Exhibit 10
AMENDMENT NO. 3 TO
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INDENTURE
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THIS AMENDMENT NO. 3 TO INDENTURE (this "Amendment") dated 2 July, 1997, is
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made by and among Dignity Partners Funding Corp. I, a Delaware corporation (the
"Issuer"), Dignity Partners, Inc., a Delaware corporation (the "Servicer"), and
Bankers Trust Company, a New York banking corporation, as trustee (herein,
together with its permitted successors in trusts hereunder, called the
"Indenture Trustee").
RECITALS
WHEREAS, the Issuer, the Servicer and the Indenture Trustee have entered
into the Indenture, dated as of February 1, 1995 (the "Indenture"), whereby the
Issuer has issued its Senior Viatical Settlement Noted, Series 1995-A (the
"Notes"), which Indenture was amended by Amendment No. 1 to Indenture dated
September 29, 1995;
WHEREAS, pursuant to Sections 12.02 and 12.03 of the Indenture, the Issuer
has established a Collection Account and a Liquidity Account in which funds are
held and from which funds are required to be transferred from time to time;
WHEREAS, Heller Financial, The Lincoln National Life Insurance Company and
First Penn-Pacific Life Insurance Company together constitute the Holders of
100% of the Notes (together, the "Holders")
WHEREAS, the Holders are willing to modify Section 12.02(d) of the
Indenture, which Section governs payments made from the Collection Account;
WHEREAS, pursuant to Section 9.01 of the Indenture, the Issuer, the
Servicer and the Indenture Trustee, with the consent of the Holders, may modify
the Indenture provided that the Rating Agency Condition is met;
WHEREAS, the Issuer, the Servicer and all of the Holders are willing to
waive the requirement that the Rating Agency Condition is met as a condition to
this Amendment, and all of the Holders hereby direct the Indenture Trustee to
consent to this Amendment; and,
WHEREAS, promptly after the execution of this Amendment the Issuer will
mail the Rating Agency a copy of this Amendment pursuant to Section 9.01 of the
Indenture.
AGREEMENT
NOW, THEREFORE, in exchange for good and valuable consideration and
sufficiency of which are hereby acknowledged, the parties do hereby covenant and
agree as follows:
Section 1. Definitions.
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Capitalized terms used herein which are not otherwise defined herein have
the meanings ascribed to such terms in the Indenture.
Section 2. Amendments.
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(a) Section 9.01 of the Indenture is hereby amended by deleting the words:
(i) "and provided that the Rating Agency Condition is met"; (ii)
"and satisfaction of the Rating Agency Condition"; and (iii)
"and without satisfaction of the Rating Agency Condition"
(b) Section 12.02(d)(x) of the Indenture is hereby amended and restated to
read as follows:
"To pay Dignity Partners as Servicer the amount necessary
to reimburse Dignity Partners as provided in the Contribution
,Sale and Servicing Agreement for the payment of premiums
paid on any Policy during the related Collection Period
(the "Premium Reimbursement"), provided however, that, if to
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the extent there are insufficient funds in the Collection
Account to pay Dignity Partners the Premium Reimbursement
(the "Collection Account Premium Reimbursement Deficiency"),
Dignity Partners shall be paid the Collection Account Premium
Reimbursement Deficiency from the Liquidity Account, provided
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further however, that the Majority Noteholders may, at any
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time, provide the Indenture Trustee with written notice that
Dignity Partners shall not receive any further payments on
account of the Collection Account Premium Reimbursement
Deficiency from the Liquidity Account and such written notice
from the Majority Noteholders to the Indenture Trustee shall
become effective on the Business Day after the first Payment
Date following such written notice."
Section 3. Waiver.
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The Issuer, the Servicer and the Holders hereby waive the requirements of
Section 9.01 of the Indenture that the Rating Agency Condition is met as a
condition to this Amendment, and hold the Indenture Trustee harmless with
respect to such waiver and with respect to entering into this Amendment.
Section 4. Representation and Warranties.
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Each party by executing this Amendment hereby represents and warrants that
the person executing this Amendment on behalf of such party is duly authorized
to do so, such party has full right and authority to enter into this Amendment
and to consummate the transaction described in this Amendment, and this
Amendment constitutes the valid and legally binding obligation of such party,
and enforceable against such party in accordance with its terms.
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Section 5. Effective Date.
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This Amendment shall become effective as of April 1, 1997, provided that
each of the following conditions is satisfied:
(a) The Indenture Trustee shall have received from each parties
hereto and each Noteholder an executed counterpart of this Amendment.
(b) The Indenture Trustee and each Noteholder shall receive from
the Issuer and the Servicer a copy of a resolution passed by the board
of directors of each such corporation, certified by the Secretary or
an Assistant Secretary of such corporation as being in full force and
effect on the date hereof, authorizing the execution, delivery and
performance of this Amendment.
Section 6. Miscellaneous.
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(a) Ratification of Indenture. The terms and provisions set forth in
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this Amendment shall modify and supersede all inconsistent terms and
provisions set forth in the Indenture and except as expressly modified
and superseded by this mendment, the Indenture is ratified and
confirmed in all respects and shall continue in full force in no
manner be waived, impaired or otherwise adversely affected hereby,
and are hereby ratified and confirmed.
(b) References. The Indenture and any and all other agreements,
documents or instruments now or hereafter executed and delivered
pursuant to the terms hereof or pursuant to the terms of the Indenture
as amended hereby, are hereby amended so that any reference in such
agreements to the Indenture shall mean a reference to the Indenture as
amended hereby.
(c) Counterparts. This Amendment may be executed in two or more
counterparts,each or which will be deemed to be an original but all of
which together will constitute one and the same instrument.
(d) Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York, without
regard to the application of choice of law principles, except to the
extent that such laws are supersede by federal law.
(e) Binding Agreement. This Amendment shall be binding upon and
inure to the benefit of the Issuer, the Servicer, the Indenture
Trustee, the Noteholders and their respective successors and
assigns, including, without limitation, all future Holders of the
Notes.
(f) No Waiver. By entering into this Amendment, the Holders do
not intend to modify any other terms, provisions, or conditions of the
Indenture, and the Holders do not
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waive any defaults or events of default that may exist under the
Indenture or under the Contribution, Sale and Servicing Agreement.
The Holders reserve all of their rights to exercise any and all of
their remedies as provided in the Indenture and documents relating
thereto, at such time and in such manner as provided in the Indenture
and related documents. Nothing contained in this Amendment shall be
construed or interpreted as being a waiver of any of the Holders'
rights or remedies other than the Holders' agreement to modify the
Indenture in accordance with this Amendment.
IN WITNESS WHEREOF, this Amendment No. 3 to Indenture has been signed
and delivered by the parties as of the date first above written.
DIGNITY PARTNERS FUNDING CORP. I
By: /S/ JOHN WARD ROTTER
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Title: SECRETARY
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DIGNITY PARTNERS, INC.
By: /S/ JOHN WARD ROTTER
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Title: SECRETARY
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BANKERS TRUST COMPANY,
as Indenture Trustee
By: /S/ ALFIA MONASTRA
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Title: ASSISTANT VICE PRESIDENT
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Consented and Agreed to as of the date first above written:
HELLER FINANCIAL
By:/S/ KEVIN O'NEILL
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Title: AVP
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THE LINCOLN NATIONAL LIFE
INSURANCE COMPANY
By: Lincoln Investment Management,Inc.
Its Attorney-In-Fact, having changed
its name from Lincoln
National Investment Management Company
By:/S/ DAVID C. PATCH
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Title: VICE PRESIDENT
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