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RECEIVABLES SALE AGREEMENT
between
ITT COMMERCIAL FINANCE CORP.,
as Seller
and
YAMAHA MOTOR CORPORATION, U.S.A.,
as Purchaser
Dated as of March 1, 1994
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TABLE OF CONTENTS
SECTION PAGE
------- ----
SECTION 1. Sale of the Receivables............................................7
SECTION 2. Sales Price; Remittances by ITT....................................9
SECTION 3. Payment of Sales Price on the First
Receivables Purchase Date........................................9
SECTION 4. Settlement and Ongoing Payment of Sale
Price...........................................................10
SECTION 5. Acceptance and Agreement by Yamaha................................10
SECTION 6. Representations and Warranties of ITT
Relating to ITT ................................................11
SECTION 7. Representations and Warranties of ITT
Relating to the Receivables.....................................13
SECTION 8. Covenants of ITT..................................................14
SECTION 9. Liability; Indemnification........................................16
SECTION 10. Merger or Consolidation of, or
Assumption of the Obliga-
tions of, ITT...................................................16
SECTION 11. Limitation on Liability of ITT....................................17
SECTION 12. Access to Certain Documentation and
Information Regarding the Receivables...........................18
SECTION 13. Examination of Records............................................18
SECTION 14. Termination.......................................................18
SECTION 15. Amendment.........................................................18
SECTION 16. Protection of Right, Title and Interest
to Receivables..................................................20
SECTION 17. Governing Law.....................................................21
SECTION 18. Notices...........................................................21
SECTION 19. Severability of Provisions........................................22
SECTION 20. Assignment........................................................22
SECTION 21. Further Assurances................................................22
SECTION 22. No Waiver; Cumulative Remedies....................................23
SECTION 23. Counterparts......................................................23
SECTION 24. Third Party Beneficiaries.........................................23
SECTION 25. Merger and Integration............................................23
SECTION 26. Headings..........................................................23
SECTION 27. Contrary Provisions...............................................23
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EXHIBITS
EXHIBIT A Form of Dealer Agreement
EXHIBIT B Form of ITT Agreement for Wholesale Financing
EXHIBIT C Form of ITT Financing Statement
EXHIBIT D Form of Statement of Transaction
EXHIBIT E Form of Receivables Settlement Statement
SCHEDULE 1 Schedule of Accounts
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This RECEIVABLES SALE AGREEMENT (this "Agreement") is entered into as of
March 1, 1994 by and between YAMAHA MOTOR CORPORATION, U.S.A., a corporation
organized and existing under the laws of the State of California ("Yamaha"),
and ITT COMMERCIAL FINANCE CORP., a corporation organized and existing under
the laws of the State of Nevada ("ITT").
B A C K G R O U N D :
- - - - - - - - - -
The following statements are the mutual representations of the parties
with respect to certain factual matters forming the basis for this Agreement
and are an integral part of this Agreement.
A. Receivables. ITT owns or will own all right, title and interest in, to
and under the receivables arising out of all wholesale motorized equipment
financing accounts (collectively, the "Accounts") established or to be
established by ITT with respect to wholesale financing arrangements with
domestic dealers or manufacturers which have entered into dealer or other
purchaser agreements with Yamaha to sell products manufactured by Yamaha Motor
Manufacturing Corporation of America or Yamaha Motor Company, Ltd.
(collectively, the "Dealers"). The Receivables include the rights to payment of
money (whether characterized as "accounts", "chattel paper" or "general
intangibles", each as defined in Article 9 of the UCC) arising in each Account
received on or after January 31, 1994 (the "Cut-Off Date") until termination of
this Agreement pursuant to Section 14 hereof. The Accounts include all such
wholesale motorized equipment financing accounts as of the Cut-Off Date,
together with any such accounts created by ITT after the Cut-Off Date.
B. Sale of Receivables. The parties hereto desire that ITT sell the
Receivables in the Accounts and assign the security interest in the related
Yamaha Products (defined below) to Yamaha pursuant to the terms of this
Agreement.
C. Definitions. Capitalized terms shall have the meaning assigned to them
as follows:
"Account" shall have the meaning specified in the recitals hereto.
"Affiliate" of any Person shall mean any other Person directly or
indirectly controlling, controlled by or under common control with such Person.
For purposes of their definition, "control" when used with respect to any
specified Person means the power to direct the management and policies of such
Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Business Day" shall mean any day other than a Saturday, a Sunday or a day
on which commercial banking institutions in the State of California are
authorized or obligated by law or executive order to be closed.
"Certificate" shall mean one of any Series of the Investor Certificates or
the Exchangeable Transferor Certificates.
"Certificateholder" or "Holder" shall mean the Person in whose name a
Certificate is registered in the Certificate Register.
"Dealer" shall have the meaning specified in the recitals hereto.
"Dealer Agreement" shall mean an agreement in substantially the form
attached hereto as Exhibit A (including addenda or modifications thereto
entered into from time to time), or any similar agreement whereby Yamaha agrees
to sell Yamaha Products to such Person for resale at retail.
"Exchangeable Transferor Certificate" shall mean the certificate executed
by YMRC and authenticated by the Trustee, substantially in the form of Exhibit
A to the Pooling and Servicing Agreement and exchangeable as provided in the
Pooling and Servicing Agreement for one or more Series of Investor Certificates
and the reissued Exchangeable Transferor Certificate.
2
"Governmental Authority" shall have the meaning set forth in the Pooling
and Servicing Agreement.
"Investor Certificate" shall mean any one of the certificates executed by
YMRC pursuant to the Pooling and Servicing Agreement and authenticated by the
Trustee substantially in the form attached to the applicable Supplement to the
Pooling and Servicing Agreement.
"Investor Certificateholder" shall mean the holder of record of an
Investor Certificate.
"ITT Advance" shall mean, with respect to each Yamaha Product purchased by
a Dealer, the credit advance made by ITT to such Dealer to enable the Dealer to
purchase such Yamaha Product pursuant to the terms of the relevant ITT
Agreement for Wholesale Financing and in accordance with the terms of the
Statement of Transaction identifying such ITT Advance.
"ITT Agreement For Wholesale Financing" shall mean, with respect to each
Dealer, the agreement between such Dealer and ITT in substantially the form
attached hereto as Exhibit B.
"ITT Servicing Guidelines" shall mean ITT's written policies and
procedures, as such policies and procedures may be amended from time to time,
(a) relating to the operation of its floorplan financing business, including
the written policies and procedures for determining the interest rate charged
to Dealers, the other terms and conditions relating to ITT's wholesale
financing accounts, the creditworthiness of Dealers and the extension of credit
to Dealers, and (b) relating to the maintenance of accounts and collection of
receivables.
"ITT Financing Statement" shall mean, with respect to each Dealer, a UCC
financing statement in substantially the form attached hereto as Exhibit C.
"ITT Settlement Date" shall mean the fifteenth Business Day of each
calendar month commencing after the Cut-Off Date.
3
"Lien" shall mean any mortgage, deed of trust, pledge, hypothecation,
assignment, participation, deposit arrangement, encumbrance, lien (statutory or
other), preference, priority right or interest or other security agreement or
preferential arrangement of any kind or nature whatsoever, including, without
limitation, any conditional sale or other title retention agreement, any
financing lease having substantially the same economic effect as any of the
foregoing and the filing of any financing statement under the UCC (other than
any such financing statement filed for informational purposes only) or
comparable law of any jurisdiction to evidence any of the foregoing.
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Officer's Certificate" shall mean a certificate signed by any Vice
President or more senior officer of either of Yamaha or ITT and delivered to
the other party.
"Person" shall mean any legal person, including any individual,
corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, governmental authority or other entity of
similar nature.
"Pooling and Servicing Agreement" shall mean that certain Pooling and
Servicing Agreement, dated as of March 1, 1994, between YMRC and the Trustee,
as the same may be amended, supplemented or otherwise modified and in effect
from time to time.
"Proceeds" shall mean "cash proceeds" as defined in Section 9-306(1) of
the applicable UCC.
"Product Security" shall mean, with respect to any Yamaha Product, the
security interest of ITT in such Yamaha Product.
"Rating Agency" shall mean, with respect to any Series, each nationally
recognized statistical rating agency or agencies selected by YMRC to provide a
rating for the Investor Certificates of such Series.
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"Receivables" shall mean, collectively with respect to each Dealer, all
rights to payment of money (whether characterized as principal, interest, fees
expenses or otherwise) arising out of any ITT Advance to such Dealer and
identified in the Statement of Transaction sent to the Dealer by ITT for such
ITT Advance.
"Receivables Purchase Agreement" shall mean that certain Receivables
Purchase Agreement, dated as of March 1, 1994, between Yamaha, in its capacity
as seller thereunder, and Yamaha Motor Receivables Corporation, in its capacity
as purchaser thereunder, as the same may from time to time be amended,
supplemented or otherwise modified and in effect.
"Receivables Purchase Date" shall mean each Business Day on which
Receivables are sold to Yamaha pursuant to Section 1 hereof.
"Receivables Settlement Statement" shall mean the monthly settlement
record delivered by ITT to Yamaha in substantially the form of Exhibit E hereto
pursuant to the terms of Section 4 hereof.
"Requirements of Law" shall have the meaning specified in the Servicing
Agreement.
"Sales Price" shall mean, with respect to each Receivable of each Dealer,
the amount identified on the Statement of Transaction; provided however, that,
on the Cut-Off Date, in the event that the amount due on any Yamaha Product is
less than amount identified in the Statement of Transaction for such Yamaha
Product, the Sales Price of such Receivable shall be equal to the then current
balance due on such Yamaha Product.
"Series" shall mean any Series of Investor Certificates, each as
designated in the applicable Supplement to the Pooling and Servicing Agreement.
"Servicing Agreement" shall mean that certain Servicing Agreement, dated
as of March 1, 1994, between ITT and Yamaha, as the same may be amended,
supplemented or otherwise modified and in effect from time to time.
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"Statement of Transaction" shall mean, with respect to each ITT Advance,
the confirmation relating thereto sent by ITT to the related Dealer, in
substantially the form attached hereto as Exhibit D.
"Standard & Poor's" shall mean Standard & Poor's Corporation.
"Successor Servicer" shall have the meaning specified in the Servicing
Agreement.
"Trustee" shall mean The Fuji Bank and Trust Company, as the trustee named
in the Pooling and Servicing Agreement, and its successors and assigns in such
capacity.
"UCC" shall mean, with respect to any state, the Uniform Commercial Code
as in effect in such state.
"Yamaha Mechanized Equipment" shall mean new goods purchased from Yamaha
by the Dealer with the proceeds of an ITT Advance.
"Yamaha Product Program Price" shall mean, with respect to any Yamaha
Product, the terms of sale of such Yamaha Product (including, without
limitation, the initial purchase price, interest rate or delivery charges),
owed to Yamaha by the related Dealer with respect to any such Yamaha Product,
which price is set forth in the relevant Dealer Agreement, the price schedules
and the sales program delivered by Yamaha to such Dealer describing the
particular Yamaha Product purchased.
"Yamaha Product" shall mean, with respect to each Statement of
Transaction, the Yamaha Mechanized Equipment.
"YMRC" shall mean Yamaha Motor Receivables Corporation, a corporation
organized and existing under the laws of the State of Delaware and a
wholly-owned subsidiary of Yamaha, in its capacity as transferor of Receivables
to the Yamaha Motor Master Trust.
A G R E E M E N T :
- - - - - - - - -
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The parties hereto, each in consideration of the promises of the other and
for other good and valuable consideration, the receipt and sufficiency of which
is hereby acknowledged, hereby agree as follows:
SECTION 1. Sale of the Receivables.
(a) By execution of this Agreement, ITT does hereby sell, transfer,
assign, set over and otherwise convey to Yamaha, without recourse, all of its
right, title and interest in, to and under the Receivables and related Product
Security now existing and hereafter created of each Dealer, wherever located,
all monies due or to become due with respect thereto and all Proceeds thereof.
The parties hereto intend that the conveyance of ITT's right, title and
interest in, to and under the Receivables and related Product Security now
existing and hereafter created of each Dealer, all monies due or to become due
with respect thereto and all Proceeds thereof pursuant to the terms hereof
shall constitute a sale and not a grant of a security interest in such
property. It is the intention of ITT and Yamaha that the transfer of the
Receivables and the related Product Security contemplated herein constitute an
absolute assignment of the Receivables and related Product Security from ITT to
Yamaha and not a transfer for security. However, in the event that such
transfer is not characterized as an absolute assignment and sale, but rather as
a transfer for security, ITT hereby grants to Yamaha a security interest in and
lien on all of ITT's right, title and interest in, to and under the Receivables
and assigns the related Product Security identified on the Statements of
Transaction relating to the Receivables now existing and hereafter created of
each Dealer, wherever located, together with all monies due and to become due
with respect thereto and all Proceeds thereof, wherever located, as security
for the prompt and complete payment and performance in full of all amounts owed
by ITT to Yamaha whether now existing or hereafter arising (including, without
limitation, the prompt and complete payment in full of an amount equal to sum
of all amounts payable by Dealers to ITT with respect to the repayment of ITT
Advances) and for the performance of ITT's obligations set forth hereunder. The
foregoing sale, transfer, assignment, set-over and conveyance does not
constitute, and is not intended to result in, a creation or an assumption by
Yamaha of any
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obligation of ITT or any other Person in connection with the Dealers, the
Receivables or under any agreement or instrument relating thereto, including,
without limitation, any obligation to any Dealers, merchant banks, or insurers.
(b) In connection with such sale and assignment, ITT agrees to record and
file, at its own expense, any ITT Financing Statements (and continuation
statements with respect to such financing statements when applicable) with
respect to the Product Security related to the Receivables now existing and
hereafter created meeting the requirements of applicable UCC state laws in such
names and in such jurisdictions as are necessary to perfect the sale, transfer,
assignment and security interest of and in the Receivables and related Product
Security to Yamaha, and, upon request by Yamaha, to deliver a file-stamped copy
of such financing statements or other evidence of such filings to Yamaha on or
prior to the date hereof or from time to time, as applicable.
(c) In connection with such sale and assignment, ITT further agrees, at
its own expense, on or prior to each Receivables Purchase Date (x) to indicate
on its books and records that all Receivables created by ITT in connection with
the purchases by Dealers of Yamaha Products have been sold and assigned to
Yamaha, and that the related Product Security has been assigned to Yamaha
pursuant to this Agreement, (y) at the request of Yamaha, to deliver to Yamaha
a computer file or microfiche list containing a true and complete list
specifying, as of the Cut-Off Date and upon request of Yamaha thereafter, the
account number; the name of the Dealer; the amount of the ITT Advance made by
ITT to such Dealer pursuant to the terms of the ITT Agreement For Wholesale
Financing between ITT and such Dealer; the outstanding repayment obligation
(including principal and interest) of the Dealer in connection with such ITT
Advance; and the identification number of each Yamaha Product being purchased
by such Dealer with the proceeds of such ITT Advance. Such files or lists shall
be marked as Schedule 1 to the Servicing, which is hereby incorporated into and
made a part of this Agreement.
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(d) Yamaha shall not purchase Receivables hereunder if ITT shall become an
involuntary party to (or be made the subject of) any proceeding provided for by
any federal or state bankruptcy, insolvency or other debtor relief law (an
"Involuntary Case"), other than as creditor or claimant or if ITT shall admit
in writing its inability to pay its debts as they are due, or the commencement
by ITT of a voluntary case under the federal bankruptcy laws, as now or
hereafter in effect, or any present or future federal or state bankruptcy,
insolvency or similar law, or the consent by ITT to the appointment of or
taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator or other similar official of ITT or of any substantial part of its
property or the making by ITT of an assignment for the benefit of creditors or
the failure by ITT generally to pay its debts as such debt becomes due or the
taking of corporate action by ITT in furtherance of any of the foregoing.
SECTION 2. Sales Price; Remittances by ITT.
(a) The purchase price for the Receivables shall be a dollar amount equal
to the Sales Price.
(b) ITT hereby agrees that it will promptly remit to Yamaha in full all
amounts payable by Dealers to ITT with respect to the repayment of ITT
Advances.
SECTION 3. Payment of Sales Price on the First Receivables Purchase Date.
(a) The parties hereto agree that the Sales Price for each Receivable purchased
on the first Receivables Purchase Date has been paid by Yamaha on such date as
follows: (i) Yamaha agrees that ITT's obligation to deliver the proceeds of
each ITT Advance to Yamaha in connection with such Receivable has been
satisfied in full and (ii) ITT agrees that it has waived any right to payment
in cash by Yamaha for each such Receivable.
(b) The parties agree that the Sales Price for each Receivable purchased
by Yamaha after the first Receivables Purchase Date shall be paid by Yamaha on
each related Receivables Purchase Date, at Yamaha's option, in either of the
following ways: (i) by payment in cash in immediately available funds; or (ii)
in the event that the total Sales Price is not paid in full in
9
cash by Yamaha on the relevant Receivables Purchase Date, Yamaha shall reduce
the amount of the ITT Advance which ITT was obligated to deliver to Yamaha
hereunder in connection with the related Yamaha Product identified on the
applicable Statement of Transaction by an amount equal to the Sales Price of
such Receivable.
SECTION 4. Settlement and Ongoing Payment of Sales Price. On each ITT
Settlement Date, ITT shall deliver to Yamaha a Receivables Settlement Statement
in substantially the form of Exhibit E hereto (the "Receivables Settlement
Statement"). Any balance due from Yamaha to ITT shall be immediately paid by
Yamaha in the manner described in Section 3(b) hereof.
SECTION 5. Acceptance and Agreement by Yamaha.
(a) Yamaha hereby acknowledges its acceptance of all right, title and
interest in, to and under the property described in Section 1(a) hereof. Yamaha
further acknowledges that, prior to or simultaneously with the execution and
delivery of this Agreement, ITT has delivered to Yamaha the computer file or
microfiche list described in clause (y) of subsection 1(c) hereof.
(b) Yamaha hereby agrees not to disclose to any Person any of the account
numbers or other information contained in the computer files or microfiche
lists marked as Schedule 1 delivered to Yamaha by ITT pursuant to subsection
1(c) or subsection hereof, except as may be required by law, to any Rating
Agency or to a Successor Servicer appointed pursuant to the Pooling and
Servicing Agreement. Yamaha agrees to take such measures as shall be reasonably
requested by ITT to protect and maintain the security and confidentiality of
such information, and, in connection therewith, shall allow ITT to inspect
Yamaha security and confidentiality arrangements from time to time during
normal business hours. Yamaha shall make reasonable efforts to provide ITT with
written notice five (5) Business Days prior to any disclosure pursuant to this
subsection 5(b) and shall cooperate with ITT to seek any protective order and
confidentiality agreement ITT deems necessary or advisable.
10
SECTION 6. Representations and Warranties of ITT Relating to ITT. ITT
hereby represents and warrants to Yamaha as of the initial Receivables Purchase
Date and each Receivables Purchase Date occurring thereafter that:
(a) Organization and Good Standing. ITT is a corporation duly organized
and validly existing and in good standing under the law of the State of Nevada
and has, in all material respects, full corporate power, authority and legal
right to own its properties and conduct its business as such properties are
presently owned and such business is presently conducted, and to execute,
deliver and perform its obligations under this Agreement.
(b) Due Qualification. ITT is duly qualified to do business and, where
necessary, is in good standing as a foreign corporation (or is exempt from such
requirement) and has obtained all necessary licenses and approvals in each
jurisdiction in which the conduct of its business requires such qualification
except where the failure to so qualify or obtain licenses or approvals would
not have an adverse effect on its ability to perform its obligations hereunder,
and has full corporate power, authority and legal right to own its properties
and conduct its business as such properties are presently owned and such
business is presently conducted.
(c) Due Authorization. The execution and delivery of this Agreement and
the consummation of the transactions provided for or contemplated by this
Agreement have been duly authorized by ITT by all necessary corporate action on
the part of ITT.
(d) No Conflict. The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof and thereof, will not conflict with, result in
any breach of any of the material terms and provisions of, or constitute (with
or without notice or lapse of time or both) a material default under, any
indenture, contract, agreement, mortgage, deed of trust, or other instrument to
which ITT is a party or by which it or its properties are bound.
11
(e) No Violation. The execution and delivery of this Agreement, the
performance of the transactions contemplated by this Agreement and the
fulfillment of the terms hereof and thereof applicable to ITT, will not
conflict with or violate any material applicable to ITT.
(f) No Proceedings. There are no proceedings or, to the best knowledge of
ITT, investigations, pending or threatened against ITT, before any Governmental
Authority (i) asserting the invalidity of this Agreement, (ii) seeking to
prevent the consummation of any of the transactions contemplated by this
Agreement, (iii) seeking any determination or ruling that, in the reasonable
judgment of ITT, would adversely affect the performance by ITT of its
obligations under this Agreement (iv) seeking any determination or ruling that
would adversely affect the validity or enforceability of this Agreement.
(g) All Consents Required. All authorizations, consents, licenses,
approvals, authorizations of or registrations or declarations with any
Governmental Authority required to be obtained, effected or given by ITT in
connection with the performance of the transactions contemplated by this
Agreement, and the fulfillment of the terms hereof or thereof, have been
obtained.
(h) Enforceability. This Agreement constitutes a legal, valid and binding
obligation of ITT, enforceable against ITT in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
affecting the enforcement of creditors' rights in general and except as such
enforceability may be limited by general principles of equity (whether such
enforceability is considered in a suit at law or in equity).
(i) Statements of Transaction. As of each Receivables Purchase Date, each
Statement of Transaction relating to Receivables sold on that date is an
accurate and complete listing in all material respects of all information
identified therein relating to the Dealers and the Receivables the subject
thereof.
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(j) Valid Transfer. This Agreement constitutes a valid sale, transfer and
assignment to Yamaha of all right, title and interest of ITT in, to and under
the Receivables and the related Product Security now existing and hereafter
created of each Dealer, wherever located, all monies due and to become due with
respect thereto and the Proceeds thereof. Upon the filing of the ITT Financing
Statements in accordance with Section 1(b) hereof, Yamaha shall have valid and
perfected security or ownership interest in such Receivables and the related
Product Security. Except as otherwise provided in the Pooling and Servicing
Agreement, neither ITT nor any Person claiming through or under ITT has any
claim to or interest in the Receivables or the related Product Security.
The representations and warranties set forth in this Section 6 shall
survive the sale, transfer and assignment of the Receivables and the related
Product Security to Yamaha. Upon discovery by ITT or Yamaha of a breach of any
of the foregoing representations and warranties, the party discovering such
breach shall give prompt written notice to the other party.
SECTION 7. Representations and Warranties of ITT Relating to the
Receivables.
(a) Representations and Warranties. ITT hereby represents and warrants to
Yamaha as of the first Receivables Purchase Date and each Receivables Purchase
Date occurring thereafter that:
(i) each Receivable and the related Product Security existing on each
Receivables Purchase Date has been conveyed to Yamaha free and clear of
any prior Lien (other than the Lien created hereunder); and
(ii) with respect to each Receivable and related Product Security
existing on each Receivables Purchase Date, all consents, licenses,
approvals or authorizations of or registrations or declarations with any
Governmental Authority required to be obtained, effected or given by ITT in
connection with the conveyance of such Receivable or Yamaha Product to
Yamaha have been duly obtained, effected or given and are in full force and
effect.
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(b) Notice of Breach. The representations and warranties set forth in this
Section 7 shall survive the sale, transfer and assignment of the Receivables
and related Product Security to Yamaha. Upon discovery by ITT or Yamaha of a
breach of any of the representations and warranties set forth in this Section
7, the party discovering such breach shall give prompt written notice to the
other party.
SECTION 8. Covenants of ITT. ITT hereby covenants and agrees that:
(a) No Liens. Except for the conveyances hereunder, ITT will not sell,
pledge, assign or transfer to any other Person, or grant, create, incur, assume
or suffer to exist any Lien on, any Receivable or any Yamaha Product, whether
now existing or hereafter created, or any interest therein, and ITT shall
defend the right, title and interest of Yamaha in, to and under the Receivables
and the related Product Security, whether now existing or hereafter created,
against all claims of third parties claiming through or under ITT.
(b) ITT Servicing Guidelines and Servicing Agreement. ITT shall comply
with and perform its servicing obligations with respect to the Dealers and
Receivables in accordance with the ITT Agreement For Wholesale Financing
relating to the Dealers, the Servicing Agreement, except insofar as any failure
to so comply or perform would not adversely affect the rights of Yamaha.
(c) Notice of Liens. ITT shall notify Yamaha promptly after becoming aware
of any superior Lien on any Receivable or on any Product Security, other than
the conveyances hereunder, under the Receivables Purchase Agreement or under
the Pooling and Servicing Agreement.
(d) Compliance with Laws. ITT hereby agrees to comply in all material
respects with all Requirements of Law applicable to ITT.
(e) Agreements with Dealers. In the case of each Dealer related to an
Account listed on the Schedule of Accounts attached to the Servicing Agreement
as Schedule I, ITT has (i) entered into an ITT Agreement
14
for Wholesale Financing with each such Dealer and such agreement is the legal,
valid, binding and enforceable obligations of ITT and such Dealers, (ii) filed
or caused to be filed an ITT Financing Statement naming such Dealer as a debtor
under the Uniform Commercial Code in effect in each of the states where such
Dealer has its chief executive office or, if different, maintains possession of
any Yamaha Product and all continuation statements necessary to maintain the
effectiveness of any such ITT Financing Statements.
(f) Statements of Transaction. In the case of each ITT Advance for each
Dealer identified on Schedule I to the Servicing Agreement, ITT has sent or
will send, as applicable, a Statement of Transaction to such Dealer promptly
after making each ITT Advance. Each such ITT Statement has set forth or will
set forth, as applicable, the following:
(i) the name, address and account number of the Dealer;
(ii) the amount of the ITT Advance pursuant to the terms of the ITT
Agreement for Wholesale Financing between ITT and such Dealer;
(iii) the repayment obligation (including principal and interest) of
such Dealer in connection with such ITT Advance and the terms thereof; and
(iv) the description of each Yamaha Product being purchased by such
Yamaha Dealer with the proceeds of the above-referenced ITT Advance.
In the case of each Statement of Transaction, ITT also agrees to deliver to
each Dealer, as applicable, a notice of reminder of interest payments to be
made by such Dealer in connection with the ITT Advance to such Dealer
identified in such Statement of Transaction.
(g) Receivables Settlement Statements. A Receivables Settlement Statement
in the form of Exhibit E hereto shall be delivered by ITT to Yamaha on or
before each ITT Settlement Date and on the first Receiv-
15
xxxxx Purchase Date and shall identify all Receivables sold to Yamaha as of
such date. Such schedule shall include, among other things:
(i) the names of the Dealers; and
(ii) the aggregate amount of ITT Advances made to such Dealers under
all Statements of Transaction.
(h) Financing Statements. ITT shall not execute UCC financing statements
(including, without limitation, assignments under the applicable UCC) covering
any of the Receivables or related Product Security for any party other than
Yamaha. ITT shall not be required to execute UCC assignments covering any
Product Security except (i) in the event Yamaha has requested it to do so; and
(ii) ITT's short-term debt rating is lowered below "P-2" by Xxxxx'x or "A-1" by
Standard and Poor's. In such event, ITT shall execute UCC assignments with
respect to the related Product Security in favor of Yamaha.
SECTION 9. Liability; Indemnification. ITT shall be liable for each
obligation, covenant, representation and warranty of ITT arising under or
related to this Agreement. ITT agrees to indemnify Yamaha and to hold Yamaha
harmless from and against any and all losses, damages and expenses (including
reasonable attorneys' fees) suffered or incurred by Yamaha as a result of a
material breach of a covenant, representation or warranty hereunder;
provided, however, that ITT shall not indemnify Yamaha if such acts, omissions
or alleged acts or omissions constitute fraud, gross negligence or wilful
misconduct by Yamaha.
SECTION 10. Merger or Consolidation of, or Assumption of the Obligations
of, ITT.
(a) ITT shall not consolidate with or merge into any other corporation or
convey or transfer its properties and assets substantially as an entirety to
any Person unless:
(i) the corporation formed by such consolidation or into which ITT is
merged or the Person which acquires by conveyance or
16
transfer the properties and assets of ITT substantially as an entirety
shall be a corporation organized and existing under the laws of the United
States of America or any state or the District of Columbia, and, if ITT is
not the surviving entity, shall expressly assume, by an agreement
supplemental hereto, executed and delivered to Yamaha in form satisfactory
to Yamaha, the performance of every covenant and obligation of ITT
hereunder. (To the extent that any right, covenant or obligation of ITT is
inapplicable to the successor entity, such successor entity shall be
subject to such covenant or obligation, or benefit from such right, as
would apply, to the extent practicable, to such successor entity); and
(ii) ITT has delivered to Yamaha, an officers' certificate signed by
a Vice President (or any more senior officer) of ITT and an opinion of
counsel (in form and substance satisfactory to Yamaha) each stating that
such consolidation, merger, conveyance or transfer and such supplemental
agreement comply with this Section 10 and that all conditions precedent
herein provided for relating to such transaction have been complied with.
ITT shall promptly advise the Rating Agencies in writing of any such merger,
consolidation, conveyance or transfer.
SECTION 11. Limitation on Liability of ITT. Subject to Section 9 of this
Agreement, neither ITT nor any of its directors or officers or employees or
agents in its capacity as seller hereunder shall be under any liability to
Yamaha or any other Person for any action taken or for refraining from the
taking of any action in the capacity as seller pursuant to this Agreement
whether arising from express or implied duties under this Agreement; provided,
however, that this provision shall not protect ITT or any such person against
any liability which would otherwise be imposed by reason of willful
misfeasance, bad faith or gross negligence in the performance of duties
hereunder or by reason of reckless disregard of obligations and duties
hereunder. ITT and
17
any director or officer or employee or agent of ITT may rely in good faith on
any document of any kind prima facie properly executed and submitted by any
Person respecting any matters arising hereunder.
SECTION 12. Access to Certain Documentation and Information Regarding the
Receivables. ITT shall provide to Yamaha reasonable access to all records and
documentation regarding the Dealers, the Receivables and the Yamaha Products in
such cases where required in connection with the performance by Yamaha of its
obligations under this Agreement, or by applicable statutes or regulations to
review such documentation, such access being afforded without charge but only
(i) upon reasonable prior request, (ii) during normal business hours, (iii)
subject to such protective orders and confidentiality agreements or procedures
as ITT reasonably deems necessary or advisable and (iv) at offices designated
by ITT. Nothing in this Section 12 shall derogate from the obligation of ITT to
observe any applicable law prohibiting disclosure of information regarding the
Dealers, and the failure of ITT to provide access as provided in this Section
12 as a result of such obligation shall not constitute a breach of this Section
12.
SECTION 13. Examination of Records. ITT shall indicate clearly and
unambiguously in its computer files or other records that the Receivables and
related Product Security have been conveyed to Yamaha pursuant to this
Agreement and the Financing Program Agreements. ITT shall, prior to the sale or
transfer to a third party of any receivable held in its custody, examine its
computer and other records to determine that such receivable is not a
Receivable.
SECTION 14. Termination. This Agreement may be terminated at any time by
either of the parties hereto with no less than twelve (12) months' written
notice to the other party prior to the proposed date of effectiveness of
termination; provided that this Agreement shall remain effective as to
obligations hereunder arising or that may arise on account of transactions
consummated prior to the effective date of such termination.
SECTION 15. Amendment.
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(a) This Agreement may be amended from time to time by ITT and Yamaha,
without the consent of the Trustee, YMRC or any of the Investor
Certificateholders, (x) to cure any ambiguity, to correct or supplement any
provisions herein which may be inconsistent with any other provisions herein or
to add any other provisions with respect to matters or questions raised under
this Agreement which are not inconsistent with the provisions of this Agreement
or (y) for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement or modifying in any manner
the rights of the Investor Certificateholders; provided, however, that (i)
Yamaha shall have provided to the Trustee an Officer's Certificate to the
effect that such action will not materially and adversely affect the interests
of such Investor Certificateholders (or 100% of the Class of Investor
Certificateholders so affected shall have consented), (ii) each Rating Agency
rating the Investor Certificates confirms that such action will not result in
the reduction or withdrawal of its rating of Investor Certificates and (iii)
such action will not, as evidenced by an opinion of counsel satisfactory to the
Trustee, cause the Yamaha Motor Master Trust to be characterized for Federal
income tax purposes as an association taxable as a corporation or adversely
affect the treatment of the Investor Certificates as debt for Federal income
tax purposes.
(b) This Agreement may also be amended from time to time by ITT and Yamaha
with the consent of the Investor Certificateholders evidencing Undivided
Interests in the Investor Certificates (as defined in the Pooling and Servicing
Agreement) aggregating not less than 66-2/3% of the Invested Amount (as defined
in the Pooling and Servicing Agreement) of each and every Series adversely
affected, for the purpose of adding any provisions to or changing in any manner
or eliminating any of the provisions of this Agreement or of modifying in any
manner the rights of the Investor Certificateholders of any Series then issued
and outstanding; provided, however, that no such amendment under this
subsection shall (i) reduce in any manner the amount of, or delay the timing
of, Collections (as defined in the Pooling and Servicing Agreement) on the
Receivables or payments or distributions which are required to be made on any
Investor Certificate of such
19
Series without the consent of the related Investor Certificateholder, or (ii)
reduce the aforesaid percentage required to consent to any such amendment, in
each case without the consent of all such Investor Certificateholders.
(c) Prior to the execution of any such amendment or consent, Yamaha shall
furnish written notification of the substance of such amendment to the Rating
Agencies.
(d) Promptly after the execution of any such amendment or consent, Yamaha
shall furnish written notification of the substance of such amendment to the
Trustee.
(e) It shall not be necessary for the consent of Investor
Certificateholders under this Section 15 to approve the particular form of any
proposed amendment, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of obtaining such consents and of evidencing
the authorization of the execution thereof by Investor Certificateholders shall
be subject to such reasonable requirements as the Trustee may prescribe.
SECTION 16. Protection of Right, Title and Interest to Receivables.
(a) ITT shall cause this Agreement, all amendments hereto and/or all
financing statements and continuation statements and any other necessary
documents covering ITT's and Yamaha's right, title and interest in, to and
under the Receivables and related Product Security to be promptly recorded,
registered and filed, and at all times to be kept recorded, registered and
filed, all in such manner and in such places as may be required by law fully to
preserve and protect the right, title and interest of Yamaha hereunder in, to
and under the Receivables and related Product Security. At the request of
Yamaha, ITT shall deliver to Yamaha file-stamped copies of, or filing receipts
for, any document recorded, registered or filed as provided above, as soon as
available following such recording, registration or filing. Yamaha shall
cooperate fully with ITT in connection with the obligations set forth above and
will
20
execute any and all documents reasonably required to fulfill the intent of this
Section 16(a).
(b) Within thirty (30) days after ITT makes any change in its name,
identity or corporate structure which would make any financing statement or
continuation statement filed in accordance with the term of this Agreement
seriously misleading within the meaning of Section 9-402(7) of the UCC as in
effect in the applicable UCC State, ITT shall give Yamaha notice of any such
change and shall file such financing statements or amendments as may be
necessary to continue the perfection of Yamaha security interest in the
Receivables and the Proceeds thereof.
(c) ITT will give Yamaha prompt written notice of any relocation of any
office from which it keeps records concerning the Receivables or of its
principal executive office, and whether, as a result of such relocation, the
applicable provisions of the UCC would require the filing of any amendment of
any previously filed financing or continuation statement or of any new
financing statement and shall file such financing statements or amendments as
may be necessary to perfect or to continue the perfection of Yamaha security
interest in the Receivables and the Proceeds thereof. ITT will at all times
maintain each office from which it services Receivables and its principal
executive office within the United States of America.
SECTION 17. Governing Law. This Agreement shall be construed in accordance
with the laws of the State of California without reference to its conflicts of
law provisions, and the obligations, rights and remedies of the parties
hereunder shall be determined in accordance with such laws.
SECTION 18. Notices. All demands, notices and communications hereunder
shall be in writing and shall be deemed to have been duly given if personally
delivered at or mailed by registered mail, return receipt requested, to (a) in
the case of ITT Commercial Finance Corp., 0000 Xxxxxxxx Xxxxxx, Xxxxxxx, XX
00000, Attention: General Counsel and (b) in the case of Yamaha Motor
Corporation, U.S.A., 0000 Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention: Xxxxxxx
X. Xxxx, Esq.; or, as to each party, at such other address as shall be
21
designated by such party in a written notice to each other party. Any notice so
mailed within the time prescribed in this Agreement shall be conclusively
presumed to have been duly given, whether or not the party receives such
notice.
SECTION 19. Severability of Provisions. If any one or more of the
covenants, agreements, provisions or terms of this Agreement shall for any
reason whatsoever be held invalid, then such covenants, agreements,
provisions or terms shall be deemed severable from the remaining covenants,
agreements, provisions or terms of this Agreement and shall in no way affect
the validity or enforceability of the other provisions of this Agreement.
SECTION 20. Assignment. Notwithstanding anything to the contrary contained
herein, this Agreement may not be assigned by Yamaha or ITT except as
contemplated by this Section 20 of this Agreement; provided, however, that
simultaneously with the execution and delivery of this Agreement, Yamaha shall
assign all of its right, title and interest herein to the Yamaha Motor
Receivables Corporation ("YMRC"), a Delaware corporation, which will
simultaneously assign all of its right, title and interest therein to the
Trustee for the benefit of the Investor Certificateholders of all Series as
provided in Section of the Pooling and Servicing Agreement, to which ITT hereby
expressly consents. ITT agrees to perform its obligations hereunder for the
benefit of YMRC and the Yamaha Motor Master Trust and that YMRC and the Trustee
may enforce the provisions of this Agreement, exercise the rights of Yamaha and
enforce the obligations of ITT hereunder without the consent of Yamaha.
SECTION 21. Further Assurances. ITT and Yamaha agree to do and perform,
from time to time, any and all acts and to execute any and all further
instruments required or reasonably requested by YMRC or the Trustee more fully
to effect the purposes of this Agreement, including, without limitation, the
execution of any financing statements or continuation statements relating to
the Receivables for filing under the provisions of the Relevant UCC State of
any applicable jurisdiction.
22
SECTION 22. No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of ITT or Yamaha, any right, remedy, power or
privilege hereunder, shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise thereof or the exercise of any other right,
remedy, power or privilege. The rights, remedies, powers and privileges herein
provided are cumulative and not exhaustive of any rights, remedies, powers and
privileges provided by law.
SECTION 23. Counterparts. This Agreement may be executed in two or more
counterparts (and by different parties on separate counterparts), each of which
shall be an original, but all of which together shall constitute one and the
same instrument.
SECTION 24. Third Party Beneficiaries. This Agreement will inure to the
benefit of and be binding upon the parties hereto, and, in addition, shall
inure to the benefit of the Trustee and YMRC and the Investor
Certificateholders and their respective successors and permitted assigns.
Except as otherwise provided in this Agreement, no other person will have any
right or obligation hereunder.
SECTION 25. Merger and Integration. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived or supplemented except as provided herein.
SECTION 26. Headings. The headings herein are for purposes of reference
only and shall not otherwise affect the meaning or interpretation of any
provision hereof.
SECTION 27. Contrary Provisions. Unless otherwise provided herein to the
contrary, to the extent any provision contained in this Agreement conflicts
with any provision of any other agreement or understanding between the parties
hereto, the provision contained in this Agreement shall supersede such other
provision and be controlling with respect to the parties hereto; pro-
23
vided that to the extent this Agreement does not conflict with or contradict a
provision contained in any other agreement or understanding between the parties
hereto now and in the future, the terms of any and all such other agreements
shall remain in full force and effect in accordance with their respective
terms.
24
IN WITNESS WHEREOF, ITT and Yamaha have caused this Receivables Sale
Agreement to be duly executed by their respective officers as of the day and
year first above written.
ITT COMMERCIAL FINANCE CORP.
By:
-------------------------------
Name:
Title:
YAMAHA MOTOR CORPORATION, U.S.A.,
By:
-------------------------------
Name:
Title:
25
EXHIBIT A
[FORM OF DEALER AGREEMENT]
A-1
EXHIBIT B
[FORM OF ITT AGREEMENT FOR WHOLESALE FINANCING]
B-1
EXHIBIT C
[FORM OF ITT FINANCING STATEMENT]
C-1
EXHIBIT D
[FORM OF STATEMENT OF TRANSACTION]
D-1
EXHIBIT E
[FORM OF RECEIVABLES SETTLEMENT STATEMENT]
E-1
Schedule 1
SCHEDULE OF ACCOUNTS
1
