EXHIBIT 10.4
FIRST AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT
This FIRST AMENDMENT TO RECEIVABLES PURCHASE AGREEMENT (this
"Amendment"), dated as of May 1, 1999, is entered into between Yamaha Motor
Corporation, U.S.A. ("Yamaha"), a corporation organized and existing under
the laws of the State of California, as seller (in such capacity, the
"Seller") and Yamaha Motor Receivables Corporation, a corporation organized
and existing under the laws of the State of Delaware, as purchaser (in such
capacity, the "Purchaser").
RECITALS
WHEREAS, the Purchaser and the Seller have entered into that
certain Receivables Purchase Agreement, dated as of March 1, 1994
("Receivables Purchase Agreement"), pursuant to which the Seller sold
certain Receivables to the Purchaser;
WHEREAS, the parties desire to clarify and amend specified
provisions of the Receivables Purchase Agreement to reflect the parties'
understanding and course of conduct;
WHEREAS, pursuant to Section 21(a) of the Receivables Purchase
Agreement, the Purchaser and the Seller may amend such agreement without
the consent of the Trustee or any Investor Certificateholder to cure any
ambiguity, correct or supplement any inconsistent provisions or add, change
or eliminate any provision of the agreement or modify the rights of the
Investor Certificateholders; provided that (i) Yamaha provides to the
Trustee an Officer's Certificate to the effect that such amendments will
not materially and adversely affect the interests of the Investor
Certificateholders, (ii) each Rating Agency rating the Investor
Certificates confirms that such amendments will not result in the downgrade
or withdrawal of the rating of any Investor Certificate, and (iii) an
opinion of counsel satisfactory to the Trustee provides that, for federal
income tax purposes, such amendments will not cause the Yamaha Motor Master
Trust to be characterized as an association taxable as a corporation or
adversely affect the treatment of the Investor Certificates as debt.
AGREEMENT
NOW, THEREFORE, in exchange for good and valuable consideration
(the receipt and sufficiency of which are hereby acknowledged) the parties
hereby agree as follows:
Section 1. Definitions.
Each capitalized term used and not otherwise defined herein has the
meaning ascribed thereto in the Receivables Purchase Agreement.
Section 2. Amendments.
a. Omnibus Amendment to Receivables Purchase Agreement. Any
reference in the Receivables Purchase Agreement to "ITT Commercial Finance
Corp." shall hereby be a reference to "Deutsche Financial Services
Corporation" and any reference therein to "ITT" shall hereby be a reference
to "DFS."
b. Amendment to paragraph A. Paragraph A of the Receivables
Purchase Agreement is hereby amended by inserting the phrase ", Tennessee
Watercraft, Inc." after the phrase "Yamaha Motor Manufacturing Corporation
of America" therein.
c. Amendments to Section 8. The last paragraph of Section 8
of the Receivables Purchase Agreement is hereby amended as follows:
i. By deleting the phrase "Certificateholders'
Interest" where it appears therein and in each instance
substituting in its place the word "Receivables";
ii. By deleting the phrase "Section 2.4(c)" where it
appears therein and substituting in its place the phrase "Section
2.4(d)"; and
iii. By deleting the last sentence thereof and
substituting in its place the following:
The obligations of the Seller set forth in
Sections 8, 9(c) and 11 to either cure
breaches of representations and warranties or
repurchase Receivables shall constitute the
sole remedy respecting such breaches
available to the Purchaser, the
Certificateholders and the Trustee on behalf
of the Certificateholders.
d. Amendment to Section 9(c). Section 9(c) of the
Receivables Purchase Agreement is hereby amended by deleting the last
sentence thereof and substituting in its place the following:
The obligations of the Seller set forth in Sections
8, 9(c) and 11 to either cure breaches of
representations and warranties or repurchase
Receivables shall constitute the sole remedy
respecting such breaches available to the Purchaser,
the Certificateholders and the Trustee on behalf of
the Certificateholders.
e. Amendments to Section 11. Section 11 of the Receivables
Purchase Agreement is hereby amended as follows:
i. Section 11(a) of the Receivables Purchase
Agreement is hereby amended by deleting the phrase "Section
9(b)(iii)" where it appears in the first sentence thereof and
substituting in its place the phrase "Section 9(a)(iii)."
ii. Section 11(a) of the Receivables Purchase
Agreement is hereby further amended by deleting the phrase "clause
(iv)" where it appears in the first sentence thereof and
substituting in its place the phrase "clause (h)."
iii. Section 11(a)(ii) of the Receivables Purchase
Agreement is hereby amended by deleting the phrase "a Defaulted
Account" where it appears therein and substituting in its place the
phrase "an Account which is in default (each, a "Defaulted
Account")."
iv. Section 11(b) of the Receivables Purchase
Agreement is hereby amended by deleting the phrase "Section
9(b)(i), (ii), (iv) or (v)" where it appears in the first sentence
thereof and substituting in its place the phrase "Section 9(a)."
v. Section 11(b) of the Receivables Purchase
Agreement is hereby further amended by deleting the phrase "clause
(iv)" where it appears in the first sentence thereof and
substituting in its place the phrase "clause (h)."
vi. The first paragraph of Section 11(c) of the
Receivables Purchase Agreement is hereby amended by inserting the
phrase "the prior sentence of" after the phrase "Upon reconveyance
of a Receivable pursuant to."
vii. The first paragraph of Section 11(c) of the
Receivables Purchase Agreement is hereby further amended by
deleting the phrase "Section 9(b)" where it appears in the
penultimate sentence and substituting in its place the phrase
"Section 9(a)."
viii. The first paragraph of Section 11(c) of the
Receivables Purchase Agreement is hereby further amended by
deleting the last sentence thereof.
ix. Section 11 is hereby further amended by inserting
the following new subsection:
(f) Sole Remedy. The obligations of the Seller
set forth in Sections 8, 9(c) and 11 to either
cure breaches of representations and
warranties or repurchase Receivables shall
constitute the sole remedy respecting such
breaches available to the Purchaser, the
Certificateholders and the Trustee on behalf
of the Certificateholders.
f. Amendments to Schedule I. Schedule I to the Receivables
Purchase Agreement is hereby amended by deleting it in its entirety and
substituting in its place the Schedule I attached hereto.
Section 3. Representations and Warranties.
Each party, by executing this Amendment, hereby represents and
warrants that the Person executing this Amendment on behalf of such party
is duly authorized to do so, such party has full right and authority to
enter into this Amendment and to consummate the transactions described in
this Amendment, and this Amendment constitutes the valid and legally
binding obligation of such party and is enforceable against such party in
accordance with its terms.
Section 4. Effective Date.
This Amendment shall become effective as of the date first written
above upon the execution and delivery of this Amendment by all of the
parties hereto (the "Effective Date").
Section 5. Miscellaneous.
a. Ratification of Receivables Purchase Agreement. The terms
and provisions set forth in this Amendment shall modify and supersede all
inconsistent terms and provisions set forth in the Receivables Purchase
Agreement and, except as expressly modified and superseded by this
Amendment, the Receivables Purchase Agreement is ratified and confirmed in
all respects and shall continue in full force and effect.
b. References. The Receivables Purchase Agreement, and all
other agreements, documents or instruments now or hereafter executed and
delivered pursuant to the terms hereof or pursuant to the terms of the
Receivables Purchase Agreement as amended hereby, is hereby amended so that
any reference in such agreement to the Receivables Purchase Agreement shall
mean a reference to such agreement as amended hereby.
c. Counterparts. This Amendment may be executed in two or
more counterparts, each of which will be deemed to be an original but all
of which together will constitute one and the same instrument.
d. Governing Law. This Amendment shall be governed by and
construed in accordance with the internal laws of the State of California.
e. Binding Agreement. This Amendment shall be binding upon
and inure to the benefit of the Seller, the Purchaser, the Trustee and the
Investor Certificateholders and their respective successors and assigns.
f. Notice. Promptly after the Effective Date, the Trustee
shall provide to each Investor Certificateholder, and the Seller shall
provide to the Rating Agencies, in accordance with Section 21(d) of the
Receivables Purchase Agreement, a written notice of the substance of this
Amendment.
IN WITNESS WHEREOF, this Amendment has been signed and delivered by
the parties as of the date first above written.
YAMAHA MOTOR CORPORATION, U.S.A.,
as Seller
By:
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Name:
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Title:
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YAMAHA MOTOR RECEIVABLES
CORPORATION, as Purchaser
By:
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Name:
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Title:
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