EXHIBIT
10.34


 




 


 





TRANSFER AND SALE
AGREEMENT


 


by and between


 


HARLEY-DAVIDSON
CREDIT CORP.,


as Seller


 


and


 


HARLEY-DAVIDSON
CUSTOMER FUNDING CORP.,


 


as Purchaser


 


Dated as of May 1,
2004


 




 





 

















 


TABLE OF CONTENTS


 


	
  ARTICLE I  DEFINITION

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 1.01.

  	
  GENERAL.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE II TRANSFER OF CONTRACTS;
  ASSIGNMENT OF AGREEMENT

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 2.01.

  	
  CLOSING.

  	
   

  
	
  SECTION 2.02.

  	
  CONDITIONS TO THE CLOSING.

  	
   

  
	
  SECTION 2.03.

  	
  ASSIGNMENT OF AGREEMENT.

  	
   

  
	
  SECTION 2.04.

  	
  SUBSEQUENT CONTRACTS.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III REPRESENTATIONS AND
  WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 3.01.

  	
  REPRESENTATIONS
  AND WARRANTIES REGARDING SELLER.

  	
   

  
	
  SECTION 3.02.

  	
  REPRESENTATIONS
  AND WARRANTIES REGARDING EACH CONTRACT.

  	
   

  
	
  SECTION 3.03.

  	
  REPRESENTATIONS
  AND WARRANTIES REGARDING THE CONTRACTS IN THE AGGREGATE.

  	
   

  
	
  SECTION 3.04.

  	
  REPRESENTATIONS
  AND WARRANTIES REGARDING THE CONTRACT FILES.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV PERFECTION OF TRANSFER AND
  PROTECTION OF SECURITY INTERESTS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 4.01.

  	
  CUSTODY OF CONTRACTS.

  	
   

  
	
  SECTION 4.02.

  	
  FILING.

  	
   

  
	
  SECTION 4.03.

  	
  NAME CHANGE OR RELOCATION.

  	
   

  
	
  SECTION 4.04.

  	
  COSTS AND EXPENSES

  	
   

  
	
  SECTION 4.05

  	
  SALE TREATMENT

  	
   

  
	
  SECTION 4.06

  	
  SEPARATENESS FROM
  TRUST DEPOSITOR

  	
   

  
	
  SECTION 4.07

  	
  PROTECTION OF SECURITY
  INTERESTS

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V REMEDIES UPON
  MISREPRESENTATION

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 5.01.

  	
  REPURCHASES
  OF CONTRACTS FOR BREACH OF REPRESENTATIONS AND WARRANTIES.

  	
   

  
	
  SECTION 5.02.

  	
  SELLER’S REPURCHASE OPTION.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI INDEMNITIES

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 6.01.

  	
  SELLER INDEMNIFICATION.

  	
   

  
	
  SECTION 6.02.

  	
  LIABILITIES TO OBLIGORS.

  	
   

  
	
  SECTION 6.03.

  	
  TAX INDEMNIFICATION

  	
   

  
	
  SECTION 6.04.

  	
  OPERATION OF INDEMNITIES.

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VII MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  SECTION 7.01.

  	
  PROHIBITED
  TRANSACTIONS WITH RESPECT TO THE TRUST

  	
   

  
	
  SECTION 7.02.

  	
  MERGER OR CONSOLIDATION.

  	
   

  
	
  SECTION 7.03.

  	
  TERMINATION.

  	
   

  
	
  SECTION 7.04.

  	
  ASSIGNMENT OR
  DELEGATION BY SELLER.

  	
   

  
	
  SECTION 7.05.

  	
  AMENDMENT.

  	
   

  
	
  SECTION 7.06.

  	
  NOTICES.

  	
   

  
	
  SECTION 7.07.

  	
  MERGER AND INTEGRATION.

  	
   

  
	
  SECTION 7.08.

  	
  HEADINGS.

  	
   

  
	
  SECTION 7.09.

  	
  GOVERNING LAW.

  	
   

  



 


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  EXHIBITS

  	
   

  
	
   

  	
   

  	
   

  
	
  Exhibit A

  	
  Form of Assignment

  	
   

  
	
  Exhibit B

  	
  Form of Officer’s Certificate

  	
   

  
	
  Exhibit C

  	
  Form of Subsequent Purchase Agreement

  	
   

  



 


 


ii

















 


THIS AGREEMENT, dated as of May 1, 2004, is made by and
between Harley-Davidson Credit Corp., a Nevada corporation, as seller hereunder
(together with its successors and assigns “Harley-Davidson Credit” or “Seller”),
and Harley-Davidson Customer Funding Corp., a Nevada corporation and
wholly-owned subsidiary of Seller (together with its successors and assigns “Trust
Depositor”), as purchaser hereunder.


 


WHEREAS, in the regular course of its business,
Seller purchases and services (i) motorcycle conditional sales contracts from
Harley-Davidson motorcycle retailers and (ii) motorcycle promissory note and
security agreements from Eaglemark Savings Bank, each of which contracts
provides for installment payment obligations by or on behalf of the retailer’s
customer/purchaser and grants a security interest in the related motorcycle in order
to secure such obligations;


 


WHEREAS, Seller and Trust Depositor wish to set
forth the terms and conditions pursuant to which Trust Depositor will acquire
from time to time the “Contract Assets,” as hereinafter defined;
and


 


WHEREAS, Trust Depositor intends concurrently
with its purchases from time to time of Contract Assets hereunder to convey all
right, title and interest in such Contract Assets to Harley-Davidson Motorcycle
Trust 2004-2 (the “Trust”) pursuant to the Sale and Servicing
Agreement dated as of May 1, 2004 by and among Trust Depositor, Harley-Davidson
Credit, as Servicer, the Trust, as issuer (the “Issuer”) and BNY Midwest
Trust Company, 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 $388,240,349.60 in cash as the
purchase price therefor, (i) all the right, title and interest of Seller in and
to the Initial Contracts 


 

















 


listed on the initial List of Contracts in effect on the Closing Date
(including, without limitation, all security interests and all rights to receive
payments which are collected pursuant thereto after the Initial Cutoff Date,
including any liquidation proceeds therefrom, but excluding any rights to
receive payments which were collected pursuant thereto on or prior to the
Initial Cutoff Date), (ii) all rights of Seller under any physical damage or
other individual insurance policy (including a “forced placed” policy, if
any), any debt insurance policy or any debt cancellation agreement relating to
any such Contract, an Obligor or a Motorcycle securing such Contract, (iii) all
security interests in each such Motorcycle, (iv) all documents contained in the
related Contract Files, (v) all rights of Seller in the Lockbox, Lockbox
Account and related Lockbox Agreement to the extent they relate to the Contracts,
(vi) all rights (but not the obligations) of the Seller under any motorcycle
dealer agreements between the dealers (i.e. originators of certain Contracts)
and the Seller, (vii) all rights of Seller to certain rebates of premiums and
other amounts relating to insurance policies, debt cancellation agreements,
extended service contracts or other repair agreements and other items financed
under such Contracts and (viii) all proceeds and products of the foregoing
(items (i) - (viii), together with the additional assets referred to in
Section 2.04 below which may be transferred from time to time in respect
of Subsequent Contracts, being collectively referred to herein as the “Contract
Assets”).  Although Seller
and Trust Depositor agree that any such transfer is intended to be a sale of
ownership in the Contract Assets, rather than the mere granting of a security
interest to secure a borrowing, in the event such transfer is deemed to be of a
mere security interest to secure indebtedness, Seller shall be deemed to have
granted Trust Depositor a perfected first priority security interest in such
Contract Assets and this Agreement shall constitute a security agreement under
applicable law.  If such transfer is
deemed to be the mere granting of a security interest to secure a borrowing,
Trust Depositor may, to secure Trust Depositor’s own borrowing under the Sale
and Servicing Agreement (to the extent that the transfer of the Contract Assets
thereunder is deemed to be a mere granting of a security interest to secure a
borrowing) repledge and reassign (i) all or a portion of the Contract Assets
pledged to Trust Depositor and not released from the security interest of this
Agreement at the time of such pledge and assignment, and (ii) all proceeds
thereof.  Such repledge and reassignment
may be made by Trust Depositor with or without a repledge and reassignment by
Trust Depositor of its rights under this Agreement, and without further notice
to or acknowledgment from Seller.  Seller
waives, to the extent permitted by applicable law, all claims, causes of action
and remedies, whether legal or equitable (including any right of setoff),
against Trust Depositor or any assignee of Trust Depositor relating to such
action by Trust Depositor in connection with the transactions contemplated by
the Sale and Servicing Agreement.


 


Section 2.02.                         Conditions to the Closing.  On or before
the Closing Date, Seller shall deliver or cause to be delivered to Trust
Depositor each of the documents, certificates and other items as follows:


 


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


 


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


 


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


 


(d)                                 A
letter or letters from 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 Initial Contracts and
performed specific procedures for such sample with respect to certain contract
terms and identifying those Initial Contracts which do not so conform.


 


(e)                                  Copies
of resolutions of the Board of Directors of Seller or of the Executive
Committee of the Board of Directors of Seller approving the execution, delivery
and performance of this Agreement and the transactions contemplated hereunder,
certified in each case by the Secretary or an Assistant Secretary of Seller.


 


(f)                                    Officially
certified recent evidence of due incorporation and good standing of Seller
under the laws of Nevada.


 


(g)                                 Evidence
of proper filing with the appropriate office in Nevada of a UCC financing
statement naming Seller as debtor, naming Trust Depositor as assignor secured
party and the Issuer as secured party, and listing the Contract Assets as
collateral as well as evidence of proper filing with the appropriate office in
Delaware of a UCC financing statement naming the Issuer as debtor, naming the
Indenture Trustee, as secured party, and listing the Contract Assets as
collateral.


 


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


 


(i)                                     The
documents, certificates and other items described in Section 2.02 of the
Sale and Servicing Agreement, to the extent not already described above.


 


Section 2.03.                         Assignment of Agreement.  Trust
Depositor has the right to assign its interest under this Agreement to the
Issuer as may be required to effect the purposes of the Sale and Servicing
Agreement, without further notice to, or consent of, Seller, and the Issuer
shall succeed to such of the rights of Trust Depositor hereunder as shall be so
assigned.  Seller acknowledges that,
pursuant to the Sale and Servicing Agreement, Trust Depositor will assign all
of its right, title and interest in and to the Contract Assets and its right to
exercise the remedies created by Section 5.01 hereof for breaches of
representations and warranties of Seller contained in Sections 3.01, 3.02, 3.03
and 3.04 hereof to the Issuer and the Indenture Trustee for the benefit of the
Noteholders.  Seller agrees that, upon
such assignment to the Issuer and the Indenture Trustee, such representations
will run to and be for the benefit of the Issuer and the Indenture 


 


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


 


Section 2.04.                         Subsequent Contracts.  (a) Subject
to and upon the terms and conditions set forth in paragraph (b) below and in
the related Subsequent Purchase Agreement, Seller hereby agrees to sell, transfer,
assign, set over and otherwise convey to Trust Depositor, in consideration of
Trust Depositor’s payment on the related Subsequent Transfer Date of the
purchase price therefor (as set forth in the related Subsequent Purchase
Agreement), and Trust Depositor hereby agrees to purchase, (i) all the right,
title and interest of Seller in and to the Subsequent Contracts listed on the
related Subsequent List of Contracts (including, without limitation, all
security interests and all rights to receive payments which are collected
pursuant thereto after the applicable Subsequent Cutoff Date, including any
liquidation proceeds therefrom, but excluding any rights to receive payments
which were collected pursuant thereto on or prior to such Subsequent Cutoff
Date), (ii) all rights of Seller under any physical damage or other individual
insurance policy (including a “forced placed” policy, if any), any debt
insurance policy or any debt cancellation agreement relating to any such
Subsequent Contract , an Obligor or a Motorcycle securing such Subsequent
Contract, (iii) all security interests in each such Motorcycle, (iv) all
documents contained in the related Contract Files, (v) all rights of Seller in
the Lockbox, Lockbox Account and related Lockbox Agreement to the extent they
relate to the Subsequent Contracts, (vi) all rights (but not the obligations)
of the Seller under any motorcycle dealer agreements between the dealers (i.e.
originators of certain Subsequent Contracts) and the Seller, (vii) all rights
of Seller to certain rebates of premiums and other amounts relating to
insurance policies, debt cancellation agreements, extended service contracts or
other repair agreements and other items financed under such Subsequent
Contracts and (viii) all proceeds and products of the foregoing (items (i) -
(viii), upon consummation of any above-described purchase, becoming part of the
“Contract
Assets”).  Seller agrees,
subject to the terms and conditions herein applicable to transfers of
Subsequent Contracts, to sell an aggregate Principal Balance of Subsequent
Contracts at or prior to the end of the Funding Period equal to the Pre-Funded
Amount on the Closing Date.


 


(b)                                 Seller shall transfer to Trust Depositor,
and Trust Depositor shall purchase, the Subsequent Contracts and related assets
to be transferred on any Subsequent Transfer Date only upon the satisfaction of
each of the following conditions on or prior to the Subsequent Transfer Date:


 


(i)                                     The
Seller shall have provided the Trustees, the Underwriters and the Rating Agencies
with a timely Addition Notice and shall have provided any information
reasonably requested by any of the foregoing with respect to the Subsequent
Contracts;


 


(ii)                                  the
Funding Period shall not have terminated;


 


(iii)                               the
Seller shall have delivered to the Trust Depositor a duly executed Purchase
Agreement in substantially the form of Exhibit C hereto (the “Subsequent
Purchase Agreement”), which shall include a Subsequent List of
Contracts listing the Subsequent Contracts being purchased;


 


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(iv)                              as
of each Subsequent Transfer Date, neither the Seller nor the Trust Depositor
was insolvent nor will either of them have been made insolvent by such transfer
nor is either of them aware of any pending insolvency;


 


(v)                                 each
Rating Agency shall have notified the Trust Depositor and the Trustees that
following such transfer, and the transfer immediately thereafter of the
Subsequent Contracts to the Trust, the Class A-1 Notes and the Class A-2 Notes
will be rated in the highest rating category by such Rating Agency and the
Class B Notes will be rated at least “A” by Standard & Poor’s and “A2” by
Moody’s;


 


(vi)                              such
addition will not result in a material adverse tax consequence to the Issuer or
the Noteholders as evidenced by an Opinion of Counsel to be delivered by the
Seller to the Issuer, the Trustees, and the Underwriters;


 


(vii)                           the
Seller shall have delivered to the Rating Agencies and to the Underwriters one
or more opinions of counsel (or bring-downs of opinions of counsel delivered on
the Closing Date) with respect to the transfer of the Subsequent Contracts
substantially in the form of the opinions of counsel delivered to such Persons
on the Closing Date;


 


(viii)                        the Seller
shall have taken any action necessary to maintain the first perfected ownership
interest of the Trust in the Trust Corpus and the first perfected security
interest of the Trust Depositor in the Contract Assets, the Trust in the Trust
Corpus and the Indenture Trustee in the Reserve Fund Deposits; and


 


(ix)                                no
selection procedures believed by the Seller to be adverse to the interests of
the Noteholders shall have been utilized in selecting the Subsequent Contracts.


 


(c)                                  Seller agrees to pay all reasonable
out-of-pocket expenses in connection with any request for the conveyance of
Subsequent Contracts, whether or not such conveyance is actually consummated.


 


ARTICLE III


 


REPRESENTATIONS AND WARRANTIES


 


Seller makes the
following representations and warranties, on which Trust Depositor will rely in
purchasing the initial Contract Assets on the Closing Date (and any Subsequent
Contracts on the related Subsequent Transfer Date) and concurrently reconveying
the same to the Trust, and on which the Trust, the Indenture Trustee and the
Noteholders will rely under the Sale and Servicing Agreement.  Such representations speak as of the
execution and delivery of this Agreement and as of the Closing Date in the case
of the Initial Contracts, and as of the applicable Subsequent Transfer Date in
the case of Subsequent Contracts, but shall survive the sale, transfer 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 


 


5

















 


of the Sale and Servicing Agreement constitutes the sole remedy
available for a breach of a representation or warranty of Seller set forth in
Section 3.02, 3.03 or 3.04 of this Agreement.


 


Section 3.01.                         Representations and Warranties Regarding Seller. 
Seller represents and warrants, as of the execution and delivery of this
Agreement and as of the Closing Date, in the case of the Initial Contracts, and
as of the applicable Subsequent Transfer Date, in the case of Subsequent
Contracts, that:


 


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


 


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


 


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


 


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


 


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(e)                                  Litigation.  No litigation or administrative proceeding
of or before any court, tribunal or governmental body is currently pending, or
to the knowledge of Seller threatened, against Seller or any of its properties
or with respect to this Agreement or any other Transaction Document to which
the Seller is a party which, if adversely determined, would in the opinion of
Seller have a material adverse effect on the business, properties, assets or
condition (financial or other) of Seller or the transactions contemplated by
this Agreement or any other Transaction Document to which the Seller is a
party.


 


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


 


(g)                                 Operations.  Approximately 5.0% of the aggregate
principal balance of contracts financed from time to time by the Seller are
secured by motorcycles manufactured by Buell.


 


(h)                                 Solvency.  The Seller, after giving effect to the
conveyances made by it hereunder, is Solvent.


 


Section 3.02.                         Representations and Warranties Regarding Each Contract. 
Seller represents and warrants as to each Contract as of the execution
and delivery of this Agreement and as of the Closing Date, in the case of the
Initial Contracts, and as of the applicable Subsequent Transfer Date, in the
case of Subsequent Contracts, that:


 


(a)                                  List
of Contracts.  The information set
forth in the List of Contracts (or Subsequent List of Contracts, in the case of
Subsequent Contracts) is true, complete and correct in all material respects as
of the Initial Cutoff Date or applicable Subsequent Cutoff Date, as the case
may be.


 


(b)                                 Payments.  As of the Initial Cutoff Date or applicable
Subsequent Cutoff Date, as the case may be, the most recent scheduled payment
with respect to any Contract either had been made or was not delinquent for
more than 30 days.  To the best of
Seller’s knowledge, all payments made on each Contract were made by the
respective Obligor or under a debt insurance policy.


 


(c)                                  No
Waivers.  As of the Closing Date (or
the applicable Subsequent Transfer Date, in the case of Subsequent Contracts),
the terms of the Contracts have not 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, 


 


7

















 


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.  As of the origination date of each Contract
(or the applicable Subsequent Transfer Date in the case of Subsequent
Contracts), the related Motorcycle securing each Contract is covered by
physical damage insurance (i) in an amount not less than the value of the
Motorcycle at the time of origination of the Contract, (ii) naming Seller as a
loss payee and (iii) insuring against loss and damage due to fire, theft, transportation,
collision and other risks covered by comprehensive coverage, and all premiums
due on such insurance have been paid in full from the date of the Contract’s
origination.


 


(g)                                 Origination.  Either (i) Contracts were originated by a
Harley-Davidson motorcycle dealer in the regular course of its business which
dealer had all necessary licenses and permits to originate the Contracts in the
state where such dealer was located, was fully and properly executed by the
parties thereto, and has been purchased by Seller in the regular course of its
business, or (ii) Contracts were originated by Eaglemark Savings Bank in the
regular course of its business which had all necessary licenses and permits to
originate the Contracts in the state where it was located, was fully and
properly executed by the parties thereto, and has been purchased by Seller in
the regular course of its business. 
Each Contract was sold by such motorcycle dealer or Eaglemark Savings
Bank, as the case may be, to the Seller without any fraud or misrepresentation
on the part of such motorcycle dealer or Eaglemark Savings Bank.


 


(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 the dealers or Eaglemark Savings Bank, the
purchase of the Contracts by the Seller, the sale of the Contracts by the
Seller to the Trust Depositor or by the Trust Depositor to the Trust, or any
combination of the foregoing, violated at the time of origination or as of the
Closing Date or as of any Subsequent Transfer Date, as applicable, any
requirement of any federal, state or local law and regulations thereunder,
including, without limitation, usury, truth in lending, motor vehicle
installment loan and equal credit opportunity laws, applicable to the Contracts
and the sale of Motorcycles.  


 


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Seller shall, for at
least the period of this Agreement, maintain in its possession, available for
the Trust Depositor’s and the Trustees’ 
inspection, and shall deliver to Trust Depositor or  the Trustee 
upon demand, evidence of compliance with all such requirements.


 


(j)                                     Contract
in Force.  As of the Closing Date
(or the applicable Subsequent Transfer Date in the case of Subsequent Contracts),
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 assigned by
Eaglemark Savings Bank to Seller (where applicable) and by Seller to the Trust
Depositor.  The original certificate of
title, certificate of lien or other notification or evidence (the “Lien
Certificate”) issued by the body responsible for the registration
of, and the issuance of certificates of title or evidence relating to, motor
vehicles and liens thereon (the “Registrar of Titles”) of the applicable
state shows Seller or Eaglemark Savings Bank (as the case may be) as original
secured party under each Contract and as the holder of a first priority
security interest in such Motorcycle. 
With respect to each Contract for which a written Lien Certificate is
provided and has not yet been returned from the Registrar of Titles, the Seller
has received written evidence that such Lien Certificate showing Seller or
Eaglemark Savings Bank as lienholder has been applied for.  Eaglemark Savings Bank’s security interest
has been validly assigned by Eaglemark Savings Bank to Seller.  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 after the sale,
each Contract will be secured by an enforceable and perfected first priority security
interest in the Motorcycle in favor of the Trust as secured party, which
security interest is prior to all other liens upon and security interests in
such Motorcycle which now exist or may hereafter arise or be created (except,
as to priority, for any lien for taxes, labor, materials or of any state law
enforcement agency affecting a Motorcycle).


 


(1)                                  Capacity
of Parties.  All parties to any
Contract had the capacity to execute such Contract and all other documents
related thereto and to grant the security interest purported to be granted
thereby.


 


(m)                               Good
Title.  Each Contract was purchased
by Seller for value and taken into possession prior to the Initial Cutoff Date
(or the applicable Subsequent Cutoff Date in the case of Subsequent Contracts)
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 


 


9

















 


had full right to
transfer the Contract to Trust Depositor and to permit Trust Depositor to
transfer the same to the Issuer, and, as of the Closing Date (or the applicable
Subsequent Transfer Date in the case of Subsequent Contracts), the Issuer will
have a first priority perfected security interest therein.


 


(n)                                 No
Defaults.  As of the Initial Cutoff
Date (or the applicable Subsequent Cutoff Date in the case of Subsequent
Contracts), 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 Initial Cutoff Date (or the applicable Subsequent
Cutoff Date in the case of Subsequent Contracts), no Motorcycle had been
repossessed.


 


(o)                                 No
Liens.  As of the Closing Date (or
the applicable Subsequent Transfer Date in the case of Subsequent Contracts)
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 or may be liens prior to, or equal with, the lien of such
Contract.


 


(p)                                 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.


 


(q)                                 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.


 


(r)                                    One
Original.  Each Contract is
evidenced by only one original executed Contract, which original has been
delivered to the Issuer or its designee on or before the Closing Date (or the
applicable Subsequent Transfer Date in the case of Subsequent Contracts).


 


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


 


(t)                                    Lockbox
Bank.  The Lockbox Bank is the only
institution holding any Lockbox Account for receipt of payments from Obligors,
and all Obligors have been instructed to make payments to the Lockbox Account
(either directly by remitting payments to the 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 the Lockbox Account 


 


10

















 


other than the Lockbox
Bank; provided,
however, that other “Trusts” (as defined in the Lockbox Agreement)
shall have an interest in certain other collections therein not related to the
Contracts.


 


(u)                                 Obligor
Bankruptcy.  At the Initial Cutoff
Date (or the applicable Subsequent Cutoff Date in the case of Subsequent
Contracts), no Obligor was subject to a bankruptcy proceeding within the one
year preceding such Cutoff Date.


 


(v)                                 Chattel
Paper.  The Contracts constitute
tangible chattel paper within the meaning of the UCC.


 


(w)                               No
Impairment.  Neither the Seller nor
the Trust Depositor has done anything to convey any right to any Person that
would result in such Person having a right to payments due under the Contract
or otherwise to impair the rights of the Trust in any Contract or the proceeds
thereof.


 


(x)                                   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.


 


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, in the
case of the Initial Contracts, and, if applicable, as of the applicable
Subsequent Transfer Date, in the case of Subsequent Contracts, that:


 


(a)                                  Amounts.  The sum of the aggregate Principal Balances
payable by Obligors under the Contracts as of the Initial Cutoff Date (or the
applicable Subsequent Cutoff Date in the case of Subsequent Contracts), plus
the Pre-Funded Amount as of such date, equals or exceeds the sum of the
principal balance of  the Class A-1
Notes, the Class A-2 Notes  and the
Class B Notes on the Closing Date or the related Subsequent Transfer Date, as
applicable.


 


(b)                                 Characteristics.  The Initial Contracts have the following
characteristics: (i) all the Contracts are secured by Motorcycles; (ii) no
Initial Contract has a remaining maturity of more than 84 months; and (iii) the
final scheduled payment on the Initial Contract with the latest maturity is due
no later than May 2011.    Approximately
79.79% of the Principal Balance of the Initial Contracts as of the Initial
Cutoff Date is attributable to loans for purchases of new Motorcycles and
approximately 20.21% is attributable to loans for purchases of used
Motorcycles.  No Initial Contract was
originated after the Initial Cutoff Date. 
No Initial Contract has a Contract Rate less than 4.489%.  The last scheduled payment date of the
Contracts (including any Subsequent Contracts) is due no later than
August 2011.  Approximately 97.94%
of the Principal Balance of the Initial Contracts as of the Initial Cutoff Date
is attributable to loans for purchases of Motorcycles manufactured by
Harley-Davidson or Buell and approximately 2.06% of the 


 


11

















 


Principal Balance of the
Initial Contracts as of the Initial Cutoff Date is attributable to loans for
purchases of Motorcycles not manufactured by Harley-Davidson or Buell.


 


(c)                                  Marking
Records.  As of the Closing Date (or
the applicable Subsequent Transfer Date in the case of Subsequent Contracts),
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 and any Subsequent Transfer Date, as
applicable.


 


(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 end of the Funding Period is
attributable to Delta Loans.


 


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, in the case of the Initial Contracts, and
as of the applicable Subsequent Transfer Date, in the case of Subsequent
Contracts, that:


 


(a)                                  Possession.  Immediately prior to the Closing Date or any
Subsequent Transfer 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 or any Subsequent Purchase Agreement and by Trust
Depositor pursuant to the Sale and Servicing 


 


12

















 


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 and each Subsequent Transfer 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 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.


 


13

















 


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 made
hereunder (including in respect of Subsequent Contracts) for all purposes
(including tax and financial accounting purposes) as a sale and purchase on all
of its relevant books, records, financial statements and other applicable
documents.


 


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.


 


Section 4.07                            Protection of Security Interests. 
The Seller agrees to deliver an Officer’s Certificate to the Owner
Trustee and the Indenture Trustee, as promptly as practicable after the Closing
Date (or Subsequent Transfer Date, as the case may be), and in any event within
60 days thereof, certifying that the Seller’s compliance officer has reviewed
the original of each Initial Contract and each related Contract File, that each
Initial Contract and related Contract File conforms in all material respects
with the initial List of Contracts and each such Contract File is complete and
that each document required be an original.


 


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 including any Subsequent Contracts (together with all related
Contract Assets), at its Repurchase Price, not later than two Business Days
prior to the first Determination Date after Seller becomes aware, or should
have become 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
two Business Days prior to such Determination Date cash in an amount sufficient
to cure any deficiency or discrepancy; and provided further that with respect to a
breach of a representation or warranty relating to the Contracts in the
aggregate and not to any particular Contract, Seller may select 


 


14

















 


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.


 


Section 5.02.                         Seller’s Repurchase Option.  On written
notice to the Owner Trustee and the Indenture Trustee at least 20 days prior to
a Distribution Date, provided the Pool Balance is then less than 10% of the
Aggregate Principal Balance as of the Closing Date, Seller may (but is not
required to) repurchase from the Trust on that Distribution Date all
outstanding Contracts (and related Contract Assets) at a price equal to the
aggregate unpaid principal balance of the Notes on the previous Distribution
Date plus the aggregate of the Note Interest Distributable Amount for the
current Distribution Date, the Reimbursement Amount (if any) as well as accrued
and unpaid Monthly Servicing Fees and Indenture Trustee Fee to the date of such
repurchase.  Such price will be
deposited in the Collection Account not later than one Business Day before such
Distribution Date, against the Trustees’ release of the Contracts and Contract
Files as described in Section 7.10 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.


 


15

















 


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 agrees
to pay, and to indemnify, defend and hold harmless the Trust Depositor, the
Trust, the Trustees or the Noteholders from, any taxes which may at any time be
asserted with respect to, and as of the date of, the transfer of the Contracts
to Trust Depositor hereunder and the concurrent reconveyance to the Trust and
the further pledge by the Trust to the Indenture Trustee, including, without
limitation, any sales, gross receipts, general corporation, personal property,
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, 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.


 


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 


 


16

















 


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
Standard & Poor’s and Moody’s 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 Class A-1 Notes, 
Class A-2 Notes and the Class B 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
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 Modified
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.


 


17

















 


(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.


 


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 


 


18

















 


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
State or any State of the United States. 
This Section 7.10 shall survive termination of this Agreement.


 


[signature page follows]


 


19

















 


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:

  	
  /s/  Perry A. Glassgow

  	
   

  
	
   

  	
   

  	
  Printed
  Name:  Perry A. Glassgow

  
	
   

  	
   

  	
  Title:
  Treasurer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  HARLEY-DAVIDSON CREDIT
  CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/  Perry A. Glassgow

  	
   

  
	
   

  	
   

  	
  Printed
  Name:  Perry A. Glassgow

  
	
   

  	
   

  	
  Title:
  Treasurer

  



 


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 May 1, 2004 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 Initial Contracts listed on the initial List
of Contracts in effect on the Closing Date (including, without limitation, all
security interests and all rights to receive payments which are collected
pursuant thereto after the Initial Cutoff Date, including any liquidation
proceeds therefrom, but excluding any rights to receive payments which were
collected pursuant thereto on or prior to the Initial Cutoff Date), (ii) all
rights of Seller under any physical damage or other individual insurance policy
(including a “forced placed” policy, if any), any debt insurance policy or
any debt cancellation agreement relating to any such Contract, an Obligor or a
Motorcycle securing such Contract, (iii) all security interests in each such
Motorcycle, (iv) all documents contained in the related Contract Files, (v) all
rights of Seller in the Lockbox, Lockbox Account and related Lockbox Agreement
to the extent they relate to the Contracts, (vi) all rights (but not the
obligations) of the Seller under any motorcycle dealer agreements between the
dealers (i.e. originators of certain Contracts) and the Seller, (vii) all
rights of Seller to certain rebates of premiums and other amounts relating to
insurance policies, debt cancellation agreements, extended service contracts or
other repair agreements and other items financed under such Contracts and
(viii) all proceeds and products of the foregoing


 


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 May 1, 2004 made by and
among the undersigned, as servicer, the Trust Depositor, Harley-Davidson
Motorcycle Trust 2004-2, as issuer, and BNY Midwest Trust Company, as indenture
trustee.


 


A-1

















 


IN WITNESS
WHEREOF, the undersigned has caused this Assignment to be duly executed this
         day of May, 2004.


 


	
   

  	
  HARLEY-DAVIDSON CREDIT
  CORP.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Printed Name:  Perry A. Glassgow

  
	
   

  	
   

  	
  Title: Treasurer

  
					



 


A-2

















 


Exhibit B


Transfer and Sale


Agreement


 


FORM OF OFFICER’S CERTIFICATE


 


(See Exhibit C to
the Sale and Servicing Agreement)


 


 


B-1

















 


Exhibit C


Transfer and Sale


Agreement


 


FORM OF SUBSEQUENT PURCHASE AGREEMENT


 


SUBSEQUENT
PURCHASE AGREEMENT (the “Agreement”), dated as of
                          ,
              ,
by and among Harley-Davidson Customer Funding Corp., a Nevada corporation (the
“Trust
Depositor”), and Harley-Davidson Credit Corp., a  Nevada corporation (the “Seller”),
pursuant to the Transfer and Sale Agreement referred to below.


 


WITNESSETH:


 


WHEREAS, the Trust
Depositor and the Seller are parties to the Transfer and Sale Agreement, dated
as of May 1, 2004 (the “Transfer and Sale Agreement”);


 


WHEREAS, pursuant
to the Transfer and Sale Agreement, the Seller wishes to sell the Subsequent
Contracts to the Trust Depositor, and the Trust Depositor wishes to purchase
the same, for the purchase price set forth in Section 3 below; and


 


WHEREAS, the
Seller has timely delivered an Addition Notice related to such conveyance as
required in the Sale and Servicing Agreement dated as of May 1, 2004 among the
Seller (in the capacity of Servicer thereunder), the Issuer as defined therein,
the Trust Depositor and the Indenture Trustee as defined therein (the “Sale and
Servicing Agreement”).


 


NOW, THEREFORE,
the Trust Depositor and the Seller hereby agree as follows:


 


Section 1.              Capitalized terms used herein shall have the meanings
ascribed to them in the Sale and Servicing Agreement unless otherwise defined
herein.


 


“Subsequent Cutoff Date” shall
mean, with respect to the Subsequent Contracts transferred hereby,
[                          ].


 


“Subsequent Contracts”
shall mean, for purposes of this Agreement, the Subsequent Contracts listed in
the Subsequent List of Contracts attached hereto as Exhibit A.


 


“Subsequent Transfer Date”
shall mean, with respect to the Subsequent Contracts transferred hereby,
[                          ].


 


Section 2.                                          Subsequent List of Contracts.  The
Subsequent List of Contracts attached hereto as Exhibit A is a supplement to
the initial List of Contracts attached as Exhibit H to the Sale and Servicing
Agreement.  The Contracts listed in the
Subsequent List of Contracts constitute the Subsequent Contracts 


 


C-1

















 


to be transferred pursuant to this Agreement on the subsequent Transfer
Date.


 


Section 3.                                          Transfer of Subsequent Contracts. 
Subject to and upon the terms and conditions set forth in
Section 2.04(b) of the Transfer and Sale Agreement and this Agreement,
Seller hereby sells, transfers, assigns, sets over and otherwise conveys to
Trust Depositor, in consideration of Trust Depositor’s payment of $[                 ] as the purchase price therefor, (i) all
the right, title and interest of Seller in and to the Subsequent Contracts
listed on the related Subsequent List of Contracts (including, without
limitation, all security interests and all rights to receive payments which are
collected pursuant thereto after the applicable Subsequent Cutoff Date,
including any liquidation proceeds therefrom, but excluding any rights to
receive payments which were collected pursuant thereto on or prior to such
Subsequent Cutoff Date), (ii) all rights of Seller under any physical damage or
other individual insurance policy (including a “forced placed” policy, if
any), any debt insurance policy or any debt cancellation agreement relating to
any such Subsequent Contract, an Obligor or a Motorcycle securing such
Subsequent Contract, (iii) all security interests in each such Motorcycle, (iv)
all documents contained in the related Subsequent Contract Files, (v) all
rights of Seller in the Lockbox, Lockbox Account and related Lockbox Agreement
to the extent they relate to the Subsequent Contracts, (vi) all rights (but not
the obligations) of the Seller under any motorcycle dealer agreements between
the dealers (i.e. originators of certain Subsequent Contracts) and the
Seller, (vii) all rights of Seller to certain rebates of premiums and other
amounts relating to insurance policies, debt cancellation agreements, extended
service contracts or other repair agreements and other items financed under
such Subsequent Contracts and (viii) all proceeds and products of the
foregoing.  It is the intention of the
Seller and the Trust Depositor that the transfer contemplated by this Agreement
shall constitute a sale of the Subsequent Contracts from the Seller to the
Trust Depositor, conveying good title thereto free and clear of any Liens, and
that the Subsequent Contracts shall not be part of the Seller’s estate in the
event of the filing of a bankruptcy petition by or against Seller under any
bankruptcy or similar law.


 


Section 4.                                          Representations and Warranties of the Seller. 
(a) Seller hereby represents and warrants to the Trust Depositor that
the representations and warranties of Seller in Section 3.01 of the
Transfer and Sale Agreement are true and correct as of the Subsequent Transfer
Date.


 


(b)                                 Seller hereby repeats and remakes with
respect to the Subsequent Contracts as of the Subsequent Transfer Date (i) the
representations and warranties of Seller in Sections 3.02, 3.03 and 3.04 of the
Transfer and Sale Agreement, except that, with respect to subsection (b)
of Section 3.03, (A) approximately
           % of the
Principal Balance of the Contracts as of the Subsequent Cutoff Date is
attributable to loans for purchases of new Motorcycles and approximately
           % is
attributable to loans for purchases of used Motorcycles, and (B) no Contract
was originated after the Subsequent Cutoff Date, as well as (ii) covenants to
provide the certificate required by Section 2.02(h) (solely with respect
to the Subsequent Contracts).


 


(c)                                  Seller hereby represents and warrants
that (a) the aggregate Principal Balance of the Subsequent Contracts listed on
the Subsequent List of Contracts and conveyed to the Trust 


 


C-2

















 


Depositor pursuant to this Agreement is
$[                      ]
as of the Subsequent Cutoff Date, and (b) the conditions set forth in Section 2.04(b)
of the Transfer and Sale Agreement have been satisfied as of the Subsequent
Transfer Date.


 


Section 5.                                          Ratification of Agreement.  As
supplemented by this Agreement, the Transfer and Sale Agreement is in all
respects ratified and confirmed and, as so supplemented by this Agreement,
shall be read, taken and construed as one and the same instrument.


 


Section 6.                                          Counterparts.  This
Agreement may be executed in two or more counterparts (and by different parties
in separate counterparts), each of which shall be an original but all of which
together shall constitute one and the same instrument.


 


Section 7.                                          Governing Law.  This
Agreement shall be construed in accordance with the laws of the State of
Illinois, without reference to its conflict of law provisions, and the
obligations, rights and remedies of the parties hereunder shall be determined
in accordance with such laws.


 


C-3

















 


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:  Perry A. Glassgow

  
	
   

  	
  Title:
  Treasurer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HARLEY-DAVIDSON CREDIT
  CORP.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Printed
  Name:  Perry A. Glassgow

  
	
   

  	
  Title:
  Treasurer