FOURTH SUPPLEMENTAL INDENTURE
FOURTH SUPPLEMENTAL INDENTURE dated as of July 31, 2001 among Delta
Financial Corporation, a Delaware corporation (the "Company"), as issuer, each
of Delta Funding Corporation, a New York corporation, DF Special Holdings
Corporation, a Delaware corporation, Fidelity Mortgage Inc., a Delaware
corporation, DFC Financial Corporation, a Delaware corporation, XXX Xxxxxxxxx xx
Xxxxxx Xxxxxxx, xx Xxxxxxx, Xxxxxx corporation, DFC Funding of Canada Limited,
an Ontario, Canada corporation, Continental Property Management Corp., a New
York corporation, Delta Funding Residual Holding Trust 2000-1, a Delaware trust,
Delta Funding Residual Holding Trust 2000-2, a Delaware trust (collectively, the
"Subsidiary Guarantors") and U.S. Bank Trust National Association, a national
banking association incorporated under the laws of the United States, as trustee
(the "Trustee") under the Indenture referred to below.
WHEREAS, the Company, the Subsidiary Guarantors and the Trustee have
previously entered into an Indenture dated as of December 21, 2000, as amended
(the "Indenture") relating to the Company's 9 1/2% Senior Secured Notes Due 2004
(the "Notes");
WHEREAS, Section 9.02 of the Indenture provides that the Company, the
Subsidiary Guarantors and the Trustee may, with the written consent of the
holders of at least a majority in principal amount of the outstanding Notes,
amend or supplement the Indenture as provided herein;
WHEREAS, the holders of a majority in principal amount of the
outstanding Notes have consented to this Fourth Supplemental Indenture and
agreed to amend the Indenture as set forth herein; and
WHEREAS, all acts and things prescribed by law and by the Company's and
the Subsidiary Guarantors' Certificates of Incorporation and By-laws (each as
now in effect) necessary to make this Fourth Supplemental Indenture a valid
instrument legally binding on the Company and the Subsidiary Guarantors for the
purposes herein expressed, in accordance with its terms, have been duly done and
performed.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Company, the Subsidiary Guarantors and the Trustee hereby agree for the benefit
of each other and the equal and ratable benefit of the holders of the Notes as
follows:
1. Amendment.
Section 6.01 of the Indenture is hereby amended by deleting subsections
(l) and (m) and replacing them with the following:
"(l) the Company or any of its affiliates fails in a material way to
perform any of the undertakings set forth in the Letter of Intent on or before
August 31, 2001; or
(m) the Company fails to conclude the Exchange Offer described in the
Letter of Intent on or before August 31; or"
2. Effectiveness. This Fourth Supplemental Indenture shall be effective
as of the date hereof.
3. Construction. For all purposes of this Fourth Supplemental
Indenture, except as otherwise herein expressly provided or unless the context
otherwise requires: (i) the terms and expressions used herein shall have the
same meanings as corresponding terms and expressions used in the Indenture; and
(ii) the words "herein," "hereof" and "hereby" and other words of similar import
used in this Fourth Supplemental Indenture refer to this Fourth Supplemental
Indenture as a whole and not to any particular Section hereof.
4. Trustee Acceptance. The Trustee accepts the amendment of the
Indenture effected by this Fourth Supplemental Indenture and agrees to execute
the trust created by the Indenture, as hereby amended, but only upon the terms
and conditions set forth in the Indenture, as hereby amended, including the
terms and provisions defining and limiting the liabilities and responsibilities
of the Trustee, which terms and provisions shall in like manner define and limit
its liabilities and responsibilities in the performance of the trust created by
the Indenture, as hereby amended. Without limiting the generality of the
foregoing, the Trustee has no responsibility for the correctness of the recitals
of fact herein contained which shall be taken as the statements of the Company
and makes no representations as to the validity, enforceability against the
Company, or sufficiency of this Fourth Supplemental Indenture.
5. Indemnification of Trustee. The Company shall indemnify the Trustee
against any and all losses, liabilities or expenses, including taxes (other than
taxes based upon, measured by or determined by the income of the Trustee)
incurred by the Trustee arising out of or resulting from the execution of this
Fourth Supplemental Indenture, including the costs and expenses of enforcing
this Fourth Supplemental Indenture against the Company (including this Section
5) and defending itself against any claim (whether asserted by the Company or
any Holder or any other person) or liability in connection with the exercise or
performance of any of its powers or duties hereunder, except to the extent any
such loss, liability or expense may be attributable to the Trustee's negligence,
bad faith or willful misconduct.
6. Owner Trustee. It is expressly understood and agreed by the parties
that (a) this Fourth Supplemental Indenture is executed and delivered by
Wilmington Trust Company, not individually or personally, but solely as Owner
Trustee, in the exercise of the powers and authority conferred and vested in it,
pursuant to the 2000-1 Trust Agreement and the 2000-2 Trust Agreement, (b) each
2
of the representations, undertakings and agreements herein made on the part of
the Trusts is made and intended not as personal representations, undertakings
and agreements by Wilmington Trust Company but is made and intended for the
purpose for binding only the Trusts, (c) nothing herein contained shall be
construed as creating any liability on Wilmington Trust Company, individually or
personally, to perform any covenant either expressed or implied contained
herein, all such liability, if any, being expressly waived by the parties hereto
and by any person claiming by, through or under the parties hereto, and (d)
under no circumstances shall Wilmington Trust Company be personally liable for
the payment of any indebtedness or expenses of the Trusts or be liable for the
breach or failure of any obligation, representation, warranty or covenant made
or undertaken by the Trusts under this Fourth Supplemental Indenture or any
other related documents.
7. Indenture Ratified. Except as expressly amended hereby, the
Indenture is in all respects ratified and confirmed and all the terms,
conditions and provisions thereof shall remain in full force and effect.
8. Holders Bound. This Fourth Supplemental Indenture shall form a part
of the Indenture for all purposes, and every Holder of the Notes heretofore or
hereafter authenticated and delivered shall be bound hereby.
9. Successors and Assigns. This Fourth Supplemental Indenture shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
10. Counterparts. This Fourth Supplemental Indenture may be executed in
any number of counterparts, each of which when so executed shall be deemed to be
an original, and all of such counterparts shall together constitute one and the
same instrument.
11. Governing Law. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL
GOVERN AND BE USED TO CONSTRUE THIS FOURTH SUPPLEMENTAL INDENTURE WITHOUT REGARD
TO PRINCIPLES OF CONFLICTS OF LAW THEREOF.
3
IN WITNESS WHEREOF, the Company, the Subsidiary Guarantors and the
Trustee have caused this Fourth Supplemental Indenture to be signed and executed
as of the day and year first above written.
DELTA FINANCIAL CORPORATION
By:___________________________________
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
DELTA FUNDING CORPORATION
By:___________________________________
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
DF SPECIAL HOLDINGS CORPORATION
By:___________________________________
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
FIDELITY MORTGAGE INC.
By:___________________________________
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
DFC FINANCIAL CORPORATION
By:___________________________________
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
DFC FINANCIAL OF CANADA LIMITED
By:___________________________________
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
DFC FUNDING OF CANADA LIMITED
By:___________________________________
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
CONTINENTAL PROPERTY MANAGEMENT CORP.
By:___________________________________
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
DELTA FUNDING RESIDUAL HOLDING TRUST 2000-1
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely
as Owner Trustee
By:___________________________________
Name:
Title:
DELTA FUNDING RESIDUAL HOLDING TRUST 2000-2
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely
as Owner Trustee
By:___________________________________
Name:
Title:
U.S. BANK TRUST NATIONAL ASSOCIATION,
Indenture Trustee
By:___________________________________
Name:
Title:
