AMENDMENT NO. 2 TO
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INDENTURE
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THIS AMENDMENT NO. 2 TO INDENTURE (this "Amendment") dated as of
August 5, 1996, is 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 the
trusts hereunder, called the "Indenture Trustee").
RECITALS
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WHEREAS, the Issuer, the Servicer and the Indenture Trustee have
entered into the Indenture, dated as of February 1, 1995, as amended by that
certain Amendment No. 1 to Indenture dated September 29, 1995 (as amended, the
"Indenture"), whereby the Issuer has issued its Senior Viatical Settlement
Notes, Series 1995-A (the "Notes");
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 consent to an amendment to the
Indenture, subject to the terms and conditions of this Amendment.
AGREEMENT
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NOW, THEREFORE, in exchange for good and valuable consideration, the
receipt 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. Amendment.
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(a) Clause (iv) of Section 12.03(d) of the Indenture is hereby
amended and restated to read as follows:
"(iv) Until the principal amount of the Notes has been paid
in full, the Indenture Trustee shall withdraw from the
Liquidity Account and deposit into the Collection Account,
the amount, if any, by which the funds then held in the
Liquidity Account exceeds the greater of (x) 10% of the
Outstanding Principal Balance, after giving effect to the
payment of principal to be made on the Notes on such Payment
Date and (y) the Required Liquidity Amount."
Section 3. Representations and Warranties.
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(a) Each party by executing this Amendment hereby represents and warrants
that the person executing
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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 is enforceable against
such party in accordance with its terms.
(b) The Issuer represents and warrants that all of the representations and
warranties of the Issuer set forth in Section 11.01 of the Indenture are true
and correct as of the date hereof.
Section 4. Effective Date.
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This Amendment shall become effective as of the date specified in the
first paragraph of this Amendment, provided that each of the following
conditions is satisfied:
(a) The Indenture Trustee shall have received from each of the
parties hereto and each Noteholder an executed counterpart of this
Amendment.
(b) The Indenture Trustee and the Noteholders shall have
received written confirmation from the Rating Agency that the
execution, delivery and performance of this Amendment will not cause a
downgrading or withdrawal of the current rating by the Rating Agency on
the Notes.
Section 5. Miscellaneous.
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(a) Ratification of Indenture. The terms and provisions set
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forth in 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 Amendment, the Indenture is ratified
and confirmed in all respects and shall continue in full force and
effect. The security interests and assignments granted under the
Indenture shall 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,
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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
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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
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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 superseded by federal law.
(e) Binding Agreement. This Amendment shall be binding upon an
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inure to the benefit of the Issuer, the Servicer, the Indenture
Trustee, the Noteholders and their respective successors and assigns.
(f) Notice to Rating Agency. Promptly after the Effective Date,
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the Servicer shall mail an executed copy of this Amendment to the
Rating Agency.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Amendment No. 2 to Indenture has been signed
and delivered by the parties as of the date first above written.
DIGNITY PARTNERS FUNDING CORP. I
/s/ John Ward Rotter
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Secretary
Point West Capital Corporation.
/s/ John Ward Rotter
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Secretary
BANKERS TRUST COMPANY,
as Indenture Trustee
/s/Melissa Kaye Adelson
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Assistant Vice President
Consented and Agreed to as of the date first above written:
HELLER FINANCIAL
/s/ Hugh Wilder
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Senior Vice Presdient
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
/s/Tim Powell
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Second Vice President
FIRST PENN-PACIFIC LIFE INSURANCE COMPANY
By: Lincoln Investment Management, Inc.
Its Attorney-In-Fact,having changed its name from
Lincoln National Investment Management Company
/s/Tim Powell
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Second Vice President