EXHIBIT 4.5
FOURTH SUPPLEMENTAL INDENTURE
FOURTH SUPPLEMENTAL INDENTURE dated as of July __, 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. AMENDMENTS.
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 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.
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:
