EXHIBIT 10.5
FIRST AMENDMENT TO RECEIVABLES SALE AGREEMENT
This FIRST AMENDMENT TO RECEIVABLES SALE AGREEMENT (this
"Amendment"), dated as of May 1, 1999, is entered into between Deutsche
Financial Services Corporation (formerly known as ITT Commercial Finance
Corp.), a corporation organized and existing under the laws of the State of
Nevada, as seller ("DFS"), and Yamaha Motor Corporation, U.S.A., a
corporation organized and existing under the laws of the State of
California, as purchaser ("Yamaha").
RECITALS
WHEREAS, DFS and Yamaha have entered into that certain Receivables
Sale Agreement, dated as of March 1, 1994 ("Receivables Sale Agreement"),
pursuant to which DFS sells certain Receivables and assigns the security
interest in the related Yamaha Products to Yamaha;
WHEREAS, the parties desire to clarify and amend specified
provisions of the Receivables Sale Agreement to reflect the parties'
understanding and course of conduct;
WHEREAS, pursuant to Section 15(a) of the Receivables Sale
Agreement, DFS and Yamaha may amend such agreement without the consent of
the Trustee, YMRC 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 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 outstanding Investor Certificates, and (iii) an opinion of counsel
satisfactory to the Trustee concludes 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 Sale Agreement.
Section 2. Amendments.
a. Omnibus Amendment to Receivables Sale Agreement. Any
reference in the Receivables Sale 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
Sale Agreement is thereby amended by inserting the phrase ", Tennessee
Watercraft, Inc." after the phrase "Yamaha Motor Manufacturing Corporation
of America" therein.
c. Amendment to Section 25. Section 25 of the Receivables
Sale Agreement is hereby amended by deleting it in its entirety and
substituting in it place the following:
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 in Section 15 hereof.
d. Amendment to Section 27. Section 27 of the Receivables
Sale Agreement is hereby amended by deleting it in its entirety and
substituting in its place the following:
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.
e. Amendment to Schedule 1. Schedule 1 to the Receivables
Sale Agreement is hereby amended by deleting it in its entirety and
substituting in its place the Schedule 1 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.
Section 5. Miscellaneous.
a. Ratification of Receivables Sale Agreement. The terms and
provisions set forth in this Amendment shall modify and supersede all
inconsistent terms and provisions set forth in the Receivables Sale
Agreement and, except as expressly modified and superseded by this
Amendment, the Receivables Sale Agreement is ratified and confirmed in all
respects and shall continue in full force and effect.
b. References. The Receivables Sale 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 Sale Agreement as amended hereby, is hereby amended so that any
reference in such agreement to the Receivables Sale 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 Yamaha, DFS, YMRC, the Trustee and the Investor
Certificateholders and their respective successors and assigns.
IN WITNESS WHEREOF, this Amendment has been signed and delivered by
the parties as of the date first above written.
DEUTSCHE FINANCIAL SERVICES
CORPORATION, as Seller
By:
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Name:
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Title:
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YAMAHA MOTOR CORPORATION, U.S.A,
as Purchaser
By:
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Name:
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Title:
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