Exhibit
10.12
DATED 15 July 2009
RESOURCE CAPITAL FUNDING, LLC (as Borrower)
LEAF FINANCIAL CORPORATION (as Servicer)
BAYERISCHE HYPO-UND VEREINSBANK AG, NEW YORK BRANCH (as
Agent)
U.S. BANK NATIONAL ASSOCIATION (as Custodian)
U.S. BANK NATIONAL ASSOCIATION (as Agent’s Bank)
LYON FINANCIAL SERVICES, INC. (D/B/A U.S. BANK PORTFOLIO
SERVICES)
(as Backup Servicer)
BLACK FOREST FUNDING LLC (as Lender)
(FORMERLY
BLACK FOREST FUNDING CORPORATION)
NINTH AMENDMENT AGREEMENT IN RELATION TO BLACK
FOREST
FUNDING LLC RECEIVABLES LOAN AND SECURITY
AGREEMENT
– RESOURCE CAPITAL FUNDING, LLC
McDERMOTT WILL & EMERY UK LLP
7
Bishopsgate
London
EC2N
3AR
Tel: 020 7577 6900
Fax: 020
7577 6950
Contents
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Page
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1.
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DEFINITIONS AND
INTERPRETATION
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1
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2.
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CONSENTS,
INTERPRETATION AND AMENDMENTS
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2
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3.
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REPRESENTATIONS
AND WARRANTIES
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4
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4.
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NO LIABILITY AND
NON PETITION
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4
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5.
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GOVERNING LAW AND
JURISDICTION
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4
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6.
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CONFIDENTIALITY
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5
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7.
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MISCELLANEOUS
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5
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THIS NINTH AMENDMENT
AGREEMENT (this “ Agreement ”) is made on
this 15 day of July 2009.
BETWEEN:
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(1)
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RESOURCE CAPITAL FUNDING, LLC, (the “
Borrower ”);
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(2)
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LEAF FINANCIAL CORPORATION, (the “ Servicer
”);
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(3)
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BAYERISCHE HYPO-UND VEREINSBANK AG, NEW YORK BRANCH (the
“ Agent ”);
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(4)
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U.S. BANK NATIONAL ASSOCIATION, (the “
Custodian ”);
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(5)
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US BANK NATIONAL ASSOCIATION, (the “
Agent’s Bank ”);
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(6)
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LYON FINANCIAL SERVICES, INC. (D/B/A U.S. BANK PORTFOLIO
SERVICES ) (the “ Backup Servicer ”);
and
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(7)
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BLACK FOREST FUNDING LLC, (formerly BLACK FOREST
FUNDING CORPORATION ) (together with its successors and
assigns, the “ Lender ”),
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together (the “ Parties ”).
WHEREAS:
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(A)
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On March 31, 2006 the parties to this Agreement entered
into the Receivables Loan and Security Agreement, as defined
below.
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(B)
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The parties to this Agreement therefore wish to amend and
supplement the Receivables Loan and Security Agreement, as defined
below, as hereafter set out.
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NOW THIS AGREEMENT WITNESSES and it is agreed as
follows:
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1.
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DEFINITIONS AND INTERPRETATION
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1.1
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Except as otherwise expressly provided or unless the context
otherwise requires, in this Agreement the following terms have the
following meanings:
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“ Co-Issuer ” means Arabella Finance LLC;
“ Commercial Paper Notes ” means Euro Commercial
Paper Notes and U.S. Commercial Paper Notes;
“ Euro Commercial Paper Notes ” means commercial
paper notes not for sale within the United States nor to U.S.
persons, or for the account or benefit of, U.S. persons (as defined
in Regulation S under the United States Securities Act 1933) issued
by the Issuer;
- 1 -
“ Issuer ” means Arabella Finance Limited;
“ Person ” means an individual, partnership,
corporation (including a business trust), limited liability
company, joint stock company, trust, unincorporated association,
joint venture, government (or any agency or political subdivision
thereof) or other entity;
“ Receivables Loan and Security Agreement ”
means the receivables loan and security agreement dated as of
March 31, 2006 between, inter alios, the Lender, the Borrower,
the Agent and the Servicer as amended by the First Amendment
Agreement dated as of April 28, 2006, the Second Amendment
Agreement dated as of May 15, 2006, and the Third Amendment
Agreement dated as of June 29, 2006, and the Fourth Amendment
Agreement dated as of November 30, 2006, and the Fifth
Amendment Agreement dated as of December 15, 2006, and the
Sixth Amendment Agreement dated as of December 14, 2007, and
the Seventh Amendment Agreement dated as of June 16, 2008, and
the Eighth Amendment Agreement dated as of June 30, 2009 and
as further amended, modified, supplemented or restated from time to
time; and
“ U.S. Commercial Paper Notes ” means commercial
paper notes denominated in U.S. Dollars for sale in the United
States and issued by the Issuer and the Co-Issuer.
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1.2
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Words and expressions defined in the Receivables Loan and
Security Agreement, shall, except where the context otherwise
requires, have the same meaning in this Agreement (including the
recitals hereto). If there is an inconsistency between the
definitions herein and in the Receivables Loan and Security
Agreement, the definitions used herein shall apply;
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1.3
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References to “Clauses”, “sub-clauses”
and “Schedules” and other subdivisions are to
designated clauses and sub-clauses of and schedules to and other
subdivisions of this Agreement and a reference to a sub-clause
without further reference to a Clause is a reference to such
sub-clause as contained in the same Clause in which the reference
appears, and this rule shall also apply to Paragraphs and other
subdivisions;
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1.4
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The words “herein”, “hereof”,
“hereunder” and other words of similar import refer to
this Agreement as a whole and not to any particular provisions
hereof; and
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1.5
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In this Agreement, unless the context requires otherwise, words
importing the singular include the plural and vice versa and
words importing a gender include every gender. Clause headings are
inserted for reference only and shall be ignored in construing this
Agreement. All references to agreements, documents or instruments
in this Agreement mean such agreements, documents and instruments
as amended, novated, supplemented, varied or superseded from time
to time.
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2.
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CONSENTS, INTERPRETATION AND AMENDMENTS
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2.1.1
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Pursuant to Section 9.01(a) of the Receivables Lo
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