Exhibit 4.4
THIRD SUPPLEMENTAL INDENTURE
THIRD SUPPLEMENTAL INDENTURE, dated as of November __, 2000, by and among
Delta Financial Corporation, a Delaware corporation (the "Company"), each of
Delta Funding Corporation, a New York corporation ("Delta Funding"), DF Special
Holdings Corporation, a Delaware corporation ("DF Special Holdings"), Fidelity
Mortgage, Inc., a Delaware corporation, DFC Financial of Canada Limited, an
Ontario, Canada corporation, DFC Funding of Canada Limited, an Ontario, Canada
corporation, Continental Property Management Corp., a New York corporation
(collectively, the "Subsidiary Guarantors") and The Bank of New York, a New York
banking corporation, 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 July 23, 1997, as amended, (the
"Indenture") relating to the Company's 9 1/2% Senior Notes Due 2004 (the
"Notes");
WHEREAS, Section 9.2 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 (the "Consenting Noteholders") have consented to this Third Supplemental
Indenture and agreed with the Company to extend the deadline for consummating
the Exchange Offer contemplated in the First Supplemental Indenture, as amended,
dated August 1, 2000 (the "First Supplemental Indenture"), by and among the
Company, the Subsidiary Guarantors and the Trustee; 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 Third 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 OF SECTION 5 OF THE FIRST SUPPLEMENTAL INDENTURE.
The second sentence of Section 5 of the First Supplemental Indenture is
hereby deleted in its entirety and replaced by the following:
"If the Company does not consummate the Exchange Offer by exchanging New
Notes (as defined in the Term Sheet) for Notes with the Exchanging Holders on or
prior to December 22, 2000, an Event of Default shall be deemed to have occurred
at such time under the Indenture."
2. AMENDMENT TO ANNEX A OF THE FIRST SUPPLEMENTAL INDENTURE.
Annex A of the First Supplemental Indenture is hereby deleted in its
entirety and replaced by Annex A attached hereto.
3. EFFECTIVENESS. This Third Supplemental Indenture shall be effective as
of the date hereof.
4. CONSTRUCTION. For all purposes of this Third 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
Third Supplemental Indenture refer to this Third Supplemental Indenture as a
whole and not to any particular Section hereof.
5. TRUSTEE ACCEPTANCE. The Trustee accepts the amendment of the Indenture
effected by this Third 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
sufficiently of this Third Supplemental Indenture.
6. 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.
7. HOLDERS BOUND. This Third 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.
8. SUCCESSORS AND ASSIGNS. This Third Supplemental Indenture shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and assigns.
9. COUNTERPARTS. This Third 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.
10. GOVERNING LAW. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN
AND BE USED TO CONSTRUE THIS FIRST SUPPLEMENTAL INDENTURE WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAW THEREOF.
[SIGNATURE BLOCK ON FOLLOWING PAGE]
IN WITNESS WHEREOF, the Company, the Subsidiary Guarantors and the Trustee
have caused this Third Supplemental Indenture to be signed and executed as of
the day and year first above written.
DELTA FINANCIAL CORPORATION
By: ___________________________________
Name:
Title:
DELTA FUNDING CORPORATION
By: ___________________________________
Name:
Title:
DF SPECIAL HOLDINGS CORPORATION
By: ___________________________________
Name:
Title:
FIDELITY MORTGAGE INC.
By: ___________________________________
Name:
Title:
DFC FINANCIAL OF CANADA LIMITED
By: ___________________________________
Name:
Title:
DFC FUNDING OF CANADA LIMITED
By: ___________________________________
Name:
Title:
CONTINENTAL PROPERTY MANAGEMENT CORP.
By: ___________________________________
Name:
Title:
THE BANK OF NEW YORK, Indenture Trustee
By: ___________________________________
Name:
Title: