Exhibit 10.3
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
trustee (the “ Trustee ”).
Reference is made to the Junior
Subordinated Indenture dated as of October 27, 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
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 601 Travis Street, 16 th Floor, Houston,
Texas 77002 Attn: Global Corporate Trust – Deerfield Capital
Trust III. All notices and correspondence to the Trustee hereunder
shall be addressed to Mudassir Mohamed, telephone number
(713) 483-6029.
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., 6250 North River Road,
Rosemont, Illinois 60018, 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:
2
(iii) Taberna
Capital Management LLC, 450 Park Avenue, Floor 11, New York, New
York 10022, Attn: Raphael Licht
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
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