EX-10.5






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 Amount of the
outstanding Preferred Securities (“TPF VIII”) and Taberna Preferred Funding IX, Ltd., as
Holder of 55.56% in aggregate Liquidation Amount of the outstanding Preferred Securities (“TPF
IX”), hereby in accordance with Section 9.2 of the Indenture, (a) consents to the Trustee and
the Company executing and delivering this Supplemental Indenture, (b) directs the Trustee to
execute and deliver this Supplemental Indenture and (c) agrees to and does hereby release the
Trustee for any action taken or to be taken by the Trustee in connection with its execution and
delivery of this Supplemental Indenture and for any liability or responsibility arising in
connection herewith. Each of TPF VIII and TPF IX hereby in accordance with Section 9.2 of the
Indenture, (a) directs the Administrative Trustees and the Property Trustee to execute and deliver
this Supplemental Indenture and (b) agrees to and does hereby release the Administrative Trustees
and the Property Trustee for any action taken or to be taken by the Administrative Trustees and the
Property Trustee, respectively, in connection with their execution and delivery of this
Supplemental Indenture and for any liability or responsibility arising in connection herewith.



Section 3.02 The Trustee accepts the trust in this Supplemental Indenture declared and
provided upon the terms and conditions set forth in the Indenture. The Trustee shall not be
responsible in any manner whatsoever for the validity or sufficiency of this Supplemental Indenture
or the due execution hereof by the Company or for or in respect of the recitals and statements
contained herein, all of which recitals and statements are made solely by the Company.



Section 3.03 Except as hereby expressly modified, the Indenture and the Securities
issued thereunder are ratified and confirmed and all the terms, conditions and provisions thereof
shall remain in full force and effect.



Section 3.04 This Supplemental Indenture shall become effective only upon (a) the
Trustee’s receipt of a counterpart of this Supplemental Indenture duly executed by the Company and
the Trustee and (b) receipt by Taberna Capital Management, LLC of evidence that the holders of the
Seller Notes have consented to the Guarantor not maintaining its status as a real estate investment
trust under the Internal Revenue Code of 1986, as amended.



Section 3.05 The Company agrees to pay reasonable attorneys’ fees and disbursements of
Taberna Capital Management, LLC, the holders of the Preferred Securities and the Trustee in
connection with this Supplemental Indenture.



Section 3.06 This Supplemental Indenture may be executed in any number of
counterparts, each of which shall be deemed to be an original for all purposes; but such
counterparts shall together be deemed to constitute but one and the same instrument. The executed
counterparts may be delivered by facsimile transmission, which facsimile copies shall be deemed
original copies.



Section 3.07 The laws of the State of New York shall govern this Supplemental
Indenture without regard to the conflict of law principles thereof.



Section 3.08 In the event of any inconsistency between the terms and provisions of
this Supplemental Indenture and the Indenture, the terms and provisions of this Supplemental
Indenture shall prevail.



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IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly
executed as of the day and year first above written.



DEERFIELD CAPITAL LLC,


as Company



By: /s/ Frederick L. White

Name: Frederick L. White

Title: Senior Vice President, General

Counsel and Secretary





THE BANK OF NEW YORK MELLON

TRUST COMPANY, NATIONAL ASSOCIATION,

as Trustee



By: /s/ Maria D. Calzado

Name: Maria D. Calzado

Title: Vice President





THE BANK OF NEW YORK MELLON




TRUST COMPANY, NATIONAL ASSOCIATION,

as Property Trustee

(as to Section 3.01 only)



By: /s/ Maria D. Calzado

Name: Maria D. Calzado

Title: Vice President





DEERFIELD CAPITAL TRUST III

(as to Section 3.01 only)



By: /s/ Frederick L. White

Name: Frederick L. White

Title: Administrative Trustee





Attest: /s/ Robert A. Contreras

By: Robert A. Contreras



TABERNA PREFERRED FUNDING VIII, LTD.


(as to Section 2.01 and Section 3.01 only)



By: /s/ Alasdair Foster

Name: Alasdair Foster

Title: Director





Attest: /s/ Azandra Whittaker

By: Azandra Whittaker



TABERNA PREFERRED FUNDING IX, LTD.


(as to Section 2.01 and Section 3.01 only)



By: /s/ Alasdair Foster

Name: Alasdair Foster

Title: Director





Attest: /s/ Azandra Whittaker

By: Azandra Whittaker




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