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EXHIBIT 4.5
SALE AND ASSIGNMENT AGREEMENT
THIS SALE AND ASSIGNMENT AGREEMENT, dated as of February 1, 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" or the "New Series Obligors").
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 (the "Contribution Agreement") and the Supplements thereto
dated as of May 15, 1997 and December 30, 1997 among ABS and the Sellers (the
"Supplements"). Pursuant to the Contribution Agreement and the Supplements ABS
has conveyed to the Sellers Conveyed Assets as defined in the Supplements.
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 Conveyed Assets consisting of Equipment, whether now
existing or hereafter arising, and ALRC III hereby assigns, conveys, grants and
transfers to ALRC IV, without representation, warranty or recourse except as set
forth in Section 3 hereof, all of its right, title and interest in and to all
Conveyed Assets consisting of Equipment, whether now existing or hereafter
arising.
(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 Conveyed Assets other
than Equipment, whether now existing or hereafter arising, and ABR LLC hereby
assigns, conveys, grants
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and transfers to ALRC V, without representation, warranty or recourse except as
set forth in Section 3 hereof, all of its right, title and interest in and to
all Conveyed Assets other than Equipment, whether now existing or hereafter
arising.
(b) In connection with such sale and assignment, the Sellers have
recorded and filed financing statements with respect to the Conveyed Assets,
meeting the requirements of applicable state law in such manner and in such
jurisdictions 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
and the Pledge of the Conveyed Assets from the New Series Obligors to the
Trustee; provided however, that the exceptions to the necessity for filing
financing statements as applicable to ABS under the Supplements is hereby made
applicable to the Sellers as relevant.
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 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 licences 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 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;
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(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 licences 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
(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
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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:__________________________________
Name:
Title:
ADVANTA BUSINESS RECEIVABLES LLC
as Seller
By:__________________________________
Name:
Title:
ADVANTA LEASING RECEIVABLES CORP. IV
as Purchaser
By:__________________________________
Name:
Title:
ADVANTA LEASING RECEIVABLES CORP. V
as Purchaser
By:__________________________________
Name:
Title:
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