SUPPLEMENTAL INDENTURE
Exhibit 10.2
EXECUTION
VERSION
THIS SUPPLEMENTAL INDENTURE, dated as of May 6, 2008 (this “Supplemental Indenture”) is
entered into by and between Deerfield Capital LLC, a Delaware limited liability company
(formerly Deerfield Triarc Capital LLC) (the “Company”), and The Bank of New York
Trust Company, National Association, a national banking association (as successor to
JPMorgan Chase Bank, National Association), as trustee (the “Trustee”).
Reference is made to the Junior Subordinated Indenture dated as of August 2, 2006 (the
“Indenture”) by and between the Company and the Trustee. Capitalized terms used herein and not
defined herein shall have the meanings given to such terms under the Indenture.
WHEREAS, the Company desires to, among other things, (a) amend Section 1.1,
Section 1.5(b) and Section 5.1 of the Indenture, and (b) amend Article X of the
Indenture to provide for additional covenants of the Company; and
WHEREAS, the execution and delivery by the Company of this Supplemental Indenture has been
duly authorized by all requisite corporate action and all other action required to make this
Supplemental Indenture a valid and binding instrument has been duly taken and performed.
NOW, THEREFORE, in consideration of the foregoing, the Trustee and the Company are entering
into this Supplemental Indenture pursuant to Section 9.2 of the Indenture as follows:
ARTICLE I
AMENDMENTS TO INDENTURE
AMENDMENTS TO INDENTURE
Section 1.01 The definition of “Corporate Trust Office” under Section 1.1 of
the Indenture is deleted in its entirety and replaced with the following:
“Corporate Trust Office” means the principal office of the Trustee at which at any
particular time its corporate trust business shall be administered, which office at the date
of this Indenture is located at 000 Xxxxxx Xxxxxx, 00xx Xxxxx, Xxxxxxx, Xxxxx
00000 Attn: Global Corporate Trust – Deerfield Capital Trust II. All notices and
correspondence to the Trustee hereunder shall be addressed to Xxxxxxxx Xxxxxxx, telephone
number (000) 000-0000.
Section 1.02 The definition of “Guarantor” under Section 1.1 of the Indenture
is deleted in its entirety and replaced with the following:
“Guarantor” means Deerfield Capital Corp., a Maryland corporation, as successor to
Deerfield Triarc Capital Corp., and any other permitted successors and assigns.
Section 1.03 Section 1.1 of the Indenture is amended by adding the following
defined terms:
“Consolidated Net Worth” means, at any date, the aggregate equity of the Guarantor, the
Company and their Subsidiaries on a consolidated basis determined in accordance with GAAP
(which equity shall include any preferred stock issued by the Guarantor or the Company or
any of their Subsidiaries so long as such preferred stock is subordinate and subject in
right of payment to the prior payment in full of all Senior Debt and the Securities).
“First Indenture” has the meaning specified in Section 5.1(h).
“Management Company” means Deerfield Capital Management LLC, a Delaware limited
liability company.
“Maximum Indebtedness” has the meaning specified in Section 10.9(c).
“Seller Notes” means, collectively, (i) those certain Series A Senior Secured Notes
issued by DFR Merger Company, LLC and Deerfield & Company due in calendar year 2012 and (ii)
those certain Series B Senior Secured Notes issued by DFR Merger Company, LLC and Deerfield
& Company LLC due in calendar year 2012.
Section 1.04 Section 1.5(b) is hereby deleted in its entirety and replaced
with the following:
(b) the Company by the Trustee, any Holder or any holder of Preferred Securities shall
be sufficient for every purpose hereunder if in writing and mailed, first class, postage
prepaid, to the Company addressed to it at Deerfield Capital Corp., 0000 Xxxxx Xxxxx Xxxx,
Xxxxxxxx, Xxxxxxxx 00000, or at any other address previously furnished in writing to the
Trustee by the Company.
Section 1.05 Section 5.1 of the Indenture is amended to add additional Events
of Default by (i) deleting the word “or” from the end of Section 5.1(e), (ii) deleting “.”
from the end of Section 5.1(f) and replacing it with “;” and (iii) adding the following new
Section 5.1(g) and (h):
(g) any holder of the Seller Notes (i) exercises any rights of foreclosure against any
collateral of the Guarantor, the Company or any of their Subsidiaries or (ii) takes any
other affirmative steps in furtherance of a foreclosure against any collateral of the
Guarantor, the Company or any of their Subsidiaries; or
(h) the occurrence of an Event of Default under, and as defined in, that certain Junior
Subordinated Indenture, dated September 29, 2005, by and between the Company and the
Trustee, as amended by that certain Supplemental Indenture, dated the date hereof, by and
between the Company and the Trustee (as the same may be further modified, amended or
supplemented, the “First Indenture”).
Section 1.06 Section 7.3(b)(iii) of the Indenture is hereby deleted and replaced with
the following:
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(iii) Taberna Capital Management LLC, 000 Xxxx Xxxxxx, Xxxxx 00, Xxx Xxxx, Xxx Xxxx
00000, Attn: Xxxxxxx Xxxxx
Section 1.07 Section 10.6(d) of the Indenture is deleted in its entirety and
replaced with the following:
(d) Minimum Consolidated Net Worth. From and after the date that all of the
obligations under the First Indenture are satisfied in full (including all of the securities
issued in connection therewith) and until the Securities and all of the other obligations
under this Indenture have been paid and satisfied in full, the Company shall maintain a
Consolidated Net Worth of not less than One Hundred Seventy-Five Million Dollars
($175,000,000).
Section 1.08 Section 10.7 of the Indenture is hereby amended to replace the
text “Section 10.6” with the following text: “Section 10.6, 10.9 or
10.10”.
Section 1.09 Article X of the Indenture is amended by adding the following
Sections 10.9 and 10.10:
SECTION 10.9. Management Company Covenants.
(a) The Company shall cause the Management Company to be solely responsible for all asset
management activities of the Company, its Subsidiaries and any of their affiliates. The Company
shall not permit its Subsidiaries or any of their affiliates (either presently existing or
subsequently formed entities), other than the Management Company, to conduct such asset management
activities unless (i) otherwise required by law or regulation and (ii) such management activities
are conducted by one or more Subsidiaries of Deerfield & Company LLC, a Delaware limited liability
company, which Subsidiaries shall be subject to all provisions contained herein with respect to the
Management Company.
(b) The Company shall not, and shall not permit any of their Subsidiaries to, directly or
indirectly, without the prior written consent of the Holders of not less than a majority in
aggregate principal amount of the outstanding Preferred Securities, (a) sell, transfer, pledge or
issue, in one or more transactions, any direct or indirect beneficial ownership interests in the
Management Company which results in (i) any Person, whether directly or indirectly, other than the
Company (and any Subsidiaries wholly owned, directly or indirectly, by the Company) owning any
equity interests in the Management Company or any rights to distributions from the Management
Company or (ii) any Person other than the Company having responsibility for the management of the
Management Company and the administration of the day-to-day business and affairs of the Management
Company or (b) sell, transfer, pledge or assign any material asset of the Management Company;
provided, however, that the existing liens under the documents relating to the Seller Notes shall
not constitute a breach of this Section 10.9(b).
(c) The Company shall not permit the Management Company to incur Debt in excess of $85,000,000
(“Maximum Indebtedness”) without the prior written consent of the Holders of not less than a
majority in aggregate principal amount of the outstanding Preferred Securities; provided, however,
that any non-recourse debt incurred in connection with the Management Company’s investment in new
assets managed or operated by the Management Company and
secured by such investment and/or the fees received for managing and/or operating such new
asset shall not be included in the determination of Maximum Indebtedness.
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SECTION 10.10 Seller Notes.
The Company shall not, and shall cause the Management Company not to, enter into or permit any
affiliate of any of them to enter into any amendment of the Seller Notes without the prior written
consent of the Holders of not less than a majority in aggregate principal amount of the outstanding
Preferred Securities; provided, that the Guarantor, the Management Company, the Company and/or any
affiliate of any of them may amend any of the Seller Notes without obtaining such consent if (i)
such amendment does not increase the interest rate or shorten the maturity of such Seller Notes and
(ii) the terms of such amendment, taken as a whole, do not result in a material adverse change to
the Management Company, the Company or their respective businesses or the holders of the Preferred
Securities. Notwithstanding the foregoing, the Company may permit the issuer of the Seller Notes
to make payments in kind, in lieu of interest, provided that any payments in kind made will be
included in the calculation of the Maximum Indebtedness described in Section 10.9(c).
ARTICLE II
MISCELLANEOUS
MISCELLANEOUS
Section 2.01 By execution of this Supplemental Indenture, each of the Administrative
Trustees, on behalf of Deerfield Capital Trust II (formerly Deerfield Triarc Capital Trust II), as
Holder of 100% in aggregate principal amount of the Outstanding Securities and Taberna Preferred
Funding VII, Ltd., as Holder of 100% in aggregate Liquidation Amount of the outstanding Preferred
Securities (“TPF VII”), hereby in accordance with Section 9.2 of the Indenture, (i)
consents to the Trustee and the Company executing and delivering this Supplemental Indenture, (ii)
directs the Trustee to execute and deliver this Supplemental Indenture and (iii) agrees to and does
hereby release the Trustee for any action taken or to be taken by the Trustee in connection with
its execution and delivery of this Supplemental Indenture and for any liability or responsibility
arising in connection herewith. TPF VII hereby in accordance with Section 9.2 of the Indenture,
(a) directs the Administrative Trustees and the Property Trustee to execute and deliver this
Supplemental Indenture and (b) agrees to and does hereby release the Administrative Trustees and
the Property Trustee for any action taken or to be taken by the Administrative Trustees and the
Property Trustee, respectively, in connection with their execution and delivery of this
Supplemental Indenture and for any liability or responsibility arising in connection herewith.
Section 2.02 The Trustee accepts the trust in this Supplemental Indenture declared and
provided upon the terms and conditions set forth in the Indenture. The Trustee shall not be
responsible in any manner whatsoever for the validity or sufficiency of this Supplemental Indenture
or the due execution hereof by the Company or for or in respect of the recitals and statements
contained herein, all of which recitals and statements are made solely by the Company.
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Section 2.03 Except as hereby expressly modified, the Indenture and the Securities
issued thereunder are ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect.
Section 2.04 This Supplemental Indenture shall become effective only upon the
satisfaction of the following conditions: (i) the Trustee shall have received a counterpart of
this Supplemental Indenture duly executed by the Company and the Trustee, (ii) the delivery of an
Opinion of Counsel relating to this Supplemental Indenture in accordance with Sections 1.2
and 9.3 of the Indenture, (iii) the delivery of an Officer’s Certificate relating to this
Supplemental Indenture in accordance with Sections 1.2 and 9.3 of the Indenture,
and (iv) the Company shall have paid all attorneys’ fees and disbursements of the holders of the
Preferred Securities and the Trustee in connection with this Supplemental Indenture, which legal
expenses shall be paid simultaneously with the execution of this Supplemental Indenture.
Section 2.05 This Supplemental Indenture may be executed in any number of
counterparts, each of which shall be deemed to be an original for all purposes; but such
counterparts shall together be deemed to constitute but one and the same instrument. The executed
counterparts may be delivered by facsimile transmission, which facsimile copies shall be deemed
original copies.
Section 2.06 The laws of the State of New York shall govern this Supplemental
Indenture without regard to the conflict of law principles thereof.
Section 2.07 In the event of any inconsistency between the terms and provisions of
this Supplemental Indenture and the Indenture, the terms and provisions of this Supplemental
Indenture shall prevail.
Section 2.08 This Supplemental Indenture contains the entire agreement of the parties
hereto with respect to all of the matters set forth in that certain Letter Agreement, dated
February 29, 2008, and such Letter Agreement from the date hereof is hereby superseded by the terms
and conditions of this Supplemental Indenture.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the day and year first above written.
| DEERFIELD CAPITAL LLC, | ||||||
| as Company | ||||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Name: Xxxxxx X. Xxxxx | ||||||
| Title: President | ||||||
| THE BANK OF NEW YORK TRUST | ||||||
| COMPANY, NATIONAL ASSOCIATION, | ||||||
| as Trustee | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| Name: Xxxxx X. Xxxxxxx | ||||||
| Title: Vice President | ||||||
| THE BANK OF NEW YORK TRUST | ||||||
| COMPANY, NATIONAL ASSOCIATION, | ||||||
| as Property Trustee | ||||||
| (as to Section 2.01 only) | ||||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||||
| Name: Xxxxx X. Xxxxxxx | ||||||
| Title: Vice President | ||||||
| DEERFIELD CAPITAL TRUST II | ||||||
| (as to Section 2.01 only) | ||||||
| By: | /s/ Xxxxxx X. Xxxxx | |||||
| Name: Xxxxxx X. Xxxxx | ||||||
| Title: Administrative Trustee | ||||||
| Attest: /s/ Xxxxxx X. Xxxxxxxxx | ||||||
| By: Xxxxxx X. Xxxxxxxxx | ||||||
Supplemental Indenture
Signature Page
| TABERNA PREFERRED FUNDING VII, LTD. |
||||||
| (as to Section 2.01 only) | ||||||
| By: | /s/ Xxxx Xxxxxxxxx | |||||
| Name: Xxxx Xxxxxxxxx | ||||||
| Title: Director | ||||||
| Attest: /s/ Xxxxxx Xxxxxx | ||||||
| By: Xxxxxx Xxxxxx | ||||||
Supplemental Indenture
Signature Page
