Exhibit 10.3
Execution Copy
ADMINISTRATION AGREEMENT
among
HARLEY-DAVIDSON MOTORCYCLE TRUST
2009-1,
as Issuer,
HARLEY-DAVIDSON CREDIT CORP.,
as Administrator,
HARLEY-DAVIDSON CUSTOMER FUNDING
CORP.,
as Trust Depositor,
and
THE BANK OF NEW YORK MELLON TRUST COMPANY,
N.A.,
as Indenture Trustee
Dated as of May 1, 2009
TABLE OF CONTENTS
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SECTION 1.
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DUTIES OF THE ADMINISTRATOR.
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2
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SECTION 2.
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RECORDS
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7
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SECTION 3.
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COMPENSATION
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7
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SECTION 4.
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ADDITIONAL INFORMATION TO BE FURNISHED TO THE
ISSUER
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7
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SECTION 5.
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INDEPENDENCE OF THE ADMINISTRATOR
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7
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SECTION 6.
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NO JOINT VENTURE
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7
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SECTION 7.
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OTHER ACTIVITIES OF ADMINISTRATOR
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7
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SECTION 8.
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TERM OF AGREEMENT; RESIGNATION AND REMOVAL OF
ADMINISTRATOR
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7
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SECTION 9.
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ACTION UPON TERMINATION, RESIGNATION OR
REMOVAL
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8
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SECTION 10.
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NOTICES
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9
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SECTION 11.
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AMENDMENTS
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9
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SECTION 12.
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SUCCESSORS AND ASSIGNS
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9
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SECTION 13.
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GOVERNING LAW
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10
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SECTION 14.
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HEADINGS
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10
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SECTION 15.
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COUNTERPARTS
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10
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SECTION 16.
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SEVERABILITY
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10
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SECTION 17.
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NOT APPLICABLE TO HARLEY-DAVIDSON IN OTHER
CAPACITIES
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10
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SECTION 18.
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LIMITATION OF LIABILITY OF OWNER TRUSTEE
AND
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INDENTURE TRUSTEE
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10
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SECTION 19.
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THIRD-PARTY BENEFICIARY
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11
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SECTION 20.
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SURVIVABILITY
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11
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This Administration Agreement, dated
as of May 1, 2009, among Harley-Davidson Motorcycle Trust
2009-1 (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 The Bank of New York Mellon Trust
Company, N.A., 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 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 or the Sale and Servicing Agreement);
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:
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 Wilmington, Delaware, for registration of transfer or
exchange of Notes (Section 3.02);
(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);
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(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 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
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);
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(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);
(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;
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(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.
(b)
Additional Duties
.
(i)
In addition to the duties set forth
in Section 1(a)(i), the Administrator (A) 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 5.03 of the Trust
Agreement, (B) shall execute and deliver on behalf of the
Trust one or more certifications as to TALF eligibility, one or
more indemnity undertakings and other documents, certificates,
notices, press releases, agreements and instruments contemplated
thereby or related thereto or otherwise necessary or incidental to
qualifying the Class A Notes as “eligible
collateral” under the Federal Reserve Bank of New
York’s Term Asset-Backed Securities Loan Facility and
(C) 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 a
Certificateholder 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.
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