FORM OF CONTRIBUTION AGREEMENT
by and among
DELTA FINANCIAL CORPORATION,
THE EXISTING STOCKHOLDERS
NAMED HEREIN
and
DELTA FUNDING CORPORATION
Dated: ______ __, 1996
CONTRIBUTION AGREEMENT
This Contribution Agreement, dated as of October 8,1996, is
by and among DELTA FINANCIAL CORPORATION, a Delaware corporation
("DFC"), the persons named on Schedule A hereto (each, an "Existing
Stockholder" and, collectively, the "Existing Stockholders") and DELTA
FUNDING CORPORATION, a New York corporation("Delta").
RECITALS
Each Existing Stockholder owns the shares of issued and
outstanding capital stock, no par value, of Delta set forth opposite
such Existing Stockholder's name on Schedule A hereto, which in the
aggregate represent all of the issued and outstanding shares of
capital stock of Delta.
Delta and the Existing Stockholders desire to contribute, and
DFC desires to acquire from the Existing Stockholders all of the
issued and outstanding capital stock of Delta in consideration for the
issuance by DFC of shares of its common stock, $.01 par value per
share (the "Common Stock"), subject to the terms and conditions of
this Agreement.
AGREEMENT
NOW THEREFORE, in consideration of the mutual covenants and
promises contained herein and for other good and valuable
consideration, the receipt and adequacy of which is hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
CONTRIBUTION OF SECURITIES
1.1 Contribution of Delta Securities. The Existing
Stockholders hereby agree to transfer, assign, convey and deliver to
DFC, and DFC hereby agrees to accept and acquire from the Existing
Stockholders, on the date hereof, all right, title and interest of the
Existing Stockholders, legal or equitable, in and to all of the issued
and outstanding shares of capital stock of Delta as in each case are
owned by each Existing Stockholder, as set forth opposite such
Existing Stockholder's name on Schedule A hereto under the heading
"Capital Stock Being Contributed."
1.2 Consideration to Existing Stockholders. On the date
hereof, DFC shall deliver to each Existing Stockholder, in
consideration of the contribution, transfer, assignment, conveyance
and delivery of the shares of Delta owned by each Existing
Stockholder, the number of shares of Common Stock set forth opposite
each Existing Stockholder's name on Schedule A.
1.3 Closing Costs; Transfer Taxes. DFC shall be responsible
for any sales, use, income or other taxes imposed by reason of the
transfers of the shares of Delta and the shares of Common Stock
provided hereunder and any deficiency asserted with respect thereto.
ARTICLE II
CLOSING
2.1 Closing. The closing of the transactions contemplated
herein (the "Closing") shall be held at 10:00 a.m. on such date as
shall be mutually agreed upon by the parties, but in no event later
than the date on which the Securities and Exchange Commission shall
declare effective the Registration Statement on Form S-1 (the
"Registration Statement") of DFC filed pursuant to the Securities Act
of 1933, as amended, at the offices of Stroock & Stroock & Xxxxx,
Seven Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
2.2 Deliveries at the Closing. At the Closing:
(a) Each Existing Stockholder shall deliver to DFC
the shares of Delta's capital stock owned by such Existing
Stockholder, together with stock powers or other appropriate powers or
evidence of transfer in favor of DFC.
(b) DFC shall deliver to the Existing Stockholders the
shares of DFC Common Stock as provided for in Section 1.2.
(c) DFC and the Exiting Stockholders shall deliver
the certificates and other matters described in Articles __ and __
herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF DELTA
Delta hereby represents and warrants to DFC as follows:
3.1 Organization. Delta is duly organized, validly existing
and in good standing under the laws of its state of incorporation, has
full corporate power and authority to conduct its business as it is
presently being conducted and to own, lease and operate its properties
and assets. Delta is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction where the
ownership of property or nature of its business requires such
qualification. Each jurisdiction in which Delta is qualified to do
business as a foreign corporation is listed on Schedule B.
3.2 Subsidiaries. Delta has no subsidiaries.
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3.3 Organizational Documents, Etc. True, complete and
accurate copies of the certificate of incorporation and bylaws, each
of the foregoing as amended to the date hereof, and the minute books
and all stock books and stock transfer records of Delta, each current
to the date hereof, have been furnished to DFC, and there will be no
amendments or changes to such certificate of incorporation or bylaws
prior to the Closing Date.
3.4 Capital Stock, Etc. All of the issued and outstanding
capital stock of Delta is held by the Existing Stockholders, as set
forth on Schedule A hereto. All the shares of Delta's capital stock
are, and from the date hereof through the Closing Date, will be,
validly issued and outstanding, fully paid and non-assessable. There
are no outstanding options, warrants, rights (including preemptive
rights), subscriptions, calls, commitments, conversion rights, rights
of exchange, plans or other agreements of any character providing for
the purchase, issuance or sale of any shares of the capital stock of
Delta.
3.5 No Conflict or Violation. Neither the execution and
delivery of this Agreement nor the consummation of the transactions
contemplated hereby will result in (i) a violation or breach of,
conflict with or default under any term or provision of any contract,
agreement, indebtedness, lease, encumbrance, commitment, license,
franchise, permit, authorization or concession to which Delta is a
party or by which Delta is bound or affected or (ii) a violation by
Delta of any statute, rule, regulation, ordinance, code, action or
award applicable to it.
3.6 Restrictive Documents. Delta is not subject to, or a
party to, any mortgage, lien, lease, license, permit, agreement,
contract or instrument, or to any law, rule, ordinance, regulation,
Action or any other restriction of any kind or character, which would
have a material adverse effect on the execution, delivery and
performance of this Agreement by Delta and consummation by Delta of
the transactions contemplated hereby.
3.7 Consents and Approvals; Licenses. Except as disclosed on
Schedule 3.7, no consent, approval, authorization, license, order or
permit of, or declaration, filing or registration with, any
governmental entity, or any other person or entity, is required to be
made or obtained by Delta in connection with the execution, delivery
and performance by Delta of this Agreement and the consummation by
Delta of the transactions contemplated hereby.
3.8 Compliance with Law. Delta has complied with, and has not
violated, any judgments, rulings, orders, writs, injunctions, awards,
decrees, statutes, laws, ordinances, codes, rules or regulations of
any governmental entity applicable to it or to its assets, properties,
business or operations. Delta has complied
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with, and has not violated, any foreign, federal, state, county or
local energy, pubic utility, health, occupational safety or health
requirement, environmental requirement or any other foreign, federal,
state, county or local governmental, regulatory or administrative
requirement. No consent, approval, authorization, license, order or
permit of, or declaration, filing or registration with, any
governmental entity which has not been obtained is material to or
necessary for the conduct of the business of any of Delta. No
violations are or have been recorded in respect of any consent,
approval, authorization, license, order or permit of, or declaration,
filing or registration with, any governmental entity, and no
proceeding is pending, or to the knowledge of Delta threatened, to
revoke or limit any consent, approval, authorization, license, order
or permit of, or declaration, filing or registration with, any
governmental entity.
3.9 Litigation. There is no litigation, arbitration, claim,
governmental or other proceeding or investigation (domestic or
foreign, formal or informal) pending or, to the knowledge of Delta
threatened or in prospect (or any basis therefor known to Delta), with
respect to Delta or any of its operations, business, properties or
assets except as, individually or in the aggregate, do not now have
and are not reasonably expected in the future to have a material
adverse effect upon the financial condition, results of operations,
business, prospects, properties or assets of any of Delta.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE EXISTING STOCKHOLDERS
Each Existing Stockholder hereby represents and warrants,
solely with respect to such Existing Stockholder and not with respect
to any other Existing Stockholder, to DFC as set forth in this Article
IV.
4.1 Authorization. Each Existing Stockholder has the legal
right, power and authority to execute, deliver and perform his, her or
its obligations under this Agreement and each other agreement,
document or instrument contemplated hereby to which he, she or it is a
party. This Agreement has been duly executed and delivered by each
such Existing Stockholder and is a legal, valid and binding obligation
of each such Existing Stockholder enforceable against each such
Existing Stockholder in accordance with its terms, except as limited
by the effect of bankruptcy, insolvency, moratorium, fraudulent
conveyance and similar laws relating to or affecting creditors' rights
generally and court decisions with respect thereto.
4.2 Ownership of Securities. All of the securities of Delta
owned by each Existing Stockholder are owned by such Existing
Stockholder free and clear of all encumbrances.
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4.3 No Conflict or Violation. Neither the execution and
delivery of this Agreement nor the consummation of the transactions
contemplated hereby will result in (i) a violation or breach of,
conflict with or default under any term or provision of any contract,
agreement, indebtedness, lease, encumbrance, commitment, license,
franchise, permit, authorization or concession to which any Existing
Stockholder is a party or by which any Existing Stockholder is bound
or affected or (ii) a violation by any Existing Stockholder of any
statute, rule, regulation, ordinance, code, action or award applicable
to him, her or it.
4.4 Restrictive Documents. No Existing Stockholder is subject
to, or a party to, any mortgage, lien, lease, license, permit,
agreement, contract or instrument, or to any law, rule, ordinance,
regulation, action or any other restriction of any kind or character,
which would have a material adverse effect on the execution, delivery
and performance by such Existing Stockholder of this Agreement and
consummation by such Existing Stockholder of the transactions
contemplated hereby.
4.5 Consents and Approvals; Licenses. No consent, approval,
authorization, license, order or permit of, or declaration, filing or
registration with, any governmental entity, or any other person or
entity, is required to be made or obtained by any Existing Stockholder
in connection with the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
hereby.
4.6 No Other Agreements to Sell Securities. No Holder has any
legal obligation, absolute or contingent, to any person or entity
other than DFC to sell the securities of Delta owned by such Existing
Stockholder.
4.7 Material Misstatements Or Omissions. No representations
or warranties by any Existing Stockholder in this Agreement, nor any
document, exhibit, certificate or schedule furnished by such Existing
Stockholder to DFC pursuant hereto, or in connection with the
transactions contemplated hereby, or any document delivered at the
Closing, contains or will contain any untrue statement of a material
fact, or omits or will omit to state any material fact necessary to
make the statements or facts contained therein not misleading. The
copies of all documents furnished to DFC hereunder are true and
complete copies of the originals thereof.
4.8 Investment Representations. Each Existing Stockholder is
acquiring his, her or its shares of DFC Common Stock for his, her or
its own account, for investment and not with a view to the sale or
distribution thereof or with any present intention of selling or
distributing any thereof, except in conformity with the Securities
Act. Each Existing Stockholder understands and acknowledges that the
shares of DFC Common Stock are not
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registered under the Securities Act and will not be transferable
except (i) pursuant to an effective registration statement under the
Securities Act, (ii) pursuant to Rule 144 or any successor rule under
the Securities Act, (iii) pursuant to a no-action letter issued by the
SEC to the effect that a proposed transfer of the Shares may be made
without registration under the Securities Act or (iv) pursuant to an
opinion of counsel for or reasonably acceptable to DFC to the effect
that the proposed transfer is exempt from registration or
qualification under the Securities Act and relevant state securities
laws.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF DFC
DFC hereby represents and warrants to the Existing
Stockholders as follows:
5.1 Organization of DFC. DFC is duly organized, validly
existing and in good standing under the laws of the State of Delaware,
has full corporate power and authority to conduct its business as it
is presently being conducted and to own, lease and operate its
properties and assets. DFC is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where
the ownership of property or nature of its business requires such
qualification and where failure to be so qualified would have a
material adverse effect on DFC. DFC was incorporated on August 26,
1996 and has done no business and incurred no obligations except with
respect to the transactions contemplated hereby and by the
Registration Statement.
5.2 Authorization. DFC has all necessary corporate power and
authority and has taken all corporate action necessary to enter into
this Agreement to consummate the transactions contemplated hereby and
to perform its obligations hereunder. This Agreement has been duly
executed and delivered by DFC and is a legal, valid and binding
obligation of DFC enforceable against DFC in accordance with its
terms, except as limited by the effect of bankruptcy, insolvency,
moratorium, fraudulent conveyance and similar laws relating to or
affecting creditors rights generally and court decisions with respect
thereto.
5.3 No Conflict or Violation. Neither the execution and
delivery of this Agreement nor the consummation of the transactions
contemplated hereby will result in (i) a violation of or a conflict
with any provision of the certificate of incorporation or bylaws of
DFC, (ii) a breach of, or a default under, any term or provision of
any contract, agreement, indebtedness, lease, encumbrance, commitment,
license, franchise, permit, authorization or concession to which DFC
is a party or by which DFC is bound or affected which breach or
default would have a material adverse effect on the business or
financial condition of DFC or its ability to consummate the
transactions contemplated
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hereby or (iii) a violation by DFC of any statute, rule, regulation,
ordinance, code, order, judgment, writ, injunction, decree, action or
award applicable to DFC, which violation would have a material adverse
effect on the business or financial condition of DFC or its ability to
consummate the transactions contemplated hereby.
5.4 Consents and Approvals. No consent, approval or
authorization of, or declaration, filing or registration with, any
governmental entity, or any other person or entity is required to be
made or obtained by DFC in connection with the execution, delivery and
performance of this Agreement and the consummation of the transactions
contemplated hereby.
5.5 Issuance of DFC Shares. The authorized capital stock of
DFC consists of 49,000,000 shares of Common Stock and 1,000,000 shares
of Preferred Stock, par value $.01 per share (the "Preferred Stock").
As of the date hereof, no shares of Common Stock or of Preferred Stock
are outstanding. Upon the issuance of the DFC Shares as provided
herein, the DFC Shares will be duly and validly issued, fully paid and
non-assessable. Except as contemplated by the Underwriting Agreement
by and among DFC and NatWest Securities Ltd., Prudential Securities
Incorporated, as representatives of the several Underwriters listed on
Schedule [I] thereto, to be entered into on the Effective Date and the
1996 Stock Option Plan proposed to be adopted by DFC, there are no
outstanding options, warrants, rights, calls, commitments, conversion
rights, rights of exchange, plans or other agreements of any character
providing for the purchase, issuance or sale of any shares of the
capital stock of DFC.
5.6 Investment Representations. DFC is acquiring the shares
of Delta capital stock for its own account for investment and not with
a view to the sale or distribution thereof or with any present
intention of selling or distributing any thereof. DFC understands and
acknowledges that the shares of Delta capital stock are not registered
under the Securities Act and will not be transferable except (i)
pursuant to an effective registration statement under the Securities
Act, (ii) pursuant to Rule 144 or any successor rule under the
Securities Act, (iii) pursuant to a no-action letter issued by the SEC
to the effect that a proposed transfer of the Delta capital stock may
be made without registration under the Securities Act or (iv) pursuant
to an opinion of counsel for DFC to the effect that the proposed
transfer is exempt from registration or qualification under the
Securities Act and relevant state securities laws.
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ARTICLE VI
COVENANTS OF THE EXISTING STOCKHOLDERS AND DFC
The Existing Stockholders, on the one hand, and DFC, on the
other hand, covenant with each other as follows:
6.1 Maintenance of Business Prior to Closing. During the
period from the date hereof through the Closing Date, the Existing
Stockholders shall cause Delta to continue to carry on its business in
the ordinary course and in accordance with past practice and not to
take any action inconsistent therewith or with the consummation of the
Closing.
6.2 Consents and Best Efforts. As soon as practicable, Delta
and DFC will commence all reasonable action required hereunder to
obtain all applicable licenses, consents, approvals and agreements of,
and to give all notices and make all filings with, any third parties
as may be necessary to authorize, approve or permit the full and
complete transfer, conveyance, assignment and delivery of the shares
of the capital stock of Delta by a date early enough to allow the
transactions hereunder to be consummated by the Closing Date.
6.3 Share Legend. All DFC Shares to be issued to the Existing
Stockholders pursuant to this Agreement shall be subject to the
provisions of this Agreement, and the certificates representing such
DFC Shares shall bear the following legend:
"The shares of Delta Financial Corporation (the
"Corporation") represented by this certificate have
not been registered under the Securities Act of
1933, as amended (the "Act"), and may not be
distributed or transferred except (A) pursuant to an
effective registration statement under the Act, (B)
pursuant to an opinion of counsel for or reasonably
acceptable to the Corporation to the effect that the
proposed transfer is exempt from registration or
qualification under the Act and relevant state
securities laws or (C) pursuant to a no-action
letter issued by the Securities and Exchange
Commission to the effect that a proposed transfer
hereof may be made without registration under the
Act."
ARTICLE VII
CONDITIONS TO THE EXISTING STOCKHOLDERS' OBLIGATIONS
The obligations of the Existing Stockholders to consummate
the transactions provided for hereby are subject to the
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satisfaction, on or prior to the Closing Date, of each of the
following conditions:
7.1 Representations, Warranties and Covenants. All
representations and warranties of DFC contained in or made pursuant to
this Agreement shall be true and correct in all material respects at
and as of the Closing Date (and such representations and warranties
shall be deemed to be repeated by DFC at and as of the Closing Date),
except as and to the extent that the facts and conditions upon which
such representations and warranties are based are expressly required
or permitted to be changed by the terms hereof, and DFC shall have
performed in all material respects all agreements and covenants
required hereby to be performed by it prior to or at the Closing Date.
7.2 Consents. All consents, approvals and waivers from third
parties, governmental entities and other parties necessary to permit
the Holders to transfer the securities of Delta to DFC as contemplated
hereby shall have been obtained.
7.3 No Governmental Proceedings or Litigation. No action by
any governmental entity shall have been instituted or threatened which
questions the validity or legality of the transactions contemplated
hereby and which could reasonably be expected materially to damage the
Existing Stockholders if the transactions contemplated hereunder are
consummated.
7.4 Corporate Documents. The Holders shall have received from
DFC resolutions adopted by the board of directors of DFC approving
this Agreement and the transactions contemplated hereby certified by
DFC's corporate secretary or assistant secretary.
7.5 Certificates. DFC shall have furnished the Existing
Stockholders with such certificates of DFC's officers and others to
evidence compliance with the conditions set forth in this Article VII
as may be reasonably requested by the Existing Stockholders.
ARTICLE VIII
CONDITIONS TO DFC'S OBLIGATIONS
The obligations of DFC to consummate the transactions
provided for hereby are subject, in the discretion of DFC, to the
satisfaction, on or prior to the Closing Date, of each of the
following conditions:
8.1 Representations, Warranties and Covenants. All
representations and warranties of the Existing Stockholders contained
in or made pursuant to this Agreement shall be true and correct in all
material respects at and as of the Closing Date (and such
representations and warranties shall be deemed to be repeated by the
Existing Stockholders at and as of the Closing
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Date), except as and to the extent that the facts and conditions upon
which such representations and warranties are based are expressly
required or permitted to be changed by the terms hereof, and the
Existing Stockholders shall have performed in all material respects
all agreements and covenants required hereby to be performed by them
prior to or at the Closing Date.
8.2 Consents. All consents, approvals and waivers from third
parties, governmental entities and other parties necessary to permit
the Existing Stockholders to transfer, and DFC to acquire, the
Securities as contemplated hereby shall have been obtained.
8.3 No Governmental Proceedings or Litigation. No action by
any governmental entity shall have been instituted or threatened which
questions the validity or legality of the transactions contemplated
hereby and which could reasonably be expected to affect materially the
right or ability of DFC to own the Securities after the Closing or
materially to damage DFC or of Delta if the transactions contemplated
hereunder are consummated.
8.4 Certificates. The Existing Stockholders shall have
furnished DFC with such certificates to evidence compliance with the
conditions set forth in this Article VIII as may be reasonably
requested by DFC.
ARTICLE IX
EFFECTIVE DATE OF CLOSING
9.1 Effective Date of Closing. Notwithstanding the Closing of
the transactions contemplated hereby on the Closing Date, this
Agreement, other than this Article IX, shall terminate and such
Closing shall be deemed not to have occurred if the closing of the
Offering shall not have occurred in accordance with the terms of the
Underwriting Agreement on or prior to the forty-fifth business day
following the Closing Date.
9.2 Further Assurances. Upon the termination of this
Agreement pursuant to Section 10.1 hereof, each party hereto hereby
covenants and agrees to cooperate in good faith with the other parties
hereto and will take all appropriate action (corporate or otherwise)
and execute any documents, instruments or conveyances of any kind
which may be reasonably necessary or advisable to place the parties in
the same position as they were prior to the execution and delivery of
this Agreement and prior to the taking of any actions (corporate or
otherwise) by the parties hereto of in preparation for the initial
public offering by DFC contemplated by the Registration Statement.
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ARTICLE X
MISCELLANEOUS
10.1 Termination. If any condition precedent to the Existing
Stockholders' obligations hereunder is not satisfied and such
condition is not waived by the Existing Stockholders at or prior to
the Closing Date, or if any condition precedent to DFC's obligations
hereunder is not satisfied and such condition is not waived by DFC at
or prior to the Closing Date, the Existing Stockholders or DFC, as the
case may be, may terminate this Agreement at their or its option by
notice to the other party.
10.2 Assignment. Neither this Agreement nor any of the rights
or obligations hereunder may be assigned by any party; except that DFC
may assign all its rights and obligations hereunder to a subsidiary or
subsidiaries of DFC or to a successor to the business of DFC;
provided, however, that such assignment shall not release DFC with
respect to any such obligations or liabilities. Subject to the
foregoing, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and
assigns, and, in the case of the Existing Stockholders, their heirs,
beneficiaries, personal representatives and successors. No other
person shall have any right, benefit or obligation hereunder.
10.3 Notices. Unless otherwise provided herein, any notice,
request, instruction or other document to be given hereunder by any
party to any other party shall be in writing and shall be deemed to
have been given (a) if mailed, at the time when mailed in any general
or branch office of the United States Postal Service, enclosed in a
registered or certified postage-paid envelope, (b) if sent by
facsimile transmission, when so sent and receipt acknowledged by an
appropriate telephone or facsimile receipt or (c) if sent by other
means, when actually received by the party to which such notice has
been directed, in each case at the respective addresses or numbers set
forth below or such other address or number as such party may have
fixed by notice:
If to a Existing Stockholder, to the address listed
in Exhibit "A" hereto.
If to DFC addressed to:
Delta Financial Corporation
0000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
Fax: (000) 000-0000
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With a copy to:
Stroock & Stroock & Xxxxx
Seven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Fax: (000) 000-0000
10.4 Governing Law. This Agreement shall be construed,
interpreted and the rights of the parties determined in accordance
with the laws of the State of New York (without reference to the
choice of law provisions of New York law) except with respect to
matters of law concerning the internal corporate affairs of DFC, and
as to those matters the law of the State of Delaware shall govern.
10.5 Entire Agreement; Modifications and Waivers. This
Agreement, together with all exhibits and schedules hereto,
constitutes the entire agreement among the parties pertaining to the
subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written,
of the parties. No supplement, modification or waiver of this
Agreement shall be binding unless executed in writing by the party or
parties to be bound thereby. No waiver of any of the provisions of
this Agreement shall be deemed or shall constitute a waiver of any
other provision hereof (whether or not similar), nor shall such waiver
constitute a continuing waiver unless otherwise expressly provided. No
delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any
waiver on the part of any party of any right, power or privilege
hereunder, nor any single or partial exercise of any right, power or
privilege hereunder, preclude any other or further exercise thereof or
the exercise of any other rights, power or privilege hereunder. The
rights and remedies herein provided are cumulative and are not
exclusive of any rights or remedies which any party may otherwise have
at law or in equity.
10.6 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
10.7 Expenses. Except as otherwise specified herein, each
party hereto shall pay its own legal, accounting, out-of-pocket and
other expenses incident to this Agreement and to any action taken by
such party in preparation for carrying this Agreement into effect.
10.8 Invalidity. In the event that any one or more of the
provisions contained in this Agreement or in any other instrument
referred to herein, shall, for any reason, be held to be invalid,
illegal or unenforceable in any respect, then to the maximum
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extent permitted by law such invalidity, illegality or
unenforceability shall not affect any other provision of this
Agreement or any other such instrument and, to the extent enforceable,
such provisions shall be replaced by substitute provisions similar
thereto, or other provisions, so as to provide to the Existing
Stockholders and DFC, to the fullest extent permitted by applicable
law, the benefits intended by such provisions.
10.9 Titles. The titles, captions or headings of the Articles
and Sections herein are for convenience of reference only and are not
intended to be a part of or to affect the meaning or interpretation of
this Agreement.
10.10 Publicity. No Existing Stockholder shall issue any
press release or make any public statement regarding the transactions
contemplated hereby, without the prior approval of DFC, except, if
after discussion between the parties or their counsel, in the opinion
of counsel for any Existing Stockholder, such Existing Stockholder is
required under any applicable law or regulation to make a public
statement or announcement, such Existing Stockholder shall be
permitted to issue the legally required statement or announcement.
10.11 Consent to Jurisdiction; Service of Process. Each party
hereto hereby irrevocably submits to the jurisdiction of any state or
Federal court sitting in Nassau County in any action or proceeding
arising out of or relating to this Agreement or any of the
transactions contemplated hereby and hereby irrevocably agrees that
all claims in respect of such action or proceeding may be heard and
determined in such State court or, to the extent permitted by law, in
such Federal court. The parties hereby irrevocably waive, to the
fullest extent they may effectively do so, the defense of an
inconvenient forum to the maintenance of such action or proceeding.
Each of the parties hereby irrevocably consents to the service of
process in any such action or proceeding by the mailing by certified
mail of copies of any service or copies of the summons and complaint
and any other process to such party at the address specified in
Section 10.11 hereof. The parties agree that a final judgment in any
such action or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Section 10.11 shall affect the right
of a party to serve legal process in any other manner permitted by law
or affect the right of a party to bring any action or proceeding in
the courts of other jurisdictions.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed as of the day and year first above
written.
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DELTA FINANCIAL CORPORATION
By:__________________________________
Name:
Title:
DELTA FUNDING CORPORATION
By:__________________________________
Name:
Title:
THE EXISTING STOCKHOLDERS:
_____________________________________
Xxxxxx X. Xxxxxx
_____________________________________
Xxxx X. Xxxxxx
XXXXXX X. XXXXXX GRANTOR RETAINED
ANNUITY TRUST
By:__________________________________
Xxxxxx X. Xxxxxx, as Trustee
By:__________________________________
Xxxx X Xxxxxx, as Trustee
XXXX X. XXXXXX GRANTOR RETAINED
ANNUITY TRUST
By:__________________________________
Xxxx X. Xxxxxx, as Trustee
By:__________________________________
Xxxx X Xxxxxx, as Trustee
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SCHEDULE A
Capital Stock Common Stock
Being Being Received in
Existing Shareholder Contributed Exchange from DFC
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