EXHIBIT 4.12
FIFTH SUPPLEMENTAL INDENTURE
FIFTH SUPPLEMENTAL INDENTURE dated as of August 27, 2001 among Delta
Financial Corporation, a Delaware corporation (the "Company"), 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, and
Delta Funding Residual Holding Trust 2000-2, a Delaware trust (collectively, the
"Subsidiary Guarantors"), and U.S. Bank Trust National Association, as trustee
(the "Trustee"), under the Indenture (defined 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, pursuant to an exchange offer and consent solicitation, the
holders of a majority in principal amount of the outstanding Notes (the
"Consenting Noteholders") have consented to this Fifth Supplemental Indenture;
and
WHEREAS, all acts and things prescribed by law and by the Company's and
the Subsidiary Guarantors' certificates of incorporation and by-laws (or other
constitutive documents, as applicable) (each as now in effect) necessary to make
this Fifth 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 TO THE PREAMBLE AND ARTICLES 4, 5, 6, 10 AND 12.
(a) The Preamble of the Indenture is hereby deleted in its entirety and
replaced with the following:
"The Company has duly authorized the creation of an issue of the
Senior Notes (as defined) and the Subsidiary Guarantees (as defined), and,
to provide therefor, the Company has duly authorized the execution and
delivery of this Indenture. The Senior Notes will be jointly and severally
guaranteed, on an unconditional senior basis, by the Subsidiary Guarantors
(as defined). All things necessary to make the Senior Notes, when duly
issued and executed by the Company, and authenticated and delivered
hereunder, the valid obligations of the Company and the Subsidiary
Guarantors and to make this Indenture a valid and binding agreement of the
Company and the Subsidiary Guarantors, have been done."
For the avoidance of doubt, the amendment set forth in this
paragraph 1(a) shall not amend the first and third paragraphs of the
Indenture immediately preceeding Article One of the Indenture.
(b) Each Section of Article 4, except for Section 4.01, is hereby deleted
in its entirety.
(c) Section 5.01 of Article 5 is hereby deleted in its entirety; the
phrases "in accordance with Section 5.01" and "except in the case of a
sale of all of the Company's assets that meet the requirements of Section
5.01 hereof" are hereby deleted from Section 5.02.
(d) Sub-clauses (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (m) and
(n) of Section 6.01 of Article 6 are hereby deleted in their entirety.
(e) Section 6.02 of Article 6 is hereby deleted in its entirety and
replaced with the following:
"If any Event of Default occurs and is continuing, the Trustee or the
Holders of at least 25% in principal amount of the then outstanding Senior
Notes may declare all the Senior Notes to be due and payable immediately.
Upon any such declaration, the Senior Notes shall become due and payable
immediately."
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(f) Each Section of Article 10 is hereby deleted in its entirety.
(g) Each Section of Article 12, except for Section 12.03, is hereby
deleted in its entirety.
(h) Each cross-reference in the Indenture to a Section, Clause or
Sub-clause deleted pursuant to(a) through (g) above is hereby deleted
from the Indenture.
2. EFFECTIVENESS. This Fifth Supplemental Indenture shall be effective as
of the date hereof.
3. CONSTRUCTION. For all purposes of this Fifth 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
Fifth Supplemental Indenture refer to this Fifth 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 Fifth 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 Fifth Supplemental Indenture.
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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
Fifth Supplemental Indenture, including the costs and expenses of enforcing this
Fifth 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 Fifth 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 Fifth Supplemental Indenture or any other
related documents.
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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 Fifth 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 Fifth Supplemental Indenture shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
10. COUNTERPARTS. This Fifth 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 FIFTH 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 Fifth 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: Secretary and Senior Vice President
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DELTA FUNDING CORPORATION
By:/S/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary and Senior Vice President
DF SPECIAL HOLDINGS CORPORATION
By:/S/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary and Senior Vice President
FIDELITY MORTGAGE INC.
By:/S/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary and Senior Vice President
DFC FINANCIAL CORPORATION
By:/S/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary and Senior Vice President
DFC FINANCIAL OF CANADA LIMITED
By:/S/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary and Senior Vice President
DFC FUNDING OF CANADA LIMITED
By:/S/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary and Senior Vice President
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CONTINENTAL PROPERTY MANAGEMENT CORP.
By:/S/ XXXX X. XXXXXX
---------------------------------
Name: Xxxx X. Xxxxxx
Title: Secretary and 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:/S/ XXXXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
DELTA FUNDING RESIDUAL HOLDING TRUST 2000-2
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as Owner
Trustee
By:/S/ XXXXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Assistant Vice President
U.S. BANK TRUST NATIONAL ASSOCIATION,
Indenture Trustee
By:/S/ XXXXXXXX X. XXXXXX
--------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: Trust Officer
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