EXHIBIT 10.5
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 October 27, 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 III (formerly
Deerfield Triarc Capital Trust III), as Holder of 100% in aggregate
principal amount of the Outstanding Securities and each of Taberna
Preferred Funding VIII, Ltd., as Holder of 44.44% in aggregate
Liquidation Am
