EXHIBIT 10.1
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FORM OF
TRANSFER AND SALE AGREEMENT
by and between
HARLEY-DAVIDSON CREDIT CORP.,
as Seller
and
HARLEY-DAVIDSON CUSTOMER FUNDING CORP.,
as Purchaser
Dated as of [____________]
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TABLE OF CONTENTS
ARTICLE I DEFINITION.............................................................................................1
SECTION 1.01. GENERAL.......................................................................................1
ARTICLE II TRANSFER OF CONTRACTS; ASSIGNMENT OF AGREEMENT.........................................................1
SECTION 2.01. CLOSING.......................................................................................1
SECTION 2.02. CONDITIONS TO THE CLOSING.....................................................................2
SECTION 2.03. ASSIGNMENT OF AGREEMENT.......................................................................3
SECTION 2.04. SUBSEQUENT CONTRACTS..........................................................................4
ARTICLE III REPRESENTATIONS AND WARRANTIES........................................................................5
SECTION 3.01. REPRESENTATIONS AND WARRANTIES REGARDING SELLER...............................................6
SECTION 3.02. REPRESENTATIONS AND WARRANTIES REGARDING EACH CONTRACT........................................7
SECTION 3.03. REPRESENTATIONS AND WARRANTIES REGARDING THE CONTRACTS IN THE AGGREGATE......................11
SECTION 3.04. REPRESENTATIONS AND WARRANTIES REGARDING THE CONTRACT FILES..................................12
ARTICLE IV PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS...........................................12
SECTION 4.01. CUSTODY OF CONTRACTS.........................................................................12
SECTION 4.02. FILING.......................................................................................13
SECTION 4.03. NAME CHANGE OR RELOCATION....................................................................13
SECTION 4.04. CHIEF EXECUTIVE OFFICE.......................................................................13
SECTION 4.05. COSTS AND EXPENSES...........................................................................13
SECTION 4.06. SALE TREATMENT...............................................................................13
ARTICLE V REMEDIES UPON MISREPRESENTATION........................................................................14
SECTION 5.01. REPURCHASES OF CONTRACTS FOR BREACH OF REPRESENTATIONS AND WARRANTIES........................14
SECTION 5.02. SELLER'S REPURCHASE OPTION...................................................................14
ARTICLE VI INDEMNITIES...........................................................................................15
SECTION 6.01. SELLER INDEMNIFICATION.......................................................................15
SECTION 6.02. LIABILITIES TO OBLIGORS......................................................................15
SECTION 6.03. TAX INDEMNIFICATION..........................................................................15
SECTION 6.04. OPERATION OF INDEMNITIES.....................................................................16
ARTICLE VII MISCELLANEOUS........................................................................................16
SECTION 7.01. PROHIBITED TRANSACTIONS WITH RESPECT TO THE TRUST............................................16
SECTION 7.02. MERGER OR CONSOLIDATION......................................................................16
SECTION 7.03. TERMINATION..................................................................................16
SECTION 7.04. ASSIGNMENT OR DELEGATION BY SELLER...........................................................17
SECTION 7.05. AMENDMENT....................................................................................17
SECTION 7.06. NOTICES......................................................................................18
SECTION 7.07. MERGER AND INTEGRATION.......................................................................19
SECTION 7.08. HEADINGS.....................................................................................19
SECTION 7.09. GOVERNING LAW................................................................................19
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EXHIBITS
Exhibit A Form of Assignment
Exhibit B Form of Officer's Certificate
Exhibit C Form of Subsequent Purchase Agreement
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THIS AGREEMENT, dated as of [____________], is made by and between
Harley-Davidson Credit Corp., a Nevada corporation, as seller hereunder
(together with its successors and assigns "HARLEY-DAVIDSON CREDIT" or "SELLER"),
and Harley-Davidson Customer Funding Corp., a Nevada corporation and
wholly-owned subsidiary of Seller (together with its successors and assigns
"TRUST DEPOSITOR"), as purchaser hereunder.
WHEREAS, in the regular course of its business, Seller purchases and
services motorcycle conditional sales contracts from Harley-Davidson motorcycle
retailers, each of which contracts provides for installment payment obligations
by or on behalf of the retailer's customer/purchaser and grants a security
interest in a motorcycle in order to secure such obligations;
WHEREAS, Seller and Trust Depositor wish to set forth the terms and
conditions pursuant to which Trust Depositor will acquire from time to time the
"CONTRACT ASSETS," as hereinafter defined; and
WHEREAS, Trust Depositor intends concurrently with its purchases from
time to time of Contract Assets hereunder to convey all right, title and
interest in such Contract Assets to Harley-Davidson Motorcycle Trust [_____]
(the "TRUST") pursuant to the Sale and Servicing Agreement dated as of
[____________] by and among Trust Depositor, Harley-Davidson Credit, as
Servicer, and Harley-Davidson Motorcycle Trust [_____], as issuer (the "ISSUER")
(as amended, supplemented or otherwise modified from time to time, the "SALE AND
SERVICING AGREEMENT"), executed concurrently herewith;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, Seller and Trust Depositor agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. GENERAL. Unless otherwise defined in this Agreement,
capitalized terms used herein (including in the preamble above) shall have
the meanings assigned to them in the Sale and Servicing Agreement.
ARTICLE II
TRANSFER OF CONTRACTS; ASSIGNMENT OF AGREEMENT
SECTION 2.01. CLOSING. Subject to and upon the terms and conditions
set forth in this Agreement, Seller hereby sells, transfers, assigns, sets
over and otherwise conveys to Trust Depositor, in consideration of Trust
Depositor's payment of [$____________] in cash as the purchase price
therefor, (i) all the right, title and interest of Seller in and to the
Initial Contracts listed on the initial List of Contracts in effect on the
Closing Date (including, without limitation, all security interests and all
rights to receive payments which are collected pursuant thereto on or
after the Initial Cutoff Date, including any liquidation proceeds therefrom,
but excluding any rights to receive payments which were collected pursuant
thereto prior to the Initial Cutoff Date), (ii) all rights of Seller under
any physical damage or other individual insurance policy (including a "FORCED
PLACED" policy, if any) relating to any such Contract, an Obligor or a
Motorcycle securing such Contract, (iii) all security interests in each such
Motorcycle, (iv) all documents contained in the related Contract Files, (v)
all rights of Seller in the Lockbox, Lockbox Account and related Lockbox
Agreement to the extent they relate to the Contracts, (vi) all rights (but
not the obligations) of the Seller under any motorcycle dealer agreements
between the dealers (i.e. the originators of the Contracts) and the Seller,
and (vii) all proceeds and products of the foregoing (items (i) - (vii),
together with the additional assets referred to in Section 2.04 below which
may be transferred from time to time in respect of Subsequent Contracts,
being collectively referred to herein as the "CONTRACT ASSETS"). Although
Seller and Trust Depositor agree that any such transfer is intended to be a
sale of ownership in the Contract Assets, rather than the mere granting of a
security interest to secure a borrowing, in the event such transfer is deemed
to be of a mere security interest to secure indebtedness, Seller shall be
deemed to have granted Trust Depositor a perfected first priority security
interest in such Contract Assets and this Agreement shall constitute a
security agreement under applicable law. If such transfer is deemed to be the
mere granting of a security interest to secure a borrowing, Trust Depositor
may, to secure Trust Depositor's own borrowing under the Sale and Servicing
Agreement (to the extent that the transfer of the Contract Assets thereunder
is deemed to be a mere granting of a security interest to secure a borrowing)
repledge and reassign (i) all or a portion of the Contract Assets pledged to
Trust Depositor and not released from the security interest of this Agreement
at the time of such pledge and assignment, and (ii) all proceeds thereof.
Such repledge and reassignment may be made by Trust Depositor with or without
a repledge and reassignment by Trust Depositor of its rights under this
Agreement, and without further notice to or acknowledgment from Seller.
Seller waives, to the extent permitted by applicable law, all claims, causes
of action and remedies, whether legal or equitable (including any right of
setoff), against Trust Depositor or any assignee of Trust Depositor relating
to such action by Trust Depositor in connection with the transactions
contemplated by the Sale and Servicing Agreement.
SECTION 2.02. CONDITIONS TO THE CLOSING. On or before the Closing
Date, Seller shall deliver or cause to be delivered to Trust Depositor each
of the documents, certificates and other items as follows:
(a) The initial List of Contracts, certified by the Chairman
of the Board, President or any Vice President of Seller together with
an Assignment substantially in the form attached as EXHIBIT A hereto.
(b) A certificate of an officer of Seller substantially in the
form of EXHIBIT B hereto.
(c) An opinion of counsel for Seller substantially in the form
of EXHIBIT D to the Sale and Servicing Agreement.
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(d) A letter or letters from Arthur Andersen LLP, or another
nationally recognized accounting firm, addressed to Trust Depositor and
the Issuer and the Trustees and stating that such firm has reviewed a
sample of the Initial Contracts and performed specific procedures for
such sample with respect to certain contract terms and identifying
those Initial Contracts which do not so conform.
(e) Copies of resolutions of the Board of Directors of Seller
or of the Executive Committee of the Board of Directors of Seller
approving the execution, delivery and performance of this Agreement and
the transactions contemplated hereunder, certified in each case by the
Secretary or an Assistant Secretary of Seller.
(f) Officially certified recent evidence of due incorporation
and good standing of Seller under the laws of Nevada.
(g) Evidence of proper filing with the appropriate offices in
Nevada and Illinois of UCC financing statements executed by Seller as
debtor/seller, naming Trust Depositor as secured party/purchaser and
the Owner Trust as assignee, and listing the Contract Assets as
collateral as well as evidence of proper filing with the appropriate
offices in Delaware of UCC Financing statements executed by the Issuer
as debtor, naming the Indenture Trustee, as assignee, and listing the
Contract Assets as collateral.
(h) An Officer's Certificate from Seller confirming that
Seller's compliance officer has reviewed the original of each Initial
Contract and each related Contract File, that each Initial Contract and
related Contract File conforms in all material respects with the
initial List of Contracts and each such Contract File is complete, that
each document required be an original, and that the face of each
original Initial Contract has been stamped with the following notation:
"This Contract/Note is subject to a security interest
granted to Harley-Davidson Motorcycle Trust [_____]. UCC-1
financing statements covering this Contract/Note have been
filed with the Secretary of State of the State of Nevada and
the Secretary of State of the State of Illinois. Such lien
will be released only in connection with appropriate filings
in such offices. Consequently, potential purchasers of this
Contract/Note must refer to such filings to determine whether
such lien has been released."
(i) The documents, certificates and other items described in
Section 2.02 of the Sale and Servicing Agreement, to the extent not
already described above.
SECTION 2.03. ASSIGNMENT OF AGREEMENT. Trust Depositor has the
right to assign its interest under this Agreement to the Issuer and Owner
Trustee as may be required to effect the purposes of the Sale and Servicing
Agreement, without further notice to, or consent of, Seller, and the Issuer
and the Trustees shall succeed to such of the rights of Trust Depositor
hereunder
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as shall be so assigned. Seller acknowledges that, pursuant to the Sale and
Servicing Agreement, the Trust Depositor will assign all of its right, title
and interest in and to the Contract Assets and all of its rights hereunder to
the Issuer and that the Issuer will pledge the Contract Assets and all of the
Depositor's rights hereunder to the Indenture Trustee for the benefit of the
Noteholders and Certificateholders. The Seller agrees that, upon such
assignment to the Issuer and the Indenture Trustee, such rights will run to
and be for the benefit of the Issuer and the Indenture Trustee and the Issuer
and the Indenture Trustee may enforce directly without joinder of the
Depositor, the obligations of the Seller set forth herein.
SECTION 2.04. SUBSEQUENT CONTRACTS. (a) Subject to and upon the
terms and conditions set forth in paragraph (b) below and in the related
Subsequent Purchase Agreement, Seller hereby agrees to sell, transfer,
assign, set over and otherwise convey to Trust Depositor, in consideration of
Trust Depositor's payment on the related Subsequent Transfer Date of the
purchase price therefor (as set forth in the related Subsequent Purchase
Agreement), and Trust Depositor hereby agrees to purchase, (i) all the right,
title and interest of Seller in and to the Subsequent Contracts listed on the
related Subsequent List of Contracts (including, without limitation, all
security interests and all rights to receive payments which are collected
pursuant thereto on or after the applicable Subsequent Cutoff Date, including
any liquidation proceeds therefrom, but excluding any rights to receive
payments which were collected pursuant thereto prior to such Subsequent
Cutoff Date), (ii) all rights of Seller under any physical damage or other
individual insurance policy (including a "FORCED PLACED" policy, if any)
relating to any such Contract, an Obligor or a Motorcycle securing such
Contract, (iii) all security interests in each such Motorcycle, (iv) all
documents contained in the related Contract Files, (v) all rights of Seller
in the Lockbox, Lockbox Account and related Lockbox Agreement to the extent
they relate to the Contracts, (vi) all rights (but not the obligations) of
the Seller under any motorcycle dealer agreements between the dealers (I.E.
the originators of such Subsequent Contracts) and the Seller, and (vii) all
proceeds and products of the foregoing (items (i) - (vii), upon consummation
of any above-described purchase, becoming part of the "CONTRACT ASSETS").
Seller agrees, subject to the terms and conditions herein applicable to
transfers of Subsequent Contracts, to sell an aggregate Principal Balance of
Subsequent Contracts at or prior to the end of the Funding Period equal to
the Pre-Funded Amount on the Closing Date.
(b) Seller shall transfer to Trust Depositor, and
Trust Depositor shall purchase, the Subsequent Contracts and related assets
to be transferred on any Subsequent Transfer Date only upon the satisfaction
of each of the following conditions on or prior to the Subsequent Transfer
Date:
(i) The Seller shall have provided the Trustees, the
Underwriters and the Rating Agencies with a timely Addition Notice and
shall have provided any information reasonably requested by any of the
foregoing with respect to the Subsequent Contracts;
(ii) the Funding Period shall not have terminated;
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(iii) the Seller shall have delivered to the Trust Depositor a
duly executed Purchase Agreement and Assignment in substantially the
form of EXHIBIT C hereto (the "SUBSEQUENT PURCHASE AGREEMENT"), which
shall include a Subsequent List of Contracts listing the Subsequent
Contracts being purchased;
(iv) as of each Subsequent Transfer Date, neither the Seller
nor the Trust Depositor was insolvent nor will either of them have been
made insolvent by such transfer nor is either of them aware of any
pending insolvency;
(v) each Rating Agency shall have notified the Trust Depositor
and the Trustees in writing that following such transfer, and the
transfer immediately thereafter of the Subsequent Contracts to the
Trust, the Class A-1 Notes and the Class A-2 Notes will be rated in the
highest rating category by such Rating Agency and the Class B Notes
will be rated at least "BBB" by Standard & Poor's and "BAA1" by
Moody's;
(vi) such addition will not result in a material adverse tax
consequence to the Issuer, the Noteholders as evidenced by an Opinion
of Counsel to be delivered by the Seller to the Issuer, the Trustees,
and the Underwriters;
(vii) the Seller shall have delivered to the Rating Agencies
and to the Underwriters one or more opinions of counsel with respect to
the transfer of the Subsequent Contracts substantially in the form of
the opinions of counsel delivered to such Persons on the Closing Date;
(viii) the Seller shall have taken any action necessary to
maintain the first perfected ownership interest of the Trust in the
Trust Corpus and the first perfected security interest of the Trust
Depositor in the Contract Assets, the Trust in the Trust Corpus and the
Indenture Trustee in the Reserve Fund Deposits; and
(ix) no selection procedures believed by the Seller to be
adverse to the interests of the Noteholders shall have been utilized in
selecting the Subsequent Contracts.
(c) Seller agrees to pay all reasonable out-of-pocket expenses in
connection with any request for the conveyance of Subsequent Contracts, whether
or not such conveyance is actually consummated.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Seller makes the following representations and warranties, on which
Trust Depositor will rely in purchasing the initial Contract Assets on the
Closing Date (and any Subsequent Contracts on the related Subsequent Transfer
Date) and concurrently reconveying the same to the Trust, and on which the
Trust, the Noteholders will rely under the Sale and Servicing Agreement. Such
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representations speak as of the execution and delivery of this Agreement and
as of the Closing Date in the case of the Initial Contracts, and as of the
applicable Subsequent Transfer Date in the case of Subsequent Contracts, but
shall survive the sale, transfer and assignment of the Contracts to the Trust
and the pledge of the Contracts to the Indenture Trustee. The repurchase
obligation of Seller set forth in Section 5.01 below and in Section 7.08 of
the Sale and Servicing Agreement constitutes the sole remedy available for a
breach of a representation or warranty of Seller set forth in Section 3.02,
3.03 or 3.04 of this Agreement.
SECTION 3.01. REPRESENTATIONS AND WARRANTIES REGARDING SELLER.
Seller represents and warrants, as of the execution and delivery of this
Agreement and as of the Closing Date, in the case of the Initial Contracts,
and as of the applicable Subsequent Transfer Date, in the case of Subsequent
Contracts, that:
(a) ORGANIZATION AND GOOD STANDING. Seller is a corporation
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization and has the corporate power to own
its assets and to transact the business in which it is currently
engaged. Seller is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the
character of the business transacted by it or properties owned or
leased by it requires such qualification and in which the failure so to
qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or otherwise) of Seller or
Trust Depositor. Seller is properly licensed in each jurisdiction to
the extent required by the laws of such jurisdiction to service the
Contracts in accordance with the terms of the Sale and Servicing
Agreement.
(b) AUTHORIZATION; BINDING OBLIGATION. Seller has the power
and authority to make, execute, deliver and perform this Agreement and
the other Transaction Documents to which the Seller is a party and all
of the transactions contemplated under this Agreement and the other
Transaction Documents to which the Seller is a party, and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement and the other Transaction Documents to
which the Seller is a party. This Agreement and the other Transaction
Documents to which the Seller is a party constitute the legal, valid
and binding obligation of Seller enforceable in accordance with their
terms, except as enforcement of such terms may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by the availability of equitable
remedies.
(c) NO CONSENT REQUIRED. Seller is not required to obtain the
consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any
governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement and the other Transaction Documents to which the Seller is a
party.
(d) NO VIOLATIONS. Seller's execution, delivery and
performance of this Agreement and the other Transaction Documents to
which the Seller is a party will not
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violate any provision of any existing law or regulation or any order
or decree of any court or the Articles of Incorporation or Bylaws of
Seller, or constitute a material breach of any mortgage, indenture,
contract or other agreement to which Seller is a party or by which
Seller or any of Seller's properties may be bound.
(e) LITIGATION. No litigation or administrative proceeding of
or before any court, tribunal or governmental body is currently
pending, or to the knowledge of Seller threatened, against Seller or
any of its properties or with respect to this Agreement or any other
Transaction Document to which the Seller is a party which, if adversely
determined, would in the opinion of Seller have a material adverse
effect on the business, properties, assets or condition (financial or
other) of Seller or the transactions contemplated by this Agreement or
any other Transaction Document to which the Seller is a party.
(f) PLACE OF BUSINESS; NO CHANGES. Seller's sole place of
business (within the meaning of Article 9 of the UCC) is as set forth
in Section 7.06 below. Seller has not changed its name whether by
amendment of its Articles of Incorporation, by reorganization or
otherwise, and has not changed the location of its place of business,
within the four months preceding the Closing Date.
(g) OPERATIONS. Approximately [_____]% of the aggregate
principal balance of contracts financed from time to time by the Seller
are secured by motorcycles manufactured by Buell.
SECTION 3.02. REPRESENTATIONS AND WARRANTIES REGARDING EACH CONTRACT.
Seller represents and warrants as to each Contract as of the execution and
delivery of this Agreement and as of the Closing Date, in the case of the
Initial Contracts, and as of the applicable Subsequent Transfer Date, in the
case of Subsequent Contracts, that:
(a) LIST OF CONTRACTS. The information set forth in the List
of Contracts (or Subsequent List of Contracts, in the case of
Subsequent Contracts) is true, complete and correct in all material
respects as of the Initial Cutoff Date or applicable Subsequent Cutoff
Date, as the case may be.
(b) PAYMENTS. As of the Initial Cutoff Date or applicable
Subsequent Cutoff Date, as the case may be, the most recent scheduled
payment with respect to any Contract either had been made or was not
delinquent for more than 30 days. To the best of Seller's knowledge,
all payments made on each Contract were made by the respective Obligor.
(c) NO WAIVERS. As of the Closing Date (or the applicable
Subsequent Transfer Date, in the case of Subsequent Contracts), the
terms of the Contracts have not been waived, altered or modified in any
respect, except by instruments or documents included in the related
Contract File.
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(d) BINDING OBLIGATION. Each Contract is the genuine, legal,
valid and binding obligation of the Obligor thereunder and is
enforceable in accordance with its terms, except as such enforceability
may be limited by insolvency, bankruptcy, moratorium, reorganization or
other similar laws affecting the enforcement of creditors' rights
generally.
(e) NO DEFENSES. No Contract is subject to any right of
rescission, setoff, counterclaim or defense, including the defense of
usury, and the operation of any of the terms of such Contract or the
exercise of any right thereunder will not render the Contract
unenforceable in whole or in part or subject to any right of
rescission, setoff, counterclaim or defense, including the defense of
usury, and no such right of rescission, setoff, counterclaim or defense
has been asserted with respect thereto.
(f) INSURANCE. As of the time of origination of the Contract,
the related Motorcycle securing each Contract is covered by physical
damage insurance (i) in an amount not less than the value of the
Motorcycle at the time of origination of the Contract, (ii) naming
Seller as a loss payee and (iii) insuring against loss and damage due
to fire, theft, transportation, collision and other risks covered by
comprehensive coverage, and all premiums due on such insurance have
been paid in full from the date of the Contract's origination.
(g) ORIGINATION. Each Contract was originated by a
Harley-Davidson motorcycle dealer in the regular course of its business
which dealer had all necessary licenses and permits to originate the
Contracts in the state where such dealer was located, was fully and
properly executed by the parties thereto, and has been purchased by
Seller in the regular course of its business. Each Contract was sold by
such motorcycle dealer to the Seller without any fraud or
misrepresentation on the part of such motorcycle dealer.
(h) LAWFUL ASSIGNMENT. No Contract was originated in or is
subject to the laws of any jurisdiction whose laws would make the sale,
transfer and assignment of the Contract under this Agreement or under
the Sale and Servicing Agreement or the pledge of the Contract under
the Indenture unlawful, void or voidable.
(i) COMPLIANCE WITH LAW. None of the Contracts, the
origination of the Contracts by the dealers, the purchase of the
Contracts by the Seller, the sale of the Contracts by the Seller to the
Trust Depositor or by the Trust Depositor to the Trust, or any
combination of the foregoing, violated as of the Closing Date or as of
any Subsequent Transfer Date, as applicable, any requirement of any
federal, state or local law and regulations thereunder, including,
without limitation, usury, truth in lending, motor vehicle installment
loan and equal credit opportunity laws, applicable to the Contracts and
the sale of Motorcycles. Seller shall, for at least the period of this
Agreement, maintain in its possession, available for the Trust
Depositor's and the
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Trustees' inspection, and shall deliver to Trust Depositor or the
Trustee upon demand, evidence of compliance with all such requirements.
(j) CONTRACT IN FORCE. As of the Closing Date (or the
applicable Subsequent Transfer Date in the case of Subsequent
Contracts), no Contract has been satisfied or subordinated in whole or
in part or rescinded, and the related Motorcycle securing any Contract
has not been released from the lien of the Contract in whole or in
part.
(k) VALID SECURITY INTEREST. Each Contract creates a valid,
subsisting and enforceable first priority perfected security interest
in favor of Seller in the Motorcycle covered thereby, and such security
interest has been assigned by Seller to the Trust Depositor. The
original certificate of title, certificate of lien or other
notification (the "LIEN CERTIFICATE") issued by the body responsible
for the registration of, and the issuance of certificates of title
relating to, motor vehicles and liens thereon (the "REGISTRAR OF
TITLES") of the applicable state to a secured party which indicates the
lien of the secured party on the Motorcycle is recorded on the original
certificate of title, and the original certificate of title for each
Motorcycle, show, or if a new or replacement Lien Certificate is being
applied for with respect to such Motorcycle the Lien Certificate will
be received within 180 days of the Closing Date (or the applicable
Subsequent Transfer Date in the case of Subsequent Contracts) and will
show, the Seller as original secured party under each Contract as the
holder of a first priority security interest in such Motorcycle. With
respect to each Contract for which the Lien Certificate has not yet
been returned from the Registrar of Titles, the Seller has received
written evidence from the related dealer that such Lien Certificate
showing the Seller as lienholder has been applied for. The Seller's
security interest has been validly assigned by the Seller to the Trust
Depositor and by the Trust Depositor to the Issuer and Owner Trustee
pursuant to this Agreement. Immediately after the sale, each Contract
will be secured by an enforceable and perfected first priority security
interest in the Motorcycle in favor of the Trust as secured party,
which security interest is prior to all other liens upon and security
interests in such Motorcycle which now exist or may hereafter arise or
be created (except, as to priority, for any lien for taxes, labor,
materials or of any state law enforcement agency affecting a
Motorcycle).
(l) CAPACITY OF PARTIES. All parties to any Contract had
capacity to execute such Contract and all other documents related
thereto and to grant the security interest purported to be granted
thereby.
(m) GOOD TITLE. Each Contract was purchased by Seller for
value and taken into possession prior to the Cutoff Date (or the
applicable Subsequent Cutoff Date in the case of Subsequent Contracts)
in the ordinary course of its business, without knowledge that the
Contract was subject to a security interest. No Contract has been sold,
assigned or pledged to any person other than Trust Depositor and the
Trustee as the transferee of Trust Depositor, and prior to the transfer
of the Contract to Trust Depositor, Seller had good and marketable
title to each Contract free and clear of any encumbrance, equity,
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loan, pledge, charge, claim or security interest and was the sole owner
thereof and had full right to transfer the Contract to Trust Depositor
and to permit Trust Depositor to transfer the same to the Issuer and
the Owner Trustee, and, as of the Closing Date (or the applicable
Subsequent Transfer Date in the case of Subsequent Contracts), the
Issuer and the Owner Trustee will have a first priority perfected
security interest therein.
(n) NO DEFAULTS. As of the Initial Cutoff Date (or the
applicable Subsequent Cutoff Date in the case of Subsequent Contracts),
no default, breach, violation or event permitting acceleration existed
with respect to any Contract and no event had occurred which, with
notice and the expiration of any grace or cure period, would constitute
such a default, breach, violation or event permitting acceleration
under such Contract. Seller has not waived any such default, breach,
violation or event permitting acceleration. As of the Initial Cutoff
Date (or the applicable Subsequent Cutoff Date in the case of
Subsequent Contracts), no Motorcycle had been repossessed.
(o) NO LIENS. As of the Closing Date (or the applicable
Subsequent Transfer Date in the case of Subsequent Contracts) there
are, to the best of Seller's knowledge, no liens or claims which have
been filed for work, labor or materials affecting the Motorcycle
securing any Contract which are or may be liens prior to, or equal
with, the lien of such Contract.
(p) INSTALLMENTS. Each Contract has a fixed Contract Rate and
provides for monthly payments of principal and interest which, if
timely made, would fully amortize the loan on a simple-interest basis
over its term.
(q) ENFORCEABILITY. Each Contract contains customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the collateral of
the benefits of the security.
(r) ONE ORIGINAL. Each Contract is evidenced by only one
original executed Contract, which original is being held by the
Servicer as custodian.
(s) NO GOVERNMENT CONTRACTS. No Obligor is the United States
government or an agency, authority, instrumentality or other political
subdivision of the United States government.
(t) LOCKBOX BANK. The Lockbox Bank is the only institution
holding any Lockbox Account for receipt of payments from Obligors, and
all Obligors, and only such Obligors, have been instructed to make
payments to the Lockbox Account, and no person claiming through or
under Seller has any claim or interest in the Lockbox Account other
than the Lockbox Bank; PROVIDED, HOWEVER, that other "Trusts" (as
defined in the Lockbox Agreement) shall have an interest in certain
other collections therein not related to the Contracts.
10
(u) OBLIGOR BANKRUPTCY. At the Cutoff Date (or the applicable
Subsequent Cutoff Date in the case of Subsequent Contracts), no Obligor
was subject to a bankruptcy proceeding.
(v) CHATTEL PAPER. The Contracts constitute chattel paper
within the meaning of the UCC as in effect in the States of Nevada and
Illinois.
(w) NO IMPAIRMENT. Neither the Seller nor the Trust Depositor
has done anything to convey any right to any Person that would result
in such Person having a right to payments due under the Contract or
otherwise to impair the rights of the Trust in any Contract or the
proceeds thereof.
(x) CONTRACT NOT ASSUMABLE. No Contract is assumable by
another Person in a manner which would release the Obligor thereof from
such Obligor's obligations to the Trust Depositor with respect to such
Contract.
SECTION 3.03. REPRESENTATIONS AND WARRANTIES REGARDING THE CONTRACTS
IN THE AGGREGATE. Seller represents and warrants, as of the execution and
delivery of this Agreement and as of the Closing Date, in the case of the
Initial Contracts, and as of the applicable Subsequent Transfer Date, in the
case of Subsequent Contracts, that:
(a) AMOUNTS. The sum of the aggregate Principal Balances
payable by Obligors under the Contracts as of the Initial Cutoff Date
(or the applicable Subsequent Cutoff Date in the case of Subsequent
Contracts), plus the Pre-Funded Amount as of such date, equals the sum
of the principal balance of the Notes [and Certificates] on the Closing
Date or the related Subsequent Transfer Date, as applicable.
(b) CHARACTERISTICS. The Initial Contracts have the following
characteristics: (i) all the Contracts are secured by Motorcycles; (ii)
no Initial Contract has a remaining maturity of more than [____]
months; and (iii) the final scheduled payment on the Initial Contract
with the latest maturity is due no later than [_________].
Approximately [____]% of the Principal Balance of the Initial Contracts
as of the Initial Cutoff Date is attributable to loans for purchases of
new Motorcycles and approximately [______]% is attributable to loans
for purchases of used Motorcycles. No Initial Contract was originated
after the Initial Cutoff Date. No Initial Contract has a Contract Rate
less than [______]%. The first scheduled payment date of the Contracts
(including any Subsequent Contracts) is due no later than
[____________].
(c) MARKING RECORDS. As of the Closing Date (or the applicable
Subsequent Transfer Date in the case of Subsequent Contracts), Seller
has caused the Computer Disk relating to the Contracts sold hereunder
and concurrently reconveyed by Trust Depositor to the Trust and pledged
by the Trust to the Indenture Trustee to be clearly and unambiguously
marked to indicate that such Contracts constitute part of the Trust
Corpus, are owned by the Trust and constitute security for the Notes.
11
(d) NO ADVERSE SELECTION. No selection procedures adverse to
Noteholders have been employed in selecting the Contracts.
(e) TRUE SALE. The transaction contemplated by this Agreement
constitutes a valid sale, transfer and assignment from Seller to Trust
Depositor and from Trust Depositor to the Trust of all of Seller's
right, title and interest in the Contract Assets as of the Closing Date
and any Subsequent Transfer Date, as applicable.
(f) ALL FILINGS MADE. All filings (including, without
limitation, UCC filings) required to be made by any Person and actions
required to be taken or performed by any Person in any jurisdiction to
give the Trustee a first priority perfected lien on, or ownership
interest in, the Contracts and the proceeds thereof and the rest of the
Trust Corpus have been made, taken or performed.
(g) DELTA LOANS. No more than [______]% of the Principal
Balance of the Contracts as of the end of the Funding Period is
attributable to Delta Loans.
SECTION 3.04. REPRESENTATIONS AND WARRANTIES REGARDING THE CONTRACT
FILES. Seller represents and warrants as of the execution and delivery of
this Agreement and as of the Closing Date, in the case of the Initial
Contracts, and as of the applicable Subsequent Transfer Date, in the case of
Subsequent Contracts, that:
(a) POSSESSION. Immediately prior to the Closing Date or any
Subsequent Transfer Date, the Servicer will have possession of each
original Contract and the related complete Contract File, and there are
and there will be no custodial agreements relating to the same in
effect. Each of such documents which is required to be signed by the
Obligor has been signed by the Obligor in the appropriate spaces. All
blanks on any form have been properly filled in and each form has
otherwise been correctly prepared. The complete Contract File for each
Contract currently is in the possession of the Servicer.
(b) BULK TRANSFER LAWS. The transfer, assignment and
conveyance of the Contracts and the Contract Files by Seller pursuant
to this Agreement or any Subsequent Purchase Agreement and by Trust
Depositor pursuant to the Sale and Servicing Agreement is not subject
to the bulk transfer or any similar statutory provisions in effect in
any applicable jurisdiction.
ARTICLE IV
PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS
SECTION 4.01. CUSTODY OF CONTRACTS. Subject to the terms and
conditions of this Section 4.01, the contents of each Contract File shall be
held in the custody of Seller in its capacity as Servicer for the benefit of
the Owner Trustee as the owner thereof. Seller agrees to comply with all its
obligations under the Sale and Servicing Agreement in respect of the Contract
Assets,
12
which agreement it is executing concurrently herewith in its capacity as
Servicer thereunder, and acknowledges and consents to the transactions
contemplated therein.
SECTION 4.02. FILING. On or prior to the Closing Date and each
Subsequent Transfer Date, Seller shall cause the UCC financing statement(s)
referred to in Section 2.02(g) hereof and in Section 2.02(g) of the Sale and
Servicing Agreement to be filed and from time to time Seller shall take and
cause to be taken such actions and execute such documents as are necessary or
desirable or as Trust Depositor or the Owner Trustee may reasonably request
to perfect and protect the Owner Trustee's ownership interest in the Contract
Assets against all other persons, including, without limitation, the filing
of financing statements, amendments thereto and continuation statements, the
execution of transfer instruments and the making of notations on or taking
possession of all records or documents of title.
SECTION 4.03. NAME CHANGE OR RELOCATION. (a) During the term of
this Agreement, Seller shall not change its name, identity or structure or
relocate its chief executive office without first giving at least 30 days'
prior written notice to Trust Depositor and to the Trustees.
(b) If any change in Seller's name, identity or structure or other
action would make any financing or continuation statement or notice of
ownership interest or lien filed under this Agreement seriously misleading
within the meaning of applicable provisions of the UCC or any title statute,
Seller, no later than five (5) days after the effective date of such change,
shall file such amendments as may be required to preserve and protect the
Trustees' interests in the Contract Assets and proceeds thereof. In addition,
Seller shall not change its place of business or its chief executive office
(within the meaning of Article 9 of the UCC) from the location specified in
Section 7.06 below unless it has first taken such action as is advisable or
necessary to preserve and protect the Issuer's and Trustees' interest in the
Contract Assets. Promptly after taking any of the foregoing actions, Seller
shall deliver to Trust Depositor and the Trustees an opinion of counsel
stating that, in the opinion of such counsel, all financing statements or
amendments necessary to preserve and protect the interests of the Trustees in
the Contract Assets have been filed, and reciting the details of such filing.
SECTION 4.04. CHIEF EXECUTIVE OFFICE. During the term of this
Agreement, Seller will maintain its chief executive office in one of the
States of the United States, except Louisiana, Tennessee, Colorado, Kansas,
New Mexico, Oklahoma, Utah or Wyoming.
SECTION 4.05. COSTS AND EXPENSES. Seller agrees to pay all
reasonable costs and disbursements in connection with the perfection and the
maintenance of perfection, as against all third parties, of (i) Trust
Depositor's and the Trustees' right, title and interest in and to the
Contract Assets (including, without limitation, the security interest in the
Motorcycles related thereto) and (ii) the security interests provided for in
the Indenture.
SECTION 4.06. SALE TREATMENT. Each of Seller and Trust Depositor
shall treat the transfer of Contract Assets made hereunder (including in
respect of Subsequent Contracts) for all
13
purposes (including tax and financial accounting purposes) as a sale and
purchase on all of its relevant books, records, financial statements and
other applicable documents.
ARTICLE V
REMEDIES UPON MISREPRESENTATION
SECTION 5.01. REPURCHASES OF CONTRACTS FOR BREACH OF
REPRESENTATIONS AND WARRANTIES. Seller hereby agrees, for the benefit of the
Trustees and the Trust Depositor, that it shall repurchase a Contract
including any Subsequent Contracts (together with all related Contract
Assets), at its Repurchase Price, not later than two Business Days prior to
the first Determination Date after Seller becomes aware, or should have
become aware, or receives written notice from Trust Depositor, either of the
Trustees or the Servicer of any breach of a representation or warranty of
Seller set forth in Article III of this Agreement that materially adversely
affects Trust Depositor's or the Trust's interest in such Contract (without
regard to the benefits of the Reserve Fund) and which breach has not been
cured; PROVIDED, HOWEVER, that with respect to any Contract incorrectly
described on the List of Contracts with respect to unpaid Principal Balance
which Seller would otherwise be required to repurchase pursuant to this
Section 5.01 and Section 7.08 of the Sale and Servicing Agreement, Seller
may, in lieu of repurchasing such Contract, deposit in the Collection Account
not later than two Business Days prior to such Determination Date cash in an
amount sufficient to cure such deficiency or discrepancy; and PROVIDED
FURTHER that with respect to a breach of a representation or warranty
relating to the Contracts in the aggregate and not to any particular
Contract, Seller may select Contracts (without adverse selection) to
repurchase such that had such Contracts not been reconveyed by Trust
Depositor and included as part of the Trust there would have been no breach
of such representation or warranty; PROVIDED FURTHER that (a) the failure of
a Contract File to be complete or of the original certificate of title and
evidence of recordation of such certificate to be included in the Contract
File as of 180 days after the Closing Date (or Subsequent Transfer Date, in
the case of Subsequent Contracts), or (b) the failure to maintain perfection
of the security interest in the Motorcycle securing a Contract in accordance
with the Sale and Servicing Agreement, shall be deemed to be a breach
materially and adversely affecting the Trust's interest in the Contracts or
in the related Contract Assets. Notwithstanding any other provision of this
Agreement, the obligation of Seller under this Section 5.01 and under Section
7.08 of the Sale and Servicing Agreement shall not terminate upon a Service
Transfer pursuant to Article VIII of the Sale and Servicing Agreement.
SECTION 5.02. SELLER'S REPURCHASE OPTION. On written notice to the
Owner Trustee and the Indenture Trustee at least twenty (20) days prior to a
Distribution Date, provided the sum of (i) the aggregate unpaid principal
balances of the Class A-1 Notes, the Class A-2 Notes and the Class B Notes
and (ii) the Certificate Balance on such Distribution Date is less than 10%
of the Aggregate Principal Balance as of the Cutoff Date, the Seller may (but
is not required to) repurchase from the Issuer on that Distribution Date all
outstanding Contracts (and related Contract Assets) at a price equal to the
sum of (i) the aggregate unpaid principal balances of the Class A-1 Notes,
the Class A-2 Notes and the Class B Notes and (ii) the Certificate Balance as
of that Distribution Date plus the aggregate of the Note Interest
Distributable Amount and the
14
Certificate Interest Distributable Amount for the current Distribution Date
as well as any unreimbursed Servicer Advances and the accrued and unpaid
Monthly Servicing Fee and Indenture Trustee Fees to the date of such
repurchase; provided the Seller is in receipt of a valuation letter by the
Seller's financial advisor that the Seller's repurchase is for fair and
adequate consideration. Such price will be deposited in the Collection
Account not later than one Business Day before such Distribution Date,
against the Trustees' release of the Contracts and Contract Files as
described in Section 7.10 of the Sale and Servicing Agreement.
ARTICLE VI
INDEMNITIES
SECTION 6.01. SELLER INDEMNIFICATION. Seller will defend and
indemnify Trust Depositor, the Trust, the Trustees, any agents of the
Trustees and the Securityholders against any and all costs, expenses, losses,
damages, claims and liabilities, joint or several, including reasonable fees
and expenses of counsel and expenses of litigation arising out of or
resulting from (i) this Agreement or the use, ownership or operation of any
Motorcycle by Seller or the Servicer or any Affiliate of either and (ii) any
representation or warranty or covenant made by Seller in this Agreement being
untrue or incorrect (subject to the second sentence of the preamble to
Article III of this Agreement above). Notwithstanding any other provision of
this Agreement, the obligation of Seller under this Section 6.01 shall not
terminate upon a Service Transfer pursuant to Article VIII of the Sale and
Servicing Agreement and shall survive any termination of that agreement or
this Agreement.
SECTION 6.02. LIABILITIES TO OBLIGORS. No obligation or liability
to any Obligor under any of the Contracts is intended to be assumed by the
Trustees, the Trust, the Securityholders under or as a result of this
Agreement and the transactions contemplated hereby.
SECTION 6.03. TAX INDEMNIFICATION. Seller agrees to pay, and to
indemnify, defend and hold harmless the Trust Depositor, the Trust, the
Trustees, the Securityholders from, any taxes which may at any time be
asserted with respect to, and as of the date of, the transfer of the
Contracts to Trust Depositor hereunder and the concurrent reconveyance to the
Trust and the further pledge by the Trust to the Indenture Trustee,
including, without limitation, any sales, gross receipts, general
corporation, personal property, privilege or license taxes (but not including
any federal, state or other taxes arising out of the creation of the Trust
and the issuance of the Notes and Certificates) and costs, expenses and
reasonable counsel fees in defending against the same, whether arising by
reason of the acts to be performed by Seller under this Agreement or the
Servicer under the Sale and Servicing Agreement or imposed against the Trust,
a Noteholder, a Certificateholder or otherwise. Notwithstanding any other
provision of this Agreement, the obligation of Seller under this Section 6.03
shall not terminate upon a Service Transfer pursuant to Article VIII of the
Sale and Servicing Agreement and shall survive any termination of this
Agreement.
15
SECTION 6.04. OPERATION OF INDEMNITIES. Indemnification under this
Article VI shall include, without limitation, reasonable fees and expenses of
counsel and expenses of litigation. If Seller has made any indemnity payments
to Trust Depositor or the Trustees pursuant to this Article VI and Trust
Depositor or the Trustees thereafter collects any of such amounts from
others, Trust Depositor or the Trustees will repay such amounts collected to
Seller, except that any payments received by Trust Depositor or the Trustees
from an insurance provider as a result of the events under which the Seller's
indemnity payments arose shall be repaid prior to any repayment of the
Seller's indemnity payment.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. PROHIBITED TRANSACTIONS WITH RESPECT TO THE TRUST.
Seller shall not:
(a) Provide credit to any Noteholder or Certificateholder for
the purpose of enabling such Noteholder or Certificateholder to
purchase Notes or Certificates, respectibely;
(b) Purchase any Notes or Certificates in an agency or trustee
capacity; or
(c) Except in its capacity as Servicer as provided in the Sale
and Servicing Agreement, lend any money to the Trust.
SECTION 7.02. MERGER OR CONSOLIDATION. (a) Except as otherwise
provided in this Section 7.02, Seller will keep in full force and effect its
existence, rights and franchises as a Nevada corporation, and will obtain and
preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect
the validity and enforceability of this Agreement and of any of the Contracts
and to perform its duties under this Agreement.
(b) Any person into which Seller may be merged or consolidated, or
any corporation or other entity resulting from such merger or consolidation
to which Seller is a party, or any person succeeding to the business of
Seller, shall be the successor to Seller hereunder, without the execution or
filing of any paper or any further act on the part of any of the parties
hereto, anything herein to the contrary notwithstanding.
(c) Upon the merger or consolidation of the Seller as described in
this Section 7.02, the Seller shall provide Standard & Poor's and Moody's
notice of such merger or consolidation within thirty (30) days after
completion of the same.
SECTION 7.03. TERMINATION. This Agreement shall terminate (after
distribution of any Note Distributable Amount and Certificate Distributable
Amount due pursuant to Section 7.05 of the Sale and Servicing Agreement) on
the Distribution Date on which the principal balance of
16
the Notes and the Certificate Balance is reduced to zero; PROVIDED, that
Seller's representations and warranties and indemnities by Seller shall
survive termination.
SECTION 7.04. ASSIGNMENT OR DELEGATION BY SELLER. Except as
specifically authorized hereunder, Seller may not convey and assign or
delegate any of its rights or obligations hereunder absent the prior written
consent of Trust Depositor and the Trustees, and any attempt to do so without
such consent shall be void.
SECTION 7.05. AMENDMENT. (a) This Agreement may be amended from
time to time by Seller and Trust Depositor, with notice to the Rating
Agencies, but without the consent of the Trustees or any of the
Securityholders, to correct manifest error, to cure any ambiguity, to correct
or supplement any provisions herein or therein which may be ambiguous or
inconsistent with any other provisions herein or therein, as the case may be,
or to add any other provisions with respect to matters or questions arising
under this Agreement which shall not be inconsistent with the provisions of
this Agreement; PROVIDED, HOWEVER, that such action shall not, as evidenced
by an Opinion of Counsel, materially and adversely affect the interests of
any Securityholder.
(b) This Agreement may also be amended from time to time by the
Seller and the Depositor, with the consent of Noteholders of more than 50% of
the aggregate principal amount of the Class A-1 Notes and Class A-2 Notes, or
if there are no Class A-1 Notes or Class A-2 Notes outstanding, with the
consent of Noteholders of more than 50% of the aggregate principal amount of
the Class B Notes [or, if there are no Notes outstanding, the consent of
Certificateholders of more than 50% of the Certificate Balance,] for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Agreement or of modifying in any manner the
rights of the Noteholders or Certificateholders; PROVIDED, HOWEVER, that no
such amendment or waiver shall (x) reduce in any manner the amount of, or
accelerate or delay the timing of, collections of payments on the Contracts
or distributions which are required to be made on any Note or Certificate,
(y) change the interest rate on any Notes or Certificates which such change
adversely affects the priority of payment of principal or interest made to
the Noteholders or Certificateholders or (z) increase or reduce the aforesaid
percentage required to consent to any such amendment, without the consent of
the Noteholders and Certificateholders then outstanding; and PROVIDED,
FURTHER, that no such amendment or consent shall be effective unless each
Rating Agency delivers written confirmation that such amendment or consent
will not cause its then-current rating on any Class of Notes or the
Certificates to be qualified, reduced or withdrawn.
(c) Promptly after the execution of any amendment or consent
pursuant to this Section 7.05, Trust Depositor shall furnish written
notification of the substance of such amendment and a copy of such amendment
to each Trustee and each Rating Agency.
(d) It shall not be necessary for the consent of Noteholders or
Certificateholders under this Section 7.05 to approve the particular form of
any proposed amendment, but it shall be sufficient if such consent shall
approve the substance thereof. The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Noteholders and
17
Certificateholders shall be subject to such reasonable requirements as the
Trustees may prescribe.
(e) Upon the execution of any amendment or consent pursuant to this
Section 7.05, this Agreement shall be modified in accordance therewith, and
such amendment or consent shall form a part of this Agreement for all
purposes, and every holder of Notes and or Certificates theretofore or
thereafter issued hereunder shall be bound thereby.
SECTION 7.06. NOTICES. All notices, demands, certificates, requests
and communications hereunder ("notices") shall be in writing and shall be
effective (a) upon receipt when sent through the U.S. mails, registered or
certified mail, return receipt requested, postage prepaid, with such receipt
to be effective the date of delivery indicated on the return receipt, or (b)
one Business Day after delivery to an overnight courier, or (c) on the date
personally delivered to an Authorized Officer of the party to which sent, or
(d) on the date transmitted by legible telecopier transmission with a
confirmation of receipt, in all cases addressed to the recipient as follows:
(i) If to the Seller:
Harley-Davidson Credit Corp.
150 South Wacker Drive, Suite 3100
Chicago, Illinois 60606
Attention: Perry A. Glassgow
Telecopier No.: (312) 368-4372
(ii) If to the Trust Depositor:
Harley-Davidson Customer Funding Corp.
4150 Technology Way
Carson City, Nevada 89706
Telecopier No.: (775) 884-4469
(iii) If to the Indenture Trustee:
--------------------------
--------------------------
--------------------------
Telecopier No.: ______________
(iv) If to the Owner Trustee:
18
--------------------------
--------------------------
--------------------------
Telecopier No.: ______________
(v) If to Moody's:
Moody's Investors Service, Inc.
99 Church Street
New York, New York 10007
Attention: ABS Monitoring Department
Telecopier No.: (212) 553-1350
(vi) If to Standard & Poor's:
Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies
55 Water Street
New York, New York 10041
Telecopier No.: (212) 438-2657
Each party hereto may, by notice given in accordance herewith to each of the
other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
All communications and notices pursuant hereto to a Noteholder or
Certificateholder shall be in writing and delivered or mailed at the address
shown in the Note Register or Certificate Register, respectively.
SECTION 7.07. MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter hereof, and all prior understandings,
written or oral, are superseded by this Agreement. This Agreement may not be
modified, amended, waived, or supplemented except as provided herein.
SECTION 7.08. HEADINGS. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
SECTION 7.09. GOVERNING LAW. This Agreement shall be governed
by, and construed and enforced in accordance with, the internal laws of the
State of Illinois.
[signature page follows]
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date first written above.
HARLEY-DAVIDSON CUSTOMER FUNDING CORP.
By: __________________________________________
Printed Name: Perry A. Glassgow
Title: Treasurer
HARLEY-DAVIDSON CREDIT CORP.
By:___________________________________________
Printed Name: Perry A. Glassgow
Title: Treasurer
Signature Page to Transfer and Sale
Agreement
Exhibit A
Transfer and Sale
Agreement
FORM OF ASSIGNMENT
In accordance with the Transfer and Sale Agreement (the "AGREEMENT")
dated as of [____________] made by and between the undersigned, as seller
thereunder ("SELLER"), and Harley-Davidson Customer Funding Corp., a Nevada
corporation and wholly-owned subsidiary of Seller ("TRUST DEPOSITOR"), as
purchaser thereunder, the undersigned does hereby sell, transfer, convey and
assign, set over and otherwise convey to Trust Depositor (i) all right, title
and interest in and to the Initial Contracts (including, without limitation,
all security interests and any and all rights to receive payments which are
collected pursuant thereto on or after the Initial Cutoff Date (including
liquidation proceeds therefrom) but excluding any rights to receive payments
which were collected pursuant thereto prior to the Initial Cutoff Date)
identified in the initial List of Contracts delivered pursuant to Section
2.02(a) of the Agreement, (ii) all rights of Seller under any physical damage
or other individual insurance policy (including a "FORCED PLACED" policy, if
any) relating to any such Contract, an Obligor or a Motorcycle securing a
Contract, (iii) all security interests in each such Motorcycle, (iv) all
documents contained in the related Contract Files, (v) all rights of the
Seller in the Lockbox, Lockbox Account and related Lockbox Agreement to the
extent they relate to the Contracts, (vi) all rights (but not the
obligations) of the Seller under any motorcycle dealer agreements between the
dealers originating the Contracts and the Seller, and (vii) all proceeds and
products of the foregoing.
This Assignment is made pursuant to and in reliance upon the
representation and warranties on the part of the undersigned contained in
Article III of the Agreement and no others.
Capitalized terms used herein but not otherwise defined shall have
the meanings assigned to such terms in the Sale and Servicing Agreement dated
as of [____________] made by and among the undersigned, as servicer, the
Trust Depositor, Harley-Davidson Motorcycle Trust [_____], as issuer, and
[_____________], as indenture trustee.
IN WITNESS WHEREOF, the undersigned has caused this Assignment
to be duly executed this ___ day of [_____________].
HARLEY-DAVIDSON CREDIT CORP.
By:___________________________________________
Printed Name: Perry A. Glassgow
Title: Treasurer
A-1
Exhibit B
Transfer of Sale
Agreement
FORM OF OFFICER'S CERTIFICATE
(See Exhibit C to the Sale and Servicing Agreement)
B-1
Exhibit C
Transfer of Sale
Agreement
FORM OF SUBSEQUENT PURCHASE AGREEMENT
SUBSEQUENT PURCHASE AGREEMENT (the "AGREEMENT"), dated as of
____________, _______, by and among Harley-Davidson Customer Funding Corp., a
Nevada corporation (the "TRUST DEPOSITOR"), and Harley-Davidson Credit Corp.,
a Nevada corporation (the "SELLER"), pursuant to the Transfer and Sale
Agreement referred to below.
WITNESSETH:
WHEREAS, the Trust Depositor and the Seller are parties to the
Transfer and Sale Agreement, dated as of [____________] (the "TRANSFER AND
SALE AGREEMENT");
WHEREAS, pursuant to the Transfer and Sale Agreement, the Seller
wishes to sell the Subsequent Contracts to the Trust Depositor, and the Trust
Depositor wishes to purchase the same, for the purchase price set forth in
SECTION 3 below; and
WHEREAS, the Seller has timely delivered an Addition Notice related
to such conveyance as required in the Sale and Servicing Agreement dated as
of [____________] among the Seller (in the capacity of Servicer thereunder),
the Trust Depositor and the Trustee as defined therein (the "SALE AND
SERVICING AGREEMENT").
NOW, THEREFORE, the Trust Depositor and the Seller hereby agree as
follows:
SECTION 1. Capitalized terms used herein shall have the meanings
ascribed to them in the Sale and Servicing Agreement unless otherwise defined
herein.
"SUBSEQUENT CUTOFF DATE" shall mean, with respect to the
Subsequent Contracts transferred hereby, [_________].
"SUBSEQUENT CONTRACTS" shall mean, for purposes of this
Agreement, the Subsequent Contracts listed in the Subsequent
List of Contracts attached hereto as Exhibit A.
"SUBSEQUENT TRANSFER DATE" shall mean, with respect to the
Subsequent Contracts transferred hereby, [__________].
SECTION 2. SUBSEQUENT LIST OF CONTRACTS. The Subsequent List of
Contracts attached hereto as Exhibit A is a supplement to the initial List of
Contracts attached as EXHIBIT H to the Sale and Servicing Agreement. The
Contracts listed in the Subsequent List of Contracts
C-1
constitute the Subsequent Contracts to be transferred pursuant to this
Agreement on the subsequent Transfer Date.
SECTION 3. TRANSFER OF SUBSEQUENT CONTRACTS. Subject to and upon
the terms and conditions set forth in Section 2.04(b) of the Transfer and
Sale Agreement and this Agreement, Seller hereby sells, transfers, assigns,
sets over and otherwise conveys to Trust Depositor, in consideration of Trust
Depositor's payment of $[_______] as the purchase price therefor, (i) all the
right, title and interest of Seller in and to the Subsequent Contracts listed
on the Subsequent List of Contracts (including, without limitation, all
security interests and all rights to receive payments which are collected
pursuant thereto on or after the Subsequent Cutoff Date, including any
liquidation proceeds therefrom, but excluding any rights to receive payments
which were collected pursuant thereto prior to the Subsequent Cutoff Date),
(ii) all rights of Seller under any physical damage or other individual
insurance policy (and rights under a "FORCED PLACED" policy, if any) relating
to any such Contract, an Obligor or a Motorcycle securing such Contract, (ii)
all security interests in each such Motorcycle, (iv) all documents contained
in the related Contract Files, (v) all rights of the Seller in the Lockbox,
the Lockbox Account and the related Lockbox Agreement to the extent they
relate to such Contracts, (vi) all rights (but not the obligations) of Seller
under any related motorcycle dealer agreements between dealers (i.e., the
originators of such Contracts) and the Seller, and (vii) all proceeds and
products of the foregoing. It is the intention of the Seller and the Trust
Depositor that the transfer contemplated by this Agreement shall constitute a
sale of the Subsequent Contracts from the Seller to the Trust Depositor,
conveying good title thereto free and clear of any Liens, and that the
Subsequent Contracts shall not be part of the Seller's estate in the event of
the filing of a bankruptcy petition by or against Seller under any bankruptcy
or similar law.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. (a) Seller
hereby represents and warrants to the Trust Depositor that the
representations and warranties of Seller in Section 3.01 of the Transfer and
Sale Agreement are true and correct as of the Subsequent Transfer Date.
(b) Seller hereby repeats and remakes with respect to the Subsequent
Contracts as of the Subsequent Transfer Date (i) the representations and
warranties of Seller in Sections 3.02, 3.03 and 3.04 of the Transfer and Sale
Agreement, except that, with respect to subsection (b) of Section 3.03, (A)
approximately _____% of the Principal Balance of the Contracts as of the
Subsequent Cutoff Date is attributable to loans for purchases of new
Motorcycles and approximately ___% is attributable to loans for purchases of
used Motorcycles, and (B) no Contract was originated after the Subsequent
Cutoff Date, as well as (ii) covenants to provide the certificate required by
Section 2.02(h) (solely with respect to the Subsequent Contracts).
(c) Seller hereby represents and warrants that (a) the aggregate
Principal Balance of the Subsequent Contracts listed on the Subsequent List
of Contracts and conveyed to the Trust Depositor pursuant to this Agreement
is $[ ] as of the Subsequent Cutoff Date, and (b) the conditions set forth
in Section 2.04(b) of the Transfer and Sale Agreement have been satisfied as of
the Subsequent Transfer Date.
C-2
SECTION 5. RATIFICATION OF AGREEMENT. As supplemented by this
Agreement, the Transfer and Sale Agreement is in all respects ratified and
confirmed and, as so supplemented by this Agreement, shall be read, taken and
construed as one and the same instrument.
SECTION 6. COUNTERPARTS. This Agreement may be executed in two or
more counterparts (and by different parties in separate counterparts), each
of which shall be an original but all of which together shall constitute one
and the same instrument.
SECTION 7. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of Illinois, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
C-3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized as of the
date first written above.
HARLEY-DAVIDSON CUSTOMER FUNDING CORP.
By:____________________________________________
Printed Name: Perry A. Glassgow
Title: Treasurer
HARLEY-DAVIDSON CREDIT CORP.
By:________________________________________________
Printed Name: Perry A. Glassgow
Title: Treasurer