Exhibit 10.1
EXECUTION VERSION
SUPPLEMENTAL INDENTURE
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 September 29, 2005 (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, (b) amend Article X of the Indenture to
provide for additional covenants of the Company and
(c) provide for waivers of the Company’s non-compliance
with certain of the covenants set forth in Article X of the
Indenture; 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
Section 1.01 The
definition of “ Consolidated Net Worth ” under
Section 1.1 of the Indenture is deleted in its entirety
and replaced with the following:
“ 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).
Section 1.02 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 601 Travis
Street, 16 th Floor, Houston,
Texas 77002 Attn: Global Corporate Trust – Deerfield Capital
Trust I. All notices and correspondence to the Trustee hereunder
shall be addressed to Mudassir Mohamed, telephone number
(713) 483-6029.
Section 1.03 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 1.04
Section 1.1 of the Indenture is amended by adding the
following defined terms:
“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 1.05
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., 6250 North River Road, Rosemont, Illinois 60018, or
at any other address previously furnished in writing to the Trustee
by the Company.
Section 1.06
Section 5.1 of the Indenture is amended to add an
additional Event 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 “; or” and (iii) adding the
following new Section 5.1(g) :
(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.
Section 1.07
Section 7.3(b)(iii) of the Indenture is hereby deleted and
replaced with the following:
(iii) Taberna Capital Management LLC,
450 Park Avenue, Floor 11, New York, New York 10022, Attn: Raphael
Licht
Section 1.08
Section 10.6(d) of the Indenture is deleted in its
entirety and replaced with the following:
2
(d) Minimum Consolidated Net
Worth . From and after May 6, 2008 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 1.09
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 1.10
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 Comp
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