|
EXHIBIT 10.4
EXECUTION VERSION
SECOND SUPPLEMENTAL INDENTURE
THIS SECOND SUPPLEMENTAL INDENTURE, dated as of
September 26, 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 Mellon Trust
Company, National Association, a national banking association (as
successor to JPMorgan Chase Bank, National Association), as trustee
(the " Trustee ").
Reference is made to the Junior Subordinated
Indenture dated as of August 2, 2006 (the " Original
Indenture ") by and between the Company and the Trustee and the
Supplemental Indenture dated May 6 2008 between those parties (the
" First Supplemental Indenture " and together the Original
Indenture, the " Indenture "). Capitalized terms used herein
and not defined herein shall have the meanings given to such terms
under the Indenture.
WHEREAS, the Company desires to amend
Article X of the Indenture to remove certain covenants set
forth in Article X in the Indenture, specifically the removal
of the requirement that the Guarantor maintain its status as a real
estate investment trust under the Internal Revenue Code of 1986, as
amended (the " Change of REIT Status ");
WHEREAS, the Company desires to obtain the consent
of the Holders of the Preferred Securities to allow for amendments
to the Seller Notes in respect of the Change of REIT Status;
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 Section 10.6(c) is
deleted in its entirety and replaced with the following:
(c) [Reserved]
ARTICLE II
CONSENT
Section 2.01 The Holders of the
Preferred Securities, by signing this Supplemental Indenture hereby
consent to the Guarantor, the Company and any of their Subsidiaries
taking action to amend any documents relating to the Seller Notes
to remove any requirement that the Guarantor maintain its status as
a real estate investment trust under the Internal Revenue Code of
1986, as amended and confirms that any such action will not
constitute a breach of or default under the Operative
Documents.
ARTICLE III
MISCELLANEOUS
Section 3.01 By execution of this
Supplemental Indenture, each of the Administrative Trustees, on
behalf of Deerfield Capital Trust II (formerly Deerfield Triarc
Capital Trust II), as Holder of 100% in aggregate principal amount
of the Outstanding Securities
| 
