EX-10.2 SERIES B WAIVER



 





Exhibit 10.2




WAIVER




     This WAIVER, dated March 14, 2008 (this “Waiver”), is entered into by and among DEERFIELD
CAPITAL CORP., a Maryland corporation (the “Parent”), DEERFIELD & COMPANY LLC, an Illinois limited
liability company (the “Issuer”) and the Required Holders (as defined in the Note Purchase
Agreement).



RECITALS:




     WHEREAS, the Issuer, the Parent and each Holder have entered into that certain Series B Note
Purchase Agreement, dated as of December 21, 2007 (as amended, modified or restated prior to the
date hereof, the “Note Purchase Agreement”). Capitalized terms used but not defined in this Waiver
shall have the meanings that are set forth in the Note Purchase Agreement; and



     WHEREAS, the Parent and certain of its Subsidiaries have sold certain securities prior to the
date hereof (the “Sales”) and, as a result of the Sales, the Parent and its Subsidiaries may not be
in compliance with Section 5.11 of the Note Purchase Agreement;



     NOW, THEREFORE, in consideration of the premises and the agreements, provisions and covenants
herein contained, the parties hereto agree as follows:



SECTION 1. WAIVER OF SPECIFIED COVENANT




     Effective as of the date hereof, the Required Holders hereby waive any Default or Event of
Default arising from the failure of the Parent and its Subsidiaries to comply with Section 5.11 of
the Note Purchase Agreement (the “Specified Covenant”) as a result of the Sales.



SECTION 2. MODIFICATION OF SPECIFIED COVENANT




     (a) Notwithstanding anything to the contrary in the Specified Covenant, during the period from
the date hereof through and including March 31, 2009 (the “Modification Period”), the Parent and
its Subsidiaries shall be deemed to be in compliance with the Specified Covenant if they comply
with the following:



     “Unless otherwise agreed to by the Parent’s shareholders, the Parent and the Issuer shall, and
shall cause each Subsidiary to (a) not revoke the Parent’s election to be taxed as a REIT under
Section 856 of the Code and (b) not allow the Parent to incur liability for material taxes under
Section 857(b), 857(f), 860(c) or 4981 of the Code (or any comparable provision of state or local
laws). In each case unless otherwise agreed to by the Parent’s shareholders, each of the Parent
and the Issuer shall, and shall cause each Subsidiary to, use its reasonable best efforts to (a)
take all such actions as are necessary or desirable to maintain the Parent’s qualification to be
taxed as a REIT under Section 856 of the Code, (b) not take or omit to take any action which could
reasonably be expected, individually or in the aggregate, to result in the loss of the Parent’s
qualification as a REIT, (c) not allow the Parent to incur liability for material taxes under
Section 856(c)(7) of the Code (or any comparable provision of state or local laws) and (d) allow
the Parent to be entitled to a dividends paid deduction which meets the requirements of Section 857
of the Code.”



     (b) At all times following the Modification Period, the Parent and its Subsidiaries shall be
deemed to be in compliance with the Specified Covenant only if they comply with the terms of the
Specific Covenant as in effect prior to the date hereof.



 









 






SECTION 3. MISCELLANEOUS




     3.1 Binding Effect. This Waiver 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.



     3.2 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.



     3.3 Reference to Note Purchase Agreement. On and after the date hereof, each
reference in the Note Purchase Agreement to “this Agreement”, “hereunder”, “hereof”, “herein” or
words of like import referring to the Note Purchase Agreement, and each reference in the other Note
Documents to the “Note Purchase Agreement”, “thereunder”, “thereof” or words of like import
referring to the Note Purchase Agreement shall mean and be a reference to the Note Purchase
Agreement as amended by this Waiver.



     3.4 Effect on Note Purchase Agreement. Except as specifically amended by this Waiver,
the Note Purchase Agreement and the other Note Documents shall remain in full force and effect and
are hereby ratified and confirmed.



     3.5 Execution. The execution, delivery and performance of this Waiver 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 Holder under, the Note Purchase Agreement or any of the
other Note Documents.



     3.6 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.



     3.7 APPLICABLE LAW. THIS WAIVER 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.



     3.8 Expenses. The Parent, the Issuer and their respective Subsidiaries agree to pay
all reasonable attorneys’ fees and disbursements incurred by the Administrative Holder and the
Collateral Agent in connection with (i) this Waiver, (ii) any and all waivers and amendments of the
Note Purchase Agreement prior to the date hereof and (iii) all such other waivers and amendments
and proposed waivers and amendments, in each case, on demand.



     3.9 Counterparts. This Waiver 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.



     3.10 Note Document. This Waiver is a Note Document (as defined in the Note Purchase
Agreement).



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



	 	 	 	 	 
	 	DEERFIELD CAPITAL CORP.

 	 
	 	By:  	/s/
Jonathan W. Trutter	 
	 	 	Name:  	Jonathan W. Trutter 	 
	 	 	Title:  	Chief Executive Officer	 
	 



	 	 	 	 	 
	 	DEERFIELD & COMPANY LLC

 	 
	 	By:  	/s/
Jonathan W. Trutter	 
	 	 	Name:  	Jonathan W. Trutter	 
	 	 	Title:  	Chief Executive Officer	 
	 




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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 	 
	 



	 	 	 	 	 
	 	RIVER ROAD HOLDINGS, LLC

 	 
	 	By:  	/s/
Bradley Rosen/Michelle Sibley	 
	 	 	Name:  	Bradley Rosen/Michelle Sibley 	 
	 	 	Title:  	Authorized Representatives	 
	 




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