EXHIBIT 10.17
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CERTIFICATE PURCHASE AGREEMENT
(SERIES 1997-1, CLASS A)
dated as of June 27, 1997
among
WISCONSIN CIRCLE II FUNDING CORPORATION,
as Transferor,
and
THE PURCHASERS DESCRIBED HEREIN
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS.................................................... 1
SECTION 1.1 Definitions............................... 1
ARTICLE II
PURCHASE AND SALE OF CERTIFICATES.............................. 1
SECTION 2.1 The Commitments; Percentages.............. 1
SECTION 2.2 Purchase Mechanics During Revolving
Period.................................. 2
ARTICLE III
INDEMNITY...................................................... 2
SECTION 3.1 Indemnity................................. 2
SECTION 3.2 Taxes..................................... 3
ARTICLE IV
REPRESENTATIONS AND WARRANTIES................................. 4
SECTION 4.1 Transferor................................ 4
SECTION 4.2 Purchasers................................ 5
ARTICLE V
CONDITIONS..................................................... 5
SECTION 5.1 Conditions to Initial Purchase............ 5
SECTION 5.2 Conditions to Each Purchase............... 8
ARTICLE VI
MISCELLANEOUS PROVISIONS....................................... 9
SECTION 6.1 Amendments................................ 9
SECTION 6.2 No Waiver, Remedies....................... 9
SECTION 6.3 Successors and Assigns; Assignments....... 10
SECTION 6.4 Survival of Agreement..................... 11
SECTION 6.5 Expenses; Further Indemnification......... 11
SECTION 6.6 Entire Agreement.......................... 12
SECTION 6.7 Notices................................... 12
SECTION 6.8 No Third-Party Beneficiaries.............. 13
SECTION 6.9 Severability of Provisions................ 13
SECTION 6.10 Counterparts.............................. 13
SECTION 6.11 Governing Law............................. ▇▇
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▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ I Stated Amounts and Percentages
EXHIBITS
EXHIBIT A Form of Pooling and Servicing Agreement
EXHIBIT B Form of Purchase and Sale Agreement
EXHIBIT C Form of Rule 144A Investment Letter
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This CERTIFICATE PURCHASE AGREEMENT, dated as of June 27, 1997 (this
"Agreement"), is made among WISCONSIN CIRCLE II FUNDING CORPORATION, a Delaware
corporation ("Transferor"), and the purchasers named on the signature pages of
this Agreement (together with their respective permitted assigns, the
"Purchasers").
BACKGROUND
1. Transferor will enter into (a) a Pooling and Servicing Agreement
substantially in the form of Exhibit A (the "Pooling Agreement") with HCFP
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Funding, Inc., a Delaware corporation, as servicer (in that capacity, together
with any successors in that capacity, "Servicer"), and First Bank National
Association, as trustee (in that capacity, together with any successors in that
capacity, the "Trustee"), and (b) a Purchase and Sale Purchase Agreement
substantially in the form of Exhibit B (the "Purchase Agreement") with
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HealthCare Financial Funding II, Inc., a Delaware corporation, as Seller.
Pursuant to the Pooling Agreement, Transferor will obtain the Series 1997-1,
Class A Certificates (the "Certificates"), which will represent fractional
undivided beneficial interests in the assets of the STL 1997-1 Trust (the
"Trust"), a trust to be organized pursuant to the Pooling Agreement.
2. Transferor wishes to sell the Certificates to the Purchasers and
obtain their commitment to purchase fractional undivided beneficial interests in
the assets of the Trust (each a "Trust Interest") that will be evidenced by the
Certificates. Subject to the terms and conditions of this Agreement, each
Purchaser is willing (a) to purchase a Certificate with an initial Stated Amount
in the amount set forth opposite its name on Schedule I to this Agreement and
(b) to agree to so make purchases of Trust Interests up to the Stated Amount (as
defined below) as set forth opposite its name on Schedule I.
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. Capitalized terms used and not otherwise
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defined herein have the meanings assigned to them in Appendix A to the Pooling
Agreement.
ARTICLE II
PURCHASE AND SALE OF CERTIFICATES
SECTION 2.1 The Commitments; Percentages. Subject to the terms and
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conditions of this Agreement and the Pooling Agreement, each Purchaser agrees,
severally and for itself alone, upon Transferor's request, prior to the
expiration of the Revolving Period, to make purchases (each a "Trust Purchase")
of Trust Interests on each Subsequent Closing Date during the Revolving Period.
The Trust Purchases by the Purchasers shall be made ratably in accordance with
their respective Class Percentages; provided, that the failure of any Purchaser
to make any Trust Purchase shall not relieve
any other Purchaser of its obligation to make Trust Purchases hereunder; and
provided further that the Purchasers shall not be obligated to make any Trust
Purchase with respect to any Purchased Receivable in an amount exceeding the
lesser of (i) $4,440,000 for any Receivable not primarily secured by real estate
and (ii) $6,600,000 for any Receivable primarily secured by real estate and (b)
eighty-eight percent (88%) of the outstanding principal amount of such
Receivable held in Trust (the "Base Amount"). No Purchaser shall, however, be
responsible for the failure of any other Purchaser to make any Trust Purchase.
Subject to and in accordance with the terms of this Agreement, the aggregate
principal amount of a Purchaser's investment represented by its Certificate may
be increased or decreased from time to time.
The initial Class Percentages of the initial Purchasers are set forth
opposite their names on Schedule I.
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SECTION 2.2 Purchase Mechanics During Revolving Period.
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(a) Trust Purchases on the Initial Purchase Date shall be in such amount as
set forth on Schedule I hereto. Transferor shall give Purchasers not less than
two Business Days' prior notice of any Trust Purchases that Transferor wishes
the Purchasers to make on any Subsequent Closing Date during the Revolving
Period. Each such notice shall be irrevocable, shall refer to this Agreement
and shall specify (i) the aggregate purchase price for the requested Trust
Purchases (each of which shall be in a minimum amount of $500,000 (or in the
total unutilized amount of the various Purchasers' Stated Amounts, if less)) and
(ii) the applicable Subsequent Closing Date of the Trust Purchase. No requests
that the Purchasers make Trust Purchases shall be made by the Transferor on or
after the Purchase Termination Date.
(b) After receiving any notice given pursuant to subsection (a) and subject
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to the conditions in Article V, each Purchaser shall make a Trust Purchase in
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the amount of its pro rata portion of aggregate Trust Purchases requested to be
made, ratably according to its Class Percentage, on the applicable Subsequent
Closing Date by wire transfer in Dollars of immediately available funds to
Trustee for deposit into the Purchase Account.
ARTICLE III
INDEMNITY
SECTION 3.1 Indemnity. If a Purchaser shall incur any losses, expenses
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or liabilities (including any interest paid to lenders of funds borrowed by it
to fund any Trust Purchase and any loss sustained in connection with the re-
deployment of such funds) as a result of the failure of a Trust Purchase to be
made on a date specified therefor in a notice delivered by Transferor pursuant
to Section 2.2 (other than any such failure resulting from the Purchaser's
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default in the performance of its obligations hereunder), then, upon written
notice (which notice shall be signed by an officer of the Purchaser with
knowledge of and responsibility for such matters and shall set forth in
reasonable detail the basis for requesting the amounts) from the Purchaser to
Transferor and Servicer, additional amounts sufficient to indemnify the
Purchaser against the losses, expenses and liabilities, but not for any lost
profits or other consequential damages associated therewith, shall constitute
"Additional
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Amounts" for purposes of the Pooling Agreement, and the Purchaser shall be
entitled to receive these additional amounts, solely from amounts allocated
thereto and paid pursuant to the Pooling Agreement.
SECTION 3.2 Taxes.
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(a) Any and all payments made to each Purchaser under its Certificate shall
be made free and clear of and without deduction for any and all present or
future taxes, levies, imposts, duties, charges, fees, deductions or withholdings
of any nature and whatever called, by whomsoever, on whomsoever and wherever
imposed, levied, collected, withheld or assessed, other than taxes imposed on
all or part of the net income, profits or gains of that Purchaser (whether
worldwide, or only insofar as such income, profits or gains are considered to
arise in or to relate to a particular jurisdiction, or otherwise) (all the
nonexcluded taxes, levies, imposts, charges, deductions, withholdings and
liabilities being hereinafter referred to as "Taxes"). If Trustee or the Paying
Agent is required by law to deduct or withhold any Taxes from or in respect of
any sum payable or under any Certificate to a Purchaser, then the sum payable
shall be increased by the amount necessary to yield to such Purchaser (after
payment of all Taxes) an amount equal to the sum it would have received had no
such deductions or withholdings been made, and the additional amount shall
constitute "Additional Amounts" for purposes of the Pooling Agreement, and the
Purchaser shall be entitled to receive these additional amounts, solely from
amounts allocated thereto and paid pursuant to the Pooling Agreement.
(b) Whenever any Taxes are paid by Trustee pursuant to subsection (a), as
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promptly as practicable thereafter Transferor shall send or cause to be sent to
the relevant Purchaser the original or a certified copy of an original official
receipt showing payment thereof (if any) or any other evidence of the payment as
may be available to Transferor through the exercise of its reasonable efforts.
If Trustee fails to pay any Taxes when due to the appropriate taxing authority
or fails to remit to the Purchaser the required receipts or other required
documentary evidence, the Purchaser shall be entitled to receive, solely from
amounts allocated with respect thereto and paid pursuant to the Pooling
Agreement, additional amounts necessary to indemnify it for any incremental
taxes, interest or penalties that may become payable by Purchaser as a result of
any such failure, and the amounts shall constitute "Additional Amounts" for
purposes of the Supplement, and the Purchaser shall be entitled to receive these
additional amounts, solely from amounts allocated thereto and paid pursuant to
the Supplement.
(c) On or before the date it becomes a party to this Agreement (and, so
long as it may properly do so, periodically thereafter, as requested by
Servicer, to keep forms up to date), each Purchaser, including any Assignee,
that is not a United States person (as defined in section 7701(a)(30) of the
Internal Revenue Code), shall deliver to Trustee any certificates, documents or
other evidence that shall be required by the Internal Revenue Code or Treasury
Regulations issued pursuant thereto to establish that, assuming the Certificates
are properly characterized as indebtedness for Federal income tax purposes, it
is exempt from existing United States Federal withholding (including backup
withholding) requirements, including (i) two original copies of Internal Revenue
Service Form 1001 or Form 4224 or successor applicable form, properly completed
and duly executed by the Purchaser or Assignee certifying that it is entitled to
receive payments under this Agreement or any Certificate without deduction or
withholding of any United States Federal income taxes, and (ii) an original copy
of Internal Revenue Service Form W-8 or W-9 or applicable successor
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form, properly completed and duly executed; provided, that if any Purchaser does
not comply with this subsection 3.2(c), amounts payable to such Purchaser under
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this Section 3.2 shall be limited to amounts that would have been payable under
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this section if such Purchaser had so complied.
If at any time the Trustee or any Purchaser is required to pay any
additional amount pursuant to this Section 3.2, such Purchaser shall make all
reasonable efforts and take such other steps as may be reasonably available, so
that the payment, deduction or withholding would be reduced or the provisions of
Section 3.2 would no longer be applicable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1 Transferor. As of the Closing Date and the date of each
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purchase under Section 2.2, Transferor represents and warrants to the Purchasers
that each of its representations and warranties in the Pooling Agreement and the
Purchase Agreement is true and correct in all material respects, and that no
other material breach exists on the part of Seller or Servicer under those
Agreements, and further represents and warrants that:
(a) no Early Amortization Event or Unmatured Early Amortization Event
exists and the Delinquency Test is met;
(b) assuming the accuracy of each Purchaser's representations set out in
Section 4.2 and that no Purchaser (and no Person acting on any Purchaser's
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behalf) has made a general solicitation or general advertising within the
meaning of the Securities Act, the offer and sale of the Certificates in the
manner contemplated by this Agreement is a transaction exempt from the
registration requirements of the Securities Act, and the Pooling Agreement is
not required to be qualified under the Trust Indenture Act of 1939, as amended;
(c) Transferor has not dealt with any financial advisor (other than the
Purchasers), or other Person who may be entitled to any commission or
compensation in connection with the sale of the Certificates;
(d) no information supplied by or on behalf of Transferor to the Purchasers
in connection with the Transaction Documents contains any untrue statement of a
material fact or omits to state a material fact necessary to make the statements
contained herein or therein in light of the circumstances under which they were
made not misleading, or any of such information has been corrected in writing by
or on behalf of Transferor in writing delivered to Trustee, Servicer, and each
Purchaser, as applicable, sufficiently prior to the date such information
becomes material as to eliminate the effect of any prior inaccuracy or omission;
and
(e) the Certificates have been duly and validly authorized by Transferor
and, from and after the date on which the Certificates are executed by
Transferor and authenticated by the Trustee in accordance with the terms of the
Pooling Agreement and this Agreement and delivered to and paid for by the
Purchasers in accordance with the terms of this Agreement, will be validly
issued and
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outstanding and will constitute valid and legally binding obligations of the
Trust entitled to the benefits of the Pooling Agreement and this Agreement and
enforceable against the Trust in accordance with their terms.
SECTION 4.2 Purchasers. As of the Closing Date (or such later date on
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which it acquires its Certificate in accordance with Section 6.3), each
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Purchaser represents and warrants (and each Assignee shall be deemed to
represent and warrant as of the date that its assignment becomes effective) that
(a) it is an "accredited investor" as that term is defined in any of
paragraphs (1), (2), (3) or (7) of Rule 501(a) under the Securities Act or a
"Qualified Institutional Buyer" under Rule 144A and Section 4(2) of the
Securities Act, and is not purchasing its Certificate with a view to making a
distribution thereof (within the meaning of the Securities Act);
(b) it (a) is not, and is not purchasing its Certificate directly or
indirectly on behalf of, or with the assets of, an ERISA plan;
(c) (i) No more than 100 Persons may be Certificateholders at any one time,
(ii) the Certificates shall not be registered under the Securities Act nor
listed on any exchange, (iii) if investment in this Certificate represents
substantially all of the value of the Purchaser's assets, then the investment is
not being made for the principal purpose of avoiding the 100 partner
representation of the private placement exemption to the "publicly traded
partnership rule" under Treasury Regulation 1-7704-1(h)(3);
(d) it confirms it has had the opportunity to request financial and other
information as it has deemed necessary in connection with its decision to
purchase the Certificates, and has received and carefully read and is familiar
with the information provided by the Transferor in such connection;
(e) it has such knowledge and experience in financial and business matters
that it is capable of evaluating the merits and risks of purchasing the
Certificates;
(f) the Certificates are being acquired solely for the Purchaser's own
account, for investment, and are not being purchased with a present view to or
for the resale, distribution, subdivision or fractionalization thereof; and the
Purchaser agrees that such Certificates will not be sold without redistribution
under the Securities Act or an exemption therefrom, and then solely in a
accordance with the terms of the Pooling Agreement; and
(g) this Agreement has been duly and validly authorized by the Purchasers
and will constitute the valid and legally binding obligation of the Purchasers,
enforceable against the Purchasers in accordance with its terms.
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ARTICLE V
CONDITIONS
SECTION 5.1 Conditions to Initial Purchase. The obligation of each
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Purchaser to Purchase its Certificate shall be subject to the satisfaction of
the conditions precedent that,
(a) the conditions precedent specified in the Purchase Agreement (other
than those that relate to this Agreement) shall be satisfied;
(b) such Purchaser shall have received a duly executed and authenticated
Certificate registered in its name and in a Stated Amount equal to the amount
set out opposite its name on Schedule I to this Agreement;
(c) such Purchaser shall have received the initial installment of the
structuring fee set forth in the letter dated June 27, 1997, from CSFB to the
Servicer; and
(d) such Purchaser shall have received an original (except as indicated
below) counterpart of the following (each of which, if not in a form attached to
this Agreement, shall be in form and substance satisfactory to the Required
Person):
(i) the Pooling Agreement and the Purchase Agreement, each of
which shall be in full force and effect, and all actions required to be
taken under those documents in connection with the issuance of the
Certificates shall have been taken;
(ii) a certificate of the Secretary, or an Assistant Secretary,
of each of Transferor, Guarantor, Servicer and Seller with respect to:
(A) attached copies of resolutions of its Board of Directors
(or, if applicable, its managing body) then in full force and effect
authorizing the execution, delivery and performance of the Transaction
Documents,
(B) the incumbency and signatures of those of its officers
authorized to act with respect to the Transaction Documents, and
(C) attached copies of its certificate of incorporation and
by-laws (or, if applicable, its limited liability company operating
agreement);
(iii) a certificate of an Authorized Officer of Transferor as to
the satisfaction of the conditions precedent set forth in Section 5.2, and
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a certificate of Transferor that the representations and warranties of the
Transferor set out in this agreement are true and correct in all material
respects as of the date of such initial purchase and that no Early
Amortization Event or Unmatured Early Amortization Event exists;
(iv) a certificate of an Authorized Officer of Seller and
Servicer as to the satisfaction of the conditions precedent set forth in
the Purchase Agreement and Pooling Agreement, respectively, and a
certificate of Seller and Servicer that the representations and
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warranties set out in the Purchase Agreement and Pooling Agreement,
respectively, are true and correct in all material respects as of the date
of such initial purchase and that no Early Amortization Event or Unmatured
Early Amortization Event exists;
(v) a certificate of an appropriate officer of Trustee stating
that the Pooling Agreement has been duly authorized, executed and delivered
by Trustee and the Certificates have been duly authenticated by Trustee in
accordance with the Pooling Agreement and an opinion of counsel to Trustee
as to related matters;
(vi) the Purchase Report for the Initial Purchase Date;
(vii) copies of each document delivered to Transferor by Seller
pursuant to Article IV of the Purchase Agreement, in form and substance
satisfactory to each Purchaser;
(viii) results of recent searches of the UCC filing records and
tax and ERISA and judgment lien records in each jurisdiction in which a
filing referred to in subsection (ix) is to be made for filings against
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Seller (including any predecessors in interest to Seller going back five
years) and Transferor, showing no filings of record that cover any of the
Receivables or the other Transferred Assets other than (i) the financing
statements referred to in subsection (ix) (to the extent shown in the
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searches) and (ii) any other filings as to which the Purchasers have
received signed UCC-3 termination statements or pay-off letters in form and
substance satisfactory to them;
(ix) confirmation satisfactory to the Purchasers that (x) the
following, as applicable, have been placed with Lexis Document Services or
another filing service selected by the Purchasers for filing, the filing to
occur on or before the Closing Date and (y) any filing fees and
indebtedness taxes necessary to perfect or protect true security interests
by means of such filings have been paid in full:
(A) UCC financing statements naming each Obligor, as
seller/debtor, and Seller, as secured party/purchaser, in each office
where the filing is necessary for the perfection of the sales or
pledges of Receivables and Related Assets by such Obligor to Seller;
(B) assignments of such existing UCC financing statements to
Transferor, as assignee of the secured party, and further to Trustee,
as further assignee of the secured party, in each office where the
filing is necessary for the perfection of the sales or pledges of
Receivables and Related Assets by each Obligor to Seller;
(C) UCC financing statements naming Seller, as seller/debtor,
and Transferor, as secured party/purchaser, in each office where the
filing is necessary for the perfection of the sales or contribution of
Receivables and Related Assets by Seller to Transferor;
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(D) assignments of such existing UCC financing statements to
Trustee, as assignee of the secured party, in each office where the
filing is necessary for the perfection of the sales of Receivables and
Related Assets by Seller to Transferor; and
(E) UCC financing statements naming Transferor, as
seller/debtor, and Trustee, as secured party/purchaser, in each office
where the filing is necessary for the perfection of the transfers of
Receivables and other Transferred Assets by Transferor to Trustee;
(x) opinions of counsel to Transferor as to certain corporate and
securities matters concerning Seller, Guarantor, Federal and state tax and
UCC matters, state licensing and tariffs, true sale and non-consolidation
issues, addressed to the Purchasers and Trustee, and in each case as to the
matters and in such form and substance as shall be reasonably satisfactory
to the Purchasers and Trustee;
(xi) evidence, reasonably satisfactory to the Purchasers, of the
payment of all taxes, fees and other governmental charges, if any,
incidental to the issuance of the Certificates and to the consummation of
the transactions contemplated hereunder and under the Pooling Agreement;
(xii) solvency certificates of the chief financial officer of
Seller and Guarantor, which certificate shall be addressed to the
Purchasers and shall be in form and substance reasonably satisfactory to
the Purchasers;
(xiii) such sublicenses and assignments as the Purchasers shall
require with regard to all computer and data recovery software used by
Servicer or Seller in connection with the servicing of the Transferred
Assets, which sublicenses and assignments will permit any substitute
Servicer to use such software; and
(xiv) any other information, certificates, opinions and
documents as the Purchasers reasonably may request.
If the conditions specified above have not been fulfilled on the date
hereof, any condition specified in this Agreement shall not have been fulfilled
when and as required in this Agreement or waived by the Purchasers, in each case
a Purchaser's obligations to purchase the Certificates pursuant to this
Agreement may be terminated by notice to Transferor. Nothing in this paragraph
shall operate to relieve Transferor from any of its obligations hereunder or
otherwise waive any of the Purchasers' rights against Transferor.
SECTION 5.2 Conditions to Each Purchase. The obligation of each
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Purchaser to make any Trust Purchase on any day (including those comprising the
initial Purchase) shall be subject to the Trustee's receipt of the Purchase
Report for that day and to the conditions precedent that on the date of the
Trust Purchase, before and after giving effect thereto and to the application of
any proceeds therefrom, the following statements shall be true:
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(a) the representations and warranties of Transferor set out in this
Agreement are true and accurate in all material respects as of that date with
the same effect as though made on that date (unless specifically stated to
relate to an earlier date);
(b) the funded principal amount of its Certificate, after giving effect to
the Trust Purchase, does not exceed its Class Percentage of an amount equal to
88% of the Unpaid Balance of the Eligible Receivables held in the Trust, and the
cumulative amount funded under its Certificate will not thereby exceed the
Stated Amount of such Certificate;
(c) the Seller has satisfied the conditions for the sale of Receivables
under the Purchase Agreement;
(d) no Unmatured Early Amortization Event or Early Amortization Event has
occurred and is continuing;
(e) no event which would become a Bankruptcy Event under subsection (a) of
the definition thereof with the passage of time has occurred and is continuing;
and
(f) the Purchase Termination Date has not occurred.
The giving of any notice pursuant to Section 2.2(a) shall constitute a
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representation and warranty by Transferor that the foregoing statements are
true.
ARTICLE VI
MISCELLANEOUS PROVISIONS
SECTION 6.1 Amendments. This Agreement may be amended, modified or
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waived in a writing agreement among Transferor and the Required Person;
provided, however, that no amendment modification, waiver or consent shall (a)
decrease in any manner the amount of, or delay the timing of, any allocation,
payment or distribution in respect of any Certificate without the prior written
consent of each Purchaser affected thereby, (b) amend, modify or waive any
provision of this Agreement that requires the approval or consent of a specified
percentage of Purchasers without the prior written consent of that percentage of
Purchasers, (c) amend, modify or waive the provisions of this section with
respect to the rights of any Purchaser, or the Class Percentage of any
Purchaser, without the consent of that Purchaser, (d) waive any Early
Amortization Event arising from a Bankruptcy Event with respect to Transferor or
Seller without the consent of each Purchaser, (e) amend or modify the Class
Percentage of any Purchaser, without its prior written consent or (f) waive any
of the requirements hereunder that the interests of Trustee in the Receivables
and the other Transferred Assets be perfected by appropriate Public Notice
filings without the prior written consent of each Purchaser. Each Purchaser
shall be bound by any modification, waiver or consent authorized by this
section.
SECTION 6.2 No Waiver, Remedies. Any waiver, consent or approval given
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by any party hereto shall be effective only in the specific instance and for the
specific purpose for which
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given, and no waiver by a party of any breach or default under this Agreement
shall be deemed a waiver of any other breach or default. No failure on the part
of any party hereto to exercise, and no delay in exercising, any right hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise of
any right hereunder, or any abandonment or discontinuation of steps to enforce
the right, power or privilege, preclude any other or further exercise thereof or
the exercise of any other right. No notice to or demand on any party hereto in
any case shall entitle such party to any or further notice or demand in the
same, similar or other circumstances. The remedies herein provided are
cumulative and not exclusive of any remedies provided by law.
SECTION 6.3 Successors and Assigns; Assignments.
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(a) This Agreement shall be binding upon, and inure to the benefit of
Transferor and the Purchasers and their respective successors and assigns;
provided that Transferor may not assign its rights or obligations hereunder or
in connection herewith or any interest herein (voluntarily, by operation of law
or otherwise) without the prior written consent of all the Purchasers; and
provided further, that no Purchaser may transfer, pledge, assign, sell
participations in or otherwise encumber its rights or obligations hereunder or
any interest herein except as permitted under this section.
(b) Subject to the terms of Section 6.3(e), any Purchaser may at any time
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assign to any Permitted Transferee or to one or more banks or institutional
investors (each, an "Assignee") all or any part of its participating interests
in all or any portion of its Certificate and its obligations hereunder (its
"Credit Exposure"); provided that (i) unless assigned to an Affiliate of the
Purchaser or to a Permitted Transferee, it assigns all of its Credit Exposure or
a portion of its Credit Exposure in a Stated Amount not less than $5,000,000,
and (ii) if such Assignee is not a United States person (as defined in section
7701(a)(30) of the Internal Revenue Code), such Assignee shall satisfy the
requirements of Section 4.2, provided, that if such Assignee thereafter fails to
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comply with the requirements of Section 4.2, amounts payable to it under Section
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4.2 shall be limited to amounts that would be payable if such Assignee had
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complied with Section 4.2, and (iv) such Assignee shall meet the requirements
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for reregistration of a Certificate in its name under the Pooling Agreement.
Transferor and the Purchasers agree to extend the rights and benefits with
respect to Transferor under this Agreement to the Assignee to the extent the
Assignee would have had if it were a Purchaser that was an original signatory to
this Agreement; provided, that the parties hereto shall be entitled to continue
to deal solely and directly with the assignor Purchaser in connection with the
interests so assigned to the Assignee until the assignment agreement, as
described above, shall have been delivered to the Transfer Agent and Registrar
by the Purchaser and the Assignee and the assignment shall have become
effective. Upon the effective assignment of its Credit Exposure, the Purchaser
shall be relieved of its obligations hereunder to the extent of the assignment.
(c) The sale or assignment by a Purchaser of any Credit Exposure to any
Assignee (each, a "Transferee") shall not be effective until it has agreed to be
bound by the provisions of this Agreement and the Pooling Agreement. Transferor
authorizes the Purchasers to disclose to any Transferee and any prospective
Transferee any and all information in their possession concerning Transferor or
Seller in connection with the Transferee's credit evaluation of the Program
prior to entering into this Agreement; provided, that, such Assignee agrees, in
a writing reasonably
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satisfactory to the Seller, to use such information only in connection with such
Assignee's decision to purchase all or any part of a Certificate and to
otherwise keep such information confidential.
(d) Notwithstanding any other provision set forth in this Agreement, the
Purchasers may at any time create a security interest in all or any portion of
their rights under this Agreement and the Certificates in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
(e) No transfer, assignment or other conveyance of, or sale of any Credit
Exposure of a Purchaser in, a Certificate shall be made unless, after giving
effect thereto, there shall be no more than [--] Private Holders of Subject
Instruments, as reasonably determined by Transferor. Any attempted transfer,
assignment, conveyance, participation or subdivision in contravention of the
preceding restrictions, as reasonably determined by the Transferor, shall be
void ab initio and the purported transferor, seller or subdivider of such
Certificate shall continue to be treated as the Certificateholder of any such
Certificate for all purposes of this Agreement.
(f) Each Purchaser claiming increased amounts described in Sections 3.1,
------------
3.2 or 6.5 hereof shall furnish to the Trustee, any Paying Agent, Servicer and
--- ---
Transferor a certificate setting forth in reasonable detail the basis and amount
of each request by such Purchaser for certificate will be prepared in accordance
with the requirements of such Section (if any). Determinations by an Purchaser
of any increased amounts referred to in such Sections shall be conclusive,
absent demonstrable error. Each Purchaser shall promptly notify, the Trustee,
Servicer and Transferor of the occurrence of any event of which such Purchaser
is aware that would be likely to result in a demand for compensation pursuant to
Section 3.1, 3.2 or 6.5 hereof.
----------- --- ---
SECTION 6.4 Survival of Agreement. All covenants, agreements,
---------------------
representations and warranties made herein and in the Certificates delivered
pursuant hereto shall survive the making and the repayment of the Trust
Purchases and the execution and delivery of this Agreement and the Certificates
and shall continue in full force and effect until all obligations have been paid
in full and all commitments of the Purchasers hereunder have been terminated.
In addition, the obligations of Transferor under Sections 3.1, 3.2 and 6.5
------------ --- ---
hereof shall survive the termination of this Agreement.
SECTION 6.5 Expenses; Further Indemnification. Transferor shall pay on
---------------------------------
demand (a) all reasonable out-of-pocket fees and expenses (including reasonable
attorneys' fees and expenses) of the Purchasers incurred in connection with the
preparation, execution, delivery, administration, amendment, modification and
waiver of the Transaction Documents and the making and repayment of the Trust
Purchases, including any Servicer or collection agent fees paid to any third
party for services rendered to the Purchasers in collecting the Receivables and
(b) all reasonable out-of-pocket fees and expenses of the Purchasers (including
reasonable attorneys' fees and expenses of their counsel) incurred in connection
with the enforcement of the Transaction Documents against Transferor in
connection with any workout or restructuring of the Transaction Documents
provided that the sum of such amounts may not exceed $75,000 with respect to
initial Closing and the initial Purchase hereunder. In addition, Transferor
will pay any and all stamp and other taxes and fees payable or determined to be
payable in connection with the execution, delivery, filing, recording or
enforcement of this Agreement or any payment made under the Transaction
Documents, and hereby indemnifies and saves the Purchasers harmless from and
against any and all liabilities with respect to
11
or resulting from any delay in paying or omission to pay the taxes and fees.
Transferor agrees to reimburse and indemnify each Purchaser and their respective
officers, directors, shareholders, controlling Persons, employees and agents
(collectively, the "Indemnitees") from and against any and all actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature that
may be imposed on, asserted against or incurred or suffered by the Purchasers
(including fees and expenses of legal counsel, accountants and experts) in any
way relating to or arising out of the acts, errors or omissions of the
Transferor under any Transaction Document. Additional amounts sufficient to
indemnify the Purchasers or other Indemnitees under this Section 6.5 shall
-----------
constitute "Additional Amounts" for purposes of the Pooling Agreement, and the
Purchasers or other Indemnities shall be entitled to receive these additional
amounts, solely from amounts allocated thereto and paid pursuant to the Pooling
Agreement.
Notwithstanding the foregoing (and with respect to clause (x) below,
----------
without prejudice to the rights that an Indemnitee may have pursuant to the
other provisions of the Transaction Documents), in no event shall any Indemnitee
be indemnified against any amounts (w) resulting from gross negligence or
willful misconduct on the part of such Indemnitee (or any of its officers,
directors, employees, affiliates or agents) or the failure of such Indemnitee to
perform its obligations under the Transaction Documents, (x) to the extent they
include amounts in respect of Receivables and reimbursement therefor that would
constitute credit recourse to Transferor, Seller or Servicer for the amount of
any Receivable or Related Transferred Asset not paid by the related Obligor or
(y) to the extent they are or result from lost profits or other consequential
damages.
If for any reason the indemnification provided in this section is
unavailable to an Indemnitee or is insufficient to hold it handless, then
Transferor shall contribute to the amount paid by the Indemnitee as a result of
any loss, claim, damage or liability in a proportion that is appropriate to
reflect not only the relative benefits received by the Indemnitee on the one
hand and Transferor on the other hand, but also the relative fault of the
Indemnitee (if any), Transferor and any other relevant equitable considerations;
provided that the Transferor shall not, and shall not be obligated to, pay any
amount pursuant to this Section unless and to the extent that the Transferor has
funds available to pay such amounts or funds are allocated thereafter to the
Transferor and there shall be no recourse to Transferor for all or any part of
any amounts payable pursuant to this section if they are at any time
insufficient to make all or part of any such payments. Any amount which
Transferor does not pay pursuant to the operation of the preceding sentence
shall not constitute a claim (as defined in (S) 101 of the Bankruptcy Code)
against or corporate obligation of Transferor for any such insufficiency.
SECTION 6.6 Entire Agreement. This Agreement, together with the
----------------
documents delivered pursuant to Section 5.1 and the other Transaction Documents,
including the exhibits and schedules thereto, contains a final and complete
integration of all prior expressions by the parties hereto with respect to the
subject matter hereof and shall constitute the entire agreement among the
parties hereto with respect to the subject matter hereof, superseding all
previous oral statements and other writings with respect thereto.
SECTION 6.7 Notices. All communications hereunder shall be in writing
-------
and shall be deemed to have been duly given if personally delivered, sent by
overnight courier or mailed by registered mail, postage prepaid and return
receipt requested, or transmitted by facsimile transmission and confirmed by a
similar mailed writing to any party at the address for that party set forth (a)
on
12
the signature page to this Agreement or (b) to another address as that party
may designate in writing to the Purchasers and Transferor.
SECTION 6.8 No Third-Party Beneficiaries. Nothing expressed herein is
----------------------------
intended or shall be construed to give any Person (other than the parties
hereto, and Assignees described in Section 6.3 ) any legal or equitable right,
remedy or claim under or in respect of this Agreement.
SECTION 6.9 Severability of Provisions. Any covenant, provision,
--------------------------
agreement or term of this Agreement that is prohibited or is held to be void or
unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective
to the extent of the prohibition or unenforceability without invalidating the
remaining provisions of this Agreement.
SECTION 6.10 Counterparts. This Agreement may be executed in any number
------------
of counterparts (which may include facsimile) and by the different parties
hereto in separate counterparts, each of which when so executed shall be deemed
to be an original, and all of which together shall constitute one and the same
instrument.
SECTION 6.11 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
-------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
13
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized officers and delivered as of the day and
year first above written.
WISCONSIN CIRCLE II FUNDING CORPORATION,
as Transferor
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
----------------------------
Its: Executive Vice President
--------------------------
Address: --------------------------
--------------------------
Attention:
--------------------------
Telephone:
--------------------------
Facsimile:
--------------------------
CREDIT SUISSE FIRST BOSTON MORTGAGE CAPITAL, LLC, as a
Purchaser
By: /s/ ▇▇▇▇▇ ▇▇▇▇
---------------------------------
Its: Vice President
--------------------------
Address: ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention:
--------------------------
Telephone:
--------------------------
Facsimile:
--------------------------
14
SCHEDULE I
to Certificate Purchase Agreement
Series 1997-1, Class A
AMOUNT OF EACH INITIAL PURCHASER'S CERTIFICATE
----------------------------------------------
Purchaser Stated Amount of Certificate
--------- ----------------------------
Credit Suisse First Boston Mortgage Capital, LLC $50,000,000.00
Class Percentage
----------------
Credit Suisse First Boston Mortgage Capital, LLC 100%
EXHIBIT A
to Certificate Purchase Agreement
Series 1997-1, Class A
FORM OF POOLING AND SERVICING AGREEMENT
---------------------------------------
EXHIBIT B
to Certificate Purchase Agreement
Series 1997-1, Class A
FORM OF PURCHASE AND SALE AGREEMENT
-----------------------------------
EXHIBIT C
to Certificate Purchase Agreement
Series 1997-1, Class A
FORM OF RULE 144A INVESTMENT LETTER
-----------------------------------
QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A
--------------------------------------------------------
The undersigned hereby certifies as follows in connection with its
acquisition of the Series 1997-1 Class A Certificates (the "Class A
Certificates") of the _________________ trust (the "Trust") issued pursuant to a
Pooling and Servicing Agreement dated as of June __, 1997 among _____________
Corporation as Transferor, HealthCare Financial Partners, Inc., as Servicer and
___________ as Trustee (the "Pooling Agreement")(capitalized terms used herein
and not otherwise defined herein shall have such meaning as defined in the
Pooling Agreement):
1. As indicated below, the undersigned is the President, Chief Financial
Officer, Senior Vice President or other executive officer of the
Buyer. The Buyer is executing and delivering a Certificate Purchase
Agreement with this letter.
2. The Buyer understands that the offering and sale of its interests
under the Pooling Agreement and the Class A Certificate have not been
and will not be registered under the Securities Act of 1933, as
amended, and have not and will not be registered or qualified under
any applicable "blue sky" law, and that the offering and sale of the
Class A Certificates have not been reviewed by, passed on or submitted
to any federal or state agency or commission, securities exchange or
other regulatory body. The Buyer will be purchasing the Class A
Certificates for the Buyer's own account, without a view to any
distribution, resale or other transfer thereof except as contemplated
in the following sentence. The Buyer will not resell or otherwise
transfer any of the Class A Certificates except in a transaction that
complies with Section 6.3 of each of the Certificate Purchase
Agreement and the Pooling Agreement and which is a transaction exempt
from the registration requirements of the Securities Act of 1933, as
amended, and applicable state securities or "blue sky" laws.
The Buyer understands that the Class A Certificate will bear a legend
to substantially the following effect:
THIS CLASS A CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "1933 ACT"), OR ANY STATE
SECURITIES LAWS. BY ITS ACCEPTANCE HEREOF, EACH INVESTOR
REPRESENTS AND AGREES THAT IT IS ACQUIRING THIS CLASS A
CERTIFICATE FOR ITS OWN ACCOUNT (AND NOT FOR THE ACCOUNT OF
OTHERS) AND NOT WITH A VIEW TO, OR FOR SALE IN CONNECTION WITH,
THE PUBLIC DISTRIBUTION HEREOF OR THEREOF AND THAT THIS CLASS A
CERTIFICATE MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED, EXCEPT IN COMPLIANCE WITH THE REGISTRATION
PROVISIONS OF THE 1933 ACT AND ANY APPLICABLE PROVISIONS UNDER
STATE SECURITIES LAWS OR PURSUANT TO AN AVAILABLE EXEMPTION FROM
SUCH PROVISIONS. THE TRANSFER OF THIS CLASS A CERTIFICATE IS
SUBJECT TO CERTAIN CONDITIONS SET FORTH IN SECTION 6.3 OF THE
CERTIFICATE PURCHASE AGREEMENT AND SECTION 6.3 OF THE Pooling
Agreement.
THIS CLASS A CERTIFICATE MAY HAVE ORIGINAL ISSUE DISCOUNT ("OID").
CONTACT _____________________, FOR INFORMATION CONCERNING THE ISSUE
PRICE, AMOUNT OF OID, ISSUE DATE AND YIELD TO MATURITY OF THIS CLASS A
CERTIFICATE.
3. In connection with purchases by the Buyer, the Buyer is a "qualified
institutional buyer" as that term is defined in Rule 144A under the
Securities Act of 1933 ("Rule 144A") because (i) the Buyer owned
and/or invested on a discretionary basis $__________/1/ in securities
(except for the excluded securities referred to below) as of the end
of the Buyer's most recent fiscal year (such amount being calculated
in accordance with Rule 144A) and (ii) the Buyer satisfies the
criteria in the category marked below.
___ Corporation, Etc. The Buyer is a corporation (other than a bank,
-----------------
savings and loan association or similar institution),
Massachusetts or similar business trust, partnership, or
organization described in Section 501(c)(3) of the Internal
Revenue Code.
___ Bank. The Buyer (a) is a national bank or banking institution
----
organized under the laws of any United States State ("State"),
territory or the District of Columbia, the business of which is
substantially confined to banking and is supervised by the State
or territorial banking commission or similar official or is a
foreign bank or equivalent institution, and (b) has an audited
net worth of at least $25,000,000 as demonstrated in its latest
annual financial statements, a copy of which is attached hereto.
----------------------------------
___ Savings and Loan. The Buyer (a) is a savings and loan
----------------
association, building and loan association, cooperative bank,
homestead association or similar institution, which is supervised
and examined by a State or Federal authority having supervision
over any such institutions or is a foreign savings and loan
association or equivalent institution and (b) has an
audited net worth of at least $25,000,000 as demonstrated in its
latest annual financial statements.
----------------
/1/ Buyer must own and/or invest on a discretionary basis at least $100,000,000
in securities unless Buyer is a dealer, and, in that case, Buyer must
own and/or invest on a discretionary basis at least $10,000,000 in
securities.
___ Broker-Dealer. The Buyer is a dealer registered pursuant to
-------------
Section 15 of the Securities Exchange Act of 1934.
___ Insurance Company. The Buyer is an insurance company whose
-----------------
primary and predominant business activity is the writing of
insurance or the reinsuring of risks underwritten by insurance
companies and which is subject to supervision by the insurance
commissioner or a similar official or agency of a State or
territory or the District of Columbia.
___ State or Local Plan. The Buyer is a plan established and
-------------------
maintained by a State, its political subdivisions, or any agency
or instrumentality of the State or its political subdivisions,
for the benefit of its employees.
___ ERISA Plan. The Buyer is an employee benefit plan within the
----------
meaning of Title I of the Employee Retirement Income Security Act
of 1974.
___ Investment Adviser. The Buyer is an investment adviser
------------------
registered under the Investment Advisers Act of 1940.
___ SBIC. The Buyer is a Small Business Investment Company licensed
----
by the U.S. Small Business Administration under Section 301(c) or
(d) of the Small Business Investment Act of 1958.
___ Business Development Company. The Buyer is a business
----------------------------
development company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940.
___ Trust Fund. The Buyer is a trust fund whose trustee is a bank or
----------
trust company and whose participants are exclusively (a) plans
established and maintained by a State, its political
subdivisions, or any agency or instrumentality of the State or
its political subdivisions, for the benefit of its employees, or
(b) employee benefit plans within the meaning of Title I of the
Employee Retirement Income Security Act of 1974, but is not a
trust fund that includes as participants individual retirement
accounts or H.R. 10 plans.
___ Investment Company. The Buyer is an investment company
------------------
registered under the Investment Company Act of 1940, and (ii) as
marked below, the Buyer alone, or the Buyer's Family of
Investment Companies, owned at least $100,000,000 in securities
(other than the excluded securities referred to below) as of the
end of the Buyer's most recent fiscal year. For purposes of
determining the amount of securities owned by the Buyer or the
Buyer's Family of Investment Companies, the cost of such
securities was used.
____ The Buyer owned $__________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
____ The Buyer is part of a Family of Investment Companies which owned
in the aggregate $__________ in securities (other than the
excluded securities referred to below) as of the end of the
Buyer's most recent fiscal year (such amount being calculated in
accordance with Rule 144A).
The term "Family of Investment Companies" as used herein means
------------------------------
two or more registered investment companies (or series thereof) that
have the same investment adviser or investment advisers that are
affiliated (by virtue of being majority owned subsidiaries of the same
parent or because one investment adviser is a majority owned
subsidiary of the other).
4. The term "securities" as used herein does not include (i) securities
---------- ----------------
of issuers that are affiliated with the Buyer, (ii) securities that
are part of an unsold allotment to or subscription by the Buyer, if
the Buyer is a dealer, (iii) bank deposit notes and certificates of
deposit, (iv) loan participations, (v) repurchase agreements, (vi)
securities owned but subject to a repurchase agreement and (vii)
currency, interest rate and commodity swaps.
5. For purposes of determining the aggregate amount of securities owned
and/or invested on a discretionary basis by the Buyer, the Buyer used
the cost of such securities to the Buyer and did not include any of
the securities referred to in the preceding paragraph. Further, in
determining such aggregate amount, the Buyer may have included
securities owned by subsidiaries of the Buyer, but only if such
subsidiaries are consolidated with the Buyer in its financial
statements prepared in accordance with generally accepted accounting
principles and if the investments of such subsidiaries are managed
under the Buyer's direction. However, such securities were not
included if the Buyer is a majority-owned, consolidated subsidiary of
another enterprise and the Buyer is not itself a reporting company
under the Securities Exchange Act of 1934.
6. The Buyer acknowledges that it is familiar with Rule 144A and
understands that the seller to it and other parties related to the
Class A Certificates are relying and will continue to rely on the
statements made herein because one or more sales to the Buyer may be
in reliance on Rule 144A.
7. The Buyer makes the representation contained in the following
sentence, and agrees that the Class A Certificate may be transferred
to a Person only if the transfer and holding of such Class A
Certificates would be exempt from the prohibited transaction sanctions
of ERISA (as defined below) and the Code (as defined below). To that
end, at least one of the following statements is an accurate
representation as to each source
of funds (a "Source") to be used by the Buyer to make its investment
under the Pooling Agreement and to purchase its Class A Certificate:
(i) if the Buyer is an insurance company, the Source is any of
(1) funds held by the Buyer in its general account which the Buyer
reasonably believes do not constitute "plan assets" of an employee
benefit plan subject to the fiduciary responsibility provisions of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"),
or Section 4975 of the Internal Revenue Code of 1986, as amended (the
"Code"), or of a governmental plan as defined in Section 3(32) of
ERISA subject to any federal, state or local law which is to a
material extent similar to the foregoing provisions of ERISA or the
Code, or (2) funds held by the Buyer in its general account with
respect to which the Buyer reasonably believes the requirements of
Section I of Prohibited Transaction Class Exemption 95-60, 60 Fed.
Reg. 3592 (1995), will be satisfied at all times with respect to the
Buyer's investment under the Pooling Agreement and purchase of its
Class A Certificate, or (3) an insurance company pooled separate
account described in Prohibited Transaction Exemption ("PTE") 90-1 and
no employee benefit plan or plans maintained by the same employer or
employee organization beneficially owns or will own more than 10% of
all assets allocated to such pooled separate account; or
(ii) the Source is a bank collective investment fund (as defined
in Section IV of PTE 91-38) and no employee benefit plan or plans
maintained by the same employer or employee organization beneficially
owns or will own more than 10% of all assets allocated to such
collective investment fund; or
(iii) the Source is a governmental plan that is covered neither
by ERISA nor Section 4975 of the Code and neither the purchase of, nor
the subsequent holding of, the Class A Certificate will result in,
arise from, constitute or involve a transaction that is prohibited
under applicable state or local law; or
(iv) the Source does not include assets of any employee benefit
plan that is subject to Title I of ERISA.
8. The Buyer will notify each of the parties to which this certification
is made of any changes in the information and conclusions herein.
Until such notice is given, the Buyer's purchase of the Class A
Certificates will constitute a reaffirmation of this certification as
of the date of such purchase.
9. The Buyer has provided with this certification a completed IRS Form W-
8 or W-9. The undersigned agrees to notify the Trustee at least
thirty (30) days prior to the date that the form relied upon becomes
obsolete and agrees to submit a new certificate as to its status prior
to the obsolescence of the old form. The undersigned understands that
this certificate and the aforementioned IRS Forms may be disclosed to
the Internal Revenue Service by the Trustee or the Servicer and any
false statement contained therein could be punishable by fines,
imprisonment or both.
10. Under penalties of perjury, I declare that I have examined this
certificate and to the best of my knowledge and belief it is true,
correct and complete and will further declare that I will inform the
Trustee of any change in the information provided above, and, if
applicable, I further declare that I have the authority/*/ to sign
this document.
_____________________________________
Print Name of Buyer
By: _____________________________________
Name: _________________________
Title: _________________________
Date: _________________________