EXHIBIT 99.1
FORM OF
HARLEY-DAVIDSON MOTORCYCLE TRUST [___]
______________________________
AGREEMENT TO DEPOSIT CONTRACTS
Between
HARLEY-DAVIDSON CUSTOMER FUNDING CORP.
AS TRUST DEPOSITOR
AND
[_________________]
As Trustee
dated as of
[______]
________________________________
AGREEMENT TO DEPOSIT CONTRACTS
TABLE OF CONTENTS
ARTICLE I DEFINITIONS..................................................1
Section 1.01. ......................................................1
ARTICLE II AGREEMENT TO DEPOSIT CONTRACTS...............................2
Section 2.01. Deposit of Contracts..................................2
Section 2.02. Remedy for Breach.....................................2
ARTICLE III CARRYING CHARGES.............................................2
Section 3.01. Payment of Carrying Charges...........................2
Section 3.02. Demand on Collateral Agent............................2
ARTICLE IV MISCELLANEOUS PROVISIONS.....................................3
Section 4.01. Amendments; Waivers...................................3
Section 4.02. Severability..........................................3
Section 4.03. Nonpetition Covenant..................................3
Section 4.04. Notices...............................................3
Section 4.05. Governing Law.........................................4
Section 4.06. Limitation of Trustee Responsibility..................5
Section 4.07. Counterparts..........................................5
Section 4.08. Headings..............................................5
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AGREEMENT TO DEPOSIT CONTRACTS dated as of [_____], between
Harley-Davidson Customer Funding Corp., as Trust Depositor (the "TRUST
DEPOSITOR"), and [_________________], as Trustee (the "TRUSTEE").
WITNESSETH that:
WHEREAS, the Trust Depositor has acquired and, concurrently with the
execution and delivery hereof and pursuant to a Pooling and Servicing Agreement,
dated as of [_____] (the "POOLING AND SERVICING AGREEMENT"), has deposited,
transferred, assigned and set over in trust to the Trustee certain Contract
Assets in partial consideration of the Trust's issuance of the Certificates,
which the Trust Depositor has sold to investor(s); and
WHEREAS, the Trust Depositor has applied certain of the proceeds of
such sale to pay for its purchase of Contract Assets on the Closing Date from
the Seller, but will retain the remainder of the proceeds pending their
application for the purchase of Subsequent Contracts from the Seller; and
WHEREAS, the Trustee for the benefit of the Trust and the
Certificateholders has issued the Certificates to or upon the order of the Trust
Depositor, in consideration of the Trust Depositor's conveyance pursuant to the
Pooling and Servicing Agreement of the Contract Assets and in consideration of
the Trust Depositor's agreement hereunder to purchase and transfer the
Subsequent Contracts and related assets to the Trust, and to pay certain
Carrying Charges (as defined below); and
WHEREAS, the Trust Depositor has agreed pursuant to the Security
Agreement to secure the payment and performance of its obligations hereunder in
accordance with the terms thereof;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the Trust Depositor and the Trustee agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.01. Capitalized terms used in this Agreement (including
in the recitals above) and not specifically defined shall have the meaning given
such terms in the Pooling and Servicing Agreement. Whenever used in this
Agreement, the following words and phrases shall have the following meanings:
"CARRYING CHARGES" means the amount which the Trust Depositor is
obligated to pay to the Trust hereunder in accordance with Section 3.01 below.
"LIQUIDATED DAMAGES" means the amount which is payable as liquidated
damages to the Trust hereunder in the event of the Trust Depositor's failure to
timely transfer Subsequent Contracts to the Trust in accordance with Section
2.02 below.
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ARTICLE II
AGREEMENT TO DEPOSIT CONTRACTS
Section 2.01. Deposit of Contracts. The Trust Depositor hereby
undertakes and agrees, not later than the end of the Funding Period, to acquire
from the Seller by purchase for cash pursuant to one or more Subsequent Purchase
Agreements, and thereupon transfer to the Trust pursuant to one or more
Subsequent Transfer Agreements, Subsequent Contracts in an aggregate Principal
Balance, as of the respective Subsequent Cutoff Dates, equal to $[____] which is
equal to the amount deposited with the Collateral Agent on the Closing Date in
respect of the Pre-Funded Amount. The Trust Depositor shall effect such
purchases from the Seller using the funds on deposit in the Pre-Funding Account
in accordance with the terms of the Security Agreement.
Section 2.02. Remedy for Breach. If the Trust Depositor fails to
perform the obligation described in Section 2.01 in its entirety by the end of
the Funding Period, the Trustee shall take remedial action upon the expiration
of the Funding Period by giving written notice of non-performance to the Trust
Depositor, accompanied by written demand upon the Trust Depositor for the
payment of liquidated damages ("LIQUIDATED DAMAGES") hereunder in respect of
such non-performance. Such Liquidated Damages shall be payable immediately upon
demand. Liquidated Damages shall in all events equal the amount then on deposit
in the Pre-Funding Account, and such written demand shall concurrently be made
upon the Collateral Agent as provided in Section 3.03 of the Security Agreement.
The Trustee shall deposit all amounts received from the Collateral Agent in
respect of Liquidated Damages into the Special Distribution Subaccount
established under the Pooling and Servicing Agreement. The right to payment of
Liquidated Damages from the Pre-Funding Account shall be the sole remedy of the
Trustee for the Trust Depositor's failure to perform its obligations as
described above.
ARTICLE III
CARRYING CHARGES
Section 3.01. Payment of Carrying Charges. The Trust Depositor
hereby agrees to pay to the Trustee for the benefit of the Trust, immediately
upon demand, Carrying Charges to the extent that the Trustee demands payment of
such Carrying Charges in accordance with, and subject to the limitations of,
Section 8.03(b) of the Pooling and Servicing Agreement. No such Carrying Charges
shall be payable on or after the second Payment Date succeeding the date on
which the Pre-Funded Amount shall be zero.
Section 3.02. Demand on Collateral Agent. The Trust Depositor
agrees that the Trustee may effect demand for payment of Carrying Charges by
making demand directly upon the Collateral Agent instead of the Trust Depositor,
and consents to the Collateral Agent's payment of such Carrying Charges from
amounts on deposit in the Interest Reserve Account.
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ARTICLE IV
MISCELLANEOUS PROVISIONS
Section 4.01. Amendments; Waivers. No amendment, modification,
waiver or supplement to this Agreement or any provision of this Agreement shall
in any event be effective unless the same shall have been made or consented to
in writing by each of the parties hereto and the Rating Agencies shall have
received written notification of such amendment modification, waiver or
supplement.
Section 4.02. Severability. In the event that any provision of this
Agreement or the application thereof to any party hereto or to any circumstance
or in any jurisdiction governing this Agreement shall, to any extent, be invalid
or unenforceable under any applicable statute, regulation or rule of law, then
such provision shall be deemed inoperative to the extent that it is invalid or
unenforceable and the remainder of this Agreement, and the application of any
such invalid or unenforceable provision to the parties, jurisdictions or
circumstances other than to whom or to which it is held invalid or
unenforceable, shall not be affected thereby nor shall the same affect the
validity or enforceability of any other provision of this Agreement.
Section 4.03. Nonpetition Covenant. Notwithstanding any prior
termination of this Agreement, each of the parties hereto agrees that it shall
not, prior to one year and one day after the Payment Date first occurring
following the final disbursement of funds under the Security Agreement,
acquiesce, petition or otherwise invoke or cause the Trust Depositor to invoke
the process of the United States of America, any State or other political
subdivision thereof or any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government for the
purpose of commencing or sustaining a case by or against the Trust Depositor or
the Trust under a Federal or state bankruptcy, insolvency or similar law or
appointing a receiver, liquidator, assignee, trustee, custodian, sequestrator or
other similar official of the Trust Depositor or the Trust or all or any part of
its property or assets or ordering the winding up or liquidation of the affairs
of the Trust Depositor or the Trust. The parties agree that damages will be an
inadequate remedy for breach of this covenant and that this covenant may be
specifically enforced.
Section 4.04. Notices. All notices, demands, certificates, requests
and communications hereunder ("NOTICES") shall be in writing and shall be
effective (a) upon receipt when sent through the U.S. mails, registered or
certified mail, return receipt requested, postage prepaid, with such receipt to
be effective the date of delivery indicated on the return receipt, or (b) one
Business Day after delivery to an overnight courier, or (c) on the date
personally delivered to the party to which sent, or (d) on the date transmitted
by legible telecopier transmission with a confirmation of receipt, in all cases
addressed to the recipient as follows:
(i) If to the Trust Depositor:
Harley-Davidson Customer Funding Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
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Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) If to the Trustee:
__________________________
__________________________
__________________________
Telecopier No.: ________________
(iii) If to the Collateral Agent:
__________________________
__________________________
Telecopier No.: ________________
(iv) If to Moody's:
Moody's Investor's Service, Inc.
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ABS Monitoring Department
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(v) If to Standard & Poor's:
Standard & Poor's Ratings Group, a
division of The McGraw Hill Companies
▇▇ ▇▇▇▇▇▇▇▇ - ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Asset-Backed Securities Surveillance
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
A copy of each notice given hereunder to any party hereto shall also be given to
(without duplication), the Trust Depositor, the Trustee and the Collateral
Agent. Each party hereto may, by notice given in accordance herewith to each of
the other parties hereto, designate any further or different address to which
subsequent notices shall be sent.
Section 4.05. Governing Law. This Agreement shall be governed by
and construed, and the obligations, rights and remedies of the parties hereunder
shall be determined, in accordance with, the laws of the State of Illinois.
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Section 4.06. Limitation of Trustee Responsibility. It is expressly
understood and agreed by the parties hereto that (a) [_______________] is
executing this Agreement not in its individual capacity but solely in its
capacity as Trustee of the Trust pursuant to the Pooling and Servicing
Agreement, and (b) in no case whatsoever shall [_______________] be personally
liable on, or for any loss in respect of, any of the statements,
representations, warranties, covenants, agreements or obligations of the Trust
(if any) hereunder, all such liability, if any, being expressly waived by the
parties hereto, except and to the extent such loss is caused by gross
negligence, bad faith or willful misconduct of the Trustee.
Section 4.07. Counterparts. This Agreement may be executed in two or
more counterparts by the parties hereto, and each such counterpart shall be
considered an original and all such counterparts shall constitute one and the
same instrument.
Section 4.08. Headings. The headings of sections and paragraphs and the
Table of Contents contained in this Agreement are provided for convenience only.
They form no part of this Agreement and shall not affect its construction or
interpretation.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date set forth on the first page hereof.
HARLEY-DAVIDSON CUSTOMER FUNDING CORP.
By _______________________________
Printed Name:_____________________
Title: ___________________________
[___________________], as Trustee
By ______________________________
Printed Name:____________________
Title:___________________________
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