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EXHIBIT 4.3
EXECUTION COPY
SALE AND ASSIGNMENT AGREEMENT
THIS SALE AND ASSIGNMENT AGREEMENT, dated as of April 14, 1998
(the "Sale Agreement") is entered into among ADVANTA LEASING RECEIVABLES CORP.
III ("ALRC III"), a Nevada Corporation and ADVANTA BUSINESS RECEIVABLES LLC
("ABR LLC"), a Nevada Limited Liability Company (together the "Sellers") and
ADVANTA LEASING RECEIVABLES CORP. IV ("ALRC IV"), a Nevada Corporation and
ADVANTA LEASING RECEIVABLES CORP. V ("ALRC V"), a Nevada Corporation (together
the "Purchasers").
WITNESSETH:
Reference is hereby made to that certain Master Contribution
Agreement dated as of May 1, 1997, between Advanta Business Services Corp.
("ABS") and ALRC III, as the Obligors' Agent (the "Master Contribution
Agreement") and the Supplements thereto among ABS and the Sellers (the
"Supplements", and, together with the Master Contribution Agreement, the
"Contribution Agreement"). Pursuant to the Contribution Agreement ABS has
conveyed to the Sellers the Conveyed Assets, as defined in the Contribution
Agreement.
WHEREAS, the Sellers now wish to sell, transfer, convey and
assign such Conveyed Assets to the Purchasers; and
WHEREAS, the Purchasers now wish to purchase such Conveyed Assets
NOW THEREFORE, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows.
Section 1 Definitions. For the purposes of this Sale Agreement,
capitalized terms used herein but not otherwise defined shall have the
respective meanings assigned to such terms in the Contribution Agreement and the
Supplements.
Section 2. Sale; Assignment. (a) (i) ALRC III hereby sells,
assigns, transfers and conveys to ALRC IV all of the ALRC III's right, title and
interest in, to, and under all or any portion of the Conveyed Assets owned as of
the date hereof by ALRC III (the "ALRC III Assets"), together with all rights of
ALRC III against ABS under the Contribution Agreement and with respect thereto,
whether now existing or hereafter arising, without representation, warranty or
recourse except as set forth in Section 3 hereof.
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(ii) ABR LLC hereby assigns, transfers and conveys to ALRC V all
of ABR LLC's right, title and interest in, to, and under all or any portion of
the Conveyed Assets owned, as of the date hereof, by ABR LLC, together with all
rights of ABR LLC against ABS under the Contribution Agreement and with respect
thereto (the "ABR LLC Assets"), whether now existing or hereafter arising,
without representation, warranty or recourse except as set forth in Section 3
hereof.
(b) In connection with such sale and assignment, the Sellers have
recorded and filed financing statements in the State of Nevada with respect to
the Conveyed Assets, meeting the requirements of applicable state law in such
manner as are necessary to perfect and to maintain the perfection of, the sale
and assignment of the Conveyed Assets from the Sellers to the Purchasers.
(c) The purchase price for the sale of the ALRC III Assets by
ALRC III to ALRC IV is $41,961,276.67, the receipt of which is hereby
acknowledged from ALRC IV and ALRC V, jointly.
(d) The purchase price for the sale of the ABR LLC Assets by ABR
LLC to ALRC V is $341,909,905.68, the receipt of which is hereby acknowledged
from ALRC IV and ALRC V, jointly.
Section 3. Representations and Warranties. (a) Each Seller makes
the following representations and warranties to the Purchasers:
(i) Organization and Good Standing. Each Seller is a legal entity
duly organized, validly existing and in good standing under the laws of the
State of its organization, with full corporate power and authority to own its
properties and to conduct its business as presently conducted, and had at all
relevant times, and now has, power, authority and legal right to acquire, own
and convey the Conveyed Assets;
(ii) Due Qualification. Each Seller is in good standing, and has
obtained all necessary licenses and approvals, in all jurisdictions in which its
ownership or lease of property or the conduct of its business requires such
qualification, license or approval, except to the extent that the failure to be
so qualified, or to obtain such licenses and approvals would not, in the
aggregate materially and adversely affect the ability of the Sellers to perform
their respective obligations under this Sale Agreement;
(iii) Power and Authority. Each Seller has the corporate power
and authority to execute and deliver this Sale Agreement and has duly authorized
the transfer and assignment to the Purchasers of the Conveyed Assets by all
necessary corporate action;
(iv) No Violation. The consummation of the transactions
contemplated by and the fulfillment of the terms of this Sale Agreement will not
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
certificate of incorporation or bylaws of either of the Sellers or any material
term of any agreement, or other instrument to which either of the Sellers is a
party
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or by which it is bound, or result in the creation or imposition of any Adverse
Claim upon any of its properties pursuant to the terms of any such agreement, or
other instrument, or violate any law or any order, writ, judgment, award,
injunction, decree, rule, or regulation applicable to either of the Sellers or
affecting it or its property, which would have a material adverse effect on the
Conveyed Assets, and no transaction contemplated hereby requires compliance with
any bulk sales act or similar law;
(v) No Proceedings. There are no proceedings or investigations
pending, or, to the knowledge of either of the Sellers, threatened, before any
court, regulatory body, administrative agency, or other tribunal or governmental
authority (A) asserting the invalidity of this Sale Agreement, (B) seeking to
prevent the consummation of any of the transactions contemplated by this Sale
Agreement, or (C) seeking any determination or ruling that might (in the
reasonable judgment of either of the Sellers) materially and adversely affect
the performance by either of the Sellers of its respective obligations under, or
the validity or enforceability of, this Sale Agreement;
(vi) Insolvency. Neither Seller is insolvent and neither Seller
will be rendered insolvent by the transactions contemplated by this Sale
Agreement; and
(vii) Governmental Authorization. Other than the filing of the
financing statements required hereunder, no authorization or approval or other
action by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and performance by
each Seller of this Sale Agreement.
(b) Each Purchaser makes the following representations and
warranties to the Sellers:
(i) Organization and Good Standing. Each Purchaser is a legal
entity duly organized, validly existing and in good standing under the laws of
the State of its organization, with full corporate power and authority to own
its properties and to conduct its business as presently conducted, and has,
power, authority and legal right to acquire and own the Conveyed Assets;
(ii) Due Qualification. Each Purchaser is duly qualified to do
business as a foreign corporation and is in good standing, and has obtained all
necessary licenses and approvals, in all jurisdictions in which its ownership or
lease of property or the conduct of its business requires such qualification,
license or approval, except to the extent that the failure to be so qualified,
or to obtain such licenses and approvals would not, in the aggregate materially
and adversely affect the ability of the Purchasers to perform their respective
obligations under this Sale Agreement;
(iii) Power and Authority. Each Purchaser has the corporate power
and authority to execute and deliver this Sale Agreement and to carry out its
respective terms; and
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(iv) No Violation. The consummation of the transactions
contemplated by and the fulfillment of the terms of this Sale Agreement will not
conflict with, result in any breach of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a default under, the
Organizational Documents of either Purchaser, or any material term of any
agreement to which such Purchaser is a party.
Section 4. Governing Law. This Sale Agreement shall be construed
in accordance with and governed by the substantive laws of the State of New York
(without regard to choice of law principles) applicable to agreements made and
to be performed therein and the obligations, rights, and remedies of the parties
under this Sale Agreement shall be determined in accordance with such laws.
Section 5. Counterparts. This Sale Agreement may be executed in
two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original, but all of which shall constitute one and
the same instrument.
Section 6. Binding Effect; Third-Party Beneficiaries. This Sale
Agreement will inure to the benefit of and be binding upon the parties hereto,
the Trustee and their respective successors and permitted assigns.
Section 7. Headings. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.
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IN WITNESS WHEREOF, the Parties hereto have caused this SALE AND ASSIGNMENT
AGREEMENT to be duly executed by their respective officers as of the day and
year first above written
ADVANTA LEASING RECEIVABLES CORP. III
as Seller
By: /s/ Xxxxx XxXxxxx
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Name: Xxxxx XxXxxxx
Title: Chief Financial Officer
ADVANTA BUSINESS RECEIVABLES LLC
as Seller
By: /s/ Xxxxx XxXxxxx
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Name: Xxxxx XxXxxxx
Title: Chief Financial Officer
ADVANTA LEASING RECEIVABLES CORP. IV
as Purchaser
By: /s/ Xxxxx XxXxxxx
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Name: Xxxxx XxXxxxx
Title: Chief Financial Officer
ADVANTA LEASING RECEIVABLES CORP. V
as Purchaser
By: /s/ Xxxxx XxXxxxx
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Name: Xxxxx XxXxxxx
Title: Chief Financial Officer
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Acknowledgement of Advanta Business Services Corp.
Advanta Business Services Corp. hereby acknowledges the
assignment to Advanta Leasing Receivables Corp. IV and Advanta Leasing
Receivables Corp. V (together with The Chase Manhattan Bank, as Trustee, as
their assignee) by Advanta Leasing Receivables Corp. III and by Advanta Business
Receivables LLC of all of their rights against Advanta Business Services Corp.,
as Contributor, under the Master Contribution Agreement and the Supplements with
respect thereto, insofar as such relate to the Conveyed Assets, and further
acknowledges the direct right of The Chase Manhattan Bank to enforce such rights
directly against Advanta Business Services Corp.
ADVANTA BUSINESS SERVICES CORP.
By: /s/ Xxxx Silver
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Name: Xxxx Silver
Title: Senior Vice President
Dated: April 14, 1998
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