EXHIBIT 1.1
FORM OF
UNDERWRITING AGREEMENT
HARLEY-DAVIDSON MOTORCYCLE TRUST [_______]
$___________ _____% HARLEY-DAVIDSON MOTORCYCLE CONTRACT
BACKED NOTES, CLASS A-1
$___________ _____% HARLEY-DAVIDSON MOTORCYCLE CONTRACT
BACKED NOTES, CLASS A-2
$___________ _____% HARLEY-DAVIDSON MOTORCYCLE CONTRACT
BACKED NOTES, CLASS B
$___________ _____% HARLEY-DAVIDSON MOTORCYCLE CONTRACT
BACKED CERTIFICATES
HARLEY-DAVIDSON CUSTOMER FUNDING CORP.
Trust Depositor
HARLEY-DAVIDSON CREDIT CORP.
Seller and Servicer
----------, -----
[Underwriter]
Ladies and Gentlemen:
Harley-Davidson Customer Funding Corp., a Nevada corporation (the
"Trust Depositor") and a wholly-owned subsidiary of Harley-Davidson Credit
Corp., a Nevada corporation ("Harley Credit"), proposes to cause Harley-Davidson
Motorcycle Trust [_______] (the "Trust") to issue and sell to you (the
"Underwriters") $___________ principal amount of its ____% Harley-Davidson
Motorcycle Contract Backed Notes, Class A-1 (the "Class A-1 Notes"), $__________
principal amount of its ____% Harley-Davidson Motorcycle Contract Backed Notes,
Class A-2 (the "Class A-2 Notes"), $__________ principal amount of its ____%
Harley-Davidson Motorcycle Contract Backed Notes, Class B (the "Class B Notes"
and, collectively with the Class A-1 Notes and the Class A-2 Notes, the "Notes")
[and $__________ principal amount of its ____% Harley-Davidson Motorcycle
Contract Backed Certificates (the "Certificates")]. The assets of the Trust will
include a pool of Harley-Davidson motorcycle conditional sales contracts and
Buell Motorcycle Company ("Buell") motorcycle conditional sales contracts (the
"Initial
Contracts"), certain monies received thereon on and after _______, _____ (the
"Initial Cutoff Date"), all insurance proceeds and liquidation proceeds with
respect thereto, security interests in the motorcycles financed thereby, the
related Initial Contracts files, the Trust Accounts, proceeds of the
foregoing, certain rights with respect to funds on deposit from time to time
in the Reserve Fund and the Pre-Funding Account and certain other property.
The Initial Contracts will be serviced for the Trust by Harley Credit. The
Notes will be issued pursuant to the Indenture to be dated as of _________,
_____ (as amended and supplemented from time to time, the "Indenture")
between the Trust and _______________________, as indenture trustee (the
"Indenture Trustee"). The Notes will be secured by the assets of the Trust
pursuant to the Indenture. The Certificates will be issued pursuant to the
Trust Agreement to be dated as of _________, _____ (as amended and
supplemented from time to time, the "Trust Agreement"), between the Trust
Depositor and ____________________, as owner trustee (the "Owner Trustee").
[The Certificates will represent fractional undivided interests in the Trust.]
The Notes and the Certificates are hereinafter referred to collectively as
the "Offered Securities."
The Trust will acquire the Initial Contracts from the Trust Depositor
pursuant to a Sale and Servicing Agreement to be dated as of ___________, ____
(as amended and supplemented from time to time, the "Sale and Servicing
Agreement"), among the Trust, the Trust Depositor, Harley Credit, as servicer,
and _________________, as Indenture Trustee. Harley Credit will also agree to
perform certain administrative functions on behalf of the Trust pursuant to the
Administration Agreement, dated as of ___________, ____ (as amended and
supplemented from time to time, the "Administration Agreement") among Harley
Credit, as administrator, the Trust and the Indenture Trustee. The Trust
Depositor will acquire the Initial Contracts from Harley Credit on the Closing
Date (as defined herein) pursuant to a Transfer and Sale Agreement to be dated
as of _________, _____ (as amended and supplemented from time to time, the
"Transfer and Sale Agreement") among the Trust Depositor, as purchaser, and
Harley Credit, as seller. All of the assets conveyed to the Trust pursuant to
the Sale and Servicing Agreement are referred to herein as the "Trust Property".
Capitalized terms that are used and not otherwise defined herein shall have the
respective meanings assigned thereto in the Sale and Servicing Agreement.
On the Closing Date (as defined herein) $_____________ will be
deposited in the Pre-Funding Account. It is intended that additional motorcycle
conditional sales contracts, including all rights to receive payments thereon on
or after their related Subsequent Cutoff Dates and security interests in the
Harley-Davidson and Buell motorcycles financed thereby (such contracts, together
with all such rights and interests, the "Subsequent Contracts" and, together
with the Initial Contracts, the "Contracts"), will be purchased by the Trust
Depositor from Harley Credit pursuant to one or more related Subsequent Purchase
Agreements and further transferred and assigned by the Trust Depositor to the
Trust and pledged by the Trust to the Indenture Trustee pursuant to one or more
related Subsequent Transfer Agreements from funds on deposit in the Pre-Funding
Account from time to time on or before the date which is 90 days from and
including the Closing Date.
In connection with the sale of the Offered Securities, the Trust
Depositor and Harley Credit have prepared a Prospectus (as defined herein) dated
_________, _____. The Prospectus sets forth certain information concerning the
Trust Depositor, Harley Credit, the Trust and the Offered Securities. The Trust
Depositor and Harley Credit hereby confirm that they have authorized the use of
the Prospectus, and any amendment or supplement thereto, in connection
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with the offer and sale of the Offered Securities by the Underwriters. Unless
stated to the contrary, all references herein to the Prospectus are to the
Prospectus (as defined herein) and are not meant to include any amendment or
supplement thereto.
1. REPRESENTATIONS AND WARRANTIES OF HARLEY CREDIT AND THE TRUST
DEPOSITOR. HARLEY CREDIT and the Trust Depositor jointly and severally represent
and warrant to each Underwriter as set forth below in this Section 1:
(a) The Depositor meets the requirements for use of Form S-3
under the Securities Act of 1933, as amended (the "Act"), and
has filed with the Securities and Exchange Commission (the
"Commission") a registration statement (Registration No.
333-______) on such Form, including a related preliminary base
prospectus and a preliminary prospectus supplement, for the
registration under the Act of the offering and sale of the
Offered Securities. Harley Credit may have filed one or more
amendments thereto, each of which amendments has previously
been furnished to you. Harley Credit will next file with the
Commission (i) prior to the effectiveness of such registration
statement, an amendment thereto (including the form of final
base prospectus and the form of final prospectus supplement
relating to the Offered Securities) or (ii) after the
effectiveness of such registration statement, either (A) a
final base prospectus relating to the Offered Securities in
accordance with Rules 430A and 424(b)(1) or (4) under the Act
or (B) a final base prospectus and a final prospectus
supplement relating to the Offered Securities in accordance
with Rules 415 and 424(b)(2) or (5).
In the case of clauses (ii) (A) and (B) above, Harley Credit
has included in such registration statement, as amended at the
Effective Date (as defined herein), all information (other
than Rule 430A Information) required by the Act and the rules
thereunder to be included in the Prospectus with respect to
the Offered Securities and the offering thereof. As filed,
such amendment and form of final prospectus supplement, or
such final prospectus supplement, shall include all Rule 430A
Information, together with all other required information,
with respect to the Offered Securities and the offering
thereof and, except to the extent that the Underwriters shall
agree in writing to a modification, shall be in all
substantive respects in the form furnished to you prior to the
Execution Time 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 base prospectus and preliminary prospectus
supplement, if any, that have previously been furnished to
you) as Harley Credit has advised you, prior to the Execution
Time, will be included or made therein. If the Registration
Statement contains the undertaking specified by Regulation S-K
Item 512(a), the Registration Statement, at the Execution
Time, meets the requirements set forth in Rule 415(a)(1)(x).
For purposes of this Agreement, "Effective Time" means the
date and time as of which such registration statement, or the
most recent post-effective amendment thereto, if any, was
declared effective by the Commission, and "Effective Date"
means the date of the Effective Time. "Execution Time" shall
mean the date and
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time that this Agreement is executed and delivered by the
parties hereto. Such registration statement, as amended
at the Effective Time, including all information
deemed to be a part of such registration statement as of the
Effective Time pursuant to Rule 430A(b) under the Act, and
including the exhibits thereto and any material incorporated
by reference therein, is hereinafter referred to as the
"Registration Statement." "Base Prospectus" shall mean the
base prospectus referred to in the first paragraph of this
Section 1(a) contained in the Registration Statement at the
Effective Date; PROVIDED, THAT, if the Base Prospectus used in
connection with any Preliminary Prospectus Supplement or the
Prospectus shall differ from the Base Prospectus contained in
the Registration Statement at the Effective Date, then "Base
Prospectus" shall mean the Base Prospectus included with such
Preliminary Prospectus Supplement or the Prospectus, as filed
pursuant to Rule 424(b). "Preliminary Prospectus Supplement"
shall mean a preliminary prospectus supplement, if any, to the
Base Prospectus which describes the Offered Securities and the
offering thereof and is used prior to the filing of the
Prospectus. "Prospectus" shall mean the prospectus supplement
relating to the Offered Securities that is first filed
pursuant to Rule 424(b) after the Execution Time, together
with the Base Prospectus or, if no filing pursuant to Rule
424(b) is required, shall mean the prospectus supplement
relating to the Offered Securities, including the Base
Prospectus, included in the Registration Statement at the
Effective Date including in each such case any material and
documents incorporated by reference therein. "Rule 430A
Information" means information with respect to the Offered
Securities and the offering of the Offered Securities
permitted to be omitted from the Registration Statement when
it becomes effective pursuant to Rule 430A. "Rule 415", "Rule
424", "Rule 430A" and "Regulation S-K" refer to such rules or
regulations under the Act. Any reference herein to the
Registration Statement, the Base Prospectus, a Preliminary
Prospectus Supplement or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under
the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), on or before the Effective Date of the Registration
Statement or the issue date of the Base Prospectus, such
Preliminary Prospectus Supplement or the Prospectus, as the
case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration
Statement, the Base Prospectus, any Preliminary Prospectus
Supplement or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement or the
issue date of the Base Prospectus, any Preliminary Prospectus
Supplement or the Prospectus, as the case may be, deemed to be
incorporated therein by reference.
(b) On the Effective Date and on the date of this Agreement,
the Registration Statement did or will, 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 Act, the Exchange Act
and the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"), and the respective rules and regulations
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of the Commission thereunder (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 any material fact required to be stated therein or
necessary in order 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
Harley Credit makes no representations or warranties as to the
information contained in or omitted from (x) the Registration
Statement or the Prospectus or any supplement thereto in
reliance upon and in conformity with information furnished in
writing to Harley Credit by or on behalf of the Underwriters
through [______________] specifically for use in connection
with the preparation of the Registration Statement or the
Prospectus or any supplement thereto and (y) any Derived
Information set forth in the Computational Materials (each as
defined in Section 11 below), or in any amendment thereof or
supplement thereto, incorporated by reference in such
Registration Statement or such Prospectus (or any amendment
thereof or supplement thereto) except to the extent such
Derived Information results from an error or omission in any
Seller-Provided Information (as defined in Section 11 below).
(c) It is not necessary to qualify the Trust Agreement under
the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act").
(d) Immediately prior to the assignment of the Initial
Contracts to the Trust as contemplated by the Sale
and Servicing Agreement, the Trust Depositor (i) had good
title to, and was the sole owner of, each Initial Contract and
the other property purported to be transferred by it to the
Trust pursuant to the Sale and Servicing Agreement free and
clear of any pledge, mortgage, lien, security interest or
other encumbrance (collectively, "Liens"), (ii) had not
assigned to any person any of its right, title or interest in
such Contracts or property or in the Transfer and Sale
Agreement and (iii) will have the power and authority to sell
such Contracts and property to the Trust, and upon the
execution and delivery of the Sale and Servicing Agreement by
the Owner Trustee on behalf of the Trust, the Trust will have
acquired all of the Trust Depositor's right, title and
interest in and to such Contracts and property free and clear
of any Lien (except for the Lien of the Indenture).
(e) Upon the execution and delivery of the Transfer and Sale
Agreement, the Sale and Servicing Agreement and the Indenture
by the respective parties thereto and the filing with the
Secretaries of State of Illinois and Nevada of UCC-1 financing
statements evidencing the conveyance of the Initial Contracts
(i) by Harley Credit to the Trust Depositor, (ii) by the Trust
Depositor to the Trust and (iii) by the Trust to the Indenture
Trustee for the benefit of the Noteholders, the Trust's
conveyance of the Trust Property to the Indenture Trustee
pursuant to the
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Indenture will vest in the Indenture Trustee, for the benefit
of the Noteholders, a first priority perfected security
interest therein, subject to no prior Lien.
(f) Immediately prior to the assignment of any Subsequent
Contract to the Trust as contemplated by a Subsequent Purchase
Agreement, the Trust Depositor (i) had good title to, and was
the sole owner of, each Subsequent Contract and the other
property purported to be transferred by it to the Trust
pursuant to such Subsequent Purchase Agreement free and clear
of any Liens, (ii) had not assigned to any person any of its
right, title or interest in such Contracts or property or in
the Transfer and Sale Agreement and (iii) will have the power
and authority to sell such Contracts and property to the
Trust, and upon the execution and delivery of such Subsequent
Purchase Agreement by the Owner Trustee on behalf of the
Trust, the Trust will have acquired all of the Trust
Depositor's right, title and interest in and to such Contracts
and property free and clear of any Lien (except for the Lien
of the Indenture).
(g) Upon the execution and delivery of a Subsequent Transfer
Agreement and a Subsequent Purchase Agreement by the
respective parties thereto and the filing with the Secretaries
of State of Illinois and Nevada of UCC-1 financing statements
evidencing the conveyance of such Subsequent Contracts (i) by
Harley Credit to the Trust Depositor, (ii) by the Trust
Depositor to the Trust and (iii) by the Trust to the Indenture
Trustee for the benefit of the Noteholders, the Trust's
conveyance of the Trust Property to the Indenture Trustee
pursuant to the Indenture will vest in the Indenture Trustee,
for the benefit of the Noteholders, a first priority perfected
security interest therein, subject to no prior Lien.
(h) Neither the Trust Depositor nor the Trust is, and neither
the issuance and sale of the Offered Securities nor the
activities of the Trust pursuant to the Indenture or the Trust
Agreement will cause the Trust Depositor or the Trust to be,
an "investment company" or under the "control" of an
"investment company" as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment
Company Act").
(i) This Agreement has been duly authorized, executed and
delivered by Harley Credit and the Trust Depositor.
(j) None of Harley Credit, the Trust Depositor, any of their
Affiliates or anyone acting on behalf of Harley Credit, the
Trust Depositor or any of their Affiliates has taken any
action that would require qualification of the Trust Agreement
under the Trust Indenture Act or registration of the Trust
Depositor under the Investment Company Act, nor will Harley
Credit, the Trust Depositor or any of their Affiliates act,
nor have they authorized or will they authorize any person to
act, in such manner.
(k) Neither the Trust Depositor nor Harley Credit is in
violation of any provision of any existing law or regulation
or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
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contract, indenture, mortgage, deed of trust, loan agreement,
note, lease or other instrument to which it is a party or by
which it is bound or to which any of its property is subject,
which violations or defaults separately or in the aggregate
would have a material adverse effect on the Trust Depositor,
Harley Credit or the Trust.
(l) Neither the issuance and sale of the Offered Securities,
nor the execution and delivery by the Trust Depositor or
Harley Credit of this Agreement, the Offered Securities, the
Sale and Servicing Agreement, the Transfer and Sale Agreement,
the Trust Agreement, the Administration Agreement, the Lockbox
Agreement, each Subsequent Purchase Agreement, the Indenture
or each Subsequent Transfer Agreement, nor the incurrence by
the Trust Depositor or Harley Credit of the obligations herein
and therein set forth, nor the consummation of the
transactions contemplated hereunder or thereunder, nor the
fulfillment of the terms hereof or thereof does or will (i)
violate any existing law or regulation, applicable to it or
its properties or by which it or its properties are or may be
bound or affected, (ii) conflict with, or result in a breach
of, or constitute a default under, any indenture, contract,
agreement, deed, lease, mortgage or instrument to which it is
a party or by which it or its properties are bound or (iii)
result in the creation or imposition of any lien upon any of
its property or assets, except for those encumbrances created
under the Transfer and Sale Agreement, the Sale and Servicing
Agreement, the Trust Agreement, the Indenture, each Subsequent
Purchase Agreement or each Subsequent Transfer Agreement.
(m) All consents, approvals, authorizations, orders, filings,
registrations or qualifications of or with any court or any
other governmental agency, board, commission, authority,
official or body required in connection with the execution and
delivery by the Trust Depositor and Harley Credit of this
Agreement, the Offered Securities, the Sale and Servicing
Agreement, the Transfer and Sale Agreement, the Trust
Agreement, the Administration Agreement, the Indenture, the
Lockbox Agreement, each Subsequent Purchase Agreement or each
Subsequent Transfer Agreement, or to the consummation of the
transactions contemplated hereunder and thereunder, or to the
fulfillment of the terms hereof and thereof, have been or will
have been obtained on or before the Closing Date (and on or
before each Subsequent Transfer Date in the case of Subsequent
Contracts being transferred to the Trust).
(n) All actions required to be taken by the Trust Depositor
and Harley Credit as a condition to the offer and sale of the
Offered Securities as described herein or the consummation of
any of the transactions described in the Prospectus have been
or, prior to the Closing Date (or each Subsequent Transfer
Date in the case of Subsequent Contracts being transferred to
the Trust), will be taken.
(o) The representations and warranties of each of the Trust
Depositor and Harley Credit in (or incorporated in) the Sale
and Servicing Agreement, the Transfer and Sale Agreement, the
Trust Agreement, the Indenture, the
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Administration Agreement, the Lockbox Agreement, each
Subsequent Purchase Agreement and each Subsequent
Transfer Agreement and made in any Officers' Certificate
of the Trust Depositor or Harley Credit delivered
pursuant to the Sale and Servicing Agreement, the
Indenture, the Transfer and Sale Agreement, each
Subsequent Purchase Agreement and each Subsequent
Transfer Agreement will be true and correct at the time
made and on and as of the Closing Date (and on each
Subsequent Transfer Date in the case of Subsequent
Contracts being transferred to the Trust) as if set forth
herein.
(p) The Initial Contracts conveyed to the Trust had aggregate
outstanding balances determined as of the Initial Cutoff Date
in the amount set forth in the Prospectus.
(q) Each of the Trust Depositor and Harley Credit agrees it
shall not grant, assign, pledge or transfer to any Person a
security interest in, or any other right, title or interest
in, the Contracts, except as provided in the Sale and
Servicing Agreement, the Trust Agreement, the Indenture, the
Transfer and Sale Agreement, each Subsequent Purchase
Agreement and each Subsequent Transfer Agreement, and each
agrees to take all action necessary in order to maintain the
security interest in the Contracts granted pursuant to the
Sale and Servicing Agreement, the Trust Agreement, the
Indenture, the Transfer and Sale Agreement, each Subsequent
Purchase Agreement and each Subsequent Transfer Agreement.
(r) There are no actions, proceedings or investigations
pending, or to the best knowledge of either the Trust
Depositor or Harley Credit, threatened against the Trust
Depositor or Harley Credit before any court or before any
governmental authority of arbitration board or tribunal which,
if adversely determined, could materially and adversely
affect, either in the individual or in the aggregate, the
financial position, business, operations or prospects of the
Trust Depositor or Harley Credit.
(s) For Illinois income, franchise and excise tax purposes,
under the provisions of Illinois law as of the Closing Date,
the Trust will not be classified as an association taxable as
a corporation. Each Certificateholder will instead be treated
for Illinois income, franchise and excise tax purposes as the
owner of an interest in the Trust, in conformity with the
federal income tax treatment of such Certificateholder. For
Certificateholders who are not residents of, or otherwise
subject to tax in Illinois, ownership of a Certificate will
not be a factor in determining whether such Certificateholders
are subject to Illinois income, franchise or excise taxes as
the case may be.
(t) Under generally accepted accounting principles, Harley
Credit will report its transfer of the Contracts to the Trust
Depositor pursuant to the Transfer and Sale Agreement as a
sale of the Contracts.
2. REPRESENTATIONS AND WARRANTIES OF THE UNDERWRITERS. Each Underwriter
represents and warrants to, and agrees with, the Trust Depositor that:
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(a) It has not offered or sold, and will not offer or sell, any Offered
Security to persons in the United Kingdom, except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances that have not resulted
and will not result in an offer to the public in the United Kingdom for
the purposes of the Public Offers of Securities Regulation 1995.
(b) It has complied and will comply with all applicable provisions of
the Financial Services Act 1986 with respect to anything done by it in
relation to the Offered Securities in, from or otherwise involving the
United Kingdom.
(c) It has only issued or passed on and will only issue or pass on in
the United Kingdom any document received by it in connection with the
issue of the Offered Securities to a person who is of a kind described
in Article 11(3) of the Financial Services Act 1986 (Investment
Advertisements) (Exemptions) Order 1995 or is a person to whom such
document may otherwise lawfully be issued or passed on.
3. PURCHASE AND SALE. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Trust
Depositor agrees to sell to each Underwriter, and each Underwriter agrees to
purchase from the Trust Depositor, each of the Offered Securities in the
principal amounts and at the purchase prices set forth opposite the name of each
Underwriter in Schedule I hereto.
4. DELIVERY AND PAYMENT. Delivery of and payment for the Offered
Securities shall be made at 10:00 AM, Chicago time, on __________, 199__, or
such later date (not later than _________, 199__) as the Underwriters shall
designate, which date and time may be postponed by agreement among the
Underwriters and the Trust Depositor (such date and time of delivery and payment
for the Offered Securities being herein called the "Closing Date"). Delivery of
the Offered Securities shall be made to the Underwriters for the account of the
Underwriters against payment by the Underwriters of the purchase price thereof
payable in same day funds wired to such bank as may be designated by the Trust
Depositor, or such other manner of payment as may be agreed by the Trust
Depositor and the Underwriters. Delivery of the Offered Securities shall be made
at such location as the Underwriters shall reasonably designate at least one
business day in advance of the Closing Date, and payment for the Offered
Securities shall be made at the office of Winston & Strawn, 35 Wacker Drive,
Chicago, Illinois. The Offered Securities shall be registered in such names and
in such denominations as the Underwriters may request not less than three full
business days in advance of the Closing Date.
The Trust Depositor agrees to authorize and direct the Trustee to have
the Offered Securities available for inspection, checking and packaging by the
Underwriters in New York, New York, not later than 1:00 PM on the business day
prior to the Closing Date.
5. OFFERING BY THE UNDERWRITERS: It is understood that the several
Underwriters propose to offer the Offered Securities for sale to the public
(which may include selected dealers), as set forth in the Prospectus.
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6. AGREEMENTS. The Trust Depositor and Harley Credit, jointly and
severally, agree with the Underwriters that:
(a) Harley Credit and the Trust Depositor will use their
respective best efforts to cause the Registration Statement,
and any amendment thereto, if not effective at the Execution
Time, to become effective. Prior to the termination of the
offering of the Offered Securities, Harley Credit will not
file any amendment of the Registration Statement or supplement
to the Prospectus unless Harley Credit has furnished you a
copy for your review prior to filing and will not file any
such proposed amendment or supplement to which you reasonably
object. Subject to the foregoing sentence, if the Registration
Statement has become or becomes effective pursuant to Rule
430A, or filing of the Prospectus is otherwise required under
Rule 424(b), Harley Credit will file the Prospectus, properly
completed, and any supplement thereto, with the Commission
pursuant to and in accordance with the applicable paragraph of
Rule 424(b) within the time period prescribed and will provide
evidence satisfactory to you of such timely filing.
(b) Harley Credit will advise you promptly of any
proposal to amend or supplement the Registration
Statement, as filed, or the Prospectus and will not
effect such amendment or supplement without your consent,
which consent will not unreasonably be delayed or
withheld; Harley Credit will also advise you promptly of
any request by the Commission for any amendment of or
supplement to the Registration Statement or the
Prospectus or for any additional information; and Harley
Credit will also advise you promptly of the effectiveness
of the Registration Statement (unless the Registration
Statement has become effective prior to Execution Time)
and any amendment thereto, when the Prospectus, and any
supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b) and of the issuance by
the Commission of any stop order suspending the
effectiveness of the Registration Statement or the
institution or threat of any proceeding for that purpose,
and Harley Credit will use its best efforts to prevent
the issuance of any such stop order and to obtain as soon
as possible the lifting of any issued stop order.
(c) If, at any time when a prospectus relating to the Offered
Securities is required to be delivered under the Act, any
event occurs as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if it is
necessary at any time to amend the Registration Statement or
supplement the Prospectus to comply with the Act or the
Exchange Act or the respective rules thereunder, Harley Credit
promptly will notify you and will prepare and file, or cause
to be prepared and filed, with the Commission, subject to the
second sentence of paragraph (a) of this Section 6, an
amendment or supplement that will correct such statement or
omission or effect such compliance. Any such filing shall not
operate as a waiver or limitation of any right of the
Underwriters hereunder.
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(d) As soon as practicable, but not later than fourteen months
after the Closing Date, the Trust Depositor will cause the
Trust to make generally available to holders of the Offered
Securities an earning statement of the Trust covering a period
of at least twelve months beginning after the Closing Date
that will satisfy the provisions of Section 11(a) of the Act.
(e) Harley Credit will furnish to the Underwriters copies of
the Registration Statement (one of which will be signed and
will include all exhibits), each related preliminary
prospectus (including the Preliminary Prospectus Supplement,
if any), the Prospectus and all amendments and supplements to
such documents, in each case as soon as available and in such
quantities as the Underwriters request. Harley Credit will pay
the expenses of printing or other production of all documents
relating to the offering.
(f) The Trust Depositor or Harley Credit will furnish to the
Underwriters and to Counsel for the Underwriters, without
charge, during the period referred to in paragraph (c) below,
as many copies of the Prospectus and any amendments and
supplements thereto as the Underwriters may reasonably
request. The Trust Depositor will pay the expenses of printing
or other production of all documents relating to the offering.
(g) The Trust Depositor will arrange for the qualification of
the Offered Securities for sale by the Underwriters under the
laws of such jurisdictions as the Underwriters may designate
and will maintain such qualifications in effect so long as
required for the sale of the Offered Securities. The Trust
Depositor will promptly advise the Underwriters of the receipt
by the Trust Depositor of any notification with respect to the
suspension of the qualification of the Offered Securities for
sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose.
(h) The Trust Depositor and Harley Credit will cooperate with
the Underwriters and use their best efforts to permit the
Offered Securities to be eligible for clearance and settlement
through The Depository Trust Company.
(i) For a period from the date of this Agreement until the
retirement of the Offered Securities, the Servicer will
deliver to you the monthly servicing report, the annual
statements of compliance and the annual independent certified
public accountants' reports furnished to the Indenture Trustee
or the Owner Trustee pursuant to the Sale and Servicing
Agreement, the Indenture, the Trust Agreement or the
Administration Agreement, as soon as such statements and
reports are furnished to the Indenture Trustee or the Owner
Trustee.
(j) So long as any of the Offered Securities is outstanding,
Harley Credit will furnish to you (i) as soon as practicable
after the end of the fiscal year all documents required to be
distributed to holders of Offered Securities or filed with the
Commission pursuant to the Exchange Act or any order of the
Commission thereunder and (ii) from time to time, any other
information concerning Harley
11
Credit or the Trust Depositor filed with any government
or regulatory authority that is otherwise publicly
available, as you may reasonably request.
(k) To the extent, if any, that the rating provided with
respect to the Offered Securities by Moody's Investors
Service, Inc. ("Moody's") or Standard & Poor's Ratings Service
("S&P" and together with Moody's, the "Rating Agencies") is
conditional upon the furnishing of documents or the taking of
any actions by the Trust Depositor, the Trust Depositor shall
furnish such documents and take such actions.
(l) Until 30 days following the Closing Date, neither the
Trust Depositor nor any trust or other entity originated,
directly or indirectly, by the Trust Depositor or Harley
Credit will, without the prior written consent of the
Underwriters, offer, sell or contract to sell, or otherwise
dispose of, directly or indirectly, or announce the offering
of, any asset-backed securities collateralized by motorcycle
contracts originated in the United States (other than the
Offered Securities).
(m) The Trust Depositor will enter into the Trust Agreement,
Harley Credit will enter into the Administration Agreement,
the Trust Depositor, Harley Credit, the Indenture Trustee and
the Trust will enter into the Sale and Servicing Agreement and
Harley Credit and the Trust Depositor will enter into the
Transfer and Sale Agreement on or prior to the Closing Date.
(n) Harley Credit will cause any Computational Materials (as
defined in Section 11 hereof) with respect to the Offered
Securities which are delivered by the Underwriters to Harley
Credit pursuant to Section 11 hereof to be filed with the
Commission on a Current Report on Form 8-K on or before the
date of the filing of the Prospectus pursuant to Rule 424.
(o) The Trust Depositor and Harley Credit will cause Winston &
Strawn to deliver to the Underwriters or on before each
Subsequent Transfer Date, one or more opinions, addressed to
the Underwriters, with respect to the transfer of Subsequent
Contracts substantially in the form of the opinions delivered
by Winston & Strawn on the Closing Date with respect to the
transfer of the Initial Contracts.
(p) The Trust Depositor will deliver to the Underwriters on or
before each Subsequent Transfer Date each Officer's
Certificate required to be furnished to the Indenture Trustee
pursuant to Section 2.04(b) of the Sale and Servicing
Agreement.
7. PAYMENT OF EXPENSES, ETC. If the transactions contemplated by this
Agreement are consummated or this Agreement is terminated pursuant to Section
12, the Trust Depositor will pay all expenses incident to the performance of its
obligations under this Agreement, including (i) the printing and filing of the
Registration Statement as originally filed and of each amendment thereto, (ii)
the printing of the Preliminary Prospectus Supplement, the Prospectus and each
amendment thereto, (iii) the fees of the Trustee and its counsel, (iv) the
preparation,
12
issuance and delivery of the Offered Securities to the Underwriters, (v) the
fees and disbursements of the Trust Depositor's accountants, (vi) the
qualification of the Offered Securities under securities laws in accordance
with the provisions of Section 6(g), including filing fees in connection
therewith, (vii) the printing and delivery to the Underwriters of copies of
the Registration Statement as originally filed and of each amendment thereto,
(vii) the printing and delivery to the Underwriters of copies of the
Prospectus and of each amendment thereto, (ix) the printing and delivery to
the Underwriters of copies of any blue sky or legal investment survey
prepared in connection with the Offered Securities and (x) any fees charged
by Rating Agencies for the rating of the Offered Securities.
8. CONDITIONS TO THE OBLIGATION OF THE UNDERWRITERS. The obligation of
the Underwriters to purchase the Offered Securities shall be subject to the
accuracy of the representations and warranties on the part of the Trust
Depositor and Harley Credit contained herein at the Execution Time and the
Closing Date, to the accuracy of the statements of the Trust Depositor and
Harley Credit made in any certificates pursuant to the provisions hereof, to the
performance by the Trust Depositor and Harley Credit of their respective
obligations hereunder and to the following additional conditions:
(a) If the Registration Statement has not become effective
prior to the Execution Time, unless the Underwriters agree in
writing to a later time, the Registration Statement shall have
become effective not later than (i) 6:00 P.M. New York City
time on the date of determination of the public offering
price, if such determination occurs at or prior to 3:00 P.M.
New York City time on such date or (ii) 12:00 noon New York
City time on the business day following the day on which the
public offering price was determined, if such determination
occurs after 3:00 P.M. New York City time on such date.
(b) The Prospectus and any supplements thereto shall have been
filed (if required) with the Commission in accordance with the
Rules and Regulations and Sections 1(a) and 1(b) hereof, and
prior to the Closing Date, no stop order suspending the
effectiveness of the Registration Statement shall have been
issued and no proceedings for that purpose shall have been
instituted or, to the knowledge of the Trust Depositor or you,
shall be contemplated by the Commission or by any authority
administering any state securities or blue sky law.
(c) The Trust Depositor shall have furnished to the
Underwriters the opinion of Winston & Strawn, counsel for the
Trust Depositor, dated the Closing Date and satisfactory in
form and substance to the Underwriters and Counsel for the
Underwriters, to the effect that:
(i) the Trust Depositor has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the State of Nevada, with full corporate
power and authority to own its properties and conduct its
business as described in the Prospectus, and is duly qualified
to do business as a foreign corporation and is in good
standing under the laws of the State of Illinois;
13
(ii) each of the Transfer and Sale Agreement, the
Sale and Servicing Agreement and the Trust Agreement have been
duly authorized, executed and delivered by the Trust
Depositor, and constitutes a legal, valid and binding
obligation of the Trust Depositor enforceable against the
Trust Depositor in accordance with its terms (subject, as to
the enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally from time to time in effect);
(iii) this Agreement has been duly authorized,
executed and delivered by the Trust Depositor;
(iv) The direction by the Trust Depositor to the
Owner Trustee to authenticate the Certificates has been duly
authorized by the Trust Depositor and, when the Certificates
have been duly executed, authenticated and delivered by the
Owner Trustee in accordance with the Trust Agreement and
delivered and paid for to the Trust Depositor pursuant to the
Sale and Servicing Agreement, the Certificates will be validly
issued and outstanding and entitled to the benefits of the
Trust Agreement;
(v) The direction by the Trust Depositor to the
Indenture Trustee to authenticate the Notes has been duly
authorized by the Trust Depositor and, when the Notes have
been duly executed and delivered by the Owner Trustee and when
authenticated by the Indenture Trustee in accordance with the
Indenture and delivered and paid for pursuant to this
Agreement, the Notes will constitute legal, valid and binding
obligations of the Trust (subject, as to enforcement of
remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditor's
rights generally from time to time in effect) and will be
entitled to the benefits of the Indenture;
(vi) no consent, approval, authorization or order of,
or filing with, any court or governmental agency or body is
required for the consummation of the transactions contemplated
herein or in the Transfer and Sale Agreement, the Sale and
Servicing Agreement, and the Indenture (collectively, the
"Basic Documents"), except such as may be required under the
blue sky or securities laws of any jurisdiction in connection
with the purchase and sale of the Offered Securities by the
Underwriters, the filing of the UCC-1 financing statements
relating to the conveyance of the Contracts by Harley Credit
to the Trust Depositor and of the Contracts and the other
Trust Property by the Trust Depositor to the Trust and by the
Trust to the Indenture Trustee on behalf of the Noteholders,
and such other approvals (which shall be specified in such
opinion) as have been obtained and filings as have been made
or are in the process of being made;
(vii) none of the sale of the Contracts by Harley
Credit to the Trust Depositor pursuant to the Transfer and
Sale Agreement, the sale of the Trust Property to the Trust
pursuant to the Sale and Servicing Agreement, the pledge of
the Trust Property to the Indenture Trustee, the issue and
sale of the Notes or the
14
Certificates, the execution and delivery of this
Agreement, the Sale and Servicing Agreement, the Transfer
and Sale Agreement, the Trust Agreement or the Indenture
Agreement, the consummation of any other of the
transactions herein or therein contemplated or the
fulfillment of the terms hereof or thereof will conflict
with, result in a breach or violation of, or constitute a
default under, any law binding on the Trust Depositor or
the charter or bylaws of the Trust Depositor or the terms
of any indenture or other agreement or instrument known
to such counsel and to which the Trust Depositor is a
party or by which it is bound, or any judgment, order or
decree known to such counsel to be applicable to the
Trust Depositor of any court, regulatory body,
administrative agency, governmental body or arbitrator
having jurisdiction over the Trust Depositor;
(viii) there are no actions, proceedings or
investigations pending or, to the best of such counsel's
knowledge after due inquiry, threatened before any court,
administrative agency or other tribunal (A) asserting the
invalidity of any of the Basic Documents, (B) seeking to
prevent the consummation of any of the transactions
contemplated by any of the Basic Documents or the execution
and delivery thereof or (C) that might materially and
adversely affect the performance by the Trust Depositor of its
obligations under, or the validity or enforceability of, this
Agreement or any Basic Document;
(ix) to the best knowledge of such counsel and except
as set forth in the Prospectus, no default exists and no event
has occurred which, with notice, lapse of time or both, would
constitute a default in the due performance and observance of
any term, covenant or condition of any agreement to which the
Trust Depositor is a party or by which it is bound, which
default is or would have a material adverse effect on the
financial condition, earnings, prospects, business or
properties of the Trust Depositor, taken as a whole;
(x) the provisions of the Transfer and Sale Agreement
are effective to transfer to the Trust Depositor all right,
title and interest of Harley Credit in and to the Contracts,
and to the knowledge of such counsel, the other Trust Property
will be owned by the Trust Depositor free and clear of any
Lien except for the Lien of the Sale and Servicing Agreement
and the Indenture;
(xi) the provisions of the Sale and Servicing
Agreement are effective to transfer to the Trust all right,
title and interest of the Trust Depositor in and to the
Collateral and the Contracts and to the knowledge of such
counsel, the other Collateral, will be owned by the Trust free
and clear of any Lien except for the Lien of the Indenture;
(xii) the provisions of the Indenture are effective
to create, in favor of the Indenture Trustee for the benefit
of the Noteholders as security for the Trust's obligations
under the Notes, a valid security interest in the Contracts
and that portion of the other Collateral which is subject to
Article 9 of the Illinois Uniform Commercial Code (the "UCC
Collateral") and the proceeds thereof;
15
(xiii) the form UCC-1 financing statements naming (A)
Harley Credit as seller and the Trust Depositor as purchaser,
(B) the Trust Depositor as seller and the Trust as purchaser
and (C) the Trust, as debtor, and the Indenture Trustee, as
secured party are in appropriate form for filing with the
Secretary of State of the State of Nevada, the Secretary of
State of the State of Illinois; the interest of the Indenture
Trustee in the Contracts and the proceeds thereof and, to the
extent that the filing of a financing statement is effective
to perfect an interest in the other Trust Property under
Article 9 of the Illinois Uniform Commercial Code and the
Nevada Uniform Commercial Code, the other Trust Property will
be perfected upon the filing of such financing statements in
such filing offices; and no other interest of any other
purchaser from or creditor of Harley Credit, the Trust
Depositor or the Trust is equal or prior to the interest of
the Trustee in the Contracts and such other Trust Property;
(xiv) the Contracts are "chattel paper" under Article
9 of the Illinois Uniform Commercial Code and the Nevada
Uniform Commercial Code;
(xv) the Basic Documents conform in all material
respects with the descriptions thereof contained in the
Prospectus;
(xvi) the statements in the Prospectus under the
headings "Risk Factors" and "Certain Legal Aspects of the
Contracts", 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;
(xvii) the statements contained in the Prospectus
under the headings "Description of the Notes", "Description of
the Certificates" and "Certain Information Regarding the
Offered Securities", insofar as such statements constitute a
summary of the Offered Securities and the Basic Documents,
constitute a fair summary of such documents;
(xviii) the Indenture has been duly qualified under
the Trust Indenture Act of 1939, as amended;
(xix) the Trust has been duly formed and is validly
existing as a statutory business trust and is in good standing
under the laws of the State of Delaware, with full power and
authority to execute, deliver and perform its obligations
under the Sale and Servicing Agreement, the Indenture, the
Administration Agreement, and the Notes and the Certificates;
(xx) the Indenture, the Sale and Servicing Agreement
and the Administration Agreement have been duly authorized
and, when duly executed and delivered by the Owner Trustee,
will constitute the legal, valid and binding obligations of
the Trust, enforceable against the Trust in accordance with
their terms, except (A) the enforceability thereof may be
subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights and (B) the remedy of specific performance
and
16
injunctive and other forms of equitable relief may be
subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought;
(xxi) the Trust Depositor is not, nor will the Trust
Depositor become as a result of the offer and sale of the
Offered Securities as contemplated in the Prospectus and the
Basic Documents, an "investment company" as defined in the
Investment Company Act or a company "controlled by" an
"investment company" within the meaning of the Investment
Company Act;
(xxii) to the best knowledge of such counsel, the
Trust Depositor has obtained all material licenses, permits
and other governmental authorizations that are necessary to
the conduct of its business; such licenses, permits and other
governmental authorizations are in full force and effect, and
the Trust Depositor is in all material respects complying
therewith; and the Trust Depositor is otherwise in compliance
with all laws, rules, regulations and statutes of any
jurisdiction to which it is subject, except where
non-compliance would not have a material adverse effect on the
Trust Depositor;
(xxiii) all actions required to be taken, and all
filings required to be made, by the Trust Depositor or Harley
Credit under the Act and the Exchange Act prior to the sale of
the Offered Securities have been duly taken or made;
(xxiv) to the best of such counsel's knowledge and
information, there are no legal or governmental proceedings
pending or threatened that are required to be disclosed in the
Registration Statement, other than those disclosed therein;
(xxv) to the best of such counsel's knowledge and
information, there are no contracts, indentures, mortgages,
loan agreements, notes, leases or other instruments required
to be described or referred to in the Registration Statement
or to be filed as exhibits thereto other than those described
or referred to therein or filed or incorporated by reference
as exhibits thereto, the descriptions thereof or references
thereto are correct, and no default exists in the due
performance or observance of any material obligation,
agreement, covenant or condition contained in any contract,
indenture, mortgage, loan agreement, note, lease or other
instrument so described, referred to, filed or incorporated by
reference;
(xxvi) the Registration Statement has become
effective under the Act, any required filings of the Base
Prospectus, any preliminary Base Prospectus, any Preliminary
Prospectus Supplement and the Prospectus, and any supplements
thereto, pursuant to Rule 424(b) have been made in the manner
and within the time period required by Rule 424(b), and, to
the best knowledge of such counsel, no stop order suspending
the effectiveness of the Registration Statement has been
issued, and no proceedings for that purpose have been
instituted or are pending or contemplated under the Act, and
the Registration Statement and the Prospectus, and each
amendment or supplement thereto, as of their respective
effective or issue dates, complied as to form in all material
respects with the requirements of
17
the Act, the Exchange Act, the Trust Indenture Act and the
Rules and Regulations; and
(xxvii) such counsel has examined the Registration
Statement and the Prospectus and nothing has come to such
counsel's attention that would lead such counsel to believe
that the Registration Statement (exclusive of any
Computational Materials or any financial, numerical and
statistical information contained therein or omitted
therefrom, as to which such counsel may make no statement), at
the time the Registration Statement became effective,
contained any untrue statement of a material fact or omitted
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, or
that the Prospectus (exclusive of any Computational Materials
or any financial, numerical and statistical information
contained therein or omitted therefrom, as to which such
counsel may make no statement), at the date thereof or at the
Closing Date, included or includes any untrue statement of a
material fact or omitted or omits 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.
Such counsel shall also state that such counsel has no reason to
believe that at the Execution Time the Prospectus contained an untrue statement
of a material fact or omitted 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 or that, at the Closing Date, the Prospectus includes
an untrue statement of a material fact or omits 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.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
Illinois, the State of New York, the State of Delaware or the United States, to
the extent such counsel deems proper and specifies in such opinion, upon the
opinion of other counsel of good standing whom such counsel believes to be
reliable and who are satisfactory to Counsel for the Underwriters and (B) as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Trust Depositor and public officials.
All references in this Section 8(c) to the Prospectus shall be deemed
to include any amendment or supplement thereto at the Closing Date.
(d) The Underwriters shall have received the opinion of
______________., General Counsel for Harley Credit, dated the
Closing Date and satisfactory in form and substance to the
Underwriters and to Counsel for the Underwriters, to the
effect that:
(i) Harley Credit is duly qualified to do business as
a foreign corporation and is in good standing under the laws
of each jurisdiction wherein it owns or leases material
properties or conducts material business and which requires
such qualification;
18
(ii) Harley Credit has obtained all material
licenses, permits and other governmental authorizations that
are necessary to the conduct of its business; such licenses,
permits and other governmental authorizations are in full
force and effect, and Harley Credit is in all material
respects complying therewith and Harley Credit is otherwise in
compliance with all laws, rules, regulations and statutes of
any jurisdiction to which it is subject, except where
non-compliance would not have a material adverse effect on
Harley Credit;
(iii) none of the execution and delivery of this
Agreement or the Transfer and Sale Agreement, the consummation
of any of the transactions therein contemplated or the
fulfillment of the terms thereof will conflict with, result in
a breach or violation of, or constitute a default under, any
law or the charter or bylaws of Harley Credit or the terms of
any indenture or other agreement or instrument known to such
counsel and to which Harley Credit or the Trust Depositor is a
party or by which it is bound or any judgment, order or decree
known to such counsel to be applicable to Harley Credit or the
Trust Depositor of any court, regulatory body, administrative
agency, governmental body, or arbitrator having jurisdiction
over Harley Credit or the Trust Depositor.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
Illinois or the United States, to the extent such counsel deems proper and
specifies in such opinion, upon the opinion of other counsel of good standing
whom such counsel believes to be reliable and who are satisfactory to Counsel
for the Underwriters and (B) as to matters of fact, to the extent such counsel
deems proper, on certificates of responsible officers of Harley Credit and
public officials.
(e) The Underwriters shall have received the opinion of
Winston & Strawn, counsel for Harley Credit, dated the Closing
Date and satisfactory in form and substance to the
Underwriters and to Counsel for the Underwriters, to the
effect that:
(i) Harley Credit has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Nevada, with full corporate power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) this Agreement has been duly authorized,
executed and delivered by Harley Credit;
(iii) the Sale and Servicing Agreement has been duly
authorized, executed and delivered by Harley Credit and
constitutes a legal, valid and binding obligation of Harley
Credit, enforceable against Harley Credit in accordance with
its terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium,
or other laws affecting creditors' rights generally from time
to time in effect);
19
(iv) the Transfer and Sale Agreement has been duly
authorized, executed and delivered by Harley Credit and
constitutes a legal, valid and binding obligation of Harley
Credit, enforceable against Harley Credit in accordance with
its terms (subject, as to the enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium,
or other laws affecting creditors' rights generally from time
to time in effect);
(v) no consent, approval, authorization or order of,
or filing with, any court or governmental agency or body is
required for the consummation of the transactions contemplated
herein or in any Basic Document, except such as may be
required under the blue sky or securities laws of any
jurisdiction in connection with the purchase and sale of the
Offered Securities by the Underwriters, the filing of the
UCC-1 financing statements relating to the conveyance of the
Contracts by Harley Credit to the Trust Depositor pursuant to
the Transfer and Sale Agreement and of the Contracts and other
Trust Property to the Trust and of the Contracts and other
Trust Property to the Indenture Trustee for the benefit of the
Noteholders pursuant to the Sale and Servicing Agreement, the
Trust Agreement and the Indenture, and such other approvals
(which shall be specified in such opinion) as have been
obtained and filings as have been made or are in the process
of being made; and
(vi) none of the execution and delivery of this
Agreement, the Sale and Servicing Agreement, the Transfer and
Sale Agreement, the consummation of any of the transactions
therein contemplated or the fulfillment of the terms thereof
will conflict with, result in a breach or violation of, or
constitute a default under, the charter or bylaws of Harley
Credit.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
New York, the State of Delaware, the State of Illinois or the United States, to
the extent such counsel deems proper and specifies in such opinion, upon the
opinion of other counsel of good standing whom such counsel believes to be
reliable and who are satisfactory to Counsel for the Underwriters and (B) as to
matters of fact, to the extent such counsel deems proper, on certificates of
responsible officers of Harley Credit and public officials.
All references in this Section 8(e) to the Prospectus shall be deemed
to include any amendment or supplement thereto at the Closing Date.
(f) The Underwriters shall have received an opinion addressed
to it of Winston & Strawn, in its capacity as federal tax
counsel for the Trust Depositor, to the effect that the
statements in the Prospectus under the headings "Summary --
Tax Status" and "Federal Income Tax Consequences" accurately
describe the material federal income tax consequences to
holders of the Offered Securities. Winston & Strawn, in its
capacity as special ERISA counsel to the Trust Depositor,
shall have delivered an opinion to the effect that the
statements in the Prospectus under the headings "Summary --
ERISA Considerations" and "ERISA Considerations", to the
extent that they constitute statements of matters
20
of law or legal conclusions with respect thereto, have
been prepared or reviewed by such counsel and accurately
describe the material consequences to holders of the
Offered Securities under ERISA.
(g) The Underwriters shall have received from Counsel for the
Underwriters such opinion or opinions, dated the Closing Date,
with respect to the issuance and sale of the Offered
Securities, the Prospectus (as amended or supplemented at the
Closing Date) and other related matters as the Underwriters
may reasonably require, and the Trust Depositor shall have
furnished to such counsel such documents as they request for
the purpose of enabling them to pass upon such matters.
(h) The Underwriters shall have received an opinion addressed
to the Underwriters, the Trust Depositor and the Servicer of
_____________________, counsel to the Owner Trustee and
special Delaware counsel for the Trust, dated the Closing Date
and satisfactory in form and substance to the Underwriters and
Counsel for the Underwriters, to the effect that:
(i) The Trust has been duly organized and is validly
existing in good standing as a "business trust" within the
meaning of the Delaware Business Trust Act, 12 Del. C. c.38.
(ii) The Trust Company is a Delaware banking
corporation, duly organized and validly existing in good
standing under the laws of the State of ___________ and has
all necessary power and authority to enter into, to deliver
and perform its obligations under the Trust Agreement and to
act as the Owner Trustee and to enter into, deliver and
perform its obligations as Owner Trustee under each of the
other Operative Documents to which the Trust or the Owner
Trustee, as the case may be, is a party.
(iii) The execution, delivery and performance by the
Trust of each of the Operative Documents to which it is a
party (i) has been duly authorized by the Trust Agreement, and
(ii) does not require the consent or approval of, or the
giving of notice to, the registration with, or the taking of
any other action in respect of any governmental authority or
agency of the United States federal government or the State of
Delaware regulating the banking and trust powers of the Trust
Company, other than the filing with the Secretary of State of
a certificate of trust pursuant to 12 Del.C. Section 3810,
which filing has been made. Upon the due execution and
delivery of the Trust Agreement by the Trust Company, the
Trust Agreement duly authorizes the Trust Company, acting
alone, to execute and deliver, on behalf of the Trust, each of
the Operative Documents.
(iv) The Trust Agreement and each other Operative
Document to which the Trust is a party have been duly
authorized, executed and delivered by the Trust, and the Trust
Agreement and each such other Operative Document to the extent
entered into by the Trust constitutes a legal, valid and
binding obligation of the Trust, enforceable against the Trust
in accordance with the terms thereof. The
21
Trust Agreement constitutes the legal, valid and binding
obligation of the Trust Company enforceable against the
Trust Company in accordance with its terms.
(v) To the knowledge of such counsel, no litigation,
investigation or proceeding of or before any arbitrator,
court, tribunal or governmental authority is pending or
threatened by or against the Trust or the Trust Company (a)
with respect to any of the Operative Documents or any of the
transactions contemplated thereby, or (b) which if determined
adversely against the Trust or the Trust Company, as the case
may be, individually or in the aggregate, would materially and
adversely affect the Trust Estate or the validity of, or the
right, power or authority of the Trust to enter into or
perform its obligations under, the Operative Documents.
(vi) To the knowledge of such counsel, there exist no
liens affecting the interests of the Trust in and to the Trust
Estate resulting from acts or omissions to act of or claims
against the Trust, except liens created by the Operative
Documents.
(vii) Neither the execution and delivery by the Trust
Company or the Trust, as the case may be, of the Operative
Documents, nor the fulfillment of or compliance by the Trust
Company or the Trust, as the case may be, with the respective
provisions thereof, conflicts with, or results in a breach of
the terms, conditions or provisions of, or constitutes a
default under, or results in a violation of, the charter or
by-laws of the Trust Company, any law of the State of Delaware
or any federal law of the United States of America governing
the banking and trust powers of the Trust Company or, to the
best knowledge of such counsel, any agreement, indenture,
instrument, order, judgment or decree to which the Trust
Company, the Trust or any of their respective properties is
subject.
(viii) Insofar as Article 9 of the Uniform Commercial
Code as in effect in the State of Delaware (the "UCC") is
applicable (without regard to conflict of laws principles),
and assuming that the security interest in Harley Credit's
rights in the Contracts and the proceeds thereof that may be
perfected under the UCC solely by the filing of a financing
statement with the Secretary of State (the "Harley Credit
Collateral"), has been duly created and has attached, upon the
filing of the Harley Credit Financing Statement with the
Secretary of State, the Trust Depositor will have a perfected
security interest in all right, title and interest of Harley
Credit in the Harley Credit Collateral identified in the
Harley Credit Financing Statement.
(ix) Insofar as Article 9 of the UCC is applicable
(without regard to conflict of laws principles), and assuming
that the security interest in the Trust Depositor's rights in
the Contracts and the proceeds thereof that may be perfected
under the UCC solely by the filing of a financing statement
with the Secretary of State (the "Trust Depositor
Collateral"), has been duly created and has attached, upon the
filing of the Trust Depositor Financing Statement with the
Secretary of State, the Trust will have a perfected security
interest in all right, title and interest
22
of the Trust Depositor in the Trust Depositor Collateral
identified in the Trust Depositor Financing Statement.
(x) Insofar as Article 9 of the UCC is applicable
(without regard to conflict of laws principles), and assuming
that the security interest in the Trust's rights in the
Contracts and the proceeds thereof that may be perfected under
the UCC solely by the filing of a financing statement with the
Secretary of State (the "Trust Collateral"), has been duly
created and has attached, upon the filing of the Trust
Financing Statement with the Secretary of State, the Indenture
Trustee will have a perfected security interest in all right,
title and interest of the Trust in the Trust Collateral
identified in the Trust Financing Statement.
(xi) Under 12 Del. C. Sections 3805(b), no creditor
of any Certificateholder (including creditors of the Trust
Depositor, as Certificateholder) shall have any right to
obtain possession of, or otherwise exercise legal or equitable
remedies with respect to, the property of the Trust.
(xii) the Certificates have been duly authorized,
executed and authenticated by the Owner Trustee on behalf of
the Trust and, when the Certificates have been issued and
delivered in accordance with the instructions of the Trust
Depositor, the Certificates will be validly issued and
entitled to the benefits of the Trust Agreement.
(i) The Underwriters shall have received an opinion addressed
to the Underwriters and the Trust Depositor of
____________________, counsel to ____________________________
(the "Bank"), dated the Closing Date and satisfactory in form
and substance to the Underwriters and Counsel for the
Underwriters, to the effect that:
(i) the Bank is a banking corporation duly
incorporated and validly existing under the laws of the State
of __________;
(ii) the Bank has the full corporate trust power to
accept the office of Indenture Trustee under the Indenture and
to enter into and perform its obligations under the Indenture
and the Sale and Servicing Agreement;
(iii) the execution and delivery of the Indenture,
the Sale and Servicing Agreement and the performance by the
Bank of its obligations under the Indenture and the Sale and
Servicing Agreement have been duly authorized by all necessary
corporate action of the Bank and each has been duly executed
and delivered by the Bank;
(iv) the Indenture and the Sale and Servicing
Agreement constitute valid and binding obligations of the Bank
enforceable against the Bank in accordance with their terms
under the laws of the State of _________ and the federal law
of the United States;
23
(v) the execution and delivery by the Bank of the
Indenture and the Sale and Servicing Agreement do not require
any consent, approval or authorization of, or any registration
or filing with, any ___________ or United States federal
governmental authority;
(vi) each of the Notes has been duly authenticated by
the Bank, as Indenture Trustee;
(vii) neither the consummation by the Bank of the
transactions contemplated in the Indenture or the Sale and
Servicing Agreement nor the fulfillment of the terms thereof
by the Bank will conflict with, result in a breach or
violation of, or constitute a default under, any law or the
charter, bylaws or other organizational documents of the Bank,
or the terms of any indenture or other agreement or instrument
known to such counsel and to which the Bank or any of its
subsidiaries is a party or by which it is bound, or any
judgment, order or decree known to such counsel to be
applicable to the Bank or any of its subsidiaries of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Bank or any of
its subsidiaries;
(viii) to the knowledge of such counsel there is no
action, suit or proceeding pending or threatened against the
Bank (as Indenture Trustee under the Indenture or in its
individual capacity) before or by any governmental authority
that, if adversely decided, would materially and adversely
affect the ability of the Bank to perform its obligations
under the Indenture or the Sale and Servicing Agreement; and
(ix) the execution and delivery by the Bank of, and
the performance by the Bank of its obligations under, the
Indenture and the Sale and Servicing Agreement will not
subject any of the property or assets of the Trust, or any
portion thereof, to any lien created by or arising under the
Bank that are unrelated to the transactions contemplated in
such Agreements.
(j) The Underwriters shall have received such opinions,
addressed to the Underwriters and dated the Closing Date, as
are delivered to the Rating Agencies.
(k) The Underwriters shall have received an opinion from
Winston & Strawn, counsel for the Trust Depositor, dated the
Closing Date and satisfactory in form and substance to the
Underwriters and Counsel for the Underwriters regarding 1) the
true-sale of the Contracts by Harley Credit to the Trust
Depositor and 2) the true-sale or first perfected security
interest by the Trust Depositor to the Trust and the
conveyance by the Trust of the Contracts and other Trust
Property to the Indenture Trustee for the benefit of the
Noteholders.
(l) The Underwriters shall have received an opinion from
Winston & Strawn, counsel for the Trust Depositor, dated the
Closing Date and satisfactory in form and substance to the
Underwriters and Counsel for the Underwriters regarding
substantive consolidation.
24
(m) The Underwriters shall have received a certificate dated
the Closing Date of any of the Chairman of the Board, the
President, the Executive Vice President, any Vice President,
the Treasurer, any Assistant Treasurer, the principal
financial officer or the principal accounting officer of the
Trust Depositor in which such officer shall state that, to the
best of his or her knowledge after reasonable investigation:
(i) the representations and warranties of the Trust
Depositor contained in this Agreement and the Basic Documents
are true and correct; the Trust Depositor has complied with
all agreements and satisfied all conditions on its part to be
performed or satisfied under such agreements at or prior to
the Closing Date;
(ii) since the date of the Prospectus, no material
adverse change, or any development involving a prospective
material adverse change, in or affecting particularly the
business or properties of the Trust Depositor has occurred;
and
(iii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are contemplated by
the Commission.
(n) The Underwriters shall have received a certificate dated
the Closing Date of any of the Chairman of the Board, the
President, the Executive Vice President, any Vice President,
the Treasurer, any Assistant Treasurer, the principal
financial officer or the principal accounting officer of
Harley Credit in which such officer shall state that, to the
best of his or her knowledge after reasonable investigation:
(i) the representations and warranties of Harley
Credit contained in this Agreement and the Basic Documents are
true and correct; Harley Credit has complied with all
agreements and satisfied all conditions on its part to be
performed or satisfied under such agreements at or prior to
the Closing Date;
(ii) since the date of the most recent financial
information included in the Prospectus, no material adverse
change, or any development involving a prospective material
adverse change, in or affecting particularly the business or
properties of Harley Credit has occurred; and
(iii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings
for that purpose have been instituted or are contemplated by
the Commission.
(o) The Underwriters shall have received evidence satisfactory
to it that, on or before the Closing Date, UCC-1 financing
statements have been or are being filed in the office of the
Secretary of State of the State of Nevada, the Secretary of
State of the State of Illinois reflecting the sale of the
Contracts by Harley Credit to the Trust Depositor and of the
Contracts and other Trust Property by the Trust Depositor to
the Trust and the conveyance by the Trust of the contracts and
other Trust Property to the Indenture Trustee for the benefit
of the Noteholders.
25
(p) At the Execution Time and at the Closing Date, Arthur
Andersen & Co. shall have furnished to the Underwriters a
letter or letters, dated respectively as of the Execution Time
and as of the Closing Date, substantially in the forms of the
drafts to which the Underwriters have previously agreed and
otherwise in form and substance satisfactory to the
Underwriters and to Counsel for the Underwriters.
(q) Subsequent to the Execution Time or, if earlier, the dates
as of which information is given in the Prospectus, there
shall not have been any change or any development involving a
prospective change in or affecting the business or properties
of Harley Credit or the Trust Depositor the effect of which
is, in the judgment of the Underwriters, so material and
adverse as to make it impractical or inadvisable to market the
Offered Securities as contemplated by the Prospectus.
(r) The Notes shall have been rated "Aaa" by Moody's and "AAA"
by S&P.
(s) The Certificates shall have been rated at least "___" by
Moody's and "____" by S&P.
(t) On or prior to the Closing Date, the Offered Securities
shall have been accepted for settlement through the facilities
of the Depository Trust Company.
(u) On the Closing Date, $___________ aggregate principal
amount of the Certificates shall have been issued and
delivered to the Trust Depositor.
(v) Prior to the Closing Date, the Trust Depositor shall have
furnished to the Underwriters such further information,
certificates and documents as the Underwriters may reasonably
request.
If any of the conditions specified in this Section 8 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Underwriters and Counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled at,
or at any time prior to, the Closing Date by the Underwriters. Notice of such
cancellation shall be given to the Trust Depositor in writing or by telephone or
telegraph confirmed in writing.
9. REIMBURSEMENT OF EXPENSES. If the sale of the Offered Securities
provided for herein is not consummated because any condition to the obligation
of the Underwriters set forth in Section 8 hereof is not satisfied, because of
any refusal, inability or failure on the part of Harley Credit or the Trust
Depositor to perform any agreement herein or to comply with any provision hereof
other than by reason of a default by the Underwriters in payment for the Offered
Securities on the Closing Date, Harley Credit and the Trust Depositor will
reimburse the Underwriters upon demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred by
it in connection with the proposed purchase and sale of the Offered Securities.
26
10. INDEMNIFICATION AND CONTRIBUTION. (a) The Trust Depositor and
Harley Credit, jointly and severally, agree to indemnify and hold harmless each
Underwriter, the directors, officers, employees and agents of each Underwriter
and each person who controls each Underwriter within the meaning of either the
Securities Act or the Exchange Act against any and all losses, claims, damages
or liabilities, joint or several, to which they or any of them may become
subject under the Securities Act, the Exchange Act or other federal or state
statutory law or regulation, at common law 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, Preliminary Prospectus Supplement,
the Prospectus or any information provided by the Trust Depositor or Harley
Credit to any holder or prospective purchaser of Offered Securities or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that the Trust Depositor and Harley Credit will not be liable in any such case
to the extent that any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement or omission or
alleged omission made (x) in the Preliminary Prospectus Supplement or the
Prospectus, or in any amendment thereof or supplement thereto, in reliance upon
and in conformity with written information furnished to Harley Credit by or on
behalf of the Underwriters through [_______________] specifically for inclusion
therein or (y) in any Derived Information (as defined in Section 11 below)
included by the Underwriters in any Computational Materials provided by the
Underwriters to Harley Credit or any amendment or supplement thereof unless such
untrue statement or alleged untrue statement or omission or alleged omission
made in any Derived Information results from an error or omission in any
Seller-Provided Information (as defined herein). This indemnity agreement will
be in addition to any liability that the Trust Depositor or Harley Credit may
otherwise have.
(b) Each Underwriter, severally and not jointly, agrees to indemnify
and hold harmless the Trust Depositor and Harley Credit, their directors, their
officers and each person who controls the Trust Depositor or Harley Credit
within the meaning of either the Securities Act or the Exchange Act, to the same
extent as the foregoing indemnity from the Trust Depositor and Harley Credit to
each Underwriter, but only with reference to (x) written information relating to
the Underwriters furnished to the Trust Depositor by the Underwriters through
[______________] specifically for inclusion in the Registration Statement, the
Preliminary Prospectus Supplement or the Prospectus (or in any amendment or
supplement thereto) or (y) any Derived Information included by such Underwriter
in any Computational Materials provided by such Underwriter to Harley Credit or
any amendment or supplement thereof; PROVIDED, HOWEVER that the indemnity with
respect to clause (y) above shall not apply to any untrue statement or alleged
untrue statement or omission or alleged omission made in any Derived Information
that results from an error or omission in any Seller-Provided Information. This
indemnity agreement will be in addition to any liability that an Underwriter may
otherwise have. For the purpose of clause (x) of this indemnity, the Trust
Depositor and Harley Credit acknowledge that the statements set forth in the
first sentence of the next to the last paragraph and in the last paragraph of
the cover page and under the heading "Plan of Distribution" in the
27
Preliminary Prospectus Supplement and the Prospectus constitute the only
information furnished in writing by or on behalf of the Underwriters through
[______________] for inclusion in the Registration Statement, the Preliminary
Prospectus Supplement or the Prospectus (or in any amendment or supplement
thereto).
(c) Upon receipt by an indemnified party under this Section 10 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 10, promptly notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
PROVIDED, HOWEVER, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified parties and the indemnifying party and the
indemnified parties shall have reasonably concluded that there may be legal
defenses available to them and/or other indemnified parties that are different
from or additional to those available to the indemnifying party, (iii) 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 the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the 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, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b) of
this Section 10 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Trust Depositor, Harley Credit and each
Underwriter agree to contribute to the aggregate losses, claims, damages and
liabilities (including legal or other expenses reasonably incurred in connection
with investigating or defending same) (collectively "Losses") to which the Trust
Depositor, Harley Credit and the several Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Trust Depositor and Harley Credit on the one hand and by the several
Underwriters on the other from the offering of the Offered Securities; PROVIDED,
HOWEVER, that in no case shall any Underwriter be responsible for any
28
amount in excess of the purchase discount or commission applicable to the
Offered Securities purchased by such Underwriter hereunder. If the allocation
provided by the immediately preceding sentence is unavailable for any reason,
the Trust Depositor, Harley Credit and each Underwriter shall contribute in
such proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Trust Depositor and Harley Credit on the
one hand and of the several Underwriters on the other in connection with the
statements or omissions that resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Trust Depositor
and Harley Credit shall be deemed to be equal to the total net proceeds from
the offering (before deducting expenses), and benefits received by any
Underwriter shall be deemed to be equal to the total purchase discounts and
commissions received by such Underwriter from the Trust Depositor in
connection with the purchase of the Offered Securities hereunder. Relative
fault shall be determined by reference to whether any alleged untrue
statement or omission relates to information provided by the Trust Depositor
and Harley Credit on the one hand or the several Underwriters on the other.
The Trust Depositor, Harley Credit and the several Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation that does not take account of
the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), 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. For purposes of this Section 10, each person
who controls any Underwriter within the meaning of either the Securities Act
or the Exchange Act and each director, officer, employee and agent of such
Underwriter shall have the same rights to contribution as such Underwriter,
and each person who controls the Trust Depositor or Harley Credit within the
meaning of either the Securities Act or the Exchange Act and each officer and
director of the Trust Depositor or Harley Credit shall have the same rights
to contribution as the Trust Depositor or Harley Credit, subject in each case
to the applicable terms and conditions of this paragraph (d).
11. COMPUTATIONAL MATERIALS. It is understood that the Underwriters may
provide to prospective investors certain Computational Materials and ABS Term
Sheets in connection with offering of the Offered Securities, subject to the
following conditions:
(a) Each Underwriter hereby agrees to comply with applicable
laws and regulations in connection with the use of Computational Materials,
including the No-Action Letter of May 20, 1994 issued by the Commission to
Kidder, Peabody Acceptance Corporation I, Kidder, Peabody & Co. Incorporated and
Kidder Structured Asset Corporation, as made applicable to other issuers and
underwriters by the Commission in response to the request of the Public
Securities Association dated May 24, 1994 (collectively, the "Kidder/PSA
Letter"), as well as the PSA Letter referred to below. Each Underwriter hereby
agrees to comply with applicable laws and regulations in connection with the use
of ABS Term Sheets, including the No Action Letter of February 17, 1995 issued
by the Commission to the Public Securities Association (the PSA Letter" and,
together with the Kidder/PSA Letter, the "No-Action Letters").
(b) For purposes hereof, "Computational Materials" as used
herein shall have the meaning given such term in the No-Action Letters, but
shall include only those Computational Materials that have been prepared or
delivered to prospective investors by or at
29
the direction of the Underwriters. For purposes hereof, "ABS Term Sheets" and
"Collateral Term Sheets" as used herein shall have the meanings given such
terms in the PSA Letter but shall include only those ABS Term Sheets or
Collateral Term Sheets that have been prepared or delivered to prospective
investors by or at the direction of the Underwriters.
(c) (i) All Computational Materials and ABS Term Sheets
provided to prospective investors that are required to be filed with the
Commission pursuant to the No-Action Letters shall bear a legend including the
following statement:
"THE INFORMATION HEREIN IS PRELIMINARY, AND WILL BE SUPERSEDED
BY THE APPLICABLE PROSPECTUS SUPPLEMENT AND BY ANY OTHER
INFORMATION SUBSEQUENTLY FILED WITH THE SECURITIES AND
EXCHANGE COMMISSION."
(ii) In the case of Collateral Term Sheets, such legend shall
also include the following statement:
"THE INFORMATION CONTAINED HEREIN WILL BE SUPERSEDED BY THE
DESCRIPTION OF THE ASSETS CONTAINED IN THE PROSPECTUS
SUPPLEMENT RELATING TO THE SECURITIES AND [EXCEPT WITH RESPECT
TO THE INITIAL COLLATERAL TERM SHEET] SUPERSEDES ALL
INFORMATION CONTAINED IN ANY COLLATERAL TERM SHEETS RELATING
TO THE COLLATERAL PREVIOUSLY PROVIDED BY [__________________]"
Harley Credit shall have the right to require additional specific legends or
notations to appear on any Computational Materials or ABS Term Sheets, the right
to require changes regarding the use of terminology and the right to determine
the types of information appearing therein. Notwithstanding the foregoing, this
subsection (c) will be satisfied if all Computational Materials and ABS Term
Sheets referred to therein bear a legend in a form previously approved in
writing by Harley Credit.
(d) The Underwriters shall provide Harley Credit with
representative forms of all Computational Materials and ABS Term Sheets prior to
their first use, to the extent such forms have not previously been approved by
Harley Credit for use by the Underwriters. The Underwriters shall provide to
Harley Credit, for filing on Form 8-K, copies (in such format as required by
Harley Credit) of all Computational Materials and ABS Term Sheets that are
required to be filed with the Commission pursuant to the No-Action Letters. The
Underwriters may provide copies of the foregoing in a consolidated or aggregated
form including all information required to be filed. All Computational Materials
and ABS Term Sheets described in this subsection (d) must be provided to Harley
Credit not later than 10:00 AM New York time one business day before filing
thereof is required pursuant to the terms of this Agreement. Each Underwriter
agrees that it will not provide to any investor or prospective investor in the
Notes or Certificates any Computational Materials or ABS Term Sheets on or after
the day on which Computational Materials and ABS Term Sheets are required to be
provided to Harley Credit pursuant to this Section 11(d) (other than copies of
Computational Materials or ABS Term Sheets previously submitted to Harley Credit
in accordance with this Section 11(d) for filing
30
with the Commission), unless such Computational Materials or ABS Term Sheets
are preceded or accompanied by the delivery of a Prospectus to such investor
or prospective investor.
(e) All information included in the Computational Materials
and ABS Term Sheets shall be generated based on substantially the same
methodology and assumptions that are used to generate the information in the
Prospectus Supplement as set forth therein; PROVIDED, HOWEVER, that the
Computational Materials and ABS Term Sheets may include information based on
alternative methodologies or assumptions if specified therein. If any
Computational Materials or ABS Term Sheets that are required to be filed were
based on assumptions with respect to the contracts included in the Trust that
differ from the final Pool Information in any material respect or on structuring
terms of the Offered Securities that were revised in any material respect prior
to the printing of the Prospectus, the Underwriters shall prepare revised
Computational Materials or ABS Term Sheets, as the case may be, based on the
final Pool Information and structuring assumptions, circulate such revised
Computational Materials and ABS Term Sheets to all recipients of the preliminary
versions thereof that indicated or subsequently indicate orally to the
Underwriters they will purchase all or any portion of the Offered Securities,
and include such revised Computational Materials and ABS Term Sheets (marked,
"as revised") in the materials delivered to Harley Credit pursuant to subsection
(d) above. As used herein, "Pool Information" means information with respect to
the characteristics of the contracts , as provide by or on behalf of Harley
Credit to the Underwriters in final form and set forth in the Prospectus
Supplement.
(f) Harley Credit shall not be obligated to file any
Computational Materials or ABS Term Sheets that have been determined to contain
any material error or omission; PROVIDED, HOWEVER, that, at the request of the
Underwriters, Harley Credit will file Computational Materials or ABS Term Sheets
that contain a material error or omission if clearly marked "superseded by
materials dated _____" and accompanied by corrected Computational Materials or
ABS Term Sheets that are marked, "material previously dated _____, as
corrected." In the event that, within the period during which the Prospectus is
required to be delivered under the Act, any Computational Materials or ABS Term
Sheets are determined, in the reasonable judgment of Harley Credit or the
Underwriters, to contain a material error or omission, the Underwriters shall
prepare a corrected version of such Computational Materials or ABS Term Sheets,
shall circulate such corrected Computational Materials and ABS Term Sheets to
all recipients of the prior versions thereof that either indicated orally to the
Underwriters they would purchase all or any portion of the Offered Securities,
or actually purchased all or any portion thereof, and shall deliver copies of
such corrected Computational Materials and ABS Term Sheets (marked, "as
corrected") to Harley Credit for filing with the Commission in a subsequent Form
8-K submission.
(g) Harley Credit and the Underwriters shall receive a letter
from Arthur Andersen & Co., certified public accountants, satisfactory in form
and substance to Harley Credit and the Underwriters, to the effect that such
accountants have performed certain specified procedures agreed to by Harley
Credit and the Underwriters, as a result of which they determined that the
specified information that is included in the Computational Materials and ABS
Term Sheets (if any) provided by the Underwriters to Harley Credit for filing on
Form 8-K as provided in this Section 11 has been accurately computed or compiled
from the Seller Provided Information.
31
(h) If the Underwriters do not provide any Computational
Materials or ABS Term Sheets to Harley Credit pursuant to subsection (d) above,
each Underwriter shall be deemed to have represented, as of the Closing Date,
that it did not provide any prospective investors with any information in
written or electronic form in connection with the offering of the Offered
Securities that is required to be filed with the Commission in accordance with
the No-Action Letters.
(i) In the event of any delay in the delivery by the
Underwriters to Harley Credit of all Computational Materials and ABS Term Sheets
required to be delivered in accordance with subsection (d) above, or in the
delivery of the accountant's comfort letter in respect thereof pursuant to
Section 11(g), Harley Credit shall have the right to delay the release of the
Prospectus to investors or to the Underwriters, to delay the Closing Date and to
take other appropriate actions in each case as necessary in order to allow
Harley Credit to comply with its obligation to file the Computational Materials
and ABS Term Sheets with the Commission.
(j) For purposes of this Agreement, as to the Underwriters,
the term "Derived Information" means such portion, if any, of the information
that:
(i) is delivered to Harley Credit by the Underwriters
pursuant to this Section 11 for filing with the Commission on
Form 8-K;
(ii) is not contained in the Prospectus without
taking into account information incorporated therein by
reference; and
(iii) does not constitute Seller-Provided
Information.
"Seller-Provided Information" means any computer tape concerning the assets
comprising the Trust and any other information with respect to the Offered
Securities or such assets furnished to the Underwriters by Harley Credit for use
as contemplated herein.
12. TERMINATION. This Agreement shall be subject to termination in the
absolute discretion of the Underwriters, by notice given to the Trust Depositor
prior to delivery of and payment for the Offered Securities, if prior to such
time (i) trading in securities generally on the New York Stock Exchange or the
Nasdaq Stock Market's National Market shall have been suspended or limited or
minimum prices shall have been established on either such exchange, (ii) a
banking moratorium shall have been declared either by federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the judgment of the Underwriters, impracticable or inadvisable to
proceed with the offering or delivery of the Offered Securities as contemplated
by the Prospectus.
13. NO BANKRUPTCY PETITION. Each Underwriter covenants and agrees that,
prior to the date which is one year and one day after the payment in full of all
securities issued by the Trust Depositor or by a trust for which the Trust
Depositor was the depositor, which securities were rated by any nationally
recognized statistical rating organization, it will not institute against, or
join any other Person in instituting against, the Trust Depositor any
bankruptcy, reorganization,
32
arrangement, insolvency or liquidation proceedings or other proceedings under
any federal or state bankruptcy or similar law.
14. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of the
Trust Depositor and Harley Credit and their respective officers and of the
several Underwriters set forth in or made pursuant to this Agreement will remain
in full force and effect, regardless of any investigation made by or on behalf
of any Underwriter, the Trust Depositor or Harley Credit or any of the officers,
directors or controlling persons referred to in Section 12 hereof, and will
survive delivery of and payment for the Offered Securities. The provisions of
Sections 9 and 10 hereof shall survive the termination or cancellation of this
Agreement.
15. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telegraphed and confirmed to them c/o [_______________]; or if sent
to the Trust Depositor, will be mailed, delivered or telegraphed and confirmed
to it at Harley-Davidson Customer Funding Corp., 4150 Technology Way, Carson
City, Nevada 89706, Attention: President; or if sent to Harley Credit, will be
mailed, delivered, telegraphed and confirmed to it at Harley-Davidson Credit
Corp., 4150 Technology Way, Carson City, Nevada 89706, Attention: President.
16. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 10 hereof, and,
except as expressly set forth herein, no other person will have any right or
obligation hereunder.
17. APPLICABLE LAW. This Agreement will be governed by and construed in
accordance with the laws of the State of New York.
18. BUSINESS DAY. For purposes of this Agreement, "business day" means
each Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
national banking associations in the cities of Chicago, Illinois or New York,
New York are authorized or obligated by law, executive order or regulation to
close.
19. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed to be an original, but all such
Counterparts will together constitute one and the same agreement.
33
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement and your acceptance shall represent a binding agreement among the
Trust Depositor, Harley Credit and the several Underwriters.
Very truly yours,
HARLEY-DAVIDSON CUSTOMER FUNDING
CORP.
By:
------------------------------
Name:
Title:
HARLEY-DAVIDSON CREDIT CORP.
By:
------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[ ]
-------------------
- ----------------------------------
By: [ ]
----------------------
By:
---------------------------
Name:
Title:
34
SCHEDULE I
HARLEY-DAVIDSON MOTORCYCLE TRUST [_____]
OFFERED SECURITY PRINCIPAL AMOUNT PRICE
CLASS A-1 NOTES
- ------------------------- $---------- -------%
CLASS A-2 NOTES
- ------------------------- $---------- -------%
CLASS B NOTES
- ------------------------- $---------- -------%
[CERTIFICATES
- ------------------------- $---------- -------%]
35