EXHIBIT 10.4
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TRANSFER AND SALE AGREEMENT
by and between
HARLEY-DAVIDSON CREDIT CORP.,
as Seller
and
HARLEY-DAVIDSON CUSTOMER FUNDING CORP.,
as Purchaser
Dated as of April 1, 2001
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TABLE OF CONTENTS
ARTICLE I DEFINITION.............................................................................................1
SECTION 1.01. GENERAL.......................................................................................1
ARTICLE II TRANSFER OF CONTRACTS; ASSIGNMENT OF AGREEMENT.........................................................1
SECTION 2.01. CLOSING.......................................................................................1
SECTION 2.02. CONDITIONS TO THE CLOSING.....................................................................2
SECTION 2.03. ASSIGNMENT OF AGREEMENT.......................................................................3
SECTION 2.04. SUBSEQUENT CONTRACTS..........................................................................4
ARTICLE III REPRESENTATIONS AND WARRANTIES........................................................................5
SECTION 3.01. REPRESENTATIONS AND WARRANTIES REGARDING SELLER...............................................6
SECTION 3.02. REPRESENTATIONS AND WARRANTIES REGARDING EACH CONTRACT........................................7
SECTION 3.03. REPRESENTATIONS AND WARRANTIES REGARDING THE CONTRACTS IN THE AGGREGATE......................11
SECTION 3.04. REPRESENTATIONS AND WARRANTIES REGARDING THE CONTRACT FILES..................................12
ARTICLE IV PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS...........................................13
SECTION 4.01. CUSTODY OF CONTRACTS.........................................................................13
SECTION 4.02. FILING.......................................................................................13
SECTION 4.03. NAME CHANGE OR RELOCATION....................................................................13
SECTION 4.04. CHIEF EXECUTIVE OFFICE.......................................................................13
SECTION 4.05. COSTS AND EXPENSES...........................................................................14
SECTION 4.06. SALE TREATMENT...............................................................................14
ARTICLE V REMEDIES UPON MISREPRESENTATION........................................................................14
SECTION 5.01. REPURCHASES OF CONTRACTS FOR BREACH OF REPRESENTATIONS AND WARRANTIES........................14
SECTION 5.02. SELLER'S REPURCHASE OPTION...................................................................15
ARTICLE VI INDEMNITIES...........................................................................................15
SECTION 6.01. SELLER INDEMNIFICATION.......................................................................15
SECTION 6.02. LIABILITIES TO OBLIGORS......................................................................16
SECTION 6.03. TAX INDEMNIFICATION..........................................................................16
SECTION 6.04. OPERATION OF INDEMNITIES.....................................................................16
ARTICLE VII MISCELLANEOUS........................................................................................16
SECTION 7.01. PROHIBITED TRANSACTIONS WITH RESPECT TO THE TRUST............................................16
SECTION 7.02. MERGER OR CONSOLIDATION......................................................................17
SECTION 7.03. TERMINATION..................................................................................17
SECTION 7.04. ASSIGNMENT OR DELEGATION BY SELLER...........................................................17
SECTION 7.05. AMENDMENT....................................................................................17
SECTION 7.06. NOTICES......................................................................................18
SECTION 7.07. MERGER AND INTEGRATION.......................................................................18
SECTION 7.08. HEADINGS.....................................................................................19
SECTION 7.09. GOVERNING LAW................................................................................19
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EXHIBITS
Exhibit A Form of Assignment
Exhibit B Form of Officer's Certificate
Exhibit C Form of Subsequent Purchase Agreement
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EXHIBIT 10.1
THIS AGREEMENT, dated as of April 1, 2001, is made by and between
Harley-Davidson Credit Corp., a Nevada corporation, as seller hereunder
(together with its successors and assigns "HARLEY-DAVIDSON CREDIT" or "SELLER"),
and Harley-Davidson Customer Funding Corp., a Nevada corporation and
wholly-owned subsidiary of Seller (together with its successors and assigns
"TRUST DEPOSITOR"), as purchaser hereunder.
WHEREAS, in the regular course of its business, Seller purchases and
services motorcycle conditional sales contracts from Harley-Davidson motorcycle
retailers, each of which contracts provides for installment payment obligations
by or on behalf of the retailer's customer/purchaser and grants a security
interest in a Harley-Davidson motorcycle in order to secure such obligations;
WHEREAS, Seller and Trust Depositor wish to set forth the terms and
conditions pursuant to which Trust Depositor will acquire from time to time the
"CONTRACT ASSETS," as hereinafter defined; and
WHEREAS, Trust Depositor intends concurrently with its purchases from
time to time of Contract Assets hereunder to convey all right, title and
interest in such Contract Assets to Harley-Davidson Motorcycle Trust 2001-1 (the
"TRUST") pursuant to the Sale and Servicing Agreement dated as of April 1, 2001
by and among Trust Depositor, Harley-Davidson Credit, as Servicer,
Harley-Davidson Motorcycle Trust 2001-1, as issuer (the "ISSUER") and BNY
Midwest Trust Company, as Indenture Trustee (as amended, supplemented or
otherwise modified from time to time, the "SALE AND SERVICING AGREEMENT"),
executed concurrently herewith;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements hereinafter set forth, Seller and Trust Depositor agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. GENERAL. Unless otherwise defined in this Agreement,
capitalized terms used herein (including in the preamble above) shall have
the meanings assigned to them in the Sale and Servicing Agreement.
ARTICLE II
TRANSFER OF CONTRACTS; ASSIGNMENT OF AGREEMENT
SECTION 2.01. CLOSING. Subject to and upon the terms and conditions
set forth in this Agreement, Seller hereby sells, transfers, assigns, sets
over and otherwise conveys to Trust Depositor, in consideration of Trust
Depositor's payment of $256,412,453.39 in cash as the purchase price
therefor, (i) all the right, title and interest of Seller in and to the
Initial Contracts listed on the initial List of Contracts in effect on the
Closing Date (including, without limitation,
all security interests and all rights to receive payments which are collected
pursuant thereto 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 Seller under any physical damage or other individual insurance
policy (including a "FORCED PLACED" policy, if any) relating to any such
Contract, an Obligor or a Motorcycle securing such Contract, (iii) all
security interests in each such Motorcycle, (iv) all documents contained in
the related Contract Files, (v) all rights of Seller in the Lockbox, Lockbox
Account and related Lockbox Agreement to the extent they relate to the
Contracts, (vi) all rights (but not the obligations) of the Seller under any
motorcycle dealer agreements between the dealers (i.e. the originators of the
Contracts) and the Seller and (vii) all proceeds and products of the
foregoing (items (i) - (vii), together with the additional assets referred to
in Section 2.04 below which may be transferred from time to time in respect
of Subsequent Contracts, being collectively referred to herein as the
"CONTRACT ASSETS"). Although Seller and Trust Depositor agree that any such
transfer is intended to be a sale of ownership in the Contract Assets, rather
than the mere granting of a security interest to secure a borrowing, in the
event such transfer is deemed to be of a mere security interest to secure
indebtedness, Seller shall be deemed to have granted Trust Depositor a
perfected first priority security interest in such Contract Assets and this
Agreement shall constitute a security agreement under applicable law. If such
transfer is deemed to be the mere granting of a security interest to secure a
borrowing, Trust Depositor may, to secure Trust Depositor's own borrowing
under the Sale and Servicing Agreement (to the extent that the transfer of
the Contract Assets thereunder is deemed to be a mere granting of a security
interest to secure a borrowing) repledge and reassign (i) all or a portion of
the Contract Assets pledged to Trust Depositor and not released from the
security interest of this Agreement at the time of such pledge and
assignment, and (ii) all proceeds thereof. Such repledge and reassignment may
be made by Trust Depositor with or without a repledge and reassignment by
Trust Depositor of its rights under this Agreement, and without further
notice to or acknowledgment from Seller. Seller waives, to the extent
permitted by applicable law, all claims, causes of action and remedies,
whether legal or equitable (including any right of setoff), against Trust
Depositor or any assignee of Trust Depositor relating to such action by Trust
Depositor in connection with the transactions contemplated by the Sale and
Servicing Agreement.
SECTION 2.02. CONDITIONS TO THE CLOSING. On or before the Closing
Date, Seller shall deliver or cause to be delivered to Trust Depositor each
of the documents, certificates and other items as follows:
(a) The initial List of Contracts, certified by the Chairman
of the Board, President or any Vice President of Seller together with
an Assignment substantially in the form attached as EXHIBIT A hereto.
(b) A certificate of an officer of Seller substantially in the
form of EXHIBIT B hereto.
(c) An opinion of counsel for Seller substantially in the form
of EXHIBIT D to the Sale and Servicing Agreement.
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(d) A letter or letters from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or another
nationally recognized accounting firm, addressed to Trust Depositor and
the Issuer and the Trustees and stating that such firm has reviewed a
sample of the Initial Contracts and performed specific procedures for
such sample with respect to certain contract terms and identifying
those Initial Contracts which do not so conform.
(e) Copies of resolutions of the Board of Directors of Seller
or of the Executive Committee of the Board of Directors of Seller
approving the execution, delivery and performance of this Agreement and
the transactions contemplated hereunder, certified in each case by the
Secretary or an Assistant Secretary of Seller.
(f) Officially certified recent evidence of due incorporation
and good standing of Seller under the laws of Nevada.
(g) Evidence of proper filing with the appropriate offices in
Nevada and Illinois of UCC financing statements executed by Seller as
debtor/seller, naming Trust Depositor as secured party/purchaser and
the Owner Trust as assignee, and listing the Contract Assets as
collateral as well as evidence of proper filing with the appropriate
offices in Delaware of UCC Financing statements executed by the Issuer
as debtor, naming the Indenture Trustee, as assignee, and listing the
Contract Assets as collateral.
(h) An Officer's Certificate from Seller confirming that
Seller's compliance officer has reviewed the original of each Initial
Contract and each related Contract File, that each Initial Contract and
related Contract File conforms in all material respects with the
initial List of Contracts and each such Contract File is complete, that
each document required be an original, and that the face of each
original Initial Contract has been stamped with the following notation:
"This Contract/Note is subject to a security interest
granted to Harley-Davidson Motorcycle Trust 2001-1. UCC-1
financing statements covering this Contract/Note have been
filed with the Secretary of State of the State of Nevada and
the Secretary of State of the State of Illinois. Such lien
will be released only in connection with appropriate filings
in such offices. Consequently, potential purchasers of this
Contract/Note must refer to such filings to determine whether
such lien has been released."
(i) The documents, certificates and other items described in
Section 2.02 of the Sale and Servicing Agreement, to the extent not
already described above.
SECTION 2.03. ASSIGNMENT OF AGREEMENT. Trust Depositor has the right
to assign its interest under this Agreement to the Issuer as may be required
to effect the purposes of the Sale and Servicing Agreement, without further
notice to, or consent of, Seller, and the Issuer shall succeed to such of the
rights of Trust Depositor hereunder as shall be so assigned. Seller
acknowledges that, pursuant to the Sale and Servicing Agreement, Trust
Depositor will assign all of its right, title and interest in and to the
Contract Assets and its right to exercise the remedies
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created by Section 5.01 hereof for breaches of representations and warranties
of Seller contained in Sections 3.01, 3.02, 3.03 and 3.04 hereof to the
Issuer and the Indenture Trustee for the benefit of the Noteholders. Seller
agrees that, upon such assignment to the Issuer and the Indenture Trustee,
such representations will run to and be for the benefit of the Issuer and the
Indenture Trustee and the Issuer and the Indenture Trustee may enforce
directly without joinder of Trust Depositor, the obligations of Seller set
forth herein.
SECTION 2.04. SUBSEQUENT CONTRACTS. (a) Subject to and upon the
terms and conditions set forth in paragraph (b) below and in the related
Subsequent Purchase Agreement, Seller hereby agrees to sell, transfer,
assign, set over and otherwise convey to Trust Depositor, in consideration of
Trust Depositor's payment on the related Subsequent Transfer Date of the
purchase price therefor (as set forth in the related Subsequent Purchase
Agreement), and Trust Depositor hereby agrees to purchase, (i) all the right,
title and interest of Seller in and to the Subsequent Contracts listed on the
related Subsequent List of Contracts (including, without limitation, all
security interests and all rights to receive payments which are collected
pursuant thereto on or after the applicable Subsequent Cutoff Date, including
any liquidation proceeds therefrom, but excluding any rights to receive
payments which were collected pursuant thereto prior to such Subsequent
Cutoff Date), (ii) all rights of Seller under any physical damage or other
individual insurance policy (including a "FORCED PLACED" policy, if any)
relating to any such Contract, an Obligor or a Motorcycle securing such
Contract, (iii) all security interests in each such Motorcycle, (iv) all
documents contained in the related Contract Files, (v) all rights of Seller
in the Lockbox, Lockbox Account and related Lockbox Agreement to the extent
they relate to the Contracts, (vi) all rights (but not the obligations) of
the Seller under any motorcycle dealer agreements between the dealers (I.E.
the originators of such Subsequent Contracts) and the Seller and (vii) all
proceeds and products of the foregoing (items (i) - (vii), upon consummation
of any above-described purchase, becoming part of the "CONTRACT ASSETS").
Seller agrees, subject to the terms and conditions herein applicable to
transfers of Subsequent Contracts, to sell an aggregate Principal Balance of
Subsequent Contracts at or prior to the end of the Funding Period equal to
the Pre-Funded Amount on the Closing Date.
(b) Seller shall transfer to Trust Depositor, and Trust
Depositor shall purchase, the Subsequent Contracts and related assets to be
transferred on any Subsequent Transfer Date only upon the satisfaction of
each of the following conditions on or prior to the Subsequent Transfer Date:
(i) The Seller shall have provided the Trustees, the
Underwriters and the Rating Agencies with a timely Addition Notice and
shall have provided any information reasonably requested by any of the
foregoing with respect to the Subsequent Contracts;
(ii) the Funding Period shall not have terminated;
(iii) the Seller shall have delivered to the Trust Depositor a
duly executed Purchase Agreement and Assignment in substantially the
form of EXHIBIT C hereto (the "SUBSEQUENT PURCHASE AGREEMENT"), which
shall include a Subsequent List of Contracts listing the Subsequent
Contracts being purchased;
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(iv) as of each Subsequent Transfer Date, neither the Seller
nor the Trust Depositor was insolvent nor will either of them have been
made insolvent by such transfer nor is either of them aware of any
pending insolvency;
(v) each Rating Agency shall have notified the Trust Depositor
and the Trustees in writing that following such transfer, and the
transfer immediately thereafter of the Subsequent Contracts to the
Trust, the Class A-1 Notes and the Class A-2 Notes will be rated in the
highest rating category by such Rating Agency and the Class B Notes
will be rated at least "A" by Standard & Poor's and "A2" by ▇▇▇▇▇'▇;
(vi) such addition will not result in a material adverse tax
consequence to the Issuer or the Noteholders as evidenced by an Opinion
of Counsel to be delivered by the Seller to the Issuer, the Trustees,
and the Underwriters;
(vii) the Seller shall have delivered to the Rating Agencies
and to the Underwriters one or more opinions of counsel with respect to
the transfer of the Subsequent Contracts substantially in the form of
the opinions of counsel delivered to such Persons on the Closing Date;
(viii) the Seller shall have taken any action necessary to
maintain the first perfected ownership interest of the Trust in the
Trust Corpus and the first perfected security interest of the Trust
Depositor in the Contract Assets, the Trust in the Trust Corpus and the
Indenture Trustee in the Reserve Fund Deposits; and
(ix) no selection procedures believed by the Seller to be
adverse to the interests of the Noteholders shall have been utilized in
selecting the Subsequent Contracts.
(c) Seller agrees to pay all reasonable out-of-pocket expenses in
connection with any request for the conveyance of Subsequent Contracts, whether
or not such conveyance is actually consummated.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
Seller makes the following representations and warranties, on which
Trust Depositor will rely in purchasing the initial Contract Assets on the
Closing Date (and any Subsequent Contracts on the related Subsequent Transfer
Date) and concurrently reconveying the same to the Trust, and on which the Trust
and the Noteholders will rely under the Sale and Servicing Agreement. Such
representations speak as of the execution and delivery of this Agreement and as
of the Closing Date in the case of the Initial Contracts, and as of the
applicable Subsequent Transfer Date in the case of Subsequent Contracts, but
shall survive the sale, transfer and assignment of the Contracts to the Trust
and the pledge of the Contracts to the Indenture Trustee. The repurchase
obligation of Seller set forth in Section 5.01 below and in Section 7.08 of the
Sale and Servicing Agreement constitutes the sole remedy available for a breach
of a representation or warranty of Seller set forth in Section 3.02, 3.03 or
3.04 of this Agreement.
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SECTION 3.01. REPRESENTATIONS AND WARRANTIES REGARDING SELLER.
Seller represents and warrants, as of the execution and delivery of this
Agreement and as of the Closing Date, in the case of the Initial Contracts,
and as of the applicable Subsequent Transfer Date, in the case of Subsequent
Contracts, that:
(a) ORGANIZATION AND GOOD STANDING. Seller is a corporation
duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization and has the corporate power to own
its assets and to transact the business in which it is currently
engaged. Seller is duly qualified to do business as a foreign
corporation and is in good standing in each jurisdiction in which the
character of the business transacted by it or properties owned or
leased by it requires such qualification and in which the failure so to
qualify would have a material adverse effect on the business,
properties, assets, or condition (financial or otherwise) of Seller or
Trust Depositor. Seller is properly licensed in each jurisdiction to
the extent required by the laws of such jurisdiction to service the
Contracts in accordance with the terms of the Sale and Servicing
Agreement.
(b) AUTHORIZATION; BINDING OBLIGATION. Seller has the power
and authority to make, execute, deliver and perform this Agreement and
the other Transaction Documents to which the Seller is a party and all
of the transactions contemplated under this Agreement and the other
Transaction Documents to which the Seller is a party, and has taken all
necessary corporate action to authorize the execution, delivery and
performance of this Agreement and the other Transaction Documents to
which the Seller is a party. This Agreement and the other Transaction
Documents to which the Seller is a party constitute the legal, valid
and binding obligation of Seller enforceable in accordance with their
terms, except as enforcement of such terms may be limited by
bankruptcy, insolvency or similar laws affecting the enforcement of
creditors' rights generally and by the availability of equitable
remedies.
(c) NO CONSENT REQUIRED. Seller is not required to obtain the
consent of any other party or any consent, license, approval or
authorization from, or registration or declaration with, any
governmental authority, bureau or agency in connection with the
execution, delivery, performance, validity or enforceability of this
Agreement and the other Transaction Documents to which the Seller is a
party.
(d) NO VIOLATIONS. Seller's execution, delivery and
performance of this Agreement and the other Transaction Documents to
which the Seller is a party will not violate any provision of any
existing law or regulation or any order or decree of any court or the
Articles of Incorporation or Bylaws of Seller, or constitute a material
breach of any mortgage, indenture, contract or other agreement to which
Seller is a party or by which Seller or any of Seller's properties may
be bound.
(e) LITIGATION. No litigation or administrative proceeding of
or before any court, tribunal or governmental body is currently
pending, or to the knowledge of Seller threatened, against Seller or
any of its properties or with respect to this Agreement or any other
Transaction Document to which the Seller is a party which, if adversely
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determined, would in the opinion of Seller have a material adverse
effect on the business, properties, assets or condition (financial or
other) of Seller or the transactions contemplated by this Agreement or
any other Transaction Document to which the Seller is a party.
(f) PLACE OF BUSINESS; NO CHANGES. Seller's sole place of
business (within the meaning of Article 9 of the UCC) is as set forth
in Section 7.06 below. Seller has not changed its name whether by
amendment of its Articles of Incorporation, by reorganization or
otherwise, and has not changed the location of its place of business,
within the four months preceding the Closing Date.
(g) OPERATIONS. Approximately 5.0% of the aggregate principal
balance of contracts financed from time to time by the Seller are
secured by motorcycles manufactured by Buell.
(h) SOLVENCY. The Seller, after giving effect to the
conveyances made by it hereunder, is Solvent.
SECTION 3.02. REPRESENTATIONS AND WARRANTIES REGARDING EACH
CONTRACT. Seller represents and warrants as to each Contract as of the
execution and delivery of this Agreement and as of the Closing Date, in the
case of the Initial Contracts, and as of the applicable Subsequent Transfer
Date, in the case of Subsequent Contracts, that:
(a) LIST OF CONTRACTS. The information set forth in the List
of Contracts (or Subsequent List of Contracts, in the case of
Subsequent Contracts) is true, complete and correct in all material
respects as of the Initial Cutoff Date or applicable Subsequent Cutoff
Date, as the case may be.
(b) PAYMENTS. As of the Initial Cutoff Date or applicable
Subsequent Cutoff Date, as the case may be, the most recent scheduled
payment with respect to any Contract either had been made or was not
delinquent for more than 30 days. To the best of Seller's knowledge,
all payments made on each Contract were made by the respective Obligor.
(c) NO WAIVERS. As of the Closing Date (or the applicable
Subsequent Transfer Date, in the case of Subsequent Contracts), the
terms of the Contracts have not been waived, altered or modified in any
respect, except by instruments or documents included in the related
Contract File.
(d) BINDING OBLIGATION. Each Contract is a legal, valid and
binding payment obligation of the Obligor thereunder and is enforceable
in accordance with its terms, except as such enforceability may be
limited by insolvency, bankruptcy, moratorium, reorganization, or other
similar laws affecting the enforcement of creditors' rights generally.
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(e) NO DEFENSES. No Contract is subject to any right of
rescission, setoff, counterclaim or defense, including the defense of
usury, and the operation of any of the terms of such Contract or the
exercise of any right thereunder will not render the Contract
unenforceable in whole or in part or subject to any right of
rescission, setoff, counterclaim or defense, including the defense of
usury, and no such right of rescission, setoff, counterclaim or defense
has been asserted with respect thereto.
(f) INSURANCE. As of the origination date of each Contract (or
the applicable Subsequent Transfer Date in the case of Subsequent
Contracts), the related Motorcycle securing each Contract is covered by
physical damage insurance (i) in an amount not less than the value of
the Motorcycle at the time of origination of the Contract, (ii) naming
Seller as a loss payee and (iii) insuring against loss and damage due
to fire, theft, transportation, collision and other risks covered by
comprehensive coverage, and all premiums due on such insurance have
been paid in full from the date of the Contract's origination.
(g) ORIGINATION. Each Contract was originated by a
Harley-Davidson motorcycle dealer in the regular course of its business
which dealer had all necessary licenses and permits to originate the
Contracts in the state where such dealer was located, was fully and
properly executed by the parties thereto, and has been purchased by
Seller in the regular course of its business. Each Contract was sold by
such motorcycle dealer to the Seller without any fraud or
misrepresentation on the part of such motorcycle dealer.
(h) LAWFUL ASSIGNMENT. No Contract was originated in or is
subject to the laws of any jurisdiction whose laws would make the sale,
transfer and assignment of the Contract under this Agreement or under
the Sale and Servicing Agreement or the pledge of the Contract under
the Indenture unlawful, void or voidable.
(i) COMPLIANCE WITH LAW. None of the Contracts, the
origination of the Contracts by the dealers, the purchase of the
Contracts by the Seller, the sale of the Contracts by the Seller to the
Trust Depositor or by the Trust Depositor to the Trust, or any
combination of the foregoing, violated at the time of origination or as
of the Closing Date or as of any Subsequent Transfer Date, as
applicable, any requirement of any federal, state or local law and
regulations thereunder, including, without limitation, usury, truth in
lending, motor vehicle installment loan and equal credit opportunity
laws, applicable to the Contracts and the sale of Motorcycles. Seller
shall, for at least the period of this Agreement, maintain in its
possession, available for the Trust Depositor's and the Trustees'
inspection, and shall deliver to Trust Depositor or the Trustee upon
demand, evidence of compliance with all such requirements.
(j) CONTRACT IN FORCE. As of the Closing Date (or the
applicable Subsequent Transfer Date in the case of Subsequent
Contracts), no Contract has been satisfied or subordinated in whole or
in part or rescinded, and the related Motorcycle securing any Contract
has not been released from the lien of the Contract in whole or in
part.
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(k) VALID SECURITY INTEREST. Each Contract creates a valid,
subsisting and enforceable first priority perfected security interest
in favor of Seller in the Motorcycle covered thereby, and such security
interest has been assigned by Seller to the Trust Depositor. The
original certificate of title, certificate of lien or other
notification (the "LIEN CERTIFICATE") issued by the body responsible
for the registration of, and the issuance of certificates of title
relating to, motor vehicles and liens thereon (the "REGISTRAR OF
TITLES") of the applicable state to a secured party which indicates the
lien of the secured party on the Motorcycle is recorded on the original
certificate of title, and the original certificate of title for each
Motorcycle, show, or if a new or replacement Lien Certificate is being
applied for with respect to such Motorcycle the Lien Certificate will
be received within 180 days of the Closing Date (or the applicable
Subsequent Transfer Date in the case of Subsequent Contracts) and will
show, the Seller as original secured party under each Contract as the
holder of a first priority security interest in such Motorcycle. With
respect to each Contract for which the Lien Certificate has not yet
been returned from the Registrar of Titles, the Seller has received
written evidence from the related dealer that such Lien Certificate
showing the Seller as lienholder has been applied for. The Seller's
security interest has been validly assigned by the Seller to the Trust
Depositor and by the Trust Depositor to the Issuer and Owner Trustee
pursuant to this Agreement. Immediately after the sale, each Contract
will be secured by an enforceable and perfected first priority security
interest in the Motorcycle in favor of the Trust as secured party,
which security interest is prior to all other liens upon and security
interests in such Motorcycle which now exist or may hereafter arise or
be created (except, as to priority, for any lien for taxes, labor,
materials or of any state law enforcement agency affecting a
Motorcycle).
(1) CAPACITY OF PARTIES. All parties to any Contract had
capacity to execute such Contract and all other documents related
thereto and to grant the security interest purported to be granted
thereby.
(m) GOOD TITLE. Each Contract was purchased by Seller for
value and taken into possession prior to the Cutoff Date (or the
applicable Subsequent Cutoff Date in the case of Subsequent Contracts)
in the ordinary course of its business, without knowledge that the
Contract was subject to a security interest. No Contract has been sold,
assigned or pledged to any person other than Trust Depositor and the
Trustee as the transferee of Trust Depositor, and prior to the transfer
of the Contract to Trust Depositor, Seller had good and marketable
title to each Contract free and clear of any encumbrance, equity, loan,
pledge, charge, claim or security interest and was the sole owner
thereof and had full right to transfer the Contract to Trust Depositor
and to permit Trust Depositor to transfer the same to the Issuer and
the Owner Trustee, and, as of the Closing Date (or the applicable
Subsequent Transfer Date in the case of Subsequent Contracts), the
Issuer and the Owner Trustee will have a first priority perfected
security interest therein.
(n) NO DEFAULTS. As of the Initial Cutoff Date (or the
applicable Subsequent Cutoff Date in the case of Subsequent Contracts),
no default, breach, violation or event permitting acceleration existed
with respect to any Contract and no event had occurred
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which, with notice and the expiration of any grace or cure period,
would constitute such a default, breach, violation or event permitting
acceleration under such Contract. Seller has not waived any such
default, breach, violation or event permitting acceleration, and Seller
has not granted any extension of payment terms on any Contract. As of
the Initial Cutoff Date (or the applicable Subsequent Cutoff Date in
the case of Subsequent Contracts), no Motorcycle had been repossessed.
(o) NO LIENS. As of the Closing Date (or the applicable
Subsequent Transfer Date in the case of Subsequent Contracts) there
are, to the best of Seller's knowledge, no liens or claims which have
been filed for work, labor or materials affecting the Motorcycle
securing any Contract which are or may be liens prior to, or equal
with, the lien of such Contract.
(p) INSTALLMENTS. Each Contract has a fixed Contract Rate and
provides for monthly payments of principal and interest which, if
timely made, would fully amortize the loan on a simple-interest basis
over its term.
(q) ENFORCEABILITY. Each Contract contains customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for the realization against the collateral of
the benefits of the security.
(r) ONE ORIGINAL. Each Contract is evidenced by only one
original executed Contract, which original has been delivered to the
Issuer and the Owner Trustee or its designee on or before the Closing
Date (or the applicable Subsequent Transfer Date in the case of
Subsequent Contracts).
(s) NO GOVERNMENT CONTRACTS. No Obligor is the United States
government or an agency, authority, instrumentality or other political
subdivision of the United States government.
(t) LOCKBOX BANK. The Lockbox Bank is the only institution
holding any Lockbox Account for receipt of payments from Obligors, and
all Obligors, and only such Obligors, have been instructed to make
payments to the Lockbox Account, and no person claiming through or
under Seller has any claim or interest in the Lockbox Account other
than the Lockbox Bank; PROVIDED, HOWEVER, that other "Trusts" (as
defined in the Lockbox Agreement) shall have an interest in certain
other collections therein not related to the Contracts.
(u) OBLIGOR BANKRUPTCY. At the Cutoff Date (or the applicable
Subsequent Cutoff Date in the case of Subsequent Contracts), no Obligor
was subject to a bankruptcy proceeding within the one year preceding
such Cutoff Date.
(v) CHATTEL PAPER. The Contracts constitute chattel paper
within the meaning of the UCC as in effect in the States of Nevada and
Illinois.
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(w) NO IMPAIRMENT. Neither the Seller nor the Trust Depositor
has done anything to convey any right to any Person that would result
in such Person having a right to payments due under the Contract or
otherwise to impair the rights of the Trust in any Contract or the
proceeds thereof.
(x) CONTRACT NOT ASSUMABLE. No Contract is assumable by
another Person in a manner which would release the Obligor thereof from
such Obligor's obligations to the Trust Depositor with respect to such
Contract.
SECTION 3.03. REPRESENTATIONS AND WARRANTIES REGARDING THE
CONTRACTS IN THE AGGREGATE. Seller represents and warrants, as of the execution
and delivery of this Agreement and as of the Closing Date, in the case of the
Initial Contracts, and, if applicable, as of the applicable Subsequent Transfer
Date, in the case of Subsequent Contracts, that:
(a) AMOUNTS. The sum of the aggregate Principal Balances
payable by Obligors under the Contracts as of the Initial Cutoff Date
(or the applicable Subsequent Cutoff Date in the case of Subsequent
Contracts), plus the Pre-Funded Amount as of such date, equals the sum
of the principal balance of the Class A-1 Notes, the Class A-2 Notes
and the Class B Notes on the Closing Date or the related Subsequent
Transfer Date, as applicable.
(b) CHARACTERISTICS. The Initial Contracts have the following
characteristics: (i) all the Contracts are secured by Motorcycles; (ii)
no Initial Contract has a remaining maturity of more than 84 months;
and (iii) the final scheduled payment on the Initial Contract with the
latest maturity is due no later than September 2008. Approximately
70.94% of the Principal Balance of the Initial Contracts as of the
Initial Cutoff Date is attributable to loans for purchases of new
Motorcycles and approximately 29.06% is attributable to loans for
purchases of used Motorcycles. No Initial Contract was originated after
the Initial Cutoff Date. No Initial Contract has a Contract Rate less
than 6.50%. The first scheduled payment date of the Contracts
(including any Subsequent Contracts) is due no later than May 2001.
(c) MARKING RECORDS. As of the Closing Date (or the applicable
Subsequent Transfer Date in the case of Subsequent Contracts), Seller
has caused the Computer Disk relating to the Contracts sold hereunder
and concurrently reconveyed by Trust Depositor to the Trust and pledged
by the Trust to the Indenture Trustee to be clearly and unambiguously
marked to indicate that such Contracts constitute part of the Trust,
are owned by the Trust and constitute security for the Notes.
(d) NO ADVERSE SELECTION. No selection procedures adverse to
Noteholders have been employed in selecting the Contracts.
(e) TRUE SALE. The transaction contemplated by this Agreement
constitutes a valid sale, transfer and assignment from Seller to Trust
Depositor and from Trust Depositor to the Trust of all of Seller's
right, title and interest in the Contract Assets as of the Closing Date
and any Subsequent Transfer Date, as applicable.
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(f) ALL FILINGS MADE. All filings (including, without
limitation, UCC filings) required to be made by any Person and actions
required to be taken or performed by any Person in any jurisdiction to
give the Indenture Trustee a first priority perfected lien on, or
ownership interest in, the Contracts and the proceeds thereof and the
rest of the Trust Corpus have been made, taken or performed.
(g) DELTA LOANS. No more than 11.00% of the Principal Balance
of the Contracts as of the end of the Funding Period is attributable to
Delta Loans.
SECTION 3.04. REPRESENTATIONS AND WARRANTIES REGARDING THE CONTRACT
FILES. Seller represents and warrants as of the execution and delivery of
this Agreement and as of the Closing Date, in the case of the Initial
Contracts, and as of the applicable Subsequent Transfer Date, in the case of
Subsequent Contracts, that:
(a) POSSESSION. Immediately prior to the Closing Date or any
Subsequent Transfer Date, the Servicer will have possession of each
original Contract and the related complete Contract File, and there are
and there will be no custodial agreements relating to the same in
effect. Each of such documents which is required to be signed by the
Obligor has been signed by the Obligor in the appropriate spaces. All
blanks on any form have been properly filled in and each form has
otherwise been correctly prepared. The complete Contract File for each
Contract currently is in the possession of the Servicer.
(b) BULK TRANSFER LAWS. The transfer, assignment and
conveyance of the Contracts and the Contract Files by Seller pursuant
to this Agreement or any Subsequent Purchase Agreement and by Trust
Depositor pursuant to the Sale and Servicing Agreement is not subject
to the bulk transfer or any similar statutory provisions in effect in
any applicable jurisdiction.
ARTICLE IV
PERFECTION OF TRANSFER AND PROTECTION OF SECURITY INTERESTS
SECTION 4.01. CUSTODY OF CONTRACTS. The contents of each Contract
File shall be held in the custody of the Servicer for the benefit of the
Trust as the owner thereof in accordance with the Sale and Servicing
Agreement.
SECTION 4.02. FILING. On or prior to the Closing Date and each
Subsequent Transfer Date, Seller shall cause the UCC financing statement(s)
referred to in Section 2.02(g) hereof and in Section 2.02(g) of the Sale and
Servicing Agreement to be filed and from time to ▇▇▇▇ ▇▇▇▇▇▇ shall take and
cause to be taken such actions and execute such documents as are necessary or
desirable or as Trust Depositor or the Trust may reasonably request to
perfect and protect the Trust Depositor's and the Trust's ownership interest
in the Contract Assets against all other persons, including, without
limitation, the filing of financing statements, amendments thereto and
continuation statements, the execution of transfer instruments and the making
of notations on or taking possession of all records or documents of title.
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SECTION 4.03. NAME CHANGE OR RELOCATION. (a) During the term of this
Agreement, Seller shall not change its name, identity or structure or
relocate its chief executive office without first giving at least 30 days'
prior written notice to Trust Depositor and to the Trustees.
(b) If any change in Seller's name, identity or structure or other
action would make any financing or continuation statement or notice of ownership
interest or lien filed under this Agreement seriously misleading within the
meaning of applicable provisions of the UCC or any title statute, Seller, no
later than five days after the effective date of such change, shall file such
amendments as may be required to preserve and protect the Trust Depositor's and
the Trust's interests in the Contract Assets and proceeds thereof. In addition,
Seller shall not change its place of business or its chief executive office
(within the meaning of Article 9 of the UCC) from the location specified in
Section 7.06 below unless it has first taken such action as is advisable or
necessary to preserve and protect the Trust Depositor's and the Trusts' interest
in the Contract Assets. Promptly after taking any of the foregoing actions,
Seller shall deliver to Trust Depositor and the Trustees an opinion of counsel
stating that, in the opinion of such counsel, all financing statements or
amendments necessary to preserve and protect the interests of the Trustees in
the Contract Assets have been filed, and reciting the details of such filing.
SECTION 4.04. CHIEF EXECUTIVE OFFICE. During the term of this
Agreement, Seller will maintain its chief executive office in one of the
States of the United States, except Louisiana, Tennessee, Colorado, Kansas,
New Mexico, Oklahoma, Utah or Wyoming.
SECTION 4.05. COSTS AND EXPENSES. Seller agrees to pay all
reasonable costs and disbursements in connection with the perfection and the
maintenance of perfection, as against all third parties, of (i) Trust
Depositor's and the Trustees' right, title and interest in and to the
Contract Assets (including, without limitation, the security interest in the
Motorcycles related thereto) and (ii) the security interests provided for in
the Indenture.
SECTION 4.06. SALE TREATMENT. Each of Seller and Trust Depositor
shall treat the transfer of Contract Assets made hereunder (including in
respect of Subsequent Contracts) for all purposes (including tax and
financial accounting purposes) as a sale and purchase on all of its relevant
books, records, financial statements and other applicable documents.
SECTION 4.07. SEPARATENESS FROM TRUST DEPOSITOR. The Seller agrees
to take or refrain from taking or engaging in with respect to the Trust
Depositor each of the actions or activities specified in the "substantive
consolidation" opinion of Winston & ▇▇▇▇▇▇ (or in any related certificate of
Seller) delivered on the Closing Date, upon which the conclusions expressed
therein are based.
ARTICLE V
REMEDIES UPON MISREPRESENTATION
SECTION 5.01. REPURCHASES OF CONTRACTS FOR BREACH OF REPRESENTATIONS
AND WARRANTIES. Seller hereby agrees, for the benefit of the Trustees and the
Trust Depositor, that it shall repurchase a Contract including any Subsequent
Contracts (together with all related Contract
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Assets), at its Repurchase Price, not later than two Business Days prior to
the first Determination Date after Seller becomes aware, or should have
become aware, or receives written notice from Trust Depositor, either of the
Trustees or the Servicer of any breach of a representation or warranty of
Seller set forth in Article III of this Agreement that materially adversely
affects Trust Depositor's or the Trust's interest in such Contract (without
regard to the benefits of the Reserve Fund) and which breach has not been
cured; PROVIDED, HOWEVER, that with respect to any Contract incorrectly
described on the List of Contracts with respect to unpaid Principal Balance
which Seller would otherwise be required to repurchase pursuant to this
Section 5.01 and Section 7.08 of the Sale and Servicing Agreement, Seller
may, in lieu of repurchasing such Contract, deposit in the Collection Account
not later than two Business Days prior to such Determination Date cash in an
amount sufficient to cure such deficiency or discrepancy; and PROVIDED
FURTHER that with respect to a breach of a representation or warranty
relating to the Contracts in the aggregate and not to any particular
Contract, Seller may select Contracts (without adverse selection) to
repurchase such that had such Contracts not been reconveyed by Trust
Depositor and included as part of the Trust there would have been no breach
of such representation or warranty; PROVIDED FURTHER that (a) the failure of
a Contract File to be complete or of the original certificate of title and
evidence of recordation of such certificate to be included in the Contract
File as of 180 days after the Closing Date (or Subsequent Transfer Date, in
the case of Subsequent Contracts), or (b) the failure to maintain perfection
of the security interest in the Motorcycle securing a Contract in accordance
with the Sale and Servicing Agreement, shall be deemed to be a breach
materially and adversely affecting the Trust's interest in the Contracts or
in the related Contract Assets. Notwithstanding any other provision of this
Agreement, the obligation of Seller under this Section 5.01 and under Section
7.08 of the Sale and Servicing Agreement shall not terminate upon a Service
Transfer pursuant to Article VIII of the Sale and Servicing Agreement.
SECTION 5.02. SELLER'S REPURCHASE OPTION. On written notice to the
Owner Trustee and the Indenture Trustee at least 20 days prior to a
Distribution Date, provided the Pool Balance is then less than 10% of the
Aggregate Principal Balance as of the Closing Date, Seller may (but is not
required to) repurchase from the Trust on that Distribution Date all
outstanding Contracts (and related Contract Assets) at a price equal to the
outstanding principal balance of the Notes on the previous Distribution Date
plus the Note Interest Distributable Amount for the current Distribution Date
as well as any unreimbursed Service Advances and the accrued and unpaid
Monthly Servicing Fee and Indenture Trustee Fee to the date of such
repurchase, provided the Seller is in receipt of a valuation letter by the
Seller's financial advisor that the Seller's repurchase is for fair and
adequate consideration. Such price will be deposited in the Collection
Account not later than one Business Day before such Distribution Date,
against the Trustees' release of the Contracts and Contract Files as
described in Section 7.10 of the Sale and Servicing Agreement.
ARTICLE VI
INDEMNITIES
SECTION 6.01. SELLER INDEMNIFICATION. Seller will defend and
indemnify Trust Depositor, the Trust, the Trustees, any agents of the
Trustees and the Noteholders against any and all costs,
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expenses, losses, damages, claims and liabilities, joint or several,
including reasonable fees and expenses of counsel and expenses of litigation
arising out of or resulting from (i) this Agreement or the use, ownership or
operation of any Motorcycle by Seller or the Servicer or any Affiliate of
either, (ii) any representation or warranty or covenant made by Seller in
this Agreement being untrue or incorrect (subject to the second sentence of
the preamble to Article III of this Agreement above), and (iii) any untrue
statement or alleged untrue statement of a material fact contained in the
Prospectus or in any amendment thereto or the omission or alleged omission to
state therein a material fact necessary to make the statements therein, in
light of the circumstances in which they were made, not misleading, in each
case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement was made in conformity with information furnished to
Trust Depositor by Seller specifically for use therein. Notwithstanding any
other provision of this Agreement, the obligation of Seller under this
Section 6.01 shall not terminate upon a Service Transfer pursuant to Article
VIII of the Sale and Servicing Agreement and shall survive any termination of
that agreement or this Agreement.
SECTION 6.02. LIABILITIES TO OBLIGORS. No obligation or liability to
any Obligor under any of the Contracts is intended to be assumed by the
Trustees, the Trust or the Noteholders under or as a result of this Agreement
and the transactions contemplated hereby.
SECTION 6.03. TAX INDEMNIFICATION. Seller agrees to pay, and to
indemnify, defend and hold harmless the Trust Depositor, the Trust, the
Trustees or the Noteholders from, any taxes which may at any time be asserted
with respect to, and as of the date of, the transfer of the Contracts to
Trust Depositor hereunder and the concurrent reconveyance to the Trust and
the further pledge by the Trust to the Indenture Trustee, including, without
limitation, any sales, gross receipts, general corporation, personal
property, privilege or license taxes (but not including any federal, state or
other taxes arising out of the creation of the Trust and the issuance of the
Notes) and costs, expenses and reasonable counsel fees in defending against
the same, whether arising by reason of the acts to be performed by Seller
under this Agreement or the Servicer under the Sale and Servicing Agreement
or imposed against the Trust, a Noteholder or otherwise. Notwithstanding any
other provision of this Agreement, the obligation of Seller under this
Section 6.03 shall not terminate upon a Service Transfer pursuant to Article
VIII of the Sale and Servicing Agreement and shall survive any termination of
this Agreement.
SECTION 6.04. OPERATION OF INDEMNITIES. Indemnification under this
Article VI shall include, without limitation, reasonable fees and expenses of
counsel and expenses of litigation. If Seller has made any indemnity payments
to Trust Depositor or the Trustees pursuant to this Article VI and Trust
Depositor or the Trustees thereafter collects any of such amounts from
others, Trust Depositor or the Trustees will repay such amounts collected to
Seller, except that any payments received by Trust Depositor or the Trustees
from an insurance provider as a result of the events under which the Seller's
indemnity payments arose shall be repaid prior to any repayment of the
Seller's indemnity payment.
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ARTICLE VII
MISCELLANEOUS
SECTION 7.01. PROHIBITED TRANSACTIONS WITH RESPECT TO THE TRUST.
Seller shall not:
(a) Provide credit to any Noteholder for the purpose of
enabling such Noteholder to purchase Notes;
(b) Purchase any Notes in an agency or trustee capacity; or
(c) Except in its capacity as Servicer as provided in the Sale
and Servicing Agreement, lend any money to the Trust.
SECTION 7.02. MERGER OR CONSOLIDATION. (a) Except as otherwise
provided in this Section 7.02, Seller will keep in full force and effect its
existence, rights and franchises as a Nevada corporation, and will obtain and
preserve its qualification to do business as a foreign corporation in each
jurisdiction in which such qualification is or shall be necessary to protect
the validity and enforceability of this Agreement and of any of the Contracts
and to perform its duties under this Agreement.
(b) Any person into which Seller may be merged or consolidated, or any
corporation or other entity resulting from such merger or consolidation to which
Seller is a party, or any person succeeding to the business of Seller, shall be
the successor to Seller hereunder, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein to
the contrary notwithstanding.
(c) Upon the merger or consolidation of the Seller as described in this
Section 7.02, the Seller shall provide Standard & Poor's and ▇▇▇▇▇'▇ notice of
such merger or consolidation within thirty (30) days after completion of the
same.
SECTION 7.03. TERMINATION. This Agreement shall terminate (after
distribution of any Note Distributable Amount due pursuant to Section 7.05 of
the Sale and Servicing Agreement) on the Distribution Date on which the
principal balance of the Class A-1 Notes, Class A-2 Notes and the Class B
Notes is reduced to zero; PROVIDED, that Seller's representations and
warranties and indemnities by Seller shall survive termination.
SECTION 7.04. ASSIGNMENT OR DELEGATION BY SELLER. Except as
specifically authorized hereunder, Seller may not convey and assign or
delegate any of its rights or obligations hereunder absent the prior written
consent of Trust Depositor and the Trustees, and any attempt to do so without
such consent shall be void.
SECTION 7.05. AMENDMENT. (a) This Agreement may be amended from time
to time by Seller and Trust Depositor, with notice to the Rating Agencies,
but without the consent of the Trustees or any of the Noteholders, to correct
manifest error, to cure any ambiguity, to correct or supplement any
provisions herein or therein which may be inconsistent with any other
provisions
-16-
herein or therein, as the case may be, or to add any other provisions with
respect to matters or questions arising under this Agreement which shall not
be inconsistent with the provisions of this Agreement; PROVIDED, HOWEVER,
that such action shall not, as evidenced by an opinion of Counsel for Seller
acceptable to the Trustees, adversely affect the interests of any Noteholder.
(b) This Agreement may also be amended from time to time by Seller and
Trust Depositor, with the consent of the Modified Required Holders, for the
purpose of adding any provisions to or changing in any manner or eliminating any
of the provisions of this Agreement or of modifying in any manner the rights of
the Indenture Trustee for the benefit of Noteholders; PROVIDED, HOWEVER, that no
such amendment or waiver shall (a) reduce in any manner the amount of, or delay
the timing of, collections of payments on the Contracts or distributions which
are required to be made on any Note or (b) reduce the aforesaid percentage
required to consent to any such amendment, without the consent of the holders of
all Notes then outstanding.
(c) Promptly after the execution of any amendment or consent pursuant
to this Section 7.05, Trust Depositor shall furnish written notification of the
substance of such amendment and a copy of such amendment to each Trustee and
each Rating Agency.
(d) It shall not be necessary for the consent of Noteholders under this
Section 7.05 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent shall approve the substance thereof. The
manner of obtaining such consents and of evidencing the authorization of the
execution thereof by Noteholders shall be subject to such reasonable
requirements as the Trustees may prescribe.
(e) Upon the execution of any amendment or consent pursuant to this
Section 7.05, this Agreement shall be modified in accordance therewith, and such
amendment or consent shall form a part of this Agreement for all purposes, and
every holder of Notes theretofore or thereafter issued hereunder shall be bound
thereby.
SECTION 7.06. NOTICES. All notices, demands, certificates, requests
and communications hereunder ("notices") shall be in writing and shall be
effective (a) upon receipt when sent through the U.S. mails, registered or
certified mail, return receipt requested, postage prepaid, with such receipt
to be effective the date of delivery indicated on the return receipt, or (b)
one Business Day after delivery to an overnight courier, or (c) on the date
personally delivered to an Authorized Officer of the party to which sent, or
(d) on the date transmitted by legible telecopier transmission with a
confirmation of receipt, in all cases addressed to the recipient at the
address for such recipient set forth in the Sale and Servicing Agreement.
Each party hereto may, by notice given in accordance herewith to each of the
other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
All communications and notices pursuant hereto to Noteholders shall be
in writing and delivered or mailed at the address shown in the Note Register.
SECTION 7.07. MERGER AND INTEGRATION. Except as specifically stated
otherwise herein, this Agreement sets forth the entire understanding of the
parties relating to the subject matter
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hereof, and all prior understandings, written or oral, are superseded by this
Agreement. This Agreement may not be modified, amended, waived, or
supplemented except as provided herein.
SECTION 7.08. HEADINGS. The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation
of any provision hereof.
SECTION 7.09. GOVERNING LAW. This Agreement shall be governed by,
and construed and enforced in accordance with, the internal laws of the State
of Illinois.
SECTION 7.10. NO BANKRUPTCY PETITION. The Seller covenants and
agrees that, prior to the date that is one year and one day after the payment
in full of all amounts owing in respect of all outstanding Securities, as
well as any other amounts distributable or payable from the Trust Estate,
together with any other amounts owing in respect of obligations of the Trust
Depositor, it will not institute against, or solicit or join in or cooperate
with or encourage any Person to institute against, the Trust Depositor or the
Trust, any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings or other similar proceedings under the laws of the United State
or any State of the United States. This Section 7.10 shall survive
termination of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
HARLEY-DAVIDSON CUSTOMER FUNDING CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
HARLEY-DAVIDSON CREDIT CORP.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-------------------------------------------
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
Signature Page to Transfer and Sale
Agreement
Exhibit A
Transfer and Sale
Agreement
FORM OF ASSIGNMENT
In accordance with the Transfer and Sale Agreement (the "AGREEMENT")
dated as of April 1, 2001 made by and between the undersigned, as seller
thereunder ("SELLER"), and Harley-Davidson Customer Funding Corp., a Nevada
corporation and wholly-owned subsidiary of Seller ("TRUST DEPOSITOR"), as
purchaser thereunder, the undersigned does hereby sell, transfer, convey and
assign, set over and otherwise convey to Trust Depositor (i) all the right,
title and interest of Seller in and to the Initial Contracts listed on the
initial List of Contracts in effect on the Closing Date (including, without
limitation, all security interests and all rights to receive payments which are
collected pursuant thereto 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 Seller under any physical damage or other individual insurance
policy (including a "FORCED PLACED" policy, if any) relating to any such
Contract, an Obligor or a Motorcycle securing such Contract, (iii) all security
interests in each such Motorcycle, (iv) all documents contained in the related
Contract Files, (v) all rights of Seller in the Lockbox, Lockbox Account and
related Lockbox Agreement to the extent they relate to the Contracts, (vi) all
rights (but not the obligations) of the Seller under any motorcycle dealer
agreements between the dealers (i.e. the originators of the Contracts) and the
Seller and (vii) all proceeds and products of the foregoing
This Assignment is made pursuant to and in reliance upon the
representation and warranties on the part of the undersigned contained in
Article III of the Agreement and no others.
Capitalized terms used herein but not otherwise defined shall have the
meanings assigned to such terms in the Sale and Servicing Agreement dated as of
April 1, 2001 made by and among the undersigned, as servicer, the Trust
Depositor, Harley-Davidson Motorcycle Trust 2001-1, as issuer, and BNY Midwest
Trust Company, as indenture trustee.
A-1
IN WITNESS WHEREOF, the undersigned has caused this Assignment to be
duly executed this ___ day of April, 2001.
HARLEY-DAVIDSON CREDIT CORP.
By:
--------------------------------------
Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
A-2
Exhibit B
Transfer and Sale
Agreement
FORM OF OFFICER'S CERTIFICATE
(See Exhibit C to the Sale and Servicing Agreement)
B-1
Exhibit C
Transfer and Sale
Agreement
FORM OF SUBSEQUENT PURCHASE AGREEMENT
SUBSEQUENT PURCHASE AGREEMENT (the "AGREEMENT"), dated as of
____________, _______, by and among Harley-Davidson Customer Funding Corp., a
Nevada corporation (the "TRUST DEPOSITOR"), and Harley-Davidson Credit Corp., a
Nevada corporation (the "SELLER"), pursuant to the Transfer and Sale Agreement
referred to below.
WITNESSETH:
WHEREAS, the Trust Depositor and the Seller are parties to the Transfer
and Sale Agreement, dated as of April __, 2001 (the "TRANSFER AND SALE
AGREEMENT");
WHEREAS, pursuant to the Transfer and Sale Agreement, the Seller wishes
to sell the Subsequent Contracts to the Trust Depositor, and the Trust Depositor
wishes to purchase the same, for the purchase price set forth in SECTION 3
below; and
WHEREAS, the Seller has timely delivered an Addition Notice related to
such conveyance as required in the Sale and Servicing Agreement dated as of
April __, 2001 among the Seller (in the capacity of Servicer thereunder), the
Trust Depositor and the Trustee as defined therein (the "SALE AND SERVICING
AGREEMENT").
NOW, THEREFORE, the Trust Depositor and the Seller hereby agree as
follows:
SECTION 1. Capitalized terms used herein shall have the meanings
ascribed to them in the Sale and Servicing Agreement unless otherwise defined
herein.
"SUBSEQUENT CUTOFF DATE" shall mean, with respect to
the Subsequent Contracts transferred hereby, [_________].
"SUBSEQUENT CONTRACTS" shall mean, for purposes of
this Agreement, the Subsequent Contracts listed in the
Subsequent List of Contracts attached hereto as Exhibit A.
"SUBSEQUENT TRANSFER DATE" shall mean, with respect
to the Subsequent Contracts transferred hereby, [__________].
SECTION 2. SUBSEQUENT LIST OF CONTRACTS. The Subsequent List of
Contracts attached hereto as Exhibit A is a supplement to the initial List of
Contracts attached as EXHIBIT H to the Sale and Servicing Agreement. The
Contracts listed in the Subsequent List of Contracts
C-1
constitute the Subsequent Contracts to be transferred pursuant to this
Agreement on the subsequent Transfer Date.
SECTION 3. TRANSFER OF SUBSEQUENT CONTRACTS. Subject to and upon the
terms and conditions set forth in Section 2.04(b) of the Transfer and Sale
Agreement and this Agreement, Seller hereby sells, transfers, assigns, sets
over and otherwise conveys to Trust Depositor, in consideration of Trust
Depositor's payment of $[_______] as the purchase price therefor, (i) all the
right, title and interest of Seller in and to the Subsequent Contracts listed
on the related Subsequent List of Contracts (including, without limitation,
all security interests and all rights to receive payments which are collected
pursuant thereto on or after the applicable Subsequent Cutoff Date, including
any liquidation proceeds therefrom, but excluding any rights to receive
payments which were collected pursuant thereto prior to such Subsequent
Cutoff Date), (ii) all rights of Seller under any physical damage or other
individual insurance policy (including a "FORCED PLACED" policy, if any)
relating to any such Contract, an Obligor or a Motorcycle securing such
Contract, (iii) all security interests in each such Motorcycle, (iv) all
documents contained in the related Contract Files, (v) all rights of Seller
in the Lockbox, Lockbox Account and related Lockbox Agreement to the extent
they relate to the Contracts, (vi) all rights (but not the obligations) of
the Seller under any motorcycle dealer agreements between the dealers (I.E.
the originators of such Subsequent Contracts) and the Seller and (vii) all
proceeds and products of the foregoing. It is the intention of the Seller and
the Trust Depositor that the transfer contemplated by this Agreement shall
constitute a sale of the Subsequent Contracts from the Seller to the Trust
Depositor, conveying good title thereto free and clear of any Liens, and that
the Subsequent Contracts shall not be part of the Seller's estate in the
event of the filing of a bankruptcy petition by or against Seller under any
bankruptcy or similar law.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE SELLER. (a) Seller
hereby represents and warrants to the Trust Depositor that the
representations and warranties of Seller in Section 3.01 of the Transfer and
Sale Agreement are true and correct as of the Subsequent Transfer Date.
(b) Seller hereby repeats and remakes with respect to the Subsequent
Contracts as of the Subsequent Transfer Date (i) the representations and
warranties of Seller in Sections 3.02, 3.03 and 3.04 of the Transfer and Sale
Agreement, except that, with respect to subsection (b) of Section 3.03, (A)
approximately _____% of the Principal Balance of the Contracts as of the
Subsequent Cutoff Date is attributable to loans for purchases of new Motorcycles
and approximately ___% is attributable to loans for purchases of used
Motorcycles, and (B) no Contract was originated after the Subsequent Cutoff
Date, as well as (ii) covenants to provide the certificate required by Section
2.02(h) (solely with respect to the Subsequent Contracts).
(c) Seller hereby represents and warrants that (a) the aggregate
Principal Balance of the Subsequent Contracts listed on the Subsequent List
of Contracts and conveyed to the Trust Depositor pursuant to this Agreement
is $[ ] as of the Subsequent Cutoff Date, and (b) the conditions set forth in
Section 2.04(b) of the Transfer and Sale Agreement have been satisfied as of
the Subsequent Transfer Date.
C-2
SECTION 5. RATIFICATION OF AGREEMENT. As supplemented by this
Agreement, the Transfer and Sale Agreement is in all respects ratified and
confirmed and, as so supplemented by this Agreement, shall be read, taken and
construed as one and the same instrument.
SECTION 6. COUNTERPARTS. This Agreement may be executed in two or
more counterparts (and by different parties in separate counterparts), each
of which shall be an original but all of which together shall constitute one
and the same instrument.
SECTION 7. GOVERNING LAW. This Agreement shall be construed in
accordance with the laws of the State of Illinois, without reference to its
conflict of law provisions, and the obligations, rights and remedies of the
parties hereunder shall be determined in accordance with such laws.
C-3
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
HARLEY-DAVIDSON CUSTOMER FUNDING CORP.
By:
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Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer
HARLEY-DAVIDSON CREDIT CORP.
By:
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Printed Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Treasurer