(“Buell”) and MV Agusta (“MV”), each a wholly-owned subsidiary of Harley-Davidson, Inc.), and certain other motorcycle manufacturers, certain monies received thereon after September 30, 2009 (the “Cutoff Date”), all insurance proceeds and liquidation proceeds with respect thereto, security interests in the motorcycles financed thereby, the related Contracts files, the Trust Accounts, proceeds of the foregoing, certain rights with respect to funds on deposit from time to time in the Reserve Fund and certain other property.  The Contracts will be serviced for the Trust by Harley-Davidson.  The Notes will be issued pursuant to the Indenture to be dated as of October 1, 2009 (as amended and supplemented from time to time, the “Indenture”) between the Trust and The Bank of New York Mellon Trust Company, N.A., as indenture trustee (the “Indenture Trustee”).  The Notes will be secured by the assets of the Trust pursuant to the Indenture.  The Class A Notes are hereinafter referred to as the “Offered Securities”.

 

A certificate (the “Certificate”) will be issued pursuant to a Trust Agreement dated as of September 15, 2009 (as amended and supplemented from time to time, the “Trust Agreement”), between the Trust Depositor and Wilmington Trust Company, as owner trustee (the “Owner Trustee”).  The Certificate will initially be retained by the Trust Depositor and will not be offered pursuant to the Preliminary Prospectus (as defined herein) or the Prospectus (as defined herein).

 

The Trust will acquire the Contracts from the Trust Depositor pursuant to a Sale and Servicing Agreement to be dated as of October 1, 2009 (as amended and supplemented from time to time, the “Sale and Servicing Agreement”), among the Trust, the Trust Depositor, Harley-Davidson, as servicer, and The Bank of New York Mellon Trust Company, N.A., as Indenture Trustee.  Harley-Davidson will also agree to perform certain administrative functions on behalf of the Trust pursuant to an Administration Agreement to be dated as of October 1, 2009 (as amended and supplemented from time to time, the “Administration Agreement”) among Harley-Davidson, as administrator, the Trust and the Indenture Trustee.  The Trust Depositor will acquire the Contracts from Harley-Davidson on the Closing Date (as defined herein) pursuant to a Transfer and Sale Agreement to be dated as of October 1, 2009 (as amended and supplemented from time to time, the “Transfer and Sale Agreement”) among the Trust Depositor, as purchaser, and Harley-Davidson, as seller.  All of the assets conveyed to the Trust pursuant to the Sale and Servicing Agreement are referred to herein as the “Trust Property”.  Capitalized terms that are used and not otherwise defined herein shall have the respective meanings assigned thereto in the Sale and Servicing Agreement.

 

In connection with the sale of the Offered Securities, the Trust Depositor and Harley-Davidson will prepare a Prospectus Supplement to be dated October 1, 2009 which will supplement the Base Prospectus dated as of September 28, 2009.  The Prospectus sets forth certain information concerning the Trust Depositor, Harley-Davidson, the Trust and the Offered Securities.  The Trust Depositor and Harley-Davidson hereby confirm that they have authorized the use of the Prospectus, and any amendment or supplement thereto, in connection with the offer and sale of the Offered Securities by the Underwriters.  Unless stated to the contrary, all references herein to the Prospectus are to the Prospectus as defined herein and are not meant to include any amendment or supplement thereto.

 

At or prior to the time when sales to purchasers of the Offered Securities were first made to investors by the Underwriters, which was approximately 12:59 p.m. New York City time on

 

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October 1, 2009 (the “Time of Sale”), the Trust Depositor and Harley-Davidson had prepared the following information (collectively, the “Time of Sale Information”): the preliminary prospectus supplement dated September 28, 2009 (the “Preliminary Prospectus Supplement”) to the base prospectus dated September 28, 2009 (the “Preliminary Base Prospectus”) (together, along with information referred to under the caption “Appendix A—Static Pool Information” therein regardless of whether it is deemed a part of the Registration Statement or Prospectus, the “Preliminary Prospectus”).  If, subsequent to the Time of Sale and prior to the Closing Date, such information included an untrue statement of material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and as a result investors in the Offered Securities may terminate their prior “Contracts of Sale” (within the meaning of Rule 159 under the Securities Act of 1933, as amended (the “Act”)) for any Offered Securities and the Underwriters enter into new Contracts of Sale with investors in the Offered Securities, then “Time of Sale Information” will refer to the information conveyed to investors at the time of entry into the first such new Contract of Sale, in an amended Preliminary Prospectus approved by the Trust Depositor, Harley-Davidson and the Underwriters that corrects such material misstatements or omissions (a “Corrected Prospectus”) and “Time of Sale” will refer to the time and date on which such new Contracts of Sale were entered into.

 

1.              Representations and Warranties of Harley-Davidson and the Trust Depositor .  Harley-Davidson and the Trust Depositor jointly and severally represent and warrant to each Underwriter as set forth below in this Section 1:

 

(a)            A registration statement on Form S-3 (No. 333-157910) relating to asset backed notes, including the Offered Securities, has been filed by the Trust Depositor with the Securities and Exchange Commission (the “Commission”) and has become effective within the three years prior to the Closing Date, has been amended by various pre-effective amendments, the last of which is Pre-Effective Amendment No. 2 that became effective on April 28, 2009, and is still effective as of the date hereof under the Act.

 

The Trust Depositor proposes to file with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act (the “Rules and Regulations”) a prospectus supplement dated October 1, 2009 (together with information referred to under the caption “Appendix A — Static Pool Information” therein regardless of whether it is deemed a part of the Registration Statement or Prospectus, the “Prospectus Supplement”) to the prospectus dated September 28, 2009 (the “Base Prospectus”), relating to the Offered Securities and the method of distribution thereof.  Such registration statement, including exhibits thereto, and such prospectus, as amended or supplemented to the date hereof, and as further supplemented by the Prospectus Supplement, are hereinafter referred to as the “Registration Statement” and the “Prospectus,” respectively.  Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, the Base Prospectus or the Prospectus Supplement shall include, without limitation, any document filed under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), the Base Prospectus and the

 

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Prospectus Supplement, as the case may be, deemed to be incorporated therein pursuant to the Act.

 

The conditions to the use of a registration statement on Form S-3 under the Act have been satisfied.  The Trust Depositor has filed the Preliminary Prospectus and it has done so within the applicable period of time required under the Act and the Rules and Regulations.

 

(b)            The Registration Statement, at the time it became effective, any post-effective amendment thereto, at the time it became effective, the Preliminary Prospectus, as of its date, and the Prospectus, as of the date of the Prospectus Supplement, complied and on the Closing Date will comply in all material respects with the applicable requirements of the Act and the Rules and Regulations and the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and the rules and regulations of the Commission thereunder.

 

The Registration Statement, as of the most recent effective date as to each part of the Registration Statement and any amendment thereto pursuant to Rule 430B(f)(2) under the Act, did not include any untrue statement of a material fact and did not omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading.

 

The Preliminary Prospectus, as of its date and as of the Time of Sale, did not contain an untrue statement of a material fact and did not omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

The Prospectus, as of the date of the Prospectus Supplement and as of the Closing Date, does not and will not contain any untrue statement of a material fact and did not and will not omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

 

The representations and warranties in the three preceding paragraphs do not apply to (i) that part of the Registration Statement which shall constitute the Statement of Eligibility and Qualification (Form T-1) of the Indenture Trustee under the Trust Indenture Act or (ii) information contained in or omitted from the Registration Statement, the Preliminary Prospectus or the Prospectus (or any supplement thereto) in reliance upon and in conformity with information furnished in writing to the Trust Depositor by any Underwriter through RBS Securities Inc. specifically for use in connection with preparation of the Registration Statement, the Preliminary Prospectus or the Prospectus (or any supplement thereto), it being agreed that the only such information consists of the statements in the second and third paragraphs (concerning initial offering prices, concessions and reallowances) and in the fourth and fifth paragraphs (concerning overallotment, stabilizing transactions and syndicate covering transactions) under

 

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the heading “Underwriting” in the Preliminary Prospectus Supplement and the Prospectus Supplement (such information, the “Underwriter Information”).

 

The documents incorporated by reference in the Registration Statement, the Preliminary Prospectus and the Prospectus, when they became effective under the Act or were filed with the Commission under the Exchange Act, as the case may be, conformed in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder; and any further documents so filed and incorporated by reference in the Registration Statement or the Prospectus, when such documents are filed with the Commission, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder.

 

Since the respective dates as of which information is given in the Preliminary Prospectus there has not been any material adverse change, or any development involving a prospective material adverse change, in or affecting the condition, financial or otherwise, earnings, business or operations of the Trust Depositor or Harley-Davidson, and their respective subsidiaries, taken as a whole, except as set forth in the Preliminary Prospectus.

 

The Indenture has been qualified under the Trust Indenture Act.

 

(c)            The Time of Sale Information, at the Time of Sale, did not, and at the Closing Date will not, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided that neither the Trust Depositor nor Harley-Davidson makes any representation and warranty with respect to any statements or omissions made in reliance upon and in conformity with the Underwriter Information.  As of the Time of Sale, the Trust Depositor was not and as of the Closing Date is not, an “ineligible issuer,” as defined in Rule 405 under the Act.

 

(d)            [Reserved].

 

(e)            [Reserved].

 

(f)             Neither the Trust Depositor nor the Trust is, and neither the issuance and sale of the Offered Securities nor the activities of the Trust pursuant to the Indenture or the Trust Agreement will cause the Trust Depositor or the Trust to be, an “investment company” or under the “control” of an “investment company” as such terms are defined in the Investment Company Act of 1940, as amended (the “Investment Company Act”).

 

(g)            This Agreement has been duly authorized, executed and delivered by Harley-Davidson and the Trust Depositor.

 

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(h)            None of Harley-Davidson, the Trust Depositor, any of their Affiliates or anyone acting on behalf of Harley-Davidson, the Trust Depositor or any of their Affiliates has taken any action that would require qualification of the Trust Agreement under the Trust Indenture Act or registration of the Trust Depositor under the Investment Company Act, nor will Harley-Davidson, the Trust Depositor or any of their Affiliates act, nor have they authorized or will they authorize any person to act, in such manner.

 

(i)             Neither the Trust Depositor nor Harley-Davidson is in violation of any provision of any existing law or regulation or in default in the performance or observance of any obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, deed of trust, loan agreement, note, lease or other instrument to which it is a party or by which it is bound or to which any of its property is subject, which violations or defaults separately or in the aggregate would have a material adverse effect on the Trust Depositor, Harley-Davidson or the Trust.

 

(j)             Neither the issuance and sale of the Offered Securities, nor the execution and delivery by the Trust Depositor or Harley-Davidson of this Agreement, the Offered Securities, the Sale and Servicing Agreement, the Transfer and Sale Agreement, the Trust Agreement, the Administration Agreement, the Lockbox Agreement or the Indenture, nor the incurrence by the Trust Depositor or Harley-Davidson of the obligations herein and therein set forth, nor the consummation of the transactions contemplated hereunder or thereunder, nor the fulfillment of the terms hereof or thereof does or will (i) violate any existing law or regulation, applicable to it or its properties or by which it or its properties are or may be bound or affected, (ii) conflict with, or result in a breach of, or constitute a default under, any material indenture, contract, agreement, deed, lease, mortgage or instrument to which it is a party or by which it or its properties are bound or (iii) result in the creation or imposition of any lien upon any of its property or assets, except for those encumbrances created under the Transfer and Sale Agreement, the Sale and Servicing Agreement, the Trust Agreement or the Indenture.

 

(k)            All consents, approvals, authorizations, orders, filings, registrations or qualifications of or with any court or any other governmental agency, board, commission, authority, official or body required in connection with the execution and delivery by the Trust Depositor and Harley-Davidson of this Agreement, the Offered Securities, the Sale and Servicing Agreement, the Transfer and Sale Agreement, the Trust Agreement, the Administration Agreement, the Indenture, or the Lockbox Agreement, or to the consummation of the transactions contemplated hereunder and thereunder, or to the fulfillment of the terms hereof and thereof, have been or will have been obtained on or before the Closing Date.

 

(l)             All actions required to be taken by the Trust Depositor and Harley-Davidson as a condition to the offer and sale of the Offered Securities as described herein or the consummation of any of the transactions described in the

 

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Preliminary Prospectus and the Prospectus have been or, prior to the Closing Date, will be taken.

 

(m)           The representations and warranties of each of the Trust Depositor and Harley-Davidson in (or incorporated in) the Sale and Servicing Agreement, the Transfer and Sale Agreement, the Trust Agreement, the Indenture, the Administration Agreement and the Lockbox Agreement and made in any Officer’s Certificate of the Trust Depositor or Harley-Davidson delivered pursuant to the Sale and Servicing Agreement, the Indenture or the Transfer and Sale Agreement will be true and correct at the time made and on and as of the Closing Date as if set forth herein.

 

(n)            The Contracts conveyed to the Trust had an aggregate outstanding balance as of the Cutoff Date of not less than $897,435,897.44.

 

(o)            Each of the Trust Depositor and Harley-Davidson agrees it shall not grant, assign, pledge or transfer to any Person a security interest in, or any other right, title or interest in, the Contracts, except as provided in the Sale and Servicing Agreement, the Trust Agreement, the Indenture and the Transfer and Sale Agreement and each agrees to take all action necessary in order to maintain the security interest in the Contracts granted pursuant to the Sale and Servicing Agreement, the Trust Agreement, the Indenture and the Transfer and Sale Agreement.

 

(p)            There are no actions, proceedings or investigations pending, or to the best knowledge of either the Trust Depositor or Harley-Davidson, threatened against the Trust Depositor or Harley-Davidson before any court or before any governmental authority of arbitration board or tribunal which, if adversely determined, could materially and adversely affect, either individually or in the aggregate, the financial position, business, operations or prospects of the Trust Depositor or Harley-Davidson.

 

(q)            For Illinois income, franchise and excise tax purposes, under the provisions of Illinois law as of the Closing Date, the Trust will not be classified as an association taxable as a corporation.

 

(r)             Under generally accepted accounting principles, Harley-Davidson will report its transfer of the Contracts to the Trust Depositor pursuant to the Transfer and Sale Agreement as a sale of the Contracts.

 

(s)            The Trust Depositor and Harley-Davidson jointly and severally represent and warrant as of the date hereof (assuming for such purposes and clause (i) below that the Class A-1 Notes, Class A-2 Notes, Class A-3 Notes and Class A-4 Notes (the “TALF-Eligible Notes”), receive the expected ratings identified in the Preliminary Prospectus) and as of the Closing Date that (i) the TALF-Eligible Notes satisfy all requirements to be Eligible Collateral (“Eligible Collateral”), as that term is defined in the form of Master Loan and Security Agreement, posted

 

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on the website of the Federal Reserve Bank of New York (the “FRBNY”) (in the most recently dated version) at http://www.newyorkfed.org/markets/talf_docs.html (the “MLSA”), among the FRBNY, as lender, the TALF Agents party thereto, each on behalf of itself and its respective applicable borrowers, and The Bank of New York Mellon, as administrator and as custodian, in connection with the FRBNY’s Term Asset-Backed Securities Loan Facility (the “TALF”), and (ii) the Prospectus, as of its date and the Closing Date, when taken as a whole together with all information provided by the Trust Depositor and Harley-Davidson or on behalf of the Trust Depositor and Harley-Davidson to any national recognized statistical rating organization in connection with the offering of the Notes, does not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.  No representation is made by the Trust Depositor or Harley-Davidson as to the eligibility of a borrower under TALF.

 

2.              Representations and Warranties of the Underwriters .  Each Underwriter, severally and not jointly, represents and warrants to, and agrees with, the Trust Depositor that:

 

(a)            It has only communicated or caused to be communicated and it will only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the Financial Services and Markets Act 2000 of the United Kingdom (“FSMA”)) received by it in connection with the issue or sale of any Offered Securities in circumstances in which Section 21(1) of the FSMA does not apply to the Trust.

 

(b)            It has complied and will comply with all applicable provisions of the FSMA with respect to anything done by it in relation to any Offered Securities in, from or otherwise involving the United Kingdom.

 

3.              Purchase and Sale .  Subject to the terms and conditions and in reliance upon the representations and warranties herein set forth, the Trust Depositor agrees to cause the Trust to sell to each Underwriter, and each Underwriter agrees, severally and not jointly, to purchase from the Trust, each of the Offered Securities in the principal amounts and at the purchase prices set forth opposite its name in Schedule I hereto.

 

4.              Delivery and Payment .  Delivery of and payment for the Offered Securities shall be made at the office of Winston & Strawn LLP, 35 Wacker Drive, Chicago, Illinois, at 10:00 A.M., Chicago time, on October 9, 2009 or such later date (not later than October 23, 2009) as the Underwriters shall designate, which date and time may be postponed by agreement among the Underwriters and the Trust Depositor (such date and time of delivery and payment for the Offered Securities being herein called the “Closing Date”).

 

Each class of the Offered Securities will be represented initially by one or more definitive global certificates in registered form which will be deposited by or on behalf of the Trust with The Depository Trust Company (“DTC”) or, on DTC’s behalf, with DTC’s designated nominee or custodian and duly endorsed to DTC or in blank by an effective endorsement.  The Trust will

 

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transfer the Offered Securities in book-entry form to the account of each Underwriter, against payment by the Underwriters of the purchase price therefor by wire transfer payable to the order of Harley-Davidson in federal (same day) funds (to such account or accounts as Harley-Davidson shall designate), by causing DTC to credit the Offered Securities to the account of each Underwriter at DTC.  Harley-Davidson will cause the global certificates referred to above to be made available to the Underwriters for checking at least 24 hours prior to the Closing Date at the office of DTC or its designated custodian.

 

5.              Offering by the Underwriters .  It is understood that the several Underwriters propose to offer the Offered Securities for sale to the public (which may include selected dealers), as set forth in the Prospectus.

 

6.              Agreements .  The Trust Depositor and Harley-Davidson, jointly and severally, agree with the Underwriters that:

 

(a)            Prior to the termination of the offering of the Offered Securities, the Trust Depositor will not file any amendment to the Registration Statement or any amendment, supplement or revision to either the Preliminary Prospectus or to the Prospectus, unless the Trust Depositor has furnished you a copy for your review prior to such proposed filing or use, as the case may be, and will not file or use any such document to which you shall reasonably object.  Subject to the foregoing sentence, the Trust Depositor will effect the filings required under Rule 424(b) under the Act in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)), and will provide evidence satisfactory to you of such timely filing.

 

(b)            During the period when a prospectus is required by the Act or the Exchange Act to be delivered in connection with sales of the Offered Securities (the “Prospectus Delivery Period”), Harley-Davidson will notify you promptly, and confirm the notice in writing, of (i) the effectiveness of any post-effective amendment to the Registration Statement or the filing of any supplement or amendment to the Prospectus, (ii) the receipt of any comments from the Commission, (iii) any request by the Commission for any amendment to the Registration Statement or any amendment or supplement to the Prospectus or any document incorporated by reference therein or otherwise deemed to be a part thereof or for additional information, (iv) the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any order preventing or suspending the use of any Preliminary Prospectus, or of the suspension of the qualification of the Offered Securities for offering or sale in any jurisdiction, or of the initiation or threatening of any proceedings for any of such purposes and (v) the happening of any event which makes the Registration Statement or the Prospectus contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading.  Harley-Davidson will make every reasonable effort to prevent the issuance of any stop order and, if any stop order is issued, to obtain as soon as possible the lifting thereof.

 

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(c)            If during the Prospectus Delivery Period any event shall occur or condition shall exist as a result of which it is necessary to amend the Registration Statement or amend or supplement the Prospectus in order that the Prospectus will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it shall be necessary during the Prospectus Delivery Period to amend the Registration Statement or amend or supplement the Prospectus in order to comply with the requirements of the Act or the Rules and Regulations, Harley-Davidson will promptly notify you and will promptly prepare and file with the Commission, subject to the review and approval provisions afforded to you described in Section 6(a), such amendment or supplement as may be necessary to correct such statement or omission or to make the Registration Statement, the Preliminary Prospectus or the Prospectus comply with such requirements.  Harley-Davidson will use its best efforts to have such amendment or new registration statement declared effective as soon as practicable, and Harley-Davidson will furnish to the Underwriters, without charge, such number of copies of such amendment or supplement as the Underwriters may reasonably request.  Any such filing shall not operate as a waiver or limitation of any right of any Underwriter hereunder.

 

(d)            Upon request, Harley-Davidson will deliver to the Underwriters and counsel for the Underwriters, without charge, photocopies of the signed Registration Statement at the time it originally became effective (the “Original Registration Statement”) and of each amendment thereto (including exhibits filed therewith) prior to the Closing Date.  The copies of the Original Registration Statement and each amendment thereto furnished to the Underwriters will be identical to the electronically transmitted copies thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system (“EDGAR”), except to the extent permitted by Regulation S-T under the Act.

 

(e)            Prior to the availability of the Prospectus, Harley-Davidson will deliver to the Underwriters, without charge, as many copies of the Preliminary Prospectus as the Underwriters may reasonably request, and Harley-Davidson and the Trust Depositor hereby consent to the use of such copies for purposes permitted by the Act.  Harley-Davidson will furnish to the Underwriters, without charge, during the Prospectus Delivery Period, such number of copies of the Prospectus as the Underwriters may reasonably request.  The Prospectus and any amendments or supplements thereto furnished to the Underwriters will be identical to any electronically transmitted copies thereof filed with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T under the Act.  Harley-Davidson will pay the expenses of printing or other production of all documents relating to the offering.

 

(f)             The Trust Depositor will comply with the Act and the Rules and Regulations, the Exchange Act and the rules and regulations thereunder and the Trust Indenture Act and the rules and regulations thereunder so as to permit the

 

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completion of the distribution of the Offered Securities as contemplated in this Agreement, the Basic Documents, the Registration Statement and the Prospectus.

 

(g)            The Trust Depositor will arrange for the qualification of the Offered Securities for sale by the Underwriters under the laws of such jurisdictions as the Underwriters may designate and will maintain such qualifications in effect so long as required for the sale of the Offered Securities.  The Trust Depositor will promptly advise the Underwriters of the receipt by the Trust Depositor of any notification with respect to the suspension of the qualification of the Offered Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose.

 

(h)            The Trust Depositor and Harley-Davidson will cooperate with the Underwriters and use their best efforts to permit the Offered Securities to be eligible for clearance and settlement through DTC.

 

(i)             For a period from the date of this Agreement until the retirement of the Offered Securities, the Servicer will deliver to you the monthly servicing reports, the annual statements of compliance, annual assessments of compliance with servicing criteria and accountants’ attestations in respect of such assessments furnished to the Indenture Trustee or the Owner Trustee pursuant to the Sale and Servicing Agreement, the Indenture, the Trust Agreement or the Administration Agreement, as soon as such statements and reports are furnished to the Indenture Trustee or the Owner Trustee.

 

(j)             So long as any of the Offered Securities is outstanding, Harley-Davidson will furnish to you (i) as soon as practicable after the end of the fiscal year all documents required to be distributed to holders of Offered Securities or filed with the Commission pursuant to the Exchange Act or any order of the Commission thereunder and (ii) from time to time, any other information concerning Harley-Davidson or the Trust Depositor filed with any government or regulatory authority that is otherwise publicly available, as you may reasonably request.

 

(k)            To the extent, if any, that the rating provided with respect to the Offered Securities by Moody’s Investors Service, Inc. (“Moody’s”) or Standard & Poor’s Ratings Services, a division of the McGraw-Hill Companies (“S&P” and together with Moody’s, the “Rating Agencies”), is conditional upon the furnishing of documents or the taking of any actions by the Trust Depositor, the Trust Depositor shall furnish such documents and take such actions.

 

(l)             Until 30 days following the Closing Date, neither the Trust Depositor nor any trust or other entity originated, directly or indirectly, by the Trust Depositor or Harley-Davidson, or any of their respective affiliates, will, without the prior written consent of the Underwriters, offer, sell or contract to sell, or otherwise dispose of, directly or indirectly, or announce the offering of, any asset-backed securities collateralized by motorcycle contracts originated in the United States (other than the Offered Securities).

 

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(m)           The Trust Depositor will enter into the Trust Agreement; Harley-Davidson will enter into the Administration Agreement; the Trust Depositor, Harley-Davidson, the Indenture Trustee and the Trust will enter into the Sale and Servicing Agreement; and Harley-Davidson and the Trust Depositor will enter into the Transfer and Sale Agreement on or prior to the Closing Date.

 

(n)            In accordance with Section 11, Harley-Davidson will cause any Trust Free Writing Prospectus (as defined in Section 11 hereof) with respect to the Offered Securities to be filed with the Commission to the extent required by Rule 433 under the Act.

 

(o)            Each of the Trust Depositor and Harley-Davidson will take all actions, and cause the Issuing Entity to take all actions, necessary to ensure that, on the Closing Date, the TALF-Eligible Notes qualify as Eligible Collateral under TALF and shall fully and timely perform all actions required of them (and cause the Issuing Entity to fully and timely perform all actions required of it) pursuant to the “Certification as to TALF Eligibility For Non-Mortgage-Backed ABS” contained in the Prospectus (the “TALF Eligibility Certification”).  Harley-Davidson shall provide each Underwriter with copies of all notices or press releases relating to the TALF-Eligible Notes that are delivered by Harley-Davidson or the Issuing Entity (or on their behalf) to the FRBNY pursuant to Section 5 of the TALF Eligibility Certification.

 

7.              Payment of Expenses, Etc.   If the transactions contemplated by this Agreement are consummated or this Agreement is terminated pursuant to Section 13, the Trust Depositor will pay all expenses incident to the performance of its obligations under this Agreement, including (i) the printing and filing of the Registration Statement as originally filed and of each amendment thereto, (ii) the printing of the Preliminary Prospectus, the Prospectus and each amendment thereto, (iii) the fees of the Trustee and its counsel, (iv) the preparation, issuance and delivery of the Offered Securities to the Underwriters, (v) the fees and disbursements of the Trust Depositor’s accountants, (vi) the qualification of the Offered Securities under securities laws in accordance with the provisions of Section 6(g), including filing fees in connection therewith, (vii) the printing and delivery to the Underwriters of copies of the Registration Statement as originally filed and of each amendment thereto, (viii) the printing and delivery to the Underwriters of copies of the Preliminary Prospectus, the Prospectus and of each amendment thereto, (ix) the printing and delivery to the Underwriters of copies of any blue sky or legal investment survey prepared in connection with the Offered Securities, (x) any fees charged by Rating Agencies for the rating of the Offered Securities, (xi) the costs and expenses (including any damages or other amounts payable in connection with legal and contractual liability) associated with reforming any Contracts for Sale of the Offered Securities made by the Underwriters caused by a Defective Prospectus or a breach of any representation in Section 1(b) or Section 1(c) and (xii) the costs and expenses associated with qualifying the TALF-Eligible Notes as Eligible Collateral.

 

8.              Conditions to the Obligation of the Underwriters .  The obligation of the Underwriters to purchase the Offered Securities shall be subject to the accuracy of the representations and warranties on the part of the Trust Depositor and Harley-Davidson contained

 

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herein at the date and time that this Agreement is executed and delivered by the parties hereto (the “Execution Time”) and the Closing Date, to the accuracy of the statements of the Trust Depositor and Harley-Davidson made in any certificates pursuant to the provisions hereof, to the performance by the Trust Depositor and Harley-Davidson of their respective obligations hereunder and to the following additional conditions:

 

(a)            If the Registration Statement has not become effective prior to the Execution Time, unless the Underwriters agree in writing to a later time, the Registration Statement shall have become effective not later than (i) 6:00 P.M. New York City time on the date of determination of the public offering price, if such determination occurs at or prior to 3:00 P.M. New York City time on such date or (ii) 12:00 noon New York City time on the business day following the day on which the public offering price was determined, if such determination occurs after 3:00 P.M. New York City time on such date.

 

(b)            Each of the Preliminary Prospectus, the Prospectus and any supplements thereto shall have been filed with the Commission in the manner and within the applicable time period required under Rule 424(b) under the Act (without reference to Rule 424(b)(8)) in accordance with the Rules and Regulations and Section 6(a) hereof, and prior to the Closing Date; no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Trust Depositor or you, shall be contemplated by the Commission or by any authority administering any state securities or blue sky law; and any requests for additional information from the Commission with respect to the Registration Statement shall have been complied with.

 

(c)            The Trust Depositor shall have furnished to the Underwriters the opinions of Winston & Strawn LLP, counsel for the Trust Depositor, and with respect to Nevada opinions, Holland & Hart LLP, special Nevada counsel, each dated the Closing Date and satisfactory in form and substance to the Underwriters, to the effect that:

 

(i)  the Trust Depositor has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Nevada, with full corporate power and authority to own its properties and conduct its business as described in the Preliminary Prospectus and the Prospectus, and is duly qualified to do business as a foreign corporation and is in good standing under the laws of the State of Illinois;

 

(ii)  each of the Transfer and Sale Agreement, the Sale and Servicing Agreement and the Trust Agreement have been duly authorized, executed and delivered by the Trust Depositor, and constitutes a legal, valid and binding obligation of the Trust Depositor enforceable against the Trust Depositor in accordance with its terms (subject, as to the enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditors’ rights generally from time to time in effect);

 

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(iii)  this Agreement has been duly authorized, executed and delivered by the Trust Depositor;

 

(iv)  the direction by the Trust Depositor to the Indenture Trustee to authenticate the Notes has been duly authorized by the Trust Depositor and, when the Notes have been duly executed and delivered by the Owner Trustee and when authenticated by the Indenture Trustee in accordance with the Indenture and delivered and paid for pursuant to this Agreement, the Notes will constitute legal, valid and binding obligations of the Trust (subject, as to enforcement of remedies, to applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting creditor’s rights generally from time to time in effect) and will be entitled to the benefits of the Indenture;

 

(v)  no consent, approval, authorization or order of, or filing with, any court or governmental agency or body is required for the consummation of the transactions contemplated herein or in the Transfer and Sale Agreement, the Sale and Servicing Agreement, and the Indenture (collectively, the “Basic Documents”), except such as may be required under the blue sky or securities laws of any jurisdiction in connection with the purchase and sale of the Offered Securities by the Underwriters, the filing of the UCC-1 financing statements relating to the conveyance of the Contracts by Harley-Davidson to the Trust Depositor and of the Contracts and the other Trust Property by the Trust Depositor to the Trust and by the Trust to the Indenture Trustee on behalf of the Noteholders, and such other approvals (which shall be specified in such opinion) as have been obtained and filings as have been made or are in the process of being made;

 

(vi)  none of the sale of the Contracts by Harley-Davidson to the Trust Depositor pursuant to the Transfer and Sale Agreement, the sale of the Trust Property to the Trust pursuant to the Sale and Servicing Agreement, the pledge of the Trust Property to the Indenture Trustee, the issue and sale of the Notes, the execution and delivery of this Agreement, the Sale and Servicing Agreement, the Transfer and Sale Agreement, the Trust Agreement or the Indenture, the consummation of any other of the transactions herein or therein contemplated or the fulfillment of the terms hereof or thereof will conflict with, result in a breach or violation of, or constitute a default under, any law binding on the Trust Depositor or the charter or bylaws of the Trust Depositor or the terms of any indenture or other agreement or instrument known to such counsel and to which the Trust Depositor is a party or by which it is bound, or any judgment, order or decree known to such counsel to be applicable to the Trust Depositor of any court, regulatory body, administrative agency, governmental body or arbitrator having jurisdiction over the Trust Depositor;

 

(vii)  there are no actions, proceedings or investigations pending or, to the best of such counsel’s knowledge after due inquiry, threatened before any court, administrative agency or other tribunal (A) asserting the invalidity of any of the Basic Documents, (B) seeking to prevent the consummation of any of the

 

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transactions contemplated by any of the Basic Documents or the execution and delivery thereof or (C) that might materially and adversely affect the performance by the Trust Depositor of its obligations under, or the validity or enforceability of, this Agreement or any Basic Document;

 

(viii)  to the best knowledge of such counsel and except as set forth in the Preliminary Prospectus and the Prospectus, no default exists and no event has occurred which, with notice, lapse of time or both, would constitute a default in the due performance and observance of any term, covenant or condition of any agreement to which the Trust Depositor is a party or by which it is bound, which default is or would have a material adverse effect on the financial condition, earnings, prospects, business or properties of the Trust Depositor, taken as a whole;

 

(ix)            the provisions of the Transfer and Sale Agreement are effective to transfer to the Trust Depositor all right, title and interest of Harley-Davidson in and to the Contracts, and to the knowledge of such counsel, the other Trust Property will be owned by the Trust Depositor free and clear of any Lien except for the Lien of the Sale and Servicing Agreement and the Indenture;

 

(x)             the provisions of the Sale and Servicing Agreement are effective to transfer to the Trust all right, title and interest of the Trust Depositor in and to the Collateral and the Contracts and to the knowledge of such counsel, the other Collateral, will be owned by the Trust free and clear of any Lien except for the Lien of the Indenture;

 

(xi)            the provisions of the Indenture are effective to create, in favor of the Indenture Trustee for the benefit of the Noteholders as security for the Trust’s obligations under the Notes, a valid security interest in the Contracts and that portion of the other Collateral which is subject to Article 9 of the Illinois Uniform Commercial Code (the “UCC Collateral”) and the proceeds thereof;

 

(xii)           the form UCC-1 financing statements naming (A) Harley-Davidson as seller and the Trust Depositor as purchaser, (B) the Trust Depositor as seller and the Trust as purchaser and (C) the Trust, as debtor, and the Indenture Trustee, as secured party are in appropriate form for filing with the Secretary of State of the State of Nevada; the interest of the Indenture Trustee in the Contracts and the proceeds thereof and, to the extent that the filing of a financing statement is effective to perfect an interest in the other Trust Property under Article 9 of the Nevada Uniform Commercial Code, the other Trust Property will be perfected upon the filing of such financing statements in such filing offices; and no other interest of any other purchaser from or creditor of Harley-Davidson, the Trust Depositor or the Trust is equal or prior to the interest of the Trustee in the Contracts and such other Trust Property;

 

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(xiii)  the Contracts are “tangible chattel paper” or “electronic chattel paper” under Article 9 of the Illinois Uniform Commercial Code and the Nevada Uniform Commercial Code;

 

(xiv)  the Basic Documents conform in all material respects with the descriptions thereof contained in the Preliminary Prospectus and the Prospectus;

 

(xv)          the statements in the Preliminary Base Prospectus and the Base Prospectus under the headings “Risk Factors” and “Legal Aspects of the Contracts”, to the extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by such counsel and are correct in all material respects;

 

(xvi)  the statements contained in the Preliminary Base Prospectus and the Base Prospectus under the headings “Description of the Notes and Indenture” and “Information Regarding the Notes” and in the Preliminary Prospectus Supplement and the Prospectus Supplement under the headings “Description of the Notes” and “Certain Information Regarding the Notes”, insofar as such statements constitute a summary of the Offered Securities and the Basic Documents, constitute a fair summary of such documents;

 

(xvii)  the Indenture has been duly qualified under the Trust Indenture Act of 1939, as amended;

 

(xviii)  the Indenture, the Sale and Servicing Agreement and the Administration Agreement have been duly authorized and, when duly executed and delivered by the Owner Trustee, will constitute the legal, valid and binding obligations of the Trust, enforceable against the Trust in accordance with their terms, except (A) th