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 AGREEMEN	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		12
SECTION 4.01.	CUSTODY OF CONTRACTS	12
SECTION 4.02.	FILING	12
SECTION 4.03.	NAME CHANGE OR RELOCATION	13
SECTION 4.04.	COSTS AND EXPENSES	13
SECTION 4.05	SALE TREATMENT	13
SECTION 4.06	SEPARATENESS FROM TRUST DEPOSITOR	13
SECTION 4.07	PROTECTION OF SECURITY INTERESTS	14
ARTICLE V REMEDIES UPON MISREPRESENTATION		14
SECTION 5.01.	REPURCHASES OF CONTRACTS FOR BREACH OF REPRESENTATIONS AND WARRANTIES	14
ARTICLE VI INDEMNITIES		15
SECTION 6.01.	SELLER INDEMNIFICATION	15
SECTION 6.02.	LIABILITIES TO OBLIGORS	15
SECTION 6.03.	TAX INDEMNIFICATION	15
SECTION 6.04.	OPERATION OF INDEMNITIES	15
ARTICLE VII MISCELLANEOUS		16
SECTION 7.01.	PROHIBITED TRANSACTIONS WITH RESPECT TO THE TRUST	16
SECTION 7.02.	MERGER OR CONSOLIDATION	16
SECTION 7.03.	TERMINATION	16
SECTION 7.04.	ASSIGNMENT OR DELEGATION BY SELLER	16
SECTION 7.05.	AMENDMENT	17
SECTION 7.06.	NOTICES	17
SECTION 7.07.	MERGER AND INTEGRATION	18
SECTION 7.08.	HEADINGS	18
SECTION 7.09.	GOVERNING LAW	18

 

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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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THIS AGREEMENT , dated as of [          ], 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 (i) motorcycle conditional sales contracts from Harley-Davidson motorcycle retailers and (ii) motorcycle promissory note and security agreements from Eaglemark Savings Bank, 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 the related 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 [          ] (the “ Trust” ) pursuant to the Sale and Servicing Agreement dated as of [          ] by and among Trust Depositor, Harley-Davidson Credit, as Servicer, the Trust, as issuer (the “Issuer” ) and [          ], 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 $[          ] 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 after the Initial Cutoff Date, including any liquidation proceeds therefrom, but excluding any rights to receive payments which were collected pursuant thereto on or 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), any debt insurance policy or any debt cancellation agreement relating to any such Contract, an Obligor or a Motorcycle securing such Contract, (iii) all security interests in each such Motorcycle, (iv) all documents contained in the related Contract Files, (v) all rights 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. originators of certain Contracts) and the Seller, (vii) all rights of Seller to certain rebates of premiums and other amounts relating to insurance policies, debt cancellation agreements, extended service contracts or other repair agreements and other items financed under such Contracts and (viii) all proceeds and products of the foregoing (items (i) - (viii), 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.

 

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(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.

 

(d)                                  A letter or letters from [          ], 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 office in Nevada of a UCC financing statement naming Seller as debtor, naming Trust Depositor as assignor secured party and the Issuer as secured party, and listing the Contract Assets as collateral as well as evidence of proper filing with the appropriate office in Delaware of a UCC financing statement naming the Issuer as debtor, naming the Indenture Trustee, as secured party, and listing the Contract Assets as collateral.

 

(h)                                  An Officer’s Certificate from Seller certifying that the Seller, on or prior to the Closing Date, has indicated in its computer files, in accordance with its customary standards, policies and procedures, that the Contracts have been conveyed to the Trust Depositor pursuant to this Agreement.

 

(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 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

 

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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 after the applicable Subsequent Cutoff Date, including any liquidation proceeds therefrom, but excluding any rights to receive payments which were collected pursuant thereto on or 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), any debt insurance policy or any debt cancellation agreement relating to any such Subsequent Contract, an Obligor or a Motorcycle securing such Subsequent 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 Subsequent Contracts, (vi) all rights (but not the obligations) of the Seller under any motorcycle dealer agreements between the dealers ( i.e. originators of certain Subsequent Contracts) and the Seller, (vii) all rights of Seller to certain rebates of premiums and other amounts relating to insurance policies, debt cancellation agreements, extended service contracts or other repair agreements and other items financed under such Subsequent Contracts and (viii) all proceeds and products of the foregoing (items (i) - (viii), 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 in substantially the form of Exhibit C hereto (the “ Subsequent

 

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Purchase Agreement” ), which shall include a Subsequent List of Contracts listing the Subsequent Contracts being purchased;

 

(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 that following such transfer, and the transfer immediately thereafter of the Subsequent Contracts to the Trust, the Notes will be rated at least their respective ratings as of the Closing Date by such Rating Agency.

 

(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 (or bring-downs of opinions of counsel delivered on the Closing Date) 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, the Indenture Trustee 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

 

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 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.

 

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

 

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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 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)                                     State of Incorporation; Name; No Changes.   Seller’s state of incorporation is the State of Nevada.  Seller’s exact legal name is as set forth in the first paragraph of this Agreement.  Seller has not changed its name whether by amendment of its Articles of Incorporation, by reorganization or otherwise, and has not changed its state of incorporation, within the four months preceding the Closing Date.

 

(g)                                  Operations .  Approximately [          ]% 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 or under a debt insurance policy or debt cancellation agreement.

 

(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

 

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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.

 

(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 .  The Seller, in accordance with its policies and procedures, has determined that, as of the date of origination of each Contract, the related Obligor had obtained or agreed to obtain physical damage insurance covering the Motorcycle.  The terms of each Contract require that for the term of such Contract the Motorcycle securing such Contract will be covered by physical damage insurance.

 

(g)                                  Origination .  Each Contract (i) was originated by a Harley-Davidson motorcycle dealer or by Eaglemark Savings Bank, in each case, in the regular course of its business, (ii) was fully and properly executed by the parties thereto, and (iii) has been purchased by Seller in the regular course of its business.  Each Contract was sold by Eaglemark Savings Bank or such motorcycle dealer, as the case may be, to the Seller without any fraud or misrepresentation on the part of Eaglemark Savings Bank or, to the knowledge of the Seller, 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 Harley-Davidson motorcycle dealers or Eaglemark Savings Bank, 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, in any material respect 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.

 

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