EXHIBIT 99.2
FORM OF
SECURITY AGREEMENT
dated as of [_____]
between
HARLEY-DAVIDSON CUSTOMER FUNDING CORP.,
and
[________________],
as Trustee and as Collateral Agent
TABLE OF CONTENTS
Security Agreement................................................................1
SECURITY AGREEMENT................................................................3
RECITALS..........................................................................3
AGREEMENTS........................................................................3
ARTICLE I.........................................................................4
DEFINITIONS.......................................................................4
ARTICLE II........................................................................6
THE COLLATERAL....................................................................6
ARTICLE III.......................................................................8
THE ACCOUNTS......................................................................8
ARTICLE IV.......................................................................12
COLLATERAL AGENT.................................................................12
ARTICLE V........................................................................16
COVENANTS OF THE TRUST DEPOSITOR.................................................16
Section 5.06. Trust Depositor Changes......................................17
ARTICLE VI.......................................................................18
[RESERVED].......................................................................18
ARTICLE VII......................................................................18
REMEDIES UPON DEFAULT............................................................18
ARTICLE VIII.....................................................................19
MISCELLANEOUS....................................................................19
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SECURITY AGREEMENT
THIS SECURITY AGREEMENT, dated as of [_____] (the "AGREEMENT"), is by
and between HARLEY-DAVIDSON CUSTOMER FUNDING CORP., a Nevada corporation (the
"TRUST DEPOSITOR"), and [_______________], an Illinois banking corporation in
its capacities as Trustee under the [_____] Pooling and Servicing Agreement
referred to below (the "TRUSTEE") and as Collateral Agent (as defined below).
RECITALS
1. [________________] (the "TRUST") is being formed contemporaneously
herewith pursuant to a Pooling and Servicing Agreement, dated as of [_____] (the
"POOLING AND SERVICING AGREEMENT"), by and among the parent and sole shareholder
of the Trust Depositor, Harley-Davidson Credit Corp. ("HDCC") (in its capacity
as Servicer), the Trust Depositor and the Trustee.
2. Pursuant to the Pooling and Servicing Agreement, the Trust Depositor
is transferring to the Trust all of its right, title and interest in and to the
Initial Contracts, certain related assets and certain other assets including an
Agreement to Deposit Contracts, dated as of [_____] between the Trust Depositor
and the Trustee for the benefit of the Trust (the "DEPOSIT AGREEMENT") in
exchange for the Certificates.
3. Upon sale of the Certificates to investor(s), the Trust Depositor is
applying part of the proceeds thereof to the purchase of Contract Assets
relating to the Initial Contracts from HDCC (in an aggregate Principal Balance
of $[____] as of the related Cutoff Date) to be concurrently transferred to the
Trust on the Closing Date, but is retaining the remainder of the proceeds of
such sale (in the amount of $[____]) to use for purchases of Subsequent
Contracts from HDCC (or to pay Liquidated Damages) in order to satisfy its
obligations to the Trust under the Deposit Agreement.
4. In order to secure the payment and performance of the Secured
Obligations (as defined below) of the Trust Depositor under the Deposit
Agreement, and in consideration of the Trust's issuance of the Class A
Certificates and the Class B Certificates (collectively, the "SERIES
CERTIFICATES") to or upon the order of the Trust Depositor, the Trust Depositor
has agreed to pledge the Collateral (as defined below) to the Collateral Agent
for the benefit of the Secured Party (as defined below).
AGREEMENTS
In consideration of the premises, and for other good and valuable
consideration, the adequacy, receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
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ARTICLE I
DEFINITIONS
Section 1.01. Definitions. Unless defined in this Agreement,
capitalized terms used in this Agreement (including in the recitals above) shall
have the meaning given such terms in the Pooling and Servicing Agreement. The
following terms shall have the following respective meanings:
"Accounts" means, collectively, the Pre-Funding Account and the
Interest Reserve Account, or either of them as the context requires.
"Authorized Officer" means, (i) with respect to the Trustee or the
Collateral Agent, any Vice President or Trust Officer thereof, (ii) with respect
to HDCC, the President or any Vice President thereof, and (iii) with respect to
the Trust Depositor, the President or any Vice President thereof.
"COLLATERAL" has the meaning specified in Section 2.01(a) hereof.
"COLLATERAL AGENT" means, initially, [_______________], in its capacity
as collateral agent on behalf of the Secured Party, including its successors in
interest, until a successor Person shall have become the Collateral Agent
pursuant to Section 4.05 hereof, and thereafter "COLLATERAL AGENT" shall mean
such successor Person.
"DEFAULT" means, at any time, any failure by the Trust Depositor to
make payment or render performance when due hereunder or under the Deposit
Agreement.
"ELIGIBLE INVESTMENTS" has the meaning given such term in the Pooling
and Servicing Agreement, but with references, respectively, to the Trustee and
the Trust in the definition thereof contained therein being deemed, for purposes
of this Agreement, to be references to, respectively, the Collateral Agent and
(collectively) the Interest Reserve Account and Pre-Funding Account.
"HDCC" means Harley Davidson Credit Corp., a Nevada corporation.
"Interest Reserve Account" has the meaning given such term in Section
3.01 below.
"LIEN" means, as applied to the property or assets (or the income,
proceeds, products, rents or profits therefrom) of any Person, in each case
whether the same is consensual or nonconsensual or arises by contract, operation
of law, legal process or otherwise: (a) any mortgage, lien, pledge, attachment,
charge, lease, conditional sale or other title retention agreement, or other
security interest or encumbrance of any kind; or (b) any arrangement, express or
implied, under which such property or assets (and/or such income, proceeds,
products, rents or profits) are transferred, sequestered or otherwise identified
for the purpose of subjecting or making available the same for payment of debt
or performance of any other obligation in priority to the payment of the
general, unsecured creditors of such Person.
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"PRE-FUNDING ACCOUNT" has the meaning given such term in
Section 3.01 below.
"PRINCIPAL BALANCE" with respect to a Contract or Contracts in the
aggregate, has the meaning given such term in the [_____] Pooling and Servicing
Agreement.
"SECURED OBLIGATIONS" means all obligations and amounts of the Trust
Depositor owed or owing at any time hereunder or under the Deposit Agreement.
"SECURED PARTY" means the Trustee for the benefit of the Trust.
"SECURITY INTERESTS" means the security interest and Lien in the
Collateral granted pursuant to Section 2.01 hereof.
"QUALIFIED ELIGIBLE INVESTMENTS" means Eligible Investments acquired by
the Collateral Agent in its name and in the capacity of Collateral Agent
hereunder, which are held by the Collateral Agent in the Pre-Funding Account or
the Interest Reserve Account and with respect to which (a) the Collateral Agent
has noted the Secured Party's interest therein on its books and records, and (b)
the Collateral Agent has purchased such investments for value without notice of
any adverse claim thereto (and, if such investments are securities or other
financial assets or interests therein, within the meaning of Section 8-102 of
the UCC as enacted in Illinois, without acting in collusion with a securities
intermediary in violating such securities intermediary's obligations to
entitlement holders in such assets, under Section 8-504 of such UCC, to maintain
a sufficient quantity of such assets in favor of such entitlement holders), and
(c) either (i) such investments are in the possession of the Collateral Agent,
or (ii) such investments, (A) if certificated securities and in bearer form,
have been delivered to the Collateral Agent, or in registered form, have been
delivered to the Collateral Agent and either registered by the issuer in the
name of the Collateral Agent or endorsed by effective endorsement to the
Collateral Agent or in blank; (B) if uncertificated securities, the ownership of
which has been registered to the Collateral Agent on the books of the issuer
thereof (or another person, other than a securities intermediary, either becomes
the registered owner of the uncertified security on behalf of the Collateral
Agent or, having previously become the registered owner, acknowledges that it
holds for the Collateral Agent); or (C) if securities entitlements (within the
meaning of Section 8-102 of the UCC as enacted in Illinois) representing
interests in securities or other financial assets (or interests therein) held by
a securities intermediary (within the meaning of said Section 8-102), a
securities intermediary indicates by book entry that a security or other
financial asset has been credited to the Collateral Agent's securities account
with such securities intermediary. Any such Qualified Eligible Investment may be
purchased by or through the Collateral Agent or any of its affiliates.
"TRUSTEE TERMINATION DATE" means the date on which the Trustee shall
have received, as Trustee for the holders of the Certificates, payment and
performance in full of all Secured Obligations hereunder.
"UNIFORM COMMERCIAL CODE" or "UCC" means the Uniform Commercial Code in
effect in the relevant jurisdiction, as the same may be amended from time to
time.
Section 1.02. Rules of Interpretation. The terms "HEREOF," "HEREIN"
or "HEREUNDER," unless otherwise modified by more specific reference, shall
refer to this Agreement in its
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entirety. Unless otherwise indicated in context, the terms "ARTICLE," "SECTION,"
"APPENDIX," "EXHIBIT" or "ANNEX" shall refer to an Article or Section of, or
Appendix, Exhibit or Annex to, this Agreement. The definition of a term shall
include the singular, the plural, the past, the present, the future, the active
and the passive forms of such term.
ARTICLE II
THE COLLATERAL
Section 2.01. Grant of Security Interest by the Trust Depositor.
(a) In order to secure the performance of the Secured Obligations, the Trust
Depositor hereby pledges, assigns, grants, transfers and conveys to the
Collateral Agent, on behalf of and for the benefit of the Secured Party to
secure such Secured Obligations, a lien on and security interest in (which lien
and security interest is intended to be prior to all other Liens), all of its
right, title and interest in and to the following (all being collectively
referred to herein as the "COLLATERAL"):
(i) the Pre-Funding Account established pursuant to Section
3.01 hereof (including, without limitation, the initial deposit of
$[____] (the "INITIAL PRE-FUNDED AMOUNT") therein on the Closing Date,
and all additional monies, checks, securities, investments and other
items or documents at any time held in or evidencing the Pre-Funding
Account);
(ii) the Interest Reserve Account established pursuant to
Section 3.01 hereof (including, without limitation, the initial deposit
of $[____] therein by the Trust Depositor on the Closing Date, and all
additional monies, checks, securities, investments and other items or
documents at any time held in or evidencing the Interest Reserve
Account);
(iii) all of the Trust Depositor's right, title and interest
in and to investments made with proceeds of the property described in
clauses (i) and (ii) above; and
(iv) all distributions, revenues, products, substitutions,
benefits, profits and proceeds, in whatever form, of any of the
foregoing.
(b) In order to effectuate the provisions and purposes of this
Agreement, including for the purpose of perfecting the security interests
granted hereunder, the Trust Depositor represents and warrants that it has,
prior to (or coterminously with) the execution of this Agreement, executed and
filed (or submitted for filing) an appropriate Uniform Commercial Code financing
statement in Nevada and Illinois sufficient to assure that the Collateral Agent,
as agent for the Secured Party, has a first priority perfected security interest
in all Collateral which can be perfected by the filing of a financing statement.
The Trust Depositor agrees and acknowledges that the Collateral Agent is to have
"control" (within the meaning of Section 8-102 of the UCC as enacted in
Illinois) of Collateral comprised of "Investment Property" (within the meaning
of Section 9-115 of the UCC as enacted in Illinois) for all purposes of this
Agreement.
Section 2.02. Priority. The Trust Depositor intends the security
interests in favor of the Secured Party to be prior to all other Liens in
respect of the Collateral, and the Trust Depositor
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shall take all actions necessary to obtain and maintain, in favor of the
Collateral Agent, for the benefit of the Secured Party's, a first lien on and a
first priority, perfected security interest in the Collateral. Subject to the
provisions hereof, the Collateral Agent for the benefit of the Secured Party
shall have all of the rights, remedies and recourse with respect to the
Collateral afforded a secured party under the Uniform Commercial Code, and all
other applicable law in addition to, and not in limitation of, the other rights,
remedies and recourse granted to the Collateral Agent for the benefit of the
Secured Party by this Agreement or any other law relating to the creation and
perfection of liens on, and security interests in, the Collateral.
Section 2.03. Trust Depositor Remains Liable. The Security Interest
is granted as security only and shall not (i) transfer or in any way affect or
modify, or relieve the Trust Depositor from, any obligation to perform or
satisfy any term, covenant, condition or agreement to be performed or satisfied
by the Trust Depositor under or in connection with this Agreement or any other
Transaction Document to which it is a party or (ii) impose any obligation on any
of the Secured Party or the Collateral Agent to perform or observe any such
term, covenant, condition or agreement or impose any liability on any of the
Secured Party or the Collateral Agent for any act or omission on its part
relative thereto or for any breach of any representation or warranty on its part
contained therein or made in connection therewith, except, in each case, to the
extent provided herein and in the other Transaction Documents.
Section 2.04. Maintenance of Collateral. (a) SAFEKEEPING. The
Collateral Agent on behalf of and for the benefit of the Secured Party agrees to
maintain the Collateral received by it (or evidence thereof, in the case of
book-entry securities in the name of the Collateral Agent) and all records and
documents relating thereto at the office of the Collateral Agent specified in
Section 8.06 hereof or such other address within the State of Illinois (unless
all filings have been made or other action taken to continue the perfection of
the security interest in the Collateral to the extent such security interest can
be perfected by filing a financing statement or taking such other action, as
evidenced by an Opinion of Counsel delivered to the Trustee). The Collateral
Agent shall keep all Collateral and related documentation in its possession
separate and apart from all other property that it is holding in its possession
and from its own general assets and shall maintain accurate records pertaining
to the initial deposits to the Accounts, the Accounts themselves and the
Qualified Eligible Investments therein included in the Collateral in such a
manner as shall enable the Collateral Agent and the Secured Party to verify the
accuracy of such record-keeping. The Collateral Agent's books and records shall
at all times show that the Collateral is held by the Collateral Agent as agent
of the Secured Party and is not the property of the Collateral Agent. The
Collateral Agent will promptly report to the Secured Party and the Trust
Depositor any failure on its part to hold the Collateral as provided in this
Section 2.04(a) and will promptly take appropriate action to remedy any such
failure.
(b) ACCESS. The Collateral Agent shall permit the Secured Party, or its
duly authorized representatives, attorneys, auditors or designees, to inspect
the Collateral in the possession of or otherwise under the control of the
Collateral Agent pursuant hereto at such reasonable times during normal business
hours as any such Secured Party may reasonably request upon not less than one
Business Day's prior written notice. The costs and expenses associated with any
such inspection will be paid by the party making such inspection.
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Section 2.05. Termination and Release of Rights. Upon the
occurrence of both (i) the termination of the Funding Period and the payment
(and receipt by the Trust) of all associated Liquidated Damages or, if earlier,
upon the exhaustion of the Pre-Funding Account in its entirety for the purpose
of acquiring Subsequent Contracts from HDCC at or prior to the termination of
the Funding Period, (ii) the elapsing of a Payment Date following the event
described in clause (i), and (iii) the application of such funds as provided
under the Pooling and Servicing Agreement, the rights, remedies, powers, duties,
authority and obligations conferred upon the Collateral Agent for the benefit of
the Secured Party pursuant to this Agreement in respect of the Collateral shall
terminate and be of no further force and effect and all rights, remedies,
powers, duties, authority and obligations of the Collateral Agent for the
benefit of the Secured Party with respect to such Collateral shall be
automatically released. The Secured Party in such event agrees, at the expense
of the Trust Depositor, to execute and deliver such instruments as the Trust
Depositor may reasonably request to effectuate such release, and any such
instruments so executed and delivered shall be fully binding on the Secured
Party.
Section 2.06. Non-Recourse Obligations of Trust Depositor.
Notwithstanding anything herein or in the other Transaction Documents to the
contrary, the parties hereto agree that the obligations of the Trust Depositor
hereunder (without limiting the obligation to apply distributions from the
respective Accounts hereunder in accordance with Section 3.03) shall be recourse
only to the extent of the Collateral available hereunder. The Trust Depositor
agrees that it shall not declare or make payment of (i) any dividend or other
payment on or in respect of any shares of its capital stock or (ii) any payment
on account of the purchase, redemption, retirement or acquisition of (x) any
shares of its capital stock or (y) any option, warrant or other right to acquire
shares of its capital stock, unless (in each case) at the time of such
declaration or payment (and after giving effect thereto) no amount payable by
the Trust Depositor under any Transaction Document is then due and owing but
unpaid. Nothing contained herein shall be deemed to limit the rights of the
Certificateholders under any other Transaction Document.
ARTICLE III
THE ACCOUNTS
Section 3.01......Establishment of Accounts; Initial Deposits into
Accounts. (a) On or prior to the Closing Date, the Trust Depositor shall direct
the Collateral Agent to establish, and the Collateral Agent shall establish, in
its name and at its office or at another depository institution or trust
company, separate Eligible Accounts, designated respectively the
"Harley-Davidson Customer Funding Corp. Pre-Funding Account - [ ] -
[_______________], as Collateral Agent for the benefit of the Secured Party"
(such account being the "PRE-FUNDING ACCOUNT") and the "Harley-Davidson Customer
Funding Corp. Interest Reserve Account - [ ] - [_______________], as Collateral
Agent for the Secured Party" (such account being the "INTEREST RESERVE
ACCOUNT"). All Accounts established under this Agreement shall be
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maintained at the same depository institution (which depository institution may
be changed by the Collateral Agent from time to time in accordance with Section
3.04 of this Agreement).
(b) No withdrawals may be made of funds in any Account except as
provided in Section 3.03 of this Agreement. Except as specifically provided in
this Agreement, funds in any Account shall not be commingled with funds in any
other account or accounts established with respect to the Certificates, another
of trust certificates, or with any other moneys. All moneys deposited from time
to time in such Accounts and all investments made with such moneys shall be held
by the Collateral Agent as part of the Collateral hereunder.
(c) On the Closing Date, the Collateral Agent shall deposit the initial
Pre-Funded Amount, if any, received from the Trust Depositor into the
Pre-Funding Account, and shall deposit any amounts received from the Trust
Depositor in respect of the Interest Reserve Amount in the Interest Reserve
Account.
(d) Each Account shall be separate from the Trust and amounts on
deposit therein will not constitute a part of the Trust Corpus. The Accounts
shall be maintained by the Collateral Agent at all times separate and apart from
any other account of the Trust Depositor, HDCC, the Servicer or the Trust. All
income or loss on investments of funds in any Account shall be reported by the
Trust Depositor as taxable income or loss of the Trust Depositor.
Section 3.02. Investments. (a) The Collateral Agent shall invest
and reinvest funds which may at any time be held in any Account established
hereunder, at the written direction (which may include, subject to the
provisions hereof, general standing instructions) of the Trust Depositor or its
designee received by the Collateral Agent by 1:00 P.M. New York City time on the
Business Day prior to the date on which such investment shall be made, in one or
more Qualified Eligible Investments. If no written direction with respect to any
portion of such Account is received by the Collateral Agent, the Collateral
Agent shall invest such funds overnight in such Qualified Eligible Investments
as the Collateral Agent may select, provided that the Collateral Agent shall not
be liable for any loss or absence of income resulting from such investment.
(b) Each investment made pursuant to this Section 3.02 on any date
shall mature not later than (i) in the case of the Interest Reserve Account, the
Business Day immediately preceding the Payment Date next succeeding the day such
investment is made, and (ii) in the case of the Pre-Funding Account, the
Business Day immediately preceding a Subsequent Transfer Date or the end of the
Funding Period; PROVIDED that any investment of funds held in any Account
maintained with the Collateral Agent (which shall be qualified as a Qualified
Eligible Investment) in any investment as to which the Collateral Agent in its
individual capacity is the obligor (including any repurchase agreement on which
the Collateral Agent in its commercial capacity is liable as principal) may
mature upon the succeeding Payment Date, Subsequent Transfer Date or end of the
Funding Period, as the case may be, rather than on the Business Day immediately
preceding such dates.
(c) Subject to the other provisions hereof, the Collateral Agent shall
have sole control over each Qualified Eligible Investment and the income
thereon, and any certificate or other instrument evidencing any such investment,
if any, shall be delivered directly to the Collateral
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Agent or its agent, together with each document of transfer, if any, necessary
to transfer title to such investment to the Collateral Agent in a manner which
complies with Section 2.04 and the requirements of the definition of "Qualified
Eligible Investments" herein.
(d) If amounts on deposit in any Account are at any time invested in a
Qualified Eligible Investment payable on demand, the Collateral Agent shall (i)
consistent with any notice required to be given thereunder, demand that payment
thereon be made on the last day such Qualified Eligible Investment is permitted
to mature under the provisions hereof and (ii) demand payment of all amounts due
thereunder promptly upon receipt of written notice from the Trustee to the
effect that such investment does not constitute a Qualified Eligible Investment.
(e) Subject to Section 4.03 hereof, the Collateral Agent shall not be
liable by reason of any insufficiency in any Account resulting from any loss on
any Qualified Eligible Investment included therein except for losses
attributable to the Collateral Agent's failure to make payments on Qualified
Eligible Investments as to which the Collateral Agent, in its individual
capacity, is obligated.
Section 3.03. Distributions from Accounts. All investment earnings
realized in respect of amounts in the Pre-Funding Account shall be deposited
when and as received in the Interest Reserve Account, such that the Pre-Funded
Amount shall never exceed the amount initially deposited into the Pre-Funding
Account on the Closing Date. Following receipt from the Trust Depositor of an
Addition Notice, and upon further receipt of a written demand from the Trust
Depositor for a disbursement of funds from the Pre-Funding Account to be made on
or before the date on which the Funding Period terminates (which written demand
must be delivered not later than one Business Day prior to the requested date of
funding, and must be accompanied by the written consent of the Trustee), the
Collateral Agent will disburse the amount demanded from the Pre-Funding Account
to HDCC upon the order of the Trust Depositor for the purpose of purchasing
Subsequent Contracts from HDCC pursuant to a Subsequent Purchase Agreement. With
respect to amounts still remaining on deposit in the Pre-Funding Account on the
date upon which the Funding Period ends (and provided a timely written demand
for funding as described above has not been received requesting funding on such
date), and upon receipt from the Trustee of a written demand for payment in
respect of Liquidated Damages, the Collateral Agent shall immediately disburse
all funds remaining in the Pre-Funding Account to the Trustee for deposit in the
Special Distribution Account maintained by the Trustee. With respect to amounts
on deposit in the Interest Reserve Account, the Collateral Agent shall disburse
from such funds to the Trustee immediately upon receipt of the Trustee's written
demand therefor, the amount specified in such demand in respect of Carrying
Charges in accordance with Section 8.03(b) of the Pooling and Servicing
Agreement. In addition, on the Payment Date with respect to which such
disbursement of Carrying Charges was made, and following such disbursement and
the distribution thereof pursuant to the [_____] Pooling and Servicing
Agreement, the Collateral Agent shall release to the Trust Depositor, free and
clear of the Lien and security interest established hereunder, an amount equal
to the excess (if any) of the Interest Reserve Amount at such time over the
Requisite Interest Reserve Amount for such Payment Date. In the event that (i)
the Funding Period has terminated, (ii) all amounts on deposit in the
Pre-Funding Account have been disbursed, (iii) a Payment Date has elapsed
following the occurrence of both (i) and (ii), and (iv) all amounts referred to
in clause (ii) have been applied in accordance with the Pooling and Servicing
Agreement, then any amounts remaining in the Interest Reserve Account
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shall be distributed to the Trust Depositor free and clear of the Lien and
security interest established hereunder.
Section 3.04. General Provisions Regarding Accounts. (a) Promptly
upon the establishment (initially or upon any relocation) of an Account
hereunder, the Collateral Agent shall advise the Trust Depositor and the Secured
Party in writing of the name and address of the depository institution or trust
company where such Account has been established (if not [_______________] or any
successor Collateral Agent in its commercial banking capacity), the name of the
officer of the depository institution who is responsible for overseeing such
Account, the account number and the individuals whose names appear on the
signature cards for such Account. The Trust Depositor shall cause each such
depository institution or trust company to execute a written agreement, in form
and substance satisfactory to the Trustee, waiving, and the Collateral Agent by
its execution of this Agreement hereby waives (except to the extent expressly
provided herein), except for amounts or fees due the Collateral Agent hereunder
in each case to the extent permitted under applicable law, (i) any banker's or
other statutory or similar Lien, and (ii) any right of set-off or other similar
right under applicable law with respect to such Account and any other Account
and agreeing, and the Collateral Agent by its execution of this Agreement hereby
agrees, to notify the Trust Depositor, the Collateral Agent, and the Secured
Party of any charge or claim against or with respect to such Account. The
Collateral Agent shall give the Trust Depositor and the Secured Party at least
ten Business Days' prior written notice of any change in the location of such
Account or in any related account information. If the Collateral Agent changes
the location of any Account, it shall change the location of each other Account,
so that all Accounts shall at all times be located at the same depository
institution. Anything herein to the contrary notwithstanding, unless otherwise
consented (not to be unreasonably withheld) to by the Secured Party in writing,
the Collateral Agent shall have no right to change the location of any Account.
(b) Upon the written request of the Secured Party or the Trust
Depositor and at the expense of the Trust Depositor, the Collateral Agent shall
cause, at the expense of the Trust Depositor, the depository institution at
which any Account is located to forward to the requesting party copies of all
monthly account statements for such Account.
(c) If at any time any Account ceases to be an Eligible Account, the
Collateral Agent shall, upon obtaining actual knowledge of such event, notify
the Secured Party of such fact and shall establish within ten Business Days of
such determination, in accordance with paragraph (a) of this Section, a
successor Account thereto, which shall be an Eligible Account, at another
depository institution acceptable to the Secured Party and shall establish
successor Accounts with respect to all other Accounts, each of which shall be an
Eligible Account, at the same depository institution.
(d) No passbook, certificate of deposit or other similar instrument
evidencing an Account shall be issued, and all contracts, receipts and other
papers, if any, governing or evidencing an Account shall be held by the
Collateral Agent.
Section 3.05. Reports by the Collateral Agent. The Collateral Agent
shall report to the Trust Depositor, the Trustee and the Servicer on a monthly
basis no later than each Payment Date with respect to the amount on deposit in
each Account and the identity of the investments
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included therein as of the last day of the related Due Period. The Collateral
Agent shall provide accountings of deposits into and withdrawals from the
Accounts, and of the investments made therein, upon the written request of the
Trustee, Servicer and the Trust Depositor.
ARTICLE IV
COLLATERAL AGENT
Section 4.01......Appointment and Powers. Subject to the terms and
conditions hereof, the Secured Party hereby appoints [_______________] as the
Collateral Agent with respect to the Collateral, and [_______________] hereby
accepts such appointment and agrees to act as Collateral Agent with respect to
the Collateral for the Secured Party, to maintain custody and possession of such
Collateral (except as otherwise provided hereunder) and to perform the other
duties of the Collateral Agent in accordance with the provisions of this
Agreement, and the Collateral Agent in accepting such appointment affirms that
it is not acting as an agent for HDCC or the Trust Depositor for such purposes.
The Secured Party hereby authorizes the Collateral Agent to take such action on
its behalf, and to exercise such rights, remedies, powers and privileges
hereunder, as the Secured Party may in writing direct and as are specifically
authorized to be exercised by the Collateral Agent by the terms hereof, together
with such actions, rights, remedies, powers and privileges as are reasonably
incidental thereto. The Collateral Agent shall act upon and in compliance with
the written instructions of the Secured Party delivered pursuant to this
Agreement promptly following receipt of such written instructions; provided that
the Collateral Agent shall not act in accordance with any instructions (i) which
are not authorized by, or in violation of the provisions of, this Agreement,
(ii) which are in violation of any applicable law, rule or regulation or (iii)
for which the Collateral Agent has not received reasonable indemnity.
Section 4.02. Performance of Duties. The Collateral Agent shall
have no duties or responsibilities except those expressly set forth in this
Agreement and the other Transaction Documents to which the Collateral Agent is a
party or, subject to Section 4.01 above, as directed in writing by the Secured
Party in accordance with this Agreement. The Collateral Agent shall not be
required to take any discretionary actions hereunder except at the written
direction and with the indemnification of the Secured Party.
Section 4.03. Limitation on Liability. Neither the Collateral Agent
nor any of its directors, officers or employees, shall be liable for any action
taken or omitted to be taken by it or them hereunder, or in connection herewith,
except that the Collateral Agent shall be liable for its negligence, bad faith
or willful misconduct; nor shall the Collateral Agent be responsible for the
validity, effectiveness, value, sufficiency or enforceability against the Trust
Depositor of this Agreement or any of the Collateral (or any part thereof).
Notwithstanding any term or provision of this Agreement, the Collateral Agent
shall incur no liability to the Trust Depositor or the Secured Party for any
action taken or omitted by the Collateral Agent in connection with the
Collateral, except for the negligence or willful misconduct on the part of the
Collateral Agent, and, further, shall incur no liability to the Secured Party
except for negligence or willful misconduct in carrying out its duties to the
Secured Party. Subject to Section 4.04, the Collateral Agent shall be protected
and shall incur no liability to any such party in relying upon the
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accuracy, acting in reliance upon the contents, and assuming the genuineness of
any notice, demand, certificate, signature, instrument or other document
reasonably believed by the Collateral Agent to be genuine and to have been duly
executed by the appropriate signatory, and (absent actual knowledge to the
contrary) the Collateral Agent shall not be required to make any independent
investigation with respect thereto. The Collateral Agent shall at all times be
free independently to establish to its reasonable satisfaction, but shall have
no duty to independently verify, the existence or nonexistence of facts that are
a condition to the exercise or enforcement of any right or remedy hereunder or
under any of the Transaction Documents. The Collateral Agent may consult with
counsel, and shall not be liable for any action taken or omitted to be taken by
it hereunder in good faith and in accordance with the written advice of such
counsel. The Collateral Agent shall not be under any obligation to exercise any
of the remedial rights or powers vested in it by this Agreement or to follow any
direction from the Secured Party unless it shall have received reasonable
security or indemnity satisfactory to the Collateral Agent against the costs,
expenses and liabilities which might be incurred by it.
Section 4.04. Reliance upon Documents. In the absence of bad faith
or negligence on its part, the Collateral Agent shall be entitled to rely on any
communication, instrument, paper or other document reasonably believed by it to
be genuine and correct and to have been signed or sent by the proper Person or
Persons and shall have no liability in acting, or omitting to act, where such
action or omission to act is in reasonable reliance upon any statement or
opinion contained in any such document or instrument.
Section 4.05. Successor Collateral Agent. (a) MERGER. Any Person
into which the Collateral Agent may be converted or merged, or with which it may
be consolidated, or to which it may sell or transfer its trust business and
assets as a whole or substantially as a whole, or any Person resulting from any
such conversion, merger, consolidation, sale or transfer to which the Collateral
Agent is a party, shall (provided it is otherwise qualified to serve as the
Collateral Agent hereunder) be and become a successor Collateral Agent hereunder
and be vested with all of the title to and interest in the Collateral and all of
the trusts, powers, discretions, immunities, privileges and other matters as was
its predecessor without the execution or filing of any instrument or any further
act, deed or conveyance on the part of any of the parties hereto, anything
herein to the contrary notwithstanding, except to the extent, if any, that any
such action is necessary to perfect, or continue the perfection of, the security
interest of the Secured Party in the Collateral.
(b) RESIGNATION. The Collateral Agent and any successor Collateral
Agent may resign only (i) upon a determination that by reason of a change in
legal requirements the performance of its duties under this Agreement would
cause it to be in violation of such legal requirements in a manner which would
result in a material adverse effect on the Collateral Agent, and the Secured
Party does not elect to waive the Collateral Agent's obligation to perform those
duties which render it legally unable to act or elect to delegate those duties
to another Person, or (ii) with the prior written consent of the Secured Party
not to be unreasonably withheld. The Collateral Agent shall give not less than
60 days' prior written notice of any such permitted resignation by registered or
certified mail to the Secured Party and the Trust Depositor; PROVIDED, that such
resignation shall take effect only upon the date which is the latest of (i) the
effective date of the appointment of a successor Collateral Agent and the
acceptance in writing by such successor Collateral Agent of such appointment and
of its obligation to perform its duties hereunder in
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accordance with the provisions hereof, (ii) delivery of the Collateral to such
successor to be held in accordance with the procedures specified in Article II
hereof, and (iii) receipt by the Secured Party of an Opinion of Counsel to the
effect described in Section 5.02. Notwithstanding the preceding sentence, if by
the contemplated date of resignation specified in the written notice of
resignation delivered as described above no successor Collateral Agent or
temporary successor Collateral Agent has been appointed Collateral Agent or
becomes the Collateral Agent pursuant to subsection (d) hereof, the resigning
Collateral Agent may petition a court of competent jurisdiction in New York, New
York for the appointment of a successor.
(c) REMOVAL. The Collateral Agent may be removed by the Secured Party
at any time, with or without cause, by an instrument or concurrent instruments
in writing delivered to the Collateral Agent and the Trust Depositor. A
temporary successor may be removed at any time to allow a successor Collateral
Agent to be appointed pursuant to subsection (d) below. Any removal pursuant to
the provisions of this subsection (c) shall take effect only upon the date which
is the latest of (i) the effective date of the appointment of a successor
Collateral Agent and the acceptance in writing by such successor Collateral
Agent of such appointment and of its obligation to perform its duties hereunder
in accordance with the provisions hereof, (ii) delivery of the Collateral to
such successor to be held in accordance with the procedures specified in Article
II hereof and (iii) receipt by the Secured Party of an Opinion of Counsel to the
effect described in Section 5.02.
(d) ACCEPTANCE BY SUCCESSOR. The Secured Party shall have the sole
right to appoint each successor Collateral Agent. Every temporary or permanent
successor Collateral Agent appointed hereunder shall execute, acknowledge and
deliver to its predecessor and to the Secured Party and the Trust Depositor an
instrument in writing accepting such appointment hereunder and the relevant
predecessor shall execute, acknowledge and deliver such other documents and
instruments as will effectuate the delivery of all Collateral to the successor
Collateral Agent to be held in accordance with the procedures specified in
Article II hereof, whereupon such successor, without any further act, deed or
conveyance, shall become fully vested with all the estates, properties, rights,
powers, duties and obligations of its predecessor and such predecessor shall be
relieved and released of its obligations hereunder. Such predecessor shall,
nevertheless, on the written request of either the Secured Party or the Trust
Depositor, execute and deliver an instrument transferring to such successor all
the estates, properties, rights and powers of such predecessor hereunder. In the
event that any instrument in writing from the Trust Depositor or the Secured
Party is reasonably required by a successor Collateral Agent to more fully and
certainly vest in such successor the estates, properties, rights, powers, duties
and obligations vested or intended to be vested hereunder in the Collateral
Agent, any and all such written instruments shall, at the request of the
temporary or permanent successor Collateral Agent, be forthwith executed,
acknowledged and delivered by the Trust Depositor. The designation of any
successor Collateral Agent and the instrument or instruments removing any
Collateral Agent and appointing a successor hereunder, together with all other
instruments provided for herein, shall be maintained with the records relating
to the Collateral and, to the extent required by applicable law, filed or
recorded by the successor Collateral Agent in each place where such filing or
recording is necessary to effect the transfer of the Collateral to the successor
Collateral Agent or to protect or continue the perfection of the security
interests granted hereunder.
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Section 4.06. Indemnification. The Trust Depositor shall indemnify
the Collateral Agent, its directors, officers, employees and agents for, and
hold the Collateral Agent, its directors, officers, employees and agents
harmless against, any loss, liability or expense (including the costs and
expenses of defending against any claim of liability) arising out of or in
connection with the Collateral Agent's acting as Collateral Agent hereunder,
except such loss, liability or expense as shall result from the negligence, bad
faith or willful misconduct of the Collateral Agent or its officers or agents.
The obligation of the Trust Depositor under this Section shall survive the
termination of this Agreement and the resignation or removal of the Collateral
Agent. The Collateral Agent covenants and agrees that the obligations of the
Trust Depositor hereunder and under Section 4.07 shall be limited to the extent
provided in Section 2.06, and further covenants not to take any action to
enforce its rights to indemnification hereunder with respect to the Trust
Depositor and to payment under Section 4.07 except in accordance with the
provisions of Section 8.05, or otherwise to assert any Lien or take any other
action in respect of the Collateral or the Trust Corpus.
Section 4.07. Compensation and Reimbursement. The Trust Depositor
agrees for the benefit of the Secured Party and as part of the Secured
Obligations (a) to pay to the Collateral Agent, from time to time, reasonable
compensation for all services rendered by it hereunder (which compensation shall
not be limited by any provision of law in regard to the compensation of a
collateral trustee); and (b) to reimburse the Collateral Agent upon its request
for all reasonable expenses, disbursements and advances incurred or made by the
Collateral Agent in accordance with any provision of, or carrying out its duties
and obligations under, this Agreement (including the reasonable compensation and
fees and the expenses and disbursements of its agents, any independent certified
public accountants and counsel), except any expense, disbursement or advances as
may be attributable to negligence, bad faith or willful misconduct on the part
of the Collateral Agent.
Section 4.08. Representations and Warranties of the Collateral
Agent. The Collateral Agent represents and warrants to the Trust Depositor and
to the Secured Party in its capacity as Collateral Agent as follows:
(a) DUE ORGANIZATION. The Collateral Agent is an Illinois
banking corporation, duly organized, validly existing and in good
standing under the laws of the United States and is duly authorized and
licensed under applicable law to conduct its business as presently
conducted.
(b) CORPORATE POWER. The Collateral Agent has all requisite
right, power and authority to execute and deliver this Agreement and to
perform all of its duties as Collateral Agent hereunder.
(c) DUE AUTHORIZATION. The execution and delivery by the
Collateral Agent of this Agreement and the other Transaction Documents
to which it is a party, and the performance by the Collateral Agent of
its duties hereunder and thereunder, have been duly authorized by all
necessary corporate proceedings and no further approvals or filings,
including any governmental approvals, are required for the valid
execution and delivery by the Collateral Agent, or the performance by
the Collateral Agent, of this Agreement and such other Transaction
Documents.
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(d) VALID AND BINDING AGREEMENT. The Collateral Agent has duly
executed and delivered this Agreement and each other Transaction
Document to which it is a party, and each of this Agreement and each
such other Transaction Document constitutes the legal, valid and
binding obligation of the Collateral Agent, enforceable against the
Collateral Agent in accordance with its terms, except as (i) such
enforceability may be limited by bankruptcy, insolvency, reorganization
and similar laws relating to or affecting the enforcement of creditors'
rights generally and (ii) the availability of equitable remedies may be
limited by equitable principles of general applicability.
SECTION 4.09. WAIVER OF SETOFFS. The Collateral Agent hereby
expressly waives any and all rights of setoff that the Collateral Agent may
otherwise at any time have under applicable law with respect to any Account and
agrees that amounts in the Accounts shall at all times be held and applied
solely in accordance with the provisions hereof.
Section 4.10. Control by the Secured Party. The Collateral Agent
shall comply with notices and instructions given by the Trust Depositor only if
accompanied by the written consent of the Secured Party, except that if any
Default shall have occurred and be continuing, the Collateral Agent shall act
upon and comply with written notices and instructions given by the Secured Party
alone in the place and stead of the Trust Depositor.
ARTICLE V
COVENANTS OF THE TRUST DEPOSITOR
SECTION 5.01. PRESERVATION OF COLLATERAL. Subject to the rights,
powers and authorities granted to the Collateral Agent and the Secured Party in
this Agreement, the Trust Depositor shall take such action as is necessary and
proper with respect to the Collateral in order to preserve and maintain such
Collateral and to cause (subject to the rights of the Secured Party) the
Collateral Agent to perform its obligations with respect to such Collateral as
provided herein. The Trust Depositor will do, execute, acknowledge and deliver,
or cause to be done, executed, acknowledged and delivered, such instruments of
transfer or take such other steps or actions as may be necessary, or required by
the Secured Party, to perfect the Security Interests granted hereunder in the
Collateral, to ensure that such Security Interests rank prior to all other Liens
and to preserve the priority of such Security Interests and the validity and
enforceability thereof. Upon any delivery or substitution of Collateral, the
Trust Depositor shall be obligated to execute such documents and perform such
actions as are necessary to create in the Collateral Agent for the benefit of
the Secured Party a valid first Lien on, and valid and perfected, first priority
security interest in, the Collateral so delivered and to deliver such Collateral
to the Collateral Agent, free and clear of any other Lien, together with
satisfactory assurances thereof, and to pay any reasonable costs incurred by any
of the Secured Party or the Collateral Agent (including its agents) or otherwise
in connection with such delivery.
Section 5.02. Opinions as to Collateral. Not less than 10 days
prior to each date on which the Trust Depositor proposes to take any action
contemplated by Section 5.06, the Trust Depositor shall, at its own cost and
expense, furnish to the Secured Party and the Collateral Agent an Opinion of
Counsel reasonably acceptable to such parties stating either (a) that, in the
opinion of such counsel, such action has been taken with respect to the
execution and filing of
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any financing statements and continuation statements and other actions as are
necessary to perfect, maintain and protect the lien and security interest of the
Collateral Agent (and the priority thereof), on behalf of the Secured Party,
with respect to such Collateral against all creditors of and purchasers from the
Trust Depositor and reciting the details of such action, or (b) stating that, in
the opinion of such counsel, no such action is necessary to maintain such
perfected lien and security interest. Such Opinion of Counsel shall further
describe each execution and filing of any financing statements and continuation
statements and such other actions as will, in the opinion of such counsel, be
required to perfect, maintain and protect the lien and security interest of the
Collateral Agent, on behalf of the Secured Party, with respect to such
Collateral against all creditors of and purchasers from the Trust Depositor for
a period, specified in such Opinion, continuing until a date not earlier than
eighteen months from the date of such Opinion.
Section 5.03. Notices. In the event that the Trust Depositor
acquires knowledge of the occurrence and continuance of any event of default or
like event, howsoever described or called, under any of the Transaction
Documents, the Trust Depositor shall immediately give notice thereof to the
Collateral Agent and the Secured Party.
Section 5.04. Waiver of Stay or Extension Laws; Marshalling of
Assets. The Trust Depositor covenants, to the fullest extent permitted by
applicable law, that it will not at any time insist upon, plead, or in any
manner whatsoever claim or take the benefit or advantage of, any appraisement,
valuation, stay, extension or redemption law wherever enacted, now or at any
time hereafter in force, in order to prevent or hinder the enforcement of this
Agreement or any absolute sale of the Collateral or any part thereof, or the
possession thereof by any purchaser at any sale under Article VII of this
Agreement; and the Trust Depositor, to the fullest extent permitted by
applicable law, for itself and all who may claim under it, hereby waives the
benefit of all such laws, and covenants that it will not hinder, delay or impede
the execution of any power herein granted to the Collateral Agent, but will
suffer and permit the execution of every such power as though no such law had
been enacted. The Trust Depositor, for itself and all who may claim under it,
waives, to the fullest extent permitted by applicable law, all right to have the
Collateral marshalled upon any foreclosure or other disposition thereof.
Section 5.05. Noninterference, etc. The Trust Depositor shall not
(i) waive or alter any of its rights under the Collateral (or any agreement or
instrument relating thereto) without the prior written consent of the Collateral
Agent and the Secured Party; or (ii) fail to pay any tax, assessment, charge or
fee levied or assessed against the Collateral, or to defend any action, if such
failure to pay or defend may adversely affect the priority or enforceability of
the Trust Depositor's right, title or interest in and to the Collateral or the
Collateral Agent's lien on, and security interest in, the Collateral for the
benefit of the Secured Party; or (iii) take any action, or fail to take any
action, if such action or failure to take action will interfere with the
enforcement of any rights under the Transaction Documents.
Section 5.06. Trust Depositor Changes.
(a) CHANGE IN NAME, STRUCTURE, ETC. The Trust Depositor shall not
change its name, identity or corporate structure unless it shall have given the
Secured Party and the Collateral Agent at least 10 days' prior written notice
thereof, shall have effected any necessary or
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appropriate assignments or amendments thereto and filings of financing
statements or amendments thereto, and shall have delivered to the Collateral
Agent and the Secured Party an Opinion of Counsel of the type described in
Section 5.02.
(b) RELOCATION OF THE TRUST DEPOSITOR. The Trust Depositor shall not
change its principal executive office unless it gives the Secured Party and the
Collateral Agent at least 10 days' prior written notice of any relocation of its
principal executive office. If the Trust Depositor relocates its principal
executive office or principal place of business from Nevada, the Trust Depositor
shall give prior notice thereof to the Secured Party and the Collateral Agent
and shall effect whatever appropriate recordations and filings are necessary and
shall provide an Opinion of Counsel to the Secured Party and the Collateral
Agent, to the effect that, upon the recording of any necessary assignments or
amendments to previously-recorded assignments and filing of any necessary
amendments to the previously filed financing or continuation statements or upon
the filing of one or more specified new financing statements, and the taking of
such other actions as may be specified in such opinion, the security interests
in the Collateral shall remain, after such relocation, valid and perfected.
ARTICLE VI
[RESERVED]
ARTICLE VII
REMEDIES UPON DEFAULT
Section 7.01. Remedies upon a Default. If a Default has occurred
and is continuing, the Collateral Agent shall, at the written direction of the
Secured Party, take whatever action at law or in equity as may appear necessary
or desirable in the judgment of the Secured Party to collect and satisfy all
outstanding Secured Obligations including, but not limited to, foreclosure upon
the Collateral and all other rights available to Secured Party under applicable
law or to enforce performance and observance of any obligation, agreement or
covenant under any of the Transaction Documents.
Section 7.02. Waiver of Default. The Secured Party shall have the
sole right, to be exercised in its complete discretion, to waive any Default in
respect of a failure to pay Carrying Charges under the Deposit Agreement, but no
waiver is permitted with respect to the Trust Depositor's obligation, on or
prior to the end of the Funding Period, either to transfer to the Trust
Subsequent Contracts with an aggregate Principal Balance equal to the initial
Pre-Funded Amount or to pay Liquidated Damages in the event of a failure to do
so. Any waiver permitted hereunder shall be binding upon the Collateral Agent.
Unless such writing expressly provides to the contrary, any waiver so granted
shall extend only to the specific event or occurrence which gave rise to the
Default so waived and not to any other similar event or occurrence which occurs
subsequent to the date of such waiver.
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Section 7.03. Restoration of Rights and Remedies. If the Collateral
Agent has instituted any proceeding to enforce any right or remedy under this
Agreement, and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to such Collateral Agent, then and in
every such case the Trust Depositor, the Collateral Agent and the Secured Party
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights
and remedies of the Collateral Agent and the Secured Party shall continue as
though no such proceeding had been instituted.
Section 7.04. No Remedy Exclusive. No right or remedy herein
conferred upon or reserved to the Collateral Agent or the Secured Party is
intended to be exclusive of any other right or remedy, and every right or remedy
shall, to the extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at law, in
equity or otherwise (but, in each case, shall be subject to the provisions of
this Agreement limiting such remedies), and each and every right, power and
remedy whether specifically herein given or otherwise existing may be exercised
from time to time and as often and in such order as may be deemed expedient by
the Secured Party, and the exercise of or the beginning of the exercise of any
right or power or remedy shall not be construed to be a waiver of the right to
exercise at the same time or thereafter any other right, power or remedy.
ARTICLE VIII
MISCELLANEOUS
Section 8.01. Further Assurances. Each party hereto shall take such
action and deliver such instruments to any other party hereto, in addition to
the actions and instruments specifically provided for herein, as may be
reasonably requested or required to effectuate the purpose or provisions of this
Agreement or to confirm or perfect any transaction described or contemplated
herein.
Section 8.02. Waiver. Any waiver by any party of any provision of
this Agreement or any right, remedy or option hereunder shall only prevent and
stop such party from thereafter enforcing such provision, right, remedy or
option if such waiver is given in writing and only as to the specific instance
and for the specific purpose for which such waiver was given. The failure or
refusal of any party hereto to insist in any one or more instances, or in a
course of dealing, upon the strict performance of any of the terms or provisions
of this Agreement by any party hereto or the partial exercise of any right,
remedy or option hereunder shall not be construed as a waiver or relinquishment
of any such term or provision, but the same shall continue in full force and
effect.
Section 8.03. Amendments, Waivers in Writing. No amendment,
modification, waiver or supplement to this Agreement or any provision of this
Agreement shall in any event be effective unless the same shall have been made
or consented to in writing by each of the parties hereto and each Rating Agency
shall have confirmed in writing that such amendment will not cause a reduction
or withdrawal of a rating on the Certificates.
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Section 8.04. Severability. In the event that any provision of this
Agreement or the application thereof to any party hereto or to any circumstance
or in any jurisdiction governing this Agreement shall, to any extent, be invalid
or unenforceable under any applicable statute, regulation or rule of law, then
such provision shall be deemed inoperative to the extent that it is invalid or
unenforceable and the remainder of this Agreement, and the application of any
such invalid or unenforceable provision to the parties, jurisdictions or
circumstances other than to whom or to which it is held invalid or
unenforceable, shall not be affected thereby nor shall the same affect the
validity or enforceability of any other provision of this Agreement. The parties
hereto further agree that the holding by any court of competent jurisdiction
that any remedy pursued by the Collateral Agent or the Secured Party, hereunder
is unavailable or unenforceable shall not affect in any way the ability of the
Collateral Agent or the Secured Party to pursue any other remedy available to it
or them (subject, however, to the provisions of this Agreement limiting such
remedies).
Section 8.05. Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, each of the parties hereto agrees that it shall
not, prior to one year and one day after the Final Scheduled Payment Date with
respect to the Certificates, acquiesce, petition or otherwise invoke or cause
the Trust Depositor to invoke the process of the United States of America, any
State or other political subdivision thereof or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government for the purpose of commencing or sustaining a case by or against
the Trust Depositor or the Trust under a Federal or state bankruptcy, insolvency
or similar law or appointing a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official of the Trust Depositor or the
Trust or all or any part of its property or assets or ordering the winding up or
liquidation of the affairs of the Trust Depositor or the Trust. The parties
agree that damages will be an inadequate remedy for breach of this covenant and
that this covenant may be specifically enforced.
Section 8.06. Notices. All notices, demands, certificates, requests
and communications hereunder ("NOTICES") shall be in writing and shall be
effective (a) upon receipt when sent through the U.S. mails, registered or
certified mail, return receipt requested, postage prepaid, with such receipt to
be effective the date of delivery indicated on the return receipt, or (b) one
Business Day after delivery to an overnight courier, or (c) on the date
personally delivered to an Authorized Officer of the party to which sent, or (d)
on the date transmitted by legible telecopier transmission with a confirmation
of receipt, in all cases addressed to the recipient as follows:
(i) If to the Trust Depositor:
Harley-Davidson Customer Funding Corp.
0000 Xxxxxxxxxx Xxx
Xxxxxx Xxxx, Xxxxxx 00000
Attention: President
Telecopier No.: (000) 000-0000
(iii) If to the Trustee:
[______________________]
___________________________________
___________________________________
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Telecopier No.: __________________
(iv) If to the Collateral Agent:
[______________________]
___________________________________
___________________________________
Telecopier No:_____________________
(v) If to Moody's:
Moody's Investor's Service, Inc.
00 Xxxxxx Xxxxxx
Xxx Xxxx Xxx Xxxx 00000
Attention: ABS Monitoring Department
Telecopier No.: (000) 000-0000
(vi) If to Standard & Poor's:
Standard & Poor's Ratings Services, a
division of The McGraw Hill Companies
00 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
A copy of each notice given hereunder to any party hereto shall also be given to
(without duplication), the Trust Depositor, the Trustee and the Collateral
Agent. 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 8.07. TERM OF THIS AGREEMENT;. This Agreement shall take
effect on the Closing Date of the Certificates and shall continue in effect
until the Trustee Termination Date. On such date, this Agreement shall
terminate, all obligations of the parties hereunder shall cease and terminate
and the Collateral, if any, held hereunder and not to be used or applied in
discharge of any obligations of the Trust Depositor in respect of the Secured
Obligations or otherwise under this Agreement, shall be released to and in favor
of the Trust Depositor, PROVIDED that the provisions of Sections 4.06, 4.07 and
8.05 shall survive any termination of this Agreement and the release of any
Collateral upon such termination.
SECTION 8.08. ASSIGNMENTS. This Agreement shall be a continuing
obligation of the parties hereto and shall (i) be binding upon the parties and
their respective successors and assigns, and (ii) inure to the benefit of the
Secured Party and be enforceable by the Secured Party and the Collateral Agent,
and by their respective successors, transferees and assigns. The Trust Depositor
may not assign this Agreement, or delegate any of its duties hereunder, without
the prior written consent of the Secured Party.
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Section 8.09. Consent of Secured Party. In the event that the
Secured Party's consent is required under the terms hereof or under the terms of
any Transaction Document, it is understood and agreed that, except as otherwise
provided expressly herein, the determination whether to grant or withhold such
consent shall be made solely by the Secured Party in its sole discretion.
Section 8.10. Trial by Jury Waived. Each of the parties hereto
waives, to the fullest extent permitted by law, any right it may have to a trial
by jury in respect of any litigation arising directly or indirectly out of,
under or in connection with this Agreement, any of the other Transaction
Documents or any of the transactions contemplated hereunder or thereunder. Each
of the parties hereto (a) certifies that no representative, agent or attorney of
any other party has represented, expressly or otherwise, that such other party
would not, in the event of litigation, seek to enforce the foregoing waiver and
(b) acknowledges that it has been induced to enter into this Agreement and the
other Transaction Documents to which it is a party, by among other things, this
waiver.
Section 8.11. Governing Law. This Agreement shall be governed by
and construed, and the obligations, rights and remedies of the parties hereunder
shall be determined, in accordance with, the laws of the State of Illinois.
Section 8.12. Consents to Jurisdiction. Each of the parties hereto
irrevocably submits to the jurisdiction of the United States District Court for
the Northern District of Illinois, any court in the state of Illinois located in
the city of Chicago, and any appellate court from any thereof, in any action,
suit or proceeding brought against it and related to or in connection with this
Agreement, the other Transaction Documents or the transactions contemplated
hereunder or thereunder or for recognition or enforcement of any judgment and
each of the parties hereto irrevocably and unconditionally agrees that all
claims in respect of any such suit or action or proceeding may be heard or
determined in such Illinois state court or, to the extent permitted by law, in
such federal court. Each of the parties hereto agrees that a final judgment in
any such action, suit or proceeding shall be conclusive and may be enforced in
other jurisdictions by suit on the judgment or in any other manner provided by
law. To the extent permitted by applicable law, each of the parties hereby
waives and agrees not to assert by way of motion, as a defense or otherwise in
any such suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of such courts, that the suit, action or proceeding is
brought in an inconvenient forum, that the venue of the suit, action or
proceeding is improper or that this Agreement or any of the other Transaction
Documents or the subject matter hereof or thereof may be litigated in or by such
courts. The Trust Depositor hereby irrevocably appoints and designates
[_______________], as its true and lawful attorney and duly authorized agent for
acceptance of service of legal process. The Trust Depositor agrees that service
of such process upon such Person shall constitute personal service of such
process upon it. Subject to Section 8.05 hereof, nothing contained in this
Agreement shall limit or affect the rights of any party hereto to serve process
in any other manner permitted by law or to start proceedings relating to any of
the Transaction Documents against the Trust Depositor or their respective
property in the courts of any jurisdiction.
Section 8.13. Limitation of Trustee Responsibility. It is expressly
understood and agreed by the parties hereto that (a) [_______________] is
entering into and executing this Agreement solely in its capacity as Trustee of
the Trust pursuant to the Pooling and Servicing
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Agreement and as Collateral Agent, and (b) in no case whatsoever shall
[_______________] be personally liable on, or for any loss in respect of, any of
the statements, representations, warranties, covenants, agreements or
obligations of the Trust (if any) hereunder, all such liability, if any, being
expressly waived by the parties hereto.
Section 8.14. Counterparts. This Agreement may be executed in two
or more counterparts by the parties hereto, and each such counterpart shall be
considered an original and all such counterparts shall constitute one and the
same instrument.
Section 8.15. Headings. The headings of sections and paragraphs and the
Table of Contents contained in this Agreement are provided for convenience only.
They form no part of this Agreement and shall not affect its construction or
interpretation.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth on the first page hereof.
HARLEY-DAVIDSON CUSTOMER FUNDING
CORP.
By ______________________________________
Printed Name: ___________________________
Title: __________________________________
[___________________],
as Trustee
By ______________________________________
Printed Name: ___________________________
Title: __________________________________
[__________________],
as Collateral Agent
By ______________________________________
Printed Name: ____________________________
Title: ___________________________________
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