INTERCREDITOR
AND SUBORDINATION AGREEMENT
This INTERCREDITOR AND SUBORDINATION AGREEMENT is dated as of
March 16, 2001 by and among U.S. Bank Trust National Association, as collateral
agent and not in its individual capacity (the "AGENT") under those certain
Pledge Agreements dated as of March 16, 2001 (the "NEW PLEDGE AGREEMENTS")
between Delta Funding Corporation or DF Special Holdings Corporation in favor of
the Agent, DELTA FUNDING CORPORATION, a New York corporation (together with its
successors and assigns, "DELTA FUNDING"), DF SPECIAL HOLDINGS CORPORATION, a
Delaware corporation (together with its successors and assigns, "DF SPECIAL
HOLDINGS", and together with Delta Funding, "DELTA"), XXXXXXX XXXXX MORTGAGE
COMPANY, a New York limited partnership (together with its successors and
assigns, "XXXXXXX SACHS") and GREENWICH CAPITAL FINANCIAL PRODUCTS, INC., a
Delaware corporation (together with its successors and assigns, "GREENWICH," and
together with Xxxxxxx Xxxxx, the "SENIOR LENDERS").
WITNESSETH:
WHEREAS, Delta has requested that Senior Lenders make advances
of cash to Delta pursuant to that certain Master Loan and Security Agreement,
dated as of September 30, 1999, between Delta and Greenwich, as amended, and
including Xxxxxxx Sachs, pursuant to that certain Amendment Number Nine, dated
as of the date hereof (as may be further amended, modified or restated from time
to time, the "SENIOR AGREEMENT") secured by, among other certificates, the
Pledged Residuals;
WHEREAS, as a condition to making any such advances pursuant
to the Senior Agreement, Senior Lenders require that Delta grant to them a first
priority security interest in the Pledged Residuals in order to secure certain
obligations of Delta owing to Xxxxxxx Xxxxx or Greenwich pursuant to the Senior
Agreement;
WHEREAS, the Pledged Residuals are currently on deposit in
Delta Funding Residual Holding Trust 2000-1 or Delta Funding Residual Holding
Trust 2000-2 (the "Residual Collateral Trusts") and pursuant to certain Pledge
Agreements dated as of December 21, 2000 the Agent (in its capacity as
collateral agent thereunder) holds a perfected security interest in the Owner
Trust Certificates evidencing beneficial ownership interests in the Residual
Collateral Trusts;
WHEREAS, in order to induce Xxxxxxx Sachs and Greenwich to
make the Advances pursuant to the Senior Agreement (i) the Beneficial Holders
are executing a consent statement pursuant to which the Beneficial Holders are
consenting to the release of the Pledged Residuals from the Residual Collateral
Trusts and (ii) the Agent pursuant to written instructions received by it from
the Beneficial Holders is executing a Third Supplemental Indenture dated as of
the date of the New Pledge Agreements which permits the grant to Senior Lenders
of a senior lien thereon and to the Agent of a junior and subordinated lien
thereon;
WHEREAS pursuant to the New Pledge Agreements, Delta Funding
and DF Special Holdings are granting to the Agent a pledge of and security
interest in the Pledged Residuals; and
WHEREAS, Xxxxxxx Xxxxx, Greenwich, Delta and Agent desire to
agree upon and set forth their rights to payment from Delta with respect to the
Pledged Residuals and the priority of their respective security interests in
and/or liens upon the Pledged Residuals, and all proceeds thereof;
NOW, THEREFORE, in consideration of the premises and for good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Xxxxxxx Sachs, Greenwich, Delta and Agent hereby agree as follows:
1. DEFINITIONS.
(a) Unless otherwise defined herein, terms defined in the
Senior Agreement and used herein shall have the meanings given to them in the
Senior Agreement.
(b) The following terms shall have the following meanings:
"1996-2 RESIDUAL": Delta Funding Home Equity Loan Trust
1996-2, Home Equity Loan Pass-Through Certificates, Series 1996-2, Class R,
representing percentage ownership of 99.999999% in such class.
"AGREEMENT": This Intercreditor and Subordination Agreement,
as the same may be amended, modified or otherwise supplemented from time to
time.
"BENEFICIAL HOLDERS": The beneficial holders of a majority in
principal amount of the Notes.
"NOTES": Approximately $150,000,000 in principal amount of
9 1/2% Senior Secured Notes due 2004 issued by Delta Financial Corporation.
"PLEDGED RESIDUALS": The residual receivables set forth on
Schedule I hereto.
"SENIOR OBLIGATIONS": The obligation of Delta or its
affiliates to make payments to Greenwich or Xxxxxxx Xxxxx pursuant to the terms
of the Senior Agreement.
"SUBORDINATED RIGHTS": All rights of the Agent with respect
to the Pledged Residuals or any proceeds, payments or related distributions or
rights therefrom or thereunder.
(c) The words "hereof", "herein" and "hereunder" and words
of similar import when used in this Agreement shall refer to this Agreement as
a whole and not to any particular provision of this Agreement, and section and
paragraph references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms.
2. SUBORDINATION.
(a) Each of Agent and Delta agrees, for itself and each
future holder of the Subordinated Rights, that the Subordinated Rights are
expressly "subordinate and junior in right of payment" (as that phrase is
defined in paragraph 2(b)) to all Senior Obligations.
(b) "Subordinate and junior in right of payment" means that:
(1) no part of the Subordinated Rights shall have any claim to
any Pledged Residual on a parity with or prior to the claim of any
Senior Obligation which is secured by such Pledged Residual;
(2) unless and until the Senior Obligations have been paid in
full, without the express prior written consent of Senior Lenders,
Delta shall not be permitted to make and Agent shall not be entitled to
receive any distribution in respect of the Pledged Residuals;
(c) The expressions "prior to payment in full," "payment in
full," "paid in full" and any other similar terms or phrases when used herein
with respect to the Senior Obligations shall mean the payment in full, in
immediately available funds, of all of the Senior Obligations then due or which
may become due at any future time.
(d) Agent hereby agrees that, prior to the payment in
full of the Senior Obligations secured by any Pledged Residual or Pledged
Residuals, the security interest of Senior Lenders in such Pledged Residual or
Pledged Residuals shall have priority over any security interest Agent may now
have or hereafter acquire in such Pledged Residual or Pledged Residuals and that
Agent's security interest in all respects shall be, and is, subject and
subordinate in all respects to Senior Lenders' security interest, whether or not
Senior Lenders' security interest is perfected or has priority by law.
3. ADDITIONAL PROVISIONS CONCERNING SUBORDINATION.
(a) Agent and Delta agree that all Senior Obligations shall
be paid in full before any payment or distribution is made with respect to the
Subordinated Rights, and no default shall exist under the New Pledge Agreements
in respect of any Subordinated Rights by virtue of the application of the
provisions of this Agreement to the Subordinated Rights.
(b) Agent and Delta agree that any payment or distribution of
assets in respect of the Pledged Residuals, to which Agent would be entitled
except for the provisions hereof, shall be paid or delivered by Delta, or any
receiver, trustee in bankruptcy, liquidating trustee, disbursing agent or other
Person making such payment or distribution, directly to Senior Lenders to the
extent necessary to pay in full all Senior Obligations, before any payment or
distribution shall be made to Agent.
(c) If any payment or distribution, whether consisting of
money, property or securities, be collected or received by the Agent from the
Pledged Residuals without the prior written consent of Senior Lenders, Agent
forthwith shall deliver the same to Senior Lenders in the form received, duly
endorsed to Senior Lenders, if required, to be applied to the payment or
prepayment of the related Senior Obligations until such Senior Obligations are
paid in full. Until so delivered, such payment or distribution shall be held in
trust by Agent as the property of Senior Lenders, segregated from other funds
and property held by Agent.
4. RIGHTS IN PLEDGED RESIDUALS.
(a) Notwithstanding anything to the contrary contained in
the Senior Agreement or the New Pledge Agreements and irrespective of:
(1) the time, order or method of attachment or perfection of
the security interests created by the Senior Agreement or the New
Pledge Agreements,
(2) the time or order of filing or recording of financing
statements or other documents filed or recorded to perfect security
interests in the Pledged Residuals,
(3) anything contained in any filing or agreement to which
Senior Lenders or Agent now or hereafter may be a party, and
(4) the rules for determining priority under the Uniform
Commercial Code or any other law governing the relative priorities of
secured creditors,
any security interest in the Pledged Residuals pursuant to the Senior Agreement
has and shall have priority, to the extent of any unpaid Senior Obligations,
over any security interest in such Pledged Residuals pursuant to the New Pledge
Agreements.
(b) So long as the Senior Obligations have not been paid in
full and the Senior Agreement remains in effect,
(1) Agent will not (A) exercise or seek to exercise any rights
or exercise any remedies with respect to any Pledged Residual or
Pledged Residuals which secure such Senior Obligation or (B) institute
any action or proceeding with respect to such rights or remedies,
including without limitation, any action of foreclosure or (C) contest,
protest or object to any foreclosure proceeding or action brought by
Senior Lenders or any other exercise by Senior Lenders of any rights
and remedies under the Senior Agreement or (D) otherwise take action
against the Pledged Residuals which secure such Senior Obligations
which would interfere with the quiet enjoyment of the Pledged Residuals
by the Senior Lenders, or delay or otherwise impede the ability of
Senior Lenders to collect or foreclose on the Pledged Residuals which
secure such Senior Obligations;
(2) Senior Lenders shall have the exclusive right to enforce
rights and exercise remedies with respect to the Pledged Residuals
which secure such Senior Obligations.
(c) In exercising rights and remedies with respect to the
Pledged Residuals, Senior Lenders may enforce the provisions of the Senior
Agreement and exercise remedies thereunder, all in such order and in such manner
as they may determine in the exercise of their sole business judgment. Such
exercise and enforcement shall include, without limitation, the rights to sell
or otherwise dispose of Pledged Residuals, to incur expenses in connection with
such sale or disposition and to exercise all the rights and remedies of a
secured lender under the Uniform Commercial Code of any applicable jurisdiction.
Senior Lenders shall give prior written notice to the Agent in connection with
any such sale or disposition of the Pledged Residuals by Senior Lenders and
shall provide ten (10) business days for the Agent to purchase the Pledged
Residuals for a purchase price equal to the then outstanding Senior Obligations,
such purchase to be effected not later than ten (10) business days following
delivery of such written notice. The Agent shall have no obligation to purchase
Pledged Residuals under this Section 4(c) unless it (i) shall receive written
instructions from the Beneficial Holders to make such purchase, (ii) shall have
in its possession as Agent or shall receive from the party or parties requesting
the purchase of Pledged Residuals, sufficient funds to pay the purchase price
for such Pledged Residuals and (iii) shall receive an indemnification from the
Beneficial Holders in form and substance satisfactory to the Agent against any
and all liabilities arising from such purchase.
All amounts paid by the Agent in connection with the purchase
of Pledged Residuals under this Section 4(c) shall be deemed an expense under
Section 10 of the New Pledge Agreements. Pledged Residuals purchased by the
Agent under this Section 4(c), and all cash proceeds received by the Agent in
respect of any sale of, collection from, or other realization upon, all or any
part of such Pledged Residuals, shall be held by the Agent subject to Section 8
of the New Pledge Agreements and shall be applied to the Obligations (as defined
in the New Pledge Agreements) of DF Special Holdings and Delta Funding in
accordance therewith.
(d) Subject to paragraphs (f) and (g) of this Section 4, when
all Senior Obligations which are secured by any Pledged Residual or Pledged
Residuals have been paid in full and the Senior Agreement no longer is in
effect, then Senior Lenders shall release any liens in and shall deliver the
Pledged Residuals to the Agent, to be held by the Agent pursuant to the New
Pledge Agreements, and shall execute any and all documents and instruments which
may be necessary to accomplish the purposes of this paragraph, including,
without limitation, any financing termination statements, endorsements,
assignments or other instruments of transfer or release, and Agent shall have
the right to enforce the provisions of the New Pledge Agreements relating to the
Pledged Residuals and exercise remedies thereunder.
(e) Any money, property or securities realized upon the
sale, disposition or other realization by Senior Lenders upon all or any part of
the Pledged Residuals, shall be applied by Senior Lenders in the following
order:
(1) First, to the payment in full of all reasonable costs and
expenses (including, without limitation, attorneys' fees and
disbursements) reasonably paid or incurred by Senior Lenders in
connection with such realization on the Pledged Residuals or the
protection of their rights and interests therein;
(2) Second, to the payment in full of all related Senior
Obligations in such order as Senior Lenders may elect in its sole
discretion;
(3) Third, to the Agent to payment in full of all obligations
secured by such Pledged Residuals under the New Pledge Agreements; and
(4) Fourth, to pay to Delta, or its representative or as a
court of competent jurisdiction may direct, any surplus then remaining.
(f) Senior Lenders' rights with respect to the Pledged
Residuals include the right to release any or all of the Pledged Residuals
relating to the 1996-2 Residual only from the lien of the Senior Agreement or
the New Pledge Agreements in connection with the sale of such Pledged Residuals,
notwithstanding that the net proceeds of any such sale may not be used to
permanently prepay any Senior Obligations or Subordinated Rights. If Senior
Lenders shall determine, in connection with any sale of Pledged Residuals
relating to the 1996-2 Residual only (including the sale by Delta of the Pledged
Residuals relating to the 1996-2 Residual only to the Senior Lenders pursuant to
a forward agreement, purchase agreement or similar agreement), that the release
of the lien of the New Pledge Agreements on such Pledged Residuals relating to
the 1996-2 Residual only in connection with such sale is necessary or advisable,
Agent shall execute such release documents and instruments and shall at the cost
and expense of Delta take such further actions as Senior Lenders shall
reasonably request. Agent hereby irrevocably constitutes and appoints Senior
Lenders and any officer or agent of Senior Lenders, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of Agent and in the name of Agent or
in Senior Lenders' own name, from time to time in Senior Lenders' discretion,
for the purpose of carrying out the terms of this paragraph, to take any and all
appropriate action and to execute any and all documents and instruments which
may be necessary to accomplish the purposes of this paragraph, including,
without limitation, any financing statements, endorsements, assignments or other
instruments of transfer or release. Agent hereby ratifies all that said
attorneys shall lawfully do or cause to be done pursuant to the power of
attorney granted in this paragraph.
(g) The Agent hereby releases, without the requirement of
any further action, any and all right, title and interest it may have in and to
the Pledged Residuals relating to the 1996-2 Residual only, effective, however,
only upon the sale or other disposition of the Pledged Residuals relating to the
1996-2 Residual only by Delta to either Senior Lender or both Senior Lenders (or
any of their affiliates) pursuant to any forward agreement, purchase agreement
or similar agreement.
5. CONSENT OF AGENT. Agent consents that, without the
necessity of any reservation of rights against Agent, and without notice to or
further assent by Agent:
(1) any demand for payment of any Senior Obligations made by
Senior Lenders may be rescinded in whole or in part by Senior Lenders,
and any Senior Obligation may be continued, and the Senior Obligations,
or the liability of Delta or any guarantor or any other party upon or
for any part thereof, or any collateral security or guarantee therefor
or right of offset with respect thereto, or any obligation or liability
of Delta or any other party under the Senior Agreement or any other
agreement, may, from time to time, in whole or in part, be renewed,
extended, modified, accelerated, compromised, waived, surrendered, or
released by Senior Lenders; and
(2) the Senior Agreement and any other Senior Agreement may be
amended, modified, supplemented or terminated, in whole or in part, as
Senior Lenders may deem advisable from time to time, and any collateral
security at any time held by either Senior Lender for the payment of
any of the Senior Obligations may be sold, exchanged, waived,
surrendered or released,
in each case all without notice to or further assent by Agent, which will remain
bound under this Agreement, and all without impairing, abridging, releasing or
affecting the subordination provided for herein.
(b) Agent waives any and all notice of the creation, renewal,
modification, amendment or accrual of any of the Senior Obligations and notice
of or proof of reliance by Senior Lenders upon this Agreement. All dealings
between Delta and Senior Lenders in respect of the Pledged Residuals shall be
deemed to have been consummated in reliance upon this Agreement. Agent
acknowledges and agrees that Senior Lenders have relied upon the subordination
provided for herein in making advances to Delta secured by the Pledged
Residuals. Agent waives notice of or proof of reliance on this Agreement and
protest, demand for payment and notice of default.
6. NEGATIVE COVENANTS OF AGENT. So long as any of the Senior
Obligations shall remain outstanding, Agent shall not, without the prior written
consent of Senior Lenders:
(a) sell, assign, or otherwise transfer, in whole or in part,
the Subordinated Rights or any interest therein to any other Person (a
"TRANSFEREE") or create, any security interest, lien, charge or other
encumbrance whatsoever upon the Subordinated Rights in favor of any Transferee
unless (1) such action is made expressly subject to this Agreement and (2) the
Transferee expressly acknowledges to Senior Lenders, by a writing in form and
substance satisfactory to Senior Lenders, the subordination provided for herein
and agrees to be bound by all of the terms hereof, or
(b) permit the New Pledge Agreements to be amended, modified
or otherwise supplemented.
7. SENIOR OBLIGATIONS UNCONDITIONAL. All rights and interests
of Senior Lenders hereunder, and all agreements and obligations of Agent and
Delta hereunder, shall remain in full force and effect irrespective of:
(a) any lack of validity or enforceability of the Senior
Agreement;
(b) any change in the time, manner or place of payment of,
or in any other term of, all or any of the Senior Obligations, or any amendment
or waiver or other modification, whether by course of conduct or otherwise, of
the terms of the Senior Agreement;
(c) any exchange, release or nonperfection of any security
interest in any Pledged Residuals, or any release, amendment, waiver or other
modification, whether in writing or by course of conduct or otherwise, of all or
any of the Senior Obligations or any guarantee thereof; or
(d) any other circumstances which otherwise might constitute
a defense available to, or a discharge of, Delta in respect of the Senior
Obligations, or of either Agent or Delta in respect of this Agreement.
8. REPRESENTATIONS AND WARRANTIES. Agent represents and
warrants to Senior Lenders that:
(a) Agent has capacity and the legal right to execute and
deliver and to perform its obligations under this Agreement and has taken all
necessary action to authorize its execution, delivery and performance of this
Agreement.
(b) This Agreement constitutes a legal, valid and binding
obligation of Agent, as collateral agent under the New Pledge Agreements.
(c) The Agent is the collateral agent under the New Pledge
Agreements and is executing the New Pledge Agreements and this Agreement
pursuant to a written consent and direction executed by the Beneficial Holders.
9. NO REPRESENTATION BY SENIOR LENDERS. Senior Lenders have
not made, and do not hereby or otherwise make to Agent, any representations
or warranties, express or implied, nor do Senior Lenders assume any liability to
Agent with respect to: (a) the financial or other condition of obligors under
any instruments with respect to the Senior Obligations, (b) the enforceability,
validity, value or collectibility of the Senior Obligations or the Subordinated
Rights, any collateral therefor, or any guarantee or security which may have
been granted in connection with any of the Senior Obligations or the
Subordinated Rights or (c) Delta's title or right to transfer the Pledged
Residuals.
10. NO REPRESENTATION BY AGENT: Agent has not made, and does
not hereby or otherwise make to Senior Lenders, any representations or
warranties, express or implied, nor does Agent assume any liability to Senior
Lenders with respect to: (a) the financial or other condition of obligors under
any instruments with respect to the Subordinated Rights, (b) the enforceability,
validity, value or collectibility of the Senior Obligations or the Subordinated
Rights, any collateral therefor, or any guarantee or security which may have
been granted in connection with any of the Senior Obligations or the
Subordinated Rights or (c) Delta's title or right to transfer the Pledged
Residuals.
11. WAIVER OF CLAIMS. To the maximum extent permitted by
law, Agent waives any claim it might have against Senior Lenders with respect
to, or arising out of, any action or failure to act or any error of judgment,
negligence, or mistake or oversight whatsoever on the part of Senior Lenders or
their respective directors, officers, employees or agents with respect to any
exercise of rights or remedies under the Senior Agreement or any transaction
relating to the Pledged Residuals. Neither Senior Lenders nor any of their
respective directors, officers, employees or agents shall be liable for failure
to demand, collect or realize upon any of the Pledged Residuals or for any delay
in doing so or shall be under any obligation to sell or otherwise dispose of any
Pledged Residuals upon the request of Delta or Agent or any other Person or to
take any other action whatsoever with regard to the Pledged Residuals or any
part thereof.
12. FURTHER ASSURANCES. Agent and Delta, at Delta's expense
and at any time from time to time, upon the written request of Senior Lenders,
will promptly and duly execute and deliver such further instruments and
documents and take such further actions as Senior Lenders reasonably may request
for the purposes of obtaining or preserving the full benefits of this Agreement
and of the rights and powers herein granted.
13. EXPENSES.
(a) Delta will pay or reimburse Senior Lenders, upon demand,
for all its costs and expenses in connection with the preparation of, and the
enforcement or preservation of any rights under, this Agreement, including,
without limitation, fees and disbursements of counsel to Senior Lenders.
(b) Delta will pay or reimburse Agent, upon demand, for all
its costs and expenses in connection with the preparation of, and the
enforcement or preservation of any rights under, this Agreement, including,
without limitation, fees and disbursements of counsel to Agent.
(c) Delta will pay, indemnify, and hold Senior Lenders
harmless from and against any and all other liabilities, obligations, losses,
damages, penalties, actions (whether sounding in contract, tort or on any other
ground), judgments, suits, reasonable costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of, or in any other way arising out of or
relating to this Agreement or any action taken or omitted to be taken by Senior
Lenders with respect to any of the foregoing.
(d) Delta will pay, indemnify, and hold Agent harmless from
and against any and all other liabilities, obligations, losses, damages,
penalties, actions (whether sounding in contract, tort or on any other ground),
judgments, suits, reasonable costs, expenses or disbursements of any kind or
nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of, or in any other way arising out of or
relating to this Agreement or any action taken or omitted to be taken by Agent
with respect to any of the foregoing.
14. PROVISIONS DEFINE RELATIVE RIGHTS. This Agreement is
intended solely for the purpose of defining the relative rights of Senior
Lenders on the one hand and Agent on the other, and no other Person shall have
any right, benefit or other interest under this Agreement.
15. POWERS COUPLED WITH AN INTEREST. All powers,
authorizations and agencies contained in this Agreement are coupled with an
interest and are irrevocable until the Senior Obligations are paid in full.
16. NOTICES. All notices, requests and demands to or upon
Senior Lenders or Delta or Agent to be effective shall be in writing (or by fax
or similar electronic transfer confirmed in writing) and shall be deemed to have
been duly given or made (1) when delivered by hand or (2) if given by mail, when
deposited in the mails by certified mail, return receipt requested, or (3) if by
fax or similar electronic transfer, when sent and receipt has been confirmed,
addressed as follows:
If to Greenwich: 000 Xxxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
Telecopier No.: (000) 000-0000
Telephone: (000) 000-0000
If to Xxxxxxx Xxxxx: 00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx
Telecopier No.: (000) 000-0000
Telephone: (000) 000-0000
and
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx
Telecopier No.: (000) 000-0000
Telephone: (000) 000-0000
If to Delta: 0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxx
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Xxxx X. Xxxxxx, Esq.
Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
If to Agent: U.S. Bank Trust National Association, as agent
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xx. Xxx X. Xxxxxxx
Vice President
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxxxxxxxx, Esq.
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Telecopier: (000) 000-0000
Telephone: (000) 000-0000
Senior Lenders, Delta and Agent may change their addresses and transmission
numbers for notices by notice in the manner provided in this Section.
17. COUNTERPARTS. This Agreement may be executed by one
or more of the parties on any number of separate counterparts, and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument.
18. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
19. INTEGRATION. This Agreement represents the agreement of
Senior Lenders and Agent with respect to the subject matter hereof and there
are no promises or representations by Senior Lenders or Agent relative to the
subject matter hereof not reflected herein.
20. AMENDMENTS IN WRITING; NO WAIVER: CUMULATIVE REMEDIES.
(a) None of the terms or provisions of this Agreement may
be waived, amended, supplemented or otherwise modified except by a written
instrument executed by Senior Lenders, Delta and Agent; PROVIDED, that any
provision of this Agreement may be waived by Senior Lenders in a letter or
agreement executed by Senior Lenders.
(b) No failure to exercise, nor any delay in exercising, on
the part of Senior Lenders, any right, power or privilege hereunder shall
operate as a waiver thereof. No single or partial exercise of any right, power
or privilege hereunder shall preclude any other or further exercise thereof or
the exercise of any other right, power or privilege.
(c) The rights and remedies herein provided are cumulative,
may be exercised singly or concurrently and are not exclusive of any other
rights or remedies provided by law.
21. SECTION HEADINGS. The section headings used in this
Agreement are for convenience of reference only and are not to affect the
construction hereof or be taken into consideration in the interpretation hereof.
22. SUCCESSORS AND ASSIGNS. This Agreement shall be binding
upon the successors and assigns of Delta and Agent and shall inure to the
benefit of Senior Lenders and their successors and assigns.
23. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF
THE NEW YORK GENERAL OBLIGATIONS LAW) WITHOUT REGARD TO ANY CONFLICTS OF LAW
PROVISIONS (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW)
AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER SHALL BE
DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE
EXTENT PREEMPTED BY FEDERAL LAW.
24. TERM. This Agreement shall remain in full force and
effect until all of the Senior Obligations shall have been paid in full in cash
and the Senior Agreement has been terminated. This Agreement shall continue to
be effective or be automatically reinstated, as the case may be, if at any time
any payment, or any part thereof, of any of the Senior Obligations is rescinded
or must otherwise be restored or returned by any Senior Lender for any reason
whatsoever, whether upon the insolvency, bankruptcy, dissolution, liquidation or
reorganization of Delta or otherwise, all as though such payment had not been
made. Section 4(d) shall survive and remain in full force and effect
notwithstanding any termination of the Senior Agreement or of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
DELTA FUNDING CORPORATION
By: /S/ XXXX X. XXXXXX
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
DF SPECIAL HOLDINGS CORPORATION
By: /S/ XXXX X. XXXXXX
--------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXXX XXXXX MORTGAGE
COMPANY
By: /S/ XXXXXXXX XXXXX
--------------------------------
Name: Xxxxxxxx Xxxxx
Title:
GREENWICH CAPITAL FINANCIAL PRODUCTS, INC.
By: /S/ XXXXXXX XXXXXXXXX
--------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
U.S. BANK TRUST NATIONAL ASSOCIATION, as Agent
By: /S/ XXXXX X. XXXXXX
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Trust Officer
SCHEDULE I
PLEDGED RESIDUALS
-----------------
ISSUER SERIES CLASS PERCENTAGE INTEREST
------ ------ ----- -------------------
Delta Funding Home Equity
Loan Trust 1996-2, Home 1996-2 R 99.999999%
Equity Loan Pass-Through
Certificates
Delta Funding Home Equity
Loan Trust 1999-3, Home 1999-3 BIO 100%
Equity Loan Asset-Backed
Certificates
Delta Funding Home Equity
Loan Trust 1999-3, Home 1999-3 R-1 99.999999%
Equity Loan Asset-Backed
Certificates
Delta Funding Home Equity
Loan Trust 1999-3, Home 1999-3 R-2 99.999999%
Equity Loan Asset-Backed
Certificates
Delta Funding Home Equity
Loan Trust 1999-3, Home 1999-3 R-3 99.999999%
Equity Loan Asset-Backed
Certificates
