EXHIBIT 4.11
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TRUST AGREEMENT
by and between
HARLEY-DAVIDSON CUSTOMER FUNDING CORP.,
as Trust Depositor,
and
WILMINGTON TRUST COMPANY,
as Owner Trustee
Dated as of August 1, 2002
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TABLE OF CONTENTS
Page
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ARTICLE ONE DEFINITIONS................................................................................1
Section 1.01. Capitalized Terms......................................................................1
Section 1.02. Other Definitional Provisions..........................................................3
Section 1.03. Usage of Terms.........................................................................3
Section 1.04. Section References.....................................................................4
Section 1.05. Accounting Terms.......................................................................4
ARTICLE TWO ORGANIZATION...............................................................................4
Section 2.01. Name...................................................................................4
Section 2.02. Office.................................................................................4
Section 2.03. Purposes and Powers....................................................................4
Section 2.04. Appointment of Owner Trustee...........................................................5
Section 2.05. Initial Capital Contribution of Owner Trust Estate.....................................5
Section 2.06. Declaration of Trust...................................................................5
Section 2.07. Liability of Trust Depositor...........................................................5
Section 2.08. Title to Trust Property................................................................6
Section 2.09. Situs of Trust.........................................................................6
Section 2.10. Representations and Warranties of the Trust Depositor..................................6
Section 2.11. Federal Income Tax Allocations.........................................................7
ARTICLE THREE TRUST CERTIFICATE AND TRANSFER OF INTERESTS................................................7
Section 3.01. Initial Ownerhip.......................................................................7
Section 3.02. The Trust Certificate..................................................................7
Section 3.03. Authentication and Delivery of Trust Certificate.......................................8
Section 3.04. Registration of Transfer and Exchange of Trust Certificate.............................8
Section 3.05. Mutilated, Destroyed, Lost or Stolen Trust Certificate.................................9
Section 3.06. Persons Deemed Owner...................................................................9
Section 3.07. Access to List of Certificateholder' Names and Addresses...............................9
Section 3.08. Maintenance of Office or Agency........................................................9
Section 3.09. Temporary Trust Certificate............................................................9
Section 3.10. Appointment of Paying Agent............................................................9
Section 3.11. Ownerhip by Trust Depositor of Trust Certificate......................................10
Section 3.12. Book-Entry Certificate..................................................................
Section 3.13. Notices to Clearing Agency..............................................................
Section 3.14. Definitive Trust Certificate............................................................
ARTICLE FOUR ACTIONS BY OWNER TRUSTEE..................................................................10
Section 4.01. Prior Notice to Owner with Respect to Certain Matters.................................10
Section 4.02. Action by Owner with Respect to Certain Matters.......................................11
Section 4.03. Action by Owner with Respect to Bankruptcy............................................11
Section 4.04. Restrictions on Owner' Power..........................................................11
Section 4.05. Majority Control........................................................................
ARTICLE FIVE APPLICATION OF TRUST FUNDS; CERTAIN DUTIES................................................11
Section 5.01. Establishment of Trust Account..........................................................
Section 5.02. Application of Trust Funds............................................................11
Section 5.03. Method of Payment.....................................................................12
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Section 5.04. No Segregation of Moneys; No Interest...................................................
Section 5.05. Accounting and Reports to the Certificateholder, Owner, the Internal Revenue
Service and Others......................................................................................12
Section 5.06. Signature on Returns; Tax Matters Partner.............................................12
ARTICLE SIX AUTHORITY AND DUTIES OF OWNER TRUSTEE.....................................................13
Section 6.01. General Authority.....................................................................13
Section 6.02. General Duties........................................................................13
Section 6.03. Action Upon Instruction...............................................................13
Section 6.04. No Duties Except as Specified in this Agreement or in Instructions....................14
Section 6.05. No Action Except Under Specified Documents or Instructions............................14
Section 6.06. Restrictions..........................................................................14
ARTICLE SEVEN CONCERNING THE OWNER TRUSTEE..............................................................15
Section 7.01. Acceptance of Trusts and Duties.......................................................15
Section 7.02. Furnishing of Documents...............................................................16
Section 7.03. Representations and Warranties........................................................16
Section 7.04. Reliance; Advice of Counsel...........................................................16
Section 7.05. Not Acting in Individual Capacity.....................................................17
Section 7.06. Owner Trustee Not Liable for Trust Certificate, Notes or Contracts....................17
Section 7.07. Owner Trustee May Own Trust Certificate and Notes.....................................17
ARTICLE EIGHT COMPENSATION OF OWNER TRUSTEE.............................................................18
Section 8.01. Owner Trustee's Fees and Expenses.....................................................18
Section 8.02. Indemnification.......................................................................18
Section 8.03. Payments to the Owner Trustee.........................................................18
ARTICLE NINE TERMINATION OF
TRUST AGREEMENT............................................................18
Section 9.01. Termination of
Trust Agreement........................................................18
ARTICLE TEN SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES....................................19
Section 10.01. Eligibility Requirements for Owner Trustee............................................19
Section 10.02. Resignation or Removal of Owner Trustee...............................................20
Section 10.03. Successor Owner Trustee...............................................................20
Section 10.04. Merger or Consolidation of Owner Trustee..............................................21
Section 10.05. Appointment of Co-Trustee or Separate Trustee.........................................21
ARTICLE ELEVEN MISCELLANEOUS.............................................................................22
Section 11.01. Supplements and Amendments............................................................22
Section 11.02. No Legal Title to Trust Estate in Owner...............................................23
Section 11.03. Limitations on Rights of Others.......................................................23
Section 11.04. Notices...............................................................................23
Section 11.05. Severability of Provisions............................................................23
Section 11.06. Counterparts..........................................................................23
Section 11.07. Successors and Assigns................................................................24
Section 11.08. Covenants of the Trust Depositor......................................................24
Section 11.09. No Petition...........................................................................24
Section 11.10. No Recourse...........................................................................24
Section 11.11. Headings..............................................................................24
Section 11.12. Governing Law.........................................................................25
Section 11.13. Trust Certificate Transfer Restrictions...............................................25
Section 11.14. Trust Depositor Payment Obligation....................................................25
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EXHIBITS
Exhibit A - Form of Certificate of Trust..................................................................A-1
Exhibit B - Form of Trust Certificate.....................................................................B-1
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TRUST AGREEMENT dated as of August 1, 2002, between HARLEY-DAVIDSON
CUSTOMER FUNDING CORP., a Nevada corporation, as Trust Depositor (the "TRUST
DEPOSITOR"), and WILMINGTON TRUST COMPANY, a
Delaware banking corporation, as
owner trustee (the "OWNER TRUSTEE").
WHEREAS, in connection herewith, the Trust Depositor is willing to assume
certain obligations pursuant hereto; and
WHEREAS, in connection herewith, the Trust Depositor is willing to purchase
the Trust Depositor Certificate (as defined herein) to be issued pursuant to
this Agreement and to assume certain obligations pursuant hereto;
NOW, THEREFORE, the parties hereto hereby agree as follows:
ARTICLE ONE
DEFINITIONS
SECTION 1.01. CAPITALIZED TERMS. Except as otherwise provided in this
Agreement, whenever used in this Agreement the following words and phrases,
unless the context otherwise requires, shall have the following meanings:
"ADMINISTRATION AGREEMENT" means the Administration Agreement, dated as of
the date hereof, among the Trust, the Trust Depositor, the Indenture Trustee and
Harley-Davidson Credit, as administrator.
"AGREEMENT" means this
Trust Agreement, as the same may be amended and
supplemented from time to time.
"APPLICANT" shall have the meaning set forth in Section 3.07.
"BENEFIT PLAN" means (i) an employee benefit plan (as such term is defined
in Section 3(3) of ERISA) that is subject to the provisions of Title I of ERISA,
(ii) a plan described in Section 4975(e)(1) of the Code or (iii) any entity
whose underlying assets include plan assets by reason of a plan's investment in
the entity.
"BUSINESS TRUST STATUTE" means Chapter 38 of Title 12 of the
Delaware Code,
12 DEL. CODE Section 3801 ET SEQ., as the same may be amended from time to time.
"CERTIFICATE OF TRUST" means the Certificate of Trust filed for the Trust
pursuant to Section 3810(a) of the Business Trust Statute, substantially in the
form of EXHIBIT A hereto.
"CERTIFICATE REGISTER" and "CERTIFICATE REGISTRAR" mean the register
maintained and the registrar (or any successor thereto) appointed pursuant to
Section 3.04.
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"CERTIFICATEHOLDER" or "HOLDER" means with respect to a Definitive Trust
Certificate the Person in whose name the Trust Certificate is registered in the
Certificate Register.
"CLEARING AGENCY" means an organization registered as a "Clearing Agency"
pursuant to Section 17A of the Exchange Act.
"CLOSING DATE" shall have the meaning assigned to such term in the Sale and
Servicing Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended.
"DEFINITIVE TRUST CERTIFICATE" shall have the meaning set forth in Section
3.09.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"EXPENSES" shall have the meaning assigned to such term in Section 8.02.
"HARLEY-DAVIDSON CREDIT" means Harley-Davidson Credit Corp., a Nevada
corporation.
"INDEMNIFIED PARTIES" shall have the meaning assigned to such term in
Section 8.02.
"INDENTURE" means the Indenture dated as of the date hereof between the
Trust and BNY Midwest Trust Company.
"NOTE DEPOSITORY AGREEMENT" means the Agreement dated as of the Closing
Date among the Trust, the Indenture Trustee, the Administrator and DTC, as the
Clearing Agency, relating to the Notes, as the same may be amended and
supplemented from time to time.
"NOTES" means the Class A-1 Notes, the Class A-2 Notes and the Class B
Notes, in each case issued pursuant to the Indenture.
"OWNER" means the Holder of the Trust Certificate.
"OWNER TRUSTEE" means Wilmington Trust Company, a
Delaware corporation, not
in its individual capacity but solely as owner trustee under this Agreement, and
any successor Owner Trustee hereunder.
"OWNER TRUSTEE CORPORATE TRUST OFFICE" means the office of the Owner
Trustee at which its corporate trust business shall be administered, which
initially shall be Xxxxxx Square North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000-0000 Attn: Corporate Trust Administration, or such other office
at such other address as the Owner Trustee may designate from time to time by
notice to the Certificateholder, the Servicer, the Indenture Trustee, the Trust
Depositor and Harley-Davidson Credit.
"PAYING AGENT" means any paying agent or co-paying agent appointed pursuant
to Section 3.10.
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"PERSON" means any individual, corporation, estate, partnership, joint
venture, association, joint stock company, trust (including any beneficiary
thereof) unincorporated organization or government or any agency or political
subdivision thereof.
"RECORD DATE" means, with respect to any Distribution Date, the last
Business Day of the preceding calendar month.
"SALE AND SERVICING AGREEMENT" means the Sale and Servicing Agreement,
dated as of the date hereof, among the Trust, as Issuer, the Trust Depositor,
Harley-Davidson Credit, as servicer, and BNY Midwest Trust Company, as Indenture
Trustee, as the same may be amended or supplemented from time to time.
"SECRETARY OF STATE" means the Secretary of State of the State of
Delaware.
"TAX MATTERS PARTNER" shall have the meaning provided in Section 5.06(b)
hereof.
"TREASURY REGULATIONS" means regulations, including proposed or temporary
regulations, promulgated under the Code. References herein to specific
provisions of proposed or temporary regulations shall include analogous
provisions of final Treasury Regulations or other successor Treasury
Regulations.
"TRUST" means the trust established by this Agreement.
"TRUST CERTIFICATE" means the trust certificate evidencing the beneficial
equity interest of the Owner, substantially in the form of EXHIBIT B hereto.
"TRUST DEPOSITOR" means Harley-Davidson Customer Funding Corp. in its
capacity as Trust Depositor hereunder, and its successors.
"TRUST ESTATE" means all right, title and interest of the Trust in and to
the property and rights assigned to the Trust pursuant to Article Two of the
Sale and Servicing Agreement, all funds on deposit from time to time in the
Trust Accounts and all other property of the Trust from time to time, including
any rights of the Owner Trustee and the Trust pursuant to the Sale and Servicing
Agreement and the Administration Agreement.
"UNDERWRITERS" shall have the meaning set forth in the Sale and Servicing
Agreement.
SECTION 1.02. OTHER DEFINITIONAL PROVISIONS. Capitalized terms used
that are not otherwise defined herein shall have the meanings ascribed thereto
in the Sale and Servicing Agreement or, if not defined therein, in the
Indenture.
SECTION 1.03. USAGE OF TERMS. With respect to all terms in this
Agreement, the singular includes the plural and the plural the singular; words
importing any gender include the other genders; references to "WRITING" include
printing, typing, lithography and other means of reproducing words in a visible
form; references to agreements and other contractual instruments include all
amendments, modifications and supplements thereto or any changes therein entered
into in accordance with their
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respective terms and not prohibited by this Agreement; references to Persons
include their permitted successors and assigns; and the term "INCLUDING" means
"INCLUDING WITHOUT LIMITATION".
SECTION 1.04. SECTION REFERENCES. All section references, unless
otherwise indicated, shall be to Sections in this Agreement.
SECTION 1.05. ACCOUNTING TERMS. All accounting terms used but not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles in the United States.
ARTICLE TWO
ORGANIZATION
SECTION 2.01. NAME. The Trust created hereby shall be known as
"HARLEY-DAVIDSON MOTORCYCLE TRUST 2002-2", in which name the Owner Trustee may
conduct the activities of the Trust, make and execute contracts and other
instruments on behalf of the Trust and xxx and be sued.
SECTION 2.02. OFFICE. The office of the Trust shall be in care of the
Owner Trustee at the Owner Trustee Corporate Trust Office or at such other
address in
Delaware as the Owner Trustee may designate by written notice to the
Owner and the Trust Depositor.
SECTION 2.03. PURPOSES AND POWERS.
(a) The sole purpose of the Trust is to manage the Trust
Estate and collect and disburse the periodic income therefrom for the use and
benefit of the Owner, and in furtherance of such purpose to engage in the
following ministerial activities:
(i) to issue the Notes pursuant to the Indenture and
the Trust Certificate pursuant to this Agreement and to sell the Notes;
(ii) with the proceeds of the sale of the Notes, to
purchase the Contracts, to fund the Pre-Funding Account and to pay the
organizational, start-up and transactional expenses of the Trust and to pay
the balance to the Trust Depositor pursuant to the Sale and Servicing
Agreement;
(iii) to assign, grant, transfer, pledge, mortgage and
convey the Trust Estate pursuant to the Indenture and to hold, manage and
distribute to the Owner pursuant to the Sale and Servicing Agreement any
portion of the Trust Estate released from the Lien of, and remitted to the
Trust pursuant to, the Indenture;
(iv) to enter into and perform its obligations under
the Transaction Documents to which it is to be a party;
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(v) to engage in those activities, including entering
into agreements, that are necessary, suitable or convenient to accomplish
the foregoing or are incidental thereto or connected therewith; and
(vi) subject to compliance with the Transaction
Documents, to engage in such other activities as may be required in
connection with conservation of the Trust Estate and the making of
distributions to the Owner and the Noteholders.
The Trust shall not engage in any activities other than in connection with the
foregoing. Nothing contained herein shall be deemed to authorize the Owner
Trustee to engage in any business operations or any activities other than those
set forth in the introductory sentence of this Section. Specifically, the Owner
Trustee shall have no authority to engage in any business operations, or acquire
any assets other than those specifically included in the Trust Estate under
Section 1.01, or otherwise vary the assets held by the Trust. Similarly, the
Owner Trustee shall have no discretionary duties other than performing those
ministerial acts set forth above necessary to accomplish the purpose of this
Trust as set forth in the introductory sentence of this Section.
SECTION 2.04. APPOINTMENT OF OWNER TRUSTEE. The Trust Depositor hereby
appoints the Owner Trustee as trustee of the Trust effective as of the date
hereof, to have all the rights, powers and duties set forth herein, and the
Owner Trustee hereby accepts such appointment.
SECTION 2.05. INITIAL CAPITAL CONTRIBUTION OF OWNER TRUST ESTATE. The
Trust Depositor hereby sells, assigns, transfers, conveys and sets over to the
Owner Trustee, as of the date hereof, the sum of $1,000. The Owner Trustee
hereby acknowledges receipt in trust from the Trust Depositor, as of the date
hereof, of the foregoing contribution, which shall constitute the initial Trust
Estate. The Trust Depositor shall pay organizational expenses of the Trust as
they may arise or shall, upon the request of the Owner Trustee, promptly
reimburse the Owner Trustee for any such expenses paid by the Owner Trustee.
SECTION 2.06. DECLARATION OF TRUST. The Owner Trustee hereby declares
that it will hold the Trust Estate in trust upon and subject to the conditions
set forth herein for the sole purpose of conserving the Trust Estate and
collecting and disbursing the periodic income therefrom for the use and benefit
of the Owner, subject to the obligations of the Trust under the Transaction
Documents. It is the intention of the parties hereto that the Trust constitute a
business trust under the Business Trust Statute and that this Agreement
constitute the governing instrument of such business trust. Effective as of the
date hereof, the Owner Trustee shall have all rights, powers and duties set
forth herein and in the Business Trust Statute for the sole purpose and to the
extent necessary to accomplish the purpose of this Trust as set forth in the
introductory sentence of Section 2.03.
SECTION 2.07. LIABILITY OF TRUST DEPOSITOR.
(a) All liabilities of the Trust, to the extent not paid by a
third party, are and shall be obligations of the Trust and when due and payable
shall be satisfied out of the Trust Estate.
(b) Except as provided in the Business Trust Statute, the
Certificateholder shall not be personally liable for any liability of the Trust.
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SECTION 2.08. TITLE TO TRUST PROPERTY. Legal title to the Trust Estate
shall be vested at all times in the Trust as a separate legal entity except
where applicable law in any jurisdiction requires title to any part of the Trust
Estate to be vested in an Owner Trustee or Owner Trustees, in which case title
shall be deemed to be vested in the Owner Trustee, a co-trustee and/or a
separate trustee, as the case may be.
SECTION 2.09. SITUS OF TRUST. The Trust will be located and
administered in the State of
Delaware. All bank accounts maintained by the Owner
Trustee on behalf of the Trust shall be located in the State of Illinois or the
State of
Delaware. The Trust shall not have any employees in any state other
than
Delaware; PROVIDED, HOWEVER, that nothing herein shall restrict or prohibit
the Owner Trustee from having employees within or without the State of
Delaware.
Payments will be received by the Trust only in
Delaware and payments will be
made by the Trust only from Delaware. The only office of the Trust will be at
the Owner Trustee Corporate Trust Office.
SECTION 2.10. REPRESENTATIONS AND WARRANTIES OF THE TRUST DEPOSITOR.
The Trust Depositor hereby represents and warrants to the Owner Trustee
that:
(i) The Trust Depositor is duly organized and validly
existing as a corporation organized and existing and in good standing under
the laws of the State of Nevada, with power and authority to own its
properties and to conduct its business and had at all relevant times, and
has, power, authority and legal right to acquire and own the Contracts.
(ii) The Trust Depositor is duly qualified to do
business as a foreign corporation in good standing and has obtained all
necessary licenses and approvals in all jurisdictions in which the
ownership or lease of property or the conduct of its business requires such
qualifications.
(iii) The Trust Depositor has the power and authority to
execute and deliver this Agreement and to carry out its terms; the Trust
Depositor has full power and authority to sell and assign the property to
be sold and assigned to and deposited with the Owner Trustee on behalf of
the Trust as part of the Trust Estate and has duly authorized such sale and
assignment and deposit with the Owner Trustee on behalf of the Trust by all
necessary corporate action; and the execution, delivery and performance of
this Agreement have been duly authorized by the Trust Depositor by all
necessary corporate action.
(iv) The consummation of the transactions contemplated
by this Agreement and the fulfillment of the terms hereof do not conflict
with, result in any breach of any of the terms and provisions of, nor
constitute (with or without notice or lapse of time) a default under, the
articles of incorporation or bylaws of the Trust Depositor, or any
indenture, agreement or other instrument to which the Trust Depositor is a
party or by which it is bound; nor result in the creation or imposition of
any Lien upon any of the properties of the Trust Depositor pursuant to the
terms of any such indenture, agreement or other instrument (other than
pursuant to the Transaction Documents); nor violate any law or any order,
rule or regulation applicable to the Trust Depositor of any court or of any
federal or state regulatory body, administrative agency or other
governmental instrumentality having jurisdiction over the Trust Depositor
or its properties.
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(v) There are no proceedings or investigations
pending, or to the Trust Depositor's best knowledge threatened, before any
court, regulatory body, administrative agency or other governmental
instrumentality having jurisdiction over the Trust Depositor or its
properties: (A) asserting the invalidity of this Agreement, any of the
other Transaction Documents or the Trust Certificate, (B) seeking to
prevent the issuance of the Trust Certificate or the consummation of any of
the transactions contemplated by this Agreement or any of the other
Transaction Documents, (C) seeking any determination or ruling that might
materially and adversely affect the performance by the Trust Depositor of
its obligations under, or the validity or enforceability of, this
Agreement, any of the other Transaction Documents or the Trust Certificate
or (D) involving the Trust Depositor and which might adversely affect the
federal income tax or other federal, state or local tax attributes of the
Trust Certificate.
SECTION 2.11. FEDERAL INCOME TAX TREATMENT.
It is the intention of the Trust Depositor that the Trust be disregarded as
a separate entity pursuant to Treasury Regulations Section 301.7701-3(b)(1)(ii)
as in effect for periods after January 1, 1997. The Trust Certificate
constitutes the sole equity interest in the Trust and must at all times be held
by either the Trust Depositor or its transferee as sole owner. The Trust
Depositor agrees not to take any action inconsistent with such intended federal
income tax treatment. Because for federal income tax purposes the Trust will be
disregarded as a separate entity, Trust items of income, gain, loss and
deduction for any month as determined for federal income tax purposes shall be
allocated entirely to the Trust Depositor (or subsequent purchaser of the Trust
Certificate) as the sole Certificateholder.
ARTICLE THREE
TRUST CERTIFICATE AND TRANSFER OF INTERESTS
SECTION 3.01. INITIAL OWNERSHIP.
(a) Upon the formation of the Trust by the contribution by
the Trust Depositor pursuant to Section 2.05 and until the issuance of the
Trust Certificate, the Trust Depositor shall be the sole beneficiary of the
Trust. The Trust Certificate must at all times be held by either the Trust
Depositor or its transferee as sole owner.
(b) No transfer of the Trust Certificate shall be made unless
such transfer is made in a transaction which does not require registration or
qualification under the Securities Act of 1933 or qualification under any state
securities or "Blue Sky" laws. Neither the Owner Trustee nor the Certificate
Registrar shall effect the registration of any transfer of the Trust Certificate
unless, (i) prior to such transfer the Owner Trustee shall have received a Tax
Opinion, and (ii) following such transfer, there would be no more than one
holder of the Trust Certificate and the holder of the Trust Certificate would
not be a Foreign Person, a partnership, Subchapter S corporation or grantor
trust.
SECTION 3.02. THE TRUST CERTIFICATE. The Trust Certificate shall be
substantially in the form of EXHIBIT B hereto. The Trust Certificate shall be
executed by the Owner Trustee on behalf of the Trust by manual or facsimile
signature of an authorized officer of the Owner Trustee and shall be deemed to
have been validly issued when so executed. The Trust Certificate bearing the
manual or facsimile signature of
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individuals who were, at the time when such signatures were affixed, authorized
to sign on behalf of the Owner Trustee shall be a valid and binding obligation
of the Trust, notwithstanding that such individuals or any of them have ceased
to be so authorized prior to the authentication and delivery of such Trust
Certificate or did not hold such offices at the date of such Trust Certificate.
The Trust Certificate shall be dated the date of its authentication.
SECTION 3.03. AUTHENTICATION AND DELIVERY OF TRUST CERTIFICATE. The
Owner Trustee shall cause to be authenticated and delivered upon the order of
the Trust Depositor, in exchange for the Contracts and the other Trust Assets,
simultaneously with the sale, assignment and transfer to the Trust of the
Contracts and other Trust Assets, and the constructive delivery to the Owner
Trustee of the Contract Files and the other Trust Assets, a Trust Certificate
duly authenticated by the Owner Trustee, evidencing the entire ownership of the
Trust, and Notes issued by the Owner Trustee and authenticated by the Indenture
Trustee in aggregate principal amount of, in the case of (i) Class A-1 Notes,
$350,000,000, (ii) Class A-2 Notes, $220,000,000 and (iii) Class B Notes,
$30,000,000, or be valid for any purpose, unless there appears on such Trust
Certificate a certificate of authentication substantially in the form set forth
in the form of Trust Certificate attached hereto as EXHIBIT B, executed by the
Owner Trustee or its authenticating agent, by manual signature, and such
certificate upon any Trust Certificate shall be conclusive evidence, and the
only evidence, that such Trust Certificate has been duly authenticated and
delivered hereunder. Upon issuance, authorization and delivery pursuant to the
terms hereof, the Trust Certificate will be entitled to the benefits of this
Agreement.
SECTION 3.04. REGISTRATION OF TRANSFER AND EXCHANGE OF TRUST
CERTIFICATE.
(a) The Certificate Registrar shall keep or cause to be kept,
a Certificate Register, subject to such reasonable regulations as it may
prescribe. The Certificate Register shall provide for the registration of the
Trust Certificate and transfers and exchanges of the Trust Certificate as
provided herein. The Owner Trustee is hereby initially appointed Certificate
Registrar for the purpose of registering the Trust Certificate and transfers and
exchanges of the Trust Certificate as herein provided. In the event that,
subsequent to the Closing Date, the Owner Trustee notifies the Servicer that it
is unable to act as Certificate Registrar, the Servicer shall appoint another
bank or trust company, having an office or agency located in the City of
Chicago, Illinois, agreeing to act in accordance with the provisions of this
Agreement applicable to it, and otherwise acceptable to the Owner Trustee, to
act as successor Certificate Registrar hereunder.
(b) Upon surrender for registration of transfer of the Trust
Certificate at the Owner Trustee Corporate Trust Office, the Owner Trustee shall
execute, authenticate and deliver (or shall cause its authenticating agent to
authenticate and deliver), in the name of the designated transferee, the new
Trust Certificate having the same aggregate principal amount.
(c) Every Trust Certificate presented or surrendered for
registration of transfer shall be accompanied by a written instrument of
transfer in form satisfactory to the Owner Trustee and the Certificate Registrar
duly executed by the Holder thereof or his attorney duly authorized in writing.
(d) No service charge shall be made for any registration of
transfer or exchange of the Trust Certificate, but the Owner Trustee may require
payment of a sum sufficient to cover any tax or governmental charge that may be
imposed in connection with any transfer of the Trust Certificate.
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(e) All Trust Certificates surrendered for registration of
transfer shall be canceled and subsequently destroyed by the Owner Trustee.
SECTION 3.05. MUTILATED, DESTROYED, LOST OR STOLEN TRUST CERTIFICATE.
If (i) any mutilated Trust Certificate is surrendered to the Certificate
Registrar, or the Certificate Registrar receives evidence to its satisfaction of
the destruction, loss or theft of any Trust Certificate, and (ii) there is
delivered to the Certificate Registrar and the Owner Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice that such Trust Certificate has been acquired by a bona fide
purchaser, the Owner Trustee on behalf of the Trust shall execute and the Owner
Trustee or its authenticating agent shall authenticate and deliver, in exchange
for or in lieu of any such mutilated, destroyed, lost or stolen Trust
Certificate, a new Trust Certificate of like tenor and fractional undivided
interest. In connection with the issuance of any new Trust Certificate under
this Section, the Owner Trustee may require the payment by the Holder of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto. Any duplicate Trust Certificate issued pursuant to this
Section shall constitute complete and indefeasible evidence of ownership in the
Trust, as if originally issued, whether or not the lost, stolen or destroyed
Trust Certificate shall be found at any time.
SECTION 3.06. PERSON DEEMED OWNER. Prior to due presentation of a Trust
Certificate for registration of transfer, the Owner Trustee, the Certificate
Registrar and any of their respective agents may treat the Person in whose name
any Trust Certificate is registered as the owner of such Trust Certificate for
the purpose of receiving distributions pursuant to Section 5.01 and for all
other purposes whatsoever, and none of the Owner Trustee, the Certificate
Registrar, any Paying Agent or any of their respective agents shall be affected
by any notice of the contrary.
SECTION 3.07. ACCESS TO LIST OF CERTIFICATEHOLDER'S NAME AND ADDRESS.
The Owner Trustee shall furnish or cause to be furnished to the Servicer and the
Trust Depositor, within 15 days after receipt by the Certificate Registrar of a
written request therefor from the Servicer or the Trust Depositor, the name and
address of the Certificateholder as of the most recent Record Date in such form
as the Servicer or the Trust Depositor may reasonably require. The
Certificateholder, by receiving and holding the Trust Certificate, agrees with
the Servicer, the Trust Depositor and the Owner Trustee that none of the
Servicer, the Trust Depositor or the Owner Trustee shall be held accountable by
reason of the disclosure of any such information as to the name and address of
the Certificateholder hereunder, regardless of the source from which such
information was derived.
SECTION 3.08. MAINTENANCE OF OFFICE OR AGENCY. The Owner Trustee shall
maintain in Wilmington, Delaware, an office or offices or agency or agencies
where the Trust Certificate may be surrendered for registration of transfer or
exchange and where notices and demands to or upon the Owner Trustee in respect
of the Trust Certificate and this Agreement may be served. The Owner Trustee
hereby designates the Owner Trustee Corporate Trust Office as its office for
such purposes. The Owner Trustee shall give prompt written notice to the Trust
Depositor, the Servicer and to the Certificateholder of any change in the
location of the Certificate Register or any such office or agency.
SECTION 3.09. TRUST CERTIFICATE. The Owner Trustee, on behalf of the
Trust, shall execute, authenticate and deliver, a Trust Certificate.
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SECTION 3.10. APPOINTMENT OF PAYING AGENT. The Paying Agent shall make
distributions to the Certificateholder pursuant to Section 5.01(a) and shall
report the amounts of such distributions to the Owner Trustee. The Paying Agent
initially shall be BNY Midwest Trust Company, and any co-paying agent chosen by
the Paying Agent that is acceptable to the Owner Trustee. Each Paying Agent
shall be permitted to resign as Paying Agent upon 30 days' written notice to the
Owner Trustee. In the event that BNY Midwest Trust Company shall no longer be
the Paying Agent, the Owner Trustee shall appoint a successor to act as Paying
Agent (which shall be a bank or trust company). The Owner Trustee shall cause
such successor Paying Agent or any additional Paying Agent appointed by the
Owner Trustee to execute and deliver to the Owner Trustee an instrument in which
such successor Paying Agent or additional Paying Agent shall agree with the
Owner Trustee that, as Paying Agent, such successor Paying Agent or additional
Paying Agent will hold all sums, if any, held by it for payment to the
Certificateholder in trust for the benefit of the Certificateholder entitled
thereto until such sums shall be paid to such Certificateholder. The Paying
Agent shall return all unclaimed funds to the Owner Trustee and upon removal of
a Paying Agent such Paying Agent shall also return all funds in its possession
to the Owner Trustee. The provisions of Sections 7.01, 7.03, 7.04 and 8.01 shall
apply to the Owner Trustee also in its role as Paying Agent, for so long as the
Owner Trustee shall act as Paying Agent and, to the extent applicable, to any
other paying agent appointed hereunder. Any reference in this Agreement to the
Paying Agent shall include any co-paying agent unless the context requires
otherwise.
SECTION 3.11. OWNERSHIP BY TRUST DEPOSITOR OF TRUST CERTIFICATE. The
Trust Depositor shall on the Closing Date hold the Trust Certificate.
ARTICLE FOUR
ACTIONS BY OWNER TRUSTEE
SECTION 4.01. PRIOR NOTICE TO OWNER WITH RESPECT TO CERTAIN MATTERS.
Subject to the provisions and limitation of Section 4.04, with respect to the
following matters, the Owner Trustee shall not take action unless at least 30
days before the taking of such action, the Owner Trustee shall have notified the
Certificateholder in writing of the proposed action, the Indenture Trustee shall
have consented to such action in the event any Notes are outstanding and the
Owner shall not have notified the Owner Trustee in writing prior to the 30th day
after such notice is given that such Owner have withheld consent or provided
alternative direction:
(a) the initiation of any claim or lawsuit by the Trust
(except claims or lawsuits brought in connection with the collection of the
Contracts) and the compromise of any action, claim or lawsuit brought by or
against the Trust (except with respect to the aforementioned claims or lawsuits
for collection of the Contracts);
(b) the election by the Trust to file an amendment to the
Certificate of Trust (unless such amendment is required to be filed under the
Business Trust Statute);
(c) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is required;
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(d) the amendment of the Indenture by a supplemental
indenture in circumstances where the consent of any Noteholder is not required
and such amendment materially and adversely affects the interest of the Owner;
(e) the amendment, change or modification of the
Administration Agreement, except to cure any ambiguity or to amend or supplement
any provision in a manner or add any provision that would not materially and
adversely affect the interests of the Owner; or
(f) the appointment pursuant to the Indenture of a successor
Note Registrar or Indenture Trustee or pursuant to this Agreement of a successor
Certificate Registrar, or the consent to the assignment by the Note Registrar,
Indenture Trustee or Certificate Registrar of its obligations under the
Indenture or the Agreement, as applicable.
SECTION 4.02. ACTION BY OWNER WITH RESPECT TO CERTAIN MATTERS. Subject
to the provisions and limitations of Section 4.04, the Owner Trustee shall not
have the power, except upon the direction of the Owner, to (a) remove the
Administrator pursuant to Section 8 of the Administration Agreement, (b) appoint
a successor Administrator pursuant to Section 8 of the Administration Agreement,
(c) remove the Servicer pursuant to Section 8.01 of the Sale and Servicing
Agreement, (d) except as expressly provided in the Transaction Documents, sell
the Contracts or other Trust Assets after the termination of the Indenture, (e)
initiate any claim, suit or proceeding by the Trust or compromise any claim,
suit or proceeding brought by or against the Trust, (f) authorize the merger or
consolidation of the Trust with or into any other business trust or entity
(other than in accordance with Section 3.10 of the Indenture) or (g) amend the
Certificate of Trust. The Owner Trustee shall take the actions referred to in
the preceding sentence only upon written instructions assigned by the Owner.
SECTION 4.03. ACTION BY OWNER WITH RESPECT TO BANKRUPTCY. The Owner
Trustee shall not have the power to commence a voluntary proceeding in a
bankruptcy relating to the Trust without the prior approval of Owner and the
delivery to the Owner Trustee by such Owner of a certificate certifying that
such Owner reasonably believes that the Trust is insolvent.
SECTION 4.04. RESTRICTIONS ON OWNER'S POWER. The Owner shall not direct
the Owner Trustee to take or to refrain from taking any action if such action or
inaction would be contrary to any obligation of the Trust or the Owner Trustee
under this Agreement or any of the Transaction Documents or would be contrary to
the purpose of this Trust as set forth in Section 2.03, nor shall the Owner
Trustee be obligated to follow any such direction, if given.
ARTICLE FIVE
APPLICATION OF TRUST FUNDS;
CERTAIN DUTIES
SECTION 5.01. APPLICATION OF TRUST FUNDS.
(a) On each Distribution Date, the Paying Agent will
distribute to the Certificateholder amounts received pursuant to Section 7.05 of
the Sale and Servicing Agreement with respect to such Distribution Date.
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(b) On each Distribution Date, the Paying Agent shall send to
the Certificateholder the statement or statements provided to the Owner Trustee
by the Servicer pursuant to Section 9.01 of the Sale and Servicing Agreement
with respect to such Distribution Date.
(c) In the event that any withholding tax is imposed on the
Trust's payment (or allocation of income) to the Certificateholder, such tax
shall reduce the amount otherwise distributable to the Certificateholder in
accordance with this Section. The Paying Agent is hereby authorized and directed
to retain from amounts otherwise distributable to the Owner sufficient funds for
the payment of any tax that is legally owed by the Trust (but such authorization
shall not prevent the Owner Trustee from contesting any such tax in appropriate
proceedings, and withholding payment of such tax, if permitted by law, pending
the outcome of such proceedings). The amount of any withholding tax imposed with
respect to the Certificateholder shall be treated as cash distributed to such
Certificateholder at the time it is withheld by the Trust and remitted to the
appropriate taxing authority. If there is a possibility that withholding tax is
payable with respect to a distribution, the Paying Agent may in its sole
discretion withhold such amounts in accordance with the paragraph (c).
SECTION 5.02. METHOD OF PAYMENT. Subject to Section 9.01(c) respecting
the final payment upon retirement of the Trust Certificate, distributions
required to be made to the Certificateholder of record on the related Record
Date shall be made by check mailed to such Certificateholder at the address of
such Holder appearing in the Certificate Register.
SECTION 5.03. ACCOUNTING AND REPORTS TO THE CERTIFICATEHOLDER, OWNER,
THE INTERNAL REVENUE SERVICE AND OTHERS. The Administrator shall (a) maintain
(or cause to be maintained) the books of the Trust on a calendar year basis and
the accrual method of accounting, (b) deliver to the Owner, as may be required
by the Code and applicable Treasury Regulations, such information as may be
required to enable the Owner to prepare its federal and state income tax
returns, (c) file such tax returns relating to the Trust and make such elections
as from time to time may be required or appropriate under any applicable state
or federal statute or any rule or regulation thereunder so as to maintain the
federal income tax treatment for the Trust as set forth in Section 2.11, (d)
cause such tax returns to be signed in the manner required by law and (e)
collect or cause to be collected any withholding tax as described in and in
accordance with Section 5.01(c) with respect to income or distributions to
Owner. The Owner Trustee shall elect under Section 1278 of the Code to include
in income currently any market discount that accrues with respect to the
Contracts. If applicable, the Owner Trustee shall not make the election provided
under Section 754 or Section 761 of the Code.
SECTION 5.04. SIGNATURE ON RETURNS; TAX MATTERS PARTNER.
(a) The Trust Depositor shall sign on behalf of the Trust the
tax returns of the Trust.
(b) If subchapter K of the Code should be applicable to the
Trust, the Certificateholder shall be designated the "TAX MATTERS PARTNER" of
the Trust pursuant to Section 6231(a)(7)(A) of the Code and applicable Treasury
Regulations.
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ARTICLE SIX
AUTHORITY AND DUTIES OF OWNER TRUSTEE
SECTION 6.01. GENERAL AUTHORITY. Subject to the provisions and
limitations of Sections 2.03 and 2.06, the Owner Trustee is authorized and
directed to execute and deliver the Transaction Documents to which the Trust is
to be a party and each certificate or other document attached as an exhibit to
or contemplated by the Transaction Documents to which the Trust is to be a party
and any amendment or other agreement, as evidenced conclusively by the Owner
Trustee's execution thereof. In addition to the foregoing, the Owner Trustee is
authorized, but shall not be obligated, to take all actions required of the
Trust pursuant to the Transaction Documents. The Owner Trustee is further
authorized from time to time to take such action as the Administrator recommends
with respect to the Transaction Documents.
SECTION 6.02. GENERAL DUTIES. Subject to the provisions and limitations
of Sections 2.03 and 2.06, it shall be the duty of the Owner Trustee to
discharge (or cause to be discharged through the Administrator all of its
responsibilities pursuant to the terms of this Agreement and the Transaction
Documents to which the Trust is a party and to administer the Trust in the
interest of the Owner, subject to the Transaction Documents and in accordance
with the provisions of this Agreement. Without limiting the foregoing, the Owner
Trustee shall on behalf of the Trust file and prove any claim or claims that may
exist against Harley-Davidson Credit in connection with any claims paying
procedure as part of an insolvency or receivership proceeding involving
Harley-Davidson Credit. Notwithstanding the foregoing, the Owner Trustee shall
be deemed to have discharged its duties and responsibilities hereunder and under
the Transaction Documents to the extent the Administrator has agreed in the
Administration Agreement to perform any act or to discharge any duty of the
Owner Trustee hereunder or under any Transaction Document, and the Owner Trustee
shall not be held liable for the default or failure of the Administrator to
carry out its obligations under the Administration Agreement.
SECTION 6.03. ACTION UPON INSTRUCTION.
(a) Subject to Article Four, in accordance with the terms of
the Transaction Documents the Owner may by written instruction direct the Owner
Trustee in the management of the Trust.
(b) The Owner Trustee shall not be required to take any
action hereunder or under any other Transaction Document if the Owner Trustee
shall have reasonably determined, or shall have been advised by counsel, that
such action is likely to result in liability on the part of the Owner Trustee or
is contrary to the terms hereof or of any other Transaction Document or is
otherwise contrary to law.
(c) Whenever the Owner Trustee is unable to decide between
alternative courses of action permitted or required by the terms of this
Agreement or under any other Transaction Document, the Owner Trustee shall
promptly give notice (in such form as shall be appropriate under the
circumstances) to the Owner requesting instruction as to the course of action to
be adopted, and to the extent the Owner Trustee acts in good faith in accordance
with any written instruction of the Owner received, the Owner Trustee shall not
be liable on account of such action to any Person. If the Owner Trustee shall
not have received appropriate instruction within ten days of such notice (or
within such shorter period of time as reasonably may be specified in such notice
or may be necessary under the
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circumstances) it may, but shall be under no duty to, take or refrain from
taking such action not inconsistent with this Agreement and the other
Transaction Documents, as it shall deem to be in the best interests of the
Owner, and shall have no liability to any Person for such action or inaction.
(d) In the event that the Owner Trustee is unsure as to the
applicability of any provision of this Agreement or any other Transaction
Document or any such provision is ambiguous as to its application, or is, or
appears to be, in conflict with any other applicable provision, or in the event
that this Agreement permits any determination by the Owner Trustee or is silent
or in incomplete as to the course of action that the Owner Trustee is required
to take with respect to a particular set of facts, the Owner Trustee may give
notice (in such form as shall be appropriate under the circumstances) to the
Owner requesting instruction and, to the extent that the Owner Trustee acts or
refrains from acting in good faith in accordance with any such instruction
received, the Owner Trustee shall not be liable, on account of such action or
inaction, to any Person. If the Owner Trustee shall not have received
appropriate instruction within ten days of such notice (or within such shorter
period of time as reasonably may be specified in such notice or may be necessary
under the circumstances) it may, but shall be under no duty to, take or refrain
from taking such action not inconsistent with this Agreement or the other
Transaction Documents, as it shall deem to be in the best interests of the
Owner, and shall have no liability to any Person for such action or inaction.
SECTION 6.04. NO DUTIES EXCEPT AS SPECIFIED IN THIS AGREEMENT OR IN
INSTRUCTIONS. The Owner Trustee shall not have any duty or obligation to manage,
make any payment with respect to, register, record, sell, dispose of or
otherwise deal with the Trust Estate, or to otherwise take or refrain from
taking any action under, or in connection with, any document contemplated hereby
to which the Owner Trustee is a party, except as expressly provided by the terms
of this Agreement or any document or written instruction received by the Owner
Trustee pursuant to Section 6.03; and no implied duties or obligations shall be
read into this Agreement or any other Transaction Document against the Owner
Trustee. The Owner Trustee shall have no responsibility for filing any financing
or continuation statement in any public office at any time or to otherwise
perfect or maintain the perfection of any security interest or lien granted to
it hereunder or to prepare or file any Commission filing for the Trust or to
record this Agreement or any other Transaction Document. The Owner Trustee
nevertheless agrees that it will, at its own cost and expense, promptly take all
action as may be necessary to discharge any liens on any part of the Trust
Estate that result from actions by, or claims against, the Owner Trustee that
are not related to the ownership or the administration of the Trust Estate.
SECTION 6.05. NO ACTION EXCEPT UNDER SPECIFIED DOCUMENTS OR
INSTRUCTIONS. The Owner Trustee shall not manage, control, use, sell, dispose of
or otherwise deal with any part of the Trust Estate except (i) in accordance
with the powers granted to and the authority conferred upon the Owner Trustee
pursuant to this Agreement, (ii) in accordance with the other Transaction
Documents and (iii) in accordance with any document or instruction delivered to
the Owner Trustee pursuant to Section 6.03.
SECTION 6.06. RESTRICTIONS. The Owner Trustee shall not take any action
(i) that is inconsistent with the purposes of the Trust set forth in Section
2.03 or (ii) that, to the actual knowledge of the Owner Trustee, would result in
the Trust's becoming taxable as a corporation for federal or state income tax
purposes. The Owner shall not direct the Owner Trustee to take actions that
would violate the provisions of this Section.
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SECTION 6.07. PENNSYLVANIA MOTOR VEHICLE SALES FINANCE ACT LICENSES.
The Owner Trustee shall use its best efforts to maintain the effectiveness of
all licenses required under the Pennsylvania Motor Vehicle Sales Finance Act in
connection with the transactions contemplated by the Transaction Documents until
the lien and security interest of the Indenture shall no longer be in effect in
accordance with its terms.
ARTICLE SEVEN
CONCERNING THE OWNER TRUSTEE
SECTION 7.01. ACCEPTANCE OF TRUSTS AND DUTIES. The Owner Trustee
accepts the trusts hereby created and agrees to perform its duties hereunder
with respect to such trusts but only upon the terms of this Agreement. The Owner
Trustee also agrees to disburse all moneys actually received by it constituting
part of the Trust Estate upon the terms of the Transaction Documents and this
Agreement. The Owner Trustee shall not be answerable or accountable hereunder or
under any other Transaction Document under any circumstances, except (i) for its
own willful misconduct or negligence or (ii) in the case of the inaccuracy of
any representation or warranty contained in Section 7.03 expressly made by the
Owner Trustee. In particular, but not by way of limitation (and subject to the
exceptions set forth in the preceding sentence):
(a) the Owner Trustee shall not be liable for any error of
judgment made by a responsible officer of the Owner Trustee;
(b) the Owner Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in accordance with the instructions of
the Administrator or any Owner;
(c) no provision of this Agreement or any other Transaction
Document shall require the Owner Trustee to expend or risk funds or otherwise
incur any financial liability in the performance of any of its rights or powers
hereunder or under any Transaction Document if the Owner Trustee shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured or provided
to it;
(d) under no circumstances shall the Owner Trustee be liable
for indebtedness evidenced by or arising under any of the Transaction Documents,
including the principal of and interest on the Notes;
(e) the Owner Trustee shall not be responsible for or in
respect of the validity or sufficiency of this Agreement or for the due
execution hereof by the Trust Depositor or for the form, character, genuineness,
sufficiency, value or validity of any of the Trust Estate, or for or in respect
of the validity or sufficiency of the Transaction Documents, other than the
certificate of authentication on the Trust Certificate, and the Owner Trustee
shall in no event assume or incur any liability, duty, or obligation to any
Noteholder or to any Owner, other than as expressly provided for herein or
expressly agreed to in the Transaction Documents;
(f) the Owner Trustee shall not be liable for the default or
misconduct of the Administrator, the Trust Depositor, the Indenture Trustee or
the Servicer under any of the Transaction
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Documents or otherwise and the Owner Trustee shall have no obligation or
liability to perform the obligations of the Trust under this Agreement or the
other Transaction Documents that are required to be performed by the
Administrator under the Administration Agreement, the Indenture Trustee under
the Indenture or the Servicer, or the Trust Depositor under the Sale and
Servicing Agreement; and
(g) the Owner Trustee shall be under no obligation to
exercise any of the rights or powers vested in it by the Agreement, or to
institute, conduct or defend any litigation under this Agreement or otherwise or
in relation to this Agreement or any other Transaction Document, at the request,
order or direction of the Owner, unless such Owner have offered to the Owner
Trustee security or indemnity satisfactory to it against the costs, expenses and
liabilities that may be incurred by the Owner Trustee therein or thereby. The
right of the Owner Trustee to perform any discretionary act enumerated in this
Agreement or in any other Transaction Document shall not be construed as a duty,
and the Owner Trustee shall not be answerable for other than its negligence or
willful misconduct in the performance of any such act.
SECTION 7.02. FURNISHING OF DOCUMENTS. The Owner Trustee shall furnish
to the Owner promptly upon receipt of a written request therefor, duplicates or
copies of all reports, notices, requests, demands, certificates, financial
statements and any other instruments furnished to the Owner Trustee under the
Transaction Documents.
SECTION 7.03. REPRESENTATIONS AND WARRANTIES. The Owner Trustee hereby
represents and warrants to the Trust Depositor and the Owner that:
(a) It is a banking corporation duly organized and validly
existing in good standing under the laws of the State of Delaware. It has all
requisite corporate power and authority to execute, deliver and perform its
obligations under this Agreement.
(b) It has taken all corporate action necessary to authorize
the execution an delivery by it of this Agreement, and this Agreement will be
executed and delivered by one of its officers who is duly authorized to execute
and deliver this Agreement on its behalf.
(c) Neither the execution nor the delivery by it of this
Agreement, nor the consummation by it of the transactions contemplated hereby
nor compliance by it with any of the terms or provisions hereof will contravene
any federal or Delaware law, governmental rule or regulation governing the
banking or trust powers of the Owner Trustee or any judgment or order binding on
it, or constitute any default under its charter documents or bylaws or any
indenture, mortgage, contract, agreement or instrument to which it is a party or
by which any of its properties may be bound or result in the creation or
imposition of any lien, charge or encumbrance on the Trust Estate resulting from
actions by or claims against the Owner Trustee individually which are unrelated
to this Agreement or the other Transaction Documents.
SECTION 7.04. RELIANCE; ADVICE OF COUNSEL.
(a) The Owner Trustee shall incur no liability to anyone in
acting upon any signature, instrument, notice, resolution, request, consent,
order, certificate, report, opinion, bond or other document or paper believed by
it to be genuine and believed by it to be signed by the proper party or parties.
The Owner Trustee may accept a certified copy of a resolution of the board of
directors or other
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governing body of any corporate party as conclusive evidence that such
resolution has been duly adopted by such body and that the same is in full force
and effect. As to any fact or matter the method of determination of which is not
specifically prescribed herein, the Owner Trustee may for all purposes hereof
rely on a certificate, signed by the president or any vice president or by the
treasurer or other authorized officers of the relevant party, as to such fact or
matter and such certificate shall constitute full protection to the Owner
Trustee for any action taken or omitted to be taken by it in good faith in
reliance thereon.
(b) In the exercise or administration of the trusts hereunder
and in the performance of its duties and obligations under this Agreement or the
other Transaction Documents, the Owner Trustee (i) may act directly or through
its agents or attorneys pursuant to agreements entered into by any of them, and
the Owner Trustee shall not be liable for the conduct or misconduct of such
agents or attorneys as shall have been selected by the Owner Trustee with
reasonable care, and (ii) may consult with counsel, accountants and other
skilled persons to be selected with reasonable care and employed by it. The
Owner Trustee shall not be liable for anything done, suffered or omitted in good
faith by it in accordance with the written opinion or advice of any such
counsel, accountants or other such persons.
SECTION 7.05. NOT ACTING IN INDIVIDUAL CAPACITY. Except as provided in
this Article Seven, in accepting the trusts hereby created, Wilmington Trust
Company acts solely as Owner Trustee hereunder and not in its individual
capacity, and all Persons having any claim against the Owner Trustee by reason
of the transactions contemplated by this Agreement or any other Transaction
Document shall look only to the Trust Estate for payment or satisfaction
thereof.
SECTION 7.06. OWNER TRUSTEE NOT LIABLE FOR TRUST CERTIFICATE, NOTES OR
CONTRACTS. The recitals contained herein and in the Trust Certificate (other
than the signature and countersignature of the Owner Trustee and the certificate
of authentication on the Trust Certificate) shall be taken as the statements of
the Trust Depositor, and the Owner Trustee assumes no responsibility for the
correctness thereof. The Owner Trustee makes no representations as to the
validity or sufficiency of this Agreement, any other Transaction Document or the
Trust Certificate (other than the signature and countersignature of the Owner
Trustee and the certificate of authentication on the Trust Certificate) or the
Notes, or of any Contract or related documents. The Owner Trustee shall at no
time have any responsibility or liability for or with respect to the legality,
validity and enforceability of any Contract, or the perfection and priority of
any security interest created by any Contract in any Motorcycle or the
maintenance of any such perfection and priority, or for or with respect to the
sufficiency of the Trust Estate or its ability to generate the payments to be
distributed to the Certificateholder under this Agreement or the Noteholders
under the Indenture, including, without limitation, the existence, condition and
ownership of any Motorcycle; the existence and enforceability of any insurance
thereon; the existence and contents of any Contract on any computer or other
record thereof; the validity of the assignment of any Contract to the Trust or
of any intervening assignment; the completeness of any Contract; the performance
or enforcement of any Contract; the compliance by the Trust Depositor or the
Servicer with any warranty or representation made under any Transaction Document
or in any related document or the accuracy of any such warranty or
representation; or any action of the Administrator, the Indenture Trustee or the
Servicer or any subservicer taken in the name of the Owner Trustee.
SECTION 7.07. OWNER TRUSTEE MAY OWN TRUST CERTIFICATE AND NOTES. The
Owner Trustee in its individual or any other capacity may become the owner or
pledgee of the Trust Certificate or Notes and
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may deal with the Trust Depositor, the Administrator, the Indenture Trustee and
the Servicer in banking transactions with the same rights as it would have if it
were not Owner Trustee.
ARTICLE EIGHT
COMPENSATION OF OWNER TRUSTEE
SECTION 8.01. OWNER TRUSTEE'S FEES AND EXPENSES. The Owner Trustee
shall receive as compensation for its services hereunder such fees as have been
separately agreed upon between the Owner Trustee and the Trust Depositor.
Additionally, the Owner Trustee shall be entitled to be reimbursed by the Trust
Depositor for its other reasonable expenses hereunder, including the reasonable
compensation, expenses and disbursements of such agents, representatives,
experts and counsel as the Owner Trustee may employ in connection with the
exercise and performance of its rights and its duties hereunder.
SECTION 8.02. INDEMNIFICATION. The Trust Depositor shall be liable as
primary obligor for, and shall indemnify the Owner Trustee and its successors,
assigns and servants (collectively, the "INDEMNIFIED PARTIES") from and against,
any and all liabilities, obligations, losses, damages, taxes, claims, actions
and suits, and any and all reasonable costs, expenses and disbursements
(including reasonable legal fees and expenses) of any kind and nature whatsoever
(collectively, "EXPENSES") which may at any time be imposed on, incurred by or
asserted against the Owner Trustee or any Indemnified Party in any way relating
to or arising out of this Agreement, the other Transaction Documents, the Trust
Estate, the administration of the Trust Estate or the action or inaction of the
Owner Trustee hereunder, except only that the Trust Depositor shall not be
liable for or required to indemnify an Indemnified Party from and against
Expenses arising or resulting from any of the matters described in the third
sentence of Section 7.01. The indemnities contained in this Section shall
survive the resignation or termination of the Owner Trustee or the termination
of this Agreement. In the event of any claim, action or proceeding for which
indemnity will be sought pursuant to this Section, the Owner Trustee's choice of
legal counsel shall be subject to the approval of the Trust Depositor, which
approval shall not be unreasonably withheld.
SECTION 8.03. PAYMENTS TO THE OWNER TRUSTEE. Any amounts paid to the
Owner Trustee pursuant to this Article shall be deemed not to be a part of the
Trust Estate immediately after such payment.
ARTICLE NINE
TERMINATION OF
TRUST AGREEMENT
SECTION 9.01. TERMINATION OF
TRUST AGREEMENT.
(a) This Agreement (other than Article Eight) and the Trust
shall terminate and be of no further force or effect upon the earlier of (i)
final distribution by the Owner Trustee of all moneys or other property or
proceeds of the Trust Estate in accordance with the terms of the Indenture, the
Sale and Servicing Agreement and Article Five and (ii) the expiration of 21
years from the death of the survivor of the descendants of Xxxxxx X. Xxxxxxx,
the late Ambassador of the United States to the Court of St.
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James's, living on the date hereof. The bankruptcy, liquidation, dissolution,
death or incapacity of any Owner shall not (i) operate to terminate this
Agreement or the Trust, (ii) entitle such Owner's legal representatives or heirs
to claim an accounting or to take any action or proceeding in any court for a
partition or winding up of all or any part of the Trust or Trust Estate or (iii)
otherwise affect the rights, obligations and liabilities of the parties hereto.
(b) Except as provided in Section 9.01(a), neither the Trust
Depositor nor any Holder shall be entitled to revoke or terminate the Trust.
(c) Notice of any termination of the Trust, specifying the
Distribution Date upon which the Certificateholder shall surrender the Trust
Certificate to the Paying Agent for payment of the final distribution and
cancellation, shall be given by the Owner Trustee by letter to the
Certificateholder mailed within five Business Days of receipt of notice of such
termination from the Servicer given pursuant to Section 10.01 of the Sale and
Servicing Agreement, stating (i) the Distribution Date upon or with respect to
which final payment of the Trust Certificate shall be made upon presentation and
surrender of the Trust Certificate at the office of the Paying Agent therein
designated, (ii) the amount of any such final payment and (iii) that the Record
Date otherwise applicable to such Distribution Date is not applicable, payments
being made only upon presentation and surrender of the Trust Certificate at the
office of the Paying Agent therein specified. The Owner Trustee shall give such
notice to the Certificate Registrar (if other than the Owner Trustee) and the
Paying Agent at the time such notice is given to the Certificateholder. Upon
presentation and surrender of the Trust Certificate, the Paying Agent shall
cause to be distributed to the Certificateholder amounts distributable on such
Distribution Date pursuant to Section 5.01.
(d) Upon the winding up of the Trust and its termination, the
Owner Trustee shall cause the Certificate of Trust to be canceled by filing a
certificate of cancellation with the Secretary of State in accordance with the
provisions of Section 3810 of the Business Trust Statute.
ARTICLE TEN
SUCCESSOR OWNER TRUSTEES AND ADDITIONAL OWNER TRUSTEES
SECTION 10.01. ELIGIBILITY REQUIREMENTS FOR OWNER TRUSTEE. The Owner
Trustee shall at all times be a corporation satisfying the provisions of Section
3807(a) of the Business Trust Statute; authorized to exercise corporate trust
powers; and (a) having a combined capital and surplus of at least $50,000,000
and subject to supervision or examination by federal or state authorities; and
having (or having a parent that has) a rating of at least Baa3 by Xxxxx'x; or
(b) which the Rating Agencies have otherwise indicated in writing is an entity
acceptable to act as Owner Trustee hereunder. If such corporation shall publish
reports of condition at least annually pursuant to law or to the requirements of
the aforesaid supervising or examining authority, then for the purpose of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Owner Trustee shall cease to be
eligible in accordance with the provisions of this Section, the Owner Trustee
shall resign immediately in the manner and with the effect specified in Section
10.02.
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SECTION 10.02. RESIGNATION OR REMOVAL OF OWNER TRUSTEE. The Owner
Trustee may at any time resign and be discharged from the trusts hereby created
by giving written notice thereof to the Administrator. Upon receiving such
notice of resignation, the Administrator shall promptly appoint a successor
Owner Trustee by written instrument, in duplicate, one copy of which instrument
shall be delivered to the resigning Owner Trustee and one copy to the successor
Owner Trustee. If no successor Owner Trustee shall have been so appointed and
have accepted appointment within 30 days after the giving of such notice of
resignation, the resigning Owner Trustee may petition any court of competent
jurisdiction for the appointment of a successor Owner Trustee.
If at any time the Owner Trustee shall cease to be eligible in accordance
with the provisions of Section 10.01 and shall fail to resign after written
request therefor by the Administrator, or if at any time the Owner Trustee shall
be legally unable to act, or shall be adjudged bankrupt or insolvent, or a
receiver of the Owner Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Owner Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, then the Administrator, may remove the Owner Trustee. If the
Administrator shall remove the Owner Trustee under the authority of the
immediately preceding sentence, the Administrator shall promptly appoint a
successor Owner Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the outgoing Owner Trustee so removed and one
copy to the successor Owner Trustee, and shall pay all fees owed to the outgoing
Owner Trustee.
Any resignation or removal of the Owner Trustee and appointment of a
successor Owner Trustee pursuant to any of the provisions of this Section shall
not become effective until acceptance of appointment by the successor Owner
Trustee pursuant to Section 10.03 and payment of all fees and expenses owed to
the outgoing Owner Trustee. The Administrator shall provide notice of such
resignation or removal of the Owner Trustee to each Rating Agency.
SECTION 10.03. SUCCESSOR OWNER TRUSTEE. Any successor Owner Trustee
appointed pursuant to Section 10.02 shall execute, acknowledge and deliver to
the Administrator, and to its predecessor Owner Trustee an instrument accepting
such appointment under this Agreement, and thereupon the resignation or removal
of the predecessor Owner Trustee shall become effective, and such successor
Owner Trustee, without any further act, deed or conveyance, shall become fully
vested with all the rights, powers, duties and obligations of its predecessor
under this Agreement, with like effect as if originally named as Owner Trustee.
The predecessor Owner Trustee shall upon payment of its fees and expenses
deliver to the successor Owner Trustee all documents and statements and monies
held by it under this Agreement; and the Administrator and the predecessor Owner
Trustee shall execute and deliver such instruments and do such other things as
may reasonably be required for fully and certainly vesting and confirming in the
successor Owner Trustee all such rights, powers, duties and obligations.
No successor Owner Trustee shall accept appointment as provided in this
Section unless at the time of such acceptance such successor Owner Trustee shall
be eligible pursuant to Section 10.01.
Upon acceptance of appointment by a successor Owner Trustee pursuant to
this Section, the Administrator shall mail notice thereof to the
Certificateholder, the Indenture Trustee, the Noteholders and each Rating
Agency. If the Administrator shall fail to mail such notice within ten days
after acceptance of such appointment by the successor Owner Trustee, the
successor Owner Trustee shall cause such notice to be mailed at the expense of
the Administrator.
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SECTION 10.04. MERGER OR CONSOLIDATION OF OWNER TRUSTEE. Any corporation
into which the Owner Trustee may be merged or converted or with which it may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Owner Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Owner Trustee, shall be the successor of the Owner Trustee hereunder, without
the execution or filing of any instrument or any further act on the part of any
of the parties hereto, anything herein to the contrary notwithstanding;
PROVIDED, that such corporation shall be eligible pursuant to Section 10.01 and,
PROVIDED, FURTHER, that the Owner Trustee shall mail notice of such merger or
consolidation to each Rating Agency.
SECTION 10.05. APPOINTMENT OF CO-TRUSTEE OR SEPARATE TRUSTEE.
Notwithstanding any other provisions of this Agreement, at any time, for the
purpose of meeting any legal requirements of any jurisdiction in which any part
of the Trust Estate or any financed Motorcycle may at the time be located, the
Administrator and the Owner Trustee acting jointly shall have the power and
shall execute and deliver all instruments to appoint one or more Persons
approved by the Administrator and Owner Trustee to act as co-trustee, jointly
with the Owner Trustee, or as separate trustee or separate trustees, of all or
any part of the Trust Estate, and to vest in such Person, in such capacity, such
title to the Trust or any part thereof and, subject to the other provisions of
this Section, such powers, duties, obligations, rights and trusts as the
Administrator and the Owner Trustee may consider necessary or desirable. If the
Administrator shall not have joined in such appointment within 15 days after the
receipt by it of a request so to do, the Owner Trustee alone shall have the
power to make such appointment. No co-trustee or separate trustee under this
Agreement shall be required to meet the terms of eligibility as a successor
Owner Trustee pursuant to Section 10.01 and no notice of the appointment of any
co-trustee or separate trustee shall be required pursuant to Section 10.03.
Each separate trustee and co-trustee shall, to the extent permitted by law,
be appointed and act subject to the following provisions and conditions:
(a) all rights, powers, duties and obligations conferred or imposed
upon the Owner Trustee shall be conferred upon and exercised or performed
by the Owner Trustee and such separate trustee or co-trustee jointly (it
being understood that such separate trustee or co-trustee is not authorized
to act separately without the Owner Trustee joining in such act), except to
the extent that under any law of any jurisdiction in which any particular
act or acts are to be performed, the Owner Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such rights,
powers, duties and obligations (including the holding of title to the Trust
Estate or any portion thereof in any such jurisdiction) shall be exercised
and performed singly by such separate trustee or co-trustee, but solely at
the direction of the Owner Trustee;
(b) no trustee under this Agreement shall be personally liable by
reason of any act or omission of any other trustee under this Agreement;
and
(c) the Administrator and the Owner Trustee acting jointly may at any
time accept the resignation of or remove any separate trustee or
co-trustee.
Any notice, request or other writing given to the Owner Trustee shall be
deemed to have been given to each of the then separate trustees and co-trustees,
as effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article. Each separate trustee and co-trustee, upon its acceptance of
the trusts
- 21 -
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Owner Trustee or separately,
as may be provided therein, subject to all the provisions of this Agreement,
specifically including every provision of this Agreement relating to the conduct
of, affecting the liability of or affording protection to, the Owner Trustee.
Each such instrument shall be filed with the Owner Trustee and a copy thereof
given to the Administrator.
Any separate trustee or co-trustee may at any time appoint the Owner
Trustee as its agent or attorney-in-fact with full power and authority, to the
extent not prohibited by law, to do any lawful act under or in respect of this
Agreement on its behalf and in its name. If any separate trustee or co-trustee
shall die, become incapable of acting, resign or be removed, all of its estates,
properties, rights, remedies and trusts shall vest in and be exercised by the
Owner Trustee, to the extent permitted by law, without the appointment of a new
or successor co-trustee or separate trustee.
ARTICLE ELEVEN
MISCELLANEOUS
SECTION 11.01. SUPPLEMENTS AND AMENDMENTS.
(a) The Agreement may be amended by the Trust Depositor, and
the Owner Trustee, without the consent of any of the Noteholders or the
Certificateholder, to cure any ambiguity, to correct or supplement any
provisions in this Agreement or to add any other provisions with respect to
matters or questions arising under 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, adversely affect in any
material respect the interests of any Noteholder or Certificateholder.
(b) This Agreement may also be amended from time to time by
the Trust Depositor, and the Owner Trustee, with the consent of the Modified
Required Holders, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Agreement, or of modifying
in any manner the rights of the Noteholders or the Certificateholder; PROVIDED,
HOWEVER, that no such amendment shall increase or reduce in any manner the
amount of, or accelerate or delay the timing of, (i) collections of payments on
Contracts or distributions that shall be required to be made for the benefit of
the Noteholders or the Certificateholder, or (ii) eliminate the
Certificateholder consent or reduce the aforesaid percentage of the Outstanding
Amount of the Notes required to consent to any such amendment, without the
consent of the Holder of all outstanding Notes and the Trust Certificate.
(c) Prior to the execution of any such amendment or consent,
the Trust Depositor shall furnish written notification of the substance of such
amendment or consent, together with a copy thereof, to the Indenture Trustee,
the Administrator and each Rating Agency.
(d) Promptly after the execution of any such amendment or
consent, the Owner Trustee shall furnish written notification of the substance
of such amendment or consent to each Certificateholder. It shall not be
necessary for the consent of Certificateholder, Noteholders or the Indenture
Trustee pursuant to this Section to approve the particular form of any proposed
amendment or consent, but it shall be sufficient if such consent shall approve
the substance thereof. The manner of
- 22 -
obtaining such consents (and any other consents of the Certificateholder
provided for in this Agreement or in any other Transaction Document) and of
evidencing the authorization of the execution thereof by the Certificateholder
shall be subject to such reasonable requirements as the Owner Trustee may
prescribe.
(e) Promptly after the execution of any amendment to the
Certificate of Trust, the Owner Trustee shall cause the filing of such amendment
with the Secretary of State.
(f) Prior to the execution of any amendment to this Agreement
or the Certificate of Trust, the Owner Trustee shall be entitled to receive and
rely upon an Opinion of Counsel stating that the execution of such amendment is
authorized or permitted by this Agreement. The Owner Trustee may, but shall not
be obligated to, enter into any such amendment that affects the Owner Trustee's
own rights, duties or immunities under this Agreement or otherwise.
SECTION 11.02. NO LEGAL TITLE TO TRUST ESTATE IN OWNER. The Owner shall
not have legal title to any part of the Trust Estate. The Owner shall be
entitled to receive distributions with respect to their undivided ownership
interest herein only in accordance with Articles Five and Nine. No transfer, by
operation of law or otherwise, of any right, title or interest of the Owner to
and in their ownership interest in the Trust Estate shall operate to terminate
this Agreement or the trusts hereunder or entitle any transferee to an
accounting or to the transfer to it of legal title to any part of the Trust
Estate.
SECTION 11.03. LIMITATIONS ON RIGHTS OF OTHERS. Except for Section 2.07,
the provisions of this Agreement are solely for the benefit of the Owner
Trustee, the Trust Depositor, the Owner, the Administrator and, to the extent
expressly provided herein, the Indenture Trustee and the Noteholders, and
nothing in this Agreement (other than Section 2.07), whether express or implied,
shall be construed to give to any other Person any legal or equitable right,
remedy or claim in the Trust Estate or under or in respect of this Agreement or
any covenants, conditions or provisions contained herein.
SECTION 11.04. NOTICES. All notices, demands, certificates, requests and
communications hereunder ("NOTICES") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered to an
Authorized Officer of the party to which sent, or (d) on the date transmitted by
legible telecopier transmission with a confirmation of receipt, in all cases
addressed to the recipient at the address for such recipient set forth in the
Sale and Servicing Agreement.
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 11.05. SEVERABILITY OF PROVISIONS. If any one or more of the
covenants, agreements, provisions, or terms of this Agreement shall be for any
reason whatsoever held invalid, then such covenants, agreements, provisions or
terms shall be deemed severable from the remaining covenants, agreements,
provisions or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement or of the Trust
Certificate or the rights of the Holder thereof.
SECTION 11.06. 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 instrument.
- 23 -
SECTION 11.07. SUCCESSORS AND ASSIGNS. All covenants and agreements
contained herein shall be binding upon, and inure to the benefit of, each of the
Trust Depositor, and the Owner Trustee and their respective successors and
permitted assigns and each Owner and its successors and permitted assigns, all
as herein provided. Any request, notice, direction, consent, waiver or other
instrument or action by an Owner shall bind the successors and assigns of such
Owner.
SECTION 11.08. COVENANTS OF THE TRUST DEPOSITOR. In the event that any
litigation with claims in excess of $1,000,000 to which the Trust Depositor is a
party which shall be reasonably likely to result in a material judgment against
the Trust Depositor that the Trust Depositor will not be able to satisfy shall
be commenced, during the period beginning immediately following the commencement
of such litigation and continuing until such litigation is dismissed or
otherwise terminated (and, if such litigation has resulted in a final judgment
against the Trust Depositor, such judgment has been satisfied), the Trust
Depositor shall not pay any dividend to the Servicer, or make any distribution
on or in respect of its capital stock to the Servicer, or repay the principal
amount of any indebtedness of the Trust Depositor held by the Servicer, unless
(i) after giving effect to such payment, distribution or repayment, the Trust
Depositor's liquid assets shall not be less than the amount of actual damages
claimed in such litigation or (ii) the Rating Agencies shall not downgrade the
then existing rating on the Certificate with respect to any such payment,
distribution or repayment. The Trust Depositor will not at any time institute
against the Trust any bankruptcy proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Certificate, the Notes, the
Trust Agreement or any of the Transaction
Documents.
SECTION 11.09. NO PETITION.
(a) The Trust Depositor will not at any time institute
against the Trust any bankruptcy proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Trust Certificate, the Notes, this Agreement or any of the other Transaction
Documents.
(b) The Owner Trustee, by entering into this Agreement, each
Certificateholder, by accepting a Trust Certificate, and the Indenture Trustee
and each Noteholder, by accepting the benefits of this Agreement, hereby
covenant and agree that they will not at any time institute against the Trust
Depositor or the Trust, or join in any institution against the Trust Depositor,
or the Trust of, any bankruptcy proceedings under any United States federal or
state bankruptcy or similar law in connection with any obligations relating to
the Trust Certificate, the Notes, this Agreement or any of the other Transaction
Documents.
SECTION 11.10. NO RECOURSE. The Certificateholder by accepting the Trust
Certificate acknowledges that such Certificateholder's Trust Certificate
represents beneficial interests in the Trust only and does not represent
interests in or obligations of the Trust Depositor, the Servicer, the Seller,
the Administrator, the Owner Trustee, the Indenture Trustee or any of the
respective Affiliates and no recourse may be had against such parties or their
assets, except as may be expressly set forth or contemplated in this Agreement,
the Trust Certificate or the other Transaction Documents.
SECTION 11.11. HEADINGS. The headings of the various Articles and
Sections herein are for convenience of reference only and shall not define or
limit any of the terms or provisions hereof.
- 24 -
SECTION 11.12. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, 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 11.13. TRUST CERTIFICATE TRANSFER RESTRICTIONS. The Trust
Certificate may not be acquired by or for the account of a Benefit Plan. By
accepting and holding a Trust Certificate, the Holder thereof shall be deemed to
have represented and warranted that it is not a Benefit Plan nor will it hold
such Trust Certificate for the account of a Benefit Plan. By accepting and
holding a Trust Certificate, the Holder thereof shall be deemed to have
represented and warranted that it is not a Benefit Plan.
SECTION 11.14. TRUST DEPOSITOR PAYMENT OBLIGATION. The Trust Depositor
shall be responsible for payment of the Administrator's compensation pursuant to
Section 3 of the Administration Agreement and shall reimburse the Administrator
for all expenses and liabilities of the Administrator incurred thereunder.
[signature page follows]
- 25 -
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective officers hereunto duly authorized, as of the
day and year first above written.
HARLEY-DAVIDSON CUSTOMER FUNDING
CORP.,
as Trust Depositor
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Printed Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
WILMINGTON TRUST COMPANY,
as Owner Trustee
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Printed Name: Xxxxxxxx X. Xxxxx
Title: Assistant Vice President
Signature Page to
Trust
Agreement
EXHIBIT A
FORM OF CERTIFICATE OF TRUST OF
Harley-Davidson Motorcycle Trust 2002-2
This Certificate of Trust of Harley-Davidson Motorcycle Trust 2002-2 (the
"TRUST"), dated _______, 2002, is being duly executed and filed by Wilmington
Trust Company, a Delaware banking corporation, as Owner Trustee, to form a
business trust under the Delaware Business Trust Act (12 DEL. CODE, Section 3801
ET SEQ.).
1. NAME. The name of the business trust formed hereby is Harley-Davidson
Motorcycle Trust 2002-2.
2. DELAWARE TRUSTEE. The name and business address of the Owner Trustee
of the Trust in the State of Delaware is Wilmington Trust Company, Xxxxxx Square
North, 0000 Xxxxx Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx x0000.
IN WITNESS WHEREOF, the undersigned, being the sole Owner Trustee of the
Trust, has executed this Certificate of Trust as of the date first above
written.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely as
Owner Trustee
By:
------------------------------------------
Printed Name:
----------------------------
Title:
-----------------------------------
EXHIBIT B
FORM OF TRUST CERTIFICATE
[TO BE INSERTED ON CEDE & CO. CERTIFICATE -
THIS TRUST CERTIFICATE REPRESENTS THE BENEFICIAL INTEREST IN THE TRUST (AS
DEFINED BELOW) AND IS ENTITLED TO PAYMENTS AS DESCRIBED IN THE SALE AND
SERVICING AGREEMENT AND INDENTURE REFERRED TO HEREIN.
THIS TRUST CERTIFICATE DOES NOT REPRESENT AN OBLIGATION OF OR AN INTEREST IN
HARLEY-DAVIDSON CUSTOMER FUNDING CORP., HARLEY-DAVIDSON CREDIT CORP. OR ANY
AFFILIATE THEREOF, EXCEPT TO THE EXTENT SET FORTH IN THE
TRUST AGREEMENT. THIS
TRUST CERTIFICATE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933 OR
ANY STATE SECURITIES LAWS AND MAY NOT BE SOLD, TRANSFERRED OR PLEDGED IN UNLESS
THE CONDITIONS SET FORTH IN SECTION 3.04 OF THE TRUST AGREEMENT HAVE BEEN
COMPLIED WITH.
HARLEY-DAVIDSON MOTORCYCLE TRUST 2002-2 CERTIFICATE
NO. ___________ Initial Trust Certificate
Fractional Interest 100%
THIS CERTIFIES THAT Harley-Davidson Customer Funding Corp. is the
registered owner of 100% of the non-assessable, fully-paid, fractional undivided
beneficial interest in the Harley-Davidson Motorcycle Trust 2002-2 (the "TRUST")
formed by Harley-Davidson Customer Funding Corp., a Nevada corporation (the
"TRUST DEPOSITOR").
The Trust was created pursuant to a Trust Agreement, dated as of August 1,
2002 (as amended and supplemented from time to time, the "TRUST AGREEMENT"),
among Harley-Davidson Customer Funding Corp., as Trust Depositor (the "TRUST
DEPOSITOR"), Harley-Davidson Credit Corp. (the "SELLER") and Wilmington Trust
Company, as owner trustee (the "OWNER TRUSTEE"), a summary of certain of the
pertinent provisions of which is set forth below. To the extent not otherwise
defined herein, the capitalized terms used herein have the meanings assigned to
them in (i) the Trust Agreement, (ii) the Sale and Servicing Agreement, dated as
of August 1, 2002 (the "SALE AND SERVICING AGREEMENT"), among the Trust,
Harley-Davidson Customer Funding Corp., as depositor (the "TRUST DEPOSITOR"),
Harley-Davidson Credit Corp. ("HARLEY-DAVIDSON CREDIT"), as Servicer (in such
capacity, the "SERVICER") and BNY Midwest Trust Company, as Indenture Trustee
(the "Indenture Trustee") or (iii) the Indenture, dated as of August 1, 2002
(the "INDENTURE"), between the Trust and the Indenture Trustee.
This Trust Certificate is the duly authorized Trust Certificate designated
as "HARLEY-DAVIDSON MOTORCYCLE TRUST 2002-2 CERTIFICATE" (the "TRUST
CERTIFICATE"). Issued under the Indenture are three classes of notes designated
as "___% HARLEY-DAVIDSON MOTORCYCLE CONTRACT BACKED NOTES, CLASS A-1", "___%
HARLEY-DAVIDSON MOTORCYCLE CONTRACT BACKED NOTES, CLASS A-2" and "___%
HARLEY-DAVIDSON
MOTORCYCLE CONTRACT BACKED NOTES, CLASS B" (collectively, the "NOTES"). This
Trust Certificate is issued under and is subject to the terms, provisions and
conditions of the Trust Agreement, to which Trust Agreement the Holder of this
Trust Certificate by virtue of its acceptance hereof assents and by which such
Holder is bound. The property of the Trust includes, among other things, (i) all
the right, title and interest of the Trust Depositor in and to the Initial
Contracts listed on the initial List of Contracts delivered on the Closing Date
(including, without limitation, all security interests and all rights to receive
payments which are collected pursuant thereto on or after the Initial Cutoff
Date, including any liquidation proceeds therefrom, but excluding any rights to
receive payments which were collected pursuant thereto prior to the Initial
Cutoff Date), (ii) all rights of the Trust Depositor under any physical damage
or other individual insurance policy (and rights under a "FORCED PLACED" policy,
if any) or any debt cancellation agreement relating to any such Contract, an
Obligor or a Motorcycle securing such Contract, (iii) all security interests in
each such Motorcycle, (iv) all documents contained in the related Contract
Files, (v) all rights (but not the obligations) of the Trust Depositor under any
related motorcycle dealer agreements between dealers (i.e., the originators of
such Contracts) and the Trust Depositor, (vi) all rights of the Trust Depositor
in the Lockbox, the Lockbox Account and related Lockbox Agreement to the extent
they relate to such Contracts, (vii) all rights (but not the obligations) of the
Trust Depositor under the Transfer and Sale Agreement, including but not limited
to the Trust Depositor's rights under Article V thereof, (viii) the remittances,
deposits and payments made into the Trust Accounts from time to time and amounts
in the Trust Accounts from time to time (and any investments of such amounts),
(ix) all rights of the Trust Depositor to certain rebates of premiums and other
amounts relating to insurance policies, debt cancellation agreements, extended
service contracts or other repair agreements and other items financed under such
Contracts and (x) all proceeds and products of the foregoing.
Under the Trust Agreement, there will be distributed on the fifteenth day
of each month or if such day is not a Business Day the next succeeding Business
Day commencing [ ], 2002 (each, a "DISTRIBUTION DATE") to the person in
whose name this Trust Certificate is registered as of the last Business Day
immediately preceding the calendar month in which such Distribution Date occurs
(each, a "RECORD DATE"), such Certificateholder's fractional undivided
beneficial interest in the amount to be distributed to the Certificateholder on
such Distribution Date.
The holder of this Trust Certificate acknowledges and agrees that its
rights to receive distributions in respect of this Trust Certificate are
subordinated to the rights of the Noteholders to the extent described in the
Sale and Servicing Agreement and the Indenture.
It is the intent of the Seller, the Servicer, the Trust Depositor, Owner
Trustee, Indenture Trustee and the Certificateholder that, for purposes of
federal income, state and local income and single business tax and any other
income taxes, the Trust will be treated as a partnership and the
Certificateholder (including the Trust Depositor) will be treated as partners in
that partnership. The Trust Depositor and the Certificateholder, by acceptance
of a Trust Certificate, agree to treat, and to take no action inconsistent with
the treatment of, the Trust Certificate for such tax purposes as partnership
interests in the Trust and the Certificateholder (including the Trust Depositor)
as partners in that partnership.
Each Certificateholder, by its acceptance of a Trust Certificate or
beneficial interest in a Trust Certificate, covenants and agrees that such
Certificateholder will not at any time institute against the Trust or the Trust
Depositor, or join in any institution against the Trust or the Trust Depositor,
Harley-Davidson Credit or the Servicer any bankruptcy, reorganization,
arrangement, insolvency or liquidation
proceedings, or other proceedings under any United States federal or state
bankruptcy or similar law in connection with any obligations relating to the
Trust Certificate, the Notes, the Trust Agreement or any of the other
Transaction Documents.
Distributions on this Trust Certificate will be made as provided in the
Sale and Servicing Agreement by wire transfer or check mailed to the
Certificateholder of record in the Certificate Register without the presentation
or surrender of this Trust Certificate or the making of any notation hereon.
Except as otherwise provided in the Trust Agreement and notwithstanding the
above, the final distribution on this Trust Certificate will be made after due
notice by the Owner Trustee of the pendency of such distribution and only upon
presentation and surrender of this Trust Certificate at the office or agency
maintained for that purpose by the Owner Trustee in the City of Wilmington,
Delaware.
Reference is hereby made to the further provisions of this Trust
Certificate set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon shall have been executed by
an authorized officer of the Owner Trustee, by manual signature, this Trust
Certificate shall not entitle the holder hereof to any benefit under the Trust
Agreement or any other Transaction Document or be valid for any purpose.
THIS TRUST CERTIFICATE SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF DELAWARE, 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.
[REVERSE OF CERTIFICATE]
The Trust Certificate does not represent an obligation of, or an interest
in the Trust Depositor, Harley-Davidson Credit, as the Seller or Servicer, the
Owner Trustee, the Indenture Trustee or any of their respective Affiliates and
no recourse may be had against such parties or their assets, except as expressly
set forth or contemplated herein or in the Trust Agreement or the other
Transaction Documents. In addition, this Trust Certificate is not guaranteed by
any governmental agency or instrumentality and is limited in right of payment to
certain collections and recoveries with respect to the Contracts and certain
other amounts, in each case as more specifically set forth herein and in the
Sale and Servicing Agreement. A copy of each of the Sale and Servicing Agreement
and the Trust Agreement may be examined by any Certificateholder upon written
request during normal business hours at the principal office of the Trust
Depositor and at such other places, if any, designated by the Trust Depositor.
The Trust Agreement permits, with certain exceptions therein provided, the
amendment thereof and the modification of the rights and obligations of the
Trust Depositor and the rights of the Certificateholder under the Trust
Agreement at any time by the Trust Depositor and the Owner Trustee with the
consent of the Holder of the Trust Certificate and the Modified Registered
Holders. Any such consent by the Holder of this Trust Certificate shall be
conclusive and binding on such Holder and on all future Holder of this Trust
Certificate and of any Trust Certificate issued upon the transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent is
made upon this Trust Certificate. The Trust Agreement also permits the amendment
thereof, in certain limited circumstances, without the consent of the Holder of
any of the Trust Certificate.
As provided in the Trust Agreement and subject to certain limitations
therein set forth, the transfer of this Trust Certificate is registerable in the
Certificate Register upon surrender of this Trust Certificate for registration
of transfer at the offices or agencies of the Certificate Registrar maintained
by the Owner Trustee in Wilmington, Delaware, accompanied by a written
instrument of transfer in form satisfactory to the Owner Trustee and the
Certificate Registrar in Chicago, Illinois executed by the Holder hereof or such
Holder's attorney duly authorized in writing, and thereupon the new Trust
Certificate of authorized denominations evidencing the same aggregate interest
in the Trust will be issued to the designated transferee. The initial
Certificate Registrar appointed under the Trust Agreement is the Owner Trustee.
The Owner Trustee, the Certificate Registrar and any of their respective
agents may treat the Person in whose name this Trust Certificate is registered
as the owner hereof for all purposes, and none of the Owner Trustee, the
Certificate Registrar or any such agent shall be affected by any notice to the
contrary.
The obligations and responsibilities created by the Trust Agreement and the
Trust created thereby shall terminate upon the payment to the Certificateholder
of all amounts required to be paid to them pursuant to the Trust Agreement and
the Sale and Servicing Agreement and the deposition of all property held as part
of the Trust Estate. The Trust Depositor may at its option purchase the Trust
Estate at a price specified in the Sale and Servicing Agreement, and such
purchase of the Contracts and other property of the Trust will affect early
retirement of the Trust Certificate; however, such right of purchase is
exercisable only as of any Distribution Date on which the Pool Balance has
declined to less than 10% of the sum of (i) the initial Pool Balance and (ii)
the Pre-Funded Amount on the Closing Date.
The Trust Certificate may not be acquired by a Benefit Plan. By accepting
and holding this Trust Certificate, the Holder hereof by accepting a beneficial
interest in this Trust Certificate, shall be deemed to have represented and
warranted that it is not a Benefit Plan and is not acquiring this Trust
Certificate or an interest therein for the account of such an entity.
IN WITNESS WHEREOF, the Owner Trustee, on behalf of the Trust and not in
its individual capacity, has caused this Trust Certificate to be duly executed.
Dated: Harley-Davidson Motorcycle Trust 2002-2
By: WILMINGTON TRUST COMPANY, not in its
individual capacity but solely as
Owner Trustee
By:
----------------------------------
Authorized Signatory
OWNER TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is the Trust Certificate referred to in the within-mentioned Trust
Agreement.
WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
as Owner Trustee
By:
-------------------------------------------------
Authorized Signatory
ASSIGNMENT
FOR VALUE RECEIVED the undersigned hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER IDENTIFYING NUMBER OF ASSIGNEE
(Please print or type name and address, including postal zip code, of assignee)
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the within Trust Certificate, and all rights thereunder, hereby irrevocably
constituting and appointing
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to transfer said Trust Certificate on the books of the Certificate Registrar,
with full power of substitution in the premises.
Dated:
----------------
Signature Guaranteed:
------------------------------------------ ----------------------------------
NOTICE: Signature(s) must be guaranteed by NOTICE: The signature to this
an eligible guarantor institution. assignment must correspond with
the name of the registered owner
as it appears on the face of the
within Trust Certificate in every
particular, without alteration or
enlargement or any change
whatever.
