YAMAHA MOTOR MASTER TRUST
YAMAHA MOTOR CORPORATION, U.S.A.
(Servicer)
YAMAHA MOTOR RECEIVABLES CORPORATION
(Transferor)
UNDERWRITING AGREEMENT
May __, 1999
Chase Securities Inc., as Underwriter
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Yamaha Motor Receivables Corporation, a Delaware corporation
(the "Transferor"), proposes to cause the Yamaha Motor Master Trust (the
"Trust") to issue $____________ aggregate principal amount of Floating Rate
Series 1999-1, Class A Asset-Backed Certificates (the "Class A Certificates")
and $____________ aggregate principal amount of Floating Rate Series 1999-1,
Class B Asset-Backed Certificates (the "Class B Certificates" and, together with
the Class A Certificates, the "Certificates"). The Trust was formed and the
Certificates will be issued pursuant to an Amended and Restated Master Pooling
and Servicing Agreement, dated as of May 1, 1999, by and among the Transferor,
Yamaha Motor Corporation, U.S.A. ("Yamaha"), as servicer (in such capacity, the
"Servicer"), and The Fuji Bank and Trust Company, as trustee (in such capacity,
the "Trustee") (as amended, supplemented or otherwise modified and in effect
from time to time, and as supplemented by the Series 1999-1 Supplement, dated
as of May 1, 1999, among the Transferor, the Servicer and the Trustee (the
"Supplement"), the "Pooling and Servicing Agreement"). The Transferor also
proposes to cause the Trust to issue $________ aggregate principal amount of
Floating Rate Series 1999-1, Class C Asset-
Backed Certificates (the "Class C Certificates"). The Certificates are to be
sold in a public offering by the Trust through Chase Securities Inc., as sole
underwriter (the "Underwriter"), and the Class C Certificates will be initially
retained by the Transferor. Each Certificate will represent a specified
percentage undivided interest in the Trust. The assets of the Trust include,
among other things, wholesale receivables (collectively, the "Receivables") sold
to the Transferor by Yamaha pursuant to that certain Receivables Purchase
Agreement, dated as of March 1, 1994, as amended by the First Amendment to
Receivables Purchase Agreement dated as of May 1, 1999 (as further amended,
supplemented or otherwise modified and in effect from time to time, the
"Receivables Purchase Agreement"), between Yamaha, as seller, and the
Transferor, as purchaser, generated from time to time in a portfolio of
wholesale floorplan financing arrangements and other inventory financing
accounts with dealers in products manufactured by Yamaha Motor Company, Ltd.,
Yamaha Motor Manufacturing Corporation of America and Tennessee Watercraft, Inc.
and distributed in the United States by Yamaha (collectively, the "Products"),
all monies due or to become due under the Receivables, any security interest in
the Products related to the Receivables, all recoveries on charged-off
Receivables, all of the Transferor's right, title and interest in, to and under
the Receivables Purchase Agreement, certain other property and all proceeds of
any of the foregoing. Unless otherwise stated herein, each capitalized term used
or defined herein shall have the meaning assigned to such term in the Pooling
and Servicing Agreement and shall relate only to the Certificates and no other
Series of Asset-Backed Certificates issued by the Trust.
Each of the Transferor and Yamaha agree with the Underwriter
as follows:
Section 1. Registration Statement. Each of the Transferor
and Yamaha represents and warrants to the Underwriter that:
(a) The Transferor has prepared and filed with
the Securities and Exchange Commission (the "Commission") in accordance with the
provisions of the Securities Act of 1933, as amended (the "Securities Act"), and
the rules and regulations of the Commission thereunder (the "Rules and
Regulations"), a registration statement on Form S-1 (registration number
33-74069) including a form of prospectus, relating to the Certificates. The
conditions to the use of a registration statement on Form S-1 under the
Securities Act, as set forth in the General Instruc-
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tions to Form S-1, have been satisfied in all material respects with respect to
the Transferor and the Registration Statement (as hereinafter defined).
(b) The Transferor will next file with the
Commission either, (A) prior to the effectiveness of such Registration
Statement, a further amendment thereto (including the form of final prospectus)
or (B) after effectiveness of such Registration Statement, a final prospectus in
accordance with Rules 430A and 424(b) (each as hereinafter defined). In the case
of clause (B), the Transferor has included in such Registration Statement, as
amended at the Effective Date (as hereinafter defined), all information (other
than Rule 430A Information (as hereinafter defined)) required by the Securities
Act and the Rules and Regulations to be included in the prospectus with respect
to the Certificates and the offering thereof. As filed, such amendment and form
of final prospectus, or such final prospectus, shall include all Rule 430A
Information (defined below) and, except to the extent the Underwriter shall
agree in writing to a modification, shall be in all substantive respects in the
form furnished to the Underwriter prior to the Execution Time (defined below)
or, to the extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that contained in the
latest Preliminary Prospectus (defined below) which has previously been
furnished to the Underwriter) as the Transferor has advised the Underwriter,
prior to the Execution Time, will be included or made therein.
The terms that follow, when used in this Agreement, shall have
the meanings indicated. The term "Effective Date" shall mean each date that the
Registration Statement and any post-effective amendment or amendments thereto
became or become effective under the Securities Act. "Execution Time" shall mean
the date and time that this Agreement is executed and delivered by the parties
hereto. "Preliminary Prospectus" shall mean any preliminary prospectus referred
to in the preceding paragraph and any preliminary prospectus included in the
Registration Statement which, as of the Effective Date, omits Rule 430A
Information. "Prospectus" shall mean the prospectus relating to the
Certificates that is first filed with the Commission pursuant to Rule 424(b) and
any prospectus subsequently filed pursuant to Rule 424, or if no filing pursuant
to Rule 424(b) is required, shall mean the form of final prospectus included in
the Registration Statement at the Effective Date. "Registration Statement" shall
mean the registration statement referred to in the preceding paragraph and any
registration statement required to be filed under the Securities Act or the
Rules and Regulations, including incorporated documents, exhibits and financial
statements, in the form in which it has, or shall, become
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effective and, in the event that any post effective amendment thereto becomes
effective prior to the Closing Date (as hereinafter defined), shall also mean
such registration statement as so amended. Such term shall include Rule 430A
Information deemed to be included therein at the Effective Date as provided by
Rule 430A. "Rule 424" and "Rule 430A" refer to such Rules and Regulations under
the Securities Act. "Rule 430A Information" means information with respect to
the Certificates and the offering thereof permitted to be omitted from the
Registration State ment when it becomes effective pursuant to Rule 430A.
(c) On the Effective Date, the Registration
Statement did, or will, conform in all material respects to the requirements of
the Securities Act and the Rules and Regulations; on the Effective Date and when
the Prospectus is first filed (if required) in accordance with Rule 424(b) and
on the Closing Date, the Prospectus (and any supplements thereto) will comply in
all material respects with the applicable requirements of the Securities Act and
the Rules and Regulations; on the Effective Date, the Registration Statement did
not, or will not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; and, on the Effective Date, the Prospectus,
if not filed pursuant to Rule 424(b), did not, or will not, and on the date of
any filing pursuant to Rule 424(b) and on the Closing Date, the Prospectus
(together with any supplement thereto) will not, include any untrue statement of
a material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were made
not misleading; provided, however, that this representation and warranty shall
not apply to any statement or omission made in reliance upon and in conformity
with information furnished in writing to the Transferor by the Underwriter
expressly for use in the Registration Statement. As of the Closing Date, the
representations and warranties of the Transferor and the Servicer in the Pooling
and Servicing Agreement will be true and correct in all material respects.
Section 2. Sale and Delivery of the Securities; Defaults by
Under writer. (a) On the basis of the representations, warranties, agreements
and covenants herein contained and subject to the terms and conditions herein
set forth, the Transferor agrees to issue and sell the Certificates to the
Underwriter, and the Underwriter agrees to purchase from the Transferor the
Certificates. The Class A Certificates are to be purchased by the Underwriter at
the purchase price of _______% of the aggregate principal amount of the Class A
Certificates, and the Class B Certificates are to be purchased are to be
purchased by the Underwriter at the
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purchase price of __% of the aggregate principal amount of the Class B
Certificates.
(b) Payment for the Certificates shall be made
against delivery to the Underwriter of the Certificates registered in the name
of Cede & Co., as the nominee of The Depository Trust Company. The Certificates
will be made available for inspection by the Underwriter at the offices of
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, New York, New York, not later than
1:00 P.M., New York City time, on the Business Day prior to the Closing Date.
Payment for the Certificates by the Underwriter to the Transferor of the
purchase price therefor by immediately available funds shall be made at the
offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP in New York, New York at
10:00 A.M., New York City time, on June __, 1999, or at such other time and
place, not later than the third full Business Day thereafter, as the Underwriter
and the Transferor may determine, such time of delivery against payment being
herein referred to as the "Closing Date." Time shall be of the essence, and
delivery at the time and place specified pursuant to this Agreement is a further
condition to the obligations of the Underwriter hereunder. "Business Day", as
used herein, shall mean any day on which commercial banks in The City of New
York are normally open for business.
Section 3. Offering by the Underwriter. As soon as is
practicable after the Registration has been declared effective, the Underwriter
shall offer the Certificates for sale to the public upon the terms set forth in
the Prospectus.
Section 4. Conditions to the Obligation of the Underwriter.
The obligation of the Underwriter to purchase and pay for the Certificates shall
be subject, in its discretion, to the accuracy of the representations and
warranties of the Transferor and Yamaha herein as of the date hereof and as of
the Closing Date as if made on and as of the Closing Date, to the accuracy of
the statements of the Transferor's and Yamaha's officers made pursuant to the
provisions hereof, to the performance by each of the Transferor and Yamaha of
its obligations hereunder and to the following additional conditions:
(a) The Registration Statement shall have become
effective not later than 12:00 noon (New York City time) on the second Business
Day following the date hereof or such later date or time as shall have been
consented to by the Underwriter; and, as of the Closing Date, no stop order
suspending the effectiveness of the Registration Statement or any part thereof
shall have been
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initiated or overtly threatened by the Commission; and all requests of the
Commission for additional information (to be included in the Registration
Statement or Prospectus or otherwise) shall have been complied with; and the
Transferor shall not have filed with the Commission the Prospectus or any
amendment or supplement to the Registration Statement or Prospectus without the
consent of the Underwriter. If the Transferor has elected to rely upon Rule
430A, a Prospectus containing Rule 430A Information shall have been filed with
the Commission in accordance with Rule 424(b) (or a post-effective amendment
providing such information shall have been filed and declared effective in
accordance with the requirements of Rule 430A).
(b) The Underwriter shall have received an opinion,
dated the Closing Date, of counsel for the Transferor, in form and substance
satisfactory to the Underwriter substantially to the effect set forth in Exhibit
A hereto, and the Transferor shall have furnished to such counsel such
documents as it may reasonably request for the purpose of enabling it to pass
upon such matters.
(c) The Underwriter shall have received an opinions
of counsel for the Servicer, dated the Closing Date, in form and substance
satisfactory to the Underwriter, substantially to the effect set forth in
Exhibit B hereto, and the Servicer shall have furnished to such counsel such
documents as it may reasonably request for the purpose of enabling them to pass
upon such matters.
(d) The Underwriter shall have received an opinion
of counsel to Deutsche Financial Services Corporation, dated the Closing Date,
in form and substance satisfactory to the Underwriter.
(e) The Underwriter shall have received an opinion
or opinions of Giancarlo & Xxxxxx, A Professional Corporation, special counsel
for the Transferor, dated the Closing Date, in form and substance satisfactory
to the Underwriter, with respect to certain matters relating to the transfer of
the Receivables to the Trust, with respect to the perfection of the Trust's
interest in the Receivables and certain other matters in a form previously
approved by the Underwriter. In addition, the Underwriter shall have received a
reliance letter with respect to any opinion that the Transferor is required to
deliver to the Rating Agencies.
(f) The Underwriter shall have received an opinion
of Giancarlo & Xxxxxx, A Professional Corporation, special counsel for Yamaha,
dated the Closing Date, in form and substance satisfactory to the Underwriter
and its coun-
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sel, with respect to certain matters relating to the sale of the Receivables by
Deutsche Financial Services Corporation to Yamaha and from Yamaha to the
Transferor and the non-consolidation of the Transferor with Yamaha.
(g) The Underwriter shall have received an opinion
from Giancarlo & Xxxxxx, A Professional Corporation, special tax counsel to the
Trans feror, with respect to the Federal and California income tax
treatment of the Certificates in form and substance satisfactory to the
Underwriter.
(h) The Underwriter shall have received a
certificate, dated the Closing Date, of an officer of each of the Transferor and
Yamaha in which such officer, to the best of his or her knowledge after
reasonable investigation, shall state that the representations and warranties of
the Transferor and Yamaha, as applicable, in this Agreement are true and correct
in all material respects on and as of the Closing Date, that each of the
Transferor and Yamaha, as applicable, has complied with all agreements and
satisfied all conditions on its part to be performed or satisfied hereunder at
or prior to the Closing Date, that the respective representations and warranties
of the Transferor and the Servicer in the Supplement and in the Pooling and
Servicing Agreement are true and correct as of the dates specified in the
Supplement, that the Registration Statement has become effective, that no stop
order suspending the effectiveness of the Registration Statement has been issued
and no proceedings for that purpose have been instituted or are threatened by
the Commission and that the information contained in the Prospectus relating to
the Transferor and the Receivables is true and accurate in all material respects
and nothing has come to his or her attention that would lead such officer to
believe that the Registration Statement or the Prospectus includes any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements therein not misleading.
(i) The Underwriter shall have received an opinion
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to the Underwriter, in form
and substance satisfactory to the Underwriter as to such matters as the
Underwriter shall reasonably request.
(j) The Underwriter shall have received an opinion
of Kramer, Levin, Naftalis & Xxxxxxx, special counsel to the Trustee, dated the
Closing Date, in form and substance satisfactory to the Underwriter and its
counsel, to the effect set forth in Exhibit C hereto.
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(k) To the extent, if any, that the ratings provided
with respect to the Certificates by the rating agencies rating the Certificates
(collectively, the "Rating Agencies") is conditional upon the furnishing of
documents or the taking of any other action by the Transferor agreed upon on or
prior to the Closing Date, the Transferor shall furnish such documents and take
any such other action.
(l) On or prior to the Closing Date, the Transferor
shall have furnished to the Underwriter a letter, dated the date of delivery
thereof, of PriceWaterhouse-Coopers LLP, confirming that they are independent
public accountants within the meaning of the Securities Act and the applicable
Rules and Regulations thereunder and addressing such matters requested by the
Underwriter and otherwise in form and in substance satisfactory to the
Underwriter and its counsel.
(m) The Underwriter shall have received written
confirmation that the Class A Certificates shall be rated "AAA" by Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies, Inc.
("Standard & Poor's") and "Aaa" by Xxxxx'x Investors Service, Inc. ("Moody's")
and that the Class B Certificates shall be rated "A" by Standard & Poor's and
"A3" by Moody's.
All such opinions, certificates, letters and documents
delivered pursuant to this Agreement will comply with the provisions hereof only
if they are reasonably satisfactory in all material respects to the Underwriter.
Section 5. Representations and Warranties of the Transferor
and Yamaha. (a) The Transferor represents and warrants to, and agrees with the
Underwriter that:
(i) The Transferor meets the requirements for use of
Form S-1 and has filed with the Commission under the Securities Act in
conformity in all material respects with the Securities Act and the Rules and
Regulations a registration statement as described in Section 1 of this
Agreement.
(ii) The Registration Statement and the Prospectus
will comply as to form, in all material respects as of their respective
effective or issue dates, with the requirements of the Securities Act and the
Rules and Regulations. The exhibits to the Registration Statement and documents
incorporated by reference in the Prospectus, in each case when filed with the
Commission, conformed in all
8
material respects to the requirements of the Securities Act and the Rules and
Regulations.
(iii) Each Preliminary Prospectus, at the time of
filing thereof, complied with the requirements of the Securities Act and the
Rules and Regulations and did not include any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein in the light of the
circumstances under which they were made, not misleading; provided that this
representation and warranty shall not apply to any statement or omission made in
reliance upon and in conformity with information furnished in writing to the
Transferor by the Underwriter expressly for use therein. At all times subsequent
hereto, up to and including the Closing Date, (A) the Registration Statement and
the Prospectus and any amendments or supplements thereto will contain all
statements which are required to be stated therein in accordance with the
Securities Act and the Rules and Regulations and will comply in all material
respects with the requirements of the Securities Act and the Rules and
Regulations; and (B) neither the Registration Statement nor the Prospectus nor
any amendment or supplement thereto will include any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading; provided that this
representation and warranty shall not apply to any statement or omission made in
reliance upon and in conformity with information furnished in writing to the
Transferor by the Underwriter expressly for use therein. The statements in the
Prospectus under the heading "Description of the Offered Certificates," insofar
as such statements purport to summarize certain provisions of the applicable
Series of Certificates and the Pooling and Servicing Agreement, provide an
accurate summary of such provisions in all material respects.
(iv) The Transferor has been duly incorporated and
is validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with full power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus, and is duly qualified to transact business as a foreign corporation
in good standing under the laws of each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires such
qualification. The Transferor is not in violation of its corporate charter or
bylaws or in default under any agreement, lease, indenture, note or instrument.
9
(v) The Transferor has full corporate power to enter
into this Agreement, the Supplement, the Pooling and Servicing Agreement and the
Receiv xxxxx Purchase Agreement and to issue, sell and deliver the Certificates
to be sold by it to the Underwriter as provided herein. The execution, delivery
and performance of this Agreement, the Supplement, the Pooling and Servicing
Agreement and the Receivables Purchase Agreement by the Transferor, and the
issuance, sale and delivery of the Certificates by the Transferor, and the
consummation by the Transferor of the transactions contemplated hereby and
thereby, will not conflict with or result in a breach or violation by the
Transferor of any of the terms or provisions of, constitute a default by the
Transferor under, or result in the creation or imposition of any lien, charge,
security interest or encumbrance upon any of the assets of the Transferor
pursuant to the terms of, any (A) indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which the Transferor is a
party or to which it or any of its properties is subject, (B) the charter or
bylaws of the Transferor or (C) any statute, judgment, decree, order, rule or
regulation of any court or governmental agency or body applicable to the
Transferor or any of its properties.
(vi) The Certificates are in due and proper form,
have been duly authorized and, when issued and delivered pursuant to the Pooling
and Servicing Agreement, duly authenticated by the Trustee and paid for by the
Underwriter in accordance with the terms of this Agreement, will be duly and
validly executed, authenticated, issued and delivered and entitled to the
benefits provided to the Certificates by the Pooling and Servicing Agreement,
and the Certificates, the Pooling and Servicing Agreement, the Receivables Sale
Agreement and the Receivables Purchase Agreement conform to the descriptions
thereof in the Prospectus in all material respects.
(vii) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or
body is required for the execution, delivery or performance of this Agreement,
the Supplement, the Pooling and Servicing Agreement, the Receivables Purchase
Agreement and the Certificates by the Transferor, or the consummation by the
Transferor of the transactions contemplated hereby and thereby, except such as
have been obtained under the Securities Act and state securities or blue sky
laws in connection with the purchase and distribution of the Certificates by the
Underwriter.
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(viii) The execution and delivery of the Supplement
has been duly authorized by all necessary corporate action of the Transferor. At
the Closing Date, the Supplement and the Pooling and Servicing Agreement will be
a legal, valid and binding agreement of the Transferor, enforceable against the
Transferor in accordance with its terms, subject to applicable bankruptcy,
insolvency and similar laws affecting creditors' rights generally, and subject,
as to enforceability, to general principles of equity. The execution and
delivery of this Agreement have been duly authorized by all necessary corporate
action, and this Agreement has been duly executed and delivered by the
Transferor.
(ix) Except as described or referred to in the
Prospectus, there is not pending, or to the knowledge of the Transferor
threatened, any action, suit, proceeding, inquiry or investigation, to which the
Transferor is a party, or to which the property of the Transferor is subject,
before or brought by any court or governmental agency or body, which, if
determined adversely to the Transferor, would result in any material adverse
change in the business, financial position, net worth, results of operations or
prospects, or materially adversely affect the properties or assets of the
Transferor.
(x) Except as described in or contemplated by the
Prospectus, subsequent to April 1, 1999, (A) the Transferor has not sustained a
material loss or interference with its business or properties from fire, flood,
hurricane, accident, riot, civil unrest, or other calamity or act of God,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree; and (B) there has not been any change in
the capital stock of the Transferor, or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
business, management, condition (financial or otherwise), net worth, results of
operations or prospects of the Transferor.
(xi) The Transferor has or will have, on the Closing
Date, good title to the Receivables, as described in the Prospectus, free and
clear of all liens, encumbrances, claims, security interests or restrictions,
except any interest of the Trustee on behalf of the Trust.
(xii) On or before the Closing Date, the Transferor
shall have caused Yamaha's computer records relating to the Receivables
contained in any Accounts to be marked to show the Transferor's absolute
ownership of the Receivables, and the Transferor's transfer of such Receivables
to the Trust and, prior
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to and after the Closing Date, neither the Transferor nor the Servicer has taken
or shall take any action inconsistent with the Trust's interest in such
Receivables, other than as permitted by the Pooling and Servicing Agreement.
(xiii) The Transferor has full power and authority
to sell and assign the property sold or to be sold and assigned to and deposited
with the Trustee as part of the Trust and has duly authorized such sale and
assignment to the Trustee by all necessary corporate action.
(xiv) Immediately prior to the transfer of the
Receivables to the Trustee, the Transferor's interest in the Receivables, the
security interests in the Products securing the Receivables and the proceeds of
each of the foregoing was perfected upon the filing of the financing statement
on Form UCC-1 with the Secretary of State of the State of California and
constituted a perfected first priority interest therein. The Pooling and
Servicing Agreement constitutes a grant by the Transferor to the Trustee of a
valid security interest in the Receivables, the security interests in the
Products securing the Receivables and the proceeds of each of the foregoing,
which security interest is perfected upon the filing of the UCC-1 financ ing
statement with the Secretary of State of the State of California and will
constitute a first priority perfected security interest therein. No filing or
other action, other than the filing of the UCC-1 financing statements with the
Secretary of State of the State of California referred to above, is necessary to
perfect and maintain the security interest of the Trustee in the Receivables,
the security interests in the Products securing the Receivables and the
proceeds of each of the foregoing against third parties.
(xv) The Receivables are "chattel paper",
"accounts" or "general intangibles" under the Uniform Commercial Code as in
effect in the States of New York and California.
(xvi) All filings necessary under applicable law to
perfect the sale of the Receivables by DFS to Yamaha pursuant to the Receivables
Sale Agreement and the sale of the Receivables by Yamaha to the Transferor
pursuant to the Receivables Purchase Agreement, as well as the transfer of the
Receivables by the Transferor to the Trustee pursuant to the Pooling and
Servicing Agreement, have been made and, provided that neither DFS, Yamaha nor
the Transferor relocates its principal place of business in a state other than
California and that DFS and Yamaha maintain the list of Receivables for
inspection by interested parties as described
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above, no other filings (other than the filing of continuation statements) need
be made to maintain the perfection of the sale of the Receivables to Yamaha
pursuant to the Receivables Sale Agreement, the sale of the Receivables to the
Transferor pursuant to the Receivables Purchase Agreement, or the transfer of
the Receivables to the Trustee pursuant to the Pooling and Servicing Agreement.
The Transferor agrees to provide the Underwriter with copies of all filings
referenced in this subsection no later than five (5) days prior to the Closing
Date.
(xvii) The Transferor possesses all material
licenses, certificates, authorities or permits issued by the appropriate state,
Federal or foreign regulatory agencies or bodies necessary to conduct the
business now conducted by it and as described in the Prospectus, and the
Transferor has not received notice of any proceedings relating to the revocation
or modification of any such license, certificate, authority or permit which if
decided adversely to the Transferor, would, singly or in the aggregate,
materially and adversely affect the conduct of its business, operations or
financial condition.
(xviii) As of the Cut-Off Date, each of the
Receivables conforms to the descriptions thereof contained in the Prospectus.
(xix) The Pooling and Servicing Agreement is not
required to be qualified under the Trust Indenture Act of 1939, as amended, and
neither the Transferor nor the Trust is and, after giving effect to the issuance
and sale of the Certificates and the application of the proceeds thereof as
described in the Prospectus, will be required to be registered as an "investment
company" as defined in the Investment Company Act of 1940, as amended.
(xx) At the Closing Date, the Certificates and the
Pooling and Servicing Agreement will conform in all material respects to the
descriptions thereof contained in the Prospectus.
(xxi) Any taxes, fees and other governmental
charges in connection with the execution, delivery and performance of this
Agreement, the Pooling and Servicing Agreement, the Supplement and the
Certificates and any other agreements contemplated herein or therein have been
paid or will be paid by the Transferor at or prior to the Closing Date to the
extent then due.
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(b) Yamaha represents and warrants to, and agrees with the
Underwriter that:
(i) Yamaha has been duly incorporated and is
validly existing as a corporation in good standing under the laws of its
jurisdiction of incorporation, with full power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus, and is duly qualified to transact business as a foreign corporation
in good standing under the laws of each jurisdiction where the ownership or
leasing of its properties or the conduct of its business requires such
qualification. Yamaha is not in violation of its corporate charter or bylaws or
in default under any agreement, lease, indenture, note or instrument.
(ii) Yamaha has full corporate power to enter into
this Agreement, the Receivables Purchase Agreement, the Receivables Sale
Agreement and the Supplement. The execution, delivery and performance of this
Agreement, the Supplement, the Pooling and Servicing Agreement, the Receivables
Sale Agreement and the Receivables Purchase Agreement by Yamaha, and the consum-
mation by Yamaha of the transactions contemplated hereby and thereby, will not
conflict with or result in a breach or violation by Yamaha of any of the terms
or provisions of, constitute a default by Yamaha under, or result in the
creation or imposition of any lien, charge, security interest or encumbrance
upon any of the assets of Yamaha pursuant to the terms of, any (A) indenture,
mortgage, deed of trust, loan agreement, lease or other agreement or instrument
to which Yamaha is a party or to which it or any of its properties is subject,
(B) the charter or bylaws of Yamaha or (C) any statute, judgment, decree, order,
rule or regulation of any court or governmental agency or body applicable to
Yamaha or any of its properties.
(iii) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or
body is required for the execution, delivery or performance of this Agreement,
the Supplement, the Pooling and Servicing Agreement, the Receivables Sale
Agreement and the Receivables Purchase Agreement by Yamaha, or the consummation
by Yamaha of the transac tions contemplated hereby and thereby, except such as
have been obtained.
(iv) The execution and delivery of this Agreement,
the Supplement, the Pooling and Servicing Agreement, the Receivables Purchase
Agreement and the Receivables Sale Agreement has been duly authorized by all
necessary corporate action of Yamaha. At the Closing Date, the Supplement, the
14
Pooling and Servicing Agreement, the Receivables Purchase Agreement and the
Receivables Sale Agreement will be a legal, valid and binding agreement of
Yamaha, enforceable against Yamaha in accordance with its terms, subject to
applicable bankruptcy, insolvency and similar laws affecting creditors' rights
generally, and subject, as to enforceability, to general principles of equity.
This Agreement has been duly executed and delivered by Yamaha.
(v) Except as described or referred to in the
Prospectus, there is not pending, or to the knowledge of Yamaha threatened, any
action, suit, proceeding, inquiry or investigation, to which Yamaha is a party,
or to which the property of Yamaha is subject, before or brought by any court or
governmental agency or body, which, if determined adversely to Yamaha would
result in any material adverse change in the business, financial position, net
worth, results of operations or prospects, or materially adversely affect the
properties or assets of Yamaha.
(vi) Except as described in or contemplated by the
Prospectus, subsequent to April 1, 1999, (A) Yamaha has not sustained a
material loss or interference with its business or properties from fire, flood,
hurricane, accident, riot, civil unrest, or other calamity or act of God,
whether or not covered by insurance, or from any labor dispute or court or
governmental action, order or decree; and (B) there has not been any change in
the capital stock of Yamaha, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the business,
management, condition (financial or otherwise), net worth, results of operations
or prospects of Yamaha.
(vii) Yamaha possesses all material licenses,
certificates, authorities or permits issued by the appropriate state, Federal or
foreign regulatory agencies or bodies necessary to conduct the business now
conducted by it and as described in the Prospectus, and Yamaha has not received
notice of any proceedings relating to the revocation or modification of any such
license, certificate, authority or permit which, if decided adversely to Yamaha,
would, singly or in the aggregate, materially and adversely affect the conduct
of its business, operations or financial condition.
Section 6. Covenants of the Transferor. The Transferor
covenants and agrees with the Underwriter that:
15
(a) The Transferor will, if required, file the
Prospectus with the Commission pursuant to and in accordance with Rule 424(b)
not later than the time specified therein. The Transferor will promptly advise
the Underwriter of any such filing. The Transferor will not file any amendment
to the Registration State ment or any supplement to the Prospectus unless the
Underwriter shall previously have been advised and furnished with a copy a
reasonable time prior to the proposed filing and the Underwriter shall not have
reasonably objected to the proposed filing. During the time when a Prospectus is
required to be delivered under the Securities Act, the Transferor will comply so
far as it is able with all requirements imposed upon it by the Securities Act
and the Rules and Regulations to the extent necessary to permit the continuance
of sales of or dealings in the Certificates in accordance with the provisions
hereof and of the Prospectus, and the Transferor will prepare and file with the
Commission any amendments to the Registration Statement or supple ments to the
Prospectus which may be necessary or advisable in connection with the
distribution of the Certificates by the Underwriter, and will use its best
efforts to cause the same to become effective as promptly as possible. The
Transferor will advise the Underwriter, promptly after it receives notice
thereof, of the time when any amendment to the Registration Statement has been
filed or become effective or any supplement to the Prospectus or any amended
Prospectus has been filed.
(b) The Transferor will advise the Underwriter,
promptly after it receives notice or obtains knowledge thereof, of (i) the
issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or any order directed to the use of any Preliminary
Prospectus or the Prospectus, (ii) the suspension of the qualification of the
Certificates for offering or sale in any jurisdiction, (iii) the institution or
threatening of any proceeding for any such purpose or (iv) any request made by
the Commission for the amending or supplementing of the Registration Statement
or the Prospectus or for additional information; and the Transferor will use its
best efforts to prevent the issuance of any such order and in each case, if any
such order is issued, to obtain the lifting thereof as promptly as possible.
(c) The Transferor will arrange for the
qualification of the Certificates for offering and sale under the securities or
blue sky laws of such jurisdictions as the Underwriter may designate and will
continue such qualifications in effect for as long as may be necessary to
complete the distribution of the Certificates; provided, however, that in
connection therewith, the Transferor shall not be
16
required to qualify as a foreign corporation or to execute a general consent to
service of process in any jurisdiction.
(d) If, at any time after the Effective Date, a
prospectus relating to the Certificates is required to be delivered under the
Securities Act, any event occurs as a result of which the Prospectus as then
amended or supplemented would include any untrue statement of a material fact,
or omit to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made when such Prospectus
is delivered, not misleading, or if it is necessary during such period to amend
or supplement the Prospectus to comply with the Securities Act and the Rules and
Regulations, the Transferor will promptly notify the Underwriter thereof and
will prepare and file with the Commission, at its own expense, an amendment or
supplement which will correct such statement or omission or an amendment which
will effect such compliance; and, in the event the Underwriter is required to
deliver a prospectus in connection with sales of any of the Certificates after
the Effective Date, the Transferor will prepare and file with the Commission any
amendments to the Registration Statement or supplements to the Prospectus which
may be necessary or advisable in connection with the distribution of the
Certificates by the Underwriter, and will use its best efforts to cause the same
to become effective as promptly as possible. The Transferor will advise the
Underwriter, promptly after it receives notice thereof, of the time when any
amendment to the Registration Statement has been filed or become effective or
any supplement to the Prospectus or any amended Prospectus has been filed.
(e) The Transferor will furnish to the Underwriter
copies of the Registration Statement (one of which will be manually signed and
will be accompanied by all exhibits), each Preliminary Prospectus, the
Prospectus, and all amendments and supplements thereto, in each case as soon as
available and in such quantities as the Underwriter may reasonably request.
(f) The Transferor will apply the net proceeds from
the sale of the Certificates to be sold by it hereunder as set forth under "Use
of Proceeds" in the Prospectus. At no time will the Transferor apply the
proceeds from the sale of the Certificates in a manner which would violate, or
result in a violation of, Regulation T, U or X of the Board of Governors of the
Federal Reserve System.
(g) The Transferor will make generally available to
its security holders as soon as practicable, but in any event not later than
eighteen (18)
17
months after the effective date of the Registration Statement, an earning
statement of the Transferor (which need not be audited) complying with Section
11(a) of the Securities Act and the Rules and Regulations.
(h) For a period from the date of this Agreement
until the payment in full of the Certificates, the Transferor will cause the
Servicer to furnish to the Underwriter copies of each certificate and the annual
statements of compliance delivered to the Trustee pursuant to the Pooling and
Servicing Agreement and the annual independent certified public accountant's
servicing reports furnished to the Trustee pursuant to the Pooling and Servicing
Agreement, by first-class mail as soon as practicable after such statements and
reports are furnished to the Trustee.
(i) During the period beginning on the date hereof
and continuing to and including the Business Day following the Closing Date, the
Transferor will not offer, sell, contract to sell or otherwise dispose of any
debt securities of or guaranteed by the Transferor without the prior written
consent of the Underwriter.
Section 7. Expenses. (a) The Transferor agrees with the Under
writer that: (i) whether or not the transactions contemplated by this Agreement
are consummated or this Agreement becomes effective or is terminated, the
Transferor will pay all fees and expenses incident to the performance of its
obligations hereunder, including, but not limited to, (A) the Commission's
registration fee, (B) the expenses of printing and distributing this Agreement,
the Registration Statement, the Pooling and Servicing Agreement, each
Preliminary Prospectus, the Prospectus and any amendments or supplements
thereto, and the blue sky and legal investment memoranda and any supplements
thereto, and any other document in connection with the offering, purchase, sale
and delivery of the Certificates, (C) fees and expenses of accountants and
counsel for the Transferor, (D) expenses of qualification of the Certificates
under state blue sky and securities laws and in connection with blue sky and
legal investment surveys, including the fees and disbursements of counsel to the
Underwriter in connection therewith, (E) filing fees in connection with filings
with the National Association of Securities Dealers, Inc., if any, (F) fees and
expenses of the Trustee and any agent of the Trustee and the fees and disburse
ments of counsel for the Trustee in connection with the Pooling and Servicing
Agreement and the Certificates, (G) any fees charged by the Rating Agencies for
rating the Certificates, (H) all miscellaneous expenses referred to in Item 13
of the Registration Statement and (I) all other costs and expenses incident to
the performance of its obligations
18
hereunder which are not specifically provided for in this Section 7; (ii) all
out-of-pocket expenses, including agreed counsel fees, disburse ments and
expenses, incurred by the Underwriter in connection with investigating,
preparing to market and marketing the Certificates and proposing to purchase and
purchasing the Certificates under this Agreement will be borne and paid by the
Transferor if this Agreement is terminated by the Underwriter on account of the
failure, refusal or inability on the part of the Transferor to perform all
obligations and satisfy all conditions on its part to be performed or satisfied
hereunder; and (iii) the Transferor will pay the costs and charges of its
transfer agent and registrar and the cost of preparing the certificates for the
Certificates.
(b) Except as otherwise expressly provided in this
Section 7, the Underwriter agrees to pay all of its expenses in connection with
investigating, preparing to market and marketing the Certificates and proposing
to purchase and purchasing the Certificates under this Agreement, including the
fees and expenses of its counsel, and any advertising expenses incurred by it in
making offers and sales of the Certificates.
Section 8. Indemnification and Contribution. (a) The
Transferor and Yamaha agree, jointly and severally, to indemnify and hold
harmless the Underwriter, and each person, if any, who controls the Underwriter
within the meaning of the Securities Act, against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter or such controlling
person may become subject under the Securities Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement (or in any amendment
thereto), including the information deemed to be a part of the Registration
Statement pursuant to Rule 430A(b) of the Rules and Regulations, if applicable,
or the omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
arising out of any untrue statement or alleged untrue statement of a material
fact contained in any preliminary prospectus or the Prospectus (or any amendment
or supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, and will reimburse the
Underwriter and each such controlling person for any legal or other expenses
reasonably incurred by the Underwriter or controlling person in connection with
investigating, defending or preparing to defend any such loss, claim, damage,
liabil ity or action at the time such expenses are incurred; provided, however,
that neither the Transferor nor Yamaha will be liable in any such case to the
extent that any such loss, claim, damage or liabil-
19
ity arises out of or is based upon any untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement,
any Preliminary Prospectus, the Prospectus, or any such amendment or supplement,
in reliance upon and in conformity with written information furnished to the
Transferor by the Underwriter specifically for use therein. Neither the
Transferor nor Yamaha shall be liable to the Underwriter or any person
controlling the Underwriter under the indemnity agreement in this subsection (a)
with respect to any of such documents to the extent that any such loss, claim,
damage or liability of the Underwriter or such controlling person results from
the fact that the Underwriter sold the Certificates to a person to whom there
was not sent or given, at or prior to the written confirmation of such sale, a
copy of the Prospectus or of the Prospectus as then amended or supplemented
(excluding documents incorporated by reference), as applicable, in any case in
which such delivery is required by the Securities Act or the Rules and
Regulations if the Transferor furnished copies thereof to the Underwriter prior
to such confirmation and, if the loss, claim, damage or liability arises out of
a defect in the Preliminary Prospectus, then the Prospectus cured such defect.
(b) The Underwriter will indemnify and hold harmless
the Transferor, Yamaha, each of their respective directors, each of the
Transferor's officers or authorized persons who signed the Registration
Statement and each person or entity, if any, who controls the Transferor or
Yamaha within the meaning of the Securities Act against any losses, claims,
damages or liabilities to which the Transferor or Yamaha or any such director,
officer or controlling person may become subject, under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon any untrue or alleged untrue
statement of any material fact contained in the Registration Statement, any
Preliminary Prospectus, the Prospectus, or any amendment or supplement thereto,
or arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent but only to the
extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or any such amendment or supplement, in reliance
upon and in conformity with written information furnished to the Transferor by
the Underwriter specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Transferor or Yamaha or any such
director,
20
officer or controlling person in connection with investigating, defending or
preparing to defend any such loss, claim, damage, liability or action. The
Transferor acknowledges and agrees that the only such information furnished to
the Transferor by the Underwriter consists of the following: (i) the statements
in the last sentence of the cover page of the Prospectus; (ii) the statements in
the first and second sentences in the third paragraph (concerning initial
offering prices, concessions and reallowances) and in the fourth, fifth, sixth
and seventh paragraphs (concerning stabilizing and other activities) under the
heading "Underwriting" in the Prospectus.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability which it may have to
any indemnified party otherwise than under this Section 8. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish, jointly
with any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall not,
except with the consent of the indemnified party, be counsel to the indemnifying
party). After notice from the indemnifying party to such indemnified party of
its election so to assume the defense of such claim or action, the indemnifying
party will not be liable to such indemnified party under this Section 8 for any
legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of investigation
unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Underwriter in the case of paragraph (a) of
this Section 8, representing the indemnified parties under such paragraph (a)
who are parties to such action other than local counsel), (ii) the indemnifying
party shall not have employed counsel satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party, and except that, if clause (i) or (iii) is applicable, such
liability shall be only in respect of the counsel referred to in such clause (i)
or (iii). An indemnifying party will not, without the
21
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified parties are
actual or potential parties to such claim or action) unless such settlement,
compro mise or consent includes an unconditional release of each indemnified
party from all liability arising out of such claim, action, suit or proceeding.
(d) If the indemnification provided for in
Section 8(a) or (b) hereof is for any reason, other than as specified in such
provisions, unavailable to or insufficient to hold harmless an indemnified
party, then each indemnifying party shall contribute to the amount paid or
payable by each indemnified party in respect of losses, claims, damages or
liabilities (or actions in respect thereof) referred to in Sections 8(a) or (b)
hereof (i) in such proportion as is appropriate to reflect the relative benefits
received by the Transferor and Yamaha, on the one hand, and the Underwriter, on
the other, from the offering of the Certificates or, (ii) if the alloca tion
provided by clause (i) above is not permitted by applicable law, in such propor-
tion as is appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Transferor and Yamaha, on
the one hand, and the Underwriter, on the other, in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions in respect thereof) as well as any other relevant
equitable considerations. The relative benefits received by the Transferor and
Yamaha, on the one hand, and the Underwriter, on the other, shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Transferor bear to the total underwriting
discounts and commissions received by the Underwriter, in each case as set forth
in the table on the cover page of the Prospectus. The relative fault of the
Transferor and Yamaha, on the one hand, and the Underwriter, on the other, shall
be determined by reference to, among other things, whether the untrue statement
of a material fact or the omission to state a material fact relates to
information supplied by the Transferor, Yamaha or the Underwriter and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission.
The Transferor, Yamaha and the Underwriter agree that it would
not be just and equitable if their respective obligations to contribute pursuant
to this Section 8(d) were to be determined by pro rata allocation or by any
other method of allocation which does not take account of the equitable
considerations referred to
22
above in this Section 8(d). For purposes of this Section 8(d), the term
"damages" shall include any legal or other expenses reasonably incurred by the
Transferor, Yamaha or the Underwriter in connection with investigating or
defending against any action or claim which is the subject of the contribution
provisions of this Section 8(d). Notwithstanding this Section 8(d), the
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total amount of discounts and commissions received by the
Underwriter in respect of the Certificates underwritten by it and distributed to
the public exceeds the amount of any damages which the Underwriter has otherwise
been required to pay by reason of such untrue statement or omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation.
(e) The obligations of the Transferor or Yamaha
under this Section 8 shall be in addition to any liability which the Transferor
or Yamaha may otherwise have and shall extend, upon the same terms and
conditions, to each person, if any, who controls the Underwriter within the
meaning of Section 15 the Securities Act; and the obligations of the Underwriter
under this Section 8 shall be in addition to any liability which the Underwriter
may otherwise have and shall extend, upon the same terms and conditions, to each
director of the Transferor or Yamaha, to each officer of the Transferor who has
signed the Registration Statement and to each person, if any, who controls the
Transferor or Yamaha within the meaning of Section 15 the Securities Act.
Section 9. Termination. This Agreement may be terminated by
the Underwriter by notice to the Transferor prior to delivery of and payment for
the Certificates, (i) in the event that the Transferor or Yamaha shall have
failed, refused or been unable to perform all obligations and satisfy all
conditions on its part to be performed or satisfied hereunder at or prior to the
Closing Date, (ii) if on any date during the period from and including the date
hereof to and including the Closing Date, (A) any change, or development
involving a prospective change, in or affect ing particularly the business or
properties of the Transferor, Yamaha or Deutsche Financial Services Corporation
shall have occurred which, in the reasonable judg ment of the Underwriter,
materially impairs the investment quality or marketability of the Certificates,
(B) any suspension or material limitation of trading in securities generally on
the New York Stock Exchange or American Stock Exchange, or setting of minimum or
maximum prices for trading on such exchange shall have been established by
either of such exchanges or by order of the Commission or by any
23
other governmental authority, (C) a banking moratorium shall have been declared
by New York, California or United States authorities or (D) there shall have
been an outbreak or material escalation of hostilities between the United States
and any foreign power, or of any other insurrection or armed conflict involving
the United States, any declaration of war by Congress or any other substantial
national or international calamity or emergency which, in the reasonable opinion
of the Underwriter, makes it impracticable or inadvisable to offer or sell the
Certificates on the terms and in the manner contemplated by the Prospectus.
Section 10. Survival. The respective representations,
warranties, agreements, covenants, indemnities and other statements of the
Transferor, Yamaha, their respective officers and the Underwriter set forth in
this Agreement or made by or on behalf of them, respectively, pursuant to this
Agreement shall remain in full force and effect, regardless of (a) any
investigation (or any statement as to the results thereof) made by or on behalf
of the Transferor, Yamaha, any of their respective officers or directors, any
Underwriter or any controlling person, (b) any termination of this Agreement and
(c) delivery of and payment for the Certificates. If for any reason (other than
solely by reason of the termination of this Agreement because of a failure to
satisfy a condition set forth in Section 9(ii)(B), (C) or (D) hereof), the
purchase of the Certificates by the Underwriter is not consummated, the
Transferor and Yamaha will reimburse the Underwriters for all out-of-pocket
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with the offering of the Certificates.
Section 11. Notices. All communications hereunder shall be
in writing and, if sent to the Underwriter, shall be mailed or delivered or sent
by telecopy to Chase Securities Inc., 000 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxx Xxxxxxx, Telecopier: (000) 000-0000 and, if sent to
the Transferor, shall be mailed or delivered or sent by telecopy to Yamaha Motor
Receivables Corporation, 0000 Xxxxxxx Xxxxxx, Xxxxx X, Xxxxxxx, Xxxxxxxxxx
00000, Attention: Xxxxxxx X. Xxxx, General Counsel, Telephone: (000) 000-0000,
and, if sent to Yamaha, shall be mailed or delivered or sent by telecopy to
Yamaha Motor Corporation, U.S.A., 0000 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxxx
00000, Attention: Xxxxxxx X. Xxxx, General Counsel, Telecopier: (000) 000-0000.
Section 12. Miscellaneous. This Agreement shall inure to the
benefit of and shall be binding upon the Underwriter, the Transferor, Yamaha and
their respective successors and legal representatives, and nothing expressed or
mentioned
24
in this Agreement is intended or shall be construed to give any other person any
legal or equitable right, remedy or claim under or in respect of this Agreement,
or any provisions herein contained; this Agreement and all conditions and
provisions hereof being intended to be and being for the sole and exclusive
benefit of such persons and for the benefit of no other person except that the
representations, warranties, indemnities and agreements of the Transferor or
Yamaha contained in this Agreement shall also be for the benefit of any person
or persons who controls the Underwriter within the meaning of Section 15 of the
Securities Act. No purchaser of Certificates from the Underwriter shall be
deemed a successor because of such purchase. The validity and interpretation of
this Agreement shall be governed by the laws of the State of New York. This
Agreement may be executed in two or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
25
If the foregoing correctly sets forth our understanding,
please indicate your acceptance thereof in the space provided below for that
purpose, whereupon this letter shall constitute a binding agreement among the
Transferor, Yamaha and the Underwriter.
Very truly yours,
YAMAHA MOTOR RECEIVABLES
CORPORATION, as Transferor
By:
-------------------------------------
Name:
Title:
YAMAHA MOTOR CORPORATION,
U.S.A.
By:
-------------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
CHASE SECURITIES INC.,
as Underwriter
By:
---------------------------------
Name:
Title:
26
EXHIBIT A
Form of Transferor's Counsel Opinion
Pursuant to Section 4(b) of the Underwriting Agreement
(Capitalized terms have the meaning given to them
in the Underwriting Agreement)
(i) Yamaha Motor Receivables Corporation (the "Transferor")
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Delaware, has full power and authority to own its assets
and to transact its business as described in the Prospectus, and had at all
relevant times and now has, the power, authority and legal right to acquire and
own the Receivables;
(ii) The Transferor has and at all relevant times had all
requisite power and authority to execute and deliver the Underwriting Agreement
and the Supplement and to consummate the transactions contemplated herein and
therein;
(iii) The Certificates have been duly authorized and, when
executed and authenticated in accordance with the terms of the Pooling and
Servicing Agreement and the Supplement, and delivered and paid for pursuant to
the Underwriting Agreement, will be duly and validly issued and outstanding and
will be entitled to the benefits of the Pooling and Servicing Agreement and the
Supplement;
(iv) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or
body is required for the execution, delivery or performance of the Underwriting
Agreement, the Supplement and the Certificates by the Transferor, or the
consummation by the Transferor of the transactions contemplated hereby and
thereby, except such as have been obtained under the Securities Act and such as
may be required under state securities or blue sky laws in connection with the
purchase and distribution of the Certificates by the Underwriter;
(v) Neither the execution, delivery and performance by the
Trans feror of its obligations under the Underwriting Agreement, the Supplement
or the Pooling and Servicing Agreement, the issuance and sale of the
Certificates, nor the consummation of any other of the transactions contemplated
therein or in the Pooling and Servicing Agreement or the Supplement does or will
conflict with, result in a breach of or violation of any of the terms of, or
constitute a default under, the
A-1
Certificate of Incorporation or By-laws of the Transferor, each as amended, or
any rule, order, statute or regulation of any court, regulatory body,
administrative agency or governmental body having jurisdiction over the
Transferor or the terms of any material indenture or other material agreement or
instrument known to such counsel to which the Transferor is a party or by which
it or its properties are bound;
(vi) There are no actions, proceedings or investigations
pending or, to the best of such counsel's knowledge, threatened before any
court, administrative agency or other tribunal (x) asserting the invalidity of
the Underwriting Agreement, the Receivables Purchase Agreement, the Receivables
Sale Agreement, the Pooling and Servicing Agreement, the Supplement or the
Certificates, (y) seeking to prevent the issuance of the Certificates or the
consummation of any of the transactions contemplated by the Underwriting
Agreement, the Receivables Purchase Agreement, the Receivables Sale Agreement,
the Supplement, the Pooling and Servicing Agreement or the Certificates, which
might materially and adversely affect the performance by the Transferor of its
obligations under, or the validity or enforceability of, the Underwriting
Agreement, the Receivables Purchase Agree ment, the Receivables Sale Agreement,
the Supplement, the Pooling and Servicing Agreement or the Certificates or (z)
seeking adversely to affect the federal income tax attributes of the
Certificates as described in the Prospectus under the headings "Structural
Summary -- Tax Status" and "Certain Federal Income Tax Considerations";
(vii) Each of the Underwriting Agreement, the Supplement,
the Pooling and Servicing Agreement and the Receivables Purchase Agreement has
been duly authorized, executed and delivered by the Transferor and each of the
Pooling and Servicing Agreement and the Supplement constitutes a legal, valid
and binding obligation of the Transferor, enforceable against the Transferor in
accordance with its respective terms, subject to applicable bankruptcy,
reorganization, insolvency, moratorium or similar laws affecting creditors'
rights generally and to general equitable principles (whether such
enforceability is considered in a proceeding in equity or at law);
(viii) The Registration Statement has become effective under
the Securities Act and the Rules and Regulations, any required filing of the
Prospectus or any supplement thereto has been made with the Commission pursuant
to Rule 424(b) in the manner and within the time period required by Rule 424(b),
and no stop order suspending the effectiveness of the Registration Statement has
been issued and no
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proceedings for that purpose have been instituted or are pending or contem-
plated under the Securities Act or the Rule and Regulations; and the
Registration Statement and the Prospectus (other than the financial and
statistical information therein as to which such counsel need express no
opinion), as of the Effective Date, complied as to form in all material respects
with the requirements of the Securities Act and the Rules and Regulations;
(ix) The Underwriting Agreement, the Receivables Purchase
Agreement, the Receivables Sale Agreement, the Pooling and Servicing Agreement,
the Supplement and the Certificates conform in all material respects to the
descrip tions thereof contained in the Registration Statement and the
Prospectus;
(x) The Receivables Purchase Agreement, the Pooling and
Servic ing Agreement and the Supplement have not and will not be required to be
qualified under the Trust Indenture Act of 1939, as amended, and the Trust is
not now, and immediately following the sale of the Certificates pursuant hereto,
will not be, required to be registered under the Investment Company Act of 1940,
as amended;
(xi) The disclosure in the Prospectus of certain legal
proceedings, contracts and other documents and the filing of such contracts and
documents as exhibits to the Registration Statement are appropriately responsive
in all material respects to the applicable requirements of the Securities Act
and the Rules and Regulations; and
(xii) The statements in the Prospectus under the heading
"Certain Transfer, Security Interest and Bankruptcy Considerations" to the
extent they constitute matters of law or legal conclusions with respect thereto,
have been reviewed by such counsel and are correct in all material respects.
Such counsel also shall state that they have participated in
confer ences with officers and other representatives of the Transferor and the
Underwriter, counsel to the Underwriter, representatives of the independent
accountants for the Transferor, the Servicer and the Underwriter at which the
contents of the Registration Statement and the Prospectus were discussed and,
although they need not pass upon or assume responsibility for the factual
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, on the basis of the foregoing, nothing
has come to such counsel's attention that leads such counsel to believe that (i)
the Prospectus, or any
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amendments or supplements thereto, at the time the Prospectus was issued, at the
time such amendment or supplement was issued and at the Closing Date, contained
or contains any untrue statement of a material fact or omitted or omits to state
a material fact necessary to make the statements therein, not misleading or (ii)
the Registration Statement (including Rule 430A Information, if applicable, and
any amendment thereto), as of the Effective Date and the Closing Date, contained
or contains an untrue statement of a material fact or omitted or omits to state
a material fact necessary in order to make the statements therein, not
misleading; provided, however, that such counsel need express no view with
respect to the financial and statistical data included in the Registration
Statement or the Prospectus.
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EXHIBIT B
Form of Servicer's Counsel Opinion
Pursuant to Section 4(c) of the Underwriting Agreement
(Capitalized terms have the meaning given to them in
the Underwriting Agreement)
(i) Yamaha Motor Corporation, U.S.A. ("Yamaha") is a
corporation duly organized, validly existing and in good standing under the laws
of the State of California, has corporate power to own its assets and to
transact its business as described in the Prospectus, and had at all relevant
times and now has, the power, authority and legal right to service the
Receivables;
(ii) Yamaha has the corporate power and authority to execute
and deliver the Underwriting Agreement, the Pooling and Servicing Agreement, the
Supplement, the Receivables Purchase Agreement and the Receivables Sale Agree-
ment and to consummate the transactions contemplated therein;
(iii) No consent, approval, authorization, order,
registration or qualification of or with any court or governmental agency or
body is required for the execution, delivery or performance of the Pooling and
Servicing Agreement, the Supplement, the Underwriting Agreement, the Receivables
Sale Agreement or the Receivables Purchase Agreement by Yamaha, or the
consummation by the Servicer of the transactions contemplated thereby, except
such as have been obtained under the Securities Act and such as may be required
under state securities or blue sky laws in connection with the purchase and
distribution of the Certificates by the Underwriter;
(iv) Neither the execution, delivery and performance by
Yamaha of its obligations under the Pooling and Servicing Agreement, the
Supplement, the Underwriting Agreement, the Receivables Purchase Agreement, the
Receivables Sale Agreement, nor the consummation of any other of the
transactions contemplated therein will conflict with, result in a breach of or
violation of any of the terms of, or constitute a default under, the articles of
incorporation or by-laws of Yamaha, each as amended, or any rule, order, statute
or regulation of any court, regulatory body, administrative agency or
governmental body having jurisdiction over Yamaha or the terms of any material
indenture or other material agreement or instrument known to such counsel to
which Yamaha is a party or by which it or its properties are bound;
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(v) There are no actions, proceedings or investigations
pending or, to the best of such counsel's knowledge, threatened before any
court, administrative agency or other tribunal (x) asserting the invalidity of
the Pooling and Servicing Agreement, the Supplement, the Receivables Purchase
Agreement, the Receivables Sale Agreement or the Underwriting Agreement or (y)
seeking to prevent the consummation of any of the transactions contemplated by
the Supplement which might materially and adversely affect the performance by
Yamaha of its obligations under, or the validity or enforceability of the
Pooling and Servicing Agreement, the Supplement, the Receivables Purchase
Agreement or the Receivables Sale Agreement; and
(vi) The Supplement, the Pooling and Servicing Agreement,
the Receivables Sale Agreement, the Receivables Purchase Agreement and the Under
writing Agreement has been duly authorized, executed and delivered by Yamaha.
Each of the Supplement, the Pooling and Servicing Agreement, the Receivables
Sale Agreement and the Receivables Purchase Agreement constitutes the legal,
valid and binding obligation of Yamaha, enforceable against Yamaha in accordance
with its respective terms, subject, as to enforcement, to applicable bankruptcy,
insolvency, reorganization, moratorium, conservatorship, receivership, or other
similar laws of general applicability relating to or affecting creditors' rights
generally and the application of general principles of equity (regardless of
whether enforceability is considered in a proceeding in equity or at law).
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EXHIBIT C
Form of Trustee's Counsel Opinion
Pursuant to Section 4(j) of the Underwriting Agreement
(Capitalized terms have the meaning given to them
in the Underwriting Agreement)
(i) The Fuji Bank and Trust Company (the "Trustee") has
been duly incorporated and is validly existing as a banking corporation under
the laws of the State of New York and has and at all relevant times had the
power and authority to enter into and to perform all actions required of it
under the Pooling and Servicing Agreement and the Supplement;
(ii) Each of the Pooling and Servicing Agreement and the
Supple ment has been duly authorized, executed and delivered by the Trustee and
each constitutes a legal, valid and binding obligation of the Trustee,
enforceable against the Trustee in accordance with its terms, except as such
enforceability may be limited by applicable bankruptcy, insolvency, liquidation,
reorganization, moratorium, conservatorship, receivership or other similar laws
now or hereinafter in effect relating to the enforcement of creditors' rights in
general, as such laws would apply in the event of a bankruptcy, insolvency,
liquidation, reorganization, moratorium, conservatorship, receivership or
similar occurrence affecting the Trustee, and general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law);
(iii) The Certificates have been duly authenticated and
delivered by the Trustee;
(iv) The execution and delivery of the Supplement and the
Pooling and Servicing Agreement by the Trustee and the performance by the
Trustee of their respective terms do not conflict with or result in a violation
of (x) any law or regulation of the United States of America or the State of New
York governing the banking or trust powers of the Trustee or (y) the Certificate
of Incorporation or Bylaws of the Trustee; and
(v) No approval, authorization or other action by, or filing
with, any governmental authority of the United States of America or the State of
New York having jurisdiction over the banking or trust powers of the Trustee is
required in
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connection with the execution and delivery by the Trustee of the Pooling and
Servicing Agreement and the Supplement or the performance by the Trustee
thereunder.
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