Exhibit 10.6
Execution Copy
AMENDMENT No. 1
This
AMENDMENT No. 1, dated as of May 12, 2008 (this “
Amendment ”), to and under the Note Purchase Agreement
(the “ Series A NPA ”), dated as of
December 21, 2007, by and among DFR MERGER COMPANY, LLC, an
Illinois limited liability company (“ Buyer Sub
”), DEERFIELD & COMPANY LLC, an Illinois limited
liability company (“ Deerfield & Co. ” and,
together with the Buyer Sub, the “ Issuer ”),
DEERFIELD CAPITAL CORP (formerly known as Deerfield Triarc Capital
Corp.), a Maryland corporation (“ DFR ” or the
“ Parent ”), TRIARC COMPANIES, INC., as
Collateral Agent, the Purchasers, TRIARC COMPANIES, INC., as
Administrative Holder, and each other Purchaser. All capitalized
terms used herein and not otherwise defined herein are used herein
as defined in the Series A NPA.
RECITALS:
WHEREAS, the parties hereto desire to amend the
Series A NPA as set forth in this Amendment.
NOW, THEREFORE , in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties
hereto agree as follows:
SECTION 1. AMENDMENTS TO THE SERIES A NPA
1.1 Section 1.1
(Defined Terms) of the Series A NPA . Section 1.1 of
the Series A NPA is hereby amended as follows:
(a) new
definitions of the terms “ Amendment No. 1 Effective
Date ,” “ Approved Costs ,” “
Deerfield Capital ,” “ Deerfield Capital
Intercompany Notes ,” “ Designated DWFC Note
,” “ Designated Subsidiaries Notes ,”
“ Designated TRS (Bahamas) Note ,” “
Designated TRS Holdings Note ,” “ DWFC
,” “ One O’Hare Centre Lease ,”
“ Special Manager ,” “ Subordinated
Junior Notes ,” Subordinated Notes Guaranties
,” “ Subordinated Notes Indentures ,”
“ Subordinated Notes Obligations ” and “
Wachovia Agreement ” are hereby inserted, each to read
in its entirety as follows:
“
Amendment No. 1 Effective Date ” means
May 12, 2008.
“
Approved Costs ” means, with respect to any Person,
the reasonable and documented costs and expenses of such Person
relating to the maintenance of such Person’s legal existence
and good standing under any applicable law, including amounts paid
to satisfy such Person’s tax liabilities and related
accounting and tax preparation services.
“
Deerfield Capital ” means Deerfield Capital LLC
(formerly known as Deerfield Triarc Capital LLC), a Delaware
limited liability company.
“
Deerfield Capital Intercompany Notes ” means the
Revolving Notes issued by Deerfield Capital, as maker, to the order
of (i) DFR Middle Market Sub-1, Inc., a Delaware corporation,
(ii) DFR Middle Market Sub-2, Inc., a Delaware corporation,
(iii) DFR Middle Market Sub-3, Inc., a Delaware corporation,
(iv) DFR Middle Market Sub-4, Inc., a Delaware corporation,
and (v) DFR Middle Market Sub-5, Inc., a Delaware corporation,
in each case of (i) through and including (v) above, for a
principal amount of up to $100,000,000, (y) dated as of
January 1, 2008, and (z) without giving effect to any
amendment thereof entered into after the Amendment No. 1
Effective Date.
“
Designated DWFC Note ” means the Revolving Note, dated
as of March 1, 2006, issued by DWFC, as maker, to the order of
Deerfield Capital, without giving effect to any amendment thereof
entered into after the Amendment No. 1 Effective Date.
“
Designated Subsidiaries Notes ” means (i) the
Designated DWFC Note, (ii) the Designated TRS (Bahamas) Note
and (iii) the Designated TRS Holdings Note.
“
Designated TRS (Bahamas) Note ” means the Revolving
Note, dated as of March 1, 2006, issued by Deerfield TRS
(Bahamas), LLC (formerly known as Deerfield Triarc TRS (Bahamas),
LLC), a Delaware limited liability company, as maker, to the order
of Deerfield Capital, without giving effect to any amendment
thereof entered into after the Amendment No. 1 Effective
Date.
“
Designated TRS Holdings Note ” means the Revolving
Note, dated as of August 11, 2005, issued by Deerfield TRS
Holdings, LLC (formerly known as Deerfield Triarc TRS Holdings,
LLC), a Delaware limited liability company, as maker, to the order
of Deerfield Capital, without giving effect to any amendment
thereof entered into after Amendment No. 1 Effective
Date.
“
DWFC ” means DWFC, LLC, a Delaware limited liability
company.
“
One O’Hare Centre Lease ” means the lease dated
as of July 1, 2005 between Prentiss Properties Acquisition
Partners, L.P., a Delaware limited partnership, as landlord, and
Deerfield & Co., as tenant.
“
Special Manager ” has the meaning specified in
Section 7.01(k).
“
Subordinated Junior Notes ” means each of the notes
issued pursuant to any of the Subordinated Notes Indentures.
“
Subordinated Notes Guaranties ” means the parent
guaranties provided by Parent in connection with the Subordinated
Junior Notes.
“
Subordinated Notes Indentures ” means (i) the
Junior Subordinated Indenture, dated as of September 29, 2005,
between Deerfield Capital and JPMorgan Chase Bank, National
Association, as trustee; (ii) the Junior Subordinated
Indenture, dated as of August 2, 2006, between Deerfield
Capital and JPMorgan Chase Bank, National Association, as trustee,
and (iii) the Junior Subordinated Indenture, dated as of
October 27, 2006, between Deerfield Capital and The Bank of
New York Trust Company, National Association, as trustee.
“
Subordinated Notes Obligations ” means the obligations
of Deerfield Capital and Parent under any Subordinated Junior Note,
any Subordinated Notes Indenture and any Subordinated Notes
Guaranty and any other obligation under any “Operative
Document” as defined in each Subordinated Notes
Indenture.
“
Wachovia Agreement ” means the Sale and Servicing
Agreement, dated as of May 10, 2006, by and among Deerfield
Capital, as originator and servicer, DWFC, as a borrower, Deerfield
TRS (Bahamas) Ltd., as a borrower, the purchasers party thereto,
Wachovia Capital Markets, LLC, as administrative agent, Lyon
Financial Services, Inc., as backup servicer, and U.S. Bank
National Association, as collateral custodian.
2
1.2 Section 5.15
(Affirmative Covenants; Special Manager) of the Series A
NPA . A new Section 5.15 of the Series A NPA is
hereby inserted as follows:
5.15 Appointment of Special Managers. On or before the date
that is 60 days after the Amendment No. 1 Effective Date,
Parent shall appoint or cause to be appointed to the board of
managers of each of the Issuer and Deerfield Capital, one
(1) Special Manager nominated by the Administrative Holder who
shall be a senior executive officer or director of the
Administrative Holder (or other person nominated by the
Administrative Holder and consented to by the Parent (which consent
shall not be unreasonably withheld)) and who shall serve as a
Special Manager of each of the Issuer and Deerfield Capital until
the earlier of (i) such Special Manager’s death,
permanent disability to serve in such capacity, resignation or
removal by the Administrative Holder (at which time the
Administrative Holder shall be entitled to appoint a replacement
Special Manager who shall be a senior executive officer or director
of the Administrative Holder (or other person appointed by the
Administrative Holder and consented to by the Parent (which consent
shall not be unreasonably withheld)) and (ii) the date on
which the Obligations have been indefeasibly paid in full in cash.
In no event shall a Special Manager receive or be entitled to
receive any compensation in connection with its position as a
Special Manager. To the extent that the Administrative Holder shall
not have so nominated a Person meeting the requirements set forth
above within 50 days after the Amendment No. 1 Effective Date,
the 60 days period set forth above shall be extended until a date
that is ten days after date on which the Administrative Holder
shall have informed the Parent of such nomination. For the
avoidance of doubt, the Special Managers shall have no power or
authority to participate in or receive information regarding the
management of the Issuer or Deerfield Capital, as the case may be
(including with respect to meetings of the its board of managers,
if any), except to the extent necessary for the Special Managers to
exercise the special vote described in clause (ii) of
Section 7.01(k).
1.3 Section 6.01
(Negative Covenants; Indebtedness) of the Series A NPA .
Section 6.01 of the Series A NPA is hereby amended by
inserting the following new paragraphs (m), (n) and
(o) at the end thereof:
(m) Indebtedness
under any of the Deerfield Capital Intercompany Notes;
(n) Indebtedness
consisting of reimbursement obligations relating to letters of
credit issued as security for the performance of tenant’s
obligations under the One O’Hare Center Lease;
provided that the aggregate principal amount of all
Indebtedness permitted under this clause (n) shall not exceed
$3,000,000 at any time outstanding; and
(o) any
Subordinated Notes Obligation to the extent it constitutes
Indebtedness.
1.4 Section 6.05
(Negative Covenants; Restricted Payments) of the Series A
NPA . Section 6.05 of the Series A NPA is hereby
amended by inserting the following new paragraph (l) immediately
prior to the last proviso thereof:
;
(l) Deerfield Capital may make Restricted Payments with
respect to any of the Deerfield
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