EXHIBIT 10.12
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ADMINISTRATION AGREEMENT
AMONG
HARLEY-DAVIDSON MOTORCYCLE TRUST 2001-3,
AS ISSUER,
HARLEY-DAVIDSON CREDIT CORP.,
AS ADMINISTRATOR
HARLEY-DAVIDSON CUSTOMER FUNDING CORP.,
AS TRUST DEPOSITOR,
AND
BNY MIDWEST TRUST COMPANY,
AS INDENTURE TRUSTEE
DATED AS OF DECEMBER 1, 2001
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TABLE OF CONTENTS
SECTION 1. DUTIES OF THE ADMINISTRATOR........................................................................3
SECTION 2. RECORDS............................................................................................9
SECTION 3. COMPENSATION.......................................................................................9
SECTION 4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER...............................................9
SECTION 5. INDEPENDENCE OF THE ADMINISTRATOR..................................................................9
SECTION 6. NO JOINT VENTURE...................................................................................9
SECTION 7. OTHER ACTIVITIES OF ADMINISTRATOR..................................................................9
SECTION 8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR.......................................10
SECTION 9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL...................................................11
SECTION 10. NOTICES...........................................................................................11
SECTION 11. AMENDMENTS........................................................................................11
SECTION 12. SUCCESSORS AND ASSIGNS............................................................................12
SECTION 13. GOVERNING LAW.....................................................................................12
SECTION 14. HEADINGS..........................................................................................12
SECTION 15. COUNTERPARTS......................................................................................13
SECTION 16. SEVERABILITY......................................................................................13
SECTION 17. NOT APPLICABLE TO HARLEY-DAVIDSON CREDIT IN OTHER CAPACITIES......................................13
SECTION 18. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND
INDENTURE TRUSTEE.................................................................................13
SECTION 19. THIRD-PARTY BENEFICIARY...........................................................................13
SECTION 20. SURVIVABILITY.....................................................................................13
This
Administration Agreement, dated as of December 1, 2001, among
Harley-Davidson Motorcycle Trust 2001-3 (the "ISSUER"), Harley-Davidson Credit
Corp. (together with its successors and assigns "HARLEY-DAVIDSON CREDIT") in its
capacity as administrator, the "ADMINISTRATOR"), Harley-Davidson Customer
Funding Corp. (the "TRUST DEPOSITOR") and BNY Midwest Trust Company, not in its
individual capacity but solely as Indenture Trustee (together with its
successors and assigns, the "INDENTURE TRUSTEE").
W I T N E S S E T H:
WHEREAS, the Issuer is issuing 2.57% Harley-Davidson Motorcycle Contract,
Class A-1 Notes, 4.04% Harley-Davidson Motorcycle Contract, Class A-2 Notes and
3.72% Harley-Davidson Motorcycle Contract, Class B Notes (collectively, the
"NOTES") pursuant to the Indenture, dated as of the date hereof (the
"INDENTURE"), between the Issuer and the Indenture Trustee (capitalized terms
used herein that are not otherwise defined shall have the meanings ascribed
thereto in the Indenture);
WHEREAS, the Issuer has entered into certain agreements in connection with
the issuance of the Notes including (i) a Sale and Servicing Agreement, dated as
of the date hereof (the "SALE AND SERVICING AGREEMENT"), among the Issuer, the
Indenture Trustee, the Trust Depositor and Harley-Davidson Credit, as servicer
(in such capacity, the "SERVICER"), and (ii) the Indenture (collectively
referred to hereinafter as the "TRANSACTION DOCUMENTS");
WHEREAS, pursuant to the Transaction Documents, the Issuer and the Owner
Trustee are required to perform certain duties in connection with (i) the Notes
and the collateral therefor pledged pursuant to the Indenture (the "COLLATERAL")
and (ii) the beneficial ownership interest in the Issuer (the registered holder
of such interest being referred to herein as the "OWNER");
WHEREAS, the Issuer and the Owner Trustee desire to have the Administrator
perform certain of the duties of the Issuer and the Owner Trustee referred to in
the preceding clause and to provide such additional services consistent with the
terms of this Agreement and the Transaction Documents as the Issuer and the
Owner Trustee may from time to time request; and
WHEREAS, the Administrator has the capacity to provide the services
required hereby and is willing to perform such services for the Issuer and the
Owner Trustee on the terms set forth herein;
NOW, THEREAFTER, in consideration of the mutual covenants contained
herein, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto agree as follows:
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SECTION 1. DUTIES OF THE ADMINISTRATOR.
(a) Duties with respect to the Indenture.
(i) The Administrator agrees to perform all its duties as
Administrator and the duties of the Issuer and the Owner Trustee under the
Transaction Documents. In addition, the Administrator shall consult with
the Owner Trustee regarding the duties of the Issuer or the Owner Trustee
under the Indenture. The Administrator shall monitor the performance of
the Issuer and shall advise the Owner Trustee when action is necessary to
comply with the respective duties of the Issuer and the Owner Trustee
under the Indenture. The Administrator shall prepare for execution by the
Issuer or shall cause the preparation by other appropriate persons of, all
such documents, reports, filings, instruments, certificates and opinions
that it shall be the duty of the Issuer or the Owner Trustee to prepare,
file or deliver pursuant to the Indenture. In furtherance of the
foregoing, the Administrator shall take all appropriate action that the
Issuer or the Owner Trustee is required to take pursuant to the Indenture
including, without limitation, such of the foregoing as are required with
respect to the following matters under the Indenture (references are to
Sections of the Indenture):
(A) the duty to cause the Note Register to be kept and to give the
Indenture Trustee notice of any appointment of a new Note Registrar and
the location, or change in location, of the Note Register (Section 2.04);
(B) the notification of Noteholders of the final principal payment
on their Notes (Section 2.07(b));
(C) the fixing or causing to be fixed of any special record date and
the notification of the Indenture Trustee and Noteholders with respect to
special payment dates, if any (Section 2.07(c));
(D) the preparation of or obtaining of the documents and instruments
required for execution and authentication of the Notes and delivery of the
same to the Indenture Trustee (Section 2.02);
(E) the preparation, obtaining or filing of the instruments,
opinions and certificates and other documents required for the release of
Collateral (Section 2.12);
(F) the maintenance of an office in the City of Chicago,
Illinois,
for registration of transfer or exchange of Notes (Section 3.02);
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(G) the duty to cause newly appointed Paying Agents, if any, to
deliver to the Indenture Trustee the instrument specified in the Indenture
regarding funds held in trust (Section 3.03);
(H) the direction to the Indenture Trustee to deposit monies with
Paying Agents, if any, other than the Indenture Trustee (Section 3.03);
(I) the obtaining and preservation of the Issuer's qualification to
do business in each jurisdiction in which such qualification is or shall
be necessary to protect the validity and enforceability of the Indenture,
the Notes, the collateral and each other instrument and agreement included
in the Collateral (Section 3.04);
(J) the preparation of all supplements and amendments to the
Indenture and all financing statements, continuation statements,
instruments of further assurance and other instruments and the taking of
such other action as is necessary or advisable to protect the Collateral
other than as prepared by the Servicer (Section 3.05);
(K) the delivery of the Opinion of Counsel on the Closing Date and
certain other statements as to compliance with the Indenture (Sections
3.06 and 3.09);
(L) the identification to the Indenture Trustee in an Officer's
Certificate of a Person with whom the Issuer has contracted to perform its
duties under the Indenture (Section 3.07(b));
(M) the notification of the Indenture Trustee and each Rating Agency
of an Event of Termination under the Sale and Servicing Agreement;
(N) the duty to cause the Servicer to comply with Sections 4.09,
4.10, 4.11 and 5.07 and Article Five and Article Nine of the Sale and
Servicing Agreement (Section 3.14);
(O) the preparation and obtaining of documents and instruments
required for the release of the Issuer from its obligations under the
Indenture (Section 3.10(b) and Section 3.11(b));
(P) the delivery of written notice to the Indenture Trustee and each
Rating Agency of each Event of Default under the Indenture and each Event
of Termination by the Servicer under the Sale and Servicing Agreement
(Section 3.18);
(Q) the monitoring of the Issuer's obligations as to the
satisfaction and discharge of the Indenture and the preparation of an
Officer's Certificate and the
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obtaining of the Opinion of Counsel and the Independent Certificate
relating thereto (Section 4.01);
(R) the compliance with any written directive of the Indenture
Trustee with respect to the sale of the Collateral in a commercially
reasonable manner if an Event of Default shall have occurred and be
continuing (Section 5.04);
(S) the preparation and delivery of notice to Noteholders of the
removal of the Indenture Trustee and the appointment of a successor
Indenture Trustee (Section 6.08);
(T) the preparation of any written instruments required to confirm
more fully the authority of any co-trustee or separate trustee and any
written instruments necessary in connection with the resignation or
removal of the Indenture Trustee or any co-trustee or separate trustee
(Sections 6.08 and 6.10);
(U) the furnishing of the Indenture Trustee with the names and
addresses of Noteholders during any period when the Indenture Trustee is
not the Note Registrar (Section 7.01);
(V) the opening of one or more accounts in the Indenture Trustee's
name, the preparation and delivery of Issuer Orders, Officer's
Certificates and Opinions of Counsel and all other actions necessary with
respect to investment and reinvestment of funds in the Trust Accounts
(Sections 8.02 and 8.03);
(W) the preparation of an Issuer Request and Officer's Certificate
and the obtaining of an Opinion of Counsel and Independent Certificates,
if necessary, for the release of the Collateral (Sections 8.04 and 8.05);
(X) the preparation of Issuer Orders and the obtaining of Opinions
of Counsel with respect to the execution of supplemental indentures and
the mailing to the Noteholders of notices with respect to such
supplemental indentures (Sections 9.01, 9.02 and 9.03);
(Y) the execution and delivery of new Notes conforming to any
supplemental indenture (Section 9.06);
(Z) the duty to notify Noteholders of redemption of the Notes or to
cause the Indenture Trustee to provide such notification (Section 10.02);
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(AA) the preparation and delivery of all Officer's Certificates,
Opinions of Counsel and Independent Certificates with respect to any
requests by the Issuer to the Indenture Trustee to take any action under
the Indenture (Section 11.01(a));
(BB) the preparation and delivery of Officer's Certificates and the
obtaining of Independent Certificates, if necessary, for the release of
property from the lien of the Indenture (Section 11.01(b));
(CC) the notification of the Rating Agencies, upon the failure of
the Issuer, the Owner Trustee or the Indenture Trustee to provide
notification;
(DD) the preparation and delivery to Noteholders and the Indenture
Trustee of any agreements with respect to alternate payment and notice
provisions (Section 11.06);
(EE) the recording of the Indenture, if applicable (Section 11.14);
and
(FF) the appointment of a successor Indenture Trustee.
(ii) The Administrator will:
(A) except as otherwise expressly provided in the Indenture, pay the
Indenture Trustee's fees and reimburse the Indenture Trustee upon its
request for all reasonable expenses, disbursements and advances incurred
or made by the Indenture Trustee in accordance with any provision of the
Indenture (including the reasonable compensation, expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence or bad
faith;
(B) indemnify the Indenture Trustee and its agents for, and hold
them harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection
with the acceptance or administration of the transactions contemplated by
the Indenture, including the reasonable costs and expenses of defending
themselves against any claim or liability in connection with the exercise
or performance of any of their powers or duties under the Indenture; and
(C) indemnify the Owner Trustee and its agents for, and hold them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection
with the acceptance or administration of the transactions contemplated by
the Trust Agreement, including the reasonable costs and expenses of
defending themselves against any claim or liability in connection with the
exercise or performance of any of their powers or duties under the Trust
Agreement.
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(b) ADDITIONAL DUTIES.
(i) In addition to the duties set forth in Section 1(a)(i), the
Administrator shall perform such calculations and shall prepare or shall
cause the preparation by other appropriate persons of, and shall execute
on behalf of the Issuer or the Owner Trustee, all such documents, reports,
filings, instruments, certificates and opinions that the Issuer or the
Owner Trustee are required to prepare, file or deliver pursuant to the
Transaction Documents or under Section 5.05 of the Trust Agreement, and at
the request of the Owner Trustee shall take all appropriate action that
the Issuer or the Owner Trustee are required to take pursuant to the
Transaction Documents. In furtherance thereof, the Owner Trustee shall, on
behalf of the Issuer, execute and deliver to the Administrator and to each
successor Administrator appointed pursuant to the terms hereof, one or
more powers of attorney substantially in the form of EXHIBIT A hereto,
appointing the Administrator the attorney-in-fact of the Issuer for the
purpose of executing on behalf of the Owner Trustee and the Issuer all
such documents, reports, filings, instruments, certificates and opinions.
Subject to Section 5, and in accordance with the directions of the Issuer,
the Administrator shall administer, perform or supervise the performance
of such other activities in connection with the Collateral (including the
Transaction Documents) as are not covered by any of the foregoing
provisions and as are expressly requested by the Issuer and are reasonably
within the capability of the Administrator.
(ii) Notwithstanding anything in this Agreement or the Transaction
Documents to the contrary, the Administrator shall be responsible for
promptly notifying the Owner Trustee in the event that any withholding tax
is imposed on the Trust's payments (or allocations of income) to the Owner
as contemplated in Section 5.01(c) of the Trust Agreement. Any such notice
shall specify the amount of any withholding tax required to be withheld by
the Owner Trustee pursuant to such provision.
(iii) Notwithstanding anything in this Agreement or the Transaction
Documents to the contrary, the Administrator shall be responsible for
performance of the duties of the Owner Trustee set forth in Section
5.05(a), (b), (c) and (d), the penultimate sentence of Section 5.05 and
Section 5.06(a) of the Trust Agreement with respect to, among other
things, accounting and reports to the Owner; PROVIDED, HOWEVER, that the
Owner Trustee shall retain responsibility for the distribution of
information forms necessary to enable the Owner to prepare its federal and
state income tax returns.
(iv) The Administrator shall satisfy its obligations with respect to
clauses (ii) and (iii) above by retaining, at the expense of the Trust
payable by the Administrator, a firm of independent public accountants
(the "ACCOUNTANTS") acceptable to the Owner Trustee, which shall perform
the obligations of the Administrator thereunder.
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(v) The Administrator shall perform the duties of the Administrator
specified in Section 10.02 of the Trust Agreement required to be performed
in connection with the resignation or removal of the Owner Trustee, and
any other duties expressly required to be performed by the Administrator
under the Trust Agreement.
(vi) In carrying out the foregoing duties or any of its other
obligations under this Agreement, the Administrator may enter into
transactions or otherwise deal with any of its Affiliates; PROVIDED,
HOWEVER, that the terms of any such transactions or dealings shall be in
accordance with any directions received from the Issuer and shall be, in
the Administrator's opinion, no less favorable to the Issuer than would be
available from unaffiliated parties.
(c) NON-MINISTERIAL MATTERS.
(i) With respect to matters that in the reasonable judgment of the
Administrator are non-ministerial, the Administrator shall not take any
action unless within a reasonable time before the taking of such action,
the Administrator shall have notified the Owner Trustee of the proposed
action and the Owner Trustee shall not have withheld consent or provided
an alternative direction. For the purpose of the preceding sentence,
"NON-MINISTERIAL MATTERS" shall include, without limitation:
(A) the amendment of or any supplement to the Indenture;
(B) the initiation of any claim or lawsuit by the Issuer and the
compromise of any action, claim or lawsuit brought by or against the
Issuer (other than in connection with the collection of the Contracts);
(C) the amendment, change or modification of any other Transaction
Documents;
(D) the appointment of successor Note Registrars, successor Paying
Agents and successor Indenture Trustees pursuant to the Indenture or the
appointment of successor Administrators or a successor Servicer, or the
consent to the assignment by the Note Registrar, Paying Agent or Indenture
Trustee of its obligations under the Indenture; and
(E) the removal of the Indenture Trustee.
(ii) Notwithstanding anything to the contrary in this Agreement, the
Administrator shall not be obligated to, and shall not, (A) make any
payments to the Noteholders under the Transaction Documents, (B) sell the
Collateral pursuant to clause
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(iv) of Section 5.04 of the Indenture, (C) take any other action that the
Issuer directs the Administrator not to take on its behalf or (D) take any
other action which may be construed as having the effect of varying the
investment of the Holders.
SECTION 2. RECORDS. The Administrator shall maintain appropriate books of
account and records relating to services performed hereunder, which books of
account and records shall be accessible for inspection by the Issuer and the
Owner Trustee at any time during normal business hours.
SECTION 3. COMPENSATION. As compensation for the performance of the
Administrator's obligations under this Agreement and as reimbursement for its
expenses related thereto, the Administrator shall be entitled to a monthly fee
which shall be solely an obligation of the Trust Depositor and shall be in an
amount as shall be agreeable to the Trust Depositor and the Administrator.
SECTION 4. ADDITIONAL INFORMATION TO BE FURNISHED TO THE ISSUER. The
Administrator shall furnish to the Issuer from time to time such additional
information regarding the Collateral as the Issuer shall reasonably request.
SECTION 5. INDEPENDENCE OF THE ADMINISTRATOR. For all purposes of this
Agreement, the Administrator shall be an independent contractor and shall not be
subject to the supervision of the Issuer or the Owner Trustee with respect to
the manner in which it accomplishes the performance of its obligations
hereunder. Unless expressly authorized by the Issuer, the Administrator shall
have no authority to act for or represent the Issuer or the Owner Trustee in any
way and shall not otherwise be deemed an agent of the Issuer or the Owner
Trustee.
SECTION 6. NO JOINT VENTURE. Nothing contained in this Agreement (i) shall
constitute the Administrator and either of the Issuer or the Owner Trustee as
members of any partnership, joint venture, association, syndicate,
unincorporated business or other separate entity, (ii) shall be construed to
impose any liability as such on any of them or (iii) shall be deemed to confer
on any of them any express, implied or apparent authority to incur any
obligation or liability on behalf of the others.
SECTION 7. OTHER ACTIVITIES OF ADMINISTRATOR. Nothing herein shall prevent
the Administrator or its Affiliates from engaging in other business or, in its
sole discretion, from acting in a similar capacity as an administrator for any
other Person or entity even though such person or entity may engage in business
activities similar to those of the Issuer, the Owner Trustee or the Indenture
Trustee.
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SECTION 8. TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF ADMINISTRATOR.
This Agreement shall continue in force until the termination of the Issuer, upon
which event this Agreement shall automatically terminate.
(a) Subject to Section 8(d) and Section 8(e), the Administrator may resign
its duties hereunder by providing the Issuer with at least 60 days' prior
written notice.
(b) Subject to Section 8(d) and Section 8(e), the Issuer may remove the
Administrator without cause by providing the Administrator with at least 60
days' prior written notice.
(c) Subject to Section 8(d) and Section 8(e), at the sole option of the
Issuer, the Administrator may be removed immediately upon written notice of
termination from the Issuer to the Administrator if any of the following events
shall occur:
(i) the Administrator shall default in the performance of any of its
duties under this Agreement and, after notice of such default, shall not cure
such default within ten days (or, if such default cannot be cured in such time,
shall not give within ten days such assurance of cure as shall be reasonably
satisfactory to the Issuer);
(ii) a court having jurisdiction in the premises shall enter a decree or
order for relief, and such decree or order shall not have been vacated within 60
days, in respect of the Administrator in any involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect or appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official for the Administrator or any substantial part
of its property or order the winding-up or liquidation of its affairs; or
(iii) the Administrator shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, shall consent to the entry of an order for relief in an involuntary case
under any such law, or shall consent to the appointment of a receiver,
liquidator, assignee, trustee, custodian, sequestrator or similar official for
the Administrator or any substantial part of its property, shall consent to the
taking of possession by any such official of any substantial part of its
property, shall make any general assignment for the benefit of creditors or
shall fail generally to pay its debts as they become due.
The Administrator agrees that if any of the events specified in clauses
(ii) or (iii) above shall occur, it shall give written notice thereof to the
Issuer and the Indenture Trustee within seven days after the occurrence of such
event.
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(d) No resignation or removal of the Administrator pursuant to this
Section shall be effective until (i) a successor Administrator shall have been
appointed by the Issuer and (ii) such successor Administrator shall have agreed
in writing to be bound by the terms of this Agreement in the same manner as the
Administrator is bound hereunder.
(e) The appointment of any successor Administrator shall be effective only
after the satisfaction of the Rating Agency Condition with respect to the
proposed appointment.
(f) Subject to Section 8(d) and 8(e), the Administrator acknowledges that
upon the appointment of a Successor Servicer pursuant to the Sale and Servicing
Agreement, the Administrator shall immediately resign and such Successor
Servicer shall automatically become the Administrator under this Agreement.
SECTION 9. ACTION UPON TERMINATION, RESIGNATION OR REMOVAL. Promptly upon
the effective date of termination of this Agreement pursuant to Section 8 or the
resignation or removal of the Administrator pursuant to Section 8(a), (b) or (c)
respectively, the Administrator shall be entitled to be paid all fees and
reimbursable expenses accruing to it to the date of such termination,
resignation or removal. The Administrator shall forthwith upon such termination
pursuant to Section 8 deliver to the Issuer all property and documents of or
relating to the Collateral then in the custody of the Administrator. In the
event of the resignation or removal of the Administrator pursuant to Section
(a), (b) or (c), respectively, the Administrator shall cooperate with the Issuer
and take all reasonable steps requested to assist the Issuer in making an
orderly transfer of the duties of the Administrator.
SECTION 10. NOTICES. All notices, demands, certificates, requests and
communications hereunder ("notices") shall be in writing and shall be effective
(a) upon receipt when sent through the U.S. mails, registered or certified mail,
return receipt requested, postage prepaid, with such receipt to be effective the
date of delivery indicated on the return receipt, or (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. AMENDMENTS. This Agreement may be amended from time to time by
a written amendment duly executed and delivered by the parties hereto, with the
written consent of the Owner Trustee but without the consent of the Noteholders,
for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Agreement
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or of modifying in any manner the rights of the Noteholders; provided that
such amendment will not, in the Opinion of Counsel satisfactory to the
Indenture Trustee, materially and adversely affect the interest of any
Noteholder. This Agreement may also be amended by the parties hereto with the
written consent of the Owner Trustee and the 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
Noteholders; PROVIDED, HOWEVER, that no such amendment may (i) increase or
reduce in any manner the amount of, or accelerate or delay the timing of,
collections of payments on the Contracts or distributions that are required to
be made for the benefit of the Noteholders or (ii) reduce the aforesaid
percentage of the holders of Notes which are required to consent to any such
amendment, without the consent of the holders of all outstanding Notes.
Notwithstanding the foregoing, the Administrator may not amend this Agreement
without the permission of the Trust Depositor, which permission shall not be
unreasonably withheld.
SECTION 12. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned by
the Administrator unless such assignment is previously consented to in writing
by the Issuer, the Indenture Trustee and the Owner Trustee and subject to the
satisfaction of the Rating Agency Condition in respect thereof. An assignment
with such consent and satisfaction, if accepted by the assignee, shall bind the
assignee hereunder in the same manner as the Administrator is bound hereunder.
Notwithstanding the foregoing, this Agreement may be assigned by the
Administrator without the consent of the Issuer or the Owner Trustee to a
corporation or other organization that is a successor (by merger, consolidation
or purchase of assets) to the Administrator; provided that such successor
organization executes and delivers to the Issuer, the Owner Trustee and the
Indenture Trustee an agreement, in form and substance reasonably satisfactory to
the Owner Trustee and the Indenture Trustee, in which such corporation or other
organization agrees to be bound hereunder by the terms of said assignment in the
same manner as the Administrator is bound hereunder. Subject to the foregoing,
this Agreement shall bind any successors or assigns of the parties hereto.
SECTION 13. GOVERNING LAW. THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF
ILLINOIS, WITHOUT REFERENCE TO ITS CONFLICT OF LAW
PROVISIONS, AND THE OBLIGATIONS, RIGHTS AND REMEDIES OF THE PARTIES HEREUNDER
SHALL BE DETERMINED IN ACCORDANCE WITH SUCH LAWS.
SECTION 14. HEADINGS. The section and subsection headings hereof have been
inserted for convenience of reference only and shall not be construed to affect
the meaning, construction or effect of this Agreement.
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SECTION 15. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same agreement.
SECTION 16. SEVERABILITY. Any provision of this Agreement that is
prohibited or unenforceable in any jurisdiction shall be ineffective to the
extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
SECTION 17. NOT APPLICABLE TO HARLEY-DAVIDSON CREDIT IN OTHER CAPACITIES.
Nothing in this Agreement shall affect any obligation Harley-Davidson Credit may
have in any other capacity.
SECTION 18. LIMITATION OF LIABILITY OF OWNER TRUSTEE AND INDENTURE
TRUSTEE.
(a) Notwithstanding anything contained herein to the contrary, this
instrument has been countersigned by Wilmington Trust Company not in its
individual capacity but solely in its capacity as Owner Trustee of the Issuer
and in no event shall Wilmington Trust Company in its individual capacity or any
beneficial owner of the Issuer have any liability for the representations,
warranties, covenants, agreements or other obligations of the Issuer hereunder,
as to all of which recourse shall be had solely to the assets of the Issuer. For
all purposes of this Agreement, in the performance of any duties or obligations
of the Issuer hereunder, the Owner Trustee shall be subject to, and entitled to
the benefits of, the terms and provisions of Articles Six, Seven and Eight of
the Trust Agreement.
(b) Notwithstanding anything contained herein to the contrary, this
Agreement has been countersigned by BNY Midwest Trust Company not in its
individual capacity but solely as Indenture Trustee and in no event shall BNY
Midwest Trust Company have any liability for the representations, warranties,
covenants, agreements or other obligations of the Issuer hereunder or in any
of the certificates, notices or agreements delivered pursuant hereto, as to
all of which recourse shall be had solely to the assets of the Issuer.
SECTION 19. THIRD-PARTY BENEFICIARY. The Owner Trustee is a third-party
beneficiary to this Agreement and is entitled to the rights and benefits
hereunder and may enforce the provisions hereof as if it were a party hereto.
SECTION 20. SURVIVABILITY. The obligations of the Administrator
described in Section 1(a)(ii) hereof shall survive termination of this
Agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first above written.
HARLEY-DAVIDSON MOTORCYCLE TRUST 2001-3
By: Wilmington Trust Company, not in its
individual capacity but solely as Owner
Trustee
By: /s/ Xxxxxxxx X. Xxxxx
-------------------------------------------
Printed Name: Xxxxxxxx X. Xxxxx
Title: Senior Financial Services Officer
HARLEY-DAVIDSON CUSTOMER FUNDING CORP., as
Trust Depositor
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Printed Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
BNY MIDWEST TRUST COMPANY, not in its
individual capacity but solely as Indenture
Trustee
By: /s/ Xxxxxxx Xxxxx
-------------------------------------------
Printed Name: Xxxxxxx Xxxxx
Title: Assistant Vice President
HARLEY-DAVIDSON CREDIT CORP., as Administrator
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------
Printed Name: Xxxxx X. Xxxxxxxx
Title: Treasurer
Signature Page to
Administration Agreement
EXHIBIT A
LIMITED POWER OF ATTORNEY
STATE OF
ILLINOIS )
) SECTION
COUNTY OF XXXX )
KNOW ALL PERSONS BY THESE PRESENTS, that Wilmington Trust Company, a
Delaware banking corporation (the "OWNER TRUSTEE"), whose principal executive
office is located at Wilmington Trust Company, Xxxxxx Square North, 0000 Xxxxx
Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx Attention: Trust Administration, by and
through its duly elected and authorized officer, ________________________, a
___________________, on behalf of itself and of Harley-Davidson Motorcycle Trust
2001-3 (the "TRUST") as Issuer under the
Administration Agreement, dated as of
December 1, 2001 (the "
ADMINISTRATION AGREEMENT"), among the Trust,
Harley-Davidson Customer Funding Corp., BNY Midwest Trust Company, as Indenture
Trustee, and Harley-Davidson Credit Corp., as Administrator, does hereby
nominate, constitute and appoint Harley-Davidson Credit Corp., a Nevada
corporation, each of its officers from time to time and each of its employees
authorized by it from time to time to act hereunder, jointly and each of them
severally, together or acting alone, its true and lawful attorney-in-fact, for
the Owner Trustee and the Issuer in their name, place and xxxxx, in the sole
discretion of such attorney-in-fact, to perform such calculations and prepare or
cause the preparation by other appropriate persons of, and to execute on behalf
of the Issuer or the Owner Trustee, all such documents, reports, filings,
instruments, certificates and opinions that the Issuer or the Owner Trustee is
required to prepare, file or deliver pursuant to the
Administration Agreement,
and to take any and all other action, as such attorney-in-fact may deem
necessary or desirable in accordance with the directions of the Owner Trustee
and in connection with its duties as Administrator or successor Administrator
under the
Administration Agreement. Capitalized terms used herein that are not
otherwise defined shall have the meanings ascribed thereto in the
Administration
Agreement.
The Owner Trustee hereby ratifies and confirms the execution, delivery and
performance (whether before or after the date hereof) of the above-mentioned
documents, reports, filings, instruments, certificates and opinions, by the
attorney-in-fact and all that the attorney-in-fact shall lawfully do or cause to
be done by virtue hereof.
The Owner Trustee hereby agrees that no person or other entity dealing
with the attorney-in-fact shall be bound to inquire into such attorney-in-fact's
power and authority
A-1
hereunder and any such person or entity shall be fully protected in relying on
such power of authority.
This Limited Power of Attorney may not be assigned without the prior
written consent of the Owner Trustee. It is effective immediately and will
continue until it is revoked.
This Limited Power of Attorney shall be governed and construed in
accordance with the laws of the State of
Illinois without reference to
principles of conflicts of law.
Executed as of this _____ day of December, 2001.
WILMINGTON TRUST COMPANY, NOT IN ITS
INDIVIDUAL CAPACITY BUT SOLELY AS OWNER
TRUSTEE
BY: _______________________________
PRINTED NAME: _______________________
TITLE: ______________________________
CERTIFICATE OF ACKNOWLEDGMENT OF
NOTARY PUBLIC
STATE OF DELAWARE )
) SECTION
COUNTY OF NEW CASTLE )
On December ___, 2001 before me, _________________________________________
[Insert name and title of notary]
personally appeared ________________________.
/ / personally known to me, or
/ / proved to me on the basis of satisfactory evidence to be the person(s)
whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ties), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which person(s) acted, executed the instrument.
WITNESS MY HAND AND OFFICIAL SEAL.
SIGNATURE: ________________________________________
[SEAL]
