Exhibit 10.1


 




 





 


TRANSFER AND SALE AGREEMENT


 


 


by and between


 


 


HARLEY-DAVIDSON CREDIT CORP.,


as Seller


 


 


and


 


 


HARLEY-DAVIDSON CUSTOMER FUNDING CORP.,


as Purchaser


 


Dated as of November 1, 2010


 




 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I  DEFINITION

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  GENERAL

  	
  1

  
	
   

  	
   

  	
   

  
	
  ARTICLE II TRANSFER OF CONTRACTS; ASSIGNMENT OF
  AGREEMENT

  	
  1

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  CLOSING

  	
  1

  
	
  SECTION 2.02.

  	
  CONDITIONS TO THE CLOSING

  	
  2

  
	
  SECTION 2.03.

  	
  ASSIGNMENT OF AGREEMENT

  	
  3

  
	
   

  	
   

  	
   

  
	
  ARTICLE III REPRESENTATIONS AND WARRANTIES

  	
  3

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  REPRESENTATIONS AND WARRANTIES
  REGARDING SELLER

  	
  4

  
	
  SECTION 3.02.

  	
  REPRESENTATIONS AND WARRANTIES
  REGARDING EACH CONTRACT

  	
  5

  
	
  SECTION 3.03.

  	
  REPRESENTATIONS AND WARRANTIES
  REGARDING THE CONTRACTS IN THE AGGREGATE

  	
  8

  
	
  SECTION 3.04.

  	
  REPRESENTATIONS AND WARRANTIES
  REGARDING THE CONTRACT FILES

  	
  9

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV PERFECTION OF TRANSFER AND PROTECTION OF
  SECURITY INTERESTS

  	
  9

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  CUSTODY OF CONTRACTS

  	
  9

  
	
  SECTION 4.02.

  	
  FILING

  	
  9

  
	
  SECTION 4.03.

  	
  NAME CHANGE OR RELOCATION

  	
  9

  
	
  SECTION 4.04.

  	
  COSTS AND EXPENSES

  	
  10

  
	
  SECTION 4.05

  	
  SALE TREATMENT

  	
  10

  
	
  SECTION 4.06

  	
  SEPARATENESS FROM TRUST
  DEPOSITOR

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE V REMEDIES UPON MISREPRESENTATION

  	
  10

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  REPURCHASES OF CONTRACTS FOR
  BREACH OF REPRESENTATIONS AND WARRANTIES

  	
  10

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI INDEMNITIES

  	
  11

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  SELLER INDEMNIFICATION

  	
  11

  
	
  SECTION 6.02.

  	
  LIABILITIES TO OBLIGORS

  	
  11

  
	
  SECTION 6.03.

  	
  TAX INDEMNIFICATION

  	
  11

  
	
  SECTION 6.04.

  	
  OPERATION OF INDEMNITIES

  	
  12

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII MISCELLANEOUS

  	
  12

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  PROHIBITED TRANSACTIONS WITH
  RESPECT TO THE TRUST

  	
  12

  
	
  SECTION 7.02.

  	
  MERGER OR CONSOLIDATION

  	
  12

  
	
  SECTION 7.03.

  	
  TERMINATION

  	
  12

  
	
  SECTION 7.04.

  	
  ASSIGNMENT OR DELEGATION BY
  SELLER

  	
  12

  
	
  SECTION 7.05.

  	
  AMENDMENT

  	
  13

  
	
  SECTION 7.06.

  	
  NOTICES

  	
  13

  
	
  SECTION 7.07.

  	
  MERGER AND INTEGRATION

  	
  14

  
	
  SECTION 7.08.

  	
  HEADINGS

  	
  14

  
	
  SECTION 7.09.

  	
  GOVERNING LAW

  	
  14

  
	
  SECTION 7.10.

  	
  NO BANKRUPTCY PETITION

  	
  14

  



 


i

















 


EXHIBITS


 


	
  Exhibit A

  	
  Form of Assignment

  
	
  Exhibit B

  	
  Form of Officer’s Certificate

  



 


ii

















 


THIS AGREEMENT, dated as of November 1, 2010, 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 purchase of Contract
Assets hereunder to convey all right, title and interest in such Contract
Assets to Harley-Davidson Motorcycle Trust 2010-1 (the “Trust”)
pursuant to the Sale and Servicing Agreement dated as of November 1, 2010
by and among Trust Depositor, Harley-Davidson Credit, as Servicer, the Trust,
as issuer (the “Issuer”) and The Bank of New
York Mellon Trust Company, N.A., 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 $600,000,000 (less fees and expenses in connection with the offering
and sale of the Notes and certain deposits to the Reserve Fund on the Closing
Date) in cash as the purchase price therefor, (i) all the right, title and
interest of Seller in and to the Contracts listed on the 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 Cutoff Date, including any liquidation proceeds therefrom,
but excluding any rights to receive payments which were collected pursuant
thereto on or prior to the Cutoff Date), (ii) all rights of Seller under
any theft, physical damage, credit life, disability 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), 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.  To the extent
the cash purchase price for the Contract Assets sold by the Seller to the Trust
Depositor is less than the principal balance of the Contracts as of the Cutoff
Date, the difference shall be deemed to be a capital contribution by the Seller
to the Trust Depositor.


 


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
List of Contracts, certified by the Chairman of the Board, President or any
Vice President of Seller together with an Assignment substantially in the form
attached as Exhibit A hereto.


 


(b)           A
certificate of an officer of Seller substantially in the form of Exhibit B hereto.


 


(c)           An
opinion of counsel for Seller substantially in the form of Exhibit D
to the Sale and Servicing Agreement.


 


(d)           A
letter or letters from Ernst & Young LLP, or another nationally
recognized accounting firm, addressed to Trust Depositor and the Issuer and the
Trustees and stating that such firm has reviewed a sample of the Contracts and
performed specific procedures for such sample with respect to certain contract
terms and identifying those Contracts which do not so conform.


 


2

















 


(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)           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, in proper form for filing with the appropriate office in
Nevada, as well as a UCC financing statement naming the Issuer as debtor,
naming the Indenture Trustee, as secured party and listing the Collateral as
collateral, in proper form for filing with the appropriate office in Delaware.


 


(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 Trustee and the Issuer and the Indenture Trustee may enforce
directly without joinder of Trust Depositor, the obligations of Seller set
forth herein.


 


ARTICLE III


 


REPRESENTATIONS
AND WARRANTIES


 


Seller makes the following representations and
warranties, on which Trust Depositor will rely in purchasing the Contract
Assets on the Closing 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, but shall survive the sale, transfer and assignment
of the Contracts to the Trust and the pledge of the Contracts to the Indenture
Trustee.  The repurchase obligation of
Seller set forth in Section 5.01 below and in Section 7.08 of the
Sale and Servicing Agreement constitutes the sole remedy available for a breach
of a representation or warranty of Seller set forth in Section 3.02, 3.03
or 3.04 of this Agreement.


 


3

















 


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,
that:


 


(a)           Organization and Good Standing.  Seller is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization and has the corporate power to own its assets and to transact the
business in which it is currently engaged. 
Seller is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction in which the character of the business
transacted by it or properties owned or leased by it requires such
qualification and in which the failure so to qualify would have a material
adverse effect on the business, properties, assets, or condition (financial or
otherwise) of Seller or Trust Depositor. 
Seller is properly licensed in each jurisdiction to the extent required
by the laws of such jurisdiction to service the Contracts in accordance with
the terms of the Sale and Servicing Agreement.


 


(b)           Authorization; Binding Obligation.  Seller has the power and authority to make,
execute, deliver and perform this Agreement and the other Transaction Documents
to which the Seller is a party and all of the transactions contemplated under
this Agreement and the other Transaction Documents to which the Seller is a
party, and has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement and the other Transaction Documents
to which the Seller is a party.  This
Agreement and the other Transaction Documents to which the Seller is a party
constitute the legal, valid and binding obligation of Seller enforceable in
accordance with their terms, except as enforcement of such terms may be limited
by bankruptcy, insolvency or similar laws affecting the enforcement of
creditors’ rights generally and by the availability of equitable remedies.


 


(c)           No Consent Required.  Seller is not required to obtain the consent
of any other party or any consent, license, approval or authorization from, or
registration or declaration with, any governmental authority, bureau or agency
in connection with the execution, delivery, performance, validity or
enforceability of this Agreement and the other Transaction Documents to which
the Seller is a party.


 


(d)           No Violations.  Seller’s execution, delivery and performance
of this Agreement and the other Transaction Documents to which the Seller is a
party will not violate any provision of any existing law or regulation or any
order or decree of any court or the Articles of Incorporation or Bylaws of
Seller, or constitute a material breach of any mortgage, indenture, contract or
other agreement to which Seller is a party or by which Seller or any of Seller’s
properties may be bound.


 


(e)           Litigation.  No litigation or administrative proceeding of
or before any court, tribunal or governmental body is currently pending, or to
the knowledge of Seller threatened, against Seller or any of its properties or
with respect to this Agreement or any other Transaction Document to which the
Seller is a party which, if adversely 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.  


 


4

















 


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 5.00% 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 that:


 


(a)           List of Contracts.  The information set forth in the List of
Contracts is true, complete and correct in all material respects as of the
Cutoff Date.


 


(b)           Payments.  As of the Cutoff Date, 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, the terms of the
Contracts have not been waived, altered or modified in any respect, except by
instruments or documents included in the related Contract File.


 


(d)           Binding Obligation.  Each Contract is a legal, valid and binding
payment obligation of the Obligor thereunder and is enforceable in accordance
with its terms, except as such enforceability may be limited by insolvency,
bankruptcy, moratorium, reorganization, or other similar laws affecting the
enforcement of creditors’ rights generally.


 


(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 


 


5

















 


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, 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.


 


(j)            Contract in Force.  As of the Closing Date, no Contract has been
satisfied or subordinated in whole or in part or rescinded, and the related
Motorcycle securing any Contract has not been released from the lien of the
Contract in whole or in part.


 


(k)           Valid Security Interest.  Each Contract creates a valid, subsisting and
enforceable first priority perfected security interest in favor of Seller or
Eaglemark Savings Bank (as the case may be) in the Motorcycle covered thereby,
and such security interest has been validly assigned by Eaglemark Savings Bank
to Seller (where applicable) and by Seller to the Trust Depositor.  Seller’s security interest has been validly
assigned by the Seller to the Trust Depositor pursuant to this Agreement and by
the Trust Depositor to the Issuer pursuant to the Sale and Servicing
Agreement.  Immediately prior to the
transfer, assignment and conveyance thereof, each Contract is secured by a
first priority, validly perfected security interest in the Motorcycle covered
thereby in favor of the Seller or Eaglemark Savings Bank as secured party or
all necessary and appropriate actions have been commenced that would result in
a first priority, validly perfected security interest in the Motorcycle covered
thereby in favor of the Seller or Eaglemark Savings Bank as secured party,
except, in each case, as to priority for any lien for taxes, labor, materials
or of any state law enforcement agency affecting a Motorcycle.


 


(l)            Good Title.  Each Contract was purchased by Seller for
value and taken into possession prior to the Cutoff Date in the ordinary course
of its business, without knowledge that the Contract was subject to a security
interest.  No Contract has been sold,
assigned or pledged to any person other than Trust Depositor and the Issuer as
the transferee of Trust Depositor, and prior to the transfer of the Contract to
Trust Depositor, Seller had good and marketable title to each Contract free and
clear of any encumbrance, equity, loan, pledge, charge, claim or security
interest and was the sole owner thereof and had full right to transfer the
Contract to Trust Depositor, and, immediately upon the transfer of each
Contract by the Seller, the Trust Depositor shall have good and marketable
title to each Contract free and clear of any encumbrance, equity, loan, pledge,
charge, claim or security interest, and, immediately upon the transfer of each
Contract by the Trust Depositor, the Issuer shall have good and marketable
title to each Contract free and clear of any encumbrance, equity, loan, pledge,
charge, claim or security interest.


 


6

















 


(m)          No Defaults.  As of the Cutoff Date, no default, breach,
violation or event permitting acceleration existed with respect to any Contract
and no event had occurred which, with notice and the expiration of any grace or
cure period, would constitute such a default, breach, violation or event
permitting acceleration under such Contract. 
Seller has not waived any such default, breach, violation or event
permitting acceleration, and Seller has not granted any extension of payment
terms on any Contract.  As of the Cutoff
Date, no Motorcycle had been repossessed.


 


(n)           No Liens.  As of the Closing Date there are, to the best
of Seller’s knowledge, no liens or claims which have been filed for work, labor
or materials affecting the Motorcycle securing any Contract which are liens
prior to, or equal with, the lien of such Contract.


 


(o)           Installments.  Each Contract has a fixed Contract Rate and
provides for monthly payments of principal and interest which, if timely made,
would fully amortize the loan on a simple-interest basis over its term.


 


(p)           Enforceability.  Each Contract contains customary and
enforceable provisions such as to render the rights and remedies of the holder
thereof adequate for the realization against the collateral of the benefits of
the security.


 


(q)           One Original.  Each Contract is evidenced by only one
original executed tangible record constituting or forming a part of each
Contract that is “tangible chattel paper” or a single “authoritative copy” of
each electronic record constituting or forming a part of each Contract that is “electronic
chattel paper,” which tangible record or “authoritative copy” is held (or, in
the case of “electronic chattel paper,” maintained) by the Servicer or its
designee, as custodian on behalf of the Issuer (quoted terms have the meaning
assigned to them in the UCC).


 


(r)            No Government Obligors.  No Obligor is the United States government or
an agency, authority, instrumentality or other political subdivision of the
United States government.


 


(s)           Lockbox Bank.  All Obligors have been instructed to make
payments to a Lockbox Account (either directly by remitting payments to a
Lockbox, or indirectly by making payments through direct debit, the telephone
or the internet to an account of the Servicer which payments will be
subsequently transferred from such account to one or more Lockbox Banks), and
no person claiming through or under Seller has any claim or interest in a
Lockbox Account other than the related Lockbox Bank; provided, however, that other Persons may have an interest in certain
other collections therein not related to the Contracts.


 


(t)            Obligor Bankruptcy.  At the Cutoff Date, no Obligor was subject to
a bankruptcy proceeding (according to the records of the Seller) within the one
year preceding the Cutoff Date.


 


(u)           Chattel Paper.  Each Contract constitutes “tangible chattel
paper” or “electronic chattel paper” within the meaning of the UCC.


 


(v)           Contract Not Assumable.  No Contract is assumable by another Person in
a manner which would release the Obligor thereof from such Obligor’s
obligations to the Trust Depositor with respect to such Contract.


 


7

















 


(w)          Selection Criteria. 
Each Contract is secured by a new or used
Motorcycle.  No Contract has a Contract
Rate less than 1.000%.  Each Contract
amortizes the amount financed over an original term no greater than 84
months.  Each Contract has a Principal
Balance of at least $500.00 as of the Cutoff Date.


 


Section 3.03.        Representations and Warranties Regarding the Contracts in the
Aggregate.  Seller represents and warrants, as of the
execution and delivery of this Agreement and as of the Closing Date, that:


 


(a)           Amounts.  The sum of the aggregate Principal Balances
payable by Obligors under the Contracts as of the Cutoff Date equals or exceeds
the sum of the principal balance of  the
Notes on the Closing Date.


 


(b)           Characteristics.  The Contracts have the following
characteristics: (i) all the Contracts are secured by Motorcycles; (ii) no
Contract has a remaining maturity of more than 84 months; and (iii) the
final scheduled payment on the Contract with the latest maturity is due no
later than September 25, 2017. 
Approximately 68.35% of the Principal Balance of the Contracts as of the
Cutoff Date is attributable to loans for purchases of new Motorcycles and
approximately 31.65% is attributable to loans for purchases of used
Motorcycles.  No Contract was originated
after the Cutoff Date.  Approximately
98.91% of the Principal Balance of the Contracts as of the Cutoff Date is
attributable to loans for purchases of Motorcycles manufactured by
Harley-Davidson, approximately 0.43% of the Principal Balance of the Contracts
as of the Cutoff Date is attributable to loans to purchase Motorcycles
manufactured by Buell and approximately 0.67% of the Principal Balance of the
Contracts as of the Cutoff Date is attributable to loans to purchase
Motorcycles not manufactured by Harley-Davidson or Buell.


 


(c)           Marking Records.  As of the Closing Date, Seller has caused the
Computer File relating to the Contracts sold hereunder and concurrently
reconveyed by Trust Depositor to the Trust and pledged by the Trust to the
Indenture Trustee to be clearly and unambiguously marked to indicate that such
Contracts constitute part of the Trust, are owned by the Trust and constitute
security for the Notes.


 


(d)           No Adverse Selection.  No selection procedures adverse to
Noteholders have been employed in selecting the Contracts.


 


(e)           True Sale.  The transactions contemplated by this
Agreement and the Sale and Servicing Agreement constitute valid sales,
transfers and assignments from Seller to Trust Depositor and from Trust
Depositor to the Trust of all of Seller’s right, title and interest in the
Contract Assets as of the Closing Date.


 


(f)            All Filings Made.  All filings (including, without limitation,
UCC filings) required to be made by any Person and actions required to be taken
or performed by any Person in any jurisdiction to give the Indenture Trustee a
first priority perfected lien on, or ownership interest in, the Contracts and
the proceeds thereof and the rest of the Trust Corpus have been made, taken or
performed.


 


(g)           Delta Loans.  No more than 11.00% of the Principal Balance
of the Contracts as of the Cutoff Date is attributable to Delta Loans.


 


8
















 


Section 3.04.        Representations and Warranties Regarding the Contract Files.  Seller represents and warrants
as of the execution and delivery of this Agreement and as of the Closing Date
that:


 


(a)           Possession.  Immediately prior to the Closing Date, the
Servicer, or its custodian, will have possession of each original Contract and
the related complete Contract File.  Each
of such documents which is required to be signed by the Obligor has been signed
by the Obligor in the appropriate spaces. 
All blanks on any form have been properly filled in and each form has
otherwise been correctly prepared.  The
complete Contract File for each Contract currently is in the possession of the
Servicer or its custodian.


 


(b)           Bulk Transfer Laws.  The transfer, assignment and conveyance of
the Contracts and the Contract Files by Seller pursuant to this Agreement and
by Trust Depositor pursuant to the Sale and Servicing Agreement is not subject
to the bulk transfer or any similar statutory provisions in effect in any
applicable jurisdiction.


 


ARTICLE IV


 


PERFECTION
OF TRANSFER AND PROTECTION OF SECURITY INTERESTS


 


Section 4.01.        Custody of Contracts.  The contents of each Contract File shall be
held by the Servicer, or its custodian, for the benefit of the Trust as the
owner thereof in accordance with the Sale and Servicing Agreement.


 


Section 4.02.        Filing.  On or prior to the Closing Date, Seller shall
cause the UCC financing statement(s) referred to in Section 2.02(g) hereof
and in Section 2.02(g) of the Sale and Servicing Agreement to be
filed and from time to time Seller shall take and cause to be taken such
actions and execute such documents as are necessary or desirable or as Trust
Depositor or the Trust may reasonably request to perfect and protect the Trust
Depositor’s and the Trust’s ownership interest in the Contract Assets against
all other persons, including, without limitation, the filing of financing
statements, amendments thereto and continuation statements, the execution of
transfer instruments and the making of notations on or taking possession of all
records or documents of title.  The
Seller authorizes the Trust Depositor to file financing statements describing
the Contract Assets as collateral.  All
financing statements filed or to be filed against the Seller in favor of the
Trust Depositor or the Trust in connection herewith describing the Contract
Assets as collateral shall contain a statement to the following effect: “A
purchase of or security interest in any collateral described in this financing
statement, except as permitted in the Transfer and Sale Agreement or Sale and
Servicing Agreement, will violate the rights of the Secured Party.”


 


Section 4.03.        Name Change or Relocation.  (a) During the term of this Agreement,
Seller shall not change its name, identity or structure or state of
incorporation without first giving at least 30 days’ prior written notice to
Trust Depositor and to the Trustees.


 


(b)           If
any change in Seller’s name, identity or structure or other action would make
any financing or continuation statement or notice of ownership interest or lien
filed under this Agreement seriously misleading within the meaning of
applicable provisions of the UCC or any title statute, Seller, no later than
five days after the effective date of such change, shall file such amendments
as may be required to preserve and protect the Trust Depositor’s and the Trust’s
interests in the Contract Assets and proceeds thereof.  In addition, Seller shall not change its
state of incorporation unless it has first taken 


 


9

















 


such action as is advisable or necessary to preserve
and protect the Trust Depositor’s and the Trusts’ interest in the Contract
Assets.  Promptly after taking any of the
foregoing actions, Seller shall deliver to Trust Depositor and the Trustees an
opinion of counsel stating that, in the opinion of such counsel, all financing
statements or amendments necessary to preserve and protect the interests of the
Trust Depositor and the Trust in the Contract Assets have been filed, and
reciting the details of such filing.


 


Section 4.04.        Costs and Expenses.  Seller agrees to pay all reasonable costs and
disbursements in connection with the perfection and the maintenance of
perfection, as against all third parties, of (i) Trust Depositor’s, the
Issuer’s and the Indenture Trustee’s right, title and interest in and to the
Contract Assets (including, without limitation, the security interest in the
Motorcycles related thereto) and (ii) the security interests provided for
in the Indenture.


 


Section 4.05         Sale Treatment.  Each of Seller and Trust Depositor shall
treat the transfer of Contract Assets to the Trust Depositor as a sale or
capital contribution for all purposes, although the Seller and the Trust
Depositor acknowledge that the consolidated financial statements of the Seller
and the Trust Depositor shall be prepared in accordance with generally accepted
accounting principles and, as a result of the consolidation required by
generally accepted accounting principles, the transfers will be reflected as a
financing by the Seller in its consolidated financial statements; provided,
however, that (i) appropriate notations shall be made in any such
consolidated financial statements (or in the accompanying notes) to indicate
that the Trust Depositor is a separate legal entity from the Seller and to
indicate that the Trust Depositor’s assets and credit are not available to
satisfy the debts and other obligations of the Seller, (ii) such assets
shall also be listed separately on any balance sheet of the Trust Depositor
prepared on a stand alone basis, and (iii) following the occurrence of any
bankruptcy, insolvency or similar event in respect of the Seller, the Contracts
and Contract Assets purportedly conveyed to the Trust Depositor hereunder would
not constitute part of the Seller’s estate in bankruptcy.


 


Section 4.06         Separateness from Trust Depositor.  The Seller agrees to take or refrain from
taking or engaging in with respect to the Trust Depositor each of the actions
or activities specified in the “substantive consolidation” opinion of Winston &
Strawn LLP (or in any related certificate of Seller) delivered on the Closing
Date, upon which the conclusions expressed therein are based.


 


ARTICLE V


 


REMEDIES
UPON MISREPRESENTATION


 


Section 5.01.        Repurchases of Contracts for Breach of Representations and Warranties.  Seller hereby agrees, for the
benefit of the Issuer, the Indenture Trustee and the Trust Depositor, that it
shall repurchase a Contract (together with all related Contract Assets), at its
Repurchase Price, not later than two Business Days prior to the first
Distribution Date after the last day of the calendar month in which the Seller
becomes aware or receives written notice from Trust Depositor, either of the
Trustees or the Servicer of any breach of a representation or warranty of
Seller set forth in Article III of this Agreement that materially
adversely affects Trust Depositor’s or the Trust’s interest in such Contract
(without regard to the benefits of the Reserve Fund) and which breach has not
been cured; provided, however, that with respect to
any Contract described on the List of Contracts with respect to an incorrect
unpaid Principal Balance which Seller would otherwise be required to repurchase
pursuant to this Section 5.01 and Section 7.08 of the Sale and
Servicing Agreement, Seller may, in lieu of repurchasing such Contract, deposit
in the Collection Account not later than one Business Day prior to such
Distribution Date cash in an amount sufficient to cure any deficiency or
discrepancy; and provided further that with
respect to a breach of a 


 


10

















 


representation or warranty relating to the Contracts
in the aggregate and not to any particular Contract, Seller may select Contracts
(without adverse selection) to repurchase such that had such Contracts not been
reconveyed by Trust Depositor and included as part of the Trust there would
have been no breach of such representation or warranty; provided
further that the failure to maintain perfection of the security
interest in the Motorcycle securing a Contract in accordance with the Sale and
Servicing Agreement, shall be deemed to be a breach materially and adversely
affecting the Trust’s interest in the Contracts or in the related Contract
Assets.  Notwithstanding any other
provision of this Agreement, the obligation of Seller under this Section 5.01
and under Section 7.08 of the Sale and Servicing Agreement shall not
terminate upon a Service Transfer pursuant to Article VIII of the Sale and
Servicing Agreement.


 


ARTICLE VI


 


INDEMNITIES


 


Section 6.01.        Seller Indemnification.  Seller will defend and indemnify Trust
Depositor, the Trust, the Trustees, any agents of the Trustees and the
Noteholders against any and all costs, expenses, losses, damages, claims and
liabilities, joint or several, including reasonable fees and expenses of
counsel and expenses of litigation arising out of or resulting from (i) this
Agreement or the use, ownership or operation of any Motorcycle by Seller or the
Servicer or any Affiliate of either, (ii) any representation or warranty
or covenant made by Seller in this Agreement being untrue or incorrect (subject
to the second sentence of the preamble to Article III of this Agreement
above), and (iii) any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus or in any amendment thereto or the
omission or alleged omission to state therein a material fact necessary to make
the statements therein, in light of the circumstances in which they were made,
not misleading, in each case to the extent, but only to the extent, that such
untrue statement or alleged untrue statement was made in conformity with
information furnished to Trust Depositor by Seller specifically for use
therein.  Notwithstanding any other
provision of this Agreement, the obligation of Seller under this Section 6.01
shall not terminate upon a Service Transfer pursuant to Article VIII of
the Sale and Servicing Agreement and shall survive any termination of that
agreement or this Agreement.


 


Section 6.02.        Liabilities to Obligors.  No obligation or liability to any Obligor under any of the Contracts is
intended to be assumed by the Trustees, the Trust or the Noteholders under or
as a result of this Agreement and the transactions contemplated hereby.


 


Section 6.03.        Tax Indemnification.  Seller covenants and agrees to pay, and to
indemnify, defend and hold harmless the Trust Depositor, the Trust, the
Trustees or the Noteholders from, any taxes that may at any time be asserted
against any such Person as a result of or relating to the transactions
contemplated herein and in the other Transaction Documents, including any
sales, gross receipts, gross margin, general corporation, tangible personal
property, Illinois personal property replacement privilege or license
taxes (but not including any federal, state or other taxes arising out of the
creation of the Trust and the issuance of the Notes) and costs, expenses and
reasonable counsel fees in defending against the same, whether arising by
reason of the acts to be performed by Seller under this Agreement or the
Servicer under the Sale and Servicing Agreement or imposed against the Trust
Depositor, the Trust, a Noteholder or otherwise.  Notwithstanding any other provision of this Agreement,
the obligation of Seller under this Section 6.03 shall not terminate upon
a Service Transfer pursuant to Article VIII of the Sale and Servicing
Agreement and shall survive any termination of this Agreement.


 


11

















 


Section 6.04.        Operation of Indemnities.  Indemnification under this Article VI
shall include, without limitation, reasonable fees and expenses of counsel and
expenses of litigation.  If Seller has
made any indemnity payments to Trust Depositor or the Trustees pursuant to this
Article VI and Trust Depositor or the Trustees thereafter collects any of
such amounts from others, Trust Depositor or the Trustees will repay such
amounts collected to Seller, except that any payments received by Trust Depositor
or the Trustees from an insurance provider as a result of the events under
which the Seller’s indemnity payments arose shall be repaid prior to any
repayment of the Seller’s indemnity payment.


 


ARTICLE VII


 


MISCELLANEOUS


 


Section 7.01.        Prohibited Transactions with Respect to the Trust.  Seller shall not:


 


(a)           Provide credit to any Noteholder for the purpose of enabling such
Noteholder to purchase Notes;


 


(b)           Purchase any Notes in an agency or trustee capacity; or


 


(c)           Except in its capacity as Servicer as provided in the Sale and Servicing
Agreement, lend any money to the Trust.


 


Section 7.02.        Merger or Consolidation.  (a) Except as otherwise provided in this
Section 7.02, Seller will keep in full force and effect its existence,
rights and franchises as a Nevada corporation, and will obtain and preserve its
qualification to do business as a foreign corporation in each jurisdiction in
which such qualification is or shall be necessary to protect the validity and
enforceability of this Agreement and of any of the Contracts and to perform its
duties under this Agreement.


 


(b)           Any
person into which Seller may be merged or consolidated, or any corporation  or other entity resulting from such merger or
consolidation to which Seller is a party, or any person succeeding to the
business of Seller, shall be the successor to Seller hereunder, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.


 


(c)           Upon
the merger or consolidation of the Seller as described in this Section 7.02,
the Seller shall provide the Rating Agencies notice of such merger or
consolidation within thirty (30) days after completion of the same.


 


Section 7.03.        Termination.  This Agreement shall terminate (after
distribution of any Note Distributable Amount due pursuant to Section 7.05
of the Sale and Servicing Agreement) on the Distribution Date on which the
principal balance of the Notes is reduced to zero; provided,
that Seller’s representations and warranties and indemnities by Seller shall
survive termination.


 


Section 7.04.        Assignment or Delegation by Seller.  Except as specifically authorized hereunder,
Seller may not convey and assign or delegate any of its rights or obligations
hereunder absent the prior 


 


12

















 


written consent of Trust Depositor and the Trustees,
and any attempt to do so without such consent shall be void.


 


Section 7.05.        Amendment.  (a) This Agreement may be amended from
time to time by Seller and Trust Depositor, with notice to the Rating Agencies,
but without the consent of the Trustees or any of the Noteholders to correct
manifest error, to cure any ambiguity, to correct or supplement any provisions
herein or therein which may be inconsistent with any other provisions herein,
therein or in the Prospectus, as the case may be, or to add any other
provisions with respect to matters or questions arising under this Agreement
which shall not be inconsistent with the provisions of this Agreement or the
Prospectus; provided, however, that such action
shall not, as evidenced by an Opinion of Counsel for Seller acceptable to the
Trustees, adversely affect the interests of any Noteholder.


 


(b)           This
Agreement may also be amended from time to time by Seller and Trust Depositor,
with the consent of the Required Holders, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Agreement or of modifying in any manner the rights of the Indenture
Trustee for the benefit of Noteholders; provided, however,
that no such amendment or waiver shall (a) reduce in any manner the amount
of, or delay the timing of, collections of payments on the Contracts or
distributions which are required to be made on any Note or (b) reduce the
aforesaid percentage required to consent to any such amendment, without the
consent of the holders of all Notes then outstanding.


 


(c)           Promptly
after the execution of any amendment or consent pursuant to this Section 7.05,
Trust Depositor shall furnish written notification of the substance of such
amendment and a copy of such amendment to each Trustee and each Rating Agency.


 


(d)           It
shall not be necessary for the consent of Noteholders under this Section 7.05
to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent shall approve the substance thereof.  The manner of obtaining such consents and of
evidencing the authorization of the execution thereof by Noteholders shall be
subject to such reasonable requirements as the Trustees may prescribe.


 


(e)           Upon
the execution of any amendment or consent pursuant to this Section 7.05,
this Agreement shall be modified in accordance therewith, and such amendment or
consent shall form a part of this Agreement for all purposes, and every holder
of Notes theretofore or thereafter issued hereunder shall be bound thereby.


 


Section 7.06.        Notices.  All notices, demands, certificates, requests and communications
hereunder (“notices”) shall be in writing and shall be effective (a) upon
receipt when sent through the U.S. mails, registered or certified mail, return
receipt requested, postage prepaid, with such receipt to be effective the date
of delivery indicated on the return receipt, or (b) one Business Day after
delivery to an overnight courier, or (c) on the date personally delivered
to an Authorized Officer of the party to which sent, or (d) on the date
transmitted by legible telecopier transmission with a confirmation of receipt,
in all cases addressed to the recipient at the address for such recipient set
forth in the Sale and Servicing Agreement.


 


Each party hereto may, by notice given in accordance
herewith to each of the other parties hereto, designate any further or
different address to which subsequent notices shall be sent.


 


13

















 


All communications and notices pursuant hereto to
Noteholders shall be in writing and delivered or mailed at the address shown in
the Note Register.


 


Section 7.07.        Merger and Integration.  Except as specifically stated otherwise
herein, this Agreement sets forth the entire understanding of the parties
relating to the subject matter hereof, and all prior understandings, written or
oral, are superseded by this Agreement. 
This Agreement may not be modified, amended, waived, or supplemented
except as provided herein.


 


Section 7.08.        Headings.  The headings herein are for purposes of
reference only and shall not otherwise affect the meaning or interpretation of
any provision hereof.


 


Section 7.09.        Governing Law.  This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
Illinois.


 


Section 7.10.        No Bankruptcy Petition.  The Seller covenants and agrees that, prior
to the date that is one year and one day after the payment in full of all
amounts owing in respect of all outstanding Securities, as well as any other
amounts distributable or payable from the Trust Estate, together with any other
amounts owing in respect of obligations of the Trust Depositor, it will not
institute against, or solicit or join in or cooperate with or encourage any
Person to institute against, the Trust Depositor or the Trust, any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings or other
similar proceedings under the laws of the United States or any State of the
United States.  This Section 7.10
shall survive termination of this Agreement.


 


[signature page follows]


 


14

















 


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized as of the date first written
above.


 


 


	
   

  	
  HARLEY-DAVIDSON CUSTOMER FUNDING CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Printed Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HARLEY-DAVIDSON CREDIT CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
  Printed Name:

  
	
   

  	
   

  	
   

  	
  Title:

  
					



 


Signature
Page to Transfer and Sale Agreement


 

















 


Exhibit A


Transfer
and Sale


Agreement


 


FORM OF ASSIGNMENT


 


In accordance with the Transfer and Sale Agreement
(the “Agreement”) dated as of November 1,
2010 made by and between the undersigned, as seller thereunder (“Seller”), and Harley-Davidson Customer Funding Corp., a
Nevada corporation and wholly-owned subsidiary of Seller (“Trust
Depositor”), as purchaser thereunder, the undersigned does hereby
sell, transfer, convey and assign, set over and otherwise convey to Trust
Depositor (i) all the right, title and interest of Seller in and to the
Contracts listed on the 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 Cutoff Date,
including any liquidation proceeds therefrom, but excluding any rights to
receive payments which were collected pursuant thereto on or prior to the
Cutoff Date), (ii) all rights of Seller under any theft, physical damage,
credit life, disability 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


 


This Assignment is made pursuant to and in reliance
upon the representation and warranties on the part of the undersigned contained
in Article III of the Agreement and no others.


 


Capitalized terms used herein but not otherwise defined
shall have the meanings assigned to such terms in the Sale and Servicing
Agreement dated as of November 1, 2010 made by and among the undersigned,
as servicer, the Trust Depositor, Harley-Davidson Motorcycle Trust 2010-1, as
issuer, and The Bank of New York Mellon Trust Company, N.A., as indenture
trustee.


 


A-1

















 


IN WITNESS WHEREOF, the undersigned has caused this
Assignment to be duly executed this
[          ] day of
                            .


 


 


	
   

  	
  HARLEY-DAVIDSON CREDIT CORP.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Printed Name:

  
	
   

  	
   

  	
  Title:

  



 


A-2

















 


Exhibit B


Transfer
and Sale


Agreement


 


FORM OF OFFICER’S
CERTIFICATE


 


(See Exhibit C to the Sale and Servicing
Agreement)