<PAGE>
THIS PROSPECTUS AND PROSPECTUS SUPPLEMENT RELATE TO THE REGISTRATION STATEMENT
UNDER FILE NO. 333-62849 AND ARE BEING FILED PURSUANT TO RULE 424(b)(5) OF THE
SECURITIES ACT OF 1933.
PROSPECTUS SUPPLEMENT TO PROSPECTUS DATED APRIL 19, 2000
$182,000,000 6.88% HARLEY-DAVIDSON MOTORCYCLE CONTRACT BACKED NOTES, CLASS A-1
$85,900,000 7.14% HARLEY-DAVIDSON MOTORCYCLE CONTRACT BACKED NOTES, CLASS A-2
$17,100,000 7.79% HARLEY-DAVIDSON MOTORCYCLE CONTRACT BACKED CERTIFICATES
HARLEY-DAVIDSON EAGLEMARK MOTORCYCLE TRUST 2000-1
ISSUER
HARLEY-DAVIDSON CREDIT CORP.
SELLER AND SERVICER
EAGLEMARK CUSTOMER FUNDING CORPORATION-IV
TRUST DEPOSITOR
------------------
CONSIDER CAREFULLY THE RISK FACTORS BEGINNING ON PAGE S-8 HEREOF AND ON PAGE 12
OF THE PROSPECTUS.
The Notes will represent obligations of, and the Certificates will represent
interests in, the Harley-Davidson Eaglemark Motorcycle Trust 2000-1 only, and
will not represent obligations of or interests in Harley-Davidson Financial
Services, Inc., Harley-Davidson Credit Corp., Eaglemark Customer Funding
Corporation-IV, Harley-Davidson, Inc. or any of their respective affiliates.
This Prospectus Supplement may be used to offer and sell the Notes and
Certificates only if accompanied by the Prospectus.
------------------------
The Trust will issue Notes and Certificates as described below:
<TABLE>
<CAPTION>
HARLEY-DAVIDSON HARLEY-DAVIDSON HARLEY-DAVIDSON
MOTORCYCLE CONTRACT MOTORCYCLE CONTRACT MOTORCYCLE CONTRACT
BACKED CLASS A-1 NOTES BACKED CLASS A-2 NOTES BACKED CERTIFICATES TOTAL
---------------------- ---------------------- ------------------- ------------
<S> <C> <C> <C> <C>
Principal Amount..... $182,000,000 $85,900,000 $17,100,000 $285,000,000
Interest Rate/
Pass-Through
Rate............... 6.88% 7.14% 7.79%
Frequency of
Scheduled
Payments........... Monthly Monthly Monthly
Date of First
Scheduled Payment.. May 15, 2000 May 15, 2000 May 15, 2000
Underwriters'
Discounts and
Commissions........ 0.210% 0.270% 0.575% $ 712,455
Price to Public...... 99.99887% 99.99330% 99.97947% $284,988,677
Net Proceeds to the
Trust (1)(2)....... 99.78887% 99.7233% 99.40447% $284,276,222
</TABLE>
- ------------------------
(1) Plus accrued interest, if any, from April 26, 2000.
(2) Before deducting expenses, estimated to be $250,000.
The underwriters named below will offer these securities to the public at
the price to public set forth above and they will receive the discount listed
above.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THE NOTES OR CERTIFICATES OR PASSED
UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS SUPPLEMENT OR THE PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
SALOMON SMITH BARNEY FIRST UNION SECURITIES, INC.
THE DATE OF THIS PROSPECTUS SUPPLEMENT IS APRIL 19, 2000.
<PAGE>
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SUMMARY OF TERMS................................................................................................S-1
RISK FACTORS....................................................................................................S-8
Reinvestment Risk Associated with the Pre-Funding Account................................................S-8
The Trust Depositor and Seller Do Not Have Any Obligations to You Except As Described Below..............S-8
Certificates are Subordinated to the Notes...............................................................S-8
The Trust Assets are Limited.............................................................................S-8
Future Delinquency and Loan Loss Experience with Motorcycle Contracts Not
Predicted by Past Performance.........................................................................S-9
Security Interests and Other Aspects of the Contracts....................................................S-9
Limited Liquidity........................................................................................S-9
Company Bankruptcy Considerations........................................................................S-9
Yield and Prepayment Considerations......................................................................S-9
Tax Status...............................................................................................S-9
Risk of Commingling......................................................................................S-9
FORMATION OF THE TRUST.........................................................................................S-10
USE OF PROCEEDS................................................................................................S-10
THE CONTRACTS..................................................................................................S-11
HARLEY-DAVIDSON MOTORCYCLES....................................................................................S-18
YIELD AND PREPAYMENT CONSIDERATIONS............................................................................S-18
HARLEY-DAVIDSON FINANCIAL SERVICES, INC.; HARLEY-DAVIDSON CREDIT CORP..........................................S-19
EAGLEMARK CUSTOMER FUNDING CORPORATION-IV......................................................................S-19
DESCRIPTION OF THE NOTES.......................................................................................S-19
General.................................................................................................S-19
Payments of Interest....................................................................................S-19
Payments of Principal...................................................................................S-20
Optional Redemption.....................................................................................S-20
Mandatory Redemption Following the Funding Period.......................................................S-20
The Indenture Trustee...................................................................................S-21
Events of Default.......................................................................................S-21
DESCRIPTION OF THE CERTIFICATES................................................................................S-21
General.................................................................................................S-21
Distributions of Interest...............................................................................S-21
Distributions of Principal..............................................................................S-22
Optional Prepayment.....................................................................................S-22
Mandatory Prepayment....................................................................................S-22
Paying Agents...........................................................................................S-22
CERTAIN INFORMATION REGARDING THE NOTES AND CERTIFICATES.......................................................S-22
Form, Exchange, Registration and Title..................................................................S-22
Conveyance of Contracts.................................................................................S-25
The Accounts............................................................................................S-28
Determination of Outstanding Principal Balances.........................................................S-30
Distributions on the Notes and Certificates.............................................................S-31
Payment Priorities of the Notes and the Certificates....................................................S-32
Payments from the Reserve Fund..........................................................................S-32
Statements to Noteholders and Certificateholders........................................................S-33
Voting Interests........................................................................................S-34
Amendment...............................................................................................S-34
List of Noteholders and Certificateholders..............................................................S-36
Termination.............................................................................................S-37
i
<PAGE>
Payment in Full of Notes................................................................................S-37
The Trustees............................................................................................S-37
Duties of the Trustees..................................................................................S-38
Trust Depositor Liability...............................................................................S-38
Administration Agreement................................................................................S-38
Collection and Other Servicing Procedures...............................................................S-39
Servicing Compensation and Payment of Expenses..........................................................S-39
Individual Motorcycle Insurance.........................................................................S-40
Evidence as to Compliance...............................................................................S-40
Events of Termination...................................................................................S-40
Rights upon an Event of Termination.....................................................................S-41
Advances................................................................................................S-41
SECURITY INTERESTS AND OTHER ASPECTS OF THE CONTRACTS;
REPURCHASE OBLIGATIONS.......................................................................................S-41
FEDERAL INCOME TAX CONSEQUENCES................................................................................S-44
ERISA CONSIDERATIONS...........................................................................................S-45
UNDERWRITING...................................................................................................S-47
RATINGS OF THE SECURITIES......................................................................................S-48
LEGAL MATTERS..................................................................................................S-49
REPORTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS..................................................................S-49
ANNEX I........................................................................................................S-50
GLOSSARY OF TERMS..............................................................................................S-54
</TABLE>
PROSPECTUS
<TABLE>
<S> <C>
REPORTS TO SECURITYHOLDERS........................................................................................2
AVAILABLE INFORMATION.............................................................................................2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...................................................................2
SUMMARY OF TERMS..................................................................................................3
RISK FACTORS.....................................................................................................12
THE TRUSTS.......................................................................................................17
HARLEY-DAVIDSON MOTORCYCLES......................................................................................18
OTHER MANUFACTURERS..............................................................................................18
THE CONTRACTS....................................................................................................19
WEIGHTED AVERAGE LIFE OF THE SECURITIES..........................................................................19
POOL FACTORS AND TRADING INFORMATION.............................................................................20
USE OF PROCEEDS..................................................................................................20
HARLEY-DAVIDSON FINANCIAL SERVICES, INC.; HARLEY-DAVIDSON CREDIT CORP.;
AND THE TRUST DEPOSITORS......................................................................................20
DESCRIPTION OF THE NOTES.........................................................................................21
DESCRIPTION OF THE CERTIFICATES..................................................................................25
CERTAIN INFORMATION REGARDING THE SECURITIES.....................................................................26
DESCRIPTION OF THE TRANSFER AND SALE AGREEMENTS..................................................................33
DESCRIPTION OF THE SALE AND SERVICING AGREEMENTS AND
POOLING AND SERVICING AGREEMENTS..............................................................................35
CERTAIN LEGAL ASPECTS OF THE CONTRACTS...........................................................................44
FEDERAL INCOME TAX CONSEQUENCES..................................................................................47
OWNER TRUSTS.....................................................................................................48
GRANTOR TRUSTS...................................................................................................56
TAX TREATMENT OF A FASIT.........................................................................................58
CERTAIN STATE TAX CONSEQUENCES...................................................................................59
ERISA CONSIDERATIONS.............................................................................................59
PLAN OF DISTRIBUTION.............................................................................................60
LEGAL MATTERS....................................................................................................61
</TABLE>
ii
<PAGE>
IMPORTANT NOTICE ABOUT INFORMATION PRESENTED IN THIS
PROSPECTUS SUPPLEMENT AND THE ACCOMPANYING PROSPECTUS
We provide information to you about the Notes and Certificates in two
separate documents -- this Prospectus Supplement and the accompanying
Prospectus. The Prospectus provides general information, some of which may not
apply to the Notes or Certificates, and the Prospectus Supplement provides
specific information relating to the terms of the Notes and Certificates. To the
extent that any statements in the Prospectus Supplement differ from or modify
statements in the Prospectus, you should rely on the information in this
Prospectus Supplement.
We include cross-references in this Prospectus Supplement and the
accompanying Prospectus to captions in these materials where you can find
further related discussions. The Table of Contents of this Prospectus Supplement
provides pages on which these captions are located.
You can find a glossary of the principal capitalized terms used in this
Prospectus Supplement beginning on page S-54 of this Prospectus Supplement.
Additionally, you can find a listing of the pages where principal capitalized
terms used in the accompanying Prospectus are defined under an Index of Terms
beginning on page 62 of the Prospectus.
Upon receipt of a request by an investor who has received an electronic
Prospectus Supplement and Prospectus from an underwriter or a request by such
investor's representative within the period during which there is an obligation
to deliver a Prospectus Supplement and Prospectus, the Seller or such
underwriter will promptly deliver, or cause to be delivered, without charge, to
such investor a paper copy of the Prospectus Supplement and Prospectus.
The underwriters may engage in transactions that stabilize, maintain or
otherwise affect the price of the Notes and Certificates. Such transactions may
include stabilizing and the purchase of the Notes and Certificates to cover
syndicate short positions. For a description of these activities, see
"UNDERWRITING" herein.
iii
<PAGE>
SUMMARY OF TERMS
This summary highlights selected information from this Prospectus
Supplement and does not contain all the information that you need to consider in
making an investment decision. To understand all of the terms of the offering of
the Notes and Certificates, you should read this entire Prospectus Supplement
and the accompanying Prospectus before making an investment decision.
The Issuer or the Trust......... Harley-Davidson Eaglemark Motorcycle
Trust 2000-1. The Trust's principal
offices will be in care of Wilmington
Trust Company, as Owner Trustee, at its
Corporate Trust Office, 1100 North Market
Street, Wilmington, Delaware 19890;
telephone (302) 651-1000.
Seller and Servicer............. Harley-Davidson Credit Corp., a 100%
owned subsidiary of Harley-Davidson
Financial Services, Inc.
Trust Depositor................. Eaglemark Customer Funding
Corporation-IV, a 100% owned
subsidiary of Harley-Davidson Credit
Corp.
Owner Trustee................... Wilmington Trust Company, a Delaware
banking corporation, will be the Owner
Trustee for the Trust.
Indenture Trustee............... Bank One, National Association, a
national banking association. The
Indenture Trustee will also act as
Paying Agent under the Indenture and
the Trust Agreement.
Offered Notes and
Certificates.................... The Harley-Davidson Eaglemark Motorcycle
Trust 2000-1 is offering:
- $182,000,000 aggregate principal
amount of 6.88% Harley-Davidson
Motorcycle Contract Backed Notes, Class
A-1;
- $85,900,000 aggregate principal amount
of 7.14% Harley-Davidson Motorcycle
Contract Backed Notes, Class A-2; and
- 7.79% Harley-Davidson Motorcycle
Contract Backed Certificates having an
initial aggregate certificate balance of
$17,100,000.
The Notes represent indebtedness of the
Trust secured by the assets of the Trust
(other than the Certificate Distribution
Account). The Certificates represent
fractional undivided equity interests in
the Trust.
The Notes and the Certificates will be
issued in minimum denominations of $1,000
and will be available in book-entry form
only. Noteholders and Certificateholders
will be able to receive physical
securities issued in registered form only
in the limited circumstances described
herein. See "CERTAIN INFORMATION
REGARDING THE NOTES AND CERTIFICATES --
FORM, EXCHANGE, REGISTRATION AND TITLE"
herein.
The Contracts and Other
Assets of the Trust........... The property of the Trust will be a pool
of fixed-rate, simple interest,
conditional sales contracts relating to
motorcycles manufactured by
Harley-Davidson, Inc. and a limited
number of motorcycles manufactured by
Buell Motorcycle Company, an affiliate of
Harley-Davidson, Inc. Such contracts were
originated by the Seller indirectly
through Harley-Davidson motorcycle
dealers.
S-1
<PAGE>
Included in the Trust's assets are
security interests in the Harley-Davidson
and a limited number of Buell motorcycles
securing such Contracts and proceeds, if
any, from certain insurance policies with
respect to such motorcycles.
The Closing Date.............. On or about April 26, 2000.
Terms of the Notes............ The principal terms of the Notes will be
as described below:
A. Distribution Date..... Distributions of interest and principal
will be made on the fifteenth day of each
month (or, if such day is not a Business
Day, on the next succeeding Business Day)
commencing May 15, 2000.
B. Interest.............. The Class A-1 Notes will bear interest at
the rate of 6.88% per annum on the
outstanding principal amount of the Class
A-1 Notes. The Class A-2 Notes will bear
interest at the rate of 7.14% per annum
on the outstanding principal amount of
the Class A-2 Notes. On each Distribution
Date, payments of interest on the Class
A-1 Notes and Class A-2 Notes will be
made from available collections received
on the Contracts, and from certain other
available amounts as described herein,
without priority of payment between such
classes, but in each case prior to
payment of interest on the Certificates.
See "CERTAIN INFORMATION REGARDING THE
NOTES AND CERTIFICATES-- DISTRIBUTIONS ON
THE NOTES AND CERTIFICATES" and
"DESCRIPTION OF THE NOTES--PAYMENTS OF
INTEREST" for a discussion of the
determination of the amounts available to
pay interest.
Interest on the outstanding principal
amount of the Class A-1 Notes and Class
A-2 Notes will accrue at the related
interest rate from and including the
fifteenth day of the month of the most
recent Distribution Date to but excluding
the fifteenth day of the month of the
current Distribution Date based on a
360-day year consisting of 12 months of
30 days each. However, the first interest
period will begin on and include the
Closing Date and end on and include May
14, 2000.
C. Principal............. On each Distribution Date, payments of
principal on the Class A-1 Notes and
Class A-2 Notes will be made from
available collections received on the
Contracts, and from certain other
available amounts as described herein.
Generally, principal payments will be
made first on the Class A-1 Notes until
the Class A-1 Notes have been repaid in
full, and thereafter on the Class A-2
Notes until the Class A-2 Notes have been
repaid in full, and in each case prior to
any repayment of principal on the
Certificates. See "CERTAIN INFORMATION
REGARDING THE NOTES AND
CERTIFICATES--DISTRIBUTIONS ON THE NOTES
AND CERTIFICATES" and "DESCRIPTION OF THE
NOTES-- PAYMENTS OF PRINCIPAL" for a
discussion of the determination of
amounts available to pay principal.
Holders of Class A-1 Notes are entitled
to receive payment of principal in full
no later than August 2004. Holders of
Class A-2 Notes are entitled to receive
payment of principal in full no later
than March 2006. You should note,
however, that certain circumstances could
cause principal to be paid earlier or
later, or in reduced amounts. See
"DESCRIPTION OF THE NOTES --OPTIONAL
REDEMPTION," "DESCRIPTION OF THE NOTES --
MANDATORY SPECIAl REDEMPTION" and "THE
NOTES -- EVENTS OF DEFAULT."
D. Optional
Redemption............. In the event that the aggregate
outstanding principal balance of the
Contracts owned by the Trust declines to
less than 10% of the sum of (i) the
aggregate outstanding principal balance
of the Contracts owned by the Trust as of
the Closing Date and (ii) the initial
Pre-Funded Amount, and the Seller,
through the
S-2
<PAGE>
Trust Depositor, has elected to purchase
all of the Contracts owned by the Trust,
the Class A-2 Notes will be redeemed in
whole, but not in part. The redemption
price will be equal to the unpaid
principal amount of the Class A-2 Notes
plus accrued interest thereon at the
related interest rate. See "DESCRIPTION
OF THE NOTES--OPTIONAL REDEMPTION."
E. Mandatory
Special
Redemption............. The Class A-1 Notes and Class A-2 Notes
will be prepaid in part, without premium,
on the Distribution Date on or
immediately following the last day of the
Funding Period in the event that any
amount remains on deposit in the
Pre-Funding Account. The aggregate
principal amount of Class A-1 Notes and
Class A-2 Notes to be prepaid will
generally be an amount equal to the
amount then on deposit in the Pre-Funding
Account allocated pro rata.
Terms of the Certificates....... The principal terms of the Certificates will
be as described below:
A. Distribution Date...... Distributions of interest and principal
will be made on the fifteenth day of each
month (or, if such day is not a Business
Day, on the next succeeding Business Day)
commencing May 15, 2000.
B. Interest............... The Certificates will accrue interest at
the rate of 7.79% per annum on the
Certificate Balance. On each Distribution
Date, payments of interest on the
Certificates will be made from available
collections received on the Contracts,
and from certain other available amounts
as described herein. Distributions of
interest on the Certificates will be
subordinated to payments of interest on
the Notes. See "CERTAIN INFORMATION
REGARDING THE NOTES AND CERTIFICATES--
DISTRIBUTIONS ON THE NOTES AND
CERTIFICATES" and "DESCRIPTION OF THE
CERTIFICATES-- DISTRIBUTIONS OF INTEREST"
for a discussion of the determination of
amounts available to pay interest.
Interest on the outstanding Certificate
Balance will accrue at the related
interest rate from and including the
fifteenth day of the month of the most
recent Distribution Date to but excluding
the fifteenth day of the month of the
current Distribution Date based on a
360-day year consisting of 12 months of
30 days each. However, the first interest
period will begin on and include the
Closing Date and end on and include May
14, 2000.
C. Principal.............. No principal will be paid on the
Certificates until the Distribution Date
on which the principal amounts of the
Notes have been reduced to zero. Payments
of principal on the Certificates will be
made from available collections on the
Contracts, and from certain other
available amounts as described herein.
Each principal payment will be calculated
to reflect the reduction in the aggregate
principal balance of the Contracts.
Distributions of principal on the
Certificates will be subordinated to
payments of principal on the Notes. See
"CERTAIN INFORMATION REGARDING THE NOTES
AND CERTIFICATES-- DISTRIBUTIONS ON THE
NOTES AND CERTIFICATES" and "THE
CERTIFICATES--DISTRIBUTIONS OF PRINCIPAL"
for a discussion of the determination of
amounts available to pay principal.
Holders of Certificates are entitled to
receive payment of principal in full no
later than February 2008. You should
note, however, that certain circumstances
could cause principal to be paid earlier
or later, or in reduced amounts. See
"DESCRIPTION OF THE CERTIFICATES
--OPTIONAL PREPAYMENt" and "DESCRIPTION
OF THE CERTIFICATES --MANDATORY
PREPAYMENT."
S-3
<PAGE>
D. Optional Prepayment.... In the event that the aggregate
outstanding principal balances of the
Contracts owned by the Trust declines to
less than 10% of the sum of (i) the
aggregate outstanding principal balance
of the Contracts owned by the Trust as of
the Closing Date and (ii) the initial
Pre-Funded Amount, and the Seller,
through the Trust Depositor, has elected
to purchase all of the Contracts owned by
the Trust, the Certificates will be
prepaid in whole, but not in part. The
repayment price will be equal to the
Certificate Balance plus accrued interest
thereon at the Certificate interest rate.
See "Description of the Certificates--
Optional Prepayment."
Security for the Notes and
Certificates.................... The principal security for the Notes and
Certificates will be as described below:
A. The Contracts............... The Contracts sold to the Trust will be
selected from Contracts in the Trust
Depositor's portfolio based on the
criteria specified in the Transfer and
Sale Agreement. The Contracts arise and
will arise from loans to Obligors located
in the 50 states of the United States,
the District of Columbia and the U.S.
Territories. The last scheduled payment
on the Initial Contract with the latest
maturity will occur in April 2007. No
Contract (including any Subsequent
Contract) will have a scheduled maturity
later than July 2007. However, an Obligor
can generally prepay its Contract at any
time without penalty.
COMPOSITION OF THE INITIAL CONTRACTS
(AS OF THE INITIAL CUTOFF DATE)
<TABLE>
<S> <C>
Aggregate Principal Balance....................................$214,471,329.09
Number of Contracts.....................................................17,270
Average Principal Balance...........................................$12,418.72
Weighted Average Annual Percentage Rate ("APR").........................13.66%
(Range).......................................................8.50-22.99%
Weighted Average Original Term (in months)...............................71.48
(Range)..........................................................12 to 84
Weighted Average Calculated Remaining Term (in months)...................69.41
(Range)...........................................................4 to 84
</TABLE>
Following the Closing Date, pursuant to
the Agreement, the Trust Depositor will
be obligated, subject only to the
availability thereof, to sell, and the
Trust will be obligated to purchase and
pledge, subject to the satisfaction of
certain conditions set forth therein,
Subsequent Contracts from time to time.
Following the transfer of Subsequent
Contracts to the Trust, the aggregate
characteristics of the entire pool of
Contracts may vary from those of the
Initial Contracts as to the criteria
identified and described above and in
"THE CONTRACTS" herein.
B. Reserve Fund................ You will have certain limited protection
against losses in respect of the
Contracts by the establishment of an
account, referred to as the Reserve Fund.
The Reserve Fund Initial Deposit of
$1,072,356.65 will be deposited into the
Reserve Fund on the Closing Date.
In addition, on each Subsequent Transfer
Date, 0.50% of the balance of each
Subsequent Contract conveyed to the Trust
will be deposited into the Reserve
S-4
<PAGE>
Fund. On each Distribution Date, the
Reserve Fund will be supplemented by the
deposit of certain Excess Amounts up to
the Specified Reserve Fund Balance.
On each Distribution Date, the Reserve
Fund Available Amount will be paid to
Noteholders and Certificateholders in the
event there is a shortfall in interest
and principal required to be paid on the
Notes or Certificates.
On each Distribution Date, after giving
effect to all distributions made on such
Distribution Date, any amounts in the
Reserve Fund that are in excess of the
Specified Reserve Fund Balance will be
allocated and distributed to the Trust
Depositor. See "CERTAIN INFORMATION
REGARDING THE NOTES AND CERTIFICATES
--PAYMENT PRIORITIES OF THE NOTES AND THE
CERTIFICATES; THe RESERVE FUND."
C. Pre-Funding
Account..................... On the Closing Date, the Trust Depositor
will fund the Pre-Funding Account by
depositing $70,528,670.91. During the
Funding Period, the Pre-Funding Account
will secure the Trust Depositor's
obligations to purchase and transfer
Subsequent Contracts to the Trust. The
amount in the Pre-Funding Account will be
reduced by the amount used to purchase
Subsequent Contracts from the Trust
Depositor. The Trust Depositor expects
that the Pre-Funded Amount will be
reduced to less than $150,000 by the
Distribution Date occurring in July 2000.
Any Pre-Funded Amount remaining at the
end of the Funding Period will be paid to
the Noteholders as described above in
"SUMMARY OF TERMS-- MANDATORY SPECIAL
REDEMPTION."
D. Interest Reserve
Account..................... On the Closing Date, the Trust Depositor
will fund the Interest Reserve Account by
depositing $699,251.08. The Interest
Reserve Account will provide additional
funds for payment of Carrying Charges. In
addition to the initial deposit, all
investment earnings with respect to the
Pre-Funding Account are to be deposited
into the Interest Reserve Account.
The Interest Reserve Account will be
established to account for the fact that
the monthly investment earnings on
amounts in the Pre-Funding Account (until
such amounts have been used to purchase
Subsequent Contracts) are expected to be
less than the weighted average of the
interest payments on the Notes and the
Certificates, as well as the amount
necessary to pay trustees' fees. The
Interest Reserve Account is not designed
to provide any protection against losses
on the Contracts in the Trust. After the
Funding Period, money remaining in the
Interest Reserve Account will be released
to the Trust Depositor.
Ratings......................... The Notes and Certificates must, prior to
their issuance, receive ratings from
Standard & Poor's Ratings Services, A
Division of The McGraw-Hill Companies,
and Moody's Investors Service, Inc. as
set forth below:
<TABLE>
STANDARD & POOR'S MOODY'S
----------------- -------
<S> <C> <C>
Class A-1 Notes AAA Aaa
Class A-2 Notes AAA Aaa
Certificates BBB Baa1
</TABLE>
See "RATINGS OF THE NOTES AND CERTIFICATES."
S-5
<PAGE>
Advances........................ The Servicer is obligated to advance each
month an amount equal to accrued and
unpaid interest on the Contracts which
was delinquent with respect to the
related Due Period, but only to the
extent that the Servicer believes that
the amount of such advance will be
recoverable from collections on the
Contracts. The Servicer will be entitled
to reimbursement of its outstanding
advances on any Distribution Date by
means of a first priority withdrawal of
certain funds then held in the Collection
Account. See "CERTAIN INFORMATION
REGARDING THE NOTES AND
CERTIFICATES--ADVANCES."
Mandatory Repurchase by the
Trust Depositor................. Under the Agreement, the Trust Depositor
has agreed, in the event of a breach of
certain representations and warranties
made by the Trust Depositor and contained
therein which materially and adversely
affects the Trust's interest in any
Contract and which has not been cured, to
repurchase such Contract within two
business days prior to the first
Determination Date after the Trust
Depositor becomes aware of such breach.
See "CERTAIN INFORMATION REGARDING THE
NOTES AND CERTIFICATES--CONVEYANCE OF
CONTRACTS."
Security Interests and
Other Aspects of
the Contracts................... In connection with the establishment of
the Trust, as well as the assignment,
conveyance and transfer of Contracts
(including Subsequent Contracts) to the
Trust and pledge to the Indenture
Trustee, security interests in the
motorcycles securing the Contracts have
been (or will be):
- conveyed and assigned by the Seller to
the Trust Depositor pursuant to the
Transfer and Sale Agreement (and, in the
case of Subsequent Contracts, the related
Subsequent Purchase Agreement as defined
therein and executed thereunder);
- conveyed and assigned by the Trust
Depositor to the Trust pursuant to the
Agreement (and, in the case of Subsequent
Contracts, the related Subsequent
Transfer Agreement as defined herein and
executed thereunder); and
- pledged by the Trust to the Indenture
Trustee pursuant to the Indenture.
The Agreement will designate the Servicer
as custodian to maintain possession, as
the Indenture Trustee's agent, of the
Contracts and any other documents
relating to the motorcycles securing the
Contracts. Uniform Commercial Code
financing statements will be filed in
both Nevada and Illinois, reflecting the
conveyance and assignment of the
Contracts to the Trust Depositor from the
Seller, from the Trust Depositor to the
Trust and the pledge from the Trust to
the Indenture Trustee, and the Seller's
and the Trust Depositor's accounting
records and computer systems will also
reflect such conveyance and assignment
and pledge. To facilitate servicing and
save administrative costs, such documents
will not be segregated from other similar
documents that are in the Servicer's
possession. However, the Contracts will
be stamped to reflect their conveyance
and assignment and pledge. If, however,
through fraud, negligence or otherwise, a
subsequent purchaser were able to take
physical possession of the Contracts
without notice of such conveyance and
assignment and pledge, the Trust's and
Indenture Trustee's interest in the
Contracts could be defeated.
In addition, due to administrative burden
and expense, the certificates of title to
the motorcycles relating to the Contracts
will not be amended or reissued to
reflect the conveyance and assignment of
the Seller's security interest in such
S-6
<PAGE>
motorcycles to the Trust Depositor and
the Trust or the pledge to the Indenture
Trustee. In the absence of amendments to
the certificates of title, the Trust and
Indenture Trustee will not have a
perfected security interest in such
motorcycles in some states. Further,
federal and state consumer protection
laws impose requirements upon creditors
in connection with extensions of credit
and collections on conditional sales
contracts, and certain of these laws make
an assignee of such a contract liable to
the obligor thereon for any violation of
such laws by the lender. The Trust
Depositor has agreed to repurchase any
Contract as to which it has failed to
perfect a security interest in the
motorcycle securing such Contract, or as
to which a breach of federal or state
laws exists if such breach materially and
adversely affects the Trust's interest in
such Contract and if such failure or
breach has not been cured within 90 days.
The Seller has entered into a
corresponding obligation to repurchase
such Contracts from the Trust Depositor
under the Transfer and Sale Agreement and
Subsequent Purchase Agreements. See
"SECURITY INTERESTS AND OTHER ASPECTS OF
THE CONTRACTS; REPURCHASE OBLIGATIONS."
Servicing Fees.................. The Servicer will be entitled to receive
a monthly servicing fee equal to 1/12th
of 1% of the principal balance of the
Contracts. The Servicer will also be
entitled to receive any extension fees or
late payment penalty fees paid by
Obligors. All such fees will be paid to
the Servicer prior to any payments to the
Noteholders or the Certificateholders.
See "CERTAIN INFORMATION REGARDING THE
NOTES AND CERTIFICATES--SERVICING
COMPENSATION ANd PAYMENT OF EXPENSES."
Tax Status...................... In the opinion of Winston & Strawn,
federal tax counsel to the Trust
Depositor, for federal income tax
purposes, the Notes will be characterized
as debt, and the Trust will not be
characterized as an association (or a
publicly traded partnership) taxable as a
corporation. Each Noteholder, by the
acceptance of a Note, will agree to treat
the Notes as indebtedness, and each
Certificateholder, by the acceptance of a
Certificate, will agree to treat the
Trust as a partnership in which the
Certificateholders are partners for
federal income tax purposes. See "FEDERAL
INCOME TAX CONSEQUENCES."
ERISA Considerations............ Subject to the considerations discussed
under "ERISA CONSIDERATIONS" herein, the
Notes will be eligible for purchase by
employee benefit plans. Any benefit plan
fiduciary considering purchase of the
Notes should, however, consult with its
counsel regarding the consequences of
such purchase under ERISA and the Code.
See "ERISA CONSIDERATIONS."
The Certificates are not eligible for
purchase by (i) employee benefit plans
subject to ERISA, (ii) individual
retirement accounts and other retirement
plans subject to Section 4975 of the Code
or (iii) persons investing on behalf of,
or with assets of, such a plan or account.
S-7
<PAGE>
RISK FACTORS
REINVESTMENT RISK Associated WITH THE PRE-FUNDING ACCOUNT. On the
Closing Date, the Trust Depositor will transfer $214,471,329.09 of Initial
Contracts to the Trust, which Initial Contracts the Trust Depositor purchased
from the Seller using part of the proceeds of the Notes and Certificates sold to
you. The Trust Depositor will transfer $70,528,670.91 pursuant to the Agreement,
into the Pre-Funding Account established and maintained in the name of the
Indenture Trustee on behalf of the Noteholders and Certificateholders. Amounts
in the Pre-Funding Account will be pledged to the Indenture Trustee in order to
secure the Trust's obligation to purchase from the Trust Depositor and transfer
to the Trust the Subsequent Contracts in a principal amount equal to such
initial deposit into the Pre-Funding Account at or before the end of the Funding
Period. There can be no assurance that the Seller will continue to generate
Contracts that satisfy the criteria set forth in the Transfer and Sale Agreement
and the Agreement or the criteria described in "THE CONTRACTS" in this
Prospectus Supplement. See "RISK FACTORS -- SALES OF SUBSEQUENT CONTRACTS AND
EFFECTS ON POOL CHARACTERISTICS" in the Prospectus.
If the Seller fails to originate a principal amount of eligible
Contracts during the Funding Period which is at least equal to the amount
initially deposited into the Pre-Funding Account, the Trust Depositor may be
unable to acquire sufficient Subsequent Contracts to transfer to the Trust
during the Funding Period. As a result, the funds remaining in the Pre-Funding
Account at the end of the Funding Period may be used to prepay outstanding
principal of the Notes. The Noteholders will receive, on the Distribution Date
on or immediately following the last day of the Funding Period, a prepayment of
principal in an amount equal to the amount remaining in the Pre-Funding Account
pro rata; PROVIDED, HOWEVER, in the event the amount remaining in the
Pre-Funding Account is less than $150,000 such amount shall be allocated solely
to the holders of the Class A-1 Notes. See also "RISK FACTORS -- REINVESTMENT
RISK ASSOCIATED WITH PRE-FUNDING ACCOUNTS AND COLLATERAL REINVESTMENT ACCOUNTS"
in the Prospectus. You should note that even if the Seller originates sufficient
Subsequent Contracts to exhaust most of the Pre-Funded Amount, the principal
amount of Subsequent Contracts conveyed to the Trust by the end of the Funding
Period will not be exactly equal to the amount on deposit in the Pre-Funding
Account. Therefore, you should expect that there will be at least a nominal
amount of principal prepaid to the holders of the Class A-1 Notes at the end of
the Funding Period in any event.
Following the transfer of Subsequent Contracts to the Trust, the
aggregate characteristics of the entire pool of Contracts may vary from those of
the Initial Contracts as of the initial Cutoff Date, as to the criteria
described in "THE CONTRACTS" below.
THE TRUST DEPOSITOR AND SELLER DO NOT HAVE ANY OBLIGATIONS TO YOU
EXCEPT AS DESCRIBED BELOW. Neither the Seller nor the Trust Depositor is
generally obligated to make any payments in respect of the Notes, Certificates
or Contracts. However, in connection with each conveyance of Contracts by the
Seller to the Trust Depositor and by the Trust Depositor to the Trust, the
Seller and the Trust Depositor will make representations and warranties with
respect to the characteristics of such Contracts. In certain circumstances, the
Seller (through the Trust Depositor) is obligated to repurchase Contracts with
respect to which such representations or warranties are not true as of the date
made. Neither the Seller nor the Trust Depositor has any other obligations to
you (other than in respect of the transfer of Subsequent Contracts as described
herein). See also "RISK FACTORS -- TRUST'S RELATIONSHIP TO HARLEY-DAVIDSON
CREDIT CORP., THE TRUST DEPOSITORS, AND THEIR AFFILIATES" and "-- RISKS
ASSOCIATED WITH NON-RECOURSE NATURE OF THE NOTES AND CERTIFICATES" in the
Prospectus.
CERTIFICATES ARE SUBORDINATED TO THE NOTES. See "Certain Information
Regarding the Notes and Certificates -- Payment Priorities of the Notes and
Certificates; Reserve Fund." Distributions of interest on the Certificates will
be subordinated to payments of interest on the Notes, and distributions of
principal on the Certificates will be subordinated to payments of principal on
the Notes, each as described herein. Accordingly, the yield on the Certificates
will be sensitive to the loss experience on the Contracts and the timing of such
losses. If the actual rate and amount of losses experienced on the Contracts
exceed the rate and amount of losses that you assumed, the yield to maturity of
the Certificates you purchased may be lower than you anticipated.
THE TRUST ASSETS ARE LIMITED. The Trust will not have, nor is it
expected to have, any significant assets or sources of funds other than the
Contracts and its rights under the Agreement, including the Pre-Funding Account,
the Interest Reserve Account and the Reserve Fund. You must rely for repayment
upon payments on the Contracts
S-8
<PAGE>
and, if and to the extent available, amounts on deposit in the Pre-Funding
Account, the Interest Reserve Account and the Reserve Fund. The Pre-Funding
Account and the Interest Reserve Account will be available during the Funding
Period. The Pre-Funding Account will be used solely to purchase Subsequent
Contracts and is not available to cover losses on the Contracts. The Interest
Reserve Account is designed to cover obligations of the Trust relating to
that portion of the initial Note net proceeds not invested in Contracts, and
is not designed to provide any protection against losses on the Contracts.
FUTURE DELINQUENCY AND LOAN LOSS EXPERIENCE WITH MOTORCYCLE CONTRACTS
NOT PREDICTED BY PAST PERFORMANCE. Harley-Davidson Credit Corp.'s delinquency
experience and loan loss and repossession experience set forth under "The
Contracts" may not be indicative of the performance of the Contracts sold to the
Trust Depositor and held by the Trust and pledged to the Indenture Trustee. See
"RISK FACTORS -- SOCIAL, ECONOMIC AND OTHER FACTORS AFFECTING THE PERFORMANCE OF
THE CONTRACTS OR GENERATION OF SUBSEQUENT CONTRACTS" in the Prospectus.
SECURITY INTERESTS AND OTHER ASPECTS OF THE CONTRACTS. See generally
"RISK FACTORS -- RISK OF UNPERFECTED SECURITY INTERESTS IN FINANCED
MOTORCYCLES," "-- ADDITIONAL LEGAL LIMITS ON THE APPLICABLE TRUSTEE'S ABILITY TO
REALIZE ON ITS SECURITY INTEREST -- BANKRUPTCY LAWS" AND "-- ADDITIONAL LEGAL
LIMITS ON THE APPLICABLE TRUSTEE'S ABILITY TO REALIZE ON ITS SECURITY INTEREST
- -- CONSUMER PROTECTION LAWS" in the Prospectus.
LIMITED LIQUIDITY. There is currently no secondary market for the Notes
and Certificates offered hereby. The underwriters currently intend to make a
market in the Notes and Certificates, but they are under no obligation to do so.
There can be no assurance that a secondary market will develop or, if a
secondary market does develop, that it will provide you with a liquid investment
or that it will continue while you own Notes or Certificates. As a result, you
may not be able to resell your Notes or Certificates prior to maturity.
COMPANY BANKRUPTCY CONSIDERATIONS. See generally "RISK FACTORS -- COMPANY
BANKRUPTCY CONSIDERATIONS" in the Prospectus.
YIELD AND PREPAYMENT CONSIDERATIONS. See generally "RISK FACTORS --
PREPAYMENTS ON CONTRACTS AFFECT YIELD OF NOTES AND CERTIFICATES" in the
Prospectus.
TAX STATUS. In the opinion of Winston & Strawn as federal income tax
counsel to the Trust Depositor, for federal income tax purposes, the Notes will
be characterized as debt and the Trust will not be characterized as an
association (or publicly traded partnership) taxable as a corporation. As no
cases, regulations or administrative rulings have addressed transactions similar
to those described herein, however, there can be no assurance the IRS or a court
will not take contrary positions. See "CERTAIN FEDERAL INCOME TAX
CONSIDERATIONS."
RISK OF COMMINGLING. The Seller has initiated a direct debit program
with certain Obligors pursuant to which payments to be made by such Obligors
will be transferred from their checking or savings accounts to an account in the
Seller's name and remitted on a daily basis to a lockbox account and transferred
from such lockbox account pursuant to the Servicer's instructions to the related
Collection Account as specified in this Prospectus Supplement. Pending transfer
of such funds from the Seller's account to the Collection Account such funds
will not be segregated from other funds of the Seller held in the account. See
generally "RISK FACTORS--RISK Of COMMINGLING" and "CERTAIN INFORMATION REGARDING
THE NOTES AND CERTIFICATES--THE ACCOUNTS" in the Prospectus.
S-9
<PAGE>
FORMATION OF THE TRUST
GENERAL
The Trust will be a business trust formed under the laws of the State
of Delaware pursuant to the Trust Agreement for the transactions described
herein. After its formation, the Trust will engage in only a limited set of
activities. The Trust's activities are limited to: (i) acquiring, holding and
managing the Contracts and the other assets of the Trust and proceeds therefrom;
(ii) issuing the Notes and the Certificates; (iii) making payments on the Notes
and the Certificates; and (iv) engaging in other activities that are necessary,
suitable or convenient to accomplish the foregoing purposes or that are
incidental to or connected with the foregoing purposes.
On the Closing Date, the Trust Depositor will sell and assign the
Contracts to the Trust. Harley-Davidson Credit Corp. will act as Servicer of the
Contracts and will receive compensation and fees for such services. See "CERTAIN
INFORMATION REGARDING THE NOTES AND CERTIFICATES -- SERVICING COMPENSATION AND
PAYMENT OF EXPENSES."
The Trust's principal offices will be in Wilmington, Delaware, in care
of Wilmington Trust Company, as Owner Trustee, at the address listed below under
"THE OWNER TRUSTEE."
CAPITALIZATION
The Trust will initially be capitalized with equity equal to
$17,100,000 representing the initial Certificate Balance. The Trust Depositor
will purchase Certificates with an initial certificate balance of approximately
1% of the initial Certificate Balance and the remaining equity interests will be
sold to third party investors that are expected to be unaffiliated with the
Seller, the Trust Depositor, the Servicer or the Trust.
The following table illustrates the capitalization of the Trust as of
the Cut-Off Date, as if the issuance and sale of the Notes and Certificates had
taken place, on such date:
<TABLE>
<S> <C>
Class A-1 Notes.............................................................$182,000,000
Class A-2 Notes..............................................................$85,900,000
Certificates.................................................................$17,100,000
-----------
Total..................................................................$285,000,000
------------
------------
</TABLE>
THE OWNER TRUSTEE
Wilmington Trust Company will be the Owner Trustee under the Trust
Agreement. Wilmington Trust Company is a Delaware corporation and its Corporate
Trust Office is located at 1100 North Market Street, Wilmington, Delaware 19890.
The Owner Trustee will have the rights and duties set forth herein
under "CERTAIN INFORMATION REGARDING THE NOTES AND CERTIFICATES -- THE TRUSTEES"
AND "-- DUTIES OF THE TRUSTEES."
USE OF PROCEEDS
The Trust Depositor will use the net proceeds received from the sale of
the Notes and Certificates (i) for the purchase of the Initial Contracts and
related assets from the Seller, and (ii) the remainder for the funding of the
Pre-Funding Account. The Seller will use the net proceeds from the Trust
Depositor's purchase of the Initial Contracts, as well as Subsequent Contracts,
for the repayment of a substantial portion of the outstanding principal of the
warehouse lines through which it finances its motorcycle conditional sales
contracts. Following each such repayment, it is expected that the warehouse
lines will be used to build a new portfolio of motorcycle conditional sales
contracts.
S-10
<PAGE>
THE CONTRACTS
The Contracts are (or will be, in the case of Subsequent Contracts)
fixed-rate simple interest conditional sales contracts relating to motorcycles
manufactured by Harley-Davidson or in a limited number of cases, motorcycles
manufactured by Buell Motorcycle Company, an affiliate of Harley-Davidson. The
Contracts were originated by the Seller indirectly through Harley-Davidson
motorcycle dealers.
Each Contract (a) is (or will be) secured by a motorcycle manufactured
by Harley-Davidson or Buell Motorcycle Company, (b) has (or will have) a fixed
annual percentage rate and provide for, if timely made, payments of principal
and interest which fully amortize the loan on a simple interest basis over its
term and, (c) with respect to the Initial Contracts, has its last scheduled
payment due no later than April 2007, and with respect to the Contracts as a
whole (including any Subsequent Contracts conveyed to the Trust after the
Closing Date), will have a last scheduled payment due no later than July 2007.
The first scheduled payment date of Contracts representing approximately 99.31%
of the aggregate principal balance of the Initial Contracts is due no later than
May 2000; the first scheduled payment date of Contracts representing
approximately 0.69% of the aggregate principal balance of the Initial Contracts
is due no later than August 2000. The first scheduled payment date of Contracts
representing approximately 99.00% of the aggregate principal balance of the
Subsequent Contracts will be due no later than August 2000; the first scheduled
payment date of Contracts representing approximately 1.00% of the aggregate
principal balance of the Subsequent Contracts will be due no later than February
2001. The Contracts were (or will be) acquired by the Trust Depositor in the
ordinary course of the Trust Depositor's business. A detailed listing of the
Initial Contracts is appended to the Agreement. (For general composition of the
Initial Contracts see Table 1 below). Approximately 59.77% of the Principal
Balance of the Initial Contracts as of the initial Cutoff Date is attributable
to loans to purchase motorcycles which were new and approximately 40.23% is
attributable to loans to purchase motorcycles which were used at the time the
related Contract was originated. All Initial Contracts have a contractual rate
of interest of at least 8.50% per annum and not more than 22.99% per annum and
the weighted average contractual rate of interest of the Initial Contracts as of
the initial Cutoff Date is approximately 13.66% per annum (see Table 2 below).
The Initial Contracts have remaining maturities as of the initial Cutoff Date of
at least 4 months but not more than 84 months and original maturities of at
least 12 months but not more than 84 months. The Initial Contracts had a
weighted average term to scheduled maturity, as of origination, of approximately
71.48 months, and a weighted average term to scheduled maturity as of the
initial Cutoff Date of approximately 69.41 months (see Tables 3 and 4 below).
The average principal balance per Initial Contract as of the initial Cutoff Date
was approximately $12,418.72 and the principal balances on the Initial Contracts
as of the initial Cutoff Date ranged from $501.60 to $36,598.61 (see Table 5
below). The Contracts arise (or will arise) from loans to Obligors located in 50
states, the District of Columbia and the U.S. Territories and with respect to
the Initial Contracts, constitute the following approximate amounts expressed as
a percentage of the aggregate principal balances on the Initial Contracts as of
the initial Cutoff Date: 12.14% in California, 9.06% in Texas, 8.49% in Florida
and 5.10% in Pennsylvania (see Table 6 below). No other state represented more
than 5.00% by aggregate principal balance of the Initial Contracts.
Subsequent Contracts will not need to satisfy any criteria except for
the criteria described in the preceding paragraph and under "RISK FACTORS -- THE
CONTRACTS AND THE PRE-FUNDING ACCOUNT." Therefore, following the transfer of the
Subsequent Contracts to the Trust, the aggregate characteristics of the entire
pool of the Contracts, including the composition of the Contracts, the
distribution by weighted average annual percentage rate of the Contracts, the
distribution by calculated remaining term of the Contracts, the distribution by
original term to maturity of the Contracts, the distribution by current balance
of the Contracts, and the geographic distribution of the Contracts, described in
the following tables, may vary from those of the Initial Contracts as of the
initial Cutoff Date.
The motorcycle dealer agreements between each of the originating
dealers and the Seller require the originating dealer to repurchase certain
motorcycles repossessed by the Seller in the event of a default by the Obligor;
this dealer obligation to repurchase will be assigned by the Seller to the Trust
Depositor pursuant to the Transfer and Sale Agreement, assigned from the Trust
Depositor to the Trust pursuant to the Agreement and pledged from the Trust to
the Indenture Trustee pursuant to the Indenture. There can be no assurance that
an originating dealer will repurchase motorcycles under such motorcycle dealer
agreements if and when required to do so.
S-11
<PAGE>
TABLE 1
COMPOSITION OF THE INITIAL CONTRACTS
(AS OF THE INITIAL CUTOFF DATE)
<TABLE>
<S> <C>
Aggregate Principal Balance................................................................. $214,471,329.09
Number of Contracts......................................................................... 17,270
Average Principal Balance................................................................... $12,418.72
Weighted Average Annual Percentage
Rate ("APR")........................................................................... 13.66%
(Range)................................................................................ 8.50% - 22.99%
Weighted Average Original Term (in months).................................................. 71.48
(Range)................................................................................ 12 - 84
Weighted Average Calculated Remaining Term (in months)...................................... 69.41
(Range)................................................................................ 4 - 84
</TABLE>
TABLE 2
DISTRIBUTION BY APR OF THE INITIAL CONTRACTS
(AS OF THE INITIAL CUTOFF DATE)
<TABLE>
<CAPTION>
PERCENT OF
NUMBER OF NUMBER OF TOTAL OUTSTANDING PERCENT OF POOL
RATE CONTRACTS CONTRACTS (1) PRINCIPAL BALANCE BALANCE (1)
---- --------- ------------- ----------------- -----------
<S> <C> <C> <C> <C>
8.500- 9.000% 37 0.21% $454,391.92 0.21%
9.001-10.000 225 1.30 3,213,258.11 1.50
10.001-11.000 883 5.11 12,056,280.70 5.62
11.001-12.000 2,925 16.94 38,352,245.31 17.88
12.001-13.000 4,224 24.46 53,203,341.71 24.81
13.001-14.000 4,422 25.61 54,178,433.83 25.26
14.001-15.000 2,092 12.11 25,214,963.12 11.76
15.001-16.000 789 4.57 9,053,110.45 4.22
16.001-17.000 223 1.29 2,422,870.48 1.13
17.001-18.000 490 2.84 5,520,873.78 2.57
18.001-19.000 83 0.48 1,106,078.34 0.52
19.001-20.000 402 2.33 4,598,152.72 2.14
20.001-21.000 151 0.87 1,695,540.09 0.79
21.001-22.000 321 1.86 3,367,369.11 1.57
22.001-22.990 3 0.02 34,419.42 0.02
- ---- --------- ----
Totals: 17,270 100.00% $214,471,329.09 100.00%
</TABLE>
(1) Percentages may not add to 100.00% because of rounding.
S-12
<PAGE>
TABLE 3
DISTRIBUTION BY CALCULATED REMAINING TERM
TO MATURITY OF THE INITIAL CONTRACTS
(AS OF THE INITIAL CUTOFF DATE)
<TABLE>
<CAPTION>
CALCULATED PERCENT OF
REMAINING NUMBER OF NUMBER OF TOTAL OUTSTANDING PERCENT OF POOL
TERM (MONTHS) CONTRACTS CONTRACTS (1) PRINCIPAL BALANCE BALANCE (1)
------------- --------- ------------- ----------------- -----------
<S> <C> <C> <C> <C>
4 - 12 40 0.23% $120,046.13 0.06%
13 - 24 197 1.14 1,045,845.77 0.49
25 - 36 457 2.65 3,548,355.37 1.65
37 - 48 761 4.41 6,802,204.72 3.17
49 - 60 2,605 15.08 27,200,051.29 12.68
61 - 72 10,766 62.34 132,247,059.62 61.66
73 - 84 2,444 14.15 43,507,766.19 20.29
----- ----- ------------- -----
TOTALS: 17,270 100.00% $214,471,329.09 100.00%
</TABLE>
(1) Percentages may not add to 100.00% because of rounding.
TABLE 4
DISTRIBUTION BY CALCULATED ORIGINAL TERM
TO MATURITY OF THE INITIAL CONTRACTS
(AS OF THE INITIAL CUTOFF DATE)
<TABLE>
<CAPTION>
PERCENT OF
ORIGINAL NUMBER OF NUMBER OF TOTAL OUTSTANDING PERCENT OF POOL
TERM (MONTHS) CONTRACTS CONTRACTS (1) PRINCIPAL BALANCE BALANCE (1)
------------- --------- ------------- ----------------- -----------
<S> <C> <C> <C> <C>
0 - 12 16 0.09% $69,318.89 0.03%
13 - 24 154 0.89 872,948.89 0.41
25 - 36 422 2.44 3,307,292.45 1.54
37 - 48 710 4.11 6,350,804.62 2.96
49 - 60 2,556 14.80 26,656,157.16 12.43
61 - 72 10,928 63.28 133,215,117.50 62.11
73 - 84 2,484 14.38 43,999,689.58 20.52
----- ----- ------------- -----
TOTALS: 17,270 100.00% $214,471,329.09 100.00%
</TABLE>
(1) Percentages may not add to 100.00% because of rounding.
S-13
<PAGE>
TABLE 5
DISTRIBUTION BY CURRENT BALANCE OF THE INITIAL CONTRACTS
(AS OF THE INITIAL CUTOFF DATE)
<TABLE>
<CAPTION>
PERCENT OF
NUMBER OF NUMBER OF TOTAL OUTSTANDING PERCENT OF POOL
CURRENT BALANCE CONTRACTS CONTRACTS (1) PRINCIPAL BALANCE BALANCE (1)
--------------- --------- ------------- ----------------- -----------
<S> <C> <C> <C> <C>
$ 501.60 - 1,000.00 2 0.01% $ 1,101.56 0.00%
$ 1,000.01 - 2,000.00 34 0.20 55,517.00 0.03
$ 2,000.01 - 3,000.00 122 0.71 314,943.68 0.15
$ 3,000.01 - 4,000.00 207 1.20 748,777.34 0.35
$ 4,000.01 - 5,000.00 417 2.41 1,889,710.53 0.88
$ 5,000.01 - 6,000.00 649 3.76 3,629,841.12 1.69
$ 6,000.01 - 7,000.00 1,057 6.12 6,920,008.74 3.23
$ 7,000.01 - 8,000.00 1,204 6.97 9,057,532.06 4.22
$ 8,000.01 - 9,000.00 1,228 7.11 10,467,118.42 4.88
$ 9,000.01 - 10,000.00 1,338 7.75 12,707,423.18 5.92
$ 10,000.01 - 11,000.00 1,004 5.81 10,515,489.72 4.90
$ 11,000.01 - 12,000.00 940 5.44 10,806,880.82 5.04
$ 12,000.01 - 13,000.00 960 5.56 12,007,643.85 5.60
$ 13,000.01 - 14,000.00 1,067 6.18 14,434,080.87 6.73
$ 14,000.01 - 15,000.00 1,257 7.28 18,279,230.76 8.52
$ 15,000.01 - 16,000.00 1,346 7.79 20,897,175.13 9.74
$ 16,000.01 - 17,000.00 1,283 7.43 21,151,489.48 9.86
$ 17,000.01 - 18,000.00 1,098 6.36 19,187,685.01 8.95
$ 18,000.01 - 19,000.00 721 4.17 13,322,498.00 6.21
$ 19,000.01 - 20,000.00 515 2.98 10,032,725.02 4.68
$ 20,000.01 - 21,000.00 304 1.76 6,221,612.75 2.90
$ 21,000.01 - 22,000.00 216 1.25 4,645,143.42 2.17
$ 22,000.01 - 23,000.00 121 0.70 2,714,947.99 1.27
$ 23,000.01 - 24,000.00 69 0.40 1,612,371.92 0.75
$ 24,000.01 - 25,000.00 58 0.34 1,419,784.90 0.66
$ 25,000.01 - 26,000.00 16 0.09 407,322.73 0.19
$ 26,000.01 - 27,000.00 19 0.11 504,849.28 0.24
$ 27,000.01 - 28,000.00 9 0.05 248,265.97 0.12
$ 28,000.01 - 29,000.00 5 0.03 141,647.02 0.07
$ 29,000.01 - 31,000.00 3 0.02 91,912.21 0.04
$ 31,000.01 - 36,598.61 1 0.01 36,598.61 0.02
- ---- --------- ----
TOTALS: 17,270 100.00% $214,471,329.09 100.00%
</TABLE>
(1) Percentages may not add to 100.00% because of rounding.
S-14
<PAGE>
TABLE 6
GEOGRAPHIC DISTRIBUTION OF THE INITIAL CONTRACTS
(AS OF THE INITIAL CUTOFF DATE)
<TABLE>
<CAPTION>
PERCENT OF
NUMBER OF NUMBER OF TOTAL OUTSTANDING PERCENT OF POOL
STATE CONTRACTS CONTRACTS (1) PRINCIPAL BALANCE BALANCE (1)
----- --------- ------------- ------------------ -----------
<S> <C> <C> <C> <C>
ALABAMA 262 1.52% $3,317,478.06 1.55%
ALASKA 35 0.20 478,080.80 0.22
ARIZONA 451 2.61 6,205,276.98 2.89
ARKANSAS 122 0.71 1,437,874.57 0.67
CALIFORNIA 2,066 11.96 26,036,613.00 12.14
COLORADO 304 1.76 4,140,357.83 1.93
CONNECTICUT 275 1.59 3,201,523.57 1.49
DELAWARE 112 0.65 1,262,350.87 0.59
DISTRICT OF COLUMBIA 4 0.02 55,070.56 0.03
FLORIDA 1,377 7.97 18,204,376.37 8.49
GEORGIA 535 3.10 7,146,583.36 3.33
HAWAII 112 0.65 1,453,747.20 0.68
IDAHO 28 0.16 353,259.50 0.16
ILLINOIS 640 3.71 7,753,729.75 3.62
INDIANA 385 2.23 4,674,946.42 2.18
IOWA 135 0.78 1,579,123.24 0.74
KANSAS 97 0.56 1,289,076.23 0.60
KENTUCKY 173 1.00 2,046,700.98 0.95
LOUISIANA 189 1.09 2,256,479.52 1.05
MAINE 55 0.32 618,918.66 0.29
MARYLAND 397 2.30 4,785,884.81 2.23
MASSACHUSETTS 336 1.95 3,996,469.46 1.86
MICHIGAN 310 1.80 4,121,974.60 1.92
MINNESOTA 152 0.88 1,760,233.35 0.82
MISSISSIPPI 67 0.39 806,917.18 0.38
MISSOURI 269 1.56 3,304,278.60 1.54
MONTANA 31 0.18 324,323.23 0.15
NEBRASKA 57 0.33 654,912.06 0.31
NEVADA 275 1.59 3,712,997.13 1.73
NEW HAMPSHIRE 186 1.08 2,113,796.94 0.99
NEW JERSEY 591 3.42 6,794,657.36 3.17
NEW MEXICO 199 1.15 2,588,406.07 1.21
NEW YORK 611 3.54 6,616,019.82 3.08
NORTH CAROLINA 705 4.08 8,837,301.22 4.12
NORTH DAKOTA 13 0.08 110,335.93 0.05
OHIO 676 3.91 7,802,697.10 3.64
OKLAHOMA 171 0.99 2,142,022.60 1.00
OREGON 226 1.31 2,746,610.30 1.28
PENNSYLVANIA 974 5.64 10,931,771.75 5.10
</TABLE>
S-15
<PAGE>
TABLE 6
GEOGRAPHIC DISTRIBUTION OF THE INITIAL CONTRACTS
(CONTINUED)
<TABLE>
<CAPTION>
PERCENT OF
NUMBER OF NUMBER OF TOTAL OUTSTANDING PERCENT OF POOL
STATE CONTRACTS CONTRACTS (1) PRINCIPAL BALANCE BALANCE (1)
----- --------- ------------- ----------------- -----------
<S> <C> <C> <C> <C>
RHODE ISLAND 41 0.24 450,190.37 0.21
SOUTH CAROLINA 306 1.77 3,779,448.92 1.76
SOUTH DAKOTA 35 0.20 382,812.97 0.18
TENNESSEE 486 2.81 6,248,179.59 2.91
TEXAS 1,452 8.41 19,439,649.18 9.06
UTAH 67 0.39 792,425.32 0.37
VERMONT 32 0.19 370,121.73 0.17
VIRGINIA 491 2.84 6,121,198.58 2.85
WASHINGTON 379 2.19 4,845,516.61 2.26
WEST VIRGINIA 75 0.43 816,248.08 0.38
WISCONSIN 244 1.41 2,859,892.89 1.33
WYOMING 28 0.16 316,479.70 0.15
OTHER 31 0.18 385,988.17 0.18
-- ---- ---------- ----
TOTALS: 17,270 100.00% $214,471,329.09 100.00%
</TABLE>
(1) Percentages may not add to 100.00% because of rounding.
S-16
<PAGE>
DELINQUENCY, LOAN LOSS AND REPOSSESSION INFORMATION
The following tables set forth the delinquency experience and loan loss
and repossession experience of the Seller's portfolio of conditional sales
contracts for motorcycles. These figures include data in respect of contracts
which the Seller has previously sold with respect to prior securitizations and
for which the Seller acts as servicer.
DELINQUENCY EXPERIENCE(1)/
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
At December 31,
-----------------------------------------------------------------------------------
1999 1998 1997
---- ---- ----
Number Number Number
of of of
Contracts Amount Contracts Amount Contracts Amount
--------- ------ --------- ------ --------- ------
<S> <C> <C> <C> <C> <C> <C>
Portfolio...................... 91,556 $914,545.5 67,137 $651,248.7 45,258 $434,890.7
Period of Delinquency(2)/
30-59 Days 2,868 $28,307.9 1,970 $17,768.1 1,264 $11,454.6
60-89 Days.................. 983 9,424.3 745 6,153.9 559 5,112.1
90 Days or more............. 371 3,569.9 304 2,591.0 269 2,196.5
--- ------- --- ------- --- -------
Total Delinquencies............ 4,222 $41,302.1 3,019 $26,513.0 2,092 $18,763.2
===== ========= ===== ========= ===== =========
Total Delinquencies as a
Percent of Total Portfolio..... 4.61% 4.52% 4.50% 4.07% 4.62% 4.31%
</TABLE>
------------------
(1) Excludes Contracts already in repossession, which Contracts
the Servicer does not consider outstanding.
(2) The period of delinquency is based on the number of days
payments are contractually past due (assuming 30-day months).
Consequently, a Contract due on the first day of a month is not
30 days delinquent until the first day of the next month.
LOAN LOSS/REPOSSESSION EXPERIENCE
(DOLLARS IN THOUSANDS)
<TABLE>
<CAPTION>
Year Ended
December 31,
----------------------------------------------
1999 1998 1997
---- ---- ----
<S> <C> <C> <C>
Principal Balance of All Contracts
Serviced(1)/.................... $918,481.6 $653,836.0 $436,771.0
Contract Liquidations(2)/............ 1.59% 1.54% 1.42%
Net Losses:
Dollars(3)/..................... $5,875.0 $5,245.3 $3,781.1
Percentage(4)/.................. 0.64% 0.80% 0.87%
</TABLE>
------------------
(1) As of period end. Includes Contracts already in repossession.
(2) As a percentage of the total number of Contracts being serviced as
of period end, calculated on an annualized basis.
(3) The calculation of net loss includes actual charge-offs, deficiency
balances remaining after liquidation of repossessed vehicles and
expenses of repossession and liquidation, net of recoveries.
(4) As a percentage of the principal amount of Contracts being serviced
as of period end, calculated on an annualized basis.
THE DATA PRESENTED IN THE FOREGOING TABLES ARE FOR ILLUSTRATIVE PURPOSES
ONLY AND THERE IS NO ASSURANCE THAT THE DELINQUENCY, LOAN LOSS OR REPOSSESSION
EXPERIENCE OF THE CONTRACTS WILL BE SIMILAR TO THAT SET FORTH ABOVE.
S-17
<PAGE>
HARLEY-DAVIDSON MOTORCYCLES
Generally, no more than 5% of the aggregate principal balance of
contracts financed from time to time by Harley-Davidson Credit Corp. are
secured by motorcycles manufactured by Buell. Buell produces "PERFORMANCE"
motorcycles using engines and certain other parts manufactured by
Harley-Davidson. Buell is a wholly-owned subsidiary of Harley-Davidson. The
percentage of Contracts (including all Subsequent Contracts) in this pool
secured by motorcycles manufactured by Buell cannot be determined.
Harley-Davidson produces and sells premium heavyweight motorcycles.
Within the heavyweight class, Harley-Davidson sells touring motorcycles
(equipped for long-distance touring), as well as custom motorcycles which
emphasize the distinctive styling associated with certain classic
Harley-Davidson motorcycles. Harley-Davidson motorcycles are based on
variations of five basic chassis designs and are powered by one of four air
cooled, twin cylinder engines of "V" configuration which have displacements of
883cc, 1200cc, 1340cc and 1450cc. Harley-Davidson manufactures its own engines
and frames and is the largest manufacturer of motorcycles in the United States.
Buell produces "PERFORMANCE" motorcycles using Harley-Davidson 1200cc
engines that are further modified in the manufacturing process, as well as
certain other Harley parts. The "PERFORMANCE" aspect of the motorcycles refers
to overall handling characteristics of the motorcycle, including cornering,
acceleration and braking. Buell motorcycles and related products are currently
distributed exclusively through Harley-Davidson dealers. Buell's overall share
of the "PERFORMANCE" market is negligible, but increasing.
YIELD AND PREPAYMENT CONSIDERATIONS
By their terms, the Contracts may be prepaid, in whole or in part, at
any time. Each Contract also contains a provision which permits the Seller to
require full prepayment in the event of a sale of the related motorcycle
securing a Contract. In addition, repurchases of the Contracts from the Trust
by the Trust Depositor, and concurrently from the Trust Depositor by the
Seller, could occur in the event of a breach of certain representation and
warranties with respect to the Contracts. Repurchases of Contracts from the
Trust by the Trust Depositor, and concurrently from the Trust Depositor by the
Seller, could also occur if the Trust Depositor exercises its limited option to
repurchase the Contracts from the Trust when the aggregate outstanding
principal balances of the Contracts owned by the Trust has declined to less
than 10% of the sum of (i) the aggregate outstanding principal balances of the
Contracts owned by the Trust as of the Closing Date and (ii) the initial
Pre-Funded Amount. Any prepayments and repurchases of Contracts will reduce the
average life of the Notes and Certificates and the interest received by the
holders of the Notes and Certificates over the life of the Notes and
Certificates (for this purpose the term "PREPAYMENT" includes liquidations due
to default, as well as receipt of proceeds from credit life, credit disability
and casualty insurance policies). In addition, funds remaining in the
Pre-Funding Account at the end of the Funding Period will be used to prepay
outstanding principal of the Notes and as a result, the interest received by
Noteholders over the life of the Notes will be reduced.
Interest distributions on the Certificates will be subordinated to
interest payments on the Notes, and principal distributions on the Certificates
will be subordinated to principal payments on the Notes. Accordingly, you
should expect that the yield on the Certificates will be sensitive to the loss
experience on the Contracts and the timing of such losses. The yield to
maturity of the Certificates may be lower than you anticipated, if the actual
rate and amount of losses experienced on the Contracts exceed the rate and
amount of losses you expected when you purchased the Certificates.
The last scheduled payment on the Initial Contract with the latest
maturity will occur in April 2007. The last scheduled payment on the Contract
with the latest maturity among the Contracts as a whole, including any
Subsequent Contracts, will not occur later than July 2007.
S-18
<PAGE>
HARLEY-DAVIDSON FINANCIAL SERVICES, INC.;
HARLEY-DAVIDSON CREDIT CORP.
HARLEY-DAVIDSON FINANCIAL SERVICES, INC.
Harley-Davidson Financial Services, Inc. (formerly known as Eaglemark
Financial Services, Inc.) was formed in June 1992 with a capital infusion of
$10,000,000 from Harley-Davidson and an additional $15,000,000 capital
contribution from a major institutional investor in January 1993. In November
1995, Harley-Davidson purchased the equity owned by the major institutional
investor and as of December 31, 1998 Harley-Davidson Financial Services, Inc. is
a wholly-owned subsidiary of Harley-Davidson. The business of Harley-Davidson
Financial Services, Inc., through its 100% ownership of Harley-Davidson Credit
Corp., has been to provide wholesale and retail financing, credit card and
insurance services to dealers and customers of Harley-Davidson.
HARLEY-DAVIDSON CREDIT CORP.
Harley-Davidson Credit Corp. (formerly known as Eaglemark, Inc.) is
a Nevada corporation and is a wholly-owned subsidiary of Harley-Davidson
Financial Services, Inc. Harley-Davidson Credit Corp. began operations in
January 1993 when it purchased the $85 million wholesale financing portfolio
of certain Harley-Davidson dealers from ITT Commercial Finance; subsequently,
Harley-Davidson Credit Corp. entered the retail consumer finance business.
Harley-Davidson Credit Corp. provides financing to Harley-Davidson customers
for new and used motorcycles, as well as certain other recreational products
such as single-engine aircraft and marine products. Harley-Davidson Credit
Corp. also finances extended service contracts on Harley-Davidson and Buell
motorcycles. Harley-Davidson Credit Corp.'s financing, credit card and
insurance programs are designed to work together as a package that appeals to
the needs of Harley-Davidson's customers. The intent of such a package is to
increase dealer and customer loyalty to Harley-Davidson Credit Corp. while
improving revenue and profits over time. Harley-Davidson Credit Corp.'s
principal executive offices are located at 4150 Technology Way, Carson City,
Nevada 89706 (telephone 702/886-3200). As of December 31, 1999,
Harley-Davidson Credit Corp. had total assets of $814.1 million, and
stockholder's equity of $131.9 million.
EAGLEMARK CUSTOMER FUNDING CORPORATION-IV
The Trust Depositor is a special purpose corporation incorporated in
the State of Nevada in October 1996. All of the common stock of the Trust
Depositor is owned by the Seller. All of the officers and directors of the Trust
Depositor are employed by the Seller, except that at least two directors of the
Trust Depositor are required to be independent of the Trust Depositor. The Trust
Depositor's business is limited to purchasing the Contracts and related assets
(and other similar retail motorcycle installment conditional sales contracts)
from the Seller, acting as the general partner of the Trust and other similar
trusts and performing the obligations described in the Agreement and the
Transfer and Sale Agreement (as well as similar agreements entered into in
connection with the formation of similar trusts).
DESCRIPTION OF THE NOTES
GENERAL
The Notes will be issued pursuant to the Indenture.
PAYMENTS OF INTEREST
Interest on the outstanding principal amount of the Notes will accrue
at the applicable interest rate from and including the fifteenth day of the
month of the most recent Distribution Date based on a 360-day year consisting of
30 days each (or from and including the Closing Date with respect to the first
Distribution Date) to but excluding the fifteenth day of the month of the
current Distribution Date.
Interest payments on the Notes will be made from Available Monies.
However, the following fees will be paid out of Available Monies before such
funds are used to make interest payments on the Notes:
S-19
<PAGE>
- monthly servicing fee to be paid to the Servicer which equals
1/12th of 1% of the principal balance of the Contracts as of the
beginning of such Due Period and any accrued and unpaid monthly
servicing fees;
- any extension fees or late payment penalty fees paid by Obligors
are payable to the Servicer; and
- all accrued and unpaid fees of the Indenture Trustee or Owner
Trustee.
See "Certain Information Regarding the Notes and Certificates -- Distributions
on the Notes and Certificates -- Deposits to the Note and Certificate
Distribution Account; Priority of Payments."
PAYMENTS OF PRINCIPAL
Principal payments will be made to the Noteholders, to the extent
described below, on each Distribution Date in an amount equal to the Note
Percentage of the related Note Principal Distributable Amount, in each case
calculated as described under "CERTAIN INFORMATION REGARDING THE NOTES AND
CERTIFICATES -- DISTRIBUTIONS ON THe NOTES AND CERTIFICATES -- DEPOSITS TO THE
NOTE AND CERTIFICATE DISTRIBUTION ACCOUNT; PRIORITY OF PAYMENTS." Principal
payments on the Notes will be made from Available Monies after all of the
Trust's fees and expenses have been paid, and after distribution of the Note
Interest Distributable Amount and the Certificate Interest Distributable Amount.
See "CERTAIN INFORMATION REGARDING THE NOTES AND CERTIFICATES -- DISTRIBUTIONS
ON THE NOTEs AND CERTIFICATES -- DEPOSITS TO THE NOTE AND CERTIFICATE
DISTRIBUTION ACCOUNT; PRIORITY OF PAYMENTS."
Principal payments on the Notes will be applied on each Distribution
Date from the Note Distribution Account as follows: first, to the holders of the
Class A-1 Notes until the principal amount of the Class A-1 Notes has been
reduced to zero, but in no event later than August 2004 and second, to the
holders of the Class A-2 Notes until the principal amount of the Class A-2 Notes
has been reduced to zero, but in no event later than March 2006. However, the
aggregate outstanding principal amount of any class of Notes is paid may be
earlier than the dates set forth in the prior sentence as a result of a variety
of factors, including the factors described under "YIELD AND PREPAYMENT
CONSIDERATIONS."
To the extent that the Aggregate Principal Balance Decline is greater
than the principal balance of the Class A-1 Notes on any Distribution Date, the
Aggregate Principal Balance Decline will first be allocated to reduce the
principal amount of the Class A-1 Notes to zero and will thereafter be allocated
to the Class A-2 Notes.
OPTIONAL REDEMPTION
In the event the aggregate outstanding principal balance of the
Contracts owned by the Trust declines to less than 10% of the sum of (i) the
aggregate outstanding principal balance of the Contracts owned by the Trust as
of the Closing Date and (ii) the initial Pre-Funded Amount, and the Seller,
through the Trust Depositor, has elected to purchase all of the Contracts owned
by the Trust, the Class A-2 Notes will be subject to redemption in whole, but
not in part, on any Distribution Date. The redemption price will equal the
unpaid principal amount of the Class A-2 Notes plus accrued interest thereon at
7.14%. See "CERTAIN INFORMATION REGARDING THE NOTES AND CERTIFICATES --
TERMINATION."
MANDATORY REDEMPTION FOLLOWING THE FUNDING PERIOD
The Class A-1 Noteholders and Class A-2 Noteholders will be prepaid in
part, without premium, on the Distribution Date on or immediately following the
last day of the Funding Period in the event that any amount remains on deposit
in the Pre-Funding Account after giving effect to the purchase of all Subsequent
Contracts, including any such purchase on such date. The aggregate principal
amount of Class A-1 Notes and Class A-2 Notes to be prepaid will be an amount
equal to the amount then on deposit in the Pre-Funding Account allocated pro
rata; PROVIDED, HOWEVER, in the event the amount on deposit in the Pre-Funding
Account is less than $150,000 such amount shall be allocated solely to the Class
A-1 Noteholders.
S-20
<PAGE>
THE INDENTURE TRUSTEE
Bank One, National Association will be the Indenture Trustee. The
Indenture Trustee is a national banking association and its Corporate Trust
Office is located at 1 Bank One Plaza, Chicago, Illinois 60670.
The Indenture Trustee will have the rights and duties set forth under
"CERTAIN INFORMATION REGARDING THE NOTES AND CERTIFICATES -- THE TRUSTEES" and
"-- DUTIES OF THE TRUSTEES."
EVENTS OF DEFAULT
"EVENTS OF DEFAULT" under the Indenture will have occurred when:
(i) interest on any class of Notes is not paid on the date it is
due and payable and is not paid for five days or more after
such date;
(ii) principal of or any installment of principal on any Class of
Notes is not paid on the date it is due and payable;
(iii) the Trust fails to comply with or perform any of its covenants
or agreements in the Indenture and such default continues for
a period of 30 days after notice thereof is given to the Trust
by the Indenture Trustee or to the Trust and the Indenture
Trustee by the holders of Notes evidencing at least 25% of the
voting interest thereof, voting together as a single class;
(iv) any representation or warranty made by the Trust in the
Indenture or in any certificate delivered pursuant thereto or
in connection therewith was incorrect in a material respect as
of the time made, and such default continues for a period of
30 days after notice thereof is given to the Trust by the
Indenture Trustee or to the Trust and the Indenture Trustee by
the holders of Notes evidencing at least 25% of the voting
interest thereof, voting together as a single class; and
(iv) certain events of bankruptcy, insolvency, receivership or
liquidation relating to the Trust have occurred.
Upon the occurrence and continuation of an Event of Default, the Notes
shall become immediately due and payable at par, together with accrued interest
therein unless holders of Notes evidencing not less than 66 2/3% of the voting
interests thereof, voting together as a single class, waive such an Event of
Default.
No sale or liquidation of the property of the Trust may be made if the
proceeds thereof are not sufficient to pay all outstanding principal of and
accrued interest on the Notes, unless (a) holders of Notes evidencing 100% of
the voting interests thereof, voting together as a single class, consent to such
sale or liquidation, or (b)(1) the Indenture Trustee determines that the
property of the Trust will not continue to provide sufficient funds for the
payment of principal of and interest on the Notes, (2) the Indenture Trustee
provides prior written notice of such sale or liquidation to each Rating Agency
and (3) holders of Notes evidencing not less than 66 2/3% of the voting
interests thereof, voting together as a single class, consent to such sale or
liquidation.
DESCRIPTION OF THE CERTIFICATES
GENERAL
The Certificates will be issued pursuant to the Trust Agreement. Copies
of the Trust Agreement (without exhibits) may be obtained by holders of
Certificates upon request in writing to the Owner Trustee at its Corporate Trust
Office. The Certificates may not be purchased by pension trusts. See "ERISA
CONSIDERATIONS" below.
DISTRIBUTIONS OF INTEREST
Interest on the Certificate Balance will accrue at 7.79% from and
including the fifteenth day of the month of the most recent Distribution Date
based on a 360-day year consisting of 30 days each (or from and including the
Closing Date with respect to the first Distribution Date) to but excluding the
fifteenth day of the month of the current Distribution Date. Interest accrued
but not paid on any Distribution Date will be due on the immediately succeeding
Distribution Date, together with, to the extent permitted by applicable law,
interest on such amount at 7.79%. Interest distributions with respect to the
Certificates will be made from Available Interest after all of the
S-21
<PAGE>
Trust's fees and expenses have been paid and after the Note Interest
Distributable Amount has been distributed. See "CERTAIN INFORMATION REGARDING
THE NOTES AND CERTIFICATES -- DISTRIBUTION ON THE NOTES AND CERTIFICATES --
DEPOSITS TO THE NOTE AND CERTIFICATE DISTRIBUTION ACCOUNT; PRIORITY OF
PAYMENTS."
DISTRIBUTIONS OF PRINCIPAL
No principal will be paid on the Certificates until the Distribution
Date on which the principal balance of the Class A-1 and Class A-2 Notes has
been reduced to zero. On such Distribution Date and thereafter, the
Certificateholders will be entitled to distributions in an amount equal to
Available Principal calculated as described under "CERTAIN INFORMATION REGARDING
THE NOTES AND CERTIFICATES -- DISTRIBUTIONS ON THE NOTES ANd CERTIFICATES --
DEPOSITS TO THE NOTE AND CERTIFICATE DISTRIBUTION ACCOUNT; PRIORITY OF PAYMENTS"
but not in excess of the outstanding principal balance on the Certificates.
Distributions with respect to principal on the Certificates will be made from
Available Principal after all of the Trust's fees and expenses have been paid
and after the Note Interest Distributable Amount, the Certificate Interest
Distributable Amount and the Note Principal Distributable Amount have been
distributed. See "CERTAIN INFORMATION REGARDING THE NOTES AND CERTIFICATES --
DISTRIBUTIONS ON THE NOTES AND CERTIFICATES -- DEPOSITS TO THE NOTE AND
CERTIFICATE DISTRIBUTION ACCOUNT; PRIORITY OF PAYMENTS."
OPTIONAL PREPAYMENT
In the event the aggregate outstanding principal balance of the
Contracts owned by the Trust declines to less than 10% of the sum of (i) the
aggregate outstanding principal balance of the Contracts owned by the Trust as
of the Closing Date and (ii) the initial Pre-Funded Amount, and the Seller,
through the Trust Depositor, has elected to purchase all of the Contracts owned
by the Trust, the Certificates will be subject to prepayment in whole, but not
in part, on any Distribution Date. The prepayment amount will equal the
Certificate Balance plus accrued interest thereon at 7.79%. See "CERTAIN
INFORMATION REGARDING THE NOTES AND CERTIFICATES -- TERMINATION."
MANDATORY PREPAYMENT
As more fully described under "DESCRIPTION OF THE NOTES -- EVENTS OF
DEFAULT," upon the occurrence of an Event of Default, under certain
circumstances the Noteholders have the right to cause the property of the Trust
to be sold or liquidated in whole or in part. In the event of such liquidation
or sale, the Certificates may suffer a loss if proceeds are insufficient to pay
both the Notes and the principal and interest on the Certificates.
PAYING AGENTS
Distributions of principal of and interest on the Certificates will be
made by the Owner Trustee or any Paying Agent or Paying Agents as the Owner
Trustee may designate from time to time. The Indenture Trustee will be
designated as the initial Paying Agent with respect to the Certificates.
CERTAIN INFORMATION REGARDING THE NOTES AND CERTIFICATES
FORM, EXCHANGE, REGISTRATION AND TITLE
The Notes and Certificates will initially be registered in the name of
Cede & Co. ("CEDE"), the nominee of The Depository Trust Company ("DTC").
Noteholders and Certificateholders may hold their Notes or Certificates in the
United States through DTC, or, solely in the case of the Notes, in Europe,
through Clearstream, Luxembourg (formerly Cedelbank) ("CLEARSTREAM") or the
Euroclear System ("EUROCLEAR"), if they are participants of such systems, or
indirectly through organizations that are participants in such systems.
Cede, as nominee for DTC, will hold the global Notes and Certificates.
Clearstream and Euroclear will hold omnibus positions on behalf of the
Clearstream Participants (as defined below) and Euroclear Participants (as
defined below), respectively, through customers' securities accounts in
Clearstream's and Euroclear's names on the books of their respective
depositaries (collectively, the "DEPOSITARIES") which in turn will hold such
positions in customers' securities accounts in the Depositaries' names on the
books of DTC.
DTC is a limited-purpose trust company organized under the laws of the
State of New York, a member of the Federal Reserve System, a "CLEARING
CORPORATION" within the meaning of the New York Uniform Commercial
S-22
<PAGE>
Code, and a "CLEARING AGENCY" registered pursuant to the provisions of
Section 17A of the 1934 Act. DTC accepts securities for deposit from its
participating organizations ("PARTICIPANTS") and facilitates the clearance
and settlement of securities transactions between Participants in such
securities through electronic book-entry changes in accounts of Participants,
thereby eliminating the need for physical movement of securities.
Participants include securities brokers and dealers, banks and trust
companies and clearing corporations and may include certain other
organizations. Indirect access to the DTC system is also available to others
such as banks, brokers, dealers and trust companies that clear through or
maintain a custodial relationship with a Participant, either directly or
indirectly. Transfers between Participants will occur in accordance with DTC
rules. Transfers between Clearstream Participants and Euroclear Participants
will occur in the ordinary way in accordance with their applicable rules and
operating procedures.
Cross-market transfers between persons holding directly or indirectly
through DTC, on the one hand, and directly or indirectly through Clearstream
Participants or Euroclear Participants, on the other, will be effected in DTC in
accordance with DTC rules on behalf of the relevant European international
clearing system by its Depositary; however, such cross-market transactions will
require delivery of instructions to the relevant European international clearing
system by the counterparty in such system in accordance with its rules and
procedures and within its established deadlines (European time). The relevant
European International clearing system will, if the transaction meets its
settlement requirements, deliver instructions to its Depositary to take action
to effect final settlement on its behalf by delivering or receiving securities
in DTC, and making or receiving payment in accordance with normal procedures for
same-day funds settlement applicable to DTC. Clearstream Participants and
Euroclear Participants may not deliver instructions directly to the
Depositaries.
Because of time-zone differences, credits of securities in Clearstream
or Euroclear as a result of a transaction with a Participant will be made during
the subsequent securities settlement processing, dated the business day
following the DTC settlement date, and such credits or any transactions in such
securities settled during such processing will be reported to the relevant
Clearstream Participant or Euroclear Participant on such business day. Cash
received in Clearstream or Euroclear as a result of sales of securities by or
through a Clearstream Participant or a Euroclear Participant to a Participant
will be received with value on the DTC settlement date but will be available in
the relevant Clearstream or Euroclear cash account only as of the business day
following settlement in DTC.
Noteholders and Certificateholders who are not Participants but desire
to purchase, sell or otherwise transfer, ownership of the Notes or Certificates
may do so only through Participants (unless and until physical Notes or
Certificates, as applicable are issued in registered form). In addition,
Noteholders and Certificateholders will receive all distributions of principal
of and interest on the Notes and Certificates from the Indenture Trustee or
Owner Trustee (collectively, the "TRUSTEES"), as applicable, through DTC and
Participants. Neither the Noteholders nor the Certificateholders receive or be
entitled to receive physical securities representing their respective interests
in the Notes or Certificates, except under the limited circumstances described
below.
Unless and until physical Notes and Certificates are issued in
registered form, it is anticipated that the only Noteholders and
Certificateholders will be Cede, as nominee of DTC. Beneficial owners of the
Notes and Certificates will not be Securityholders as that term is used in the
Agreement. Beneficial owners are only permitted to exercise the rights of
Securityholders indirectly through Participants and DTC.
While the Notes and Certificates are outstanding (except under the
circumstances described below), under the rules, regulations and procedures
creating and affecting DTC and its operations (the "RULES"), DTC is required to
make book-entry transfers among Participants on whose behalf it acts with
respect to the Notes and Certificates and is required to receive and transmit
distributions of principal of, and interest on, the Notes and Certificates.
Unless and until physical Notes and Certificates are issued in registered form,
beneficial owners who are not Participants may transfer ownership of Notes and
Certificates only through Participants by instructing such Participants to
transfer the Securities only through Participants by instructing such
Participants to transfer the Notes or Certificates by book-entry transfer
through DTC for the account of the purchasers of such Notes or Certificates,
which account is maintained with their respective Participants. Under the Rules
and in accordance with DTC's normal procedures,
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transfers of ownership of the Notes and Certificates will be executed through
DTC and the accounts of the respective Participants at DTC will be debited
and credited.
Physical Notes or Certificates will be issued in registered form to
Noteholders and Certificateholders, or their nominees, rather than to DTC, only
if (i) DTC or the Company advises the applicable Trustee in writing that DTC is
no longer willing or able to discharge properly its responsibilities as nominee
and depository with respect to such Notes or Certificates and the Company or
such Trustee is unable to locate a qualified successor; (ii) the Company, at its
sole option and with the consent of such Trustee, elects to terminate the
book-entry system through DTC or (iii) in the case of the Notes, after the
occurrence of any Indenture Event of Default, DTC, at the direction of
Noteholders having a majority in interest of the Notes, advises the Indenture
Trustee in writing that the continuation of a book-entry system through DTC (or
a successor thereto) to the exclusion of any physical securities being issued to
Noteholders is no longer in the best interest of Noteholders. Upon issuance in
registered form of physical Notes and Certificates, such securities will be
transferable directly (and not exclusively on a book-entry basis), and
registered holders will deal directly with the applicable Trustee with respect
to transfers, notices and distributions.
DTC has advised the Trust Depositor and the Trustee that, unless and
until physical Notes and Certificates are issued in registered form, DTC will
take any action permitted to be taken by a Noteholder under the Indenture or a
Certificateholder under the Trust Agreement only at the direction of one or more
Participants to whose DTC account such securities are credited. DTC has advised
the Seller that DTC will take such action with respect to any holders of the
Notes and Certificates only at the direction of and on behalf of the
Participants to whose DTC account such securities are credited. DTC may take
actions, at the direction of the related Participants, with respect to some
Notes and Certificates that conflict with actions taken with respect to other
Notes and Certificates.
Clearstream is incorporated under the laws of Luxembourg as a
professional depository. Clearstream holds securities for its participating
organizations ("CLEARSTREAM PARTICIPANTS") and facilitates the clearance and
settlement of securities transactions between Clearstream Participants through
electronic book-entry changes in accounts of Clearstream Participants.
Transactions may be settled in Clearstream in any of 28 currencies, including
United States dollars. Clearstream provides to its Clearstream Participants,
among other things, services for safekeeping, administration, clearance and
settlement of internationally traded securities and securities lending and
borrowing. Clearstream interfaces with domestic markets in several countries. As
a professional depositary, Clearstream is subject to regulations by the
Luxembourg Monetary Institute. Clearstream Participants are recognized financial
institutions around the world, including underwriters, securities brokers and
dealers, banks, trust companies, clearing corporation and certain other
organizations and may include the underwriters of any class of the Notes or
Certificates. Indirect access to Clearstream is also available to others, such
as banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a Clearstream Participant, either directly or
indirectly.
Euroclear was created in 1968, to hold securities for participants of
the Euroclear System ("EUROCLEAR PARTICIPANTS") and to clear and settle
transactions between Euroclear Participants through simultaneous electronic
book-entry delivery against payment, thereby eliminating the need for physical
movement of securities and any risk from lack of simultaneous transfers of
securities and cash. Transactions may now be settled in any of 32 currencies,
including United States dollars. The Euroclear System includes various other
services, including securities lending and borrowing and interfaces with
domestic markets in several countries generally similar to the arrangements for
cross-market transfers with DTC described above. The Euroclear System is
operated by Morgan Guaranty Trust Company of New York, Brussels, Belgium office
(the "EUROCLEAR OPERATOR" or "EUROCLEAR"), under contract with Euroclear
Clearance System, S.C., a Belgian cooperative corporation (the "EUROCLEAR
COOPERATIVE"). All operations are conducted by the Euroclear Operator, and all
Euroclear securities clearance accounts and Euroclear cash accounts are accounts
with the Euroclear Operator, not the Euroclear Cooperative. The Euroclear
Cooperative establishes policy for the Euroclear System on behalf of Euroclear
Participants. Euroclear Participants include banks (including central banks),
securities brokers and dealers and other professional financial intermediaries,
indirect access to the Euroclear System is also available to other firms that
clear through or maintain a custodial relationship with a Euroclear Participant,
either directly or indirectly.
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The Euroclear Operator is the Belgian branch of a New York banking
corporation which is a member bank of the Federal Reserve System. As such, it is
regulated and examined by the Board of Governors of the Federal Reserve System
and the New York Banking Department, as well as the Belgian Banking Commission.
Securities clearance accounts and cash accounts with the Euroclear
Operator are governed by the Terms and Conditions Governing Use of Euroclear and
the related Operating Procedures of the Euroclear System and applicable Belgian
law (collectively, the "TERMS AND CONDITIONS"). The Terms and Conditions govern
transfers of securities and cash within the Euroclear System, withdrawal of
securities and cash from the Euroclear System, and receipts of payments with
respect to securities in the Euroclear System. All securities in the Euroclear
System are held on a fungible basis without attribution of specific securities
to specific securities clearance accounts. The Euroclear Operator acts under the
Terms and Conditions only on behalf of Euroclear Participants and has no record
of or relationship with persons holding through Euroclear Participants.
Distributions with respect to Notes held through Clearstream or
Euroclear will be credited to the cash accounts of Clearstream Participants or
Euroclear Participants in accordance with the relevant system's rules and
procedures, to the extent received by its Depositary. Such distributions will be
subject to tax reporting in accordance with relevant United States tax laws and
regulations. See "CERTAIN FEDERAL AND STATE INCOME TAX CONSEQUENCES."
Clearstream or the Euroclear Operator, as the case may be, will take any other
action permitted to be taken by a Noteholder under the Indenture on behalf of a
Clearstream Participant or Euroclear Participant only in accordance with its
relevant rules and procedures and subject to its Depositary's ability to effect
such actions on its behalf through DTC.
Although DTC, Clearstream and Euroclear have agreed to the foregoing
procedures in order to facilitate transfers of the Notes and Certificates among
participants of DTC, Clearstream and Euroclear, they are under no obligation to
perform or continue to perform such procedures and such procedures may be
discontinued at any time.
In the event that any of DTC, Clearstream or Euroclear should
discontinue its services, the Seller would seek an alternative depositary (if
available) or cause the issuance of physical Notes and Certificates to
Noteholders and Certificateholders or their nominees in the manner described
above.
Issuance of the Notes and Certificates in book-entry form rather than
as physical securities may adversely affect the liquidity of the Notes and
Certificates in the secondary market and the ability of holders of such
securities to pledge them. In addition, since distributions on such securities
will be made by the Trustees to DTC and DTC will credit such distributions to
the accounts of its Participants, which will further credit them to the accounts
of indirect participants, holders of such securities may experience delays in
the receipt of such distributions.
CONVEYANCE OF CONTRACTS
On the Closing Date, (i) the Seller will sell, transfer, assign, set
over and otherwise convey the Initial Contracts and related assets to the Trust
Depositor, (ii) the Trust Depositor will sell, transfer, assign, set over and
otherwise convey to the Trust all right, title and interest in the Initial
Contracts and related assets, and (iii) the Trust will pledge to the Indenture
Trustee all right, title and interest in the Initial Contracts and related
assets. The Initial Contracts will be described on a list delivered to each
Trustee and certified by a duly authorized officer of the Trust Depositor. Such
list will include the amount of monthly payments due on each Initial Contract as
of the initial Cutoff Date, the contractual rate of interest on each Contract
and the maturity date of each Contract. Such list will be available for
inspection by any Securityholder at the principal office of the Servicer. Prior
to the conveyance of the Initial Contracts to the Trust, the Servicer's
compliance officer will have completed a review of all the documents that the
Seller has customarily kept on file relating to the Contracts, including the
certificates of title to, or other evidence of a perfected security interest in,
the related motorcycles, and confirmed the accuracy of the list of Initial
Contracts delivered to the Trustees. The Trust Depositor will deliver to the
Trustees a report of a nationally recognized independent public accounting firm
which states that such firm has performed specific procedures for a sample of
the Initial Contracts supplied by the Seller. Any Contract discovered not to
agree with such list in a manner that is materially adverse to the interests of
the Noteholders and Certificateholders will be required to be repurchased by the
Seller, or, if the discrepancy relates to the unpaid principal balance of a
Contract, the Seller may deposit cash in the Collection Account in an amount
sufficient to offset such discrepancy.
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In addition to the Initial Contracts, the Trust's assets will include
the Trust's rights under the Agreement in respect of the Trust Depositor's
obligation to purchase from the Seller, and concurrently convey to the Trust,
Subsequent Contracts purchased as of the applicable Cutoff Date. Any conveyance
of Subsequent Contracts will be subject to the satisfaction of the following
conditions, among others (computed, where applicable, based on the
characteristics of the Initial Contracts on the initial Cutoff Date and any
Subsequent Contracts as of the related Cutoff Date): (i) each such Subsequent
Contract satisfies the eligibility criteria specified in the Transfer and Sale
Agreement and the related Subsequent Purchase Agreement executed thereunder;
(ii) as of the applicable Cutoff Date, no Contract in the Trust, including the
Subsequent Contracts that the Trust Depositor will be conveying as of such
Cutoff Date, will have a scheduled maturity date later than July 2007; (iii) the
Trust Depositor shall have executed and delivered in favor of the Trust a
Subsequent Transfer Agreement (as defined in and executed under the Agreement)
conveying such Subsequent Contracts to the Trust (including a schedule
identifying such Subsequent Contracts); (iv) the Trust Depositor shall have
delivered certain opinions of counsel to the Trustee, the Underwriters and the
Rating Agencies with respect to the validity and other aspects of the conveyance
of all such Subsequent Contracts and (v) the Rating Agencies shall have each
notified the Trust Depositor and the Trustees in writing that, following the
addition of such Subsequent Contracts, the Class A-1 Notes and Class A-2 Notes
will be rated "AAA" by Standard & Poor's Rating Services and "Aaa" by Moody's
Investors Service, Inc. and the Certificates will be rated at least "BBB" by
Standard & Poor's Rating Services and "Baa1" by Moody's Investors Service, Inc.
The Agreement will designate the Servicer as custodian to maintain
possession, as the Trustees' agent, of the Contracts and any other documents
relating to the motorcycles securing such Contracts. To facilitate servicing and
save administrative costs, the documents will not be segregated from other
similar documents that are in the Servicer's possession. Uniform Commercial Code
financing statements will be filed in Nevada and Illinois, reflecting the
conveyance and assignment of the Contracts to the Trust Depositor from the
Seller, the conveyance and assignment from the Trust Depositor to the Trust and
the pledge from the Trust to the Indenture Trustee, and the Seller's, Trust
Depositor's and Indenture Trustee's accounting records and computer systems will
also reflect such conveyance and assignment and pledge. In addition, each
Contract will be stamped to reflect their conveyance and assignment to the Trust
and the pledge to the Indenture Trustee. However, if, through fraud, negligence
or otherwise, a subsequent purchaser were able to take physical possession of
the Contracts without notice of such conveyance and assignment, the Indenture
Trustee's interest in the Contracts could be defeated. In addition, certificates
of title with respect to the motorcycles securing such Contracts will not be
amended to reflect the assignment of the Seller's security interest in such
motorcycles to the Trust Depositor, the assignment of the Trust Depositor's
security interest in such motorcycles to the Trust and the pledge of the Trust's
security interest to the Indenture Trustee. In the absence of amendments to the
certificates of title, the Indenture Trustee may not have a perfected security
interest in the motorcycles securing the Contracts. See "RISK FACTORS -- RISK OF
UNPERFECTED SECURITY INTERESTS IN FINANCED MOTORCYCLES" in the Prospectus.
The Seller will make certain representations and warranties in the
Transfer and Sale Agreement with respect to each Contract, including that
(references to the Closing Date below being deemed, in respect of Subsequent
Contracts, to refer to the date such Subsequent Contracts are transferred to the
Trust Depositor):
(a) as of the related Cutoff Date, the most recent scheduled
payment was made or was not delinquent more than 30 days and,
to the best of the Seller's knowledge, all payments on the
Contract were made by the Obligor;
(b) as of the Closing Date, no provision of a Contract has been
waived, altered or modified in any respect, except by
instruments or documents contained in the files customarily
maintained by the Servicer for each Contract;
(c) each Contract is a genuine, legal, valid and binding
obligation of the Obligor and is enforceable in accordance
with its terms (except as may be limited by laws affecting
creditors' rights generally);
(d) as of the Closing Date, no Contract is subject to any right
of rescission, set-off, counterclaim or defense;
(e) as of the Closing Date, each motorcycle securing a Contract is
covered by certain insurance policies described under
"--INDIVIDUAL MOTORCYCLE INSURANCE";
(f) each Contract was originated by a Harley-Davidson motorcycle
dealer in the ordinary course of such dealer's 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
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parties thereto and was sold by such dealer to the Seller
without any fraud or misrepresentation on the part of such
dealer;
(g) no Contract was originated in or is subject to the laws of any
jurisdiction whose laws would make the transfer, sale and
assignment of the Contract pursuant to the Transfer and Sale
Agreement or the Agreement or pursuant to transfers of
Certificates unlawful, void or voidable;
(h) each Contract and each sale of the related motorcycle
complies with all requirements of any applicable federal,
state or local law and regulations thereunder, including,
without limitation, usury, truth in lending, motor vehicle
installment loan and equal credit opportunity laws, with
such compliance not being affected by the Trust Depositor's
conveyance and assignment of the Contracts to the Trust, or
the Trust's pledge of the Contracts to the Indenture
Trustee, and the Seller will maintain in its possession,
available for inspection by or delivery to the Trust
Depositor and the Trustees, evidence of compliance with all
such requirements;
(i) as of the Closing Date no Contract has been satisfied,
subordinated in whole or in part or rescinded and the
motorcycle securing the Contract has not been released from
the lien of the Contract in whole or in part;
(j) each Contract creates a valid, subsisting and enforceable
first priority security interest in favor of the Seller in the
motorcycle securing such Contract; such security interest has
been conveyed and assigned by the Seller to the Trust
Depositor;
(k) the original certificate of title, certificate of lien or
other notification (the "LIEN CERTIFICATE") issued by the
body responsible for the registration of, and the issuance
of certificates of title relating to, motor vehicles and
liens thereon (the "REGISTRAR OF TITLES") of the applicable
state to a secured party which indicates the lien of the
secured party on such motorcycles is recorded on the
original certificate of title; and the original certificate
of title for each such motorcycle shows, or if a new or
replacement Lien Certificate is being applied for with
respect to such motorcycle the Lien Certificate will be
received within 180 days of the Closing Date and will show,
the Seller as original secured party under each Contract
and as the holder of a first priority security interest in
such motorcycle (and with respect to each Contract for
which the Lien Certificate has not yet been returned from
the Registrar of Titles, the Seller has received written
evidence from the related dealer that such Lien Certificate
showing the Seller as lienholder has been applied for);
(l) the Seller's security interest has been validly assigned by
the Seller to the Trust Depositor in order that immediately
after the sale, each Contract will be secured by an
enforceable and perfected first priority security interest in
the related 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 any state law enforcement
agency affecting a motorcycle);
(m) all parties to each Contract had capacity to execute such
Contract;
(n) no Contract has been sold, conveyed and assigned or pledged to
any other person other than the Trust Depositor, as transferee
of the Seller and the Trust as transferee of the Trust
Depositor and prior to the transfer of the Contract to the
Trust Depositor, the Seller had good and marketable title to
each Contract free and clear of any encumbrance, equity, loan,
pledge, charge, claim or security interest, and as of the
Closing Date, the Trust and the Owner Trustee will have a
first priority perfected security interest therein;
(o) as of the related Cutoff Date, there was no default, breach,
violation or event permitting acceleration under any Contract
(except for payment delinquencies permitted by clause (a)
above), no event which with notice and the expiration of any
grace or cure period would constitute a default, breach,
violation or event permitting acceleration under such
Contract, and the Seller has not waived any of the foregoing;
(p) as of the Closing Date, there are, to the best of the Seller's
knowledge, no liens or claims which have been filed for work,
labor or materials affecting a motorcycle securing a Contract,
which are or may be liens prior or equal to the lien of the
Contract;
(q) each Contract has a fixed rate of interest 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;
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(r) each Contract contains customary and enforceable provisions
such as to render the rights and remedies of the holder
thereof adequate for realization against the collateral of the
benefits of the security;
(s) the description of each Contract set forth in the list
delivered to the Trustees is true and correct; and
(t) there is only one original of each Contract.
The Seller will also make certain representations and warranties with
respect to the Contracts in the aggregate, including that:
(a) the aggregate principal amount payable by the Obligors as of the
initial Cutoff Date plus the initial deposit into the Pre-Funding
Account as of the Closing Date equals the sum of the initial
principal amount of the Notes and the initial Certificate Balance;
(b) each Initial Contract has a contractual rate of interest of at
least 8.50%;
(c) all motorcycles securing the Contracts are Harley-Davidson or
Buell motorcycles;
(d) approximately 59.77% of the aggregate Principal Balance of the
Initial Contracts is attributable to loans to purchase new
motorcycles and approximately 40.23% of the aggregate principal
balance of the Initial Contracts is attributable to loans to
purchase used motorcycles;
(e) no Initial Contract has a remaining maturity of more than 84
months;
(f) the first scheduled payment date of Contracts representing
approximately 99.31% of the aggregate principal balance of the
Initial Contracts is due no later than May 2000; the first
scheduled payment date of Contracts representing approximately
0.69% of the aggregate principal balance of the Initial Contracts
is due no later than August 2000; and
(g) no adverse selection procedures were or will be employed in
selecting the Contracts from the Seller's portfolio.
Under the Transfer and Sale Agreement and Subsequent Purchase Agreement
executed thereunder, the Seller will agree that in the event of a breach of any
such representations and warranties made by the Seller that materially and
adversely affects the Trustees' interest in any Contract the Seller will
repurchase such Contract not later than two Business Days prior to the first
Determination Date after the Seller becomes aware or receives written notice
from the Trust Depositor, Owner Trustee, Indenture Trustee or Servicer of such
breach unless such breach is cured. The repurchase price shall be an amount
equal to (i) the remaining principal balance of such Contract plus (ii) accrued
and unpaid interest at the annual rate of interest specified in the Contract
through the end of the immediately preceding Due Period. Under the Agreement,
the Trust Depositor will assign all of its right, title and interest in such
representations and warranties (including the Seller's repurchase obligations)
to the Owner Trustee. Under the Indenture, the Trust will pledge its right,
title and interest in such representations and warranties to the Indenture
Trustee. The Seller is selling the Contracts without recourse and, accordingly,
will have no obligation with respect to the Contracts other than pursuant to
such representations, warranties and repurchase obligations. The only remedy
that You and the Trust have for a breach of the Seller's representations and
warranties are the repurchase obligations of the Seller described above.
Pursuant to the Agreement, the Servicer will service and administer the
Contracts conveyed and assigned to the Trust and pledged to the Indenture
Trustee as more fully set forth below.
THE ACCOUNTS
THE COLLECTION ACCOUNT. Pursuant to the Agreement, the Indenture
Trustee will establish an account referred to herein as the Collection Account.
The Servicer will cause all collections made on or in respect of the Contracts
during a Due Period to be deposited in or credited to the Collection Account.
The Servicer is required to deposit, without deposit into any intervening
account, into the Collection Account as promptly as possible, but in any case
not later than the second Business Day following the receipt thereof, all
amounts received on or in respect of the Contracts. The Servicer is required to
use its best efforts to cause an Obligor to make all payments on the Contracts
directly to one or more Lockbox Banks, acting as agent for the Trust pursuant to
a Lockbox Agreement. Funds in the Collection Account will be invested in
Eligible Investments. All income or other gain from such
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investments will be promptly deposited in, and any loss resulting from such
investments shall be charged to, the Collection Account.
THE PRE-FUNDING ACCOUNT. Pursuant to the Agreement, the Indenture
Trustee will establish a trust account referred to herein as the Pre-Funding
Account. During the Funding Period, the Pre-Funding Account will be maintained
by the Indenture Trustee for your benefit to secure the Trust Depositor's
obligations under the Agreement to purchase and transfer Subsequent Contracts to
the Trust and the Trust's obligations under the Indenture to pledge Subsequent
Contracts to the Indenture Trustee. On the Closing Date, the Trust Depositor
will deposit $70,528,670.91 into the Pre-Funding Account. During the Funding
Period, amounts on deposit in the Pre-Funding Account will be reduced by the
amount thereof that the Trust Depositor uses to purchase Subsequent Contracts
from the Seller and contemporaneously transfer to the Trust. The Trust Depositor
expects that the Pre-Funded Amount will be reduced to less than $150,000 by the
Distribution Date occurring in July 2000. Any Pre-Funded Amount remaining at the
end of the Funding Period will be payable to the Noteholders (see "DESCRIPTION
OF THE NOTES -- MANDATORY SPECIAL REDEMPTION").
THE RESERVE FUND. You will be afforded certain limited protection
against losses in respect of the Contracts by the establishment of an account,
referred to herein as the Reserve Fund, in the name of the Indenture Trustee for
your benefit. The Reserve Fund will be created with the an initial deposit by
the Trust Depositor of $1,072,356.65 on the Closing Date. The funds in the
Reserve Fund will thereafter be supplemented on each Distribution Date by the
deposit of certain Excess Amounts and Subsequent Reserve Fund Amounts, until the
amount in the Reserve Fund reaches the Specified Reserve Fund Balance. On each
Distribution Date, funds will be withdrawn from the Reserve Fund, up to the
Reserve Fund Available Amount, for distribution to you to cover any shortfalls
in interest and principal required to be paid on the Notes and Certificates.
On each Distribution Date, after giving effect to all distributions
made on such Distribution Date, any amounts in the Reserve Fund that are in
excess of the Specified Reserve Fund Balance will be allocated and distributed
to the Trust Depositor. Upon any such distributions to the Trust Depositor, you
will have no further rights in, or claims to, such amounts.
Funds on deposit in the Reserve Fund may be invested in Eligible
Investments. Investment income on monies on deposit in the Reserve Fund will not
be available for distribution to Securityholders after the Specified Reserve
Fund Balance has been met and released to the Trust Depositor. Any loss on such
investments will be charged to the Reserve Fund.
CALCULATION OF SPECIFIED RESERVE FUND BALANCE. On the Closing Date, the
Trust Depositor will deposit a total of $1,072,356.65 into the Reserve Fund.
With respect to any Distribution Date, the Specified Reserve Fund Balance will
equal the greater of (a) 2.50% of the Principal Balance of the Contracts in the
Trust as of the first day of the immediately preceding Due Period; PROVIDED,
HOWEVER, that if certain trigger events occur (as more specifically described in
the Prospectus Supplement), the Specified Reserve Fund Balance will be equal to
6.00% of the Principal Balance of the Contracts in the Trust as of the first day
of the immediately preceding Due Period and (b) 1.00% of the aggregate of the
Initial Class A-1 Note Balance, Initial Class A-2 Note Balance and Initial
Certificate Balance; PROVIDED, HOWEVER, in no event shall the Specified Reserve
Fund Balance be greater than the aggregate outstanding principal balance of the
Securities. As of any Distribution Date, the amount of funds actually on deposit
in the Reserve Fund may, in certain circumstances, be less than the Specified
Reserve Fund Balance.
A "RESERVE FUND TRIGGER EVENT" will have been deemed to occur with
respect to any Distribution Date if (i) the Average Delinquency Ratio for such
Distribution Date is equal to or greater than (a) 2.50% with respect to any
Distribution Date which occurs within the period from the Closing Date to, and
inclusive of, the first anniversary of the Closing Date, (b) 3.00% with respect
to any Distribution Date which occurs within the period from the day after the
first anniversary of the Closing Date to, and inclusive of, the second
anniversary of the Closing Date, or (c) 3.50% for any Distribution Date which
occurs within the period from the day after the second anniversary of the
Closing Date to, and inclusive of, the third anniversary of the Closing Date or
(d) 4.00% for any Distribution Date following the third anniversary of the
Closing Date; (ii) the Average Loss Ratio for such Distribution Date is equal to
or greater than (a) 2.75% with respect to any Distribution Date which occurs
within the period from the Closing
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Date to, and inclusive of, the eighteen months following the Closing Date or
(b) 3.25% with respect to any Distribution Date which occurs following the
eighteen month period following the Closing Date; or (iii) the Cumulative
Loss Ratio for such Distribution Date is equal to or greater than (a) 0.75%
with respect to any Distribution Date which occurs within the period from the
Closing Date to, and inclusive of, the first anniversary of the Closing Date,
(b) 1.50% with respect to any Distribution Date which occurs within the
period from the day after the first anniversary of the Closing Date to, and
inclusive of, the second anniversary of the Closing Date, (c) 2.00% for any
Distribution Date which occurs within the period from the day after the
second anniversary of the Closing Date to, and inclusive of, the third
anniversary of the Closing Date, or (d) 2.50% following the third anniversary
of the Closing Date.
A Reserve Fund Trigger Event will be deemed to have terminated with
respect to a Distribution Date if no Reserve Fund Trigger Event shall exist with
respect to three consecutive Distribution Dates (inclusive of the respective
Distribution Date).
The Servicer may, from time to time after the date of this Prospectus
Supplement request each Rating Agency that rated any of the Notes and
Certificates to, at the request of the Trust Depositor, approve a formula for
determining the Specified Reserve Fund Balance that is different from the
formula described above and would result in a decrease in the amount of the
Specified Reserve Fund Balance or the manner by which the Reserve Fund is
funded. If each Rating Agency delivers a letter to the Indenture Trustee and the
Owner Trustee to the effect that the use of any such new formulation will not in
and of itself result in a qualification, reduction or withdrawal of its
then-current rating of any Class of Notes and Certificates then the Specified
Reserve Fund Balance will be determined in accordance with such new formula. The
Agreement will accordingly be amended to reflect such new calculation without
the consent of any Securityholder.
INTEREST RESERVE ACCOUNT. The Trust Depositor will establish, and fund
with an initial deposit on the Closing Date, the Interest Reserve Account, for
the purpose of providing additional funds for payment to the Trust of Carrying
Charges to pay certain distributions on Distribution Dates occurring during (and
on the first Distribution Date following the end of) the Funding Period. In
addition to the initial deposit, all investment earnings with respect to the
Pre-Funded Account are to be deposited into the Interest Reserve Account and,
pursuant to the Agreement, the Trust Depositor is obligated to pay to the Trust,
on each Distribution Date described above, amounts in respect of Carrying
Charges from such account.
The Interest Reserve Account will be established to account for the
fact that a portion of the proceeds obtained from the sale of the Notes will be
initially deposited in the Pre-Funding Account rather than invested in
Contracts, and the monthly investment earnings on amounts in the Pre-Funding
Account (until such amounts have been used to purchase Subsequent Contracts) are
expected to be less than the weighted average of the interest rates of the Class
A-1 Notes, Class A-2 Notes and Certificates with respect to the corresponding
portion of the principal balances of the Class A-1 Notes, Class A-2 Notes and
Certificates, as well as the amount necessary to pay the Trustees' Fees. The
Interest Reserve Account is not designed to provide any protection against
losses on the Contracts in the Trust. After the Funding Period, money in the
Interest Reserve Account will be released to the Trust Depositor.
THE NOTE AND CERTIFICATE DISTRIBUTION ACCOUNT. The Indenture Trustee
will establish and maintain with itself the Note Distribution Account, in the
name of the Indenture Trustee on behalf of the Noteholders, in which amounts
released from the Collection Account for distribution to Noteholders will be
deposited and from which all distributions to Noteholders will be made. The
Owner Trustee will establish the Certificate Distribution Account, in the name
of the Owner Trustee on behalf of the Certificateholders, in which amounts
released from the Collection Account for distribution to Certificateholders will
be deposited and from which all distributions to Certificateholders will be
made.
DETERMINATION OF OUTSTANDING PRINCIPAL BALANCES
Prior to each Distribution Date, the Servicer will calculate a
six-digit decimal factor which represents the unpaid principal amount of the
Class A-1 Notes, after giving effect to payments to be made on such Distribution
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Date, as a fraction of the initial outstanding principal amount of the Class A-1
Notes. Prior to each Distribution Date, the Servicer will calculate a six-digit
decimal factor which represents the unpaid principal amount of the Class A-2
Notes, after giving effect to payments to be made on such Distribution Date, as
a fraction of the initial outstanding principal amount of the Class A-2 Notes.
Similarly, prior to each Distribution Date, the Servicer will calculate a
six-digit decimal factor which represents the remaining Certificate Balance,
after giving effect to distributions to be made on such Distribution Date, as a
fraction of the initial Certificate Balance. If the Servicer were to perform
such calculations on the Closing Date, the resulting decimal factor for each of
the Class A-1 Note, Class A-2 Notes and Certificates would be 1.000000.
Thereafter, these decimal factors will decline in correspondence with reductions
in the outstanding principal amount of the Class A-1 Notes or Class A-2 Notes,
as applicable, or the Certificate Balance. Your portion of the aggregate
outstanding principal amount of Class A-1 Notes or Class A-2 Notes will be the
product of (i) the original denomination of the Class A-1 Notes or Class A-2
Notes you own and (ii) the decimal factor relating to the Class A-1 Notes or
Class A-2 Notes, as applicable, at the time of determination (calculated as
described above). Similarly, your portion of the aggregate outstanding
Certificate Balance will be the product of (i) the original denomination of the
Certificates you own and (ii) the decimal factor applicable to Certificates at
the time of determination (calculated as described above).
As a holder of Notes or Certificates, you will receive reports on or
about each Distribution Date concerning payments received on the Contracts, the
aggregate outstanding principal balance of the Contracts owned by the Trust, the
decimal factors described above and various other items of information. In
addition, Noteholders and Certificateholders of record during any calendar year
will be furnished information for tax reporting purposes not later than the
latest date permitted by law. See "CERTAIN INFORMATION REGARDING THE NOTES AND
CERTIFICATES -- STATEMENTS TO HOLDERS."
DISTRIBUTIONS ON THE NOTES AND CERTIFICATES
GENERAL. On the fourth Business Day of each month, a Determination
Date, the Servicer will determine the following: (i) the amount of Available
Monies with respect to the Distribution Date occurring in such month; (ii) the
Note Interest Distributable Amount; (iii) the Certificate Interest Distributable
Amount; (iv) the Note Principal Distributable Amount;; (v) the Certificate
Principal Distributable Amount; (vi) the Servicing Fee; and (vii) the Trustees'
Fees.
DEPOSITS TO THE NOTE AND CERTIFICATE DISTRIBUTION ACCOUNT; PRIORITY OF
PAYMENTS. On each Distribution Date, the Servicer will allocate amounts on
deposit in the Collection Account as described below and will instruct the
Indenture Trustee to make the following deposits and distributions in the
following amounts and order of priority:
(i) on or immediately following the last day of the Funding
Period, the amount that remains on deposit in the Pre-Funding Account
after giving effect to the purchase of all Subsequent Contracts,
including any such purchase on such Distribution Date, pro rata,
calculated on the then current principal balance of the Class A-1 and
Class A-2 Notes; PROVIDED, HOWEVER, in the event the Mandatory Special
Redemption Amount is less than $150,000 such amount shall be allocated
solely to the Class A-1 Noteholders;
(ii) to the Servicer from Available Monies, reimbursement to
the Servicer for advances it previously made to the Collection Account
for accrued and unpaid interest on the Contracts which was delinquent
with respect to the prior Due Period;
(iii) to the Servicer from Available Monies, the Servicing
Fee, including any unpaid Servicing Fee with respect to one or more
prior Due Periods;
(iv) to the Indenture Trustee and the Owner Trustee from
Available Monies, any accrued and unpaid Indenture Trustee's Fees and
Owner Trustee's Fees, respectively, with respect to one or more period
Due Periods;
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(v) to the Note Distribution Account from Available Monies,
the Note Interest Distributable Amount to the holders of the Notes at
their respective Interest Rates;
(vi) to the Certificate Distribution Account from Available
Interest, the Certificate Interest Distributable Amount to the holders
of the Certificates; provided, however, in the event Available Interest
is insufficient to make such payment, from such other monies as may be
available to the Trust;
(vii) to the Note Distribution Account from Available Monies,
the Note Principal Distributable Amount to the holders of the Class A-1
Notes until the principal amount of the Class A-1 Notes has been
reduced to zero, and second to the holders of the Class A-2 Notes until
the principal amount of the Class A-2 Notes has been reduced to zero;
(viii) to the Certificate Distribution Account from Available
Principal, the Certificate Principal Distributable Amount to the
holders of the Certificates; provided, however, in the event Available
Principal is insufficient to make such payment, from such monies as may
be available to the Trust; and
(ix) in the event that the distributions described in clauses
(i) through (viii) above have been funded exclusively from Available
Monies, any remaining Available Monies ("EXCESS AMOUNTS") will be
deposited into the Reserve Fund, until the amount on deposit therein
equals the Specified Reserve Fund Balance, with any excess being
distributed to the Trust Depositor.
If the Notes are accelerated following an Event of Default, amounts
collected following the sale or liquidation of the property of the Trust will be
distributed as set forth in the Indenture and until the principal amount of the
Notes is reduced to zero, no distributions of interest or principal will be made
on the Certificates. See "DESCRIPTION OF THE NOTES -- EVENTS OF DEFAULT."
PAYMENT PRIORITIES OF THE NOTES AND THE CERTIFICATES
GENERAL. Your rights to receive distributions with respect to the
Contracts will be subordinated to the rights of the Servicer (to the extent that
the Servicer has not been reimbursed for any of its outstanding advances for
delinquent accrued and unpaid interest and has not been paid all Servicing Fees)
and the Trustees and certain other entities (to the extent the Trustees and such
other entities have not received all fees and expenses payable to them). In
addition, your rights to receive distributions with respect to the Contracts
will be subject to the priorities set forth under "-- DISTRIBUTIONS ON THE NOTES
AND CERTIFICATES -- DEPOSITS TO The NOTE AND CERTIFICATE DISTRIBUTION ACCOUNT;
PRIORITY OF PAYMENTS." Such priorities and subordination are intended to enhance
the likelihood of timely receipt by the Noteholders of the full amount of
interest and, to a lesser extent, principal required to be paid to them, and to
afford such Noteholders limited protection against losses in respect of the
Contracts. In the event of delinquencies or losses on the Contracts, the
foregoing protection will be effected both by the preferential right of the
Noteholders to receive, to the extent described herein, current distributions
with respect to the Contracts and by the establishment of the Reserve Fund. If,
on any Distribution Date, the Certificate Principal Balance equals zero and
amounts on deposit in the Reserve Fund have been depleted as a result of losses
in respect of the Contracts, the protection afforded to the Noteholders by the
subordination of principal payments on the Certificates and by the Reserve Fund
will be exhausted and the Noteholders will bear directly the risks associated
with ownership of the Contracts.
Neither the Noteholders, Certificateholders, the Indenture Trustee, the
Owner Trustee, the Seller nor the Trust Depositor will be required to refund any
amounts properly distributed or paid to them, whether or not there are
sufficient funds on any subsequent Distribution Date to make full distributions
to the Noteholders and Certificateholders.
PAYMENTS FROM THE RESERVE FUND
Amounts held from time to time in the Reserve Fund will be held for
your benefit and will be deposited in either the Note Distribution Account or
the Certificate Distribution Account in the following order of priority:
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(i) on each Distribution Date on which the Note Interest
Distributable Amount exceeds the amount then on deposit in the Note
Distribution Account, the Noteholders will be entitled to receive such
deficiency from amounts on deposit in the Reserve Fund;
(ii) on each Distribution Date on which the Certificate
Interest Distributable Amount exceeds the amount then on deposit in the
Certificate Distribution Account, the Certificateholders will be
entitled to receive such deficiency from amounts on deposit in the
Reserve Fund;
(iii) on each Distribution Date on which the Note Principal
Distributable Amount exceeds the amount then on deposit in the Note
Distribution Account (after application of clause (i) above), the
Noteholders will be entitled to receive such deficiency (including
amounts necessary to reduce the outstanding principal balance of a
given class of Notes to zero on the final Distribution Date for such
class of Notes); and
(iv) on each Distribution Date on which the Certificate
Principal Distributable Amount exceeds the amount then on deposit in
the Certificate Distribution Account (after application of clause (ii)
above), the Certificateholders will be entitled to receive such
deficiency (including amounts necessary to reduce the balance of the
Certificates to zero on the final Distribution Date for the
Certificates).
STATEMENTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
On or prior to each Distribution Date, the Servicer will prepare and
provide to the Indenture Trustee a statement to be delivered to each Noteholder
and to the Owner Trustee a statement to be delivered to each Certificateholder
on such Distribution Date, setting forth with respect to the related
Distribution Date or Due Period, as applicable, among other things, the
following information:
(i) the amount of the Certificateholder's distribution
allocable to principal and the amount of the Noteholder's principal
distribution;
(ii) the amount of the Certificateholder's distribution
allocable to interest and the amount of the Noteholder's interest
distribution;
(iii) the amount of fees payable out of the Trust, separately
identifying the Servicing Fee, and the Trustees' Fees;
(iv) the amount of any Note Interest Carryover Shortfall, Note
Principal Carryover Shortfall, Certificate Interest Carryover Shortfall
and Certificate Principal Carryover Shortfall on such Distribution Date
and the change in such amounts from those with respect to the
immediately preceding Distribution Date;
(v) the six-digit decimal factors which represent the unpaid
principal amount of each of the Class A-1 Notes, Class A-2 Notes and
Certificates, after giving effect to payments to be made on such
Distribution Date, as a fraction of the initial outstanding principal
amount of the Class A-1 Notes, Class A-2 Notes and Certificates,
respectively (see "DETERMINATION OF OUTSTANDING PRINCIPAL BALANCES");
(vi) the amount of the distributions described in (i) or (ii)
above payable pursuant to a claim on the Reserve Fund or from any other
source not constituting Available Monies and the amount remaining in
the Reserve Fund after giving effect to all deposits and withdrawals
from the Reserve Fund on such date;
(vii) for the Distribution Date following the end of the
Funding Period, the amount of the Notes to be redeemed with funds
remaining in the Pre-Funding Account, to the extent that funds remain
in the Pre-Funding Account after giving effect to any purchases of
Subsequent Contracts on such Distribution Date;
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(viii) for each Distribution Date during the Funding Period,
the remaining amounts in the Pre-Funding Account;
(ix) for each Distribution Date during the Funding Period to
and including the Distribution Date immediately following the end of
the Funding Period, the Principal Balance and number of Subsequent
Contracts conveyed to the Trust during the related Due Period;
(x) the remaining Principal Balance after giving effect to the
distribution of principal (and any redemption of the Notes described in
(vii), if any) to each class of Notes and the Certificates to be made
on such Distribution Date;
(xi) the number and aggregate principal balance of Contracts
delinquent, 31-59 days, 60-89 days and 90 or more days, computed as of
the end of the related Due Period;
(xii) the number and aggregate Principal Balance of Contracts
that became Liquidated Contracts during the immediately preceding Due
Period, the amount of liquidation proceeds for such Due Period, the
amount of liquidation expenses being deducted from liquidation proceeds
for such Due Period, the Net Liquidation Proceeds and the Net
Liquidation Losses for such Due Period;
(xiii) the Loss Ratio, the Average Loss Ratio, the Cumulative
Loss Ratio, the Delinquency Ratio and the Average Delinquency Ratio as
of such Distribution Date;
(xiv) the number of Contracts and the aggregate Principal
Balance of such Contracts, as of the first day of the Due Period
relating to such Distribution Date (after giving effect to payments
received during such Due Period and to any transfers of Subsequent
Contract to the Trust occurring on or prior to such Distribution Date);
(xv) the aggregate Principal Balance and number of Contracts
that were repurchased by the Seller pursuant to the Agreement with
respect to the related Due Period, identifying such Contracts and the
repurchase price for such Contracts; and
(xvi) such other customary factual information as is available
to the Servicer as the Servicer deems necessary and can reasonably
obtain from its existing data base to enable Noteholders and
Certificateholders to prepare their tax returns.
Each amount set forth pursuant to subclauses (i), (ii), (iii) and (iv)
above will be expressed in the aggregate and as a dollar amount per $1,000 of
original principal amount of a Note or the initial Certificate Balance of a
Certificate, as the case may be. In addition, within the prescribed period of
time for tax reporting purposes after the end of each calendar year during the
term of the Agreement, the Indenture Trustee and the Owner Trustee will mail to
each person who at any time during such calendar year shall have been a
Noteholder or a Certificateholder, as the case may be, a statement containing
the sum of the amounts described in clauses (i), (ii), (iii) and (iv) above for
the purposes of such holder's preparation of federal income tax returns. See
"FEDERAL INCOME TAX CONSEQUENCES."
VOTING INTERESTS
The "VOTING INTERESTS" of the (i) each class of Notes will be allocated
among the Noteholders, in accordance with the unpaid principal amount of the
Notes of such class and (ii) Certificates will be allocated among the
Certificateholders, in accordance with the Certificate Balance represented
thereby; except that in certain circumstances any Notes and Certificates held by
the Trust Depositor or the Seller, or any of their respective affiliates shall
be excluded from such determination.
AMENDMENT
AMENDMENT OF THE AGREEMENT. The Agreement may be amended, without your
consent, to cure any ambiguity, correct or supplement any provision therein
which may be inconsistent with any other provision therein,
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to add any other provisions with respect to matters or questions arising
under the Agreement which are not inconsistent with the provisions thereof,
to add or provide for any credit enhancement for any class of Notes and
Certificates or to permit certain changes with respect to the amount required
to be maintained on deposit in the Reserve Fund; provided, that any such
action will not, in the opinion of counsel satisfactory to the related
Trustee, materially and adversely affect the interest of any Noteholder or
Certificateholders, and provided further, that in the case of a change with
respect to the amount required to be maintained on deposit in or pursuant to
the Reserve Fund, the Trustee receives a letter from each Rating Agency that
rated any of the Notes and Certificates to the effect that its then-current
rating on each class of Notes and Certificates will not be qualified, reduced
or withdrawn due to such amendment and the Servicer shall provide the Rating
Agencies notice of such amendment.
The Agreement may also be amended from time to time with the consent of
the holders of Notes and Certificates evidencing not less than 66 2/3% of the
respective voting interests thereof, for the purpose of adding any provisions to
or changing in any manner or eliminating any of the provisions of such agreement
or of modifying in any manner the rights of a class of Noteholders or
Certificateholders; provided, that no such amendment may (i) except as described
above, increase or reduce in any manner the amount of or accelerate or delay the
timing of collections of payments on or in respect of the Contracts, required
distributions on the Notes and Certificates, or the Specified Reserve Fund
Balance or the manner in which the Reserve Fund is funded, or (ii) reduce the
aforesaid percentage of the voting interests of which the holders of any class
of Notes and Certificates are required to consent to any such amendment, without
the consent of the holders of all of the relevant classes of Notes and
Certificates.
AMENDMENT OF THE TRUST AGREEMENT. The Trust Agreement may be amended
without your consent to cure any ambiguity, correct or supplement any provision
therein which may be inconsistent with any other provision therein, or to add
any other provisions with respect to matters or questions arising under such
agreement which are not inconsistent with the provisions thereof; provided, that
any such action will not, in the opinion of counsel satisfactory to the related
Trustee, materially and adversely affect the interests of any such Noteholder or
Certificateholder.
The Trust Agreement may also be amended from time to time with the
consent of the Noteholders and Certificateholders evidencing not less than 66
2/3% of the respective voting interests thereof, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
such agreement or of modifying in any manner the rights of the Noteholders or
Certificateholders, provided, that no such amendment may increase or reduce in
any manner the amount of or accelerate or delay the timing of (i) collections of
payments on or in respect of the Contracts or required distributions on the
Notes and Certificates or the interest rate of the Notes and Certificates or
(ii) reduce the aforesaid percentage of the voting interests of which the
holders of any class of Notes and Certificates are required to consent to any
such amendment, without the consent of the holders of all of the relevant class
of Notes and Certificates.
AMENDMENT OF THE INDENTURE. The Trust and the Indenture Trustee (on
behalf of such Trust) may, without consent of the Noteholders, enter into one or
more supplemental indentures for any of the following purposes:
(i) to correct or amplify the description of the property
subject to the lien of the Indenture or to subject additional property
to the lien of the Indenture;
(ii) to provide for the assumption of the Notes and the
Indenture obligations by a permitted successor to the Trust;
(iii) to add additional covenants for the benefit of the
related Noteholders, or to surrender any rights or powers conferred
upon the Trust;
(iv) to convey, transfer, assign, mortgage or pledge any
property to the Indenture Trustee;
(v) to cure any ambiguity or correct or supplement any
provision in the Indenture or in any supplemental indenture which may
be inconsistent with any other provision in the Indenture, any
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supplemental indenture, the Agreement or certain other agreements;
provided, that any action specified in clause (v) shall not adversely
affect the interests of any Noteholder;
(vi) to provide for the acceptance of the appointment of a
successor Indenture Trustee or to add to or change any of the
provisions of the Indenture as shall be necessary and permitted to
facilitate the administration by more than one Indenture Trustee;
(vii) to modify, eliminate or add to the provisions of the
Indenture in order to comply with the Trust Indenture Act of 1939, as
amended; and
(viii) to add any provisions to, change in any manner, or
eliminate any of the provisions of, the Indenture or modify in any
manner the rights of Noteholders under such Indenture; provided that
any action specified in clause (viii) shall not, as evidenced by an
opinion of counsel, adversely affect in any material respect the
interests of any Noteholder unless such Noteholder's consent is
otherwise obtained as described below.
Without the consent of the holder of each outstanding Note affected
thereby, no supplemental indenture may:
(i) change the due date of any installment of principal of or
interest on any Note or reduce the principal amount thereof, the
Interest Rate thereon (or the method by which such interest or
principal is calculated) or the redemption price with respect thereto
or change any place of payment where or the coin or currency in which
any such Note or any interest thereon is payable;
(ii) impair the right to institute suit for the enforcement
of the provisions of the Indenture regarding payment;
(iii) reduce the percentage of the voting interests of the
Notes, the consent of the holders of which is required for any such
supplemental indenture or the consent of the holders of which is
required for any waiver of compliance with certain provisions of the
Indenture or of certain defaults thereunder and their consequences as
provided for in the Indenture;
(iv) modify or alter the provisions of the Indenture regarding
the voting of Notes held by the Trust, any other obligor on such Notes,
the Trust Depositor, or any of their respective affiliates;
(v) reduce the percentage of the voting interests of the
Notes, the consent of the holders of which is required to direct the
Indenture Trustee to sell or liquidate the property of the Trust if the
proceeds of such sale or liquidation would be insufficient to pay the
principal amount and accrued but unpaid interest on the outstanding
Notes;
(vi) decrease the percentage of the aggregate of such Notes
required to amend the provisions of the Indenture which specify the
applicable percentage of voting interests of the Notes necessary to
amend such Indenture or certain other related agreements; or
(vii) permit the creation of any lien ranking prior to or on a
parity with the lien of the Indenture with respect to any of the
collateral for the Notes or, except as otherwise permitted or
contemplated in the Indenture, terminate the lien of such Indenture on
any such collateral or deprive the holder of any such Note of the
security afforded by the lien of such Indenture.
LIST OF NOTEHOLDERS AND CERTIFICATEHOLDERS
Upon the written request of the Servicer, the Owner Trustee will
provide to the Servicer within 15 days after receipt of such request, a list of
the names and addresses of all Certificateholders. In addition, three or more
holders of Certificates or holders of Certificates evidencing not less than 25%
of the voting interests of the Certificates, upon compliance by such
Certificateholders with certain provisions of the Trust Agreement, may
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request that the Owner Trustee afford such Certificateholders access during
business hours to the current list of Certificateholders of purposes of
communicating with other Certificateholders with respect to their rights
under the Trust Agreement.
Three or more holders of Notes may, by written request to the Indenture
Trustee, obtain access to the list of all Noteholders maintained by such
Indenture Trustee for the purpose of communicating with the other Noteholders
with respect to their rights under the Indenture or under the Notes. The
Indenture Trustee may elect not to afford the requesting Noteholders access to
the list of Noteholders if it agrees to mail the desired communication or proxy,
on behalf of and at the expense of the requesting Noteholders, to all
Noteholders.
Neither the Trust Agreement nor the Indenture will provide for the
holding of any annual or other meetings of Noteholders or Certificateholders.
TERMINATION
The obligations of the Servicer, the Trust Depositor, the Owner Trustee
and Indenture Trustee with respect to you pursuant to the Trust Agreement,
Agreement or Indenture will terminate upon the earliest to occur of (i) the
maturity or other liquidation of the last Contract and the disposition of any
amounts received upon liquidation of any property remaining in the Trust, or
(ii) the payment to all Noteholders and Certificateholders of all amounts
required to be paid to them pursuant to the Indenture and the Trust Agreement;
PROVIDED, HOWEVER, in no event shall the Trust continue beyond the expiration of
21 years from the death of the last survivor of the descendants of Joseph P.
Kennedy, the late Ambassador of the United States to the Court of St. James,
living on the Closing Date (each a "TERMINATION EVENT"). The Seller's
representations, warranties and indemnities will survive any termination of the
Agreement. Upon termination, amounts in the Collection Account, if any, will be
paid to the Trust Depositor.
The Owner Trustee and Indenture Trustee will give written notice of
termination to each Noteholder and Certificateholder of record. The final
distribution to you will be made only upon surrender and cancellation of your
Notes and Certificates at the office or agency of the related Trustee specified
in the notice of termination. Any funds remaining in the Trust, after such
Trustee has taken certain measures to locate you and such measures have failed,
will be distributed to a charity designated by the Servicer.
PAYMENT IN FULL OF NOTES
Upon the payment in full of all outstanding Notes and the satisfaction
and discharge of the Indenture, the Owner Trustee will succeed to all the rights
of the Indenture Trustee, and the Certificateholders will succeed to all the
rights of the Noteholders, under the Agreement, except as otherwise provided
therein.
THE TRUSTEES
A Trustee may resign at any time, in which event the Administrator, or
its successor, will be obligated to appoint a successor trustee. The
Administrator (as defined herein) may also remove the Owner Trustee or the
Indenture Trustee, in each case if such Trustee becomes insolvent or ceases to
be eligible to continue as trustee under the Trust Agreement or Indenture, as
the case may be. In such event, the Administrator will be obligated to appoint a
successor Owner Trustee or Indenture Trustee. Any resignation or removal of a
Trustee and appointment of a successor trustee will not become effective until
acceptance of the appointment by the successor trustee.
Each Trustee and any of its affiliates may hold Notes and Certificates
in their own names or as pledgees. For the purpose of meeting the legal
requirements of certain jurisdictions, the Administrator and the Owner Trustee
or Indenture Trustee acting jointly (or in some instances, the Owner Trustee and
Indenture Trustee acting without the Administrator) will have the power to
appoint co-trustees or separate trustees of all or any part of the Trust. In the
event of such an appointment, all rights, powers, duties and obligations
conferred or imposed upon such Trustee by the Indenture, the Agreement or Trust
Agreement will be conferred or imposed upon such Trustee and such separate
trustee or co-trustee jointly, or, in any jurisdiction in which such Trustee
will be incompetent or unqualified to perform certain acts, singly upon such
separate trustee or co-trustee who will exercise and perform such rights,
powers, duties and obligations solely at the direction of such Trustee.
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The Trust Agreement will further provide that the Owner Trustee will be
entitled to indemnification by the Trust Depositor for, and will be held
harmless against, any loss, liability or expense incurred by such Trustee not
resulting from its own willful misconduct, bad faith or negligence (other than
by reason of a breach of any of its representations or warranties set forth in
such agreement). The Indenture will further provide that the Indenture Trustee
will be entitled to indemnification by the Trust or the Administrator for any
loss, liability or expense incurred by such Trustee not resulting from its own
willful misconduct, negligence or bad faith.
DUTIES OF THE TRUSTEES
The Trustees will not make any representations as to the validity or
sufficiency of the Trust Agreement or the Indenture, the Notes and Certificates
issued pursuant thereto (other than the execution and authentication thereof) or
of any Contracts or related documents. The Trustees will not be accountable for
the use or application by the Trust Depositor or the Servicer of any funds paid
to the Trust Depositor or the Servicer in respect of such Notes and Certificates
or the related Contracts or the investment of any monies by the Servicer before
such monies are deposited into the Collection Account. The Trustees will not
independently verify the existence or characteristics of the Contracts. If no
Event of Default or Termination Event (as defined in "CERTAIN INFORMATION
REGARDING THE NOTES AND CERTIFICATES -- TERMINATION") has occurred and is
continuing, the Trustees will be required to perform only those duties
specifically required of it under the Indenture, the Trust Agreement or the
Agreement, as the case may be. Generally those duties will be limited to the
receipt of the various certificates and reports or other instruments required to
be furnished to such Trustee under such agreements, in which case it will only
be required to examine them to determine whether they conform to the
requirements of such agreements. The Trustees will not be charged with knowledge
of a failure by the Servicer to perform its duties under the relevant agreements
which failure constitutes an Event of Default or a Termination Event unless the
Owner Trustee or Indenture Trustee obtains actual knowledge of such failure as
specified in such agreements.
Neither the Indenture Trustee nor the Owner Trustee will be under any
obligation to exercise any of the rights or powers vested in it by the
Indenture, the Trust Agreement or the Agreement, as the case may be, or to make
any investigation of matters arising thereunder or to institute, conduct or
defend any litigation thereunder or in relation thereto at the request, order or
direction of any of Noteholders or Certificateholders, unless such Noteholders
or Certificateholders have offered to such Trustee reasonable security or
indemnity against the costs, expenses and liabilities that may be incurred
therein or thereby. No Noteholder or Certificateholders will have any right
under any such agreement to institute any proceeding with respect to such
agreement, unless such holder previously has given to such Trustee written
notice of default and (i) the default arises from the Servicer's failure to
remit payments when due or (ii) the holders of Notes and Certificates evidencing
not less than 25% of the voting interests of all of the related Notes and
Certificates, voting together as a single class, have made written request upon
such Trustee to institute such proceeding in its own name as Trustee thereunder
and have offered to such Trustee reasonable indemnity and such Trustee for 60
days has neglected or refused to institute any such proceedings.
TRUST DEPOSITOR LIABILITY
The Trust Agreement will require the Trust Depositor to agree to be
liable directly to an injured party for the entire amount of any losses, claims,
damages or liabilities (other than those incurred by a Noteholder or
Certificateholder in the capacity of an investor with respect to the Trust)
arising out of or based on the arrangement created by the Trust Agreement as
though such arrangement created a partnership under the Delaware Revised Uniform
Limited Partnership Act in which Trust Depositor was a general partner.
ADMINISTRATION AGREEMENT
Harley-Davidson Credit Corp., in its capacity as administrator (in such
capacity, the "ADMINISTRATOR"), will enter into an agreement (the
"ADMINISTRATION AGREEMENT") with the Trust, the Trust Depositor and the
Indenture Trustee pursuant to which the Administrator will agree, to the extent
provided in the Administration Agreement, to provide the notices and to perform
other administrative obligations required to be provided or performed by the
Trust or the Owner Trustee under the Indenture. The Administrator in the
Administration Agreement agrees to perform certain accounting functions of the
Trust which the Owner Trustee is required to perform pursuant to the Trust
Agreement, including but not limited to maintaining the books of the trust,
filing tax returns for the trust, and delivering tax related reports to each
Securityholder (except the Owner Trustee shall retain responsibility for
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distributing the Schedule K-1s). As compensation for the performance of the
Administrator's obligations under the Administration Agreement and as
reimbursement for its expenses related thereto, the Administrator will be
entitled to a monthly administration fee, which fee will be paid by the
Servicer.
COLLECTION AND OTHER SERVICING PROCEDURES
The Servicer will manage, administer, service and make collections on
the Contracts exercising the degree of skill and care consistent with the
highest degree of skill and care that the Servicer exercises with respect to
similar contracts serviced by the Servicer and in any event with no less degree
of skill and care than would be exercised by a prudent servicer of motorcycle
conditional sales contracts.
The Servicer may, consistent with its customary servicing procedures,
grant to the Obligor on any Contract an extension of payments due under such
Contract, provided that:
(i) the extension period is limited to 45 days;
(ii) the Obligor has not received an extension during the
previous twelve-month period;
(iii) the evidence supports the Obligor's willingness and
capability to resume monthly payments;
(iv) such extension is consistent with the Servicer's
customary servicing procedures and with the Agreement;
(v) such extension does not extend the maturity date of the
Contract beyond the last maturity date of any of the Contracts as of
the initial Cutoff Date (or as of the last Cutoff Date, if any); and
(vi) the aggregate Principal Balances of Contracts which have
had extensions granted does not exceed more than 3.00% of the aggregate
of the principal amount of the Notes and the Certificate Balance.
SERVICING COMPENSATION AND PAYMENT OF EXPENSES
The Servicer will be entitled to receive a monthly servicing fee for
each Due Period (to be paid on the related Distribution Date) equal to 1/12th of
1% of the Principal Balance of the Contracts as of the beginning of such Due
Period. Along with the monthly servicing fee, and included as part of the
"SERVICING FEE" as defined in the Agreement, the Servicer will be entitled to
receive late payment penalty fees and extension fee paid by Obligors during the
related Due Period as additional compensation. Such Servicing Fee is payable
prior to the payment of principal and interest on the Notes and Certificates.
See "CERTAIN INFORMATION REGARDING THE NOTES AND CERTIFICATES -- DISTRIBUTIONS
ON THE NOTES AND CERTIFICATES" above.
The Servicing Fee provides compensation for customary third-party
servicing activities to be performed by the Servicer for the Trust, for
additional administrative services performed by the Servicer on behalf of the
Trust and for expenses paid by the Servicer on behalf of the Trust.
Customary servicing activities include collecting and recording
payments, communicating with Obligors, investigating payment delinquencies,
providing billing and tax records to Obligors and maintaining internal records
with respect to each Contract. Administrative services performed by the Servicer
on behalf of the Trust include selecting and packaging the Contracts,
calculating distributions to Noteholders and Certificateholders and providing
related data processing and reporting services for Noteholders and
Certificateholders and on behalf of the Trustees. Expenses incurred in
connection with servicing of the Contracts and paid by the Servicer from its
servicing fees include payment of fees and expenses of accountants, payments of
all fees and expenses incurred in connection with the enforcement of Contracts,
and payment of expenses incurred in connection with distributions and reports to
Noteholders and Certificateholders.
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INDIVIDUAL MOTORCYCLE INSURANCE
The terms of each Contract require that for the life of the Contract,
each motorcycle is covered by a collision and comprehensive or equivalent
insurance policy which covers physical damage risks, provides limited insurance
coverage for damage to the motorcycle and names the Seller as a loss payee. The
amount of insurance coverage is limited to the value of the motorcycle. In the
Transfer and Sale Agreement, the Seller has warranted that each motorcycle
securing the Contracts are covered by physical damage insurance (i) in an amount
not less than the value of the motorcycle at the time the related Contract was
originated and (ii) that all premiums due on such insurance have been paid in
full from the date of the Contract's origination. Pursuant to Contract terms,
the Servicer may "FORCE PLACE" collision and comprehensive insurance with
respect to the related motorcycle in those situations in which the Obligor has
not maintained the required insurance. Currently, the Servicer utilizes
Recreational Products Insurance Division, a division of Universal Underwriters
Insurance Company, to "FORCE PLACE" comprehensive and collision insurance in 31
states in which Obligors reside. As conveyee and assignee of the Contracts, the
Trust will be entitled to the benefits of such insurance. See "CERTAIN
INFORMATION REGARDING THE NOTES AND CERTIFICATES -- CONVEYANCE OF CONTRACTS."
Following repossession of a motorcycle by the Servicer, the Servicer does not
maintain such insurance. In the event the Servicer repossesses a motorcycle on
behalf of the Trust, the Servicer will act as self-insurer for any damage to
such motorcycle until it is resold.
EVIDENCE AS TO COMPLIANCE
Pursuant to the Agreement, on or before March 31 of each year,
beginning on March 31, 2001, the Servicer will deliver to the Trustees and the
Rating Agencies a report of a nationally recognized accounting firm, with
respect to the twelve months ended the immediately preceding December 31, a
statement addressed to the Board of Directors of the Servicer, and to the
Trustees to the effect that such firm has audited the consolidated financial
statements of Harley-Davidson Financial Services, Inc. and issued its report
thereon and that such audit (1) was made in accordance with generally accepted
auditing standards, and accordingly included such tests of the accounting
records and such other auditing procedures as such firm considered necessary in
the circumstances; (2) included an examination of documents and records relating
to the servicing of substantially similar motorcycle conditional sales contracts
under substantially similar pooling and servicing agreements (such substantially
similar statement to have attached thereto a schedule setting forth the pooling
and servicing agreements covered thereby, including the Agreement); (3) included
an examination of the delinquency and loss statistics relating to the portfolio
of motorcycle conditional sales contracts of Harley-Davidson Financial Services,
Inc. and its subsidiaries; and (4) except as described in the statement,
disclosed no exceptions or errors in the records relating to motorcycle loans
serviced for others that, in the firm's opinion, generally accepted auditing
standards requires such firm to report. Such statement will further state that
(1) a review in accordance with agreed upon procedures was made of one randomly
selected Monthly Report and (2) except as disclosed in the Accountant's Report,
no exceptions or errors in the Monthly Report so examined were found.
The Agreement provides that the Servicer shall furnish to the Trustees
and the Rating Agencies such underlying data as each may reasonably request.
EVENTS OF TERMINATION
An Event of Termination under the Agreement will occur if (a) either
the Servicer or the Seller fails to make any payment or deposit required under
the Notes and Certificates, the Agreement or the Transfer and Sale Agreement and
such failure continues for four Business Days after the date on which such
payment or deposit was due; (b) either the Servicer or the Seller fails to
observe or perform in any material respect any covenant or agreement in the
Notes, Certificates, the Agreement or the Transfer and Sale Agreement which
continues unremedied for thirty days after the date on which such failure
commences; (c) either the Servicer or the Seller assigns its duties or rights
under the Agreement or the Transfer and Sale Agreement, except as specifically
permitted under the Agreement or the Transfer and Sale Agreement, or attempts to
make such an assignment; (d) a court having jurisdiction in the premises enters
a decree or order for relief in respect of the Servicer or Trust Depositor in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appoints a receiver, liquidator, assignee,
custodian, trustee or sequestrator (or similar official) of the Servicer, or
Trust Depositor, or for any substantial liquidation of their respective affairs;
(e) the Servicer or Trust Depositor commences a voluntary case under any
applicable bankruptcy, insolvency or similar law, or consents to the entry of
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an order for relief in an involuntary case under any such law, or consents to
the appointment of or taking possession by a receiver, liquidator, assignee,
trustee, custodian or sequestrator (or other similar official) of the
Servicer or Trust Depositor or for any substantial part of its property or
shall have made any general assignment for the benefit of creditors, or fails
to, or admits in writing its inability to, pay debts as they become due, or
takes any corporate action in furtherance of the foregoing; (f) the failure
of the Servicer to deliver the Monthly Report pursuant to the terms of the
Agreement and such failure remains uncured for five business days after the
date on which such failure commences; or (g) any representation, warranty or
statement of the Servicer made in the Agreement or any certificate, report or
other writing delivered pursuant thereto shall prove to be incorrect in any
material respect as of the time when the same shall have been made and the
incorrectness of such representation, warranty or statement has a material
adverse effect on the Trust and, within 30 days after written notice thereof
shall have been given to the Servicer or the Trust Depositor by the Trustee,
the circumstances or condition in respect of which such representation,
warranty or statement was incorrect shall not have been eliminated or
otherwise cured. The Servicer will be required under the Agreement to give
the Trustees, the Rating Agencies, the Noteholders and the Certificateholders
notice of an Event of Termination promptly upon the occurrence of such Event.
RIGHTS UPON AN EVENT OF TERMINATION
If an Event of Termination has occurred and is continuing, the
Noteholders evidencing more than 50% of the voting interests of the Notes or, if
all the Notes have been paid in full and the Indenture has been discharged in
accordance with its terms, the holders of Certificates evidencing more than 50%
of the voting interests of the Certificates, may terminate all of the Servicer's
management, administrative, servicing, custodian and collection functions under
the Agreement. Upon such termination, the Indenture Trustee will succeed to all
the responsibilities, duties and liabilities of the Servicer under the Agreement
and will be entitled to similar compensation arrangements; PROVIDED, HOWEVER,
that the Indenture Trustee will not assume any obligation of the Seller to
repurchase Contracts for breach of representations and warranties, and the
Indenture Trustee will not be liable for any acts or omissions of the Servicer
occurring prior to a transfer of the Servicer's servicing and related functions
or for any breach by the Servicer of any of its representations and warranties
contained in the Agreement or any related document or agreement. Notwithstanding
such termination, the Servicer shall be entitled to payment of certain amounts
payable to it prior to such termination, for services rendered prior to such
termination. No such termination will affect in any manner the Seller's
obligation to repurchase certain Contracts for breaches of representations and
warranties under the Agreement. In the event that the Indenture Trustee in so
acting would be in violation of legal requirements with a resulting material
adverse effect upon it, it may resign such role and if a successor has not been
appointed within 60 days, it may petition a court of competent jurisdiction for
its removal.
Following an Event of Termination, the Indenture Trustee shall
terminate the Lockbox Agreement and direct all Obligors under the Contracts to
make all payments under the Contracts to the Indenture Trustee, or to a lockbox
established by the Indenture Trustee.
ADVANCES
The Servicer is obligated to advance each month an amount equal to
accrued and unpaid interest on the Contracts which was delinquent with respect
to the related Due Period, but only to the extent that the Servicer believes
that the amount of such advance will be recoverable from collections on the
Contracts. The Servicer will deposit any advances in the Collection Account no
later than the Determination Date. The Servicer will be entitled to recoup such
advances on a Contract by means of a first priority withdrawal from Available
Monies on any Distribution Date.
SECURITY INTERESTS AND OTHER ASPECTS OF THE CONTRACTS;
REPURCHASE OBLIGATIONS
GENERAL
As a result of the Seller's conveyance and assignment of the Contracts
to the Trust Depositor pursuant to the Transfer and Sale Agreement, the Trust
Depositor's conveyance and assignment of the Contracts to the Trust pursuant to
the Agreement, the Trust's pledge to the Indenture Trustee pursuant to the
Indenture, the Noteholders and the Certificateholders, through the Indenture
Trustee, will succeed collectively to all of the rights under such Contracts
(including the right to receive payment on the Contracts) on or after the
related Cutoff Date. Each
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Contract evidences both (a) the obligation of the Obligor to repay the loan
evidenced thereby and (b) the grant of a security interest in the related
motorcycle to secure repayment of such loan. Certain aspects of both features
of the Contracts are more fully described below.
The Contracts are "CHATTEL PAPER" as defined in the Uniform Commercial
Code (the "UCC") in effect in the states in which the related motorcycles were
initially registered. Pursuant to the UCC, the sale of chattel paper is treated
in a manner similar to perfection of a security interest in chattel paper. The
Seller and the Trust Depositor will make an appropriate filing of UCC-1
financing statements in Nevada and Illinois to give notice of the Indenture
Trustee's security interest in the Contracts, and the Contracts held by the
Servicer as custodian will be stamped to reflect their conveyance and assignment
from the Seller to the Trust Depositor and the Trust Depositor to the Trust and
their pledge from the Trust to the Indenture Trustee. However, if a subsequent
purchaser were able to take physical possession of any Contracts without notice
of such conveyance and assignment, the Trust's interest in those Contracts could
be defeated. See "DESCRIPTION OF THE CERTIFICATES--CONVEYANCE OF CONTRACTS"
above.
SECURITY INTERESTS IN THE MOTORCYCLES
The motorcycles securing the Contracts are located in 50 states, the
District of Columbia and the U.S. Territories. Security interests in such
motorcycles may be perfected either by notation of the secured party's lien on
the certificate of title or by delivery of the required documents and payment of
a fee to the state motor vehicle authority, depending on state law. The Seller's
practice is to effect such notation or delivery of the required documents and
fees, and to obtain possession of the certificate of title, as appropriate under
the laws of the state in which any motorcycle securing a Contract is registered.
In the event either the Trust Depositor fails, due to clerical error, to effect
such notation or delivery, or files the security interest under the wrong law,
the Seller may not have a first priority security interest in the motorcycle
securing a Contract. In such event, the only recourse of the Trust would be
against the Seller pursuant to its repurchase obligation. See "SECURITY INTEREST
AND OTHER ASPECTS OF THE CONTRACTS; REPURCHASE OBLIGATIONS--REPURCHASE
OBLIGATIONS" below. However, the Seller believes that it has obtained a
perfected first priority security interest by proper notation or delivery of the
required documents and fees with respect to all of the motorcycles securing
Contracts.
The Seller will convey and assign its security interest in the
motorcycles to the Trust Depositor pursuant to the Transfer and Sale Agreement,
the Trust Depositor will convey and assign its security interest in such
motorcycles to the Trust pursuant to the Agreement and the Trust will pledge its
security interest in such motorcycles to the Indenture Trustee pursuant to the
Indenture. However, because of the administrative burden and expense, neither
the Seller, the Trust Depositor, the Owner Trustee nor the Indenture Trustee
will amend the certificates of title to identify the Indenture Trustee as the
new secured party and, accordingly, the Seller will continue to be named as the
secured party on the certificates of title relating to the motorcycles. See
generally "RISK FACTORS -- RISK OF UNPERFECTED SECURITY INTERESTS IN FINANCED
MOTORCYCLEs" in the Prospectus. The Seller, as Servicer, will continue to hold
any certificates of title relating to the motorcycles in its possession as
custodian and agent for the Trust pursuant to the Agreement.
In the event that the owner of a motorcycle moves to a state other than
the state in which such motorcycle initially is registered, under the laws of
most states the perfected security interest in the motorcycle would continue for
four months after such relocation and thereafter until the owner re-registers
the motorcycle in such state. A majority of states generally require surrender
of a certificate of title to re-register a motorcycle; accordingly, the Servicer
must surrender possession if it holds the certificate of title to such
motorcycle or, in the case of motorcycles registered in states which provide for
notation of lien, the Seller would receive notice of surrender if the security
interest in the motorcycle is noted on the certificate of title. Accordingly,
the Servicer would have the opportunity to re-perfect its security interest in
the motorcycle in the state of relocation. In states which do not require a
certificate of title for registration of a motor vehicle, re-registration could
defeat perfection. In the ordinary course of servicing its portfolio of
Contracts, the Servicer takes steps to effect such re-perfection upon receipt of
notice of re-registration or information from the Obligor or the Obligor's
insurance carrier as to relocation. Similarly, when an Obligor sells a
motorcycle, the Servicer must surrender possession of the certificate of title
or will receive notice as a result of its lien noted thereon and accordingly
will have an opportunity to require satisfaction of the related Contract before
release of the lien. Under the Agreement, the Servicer is obligated to take such
steps, at its expense, as are necessary to maintain perfection of security
interests in the motorcycles securing the Contracts.
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Under the laws of most states, liens for repairs performed on a
motorcycle take priority even over a perfected security interest. The Seller
will represent in the Transfer and Sale Agreement that as of the sale date of
the Contracts, it has no knowledge of any such liens with respect to any
motorcycle securing payment on any Contract. However, such liens could arise at
any time during the term of a Contract. No notice will be given to the Trust, to
the Noteholders or Certificateholders in the event such a lien arises.
ENFORCEMENT OF SECURITY INTERESTS IN MOTORCYCLES
The Servicer on behalf of the Trust may take action to enforce the
Trust's security interest with respect to defaulted Contracts by repossession
and resale of the Motorcycles securing such defaulted Contracts. Under the laws
applicable in most states, a creditor can repossess a motorcycle securing a
contract by voluntary surrender, by "SELF-HELP" repossession that is "PEACEFUL"
(I.E., without breach of the peace) or, in the absence of voluntary surrender
and the ability to repossess without breach of the peace, by judicial process.
The UCC and consumer protection laws in most states place restrictions on
repossession sales, including requiring prior notice to the debtor and
commercial reasonableness in effecting such a sale. In the event of such
repossession and resale of a Motorcycle, the Trust would be entitled to be paid
out of the sale proceeds before such proceeds could be applied to the payment of
the claims of unsecured creditors or the holders of subsequently perfected
security interests or, thereafter, to the debtor.
Under the laws applicable in most states, a creditor is entitled to
obtain a deficiency judgment from a debtor for any deficiency on repossession
and resale of the motor vehicle securing such debtor's loan. However, some
states impose prohibitions or limitations on deficiency judgments.
Certain other statutory provisions, including federal and state
bankruptcy and insolvency laws and general equitable principles, may limit or
delay the ability of a lender to repossess and resell collateral or enforce a
deficiency judgment.
OTHER MATTERS
The so-called "HOLDER-IN-DUE-COURSE" rule of the Federal Trade
Commission is intended to defeat the ability of the transferor of a consumer
credit contract which is the seller of goods which gave rise to the transaction
(and certain related lenders' assignees) to transfer such contract free of
notice of claims by the debtor thereunder. The effect of this rule is to subject
the assignee of such a contract to all claims and defenses which the debtor
could assert against the seller. Liability under this rule, which would be
applicable to the Trust, is limited to amounts paid under a Contract; however,
the Obligor also may be able to assert the rule to set off remaining amounts due
as a defense against a claim brought by the Trust against such Obligor. Numerous
other federal and state consumer protection laws impose requirements applicable
to the origination of and lending pursuant to the Contracts, including the Truth
in Lending Act, the Federal Trade Commission Act, the Fair Credit Billing Act,
the Fair Credit Reporting Act, the Equal Credit Opportunity Act, the Fair Debt
Collection Practices Act and the Uniform Consumer Credit Code. In the case of
some of these laws, the failure to comply with their provisions may affect the
enforceability of the related Contract. See generally "RISK FACTORS --
ADDITIONAL LEGAL LIMITS ON THE APPLICABLE TRUSTEE'S ABILITY TO REALIZE ON ITS
SECURITY INTEREST IN THE MOTORCYCLES; CONSUMER PROTECTION LAWS" in the
Prospectus.
REPURCHASE OBLIGATIONS
Under the Transfer and Sale Agreement, the Seller will make warranties
relating to validity, subsistence, perfection and priority of the security
interest in each motorcycle securing a Contract. Accordingly, if any defect
exists in the perfection of the security interest in any such motorcycle and
such defect materially adversely affects a Contract, such defect would
constitute a breach of a representation and warranty under the Transfer and Sale
Agreement and would create an obligation of the Trust Depositor to repurchase
such Contract from the Trust unless the breach is cured. See "CERTAIN
INFORMATION REGARDING THE NOTES AND CERTIFICATES--CONVEYANCE OF CONTRACTS"
above.
In addition, the Seller will also warrant under the Transfer and Sale
Agreement that each Contract complies with all requirements of law. Accordingly,
if any Obligor has a claim against the Trust for violation of any law and
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such claim materially adversely affects the Trust's interest in a Contract,
such violation would constitute a breach of a representation and warranty
under the Transfer and Sale Agreement and would create an obligation to
repurchase such Contract unless the breach is cured. See "CERTAIN INFORMATION
REGARDING THE NOTES AND CERTIFICATES--CONVEYANCE OF CONTRACTS" above.
FEDERAL INCOME TAX CONSEQUENCES
GENERAL
The following is a general and brief discussion of certain United
States federal income tax consequences of the purchase, ownership and
disposition of the Notes and the Certificates. For a full description of the
material federal income tax consequences of the ownership of Notes and
Certificates in the Owner Trust, see the Prospectus, "FEDERAL INCOME TAX
CONSEQUENCES--OWNER TRUSTS." Any material variations from the discussion in the
Prospectus, "FEDERAL INCOME TAX CONSEQUENCES--OWNER TRUSTs" will be specified
below.
The discussion herein is based upon current provisions of the Internal
Revenue Code of 1986, as amended (the "CODE"), Treasury Regulations promulgated
thereunder, current administrative rulings, judicial decisions and other
applicable authorities in effect as of the date hereof, all of which are subject
to change, possibly with retroactive effect. There are no cases or Internal
Revenue Service ("IRS") rulings on similar transactions involving a trust and
instruments issued by that trust with terms similar to those of the Trust, and
the Notes and the Certificates. As a result, there can be no assurance that the
IRS will not challenge the conclusions set forth in the following summary, and
no ruling from the IRS has been or will be sought on any of the issues discussed
below. Furthermore, legislative, judicial or administrative changes may occur,
perhaps with retroactive effect, which could affect the accuracy of the
statements and conclusions set forth herein as well as the tax consequences to
holders of the Notes and the Certificates.
This discussion and the more detailed discussion set forth in the
Prospectus, "FEDERAL INCOME TAX CONSEQUENCES--OWNER TRUSTS," do not purport to
deal with all aspects of federal income taxation that may be relevant to all
holders of Notes and Certificates in light of their personal investment or tax
circumstances nor to certain types of holders who may be subject to special
treatment under the federal income tax laws (including, without limitation,
financial institutions, broker-dealers, insurance companies, foreign persons,
tax-exempt organizations and persons who hold the Notes or Certificates as part
of a straddle, hedging or conversion transaction). This information is generally
directed to prospective purchasers who purchase Notes or Certificates at the
time of original issue, who are citizens or residents of the United States, and
who hold the Notes or Certificates as "CAPITAL ASSETS" within the meaning of
Section 1221 of the Code. Taxpayers and preparers of tax returns (including
those filed by any partnership or other issuer) should be aware that under
applicable Treasury Regulations a provider of advice on specific issues of law
is not considered an income tax return preparer unless the advice is (i) given
with respect to events that have occurred at the time the advice is rendered and
is not given with respect to the consequences of contemplated actions, and (ii)
is directly relevant to the determination of an entry on a tax return.
Accordingly, taxpayers should consult their own tax advisors and tax return
preparers regarding the preparation of any item on a tax return, even where the
anticipated tax treatment has been discussed herein. PROSPECTIVE INVESTORS
SHOULD CONSULT WITH THEIR OWN TAX ADVISORS AS TO THE FEDERAL, STATE, LOCAL,
FOREIGN AND ANY OTHER TAX CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND
DISPOSITION OF NOTES AND CERTIFICATES.
TAX CHARACTERIZATION OF THE TRUST AND THE NOTES
Winston & Strawn, as federal tax counsel ("FEDERAL TAX COUNSEL") to the
Trust Depositor, has delivered an opinion to the Trust Depositor that for U.S.
federal income tax purposes (i) the Trust will not be treated as an association
(or publicly traded partnership) taxable as a corporation and (ii) the Notes
will be treated as indebtedness of the Trust. This opinion is based on the
assumption that the terms of the Trust Agreement and related documents will be
complied with, including, without limitation, that the Trust Depositor, each
Certificateholder, and each Noteholder will agree to treat the Certificates as
equity interests in a partnership and the Notes as debt of such partnership and
that the Certificateholders will take all action necessary, if any, or refrain
from taking any inconsistent action so as to ensure that the Trust is a
partnership under Treasury Regulations sections 301.7701-2 and 301.7701-3. The
Owner Trustee on behalf of the Trust will file IRS Form 8832 making for the
Trust a
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protective election to be treated as a partnership for federal income tax
purposes. The opinion is also based on Federal Tax Counsel's conclusions that
(i) the Trust will constitute a business entity that has two or more members
within the meaning of those regulations; (ii) the nature of the Trust's
income will exempt it from the rule that certain publicly traded partnerships
are taxable as corporations, and (iii) the Trust, if a corporation, would not
constitute a regulated investment company under Code Section 851. An opinion
of counsel is not binding on a court or the IRS and there can be no assurance
that the IRS or a court will agree with Federal Tax Counsel's opinion.
GENERAL TAX TREATMENT OF A HOLDER OF A NOTE
Unless the Notes are treated as having original issue discount, a
holder of a Note will generally be taxable on the interest received or accrued
with respect to the Note under the holder's general system of tax accounting. On
a sale of a Note, a holder will generally recognize gain or loss on the
difference between the amount realized and the holder's basis in the Note. Such
gain or loss generally will be capital gain or loss. Withholding tax may be
imposed on payments received with respect to the Notes unless certain IRS forms
are provided to the Owner Trustee or the holder is eligible for an exemption
from such withholding. For a complete discussion of these withholding rules and
the other federal income tax consequences to a holder of the Notes, see the
Prospectus under "FEDERAL INCOME TAX CONSEQUENCES--OWNER TRUSTS."
GENERAL TAX TREATMENT OF A HOLDER OF A CERTIFICATE
A holder of a Certificate, as a partner in a partnership, will be
treated as receiving such holder's allocable share of the Trust's income, gain,
loss, or deductions in accordance with the terms of the Trust Agreement, the
Code, and the Regulations promulgated thereunder. The holder will generally
recognize gain or loss on the sale of a Certificate equal to the difference
between the amount realized and the holder's basis in its partnership interest
that is allocated to the Certificate. Withholding taxes may also be imposed with
respect to payments on the Certificates unless certain IRS forms are provided to
the Owner Trustee or the holder is eligible for an exemption from such
withholding. For a complete discussion of these withholding tax rules and the
other federal income tax consequences to a holder of a Certificate, see the
Prospectus under "FEDERAL INCOME TAX CONSEQUENCES--OWNER TRUSTS."
ERISA CONSIDERATIONS
THE NOTES
The Employee Retirement Income Security Act of 1974, as amended
("ERISA"), imposes certain requirements on employee benefit plans subject to
ERISA ("ERISA PLANS") and prohibits certain transactions between ERISA Plans and
persons who are "PARTIES IN INTEREST" (as defined under ERISA) with respect to
assets of such Plans. Section 4975 of the Code prohibits a similar set of
transactions between certain plans or individual retirement accounts ("CODE
PLANS," and together with ERISA Plans, "PLANS") and persons who are
"DISQUALIFIED PERSONS" (as defined in the Code) with respect to Code Plans.
Certain employee benefit plans, such as governmental plans and church plans (if
no election has been made under Section 410(d) of the Code), are not subject to
the requirements of ERISA or Section 4975 of the Code, and assets of such plans
may be invested in the Notes, subject to the provisions of other applicable
federal and state law. Any such plan which is qualified under Section 401(a) of
the Code and exempt from taxation under Section 501(a) of the Code is, however,
subject to the prohibited transaction rules set forth in Section 503 of the
Code.
Investments by ERISA Plans are subject to ERISA's general fiduciary
requirements, including the requirement of investment prudence and
diversification and the requirement that investments be made in accordance with
the documents governing the ERISA Plan. Before investing in the Notes, an ERISA
Plan fiduciary should consider, among other factors, whether to do so is
appropriate in view of the overall investment policy and liquidity needs of the
ERISA Plan.
PROHIBITED TRANSACTIONS
In addition, Section 406 of ERISA and Section 4975 of the Code prohibit
parties in interest and disqualified persons with respect to ERISA Plans and
Code Plans from engaging in certain transactions involving such Plans or
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"PLAN ASSETS" of such Plans, unless a statutory or administrative exemption
applies to the transaction. Section 4975 of the Code and Sections 502(i) and
502(1) of ERISA provide for the imposition of certain excise taxes and civil
penalties on certain persons that engage or participate in such prohibited
transactions. The Trust Depositor, the Underwriters, the Servicer, the
Indenture Trustee or the Owner Trustee or certain affiliates thereof may be
considered or may become parties in interest or disqualified persons with
respect to a Plan. If so, the acquisition or holding of the Notes by, on
behalf of or with "PLAN ASSETS" of such Plan may be considered to give rise
to a "prohibited transaction" within the meaning of ERISA and/or Section 4975
of the Code, unless an administrative exemption described below or some other
exemption is available.
The Notes may not be purchased with the assets of a Plan if the Trust
Depositor, the Underwriters, the Servicer, the Indenture Trustee, or the Owner
Trustee or an affiliate thereof either (a) has discretionary authority or
control with respect to the investment or management of such assets or (b) has
authority or responsibility to give, or regularly gives, investment advice with
respect to such assets pursuant to an agreement or understanding that such
advice will serve as a primary basis for investment decisions with respect to
such assets and that such advice will be based on the particular needs of the
Plan or (c) is an employer of employees covered under the Plan, unless such
investment is made through an insurance company general or pooled separate
account or a bank collective investment fund and an exemption is available.
Depending on the relevant facts and circumstances, certain prohibited
transaction exemptions may apply to the purchase or holding of the Notes - for
example, Prohibited Transaction Class Exemption ("PTCE") 96-23, which exempts
certain transactions effected on behalf of a Plan by an "IN-HOUSE ASSET
MANAGER;" PTCE 95-60, which exempts certain transactions between insurance
company general accounts and parties in interest; PTCE 91-38, which exempts
certain transactions between bank collective investment funds and parties in
interest; PTCE 90-1, which exempts certain transactions between insurance
company pooled separate accounts and parties in interest; or PTCE 84-14, which
exempts certain transactions effected on behalf of a Plan by a "QUALIFIED
PROFESSIONAL ASSET MANAGER." There can be no assurance that any of these
exemptions will apply with respect to any Plan's investment in the Notes or,
even if an exemption were deemed to apply, that any exemption would apply to all
prohibited transactions that may occur in connection with such investment.
Due to the complexity of these rules and the penalties imposed, any
fiduciary or other Plan investor who proposes to invest assets of a Plan in the
Notes should consult with its counsel with respect to the potential consequences
under ERISA and Section 4975 of the Code of doing so.
THE CERTIFICATES
The Certificates may not be acquired by a Plan. By its acceptance of a
Certificate or a beneficial interest therein, each Certificateholder or
Certificate Owner will be deemed to have represented and warranted that it is
not (i) an employee benefit plan (as defined in Section 3(3) of ERISA) that is
subject to the provisions of Title I of ERISA, (ii) a plan described in Section
4975(e)(1) of the Code (other than a governmental plan described in Section
4975(g)(2) of the Code) or (iii) any entity whose underlying assets include
assets of such a plan by reason of the plan's investment in the entity or which
uses assets of such a plan to acquire Certificates.
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<PAGE>
UNDERWRITING
Subject to the terms and conditions set forth in the Underwriting
Agreement dated April 19, 2000, among the Seller, the Trust Depositor and the
underwriters named below (the "UNDERWRITING AGREEMENT"), the Seller has agreed
to cause the Trust to sell to each of the underwriters named below, and the
underwriters have severally agreed to purchase, the principal amount of the
Notes and Certificates set forth opposite its name below.
<TABLE>
<CAPTION>
Principal Amount of Principal Amount of Principal Amount of
Underwriters Class A-1 Notes Class A-2 Notes Certificates
<S> <C> <C> <C>
Salomon Smith Barney Inc. $ 91,000,000 $42,950,000 $ 8,550,000
First Union Securities, Inc. 91,000,000 42,950,000 8,550,000
---------- ----------- ------------
Total $182,000,000 $85,900,000 $17,100,000
============ =========== ============
</TABLE>
The Seller has been advised by the underwriters that they propose
initially to offer the Notes and Certificates to the public at the prices set
forth herein, and to certain dealers at such prices less the initial concession
not in excess of 0.13% per Class A-1 Note, 0.16% per Class A-2 Note and 0.35%
per Certificate. The underwriters may allow and such dealers may reallow a
concession not in excess of 0.09% per Class A-1 Note, 0.12% per Class A-2 Note
and 0.26% per Certificate to certain other dealers. After the initial public
offering of the Notes and Certificates, the public offering price and such
concessions may be changed.
Until the distribution of the Notes and Certificates is completed,
rules of the Commission may limit the ability of the underwriters and certain
selling group members to bid for and purchase the Notes and Certificates. As an
exception to these rules, the underwriters are permitted to engage in certain
transactions that stabilize the price of the Notes and Certificates. Such
transactions consist of bids or purchases for the purpose of pegging, fixing or
maintaining the price of the Notes and Certificates.
There is currently no secondary market for the Notes or Certificates
and you should not assume that one will develop. The underwriters currently
expect, but are not obligated to make a market in the Notes and Certificates.
You should not assume that any such market will develop, or if one does develop,
that it will continue or provide sufficient liquidity.
Certain persons participating in this offering may engage in
transactions that affect the price of the Notes and Certificates. Such
transactions may include the purchase of Notes and/or Certificates to cover
syndicate short positions. If the underwriters create a short position in the
Notes and Certificates in connection with the offering, I.E., if it sells more
Notes and Certificates than are set forth on the cover page of this Prospectus
Supplement, the underwriters may reduce that short position by purchasing Notes
and Certificates in the open market. In general, purchases of a security to
reduce a short position could cause the price of the security to be higher than
it might be in the absence of such purchases.
Neither the Seller nor the underwriters make any representations or
prediction as to the direction or magnitude of any effect that the transactions
described above, if engaged in, may have on the prices of the Notes and
Certificates. In addition, neither the Seller nor the underwriters make any
representation that the underwriters will engage in such transactions or that
such transactions, once commenced, will not be discontinued without notice.
The underwriters have represented and agreed that:
(i) they have not offered or sold and, prior to the expiration of the
period of six months from the Closing Date, will not offer or sell any Notes and
Certificates to persons in the United Kingdom, except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or
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<PAGE>
agent) for the purposes of their businesses or otherwise in circumstances
which have not resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of Notes and
Certificates Regulation 1995;
(ii) they have complied and will comply with all applicable provisions
of the Financial Services Act 1986 with respect to anything done by it in
relation to the Notes and Certificates in, from or otherwise involving the
United Kingdom; and
(iii) they have only issued or passed on and will only issue or pass on
in the United Kingdom any document received by it in connection with the issue
of the Notes and Certificates to a person who is of a kind described in Article
11(3) of the Financial Services Act 1986 (Investment Advertisements)
(Exemptions) Order 1995, or is a person to whom such document may otherwise
lawfully be issued or passed on.
The Underwriting Agreement provides that the Seller and the Trust
Depositor will indemnify the underwriters against certain liabilities, including
liabilities under the Notes and Certificates Act, or contribute to payments the
underwriters may be required to make in respect thereof.
In the ordinary course of their respective businesses, the underwriters
and their respective affiliates have engaged and may in the future engage in
investment banking or commercial banking transactions with Harley-Davidson,
Inc., Harley-Davidson Credit Corp., Harley-Davidson Financial Services, Inc. or
any of their respective affiliates.
RATINGS OF THE SECURITIES
It is a condition of issuance that each of the Class A-1 Notes and
Class A-2 Notes be rated "AAA" by Standard & Poor's Rating Services and "Aaa" by
Moody's Investors Services, Inc. and the Certificates be rated at least "BBB" by
Standard & Poor's Rating Services and "Baa1" by Moody's Investors Services, Inc.
There is no assurance that any such rating will continue for any period
of time or that it will not be revised or withdrawn entirely by the assigning
rating agency if, in its judgment, circumstances so warrant. A revision or
withdrawal of such rating may have an adverse effect on the market price of the
Notes and the Certificates. A security rating is not a recommendation to buy,
sell or hold the Notes and Certificates.
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<PAGE>
LEGAL MATTERS
Certain legal matters with respect to the Notes and Certificates,
including certain federal income tax matters, will be passed upon for the
Seller, Servicer, Trust Depositor and the Trust by Winston & Strawn, Chicago,
Illinois. Certain legal matters for the Underwriters will be passed upon by
Brown & Wood LLP, New York, New York.
REPORTS TO NOTEHOLDERS AND CERTIFICATEHOLDERS
Unless and until the Notes and Certificates are issued in physical
form, monthly and annual unaudited reports containing information concerning the
Contracts will be prepared by the Servicer, and sent on behalf of the Trust only
to Cede & Co., as nominee of DTC and registered holder of the Notes and
Certificates. No financial reports will be sent to you. See "CERTAIN INFORMATION
REGARDING THE NOTES AND CERTIFICATES--BOOK-ENTRY REGISTRATION" and "--STATEMENTS
TO NOTEHOLDERS AND CERTIFICATEHOLDERS" in this Prospectus Supplement. Such
reports will not constitute financial statements prepared in accordance with
generally accepted accounting principles. The Servicer will file with the
Securities and Exchange Commission (the "COMMISSION" or the "SEC") such periodic
reports with respect to the Trust as are required under the Securities Exchange
Act of 1934, as amended and the rules and regulations of the Securities and
Exchange Commission thereunder.
We filed a registration statement relating to the Notes and
Certificates with the Commission. This Prospectus is part of the registration
statement, but the registration statement includes additional information.
The Servicer will file with the Commission all required reports and
other information about the Trust.
You may read and copy any reports, statements or other information we
file at the Commission's reference room in Washington, D.C. You can request
copies of these documents, upon payment of a duplicating fee, by writing to the
Commission. Please call the Commission at (800) SEC-0330 for further information
on the operation of the public reference rooms. Our filings with the Commission
are also available to the public on the SEC Internet site (http://www.sec.gov.).
The SEC allows us to "incorporate by reference" information we file
with it, which means that we can disclose important information to you by
referring you to those documents. The information incorporated by reference is
considered to be part of this Prospectus. Information that we file later with
the SEC will automatically update the information in this Prospectus. In all
cases, you should rely on the later information over different information
included in this Prospectus or the accompanying Prospectus Supplement. We
incorporate by reference any future annual, monthly and special SEC reports and
proxy materials filed by or on behalf of the Trust until we terminate our
offering of the Notes and Certificates.
As a recipient of this Prospectus, you may request a copy of any
document we incorporate by reference, except exhibits to the documents (unless
the exhibits are specifically incorporated by reference), at no cost, by writing
or calling us at:
Harley-Davidson Financial Services, Inc.
150 South Wacker, Suite 3100
Chicago, Illinois 60606
Attention: Treasurer (telephone (312) 368-9501; facsimile (312) 368-4372).
S-49
<PAGE>
ANNEX I
GLOBAL CLEARANCE, SETTLEMENT AND TAX DOCUMENTATION PROCEDURES
Except in certain limited circumstances, the globally offered Notes and
Certificates (the "GLOBAL NOTES AND CERTIFICATES") will be available only in
book-entry form. Investors in the Global Notes and Certificates may hold such
Global Notes and Certificates through DTC and, in the case of the Notes,
Clearstream or Euroclear. The Global Notes and Certificates will be tradeable as
home market instruments in both the European and U.S. domestic markets. Initial
settlement and all secondary trades will settle in same-day funds. Capitalized
terms used but not defined in this Annex I have the meanings assigned to them in
the Prospectus Supplement and the Prospectus.
Secondary market trading between investors holding Global Notes and
Certificates through Clearstream and Euroclear will be conducted in the ordinary
way in accordance with their normal rules and operating procedures and in
accordance with conventional eurobond practice (I.E. seven calendar day
settlement). Secondary market trading between investors holding Global Notes and
Certificates through DTC will be conducted according to the rules and procedures
applicable to U.S. corporate debt obligations.
Secondary cross-market trading between Clearstream or Euroclear and DTC
Participants holding Global Notes and Certificates will be effected on a
delivery-against-payment basis through the respective Depositaries of
Clearstream and Euroclear (in such capacity) and as DTC Participants. Non-U.S.
holders (as described below) of Global Notes and Certificates will be subject to
U.S. withholding taxes unless such holders meet certain requirements and deliver
appropriate U.S. tax documents to the securities clearing organizations or their
participants.
INITIAL SETTLEMENT
All Global Notes and Certificates will be held in book-entry form by
DTC in the name of Cede & Co. as nominee of DTC. Investors' interests in the
Global Notes and Certificates will be represented through financial institutions
acting on their behalf as direct and indirect Participants in DTC. As a result,
Clearstream and Euroclear will hold positions on behalf of their participants
through their respective Depositaries, which in turn will hold such positions in
accounts as DTC Participants.
Investors electing to hold their Global Notes and Certificates through
DTC will follow the settlement practices applicable to similar issues on
pass-through certificates. Investors' securities custody accounts will be
credited with their holdings against payment in same-day funds on the settlement
date.
Investors electing to hold their Global Notes and Certificates through
Clearstream or Euroclear accounts will follow the settlement procedures
applicable to conventional eurobonds, except that there will be no temporary
global security and no "LOCK-UP" or restricted period. Global Notes and
Certificates will be credited to the securities custody accounts on the
settlement date against payments in same-day funds.
SECONDARY MARKET TRADING
Since the purchaser determines the place of delivery, it is important
to establish the time of the trade where both the purchaser's and seller's
accounts are located to ensure that settlement can be made on the desired value
date.
TRADING BETWEEN DTC PARTICIPANTS. Secondary market trading between DTC
Participants will be settled using the procedures applicable to similar issues
of pass-through certificates in same-day funds.
TRADING BETWEEN CLEARSTREAM AND/OR EUROCLEAR PARTICIPANTS. Secondary
market trading between Clearstream Participants or Euroclear Participants will
be settled using the procedures applicable to conventional eurobonds in same-day
funds.
TRADING BETWEEN DTC SELLER AND CLEARSTREAM OR EUROCLEAR PURCHASER. When
Global Notes and Certificates are to be transferred from the account of a DTC
Participant to the account of a Clearstream Participant or a Euroclear
Participant, the purchaser will send instructions to Clearstream or Euroclear
through a Clearstream Participant or Euroclear Participant at least one business
day prior to settlement. Clearstream or Euroclear will
S-50
<PAGE>
instruct the respective Depositary, as the case may be, to receive the Global
Notes and Certificates against payment. Payment will include interest accrued
on the Global Notes and Certificates from and including the last coupon
payment date to and excluding the settlement date. Payment will then be made
by the respective Depositary to the DTC Participant's account against
delivery of the Global Notes and Certificates. After settlement has been
completed, the Global Notes and Certificates will be credited to the
respective clearing system and by the clearing system, in accordance with its
usual procedures, to the Clearstream Participant's or Euroclear Participant's
account. The Global Notes and Certificates credit will appear the next day
(European time) and the cash debit will be back-valued to, and the interest
on the Global Notes and Certificates will accrue from, the value date; (which
would be the preceding day when settlement occurred in New York). If
settlement is not completed on the intended value date (I.E., the trade
fails), the Clearstream or Euroclear cash debit will be valued instead as of
the actual settlement date.
Clearstream Participants and Euroclear Participants will need to make
available to the respective clearing systems the funds necessary to process
same-day funds settlement. The most direct means of doing so is to pre-positions
funds for settlement, either from cash on hand or existing lines of credit, as
they would for any settlement occurring within Clearstream or Euroclear. Under
this approach, they may take on credit exposure to Clearstream or Euroclear
until the Global Notes and Certificates are credited to their accounts one day
later.
As an alternative, if Clearstream or Euroclear has extended a line of
credit to them, Clearstream Participants or Euroclear Participants can elect to
pre-position funds and allow that credit line to be drawn upon the finance
settlement. Under this procedure, Clearstream Participants or Euroclear
Participants purchasing Global Notes and Certificates would incur overdraft
charges for one day, assuming they cleared the overdraft when the Global Notes
and Certificates were credited to their accounts. However, interest on the
Global Notes and Certificates would accrue from the value date. Therefore, in
many cases the investment income on the Global Notes and Certificates earned
during that one-day period may substantially reduce or offset the amount of such
overdraft charges, although this result will depend on each Clearstream
Participant's or Euroclear Participant's particular cost of funds.
Since the settlement is taking place during New York business hours,
DTC Participants can employ their usual procedures for sending Global Notes and
Certificates to the respective Depositary for the benefit of Clearstream
Participants or Euroclear Participants. The sale proceeds will be available to
the DTC seller on the settlement date. Thus, to the DTC Participant a
cross-market transaction will settle no differently than a trade between two DTC
Participants.
TRADING BETWEEN CLEARSTREAM OR EUROCLEAR SELLER AND DTC PURCHASER. Due
to time zone differences in their favor, Clearstream Participants and Euroclear
Participants may employ their customary procedures for transactions in which
Global Notes and Certificates are to be transferred by the respective clearing
system, through the respective Depositary, to a DTC Participant. The seller will
send instructions to Clearstream or Euroclear through a Clearstream Participant
or Euroclear Participant at least one business day prior to settlement. In these
cases, Clearstream or Euroclear will instruct the respective Depositary, as
appropriate, to deliver the bonds to the DTC Participant's account against
payment. Payment will include interest accrued on the Global Notes and
Certificates from and including the last coupon payment date to and excluding
the settlement date. The payment will then be reflected in the account of the
Clearstream Participant or Euroclear Participant the following day, and receipt
of the cash proceeds in the Clearstream Participant's or Euroclear Participant's
account, would be back-valued to the value date (which would be the preceding
day, when settlement occurred in New York). Should the Clearstream Participant
or Euroclear Participant have a line of credit with its respective clearing
system and elect to be in debit in anticipation or receipt of the sale proceeds
in its account, the back-valuation will extinguish any overdraft charges
incurred over that one-day-period. If settlement is not completed on the
intended value date (I.E., the trade fails), receipt of the cash proceeds in the
Clearstream Participant's or Euroclear Participant's account would instead be
valued as of the actual settlement date. Finally, day traders that use,
Clearstream or Euroclear and that purchase Global Notes and Certificates from
DTC Participants for delivery to Clearstream Participants or Euroclear
Participants should note that these trades would automatically fail on the sale
side unless affirmative action were taken. At least three techniques should be
readily available to eliminate this potential problem:
S-51
<PAGE>
(a) borrowing through Clearstream or Euroclear for one day (until
the purchase side of the day trade is reflected in their
Clearstream or Euroclear accounts) in accordance with the
clearing system's customary procedures;
(b) borrowing the Global Notes and Certificates in the U.S. from a
DTC Participant no later than one day prior to settlement,
which would give the Global Notes and Certificates sufficient
time to be reflected in their Clearstream or Euroclear account
in order to settle the sale side of the trade; or
(c) staggering the value dates for the buy and sell sides of the
trade so that the value date for the purchase from the DTC
Participant is at least one day prior to the value date for
the sale to the Clearstream Participant or Euroclear
Participant.
CERTAIN U.S. FEDERAL INCOME TAX DOCUMENTATION REQUIREMENT
A beneficial owner of Global Notes and Certificates holding securities
through Clearstream or Euroclear (or through DTC if the holder has an address
outside the U.S.) will be subject to the 30% U.S. withholding tax that generally
applies to payments of interest (including original issued discount) on
registered debt issued by U.S. Persons, unless (i) each clearing system, bank or
other financial institution that holds customers' securities in the ordinary
course of its trade or business in the chain of intermediaries between such
beneficial owner and the U.S. entity required to withhold tax complies with
applicable certification requirements and (ii) such beneficial owner takes one
of the following steps to obtain an exemption or reduced tax rate:
EXEMPTION FOR NON-U.S. PERSONS (FORM W-8). Beneficial owners
of Notes and Certificates that are non-U.S. Persons can obtain a
complete exemption from the withholding tax by filing a signed Form W-8
(Certificate of Foreign Status). If the information shown on Form W-8
changes, a new Form W-8 must be filed within 30 days of such change.
EXEMPTION FOR NON-U.S. PERSONS WILL EFFECTIVELY CONNECTED
INCOME (FORM 4224). A non-U.S. Person, including a non-U.S. corporation
or bank with a U.S. branch, for which the interest income is
effectively connected with its conduct of a trade or business in the
United States, can obtain an exemption from the withholding tax by
filing Form 4224 (Exemption from Withholding of Tax on Income
Effectively Connected with the Conduct of a Trade or Business in the
United States).
EXEMPTION OR REDUCED RATE FOR NON-U.S. PERSONS RESIDENT IN
TREATY COUNTRIES (FORM 1001). Non-U.S. Persons that are Securityholders
residing in a country that has a tax treaty with the United States can
obtain an exemption or reduced tax rate (depending on the treaty terms)
by filing Form 1001 (Ownership, Exemption or Reduced Rate Certificate).
If the treaty provides only for a reduced rate, withholding tax will be
imposed at that rate unless the filer alternatively files Form W-8.
Form 1001 may be filed by the Securityholder or his agent.
EXEMPTION FOR U.S. PERSONS (FORM W-9). U.S. Persons can obtain
a complete exemption from the withholding tax by filing Form W-9
(Payer's Request for Taxpayer Identification Number and Certification).
U.S. FEDERAL INCOME TAX REPORTING PROCEDURES. The holder of a
Global Security or in the case of a Form 1001 or a Form 4224 filer, his
agent, files by submitting the appropriate form to the person through
whom it holds (the clearing agency, in the case of persons holding
directly on the books of the clearing agency). Form W-8 and Form 1001
are effective for three calendar years and Form 4224 is effective for
one calendar year.
The term "U.S. PERSON" means (i) a citizen or resident of the United
States, (ii) a corporation or partnership organized in or under the laws of the
United States or any political subdivision thereof or (ii) an estate or trust
the income of which is includible in gross income for United States tax
purposes, regardless of its source or which is under the supervision of a U.S.
court or U.S. fiduciary. This summary does not deal with all aspects of U.S.
Federal
S-52
income tax withholding that may be relevant to foreign holders of the Global
Notes and Certificates. Investors are advised to consult their own tax
advisors for specific tax advice concerning their holding and disposing of
the Global Notes and Certificates.
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<PAGE>
GLOSSARY OF TERMS
AGGREGATE PRINCIPAL BALANCE is the sum of the Principal Balances of each
outstanding Contract and the amounts in the Pre-Funding Account. At the time of
initial issuance of the Notes and Certificates, the initial aggregate principal
amount of the Notes and Certificates will equal the Aggregate Principal Balance
plus the initial deposit into the Pre-Funding Account.
AGGREGATE PRINCIPAL BALANCE DECLINE means, with respect to any Distribution
Date, the amount by which the Aggregate Principal Balance as of the Distribution
Date immediately preceding such Distribution Date (or as of the Cutoff Date in
the case of the first Distribution Date) exceeds the Aggregate Principal Balance
as of such Distribution Date.
AGREEMENT means the Sale and Servicing Agreement dated as of April 1, 2000 among
the Trust Depositor, the Trust, the Indenture Trustee and Harley-Davidson Credit
Corp., as Servicer.
AVAILABLE INTEREST means, with respect to any Distribution Date, the total
(without duplication) of the following amounts received by the Servicer on or in
respect of the Contracts during the related Due Period: (i) all amounts received
in respect of interest on the Contracts (as well as Late Payment Penalty Fees
and Extension Fees), (ii) the interest component of all Net Liquidation
Proceeds, (iii) the interest component of the aggregate of the repurchase prices
for Contracts repurchased by the Seller pursuant to a breach of representation
or warranty, (iv) all Advances made by the Servicer, (v) the interest component
of all amounts paid by the Trust Depositor in connection with a repurchase of
the Contracts when the aggregate principal balance of the Contracts owned by the
Trust has declined to less than 10% of the aggregate principal balance of the
Contracts owned by the Trust as of the Closing Date, (vi) all amounts received
in respect of Carrying Charges transferred from the Interest Reserve Account and
(vii) all amounts received in respect of interest, dividends, gains, income and
earnings on investment of funds in the Trust Accounts (which does not include
the Interest Reserve Account).
AVAILABLE MONIES means the sum of Available Interest and Available Principal.
AVAILABLE PRINCIPAL means, with respect to any Distribution Date, the total
(without duplication) of the following amounts received by the Servicer on or in
respect of the Contracts during the related Due Period: (i) all amounts received
in respect of principal on the Contracts, (ii) the principal component of all
Net Liquidation Proceeds, (iii) the principal component of the aggregate of the
repurchase prices for Contracts repurchased by the Seller pursuant to a breach
of a representation or warranty, and (iv) the principal component of all amounts
paid by the Trust Depositor in connection with a repurchase of the Contracts
when the aggregate principal balance of the Contracts owned by the Trust has
declined to less than 10% of the aggregate principal balance of the Contracts
owned by the Trust as of the Closing Date.
AVERAGE DELINQUENCY RATIO for any Distribution Date is equal to the arithmetic
average of the Delinquency Ratios for the Distribution Date and the two
immediately preceding Distribution Dates
AVERAGE LOSS RATIO for any Distribution Date is equal to the arithmetic average
of the Loss Ratios for such Distribution Date and the two immediately preceding
Distribution Dates. The "LOSS RATIO" for any Distribution Date is equal to the
fraction (expressed as a percentage) derived by dividing (x) the Net Liquidation
Losses for all Contracts that became Liquidated Contracts during the immediately
preceding Due Period multiplied by 12 by (y) the outstanding Principal Balances
of all Contracts as of the beginning of the related Due Period.
BUSINESS DAY means any day other than a Saturday, a Sunday or a day on which
banking institutions in Chicago, Illinois or Wilmington, Delaware are authorized
or obligated by law, executive order or government decree to be closed.
CARRYING CHARGES are equal to the sum of (i) the product of (x) the weighted
average of the Class A-1 Note interest rate, the Class A-2 Note interest rate
and the Certificate interest rate and (y) the undisbursed funds (excluding
investment earnings) in the Pre-Funding Account (as of the last day of the
related Due Period, as defined herein) and
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(ii) trustees' fees due for the related Distribution Date, minus (iii) the
amount of any investment earnings on funds in the Pre-Funding Account which
was transferred to the Interest Reserve Account, as well as interest earnings
on amounts in the Interest Reserve Account.
CERTIFICATE BALANCE equals $17,100,000 on the Closing Date and thereafter shall
equal $17,100,000 reduced by all amounts allocable to principal previously
distributed to Certificateholders.
CERTIFICATE DISTRIBUTABLE AMOUNT means, with respect to any Distribution Date,
the sum of the Certificate Principal Distributable Amount and the Certificate
Interest Distributable Amount for such Distribution Date.
CERTIFICATE DISTRIBUTION ACCOUNT means the Certificate Distribution Account
described in this Prospectus Supplement under "CERTAIN INFORMATION REGARDING THE
NOTES AND CERTIFICATES -- THE ACCOUNTS -- THE NOTE AND CERTIFICATE DISTRIBUTION
ACCOUNT."
CERTIFICATE INTEREST CARRYOVER SHORTFALL means, with respect to any Distribution
Date, the excess of the sum of the Certificate Monthly Interest Distributable
Amount for the immediately preceding Distribution Date and any outstanding
Certificate Interest Carryover Shortfall on such preceding Distribution Date,
over the amount in respect of interest on the Certificates that was actually
deposited in the Certificate Distribution Account on such preceding Distribution
Date, plus interest on such excess, to the extent permitted by law, at the
Pass-Through Rate for the related Interest Period.
CERTIFICATE INTEREST DISTRIBUTABLE AMOUNT means, with respect to any
Distribution Date, the sum of the Certificate Monthly Interest Distributable
Amount for such Distribution Date and the Certificate Interest Carryover
Shortfall for such Distribution Date.
CERTIFICATE MONTHLY INTEREST DISTRIBUTABLE AMOUNT means, with respect to any
Distribution Date, 30 days of interest (or in the case of the first Distribution
Date, interest accrued from and including the Closing Date to but excluding such
Distribution Date) at the Pass-Through Rate on the outstanding principal amount
of the Certificates on the immediately preceding Distribution Date, after giving
effect to all payments of principal to the Certificateholders on such preceding
Distribution Date (or, in the case of the first Distribution Date, on the
original principal amount of the Certificates).
CERTIFICATE MONTHLY PRINCIPAL DISTRIBUTABLE AMOUNT means, with respect to any
Distribution Date, the Certificate Percentage of the Principal Distributable
Amount for such Distribution Date.
CERTIFICATE PERCENTAGE means (i) for each Distribution Date to but excluding the
Distribution Date on which the principal amount of the Class A-2 Notes is
reduced to zero, 0%; (ii) on the Distribution Date on which the principal amount
of the Class A-2 Notes is reduced to zero, such percentage that equals 100%
minus the Note Percentage; and (iii) 100% thereafter.
CERTIFICATE PRINCIPAL CARRYOVER SHORTFALL means, as of the close of any
Distribution Date, the excess of the sum of the Certificate Monthly Principal
Distributable Amount and any outstanding Certificate Principal Carryover
Shortfall from the immediately preceding Distribution Date, over the amount in
respect of principal that was actually deposited in the Certificate Distribution
Account on such Distribution Date.
CERTIFICATE PRINCIPAL DISTRIBUTABLE AMOUNT means, with respect to any
Distribution Date, the sum of the Certificate Monthly Principal Distributable
Amount and (ii) any outstanding Certificate Principal Carryover Shortfall as of
the close of the immediately preceding Distribution Date; PROVIDED, HOWEVER,
that the Certificate Principal Distributable Amount shall not exceed the
Certificate Balance. In addition, on the Certificate Final Distribution Date,
the principal required to be deposited into the Certificate Distribution Account
will include the amount necessary to reduce the Certificate Balance to zero.
CERTIFICATES means the 7.79% Harley-Davidson Motorcycle Contract Backed
Certificates described in this Prospectus Supplement.
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<PAGE>
CLASS A-1 NOTEHOLDERS means the holders of the Class A-1 Notes.
CLASS A-2 NOTEHOLDERS means the holders of the Class A-2 Notes.
CLASS A-1 NOTES means the 6.88% Harley-Davidson Motorcycle Contract Backed
Notes, Class A-1 described in this Prospectus Supplement.
CLASS A-2 NOTES means the 7.14% Harley-Davidson Motorcycle Contract Backed
Notes, Class A-2 described in this Prospectus Supplement.
CLOSING DATE is on or about April 26, 2000.
COLLECTION ACCOUNT means the Collection Account described in this Prospectus
Supplement under "CERTAIN INFORMATION REGARDING THE NOTES AND CERTIFICATES --
THE ACCOUNTS."
CONTRACTS are fixed-rate simple interest conditional sales contracts relating to
motorcycles manufactured by Harley-Davidson or, in a limited number of
instances, motorcycles manufactured by Buell Motorcycle Company, an affiliate of
Harley-Davidson
CUMULATIVE LOSS RATIO for any Distribution Date means the fraction (expressed as
a percentage) computed by the Servicer by dividing (a) the aggregate Net
Liquidation Losses for all Contracts since the Cutoff Date through the end of
the related Due Period by (b) the sum of (i) the Principal Balance of the
Contracts as of the Cutoff Date plus (B) the Principal Balance of any Subsequent
Contracts as of the related subsequent Cutoff Date.
CUTOFF DATE means April 11, 2000 or a subsequent date designated by the Trust
Depositor as the date as of which Subsequent Contracts are deemed sold to the
Trust and pledged to the Indenture Trustee.
DELINQUENCY RATIO for any Distribution Date is equal to the fraction (expressed
as a percentage) derived by dividing (a) the Delinquency Amount during the
immediately preceding Due Period by (b) the Principal Balance of the Contracts
as of the beginning of the related Due Period. The "DELINQUENCY AMOUNT" as of
any Distribution Date means the Principal Balance of all Contracts that were
delinquent 60 days or more as of the end of the related Due Period (including
Contracts in respect of which the related motorcycles have been repossessed and
are still inventory).
DETERMINATION DATE is the fourth business day following the conclusion of a Due
Period. The Seller is obligated under the Transfer and Sale Agreement (which
right against the Seller the Trust Depositor has assigned in such circumstances
to the Trust) to repurchase the Contracts from the Trust Depositor
contemporaneously with the Trust Depositor's purchase of the Contracts from the
Trust.
DISTRIBUTION DATE means the fifteenth day of each calendar month during the term
of the Agreement (or, if such day is not a Business Day, on the next succeeding
Business Day) commencing May 15, 2000.
DUE PERIOD means a calendar month during the term of the Agreement, and the Due
Period related to a Determination Date or Distribution Date shall be the
calendar month immediately preceding such date; PROVIDED, HOWEVER, that with
respect to the initial Determination Date or initial Distribution Date, the Due
Period shall be the period from the initial Cutoff Date to and including April
30, 2000.
ELIGIBLE INVESTMENTS means investments specified in the Agreement and will be
limited to investments which meet the criteria of each Rating Agency that rated
any class of Notes or the Certificates at the request of the Trust Depositor
from time to time as being consistent with their then-current ratings of the
related Notes and Certificates
EXCESS AMOUNTS has the meaning given such term in this Prospectus Supplement
under "CERTAIN INFORMATION REGARDING NOTES AND CERTIFICATES -- DISTRIBUTIONS ON
THE NOTES AND CERTIFICATES -- DEPOSITS TO THE NOTE AND CERTIFICATE DISTRIBUTION
ACCOUNT; PRIORITY OF PAYMENTS."
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FUNDING PERIOD is the period from and including the Closing Date until the
earliest of (a) the Distribution Date on which the amount on deposit in the
Pre-Funding Account is less than $150,000, (b) the date on which an Event of
Termination occurs with respect to the Servicer under the Agreement, (c) the
date on which certain events of insolvency occur with respect to the Trust
Depositor or (d) the close of business on the date which is 90 days from and
including the Closing Date.
HARLEY-DAVIDSON means Harley-Davidson, Inc., a Wisconsin corporation.
INITIAL CONTRACTS are the Contracts that the Trust Depositor will sell, transfer
and assign to the Trust pursuant to the Agreement, and that the Trust will
pledge to the Trust pursuant to the Indenture on the Closing Date.
INDENTURE means the Indenture dated as of April 1, 2000 between the Indenture
Trustee and the Trust.
LIQUIDATED CONTRACT means any defaulted Contract as to which the Servicer has
determined that all amounts which it expects to recover from or on account of
such Contract have been recovered; provided that any defaulted Contract in
respect of which the related motorcycle has been realized upon and disposed of
and the proceeds of such disposition have been realized shall be deemed to be a
Liquidated Contract; and PROVIDED FURTHER, a Contract which has been repossessed
and has not been sold by the Servicer for a period in excess of 90 days from
such date of repossession or a Contract which has been delinquent more than 150
days shall be deemed to be a Liquidated Contract with a zero balance.
NET LIQUIDATION LOSSES means, with respect to a Liquidated Contract, the amount,
if any, by which (a) the outstanding Principal Balance of such Liquidated
Contract plus accrued and unpaid interest thereon at the annual interest rate
stated in such Liquidated Contract to the date on which such Liquidated Contract
became a Liquidated Contract exceeds (b) the Net Liquidation Proceeds for such
Liquidated Contract.
NET LIQUIDATION PROCEEDS means, as to any Liquidated Contract, the proceeds
realized on the sale or other disposition of the related motorcycle, including
proceeds realized on the repurchase of such motorcycle by the originating dealer
for breach of warranties, and the proceeds of any insurance relating to such
motorcycle, after payment of all expenses incurred thereby, together, in all
instances, with the expected or actual proceeds of any recourse rights relating
to such Contract as well as any post disposition proceeds received by the
Servicer.
NOTE DISTRIBUTION ACCOUNT means the Note Distribution Account described in this
Prospectus Supplement under "CERTAIN INFORMATION REGARDING THE NOTES AND
CERTIFICATES -- THE ACCOUNTS -- THE NOTE AND CERTIFICATE DISTRIBUTION
ACCOUNT."
NOTE DISTRIBUTABLE AMOUNT means, with respect to any Distribution Date, the sum
of the Note Principal Distributable Amount and the Note Interest Distributable
Amount for such Distribution Date.
NOTE INTEREST CARRYOVER SHORTFALL means, with respect to any Distribution Date
and a Class of Notes, the excess, if any, of the sum of the Note Interest
Distributable Amount for such Class for the immediately preceding Distribution
Date plus any outstanding Note Interest Carryover Shortfall for such Class on
such preceding Distribution Date, over the amount in respect of interest that
was actually deposited in the Note Distribution Account with respect to such
Class on such preceding Distribution Date, plus, to the extent permitted by
applicable law, interest on the amount of interest due but not paid to the
Noteholders of such Class on such preceding Distribution Date at the related
Interest Rate for the related Interest Period.
NOTE INTEREST DISTRIBUTABLE AMOUNT means, with respect to any Distribution Date
and a Class of Notes, the sum of the Note Monthly Interest Distributable Amount
and the Note Interest Carryover Shortfall for such Class of Notes for such
Distribution Date.
NOTE MONTHLY INTEREST DISTRIBUTABLE AMOUNT means, with respect to any
Distribution Date, interest accrued from and including the fifteenth day of the
month of the preceding calendar month to, but excluding, the fifteenth day of
the calendar month in which such Distribution Date occurs (or in the case of the
first Distribution Date, interest
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accrued from and including the Closing Date to but excluding such
Distribution Date) at the related Interest Rate for each Class of Notes on
the outstanding principal amount of the Notes of such Class on the
immediately preceding Distribution Date, after giving effect to all payments
of principal to Noteholders of such Class on or prior to such Distribution
Date (or, in the case of the first Distribution Date, on the original
principal amount of such Class of Notes).
NOTE MONTHLY PRINCIPAL DISTRIBUTABLE AMOUNT means, with respect to any
Distribution Date, the Note Percentage of the Principal Distributable Amount for
such Distribution Date.
NOTE PERCENTAGE is (i) 100%, for each Distribution Date to but excluding the
Distribution Date on which the principal amount of the Class A-2 Notes is
reduced to zero; (ii) on the Distribution Date on which the principal amount of
the Class A-2 Notes is reduced to zero, such percentage which represents the
fraction of the Principal Distributable Amount necessary to reduce the principal
amount of the Class A-2 Notes to zero; and (iii) 0.0% thereafter.
NOTE PRINCIPAL CARRYOVER SHORTFALL means, as of the close of any Distribution
Date, the excess of the sum of the Note Monthly Principal Distributable Amount
and any outstanding Note Principal Carryover Shortfall from the immediately
preceding Distribution Date over the amount in respect of principal that was
actually deposited in the Note Distribution Account on such Distribution Date.
NOTE PRINCIPAL DISTRIBUTABLE AMOUNT means, with respect to any Distribution
Date, the sum of the Note Monthly Principal Distributable Amount for such
Distribution Date and any outstanding Note Principal Carryover Shortfall for the
immediately preceding Distribution Date; PROVIDED, HOWEVER, that the Note
Principal Distributable Amount for a Class of Notes shall not exceed the
outstanding principal amount of such Class of Notes. Notwithstanding the
foregoing, the Note Principal Distributable Amount (i) on the Class A-1 Final
Distribution Date shall not be less than the amount that is necessary (after
giving effect to other amounts to be deposited in the Note Distribution Account
on such Distribution Date and allocable to principal) to reduce the outstanding
principal amount of the Class A-1 Notes to zero, and (ii) on the Class A-2 Final
Distribution Date shall not be less than the amount that is necessary (after
giving effect to other amounts to be deposited in the Note Distribution Account
on such Distribution Date and allocable to principal) to reduce the outstanding
principal amount of the Class A-2 Notes to zero.
NOTES means the Class A-1 Notes and Class A-2 Notes.
OBLIGORS means the obligors on the Contracts which are from time to time sold,
transferred and assigned to the Trust.
OWNER TRUSTEE means Wilmington Trust Company, a Delaware banking corporation.
PRE-FUNDING ACCOUNT means the Pre-Funding Account described in this Prospectus
Supplement under "CERTAIN INFORMATION REGARDING THE NOTES AND CERTIFICATES --
THE ACCOUNTS."
PRINCIPAL BALANCE means, (a) with respect to any Contract as of any date, an
amount equal to the unpaid principal balance of such Contract as of the opening
of business on the initial Cutoff Date or related subsequent Cutoff Date, as
applicable, reduced by the sum of (x) all payments received by the Servicer as
of such date allocable to principal and (y) any Cram Down Loss in respect of
such Contract; PROVIDED, HOWEVER, that (i) if (x) a Contract is repurchased by
the Seller because of a breach of representation or warranty, or if (y) the
Trust Depositor gives notice of its intent to purchase the Contracts in
connection with an optional termination of the Trust, in each case the Principal
Balance of such Contract or Contracts shall be deemed as of the related
Determination Date to be zero for the Due Period in which such event occurs and
for each Due Period thereafter, (ii) from and after the third Due Period
succeeding the final Due Period in which the Obligor is required to make the
final scheduled payment on a Contract, the Principal Balance, if any, of such
Contract shall be deemed to be zero, and (iii) from and after the Due Period in
which a Contract becomes a Liquidated Contract, the Principal Balance of such
Contract shall be deemed to be zero; and (b) where the context requires, the
aggregate of the Principal Balances described in clause (a) for all such
Contracts.
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PRINCIPAL DISTRIBUTABLE AMOUNT means, with respect to any Distribution Date, the
Aggregate Principal Balance Decline for such Distribution date.
RATING AGENCIES means Standard & Poor's Ratings Services, A Division of The
McGraw-Hill Companies and Moody's Investors Service, Inc.
RESERVE FUND means the Reserve Fund described in this Prospectus Supplement
under "CERTAIN INFORMATION REGARDING THE NOTES AND CERTIFICATES -- THE ACCOUNTS"
RESERVE FUND AVAILABLE AMOUNT equals the amount of all funds on deposit in the
Reserve Fund.
RESERVE FUND DEPOSITS are collectively, Excess Amounts, Subsequent Reserve Fund
Amounts and the Reserve Fund Initial Deposit.
SELLER means Harley-Davidson Credit Corp., a Nevada corporation. Harley-Davidson
Credit Corp. is a 100% owned subsidiary of Harley-Davidson Financial Services,
Inc.
SERVICER means Harley-Davidson Credit Corp., a Nevada corporation.
Harley-Davidson Credit Corp. is a 100% owned subsidiary of Harley-Davidson
Financial Services, Inc.
SPECIFIED RESERVE FUND BALANCE is the amount calculated under "CERTAIN
INFORMATION REGARDING THE NOTES AND CERTIFICATES -- THE ACCOUNTS -- THE RESERVE
FUND."
SUBSEQUENT CONTRACTS means the Contracts that the Trust Depositor will be
obligated to purchase pursuant to the Transfer and Sale Agreement and that the
Trust will be obligated to purchase and pledge pursuant to the Agreement and the
Indenture during the period between the Closing Date and the last day of the
Funding Period.
SUBSEQUENT RESERVE FUND AMOUNT is the amount on each Subsequent Transfer Date
equal to 0.50% of the aggregate balance of the Subsequent Contracts conveyed to
the Trust.
SUBSEQUENT TRANSFER DATE means each date on which Subsequent Contracts are
conveyed to the Trust and simultaneously pledged to the Indenture Trustee.
TERMINATION EVENT shall have the meaning given to it in this Prospectus
Supplement under "CERTAIN INFORMATION REGARDING THE NOTES AND
CERTIFICATES-TERMINATION."
TRANSFER AND SALE AGREEMENT means the Transfer and Sale Agreement dated as of
April 1, 2000 between the Seller and the Trust Depositor.
TRUST means the Harley-Davidson Eaglemark Motorcycle Trust 2000-1.
TRUST AGREEMENT means the Trust Agreement dated as of April 1, 2000 between the
Trust Depositor and the Owner Trustee.
TRUST DEPOSITOR means Eaglemark Customer Funding Corporation-IV, a 100% owned
subsidiary of Harley-Davidson Credit Corp.
TRUSTEES means the Owner Trustee and the Indenture Trustee.
S-59
<PAGE>
PROSPECTUS
HARLEY-DAVIDSON EAGLEMARK MOTORCYCLE TRUSTS
HARLEY-DAVIDSON MOTORCYCLE CONTRACT BACKED NOTES
HARLEY-DAVIDSON MOTORCYCLE CONTRACT BACKED CERTIFICATES
HARLEY-DAVIDSON CREDIT CORP.
The Harley-Davidson Motorcycle Contract Backed Notes (the "Notes") and the
Harley-Davidson Motorcycle Contract Backed Certificates (the "Certificates" and,
together with the Notes, the "Securities") described herein may be sold from
time to time in one or more series, in amounts, at prices and on terms to be
determined at the time of sale and to be set forth in a supplement to this
Prospectus (a "Prospectus Supplement"). Each series of Securities, which will
include one or more classes of Certificates and may also include one or more
classes of Notes, will be issued by a trust or other legal entity to be formed
with respect to such series (each, a "Trust"). Each Trust will be formed
pursuant to either (i) a Trust Agreement to be entered into between a
special-purpose finance subsidiary organized and established by Harley-Davidson
Credit Corp. (the "Company") (each such special-purpose finance subsidiary, a
"Trust Depositor"), as depositor, and the Trustee specified in the related
Prospectus Supplement (the "Trustee") or (ii) a Pooling and Servicing Agreement
to be entered into among the Trustee, the Trust Depositor, as seller, and the
Company, as servicer (in such capacity, the "Servicer"). If a series of
Securities includes Notes, such Notes will be issued and secured pursuant to an
Indenture between the Trust and the Indenture Trustee specified in the related
Prospectus Supplement (the "Indenture Trustee") and will represent indebtedness
of the related Trust. The Certificates of a series will represent fractional
undivided interests in the related Trust. Each Prospectus Supplement will
specify which class or classes of Notes, if any, and/or which class or classes
of Certificates of the related series are being offered thereby. The property of
each Trust will include a pool of fixed rate, simple interest motorcycle
conditional sales contracts (collectively such contracts, the "Contracts")
relating to motorcycles manufactured by Harley-Davidson, Inc.
("Harley-Davidson") or, in certain limited instances and subject to certain
limitations described herein (i) motorcycles manufactured by an affiliate of
Harley-Davidson, Buell Motorcycle Company ("Buell") and (ii) motorcycles
manufactured by certain other manufacturers ("Other Manufacturers") as well as
certain monies due or received thereunder on and after the applicable Cutoff
Date set forth in the related Prospectus Supplement, security interests in the
motorcycles financed through the Contracts and certain other property as
described herein (the "Trust Property"). In addition, if so specified in the
related Prospectus Supplement, the property of the Trust will include monies on
deposit in a trust account (the "Pre-Funding Account") and/or monies on deposit
in a trust account (the "Collateral Reinvestment Account") to be established
with the Indenture Trustee, which will be used to purchase additional Contracts
(the "Subsequent Contracts") from the Trust Depositor from time to time during
the Funding Period or Revolving Period specified in such Prospectus Supplement.
Except as otherwise provided in the related Prospectus Supplement, each
class of Securities of any series will represent the right to receive a
specified amount of payments and/or distributions, expected to be derived
primarily from collections in respect of principal and interest on the related
Contracts, with such payments and/or distributions to be made at the rates, on
the dates and in the manner described herein and in such Prospectus Supplement.
If a series includes multiple classes of Securities, the rights of one or more
classes of Securities to receive payments or distributions may be senior or
subordinate to the rights of one or more of the other classes of such series.
Also, distributions on Certificates of a series may be subordinated in priority
to payments due on the Notes, if any, of such series to the extent described
herein and in the related Prospectus Supplement. A series may include one or
more classes of Notes and/or Certificates which differ from the other classes of
such series as to the timing and priority of payment, interest rate or amount of
distributions in respect of principal or interest or both. A series may include
one or more classes of Notes or Certificates entitled to distributions in
respect of principal with disproportionate, nominal or no interest
distributions, or to interest distributions, with disproportionate, nominal or
no distributions in respect of principal. The rate of payment in respect of
principal of any class of Notes and the rate of distributions in respect of the
Certificate Balance (as defined herein) of the Certificates of any class will
depend on the priority of payment of such class and the rate and timing of
payments (including prepayments, defaults, liquidations and repurchases of
Contracts) on the related Contracts. A rate of payment lower or higher than that
anticipated may affect the weighted average life of each class of Securities in
the manner described herein and in the related Prospectus Supplement.
PROSPECTIVE INVESTORS SHOULD CAREFULLY CONSIDER THE FACTORS SET FORTH UNDER
"RISK FACTORS" ON PAGE 12 OF THIS PROSPECTUS AND IN THE RELATED PROSPECTUS
SUPPLEMENT.
EXCEPT AS OTHERWISE SPECIFIED IN THE RELATED PROSPECTUS SUPPLEMENT, THE
NOTES OF A SERIES WILL REPRESENT OBLIGATIONS OF, AND THE CERTIFICATES OF A
SERIES WILL REPRESENT BENEFICIAL INTERESTS IN, THE RELATED TRUST ONLY AND WILL
NOT REPRESENT OBLIGATIONS OF OR INTERESTS IN, AND ARE NOT GUARANTEED OR INSURED
BY, HARLEY-DAVIDSON FINANCIAL SERVICES, INC., HARLEY-DAVIDSON CREDIT CORP., THE
TRUST DEPOSITOR OR ANY OF THEIR RESPECTIVE AFFILIATES OR ANY GOVERNMENTAL
AGENCY.
--------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS
A CRIMINAL OFFENSE.
--------------------------
RETAIN THIS PROSPECTUS FOR FUTURE REFERENCE. This Prospectus may not be used
to consummate sales of Securities offered hereby unless accompanied by a
Prospectus Supplement.
The date of this Prospectus is April 19, 2000.
<PAGE>
REPORTS TO SECURITYHOLDERS
With respect to each series of Securities, the Servicer will prepare
and forward to the Applicable Trustee (as defined herein), for distribution to
the related Securityholders, certain monthly and annual reports concerning such
Securities and the related Trust. In addition, within the prescribed period of
time for tax reporting purposes after the end of each calendar year during the
term of each Trust, the Applicable Trustee will mail to each person who at any
time during such calendar year has been a registered Securityholder with respect
to such Trust and received any payment thereon a statement containing certain
information for the purposes of such Securityholder's preparation of federal
income tax returns. See "FEDERAL INCOME TAX CONSEQUENCES" and "CERTAIN
INFORMATION REGARDING THE SECURITIES -- REPORTS TO SECURITYHOLDERS" herein.
AVAILABLE INFORMATION
The Company, as originator of the Contracts in each Trust, has filed
with the Securities and Exchange Commission (the "COMMISSION") a Registration
Statement on Form S-3 (together with all amendments and exhibits thereto, the
"REGISTRATION STATEMENT") under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), with respect to the Securities being offered hereby. This
Prospectus does not contain all of the information set forth in the Registration
Statement, certain parts of which have been omitted in accordance with the rules
and regulations of the Commission. For further information, reference is made to
the Registration Statement, which is available for inspection without charge at
the public reference facilities of the Commission at Judiciary Plaza, 450 Fifth
Street, N.W., Washington, D.C. 20549, and the regional offices of the Commission
at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511, and Seven World Trade Center, Suite 1300, New York, New York 10048.
Copies of such information can be obtained from the Public Reference Section of
the Commission at Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C.
20549, at prescribed rates. The Commission maintains a Web site at
http://www.sec.gov containing reports, proxy and information statements and
other information regarding registrants that file electronically with the
Commission.
UPON RECEIPT OF A REQUEST BY AN INVESTOR WHO HAS RECEIVED AN ELECTRONIC
PROSPECTUS SUPPLEMENT AND PROSPECTUS FROM AN UNDERWRITER OR A REQUEST BY SUCH
INVESTOR'S REPRESENTATIVE WITHIN THE PERIOD DURING WHICH THERE IS AN OBLIGATION
TO DELIVER A PROSPECTUS SUPPLEMENT AND PROSPECTUS, THE COMPANY OR THE
UNDERWRITERS WITH RESPECT TO THE RELATED TRUST WILL PROMPTLY DELIVER, OR CAUSE
TO BE DELIVERED, WITHOUT CHARGE, TO SUCH INVESTOR A PAPER COPY OF THE PROSPECTUS
SUPPLEMENT AND PROSPECTUS.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
All documents filed on behalf of each Trust by the Company as the
originator of the Contracts in each Trust, pursuant to Section 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934, as amended (the "EXCHANGE
ACT"), after the date of this Prospectus and prior to the termination of the
offering of the Securities offered by such Trusts shall be deemed to be
incorporated by reference in this Prospectus and to be a part hereof from the
dates of filing of such documents. Any statement contained herein or in a
document incorporated or deemed to be incorporated by reference herein shall be
deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein (or in the accompanying Prospectus
Supplement) or in any subsequently filed document that also is or is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company, on behalf of each Trust, will provide without charge to
each person, including any beneficial owner, to whom a copy of this Prospectus
is delivered, on the written or oral request of such person, a copy of any or
all of the documents incorporated herein by reference, except the exhibits to
such documents (unless such exhibits are specifically incorporated by reference
into the documents incorporated herein by reference). Requests for such copies
should be directed to Secretary, Harley-Davidson Credit Corp., 4150 Technology
Way, Carson City, Nevada 89706; telephone (702) 886-3200.
1
<PAGE>
SUMMARY OF TERMS
The following summary is qualified in its entirety by reference to the
detailed information appearing elsewhere in this Prospectus and by reference to
the information with respect to the Securities of any series contained in the
related Prospectus Supplement to be prepared and delivered in connection with
the offering of such Securities. Certain capitalized terms used in this summary
are defined elsewhere in this Prospectus on the pages indicated in the "INDEX OF
TERMS" on page 62.
Issuer ..................... With respect to each series of Securities, a
Trust will be formed pursuant to either a Trust
Agreement (as amended and supplemented from time
to time, a "TRUST AGREEMENT") between the Trust
Depositor and the Trustee for such Trust or a
Pooling and Servicing Agreement (a "POOLING AND
SERVICING AGREEMENT") among the Trustee, the
Trust Depositor and Harley-Davidson Credit
Corp., as Servicer for such Trust. Each Trust
that is structured as an owner trust intended
to be taxable as a partnership for federal
income tax purposes will be referred to herein
as an "OWNER TRUST". Each Trust that is taxable
as a grantor trust under subpart E, Part I of
subchapter J of the Code (as hereinafter
defined) will be referred to herein as a
"GRANTOR TRUST". There are also references to
the possibility of a Trust being structured as
a financial asset securitization investment
trust, referred to herein as a "FASIT," as
authorized by recent tax legislation.
Seller...................... Harley-Davidson Credit Corp. (also referred
to herein as the "SELLER" or the "COMPANY"),
a Nevada corporation, a 100% owned subsidiary
of Harley-Davidson Financial Services, Inc.
("HARLEY-DAVIDSON FINANCIAL"). The Company's
principal executive offices are located at
4150 Technology Way, Carson City, Nevada
89706, and its telephone number is (702)
886-3200. See "HARLEY-DAVIDSON FINANCIAL
SERVICES, INC.; HARLEY-DAVIDSON CREDIT CORP.;
AND THE TRUST DEPOSITORS".
Trust Depositor............. With respect to each series of Securities, a
special-purpose finance subsidiary of the
Company.
Servicer.................... Harley-Davidson Credit Corp. (in such capacity,
the "SERVICER")
Trustee..................... With respect to a Grantor Trust, the Trustee
specified in the related Prospectus Supplement
and with respect to an Owner Trust, the Owner
Trustee specified in the related Prospectus
Supplement.
Indenture Trustee........... With respect to any series of Securities that
is issued by an Owner Trust and includes one
or more classes of Notes, the Indenture
Trustee specified in the related Prospectus
Supplement (each such Indenture Trustee, or
other Trustee as described immediately above,
being sometimes referred to herein, as
appropriate, as the "APPLICABLE TRUSTEE").
Securities Offered.......... Each series of Securities issued by an Owner
Trust will include one or more classes of
Certificates and may also include one or more
classes of Notes. Each series of Securities
issued by a Grantor Trust will include one or
more classes of Certificates, but will not
include any Notes. Each class of Notes will
be issued pursuant to an indenture (each, an
"INDENTURE") between the related Owner Trust
and the Indenture Trustee specified in the
related Prospectus Supplement. Each class of
Certificates will be issued pursuant to the
related Trust Agreement or the related
Pooling and Servicing Agreement. The related
Prospectus
2
<PAGE>
Supplement will specify which class or
classes of Notes and/or Certificates of the
related series are being offered thereby.
The Notes................... The Notes will be available for purchase in
denominations of $1,000 and integral
multiples thereof and will be available in
book-entry form only. Noteholders will be
able to receive Definitive Notes (as defined
herein) only in the limited circumstances
described herein or in such Prospectus
Supplement. See "CERTAIN INFORMATION
REGARDING THE SECURITIES --DEFINITIVE
SECURITIES".
Each class of Notes will have a stated
principal amount and will accrue interest
thereon at a specified rate (with respect to
each class of Notes, the "INTEREST RATE").
Each class of Notes may have a different
Interest Rate, which may be a fixed, variable
or adjustable Interest Rate, or any
combination of the foregoing. The related
Prospectus Supplement will specify the
Interest Rate for each class of Notes, or the
method for determining such Interest Rate.
With respect to a series that includes two or
more classes of Notes, each such class may
differ from the other class or classes of
such series as to the timing and priority of
payments, seniority, allocations of losses,
Interest Rate or amount of payments of
principal or interest. Payments of principal
or interest in respect of any such class or
classes may or may not be made upon the
occurrence of specified events or on the
basis of collections from designated portions
of the Pool of Contracts.
In addition, a series may include one or more
classes of Notes ("STRIP NOTES") entitled to
(i) principal payments with disproportionate,
nominal or no interest payments or (ii)
interest payments with disproportionate,
nominal or no principal payments.
Redemption of the Notes..... If the Seller exercises its option to
repurchase the Contracts of a Trust in the
event the Pool Balance has declined to less
than 10% of the Initial Pool Balance in the
manner and on the respective terms and
conditions described under "DESCRIPTION OF
THE SALE AND SERVICING AGREEMENTS AND POOLING
AND SERVICING AGREEMENTS -- TERMINATION", one
or more classes of the outstanding Notes will
be redeemed as set forth in the related
Prospectus Supplement. In addition, if the
related Prospectus Supplement provides that
the property of a Trust will include monies
in a Pre-Funding Account or Collateral
Reinvestment Account that will be used to
purchase additional Contracts (see "RISK
FACTORS -- SALES OF SUBSEQUENT CONTRACTS AND
EFFECT ON POOL CHARACTERISTICS" herein) after
the Closing Date specified in such related
Prospectus Supplement (the "CLOSING DATE"),
one or more classes of the outstanding Notes
will be subject to partial redemption at or
immediately following the end of the Funding
Period or Revolving Period (each as defined
herein and in such Prospectus Supplement), as
applicable, in an amount and in the manner
specified in such Prospectus Supplement. In
the event of such partial redemption, the
Noteholders may be entitled to receive a
prepayment premium from the Trust, in the
amount and to the extent provided in the
related Prospectus Supplement.
The Certificates............ The Certificates will be available for
purchase in a minimum denomination of $1,000
and integral multiples thereof and will be
available in book-entry form only.
Certificateholders will be able to receive
Definitive Certificates (as defined herein)
only in the limited circumstances described
herein or in such Prospectus Supplement. See
"CERTAIN INFORMATION REGARDING THE
SECURITIES--DEFINITIVE SECURITIES".
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Each class of Certificates will have a
stated Certificate Balance specified in such
Prospectus Supplement (the "CERTIFICATE
BALANCE") and will accrue interest on such
Certificate Balance at a specified rate (with
respect to each class of Certificates, the
"PASS-THROUGH RATE"). Each class of
Certificates may have a different
Pass-Through Rate, which may be a fixed,
variable or adjustable Pass-Through Rate, or
any combination of the foregoing. The related
Prospectus Supplement will specify the
Pass-Through Rate for each class of
Certificates or the method for determining
such Pass-Through Rate.
With respect to a series that includes two or
more classes of Certificates, each such class
may differ from the other class or classes of
such series as to the timing and priority of
distributions, seniority, allocations of
losses, Pass-Through Rate or amount of
distributions in respect of principal or
interest, or distributions in respect of
principal or interest in respect of any such
class or classes may or may not be made upon
the occurrence of specified events or on the
basis of collections from designated portions
of the pool of Contracts.
In addition, a series may include one or more
classes of Certificates ("STRIP
CERTIFICATES") entitled to (i) distributions
in respect of principal with
disproportionate, nominal or no interest
distributions or (ii) interest distributions
with disproportionate, nominal or no
distributions in respect of principal.
If a series of Securities includes classes of
Notes, distributions on the Certificates of
such series may be subordinated in priority
of payment to payments on such Notes to the
extent specified in the related Prospectus
Supplement.
Prepayment of the
Certificates................ If the Seller exercises its option to
repurchase the Contracts of a Trust in the
event the Pool Balance has declined to less
than 10% of the Initial Pool Balance in the
manner and on the respective terms and
conditions described under "DESCRIPTION OF
THE SALE AND SERVICING AGREEMENTS AND POOLING
AND SERVICING AGREEMENTS -- TERMINATION",
Certificateholders will receive as a
prepayment in respect of the Certificates as
specified in such Prospectus Supplement. In
addition, if the related Prospectus
Supplement provides that the property of a
Trust will include monies in a Pre-Funding
Account or Collateral Reinvestment Account
that will be used to purchase additional
Contracts after the Closing Date, one or more
classes of the outstanding Certificates may
receive a partial prepayment of principal at
or immediately following the end of the
Funding Period or Revolving Period, as
applicable, in an amount and in the manner
specified in such Prospectus Supplement. In
the event of such partial prepayment, the
Certificateholders may be entitled to receive
a prepayment premium from the Trust, in the
amount and to the extent provided in the
related Prospectus Supplement.
Cross-Collateralization..... As described in the related Trust Agreement
or Pooling and Servicing Agreement, as
applicable, and the related Prospectus
Supplement, the source of payment for
Securities of each series will be the related
Trust Property only.
However, as may be described in the related
Prospectus Supplement, a series or class of
Securities may include the right to receive
monies from a common pool of credit
enhancement which may be available for more
than one series of Securities, such as a
master reserve fund, master insurance policy
or a master collateral pool consisting of
similar Contracts. Notwithstanding the
foregoing, and as described in the related
Prospectus Supplement, no payment received on
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<PAGE>
any Contract held by any Trust may be applied
to the payment of Securities issued by any
other Trust (except to the limited extent
that certain collections in excess of the
amounts needed to pay the related Securities
may be deposited in a common master reserve
fund or an overcollateralization account that
provides credit enhancement for more than one
series of Securities issued pursuant to the
related Trust Agreement or Pooling and
Servicing Agreement, as applicable).
The Trust Property.......... The property of each Trust will include a
pool of fixed-rate, simple interest
motorcycle conditional sales contracts (the
"CONTRACTS") relating to new or used
Harley-Davidson motorcycles or, in certain
limited instances and subject to certain
other limitations described herein, (i)
motorcycles manufactured by an affiliate of
Harley-Davidson, Buell Motorcycle Company
("BUELL") and (ii) motorcycles manufactured
by certain other manufacturers ("OTHER
MANUFACTURERS") (see "OTHER MANUFACTURERS"
herein) as well as certain monies due or
received thereunder on and after the
applicable Cutoff Date set forth in the
related Prospectus Supplement, security
interests in the Motorcycles financed thereby
(collectively, the "MOTORCYCLES"), all of the
Trust Depositor's right, title and interest
in and to the Transfer and Sale Agreement (as
defined herein) pursuant to which the Trust
Depositor will purchase Contracts from the
Seller, any proceeds from claims under
certain insurance policies related to the
Motorcycles, and all other proceeds of any of
the foregoing. The property of each Trust
will also include amounts on deposit in
certain trust accounts, including the related
Collection Account, any Pre-Funding Account,
any Collateral Reinvestment Account, any
Reserve Fund (as defined herein) and any
other account identified in the applicable
Prospectus Supplement and such other property
as is specified in such Prospectus
Supplement, including notes or other
securities evidencing or backed by Contracts.
On the Closing Date specified in the related
Prospectus Supplement with respect to a
Trust, the Trust Depositor will, if so
specified in such Prospectus Supplement, sell
or transfer Contracts (the "INITIAL
CONTRACTS") having an aggregate principal
balance specified in such Prospectus
Supplement as of the date specified therein
(the "INITIAL CUTOFF DATE") to such Trust
pursuant to either, in the case of Owner
Trusts, a Sale and Servicing Agreement among
the Trust Depositor, the Servicer, the
Indenture Trustee and the Owner Trust (a
"SALE AND SERVICING AGREEMENT") or, in the
case of Grantor Trusts, the related Pooling
and Servicing Agreement among the Trust
Depositor, the Servicer and the Trustee.
To the extent provided in the related
Prospectus Supplement, from time to time (as
frequently as daily) during the period (the
"FUNDING PERIOD") specified in such
Prospectus Supplement, the Trust Depositor
will be obligated (subject only to the
availability thereof) to sell, and the
related Trust will be obligated to purchase
(subject to the satisfaction of certain
conditions described in the applicable Sale
and Servicing Agreement or Pooling and
Servicing Agreement), additional Contracts
(the "SUBSEQUENT CONTRACTS") having an
aggregate principal balance approximately
equal to the amount on deposit (the
"PRE-FUNDED AMOUNT") in an account (the
"PRE-FUNDING ACCOUNT") on the related Closing
Date. In no event will the Pre-Funded Amount
exceed 40% of the initial aggregate principal
amount of the Notes and/or Certificates of
the related series of Securities.
In addition, if so provided in the related
Prospectus Supplement, in lieu of a Funding
Period, during the period (the "REVOLVING
PERIOD") from the Closing Date until the
first to occur of (i) such event or events as
are described in such Prospectus Supplement
(each, an "EARLY AMORTIZATION EVENT") or (ii)
the last day of the Due Period (as defined
herein) preceding a Distribution Date
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<PAGE>
specified in such Prospectus Supplement, an
account will be maintained in the name of the
related Trustee or Indenture Trustee (the
"COLLATERAL REINVESTMENT ACCOUNT"). The
amount on deposit in the Collateral
Reinvestment Account on the Closing Date may,
if so specified in the related Prospectus
Supplement, include an amount to be deposited
out of the net proceeds of the sale of the
related Securities. During the Revolving
Period, principal will not be distributed on
the Securities of the related series.
Instead, principal collections, together with
(if and to the extent described in the
related Prospectus Supplement) interest
collections on the Contracts that are in
excess of amounts required to be distributed
therefrom, will be deposited from time to
time in the Collateral Reinvestment Account
and will be used to purchase Subsequent
Contracts.
As used in this Prospectus, the term
"CONTRACTS" will include the Initial
Contracts transferred to a Trust on the
Closing Date as well as any Subsequent
Contracts transferred to such Trust during
the related Funding Period or Revolving
Period, if any.
Amounts on deposit in any Pre-Funding Account
during the related Funding Period or in any
Collateral Reinvestment Account during the
related Revolving Period will be invested by
the Applicable Trustee (as directed by the
Servicer) in Eligible Investments (as defined
herein), and any resultant investment income,
less any related investment expenses
("INVESTMENT INCOME"), will be added, on the
Distribution Date (as defined herein)
immediately following the date on which such
Investment Income is paid to the Trust, to
interest collections on the Contracts for the
related Due Period (as defined herein), or
will otherwise be deposited or applied as
specified in the related Prospectus
Supplement and will be thereafter distributed
in the manner specified in the related
Prospectus Supplement. Any funds remaining in
a Pre-Funding Account at the end of the
related Funding Period or in a Collateral
Reinvestment Account at the end of the
related Revolving Period will be distributed
as a prepayment or early distribution of
principal to holders of one or more classes
of the Notes and/or Certificates of the
related series of Securities, in the amounts
and in accordance with the payment priorities
specified in the related Prospectus
Supplement. No Funding Period will end more
than ninety (90) days after the related
Closing Date. See "RISK FACTORS --
PRE-FUNDING ACCOUNTS", "-- SALES OF
SUBSEQUENT CONTRACTS" AND "DESCRIPTION OF THE
SALE AND SERVICING AGREEMENTS AND POOLING AND
SERVICING AGREEMENTS --ACCOUNTS".
The Seller will acquire the Contracts from a
network of Harley-Davidson dealers located
throughout the United States (the "DEALERS").
The Contracts for any given pool of Contracts
comprising a Trust will be sold by the Seller
to a Trust Depositor pursuant to a related
Transfer and Sale Agreement (the "TRANSFER
AND SALE AGREEMENT"), which Trust Depositor
will in turn convey the Contracts to the
Trust pursuant to the related Sale and
Servicing Agreement or Pooling and Servicing
Agreement, as applicable. Such Contracts will
be selected from the contracts owned by the
Seller based on the criteria specified in the
related Transfer and Sale Agreement, Sale and
Servicing Agreement or Pooling and Servicing
Agreement, as applicable, and described
herein and in the related Prospectus
Supplement.
Credit and Cash Flow
Enhancement................. To the extent specified in the related
Prospectus Supplement, credit enhancement
with respect to a Trust or any class or classes
of Securities may include any one or more of
the following: subordination of one or more
other
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<PAGE>
classes of Securities, Reserve Funds (as
defined herein), spread accounts,
overcollateralization, insurance policies,
letters of credit, credit or liquidity
facilities, cash collateral accounts, surety
bonds, guaranteed investment contracts, swaps
or other interest rate protection agreements,
repurchase obligations, yield supplement
agreements, other agreements with respect to
third party payments or other support, cash
deposits or other arrangements. See
"DESCRIPTION OF THE SALE AND SERVICING
AGREEMENTS-- CREDIT AND CASH FLOW
ENHANCEMENT" herein. To the extent specified
in the related Prospectus Supplement, any
particular form of credit enhancement may be
subject to certain limitations and exclusions
from coverage thereunder.
Reserve Fund................ If and to the extent specified in the related
Prospectus Supplement, a Reserve Fund will be
created for a Trust with an initial deposit
by the Trust Depositor of cash or certain
investments or other property (including
Contracts) having a value equal to the amount
specified in such Prospectus Supplement. To
the extent specified in the related
Prospectus Supplement, funds in the Reserve
Fund will thereafter be supplemented by the
deposit of amounts remaining on any
Distribution Date after making all other
distributions required on such date and any
amounts deposited from time to time in
connection with a purchase of Subsequent
Contracts. Amounts in the Reserve Fund, if
any, will be available to cover shortfalls in
amounts due to the holders of those classes
of Securities specified in the related
Prospectus Supplement in the manner and under
the circumstances specified therein. The
related Prospectus Supplement will also
specify to whom and the manner and
circumstances under which amounts on deposit
in the Reserve Fund (after giving effect to
all other required distributions to be made
by the applicable Trust) in excess of the
amounts required to be held therein as of the
date of determination (as set forth in such
Prospectus Supplement) will be distributed.
Sale and Servicing Agreements
and Pooling and Servicing
Agreements.................. With respect to each Trust, the Trust Depositor
will sell the related Contracts and such
other Trust Property as is specified in the
related Prospectus Supplement to such Trust
pursuant to a Sale and Servicing Agreement or
a Pooling and Servicing Agreement, as
applicable. The rights and benefits of an
Owner Trust under any Sale and Servicing
Agreement will, if such Owner Trust issues
Notes, be assigned to the related Indenture
Trustee as collateral for such Notes pursuant
to the related Indenture. The Servicer will
agree with each Trust to be responsible for
servicing, managing, maintaining custody of
and making collections on the Contracts. The
Company will undertake certain administrative
duties under an Administration Agreement (as
defined herein) with respect to each Owner
Trust that is formed pursuant to a Trust
Agreement.
To the extent specified in the related
Prospectus Supplement, the Servicer will be
obligated to advance each month an amount
equal to accrued and unpaid interest on the
Contracts which was delinquent with respect
to the related Due Period (as defined herein)
but only to the extent that the Servicer
believes that the amount of such advance will
be recoverable from collections on the
Contracts (an "ADVANCE"). The Servicer will
be entitled to reimbursement of Advances from
subsequent payments on or with respect to the
Contracts or from other sources to the extent
described in the related Prospectus
Supplement. The Servicer will disclose the
aggregate amount of Advances and the amount
of related delinquencies on Contracts as part
of the monthly statement provided to
Securityholders and described in "CERTAIN
INFORMATION REGARDING THE SECURITIES
--REPORTS TO SECURITYHOLDERS" herein. The
making of Advances indicates that
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<PAGE>
while interest payable on a portion of the
Contracts in the overall pool of Contracts
held by the Trust may be delinquent, the
Servicer believes that it will ultimately be
reimbursed for such Advances from collections
on the pool of Contracts as a whole.
Unless otherwise provided in the related
Prospectus Supplement, under the respective
Sale and Servicing Agreement or Pooling and
Servicing Agreement, the Trust Depositor has
agreed, in the event of a breach of certain
representations and warranties related to the
Contracts made by the Trust Depositor and
contained therein, to repurchase such
Contract within a certain number of days as
specified in the related Prospectus
Supplement, unless such breach is cured.
Harley-Davidson Credit Corp., as Seller under
the related Transfer and Sale
Agreement(rights in respect of which will be
assigned to a Trust) is obligated to
repurchase the Contracts from the Trust
Depositor contemporaneously with the Trust
Depositor's purchase of such Contracts from
the Trust. See "CERTAIN INFORMATION REGARDING
THE SECURITIES--CONVEYANCE OF CONTRACTS" and
"DESCRIPTION OF THE TRANSFER AND SALE
AGREEMENTS."
Security Interests in the
Motorcycles; Consumer
Protection Laws; Repurchase
Obligations................. In connection with the sale of the Contracts,
security interests in the Motorcycles
securing the Contracts will be assigned by
the Seller to a Trust Depositor pursuant to a
Transfer and Sale Agreement, which Trust
Depositor will, in turn, assign such security
interests to the Trust pursuant to either a
Sale and Servicing Agreement or a Pooling and
Servicing Agreement. In the case of an Owner
Trust, such security interests in turn will
be pledged and assigned to the related
Indenture Trustee as security for any Notes
issued by such Trust. The certificates of
title to the Motorcycles, however, will not
be amended or reissued to reflect the sale of
the Contracts and assignment of security
interests to either the Trust Depositor or
the Trust or the pledge pursuant to any
Indenture, due to the administrative burden
and expense inherent in physically revising
notations of security interests on
certificates of title for the numerous
individual Contract obligors in each
applicable state where Contracts were
originated (and paying associated fees in
such states). In the absence of such
amendments, either the related Trust, the
Applicable Trustee or both will not have a
perfected security interest in the
Motorcycles securing the Contracts in some
states. The Seller will be obligated to
repurchase any Contracts sold to the related
Trust Depositor (and subsequently sold by
such Trust Depositor to such Trust) as to
which there did not exist on the Closing Date
a first priority perfected security interest
in the name of the Company in the related
Motorcycle, if such failure materially and
adversely affects the interest of the Trust
Depositor or such Trust in such Contract and
if such failure is not cured in a timely
manner.
To the extent their respective security
interests in a Motorcycle are perfected, the
related Trust and the Applicable Trustee will
have a prior claim over subsequent purchasers
of such Motorcycle and holders of
subsequently perfected security interests
therein. However, as against liens for
repairs or storage of a Motorcycle or for
taxes unpaid by the related obligor with
respect to the Contract (the "OBLIGOR"), or
through fraud or negligence, the related
Trust or the Applicable Trustee could lose
its security interest or the priority of its
security interest in a Motorcycle. The Seller
will not have any obligation to repurchase a
Contract with respect to which the related
Trust or the Applicable Trustee loses its
security interest or the priority of its
security interest in the
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<PAGE>
related Motorcycle after the Closing Date due
to any such lien for repairs, storage or taxes
or the negligence or fraud of a third party.
Federal and state consumer protection laws
impose requirements upon creditors in
connection with extensions of credit and
collections of retail installment loans, and
certain of these laws make an assignee of
such a loan liable to the obligor thereon for
any violation by the lender. The Trust
Depositor will be obligated to repurchase
from the applicable Trust any Contract that
fails to comply with such requirements and
contemporaneously therewith the Seller,
pursuant to the related Transfer and Sale
Agreement, will be obligated to repurchase
such Contract from the Trust Depositor.
Tax Status.................. The federal income tax consequences
applicable to a Trust and to the Notes and
Certificates issued by the Trust will depend
upon whether the Trust is an Owner Trust,
Grantor Trust or, under 1996 legislation
effective on September 1, 1997, a FASIT (as
each of those terms is described herein) as
specified in the Prospectus Supplement
applicable to such Trust. See "FEDERAL INCOME
TAX CONSEQUENCES" herein for a fuller
discussion of the following summary of
federal income tax treatment.
For a Trust which is an Owner Trust, Federal
Tax Counsel (as defined herein) will deliver
its opinion that, for federal income tax
purposes, any Notes issued by such Trust will
be characterized as debt, and the Trust will
not be characterized as an association (or a
publicly traded partnership) taxable as a
corporation. Each holder of a Note (a
"NOTEHOLDER"), by the acceptance of a Note,
will agree to treat the Notes as
indebtedness, and each holder of a
Certificate (a "CERTIFICATEHOLDER") issued by
such Trust, by the acceptance of a
Certificate, will agree to treat the Trust as
a partnership in which the Certificateholders
are partners for federal income tax purposes.
For a Trust which is a Grantor Trust, Federal
Tax Counsel will deliver its opinion that the
Trust will be classified as a grantor trust
for federal income tax purposes and not as an
association taxable as a corporation. Each
Certificateholder will be treated as the
owner of an undivided interest in the assets
of the Trust, including the Contracts.
Accordingly, each Certificateholder must
report on its federal income tax return its
share of income from the Contracts and,
subject to limitations on deductions by
individuals, estates and trusts, may deduct
its share of the reasonable fees paid by the
Trust, as if such Certificateholder held its
share of the assets of the Trust directly.
Furthermore, the Certificates may represent
interests in "STRIPPED BONDS" and "STRIPPED
COUPONS" within the meaning of Section 1286
of the Code (as defined herein).
For a Trust which properly elects to be a
FASIT, Federal Tax Counsel will deliver its
opinion that the Trust will be treated as a
FASIT and the Securities issued by the FASIT
will be characterized as debt for federal
income tax purposes.
ERISA Considerations........ Fiduciaries of employee benefit plans and
certain retirement arrangements that are
subject to the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"),
or Section 4975 of the Code, should carefully
review with their legal advisors whether the
purchase or holding of the Securities may
give rise to a transaction that is prohibited
or is not otherwise permissible either under
ERISA or Section 4975 of the Code. See "ERISA
CONSIDERATIONS" herein and in the related
Prospectus Supplement.
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<PAGE>
Ratings..................... It is a condition to the issuance of the
Securities to be offered hereunder that they
be rated in one of the four highest rating
categories by at least one nationally
recognized statistical rating organization (a
"RATING AGENCY"). A rating is not a
recommendation to purchase, hold or sell
Securities inasmuch as such rating does not
comment as to market price or suitability for
a particular investor. Ratings of Securities
will address the likelihood of the payment of
principal and interest thereon pursuant to
their terms. The ratings of Securities will
not address the likelihood of an early return
of invested principal. There can be no
assurance that a rating will remain for a
given period of time or that a rating will
not be lowered or withdrawn entirely by a
Rating Agency if in its judgment
circumstances in the future so warrant. For
more detailed information regarding the
ratings assigned to any class of a particular
series of Securities, see "SUMMARY OF TERMS--
RATINGS" herein and "RISK FACTORS - RATINGS
OF THE SECURITIES" in the related Prospectus
Supplement.
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<PAGE>
RISK FACTORS
In addition to the other information contained in this Prospectus
and in the related Prospectus Supplement to be prepared and delivered in
connection with the offering of any series of Securities, prospective
investors should carefully consider the following risk factors before
investing in any class or classes of Securities of any such series. This
Prospectus also contains forward-looking statements that involve risks and
uncertainties. Actual results could differ materially from those anticipated
in these forward-looking statements as a result of certain factors, including
the risks described below.
REINVESTMENT RISK ASSOCIATED WITH PRE-FUNDING ACCOUNTS AND
COLLATERAL REINVESTMENT ACCOUNTS. If so provided in the related Prospectus
Supplement, on the Closing Date the Pre-Funded Amount specified in such
Prospectus Supplement will be deposited into the Pre-Funding Account. In
addition, if so specified in the related Prospectus Supplement, on the
Closing Date specified amounts will be deposited into the Collateral
Reinvestment Account. During the Revolving Period, principal will not be
distributed on the Securities of the related series, and principal
collections, together with (if and to the extent described in the related
Prospectus Supplement) interest collections on the Contracts that are in
excess of amounts required to be distributed therefrom, will be deposited
from time to time in the Collateral Reinvestment Account. The Pre-Funded
Amount and the amounts on deposit in the Collateral Reinvestment Account will
be used to purchase Subsequent Contracts from the Trust Depositor (which,
concurrently will acquire such Subsequent Contracts from the Company) from
time to time during the related Funding Period or Revolving Period, as
applicable. If the principal amount of the eligible Subsequent Contracts
acquired by the Company from Dealers during a Funding Period or Revolving
Period is less than the Pre-Funded Amount or the amount on deposit in the
Collateral Reinvestment Account, as the case may be, the Company may have
insufficient Subsequent Contracts to transfer to the Trust Depositor. To the
extent that the entire Pre-Funded Amount or the entire amount on deposit in
the Collateral Reinvestment Account has not been applied to the purchase of
Subsequent Contracts by the end of the related Funding Period or Revolving
Period, any amounts remaining in the Pre-Funding Account or the Collateral
Reinvestment Account will be distributed as a prepayment of principal to
Noteholders, if applicable, and Certificateholders (collectively, the
"Securityholders") on the Distribution Date at or immediately following the
end of such Funding Period or Revolving Period, in the amounts and pursuant
to the priorities set forth in the related Prospectus Supplement (the
"MANDATORY SPECIAL REDEMPTION"). To the extent a Securityholder receives such
a prepayment of principal, there may not then exist a comparably favorable
reinvestment opportunity for such Securityholder. The Securityholders will
bear all reinvestment risk resulting from such prepayments. See also "--
PREPAYMENTS ON CONTRACTS AFFECT YIELD ON SECURITIES" below.
SALES OF SUBSEQUENT CONTRACTS AND EFFECT ON POOL CHARACTERISTICS.
Any conveyance of Subsequent Contracts to a Trust is subject to the
satisfaction, on or before the related transfer date (each, a "Subsequent
Transfer Date"), of the following conditions precedent, among others: (i)
each such Subsequent Contract must satisfy the eligibility criteria specified
in the related Transfer and Sale Agreement, Pooling and Servicing Agreement
or Sale and Servicing Agreement, as applicable; (ii) the Company and Trust
Depositor shall not have selected such Subsequent Contracts in a manner that
is adverse to the interests of holders of the related Securities; (iii) as of
the respective Cutoff Dates (as such term is defined in the related
Prospectus Supplement) for such Subsequent Contracts, all of the Contracts in
the Trust, including the Subsequent Contracts to be conveyed to the Trust as
of such date, must satisfy the parameters described under "The Contracts"
herein and "The Contracts" in such Prospectus Supplement; and (iv) the Trust
Depositor must execute and deliver to such Trust a written assignment
conveying such Subsequent Contracts to such Trust. Except as described herein
and in the related Prospectus Supplement, there will be no other required
characteristics of Subsequent Contracts. It is not anticipated, however, that
the characteristics of the pool of Contracts as a whole will vary
significantly following the addition of Subsequent Contracts.
RISK OF UNPERFECTED SECURITY INTERESTS IN FINANCED MOTORCYCLES. Each
Contract is secured by a security interest in a Motorcycle. As part of the
sale and assignment of Contracts to a Trust, security interests in the
related Contracts will be assigned by the Seller to the Trust Depositor and
by the Trust Depositor to such Trust. In most states, such an assignment is
an effective conveyance of a security interest without amendment of any such
security interest noted on a Motorcycle's certificate of title, and the
assignee succeeds thereby to the assignor's rights as secured party. However,
in order to perfect such security interest, certain states require the
notation of a secured
11
<PAGE>
party's security interest on the vehicle's certificate of title as filed with
the applicable state motor vehicle registrar or similar state authority. Due
to administrative burden and expense, the certificates of title to the
Motorcycles will not be amended to reflect the conveyance and assignment of
Harley-Davidson Credit Corp.'s interest therein to the Trust Depositor, the
conveyance and assignment of the Trust Depositor's interest therein to the
Trust and the pledge of the Trust's interest therein to the Indenture
Trustee, as applicable. In the absence of such an amendment, the Applicable
Trustee, in certain cases, will not have a perfected security interest in the
Motorcycles. By not specifying the related Trust as a secured party on the
certificate of title, the security interest of the Trust, the Indenture
Trustee or both could be defeated through fraud or negligence of the Seller
or as a result of the imposition of a lien for repairs or storage of a
Motorcycle or for taxes unpaid by the Obligor under the related Contract.
Pursuant to the Transfer and Sale Agreement, Harley-Davidson Credit
Corp. will make certain representations and warranties relating to the
validity, subsistence, perfection and priority of the security interest in
each Motorcycle securing a Contract. A breach of any such representation and
warranty that materially and adversely affects the Trust's interest in any
Contract would create an obligation of the Trust Depositor in the Sale and
Servicing Agreement to repurchase such Contract from the Trust and a
simultaneous obligation of Harley-Davidson Credit Corp. to repurchase such
Contract from the Trust Depositor (which right of the Trust Depositor against
Harley-Davidson Credit Corp. is assigned to the Trust) unless such breach is
cured. In the event that the Trust must rely on repossession and resale of
Motorcycles securing Contracts that are in default to recover principal and
interest due thereon, certain other factors may limit the ability of the
Trust to realize upon the Motorcycle or may limit the amount realized to less
than the amount due. See "CERTAIN LEGAL ASPECTS OF THE CONTRACTS" below.
To the extent that the Trust's and the Applicable Trustee's security
interest in a Motorcycle is perfected, the Trust and the Applicable Trustee
will have a prior claim under applicable state laws over subsequent
purchasers of such Motorcycle and holders of subsequently perfected security
interests therein. However, as against liens for repairs or storage of a
Motorcycle or taxes unpaid by the Obligor on the Contract secured thereby,
the Trust and the Applicable Trustee could lose their respective security
interests or the priority of such security interests in a Motorcycle. In
addition, even if the Seller, the Trust or the Applicable Trustee were to be
identified as the secured party on the certificate of title of a Motorcycle,
such secured party's security interest could be defeated by the fraud or
forgery of the vehicle owner or by administrative errors by applicable state
or local agencies responsible for titling vehicles. The Company will not have
any obligation to repurchase a Contract with respect to which the Trust or
the Applicable Trustee loses its security interest in the related Motorcycle
after the Closing Date due to any such lien for repairs, storage or taxes or
due to the negligence or fraud of a third party.
ADDITIONAL LEGAL LIMITS ON THE APPLICABLE TRUSTEE'S ABILITY TO
REALIZE ON ITS SECURITY INTEREST IN THE MOTORCYCLES - BANKRUPTCY LAWS. Under
the United States Bankruptcy Code, a court in a bankruptcy case with respect
to an Obligor on a Contract may prevent the Applicable Trustee from
repossessing a Motorcycle and may reduce the amount of secured indebtedness
or change the amount or timing of monthly payments or the interest rate
applicable to a Contract.
ADDITIONAL LEGAL LIMITS ON THE APPLICABLE TRUSTEE'S ABILITY TO
REALIZE ON ITS SECURITY INTEREST IN THE MOTORCYCLES - CONSUMER PROTECTION
LAWS. Numerous federal and state consumer protection laws impose requirements
on lenders and/or servicers with respect to conditional financing
arrangements such as the Contracts, including requirements regarding the
adequate disclosure of loan terms (including finance charges and deemed
finance charges) and limitations on loan terms (including the permitted
finance charge or deemed finance charge), collection practices and creditor
remedies. Failure by Dealers or Harley-Davidson Credit Corp. to comply with
such requirements could have the effect of subjecting an assignee of the
Contracts to the related claims and defenses of the Obligor on such Contract.
This risk would apply to a Trust as assignee, and with respect to an Owner
Trust, the Indenture Trustee as pledgee, of the Contracts. See also "CERTAIN
LEGAL ASPECTS OF THE CONTRACTS -- CONSUMER PROTECTION LAWS" below.
Generally, under the terms of the Soldiers' and Sailors' Civil Relief
Act of 1940, as amended (the "Relief Act"), or similar state legislation, an
Obligor who enters military service after the origination of the related
Contract (including an Obligor who is a member of the National Guard or is in
reserve status at the time of the origination of the Contract and is later
called to active duty) may not be charged interest (including fees and charges)
above an
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annual rate of 6% during the period of such Obligor's active duty status,
unless a court orders otherwise upon application of the lender. It is
possible that such action could have an effect, for an indeterminate period
of time, on the ability of the Servicer to collect full amounts of interest
on certain of the Contracts. In addition, the Relief Act imposes limitations
that would impair the ability of the Servicer to foreclose on an affected
Contract during the Obligor's period of active duty status. Thus, in the
event that such a Contract goes into default, there may be delays and losses
occasioned by the inability of the Servicer to realize upon the Motorcycle in
a timely fashion.
The Seller will warrant under the related Transfer and Sale
Agreement that each Contract complies with all requirements of law in all
material respects. Accordingly, if an Obligor has a claim against the related
Trust for violation of any law and such claim materially and adversely
affects such Trust's interest in a Contract, such violation would constitute
a breach of the warranties of the Seller under the related Transfer and Sale
Agreement and would create an obligation of the Seller to repurchase the
Contract from the Trust, through the Trust Depositor (with the Trust as
assignee of the Trust Depositor's rights against the Seller in this regard),
unless the breach were cured. See "DESCRIPTION OF THE SALE AND SERVICING
AGREEMENTS AND POOLING AND SERVICING AGREEMENTS -- SALE AND ASSIGNMENT OF
CONTRACTS".
COMPANY BANKRUPTCY CONSIDERATIONS. Winston & Strawn, counsel to the
Company and the Trust Depositor, will render an opinion to the Applicable
Trustee that in the event the Company became a debtor under the United States
Bankruptcy Code, the transfer of the Contracts from the Company to the Trust
Depositor in accordance with the Transfer and Sale Agreement (and any related
purchase agreement in connection with transfers of Subsequent Contracts;
hereinafter, a "SUBSEQUENT PURCHASE AGREEMENT") would be treated as a sale
and not as a pledge to secure borrowings and that the Trust Depositor would
not be consolidated with the Company as a single entity. If, however, the
transfer of the Contracts from the Company to the Trust Depositor were
treated as a pledge to secure borrowings by the Company or if the Trust
Depositor were ordered consolidated with the Company as a single entity or
were to become bankrupt for any reason, the distribution of proceeds of the
Contracts to the Trust might be subject to the automatic stay provisions of
the United States Bankruptcy Code, which would delay the distribution of such
proceeds for an uncertain period of time. In addition, a bankruptcy trustee
would have the power to sell the Contracts if the proceeds of such sale could
satisfy the amount of the debt deemed owed by the Company, or the bankruptcy
trustee could substitute other collateral in lieu of the Contracts to secure
such debt, or such debt could be subject to adjustment by the bankruptcy
court if the Company were to file for reorganization under Chapter 11 of the
United States Bankruptcy Code. A case decided by the United States Court of
Appeals for the Tenth Circuit contains language to the effect that accounts
sold by a debtor under Article 9 of the Uniform Commercial Code ("UCC") would
remain property of the debtor's bankruptcy estate. Although the Contracts
constitute chattel paper under the UCC rather than accounts, sales of chattel
paper are similarly governed by Article 9 of the UCC. If, following a
bankruptcy of the Company, a court were to follow the reasoning of the Tenth
Circuit and apply such reasoning to chattel paper, then similar reductions or
delays in payments of collections on or in respect of the Contracts could
occur. Additionally, because the Company has purchased Contracts from Dealers
located in the Tenth Circuit which could become debtors in a bankruptcy
proceeding, the rationale of such case could be applicable to such Dealers'
sales of Contracts to the Company and the corresponding negative implications
for timing of receipt of payments with respect to such Contracts may occur.
RISKS ASSOCIATED WITH NON-RECOURSE NATURE OF SECURITIES - NO
RECOURSE TO THE COMPANY, TRUST DEPOSITORS OR THEIR AFFILIATES. None of the
Company, any Trust Depositor or any of their affiliates is generally
obligated to make any payments in respect of any Notes, the Certificates or
the Contracts of a given Trust. However, in connection with the sale of
Contracts by the Trust Depositor to a given Trust, the Trust Depositor will
make representations and warranties with respect to the characteristics of
such Contracts and, in certain circumstances, the Trust Depositor may be
required to repurchase Contracts with respect to which such representations
and warranties have been breached. See "DESCRIPTION OF THE SALE AND SERVICING
AGREEMENTS AND POOLING AND SERVICING AGREEMENTS -- SALE AND ASSIGNMENT OF
CONTRACTS". The Company, as Seller, will correspondingly be obligated to the
Trust Depositor under the Transfer and Sale Agreement (which rights of the
Trust Depositor against the Company will be assigned to the Trust) to
repurchase the Contracts from the Trust Depositor contemporaneously with the
Trust Depositor's purchase of the Contract from a Trust. See "DESCRIPTION OF
THE TRANSFER AND SALE AGREEMENT". Moreover, if the Company were to cease
acting as Servicer, delays in processing payments on the Contracts and
information in respect thereof could occur and result in delays in payments
to the Securityholders. The related
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Prospectus Supplement may set forth certain additional information regarding
the Company and any Trust Depositor.
RISKS ASSOCIATED WITH NON-RECOURSE NATURE OF SECURITIES - TRUSTS
HAVE NO SIGNIFICANT ASSETS OR SOURCES OF FUNDS OTHER THAN THE CONTRACTS. None
of the Trusts will have, nor will any Trust be permitted or expected to have,
any significant assets or sources of funds other than the Contracts and, to
the extent provided in the related Prospectus Supplement, a Pre-Funding
Account, a Collateral Reinvestment Account, a Reserve Fund and any other
credit enhancement or Trust Property. The Notes of any series will represent
obligations solely of, and the Certificates of any series will represent
interests solely in, the related Trust, and neither the Notes nor the
Certificates of any series will be insured or guaranteed by the Trust
Depositor, the Servicer, the Applicable Trustee, or any other person or
entity (except as may be described in a Prospectus Supplement). Consequently,
holders of the Securities of any series must rely for repayment upon payments
on the related Contracts and, if and to the extent available, amounts on
deposit in the Pre-Funding Account (if any), the Collateral Reinvestment
Account (if any), the Reserve Fund (if any) and any other credit enhancement,
all as specified in the related Prospectus Supplement. Any such credit
enhancement will not cover all contingencies, and losses in excess of amounts
available pursuant to such credit enhancement will be borne directly by the
Securityholders.
SUBORDINATION OF CERTAIN CLASSES OF SECURITIES. To the extent
specified in the related Prospectus Supplement, distributions of interest and
principal on one or more classes of Notes, if any, or Certificates of a
series may be subordinated in priority of payment to interest and principal
due on certain of the Notes, if any, of such series or one or more classes of
Certificates of such series. As a result of such subordination, in the event
that losses with respect to the Contracts and associated reductions in
collections require application of available collections and credit
enhancement to a class of Securities with priority of payment over another
class, there may not be sufficient assets remaining to pay amounts due on the
subordinated Securities.
PREPAYMENTS ON CONTRACTS AFFECT YIELD OF SECURITIES. By their terms,
the Contracts may be prepaid, in whole or in part, at any time and each
Contract contains a provision which permits the Trust Depositor to require
full prepayment in the event of a sale of the Motorcycle securing a Contract.
In addition, repurchases of the Contracts by the Seller through the Trust
Depositor could occur in the event of a breach of a representation and
warranty with respect to the Contracts and upon exercise of the Trust
Depositor's option to repurchase Contracts when the aggregate outstanding
principal balances of the Contracts owned by the Trust (the "POOL BALANCE")
has decreased to a certain level. Any prepayments and repurchases of
Contracts will reduce the average life of the Contracts and the interest
received by the Noteholders or Certificateholders over the life of the Notes
or Certificates (for this purpose the term "PREPAYMENT" includes liquidations
due to default, as well as receipt of proceeds from credit life, credit
disability and casualty insurance policies). In addition, with respect to an
Owner Trust the occurrence of a Mandatory Special Redemption at or before the
end of the Funding Period would have the effect of reducing the interest
received by Noteholders over the life of the Notes.
In light of the above considerations, there can be no assurance as
to the amount of principal payments to be made on the Notes, if any, or the
Certificates of a given series on each Distribution Date since such amount
will depend, in part, on the amount of principal collected on the related
pool of Contracts during the applicable Due Period. Any reinvestment risks
resulting from a faster or slower incidence of prepayment of Contracts, or
repurchases of Contracts, as described above, will be borne entirely by the
Securityholders of a given series. The related Prospectus Supplement may set
forth certain additional information with respect to the maturity and
prepayment considerations applicable to the particular pool of Contracts and
the related series of Securities. See "WEIGHTED AVERAGE LIFE OF THE
SECURITIES."
SOCIAL, ECONOMIC AND OTHER FACTORS AFFECTING THE PERFORMANCE OF THE
CONTRACTS OR GENERATION OF SUBSEQUENT CONTRACTS. Economic conditions in
states or U.S. Territories where Obligors reside may affect the delinquency,
loan loss and repossession experience of a Trust with respect to the related
Contracts. The performance by such Obligors, or the ability of
Harley-Davidson Credit Corp. to acquire from Dealers sufficient Subsequent
Contracts for purchase with the Pre-Funded Amount, may be affected by a
variety of social and economic factors including, but are not limited to,
interest rates, unemployment levels, the rate of inflation, and consumer
perception of economic conditions generally. However, neither Harley-Davidson
Credit Corp. nor the
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Trust Depositor is able to determine and has no basis to predict whether or
to what extent economic or social factors will affect the performance by any
Obligors, or the availability of Subsequent Contracts in cases where
Subsequent Contracts are to be transferred to a Trust as specified in the
related Prospectus Supplement.
RISK OF COMMINGLING. With respect to each Trust, the Servicer will
be obligated to deposit all payments on the Contracts (from whatever source)
and all proceeds of such Contracts collected during each Due Period into the
Collection Account of such Trust within two business days of receipt thereof.
However, if so provided in the related Prospectus Supplement, in the event
that the Company satisfies certain requirements for monthly or less frequent
remittances and the Rating Agencies affirm their ratings of the related
Securities at the initial level, then for so long as the Company is the
Servicer and provided that (i) there exists no Servicer Default (as defined
herein) and (ii) each other condition to making such monthly or less frequent
deposits as may be specified by the Rating Agencies and described in such
Prospectus Supplement is satisfied, the Servicer will not be required to
deposit such amounts into the Collection Account of such Trust until on or
before the business day preceding each Distribution Date. The Servicer will
also be obligated to deposit the aggregate Purchase Amount (as defined
herein) of Contracts purchased by the Servicer into the applicable Collection
Account on or before the business day preceding each Distribution Date.
Pending deposit into such Collection Account, collections may be invested by
the Servicer at its own risk and for its own benefit and will not be
segregated from funds of the Servicer. If the Servicer were unable to remit
such funds, the applicable Securityholders might incur a loss. To the extent
set forth in the related Prospectus Supplement, the Servicer may, in order to
satisfy the requirements described above, obtain a letter of credit or other
security for the benefit of the related Trust to secure timely remittances of
collections on the related Contracts and payment of the aggregate Purchase
Amount with respect to Contracts purchased by the Servicer.
NOTEHOLDERS' ABILITY TO REMOVE SERVICER WITHOUT CERTIFICATEHOLDERS'
CONSENT. Unless otherwise provided in the related Prospectus Supplement with
respect to a series of Securities issued by an Owner Trust that includes
Notes, in the event a Servicer Default (as defined herein) occurs, the
Indenture Trustee or the Noteholders with respect to such series, as
described under "DESCRIPTION OF THE SALE AND SERVICING AGREEMENTS AND POOLING
AND SERVICING AGREEMENTS -- RIGHTS UPON SERVICER DEFAULT", may remove the
Servicer without the consent of the Owner Trustee or any of the
Certificateholders with respect to such series. The Owner Trustee or the
Certificateholders with respect to such series will not have the ability,
without the concurrence of the Noteholders of such series, to remove the
Servicer if a Servicer Default occurs.
NO ASSURANCES GIVEN AS TO CHANGES IN THE RATINGS OF THE SECURITIES.
It is a condition to the issuance of the Securities to be offered hereunder
that they be rated in one of the four highest rating categories by at least
one nationally recognized statistical rating organization (a "RATING
AGENCY"). A rating is not a recommendation to purchase, hold or sell
Securities inasmuch as such rating does not comment as to market price or
suitability for a particular investor. Ratings of Securities will address the
likelihood of the payment of principal and interest thereon pursuant to their
terms. The ratings of Securities will not address the likelihood of an early
return of invested principal. There can be no assurance that a rating will
remain for a given period of time or that a rating will not be lowered or
withdrawn entirely by a Rating Agency if in its judgment circumstances in the
future so warrant. For more detailed information regarding the ratings
assigned to any class of a particular series of Securities, see "SUMMARY OF
TERMS -- RATINGS" and "RISK FACTORS -- RATINGS of THE SECURITIES" in the
related Prospectus Supplement.
BOOK-ENTRY REGISTRATION - SECURITYHOLDERS LIMITED TO EXERCISING
THEIR RIGHTS THROUGH DTC. Each class of Securities of a given series will be
initially represented by one or more certificates registered in the name of
Cede & Co. ("CEDE"), or any other nominee for The Depository Trust Company
("DTC") set forth in such Prospectus Supplement (Cede, or such other nominee,
"DTC'S NOMINEE"), and will not be registered in the names of the holders of
the Securities of such series or their nominees. Because of this, unless and
until Definitive Securities (as defined herein) for such series are issued,
Securityholders will not be recognized by the Applicable Trustee. Hence,
until Definitive Securities are issued, Securityholders will be able to
exercise their rights only indirectly through DTC and its participating
organizations. See "CERTAIN INFORMATION REGARDING THE SECURITIES --
BOOK-ENTRY REGISTRATION" and "-- DEFINITIVE SECURITIES".
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LIMITED LIQUIDITY. There is currently no secondary market for the
Securities. There can be no assurance that any such market will develop or, if
it does develop, that it will provide Securityholders with liquidity of
investment or will continue for the life of the Securities. The Securities will
not be listed on any securities exchange.
THE TRUSTS
With respect to each series of Securities, the Trust Depositor will
establish a separate Trust pursuant to the respective Trust Agreement or
Pooling and Servicing Agreement, as applicable, for the transactions
described herein and in the related Prospectus Supplement. The property of
each Trust will include a pool of retail installment sales contracts of new
and used Harley-Davidson motorcycles, or in certain limited instances
Motorcycles manufactured by Buell and Motorcycles manufactured by certain
Other Manufacturers (see "OTHER MANUFACTURERS" herein) (limited to 10% of the
principal balance of the Contracts owned by a Trust) as well as all payments
due thereunder on and after the applicable Cutoff Date. Such Contracts will
be sold by the Company to the Trust Depositor but will continue to be
serviced by the Company as Servicer. On the applicable Closing Date, after
the issuance of the Certificates and any Notes of a given series, the Trust
Depositor will sell the Initial Contracts to the Trust to the extent
specified in the related Prospectus Supplement. If and to the extent so
provided in the related Prospectus Supplement, Subsequent Contracts will be
conveyed to the Trust as frequently as daily during the Funding Period. In
addition, if so provided in the related Prospectus Supplement, the property
of a Trust may also include monies deposited into the Collateral Reinvestment
Account on the Closing Date. With respect to an Owner Trust, during the
Revolving Period (if applicable), principal will not be distributed on the
Securities of the related series, and principal collections on the Contracts
of such Trust, together with (if and to the extent described in the related
Prospectus Supplement) interest collections on such Contracts that are in
excess of amounts required to be distributed therefrom, will be deposited
from time to time in the Collateral Reinvestment Account and will be used by
the Trust to purchase Subsequent Contracts during such Revolving Period. Any
Subsequent Contracts so conveyed will also be assets of the applicable Trust,
subject, in the case of any Owner Trust that issues Notes, to the prior
rights of the related Indenture Trustee and the Noteholders, if any, in such
Subsequent Contracts. The property of each Trust will also include (i) such
amounts as from time to time may be held in separate trust accounts
established and maintained pursuant to the related Sale and Servicing
Agreement or Pooling and Servicing Agreement and the proceeds of such
accounts, as described herein and in the related Prospectus Supplement; (ii)
security interests in the Motorcycles and any other interest of the Trust
Depositor in such Motorcycles; (iii) the rights to proceeds from claims on
certain physical damage, credit life and disability insurance policies
covering the Motorcycles or the Obligors, as the case may be; (iv) the
interest of the Trust Depositor in any proceeds from recourse to Dealers (as
defined herein) or other originators in respect of Contracts as to which the
Servicer has determined that eventual repayment in full is unlikely; and (v)
any and all proceeds of the foregoing. To the extent specified in the related
Prospectus Supplement, a Pre-Funding Account, a Collateral Reinvestment
Account, a Reserve Fund or other form of credit enhancement or such other
property, may be a part of the property of any given Trust or may be held by
the Trustee or an Indenture Trustee for the benefit of holders of the related
Securities.
The Servicer will continue to service the Contracts held by each
Trust and will receive fees for such services. See "DESCRIPTION OF THE SALE
AND SERVICING AGREEMENTS AND POOLING AND SERVICING AGREEMENTS -- SERVICINg
COMPENSATION AND PAYMENT OF EXPENSES" herein and in the related Prospectus
Supplement. To facilitate the servicing of the Contracts, the Trust Depositor
and the Applicable Trustee will authorize the Servicer to retain physical
possession of the Contracts held by each Trust and other documents relating
thereto as custodian for each such Trust. Due to the administrative burden
and expense, the certificates of title to the Motorcycles will not be amended
to reflect the sale and assignment of the security interest in the
Motorcycles to each Trust. In the absence of such an amendment, the Trust may
not have a perfected security interest in the Motorcycles in all states. See
"RISK FACTORS -- RISK OF UNPERFECTED SECURITY INTERESTS IN FINANCED
MOTORCYCLES"; "CERTAIN LEGAl ASPECTS OF THE CONTRACTS"; and "DESCRIPTION OF
THE SALE AND SERVICING AGREEMENTS AND POOLING AND SERVICING AGREEMENTS --
SALE AND ASSIGNMENT OF CONTRACTS" herein.
If the protection provided to any Noteholders of a given series by
the subordination of the related Certificates and by the Reserve Fund, if
any, or other credit enhancement for such series or the protection provided
to Certificateholders by any such Reserve Fund or other credit enhancement is
insufficient, such Noteholders or Certificateholders, as the case may be,
would have to look principally to the Obligors on the related Contracts, the
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proceeds from the repossession and sale of Motorcycles which secure defaulted
Contracts and the proceeds from any recourse against Dealers or other
originators with respect to such Contracts. In such event, certain factors,
such as the applicable Trust's not having perfected security interests in the
Motorcycles in all states, may affect the Servicer's ability to repossess and
sell the collateral securing the Contracts, and thus may reduce the proceeds
to be distributed to the holders of the Securities of such series. See
"DESCRIPTION OF THE SALE AND SERVICING AGREEMENTS AND POOLING AND SERVICING
AGREEMENTS --DISTRIBUTIONS", "-- CREDIT AND CASH FLOW ENHANCEMENT" and
"CERTAIN LEGAL ASPECTS OF THE CONTRACTS".
The principal offices of each Trust and the related Applicable
Trustee will be specified in the applicable Prospectus Supplement.
THE TRUSTEE AND THE INDENTURE TRUSTEE
The Trustee and the Indenture Trustee, as applicable, for each Trust
will be specified in the related Prospectus Supplement. The Applicable
Trustee's liability in connection with the issuance and sale of the related
Securities will be limited solely to the express obligations of such
Applicable Trustee set forth in the related Trust Agreement and the Sale and
Servicing Agreement or the related Pooling and Servicing Agreement, as
applicable. The Applicable Trustee may resign at any time, in which event the
Servicer, or its successor (or, in the case of an Owner Trust that issues
Notes, the Administrator thereof), will be obligated to appoint a successor
trustee. The Administrator of any Owner Trust that issues Notes and the
Servicer in respect of any Grantor Trust may also remove the Applicable
Trustee if such Trustee ceases to be eligible to continue as Trustee under
the related Trust Agreement or Pooling and Servicing Agreement, as
applicable, or if the Applicable Trustee becomes insolvent. In such
circumstances, the Administrator or Servicer, as applicable, will be
obligated to appoint a successor Trustee. Any resignation or removal of a
Trustee or Indenture Trustee, as applicable, and appointment of a successor
Trustee will not become effective until acceptance of the appointment by the
successor Trustee.
HARLEY-DAVIDSON MOTORCYCLES
Generally, no more than 5% of the aggregate principal balance of
contracts financed by Harley-Davidson Credit Corp. are secured by Motorcycles
manufactured by Buell. The percentage of Contracts in a Trust secured by
motorcycles manufactured by Buell cannot be determined. Not more than 10.0%
of the Contracts (including all Subsequent Contracts) may relate to, and be
secured by, Motorcycles manufactured by Other Manufacturers. See "OTHER
MANUFACTURERS." Buell produces "PERFORMANCE" motorcycles using engines and
certain other parts manufactured by Harley-Davidson.
Harley-Davidson produces and sells premium heavyweight motorcycles.
Within the heavyweight class, Harley-Davidson sells touring motorcycles
(equipped for long-distance touring), as well as custom motorcycles which
emphasize the distinctive styling associated with certain classic
Harley-Davidson motorcycles. Harley-Davidson motorcycles are based on
variations of five basic chassis designs and are powered by one of four air
cooled, twin cylinder engines of "V" configuration which have displacements
of 883cc, 1200cc, 1340cc and 1450cc. Harley-Davidson manufactures its own
engines and frames and is the only major manufacturer of motorcycles in the
United States.
Buell produces "PERFORMANCE" motorcycles using Harley-Davidson
1200cc engines that are further modified in the manufacturing process, as
well as certain other Harley parts. The "PERFORMANCE" aspect of the
motorcycles refers to overall handling characteristics of the motorcycle,
including cornering, acceleration and braking. Buell motorcycles and related
products are currently distributed exclusively through Harley-Davidson
dealers. Buell's overall share of the "PERFORMANCE" market is negligible, but
increasing.
OTHER MANUFACTURERS
Except as otherwise specified in the related Prospectus Supplement,
Contracts aggregating not more than 10.0% of the aggregate principal balances
of all Contracts in a Trust (including Subsequent Contracts) may relate to,
and be secured by, Motorcycles manufactured by Honda, Yamaha, Suzuki,
Kawasaki as well as certain other manufacturers. Such Motorcycles fall within
two (2) categories: "touring cycles" (with displacements typically over
750cc) which are generally intended for use in long distance travel, and
"street legal cycles", which include all other
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motorcycles which may be licensed for street use under applicable state or
local law and which are not generally viewed as falling with the "touring
cycle" category.
THE CONTRACTS
GENERAL
The Contracts (including Subsequent Contracts) in each Trust have
been or will be purchased by the Company from a network of Harley-Davidson
Dealers located thrOughout the United States. The Company's personnel contact
Dealers and explain the Company's available financing plans, terms,
prevailing rates and credit and financing policies. If the Dealer wishes to
use the Company's available customer financing, the Dealer must make an
application to the Company for approval.
Contracts (including Subsequent Contracts) that the Company
purchases are written on forms provided or approved by the Company and are
purchased on an individually approved basis in accordance with the Company's
guidelines. The Dealer submits the customer's credit application and purchase
order to the Company's office where an analysis of the creditworthiness of
the proposed buyer is made. The analysis includes a review of the proposed
buyer's paying habits, length and likelihood of continued employment and
certain other procedures. The Company's current underwriting guidelines for
Contracts generally require that the monthly payment on the Contract,
together with the Obligor's other fixed monthly obligations, not exceed 40%
of the Obligor's monthly gross income; provided, however, the Company may
originate a Contract in excess of 40% of an Obligor's monthly gross income if
the Obligor makes a larger down payment or has an exceptionally good credit
rating or other offsetting factors exist. With respect to Contracts for new
Motorcycles, and for used Motorcycles of model year 1990 or later, the
Company generally finances up to 90% of the Motorcycle's sales price. The
Company generally finances up to 85% of such amount for used Motorcycles of a
model year earlier than 1990. The Company will also finance certain Dealer
installed accessories, sales tax and title fees as well as premiums for the
term of the contract on optional credit life and accident and health
insurance, premiums for extended warranty insurance and premiums for required
physical damage insurance on the Motorcycle which financed amounts are part
of the principal balance of the respective Contract. If the application meets
the Company's guidelines and the credit is approved, the Company purchases
the Contract when the customer accepts delivery of the Motorcycle.
DELINQUENCIES, REPOSSESSIONS AND NET LOSSES
Certain information concerning the experience of the Company
pertaining to delinquencies, repossessions and net losses with respect to new
and used Motorcycle Contracts will be set forth in each Prospectus
Supplement. There can be no assurance that the delinquency, repossession and
net loss experience on any particular pool of Contracts will be comparable to
prior experience or to such information.
WEIGHTED AVERAGE LIFE OF THE SECURITIES
The weighted average life of the Notes, if any, and the Certificates
of any series will generally be influenced by the rate at which the principal
balances of the related Contracts are paid, which payment may be in the form
of scheduled amortization or prepayments. (For this purpose, the term
"PREPAYMENTS" includes prepayments in full, partial prepayments (including
those related to rebates of extended warranty contract costs and insurance
premiums), liquidations due to default, losses caused by the issuance of an
order by a court in any insolvency proceeding reducing the amount owed under
a Contract, as well as receipts of proceeds from physical damage, credit life
and disability insurance policies and from certain purchases or repurchases
of Contracts from the Trust.) All of the Contracts are prepayable at any time
without penalty to the Obligor. The rate of prepayment of Contracts is
influenced by a variety of economic, social and other factors. In addition,
under certain circumstances, the Company, through the Trust Depositor, will
be obligated to repurchase Contracts from a given Trust pursuant to the
related Transfer and Sale Agreement, Sale and Servicing Agreement or Pooling
and Servicing Agreement as a result of breaches of certain representations
and warranties. See "DESCRIPTION OF THE SALE AND SERVICING AGREEMENTS AND
POOLING AND SERVICING AGREEMENTS -- SALE AND ASSIGNMENT OF CONTRACTS" and "--
SERVICING PROCEDURES". See also "DESCRIPTION OF THE SALE AND SERVICING
AGREEMENTS AND POOLING AND SERVICING AGREEMENTS -- TERMINATION" regarding the
Trust Depositor's option to repurchase the Contracts from a given Trust (and
the Seller's option to concurrently repurchase such Contracts from the Trust
Depositor) and "-- INSOLVENCY EVENT" regarding the sale of
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the Contracts owned by a Trust if an Insolvency Event with respect to the
Trust Depositor applicable to such Trust occurs.
In light of the above considerations, there can be no assurance as
to the amount of principal payments to be made on the Notes, if any, or the
Certificates of a given series on each Distribution Date since such amount
will depend, in part, on the amount of principal collected on the related
pool of Contracts during the applicable Due Period. Any reinvestment risks
resulting from a faster or slower incidence of prepayment of Contracts will
be borne entirely by the Noteholders, if any, and the Certificateholders of a
given series. The related Prospectus Supplement may set forth certain
additional information with respect to the maturity and prepayment
considerations applicable to the particular pool of Contracts and the related
series of Securities.
POOL FACTORS AND TRADING INFORMATION
The "NOTE POOL FACTOR" for each class of Notes will be a seven-digit
decimal which the Servicer will compute prior to each distribution with
respect to such class of Notes indicating the remaining outstanding principal
balance of such class of Notes, as of the applicable Distribution Date (after
giving effect to payments to be made on such Distribution Date), as a
fraction of the initial outstanding principal balance of such class of Notes.
The "CERTIFICATE POOL FACTOR" for each class of Certificates will be a
seven-digit decimal which the Servicer will compute prior to each
distribution with respect to such class of Certificates indicating the
remaining Certificate Balance of such class of Certificates, as of the
applicable Distribution Date (after giving effect to distributions to be made
on such Distribution Date), as a fraction of the initial Certificate Balance
of such class of Certificates. Each Note Pool Factor and each Certificate
Pool Factor will initially be 1.0000000 and thereafter will decline to
reflect reductions in the outstanding principal balance of the applicable
class of Notes, or the reduction of the Certificate Balance of the applicable
class of Certificates, as the case may be. A Noteholder's portion of the
aggregate outstanding principal balance of the related class of Notes is the
product of (i) the original denomination of such Noteholder's Note and (ii)
the applicable Note Pool Factor. A Certificateholder's portion of the
aggregate outstanding Certificate Balance for the related class of
Certificates is the product of (a) the original denomination of such
Certificateholder's Certificate and (b) the applicable Certificate Pool
Factor.
Unless otherwise provided in the related Prospectus Supplement, the
Noteholders, if any, and the Certificateholders will receive reports on or
about each Distribution Date concerning, with respect to the Due Period
immediately preceding such Distribution Date, payments received on the
Contracts, the Pool Balance, each Certificate Pool Factor or Note Pool
Factor, as applicable, and various other items of information. In addition,
Securityholders of record during any calendar year will be furnished
information for tax reporting purposes not later than the latest date
permitted by law. See "CERTAIN INFORMATION REGARDING THE SECURITIES --
REPORTS TO SECURITYHOLDERS".
USE OF PROCEEDS
Unless otherwise provided in the related Prospectus Supplement, the
Trust will use the net proceeds received from the sale of the Securities (i)
to purchase the Initial Contracts and related assets from the Trust
Depositor, (ii) to make the deposit, if any, of the Pre-Funded Amount into
the Pre-Funding Account, if any, and (iii) to make the initial deposit, if
any, to the Collateral Reinvestment Account, if any. The Seller will use the
net proceeds from the Trust Depositor's purchase of the Initial Contracts, as
well as Subsequent Contracts, for the repayment of warehouse lines through
which it finances its Motorcycle conditional sales contracts, and for other
corporate purposes.
HARLEY-DAVIDSON FINANCIAL SERVICES, INC.; HARLEY-DAVIDSON CREDIT CORP.;
AND THE TRUST DEPOSITORS
HARLEY-DAVIDSON FINANCIAL SERVICES, INC.
Harley-Davidson Financial Services, Inc. (formerly known as
Eaglemark Financial Services, Inc.) was formed in June 1992 with a capital
infusion of $10,000,000 from Harley-Davidson and an additional $15,000,000
capital contribution from a major institutional investor in January 1993. In
November 1995, Harley-Davidson purchased the equity owned by the major
institutional investor and as a result Harley-Davidson Financial is a 97.8%
owned subsidiary of Harley-Davidson. The business of Harley-Davidson
Financial, through its 100% ownership of
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Harley-Davidson Credit Corp., has been to provide wholesale and retail
financing, credit card and insurance services to Dealers and customers of
Harley-Davidson.
HARLEY-DAVIDSON CREDIT CORP.
Harley-Davidson Credit Corp. was incorporated as a Nevada
corporation in 1992 and is a wholly-owned subsidiary of Harley-Davidson
Financial. Harley-Davidson Credit Corp. began operations in January 1993 when
it purchased the $85 million wholesale financing portfolio of certain
Harley-Davidson Dealers from ITT Commercial Finance; subsequently,
Harley-Davidson Credit Corp. entered the retail consumer finance business.
Harley-Davidson Credit Corp. provides financing to Harley-Davidson customers
for new and used motorcycles, as well as certain other recreational products
such as single-engine aircraft and marine products. Harley-Davidson
Motorcycles are financed through the Canadian Harley-Davidson dealers under
the trade name "Deeley Credit." Harley-Davidson Credit Corp. also finances
extended service contracts on Motorcycles. Harley-Davidson Credit Corp.'s
financing, credit card and insurance programs are designed to work together
as a package that appeals to the needs of Harley-Davidson's customers. The
intent of such a package is to increase Dealer and customer loyalty to
Harley-Davidson Credit Corp. while improving revenue and profits over time.
Harley-Davidson Credit Corp.'s principal executive offices are located at
4150 Technology Way, Carson City, Nevada 89706 (telephone 702/886-3200).
THE TRUST DEPOSITORS
With respect to each series of Securities, the Trust Depositor will
be a special-purpose finance subsidiary of the Company. All of the common
stock of the Trust Depositor will be owned by Harley-Davidson Credit Corp..
All of the officers and directors of each Trust Depositor will be employed by
Harley-Davidson Credit Corp. or Harley-Davidson Financial, except that at
least two directors of each Trust Depositor shall at all times be independent
of Harley-Davidson Credit Corp., Harley-Davidson Financial and
Harley-Davidson.
DESCRIPTION OF THE NOTES
GENERAL
Each Owner Trust may issue one or more classes of Notes pursuant to
an Indenture, a form of which has been filed as an exhibit to the
Registration Statement of which this Prospectus forms a part.
Each class of Notes will initially be represented by one or more Notes,
in each case registered in the name of the nominee of DTC (together with any
successor depository selected by the Trust, the "DEPOSITORY"), except as set
forth below. The Notes will be available for purchase in denominations of $1,000
and integral multiples thereof in book-entry form only. The Company has been
informed by DTC that DTC's nominee will be Cede, unless another nominee is
specified in the related Prospectus Supplement. Accordingly, such nominee is
expected to be the holder of record of the Notes of each class. Unless and until
Definitive Notes (as defined herein) are issued under the limited circumstances
described herein or in the related Prospectus Supplement, no Noteholder will be
entitled to receive a physical certificate representing a Note. All references
herein and in the related Prospectus Supplement to actions by Noteholders refer
to actions taken by DTC upon instructions from its participating organizations
(the "PARTICIPANTS"), and all references herein and in the related Prospectus
Supplement to distributions, notices, reports and statements to Noteholders
refer to distributions, notices, reports and statements to DTC or its nominee,
as the registered holder of the Notes, for distribution to Noteholders in
accordance with DTC's procedures with respect thereto. See "CERTAIN INFORMATION
REGARDING THE SECURITIES -- BOOK-ENTRY REGISTRATION" and "-- DEFINITIVE
SECURITIES".
PRINCIPAL AND INTEREST ON THE NOTES
The timing and priority of payment, seniority, allocations of
losses, Interest Rate and amount of or method of determining payments of
principal and interest on each class of Notes of a given series will be
described in the related Prospectus Supplement. The right of holders of any
class of Notes to receive payments of principal and interest may be senior or
subordinate to the rights of holders of any other class or classes of Notes
of such series, as described in the related Prospectus Supplement. Unless
otherwise provided in the related Prospectus Supplement, payments of interest
on the Notes of such series will be made prior to payments of principal
thereon. If so provided
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in the related Prospectus Supplement, a series may include one or more
classes of Strip Notes entitled to (i) principal payments with
disproportionate, nominal or no interest payments or (ii) interest payments
with disproportionate, nominal or no principal payments. Each class of Notes
may have a different Interest Rate, which may be a fixed, variable or
adjustable Interest Rate (and which may be zero for certain classes of Strip
Notes), or any combination of the foregoing. The related Prospectus
Supplement will specify the Interest Rate for each class of Notes of a given
series or the method for determining such Interest Rate. See also "CERTAIN
INFORMATION REGARDING THE SECURITIES -- FIXED RATE SECURITIES" and "--
FLOATING RATE SECURITIES". One or more classes of Notes of a series may be
redeemable in whole or in part under the circumstances specified in the
related Prospectus Supplement, including, if a Pre-Funding Account or
Collateral Reinvestment Account has been established with respect to a
related series, from amounts remaining in the applicable account at the end
of the Funding Period or Revolving Period, as the case may be, or as a result
of the Seller through the Trust Depositor exercising its option to repurchase
the related pool of Contracts.
To the extent specified in any Prospectus Supplement, one or more
classes of Notes of a given series may have fixed principal payment
schedules, as set forth in such Prospectus Supplement; Noteholders of such
Notes would be entitled to receive as payments of principal on any given
Distribution Date the applicable amounts set forth on such schedule with
respect to such Notes, in the manner and to the extent set forth in the
related Prospectus Supplement.
Payments to holders of Notes of all classes within a series in
respect of interest will have the same priority. Under certain circumstances,
the amount available for such payments could be less than the amount of
interest payable on the Notes on any of the dates specified for payments in
the related Prospectus Supplement (each, a "DISTRIBUTION DATE"), in which
case each class of Noteholders will receive its ratable share (based upon the
aggregate amount of interest due to the holders of such class of Notes) of
the aggregate amount available to be distributed in respect of interest on
the Notes of such series. See "DESCRIPTION OF THE SALE AND SERVICING
AGREEMENTS AND POOLING AND SERVICING AGREEMENTS -- DISTRIBUTIONS" and "--
CREDIT AND CASH FLOW ENHANCEMENT".
In the case of a series of Securities which includes two or more
classes of Notes, the sequential order and priority of payment in respect of
principal and interest, and any schedule or formula or other provisions
applicable to the determination thereof, of each such class will be set forth
in the related Prospectus Supplement. Payments in respect of principal of and
interest on any class of Notes will be made on a pro rata basis among all the
Noteholders of such class. One or more classes of Notes of a series may be
redeemable in whole or in part under the circumstances specified in the
related Prospectus Supplement, including, if a Pre-Funding Account or
Collateral Reinvestment Account has been established with respect to the
related series, from amounts remaining in the applicable account at the end
of the Funding Period or Revolving Period, as the case may be, or as a result
of the exercise by the Seller through the Trust Depositor or such other party
as may be specified in the related Prospectus Supplement of its option to
repurchase the related pool of Contracts. See "DESCRIPTION OF THE SALE AND
SERVICING AGREEMENTS AND POOLING AND SERVICING AGREEMENTS -- TERMINATION".
CERTAIN PROVISIONS OF THE INDENTURE
EVENTS OF DEFAULT; RIGHTS UPON EVENT OF DEFAULT. With respect to the
Notes of a given series, "EVENTS OF DEFAULT" under the related Indenture will
include the following: (i) a default for five days or more in the payment of
any interest on any such Note; (ii) a default in the payment of the
principal, or any installment of the principal, of any such Note when the
same becomes due and payable; (iii) a default in the observance or
performance of any covenant or agreement of the applicable Trust made in such
Indenture and the continuation of any such default for a period of 30 days
after notice thereof is given to such Trust by the applicable Indenture
Trustee or to such Trust and such Indenture Trustee by the holders of at
least 25% in principal amount of such Notes then outstanding; (iv) any
representation or warranty made by such Trust in such Indenture or in any
certificate delivered pursuant thereto or in connection therewith having been
incorrect in a material respect as of the time made, if such breach is not
cured within 30 days after notice thereof is given to such Trust by the
applicable Indenture Trustee or to such Trust and such Indenture Trustee by
the holders of at least 25% in principal amount of such Notes then
outstanding; or (v) certain events of bankruptcy, insolvency, receivership or
liquidation of the applicable Trust. However, the amount of principal
required to be paid to Noteholders of such series under the related Indenture
will generally be limited to amounts available to be deposited in the
applicable Note Distribution Account. Therefore, the failure to pay
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principal on a class of Notes generally will not result in the occurrence of
an Event of Default until the final scheduled Distribution Date for such
class of Notes.
If an Event of Default should occur and be continuing with respect
to the Notes of any series, the related Indenture Trustee or holders of not
less than 66 2/3% of the principal amount (or a lesser percentage as
specified in the related Prospectus Supplement, but in no case not less than
50%) of such Notes then outstanding may declare the principal of such Notes
to be immediately due and payable. Such declaration may, under certain
circumstances, be rescinded by the holders not less than 66 2/3% (or a lesser
percentage as specified in the related Prospectus Supplement, but in no case
not less than 50%) of the principal amount of such Notes then outstanding.
If the Notes of any series are declared due and payable following an
Event of Default with respect thereto, the related Indenture Trustee may
institute proceedings to collect amounts due or foreclose on Trust Property,
exercise remedies as a secured party, sell the related Contracts or elect to
have the applicable Trust maintain possession of such Contracts and continue
to apply collections on such Contracts as if there had been no declaration of
acceleration. However, such Indenture Trustee is prohibited from selling such
Contracts following an Event of Default, other than a default in the payment
of any principal of, or a default for five days or more in the payment of any
interest on, any Note of such series, unless (i) the holders of all such
outstanding Notes consent to such sale, (ii) the proceeds of such sale are
sufficient to pay in full the principal of and the accrued interest on such
outstanding Notes at the date of such sale or (iii) such Indenture Trustee
determines that the proceeds of the Contracts would not be sufficient on an
ongoing basis to make all payments on such Notes as such payments would have
become due if such obligations had not been declared due and payable, and
such Indenture Trustee obtains the consent of the holders of not less than
66 2/3% (or a lesser percentage as specified in the related Prospectus
Supplement, but in no case not less than 50%) of the aggregate outstanding
principal amount of such Notes.
Subject to the provisions of the applicable Indenture relating to
the duties of the related Indenture Trustee, if an Event of Default occurs
and is continuing with respect to a series of Notes, such Indenture Trustee
will be under no obligation to exercise any of the rights or powers under
such Indenture at the request or direction of any of the holders of such
Notes if such Indenture Trustee reasonably believes it will not be adequately
indemnified against the costs, expenses and liabilities which might be
incurred by it in complying with such request. Subject to the provisions for
indemnification and certain limitations contained in the related Indenture,
the holders of a majority in principal amount of the outstanding Notes of a
given series will have the right to direct the time, method and place of
conducting any proceeding or any remedy available to the applicable Indenture
Trustee, and the holders of a majority in principal amount of such Notes then
outstanding may, in certain cases, waive any default with respect thereto,
except a default in the payment of principal or interest or a default in
respect of a covenant or provision of such Indenture that cannot be modified
without the waiver or consent of all the holders of each such outstanding
Note.
No holder of a Not`Lof any series will have the rielt to institute
any proceeding p th respect to the related Indei,ure, unless (i) such holder
pra&iously has given to the applicc le Indenture Trustee written nh ice of a
continuing Event of D'a ult, (ii) the holders of not less than 25% in principal
amount of the outstanding Notes of such series have made written request to
such Indenture Trustee to institute such proceeding in its own name as
Indenture Trustee, (iii) such holder or holders have offered such Indenture
Trustee reasonable indemnity, (iv) such Indenture Trustee has for 60 days
failed to institute such proceeding and (v) no direction inconsistent with
such written request has been given to such Indenture Trustee during such
60-day period by the holders of a majority in principal amount of such
outstanding Notes.
In addition each Indenture Trustee and the related Noteholders, by
accepting the related Notes, will covenant that they will not at any time
institute against the Trust Depositor or the applicable Trust any bankruptcy,
reorganization or other proceeding under any federal or state bankruptcy or
similar law.
With respect to any Trust, neither the related Indenture Trustee nor
the related Trustee in its individual capacity, nor any holder of a
Certificate representing an ownership interest in such Trust nor any of their
respective owners, beneficiaries, agents, officers, directors, employees,
affiliates, successors or assigns will, in the absence of
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an express agreement to the contrary, be personally liable for the payment of
the principal of or interest on the related Notes or for the agreements of
such Trust contained in the applicable Indenture.
CERTAIN COVENANTS. Each Indenture will provide that the related
Trust may not consolidate with or merge into any other entity, unless, among
such other requirements as may be specified in the related Prospectus
Supplement, (i) the entity formed by or surviving such consolidation or
merger is organized under the laws of the United States, any state or the
District of Columbia, (ii) such entity expressly assumes such Trust's
obligation to make due and punctual payments upon the Notes of the related
series and to perform or observe every agreement and covenant of such Trust
under the Indenture, (iii) no Event of Default shall have occurred and be
continuing immediately after such merger or consolidation, (iv) such Trust
has been advised that the rating of the Notes (and, if so provided in such
Indenture, the Certificates) of such series then in effect would not be
reduced or withdrawn by the Rating Agencies as a result of such merger or
consolidation, (v) such Trust has received an opinion of counsel to the
effect that such consolidation or merger would have no material adverse tax
consequence to the Trust or to any related Noteholder or Certificateholder
and (vi) any action as is necessary to maintain the lien and security
interest of the Indenture shall have been taken.
No Owner Trust will, among other things, (i) except as expressly
permitted by the applicable Indenture, the applicable Sale and Servicing
Agreement or Pooling and Servicing Agreement or certain related documents
with respect to such Trust (collectively, the "RELATED DOCUMENTS"), sell,
transfer, exchange or otherwise dispose of any of the assets of such Trust,
(ii) claim any credit on or make any deduction from the principal and
interest payable in respect of the Notes of the related series (other than
amounts properly withheld under the Code or applicable state law) or assert
any claim against any present or former holder of such Notes because of the
payment of taxes levied or assessed upon such Trust, (iii) permit the
validity or effectiveness of such Indenture to be impaired or permit any
person to be released from any covenants or obligations with respect to such
Notes under such Indenture except as may be expressly permitted thereby or
(iv) permit any lien, charge, excise, claim, security interest, mortgage or
other encumbrance to be created on or extend to or otherwise arise upon or
burden the assets of such Trust or any part thereof, or any interest therein
or the proceeds thereof (other than tax liens, mechanics' liens and other
liens that arise by operation of law, in each case on a Motorcycle and
arising solely as a result of an action or omission of the related Obligor).
No Trust may engage in any activity other than as described herein
or in the Prospectus Supplement. No Trust will incur, assume or guarantee any
indebtedness other than indebtedness incurred pursuant to the related Notes
and the related Indenture, pursuant to any Advances made to it by the
Servicer or otherwise in accordance with the Related Documents.
MODIFICATION OF INDENTURE. Each Owner Trust and the related
Indenture Trustee may, with the consent of the holders of more than 50% (or
such higher percentage as specified in the related Prospectus Supplement) of
the outstanding Notes of the related series, execute a supplemental indenture
to add provisions to, change in any manner or eliminate any provisions of,
the related Indenture, or modify (except as provided below) in any manner the
rights of the related Noteholders.
However, with respect to a series of Notes, without the consent of
the holder of each such outstanding Note affected thereby, no supplemental
indenture will, among other things: (i) change the due date of any
installment of principal of or interest on any such Note or reduce the
principal amount thereof, the interest rate specified thereon or the
redemption price with respect thereto or change any place of payment where or
the coin or currency in which any such Note or any interest thereon is
payable; (ii) impair the right to institute suit for the enforcement of
certain provisions of the related Indenture regarding payment; (iii) reduce
the percentage of the aggregate amount of the outstanding Notes of such
series, the consent of the holders of which is required for any such
supplemental indenture or the consent of the holders of which is required for
any waiver of compliance with certain provisions of such Indenture or of
certain defaults thereunder and their consequences as provided for in such
Indenture; (iv) modify or alter the provisions of such Indenture regarding
the voting of Notes held by the applicable Trust, any other obligor on such
Notes, the Trust Depositor or an affiliate of any of them; (v) reduce the
percentage of the aggregate outstanding amount of such Notes, the consent of
the holders of which is required to direct the related Indenture Trustee to
sell or liquidate the Contracts if the proceeds of such sale would be
insufficient to pay the principal
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amount and accrued but unpaid interest on the outstanding Notes of such
series; (vi) amend the provisions of the Indenture which specify the
percentage of the aggregate principal amount of such Notes required to amend
certain sections of such Indenture or certain other related agreements; or
(vii) permit the creation of any lien ranking prior to or on a parity with
the lien of such Indenture with respect to any of the collateral for such
Notes or, except as otherwise permitted or contemplated in such Indenture,
terminate the lien of such Indenture on any such collateral or deprive the
holder of any such Note of the security afforded by the lien of such
Indenture.
Unless otherwise provided in the applicable Prospectus Supplement,
an Owner Trust and the applicable Indenture Trustee may also enter into
supplemental indentures, without obtaining the consent of the Noteholders of
the related series, for the purpose of, among other things, adding any
provisions to or changing in any manner or eliminating any of the provisions
of the related Indenture or of modifying in any manner the rights of such
Noteholders; provided that such action will not materially and adversely
affect the interest of any such Noteholder.
ANNUAL COMPLIANCE STATEMENT. Each Owner Trust that issues Notes will
be required to file annually with the related Indenture Trustee a written
statement as to the fulfillment of its obligations under the Indenture.
INDENTURE TRUSTEE'S ANNUAL REPORT. The Indenture Trustee for each
Owner Trust that issues Notes will be required to mail each year to all
related Noteholders a brief report relating to its eligibility and
qualification to continue as Indenture Trustee under the related Indenture,
any amounts advanced by it under the Indenture, the amount, interest rate and
maturity date of certain indebtedness owing by the related Owner Trust to the
applicable Indenture Trustee in its individual capacity, the property and
funds physically held by such Indenture Trustee as such and any action taken
by it that materially affects the related Notes and that has not been
previously reported.
SATISFACTION AND DISCHARGE OF INDENTURE. An Indenture will be
discharged with respect to the collateral securing the related Notes upon (i)
the delivery to the related Indenture Trustee for cancellation of all such
Notes or, with certain limitations, upon deposit with such Indenture Trustee
of funds sufficient for the payment in full of all such Notes and (ii) the
payment of all amounts and obligations, if any, which the Owner Trust owes to
the Noteholders or Indenture Trustee on behalf of the Noteholders.
THE INDENTURE TRUSTEE
The Indenture Trustee for a series of Notes will be specified in the
related Prospectus Supplement. The Indenture Trustee for any series may
resign at any time, in which event the related Administrator will be
obligated to appoint a successor Trustee for such series. The Administrator
may also remove any such Indenture Trustee if such Indenture Trustee ceases
to be eligible to continue as such under the related Indenture or if such
Indenture Trustee becomes insolvent. In such circumstances, such Owner Trust
will be obligated to appoint a successor Trustee for the applicable series of
Notes. Any resignation or removal of the Indenture Trustee and appointment of
a successor Trustee for any series of Notes does not become effective until
acceptance of the appointment by the successor Trustee for such series.
DESCRIPTION OF THE CERTIFICATES
GENERAL
With respect to each Trust, one or more classes of Certificates of
the related series will be issued pursuant to the terms of a Trust Agreement
or a Pooling and Servicing Agreement, a form of each of which has been filed
as an exhibit to the Registration Statement of which this Prospectus forms a
part.
Except for the Certificates, if any, of a given series purchased by
the Trust Depositor, each class of Certificates will initially be represented
by one or more Certificates registered in the name of the Depository, except
as set forth below. Except for the Certificates, if any, of a given series
purchased by the Trust Depositor, the Certificates will be available for
purchase in minimum denominations of $1,000 and integral multiples thereof in
book-entry form only. The Company has been informed by DTC that DTC's nominee
will be Cede, unless another nominee is specified in the related Prospectus
Supplement. Accordingly, such nominee is expected to be the holder of record
of the Certificates of any series that are not purchased by the Trust
Depositor. Unless and until Definitive Certificates (as defined herein) are
issued under the limited circumstances described herein or in the related
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Prospectus Supplement, no Certificateholder (other than the Trust Depositor)
will be entitled to receive a physical certificate representing a
Certificate. All references herein and in the related Prospectus Supplement
to actions by Certificateholders refer to actions taken by DTC upon
instructions from the Participants, and all references herein and in the
related Prospectus Supplement to distributions, notices, reports and
statements to Certificateholders refer to distributions, notices, reports and
statements to DTC or its nominee, as the case may be, as the registered
holder of the Certificates, for distribution to Certificateholders in
accordance with DTC's procedures with respect thereto. See "CERTAIN
INFORMATION REGARDING THE SECURITIES -- BOOK-ENTRY REGISTRATION" and " --
DEFINITIVE SECURITIES". Any Certificates of a given series owned by the Trust
Depositor or its affiliates will be entitled to equal and proportionate
benefits under the applicable Trust Agreement or Pooling and Servicing
Agreement, except that such Certificates will be deemed not to be outstanding
for the purpose of determining whether the requisite percentage of
Certificateholders has given any request, demand, authorization, direction,
notice or consent or taken any other action under the Related Documents
(other than the commencement by the related Trust of a voluntary proceeding
in bankruptcy as described under "DESCRIPTION OF THE SALE AND SERVICING
AGREEMENTS AND POOLING AND SERVICING AGREEMENTS -- INSOLVENCY EVENT").
DISTRIBUTIONS OF PRINCIPAL AND INTEREST
The timing and priority of distributions, seniority, allocations of
losses, Pass-Through Rate and amount of or method of determining
distributions with respect to principal of and interest on each class of
Certificates of a given series will be described in the related Prospectus
Supplement. Distributions of interest on such Certificates will be made on
the Distribution Date specified in the related Prospectus Supplement and will
be made prior to distributions with respect to principal of such
Certificates. To the extent provided in the related Prospectus Supplement, a
series may include one or more classes of Strip Certificates entitled to (i)
distributions in respect of principal with disproportionate, nominal or no
interest distributions or (ii) interest distributions with disproportionate,
nominal or no distributions in respect of principal. Each class of
Certificates may have a different Pass-Through Rate, which may be a fixed,
variable or adjustable Pass-Through Rate (and which may be zero for certain
classes of Strip Certificates) or any combination of the foregoing. The
related Prospectus Supplement will specify the Pass-Through Rate for each
class of Certificates of a given series or the method for determining such
Pass-Through Rate. See also "CERTAIN INFORMATION REGARDING THE SECURITIES --
FIXED RATE SECURITIES" and "-- FLOATING RATE SECURITIES". Unless otherwise
provided in the related Prospectus Supplement, distributions in respect of
the Certificates of a given series that includes Notes may be subordinated to
payments in respect of the Notes of such series as more fully described in
such Prospectus Supplement. Unless otherwise provided in the related
Prospectus Supplement, distributions in respect of interest on and principal
of any class of Certificates will be made on a pro rata basis among all the
Certificateholders of such class.
In the case of a series of Certificates which includes two or more
classes of Certificates, the timing, sequential order, priority of payment or
amount of distributions in respect of interest and principal, and any
schedule or formula or other provisions applicable to the determination
thereof, of each such class shall be as set forth in the related Prospectus
Supplement. One or more classes of Certificates of a series may be redeemable
in whole or in part under the circumstances specified in the related
Prospectus Supplement, including, if a Pre-Funding Account or Collateral
Reinvestment Account has been established with respect to the related series,
from amounts remaining in the applicable account at the end of the Funding
Period or Revolving Period, as the case may be, or as a result of the
exercise by the Seller through the Trust Depositor or such other party as may
be specified in such Prospectus Supplement of its option to repurchase the
related pool of Contracts. See "DESCRIPTION OF THE SALE AND SERVICING
AGREEMENTS AND POOLING AND SERVICING AGREEMENTS -- TERMINATION".
CERTAIN INFORMATION REGARDING THE SECURITIES
FIXED RATE SECURITIES
Each class of Securities (other than certain classes of Strip Notes
or Strip Certificates) may bear interest at a fixed rate per annum ("FIXED
RATE SECURITIES") or at a variable or adjustable rate per annum ("FLOATING
RATE SECURITIES"), as more fully described below and in the applicable
Prospectus Supplement. Each class of Fixed Rate Securities will bear interest
at the applicable per annum Interest Rate or Pass-Through Rate, as the case
may be, specified in the applicable Prospectus Supplement. Unless otherwise
set forth in the applicable Prospectus Supplement, interest on each class of
Fixed Rate Securities will be computed on the basis of a 360-day year of
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twelve 30-day months. See "DESCRIPTION OF THE NOTES -- PRINCIPAL AND INTEREST
ON THE NOTES" and "DESCRIPTION OF THE CERTIFICATES -- DISTRIBUTIONS OF
PRINCIPAL AND INTEREST".
FLOATING RATE SECURITIES
Each class of Floating Rate Securities will bear interest for each
applicable "INTEREST RESET PERIOD" (as such term is defined in the related
Prospectus Supplement with respect to a class of Floating Rate Securities) at a
rate per annum determined by reference to an interest rate basis (the "BASE
RATE"), plus or minus the Spread, if any, or multiplied by the Spread
Multiplier, if any, in each case as specified in such Prospectus Supplement. The
"SPREAD" is the number of basis points (one basis point equals one one-hundredth
of a percentage point) that may be specified in the applicable Prospectus
Supplement as being applicable to such class, and the "SPREAD MULTIPLIER" is the
percentage that may be specified in the applicable Prospectus Supplement as
being applicable to such class.
The applicable Prospectus Supplement will designate one of the
following Base Rates as applicable to a given Floating Rate Security: (i) LIBOR
(a "LIBOR SECURITY"), (ii) the Commercial Paper Rate (a "COMMERCIAL PAPER RATE
SECURITY"), (iii) the Treasury Rate (a "TREASURY RATE SECURITY"), (iv) the
Federal Funds Rate (a "FEDERAL FUNDS RATE SECURITY"), (v) the CD Rate (a "CD
RATE SECURITY") or (vi) such other Base Rate as is set forth in such Prospectus
Supplement. The "INDEX MATURITY" for any class of Floating Rate Securities is
the period of maturity of the instrument or obligation from which the Base Rate
is calculated. "H.15(519)" means the publication entitled "STATISTICAL RELEASE
H.15(519), SELECTED INTEREST RATES", or any successor publication, published by
the Board of Governors of the Federal Reserve System. "COMPOSITE QUOTATIONS"
means the daily statistical release entitled "COMPOSITE 3:30 P.M. QUOTATIONS FOR
U.S. GOVERNMENT SECURITIES" published by the Federal Reserve Bank of New York.
"INTEREST RESET DATE" will be the first day of the applicable Interest Reset
Period, or such other day as may be specified in the related Prospectus
Supplement with respect to a class of Floating Rate Securities.
As specified in the applicable Prospectus Supplement, Floating Rate
Securities of a given class may also have either or both of the following (in
each case expressed as a rate per annum): (i) a maximum limitation, or ceiling,
on the rate at which interest may accrue during any interest period and (ii) a
minimum limitation, or floor, on the rate at which interest may accrue during
any interest period. In addition to any maximum interest rate that may be
applicable to any class of Floating Rate Securities, the interest rate
applicable to any class of Floating Rate Securities will in no event be higher
than the maximum rate permitted by applicable law, as the same may be modified
by United States law of general application.
Each Trust with respect to which a class of Floating Rate Securities
will be issued will appoint, and enter into agreements with, a calculation agent
(each, a "CALCULATION AGENT") to calculate interest rates on each such class of
Floating Rate Securities issued with respect thereto. The applicable Prospectus
Supplement will set forth the identity of the Calculation Agent for each such
class of Floating Rate Securities of a given series, which may be either the
related Trustee or Indenture Trustee with respect to such series. All
determinations of interest by the Calculation Agent shall, in the absence of
manifest error, be conclusive for all purposes and binding on the holders of
Floating Rate Securities of a given class. All percentages resulting from any
calculation of the rate of interest on a Floating Rate Security will be rounded,
if necessary, to the nearest 1/100,000 of 1% (.0000001), with five
one-millionths of a percentage point rounded upward.
CD RATE SECURITIES. Each CD Rate Security will bear interest for each
Interest Reset Period at the interest rate calculated with reference to the CD
Rate (as defined herein) and the Spread or Spread Multiplier, if any, specified
in such Security and in the applicable Prospectus Supplement.
The "CD RATE" for each Interest Reset Period shall be the rate as of
the second business day prior to the Interest Reset Date for such Interest Reset
Period (a "CD RATE DETERMINATION DATE") for negotiable certificates of deposit
having the Index Maturity designated in the applicable Prospectus Supplement as
published in H.15(519) under the heading "CDS (SECONDARY MARKET)". In the event
that such rate is not published prior to 3:00 p.m., New York City time, on the
Calculation Date (as defined below) pertaining to such CD Rate Determination
Date, then the "CD RATE" for such Interest Reset Period will be the rate on such
CD Rate Determination Date for negotiable certificates of deposit of the Index
Maturity designated in the applicable Prospectus Supplement as published in
Composite Quotations under the heading "CERTIFICATES OF DEPOSIT". If by 3:00
p.m., New York City time, on such
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Calculation Date such rate is not yet published in either H.15(519) or
Composite Quotations, then the "CD RATE" for such Interest Reset Period will
be calculated by the Calculation Agent for such CD Rate Security and will be
the arithmetic mean of the secondary market offered rates as of 10:00 a.m.,
New York City time, on such CD Rate Determination Date, of three leading
nonbank dealers in negotiable U.S. dollar certificates of deposit in The City
of New York selected by the Calculation Agent for such CD Rate Security for
negotiable certificates of deposit of major United States money center banks
of the highest credit standing (in the market for negotiable certificates of
deposit) with a remaining maturity closest to the Index Maturity designated
in the related Prospectus Supplement in a denomination of $5,000,000;
PROVIDED, HOWEVER, that if the dealers selected as aforesaid by such
Calculation Agent are not quoting offered rates as mentioned in this
sentence, the "CD RATE" for such Interest Reset Period will be the same as
the CD Rate for the immediately preceding Interest Reset Period.
The "CALCULATION DATE" pertaining to any CD Rate Determination Date
shall be the first to occur of (a) the tenth calendar day after such CD Rate
Determination Date or, if such day is not a business day, the next succeeding
business day or (b) the second business day preceding the date any payment is
required to be made for any period following the applicable Interest Reset Date.
COMMERCIAL PAPER RATE SECURITIES. Each Commercial Paper Rate Security
will bear interest for each Interest Reset Period at the interest rate
calculated with reference to the Commercial Paper Rate (as defined herein) and
the Spread or Spread Multiplier, if any, specified in such Security and in the
applicable Prospectus Supplement.
The "COMMERCIAL PAPER RATE" for each Interest Reset Period will be
determined by the Calculation Agent for such Commercial Paper Rate Security as
of the second business day prior to the Interest Reset Date for such Interest
Reset Period (a "COMMERCIAL PAPER RATE DETERMINATION DATE") and shall be the
Money Market Yield (as defined below) on such Commercial Paper Rate
Determination Date of the rate for commercial paper having the Index Maturity
specified in the applicable Prospectus Supplement, as such rate shall be
published in H.15(519) under the heading "COMMERCIAL PAPER". In the event that
such rate is not published prior to 3:00 p.m., New York City time, on the
Calculation Date (as defined below) pertaining to such Commercial Paper Rate
Determination Date, then the "COMMERCIAL PAPER RATE" for such Interest Reset
Period shall be the Money Market Yield on such Commercial Paper Rate
Determination Date of the rate for commercial paper of the specified Index
Maturity as published in Composite Quotations under the heading "COMMERCIAL
PAPER". If by 3:00 p.m., New York City time, on such Calculation Date such rate
is not yet published in either H.15(519) or Composite Quotations, then the
"COMMERCIAL PAPER RATE" for such Interest Reset Period shall be the Money Market
Yield of the arithmetic mean of the offered rates, as of 11:00 a.m., New York
City time, on such Commercial Paper Rate Determination Date of three leading
dealers of commercial paper in The City of New York selected by the Calculation
Agent for such Commercial Paper Rate Security for commercial paper of the
specified Index Maturity placed for an industrial issuer whose bonds are rated
"AA" or the equivalent by a nationally recognized rating agency; PROVIDED,
HOWEVER, that if the dealers selected as aforesaid by such Calculation Agent are
not quoting offered rates as mentioned in this sentence, the "COMMERCIAL PAPER
RATE" for such Interest Reset Period will be the same as the Commercial Paper
Rate for the immediately preceding Interest Reset Period.
"MONEY MARKET YIELD" shall be a yield calculated in accordance with the
following formula:
D x 360
Money Market Yield = ------------------------------------- X 100
360-(D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the specified Index Maturity.
The "CALCULATION DATE" pertaining to any Commercial Paper Rate
Determination Date shall be the first to occur of (a) the tenth calendar day
after such Commercial Paper Rate Determination Date or, if such day is not a
business day, the next succeeding business day or (b) the second business day
preceding the date any payment is required to be made for any period following
the applicable Interest Reset Date.
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FEDERAL FUNDS RATE SECURITIES. Each Federal Funds Rate Security will
bear interest for each Interest Reset Period at the interest rate calculated
with reference to the Federal Funds Rate (as defined herein) and the Spread or
Spread Multiplier, if any, specified in such Security and in the applicable
Prospectus Supplement.
The "FEDERAL FUNDS RATE" for each Interest Reset Period shall be the
effective rate on the Interest Reset Date for such Interest Reset Period (a
"FEDERAL FUNDS RATE DETERMINATION DATE") for Federal Funds as published in
H.15(519) under the heading "FEDERAL FUNDS (EFFECTIVE)". In the event that such
rate is not published prior to 3:00 p.m., New York City time, on the Calculation
Date (as defined below) pertaining to such Federal Funds Rate Determination
Date, the "FEDERAL FUNDS RATE" for such Interest Reset Period shall be the rate
on such Federal Funds Rate Determination Date as published in Composite
Quotations under the heading "FEDERAL FUNDS/EFFECTIVE RATE". If by 3:00 p.m.,
New York City time, on such Calculation Date such rate is not yet published in
either H.15(519) or Composite Quotations, then the "FEDERAL FUNDS RATE" for such
Interest Reset Period shall be the rate on such Federal Funds Rate Determination
Date made publicly available by the Federal Reserve Bank of New York which is
equivalent to the rate which appears in H.15(519) under the heading "FEDERAL
FUNDS (EFFECTIVE)"; PROVIDED, HOWEVER, that if such rate is not made publicly
available by the Federal Reserve Bank of New York by 3:00 p.m., New York City
time, on such Calculation Date, the "FEDERAL FUNDS RATE" for such Interest Reset
Period will be the same as the Federal Funds Rate in effect for the immediately
preceding Interest Reset Period. In the case of a Federal Funds Rate Security
that resets daily, the interest rate on such Security for the period from and
including a Monday to but excluding the succeeding Monday will be reset by the
Calculation Agent for such Security on such second Monday (or, if not a business
day, on the next succeeding business day) to a rate equal to the average of the
Federal Funds Rates in effect with respect to each such day in such week.
The "CALCULATION DATE" pertaining to any Federal Funds Rate
Determination Date shall be the next succeeding business day.
LIBOR SECURITIES. Each LIBOR Security will bear interest for each
Interest Reset Period at the interest rate calculated with reference to LIBOR
(as defined herein) and the Spread or Spread Multiplier, if any, specified in
such Security and in the applicable Prospectus Supplement.
With respect to LIBOR indexed to the offered rates for U.S. dollar
deposits, "LIBOR" for each Interest Reset Period will be established by the
Calculation Agent for any LIBOR Security and will equal the offered rate for
United States dollar deposits for one month that appears on Telerate Page 3750
as of 11:00 a.m., London time, on the second LIBOR Business Day (as defined
herein) prior to the Interest Reset Date for such Interest Reset Period (the
"LIBOR DETERMINATION DATE"). "TELERATE PAGE 3750" means the display page so
designated on the Dow Jones Telerate Service (or such other page as may replace
that page on that service or such other service as may be nominated by the
information vendor for the purpose of displaying London interbank offered rates
of major banks). If such rate appears on Telerate Page 3750 on a LIBOR
Determination Date, LIBOR for the related Interest Reset Period will be such
rate. If on any LIBOR Determination Date such offered rate does not appear on
Telerate Page 3750, the Calculation Agent will request each of the reference
banks (which will be major banks that are engaged in transactions in the London
interbank market selected by the Calculation Agent) to provide the Calculation
Agent with its offered quotation for United States dollar deposits for one month
to prime banks in the London interbank market as of 11:00 a.m., London time, on
such date. If at least two reference banks provide the Calculation Agent with
such offered quotations, LIBOR with respect to such date will be the arithmetic
mean (rounded upwards, if necessary, to the nearest one-sixteenth of one
percent) of all such quotations. If on such date fewer than two of the reference
banks provide the Calculation Agent with such offered quotations, LIBOR with
respect to such date will be the arithmetic mean (rounded upwards, if necessary,
to the nearest one-sixteenth of one percent) of the offered per annum rates that
one or more leading banks in The City of New York selected by the Calculation
Agent are quoting as of 11:00 a.m., New York City time, on such date to leading
European banks for United States dollar deposits for one month; PROVIDED,
HOWEVER, that if such banks are not quoting as described above, LIBOR with
respect to such date will be LIBOR applicable to the immediately preceding
Interest Reset Period. "LIBOR BUSINESS DAY" as used herein means a day that is
both a business day and a day on which banking institutions in the City of
London, England are not required or authorized by law to be closed.
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TREASURY RATE SECURITIES. Each Treasury Rate Security will bear
interest for each Interest Reset Period at the interest rate calculated with
reference to the Treasury Rate (as defined herein) and the Spread or Spread
Multiplier, if any, specified in such Security and in the applicable Prospectus
Supplement.
The "TREASURY RATE" for each Interest Period will be the rate for the
auction held on the Treasury Rate Determination Date (as defined below) for such
Interest Reset Period of direct obligations of the United States ("TREASURY
BILLS") having the Index Maturity specified in the applicable Prospectus
Supplement, as such rate shall be published in H.15(519) under the heading "U.S.
GOVERNMENT SECURITIES -- TREASURY BILLS -- AUCTION AVERAGE (INVESTMENT)" or, in
the event that such rate is not published prior to 3:00 p.m., New York City
time, on the Calculation Date (as defined below) pertaining to such Treasury
Rate Determination Date (as defined herein), the auction average rate (expressed
as a bond equivalent on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) on such Treasury Rate Determination Date as
otherwise announced by the United States Department of the Treasury. In the
event that the results of the auction of Treasury bills having the specified
Index Maturity are not published or reported as provided above by 3:00 p.m., New
York City time, on such Calculation Date, or if no such auction is held on such
Treasury Rate Determination Date, then the "TREASURY RATE" for such Interest
Reset Period shall be calculated by the Calculation Agent for such Treasury Rate
Security and shall be the yield to maturity (expressed as a bond equivalent on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) of the arithmetic mean of the secondary market bid rates, as of
approximately 3:30 p.m., New York City time, on such Treasury Rate Determination
Date, of three leading primary United States government securities dealers
selected by such Calculation Agent for the issue of Treasury bills with a
remaining maturity closest to the specified Index Maturity; PROVIDED, HOWEVER,
that if the dealers selected as aforesaid by such Calculation Agent are not
quoting bid rates as mentioned in this sentence, then the "TREASURY RATE" for
such Interest Reset Period will be the same as the Treasury Rate for the
immediately preceding Interest Reset Period.
The "TREASURY RATE DETERMINATION DATE" for each Interest Reset Period
will be the day of the week in which the Interest Reset Date for such Interest
Reset Period falls on which Treasury bills would normally be auctioned. Treasury
bills are normally sold at auction on Monday of each week, unless that day is a
legal holiday, in which case the auction is normally held on the following
Tuesday, except that such auction may be held on the preceding Friday. If, as
the result of a legal holiday, an auction is so held on the preceding Friday,
such Friday will be the Treasury Rate Determination Date pertaining to the
Interest Reset Period commencing in the next succeeding week. If an auction date
shall fall on any day that would otherwise be an Interest Reset Date for a
Treasury Rate Security, then such Interest Reset Date shall instead be the
business day immediately following such auction date.
The "CALCULATION DATE" pertaining to any Treasury Rate Determination
Date shall be the first to occur of (a) the tenth calendar day after such
Treasury Rate Determination Date or, if such a day is not a business day, the
next succeeding business day or (b) the second business day preceding the date
any payment is required to be made for any period following the applicable
Interest Reset Date.
BOOK-ENTRY REGISTRATION
DTC will act as securities depository for each class of Securities
offered hereby. Each class of Securities initially will be represented by one or
more certificates registered in the name of Cede, the nominee of DTC. As such,
it is anticipated that the only "NOTEHOLDER" and/or "CERTIFICATEHOLDER" with
respect to a series of Securities will be Cede, as nominee of DTC. Beneficial
owners of the Securities ("SECURITY OWNERS") will not be recognized by the
related Indenture Trustee as "NOTEHOLDERS", as such term is used in each
Indenture, or by the related Trustee as "CERTIFICATEHOLDERS", as such term is
used in each Trust Agreement and Pooling and Servicing Agreement, and Security
Owners will be permitted to exercise the rights of Noteholders or
Certificateholders only indirectly through DTC and its Participants.
DTC is a limited-purpose trust company organized under the laws of the
State of New York, a "BANKING ORGANIZATION" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "CLEARING CORPORATION"
within the meaning of the Uniform Commercial Code as in effect in the State of
New York, and a "CLEARING AGENCY" registered pursuant to the provisions of
Section 17A of the Exchange Act. DTC was created to hold securities for the
Participants and to facilitate the clearance and settlement of securities
transactions between Participants through electronic book-entries, thereby
eliminating the need for physical movement of
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certificates. Participants include securities brokers and dealers, banks,
trust companies and clearing corporations. Indirect access to the DTC system
also is available to banks, brokers, dealers and trust companies that clear
through or maintain a custodial relationship with a Participant, either
directly or indirectly ("INDIRECT PARTICIPANTS").
Security Owners that are not Participants or Indirect Participants but
desire to purchase, sell or otherwise transfer ownership of, or an interest in,
the Securities may do so only through Participants and Indirect Participants. In
addition, all Security Owners will receive all distributions of principal and
interest from the related Indenture Trustee or the related Trustee, as
applicable, through Participants. Under a book-entry format, Security Owners may
experience some delay in their receipt of payments, since such payments will be
forwarded by the Applicable Trustee to DTC's nominee. DTC will then forward such
payments to the Participants, which thereafter will forward them to Indirect
Participants or Security Owners.
Under the rules, regulations and procedures creating and affecting DTC
and its operations (the "RULES"), DTC is required to make book-entry transfers
among Participants on whose behalf it acts with respect to the Securities and to
receive and transmit distributions of principal of and interest on the
Securities. Participants and Indirect Participants with which Security Owners
have accounts with respect to the Securities similarly are required to make
book-entry transfers and to receive and transmit such payments on behalf of
their respective Security Owners. Accordingly, although Security Owners will not
possess physical certificates representing the Securities, the Rules provide a
mechanism by which Participants and Indirect Participants will receive payments
and transfer interests, directly or indirectly, on behalf of Security Owners.
Because DTC can act only on behalf of Participants, which in turn act
on behalf of Indirect Participants and certain banks, the ability of a Security
Owner to pledge Securities to persons or entities that do not participate in the
DTC system, or otherwise take actions with respect to such Securities, may be
limited due to the lack of a physical certificate representing such Securities.
DTC has advised the Company that it will take any action permitted to
be taken by a Security Owner under the Indenture, Trust Agreement or Pooling and
Servicing Agreement, as applicable, only at the direction of one or more
Participants to whose account with DTC the Securities are credited. DTC may take
conflicting actions with respect to other undivided interests to the extent that
such actions are taken on behalf of Participants whose holdings include such
undivided interests.
Except as required by law, none of the Trust Depositor, the Servicer,
the related Administrator or the Applicable Trustee will have any liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of Securities of any series held by DTC's nominee, or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
DEFINITIVE SECURITIES
The Notes, if any, and the Certificates of a given series will be
issued in fully registered, certificated form ("DEFINITIVE NOTES" and
"DEFINITIVE CERTIFICATES", respectively, and collectively referred to herein as
"DEFINITIVE SECURITIES") to Noteholders or Certificateholders or their
respective nominees, rather than to DTC or its nominee, only if (i) the related
Administrator of an Owner Trust or Trustee of a Grantor Trust, as applicable,
determines that DTC is no longer willing or able to discharge properly its
responsibilities as depository with respect to such Securities and such
Administrator or Trustee is unable to locate a qualified successor (and if it is
an Administrator that has made such determination, such Administrator so
notifies the Applicable Trustee in writing), (ii) the Administrator or Trustee,
as applicable, at its option, elects to terminate the book-entry system through
DTC or (iii) after the occurrence of an Event of Default or a Servicer Default
with respect to such Securities, Security Owners representing at least a
majority of the outstanding principal amount of the Notes or the Certificates,
as the case may be, of such series advise the Applicable Trustee through DTC in
writing that the continuation of a book-entry system through DTC (or a successor
thereto) with respect to such Notes or Certificates is no longer in the best
interest of the related Security Owners.
Upon the occurrence of any event described in the immediately preceding
paragraph, DTC or the Applicable Trustee will be required to notify all
applicable Security Owners of a given series through Participants of
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the availability of Definitive Securities. Upon surrender by DTC of the
definitive certificates representing the corresponding Securities and receipt
of instructions for re-registration, the Applicable Trustee will reissue such
Securities as Definitive Securities to such Security Owners.
Distributions of principal of, and interest on, such Definitive
Securities will thereafter be made by the Applicable Trustee in accordance with
the procedures set forth in the related Indenture or the related Trust Agreement
or Pooling and Servicing Agreement, as applicable, directly to holders of
Definitive Securities in whose names the Definitive Securities were registered
at the close of business on the applicable Record Date specified for such
Securities in the related Prospectus Supplement. Such distributions will be made
by check mailed to the address of such holder as it appears on the register
maintained by the Applicable Trustee. The final payment on any such Definitive
Security, however, will be made only upon presentation and surrender of such
Definitive Security at the office or agency specified in the notice of final
distribution to the applicable Securityholders.
Definitive Securities will be transferable and exchangeable at the
offices of the Applicable Trustee or of a registrar named in a notice delivered
to holders of Definitive Securities. No service charge will be imposed for any
registration of transfer or exchange, but the Applicable Trustee may require
payment of a sum sufficient to cover any tax or other governmental charge
imposed in connection therewith.
REPORTS TO SECURITYHOLDERS
With respect to each series of Securities that includes Notes, on or
prior to each Distribution Date, the Servicer will prepare and provide to the
related Indenture Trustee a statement to be delivered to the related Noteholders
on such Distribution Date, and on or prior to each Distribution Date, the
Servicer will prepare and provide to the related Trustee a statement to be
delivered to the related Certificateholders. With respect to each series of
Securities, each such statement to be delivered to Noteholders will include (to
the extent applicable) the following information (and any other information so
specified in the related Prospectus Supplement) as to the Notes of such series
with respect to such Distribution Date or the period since the previous
Distribution Date, as applicable, and each such statement to be delivered to
Certificateholders will include (to the extent applicable) the following
information (and any other information so specified in such Prospectus
Supplement) as to the Certificates of such series with respect to such
Distribution Date or the period since the previous Distribution Date, as
applicable:
(i) the amount of the distribution allocable to principal of
each class of such Notes and to the Certificate Balance of each class
of such Certificates;
(ii) the amount of the distribution allocable to interest on
or with respect to each class of Securities of such series;
(iii) the Pool Balance as of the close of business on the last
day of the preceding Due Period;
(iv) the aggregate outstanding principal balance and the Note
Pool Factor for each class of such Notes, and the Certificate Balance
and the Certificate Pool Factor for each class of such Certificates,
each as of the related record date;
(v) the amount of the Servicing Fee paid to the Servicer with
respect to the related Due Period or Due Periods, as the case may be;
(vi) the Interest Rate or Pass-Through Rate for the next
period for any class of Notes or Certificates of such series with
variable or adjustable rates;
(vii) the amount of the aggregate realized losses, if any, for
the related Due Period;
(viii) the Noteholders' Interest Carryover Shortfall, the
Noteholders' Principal Carryover Shortfall, the Certificateholders'
Interest Carryover Shortfall and the Certificateholders' Principal
Carryover Shortfall (each such term, if applicable, as defined in the
related Prospectus Supplement), if any,
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in each case as applicable to each class of Securities, and the change
in such amounts from the preceding statement;
(ix) the aggregate Purchase Amounts for Contracts, if any,
that were repurchased in the related Due Period;
(x) the balance of the Reserve Fund (if any) on such date,
after giving effect to changes therein on such date;
(xi) or each such date during the Funding Period (if any), the
remaining Pre-Funded Amount;
(xii) or the first such date that is on or immediately
following the end of the Funding Period (if any), the amount of any
remaining Pre-Funded Amount that has not been used to fund the purchase
of Subsequent Contracts and is being passed through as payments of
principal on the Securities of such series;
(xiii) or each such date during the Revolving Period (if any),
the remaining amount in the Collateral Reinvestment Account; and
(xiv) or the first such date that is on or immediately
following the end of the Revolving Period (if any), the amount
remaining in the Collateral Reinvestment Account that has not been used
to fund the purchase of Subsequent Contracts and is being passed
through as payments of principal on the Securities of such series.
Within the prescribed period of time for tax reporting purposes after
the end of each calendar year during the term of each Trust, the Applicable
Trustee will mail to each person who at any time during such calendar year has
been a registered Securityholder with respect to such Trust and received any
payment thereon a statement containing certain information for the purposes of
such Securityholder's preparation of federal income tax returns. See "FEDERAL
INCOME TAX CONSEQUENCES".
LIST OF SECURITYHOLDERS
With respect to the Notes of any series, three or more holders of the
Notes of such series may, by written request to the related Indenture Trustee,
obtain access to the list of all Noteholders maintained by such Indenture
Trustee for the purpose of communicating with other Noteholders with respect to
their rights under the related Indenture or under such Notes. Such Indenture
Trustee may elect not to afford the requesting Noteholders access to the list of
Noteholders if it agrees to mail the desired communication or proxy, on behalf
of and at the expense of the requesting Noteholders, to all Noteholders of such
series.
With respect to the Certificates of any series, three or more holders
of the Certificates of such series or one or more holders of such Certificates
evidencing not less than 25% of the Certificate Balance of such Certificates
may, by written request to the related Trustee, obtain access to the list of all
Certificateholders maintained by such Trustee for the purpose of communicating
with other Certificateholders with respect to their rights under the related
Trust Agreement or Pooling and Servicing Agreement or under such Certificates.
DESCRIPTION OF THE TRANSFER AND SALE AGREEMENTS
On the Closing Date specified with respect to any given Trust in the
related Prospectus Supplement, the Company as Seller will transfer and assign to
the applicable Trust, pursuant to a Transfer and Sale Agreement, its entire
interest in the Initial Contracts, including its security interests in the
related Motorcycles. Each such Contract will be identified in a schedule
appearing as an exhibit to such Transfer and Sale Agreement (a "SCHEDULE OF
CONTRACTS"). The Seller will make certain representations and warranties in the
Transfer and Sale Agreement with respect to each Contract, including that
(references to the Closing Date below being deemed, in respect of Subsequent
Contracts, to refer to the related Subsequent Transfer Date): (a) as of the
related Cutoff Date the most recent scheduled payment was made or was not
delinquent more than 30 days and, to the best of the Seller's knowledge, all
payments on the Contract were made by the Obligor of the Contract; (b) as of the
Closing Date no
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provision of a Contract has been waived, altered or modified in any respect,
except by instruments or documents relating to the Contract and contained in
the files maintained in connection therewith; (c) each Contract is a genuine,
legal, valid and binding obligation of the Obligor and is enforceable in
accordance with its terms (except as may be limited by laws affecting
creditors' rights generally); (d) as of the Closing Date no Contract is
subject to any right of rescission, set-off, counterclaim or defense; (e) as
of the Closing Date each Motorcycle securing a Contract is covered by certain
insurance policies described under "-- INDIVIDUAL MOTORCYCLE INSURANCE"
below; (f) each Contract was originated by a Dealer in the ordinary course of
such Dealer's 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 was sold by such Dealer to
the Seller without any fraud or misrepresentation on the part of such Dealer;
(g) no Contract was originated in or is subject to the laws of any
jurisdiction whose laws would make the transfer, sale and assignment of the
Contract unlawful, void or voidable; (h) each Contract and each sale of the
related Motorcycle complies with all requirements of any applicable federal,
state or local law and regulations thereunder, including, without limitation,
usury, truth in lending, motor vehicle installment loan and equal credit
opportunity laws, with such compliance not being affected by the Trust
Depositor's conveyance and assignment of the Contracts to the Trust, or the
Trust's pledge of the Contracts to the Indenture Trustee, as applicable, and
the Seller will maintain in its possession, available for inspection by or
delivery to the Trust Depositor and the Applicable Trustee, evidence of
compliance with all such requirements; (i) as of the Closing Date no Contract
has been satisfied, subordinated in whole or in part or rescinded and the
Motorcycle securing the Contract has not been released from the lien of the
Contract in whole or in part; (j) each Contract creates a valid, subsisting
and enforceable first priority security interest in favor of the Seller in
the Motorcycle covered thereby; such security interest has been conveyed and
assigned by the Seller to the Trust Depositor and by the Trust Depositor to
the Trust and, if applicable, pledged by the Trust to the Indenture Trustee;
the Seller's lien is recorded on the original certificate of title,
certificate of lien or other notification (the "LIEN CERTIFICATE") issued by
the body responsible for the registration of, and the issuance of
certificates of title relating to, motor vehicles and liens thereon (the
"REGISTRAR OF TITLES") of the applicable state to a secured party which
indicates the lien of the secured party on the Motorcycle; and the original
certificate of title for each Motorcycle shows, or if a new or replacement
Lien Certificate is being applied for with respect to such Motorcycle the
Lien Certificate will be received within 180 days of the Closing Date and
will show, the Seller as original secured party under each Contract and as
the holder of a first priority security interest in such Motorcycle (and with
respect to each Contract for which the Lien Certificate has not yet been
returned from the Registrar of Titles, the Seller has received written
evidence from the related dealer that such Lien Certificate showing the
Seller as lienholder has been applied for) and the Seller's security interest
has been validly assigned by the Seller to the Trust Depositor and by the
Trust Depositor to the Trust and (if applicable) pledged by the Trust to the
Indenture Trustee, in order that 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 Applicable Trustee 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
any state law enforcement agency affecting a Motorcycle which may arise after
such sale); (k) all parties to each Contract had capacity to execute such
Contract; (l) no Contract has been sold, conveyed and assigned or pledged to
any other person other than the Trust Depositor, as transferee of the Seller,
the Trust as transferee of the Trust Depositor or the Indenture Trustee as
pledgee of the Trust, and prior to the transfer of the Contract to the Trust
Depositor the Seller has good and marketable title to each Contract free and
clear of any encumbrance, equity, loan, pledge, charge, claim or security
interest, and as of the Closing Date the Applicable Trustee will have a first
priority perfected security interest therein; (m) as of the related Cutoff
Date there was no default, breach, violation or event permitting acceleration
under any Contract (except for payment delinquencies permitted by clause (a)
above), no event which with notice and the expiration of any grace or cure
period would constitute a default, breach, violation or event permitting
acceleration under such Contract, and the Seller has not waived any of the
foregoing; (n) as of the Closing Date there are, to the best of the Seller's
knowledge, no liens or claims which have been filed for work, labor or
materials affecting a motorcycle securing a Contract, which are or may be
liens prior or equal to the lien of the Contract; (o) each Contract has a
fixed rate of interest 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) each Contract contains customary and
enforceable provisions such as to render the rights and remedies of the
holder thereof adequate for realization against the collateral of the
benefits of the security; (q) the description of each Contract set forth in
the list delivered to the Applicable Trustee, is true and correct, and (r)
there is only one original of each Contract. The Seller will also make
certain representations and warranties with respect to the Contracts in the
aggregate, including that (i) the aggregate principal amount payable by the
Obligors as of the Initial Cutoff Date
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(plus the Pre-Funded Amount as of the Closing Date) equals the sum of the
initial principal amount of the Notes and the Initial Certificate Principal
Balance, and each Initial Contract has a minimum contractual rate of
interest, (ii) all Motorcycles securing the Contracts are Harley-Davidson or
Buell Motorcycles or Motorcycles of Other Manufacturers, (iii) a minimum
percentage of the aggregate principal balance of the Initial Contracts is
attributable to loans to purchase new Motorcycles and a maximum percentage of
the aggregate Principal Balance of the Initial Contracts is attributable to
loans to purchase used Motorcycles, (iv) no Initial Contract has a remaining
maturity of more than 72 months, and (v) no adverse selection procedures were
or will be employed in selecting the Contracts from the Seller's portfolio.
Under the Transfer and Sale Agreements, the Seller will agree that in
the event of a breach of any such representations and warranties made by the
Seller that materially and adversely affects the Applicable Trustees' interest
in any Contract the Seller will repurchase such Contract not later than two days
prior to the first Determination Date (as defined herein) after the Seller
becomes aware of such breach at a price (the "PURCHASE AMOUNT") equal to the
outstanding principal balance on such Contract, plus accrued interest thereon
through the most recently ended Due Period, unless such breach is cured. Under
either the Sale and Servicing Agreements or the Pooling and Servicing
Agreements, as applicable, the Trust Depositor will assign all of its right,
title and interest in such representations and warranties (including the
Seller's repurchase obligations) to the Trustee or the Owner Trust, as
applicable. Under the Indenture, if any, the Trust will pledge its right, title
and interest in such representations and warranties to the Indenture Trustee.
The Seller is selling the Contracts without recourse and, accordingly, will have
no obligation with respect to the Contracts other than pursuant to such
representations, warranties and repurchase obligations. The repurchase
obligations of the Seller described above will constitute the sole remedy
against the Seller by the Trust and the Securityholders for a breach of any such
representations and warranties made by the Seller.
DESCRIPTION OF THE SALE AND SERVICING AGREEMENTS AND
POOLING AND SERVICING AGREEMENTS
The following summary describes certain terms of (i) each Sale and
Servicing Agreement or Pooling and Servicing Agreement pursuant to which a Trust
will purchase Contracts and other Trust Property from the Trust Depositor and
the Servicer will agree to service such Contracts, (ii) each Trust Agreement or
Pooling and Servicing Agreement, as applicable, pursuant to which a Trust will
be created and Certificates will be issued and (iii) each Administration
Agreement pursuant to which the Company will undertake certain administrative
duties with respect to an Owner Trust that issues Notes (collectively, the "SALE
AND SERVICING AGREEMENTS AND POOLING AND SERVICING AGREEMENTS"). Forms of the
Sale and Servicing Agreements and Pooling and Servicing Agreements have been
filed as exhibits to the Registration Statement of which this Prospectus forms a
part.
SALE AND ASSIGNMENT OF CONTRACTS
The Applicable Trustee will, concurrently with such transfer and
assignment, execute and deliver the related Notes and/or Certificates. Unless
otherwise provided in the related Prospectus Supplement, the net proceeds
received from the sale of the Certificates and the Notes of a given series will
be applied to the purchase of the related Initial Contracts and other Trust
Property from the Trust Depositor and, to the extent specified in such
Prospectus Supplement, to the deposit of the Pre-Funded Amount into the
Pre-Funding Account and the initial deposit into the Collateral Reinvestment
Account. The related Prospectus Supplement for a given Trust will specify
whether, and the terms, conditions and manner under which, Subsequent Contracts
will be sold by the Trust Depositor to the applicable Trust from time to time
during any Funding Period or Revolving Period on each Subsequent Transfer Date
as specified in the related Prospectus Supplement.
In each Sale and Servicing Agreement or Pooling and Servicing
Agreement, the Trust Depositor will represent and warrant to the applicable
Trust, among other things, that: (i) the information provided in the related
Schedule of Contracts is correct in all material respects as of the applicable
Cutoff Date; (ii) the Obligor on each related Contract is required to maintain
physical damage insurance covering the Motorcycle in accordance with the Trust
Depositor's normal requirements; (iii) as of the applicable Closing Date or the
applicable Subsequent Transfer Date, if any, to the best of its knowledge, the
related Contracts are free and clear of all security interests, liens, charges
and encumbrances and no offsets, defenses or counterclaims have been asserted or
threatened; (iv) as of the
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Closing Date or the applicable Subsequent Transfer Date, if any, each of such
Contracts is or will be secured by a first priority perfected security
interest in favor of the Trust Depositor in the Motorcycle; and (v) each
related Contract, at the time it was originated, complied and, as of the
Closing Date or the applicable Subsequent Transfer Date, if any, complies in
all material respects with applicable federal and state laws, including,
without limitation, consumer credit, truth in lending, equal credit
opportunity and disclosure laws; and the Trust Depositor will make any other
representations and warranties that may be set forth in the related
Prospectus Supplement. Such representations and warranties will be
concurrently made by the Seller under the related Transfer and Sale
Agreement, and the Seller has agreed to repurchase Contracts adversely
affected by the incorrectness of such representations and warranties, in the
manner described in "Description of the Transfer and Sale Agreement" above.
Pursuant to each Sale and Servicing Agreement or Pooling and
Servicing Agreement, to assure uniform quality in servicing the Contracts and
to reduce administrative costs, the Trust Depositor and each Trust will
designate the Servicer as custodian to maintain possession, as such Trust's
agent, of the related motor vehicle retail installment sale contracts and
installment loans and any other documents relating to the Contracts. The
Trust Depositor's and the Servicer's accounting records and computer systems
will reflect the sale and assignment of the related Contracts to the
applicable Trust, and UCC financing statements reflecting such sale and
assignment will be filed.
ACCOUNTS
With respect to Owner Trusts that issue Notes, the Servicer will
establish and maintain with the related Indenture Trustee one or more
accounts, in the name of the Indenture Trustee on behalf of the related
Noteholders and Certificateholders, into which all payments made on or with
respect to the related Contracts will be deposited (the "COLLECTION
ACCOUNT"). The Servicer will establish and maintain with such Indenture
Trustee an account, in the name of such Indenture Trustee on behalf of such
Noteholders, into which amounts released from the Collection Account and any
Pre-Funding Account, Collateral Reinvestment Account, Reserve Fund or other
credit enhancement for payment to such Noteholders will be deposited and from
which all distributions to such Noteholders will be made (the "NOTE
DISTRIBUTION ACCOUNT"). With respect to each Owner Trust or Grantor Trust,
the Servicer will establish and maintain with the related Trustee an account,
in the name of such Trustee on behalf of the Certificateholders of such
Trust, into which amounts released from the Collection Account and any
Pre-Funding Account, any Collateral Reinvestment Account, Reserve Fund or
other credit or cash flow enhancement for distribution to such
Certificateholders will be deposited and from which all distributions to such
Certificateholders will be made (the "CERTIFICATE DISTRIBUTION ACCOUNT").
With respect to each Grantor Trust or each Owner Trust that does not issue
Notes, the Servicer will also establish and maintain the Collection Account
and any other Trust Account (as defined herein) in the name of the related
Trustee on behalf of the related Certificateholders.
If so provided in the related Prospectus Supplement, the Trust
Depositor will establish and maintain a Pre-Funding Account, in the name of
the related Indenture Trustee on behalf of the related Securityholders, into
which the Trust Depositor will deposit the Pre-Funded Amount on the related
Closing Date. The Pre-Funded Amount will not exceed 40% of the initial
aggregate principal amount of the Notes and Certificates of the related
series. In addition, if so provided in the related Prospectus Supplement, the
Trust Depositor will establish and maintain a Collateral Reinvestment
Account, in the name of the related Indenture Trustee on behalf of the
related Securityholders, into which the Trust Depositor will deposit the
amount, if any, specified in such Prospectus Supplement. During the Revolving
Period, principal will not be distributed on the Securities of the related
series, and principal collections, together with (if and to the extent
described in the related Prospectus Supplement) interest collections on the
Contracts that are in excess of amounts required to be distributed therefrom,
will be deposited from time to time in the Collateral Reinvestment Account.
The Pre-Funded Amount and the amounts on deposit in the Collateral
Reinvestment Account will be used by the related Indenture Trustee to
purchase Subsequent Contracts from the Trust Depositor from time to time
during the Funding Period and Revolving Period, respectively. See "THE
CONTRACTS -- GENERAL" and "RISK FACTORS -- SALES OF SUBSEQUENT CONTRACTS AND
EFFEct ON POOL CHARACTERISTICS." The amounts on deposit in the Pre-Funding
Account during the Funding Period and the amount on deposit in the Collateral
Reinvestment Account will be invested by the Indenture Trustee in Eligible
Investments. Any Investment Income received on the Eligible Investments
during a Due Period will be included in the interest distribution amount on
the following Distribution Date. The Funding Period or Revolving Period, if
any, for a Trust will begin on the related Closing Date and will end on the
date specified in the related Prospectus Supplement,
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which, in the case of the Funding Period, in no event will be later than the
date that is one year after such Closing Date. Any amounts remaining in the
Pre-Funding Account at the end of the Funding Period or in the Collateral
Reinvestment Account at the end of the Revolving Period will be distributed
to the related Securityholders in the manner and priority specified in the
related Prospectus Supplement, as a prepayment of principal of the related
Securities.
Any other accounts to be established with respect to a Trust,
including any Reserve Fund, will be described in the related Prospectus
Supplement.
For any series of Securities, funds in the Collection Account, the
Note Distribution Account, if any, any Pre-Funding Account, any Collateral
Reinvestment Account, any Reserve Fund and other accounts identified as such
in the related Prospectus Supplement (collectively, the "TRUST ACCOUNTS") and
the Certificate Distribution Account will be invested as provided in the
related Sale and Servicing Agreement or Pooling and Servicing Agreement in
Eligible Investments. "ELIGIBLE INVESTMENTS" means any one or more of the
following types of investments: (a) (i) direct interest-bearing obligations
of, and interest-bearing obligations guaranteed as to timely payment of
principal and interest by, the United States or any agency or instrumentality
of the United States the obligations of which are backed by the full faith
and credit of the United States; and (ii) direct interest-bearing obligations
of, and interest-bearing obligations guaranteed as to timely payment of
principal and interest by, the Federal National Mortgage Association or the
Federal Home Loan Mortgage Corporation, but only if, at the time of
investment, such obligations are assigned the highest credit rating by each
Rating Agency; and (b) demand or time deposits in, certificates of deposit
of, or bankers' acceptances issued by any depositary institution or trust
company organized under the laws of the United States or any State and
subject to supervision and examination by federal and/or State banking
authorities (including, if applicable, the Trustee or any agent of the
Trustee acting in their respective commercial capacities); PROVIDED that the
short-term unsecured debt obligations of such depositary institution or trust
company at the time of such investment, or contractual commitment providing
for such investment, are assigned the highest credit rating by each Rating
Agency. Except as described below or in the related Prospectus Supplement,
Eligible Investments are limited to obligations or securities that mature on
or before the date of the next distribution for such series. However, to the
extent permitted by the Rating Agencies, funds in any Reserve Fund may be
invested in securities that will not mature prior to the date of the next
distribution with respect to such Certificates or Notes and will not be sold
to meet any shortfalls. Thus, the amount of cash in any Reserve Fund at any
time may be less than the balance of the Reserve Fund. If the amount required
to be withdrawn from any Reserve Fund to cover shortfalls in collections on
the related Contracts (as provided in the related Prospectus Supplement)
exceeds the amount of cash in the Reserve Fund, a temporary shortfall in the
amounts distributed to the related Noteholders or Certificateholders could
result, which could, in turn, increase the average life of the Notes or the
Certificates of such series. Except as otherwise specified in the related
Prospectus Supplement, investment earnings on funds deposited in the Trust
Accounts, net of losses and investment expenses (collectively, "INVESTMENT
EARNINGS"), shall be deposited in the applicable Collection Account on each
Distribution Date and shall be treated as collections of interest on the
related Contracts.
The Trust Accounts will be maintained as Eligible Deposit Accounts.
"ELIGIBLE DEPOSIT ACCOUNT" means a segregated direct deposit account
maintained with a depository institution or trust company organized under the
laws of the United States of America or any one of the states thereof or the
District of Columbia having a certificate of deposit, short-term deposit or
commercial paper rating of at least "A-1+" by Standard & Poor's Ratings
Services and "P-1" by Moody's Investors Service, Inc.
SERVICING PROCEDURES
The Servicer will make reasonable efforts to collect all payments
due with respect to the Contracts held by any Trust and will, consistent with
the related Sale and Servicing Agreement or Pooling and Servicing Agreement,
follow such collection procedures as it follows with respect to comparable
motor vehicle retail installment sale contracts and installment loans it
services for itself or others. The Servicer's collection efforts include
having personnel call a delinquent Obligor every third day in the event such
Obligor is twelve to less than sixty days delinquent, every other day in the
event the Obligor is greater than sixty days delinquent and every day in the
event the Obligor is greater than ninety days delinquent. The Servicer's
general approach is to restructure a delinquent loan as opposed to
repossessing the associated Motorcycle; however, the Servicer's approach with
respect to a
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specific Obligor is affected by the Obligor's responsiveness and attitude.
Consistent with this approach, the Servicer may, in its discretion, arrange
with the Obligor on a Contract to extend or modify the payment schedule, but
no such arrangement will, for purposes of any Sale and Servicing Agreement or
Pooling and Servicing Agreement, modify the original due dates or the amount
of the scheduled payments or extend the final payment date of any Contract
beyond the last day of the Due Period relating to the latest maturity date
(as specified with respect to the pool of Contracts in the related Prospectus
Supplement). Some of such arrangements may result in the Servicer purchasing
the Contract for the Purchase Amount, while others may result in the Servicer
making Advances. The Servicer may sell the Motorcycle securing the respective
Contract at public or private sale, or take any other action permitted by
applicable law. See "CERTAIN LEGAL ASPECTS OF THE CONTRACTS".
If so specified in the related Prospectus Supplement, a "BACKUP
SERVICER" may be appointed and assigned certain oversight servicing
responsibilities with respect to the Contracts. The identity of any backup
servicer, as well as a description of its responsibilities, of any fees
payable to such backup servicer and the source of payment of such fees, will
be included in the related Prospectus Supplement.
COLLECTIONS
With respect to each Trust, the Servicer will deposit all payments
on the related Contracts (from whatever source) and all proceeds of such
Contracts collected during each collection period specified in the related
Prospectus Supplement (each, a "DUE PERIOD") into the related Collection
Account within two business days after receipt thereof.
ADVANCES
The Servicer is obligated to advance each month an amount equal to
accrued and unpaid interest on the Contracts which was delinquent with
respect to the related Due Period, but only to the extent that the Servicer
believes that the amount of such Advance will be recoverable from collections
on the Contracts. The Servicer will deposit any Advances in the Collection
Account no later than the day preceding the Distribution Date. The Servicer
will be entitled to recoup Advances on a Contract by means of a high priority
withdrawal from the sum of the interest and principal available for
distribution as provided in the related Prospectus Supplement on any
Distribution Date.
SERVICING COMPENSATION AND PAYMENT OF EXPENSES
Unless otherwise specified in the Prospectus Supplement with respect
to any Trust, the Servicer will be entitled to receive a servicing fee for
each Due Period in an amount equal to specified percentage per annum (as set
forth in the related Prospectus Supplement, the "SERVICING FEE RATE") of the
Pool Balance as of the first day of the related Due Period (the "SERVICING
FEE"). The Servicing Fee (together with any portion of the Servicing Fee that
remains unpaid from prior Distribution Dates) will be paid solely to the
extent of the Available Interest (as defined in the related Prospectus
Supplement). However, the Servicing Fee will be paid prior to the
distribution of any portion of the Available Interest to the Noteholders or
the Certificateholders of the given series.
Unless otherwise provided in the related Prospectus Supplement with
respect to a given Trust, the Servicer will also collect and retain any late
fees, prepayment charges and other administrative fees or similar charges
allowed by applicable law with respect to the related Contracts and will be
entitled to reimbursement from such Trust for certain liabilities. Payments
by or on behalf of Obligors will be allocated to scheduled payments and late
fees and other charges in accordance with the Servicer's normal practices and
procedures.
The Servicing Fee will compensate the Servicer for performing the
functions of a third party servicer of motorcycle Contracts as an agent for
their beneficial owner, including collecting and posting all payments,
responding to inquiries of Obligors on the Contracts, investigating
delinquencies, sending payment coupons to Obligors, reporting tax information
to Obligors, paying costs of collections and disposition of defaults and
policing the collateral. The Servicing Fee also will compensate the Servicer
for performing additional administrative services on behalf of a given Trust,
including making Advances, accounting for collections and furnishing monthly
and annual statements to the related Trustee and Indenture Trustee with
respect to distributions and generating federal income tax information for
such Trust and for the related Noteholders and Certificateholders. The
Servicing
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Fee also will reimburse the Servicer for certain taxes, the fees of the
related Trustee and Indenture Trustee, if any, accounting fees, outside
auditor fees, data processing costs and other costs incurred in connection
with administering the Contracts relating to such Trust.
DISTRIBUTIONS
With respect to each series of Securities, beginning on the
Distribution Date specified in the related Prospectus Supplement,
distributions of principal and interest (or, where applicable, of principal
or interest only) on each class of such Securities entitled thereto will be
made by the Applicable Trustee to the Noteholders and the Certificateholders
of such series. The timing, calculation, allocation, order, source and
priorities of, and the requirements for, all payments to the holders of each
class of Notes, if any, and all distributions to the holders of each class of
Certificates of such series will be set forth in the related Prospectus
Supplement.
With respect to each Trust, on each Distribution Date, collections
on the related Contracts will be transferred from the Collection Account to
the Note Distribution Account, if any, and the Certificate Distribution
Account for distribution to Noteholders, if any, and Certificateholders to
the extent provided in the related Prospectus Supplement. Credit enhancement,
such as a Reserve Fund, will be available to cover any shortfalls in the
amount available for distribution on such date to the extent specified in the
related Prospectus Supplement. As more fully described in the related
Prospectus Supplement, and unless otherwise specified therein, distributions
in respect of principal of a class of Securities of a given series will be
subordinated to distributions in respect of interest on such class, and
distributions in respect of one or more classes of Certificates of such
series may be subordinated to payments in respect of Notes, if any, of such
series or to distributions in respect of other classes of Certificates of
such series. Distributions of principal on the Securities of a series may be
based on the amount of principal collected or due, or the amount of realized
losses incurred, in a Due Period.
CREDIT AND CASH FLOW ENHANCEMENT
The amounts and types of credit and cash flow enhancement
arrangements, if any, and the provider thereof, if applicable, with respect
to each class of Securities of a given series will be set forth in the
related Prospectus Supplement. If and to the extent provided in the related
Prospectus Supplement, credit and cash flow enhancement may be in the form of
subordination of one or more classes of Securities, Reserve Funds, spread
accounts, overcollateralization, letters of credit, credit or liquidity
facilities, surety bonds, insurance policies, guaranteed investment
contracts, swaps or other interest rate protection agreements, repurchase
obligations, yield supplement agreements, other agreements with respect to
third party payments or other support, cash deposits or such other
arrangements as may be described in such Prospectus Supplement, or any
combination of two or more of the foregoing. If specified in the applicable
Prospectus Supplement, credit or cash flow enhancement for a class of
Securities may cover one or more other classes of Securities of the same
series, and credit or cash flow enhancement for a series of Securities may
cover one or more other series of Securities.
The presence of a Reserve Fund and other forms of credit enhancement
for the benefit of any class or series of Securities is intended to enhance
the likelihood of receipt by the Securityholders of such class or series of
the full amount of principal and interest due thereon and to decrease the
likelihood that such Securityholders will experience losses. The credit
enhancement for a class or series of Securities will not provide protection
against all risks of loss and will not guarantee repayment of the entire
principal balance and interest thereon. If losses occur which exceed the
amount covered by any credit enhancement or which are not covered by any
credit enhancement, Securityholders of any class or series will bear their
allocable share of deficiencies, as described in the related Prospectus
Supplement. In addition, if a form of credit enhancement covers more than one
series of Securities, Securityholders of any such series will be subject to
the risk that such credit enhancement will be exhausted by the claims of
Securityholders of other series.
RESERVE FUND. If so provided in the related Prospectus Supplement,
pursuant to the related Sale and Servicing Agreement or Pooling and Servicing
Agreement, the Trust Depositor will establish for a series or class of
Securities an account, as specified in such Prospectus Supplement (the
"RESERVE FUND"), which will be maintained with the related Trustee or
Indenture Trustee, as applicable. Unless otherwise provided in the related
Prospectus Supplement, the Reserve Fund will be funded by an initial deposit
by the Trust Depositor on the Closing Date in the
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amount set forth in such Prospectus Supplement and, if the related series has
a Funding Period, will also be further funded on each Subsequent Transfer
Date to the extent described in such Prospectus Supplement. As further
described in the related Prospectus Supplement, the amount on deposit in the
Reserve Fund will be increased on each Distribution Date thereafter up to the
Specified Reserve Fund Balance (as defined in such Prospectus Supplement) by
the deposit therein of the amount of collections on the related Contracts
remaining on each such Distribution Date after the payment of all other
required payments and distributions on such date. The related Prospectus
Supplement will describe the circumstances and the manner under which
distributions may be made out of the Reserve Fund, either to holders of the
Securities covered thereby or to the Trust Depositor or to any other entity.
NET DEPOSITS
If so specified in the related Prospectus Supplement as an
administrative convenience, unless the Servicer is required to remit
collections daily (see "-- COLLECTIONS" above), the Servicer will be
permitted to make the deposit of collections, aggregate Advances and Purchase
Amounts for any Trust for or with respect to the related Due Period net of
distributions to be made to the Servicer for such Trust with respect to such
Due Period. The Servicer, however, will account to the Applicable Trustee,
the Noteholders, if any, and the Certificateholders with respect to each
Trust as if all deposits, distributions and transfers were made individually.
With respect to any Trust that issues both Certificates and Notes, if the
related Distribution Dates do not coincide with Distribution Dates, all
distributions, deposits or other remittances made on a Distribution Date will
be treated as having been distributed, deposited or remitted on the
Distribution Date for the applicable Due Period for purposes of determining
other amounts required to be distributed, deposited or otherwise remitted on
such Distribution Date.
STATEMENTS TO THE APPLICABLE TRUSTEE
Prior to each Distribution Date with respect to each series of
Securities, the Servicer will provide to the applicable Indenture Trustee, if
any, and the applicable Trustee as of the close of business on the last day
of the preceding Due Period a statement setting forth substantially the same
information as is required to be provided in the periodic reports provided to
Securityholders of such series described under "CERTAIN INFORMATION REGARDING
THE SECURITIES -- REPORTS TO SECURITYHOLDERS".
EVIDENCE AS TO COMPLIANCE
Each Sale and Servicing Agreement and Pooling and Servicing
Agreement will provide that a firm of independent public accountants will
furnish annually to the related Trust and Applicable Trustee a statement to
the effect that such firm has audited the financial statements of
Harley-Davidson Financial and issued its report thereon and that such audit:
(i) included an examination of selected documents and records relating to the
servicing of Contracts, (ii) included an examination of delinquency and loss
statistics relating to Harley-Davidson Credit Corp.'s portfolio of Contracts
and (iii) except as described in the statement, disclosed no exceptions or
errors in the records relating to the Contracts serviced.
Each Sale and Servicing Agreement and Pooling and Servicing
Agreement will also provide for delivery to the related Trust and the
Applicable Trustee, substantially simultaneously with the delivery of such
accountants' statement referred to above, of a certificate signed by an
officer of the Servicer stating that the Servicer has fulfilled its
obligations under the Sale and Servicing Agreement or Pooling and Servicing
Agreement, as applicable, throughout the preceding twelve months (or, in the
case of the first such certificate, from the applicable Closing Date) or, if
there has been a default in the fulfillment of any such obligation,
describing each such default. The Servicer has agreed to give each Applicable
Trustee notice of certain Servicer Defaults under the related Sale and
Servicing Agreement or Pooling and Servicing Agreement, as applicable.
Copies of such statements and certificates may be obtained by
Securityholders by a request in writing addressed to the Applicable Trustee.
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CERTAIN MATTERS REGARDING THE SERVICER
Each Sale and Servicing Agreement and Pooling and Servicing
Agreement will provide that the Servicer will exercise that degree of skill
and care consistent with the skill and care that the Servicer exercises with
respect to similar contracts serviced by the Servicer, and, in any event no
less degree of skill and care than would be exercised by a prudent servicer
of motorcycle conditional sales contracts. The Servicer is under no
obligation to appear in, prosecute or defend any legal action that is not
incidental to the Servicer's servicing responsibilities under such Sale and
Servicing Agreement or Pooling and Servicing Agreement and that, in its
opinion, may cause it to incur any expense or liability.
Under the circumstances specified in each Sale and Servicing
Agreement and Pooling and Servicing Agreement, any entity into which the
Servicer may be merged or consolidated, or any entity resulting from any
merger or consolidation to which the Servicer is a party, or any entity
succeeding to the business of the Servicer or, with respect to its
obligations as Servicer, any corporation 50% or more of the voting stock of
which is owned, directly or indirectly, by the Company, which corporation or
other entity in each of the foregoing cases assumes the obligations of the
Servicer, will be the successor of the Servicer under such Sale and Servicing
Agreement or Pooling and Servicing Agreement.
Under each Sale and Servicing Agreement and Pooling and Servicing
Agreement, the Servicer may appoint a subservicer to perform all or any
portion of its obligations as Servicer; however, in the event that the
Servicer does appoint any such subservicer, the Servicer will remain
obligated and liable to the related Applicable Trustee and Securityholders
for servicing and administering the Contracts and will also be responsible
for any fees and expenses of the subservicer.
SERVICER DEFAULT
A "SERVICER DEFAULT" under each Sale and Servicing Agreement and
Pooling and Servicing Agreement will include: (i) any failure by the Servicer
to make any payment or deposit required to be made under the Sale and
Servicing Agreement or Pooling and Servicing Agreement or Transfer and Sale
Agreement, which failure continues to be unremedied for four business days
after the date on which such payment or deposit was due; (ii) any failure by
the Servicer duly to observe or perform in any material respect any other
covenant or agreement in such Sale and Servicing Agreement or Pooling and
Servicing Agreement or Transfer and Sale Agreement, which failure materially
and adversely affects the rights of the Noteholders or the Certificateholders
of the related series and which continues unremedied for 30 days after the
date on which such failure commences; and (iii) the occurrence of an
Insolvency Event with respect to the Servicer. "INSOLVENCY EVENT" means, with
respect to any person, any of the following events or actions: certain events
of insolvency, readjustment of debt, marshalling of assets and liabilities or
similar proceedings with respect to such person and certain actions by such
person indicating its insolvency, reorganization pursuant to bankruptcy
proceedings or inability to pay its obligations.
RIGHTS UPON SERVICER DEFAULT
In the case of Owner Trusts that issue Notes, unless otherwise
provided in the related Prospectus Supplement, as long as a Servicer Default
under a Sale and Servicing Agreement and Pooling and Servicing Agreement
remains unremedied, (i) the related Indenture Trustee or (ii) the holders of
Notes of the related series evidencing more than 50% of the principal amount
of the Notes then outstanding and Certificateholders with aggregate
fractional interests representing more than 50% of the Trust may terminate
all the rights and obligations of the Servicer under such Sale and Servicing
Agreement and Pooling and Servicing Agreement, whereupon such Indenture
Trustee or a successor servicer appointed by such Indenture Trustee will
succeed to all the responsibilities, duties and liabilities of the Servicer
under such Sale and Servicing Agreement and Pooling and Servicing Agreement
and will be entitled to similar compensation arrangements. In the case of any
Grantor Trust or any Owner Trust that does not issue Notes, unless otherwise
provided in the related Prospectus Supplement, as long as a Servicer Default
under the related Pooling and Servicing Agreement remains unremedied, the
related Trustee or holders of Certificates of the related series evidencing
not less than 25% of the principal amount of such Certificates then
outstanding may terminate all the rights and obligations of the Servicer
under such Pooling and Servicing Agreement, whereupon such Trustee or a
successor servicer appointed by such Trustee will succeed to all the
responsibilities, duties and liabilities of the Servicer under such Pooling
and Servicing Agreement and will be
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entitled to similar compensation arrangements. If, however, a bankruptcy
trustee or similar official has been appointed for the Servicer, and no
Servicer Default other than such appointment has occurred, such trustee or
official may have the power to prevent any such Indenture Trustee,
Noteholders, Trustee or Certificateholders from effecting a transfer of
servicing. In the event that such Indenture Trustee or Trustee is unwilling
or unable to so act, it may appoint, or petition a court of competent
jurisdiction for the appointment of, a successor with a net worth of at least
$100,000,000 (or such other amount as is specified in the related Prospectus
Supplement) and whose regular business includes the servicing of motor
vehicle contracts. Such Indenture Trustee or Trustee may make such
arrangements for compensation to be paid, which in no event may be greater
than the servicing compensation to the Servicer under such Sale and Servicing
Agreement or Pooling and Servicing Agreement.
AMENDMENT
Each of the Sale and Servicing Agreement and Pooling and Servicing
Agreement may be amended by the parties thereto, without the consent of the
related Noteholders or Certificateholders, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions
of such Sale and Servicing Agreement and Pooling and Servicing Agreement or
of modifying in any manner the rights of such Noteholders or
Certificateholders; PROVIDED that such action will not, in the opinion of
counsel satisfactory to the related Trustee or Indenture Trustee, as
applicable, materially and adversely affect the interest of any such
Noteholder or Certificateholder.
The Sale and Servicing Agreement and Pooling and Servicing Agreement
may also be amended by the Trust Depositor, the Servicer, the related Trustee
and any related Indenture Trustee with the consent of the holders of Notes
evidencing at least a majority in principal amount of then outstanding Notes,
if any, of the related series and the holders of the Certificates of such
series evidencing at least a majority of the principal amount of such
Certificates then outstanding, for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of such Sale and
Servicing Agreement and Pooling and Servicing Agreements or of modifying in
any manner the rights of such Noteholders or Certificateholders; PROVIDED,
HOWEVER, that no such amendment may (i) increase or reduce in any manner the
amount of, or accelerate or delay the timing of, collections of payments on
the related Contracts or distributions that are required to be made for the
benefit of such Noteholders or Certificateholders or (ii) reduce the
aforesaid percentage of the Notes or Certificates of such series which are
required to consent to any such amendment, without the consent of the holders
of all the outstanding Notes or Certificates, as the case may be, of such
series.
Each of the Sale and Servicing Agreement and Pooling and Servicing
Agreement may be amended by the parties thereto at the direction of the
Company or Servicer without the consent of any of the Securityholders to add,
modify or eliminate such provisions as may be necessary or advisable in order
to enable all or a portion of a Trust to qualify as, and to permit an
election to be made to cause all or a portion of a Trust to be treated as, a
"FINANCIAL ASSET SECURITIZATION INVESTMENT TRUST" as described in the
provisions of the "SMALL BUSINESS JOB PROTECTION ACT OF 1996," H.R. 3448, and
in connection with any such election, to modify or eliminate existing
provisions of a Sale and Servicing Agreement or Pooling and Servicing
Agreement relating to the intended federal income tax treatment of the
Securities and the related Trust in the absence of the election. See "FEDERAL
INCOME TAX CONSEQUENCES--TAX TREATMENT OF A FASIT." It is a condition to any
such amendment that each Rating Agency will have notified the Company, the
Servicer and the Applicable Trustee in writing that the amendment will not
result in a reduction or withdrawal of the rating of any outstanding
Securities with respect to which it is a Rating Agency and that the Company
obtain a legal opinion from nationally recognized counsel that there are no
adverse tax consequences for the Securityholders.
Additionally, each of the Sale and Servicing Agreement and Pooling
and Servicing Agreement may be amended by the parties thereto at the
direction of the Seller or Servicer without the consent of any of the
Securityholders to add, modify or eliminate such provisions as may be
necessary or advisable in order to enable (a) the transfer to the Trust of
all or any portion of the Contracts to be derecognized under generally
accepted accounting principles ("GAAP") by the Seller to the applicable
Trust, (b) the applicable Trust to avoid becoming a member of the Seller's
consolidated group under GAAP, or (c) the Seller or any of its affiliates to
otherwise comply with or obtain more favorable treatment under any law or
regulation or any accounting rule or principle; provided, however, that it is
a condition to any such amendment that (x) the Seller delivers an officer's
certificate to the related
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Trustee to the effect that such amendment meets the requirements set forth in
this paragraph (y) such amendment will not result in a withdrawal or
reduction of the rating of any outstanding series of Securities under the
related Trust and (z) a legal opinion is obtained from nationally recognized
counsel that such modification is in conformity with either the Sale and
Servicing Agreement or Pooling and Servicing Agreement, as applicable.
INSOLVENCY EVENT
With respect to any Owner Trust that issues Notes, if an Insolvency
Event (as defined in the related Sale and Servicing Agreement) occurs with
respect to the Trust Depositor, the related Contracts of such Trust will be
liquidated and the Trust will be terminated 90 days after the date of such
Insolvency Event, unless, before the end of such 90-day period, the related
Trustee shall have received written instructions from (i) holders of each
class of Certificates (excluding any Certificates held by the Trust
Depositor) with respect to such Trust representing more than 50% of the
aggregate unpaid principal amount of each such class (not including the
principal amount of such Certificates held by the Trust Depositor) and (ii)
holders of each class of Notes, if any, with respect to such Trust
representing more than 50% of the aggregate unpaid principal amount of each
such class, to the effect that each such party disapproves of the liquidation
of such Contracts and termination of such Trust. Promptly after the
occurrence of an Insolvency Event with respect to the Trust Depositor, notice
thereof is required to be given to the related Securityholders; PROVIDED that
any failure to give such required notice will not prevent or delay
termination of such Trust. Upon termination of any Trust, the related Trustee
shall, or shall direct the related Indenture Trustee to, promptly sell the
assets of such Trust (other than the Trust Accounts and the Certificate
Distribution Account) in a commercially reasonable manner and on commercially
reasonable terms. The proceeds from any such sale, disposition or liquidation
of the Contracts of such Trust will be treated as collections on such
Contracts and deposited in the related Collection Account. With respect to
any Trust, if the proceeds from the liquidation of the related Contracts and
any amounts on deposit in the Reserve Fund (if any), the Note Distribution
Account (if any) and the Certificate Distribution Account are not sufficient
to pay in full the Notes, if any, and the Certificates of the related series,
the amount of principal returned to Noteholders and Certificateholders
thereof will be reduced and some or all of such Noteholders and
Certificateholders will incur a loss.
Each Trust Agreement will provide that the applicable Trustee does
not have the power to commence a voluntary proceeding in bankruptcy with
respect to the related Trust without the unanimous prior approval of all
Certificateholders (including the Trust Depositor) of such Trust and the
delivery to such Trustee by each such Certificateholder (including the Trust
Depositor) of a certificate certifying that such Certificateholder reasonably
believes that such Trust is insolvent.
PAYMENT OF NOTES
Upon the payment in full of all outstanding Notes of a given series
and the satisfaction and discharge of the related Indenture, the related
Trustee will succeed to all the rights of the Indenture Trustee, and the
Certificateholders of such series will succeed to all the rights of the
Noteholders of such series, under the related Sale and Servicing Agreement or
Pooling and Servicing Agreement, except as otherwise provided therein.
TRUST DEPOSITOR LIABILITY
In the case of each Owner Trust that issues Notes, under each Trust
Agreement, the Trust Depositor will agree to be liable directly to an injured
party for the entire amount of any losses, claims, damages or liabilities
(other than those incurred by a Noteholder or a Certificateholder in the
capacity of an investor with respect to such Owner Trust) arising out of or
based on the arrangement created by such Trust Agreement as though such
arrangement created a partnership under the Delaware Revised Uniform Limited
Partnership Act in which the Trust Depositor was a general partner.
TERMINATION
With respect to each Trust, the obligations of the Servicer, the
Trust Depositor, the related Trustee and the related Indenture Trustee, if
any, pursuant to the Sale and Servicing Agreements and Pooling and Servicing
Agreements will terminate upon the earliest to occur of (i) the maturity or
other liquidation of the last related Contract and the disposition of any
amounts received upon liquidation of any such remaining Contracts, (ii) the
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payment to Noteholders, if any, and Certificateholders of the related series
of all amounts required to be paid to them pursuant to the Sale and Servicing
Agreements and Pooling and Servicing Agreements and (iii) the occurrence of
the event described in the immediately following paragraph.
Unless otherwise provided in the related Prospectus Supplement, in
order to avoid excessive administrative expense, the Seller through the Trust
Depositor will be permitted at its option to purchase from each Trust, as of
the end of any applicable Due Period, if the then outstanding Pool Balance
with respect to the Contracts held by such Trust is 10% or less of the
Initial Pool Balance (as defined in such Prospectus Supplement, the "INITIAL
POOL BALANCE"), all remaining related Contracts at a price equal to the
aggregate of the Purchase Amounts thereof as of the end of such Due Period.
As and to the extent in the related Prospectus Supplement,
outstanding Notes (or any class of Notes) of the related series may be
redeemed concurrently with the event specified above, and the subsequent
distribution to the related Securityholders of all amounts required to be
distributed to them pursuant to the applicable Trust Agreement or Indenture
will effect early retirement of the Securities of such series.
ADMINISTRATION AGREEMENT
The Company, in its capacity as administrator (in such capacity, the
"ADMINISTRATOR"), will enter into an agreement (an "ADMINISTRATION
AGREEMENT") with each Owner Trust that issues Notes and the related Indenture
Trustee pursuant to which the Administrator will agree, to the extent
provided in such Administration Agreement, to provide the notices and to
perform other administrative obligations required by the related Indenture.
As compensation for the performance of the Administrator's obligations under
the applicable Administration Agreement and as reimbursement for its expenses
related thereto, the Administrator will be entitled to a monthly
administration fee (the "ADMINISTRATION FEE"), which fee will be paid by the
Trust Depositor.
INDIVIDUAL MOTORCYCLE INSURANCE
The terms of each Contract require that for the life of the
Contract, each Motorcycle is to be covered by a collision and comprehensive
or equivalent insurance policy which covers physical damage risks, provides
limited insurance coverage for damage to the Motorcycle, and names the Seller
as a loss payee. The amount of insurance coverage is limited to the value of
the Motorcycle. In the related Transfer and Sale Agreement, the Seller will
warrant that all premium payments on such insurance have been paid in full
for one year from the date of the Contracts' origination. Pursuant to the
Contract terms, the Servicer may "FORCE PLACE" (i.e., purchase on its own,
with a corresponding claim for reimbursement against the Obligor to the
extent provided in the applicable Contract) collision and comprehensive
insurance with respect to the related Motorcycle in those situations in which
the Obligor has not maintained the required insurance. Currently, the
Servicer utilizes Recreational Products Insurance Division, a division of
Universal Underwriters Insurance Company, to "FORCE place" comprehensive and
collision insurance in 31 states in which Obligors reside. As conveyee and
assignee of the Contracts, the Trust will be entitled to the benefits of such
insurance. Following repossession of a Motorcycle by the Servicer, the
Servicer does not maintain such insurance. In the event the Servicer
repossesses a Motorcycle on behalf of the Trust, the Servicer will act as
self-insurer for any damage to such motorcycle until it is resold.
CERTAIN LEGAL ASPECTS OF THE CONTRACTS
SECURITY INTEREST IN MOTORCYCLES
The Contracts in general evidence the credit sale of new and used
motorcycles by Dealers to Obligors and also constitute personal property
security agreements granting the holder of such Contract a security interest
in the Motorcycles under the applicable UCC. Perfection of security interests
in the Motorcycles is generally governed by the motor vehicle registration
laws of the state in which a Motorcycle is located. In almost all states in
which the Contracts have been originated, a security interest in motorcycles,
automobiles, light duty trucks, vans and minivans is perfected by notation of
the secured party's lien on the vehicle's certificate of title.
All of the Contracts purchased by the Company name the Company as
obligee (by assignment or otherwise) and as the secured party. The Company
also takes all actions necessary under the laws of the state in
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which the Motorcycle is located to perfect the Company's security interest in
the Motorcycle, including, where applicable, having a notation of its lien
recorded on such vehicle's certificate of title.
The Company will sell its interests in Contracts and assign its
security interests in the Motorcycles securing the Contracts to a Trust
Depositor pursuant to a Transfer and Sale Agreement, which Trust Depositor
will, in turn, sell such interests and assign such security interests to the
Trust pursuant to either a Sale and Servicing Agreements or a Pooling and
Servicing Agreement. However, because of the administrative burden and
expense, the certificates of title to the Motorcycles will not be amended to
reflect any Trust Depositor or the Trust as the new secured party on the
certificate of title relating to the Motorcycles. Each Sale and Servicing
Agreement or Pooling and Servicing Agreement, as applicable, provides that
the Servicer, as custodian, will hold any certificates of title and the
documents and other items relating to the Motorcycles in its possession on
behalf of the Trust and the Indenture Trustee.
With respect to certain limitations on the enforceability of the
Applicable Trustees' security interest, see "RISK FACTORS -- SECURITY
INTERESTS AND OTHER ASPECTS OF THE CONTRACTS".
Under the laws of most states, the perfected security interest in a
Motorcycle would continue for four months after such vehicle is moved to a
state other than the state in which it is initially registered, and
thereafter until the owner of the Motorcycle re-registers it in the new
state. A majority of states generally require surrender of a certificate of
title in connection with the re-registration of a vehicle; accordingly, a
secured party must surrender possession if it holds the certificate of title
to the vehicle, or, in the case of a vehicle registered in a state providing
for the notation of a lien on the certificate of title but not possession by
the secured party, assuming no fraud or negligence, the secured party noted
on the certificate of title would receive notice of surrender if the security
interest is noted on the certificate of title. Thus, the secured party would
have the opportunity to re-perfect its security interest in the vehicle in
the state of relocation. In states that do not require a certificate of title
for registration of a motor vehicle, a re-registration could defeat
perfection. In the ordinary course of servicing Contracts, the Company takes
steps to effect re-perfection upon receipt of notice of re-registration or
information from the Obligor as to relocation. Similarly, when an Obligor
sells a Motorcycle, the Company must surrender possession of the certificate
of title or will receive notice as a result of its lien noted thereon and,
accordingly, will have an opportunity to require satisfaction of the related
Contract before release of the lien. Under each Sale and Servicing Agreement
or Pooling and Servicing Agreement, as applicable, the Company as Servicer is
obligated to take appropriate steps, at its own expense, to maintain
perfection of security interests in such Motorcycle and is obligated to
repurchase the related Contract if it fails to do so.
Under the laws of most states, liens for repairs performed on a
motor vehicle, liens for unpaid storage fees and liens for unpaid taxes take
priority over even a perfected security interest in a Motorcycle. The Company
will represent that, as of the date of issuance of the Securities, each
security interest in a Motorcycle is prior to all other present liens upon
and security interests in such Motorcycle. However, liens for repairs, unpaid
storage fees or taxes could arise at any time during the term of a Contract.
No notice will be given to the Applicable Trustee or the Securityholders in
the event such a lien arises nor will the Company be obligated to repurchase
the related Contract if such a lien arises after the Closing Date.
REPOSSESSION
In the event of default by a Motorcycle purchaser, a holder of a
retail installment sale contract or installment loan has all the remedies of
a secured party under the UCC, except where specifically limited by other
state laws. Among its UCC remedies, the secured party has the right to
perform self-help repossession unless such act would constitute a breach of
the peace. Self-help is the method employed by the Company in most cases and
is accomplished simply by retaking possession of the Motorcycle. In the event
of default by the Obligor, some jurisdictions require that the Obligor be
notified of the default and be given a time period within which he or she may
cure the default prior to repossession. Generally, the right to cure a
default may be exercised on a limited number of occasions in any one-year
period. In cases where the Obligor objects or raises a defense to
repossession, if a Motorcycle cannot be retaken without a breach of the
peace, or if otherwise required by applicable state law, a court order must
be obtained from an appropriate court, and the Motorcycle must then be
repossessed in accordance with that order.
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NOTICE OF SALES; REDEMPTION RIGHTS
The UCC and other state laws require the secured party to provide
the Obligor with reasonable notice of the date, time and place of any public
sale or the date after which any private sale or other intended disposition
of the collateral may be held. All aspects of the disposition of the
collateral, including the method, manner, time, place and terms must be
commercially reasonable. The Obligor has the right to redeem the collateral
prior to actual sale by paying the secured party the unpaid principal balance
of the obligation plus reasonable expenses for repossessing, holding, and
preparing the collateral for disposition and arranging for its sale plus, in
some jurisdictions, reasonable attorneys' fees. In some states the Obligor
may have a post-repossession right to reinstate the terms of the contract or
loan and redeem the collateral by the payment of delinquent installments and
expenses incurred by the secured party in repossessing the collateral.
DEFICIENCY JUDGMENTS AND EXCESS PROCEEDS
The proceeds obtained upon repossession and resale of the
Motorcycles generally will be applied first to the expenses of resale and
repossession and then to the satisfaction of the indebtedness. While some
states impose prohibitions or limitations on deficiency judgments if the net
proceeds from resale do not cover the full amount of the indebtedness, a
deficiency judgment can be sought in those states that do not prohibit or
limit such judgments, provided that certain procedures are followed. However,
the deficiency judgment would be a personal judgment against the Obligor for
the shortfall, and a defaulting Obligor can be expected to have very little
capital or sources of income available following repossession. Therefore, in
many cases, it may not be useful to seek a deficiency judgment or, if one is
obtained, it may be settled at a significant discount.
Occasionally, after resale of collateral and payment of all expenses
and all indebtedness, there is a surplus of funds. In that case, the UCC
requires the secured party to remit the surplus to any holder of a lien with
respect to the collateral or, if no such lienholder exists or there are
remaining funds, the UCC requires the secured party to remit the surplus to
the former owner of the collateral. Certain other statutory provisions,
including federal and state bankruptcy and insolvency laws, may limit or
delay the ability of a lender to repossess and resell collateral or enforce a
deficiency judgment.
CONSUMER PROTECTION LAWS
Courts have applied general equitable principles to limit and
restrict secured parties pursuing repossession or litigation involving
deficiency balances. These equitable principles may have the effect of
relieving an Obligor from some or all of the legal consequences of a default.
In several cases, consumers have asserted that the self-help
remedies of secured parties under the UCC and related laws violate the due
process protection provided under the 14th Amendment of the Constitution of
the United States. Courts have generally upheld the notice provisions of the
UCC and related laws as reasonable or have found that the repossession and
resale by the creditor do not involve sufficient state action to afford
constitutional protection to consumers.
Numerous federal and state consumer protection laws and related
regulations impose substantial requirements upon lenders and servicers
involved in consumer finance, including requirements regarding the adequate
disclosure of loan terms (including finance charges and deemed finance
charges) and limitations on loan terms (including the permitted finance
charge or deemed finance charge), collection practices and creditor remedies.
The application of these laws to particular circumstances is not always
certain and some courts and regulatory authorities have shown a willingness
to adopt novel interpretations of such laws. These laws include the Truth in
Lending Act, the Equal Credit Opportunity Act, the Federal Trade Commission
Act, the Fair Credit Reporting Act, the Fair Credit Billing Act, the Fair
Debt Collection Procedures Act, the Moss-Magnuson Warranty Act, the Federal
Reserve Board's Regulations B and Z, the Soldiers' and Sailors' Civil Relief
Act, state adaptations of the Uniform Consumer Credit Code and state motor
vehicle retail installment sales acts, retail installment sales acts, and
other similar laws. State laws generally impose finance charge ceilings and
other restrictions on consumer transactions and often require contract
disclosure in addition to those required under federal law. These
requirements impose specific statutory liabilities upon creditors who fail to
comply with their provisions. In some cases, this liability could affect an
assignee's ability to enforce consumer finance contracts or loans such as the
Contracts.
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Under the laws of certain states, finance charges with respect to
motor vehicle retail installment contracts may include the additional amount,
if any, that a purchaser pays as part of the purchase price for a motorcycle
solely because the purchaser is buying on credit rather than for cash (a
"CASH SALE DIFFERENTIAL"). If a Dealer charges such a cash sale differential,
applicable finance charge ceilings could be exceeded.
The so-called "HOLDER-IN-DUE-COURSE" Rule of the Federal Trade
Commission (the "FTC RULE), the provisions of which are generally duplicated
by the Uniform Consumer Credit Code and other state laws, has the effect of
subjecting an assignee of a seller of goods (and certain related creditors)
to all claims and defenses that the obligor in the transaction could assert
against the seller of the goods.
All of the Contracts will be subject to the requirements of the FTC
Rule. Accordingly, the Trust, as holder of the Contracts, will be subject to
any claims or defenses that the purchaser of the related Motorcycle may
assert against the Dealer. Such claims are limited to a maximum liability
equal to the amounts actually paid by the Obligor on the Contract. If an
Obligor were successful in asserting any such claim or defense, such claim or
defense would constitute a breach of the Company's representations and
warranties under the related Transfer and Sale Agreement and would create an
obligation of the Company to repurchase the related Contract unless the
breach were cured. The Trust Depositor will assign its rights under the
related Transfer and Sale Agreement, including its right to cause the Company
to repurchase Contracts with respect to which it is in breach of its
representations and warranties, to the Trust pursuant to either the related
Sale and Servicing Agreement or Pooling and Servicing Agreement. See
"DESCRIPTION OF THE SALE AND SERVICING AGREEMENTS AND POOLING AND SERVICING
AGREEMENTS -- SALE AND ASSIGNMENT OF CONTRACTS".
Under most state vehicle dealer licensing laws, dealers of
motorcycles are required to be licensed to sell motorcycles at retail sale.
In addition, with respect to used motorcycles, the Federal Trade Commission's
Rule on Sale of Used Motorcycles requires that all dealers of used
motorcycles prepare, complete and display a "BUYER'S GUIDE" which explains
the warranty coverage for such motorcycles. Furthermore, Federal Odometer
Regulations promulgated under the Motor Vehicle Information and Cost Savings
Act and the motor vehicle title laws of most states require that all dealers
of used motorcycles furnish a written statement signed by the dealer
certifying the accuracy of the odometer reading. If a Dealer is not properly
licensed or if either a Buyer's Guide or Odometer Disclosure Statement was
not provided to the purchaser of a Motorcycle, the Obligor may be able to
assert a defense against the Dealer. If an Obligor on a Contract were
successful in asserting any such claim or defense, the Servicer would pursue
on behalf of the Trust any reasonable remedies against the Dealer or the
manufacturer of the Motorcycle, subject to certain limitations as to the
expense of any such action to be specified in the Sale and Servicing
Agreement and Pooling and Servicing Agreement.
OTHER LIMITATIONS
In addition to the laws limiting or prohibiting deficiency
judgments, numerous other statutory provisions, including federal bankruptcy
laws and related state laws, may interfere with or affect the ability of a
secured party to realize upon collateral or enforce a deficiency judgment.
For example, in a Chapter 13 proceeding under the federal bankruptcy code, a
court may prevent a secured party from repossessing a Motorcycle and, as part
of the rehabilitation plan, may reduce the amount of the secured indebtedness
to the market value of the Motorcycle at the time of bankruptcy (as
determined by the court), leaving the party providing financing as a general
unsecured creditor for the remainder of the indebtedness. A bankruptcy court
may also reduce the monthly payments due under a Contract or change the rate
of interest and time of repayment of the indebtedness.
FEDERAL INCOME TAX CONSEQUENCES
GENERAL
The following is a general discussion of the material United States
federal income tax consequences of the purchase, ownership and disposition of
the Notes and the Certificates. This discussion is based upon current
provisions of the Internal Revenue Code of 1986, as amended (the "CODE"),
Treasury Regulations promulgated thereunder, current administrative rulings,
judicial decisions and other applicable authorities in effect as of the date
hereof, all of which are subject to change, possibly with retroactive effect.
There are no cases or Internal Revenue Service ("IRS") rulings on similar
transactions involving a trust and instruments issued by that trust with
terms
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similar to those of the Trust, and the Notes and the Certificates. As a
result, there can be no assurance that the IRS will not challenge the
conclusions set forth in the following summary, and no ruling from the IRS
has been or will be sought on any of the issues discussed below. Furthermore,
legislative, judicial or administrative changes may occur, perhaps with
retroactive effect, which could affect the accuracy of the statements and
conclusions set forth herein as well as the tax consequences to holders of
the Notes and the Certificates.
This discussion does not purport to deal with all aspects of federal
income taxation that may be relevant to all holders of Notes and Certificates
in light of their personal investment or tax circumstances nor to certain
types of holders who may be subject to special treatment under the federal
income tax laws (including, without limitation, financial institutions,
broker-dealers, insurance companies, foreign persons, tax-exempt
organizations and persons who hold the Notes or Certificates as part of a
straddle, hedging or conversion transaction). This information is generally
directed to prospective purchasers who purchase Notes or Certificates at the
time of original issue, who are citizens or residents of the United States,
and who hold the Notes or Certificates as "CAPITAL ASSETS" within the meaning
of Section 1221 of the Code. Taxpayers and preparers of tax returns
(including those filed by any partnership or other issuer) should be aware
that under applicable Treasury Regulations a provider of advice on specific
issues of law is not considered an income tax return preparer unless the
advice is (i) given with respect to events that have occurred at the time the
advice is rendered and is not given with respect to the consequences of
contemplated actions, and (ii) is directly relevant to the determination of
an entry on a tax return. Accordingly, taxpayers should consult their own tax
advisors and tax return preparers regarding the preparation of any item on a
tax return, even where the anticipated tax treatment has been discussed
herein. PROSPECTIVE INVESTORS SHOULD CONSULT WITH THEIR OWN TAX ADVISORS AS
TO THE FEDERAL, STATE, LOCAL, FOREIGN AND ANY OTHER TAX CONSEQUENCES TO THEM
OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE NOTES AND CERTIFICATES.
Each Trust will be provided with an opinion of Winston & Strawn
special federal income tax counsel to each Trust, as specified in the related
Prospectus Supplement ("FEDERAL TAX COUNSEL"), regarding certain federal
income tax matters discussed below. An opinion of Federal Tax Counsel,
however, is not binding on the IRS or the courts. Such opinions will be filed
by the Servicer, together with the final documentation for the respective
Trust transaction, with the Commission under Form 8-K under the Exchange Act.
For purposes of the following summary, references to the Trust, the Notes,
the Certificates and related terms, parties and documents shall be deemed to
refer, unless otherwise specified herein, to each Trust and the Notes,
Certificates and related terms, parties and documents applicable to such
Trust.
The federal income tax consequences to Certificateholders will vary
depending on whether the Trust is an Owner Trust, treated as a partnership
under the Code or a Grantor Trust treated as a grantor trust under the Code.
Pursuant to legislation enacted in 1996, as an alternative to those two types
of trusts, effective September 1, 1997 the Trust could elect to be treated as
a financial asset securitization investment trust ("FASIT"). A summary of the
federal income tax consequences pertaining to each type of trust is set forth
below. The Prospectus Supplement for each series of Securities will specify
the treatment of the Trust for federal income tax purposes. To the extent any
given series of Notes or Certificates differs from the assumptions or
conditions set forth in the following discussion, any additional tax
considerations will be disclosed in the applicable Prospectus Supplement.
OWNER TRUSTS
TAX CHARACTERIZATION OF OWNER TRUSTS
OPINIONS
Federal Tax Counsel will deliver its opinion that a Trust
characterized as an Owner Trust will not be an association (or a publicly
traded partnership) taxable as a corporation for federal income tax purposes.
This opinion will be based on the assumptions that the terms of the Trust
Agreement and related documents will be complied with and that the
Certificateholders will take all action necessary, if any, or refrain from
taking any inconsistent action so as to ensure the Trust is a partnership
under the Check the Box regulations (defined below) and on Federal Tax
Counsel's conclusions that (i) the Trust will constitute a business entity
and will have two or more members, (ii) the nature of the income of the Trust
will exempt it from the rule that certain publicly traded partnerships are
taxable as
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corporations, and (iii) the Trust, if a corporation, would not constitute a
regulated investment company under Code Section 851.
If the Trust were taxable as a corporation for federal income tax
purposes, it would be subject to corporate income tax on its taxable income.
The Trust's taxable income would include all its income on the related
Contracts and other assets, which may be reduced by its interest expense on
the Notes if the Notes are respected as debt of such corporation. Any such
corporate income tax could materially reduce cash available to make payments
on the Notes and distributions on the Certificates, and Certificateholders
could be liable for any such tax that is unpaid by the Trust.
Federal Tax Counsel will also render an opinion that the Notes will
be classified as debt for federal income tax purposes.
TAX CONSEQUENCES TO HOLDERS OF NOTES ISSUED BY AN OWNER TRUST
TREATMENT OF THE NOTES AS INDEBTEDNESS. The Trust Depositor and the
Certificateholders will agree, and the Noteholders will agree by their
purchase of Notes, to treat the Notes as debt for federal income tax
purposes. Additionally, Federal Tax Counsel will render an opinion that the
Notes will be classified as debt for federal income tax purposes. The
discussion below assumes that characterization of the Notes is correct.
OID. The discussion below assumes that all payments on the Notes are
denominated in U.S. dollars. Moreover, the discussion assumes that the
interest formula for the Notes meets the requirements for "QUALIFIED STATED
INTEREST" under Treasury regulations relating to original issue discount
("OID"), and that any OID on the Notes (I.E., any excess of the stated
redemption price at maturity of the Notes over their issue price) does not
exceed a DE MINIMIS amount (I.E., 1/4% of their stated redemption price at
maturity multiplied by the number of full years included in their term), all
within the meaning of such OID regulations.
If the interest formula for the Notes does not meet the requirements
for "QUALIFIED STATED INTEREST" because it may not satisfy the
"UNCONDITIONALLY PAYABLE" test of the OID regulations or the Notes otherwise
have more than a DE MINIMIS amount of OID, the Notes will have OID and a
Noteholder will be required to include such OID in income as it accrues under
a constant yield method in advance of receipt of cash payments, regardless of
the Noteholder's regular method of tax accounting. In general, the amount of
OID included in income is the sum of the "DAILY PORTIONS" of the OID with
respect to the Note for each day during the taxable year the Noteholder held
the Note. The daily portion generally is determined by allocating to each day
in an accrual period a ratable portion of the OID allocable to such accrual
period. The amount of OID allocable to an accrual period is generally equal
to the difference between (i) the product of the Note's adjusted issue price
and its yield to maturity and (ii) the amount of qualified stated interest
payments allocable to such accrual period. The "ADJUSTED ISSUE PRICE" of an
OID Note at the beginning of any accrual period is the sum of its issue price
plus the amount of OID allocable to prior accrual periods minus the amount of
prior payments that were not qualified stated interest. Alternatively,
because the payments on the Notes may be accelerated by reason of prepayments
on the Contracts, OID, other than DE MINIMIS OID, on the Notes, if any, may
have to be accrued under Code section 1272(a)(6), which allocates OID to each
day in an accrual period by taking the ratable portion of the excess of (i)
the sum of the present value of the remaining payments on a Note as of the
close of the accrual period and the payments made during the accrual period
that were included in stated redemption price at maturity, over (ii) the
adjusted issue price of the Note at the beginning of the accrual period. No
regulations have been issued under Code section 1272(a)(6) so it is not clear
if such section would apply to the Notes if they are treated as having OID.
The Clinton Administration has proposed legislation which if enacted, would
require OID on the Notes to be computed in accordance with Section 1272(a)(6)
and certain prepayment assumptions.
INTEREST INCOME ON THE NOTES. Based on the above assumptions, the
Notes should not be considered to be issued with OID. The stated interest
thereon will be taxable to a Noteholder as ordinary interest income when
received or accrued in accordance with such Noteholder's method of tax
accounting. Under the OID regulations, a holder of a Note issued with a DE
MINIMIS amount of OID must include such OID in income, on a pro rata basis,
as principal payments are made on the Note. A purchaser who buys a Note for
more or less than its principal amount will generally be subject,
respectively, to the premium amortization or market discount rules of the
Code.
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ACQUISITION PREMIUM. A U.S. Holder that purchases a Note for an amount
less than or equal to the sum of all amounts payable on the Note after the
purchase date other than payments of qualified stated interest but in excess of
its adjusted issue price (any such excess being "ACQUISITION PREMIUM") and that
does not make the election described below under "ELECTION TO TREAT ALL
INTEREST AS ORIGINAL ISSUE DISCOUNT" is permitted to reduce the daily portions
of OID, if any, by a fraction, the numerator of which is the excess of the U.S.
Holder's adjusted basis in the Note immediately after its purchase over the
adjusted issue price of the Note, and the denominator of which is the excess of
the sum of all amounts payable on the Note after the purchase date, other than
payments of qualified stated interest, over the Note's adjusted issue price.
MARKET DISCOUNT. The Notes, whether or not issued with original issue
discount, will be subject to the "MARKET DISCOUNT RULES" of section 1276 of the
Code. In general, these rules provide that if the holder of a Note purchases
the Note at a market discount (I.E., a discount from its original issue price
plus any accrued original issue discount that exceeds a DE MINIMIS amount
specified in the Code) and thereafter recognizes gain upon a disposition, the
lesser of (i) such gain or (ii) the accrued market discount will be taxed as
ordinary income. Generally, the accrued market discount will be the total
market discount on the Note multiplied by a fraction, the numerator of which is
the number of days the holder held the Note and the denominator of which is the
number of days from the date the holder acquired the Note until its maturity
date. The holder may elect, however, to determine accrued market discount under
the constant-yield method. Holders should consult with their own tax advisors
as to the effect of making this election.
Limitations imposed by the Code which are intended to match deductions
with the taxation of income defer deductions for interest on indebtedness
incurred or continued, or short-sale expenses incurred, to purchase or carry a
Note with accrued market discount. A Noteholder who elects to include market
discount in gross income as it accrues is exempt from this rule. The adjusted
basis of a Note subject to such election will be increased to reflect market
discount included in gross income, thereby reducing any gain or increasing any
loss on a sale or taxable disposition.
ELECTION TO TREAT ALL INTEREST AS ORIGINAL ISSUE DISCOUNT. A U.S.
Holder may elect to include in gross income all interest that accrues on a Note
using the constant-yield method described above under the heading "ORIGINAL
ISSUE DISCOUNT," with modifications described below. For purposes of this
election, interest includes stated interest, OID, DE MINIMIS OID, market
discount, DE MINIMIS market discount and unstated interest, as adjusted by any
amortizable bond premium (described below under "AMORTIZABLE BOND PREMIUM") or
acquisition premium.
In applying the constant-yield method to a Note with respect to which
this election has been made, the issue price of the Note will equal the
electing U.S. Holder's adjusted basis in the Note immediately after its
acquisition, the issue date of the Note will be the date of its acquisition by
the electing U.S. Holder, and no payments on the Note will be treated as
payments of qualified stated interest. This election, if made, may not be
revoked without the consent of the IRS. U.S. Holders should consult with their
own tax advisors as to the effect in their circumstances of making this
election.
AMORTIZABLE BOND PREMIUM. In general, if a Noteholder purchases a Note
at a premium (I.E., an amount in excess of the amount payable upon the maturity
thereof), such Noteholder will be considered to have purchased such Note with
"AMORTIZABLE BOND PREMIUM" equal to the amount of such excess. Such Noteholder
may elect to deduct the amortizable bond premium as it accrues under a
constant-yield method over the remaining term of the Note. Under proposed
regulations, if finalized, accrued amortized bond premium may only be used as
an offset against qualified stated interest when such interest is included in
the holder's gross income under the holder's normal accounting system.
SALE OR OTHER DISPOSITION. If a Noteholder sells a Note, the holder
will recognize gain or loss in an amount equal to the difference between the
amount realized on the sale and the holder's adjusted tax basis in the Note.
The adjusted tax basis of a Note to a particular Noteholder will equal the
holder's cost basis for the Note, increased by any market discount, acquisition
discount, OID and gain previously included by such Noteholder in income with
respect to the Note and decreased by the amount of bond premium (if any)
previously amortized and by the amount of principal payments previously
received by such Noteholder with respect to such Note. Any such gain or loss
will
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be capital gain or loss if the Note was held as a capital asset, except for
gain representing accrued interest and accrued market discount not previously
included in income. Capital losses generally may be used only to offset capital
gains. The IRS Restructuring and Reform Act of 1998, which was signed into law
on July 22, 1998, generally reduces from 18 months to one year the period of
time that an individual must hold a capital asset in order to receive long-term
capital gains treatment upon disposition of such asset. This change is
retroactive in effect and generally applies to sales of capital assets
occurring on or after January 1, 1998.
BACK-UP WITHHOLDING. Each holder of Note (other than an exempt holder
such as a corporation, tax exempt organization, qualified pension and
profit-sharing trust, individual retirement account or nonresident alien who
provides certification as to status as a nonresident) will be required to
provide, under penalty of perjury, a certificate containing the holder's name,
address, correct federal taxpayer identification number and a statement that
the holder is not subject to Back-up withholding. Should a nonexempt Noteholder
fail to provide the required certification, the Trust will be required to
withhold 31% of the amount otherwise payable to the holder, and remit the
withheld amount to the IRS as a credit against the holder's federal income tax
liability.
NEW WITHHOLDING REGULATIONS. On October 6, 1997, the Treasury
Department issued new regulations (the "New Regulations") which make certain
modifications to the backup withholding and information reporting rules
described above. The New Regulations attempt to unify certification
requirements and modify reliance standards. The New Regulations will generally
be effective for payments made after December 31, 2000, subject to certain
transition rules. Prospective investors are urged to consult their own tax
advisors regarding the New Regulations.
FOREIGN HOLDERS. Interest payments made (or accrued) to a Noteholder
who is a nonresident alien, foreign corporation or other non-U.S. person (a
"FOREIGN PERSON") generally will be considered "PORTFOLIO INTEREST," and
generally will not be subject to United States federal income tax and
withholding tax, if the interest is not effectively connected with the conduct
of a trade or business within the United States by the foreign person and the
foreign person (i) is not actually or constructively a "10 PERCENT SHAREHOLDER"
of the Trust (including a holder of 10% of the outstanding Certificates) or a
"CONTROLLED FOREIGN CORPORATION" with respect to which the Trust is a "RELATED
PERSON" within the meaning of the Code and (ii) provides the Owner Trustee or
other person who is otherwise required to withhold U.S. tax with respect to the
Notes with an appropriate statement (on Form W-8), signed under penalties of
perjury, certifying that the beneficial owner of the Note is a foreign person
and providing the foreign person's name and address. If a Note is held through
a securities clearing organization or certain other financial institutions, the
organization or institution may provide the relevant signed statement to the
withholding agent; in that case, however, the signed statement must be
accompanied by a Form W-8 or substitute form provided by the foreign person
that owns the Note. If such interest is not portfolio interest, then it will be
subject to United States federal income and withholding tax at a rate of 30
percent, unless reduced or eliminated pursuant to an applicable tax treaty.
Any capital gain realized on the sale, redemption, retirement or other
taxable disposition of a Note by a foreign person will be exempt from United
States federal income and withholding tax, provided that (i) such gain is not
effectively connected with the conduct of a trade or business in the United
States by the foreign person and (ii) in the case of an individual foreign
person, the foreign person is not present in the United States for 183 days or
more in the taxable year.
POSSIBLE ALTERNATIVE TREATMENTS OF THE NOTES. If, contrary to the
opinion of Federal Tax Counsel, the IRS successfully asserted that one or more
of the Notes did not represent debt for federal income tax purposes, the Notes
might be treated as equity interests in the Trust. If so treated, the Trust
might be taxable as a corporation with the adverse consequences described above
(and the resulting taxable corporation would not be able to reduce its taxable
income by deductions for interest expense on Notes recharacterized as equity).
Alternatively, it is possible that the Trust might be treated as a publicly
traded partnership that would not be taxable as a corporation because it would
meet certain qualifying income tests. Nonetheless, treatment of the Notes as
equity interests in such a publicly traded partnership could have adverse tax
consequences to certain holders. For example, income to certain tax-exempt
entities (including pension funds) could constitute "unrelated business taxable
income," income to foreign holders generally would be subject to U.S. tax and
U.S. tax return filing and withholding requirements, individual holders might
be subject to certain limitations on their ability to deduct their share of
Trust expenses, and income from the Trust's assets would be taxable to
Noteholders regardless if cash distributions are made from the Trust.
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TAX CONSEQUENCES TO HOLDERS OF CERTIFICATES ISSUED BY AN OWNER TRUST
TREATMENT OF TRUST AS A PARTNERSHIP. The Trust Depositor and the
Servicer will agree, and the related Certificateholders will agree by their
purchase of Certificates, to treat the Trust as a partnership for purposes of
federal and state income tax, franchise tax and any other tax measured in whole
or in part by income, with the assets of the partnership being the assets held
by the Trust, the partners of the partnership being the Certificateholders, and
the Notes being debt of the partnership. However, the proper characterization
of the arrangement involving the Trust, the Certificates, the Notes, the Trust
Depositor and the Servicer is not certain because there is no authority on
transactions closely comparable to that contemplated herein. The Trust, the
Trust Depositor, and the Certificateholders will take all necessary actions, if
any, and refrain from taking any inconsistent actions, so as to ensure that the
Trust will be treated as a partnership under the final Treasury Regulations
which allow an entity to elect status as a partnership (the "CHECK THE BOX"
regulations).
A variety of alternative characterizations are possible. For example,
because the Certificates have certain features characteristic of debt, the
Certificates might be considered debt of the Trust Depositor or the Trust. Any
such characterization should not result in materially adverse tax consequences
to Certificateholders as compared to the consequences from treatment of the
Certificates as equity in a partnership, described below. The following
discussion assumes that the Certificates represent equity interests in a
partnership and that all payments on the Certificates are denominated in U.S.
dollars.
PARTNERSHIP TAXATION. As a partnership, the Trust will not be subject
to federal income tax. Rather, each Certificateholder will be required to
separately take into account such holder's allocated share of income, gains,
losses, deductions and credits of the Trust. The Trust's income will consist
primarily of interest and finance charges earned on the related Contacts
(including appropriate adjustments for market discount, OID and bond premium)
and any gain upon collection or disposition of such Contracts. The Trust's
deductions will consist primarily of interest accruing with respect to the
Notes, servicing and other fees, and losses or deductions upon collection or
disposition of Contracts.
The tax items of a partnership are allocable to the partners in
accordance with the Code, Treasury regulations and the partnership agreement
(I.E., the Trust Agreement and related documents). The Trust Agreement will
provide, in general, that the Certificateholders will be allocated taxable
income of the Trust for each month equal to the sum of (i) the interest that
accrues on the Certificates in accordance with their terms for such month,
including interest accruing at the Pass-Through Rate for such month and
interest on amounts previously due on the Certificates but not yet distributed;
(ii) any Trust income attributable to discount on the related Contracts that
corresponds to any excess of the principal amount of the Certificates over
their initial issue price; (iii) prepayment premium payable to the
Certificateholders for such month; and (iv) any other amounts of income payable
to the Certificateholders for such month. Such allocation will be reduced by
any amortization by the Trust of premium on Contracts that corresponds to any
excess of the issue price of Certificates over their principal amount. All
remaining taxable income of the Trust will be allocated to the Trust Depositor.
Based on the economic arrangement of the parties, this approach for allocating
Trust income should be permissible under applicable Treasury regulations,
although no assurance can be given that the IRS would not require a greater
amount of income to be allocated to Certificateholders. Moreover, even under
the foregoing method of allocation, Certificateholders may be allocated income
equal to the entire Pass-Through Rate plus the other items described above,
even though the Trust might not have sufficient cash to make current cash
distributions of such amount. Thus, cash basis holders will in effect be
required to report income from the Certificates on the accrual basis and
Certificateholders may become liable for taxes on Trust income even if they
have not received cash from the Trust to pay such taxes. In addition, because
tax allocations and tax reporting will be done on a uniform basis for all
Certificateholders but Certificateholders may be purchasing Certificates at
different times and at different prices, Certificateholders may be required to
report on their tax returns taxable income that is greater or less than the
amount reported to them by the Trust.
All of the taxable income allocated to a Certificateholder that is a
tax-exempt entity (including an individual retirement account) will constitute
"UNRELATED BUSINESS TAXABLE INCOME" generally taxable to such a holder under
the Code.
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With respect to any Certificateholder who is an individual, an
individual taxpayer's share of expenses of the Trust (including fees to the
Servicer but not interest expense) would be miscellaneous itemized deductions.
Such deductions might be disallowed to the individual in whole or in part and
might result in such holder being taxed on an amount of income that exceeds the
amount of cash actually distributed to such holder over the life of the Trust.
The Trust will make all tax calculations relating to income and
allocations to Certificateholders on an aggregate basis. If the IRS were to
require that such calculations be made separately for each Contract, the Trust
might be required to incur additional expense but it is believed that there
would not be a material adverse effect on Certificateholders.
DISCOUNT AND PREMIUM. It is believed that the Contracts will not be
issued with OID, and, therefore, the Trust should not have OID income. However,
the purchase price paid by the Trust for the related Contracts may be greater
or less than the remaining principal balance of the Contracts at the time of
purchase. If so, the Contracts will have been acquired at a premium or
discount, as the case may be. As indicated above, the Trust will make this
calculation on an aggregate basis, but might be required to recompute it on a
Contract-by-Contract basis.
If the Trust acquires the Contracts at a market discount or premium,
it will elect to include any such discount in income currently as it accrues
over the life of such Contracts or to offset any such premium against interest
income on such Contracts. As indicated above, a portion of such market discount
income or premium deduction may be allocated to Certificateholders.
DISTRIBUTIONS TO CERTIFICATEHOLDERS. Certificateholders generally will
not recognize gain or loss with respect to distributions from the Trust. A
Certificateholder will recognize gain, however, to the extent that any money
distributed exceeds the Certificateholder's adjusted basis in the Certificates
(as described below "DISPOSITION OF CERTIFICATES") immediately before the
distribution. A Certificateholder will recognize loss upon the termination of
the Trust or termination of the Certificateholder's interest in the Trust if
the Trust only distributes money to the Certificateholder and the amount
distributed is less than the Certificateholder's adjusted basis in the
Certificates. Any gain or loss will generally be long-term gain or loss if the
holding period of the Certificate is more than one year.
SECTION 708 TERMINATION. Under Section 708 of the Code, if 50% or more
of the outstanding interests in the Trust are sold or exchanged within any
12-month period, the Trust will be deemed to terminate and then be
reconstituted for federal income tax purposes. If such a termination occurs,
the assets of the terminated Trust (the "Old Trust") are deemed to be
constructively contributed to a reconstituted Trust (the "New Trust") in
exchange for interests in the New Trust. Such interests would be deemed
distributed to the partners, or Certificateholders, of the Old Trust in
liquidation thereof, which would not constitute a sale or exchange.
Accordingly, if the sale of the Trust's interests terminated the partnership
under Section 708 of the Code, the Certificateholder's basis in its ownership
interest would not change. The Trust's taxable year would also terminate as a
result of a constructive termination and, if the Certificateholder was on a
different taxable year than the Trust, the termination could result in the
"bunching" of more than twelve months of the Trust's income or loss in the
Certificateholder's income tax return for the year in which the Trust was
deemed to terminate.
DISPOSITION OF CERTIFICATES. Generally, capital gain or loss will be
recognized on a sale of Certificates in an amount equal to the difference
between the amount realized and the Trust Depositor's tax basis in the
Certificates sold. A Certificateholder's tax basis in a Certificate will
generally equal the holder's cost increased by the holder's share of Trust
income (that was includible in the Certificateholder's income) and decreased by
any distributions received with respect to such Certificate. In addition, both
the tax basis in the Certificates and the amount realized on a sale of a
Certificate would include the holder's share of the Notes and other liabilities
of the Trust. A holder acquiring Certificates at different prices may be
required to maintain a single aggregate adjusted tax basis in such
Certificates, and, upon sale or other disposition of some of the Certificates,
allocate a portion of such aggregate tax basis to the Certificates sold (rather
than maintaining a separate tax basis in each Certificate for purposes of
computing gain or loss on a sale of that Certificate).
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Any gain on the sale of a Certificate attributable to the holder's
share of unrecognized accrued market discount on the related Contracts would
generally be treated as ordinary income to the holder and would give rise to
special tax reporting requirements. The Trust does not expect to have any other
assets that would give rise to such special reporting requirements. Thus, to
avoid those special reporting requirements, the Trust will elect to include
market discount in income as it accrues.
If a Certificateholder is required to recognize an aggregate amount of
income (not including income attributable to disallowed itemized deductions
described above) over the life of the Certificates that exceeds the aggregate
cash distributions with respect thereto, such excess will generally give rise
to a capital loss upon the retirement of the Certificates.
ALLOCATIONS BETWEEN TRANSFERORS AND TRANSFEREES. In general, the
Trust's taxable income and losses will be determined monthly and the tax items
for a particular calendar month will be apportioned among the
Certificateholders in proportion to the principal amount of Certificates owned
by them as of the close of the last day of such month. As a result, a holder
purchasing Certificates may be allocated tax items (which will affect its tax
liability and tax basis) attributable to periods before the actual transaction.
The use of such a monthly convention may not be permitted by existing
regulations. If a monthly convention is not allowed (or only applies to
transfers of less than all of the partner's interest), taxable income or losses
of the Trust might be reallocated among the Certificateholders. The Trust
Depositor will be authorized to revise the Trust's method of allocation between
transferors and transferees to conform to a method permitted by future
regulations.
SECTION 754 ELECTION. In the event that a Certificateholder sells its
Certificates at a profit (loss), the purchasing Certificateholder will have a
higher (lower) basis in the Certificates than the selling Certificateholder
had. The tax basis of the Trust's assets will not be adjusted to reflect that
higher (or lower) basis unless the Trust were to file an election under Section
754 of the Code. In order to avoid the administrative complexities that would
be involved in keeping accurate accounting records, as well as potentially
onerous information reporting requirements, the Trust will not make such
election. As a result, Certificateholders might be allocated a greater or
lesser amount of Trust income than would be appropriate based on their own
purchase price for Certificates.
ADMINISTRATIVE MATTERS. The Trustee is required to keep or have kept
complete and accurate books of the Trust. Such books will be maintained for
financial reporting and tax purposes on an accrual basis and the fiscal year of
the Trust will be the calendar year. The Trustee will file a partnership
information return (IRS Form 1065) with the IRS for each taxable year of the
Trust and will report each Certificateholder's allocable share of items of
Trust income and expense to holders and the IRS on Schedule K-1. The Trust will
provide the Schedule K-1 information to nominees that fail to provide the Trust
with the information statement described below and such nominees will be
required to forward such information to the beneficial owners of the
Certificates. Generally, holders must file tax returns that are consistent with
the information return filed by the Trust or be subject to penalties unless the
holder notifies the IRS of all such inconsistencies.
Under Section 6031 of the Code, any person that holds Certificates as
a nominee at any time during a calendar year is required to furnish the Trust
with a statement containing certain information on the nominee, the beneficial
owners and the Certificates so held. Such information includes (i) the name,
address and taxpayer identification number of the nominee and (ii) as to each
beneficial owner (a) the name, address and identification number of such
person, (b) whether such person is a United States person, a tax-exempt entity,
a foreign government or an international organization, or any wholly owned
agency or instrumentality of either of the foregoing, and (c) certain
information on Certificates that were held, bought or sold on behalf of such
person throughout the year. In addition, brokers and financial institutions
that hold Certificates through a nominee are required to furnish directly to
the Trust information as to themselves and their ownership of Certificates. A
clearing agency registered under Section 17A of the Exchange Act is not
required to furnish any such information statement to the Trust. The
information referred to above for any calendar year must be furnished to the
Trust on or before the following January 31. Nominees, brokers and financial
institutions that fail to provide the Trust with the information described
above may be subject to penalties.
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The Trust Depositor will be designated as the tax matters partner for
the Trust in the Trust Agreement and, as such, will be responsible for
representing the Certificateholders in any dispute with the IRS. The Code
provides for administrative examination of a partnership as if the partnership
were a separate and distinct taxpayer. Generally, the statute of limitations
for partnership items does not expire before three years after the date on
which the partnership information return is filed. Any adverse determination
following an audit of the return of the Trust by the appropriate taxing
authorities could result in an adjustment of the returns of the
Certificateholders, and, under certain circumstances, a Certificateholder may
be precluded from separately litigating a proposed adjustment to the items of
the Trust. An adjustment could also result in an audit of a Certificateholder's
returns and adjustments of items not related to the income and losses of the
Trust.
BACK-UP WITHHOLDING. Distributions made on the Certificates and
proceeds from the sale of the Certificates will be subject to a "BACK-UP"
withholding tax of 31% if, in general, the Certificateholder fails to comply
with certain identification procedures, unless the holder is an exempt
recipient under applicable provisions of the Code.
The New Regulations make certain modifications to the backup
withholding and information reporting rules described above. The New
Regulations attempt to unify certification requirements and modify reliance
standards. The New Regulations will generally be effective for payments made
after December 31, 2000, subject to certain transition rules. Prospective
investors are urged to consult their own tax advisors regarding the New
Regulations.
TAX CONSEQUENCES TO FOREIGN CERTIFICATEHOLDERS. It is not clear
whether the Trust would be considered to be engaged in a trade or business in
the United States for purposes of federal withholding taxes with respect to
non-U.S. persons because there is no clear authority dealing with that issue
under facts substantially similar to those described herein. Nevertheless, the
Trust will withhold as if it were so engaged in order to protect the Trust from
possible adverse consequences of a failure to withhold. The Trust expects to
withhold on the portion of its taxable income that is allocable to foreign
Certificateholders pursuant to Section 1446 of the Code, as if such income were
effectively connected to a U.S. trade or business, at a rate of 35% for foreign
holders that are taxable as corporations and 39.6% for all other foreign
holders. Subsequent adoption of Treasury regulations or the issuance of other
administrative pronouncements may require the Trust to change its withholding
procedures. In determining a holder's withholding status, the Trust may
generally rely on IRS Form W-8, IRS Form W-9 or the holder's certification of
nonforeign status signed under penalties of perjury.
Each foreign holder might be required to file a U.S. individual or
corporate income tax return (including, in the case of a corporation, the
branch profits tax) on its share of the Trust's income. Each foreign holder
must obtain a taxpayer identification number from the IRS and submit that
number to the Trust on Form W-8 in order to assure appropriate crediting of the
taxes withheld. A foreign holder generally would be entitled to file with the
IRS a claim for refund with respect to taxes withheld by the Trust, taking the
position that no taxes were due because the Trust was not engaged in a U.S.
trade or business (although no assurance can be given as to the prospects for
success of the refund claim). However, even if such a position is successful,
interest payments made (or accrued) to a Certificateholder who is a foreign
person may be considered to be guaranteed payments, but only to the extent such
payments are determined without regard to the income of the Trust. It is
unclear whether the IRS would agree with that characterization. If these
interest payments are properly characterized as guaranteed payments, then the
interest will not constitute "PORTFOLIO INTEREST." As a result,
Certificateholders will be subject to 30 percent U.S. withholding tax, unless
reduced or eliminated pursuant to an applicable treaty. In such case, a foreign
holder would only be entitled to claim a refund for that portion of the taxes
in excess of the taxes that should be withheld with respect to the guaranteed
payments.
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GRANTOR TRUSTS
TAX CHARACTERIZATION OF GRANTOR TRUSTS
OPINION
Federal Tax Counsel will deliver its opinion that a Trust
characterized as a Grantor Trust will be classified as a grantor trust and not
as an association taxable as a corporation and that, subject to the discussion
below under "STRIPPED BOND TREATMENT", each Certificateholder will be treated
for federal income tax purposes as the owner of a pro rata undivided interest
in the income and assets of the Trust.
GENERAL
For federal income tax purposes, the Trust will be deemed to have
acquired the following assets: (i) the principal portion of each Contract, plus
a portion of the interest due on each Contract (the "TRUST STRIPPED BONDS"),
(ii) the portion of the interest due on each such Contract not allocable to the
Trust Stripped Bonds or retained by the Seller (the "TRUST STRIPPED COUPONS"),
(iii) the proceeds of certain insurance policies on the motorcycles, (iv)
rights under the Trust Deposit Agreement and (v) rights under the Security
Agreement in favor of the Trust securing the Trust Depositor's obligation to
purchase Subsequent Contracts and deliver them to the Trust. Although the Trust
will have certain rights with respect to the Reserve Fund, the Pre-Funding
Account and the Interest Reserve Account, such accounts are not assets of the
Trust.
Each Certificateholder will have a taxable event when an asset of the
Trust (including any Contract) is disposed of (whether by sale, exchange,
redemption or payment at maturity) or when the Certificateholder's Certificate
is redeemed or sold. A Certificateholder must allocate the cost of its
Certificates among its allocable share of the assets of the Trust, including
the Contracts (in accordance with the proportion of the relative fair market
values of such assets as of the date such Certificateholder acquired its
Certificate) in order to determine its initial tax basis for its pro rata
portion of each asset held by the Trust, including the Contracts. For this
purpose, a Certificateholder may treat the Trust's rights in the security
interests, the individual insurance contracts on the motorcycles, and other
rights the Trust may have which provide credit enhancement as part of the
Contracts such that no separate allocation of the Certificate cost and
determination of basis must be made to these rights. Such tax basis is adjusted
upward by the amount of original issue discount ("OID"), if applicable (see the
discussion below under "STRIPPED BOND TREATMENT", and downward by the amount of
all payments previously received by such Certificateholder (assuming OID
treatment applies) under "STRIPPED BOND TREATMENT" below.
The Trust Stripped Bonds will be treated as "STRIPPED BONDS" and the
Trust Stripped Coupons will be treated as "STRIPPED COUPONS," both within the
meaning of Section 1286 of the Code.
INCOME OF HOLDERS OF CERTIFICATES ISSUED BY A GRANTOR TRUST
Subject to the discussion below under "STRIPPED BOND TREATMENT", each
Certificateholder will be required to report on its federal income tax return,
in a manner consistent with its method of accounting, its pro rata allocable
share of the entire gross income of the Trust, including interest or finance
charges earned on the Contracts, and any gain or loss upon collection or
disposition of the Contracts. In computing its federal income tax liability, a
Certificateholder will be entitled to deduct, consistent with its method of
accounting, its pro rata allocable share of reasonable fees payable to the
Servicer that are paid or incurred by the Trust as provided in Sections 162 or
212 of the Code. If a Certificateholder is an individual, estate or trust, the
deduction for its pro rata share of such fees will be allowed only to the
extent that all of its miscellaneous itemized deductions, including its share
of such fees, exceed 2% of its adjusted gross income. In addition, Code Section
68 provides that itemized deductions otherwise allowable for a taxable year of
an individual taxpayer whose adjusted gross income exceeds a specified amount
will be reduced by the lesser of (i) 3% of the excess, if any, of adjusted
gross income over such amount, or (ii) 80% of the amount of itemized deductions
otherwise allowable for such year. As a result, such investors holding
Certificates, directly or indirectly through a pass-through entity, may have
aggregate taxable income in excess of the aggregate amount of cash received on
such Certificates with respect to interest at the related Pass-Through Rate on
such Certificates.
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STRIPPED BOND TREATMENT
Although the federal income tax treatment of stripped bonds is not
entirely clear, since only limited regulations have been issued by the IRS,
based on guidance by the IRS it is believed that the Contracts should be
treated as "STRIPPED BONDS" and the interest thereon payable to the
Certificateholders as "STRIPPED COUPONS." The Contracts would, therefore, be
treated as subject to the OID provisions and stripped bond provisions of the
Code. Each Certificateholder would be treated as owning stripped bonds
(represented by its portion of the Class A Percentage or Class B Percentage
of principal payments on each Contract) and stripped coupons (equal to that
Certificateholder's proportionate part of the interest on the Trust Stripped
Bonds). Furthermore, each Class B Certificateholder will own a proportionate
part of the stripped coupons represented by the Trust Stripped Coupons. Each
stripped bond and coupon should generally be treated as a single debt
instrument. As a result of this characterization, each Certificateholder will
be allocated interest from the Contracts equal to its respective share of the
Class A Pass-Through Rate or the Class B Pass-Through Rate and principal on
the Contracts equal to its Class A Percentage or Class B Percentage of such
principal.
In general, under the stripped bond and OID provisions of the Code,
each initial Certificateholder would report OID (other than certain de
minimis amounts) in each taxable year computed on a constant yield method
based on the yield to maturity of the Contracts held by the Trust. Such yield
would be computed with respect to each Certificateholder by taking into
account such Certificateholder's purchase price for its interest in the
Contracts and the payments to be made in respect of the Certificateholder's
interest in such Contracts. Thus, it is believed that the effect of the
stripped bond rules and the OID provisions would be to treat each Contract as
a bond originally issued on the date it is purchased (I.E., the date that a
holder purchases its Certificate), and having OID equal to the excess of (a)
the Certificateholder's share of the sum of all payments that are part of
each Contract over (b) the portion of the Certificateholder's purchase price
for the Certificate that is properly allocable to each Contract. As a
consequence, each Certificateholder, regardless of its method of tax
accounting, would be required to include in its ordinary gross income the sum
of the "DAILY PORTIONS" of the OID determined with respect to such
Certificateholder's pro rata interest in such Contracts for all days during
the taxable year on which the Certificateholder owns the Certificate.
The method of calculating yield to maturity is not clear, and in
particular it is not clear under the Code whether prepayments on the
underlying Contracts should be taken into account in determining such yield.
The Clinton Administration has proposed legislation which if enacted, may
require the yield on the Contracts to be determined based on the prepayment
assumptions.
Based on the preamble to certain stripped bond regulations, although
the matter is not entirely clear, the interest income on the Class A
Certificates and the Class B Certificates and the portion of the Monthly
Servicing Fee allocable to each such Certificate may be treated, in whole or
in part, as so-called "QUALIFIED STATED INTEREST." In that case, the income
reportable by the initial holder of a Certificate in each monthly accrual
period under the OID provisions should be approximately the same as its pro
rata share of the aggregate interest accruing with respect to the Certificate
in accordance with its terms, plus the Certificate's pro rata share of the
portion of the Monthly Servicing Fee and any allocable fees and expenses.
Under the foregoing analysis, the bond premium and market discount
rules of the Code would not apply to the initial holder of a Certificate.
The OID provisions of the Code and the regulations thereunder are
complex, are unclear in many respects, and do not address many issues raised
by the Contracts. Moreover, only limited guidance has been issued with
respect to stripped bonds and final regulations under the stripped bond
provisions of the Code may provide for different treatment, perhaps with
retroactive effect. Holders of Certificates issued by a Grantor Trust should
consult their tax advisors to determine the proper method of reporting
taxable income from the Certificates.
SALE OF CERTIFICATE
If a Certificate is sold, gain or loss will be recognized equal to
the difference between the amount realized on the sale allocable to each of
the Contracts and the Certificateholder's adjusted basis in each of the
Contracts. A
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Certificateholder's adjusted basis will equal the Certificateholder's cost
for the Certificate, increased by any OID previously included in income, and
decreased by the amount of payments previously received on the Contracts,
however denominated (other than qualified stated interest payments). Any gain
or loss will be capital gain or loss if the Certificate was held as a capital
asset. A capital gain or loss will be long-term or short-term depending on
whether or not the Certificates have been owned for more than one year.
FOREIGN CERTIFICATEHOLDERS
Income attributable to Contracts which is received by a foreign
Certificateholder will generally not be subject to the normal 30% withholding
tax imposed with respect to such payments, provided that (i) the foreign
Certificateholder does not own, directly or indirectly, 10% or more of, and
is not a controlled foreign corporation related to , the Seller and (ii) such
holder fulfills certain certification requirements. Under such requirements,
the holder must certify, under penalty of perjury, that it is not a "UNITED
STATES PERSON" and provide its name and address on Form W-8. For this
purpose, "UNITED STATES PERSON" generally means a citizen or resident of the
United States, a corporation, partnership or other entity created or
organized in or under the laws of the United States or any political
subdivision thereof or an estate or trust the income of which is includable
in gross income for United States federal income tax purposes, regardless of
its source or which is subject to the supervision or authority of a U.S.
court or U.S. fiduciary. Gain realized upon the sale of a Certificate by a
foreign Certificateholder generally will not be subject to United States
withholding tax. If, however, such interest or gain is effectively connected
to the conduct of a trade or business within the United States by such
foreign Certificateholder (or in the case of gain the Certificateholder is an
individual who is present in the United States for a total of 183 days or
more during the taxable year in which such gain is realized), such holder
will be subject to United States federal income tax thereon at either the
regular rates or a special 30% withholding tax rate. Potential investors who
are not United States persons should consult their own tax advisors regarding
the specific tax consequences to them of owning a Certificate issued by a
Grantor Trust.
INFORMATION REPORTING AND BACKUP WITHHOLDING
The Trustee will furnish or make available, within the prescribed
period of time for tax reporting purposes after the end of each calendar
year, to each Certificateholder or each person holding a Certificate on
behalf of a Certificateholder at any time during such year, such information
as the Trustee deems necessary or desirable to assist Certificateholders in
preparing their federal income tax returns. Payments made on the Certificates
and proceeds from the sale of the Certificates will not be subject to a
"BACKUP" withholding tax of 31% unless, in general, a Certificateholder fails
to comply with certain reporting procedures and is not an exempt recipient
under applicable provisions of the Code.
The New Regulations make certain modifications to the backup
withholding and information reporting rules described above. The New
Regulations attempt to unify certification requirements and modify reliance
standards. The New Regulations will generally be effective for payments made
after December 31, 2000, subject to certain transition rules. Prospective
investors are urged to consult their own tax advisors regarding the New
Regulations.
TAX TREATMENT OF A FASIT
The "SMALL BUSINESS JOB PROTECTION ACT OF 1996" (the "ACT") creates
a new type of entity for federal income tax purposes called a "FINANCIAL
ASSET SECURITIZATION INVESTMENT TRUST" or "FASIT" effective on and after
September 1, 1997. The Act enables certain arrangements similar to a Trust to
elect to be treated as a FASIT. Under the FASIT provisions of the Act, a
FASIT generally would avoid federal income taxation and could issue
securities substantially similar to the Certificates and Notes, and those
securities would be treated as debt for federal income tax purposes. If so
specified in the related Prospectus Supplement, a Trust may make an election
to be treated as a FASIT. The applicable Pooling and Servicing Agreement or
Sale and Servicing Agreement for such a Trust may contain such terms and
provide for the issuance of Notes or Certificates on such terms and
conditions as are permitted for a FASIT. In addition, upon satisfying certain
conditions set forth in the Pooling and Servicing Agreements or Sale and
Servicing Agreements in existence on September 1, 1997, the Seller and
Servicer will be permitted to amend any such Pooling and Servicing Agreements
or Sale and Servicing Agreements so as to enable all or a portion of a Trust
to qualify as a FASIT and to permit a FASIT election to be made with respect
thereto, and
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to make such modifications to a Pooling and Servicing Agreement or Sale and
Servicing Agreement as may be permitted by reason of the making of such an
election. See "DESCRIPTION OF THE POOLING AND SERVICING
AGREEMENTS--AMENDMENT." However, there can be no assurance that the Seller
will or will not cause any permissible FASIT election to be made with respect
to an existing Trust or amend a Pooling and Servicing Agreement or Sale and
Servicing Agreement in connection with any election. In addition, if such an
election is made, it may cause a holder to recognize gain (but not loss) with
respect to any Notes or Certificates held by it, even though Federal Tax
Counsel previously delivered its opinion that the Notes or Certificates will
be treated as debt for federal income tax purposes without regard to the
election and the Notes or Certificates would be treated as debt following the
election. Additionally, any such election and amendments to a Pooling and
Servicing Agreement or Sale and Servicing Agreement may have other tax and
non-tax consequences to Securityholders. Such consequences, together with a
detailed discussion of the tax aspects of a FASIT, will be set forth in the
Prospectus Supplement applicable thereto.
CERTAIN STATE TAX CONSEQUENCES
Because of the differences in state tax laws and their applicability
to different investors, it is not possible to summarize the potential state
tax consequences of holding the Certificates. ACCORDINGLY, PURCHASERS OF
CERTIFICATES OR NOTES SHOULD CONSULT THEIR OWN TAX ADVISERS REGARDING THE
STATE TAX CONSEQUENCES OF PURCHASING ANY CERTIFICATES OR NOTES.
* * *
THE FEDERAL AND STATE TAX DISCUSSIONS SET FORTH ABOVE ARE INCLUDED
FOR GENERAL INFORMATION ONLY AND MAY NOT BE APPLICABLE DEPENDING UPON A
NOTEHOLDER'S OR CERTIFICATE OWNER'S PARTICULAR TAX SITUATION. PROSPECTIVE
PURCHASERS SHOULD CONSULT THEIR TAX ADVISORS WITH RESPECT TO THE TAX
CONSEQUENCES TO THEM OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF NOTES AND
CERTIFICATES, INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND
OTHER TAX LAWS AND THE POSSIBLE EFFECTS OF CHANGES IN FEDERAL OR OTHER TAX
LAWS.
ERISA CONSIDERATIONS
Section 406 of ERISA and Section 4975 of the Code prohibit a
pension, profit-sharing or other employee benefit plan, as well as individual
retirement accounts and Keogh Plans (each a "PLAN"), from engaging in certain
transactions with persons that are "PARTIES IN INTEREST" under ERISA or
"DISQUALIFIED PERSONS" under the Code with respect to such Plan. A violation
of these "PROHIBITED TRANSACTION" rules may result in an excise tax or other
penalties and liabilities under ERISA and the Code for such persons.
Certain transactions involving a Trust might be deemed to constitute
prohibited transactions under ERISA and the Code with respect to a Plan that
purchased Certificates if assets of the Trust were deemed to be assets of the
Plan. Under a regulation issued by the United States Department of Labor (the
"PLAN ASSETS REGULATION"), the assets of a Trust would be treated as assets
of a Plan for the purposes of ERISA and the Code only if the Plan acquired an
"EQUITY INTEREST" in the Trust and none of the exceptions contained in the
Plan Assets Regulation was applicable. An equity interest is defined under
the Plan Assets Regulation as an interest other than an instrument which is
treated as indebtedness under applicable local law and which has no
substantial equity features.
Employee benefit plans that are governmental plans (as defined in
Section 3(32) of ERISA) and certain church plans (as defined in Section 3(33)
of ERISA) are not subject to ERISA requirements.
A Plan fiduciary considering the purchase of Securities of a given
series should consult its tax and/or legal advisors regarding whether the
assets of the related Trust would be considered plan assets, the possibility
of exemptive relief from the prohibited transaction rules and other issues
and their potential consequences.
THE NOTES
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Unless otherwise specified in the Prospectus Supplement, the Notes
of each series may be purchased by a Plan if the fiduciary of the Plan
determines that the purchase of a Note is consistent with its fiduciary
duties and does not result in a nonexempt prohibited transaction under
Section 406 of ERISA or Section 4975 of the Code.
SENIOR CERTIFICATES
The following discussion applies only to nonsubordinate Certificates
(referred to herein as "SENIOR CERTIFICATES") issued by a Grantor Trust.
The U.S. Department of Labor has granted to the lead Underwriter
named in the Prospectus Supplement an exemption (the "EXEMPTION") from
certain of the prohibited transaction rules of ERISA with respect to the
initial purchase, the holding and the subsequent resale by Plans of
certificates representing interests in asset-backed pass-through trusts that
consist of certain receivables, loans and other obligations that meet the
conditions and requirements of the Exemption. The contracts covered by the
Exemption include motor vehicle retail installment sales contracts and
installment loans such as the Contracts. The Exemption should apply to the
acquisition, holding and resale in the secondary market of the Senior
Certificates by a Plan, provided that certain conditions (certain of which
are described in the related Prospectus Supplement) are met. It should be
noted, however, that in issuing the Exemption the Department may not have
considered interests in pools of the exact nature of some of the offered
Certificates.
Unless otherwise specified in the Prospectus Supplement, the Company
believes that, after the expiration of any applicable Funding Period, the
Exemption will apply to the acquisition and holding by Plans of Senior
Certificates sold by the Underwriter or Underwriters named in the Prospectus
Supplement and that all conditions of the Exemption other than those within
the control of the investors will have been met.
SUBORDINATE CERTIFICATES
Unless otherwise specified in the Prospectus Supplement, the
Certificates issued by Owner Trusts that also issue Notes and Subordinate
Certificates issued by Grantor Trusts may not be purchased by a Plan or by
any entity whose underlying assets include Plan assets by reason of a Plan's
investment in the entity. By its acceptance of such Certificate, each
Certificateholder will be deemed to have represented and warranted that it is
not a Plan.
PLAN OF DISTRIBUTION
On the terms and conditions set forth in an underwriting agreement
with respect to the Notes, if any, of a given series and an underwriting
agreement with respect to the Certificates of such series (collectively, the
"UNDERWRITING AGREEMENTS"), the Trust Depositor will agree to cause the
related Trust to sell to the underwriters named therein and in the related
Prospectus Supplement, and each of such underwriters will severally agree to
purchase, the principal amount of each class of Notes and Certificates, as
the case may be, of the related series set forth in such underwriting
agreements and in such Prospectus Supplement.
In each of the Underwriting Agreements with respect to any given
series of Securities, the several underwriters will agree, subject to the
terms and conditions set forth therein, to purchase all the Notes and
Certificates, as the case may be, described therein which are offered hereby
and by the related Prospectus Supplement if any of such Notes and
Certificates, as the case may be, are purchased.
Each Prospectus Supplement will either (i) set forth the price at
which each class of Notes and Certificates, as the case may be, being offered
thereby will be offered to the public and any concessions that may be offered
to certain broker-dealers participating in the offering of such Notes and
Certificates or (ii) specify that the related Notes and Certificates, as the
case may be, are to be resold by the underwriters in negotiated transactions
at varying prices to be determined at the time of such sale. After the
initial public offering of any such Notes and Certificates, such public
offering prices and such concessions may be changed.
Each Underwriting Agreement will provide that the Trust Depositor
will indemnify the underwriters against certain civil liabilities, including
liabilities under the Securities Act, or contribute to payments the several
underwriters may be required to make in respect thereof.
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Each Trust may, from time to time, invest the funds in its Trust
Accounts in Eligible Investments acquired from such underwriters or from the
Trust Depositor.
Pursuant to each Underwriting Agreement with respect to a given
series of Securities, the closing of the sale of any class of Securities
subject to such Underwriting Agreement will be conditioned on the closing of
the sale of all other such classes of Securities of that series.
The place and time of delivery for the Securities in respect of
which this Prospectus is delivered will be set forth in the related
Prospectus Supplement.
LEGAL MATTERS
Certain legal matters relating to the Securities of any series will
be passed upon for the related Trust, the Trust Depositor, the Servicer and
the Administrator by Winston & Strawn, Chicago, Illinois including providing
an unqualified opinion with respect to the legality of the Securities issued
by a Trust, and for the underwriters for such series by Brown & Wood LLP, New
York, New York.
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INDEX OF TERMS
<TABLE>
<S> <C>
ADMINISTRATION AGREEMENT.........................................................................................44
ADMINISTRATION FEE...............................................................................................44
ADMINISTRATOR....................................................................................................44
ADVANCE...........................................................................................................8
APPLICABLE TRUSTEE................................................................................................3
BASE RATE........................................................................................................27
BUELL.............................................................................................................6
CALCULATION AGENT................................................................................................27
CALCULATION DATE.........................................................................................28, 29, 30
CD RATE......................................................................................................27, 28
CD RATE DETERMINATION DATE.......................................................................................27
CD RATE SECURITY.................................................................................................27
CERTIFICATE BALANCE...............................................................................................5
CERTIFICATE DISTRIBUTION ACCOUNT.................................................................................36
CERTIFICATE POOL FACTOR..........................................................................................20
CERTIFICATEHOLDER................................................................................................10
CLOSING DATE......................................................................................................4
CODE.............................................................................................................47
COLLATERAL REINVESTMENT ACCOUNT...................................................................................7
COLLECTION ACCOUNT...............................................................................................36
COMMERCIAL PAPER RATE............................................................................................28
COMMERCIAL PAPER RATE DETERMINATION DATE.........................................................................28
COMMERCIAL PAPER RATE SECURITY...................................................................................27
COMMISSION........................................................................................................2
COMPANY...........................................................................................................3
COMPOSITE QUOTATIONS.............................................................................................27
CONTRACTS......................................................................................................6, 7
CUTOFF DATES.....................................................................................................12
DEFINITIVE CERTIFICATES..........................................................................................31
DEFINITIVE NOTES.................................................................................................31
DEFINITIVE SECURITIES............................................................................................31
DEPOSITORY.......................................................................................................21
DISTRIBUTION DATE................................................................................................22
DTC..............................................................................................................16
DUE PERIOD.......................................................................................................38
EAGLEMARK.........................................................................................................3
EAGLEMARK FINANCIAL...............................................................................................3
EARLY AMORTIZATION EVENT..........................................................................................6
ELIGIBLE DEPOSIT ACCOUNT.........................................................................................37
ELIGIBLE INVESTMENTS.............................................................................................37
ERISA............................................................................................................10
EVENTS OF DEFAULT................................................................................................22
FASIT.............................................................................................................3
FEDERAL FUNDS RATE...............................................................................................29
FEDERAL FUNDS RATE DETERMINATION DATE............................................................................29
FEDERAL FUNDS RATE SECURITY......................................................................................27
FEDERAL TAX COUNSEL..............................................................................................48
FIXED RATE SECURITIES............................................................................................26
FLOATING RATE SECURITIES.........................................................................................26
FOREIGN PERSON...................................................................................................51
FTC RULE.........................................................................................................47
FUNDING PERIOD....................................................................................................6
GRANTOR TRUST.....................................................................................................3
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H.15(519)........................................................................................................27
INDENTURE.........................................................................................................3
INDEX MATURITY...................................................................................................27
INDIRECT PARTICIPANTS............................................................................................31
INITIAL CONTRACTS.................................................................................................6
INITIAL CUTOFF DATE...............................................................................................6
INITIAL POOL BALANCE.............................................................................................44
INSOLVENCY EVENT.................................................................................................19
INTEREST RATE.....................................................................................................4
INTEREST RESET DATE..............................................................................................27
INTEREST RESET PERIOD............................................................................................27
INVESTMENT EARNINGS..............................................................................................37
INVESTMENT INCOME.................................................................................................7
IRS..............................................................................................................47
LIBOR............................................................................................................29
LIBOR BUSINESS DAY...............................................................................................29
LIBOR DETERMINATION DATE.........................................................................................29
LIBOR SECURITY...................................................................................................27
LIEN CERTIFICATE.................................................................................................34
MANDATORY SPECIAL REDEMPTION.....................................................................................12
MONEY MARKET YIELD...............................................................................................28
MOTORCYCLES.......................................................................................................6
NOTE DISTRIBUTION ACCOUNT........................................................................................36
NOTE POOL FACTOR.................................................................................................20
NOTEHOLDER.......................................................................................................10
OBLIGOR...........................................................................................................9
OID..............................................................................................................49
OTHER MANUFACTURERS...............................................................................................6
OWNER TRUST.......................................................................................................3
PASS-THROUGH RATE.................................................................................................5
PERFORMANCE......................................................................................................18
POOL BALANCE.....................................................................................................15
POOLING AND SERVICING AGREEMENT...................................................................................3
PRE-FUNDED AMOUNT.................................................................................................6
PRE-FUNDING ACCOUNT...............................................................................................6
PURCHASE AMOUNT..................................................................................................35
RATING AGENCY....................................................................................................11
REGISTRAR OF TITLES..............................................................................................34
REGISTRATION STATEMENT............................................................................................2
RELATED DOCUMENTS................................................................................................24
RESERVE FUND.....................................................................................................39
REVOLVING PERIOD..................................................................................................6
SALE AND SERVICING AGREEMENT......................................................................................6
SCHEDULE OF CONTRACTS............................................................................................33
SECURITIES ACT....................................................................................................2
SECURITY OWNERS..................................................................................................30
SECURITYHOLDERS..................................................................................................12
SERVICER..........................................................................................................3
SERVICER DEFAULT.................................................................................................41
SERVICING FEE....................................................................................................38
SERVICING FEE RATE...............................................................................................38
SPREAD...........................................................................................................27
SPREAD MULTIPLIER................................................................................................27
STRIP CERTIFICATES................................................................................................5
STRIP NOTES.......................................................................................................4
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<PAGE>
SUBSEQUENT CONTRACTS..............................................................................................6
SUBSEQUENT PURCHASE AGREEMENT....................................................................................14
SUBSEQUENT TRANSFER DATE.........................................................................................12
TELERATE PAGE 3750...............................................................................................29
TRANSFER AND SALE AGREEMENT.......................................................................................7
TREASURY BILLS...................................................................................................30
TREASURY RATE....................................................................................................30
TREASURY RATE DETERMINATION DATE.................................................................................30
TREASURY RATE SECURITY...........................................................................................27
TRUST ACCOUNTS...................................................................................................37
TRUST AGREEMENT...................................................................................................3
UCC..............................................................................................................14
UNDERWRITING AGREEMENTS..........................................................................................60
63
<PAGE>
REPORTS TO SECURITYHOLDERS........................................................................................2
AVAILABLE INFORMATION.............................................................................................2
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...................................................................2
SUMMARY OF TERMS..................................................................................................3
RISK FACTORS.....................................................................................................11
THE TRUSTS.......................................................................................................16
HARLEY-DAVIDSON MOTORCYCLES......................................................................................17
OTHER MANUFACTURERS..............................................................................................17
THE CONTRACTS....................................................................................................18
WEIGHTED AVERAGE LIFE OF THE SECURITIES..........................................................................18
POOL FACTORS AND TRADING INFORMATION.............................................................................19
USE OF PROCEEDS..................................................................................................19
HARLEY-DAVIDSON FINANCIAL SERVICES, INC.; HARLEY-DAVIDSON CREDIT CORP.; AND THE TRUST DEPOSITORS.................19
DESCRIPTION OF THE NOTES.........................................................................................20
DESCRIPTION OF THE CERTIFICATES..................................................................................24
CERTAIN INFORMATION REGARDING THE SECURITIES.....................................................................25
DESCRIPTION OF THE TRANSFER AND SALE AGREEMENTS..................................................................32
DESCRIPTION OF THE SALE AND SERVICING AGREEMENTS AND POOLING AND SERVICING AGREEMENTS............................34
CERTAIN LEGAL ASPECTS OF THE CONTRACTS...........................................................................43
FEDERAL INCOME TAX CONSEQUENCES..................................................................................46
OWNER TRUSTS.....................................................................................................47
GRANTOR TRUSTS...................................................................................................55
TAX TREATMENT OF A FASIT.........................................................................................57
CERTAIN STATE TAX CONSEQUENCES...................................................................................58
ERISA CONSIDERATIONS.............................................................................................58
PLAN OF DISTRIBUTION.............................................................................................59
LEGAL MATTERS....................................................................................................60
</TABLE>
<PAGE>
UNTIL 90 DAYS AFTER THE DATE OF THIS PROSPECTUS SUPPLEMENT, ALL DEALERS
EFFECTING TRANSACTIONS IN THE SECURITIES OFFERED BY THIS PROSPECTUS SUPPLEMENT,
WHETHER OR NOT PARTICIPATING IN THIS DISTRIBUTION, MAY BE REQUIRED TO DELIVER
THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS. THIS IS IN ADDITION TO THE
OBLIGATION OF DEALERS TO DELIVER THIS PROSPECTUS SUPPLEMENT AND THE PROSPECTUS
WHEN ACTING AS UNDERWRITERS AND WITH RESPECT TO THEIR UNSOLD ALLOTMENTS OR
SUBSCRIPTIONS.
$285,000,000
HARLEY-DAVIDSON EAGLEMARK
MOTORCYCLE TRUST 2000-1
$182,000,000 6.88% HARLEY-DAVIDSON MOTORCYCLE CONTRACT BACKED NOTES, CLASS A-1
$85,900,000 7.14% HARLEY-DAVIDSON MOTORCYCLE CONTRACT BACKED NOTES, CLASS A-2
$17,100,000 7.79% HARLEY-DAVIDSON MOTORCYCLE CONTRACT BACKED CERTIFICATES
HARLEY-DAVIDSON CREDIT CORP.
SELLER AND SERVICER
EAGLEMARK CUSTOMER
FUNDING CORPORATION-IV
TRUST DEPOSITOR
---------------------
PROSPECTUS SUPPLEMENT
---------------------
SALOMON SMITH BARNEY
FIRST UNION SECURITIES, INC.
