the Originator and
the Trust Depositor, severally for itself only, represents and warrants as of
the date of this Amendment as follows:


 


(i)            it is duly incorporated or
organized, validly existing and in good standing under the laws of its jurisdiction
of incorporation or organization;


 


(ii)           the execution, delivery and
performance by it of this Amendment and the Sale Agreement as amended hereby
are within its powers, have been duly authorized, and do not contravene (A) its
charter, by-laws, or other organizational documents, or (B) any Applicable
Law;


 


(iii)          no consent, license, permit, approval
or authorization of, or registration, filing or declaration with any
governmental authority, is required in connection with the execution, delivery,
performance, validity or enforceability of this Amendment and the Sale
Agreement as amended hereby by or against it;


 


(iv)          this Amendment has been duly executed
and delivered by it;


 


(v)           each of this Amendment and the Sale
Agreement as amended hereby constitutes its legal, valid and binding
obligation, enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’
rights generally or by general principles of equity;


 


(vi)          it is not in default under the Sale
Agreement, as amended hereby; and


 


(vii)         upon giving effect to this Amendment,
there is no Servicer Default under the Sale and Servicing Agreement.


 


SECTION 4.         CONDITIONS TO EFFECTIVENESS.


 


Pursuant to Sections 8.01(a) and
(c)-(d) of the Sale Agreement, the effectiveness of this Amendment is
conditioned upon furnishing written notification to each Rating Agency,


 


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obtaining
written confirmation from Moody’s that this Amendment satisfies the Moody’s
Rating Condition, obtaining written confirmation from S&P that this
Amendment satisfies the S&P Rating Condition, and obtaining the consent of
the Trustee. Upon satisfaction of the foregoing conditions, the Sale Agreement
as amended hereby shall be deemed to be effective as of July 7, 2006.


 


SECTION 5.         MISCELLANEOUS.


 


(a)           For
the avoidance of doubt, the undersigned agree that the indemnities set forth in
Article XII of the Sale and Servicing Agreement shall apply to the Trustee
with respect to the actions the Trustee is taking in connection with this
Amendment.


 


(b)           This
Amendment may be executed in any number of counterparts (including by
facsimile), and by the different parties hereto on the same or separate
counterparts, each of which shall be deemed to be an original instrument but
all of which together shall constitute one and the same agreement.


 


(c)           The
descriptive headings of the various sections of this Amendment are inserted for
convenience of reference only and shall not be deemed to affect the meaning or
construction of any of the provisions hereof.


 


(d)           This
Amendment may not be amended or otherwise modified except as provided in the
Sale Agreement.


 


(e)           The
failure or unenforceability of any provision hereof shall not affect the other
provisions of this Amendment or the Sale Agreement.


 


(f)            Whenever
the context and construction so require, all words used in the singular number
herein shall be deemed to have been used in the plural, and vice versa, and the
masculine gender shall include the feminine and neuter and the neuter shall
include the masculine and feminine.


 


(g)           This
Amendment and the Sale Agreement represent the final agreement between the
parties only with respect to the subject matter expressly covered hereby and
may not be contradicted by evidence of prior, contemporaneous or subsequent
oral agreements between the parties. 
There are no unwritten oral agreements between the parties.


 


(h)           THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES UNDER THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH THE CHOICE OF LAW PROVISIONS SET FORTH IN THE SALE AGREEMENT
AND SHALL BE SUBJECT TO THE WAIVER OF JURY TRIAL AND NOTICE PROVISIONS SET
FORTH IN THE SALE AGREEMENT.


 


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IN WITNESS WHEREOF, the
undersigned have caused this Amendment to be executed by their respective
officers thereunto duly authorized, as of the date first above written.


 


 


	
  THE ORIGINATOR:

  	
  ARES
  CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Joshua M. Bloomstein

  
	
   

  	
   

  	
  Name:
  Joshua M. Bloomstein

  
	
   

  	
   

  	
  Title:
  Authorized Signatory

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  THE TRUST DEPOSITOR:

  	
  ARCC
  CLO 2006 LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  ARES CAPITAL CORPORATION, its sole member

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Richard S. Davis

  
	
   

  	
   

  	
  Name:
  Richard S. Davis

  
	
   

  	
   

  	
  Title:
  Chief Financial Officer

  
				



 


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ACKNOWLEDGED 

AND AGREED TO BY:


 


 


	
  THE TRUSTEE:

  	
  U.S.
  BANK NATIONAL ASSOCIATION,

  as the Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  John T. Edwards

  
	
   

  	
   

  	
  Name:
  John T. Edwards

  
	
   

  	
   

  	
  Title:
  Assistant Vice President