EXHIBIT 10.1
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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............10
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.............................................................................12
SECTION 4.03. NAME CHANGE OR RELOCATION..........................................................13
SECTION 4.04. COSTS AND EXPENSES.................................................................13
SECTION 4.05 SALE TREATMENT.....................................................................13
SECTION 4.06 SEPARATENESS FROM TRUST DEPOSITOR..................................................13
SECTION 4.07 PROTECTION OF SECURITY INTERESTS...................................................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...........................................................15
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.................................................16
SECTION 7.05. AMENDMENT..........................................................................17
SECTION 7.06. NOTICES............................................................................17
SECTION 7.07. MERGER AND INTEGRATION.............................................................18
SECTION 7.08. HEADINGS...........................................................................18
SECTION 7.09. GOVERNING LAW......................................................................18
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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 (i) motorcycle conditional sales contracts from Harley-Davidson
motorcycle retailers and (ii) motorcycle promissory note and security agreements
from Eaglemark Savings Bank, 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 the related 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, the Trust, as issuer (the
"ISSUER") and [_____], as Indenture Trustee (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 after the Initial Cutoff Date, including any
liquidation proceeds therefrom, but excluding any rights to receive payments
which were collected pursuant thereto on or 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), any debt
insurance policy or any debt cancellation agreement 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. originators of certain Contracts) and the
Seller, (vii) all rights of Seller to certain rebates of premiums and other
amounts relating to insurance policies, debt cancellation agreements, extended
service contracts or other repair agreements and other items financed under such
Contracts and (viii) all proceeds and products of the foregoing (items (i) -
(viii), 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.
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(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.
(d) A letter or letters from [_____], 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 office in
Nevada of a UCC financing statement naming Seller as debtor, naming Trust
Depositor as assignor secured party and the Issuer as secured party, and
listing the Contract Assets as collateral as well as evidence of proper
filing with the appropriate office in Delaware of a UCC financing statement
naming the Issuer as debtor, naming the Indenture Trustee, as secured
party, and listing the Contract Assets as collateral.
(h) An Officer's Certificate from Seller certifying that the
Seller, on or prior to the Closing Date, has indicated in its computer
files, in accordance with its customary standards, policies and procedures,
that the Contracts have been conveyed to the Trust Depositor pursuant to
this Agreement.
(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 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 shall succeed to such of the rights of
Trust Depositor hereunder as shall be so assigned. Seller acknowledges that,
pursuant to the Sale and Servicing Agreement, Trust Depositor will assign all of
its right, title and interest in and to the Contract Assets and its right to
exercise the remedies created by Section 5.01 hereof for breaches of
representations and warranties of Seller contained in Sections 3.01, 3.02, 3.03
and 3.04 hereof to the Issuer and the Indenture Trustee for the benefit of the
Noteholders. Seller agrees that, upon such assignment to the Issuer and the
Indenture Trustee, such representations will run to and be for the benefit of
the Issuer and the Indenture
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Trustee and the Issuer and the Indenture Trustee may enforce directly without
joinder of Trust Depositor, the obligations of 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 after the applicable
Subsequent Cutoff Date, including any liquidation proceeds therefrom, but
excluding any rights to receive payments which were collected pursuant thereto
on or 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), any debt insurance policy or any debt cancellation
agreement relating to any such Subsequent Contract , an Obligor or a Motorcycle
securing such Subsequent 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 Subsequent Contracts, (vi) all rights (but not
the obligations) of the Seller under any motorcycle dealer agreements between
the dealers (I.E. originators of certain Subsequent Contracts) and the Seller,
(vii) all rights of Seller to certain rebates of premiums and other amounts
relating to insurance policies, debt cancellation agreements, extended service
contracts or other repair agreements and other items financed under such
Subsequent Contracts and (viii) all proceeds and products of the foregoing
(items (i) - (viii), 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;
(iii) the Seller shall have delivered to the Trust Depositor a duly
executed Purchase Agreement 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;
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(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 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 "[__]" by
Standard & Poor's and "[__]" by Moody's;
(vi) such addition will not result in a material adverse tax
consequence to the Issuer or 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 (or bring-downs of
opinions of counsel delivered on the Closing Date) 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
Indenture Trustee and the Noteholders will rely under the Sale and Servicing
Agreement. Such 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
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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 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.
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(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) STATE OF INCORPORATION; NAME; NO CHANGES. Seller's state of
incorporation is the State of Nevada. Seller's exact legal name is as set
forth in the first paragraph of this Agreement. Seller has not changed its
name whether by amendment of its Articles of Incorporation, by
reorganization or otherwise, and has not changed its state of
incorporation, 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.
(h) SOLVENCY. The Seller, after giving effect to the conveyances
made by it hereunder, is Solvent.
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 or under
a debt insurance policy or debt cancellation agreement.
(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.
(d) BINDING OBLIGATION. Each Contract is a legal, valid and
binding payment obligation of the Obligor thereunder and is enforceable in
accordance with its terms,
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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. The Seller, in accordance with its policies and
procedures, has determined that, as of the date of origination of each
Contract, the related Obligor had obtained or agreed to obtain physical
damage insurance covering the Motorcycle. The terms of each Contract
require that for the term of such Contract the Motorcycle securing such
Contract will be covered by physical damage insurance.
(g) ORIGINATION. Each Contract (i) was originated by a
Harley-Davidson motorcycle dealer or by Eaglemark Savings Bank, in each
case, in the regular course of its business, (ii) was fully and properly
executed by the parties thereto, and (iii) has been purchased by Seller in
the regular course of its business. Each Contract was sold by such
motorcycle dealer or Eaglemark Savings Bank, as the case may be, to the
Seller without any fraud or misrepresentation on the part of such
motorcycle dealer or Eaglemark Savings Bank.
(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 Harley-Davidson motorcycle dealers or Eaglemark Savings
Bank, 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 at the time of
origination or 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.
(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.
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(k) VALID SECURITY INTEREST. Each Contract creates a valid,
subsisting and enforceable first priority perfected security interest in
favor of Seller or Eaglemark Savings Bank (as the case may be) in the
Motorcycle covered thereby, and such security interest has been assigned by
Eaglemark Savings Bank to Seller (where applicable) and by Seller to the
Trust Depositor. Eaglemark Savings Bank's security interest has been
validly assigned by Eaglemark Savings Bank to Seller. Seller's security
interest has been validly assigned by the Seller to the Trust Depositor
pursuant to this Agreement and by the Trust Depositor to the Issuer
pursuant to the Sale and Servicing Agreement. Immediately prior to the
transfer, assignment and conveyance thereof, each Contract is secured by a
first priority, validly perfected security interest in the Motorcycle
covered thereby in favor of the Seller or Eaglemark Savings Bank as secured
party or all necessary and appropriate actions have been commenced that
would result in a first priority, validly perfected security interest in
the Motorcycle covered thereby in favor of the Seller or Eaglemark Savings
Bank as secured party, except, in each case, as to priority for any lien
for taxes, labor, materials or of any state law enforcement agency
affecting a Motorcycle.
(l) GOOD TITLE. Each Contract was purchased by Seller for value
and taken into possession prior to the Initial 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 Issuer 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, 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, immediately upon the
transfer of each Contract by the Seller, the Trust Depositor shall have
good and marketable title to each Contract free and clear of any
encumbrance, equity, loan, pledge, charge, claim or security interest, and,
immediately upon the transfer of each Contract by the Trust Depositor, the
Issuer shall have good and marketable title to each Contract free and clear
of any encumbrance, equity, loan, pledge, charge, claim or security
interest.
(m) 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, and Seller has not granted any extension of
payment terms on any Contract. As of the Initial Cutoff Date (or the
applicable Subsequent Cutoff Date in the case of Subsequent Contracts), no
Motorcycle had been repossessed.
(n) 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
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Motorcycle securing any Contract which are liens prior to, or equal with,
the lien of such Contract.
(o) 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.
(p) 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.
(q) ONE ORIGINAL. Each Contract is evidenced by only one original
executed Contract, which original has been delivered to the Issuer or its
designee on or before the Closing Date (or the applicable Subsequent
Transfer Date in the case of Subsequent Contracts).
(r) NO GOVERNMENT OBLIGORS. No Obligor is the United States
government or an agency, authority, instrumentality or other political
subdivision of the United States government.
(s) LOCKBOX BANK. The Lockbox Bank is the only institution
holding any Lockbox Account for receipt of payments from Obligors, and all
Obligors have been instructed to make payments to the Lockbox Account
(either directly by remitting payments to the Lockbox, or indirectly by
making payments through direct debit, the telephone or the internet to an
account of the Servicer which payments will be subsequently transferred
from such account to one or more Lockbox Banks), 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.
(t) OBLIGOR BANKRUPTCY. At the Initial Cutoff Date (or the
applicable Subsequent Cutoff Date in the case of Subsequent Contracts), no
Obligor was subject to a bankruptcy proceeding (according to the records of
the Seller) within the one year preceding such Cutoff Date.
(u) CHATTEL PAPER. The Contracts constitute tangible chattel
paper within the meaning of the UCC.
(v) 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
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and as of the Closing Date, in the case of the Initial Contracts, and, if
applicable, 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 or exceeds the sum of
the principal balance of the Class A-1 Notes, the Class A-2 Notes and the
Class B Notes 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 last scheduled payment
date of the Contracts (including any Subsequent Contracts) 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 Motorcycles manufactured by Harley-Davidson or Buell and
approximately [_____]% of the Principal Balance of the Initial Contracts as
of the Initial Cutoff Date is attributable to loans for purchases of
Motorcycles not manufactured by Harley-Davidson or Buell.
(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 File 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, are owned by the
Trust and constitute security for the Notes.
(d) NO ADVERSE SELECTION. No selection procedures adverse to
Noteholders have been employed in selecting the Contracts.
(e) TRUE SALE. The transactions contemplated by this Agreement
and the Sale and Servicing Agreement constitute valid sales, transfers and
assignments 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 Indenture
Trustee a first priority perfected lien on,
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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, or its custodian, will have
possession of each original Contract and the related complete Contract
File. 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 or its custodian.
(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. The contents of each Contract File
shall be held by the Servicer, or its custodian, for the benefit of the Trust as
the owner thereof in accordance with the Sale and Servicing Agreement.
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 xxxx Xxxxxx shall take and cause to be
taken such actions and execute such documents as are necessary or desirable or
as Trust Depositor or the Trust may reasonably request to perfect and protect
the Trust Depositor's and the Trust'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. The Seller authorizes the Trust
Depositor to file financing statements describing the Contract Assets as
collateral. All financing statements filed or to be filed against the Seller in
favor of the Trust Depositor or the Trust in connection herewith describing the
Contract Assets as collateral shall contain a statement to the
- 12 -
following effect: "A purchase of or security interest in any collateral
described in this financing statement, except as permitted in the
Transfer and
Sale Agreement or Sale and Servicing Agreement, will violate the rights of the
Secured Party."
SECTION 4.03. NAME CHANGE OR RELOCATION. (a) During the term of this
Agreement, Seller shall not change its name, identity or structure or state of
incorporation 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 days after the effective date of such change, shall file such
amendments as may be required to preserve and protect the Trust Depositor's and
the Trust's interests in the Contract Assets and proceeds thereof. In addition,
Seller shall not change its state of incorporation unless it has first taken
such action as is advisable or necessary to preserve and protect the Trust
Depositor's and the Trusts' 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 Trust Depositor and the Trust in the Contract Assets have been
filed, and reciting the details of such filing.
SECTION 4.04. 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, the Issuer's
and the Indenture Trustee's 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 4.05 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 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.
SECTION 4.06 SEPARATENESS FROM TRUST DEPOSITOR. The Seller agrees to take
or refrain from taking or engaging in with respect to the Trust Depositor each
of the actions or activities specified in the "substantive consolidation"
opinion of Winston & Xxxxxx LLP (or in any related certificate of Seller)
delivered on the Closing Date, upon which the conclusions expressed therein are
based.
SECTION 4.07 PROTECTION OF SECURITY INTERESTS. The Seller agrees to
deliver an Officer's Certificate to the Owner Trustee and the Indenture Trustee,
as promptly as practicable after the Closing Date (or Subsequent Transfer Date,
as the case may be), and in any event within 60 days thereof, certifying that
the 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 and that each document
required be an original.
- 13 -
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 Issuer, the Indenture
Trustee 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 described on the List of Contracts
with respect to an incorrect 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 any
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 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 20 days prior to a Distribution Date,
provided the Pool Balance is then less than 10% of the Aggregate Principal
Balance as of the Closing Date, Seller may (but is not required to) repurchase
from the Trust on that Distribution Date all outstanding Contracts (and related
Contract Assets) at a price equal to the aggregate unpaid principal balance of
the Notes on the previous Distribution Date plus the aggregate of the Note
Interest Distributable Amount for the current Distribution Date, the
Reimbursement Amount (if any) as well as accrued and unpaid Monthly Servicing
Fees and Indenture Trustee Fee to the date of such repurchase. 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.
- 14 -
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
Noteholders 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, (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), and (iii) any
untrue statement or alleged untrue statement of a material fact contained in the
Prospectus or in any amendment thereto or the omission or alleged omission to
state therein a material fact necessary to make the statements therein, in light
of the circumstances in which they were made, not misleading, in each case to
the extent, but only to the extent, that such untrue statement or alleged untrue
statement was made in conformity with information furnished to Trust Depositor
by Seller specifically for use therein. 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 or the Noteholders 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 or the
Noteholders 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 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 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.
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
- 15 -
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 for the purpose of enabling
such Noteholder to purchase Notes;
(b) Purchase any Notes 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 Xxxxx'x 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 due pursuant to Section 7.05 of
the Sale and Servicing Agreement) on the Distribution Date on which the
principal balance of the Class A-1 Notes, Class A-2 Notes and the Class B Notes
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.
- 16 -
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 Noteholders to correct
manifest error, to cure any ambiguity, to correct or supplement any provisions
herein or therein which may be inconsistent with any other provisions herein,
therein or in the Prospectus, 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 or the Prospectus;
PROVIDED, HOWEVER, that such action shall not, as evidenced by an Opinion of
Counsel for Seller acceptable to the Trustees, adversely affect the interests of
any Noteholder.
(b) This Agreement may also be amended from time to time by Seller and
Trust Depositor, with the consent of the Modified Required Holders, 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 Indenture Trustee for the benefit of Noteholders; PROVIDED, HOWEVER, that no
such amendment or waiver shall (a) reduce in any manner the amount of, or delay
the timing of, collections of payments on the Contracts or distributions which
are required to be made on any Note or (b) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the holders of
all Notes then outstanding.
(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 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 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 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 at the address for such recipient set forth in the
Sale and Servicing Agreement.
- 17 -
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 Noteholders shall be in
writing and delivered or mailed at the address shown in the Note Register.
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.
SECTION 7.10. NO BANKRUPTCY PETITION. The Seller covenants and agrees that,
prior to the date that is one year and one day after the payment in full of all
amounts owing in respect of all outstanding Securities, as well as any other
amounts distributable or payable from the Trust Estate, together with any other
amounts owing in respect of obligations of the Trust Depositor, it will not
institute against, or solicit or join in or cooperate with or encourage any
Person to institute against, the Trust Depositor or the Trust, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceedings under the laws of the United State or any State of the
United States. This Section 7.10 shall survive termination of this Agreement.
[signature page follows]
- 18 -
EXHIBIT 10.1
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:
Title:
HARLEY-DAVIDSON CREDIT CORP.
By:
------------------------------------------
Printed Name:
Title:
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 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 after the Initial Cutoff Date, including any liquidation proceeds
therefrom, but excluding any rights to receive payments which were collected
pursuant thereto on or 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), any debt insurance policy or any debt
cancellation agreement 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.
originators of certain Contracts) and the Seller, (vii) all rights of Seller to
certain rebates of premiums and other amounts relating to insurance policies,
debt cancellation agreements, extended service contracts or other repair
agreements and other items financed under such Contracts and (viii) 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.
A-1
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be duly
executed this ___ day of [_____].
HARLEY-DAVIDSON CREDIT CORP.
By:
------------------------------------------
Printed Name:
Title:
A-2
Exhibit B
Transfer and Sale
Agreement
FORM OF OFFICER'S CERTIFICATE
(See Exhibit C to the Sale and Servicing Agreement)
B-1
Exhibit C
Transfer and 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 Issuer as defined
therein, the Trust Depositor and the Indenture 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 related
Subsequent List of Contracts (including, without limitation, all security
interests and all rights to receive payments which are collected pursuant
thereto after the applicable Subsequent Cutoff Date, including any liquidation
proceeds therefrom, but excluding any rights to receive payments which were
collected pursuant thereto on or 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), any debt insurance policy or any
debt cancellation agreement relating to any such Subsequent Contract, an Obligor
or a Motorcycle securing such Subsequent Contract, (iii) all security interests
in each such Motorcycle, (iv) all documents contained in the related Subsequent
Contract Files, (v) all rights of Seller in the Lockbox, Lockbox Account and
related Lockbox Agreement to the extent they relate to the Subsequent Contracts,
(vi) all rights (but not the obligations) of the Seller under any motorcycle
dealer agreements between the dealers (I.E. originators of certain Subsequent
Contracts) and the Seller, (vii) all rights of Seller to certain rebates of
premiums and other amounts relating to insurance policies, debt cancellation
agreements, extended service contracts or other repair agreements and other
items financed under such Subsequent Contracts and (viii) 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
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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.
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.
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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:
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Printed Name:
Title:
HARLEY-DAVIDSON CREDIT CORP.
By:
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Printed Name:
Title:
