EXHIBIT 10.4
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FORM OF
ADMINISTRATION AGREEMENT
among
HARLEY-DAVIDSON MOTORCYCLE TRUST [______],
as Issuer,
HARLEY-DAVIDSON CREDIT CORP.,
as Administrator
HARLEY-DAVIDSON CUSTOMER FUNDING CORP.,
as Trust Depositor,
and
[_________________],
as Indenture Trustee
Dated as of [_________]
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TABLE OF CONTENTS
SECTION 1. DUTIES OF THE ADMINISTRATOR..........................................2
SECTION 2. RECORDS..............................................................7
SECTION 3. COMPENSATION.........................................................7
SECTION 4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER.................7
SECTION 5. INDEPENDENCE OF THE ADMINISTRATOR....................................8
SECTION 6. NO JOINT VENTURE.....................................................8
SECTION 7. OTHER ACTIVITIES OF ADMINISTRATOR....................................8
SECTION 8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR..........8
SECTION 9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL......................9
SECTION 10. NOTICES.............................................................10
SECTION 11. AMENDMENTS..........................................................10
SECTION 12. SUCCESSORS AND ASSIGNS..............................................11
SECTION 13. GOVERNING LAW.......................................................12
SECTION 14. HEADINGS............................................................12
SECTION 15. COUNTERPARTS........................................................12
SECTION 16. SEVERABILITY........................................................12
SECTION 17. NOT APPLICABLE TO HARLEY-DAVIDSON CREDIT IN OTHERCAPACITIES.........12
SECTION 18. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE TRUSTEE......12
SECTION 19. THIRD-PARTY BENEFICIARY.............................................13
SECTION 20. SURVIVABILITY.......................................................13
SECTION 21. NO PETITION.........................................................13
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This Administration Agreement, dated as of [_________], among
Harley-Davidson Motorcycle Trust [______] (the "ISSUER"), Harley-Davidson Credit
Corp. (together with its successors and assigns "HARLEY-DAVIDSON CREDIT") in its
capacity as administrator, the "ADMINISTRATOR"), Harley-Davidson Customer
Funding Corp. (the "TRUST DEPOSITOR") and [_______________], not in its
individual capacity but solely as Indenture Trustee (together with its
successors and assigns, the "INDENTURE TRUSTEE").
W I T N E S S E T H:
WHEREAS, the Issuer is issuing [____]% Harley-Davidson Motorcycle
Contract, Class A-1 Notes, [____]% Harley-Davidson Motorcycle Contract, Class
A-2 Notes and [____]% Harley-Davidson Motorcycle Contract, Class B Notes
(collectively, the "NOTES") pursuant to the Indenture, dated as of the date
hereof (the "INDENTURE"), between the Issuer and the Indenture Trustee
(capitalized terms used herein that are not otherwise defined shall have the
meanings ascribed thereto in the Indenture) [and the ___% Harley-Davidson
Motorcycle Contract Certificates (the "CERTIFICATES") pursuant to the Trust
Agreement (the "TRUST AGREEMENT") dated as of the date hereof between the
Depositor and [_______________], as owner trustee (the "OWNER TRUSTEE")];
WHEREAS, the Issuer has entered into certain agreements in connection
with the issuance of the Notes and Certificates, including (i) a Sale and
Servicing Agreement, dated as of the date hereof (the "SALE AND SERVICING
AGREEMENT"), among the Issuer, [______________], not in its individual capacity
but as Indenture Trustee, the Trust Depositor and Harley-Davidson Credit Corp.,
as servicer (in such capacity, the "SERVICER"), and (ii) the Indenture
(collectively referred to hereinafter as the "TRANSACTION DOCUMENTS");
WHEREAS, pursuant to the Transaction Documents, the Issuer and the
Owner Trustee are required to perform certain duties in connection with (i) the
Notes and the collateral therefor pledged pursuant to the Indenture (the
"COLLATERAL") and (ii) the Certificates (the registered holders of the
Certificates being referred to herein as the "OWNERS");
WHEREAS, the Issuer and the Owner Trustee desire to have the
Administrator perform certain of the duties of the Issuer and the Owner Trustee
referred to in the preceding clause and to provide such additional services
consistent with the terms of this Agreement and the Transaction Documents as the
Issuer and the Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREAFTER, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. DUTIES OF THE ADMINISTRATOR.
(a) Duties with respect to the Indenture.
(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee under
the Transaction Documents. In addition, the Administrator shall consult
with the Owner Trustee regarding the duties of the Issuer or the Owner
Trustee under the Indenture. The Administrator shall monitor the
performance of the Issuer and shall advise the Owner Trustee when
action is necessary to comply with the respective duties of the Issuer
and the Owner Trustee under the Indenture. The Administrator shall
prepare for execution by the Issuer or shall cause the preparation by
other appropriate persons of, all such documents, reports, filings,
instruments, certificates and opinions that it shall be the duty of the
Issuer or the Owner Trustee to prepare, file or deliver pursuant to the
Indenture. In furtherance of the foregoing, the Administrator shall
take all appropriate action that the Issuer or the Owner Trustee is
required to take pursuant to the Indenture including, without
limitation, such of the foregoing as are required with respect to the
following matters under the Indenture (references are to Sections of
the Indenture):
(A) the duty to cause the Note Register to be kept and to give
the Indenture Trustee notice of any appointment of a new Note Registrar
and the location, or change in location, of the Note Register (Section
2.04);
(B) the notification of Noteholders of the final principal
payment on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any special record
date and the notification of the Indenture Trustee and Noteholders with
respect to special payment dates, if any (Section 2.07(c));
(D) the preparation of or obtaining of the documents and
instruments required for execution and authentication of the Notes and
delivery of the same to the Indenture Trustee (Section 2.02);
(E) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release
of Collateral (Section 2.12);
(F) the maintenance of an office in the City of Chicago,
Illinois, for registration of transfer or exchange of Notes (Section
3.02);
(G) the duty to cause newly appointed Paying Agents, if any,
to deliver to the Indenture Trustee the instrument specified in the
Indenture regarding funds held in trust (Section 3.03);
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(H) the direction to the Indenture Trustee to deposit monies
with Paying Agents, if any, other than the Indenture Trustee (Section
3.03);
(I) the obtaining and preservation of the Issuer's
qualification to do business in each jurisdiction in which such
qualification is or shall be necessary to protect the validity and
enforceability of the Indenture, the Notes, the collateral and each
other instrument and agreement included in the Collateral (Section
3.04);
(J) the preparation of all supplements and amendments to the
Indenture and all financing statements, continuation statements,
instruments of further assurance and other instruments and the taking
of such other action as is necessary or advisable to protect the
Collateral other than as prepared by the Servicer (Section 3.05);
(K) the delivery of the Opinion of Counsel on the Closing Date
and certain other statements as to compliance with the Indenture
(Sections 3.06 and 3.09);
(L) the identification to the Indenture Trustee in an
Officer's Certificate of a Person with whom the Issuer has contracted
to perform its duties under the Indenture (Section 3.07(b));
(M) the notification of the Indenture Trustee and each Rating
Agency of a Servicer Default under the Sale and Servicing Agreement;
(N) the duty to cause the Servicer to comply with Sections
4.09, 4.10, 4.11 and 5.07 and Article Five and Article Nine of the Sale
and Servicing Agreement (Section 3.14);
(O) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations under the
Indenture (Section 3.10(b) and Section 3.11(b));
(P) the delivery of written notice to the Indenture Trustee
and each Rating Agency of each Event of Default under the Indenture and
each Servicer Default by the Servicer under the Sale and Servicing
Agreement (Section 3.18);
(Q) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officer's Certificate and the obtaining of the Opinion of Counsel and
the Independent Certificate relating thereto (Section 4.01);
(R) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Collateral in a commercially
reasonable manner if an Event of Default shall have occurred and be
continuing (Section 5.04);
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(S) the preparation and delivery of notice to Noteholders of
the removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (Section 6.08);
(T) the preparation of any written instruments required to
confirm more fully the authority of any co-trustee or separate trustee
and any written instruments necessary in connection with the
resignation or removal of the Indenture Trustee or any co-trustee or
separate trustee (Sections 6.08 and 6.10);
(U) the furnishing of the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee
is not the Note Registrar (Section 7.01);
(V) the opening of one or more accounts in the Indenture
Trustee's name, the preparation and delivery of Issuer Orders,
Officer's Certificates and Opinions of Counsel and all other actions
necessary with respect to investment and reinvestment of funds in the
Trust Accounts (Sections 8.02 and 8.03);
(W) the preparation of an Issuer Request and Officer's
Certificate and the obtaining of an Opinion of Counsel and Independent
Certificates, if necessary, for the release of the Collateral (Sections
8.04 and 8.05);
(X) the preparation of Issuer Orders and the obtaining of
Opinions of Counsel with respect to the execution of supplemental
indentures and the mailing to the Noteholders of notices with respect
to such supplemental indentures (Sections 9.01, 9.02 and 9.03);
(Y) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.06);
(Z) the duty to notify Noteholders of redemption of the Notes
or to cause the Indenture Trustee to provide such notification (Section
10.02);
(AA) the preparation and delivery of all Officer's
Certificates, Opinions of Counsel and Independent Certificates with
respect to any requests by the Issuer to the Indenture Trustee to take
any action under the Indenture (Section 11.01(a));
(BB) the preparation and delivery of Officer's Certificates
and the obtaining of Independent Certificates, if necessary, for the
release of property from the lien of the Indenture (Section 11.01(b));
(CC) the notification of the Rating Agencies, upon the failure
of the Issuer, the Owner Trustee or the Indenture Trustee to provide
notification;
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(DD) the preparation and delivery to Noteholders and the
Indenture Trustee of any agreements with respect to alternate payment
and notice provisions (Section 11.06);
(EE) the recording of the Indenture, if applicable
(Section 11.14); and
(FF) the appointment of a successor Indenture Trustee.
(ii) The Administrator will:
(A) except as otherwise expressly provided in the Indenture,
pay the Indenture Trustee's Fees and reimburse the Indenture Trustee
upon its request for all reasonable expenses, disbursements and
advances incurred or made by the Indenture Trustee in accordance with
any provision of the Indenture (including the reasonable compensation,
expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith;
(B) indemnify the Indenture Trustee and its agents for, and
hold them harmless against, any loss, liability or expense incurred
without negligence or bad faith on their part, arising out of or in
connection with the acceptance or administration of the transactions
contemplated by the Indenture, including the reasonable costs and
expenses of defending themselves against any claim or liability in
connection with the exercise or performance of any of their powers or
duties under the Indenture; and
(C) indemnify the Owner Trustee and its agents for, and hold
them harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection
with the acceptance or administration of the transactions contemplated
by the Trust Agreement, including the reasonable costs and expenses of
defending themselves against any claim or liability in connection with
the exercise or performance of any of their powers or duties under the
Trust Agreement.
(b) ADDITIONAL DUTIES.
(i) In addition to the duties set forth in Section 1(a)(i),
the Administrator shall perform such calculations and shall prepare or
shall cause the preparation by other appropriate persons of, and shall
execute on behalf of the Issuer or the Owner Trustee, all such
documents, reports, filings, instruments, certificates and opinions
that the Issuer or the Owner Trustee are required to prepare, file or
deliver pursuant to the Transaction Documents or Section 5.05 of the
Trust Agreement, and at the request of the Owner Trustee shall take all
appropriate action that the Issuer or the Owner Trustee are required to
take pursuant to the Transaction Documents. In furtherance thereof, the
Owner Trustee shall, on behalf of itself and of the Issuer, execute and
deliver to the Administrator and to each successor Administrator
appointed pursuant to the terms hereof, one or more powers of attorney
substantially in the form of EXHIBIT A hereto,
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appointing the Administrator the attorney-in-fact of the Owner Trustee
and the Issuer for the purpose of executing on behalf of the Owner
Trustee and the Issuer all such documents, reports, filings,
instruments, certificates and opinions. Subject to Section 5, and in
accordance with the directions of the Issuer, the Administrator shall
administer, perform or supervise the performance of such other
activities in connection with the Collateral (including the
Transaction Documents) as are not covered by any of the foregoing
provisions and as are expressly requested by the Issuer and are
reasonably within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the
Transaction Documents to the contrary, the Administrator shall be
responsible for promptly notifying the Owner Trustee in the event that
any withholding tax is imposed on the Trust's payments (or allocations
of income) to an Owner as contemplated in Section 5.02(c) of the Trust
Agreement. Any such notice shall specify the amount of any withholding
tax required to be withheld by the Owner Trustee pursuant to such
provision.
(iii) Notwithstanding anything in this Agreement or the
Transaction Documents to the contrary, the Administrator shall be
responsible for performance of the duties of the Owner Trustee set
forth in Section 5.05(a), (b), (c) and (d), the penultimate sentence of
Section 5.05 and Section 5.06(a) of the Trust Agreement with respect
to, among other things, accounting and reports to Owners; PROVIDED,
HOWEVER, that the Owner Trustee shall retain responsibility for the
distribution of the Schedule K-1s necessary to enable each Owner to
prepare its federal and state income tax returns.
(iv) The Administrator shall satisfy its obligations with
respect to clauses (ii) and (iii) above by retaining, at the expense of
the Trust payable by the Administrator, a firm of independent public
accountants (the "ACCOUNTANTS") acceptable to the Owner Trustee, which
shall perform the obligations of the Administrator thereunder.
(v) The Administrator shall perform the duties of the
Administrator specified in Section 10.02 of the Trust Agreement
required to be performed in connection with the resignation or removal
of the Owner Trustee, and any other duties expressly required to be
performed by the Administrator under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its Affiliates; PROVIDED,
HOWEVER, that the terms of any such transactions or dealings shall be
in accordance with any directions received from the Issuer and shall
be, in the Administrator's opinion, no less favorable to the Issuer
than would be available from unaffiliated parties.
(c) Non-Ministerial Matters.
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(i) With respect to matters that in the reasonable judgment of
the Administrator are non-ministerial, the Administrator shall not take
any action unless within a reasonable time before the taking of such
action, the Administrator shall have notified the Owner Trustee of the
proposed action and the Owner Trustee shall not have withheld consent
or provided an alternative direction. For the purpose of the preceding
sentence, "NON-MINISTERIAL MATTERS" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and
the compromise of any action, claim or lawsuit brought by or against
the Issuer (other than in connection with the collection of the
Contracts);
(C) the amendment, change or modification of the Transaction
Documents;
(D) the appointment of successor Note Registrars, successor
Paying Agents and successor Indenture Trustees pursuant to the
Indenture or the appointment of successor Administrators or a successor
Servicer, or the consent to the assignment by the Note Registrar,
Paying Agent or Indenture Trustee of its obligations under the
Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this
Agreement, the Administrator shall not be obligated to, and shall not,
(A) make any payments to the Noteholders under the Transaction
Documents, (B) sell the Collateral pursuant to clause (iv) of Section
5.04 of the Indenture, (C) take any other action that the Issuer
directs the Administrator not to take on its behalf or (D) take any
other action which may be construed as having the effect of varying the
investment of the Holders.
SECTION 2. RECORDS. The Administrator shall maintain appropriate
books of account and records relating to services performed hereunder, which
books of account and records shall be accessible for inspection by the Issuer
and the Owner Trustee at any time during normal business hours.
SECTION 3. COMPENSATION. As compensation for the performance of
the Administrator's obligations under this Agreement and as reimbursement for
its expenses related thereto, the Administrator shall be entitled to a monthly
fee which shall be solely an obligation of the Trust Depositor and shall be
agreeable to the Trust Depositor and the Administrator.
SECTION 4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER.
The Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
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SECTION 5. INDEPENDENCE OF THE ADMINISTRATOR. For all purposes
of this Agreement, the Administrator shall be an independent contractor and
shall not be subject to the supervision of the Issuer or the Owner Trustee with
respect to the manner in which it accomplishes the performance of its
obligations hereunder. Unless expressly authorized by the Issuer, the
Administrator shall have no authority to act for or represent the Issuer or the
Owner Trustee in any way and shall not otherwise be deemed an agent of the
Issuer or the Owner Trustee.
SECTION 6. NO JOINT VENTURE. Nothing contained in this Agreement
(i) shall constitute the Administrator and either of the Issuer or the Owner
Trustee as members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
SECTION 7. OTHER ACTIVITIES OF ADMINISTRATOR. Nothing herein
shall prevent the Administrator or its Affiliates from engaging in other
business or, in its sole discretion, from acting in a similar capacity as an
administrator for any other Person or entity even though such person or entity
may engage in business activities similar to those of the Issuer, the Owner
Trustee or the Indenture Trustee.
SECTION 8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF
ADMINISTRATOR. This Agreement shall continue in force until the dissolution of
the Issuer, upon which event this Agreement shall automatically terminate.
(a) Subject to Section 8(d) and Section 8(e), the Administrator may
resign its duties hereunder by providing the Issuer with at least 60 days' prior
written notice.
(b) Subject to Section 8(d) and Section 8(e), the Issuer may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice.
(c) Subject to Section 8(d) and Section 8(e), at the sole option of the
Issuer, the Administrator may be removed immediately upon written notice of
termination from the Issuer to the Administrator if any of the following events
shall occur:
(i) the Administrator shall default in the performance of any of its
duties under this Agreement and, after notice of such default, shall not cure
such default within ten days (or, if such default cannot be cured in such time,
shall not give within ten days such assurance of cure as shall be reasonably
satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a decree
or order for relief, and such decree or order shall not have been vacated within
60 days, in respect of the Administrator in any involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect or appoint a receiver, liquidator, assignee, custodian,
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trustee, sequestrator or similar official for the Administrator or any
substantial part of its property or order the winding-up or liquidation of its
affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
under any such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official for
the Administrator or any substantial part of its property, shall consent to the
taking of possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of creditors or
shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) above shall occur, it shall give written notice thereof to the
Issuer and the Indenture Trustee within seven days after the occurrence of such
event.
(d) No resignation or removal of the Administrator pursuant to this
Section shall be effective until (i) a successor Administrator shall have been
appointed by the Issuer and (ii) such successor Administrator shall have agreed
in writing to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder.
(e) The appointment of any successor Administrator shall be effective
only after the satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
(f) Subject to Section 8(d) and 8(e), the Administrator acknowledges
that upon the appointment of a Successor Servicer pursuant to the Sale and
Servicing Agreement, the Administrator shall immediately resign and such
Successor Servicer shall automatically become the Administrator under this
Agreement.
SECTION 9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL.
Promptly upon the effective date of termination of this Agreement pursuant to
Section 8 or the resignation or removal of the Administrator pursuant to Section
8(a), (b) or (c) respectively, the Administrator shall be entitled to be paid
all fees and reimbursable expenses accruing to it to the date of such
termination, resignation or removal. The Administrator shall forthwith upon such
termination pursuant to Section 8 deliver to the Issuer all property and
documents of or relating to the Collateral then in the custody of the
Administrator. In the event of the resignation or removal of the Administrator
pursuant to Section (a), (b) or (c), respectively, the Administrator shall
cooperate with the Issuer and take all reasonable steps requested to assist the
Issuer in making an orderly transfer of the duties of the Administrator.
SECTION 10. 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
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(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 Administrator:
Harley-Davidson Credit Corp.
000 Xxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx
Telecopier No.: (000) 000-0000
(ii) If to the Trust Depositor:
Harley-Davidson Customer Funding Corp.
0000 Xxxxxxxxxx Xxx
Xxxxxx Xxxx, Xxxxxx 00000
Telecopier No.: (000) 000-0000
(iii) If to the Indenture Trustee:
________________________________
________________________________
________________________________
Telecopier No.: ______________
(iv) If to the Issuer or the Owner Trustee:
________________________________
________________________________
________________________________
Telecopier No.: ______________
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.
SECTION 11. AMENDMENTS.(a) This Agreement may be amended from
time to time by a written amendment duly executed and delivered by the parties
hereto, with the written consent of the Owner Trustee but without the consent of
the Securityholders, to correct manifest error, to cure any ambiguity, to
correct or supplement any provisions herein which may be ambiguous or
inconsistent with any other provision herein or in any other Transaction
Document, as the case may be, or to add any other provisions with respect to
matters or questions arising under
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this Agreement that shall not be inconsistent with the provisions of this
Agreement; PROVIDED, HOWEVER that any 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 with the
consent of the Owner Trustee and the Noteholders of more than 50% of the
aggregate principal amount of the Class A-1 Notes and Class A-2 Notes, voting
together as a single class, or, if there are no Class A-1 Notes or Class A-2
Notes outstanding, with the consent of the 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 the Certificateholders;
PROVIDED, HOWEVER, that no such amendment shall (x) increase or 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) 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 Certificates to
be qualified, reduced or withdrawn.
(c) Notwithstanding the foregoing, the Administrator may not amend this
Agreement without the permission of the Trust Depositor, which permission shall
not be unreasonably withheld.
SECTION 12. SUCCESSORS AND ASSIGNS. This Agreement may not be
assigned by the Administrator unless such assignment is previously consented to
in writing by the Issuer, the Indenture Trustee and the Owner Trustee and
subject to the satisfaction of the Rating Agency Condition in respect thereof.
An assignment with such consent and satisfaction, if accepted by the assignee,
shall bind the assignee hereunder in the same manner as the Administrator is
bound hereunder. Notwithstanding the foregoing, this Agreement may be assigned
by the Administrator without the consent of the Issuer or the Owner Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator; provided that such successor
organization executes and delivers to the Issuer, the Owner Trustee and the
Indenture Trustee an agreement, in form and substance reasonably satisfactory to
the Owner Trustee and the Indenture Trustee, in which such corporation or other
organization agrees to be bound hereunder by the terms of said assignment in the
same manner as the Administrator is bound hereunder. Subject to the foregoing,
this Agreement shall bind any successors or assigns of the parties hereto.
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SECTION 13. 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.
SECTION 14. HEADINGS. The section and subsection headings hereof
have been inserted for convenience of reference only and shall not be construed
to affect the meaning, construction or effect of this Agreement.
SECTION 15. COUNTERPARTS. This Agreement may be executed in
several counterparts, each of which shall be an original and all of which shall
constitute but one and the same agreement.
SECTION 16. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 17. NOT APPLICABLE TO HARLEY-DAVIDSON CREDIT IN OTHER
CAPACITIES. Nothing in this Agreement shall affect any obligation
Harley-Davidson Credit may have in any other capacity.
SECTION 18. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND
INDENTURE TRUSTEE.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by [_______________] not in its individual
capacity but solely in its capacity as Owner Trustee of the Issuer and in no
event shall [_______________] in its individual capacity or any beneficial owner
of the Issuer have any liability for the representations, warranties, covenants,
agreements or other obligations of the Issuer hereunder, as to all of which
recourse shall be had solely to the assets of the Issuer. For all purposes of
this Agreement, in the performance of any duties or obligations of the Issuer
hereunder, the Owner Trustee shall be subject to, and entitled to the benefits
of, the terms and provisions of Articles Six, Seven and Eight of the Trust
Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by [_______________] not in its individual
capacity but solely as Indenture Trustee and in no event shall
[_______________] have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any
of the certificates, notices or agreements delivered pursuant hereto, as to
all of which recourse shall be had solely to the assets of the Issuer.
-12-
SECTION 19. THIRD-PARTY BENEFICIARY. The Owner Trustee is a
third-party beneficiary to this Agreement and is entitled to the rights and
benefits hereunder and may enforce the provisions hereof as if it were a party
hereto.
SECTION 20. SURVIVABILITY. The obligations of the Administrator
described in Section 1(a)(ii) hereof shall survive termination of this
Agreement.
SECTION 21. NO PETITION. (a) The Administrator will not at any
time institute against the Issuer or the Trust Depositor any bankruptcy
proceedings under any United States federal or state bankruptcy or similar law
in connection with any obligations relating to the Trust Certificates, the
Notes, this Agreement or any of the other Transaction Documents.
[signature page follows]
-13-
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first above
written.
HARLEY-DAVIDSON MOTORCYCLE
TRUST [______]
By: [__________________], not in its
individual capacity but solely as Owner
Trustee
By: _____________________________________
Printed Name: _____________________
Title: ___________________________________
HARLEY-DAVIDSON CUSTOMER FUNDING
CORP., as Trust Depositor
By: _____________________________________
Printed Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
[_______________], not in
its individual capacity but solely as Indenture
Trustee
By: _____________________________________
Printed Name: ______________________
Title: __________________________________
HARLEY-DAVIDSON CREDIT CORP.,
as Administrator
By: _____________________________________
Printed Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
Signature Page to Administration Agreement
EXHIBIT A
LIMITED POWER OF ATTORNEY
State of Illinois )
) SS.
County of Xxxx )
KNOW ALL PERSONS BY THESE PRESENTS, that [______________], a Delaware
banking corporation (the "OWNER TRUSTEE"), whose principal executive office is
located at [__________________________________] Attention: [_______________], by
and through its duly elected and authorized officer, ________________________, a
___________________, on behalf of itself and of Harley-Davidson Motorcycle Trust
[______] (the "TRUST") as Issuer under the Administration Agreement, dated as of
[_________] (the "ADMINISTRATION AGREEMENT"), among the Trust, Harley-Davidson
Customer Funding Corp., [_______________], as Indenture Trustee, and
Harley-Davidson Credit Corp., as Administrator, does hereby nominate, constitute
and appoint Harley-Davidson Credit Corp., a Nevada corporation, each of its
officers from time to time and each of its employees authorized by it from time
to time to act hereunder, jointly and each of them severally, together or acting
alone, its true and lawful attorney-in-fact, for the Owner Trustee and the
Issuer in their name, place and xxxxx, in the sole discretion of such
attorney-in-fact, to perform such calculations and prepare or cause the
preparation by other appropriate persons of, and to execute on behalf of the
Issuer or the Owner Trustee, all such documents, reports, filings, instruments,
certificates and opinions that the Issuer or the Owner Trustee is required to
prepare, file or deliver pursuant to the Administration Agreement, and to take
any and all other action, as such attorney-in-fact may deem necessary or
desirable in accordance with the directions of the Owner Trustee and in
connection with its duties as Administrator or successor Administrator under the
Administration Agreement. Capitalized terms used herein that are not otherwise
defined shall have the meanings ascribed thereto in the Administration
Agreement.
The Owner Trustee hereby ratifies and confirms the execution, delivery
and performance (whether before or after the date hereof) of the above-mentioned
documents, reports, filings, instruments, certificates and opinions, by the
attorney-in-fact and all that the attorney-in-fact shall lawfully do or cause to
be done by virtue hereof.
The Owner Trustee hereby agrees that no person or other entity dealing
with the attorney-in-fact shall be bound to inquire into such attorney-in-fact's
power and authority hereunder and any such person or entity shall be fully
protected in relying on such power of authority.
This Limited Power of Attorney may not be assigned without the prior
written consent of the Owner Trustee. It is effective immediately and will
continue until it is revoked.
A-1
This Limited Power of Attorney shall be governed and construed in
accordance with the laws of the State of Illinois without reference to
principles of conflicts of law.
Executed as of this _____ day of [_______________].
[________________], not in its individual
capacity but solely as Owner Trustee
By: _______________________________
Printed Name: _______________________
Title: ______________________________
CERTIFICATE OF ACKNOWLEDGMENT OF
NOTARY PUBLIC
State of Delaware )
) SS.
County of New Castle )
On _____________, ______ before me, __________________________________
[Insert name and title of notary]
personally appeared ________________________.
/ / personally known to me, or
/ / proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ties), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which person(s) acted, executed the instrument.
WITNESS my hand and official seal.
Signature: ________________________________________
[SEAL]
