**Exhibit10.5**

 

 

Interim Services Agreement

 

June 21, 2010

 

Jonathan W. Trutter

Chief Executive Officer

Deerfield Capital Corp.

6250 North River Road

Rosemont, Illinois

 

Dear Mr. Trutter:

 

SFN Professional Services LLC d/b/a Tatum (“Tatum,” “we,” “us” or “our”)is pleased that Deerfield Capital Corp. (“Company,” “you” or “your”) hasselected us to provide you with outsourced interim services. The services (the “Services”)and fees will be more particularly described on the Schedule attached heretoand will be provided by the individual resource (the “Tatum Resource”)identified on such Schedule. Schedules for additional Tatum Resources may beadded from time to time upon the mutual written agreement of the parties. Inaddition, upon the request of the Company and the execution of an additionalSchedule to this agreement, Tatum will provide search Services to the Company,all as more particularly described on such Schedule.

 

Engagement. The Tatum Resource will be one of Tatum’sprofessionals, and we will be solely responsible for determining theconditions, terms and payment of compensation and benefits for the TatumResource. You will be solely responsible for providing the Tatum Resourceday-to-day guidance, supervision, direction, assistance and other informationnecessary for the successful and timely completion of the Services. Tatum willhave no oversight, control, or authority over the Tatum Resource with respectto the Services. The Company acknowledges that it is solely responsible for thesufficiency of the Services for its purposes. The Company will designate amanagement-level individual to be responsible for overseeing the Services, andthe Tatum Resource will report directly to such individual with respect to theprovision of the Services. Unless the Tatum Resource is acting as an executiveofficer of the Company and is authorized by the Company to make such decision,the Company will not permit or require the Tatum Resource to be the ultimatedecision making authority for any material decision relating to your business,including, without limitation, any proposed merger, acquisition,recapitalization, financial strategy or restructuring.

 

Fees and Expenses. You will pay us the fees set forth on theapplicable Schedule. In addition, you will reimburse Tatum directly for allreasonable travel and out-of-pocket expenses incurred in connection with thisagreement (including any Schedules).

 

Payment Terms. Payments to Tatum should be made within 15days of receipt of invoice by electronic transfer in accordance with theinstructions set forth below or such alternative instructions as provided by usfrom time to time. In lieu of terminating this agreement, we

 

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may suspend the provision of any Services ifamounts owed are not paid in accordance with the terms of this agreement.

 

Bank Name and Address: Bank of America, 1950N Stemmons Freeway, Suite 5010, Dallas, TX 75207

Beneficiary: Tatum

Beneficiary Account Number: 3751 80 4507

ABA Transit/Routing Number: 111000012

Please reference Company name in the body ofthe payment.

 

Effective Date and Termination. This agreement will be effective as of the earlier of (i) the dateTatum begins providing Services to the Company, and (ii) the date of thelast signature to this agreement as indicated on the signature page. In theevent that a party commits a breach of this agreement (including any Schedule)and fails to cure the same within 10 days following delivery by thenon-breaching party of written notice specifying the nature of the breach, thenon-breaching party may terminate this agreement or the applicable Scheduleeffective upon written notice of such termination. The termination rights setforth in this Section are in addition to and not in lieu of the terminationrights set forth in each of the Schedules.

 

Hiring the Tatum Resource Outside of a TatumAgreement. If, at any time duringthe time frame in which a Tatum Resource is providing Services to the Companyand for a period of 12-months thereafter, other than in connection with thisagreement or another Tatum agreement, the Company or any of its subsidiaries oraffiliates employs such Tatum Resource, or engages such Tatum Resource as anindependent contractor, the Company will pay Tatum a placement fee in an amountequal to 35% of the Annualized Compensation (as defined below). “AnnualizedCompensation” is defined as salary, incentive, signing and other bonuses, andany other compensation (excluding any form of equity compensation) that may beearned by the Tatum Resource during the first 12 months of service with theCompany (or its subsidiary or affiliate) regardless of when or if suchcompensation is actually paid. The placement fee shall be due upon thecommencement of the Tatum Resource’s employment or engagement with the Company(or its subsidiary or affiliate).

 

Warranties and Disclaimers. We disclaim all representations and warranties, whether express,implied or statutory, including, but not limited to any warranties of quality,performance, merchantability, or fitness of use or purpose. Without limitingthe foregoing, we make no representation or warranty with respect to the TatumResource or the Services provided hereunder, and we will not be responsible forany action taken by you in following or declining to follow any of the TatumResource’s advice or recommendations. The Services provided by Tatum and theTatum Resource hereunder are for the sole benefit of the Company and not anyunnamed third parties. The Services will not constitute an audit, review,opinion, or compilation, or any other type of financial statement reporting orattestation engagement that is subject to the rules of the AICPA or othersimilar state or national professional bodies or laws and will not result in anopinion or any form of assurance on internal controls.

 

Limitation of Liability: Indemnity.

 

(a)           Tatum’s liability in any and all categories and for anyand all causes arising under this agreement, whether based in contract, tort,negligence, strict liability or otherwise, will, in the aggregate, not exceedthe actual fees paid by you to us over the term of the agreement with respectto the Tatum Resource from whom the liability arises. In no event will we beliable for incidental, consequential, punitive, indirect or special damages,including, without limitation, interruption or loss of business, profit

 

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or goodwill. As a condition for recovery ofany liability, you must assert any claim against us within one year after the terminationor expiration of the applicable Schedule under which the liability arises.

 

(b)           Youagree to indemnify us and the Tatum Resource to the full extent permitted bylaw for any losses, costs, damages, and expenses (including reasonableattorneys’ fees), as they are incurred, in connection with any cause of action,suit, or other proceeding arising in connection with the Tatum Resource’sservices to you except to the extent arising out of the gross negligence orwillful misconduct of Tatum or the Tatum Resource.

 

Insurance.

 

If the Tatum Resource is serving as an officer orexecutive of the Company, the Company will provide Tatum or the Tatum Resourcewith written evidence that the Company maintains directors’ and officers’insurance covering the Tatum Resource in an amount reasonably acceptable to theTatum at no additional cost to the Tatum Resource, and the Company willmaintain such insurance at all times while this agreement remains in effect.Furthermore, the Company will maintain such insurance coverage with respect tooccurrences arising during the term of this agreement for at least five yearsfollowing the termination or expiration of the applicable Schedule or willpurchase a directors’ and officers’ extended reporting period or “tail” policyto cover the Tatum Resource for such five year time period.

 

Governing Law, Arbitration and Witness Fees.

 

(a)           Thisagreement will be governed by and construed in accordance with the laws of theState of Illinois, without regard to conflicts of laws provisions.

 

(b)           Ifthe parties are unable to resolve any dispute arising out of or in connectionwith this agreement, the parties agree and stipulate that any such disputeswill be settled by binding arbitration in accordance with the CommercialArbitration Rules of the American Arbitration Association (“AAA”). Thearbitration will be conducted in the Chicago, Illinois office of the AAAby a single arbitrator selected by the parties according to the rules ofthe AAA, and the decision of the arbitrator will be final and binding on bothparties. In the event that the parties fail to agree on the selection of thearbitrator within 30 days after either party’s request for arbitration underthis Section, the arbitrator will be chosen by the AAA. The arbitrator may inhis or her discretion order documentary discovery but will not allowdepositions without a showing of compelling need. The arbitrator will renderhis or her decision within 90 days after the call for arbitration. Judgment onthe award of the arbitrator may be entered in and enforced by any court ofcompetent jurisdiction. The arbitrator will have no authority to award damagesin excess or in contravention of this agreement and may not amend or disregardany provision of this agreement, including this section. Notwithstanding theforegoing, either patty may seek appropriate injunctive relief from any courtof competent jurisdiction, and Tatum may pursue payment of any unpaid amountsdue under this agreement through any court of competent jurisdiction.

 

(c)           Inthe event any professional of Tatum (including, without limitation, any TatumResource) is requested or authorized by you or is required by governmentregulation, subpoena, or other legal process to produce documents or appear aswitnesses in connection with any action, suit or other proceeding initiated bya third party against you or by you against a third party, you will, so long asTatum is not a party to the proceeding in which the information is sought,reimburse Tatum for its professional’s time (based on customary rates) andexpenses, as well as the fees and expenses of its

 

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counsel, incurred in responding to suchrequests. This provision is in addition to and not in lieu of anyindemnification obligations the Company may have under this agreement.

 

Miscellaneous.

 

(a)           This agreement together with all Schedules constitutes theentire agreement between the parties with regard to the subject matter hereofand supersedes any and all agreements, whether oral or written, between theparties with respect to its subject matter. No amendment or modification tothis agreement will be valid unless in writing and signed by both parties.

 

(b)           If any portion of this agreement is found to be invalid orunenforceable, such provision will be deemed severable from the remainder ofthis agreement and will not cause the invalidity or unenforceability of theremainder of this agreement, except to the extent that the severed provisiondeprives either party of a substantial portion of its bargain.

 

(c)           Neither party will be deemed to have waived any rights orremedies accruing under this agreement unless such waiver is in writing andsigned by the party electing to waive the right or remedy.

 

The waiver by any party ofa breach or violation of any provision of this agreement will not operate or beconstrued as a waiver of any subsequent breach of such provision or any otherprovision of this agreement.

 

(d)           Neither party will be liable for any delay or failure toperform under this agreement (other than with respect to payment obligations)to the extent such delay or failure is a result of an act of God, war,earthquake, civil disobedience, court order, labor dispute, or other causebeyond such party’s reasonable control.

 

(e)           You may not assign your rights or obligations under thisagreement without the express written consent of Tatum. Nothing in thisagreement will confer any rights upon any person or entity other than theparties hereto and their respective successors and permitted assigns and theTatum Resources.

 

(f)            The expiration or termination of this agreement or anySchedule will not destroy or diminish the binding force and effect of any ofthe provisions of this agreement or any Schedule that expressly, or by reasonableimplication, come into or continue in effect on or after such expiration ortermination, including, without limitation, provisions relating to payment offees and expenses (including witness fees and expenses and liquidated damagefees), governing law, arbitration, limitation of liability and indemnity.

 

(g)           You agree to reimburse Tatum for all reasonable costs andexpenses (including, without limitation, reasonable attorneys’ fees, courtcosts and arbitration fees) incurred by Tatum in enforcing collection of anymonies due under this agreement.

 

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We appreciate the opportunity to serve youand believe this agreement accurately reflects our mutual understanding of theterms upon which the Services will be provided. We would be pleased to discussthis agreement with you at your convenience. If the foregoing is in accordancewith your understanding, please sign a copy of this agreement and return it tomy attention.

 

Sincerely,

 

SFN Professional Services LLC d/b/a Tatum

 
| /s/ Robert J. Stegmann   |   |
|--------------------------|--------|
|                     |   |
| Robert J. Stegmann       |   |
| Partner, Practice Leader |   |

 

 

Accepted and agreed:

 

Deerfield Capital Corp.

 

 
| By:                            | /s/ Jonathan W. Trutter |   |
|--------------------------------|-------------------------|--------|
| Name: Jonathan W. Trutter      |                    |
| Title: Chief Executive Officer |                    |
|                           |                    |
| Date:                          | June 21, 2010           |   |   |
|                                |                         |        |  |  |

 

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Scheduleto Interim Services Agreement

 

This Schedule is enteredinto in connection with that certain Interim Services Agreement, dated June 11,2010 (the “Agreement”), by and between SFN Professional Services LLC d/b/aTatum (“Tatum,” “we,” “us” or “our”) and Deerfield Capital Management (“Company,”“you” or “your”) and will be governed by the terms and conditions of theAgreement.

 

Tatum Resource Name: Ken Posner

 

Service Description or Position: ChiefFinancial Officer

 

Company Supervisor: Chief Executive Officer

 

Start Date: June 22, 2010

 

Minimum Term: Through August 20, 2010

 

Termination:

 

(a)        After the expiration of any minimum termset forth above, either party may terminate this Schedule by providing theother party a minimum of 10 days’ advance written notice and such terminationwill be effective as of the date specified in such notice, provided that suchdate is no earlier than 10 days after the date of delivery of the notice. Tatumwill continue to provide, and the Company will continue to pay for, theServices until the termination effective date.

 

(b)        Tatum may terminate this Scheduleimmediately upon written notice to the Company if: (i) the Company isengaged in or asks Tatum or any Tatum Resource to engage in or ignore anyillegal or unethical activity; (ii) the Tatum Resource ceases to be aprofessional of Tatum for any reason and has provided the Company with aminimum 10 day’s advance written notice; (iii) the Tatum Resource becomesdisabled; or (iv) the Company fails to pay any amounts due to us under theAgreement when due. For purposes of this Agreement, disability will be definedby the applicable policy of disability insurance or, in the absence of suchinsurance, by Tatum’s management acting in good faith. Notwithstanding theforegoing, in lieu of terminating this Schedule under (ii) and (iii) above,upon the mutual agreement of the parties, the Tatum Resource may be replaced byanother Tatum professional.

 

(c)        The termination rights set forth in thissection are in addition to and not in lieu of the termination rights set forthin the Agreement.

 

Fees: You will pay to Tatum a fee of $42,000 a month for the Tatum Resource.The fees will be prorated for the first and final fee period based on thenumber of days in such period. The monthly fee includes allowance for holidaysfor the Tatum Resource consistent with the Company’s policy as it applies tosimilarly situated employees of the Company. The parties acknowledge and agreethat the fees set forth above are based upon this Schedule having the MinimumTerm set forth above. In the event you terminate this Schedule prior to theexpiration of the Minimum Term other than for the Tatum Resource’s materialfailure to perform the obligations of his or her position with the Company,provided the Tatum Resource fails to cure such breach within 10 days afterreceipt of written notice of such breach, you agree that the fees will beretroactively increased to $3,000 per business day. You agree to pay to Tatumupon the termination of this Schedule a lump sum amount equal to the differencebetween the fees actually paid and the fees that should have been paid takinginto account the retroactive adjustment.

 

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Billings: Tatum will bill for Services inadvance of the provision of such Services as follows:

 

Upon Execution of this Schedule: $42,000

 

On the 15th day of each month: $42,000

 

In addition, reasonable out-of-pocketexpenses incurred by the Employee on behalf of the Company will be reimbursedto the same extent that you reimburse other senior managers for such expensesincluding mileage. Expenses will be billed separately and in accordance withCompany documentation standards. Expenses will be reimbursed by the Companydirectly to the Tatum Resource within five days of submission.

 

In the event of a conflict between the termsand conditions of this Schedule and the Agreement, the terms and conditions ofthe Agreement will control.

 
| SFN Professional Services LLC d/b/a Tatum |                     | Deerfield Capital Corp. |
|-------------------------------------------|--------------------------|-------------------------|
|                                      |                     |                    |   |
| /s/ Robert J. Stegmann                    |                     |                    |   |
|                                      |                     | By:                     | /s/ Jonathan W. Trutter |
| Name:                                     | Robert J. Stegmann       |                    | Name: Jonathan W. Trutter |
| Title:                                    | Partner, Practice Leader |                    | Title: Chief Executive Officer |
| Date:                                     | June 21, 2010            |                    |   |
|                                      |                     | Date:                   | June 21, 2010 |   |

 

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