EX-10.2






EXHIBIT 10.2




Execution Version




AMENDMENT No. 2




This AMENDMENT No. 2, dated as of September 26, 2008 (this “Amendment”), to and under
the Note Purchase Agreement (as the same has been heretofore amended, as amended hereby and as
further amended, modified or restated from time to time, the “Series B 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, SPENSYD ASSET MANAGEMENT LLLP, 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 B NPA.



RECITALS:




WHEREAS, the parties hereto desire to amend the Series B 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 B NPA



1.1 Section 1.01 (Defined Terms).



(a) The definition of “Net Cash Proceeds” in Section 1.01 of the Series B NPA is
hereby amended by inserting the following at the end thereof:



“with respect to any taxable period ending on or before December 31, 2007”



(b) Section 1.01 of the Series B NPA is hereby amended by adding the following definition
thereto in the appropriate alphabetical order:



“Non-Guarantor Subsidiary” means (i) any Subsidiary of the Parent listed as a non-
Guarantor Subsidiary on Schedule 4.06(b) and (ii) any Subsidiary of the Parent formed after
the Second Amendment Effective Date, in each of (i) or (ii) above, to the extent that, and only for
so long as, guaranteeing or otherwise providing assurance that any of the Obligations will be paid
(a) is prohibited, pursuant to (x) such Person’s Organizational Documents or (y) any Contractual
Obligation in existence on the Closing Date, or entered into after the Closing Date in the ordinary
course of business, applicable to such Person or any of its Properties or (b) will result, in the
Parent’s reasonable opinion upon advice of counsel, in a requirement for such Person to be
registered as an Investment Company.



(c) Section 1.01 of the Series B NPA is hereby amended by deleting the defined term “Sachs”
that was inserted on the Amendment No. 1 Effective Date, in its entirety. For the avoidance of
doubt, the term “Sachs” as it existed in the original NPA shall remain in its entirety.



(d) Section 1.01 of the Series B NPA is hereby amended by adding the following definition
thereto in the appropriate alphabetical order:



“Second Amendment Effective Date” means September 26, 2008.



1.2 Section 5.10 (Additional Collateral, Etc.) Section 5.10 of the Series B NPA is
hereby amended by adding the following sentence to the end thereof:



“If any Non-Guarantor Subsidiary ceases to be a Non-Guarantor Subsidiary at any time after the
Second Amendment Effective Date, (i) the Issuer shall promptly (and in any event within 5 Business
Days thereafter) notify the Administrative Holder of such development and (ii) such Subsidiary
shall not at any time thereafter (x) enter into or suffer to exist or become effective any
agreement that prohibits or limits in any manner its ability to provide a guaranty or similar
credit support for the Obligations in favor of the Administrative Holder and the Purchasers on a
senior basis or (y) pledge or agree to pledge any of its Capital Stock to any Person (other than a
pledge permitted by Section 6.02(a)).”



1.3 Section 5.11 (REIT Status). Section 5.11 of the Series B NPA is hereby deleted in
its entirety and replaced as follows:



5.11 [Reserved]



1.4 Section 6.05 (Restricted Payments). Section 6.05 of the Series B NPA is hereby
amended by deleting clauses (i) and (j) thereto in their entirety and replacing clause (i) with the
following:



(i) the Parent may make Restricted Payments (and the Note Parties and other Subsidiaries may
make Restricted Payments to the Parent for such purpose) to enable the Parent to avoid the
imposition of any entity level tax on the Parent with respect to any taxable period ending on or
before December 31, 2007, which shall be deemed to include the making of the dividend distribution
declared on August 28, 2008 and which is to be paid on October 15, 2008; provided that such
Restricted Payments shall be made to the maximum extent possible, from cash on hand and dividends
from non-guarantor Subsidiaries;




	 	 	SECTION 2. CONDITIONS PRECEDENT TO EFFECTIVENESS





The provisions of Section 1 hereof shall become effective as of the first date (the “Effective
Date”) on which all of the following conditions precedent have been satisfied:



(a) the Administrative Holder shall have received this Amendment, duly executed by each of the
Parent and the Issuer and the Required Holders;



(b) the representations and warranties set forth in Section 3 hereof shall be true and correct
as of the Effective Date;



(c) the Parent and the Issuer shall have received a duly executed and effective amendment or
waiver to Section 10.6(c) of each of (i) that certain Junior Subordinated Indenture dated as of
October 27, 2006 between Deerfield Capital LLC and The Bank of New York Trust Company, National
Association, as trustee, (ii) that certain Junior Subordinated Indenture dated as of August 2, 2006
between Deerfield Capital LLC and JPMorgan Chase Bank, National Association, as trustee and (iii)
that certain Junior Subordinated Indenture dated as of September 29, 2005 between Deerfield Capital
LLC and JPMorgan Chase Bank, National Association, as trustee (collectively, the “Indentures”), in
form and substance satisfactory to the Administrative Holder, irrevocably waiving or deleting the
requirement regarding REIT status in such Section; and



(d) the Administrative Holder shall have received payment of the fees and expenses described
in that certain Fee Letter, dated as the date hereof, between the Administrative Holder and
Deerfield & Co.




	 	 	SECTION 3. REPRESENTATIONS AND WARRANTIES





Each of the Issuer and the Parent hereby represents and warrants that:



3.1 Corporate Power and Authority. Each of the Issuer and the Parent has all
requisite corporate power and authority to enter into this Amendment and to carry out the
transactions contemplated hereby in all material respects, and perform its obligations under the
Series B NPA and the other Note Documents, in each case in all material respects.



3.2 Authorization of Amendment. The execution and delivery of this Amendment has been
duly authorized by all necessary action on the part of each of the Issuer and the Parent.



3.3 No Conflict. The execution, delivery and performance by each of the Issuer and
the Parent of this Amendment have been duly authorized by all necessary corporate or other
organizational action of such Person, and do not and will not (with the passage of time, the giving
of notice or otherwise) (a) contravene or Conflict with the terms of any of such Person’s
Organizational Documents; (b) Conflict with, or result in the creation of any Lien (other than
Permitted Encumbrances) under, (i) any material Contractual Obligation to which such Person is a
party, (ii) any Material Indebtedness or (iii) any Judgment or any arbitral award to which such
Person or its property is subject; or (c) violate any Law.



3.4 Binding Obligation. This Amendment has been duly executed and delivered by Issuer
and the Parent and is the legally valid and binding obligation of such Person, enforceable against
such Person in accordance with its respective terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws relating to or limiting creditors’ rights
generally or by equitable principles relating to enforceability.



3.5 Incorporation of Representations and Warranties From Series B NPA. The
representations and warranties contained in Section 4 of the Series B NPA are and will be true,
correct and complete in all material respects on and as of the Effective Date to the same extent as
though made on and as of that date, except to the extent such representations and warranties
specifically relate to an earlier date, in which case they were true, correct and complete in all
material respects on and as of such earlier date.



3.6 No Other REIT Obligations. Other than the Indentures, none of the Note Parties is
party to any Contractual Obligation that requires any Note Party to maintain REIT status.




	 	 	SECTION 4. MISCELLANEOUS





4.1 Costs and Expenses. As provided in Section 9.04 (Payment of Expenses) of the
Series B NPA, the Issuer agrees to reimburse the Agents and the Holders for all reasonable and
documented out of pocket costs and expenses incurred in connection with this Amendment, including
the Attorney Costs of one principal counsel for the Required Holders and the Agents, to the extent
invoiced to the Issuer.



4.2 Binding Effect. This Amendment shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties hereto and the
successors and assigns of the Holders.



4.3 Severability. In case any provision in or obligation hereunder shall be invalid,
illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the
remaining provisions or obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.



4.4 Reference to Series B NPA. On and after the Effective Date, each reference in the
Series B NPA to “this Agreement”, “hereunder”, “hereof”, “herein” or words of like import referring
to the Series B NPA, and each reference in the other Note Documents to the “Series B NPA”,
“thereunder”, “thereof” or words of like import referring to the Series B NPA shall mean and be a
reference to the Series B NPA as amended by this Amendment.



4.5 Effect on Series B NPA. Except as specifically amended by this Amendment, the
Series B NPA and the other Note Documents shall remain in full force and effect and are hereby
ratified and confirmed.



4.6 Execution. The execution, delivery and performance of this Amendment shall not,
except as expressly provided herein, constitute a waiver of any provision of, or operate as a
waiver of any right, power or remedy of any Agent or Holder under, the Series B NPA or any of the
other Note Documents.



4.7 Headings. Section headings herein are included herein for convenience of
reference only and shall not constitute a part hereof for any other purpose or be given any
substantive effect.



4.8 APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD REQUIRE THE
APPLICATION OF LAWS OTHER THAN THOSE OF THE STATE OF NEW YORK.



4.9 Counterparts. This Amendment may be executed in any number of counterparts, each
of which when so executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument.



4.10 Note Document. This Amendment is a Note Document (as defined in the Series B
NPA).



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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed
and delivered by their respective officers thereunto duly authorized as of the date first written
above.



PARENT:



DEERFIELD CAPITAL CORP.



By: /s/ Jonathan W. Trutter

Name: Jonathan W. Trutter

Title: CEO





ISSUER:



DEERFIELD & COMPANY LLC



By: /s/ Jonathan W. Trutter

Name: Jonathan W. Trutter

Title: CEO




REQUIRED HOLDERS:



RIVER ROAD HOLDINGS, LLC





By: Redleaf Management Company, LLC



Its: Manager



By: /s/ Bradley Rosen

Name: Bradley Rosen

Title: Authorized Representative





By: /s/ Michelle Sibley

Name: Michelle Sibley

Title: Authorized Representative



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GHS 2006 SCM TRUST



By: /s/ Gerald M. Sachs

Name: Gerald M. Sachs

Title: Trustee





GHS 2008 SCM TRUST



By: /s/ Gerald M. Sachs

Name: Gerald M. Sachs

Title: Trustee





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