AMENDMENT NO. 4 TO INDENTURE
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THIS AMENDMENT NO. 4 TO INDENTURE (this "Amendment") dated November 4,
1997, is made by and among Dignity Partners Funding Corp. I, a Delaware
corporation (the "Issuer"), Point West Capital Corporation (formerly known as
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
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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 Notes, Series
1995-A (the "Notes"), which Indenture was amended by Amendment No.1 to
Indenture dated September 29.1995, Amendment No. 2 To Indenture dated as of
August 5, 1996 and Amendment No. 3 To Indenture dated July 2, 1997;
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 desire to amend the Indenture, including the
Sections that govern payments made from the Collection Account and the
Liquidity 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 desire 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, no other consents are required to be obtained under the terms
of the Indenture or the Contribution and Servicing Agreement; and
WHEREAS, promptly after the execution of this Amendment the Issuer
will mail to the Rating Agency a copy of this Amendment pursuant to Section
9.01 of the Indenture and will thereby notify the Rating Agency of the waiver
of the Rating Agency Condition by 100% of the Holders.
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. Amendments
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(a) Section 12.02(d)(viii) is hereby amended and restated as
follows:
"with respect to any Sourcing Agents who are not
employees or Affiliates of Dignity Partners or the
Issuer, to pay Dignity Partners as Servicer the
amounts necessary to reimburse Dignity Partners for
its payment of any Back-End Sourcing Agent Fees to
such Sourcing Agents with respect to Policies that
Matured during the related Collection Period, as
provided in the Contribution, Sale and Servicing
Agreement, and in the event Dignity Partners is not
the Servicer, to pay such Sourcing Agent any
Back-End Sourcing Agent Fees with respect to
Policies that Matured during the related Collection
Period, and to reimburse Dignity Partners for its
payment of the costs of increasing the Face Value
of the Policies owned by the Issuer in an amount
not to exceed $100,000, provided however, that the
Majority Noteholders may, at any time, provide the
Indenture Trustee with written notice that Dignity
Partners shall not receive any further
reimbursements for the payment of Back-End Sourcing
Agent Fees and for the payment of the costs of
increasing the Face Value made on any Policy and
such written notice from the Majority Noteholders
to Indenture Trustee shall become effective on the
Business Day after the first Payment Date following
such written notice;"
(b) Section 12.02(d)(ix)is hereby amended and restated 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 made on any Policy,
provided however, that the Majority Noteholders
may, at any time, provide the Indenture Trustee
with written notice that Dignity Partners shall not
receive any further reimbursements for the payment
of premiums made on any Policy and such written
notice from the Majority Noteholders to Indenture
Trustee shall become effective on the Business Day
after the first Payment Date following such written
notice;"
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(c) Section 12.02(d)(x)is hereby amended and restated as follows:
To deposit into the Liquidity Account an amount
necessary to bring the balance thereof up to an
amount equal to the greater of the Required
Liquidity Amount and 10% of the Outstanding
Principal Balance provided, that there are
sufficient funds in the Collection Account to do
so;"
(d) Section 12.03(d)(i) is hereby amended by (I) inserting the
phrase ",(viii) and (ix)" after the phrase "to clauses (i) through
(vi)" contained in the fourth line thereof and (II) inserting the
phrase ",(viii) and (ix)" after the phrase "to clauses (i) through
(v) and (vii)" contained in the ninth line thereof.
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.
Section 5. Effective Date.
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This Amendment shall become effective as of August 1, 1997, provided
that each of the following conditions are 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.
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For purposes of the first Monthly Servicer Report prepared after the
execution of this Amendment, any reimbursements for back-end sourcing agent
fees, face increases and premiums on or after August 1, 1997 and prior to
October 1, 1997 shall be deemed to have been incurred during the related
Collection Period and the first Monthly Servicer Report prepared after
execution of this Amendment shall reflect any adjustments necessary to give
effect to the amendments adopted hereby as of August 1, 1997.
Section 6. 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 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 supersede by federal law.
(e) Binding Agreement. This Amendment shall be binding upon and
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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
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not intend to modify any other terms, provisions, or conditions of the
Indenture, except as set forth in Section 3 hereof, and the Holders do
not 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. Except as set forth in Section 3 hereof, 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.
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IN WITNESS WHEREOF, this Amendment No. 4 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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Coporate Secretary
Point West Capital Corporation.
/s/ John Ward Rotter
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Coporate Secretary
BANKERS TRUST COMPANY,
as Indenture Trustee
/s/Alfia Monastra
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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 President
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/David C. Patch
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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/David C. Patch
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Vice President