EXHIBIT 4.3


 


EXECUTION COPY


 


CREDIT AGREEMENT


 


Dated as of September 16, 2004


 


among


 


HARLEY-DAVIDSON FUNDING CORP., as the U.S. Borrower,


 


HARLEY-DAVIDSON FINANCIAL SERVICES EUROPE LIMITED, as the U.K.

Borrower,


 


and


 


THE TO BE
DESIGNATED CANADIAN BORROWER, as the Canadian Borrower,


 


HARLEY-DAVIDSON FINANCIAL SERVICES, INC.,


 


HARLEY-DAVIDSON FINANCIAL SERVICES INTERNATIONAL, INC.
and


 


HARLEY-DAVIDSON
CREDIT CORP.,

as Guarantors,


 


 


THE INSTITUTIONS
FROM TIME TO TIME PARTY HERETO,

as Lenders,


 


 


JPMORGAN CHASE BANK,

as Global Administrative Agent and Global Swing Line Lender,


 


CITIBANK, N.A.,

as Syndication Agent and


 


BNP PARIBAS,

as Documentation Agent


 


J.P. MORGAN
SECURITIES INC. AND CITIGROUP GLOBAL MARKETS, INC.,

as Co-Lead Arrangers and Joint Book Runners


 





















 


TABLE OF CONTENTS


 


	
  ARTICLE I

  	
  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  1.1

  	
  Certain Defined Terms

  	
   

  
	
   

  	
  1.2

  	
  Currency Equivalents

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
  THE CREDITS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Syndicated Global Loans

  	
   

  
	
   

  	
  2.2

  	
  Syndicated Canadian
  Advances

  	
   

  
	
   

  	
  2.3

  	
  Payments of Loans

  	
   

  
	
   

  	
  2.4

  	
  Reduction/Increase
  of Commitments

  	
   

  
	
   

  	
  2.5

  	
  Method of Borrowing
  Advances

  	
   

  
	
   

  	
  2.6

  	
  Method
  of Selecting Types and Interest Periods; Determination of Applicable Margins

  	
   

  
	
   

  	
  2.7

  	
  Minimum
  Amount of Each Syndicated Global Advance and Syndicated Canadian Advance

  	
   

  
	
   

  	
  2.8

  	
  Method
  of Selecting Types and Interest Periods for Conversion and Continuation of
  Syndicated Global Advances, Syndicated Canadian Advances and Swing Line Loans

  	
   

  
	
   

  	
  2.9

  	
  Swing Line Loans

  	
   

  
	
   

  	
  2.10

  	
  The Bid Rate Advances

  	
   

  
	
   

  	
  2.11

  	
  Default Rate

  	
   

  
	
   

  	
  2.12

  	
  Method of Payment

  	
   

  
	
   

  	
  2.13

  	
  Notes, Telephonic
  Notices

  	
   

  
	
   

  	
  2.14

  	
  Promise
  to Pay; Interest and Fees; Interest Payment Dates; Interest and Fee Basis;
  Loan Accounts

  	
   

  
	
   

  	
  2.15

  	
  Notification
  of Advances, Interest Rates, Prepayments and Aggregate Commitment Reductions

  	
   

  
	
   

  	
  2.16

  	
  Lending Installations

  	
   

  
	
   

  	
  2.17

  	
  Non-Receipt
  of Funds by the Global Administrative Agent

  	
   

  
	
   

  	
  2.18

  	
  Termination Date

  	
   

  
	
   

  	
  2.19

  	
  Judgment Currency

  	
   

  
	
   

  	
  2.20

  	
  Intentionally Omitted

  	
   

  
	
   

  	
  2.21

  	
  Canadian Borrower
  as Borrower

  	
   

  
	
   

  	
  2.22

  	
  Termination as Borrower

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  CHANGE IN
  CIRCUMSTANCES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Yield Protection

  	
   

  
	
   

  	
  3.2

  	
  Changes in
  Capital Adequacy Regulations

  	
   

  
	
   

  	
  3.3

  	
  Availability of
  Types of Advances

  	
   

  
	
   

  	
  3.4

  	
  Funding Indemnification

  	
   

  



 


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  3.5

  	
  Taxes

  	
   

  
	
   

  	
  3.6

  	
  Mitigation;
  Lender Statements; Survival of Indemnity

  	
   

  
	
   

  	
  3.7

  	
  Non-U.S. Reserve
  Costs or Fees

  	
   

  
	
   

  	
  3.8

  	
  Replacement of
  Affected Lenders

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  CONDITIONS
  PRECEDENT

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Initial Loans

  	
   

  
	
   

  	
  4.2

  	
  Each Loan

  	
   

  
	
   

  	
  4.3

  	
  Initial
  Advance to the Canadian Borrower

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Corporate
  Existence and Standing

  	
   

  
	
   

  	
  5.2

  	
  Authorization and
  Validity

  	
   

  
	
   

  	
  5.3

  	
  No Conflict; Government Consent

  	
   

  
	
   

  	
  5.4

  	
  Financial Statements

  	
   

  
	
   

  	
  5.5

  	
  Material Adverse Change

  	
   

  
	
   

  	
  5.6

  	
  Taxes

  	
   

  
	
   

  	
  5.7

  	
  Litigation and Contingent Liabilities

  	
   

  
	
   

  	
  5.8

  	
  Subsidiaries

  	
   

  
	
   

  	
  5.9

  	
  ERISA

  	
   

  
	
   

  	
  5.10

  	
  Accuracy of Information

  	
   

  
	
   

  	
  5.11

  	
  Securities Activities

  	
   

  
	
   

  	
  5.12

  	
  Material Agreements

  	
   

  
	
   

  	
  5.13

  	
  Compliance with Laws

  	
   

  
	
   

  	
  5.14

  	
  Assets and Properties

  	
   

  
	
   

  	
  5.15

  	
  Statutory
  Indebtedness Restrictions

  	
   

  
	
   

  	
  5.16

  	
  Foreign Employee
  Benefit Matters

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  6.1

  	
  Reporting

  	
   

  
	
   

  	
  6.2

  	
  Affirmative Covenants

  	
   

  
	
   

  	
  6.3

  	
  Negative Covenants

  	
   

  
	
   

  	
  6.4

  	
  Financial Covenants

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  DEFAULTS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  7.1

  	
  Defaults

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  ACCELERATION,
  DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Remedies

  	
   

  
	
   

  	
  8.2

  	
  Defaulting Lender

  	
   

  
	
   

  	
  8.3

  	
  Amendments

  	
   

  
	
   

  	
  8.4

  	
  Preservation of Rights

  	
   

  



 


ii





















 


	
  ARTICLE IX

  	
  GENERAL PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Survival of
  Representations

  	
   

  
	
   

  	
  9.2

  	
  Governmental Regulation

  	
   

  
	
   

  	
  9.3

  	
  Headings

  	
   

  
	
   

  	
  9.4

  	
  Entire Agreement

  	
   

  
	
   

  	
  9.5

  	
  Several Obligations;
  Benefits of this Agreement

  	
   

  
	
   

  	
  9.6

  	
  Expenses; Indemnification

  	
   

  
	
   

  	
  9.7

  	
  Numbers of Documents

  	
   

  
	
   

  	
  9.8

  	
  Accounting

  	
   

  
	
   

  	
  9.9

  	
  Severability of
  Provisions

  	
   

  
	
   

  	
  9.10

  	
  Nonliability of Lenders

  	
   

  
	
   

  	
  9.11

  	
  CHOICE OF LAW

  	
   

  
	
   

  	
  9.12

  	
  WAIVER OF JURY TRIAL

  	
   

  
	
   

  	
  9.13

  	
  No Strict Construction

  	
   

  
	
   

  	
  9.14

  	
  USA PATRIOT ACT

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE X

  	
  THE
  GLOBAL ADMINISTRATIVE AGENT

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  10.1

  	
  Appointment;
  Nature of Relationship

  	
   

  
	
   

  	
  10.2

  	
  Powers

  	
   

  
	
   

  	
  10.3

  	
  General Immunity

  	
   

  
	
   

  	
  10.4

  	
  No Responsibility for Loans,
  Creditworthiness, Recitals, Etc.

  	
   

  
	
   

  	
  10.5

  	
  Action on Instructions of
  Lenders

  	
   

  
	
   

  	
  10.6

  	
  Employment of the Global
  Administrative Agent and Counsel

  	
   

  
	
   

  	
  10.7

  	
  Reliance on
  Documents; Counsel

  	
   

  
	
   

  	
  10.8

  	
  The Global
  Administrative Agent’s Reimbursement and Indemnification

  	
   

  
	
   

  	
  10.9

  	
  Rights as a Lender

  	
   

  
	
   

  	
  10.10

  	
  Lender Credit Decision

  	
   

  
	
   

  	
  10.11

  	
  Successor Global Administrative
  Agent

  	
   

  
	
   

  	
  10.12

  	
  Co-Agents,
  Documentation Agent, Syndication Agent, etc.

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XI

  	
  SETOFF;
  RATABLE PAYMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  11.1

  	
  Setoff

  	
   

  
	
   

  	
  11.2

  	
  Ratable Payments

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XII

  	
  GUARANTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  	
  BENEFIT
  OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  13.1

  	
  Successors and Assigns

  	
   

  
	
   

  	
  13.2

  	
  Participations

  	
   

  
	
   

  	
  13.3

  	
  Assignments

  	
   

  
	
   

  	
  13.4

  	
  Confidentiality

  	
   

  
	
   

  	
  13.5

  	
  Dissemination of
  Information

  	
   

  



 


iii





















 


	
   

  	
  13.6

  	
  Non-Use of HDFS’
  Licensed Marks

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XIV

  	
  NOTICES

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  14.1

  	
  Giving Notice

  	
   

  
	
   

  	
  14.2

  	
  Change of Address

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE XV

  	
  COUNTERPARTS

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  15.1

  	
  Counterparts

  	
   

  



 


iv





















 


EXHIBITS AND SCHEDULES


 


Exhibits


 


	
  EXHIBIT
  A

  	
   

  	
  —

  	
   

  	
  Commitments

  (Definitions)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT
  B-1

  	
   

  	
  —

  	
   

  	
  Form
  of Syndicated Global Note

  (Definitions)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT
  B-2

  	
   

  	
  —

  	
   

  	
  Form
  of Bid Rate Note

  (Definitions)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT
  C

  	
   

  	
  —

  	
   

  	
  Form
  of Assignment Agreement

  (§13.3)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT
  D

  	
   

  	
  —

  	
   

  	
  List
  of Closing Documents

  (§ 4.1)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT
  E

  	
   

  	
  —

  	
   

  	
  Form
  of Officer’s Certificate

  (§§ 4.2, 6.1(A)(iv))

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT
  F

  	
   

  	
  —

  	
   

  	
  Form
  of Compliance Certificate

  (§§ 4.2, 6.1(A)(iv))

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT
  G

  	
   

  	
  —

  	
   

  	
  Form
  of Syndicated Canadian Addendum

  (Definitions)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT
  H

  	
   

  	
  —

  	
   

  	
  Form
  of Assumption Letter

  (Definitions)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EXHIBIT
  I

  	
   

  	
  —

  	
   

  	
  Form
  of Commitment and Acceptance

  (§ 2.4(b))

  



 


v





















 


Schedules


 


	
  Schedule I

  	
   

  	
  —

  	
   

  	
  Funding
  Protocols re: Syndicated Global Loans and Syndicated

  Canadian Loans (Definitions, § 2.6)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule II

  	
   

  	
  —

  	
   

  	
  Funding
  Protocols re: Swing Line Loans (§ 2.9)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule III

  	
   

  	
  —

  	
   

  	
  Mandatory
  Cost (Definitions)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 1.1.3

  	
   

  	
  —

  	
   

  	
  Permitted
  Existing Liens (Definitions)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 5.6

  	
   

  	
  —

  	
   

  	
  Taxes
  (§ 5.6)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 5.8

  	
   

  	
  —

  	
   

  	
  Subsidiaries
  (§ 5.8)

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Schedule 6.3

  	
   

  	
  —

  	
   

  	
  Intercompany
  Subordination Terms (§ 6.3)

  
	
   

  	
   

  	
   

  	
   

  	
   

  



 


vi





















 


CREDIT AGREEMENT


 


This Credit Agreement
dated as of September 16, 2004 is entered into among Harley-Davidson
Funding Corp., a Nevada corporation, Harley-Davidson Financial Services Europe
Limited, a company incorporated under the laws of England and Wales, the to be
designated Canadian Borrower, if any, Harley-Davidson Financial Services, Inc.,
a Delaware corporation, Harley-Davidson Financial Services International, Inc.,
a Delaware corporation, Harley-Davidson Credit Corp., a Nevada corporation, the
to be designated Canadian Guarantor, if any, the institutions from time to time
a party hereto as Lenders, whether by execution of this Agreement or an
assignment and acceptance pursuant to Section 13.3, JPMorgan Chase
Bank, as the Global Administrative Agent and the Global Swing Line Lender,
Citibank, N.A., in its capacity as Syndication Agent and BNP Paribas, in its
capacity as Documentation Agent.  The
parties hereto agree as follows:


 


ARTICLE I  DEFINITIONS


 


1.1  Certain Defined Terms.  In addition to the terms defined in other
sections of this Agreement, the following terms used in this Agreement shall have
the following meanings, applicable both to the singular and the plural forms of
the terms defined:


 


As used in this
Agreement:


 


“Absolute Rate Auction” has the
meaning specified in Section 2.10(b)(i) hereof.


 


“Acquisition” means any transaction,
or any series of related transactions, by which any Borrower or any of its
Subsidiaries (a) acquires any going business or all or substantially all of the
assets of any firm, corporation or division thereof which constitutes a going
business, whether through purchase of assets, merger or otherwise or (b)
directly or indirectly acquires (in one transaction or as the most recent
transaction in a series of transactions) at least a majority (in number of
votes) of the securities of a corporation which have ordinary voting power for
the election of directors (other than securities having such power only by
reason of the happening of a contingency) or a majority (by percentage or
voting power) of the outstanding partnership interests of a partnership or a
majority (by percentage or voting power) of the outstanding ownership interests
of a limited liability company.


 


“Advance” means a Bid Rate Advance,
Syndicated Canadian Advance or Syndicated Global Advance.


 


“Affiliate” of any Person means any
other Person directly or indirectly controlling, controlled by or under common
control with such Person.  A Person shall
be deemed to control another Person if the controlling Person is the “beneficial
owner” (as defined in Rule 13d-3 under the Securities Exchange Act of 1934) of
greater than five percent (5%) or more of any class of voting securities (or
other voting interests) of the controlled Person or possesses, directly or
indirectly, the power to direct or cause the direction of the management or
policies of the controlled Person, whether through ownership of stock,
membership, ownership or other equity interests, by contract or


 





















 


otherwise.  In addition, each
director of any of the Companies or any Subsidiary of any of the Companies
shall be deemed to be an Affiliate of each Borrower.


 


“Agreed Currencies” means  (i) Dollars, (ii) euro, (iii) so long as each
such currency remains an Eligible Currency, Pounds Sterling, Canadian Dollars
and Swiss Francs and (iv) any other
Eligible Currency which any Global Borrower requests the Global Administrative
Agent to include as an Agreed Currency hereunder and which is acceptable to
each Syndicated Global Lender; provided that the Global Administrative Agent
shall promptly notify each Syndicated Global Lender of each such request and each
Syndicated Global Lender shall be deemed not to have agreed to each such
request unless its written consent thereto has been received by the Global
Administrative Agent within five (5) Business Days from the date of such
notification by the Global Administrative Agent to such Syndicated Global
Lender.


 


“Aggregate Commitment” means the
aggregate of the Commitments of all the Syndicated Global Lenders, as reduced
or increased from time to time pursuant to the terms hereof.  The initial Aggregate Commitment is
$1,100,000,000.00.


 


“Aggregate Outstanding Credit Exposure”
is defined in Section 2.4(b)(ii) hereof.


 


“Agreement” means this Credit
Agreement, as it may be amended, restated or otherwise modified and in effect
from time to time.


 


“Agreement Accounting Principles”
means generally accepted accounting principles as in effect as of the date of
this Agreement in the United States, applied in a manner consistent with that
used by Harley, when applied to Harley and otherwise HDFS in its preparation of
its audited financial statements for the year ended December 31, 2003.


 


“Alternate Base Rate” means, for any
day, a fluctuating interest rate per annum (rounded upwards, if necessary, to
the next 1/16 of 1%) as shall be in effect from time to time, which rate per annum
shall at all times be equal to the greatest of (a) the Prime Rate in effect on
such day; and (b) the sum of one-half of one percent (0.50%) and the Federal
Funds Effective Rate in effect on such day. 
For purposes hereof, “Prime Rate” shall mean the rate of interest
per annum announced from time to time by JPMorgan Chase Bank or its parent as
its prime rate (which is not necessarily the lowest rate charged to any
customers) in effect at its principal office in New York City, changing when
and as said prime rate changes; provided that, with respect to Base Rate
Loans and Base Rate Advances made by the Syndicated Canadian Banks to the
Canadian Borrower, “Prime Rate” shall mean the rate of interest per
annum announced from time to time by JPMorgan Chase Bank as its prime rate
(which is not necessarily the lowest rate charged to any customers) in effect
at its principal office in Toronto, Ontario for loans in Dollars in Canada,
changing when and as said prime rate changes. 
Each change in the Prime Rate shall be effective on the date such change
is announced as being effective. “Federal Funds Effective Rate” shall
mean, for any day, a fluctuating interest rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with


 


2





















 


members of the Federal Reserve System arranged by Federal funds
brokers, as published on the next succeeding Business Day by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day
which is a Business Day, the average of the quotations for such day on such
transactions received by the Global Administrative Agent from three Federal
funds brokers of recognized standing selected by the Global Administrative
Agent.  If for any reason the Global
Administrative Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Federal
Funds Effective Rate for any reason, including the inability of the Global
Administrative Agent to obtain sufficient quotations in accordance with the
terms hereof, the Alternate Base Rate shall be determined without regard to clause
(b) of the first sentence of this definition until the circumstances giving
rise to such inability no longer exist. 
Any change in the Alternate Base Rate due to a change in the Prime Rate
or the Federal Funds Effective Rate shall be effective on the effective date of
such change.


 


“Applicable Agreed Currency” means
(i) Dollars, euro and, so long as such currency remains an Eligible Currency,
Canadian Dollars, Pounds Sterling and Swiss Francs in the case of Syndicated
Global Loans to the U.S. Borrower, (ii) Dollars, euro and so long as such
currency remains an Eligible Currency, Pounds Sterling and Swiss Francs in the
case of Syndicated Global Loans to the U.K. Borrower and (iii) any other Agreed
Currency described in clause (iv) of the definition of Agreed Currency.


 


“Applicable Facility Fee” as at any
date of determination, shall be the rate per annum then applicable in the
determination of the amount payable under Section 2.14(C) with
respect to the Aggregate Commitment, determined in accordance with the
provisions of Section 2.6(b).


 


“Applicable Margin” is defined in Section 2.6(b)
hereof.


 


“Approved Fund” means any Person
(other than a natural person) that is engaged in making, purchasing, holding or
investing in bank loans and similar extensions of credit in the ordinary course
of its business and that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.


 


“Arranger” means J.P. Morgan
Securities Inc. or Citigroup Global Markets, Inc. and “Arrangers”
means, collectively, J.P. Morgan Securities Inc. and Citigroup Global Markets,
Inc.


 


“Assumption Letter” means a letter
of the Canadian Borrower or the Canadian Guarantor addressed to the Lenders in
substantially the applicable form of Exhibit H hereto pursuant to which
the Canadian Borrower or Canadian Guarantor, as applicable, agrees to become a
Borrower or Guarantor (as applicable) and agrees to be bound by the terms and
conditions hereof as if originally a party hereto.


 


“Authorized Officer” means any of
the chief executive officer, chief financial officer, any vice president,
controller, treasurer or any other officer of the relevant


 


3





















 


Borrower from time to time designated by an Authorized Officer in
writing to the Global Administrative Agent as an Authorized Officer, acting
singly.


 


“Bankers’ Acceptance Advance” is defined in the Syndicated Canadian Addendum.


 


“Bankers’ Acceptance Loan” is defined in the Syndicated Canadian Addendum.


 


“Bankruptcy Code” is defined in Article XII
hereof.


 


“Base Rate Advance” means a Syndicated
Global Advance or Syndicated Canadian Advance which bears interest at the
Alternate Base Rate.


 


“Base Rate Loan” means a Syndicated
Global Loan or Syndicated Canadian Loan, or portion thereof which bears
interest at the Alternate Base Rate.


 


“Benefit Plan” means a defined
benefit plan as defined in Section 3(35) of ERISA (other than a
Multiemployer Plan) that is subject to Title IV of ERISA in respect of which
any of the Companies or any other member of the Controlled Group is, or within
the immediately preceding six (6) years was, an “employer” as defined in Section 3(5)
of ERISA.


 


“Bid Rate Advance” means a borrowing
consisting of simultaneous Bid Rate Loans to a Global Borrower in the same
currency from each of the Syndicated Global Lenders whose offer to make a Bid
Rate Loan as part of such borrowing has been accepted by such Global Borrower
under the applicable auction bidding procedure described in Section 2.10.


 


“Bid Rate Advance Borrowing Notice”
is defined in Section 2.10(b)(i) hereof.


 


“Bid Rate Loan” means a loan by a
Syndicated Global Lender to a Global Borrower as part of a Bid Rate Advance
resulting from the applicable auction bidding procedure described in Section 2.10.


 


“Bid Rate Note”  means a promissory note of a Global Borrower
payable to the order of any Syndicated Global Lender, in substantially the form
of Exhibit B-2 hereto, evidencing the indebtedness of such Global
Borrower to such Syndicated Global Lender resulting from the Bid Rate Loans
made by such Syndicated Global Lender to such Global Borrower.


 


“Bid Rate Reduction” means the
reduction in availability under the Aggregate Commitment as a result of
outstanding Bid Rate Loans.


 


“Borrower” means the U.S. Borrower,
the U.K. Borrower or the Canadian Borrower, if any, and “Borrowers”
means, collectively, the U.S. Borrower, the U.K. Borrower and the Canadian
Borrower, if any.


 


4





















 


“Borrowing Date” means a date on
which an Advance or a Loan is made hereunder.


 


“Borrowing Notice” means a
Syndicated Global Advance Borrowing Notice, a Syndicated Canadian Borrowing
Notice, a Bid Rate Advance Borrowing Notice, a Canadian Swing Line Borrowing
Notice, a U.K. Swing Line Borrowing Notice or a USD Swing Line Borrowing
Notice.


 


“Business Day” means (i) with
respect to any borrowing, payment or rate selection of Loans bearing interest
at the Eurocurrency Rate, a day (other than a Saturday or Sunday) on which
banks are generally open for commercial banking business in New York, New York
and on which dealings in United States Dollars and the other Agreed Currencies
are carried on in the London interbank market; (ii) with respect to any
borrowing or payment of any Canadian Dollar denominated Loan (or any other Loan
made by a Syndicated Canadian Bank to the Canadian Borrower), a day (other than
a Saturday or Sunday) on which banks are generally open for commercial banking
business in Toronto, Ontario; (iii) with respect to any borrowing or payment of
any euro denominated Loan, a Target Settlement Day, (iv) with respect to any
borrowing or payment of any Loan denominated in a currency other than Dollars,
Canadian Dollars and Pounds Sterling, a day on which the applicable
Eurocurrency Payment Office related to such currency is open for the
transaction of domestic and foreign exchange business and (v) for all other
purposes a day (other than a Saturday or Sunday) on which banks are generally
open for commercial banking business in New York, New York.


 


“Buying Lender” is defined in Section 2.4(b)(ii)
hereof.


 


“Calculation Date” means (i) with
respect to any Loan in any currency other than Dollars, the Business Day of the
making of such Loan with respect to the Agreed Currency in which such Loan is
being made and (ii) with respect to Loans, any other Business Day selected at
the option of the Global Administrative Agent or at the direction of the
Required Lenders.


 


“Canadian Borrower” means a direct
or indirect Subsidiary of HDFS, and its successors and permitted assigns, which
is organized under the laws of a jurisdiction located in Canada and which is
designated as the Canadian Borrower pursuant to and in accordance with Section 2.21.


 


“Canadian Dollars” and “Cdn. $” means the lawful currency
of Canada.


 


“Canadian Guarantor” means, if the
Canadian Borrower is a Subsidiary of a parent company organized under the laws
of a jurisdiction located in Canada, such parent company and its successors and
permitted assigns.


 


“Canadian Dollar Sublimit” means
$400,000,000.


 


“Canadian Prime Rate” means, as of
any day, the higher of (i) the rate of interest per annum publicly announced
from time to time by the Global Administrative Agent at is principal office in
Toronto, Ontario, as its “prime rate” for loans in Canadian


 


5





















 


Dollars in Canada, as in effect on such day, which rate may not be the
lowest rate charged by the Global Administrative Agent to any of its customers
and which Canadian Prime Rate shall change simultaneously with any change in
such announced rate and (ii) the sum of one percent (1%) plus one-month
CDOR in effect on such day.


 


“Canadian Prime Rate Advance” means
an Advance which bears interest at the Canadian Prime Rate.


 


“Canadian Prime Rate Loan” means a
Loan which bears interest at the Canadian Prime Rate.


 


“Canadian Swing Line Borrowing Notice”
is defined in Section 2.9.2 hereof.


 


“Canadian Swing Line Commitment”
means the obligation of the Global Swing Line Lender to make Canadian Swing
Line Loans to the Canadian Borrower and the U.S. Borrower, as requested by the
Canadian Borrower or the U.S. Borrower pursuant to Section 2.9, up
to a maximum principal amount of Cdn. $20,000,000 in the aggregate and on a
cumulative basis at any one time outstanding.


 


“Canadian Swing Line Loan” means a
Canadian Dollar denominated loan or Bankers’ Acceptance Loan made available to
the Canadian Borrower or the U.S. Borrower by the Global Swing Line Lender
pursuant to Section 2.9.2.


 


“Capitalized Lease” of a Person
means any lease of Property by such Person as lessee which would be capitalized
on a balance sheet of such Person prepared in accordance with Agreement
Accounting Principles.


 


“Capitalized Lease Obligations” of a
Person means the amount of the obligations of such Person under Capitalized
Leases which would be capitalized on a balance sheet of such Person prepared in
accordance with Agreement Accounting Principles.


 


“Cash Equivalents” means (i)
marketable direct obligations issued or unconditionally guaranteed by the
government of the United States or an instrumentality or agency thereof; (ii)
domestic and Eurocurrency certificates of deposit and time deposits, bankers’
acceptances and base rate certificates of deposit issued by any commercial bank
(a) organized under the laws of the United States, any state thereof or the District
of Columbia, or any of such entities’ respective branches or agencies and
having capital and surplus in an aggregate amount not less than $200,000,000
(fully protected against currency fluctuations for any such deposits with a
term of more than ten (10) days) or (b) organized under the laws of Canada,
Japan, or any country which is a member of the European Economic Community, or
its branches or agencies, and having capital and surplus in an aggregate amount
not less than $200,000,000 (fully protected against currency fluctuations for
any such deposits with a term of more than ten (10) days) provided the items
under this clause (b) shall constitute “Cash Equivalents” only to the
extent the Dollar Amount thereof does not exceed $10,000,000 in the aggregate;
(iii) shares of money market, mutual or similar funds having net assets in
excess of $500,000,000 maturing or being due or payable in full not more than
one hundred eighty


 


6





















 


(180) days after a Borrower’s acquisition thereof and the investments
of which are limited to investment grade securities (i.e., securities rated at
least Baa by Moody’s Investors Service, Inc. or at least BBB by Standard &
Poor’s Ratings Group) and (iv) commercial paper rated A-1 (or better) by
Standard & Poor’s Ratings Group or P-1 (or better) by Moody’s Investors
Services, Inc.; provided that the maturities of such Cash Equivalents
shall not exceed 365 days.


 


“CDOR” means the “CDOR Rate” (as
such term is defined in the Syndicated Canadian Addendum).


 


“CDOR Advance” means a Canadian
Dollar denominated Syndicated Canadian Advance which is a Bankers’ Acceptance
Advance.


 


“CDOR Loan” means a Canadian Dollar
denominated Syndicated Canadian Loan or Canadian Swing Line Loan (which is in each
case a Bankers’ Acceptance Loan) to the Canadian Borrower, or a portion
thereof.


 


“Change” is defined in Section 3.2
hereof.


 


“Change of Control” means any
transaction or event as a result of which: 
(i) Harley shall cease to own of record and beneficially, with sole
voting and dispositive power, in the aggregate, at least fifty-one percent
(51%) of the issued and outstanding class or classes of Capital Stock of HDFS
pursuant to which the holders thereof have, at the time of determination, the
general voting power under ordinary circumstances to elect the board of
directors (or similar governing body) (such percentage measured by voting power
rather than number of shares), (ii) HDFS shall cease to own of record and
beneficially, with sole voting and dispositive power, all of the issued and
outstanding Capital Stock of HDCC, (iii) HDFS and HDCC shall cease to own of
record and beneficially, with sole voting and dispositive power, all of the
issued and outstanding Capital Stock of the U.S. Borrower or (iv) HDFS,
directly or through one or more Subsidiaries, shall cease to own of record and
beneficially, with sole voting and dispositive power, all of the issues and
outstanding Capital Stock of any Foreign Borrower.


 


“Closing Date” means September 16,
2004.


 


“Code” means the Internal Revenue
Code of 1986, as amended, reformed or otherwise modified from time to time.


 


“Commission” means the Securities
and Exchange Commission and any Person succeeding to the functions thereof.


 


“Commitment” means, for each Syndicated
Global Lender, the obligation of such Syndicated Global Lender to make
Syndicated Global Loans and to purchase participations in Swing Line Loans and
Syndicated Canadian Loans in an amount not exceeding the Dollar Amount set
forth on Exhibit A to this Agreement opposite its name thereon under the
heading “Commitment” or contained in the Assignment and Acceptance by which it
became a Lender, as such amount may be modified from time to


 


7





















 


time
pursuant to the terms of this Agreement or to give effect to any applicable
Assignment and Acceptance.


 


“Commitment Increase Notice” is
defined in Section 2.4(b)(i) hereof.


 


“Company” means any Borrower or
Guarantor, individually, and “Companies”
means each of the Borrowers and Guarantors, collectively.


 


“Compliance Certificate” means a
certificate substantially in the form of Exhibit F delivered to the
Global Administrative Agent and each Lender by the U.S. Borrower pursuant to
the provisions of this Agreement and covering, among other things, its
compliance with the financial covenants contained in Section 6.4
and certain other provisions of this Agreement.


 


“Consolidated Debt” is defined in Section 6.4(A)
hereof.


 


“Consolidated Equity” is defined in Section 6.4(A)
hereof.


 


“Consolidated Net Income” of any
Person for any period means the net income (or loss) of such Person for such
period, as shall be determined in accordance with Agreement Accounting
Principles.


 


“Consolidated Net Worth” of any
Person means such Person’s consolidated shareholder’s equity, as shall be
determined in accordance with Agreement Accounting Principles.


 


“Consolidated Tangible Net Worth” is
defined in Section 6.4(A) hereof.


 


“Contaminant”
means any waste, pollutant, hazardous substance, toxic substance, hazardous
waste, special waste, petroleum or petroleum-derived substance or waste,
asbestos, polychlorinated biphenyls (“PCBs”), or any
constituent of any such substance or waste, and includes but is not limited to
these terms as defined in Environmental, Health or Safety Requirements of Law.


 


“Contingent Obligation”, as applied
to any Person, means any Contractual Obligation, contingent or otherwise, of
that Person with respect to any Indebtedness of another or other obligation or
liability of another, including, without limitation, any such Indebtedness,
obligation or liability of another directly or indirectly guaranteed, endorsed
(otherwise than for collection or deposit in the ordinary course of business),
co-made or discounted or sold with recourse by that Person, or in respect of
which that Person is otherwise directly or indirectly liable, including
Contractual Obligations (contingent or otherwise) arising through any agreement
to purchase, repurchase, or otherwise acquire such Indebtedness, obligation or
liability or any security therefor, or to provide funds for the payment or
discharge thereof (whether in the form of loans, advances, stock purchases,
capital contributions or otherwise), or to maintain solvency, assets, level of
income, or other financial condition, or to make payment other than for value
received.


 


8





















 


“Contractual Obligation”, as applied
to any Person, means any provision of any equity or debt securities issued by
that Person or any indenture, mortgage, deed of trust, security agreement,
pledge agreement, guaranty, contract, undertaking, agreement or instrument, in
any case in writing, to which that Person is a party or by which it or any of
its properties is bound, or to which it or any of its properties is subject.


 


“Controlled Group” means the group
consisting of (i) any corporation which is a member of the same controlled
group of corporations (within the meaning of Section 414(b) of the Code)
as any of the Companies and (ii) a partnership or other trade or business
(whether or not incorporated) which is under common control (within the meaning
of Section 414(c) of the Code) with any of the Companies.


 


“Conversion/Continuation Notice” is
defined in Section 2.8(D) hereof.


 


“Cure Loan” is defined in Section 8.2
hereof.


 


“Customary Permitted Contingent Obligations”
means (i) recourse obligations resulting from endorsement of negotiable
instruments for collection in the ordinary course of business; (ii)
obligations, warranties, and indemnities, not relating to Indebtedness of any
Person, which have been or are undertaken or made in the ordinary course of
business; (iii) Contingent Obligations of the Companies or any of their
Subsidiaries with respect to any Indebtedness permitted by this Agreement; (iv)
Contingent Obligations with respect to surety, appeal and performance bonds
obtained by any of the Companies or any of their Subsidiaries in the ordinary
course of business; (v) Permitted Securitization Recourse Obligations and (vi)
Contingent Obligations under credit, loan and other financing agreements which
by their express terms continue after the repayment in full of the financing
provided pursuant thereto, including without limitation all such Contingent
Obligations under the Existing Credit Agreements.


 


“Customary Permitted Liens” means:


 


(i)  Liens with respect to the payment of taxes,
assessments or governmental charges in all cases which are not yet due or which
are being contested in good faith by appropriate proceedings and with respect
to which adequate reserves or other appropriate provisions are being maintained
to the extent required by Agreement Accounting Principles;


 


(ii)  statutory or common law Liens of landlords
and Liens of suppliers, mechanics, carriers, materialmen, warehousemen or
workmen and other similar Liens imposed by law created in the ordinary course
of business for amounts not yet due (having regard to the custom in the
relevant jurisdiction for settlement of such amounts) or which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provisions are being maintained to the
extent required by Agreement Accounting Principles;


 


(iii)
Liens incurred or deposits made in the ordinary course of business in
connection with worker’s compensation, unemployment insurance or other types of
social security benefits or to secure the performance of bids, tenders, sales,
contracts


 


9





















 


(other than for the repayment of borrowed money), surety, appeal and
performance bonds; provided that (A) all such Liens do not in the
aggregate materially detract from the value of assets or Property of the
Companies and their Subsidiaries taken as a whole or materially impair the use
thereof in the operation of their businesses taken as a whole, and (B) all
Liens securing bonds to stay judgments or in connection with appeals that do
not secure at any time an aggregate amount exceeding $30,000,000;


 


(iv)
Permitted Real Property Encumbrances;


 


(v)  Liens of attachment or judgment with respect
to judgments, writs or warrants of attachment, or similar process against any
of the Companies or any of their Subsidiaries which do not constitute a Default
under Section 7.1(h);


 


(vi)  Liens arising from leases, subleases or
licenses granted to others which do not interfere in any material respect with
the business of the Companies or any of their Subsidiaries;


 


(vii)
any interest or title of the lessor in the Property subject to any operating
lease entered into by any of the Companies or any of their Subsidiaries in the
ordinary course of business.


 


(viii)
Liens in respect of an agreement to dispose of any asset, to the extent such
disposal is permitted by this Agreement;


 


(ix)
Liens arising under any retention of title arrangements entered into in the
ordinary course of business or over goods or documents of title to good arising
in the ordinary course of documentary credit transactions;


 


(x)
Liens arising due to any cash pooling, netting or composite accounting
arrangements between any one or more of the Borrowers and any of their
Subsidiaries or between any one or more of such entities and one or more banks
or other financial institutions where any such entity maintains deposits;


 


(xi)
customary rights of set off, revocation, refund or chargeback or similar rights
under deposit disbursement, concentration account agreements or under the UCC
(or comparable foreign law) or arising by operation of law of banks or other
financial institutions where any Borrower or any of its Subsidiaries maintains
deposit, disbursement or concentration accounts in the ordinary course of
business; and


 


(xii)
Liens securing obligations not constituting Indebtedness so long as the amount
of such obligations secured thereby do not exceed $10,000,000 at any time.


 


“Default” means an event described
in Article VII hereof.


 


“DOL” means the United States
Department of Labor and any Person succeeding to the functions thereof.


 


10





















 


“Dollar” and “$”
means dollars in the lawful currency of the United States of America.


 


“Dollar Amount” of any currency at
any date shall mean (i) the amount of such currency if such currency is Dollars
or (ii) the Equivalent Amount of Dollars if such currency is any currency other
than Dollars.


 


“Effective Commitment Amount” is
defined in Section 2.4(b)(i) hereof.


 


“Eligible Currency” means any
currency other than Dollars or euro that is readily available, freely traded,
in which deposits are customarily offered to banks in the London interbank
market, convertible into Dollars in the international interbank market and as
to which an Equivalent Amount may be readily calculated.  If, after the designation by the Lenders of
any currency as an Agreed Currency, currency control or other exchange
regulations are imposed in the country in which such currency is issued with
the result that different types of such currency are introduced, such country’s
currency is, in the determination of the Global Administrative Agent, no longer
readily available or freely traded or as to which, in the determination of the
Global Administrative Agent, an Equivalent Amount is not readily calculable,
then the Global Administrative Agent shall promptly notify the Syndicated
Global Lenders and each Global Borrower, and such country’s currency shall no
longer be an Agreed Currency until such time as all of the Lenders (in the case
of an Agreed Currency) agree to reinstate such country’s currency as an Agreed
Currency and promptly, but in any event within five (5) Business Days of
receipt of such notice from the Global Administrative Agent, the applicable
Borrower shall repay all Loans in such affected currency or convert such Loans
into Loans in Dollars or another Agreed Currency, subject to the other terms
contained in Article II.


 


“Environmental, Health or Safety Requirements of
Law” means all Requirements of Law derived from or relating to
federal, state, provincial and local laws and relevant foreign laws or
regulations relating to or addressing pollution or protection of the
environment, or protection of worker health or safety, including, but not
limited to, the Comprehensive Environmental Response, Compensation and
Liability Act, 42 U.S.C. § 9601 et  seq., the Occupational Safety
and Health Act of 1970, 29 U.S.C. § 651 et  seq., and the
Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901 et
seq., in each case including any amendments thereto, any successor
statutes, and any regulations or guidance promulgated thereunder, and any state
or local equivalent thereof.


 


“Equivalent Amount” of any currency
at any date shall mean the equivalent in Dollars of such currency, calculated
on the basis of the arithmetic mean of the buy and sell spot rates of exchange
of the Global Administrative Agent or an Affiliate of the Global Administrative
Agent, as applicable, in the London interbank market (or other market where the
Global Administrative Agent’s foreign exchange operations in respect of such
currency are then being conducted) for such other currency at or about 11:00
a.m. (local time applicable to the transaction in question) on the date on
which such amount is to be determined, rounded up to the nearest amount of such
currency as determined by the Global Administrative Agent from time to time; provided,
however, that if at the time


 


11





















 


of any such determination, for any reason, no such spot rate is being
quoted, the Global Administrative Agent or an Affiliate of the Global Administrative
Agent, may use any reasonable method it reasonably deems appropriate to
determine such amount, and such determination shall be conclusive absent
manifest error.


 


“ERISA” means the Employee
Retirement Income Security Act of 1974, as amended from time to time including
(unless the context otherwise requires) any rules or regulations promulgated
thereunder.


 


“ERISA Default Event” means
(a) any “reportable event”, as defined in Section 4043 of ERISA or
the regulations issued thereunder with respect to a Benefit Plan (other than an
event for which the 30-day notice period is waived); (b) the existence
with respect to any Benefit Plan of an “accumulated funding deficiency” (as
defined in Section 412 of the Code or Section 302 of ERISA), whether
or not waived; (c) the incurrence by any member of the Controlled Group of
any liability under Title IV of ERISA with respect to the termination of
any Benefit Plan; (d) the receipt by any member of the Controlled Group
from the PBGC or a plan administrator of any notice relating to an intention to
terminate any Benefit Plan or to appoint a trustee to administer any Benefit
Plan; (e) the incurrence by the any member of the Controlled Group of any
liability with respect to the complete withdrawal or partial withdrawal from
any Benefit Plan or Multiemployer Plan; or (f) the receipt by any member
of the Controlled Group of any notice, or the receipt by any Multiemployer Plan
from the any member of the Controlled Group of any notice, concerning a
determination that a Multiemployer Plan is, or is expected to be, insolvent or
in reorganization, within the meaning of Title IV of ERISA.


 


“EURIBOR” means the applicable
interest rate per annum determined by the Banking Federation of the European
Union for deposits in euro appearing on the applicable EURIBOR Reference Page
on such day (or if such day is not a Business Day, on the immediately preceding
Business Day)  as of the applicable
EURIBOR Fixing Time, in the approximate amount of the pro rata share of the
Global Administrative Agent (or any of its Affiliates) of such Eurocurrency
Rate Advance or Swing Line Loan, and, in each case, having a maturity
approximately equal to the requested Interest Period, provided
that, (i) if the applicable EURIBOR Reference Page is not available to the
Global Administrative Agent at or about the EURIBOR Fixing Time for any reason,
the applicable EURIBOR for the relevant Interest Period shall instead be the
applicable rate for deposits in euro offered to leading banks in the euro-zone
interbank market as reported by any other generally recognized financial
information service specified by the Global Administrative Agent as of the
applicable EURIBOR Fixing Time, and having a maturity approximately equal to
such Interest Period, and (ii) if no such rate is available, the applicable
EURIBOR for the relevant Interest Period shall instead be the interest rate per
annum equal to the arithmetic mean determined by the Global Administrative
Agent (rounded upwards to the nearest .001%) of the rates per annum at which
deposits in euro are offered by three (3) leading banks in the euro-zone
interbank market at the applicable EURIBOR Fixing Time to other leading banks
in the euro-zone interbank market in the approximate amount of JPMorgan Chase
Bank’s (or any of its Affiliates) relevant


 


12





















 


Eurocurrency Rate Loan, Swing Line Loan or Syndicated Canadian Loan
having a maturity approximately equal to such Interest Period.


 


“EURIBOR Fixing Time” means the
relevant currency fixing date and/or time described in Schedule I and Schedule II.


 


“EURIBOR Reference Page” means the
relevant page on the relevant screen described in Schedule I and Schedule II,
including in each case any successor or substitute screen, as applicable,
providing rate quotations comparable to those currently provided on such
screen, as determined by the Global Administrative Agent from time to time for
purposes of providing quotations of interest rates at which deposits in euro
are offered to leading banks in the euro-zone interbank market.


 


“euro” means the single currency of
the participating member states of the European Union.


 


“Eurocurrency Base Rate” means, with
respect to any Eurocurrency Rate Advance or any Swing Line Loan for any
specified Interest Period, or a Bid Rate Advance pursuant to an Indexed Rate
Auction for an Interest Period designated by the relevant Borrower, in each
case with respect to an applicable Agreed Currency, (i) LIBOR with respect to
any such currency other than euro and (ii) EURIBOR solely with respect to euro.


 


“Eurocurrency Payment Office” of the
Global Administrative Agent shall mean, for each of the Agreed Currencies, the
office, branch or affiliate of the Global Administrative Agent, as it may from
time to time specify to the U.S. Borrower and each Syndicated Global Lender as
its Eurocurrency Payment Office.


 


“Eurocurrency Rate” means, with
respect to a Swing Line Loan, a Eurocurrency Rate Loan and a Eurocurrency Rate
Advance for the relevant Interest Period, the sum of (i) the quotient of (a)
the Eurocurrency Base Rate applicable to such Interest Period, divided by (b)
one minus the Reserve Requirement (expressed as a decimal) applicable to
such Interest Period, plus (ii) the Applicable Margin, plus (iii)
in the case of Loans and Advances by a Lender from its office or branch in
England, the Mandatory Cost.  The
Eurocurrency Rate shall be rounded to the next higher multiple of 1/16 of 1% if
the rate is not such a multiple.


 


“Eurocurrency Rate Advance” means a
Syndicated Global Advance or Syndicated Canadian Advance which bears interest
at the Eurocurrency Rate.


 


“Eurocurrency Rate Loan” means a
Swing Line Loan, Syndicated Global Loan or Syndicated Canadian Loan, or portion
thereof, which bears interest at the Eurocurrency Rate.


 


“Exchange Rate” means with respect
to any Eligible Currency on a particular date, the rate at which such Eligible
Currency may be exchanged into Dollars, calculated on the basis of the
arithmetical mean of the buy and sell spot rates of exchange of the Global
Administrative Agent in the London interbank market (or other market where the


 


13





















 


Global Administrative Agent’s foreign currency exchange operations in
respect of such Eligible Currency are then being conducted) for such Eligible
Currency at or about 1:00 p.m. local time, on such date for the purchase of
Dollars with such Eligible Currency; provided, however, that if
at the time of any such determination, for any reason, no such spot rate is
being quoted, the Global Administrative Agent may use any reasonable method it
deems appropriate to determine such rate, and such determination shall be
conclusive absent manifest error.


 


“Excluded Taxes” means, in the case
of each Lender or applicable Lending Installation and the Global Administrative
Agent, taxes imposed on its overall net income, and franchise taxes imposed on
it, by (i) the jurisdiction under the laws of which such Lender or the Global
Administrative Agent is incorporated or organized or (ii) the jurisdiction in
which the Global Administrative Agent’s or such Lender’s principal executive
office or such Lender’s applicable Lending Installation is located.


 


“Existing Credit Agreements” means
(i) that certain Amended and Restated Long Term Credit Agreement dated as of September 27,
2000 among the U.S. Borrower, HDFS, HDCC, the lenders party thereto and Bank
One, NA as administrative agent, as such agreement has been amended or
otherwise modified prior to the Closing Date, (ii) that certain Short Term
Credit Agreement dated as of September 27, 2000 among the U.S. Borrower,
HDFS, HDCC, the lenders party thereto and Bank One, NA as administrative agent,
as such agreement has been amended or otherwise modified prior to the Closing
Date and (iii) the Credit Facility for Harley-Davidson Financial Services
Europe Limited dated July 2002 between U.K. Borrower, HDFS, HDFSI, BNP
Paribas and Salomon Brothers International Limited, as “Mandated Lead Arrangers”,
the financial institutions party thereto as “Original Lenders” and Citibank
International PLC, as “Facility Agent”, as such agreement has been amended or
otherwise modified prior to the Closing Date.


 


“Federal Funds Effective Rate” shall
have the meaning assigned to that term in the definition of Alternate Base Rate
above.


 


“Finance Receivables” means dealer
wholesale receivables, retail installment contracts, retail leases, charge
accounts or other receivables or chattel paper originated, acquired or serviced
in the ordinary course of business by any of the Companies or their
Subsidiaries and shall include all related collateral and assets and any
retained assets in respect of any of the foregoing.


 


“Finance Receivables Subsidiary”
means a special purpose, bankruptcy remote corporation, partnership or limited
liability company which is wholly-owned, directly or indirectly, by the
Companies, and which is formed for the sole and exclusive purpose of (i)
purchasing or otherwise acquiring Finance Receivables from one or more of the
Companies or their respective Subsidiaries, (ii) financing such purchases or
otherwise facilitating a Permitted Finance Receivables Securitization and (iii)
activities related thereto.


 


14





















 


“Fixed Rate Advance” means a
Eurocurrency Rate Advance or a CDOR Advance.


 


“Fixed Rate Loan” means a
Eurocurrency Rate Loan or a CDOR Loan, as applicable.


 


“Fixed Rate Swing Line Loan” means a
U.K. Swing Line Loan which bears interest at the Eurocurrency Rate or a
Canadian Swing Line Loan which bears interest at CDOR.


 


“Floating Rate Advance” means a
Canadian Prime Rate Advance or Base Rate Advance, as applicable.


 


“Floating Rate Loan” means a
Syndicated Global Loan or Syndicated Canadian Loan, or portion thereof, or a
Swing Line Loan, in each case which bears interest at the Alternate Base Rate,
the Canadian Prime Rate or any other floating rate, as applicable.


 


“Foreign Borrower” means the
Canadian Borrower, if any, or the U.K. Borrower and “Foreign
Borrowers” means, collectively, the Canadian Borrower, if any,
and the U.K. Borrower.


 


“Foreign Employee Benefit Plan”
means any employee benefit plan as defined in Section 3(3) of ERISA which
is maintained or contributed to for the benefit of the employees of any of the
Companies or any other member of the Controlled Group and is not covered by
ERISA pursuant to ERISA Section 4(b)(4).


 


“Foreign Pension Plan” means any
Foreign Employee Benefit Plan that, under applicable local law, is required to
be funded through a trust or other funding vehicle.


 


“Global Administrative Agent” means
JPMorgan Chase Bank (including any office, branch or affiliate of JPMorgan
Chase Bank) in its capacity as contractual representative for itself and the
Lenders pursuant to Article X hereof and any successor Global
Administrative Agent appointed pursuant to Article X hereof.


 


“Global Borrower” means the U.S.
Borrower or the U.K. Borrower and “Global Borrowers”
means, collectively, the U.S. Borrower and the U.K. Borrower, in each case
together with its respective successors and permitted assigns.


 


“Global Rate Option” means the
Eurocurrency Rate or Alternate Base Rate.


 


“Global Swing Line Lender” means
JPMorgan Chase Bank (including any office, branch or affiliate of JPMorgan
Chase Bank); provided that the Global Swing Line Lender in respect of Canadian
Swing Line Loans to the Canadian Borrower shall mean JPMorgan Chase Bank or any
of its offices, branches and affiliates, in each case, resident in Canada
within the meaning of the Income Tax Act
(Canada).


 


“Governmental Authority” means any
nation or government, any monetary authority, any federal, state, provincial,
local or other political subdivision thereof and


 


15





















 


any entity exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government.


 


“Gross Negligence” means
recklessness, or actions taken or omitted with conscious indifference to or the
complete disregard of consequences. 
Gross Negligence does not mean the absence of ordinary care or
diligence, or an inadvertent act or inadvertent failure to act.  If the term “gross negligence” is used with
respect to the Global Administrative Agent, either Arranger or any Lender or
any Indemnitee in any of the other Loan Documents, it shall have the meaning
set forth herein.


 


“Guarantee” is defined in Article XII
hereof.


 


“Guarantor” means any of HDFS, HDCC,
HDFSI or the Canadian Guarantor, if any and “Guarantors”
means each of HDFS, HDCC, HDFSI and the Canadian Guarantor, if any and in each
such case their respective successors and permitted assigns.


 


“Harley” means Harley-Davidson,
Inc., a Wisconsin corporation, and its successors and assigns.


 


“HDCC” means Harley-Davidson Credit
Corp., a Nevada corporation, and its successors and permitted assigns.


 


“HDFS” means Harley-Davidson
Financial Services, Inc., a Delaware corporation, and its successors and
permitted assigns.


 


“HDFSI” means Harley-Davidson
Financial Services International, Inc., a Delaware corporation, and its
successors and permitted assigns.


 


“Hedging Obligations” of a Person
means any and all obligations of such Person, whether absolute or contingent
and howsoever and whensoever created, arising, evidenced or acquired (including
all renewals, extensions and modifications thereof and substitutions therefor),
under (i) any and all agreements, devices or arrangements designed to protect
at least one of the parties thereto from the fluctuations of interest rates,
commodity prices, exchange rates or forward rates applicable to such party’s
assets, liabilities or exchange transactions, including, but not limited to,
dollar-denominated or cross-currency interest rate exchange agreements, forward
currency exchange agreements, interest rate cap or collar protection
agreements, forward rate currency or interest rate options, puts and warrants,
and (ii) any and all cancellations, buy backs, reversals, terminations or
assignments of any of the foregoing.


 


“Indebtedness” of any Person means
(i) any indebtedness of such Person, contingent or otherwise, (a) in respect of
borrowed money including all principal, interest, fees and expenses with
respect thereto (whether or not the recourse of the lender is to the whole of
the assets of such Person or only to a portion thereof), or (b) evidenced by bonds,
notes, acceptances, debentures or other instruments or letters of credit (or
reimbursement obligations with respect thereto) or representing the balance
deferred and unpaid of the purchase price of any Property (including pursuant
to Capitalized Leases) or services, if and to the extent any of the foregoing
indebtedness would appear as a


 


16





















 


liability upon a balance sheet of such Person prepared in accordance
with Agreement Accounting Principles (except that any such balance that
constitutes a trade payable and/or an accrued liability arising in the ordinary
course of business shall not be considered Indebtedness); (ii) to the extent
not otherwise included in clause (i) above, (a) interest accruing after the
commencement of any bankruptcy, insolvency, receivership or similar proceedings
and other interest that would have accrued but for the commencement of such
proceedings, (b) any Capitalized Lease Obligations, (c) obligations, whether or
not assumed, secured by Liens or payable out of the proceeds or production from
Property now or hereafter owned or acquired by such Person (excluding in any
event obligations in respect of Permitted Finance Receivables Securitizations),
(d) Contingent Obligations and (e) Hedging Obligations.  The amount of Indebtedness of any Person at
any date shall be without duplication (i) the outstanding balance at such date
of all unconditional obligations as described above and the maximum liability
of any such Contingent Obligations at such date and (ii) in the case of
Indebtedness of others secured by a Lien to which the Property or assets owned
or held by such Person is subject, the lesser of the fair market value at such
date of any asset subject to a Lien securing the Indebtedness of others and the
amount of the Indebtedness secured.


 


“Indemnified Matters”  is defined in Section 9.6(B)
hereof.


 


“Indemnitees” is defined in Section 9.6(B)
hereof.


 


“Indexed Rate Auction” is defined in
Section 2.10(b)(i) hereof.


 


“Interest Coverage Ratio” is defined
in Section 6.4(A) hereof.


 


“Interest Period” means, (a) with
respect to a Eurocurrency Rate Loan, a period of one (1), two (2), three (3) or
six (6) months commencing on a Business Day selected by the applicable Borrower
pursuant to this Agreement and (b) with respect to a CDOR Loan, a period
selected by the Canadian Borrower in accordance with the Syndicated Canadian
Addendum.  For Eurocurrency Rate Loans,
such Interest Period shall end on (but exclude) the day which corresponds
numerically to such date one (1), two (2), three (3) or six (6) months
thereafter; provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month, such Interest Period shall end on the last Business Day of such next,
second, third or sixth succeeding month. 
If an Interest Period would otherwise end on a day which is not a
Business Day, such Interest Period shall end on the next succeeding Business
Day, provided, however, that for Eurocurrency Rate Loans, if said
next succeeding Business Day falls in a new calendar month, such Interest
Period shall end on the immediately preceding Business Day.


 


“IRS” means the Internal Revenue
Service and any Person succeeding to the functions thereof.


 


“Lenders” means the lending
institutions listed on the signature pages of this Agreement or a Syndicated
Canadian Addendum, including each Syndicated Global


 


17





















 


Lender, the Global Swing Line Lender, each Syndicated Canadian Bank and
their respective successors and assigns.


 


“Lender Increase Notice” is defined
in Section 2.4(b)(i) hereof.


 


“Lending Installation” means, with
respect to a Lender or the Global Administrative Agent, any office, branch,
subsidiary or affiliate of such Lender or the Global Administrative Agent.


 


“Leverage Ratio” is defined in Section 6.4(A)
hereof.


 


“LIBOR” means the applicable British
Bankers’ Association Interest Settlement Rate for deposits in the applicable
Agreed Currency or U.K. Swing Line Currency appearing on the applicable LIBOR
Reference Page for such Agreed Currency or U.K. Swing Line Currency as of the
applicable LIBOR Fixing Time, in the approximate amount of the pro rata share
of the Global Administrative Agent (or any of its Affiliates) of such
Eurocurrency Rate Loan or Swing Line Loan or in the case of an Indexed Rate
Auction in an amount equal to $1,000,000, and, in each case, having a maturity
approximately equal to the requested Interest Period or interest period, provided that, (i) if the applicable LIBOR Reference Page
for such Agreed Currency or U.K. Swing Line Currency is not available to the
Global Administrative Agent for any reason at or about the LIBOR Fixing Time,
the applicable LIBOR for the relevant Interest Period or interest period shall
instead be the applicable British Bankers’ Association Interest Settlement Rate
for deposits in the applicable Agreed Currency or U.K. Swing Line Currency are
offered to leading banks as reported by any other generally recognized financial
information service specified by the Global Administrative Agent as of the
applicable LIBOR Fixing Time, and having a maturity approximately equal to such
Interest Period or interest period, and (ii) if no such British Bankers’
Association Interest Settlement Rate is available, the applicable LIBOR for the
relevant Interest Period or interest period shall instead be the rate
determined by the Global Administrative Agent to be the rate at which JPMorgan
Chase Bank offers to place deposits in the applicable Agreed Currency or U.K.
Swing Line Currency with first-class banks in the London interbank market at
the applicable LIBOR Fixing Time, in the approximate amount of JPMorgan Chase
Bank’s (or any of its Affiliates) relevant Eurocurrency Rate Loan, Swing Line
Loan or Syndicated Canadian Loan or in the case of an Indexed Rate Auction in
an amount equal to $1,000,000 and, in each case, having a maturity
approximately equal to such Interest Period or interest period.


 


“LIBOR Fixing Time” means the
relevant currency fixing date and/or time described in Schedule I and Schedule II.


 


“LIBOR Reference Page” means the
relevant page on the relevant screen described in Schedule I and Schedule II,
including in each case any successor or substitute screen, as applicable,
providing rate quotations comparable to those currently provided on such
screen, as determined by the Global Administrative Agent from time to time for
purposes of providing quotations of interest rates applicable to deposits in
the London interbank market in the relevant currency.


 


18





















 


“Lien” means
any security interest, lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or security agreement or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement).


 


“Loan” means
a Syndicated Global Loan, a Bid Rate Loan, a Syndicated Canadian Loan or a
Swing Line Loan.


 


“Loan Account”
is defined in Section 2.15(E) hereof.


 


“Loan Documents”
means this Agreement, the Syndicated Canadian Addendum, the Assumption Letter,
the Notes, the Support Agreement and all other documents, instruments and
agreements executed in connection therewith or contemplated thereby, in each
case as the same may be amended, restated or otherwise modified and in effect
from time to time.


 


“Mandatory Cost”
is described in Schedule III hereto.


 


“Margin Stock” shall have
the meaning ascribed to such term in Regulation U promulgated by the Board of
Governors of the Federal Reserve System, as from time to time in effect.


 


“Material Adverse Effect”
means any event, development or circumstance that has had or could reasonably
be expected to have a material adverse effect on (a) the financial condition of
Harley, HDFS, HDCC, the Borrowers and their Subsidiaries taken as a whole or
(b) the validity or enforceability of any of the Loan Documents or the ability
of the Lenders or any of the Global Administrative Agent to enforce their
rights or remedies thereunder.


 


“Material Subsidiary”
means, at any time, any Subsidiary of HDFS with a Net Worth equal to or greater
than 5% of Consolidated Net Worth of Harley or Net Income (for the period of
four consecutive fiscal quarters then most recently ended) equal to or greater
than 5% of Consolidated Net Income (for such period) of Harley (it being
understood and agreed that if Subsidiaries of HDFS that are not Material
Subsidiaries have in the aggregate Net Worth equal to or greater than 15% of
the Consolidated Net Worth of Harley or Net Income (for such period) equal to
or greater than 15% of the Consolidated Net Income (for such period) of Harley,
then HDFS shall designate one or more Subsidiaries as Material Subsidiaries such
that, after giving effect to such designations, the Subsidiaries of HDFS that
are not Material Subsidiaries have in the aggregate Net Worth less than 15% of
the Consolidated Net Worth of Harley and Net Income (for such period) less than
15% of the Consolidated Net Income (for such period) of Harley).


 


“Multiemployer Plan”
means a “Multiemployer Plan” as defined in Section 4001(a)(3) of ERISA
which is, or within the immediately preceding six (6) years was, contributed to
by any of the Companies or any other member of the Controlled Group.


 


19





















 


“Net Income”
of any Person for any period means the net income (or loss) of such Person for
such period, as shall be determined in accordance with Agreement Accounting
Principles.


 


“Net Worth”
of any Person means such Person’s consolidated shareholder’s equity, as shall
be determined in accordance with Agreement Accounting Principles.


 


“New Currency”
is defined in Section 2.12 hereof.


 


“Non Pro Rata Loan”
is defined in Section 8.2 hereof.


 


“Non-U.S. Lender”
is defined in Section 3.5(iv) hereof.


 


“Notes”
means the Syndicated Global Notes, the Syndicated Canadian Notes and the Bid
Rate Notes.


 


“Notice of Assignment”
is defined in Section 13.3(B) hereof.


 


“Obligations”
means all Loans, advances, debts, liabilities, obligations, covenants and
duties owing by any Borrower to the Global Administrative Agent, either
Arranger, any Lender, the Global Swing Line Lender, any Syndicated Canadian
Bank, any Affiliate of any of the foregoing or any Indemnitee, of any kind or
nature, present or future, arising under this Agreement, the Notes or any other
Loan Document, whether or not evidenced by any note, guaranty or other
instrument, whether or not for the payment of money, whether arising by reason
of an extension of credit, loan, guaranty, indemnification, or in any other
manner, whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now existing or hereafter arising
and however acquired.  The term includes,
without limitation, all interest, charges, expenses, fees, attorneys’ fees and
disbursements, paralegals’ fees (in each case whether or not allowed), and any
other sum chargeable to any Borrower under this Agreement or any other Loan
Document.


 


“Original Currency”
is defined in Section 2.12 hereof.


 


“Other Taxes”
is defined in Section 3.5 hereof.


 


“Outstanding Credit
Exposure” is defined in Section 2.4(b)(ii) hereof.


 


“Overnight Foreign Currency
Rate” means, for any amount payable in a currency other than
Dollars, the rate of interest per annum as determined by the Global
Administrative Agent (or in the case of any amount payable on a Swing Line
Loan, the Global Swing Line Lender) at which overnight or weekend deposits in the
relevant currency (or if such amount due remains unpaid for more than three
Business Days, then for such other period of time as the Global Administrative
Agent or Global Swing Line Lender (as applicable) may elect) for delivery in
immediately available and freely transferable funds would be offered by the
Global Administrative Agent or Global Swing Line Lender (as applicable) to
major banks in the interbank market upon request of such


 


20





















 


major
banks for the relevant currency as determined above and in an amount comparable
to the unpaid principal amount of the related Loan.


 


“Participants”
is defined in Section 13.2(A) hereof.


 


“Payment Date”
means the first Business Day of each calendar month.


 


“PBGC” means
the Pension Benefit Guaranty Corporation, or any successor thereto.


 


“Permitted Acquisition”
means any Acquisition made by any one of the Companies or any of their
Subsidiaries provided that:  (a) as of
the date of such Acquisition, no Default or Unmatured Default shall have
occurred and be continuing or would result from such Acquisition or from the
incurrence of any Indebtedness in connection with such Acquisition; (b) the
business being acquired consists of a business or portfolio which shall be
substantially similar, related or incidental to the businesses or activities
engaged in by the Companies on the Closing Date; (c) the Acquisition is
consummated pursuant to a negotiated acquisition agreement on a non-hostile
basis; (d) prior to the date of such Acquisition, such Acquisition shall have
been approved by the board of directors and, if applicable, the shareholders of
the Person whose stock or assets are being acquired (the “Target”) in
connection with such Acquisition and no claim or challenge has been asserted or
threatened by any shareholder or director of such Target which could reasonably
be expected to have a material adverse effect on such Acquisition or a Material
Adverse Effect; (e) as of the date of any such Acquisition, all approvals
required in connection with such Acquisition shall have been obtained; and (f)
if such Acquisition constitutes a stock acquisition, substantially
contemporaneously with the consummation of such Acquisition, the Target shall
have been merged with and into one of the Companies.


 


“Permitted Existing Liens”
means the Liens on assets of the Companies or their Subsidiaries identified as
such on Schedule 1.1.3 to this Agreement.


 


“Permitted Finance
Receivables Securitization” means any receivables financing
program providing for the sale, conveyance, pledge or other transfer of Finance
Receivables by any of the Companies or their respective Subsidiaries to a trust
or to one or more limited purpose finance companies, special purpose entities
or financial institutions, either directly or through one or more Subsidiaries.


 


“Permitted Real Property
Encumbrances” means (i) as to any particular real property at
any time, such easements, encroachments, covenants, rights of way,
subdivisions, parcelizations, minor defects, irregularities, encumbrances on
title (including leasehold title) or other similar charges or encumbrances
which do not materially detract from the value of such real property for the
purpose for which it is held by the owner thereof, (ii) municipal and zoning ordinances
and other land use and environmental regulations, which are not violated in any
material respect by the existing improvements and the present use made by the
owner thereof of the premises, (iii) the reservations, limitations, provisos
and conditions, if any, expressed in any original grants


 


21





















 


from
the Crown in Canada, or in comparable grants in jurisdictions other than Canada
and (iv) such other items to which the Global Administrative Agent may consent.


 


“Permitted Securitization
Recourse Obligations” of a Person means recourse obligations of
such Person with respect to Finance Receivables sold, pledged or otherwise
transferred pursuant to a Permitted Finance Receivables Securitization, if and
only if such recourse obligations constitute performance guarantees and/or
indemnification or repurchase obligations arising as a result of the breach by
such Person of a representation, warranty or covenant in respect of such
Finance Receivables or otherwise in respect of losses, costs or expenses
arising as a result of such Permitted Finance Receivables Securitizations, in
each case other than (A) recourse for Finance Receivables uncollectible because
of bankruptcy, insolvency, lack of creditworthiness or other mere failure to
pay on the part of the obligor with respect to such Finance Receivable, and (B)
indemnification or repurchase obligations arising from a representation,
warranty or covenant relating to the payment of any Indebtedness incurred or
securities issued in connection with such Permitted Finance Receivables
Securitization.


 


“Person”
means any natural person, corporation, firm, company, joint venture,
partnership, association, enterprise, trust or other entity or organization, or
any government or political subdivision or any agency, department or
instrumentality thereof.


 


“Plan” means
an employee benefit plan defined in Section 3(3) of ERISA in respect of
which the any of the Companies or any member of the Controlled Group is, or
within the immediately preceding six (6) years was, an “employer” as defined in
Section 3(5) of ERISA.


 


“Pounds Sterling”
means the lawful currency of Great Britain.


 


“Prime Rate”
shall have the meaning assigned to that term in the definition of Alternate
Base Rate above.


 


“Pro Rata Share”
means, with respect to any Syndicated Global Lender, the percentage obtained by
dividing (A) such Syndicated Global Lender’s Commitment at such time (in each
case, as adjusted from time to time in accordance with the provisions of this
Agreement) by (B) the Aggregate Commitment at such time; provided, however,
that, if the Commitments have been terminated pursuant to the terms of this
Agreement, “Pro Rata Share” means, with
respect to any Syndicated Global Lender, the percentage obtained by dividing
(A) the Dollar Amount of such Syndicated Global Lender’s (i) Syndicated Global
Loans plus (ii) share of the obligation to purchase participations in Swing
Line Loans and Syndicated Canadian Loans by (B) the aggregate outstanding
principal Dollar Amount of all Syndicated Global Loans, Swing Line Loans and
Syndicated Canadian Loans.


 


“Property”
of a Person means any and all property, whether real, personal, tangible,
intangible, or mixed, of such Person, or other assets owned, leased or operated
by such Person.


 


22





















 


“Proposed New Lender”
is defined in Section 2.4(b)(i) hereof.


 


“Purchasers”
is defined in Section 13.3(A) hereof.


 


“Qualifying Lender”
means (a) a “building society” (as defined for the purpose of section 477A
of the Taxes Act) or (b) a Lender which is beneficially entitled to interest
payable to that Lender in respect of an Advance or Loan and such Lender is:


 


(i)                                     a
Lender:


 


(I)                                    which
is a “bank” (as defined for the purpose of section 349 of the Taxes Act)
making an Advance or Loan; or


 


(II)                                in
respect of an Advance or Loan made by a Person that was a “bank” (as defined
for the purpose of section 349 of the Taxes Act) at the time that such
Advance or Loan was made,


 


and
which is within the charge to United Kingdom corporation tax as respects any
payments of interest made in respect of that Advance or Loan; or


 


(ii)                                  a
Lender which is:


 


(I)                                    a
company resident in the United Kingdom for United Kingdom tax purposes;


 


(II)                                a
partnership each member of which is:


 


(a)                                  a
company resident in the United Kingdom; or


 


(b)                                 a
company not so resident in the United Kingdom which carries on a trade in the
United Kingdom through a permanent establishment and which brings into account
in computing its chargeable profits (for the purposes of section 11(2) of
the Taxes Act) the whole of any share of interest payable in respect of that
advance that falls to it by reason of sections 114 and 115 of the Taxes Act;


 


(III)                            a company not so resident
in the United Kingdom which carries on a trade in the United Kingdom through a
permanent establishment and which brings into account interest payable in
respect of that advance in computing the chargeable profits (for the purposes
of section 11(2) of the Taxes Act) of that company; or


 


(iii)                               a Treaty Lender.


 


“Register”
is defined in Section 13.3(C) hereof.


 


“Regulation D”
means Regulation D of the Board of Governors of the Federal Reserve System as
from time to time in effect and any successor thereto or other


 


23





















 


regulation
or official interpretation of said Board of Governors relating to reserve
requirements applicable to member banks of the Federal Reserve System.


 


“Release” means any
release, spill, emission, leaking, pumping, injection, deposit, disposal,
discharge, dispersal, leaching or migration into the indoor or outdoor
environment, including the movement of Contaminants through or in the air,
soil, surface water or groundwater.


 


“Reportable Event”
means a reportable event as defined in Section 4043 of ERISA and the
regulations issued under such section, with respect to a Benefit Plan,
excluding, however, such events as to which the PBGC by regulation waived the
requirement of Section 4043(a) of ERISA that it be notified within 30 days
after such event occurs, provided, however, that a failure to
meet the minimum funding standards of Section 412 of the Code and of Section 302
of ERISA shall be a Reportable Event regardless of the issuance of any such
waiver of the notice requirement in accordance with either Section 4043(a)
of ERISA or Section 412(d) of the Code.


 


“Required Lenders”
means Lenders whose Pro Rata Shares, in the aggregate, are greater than fifty
percent (50%); provided, however, that, if any of the Lenders
shall have failed to fund its Pro Rata Share of any Loan requested by the
applicable Borrower which such Lenders are obligated to fund under the terms of
this Agreement and any such failure has not been cured, then for so long as
such failure continues, “Required Lenders”
means Lenders (excluding all Lenders whose failure to fund their respective Pro
Rata Shares of such Loans has not been so cured) whose Pro Rata Shares
represent greater than fifty percent (50%) of the aggregate Pro Rata Shares of
such Lenders; provided, further, however, that, if the
Commitments have been terminated pursuant to the terms of this Agreement, “Required Lenders” means Lenders (without regard to such
Lenders’ performance of their respective obligations hereunder) whose Pro Rata
Shares, in the aggregate, are greater than fifty percent (50%).


 


“Required Syndicated
Canadian Banks” means Syndicated Canadian Banks whose Syndicated
Canadian Pro Rata Shares, in the aggregate, are greater than fifty percent
(50%); provided, however, that, if any of the Lenders shall have
failed to fund its Syndicated Canadian Pro Rata Share of any Syndicated
Canadian Loan requested by the Canadian Borrower which such Syndicated Canadian
Banks are obligated to fund under the terms of this Agreement and the Syndicated
Canadian Addendum and any such failure has not been cured, then for so long as
such failure continues, “Required Syndicated
Canadian Banks” means Syndicated Canadian Banks (excluding all
Syndicated Canadian Banks whose failure to fund their respective Syndicated
Canadian Pro Rata Shares of such Syndicated Canadian Loans has not been so
cured) whose Syndicated Canadian Pro Rata Shares represent greater than fifty
percent (50%) of the aggregate Syndicated Canadian Pro Rata Shares of such
Syndicated Canadian Banks; provided, further, however,
that, if the Commitments have been terminated pursuant to the terms of this
Agreement or the Syndicated Canadian Commitments have been terminated pursuant
to the terms of this Agreement and the Syndicated Canadian Addendum, “Required Syndicated Canadian Banks” means Syndicated
Canadian Banks (without regard to such Syndicated Canadian Banks’ performance
of their


 


24





















 


respective
obligations hereunder) whose Syndicated Canadian Pro Rata Shares, in the
aggregate, are greater than fifty percent (50%).


 


“Requirements of Law”
means, as to any Person, the charter and by-laws or other organizational or
governing documents of such Person, and any law, rule or regulation, or determination
of an arbitrator or a court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject including, without limitation,
the Securities Act of 1933, the Securities Exchange Act 1934, Regulations T, U
and X promulgated by the Board of Governors of the Federal Reserve System,
ERISA, the Fair Labor Standards Act, the Worker Adjustment and Retraining
Notification Act, Americans with Disabilities Act of 1990, and any certificate
of occupancy, zoning ordinance, building, environmental or land use requirement
or Permit or environmental, labor, employment, occupational safety or health
law, rule or regulation, including Environmental, Health or Safety Requirements
of Law.


 


“Reserve Requirement”
means, with respect to an Interest Period, the maximum aggregate reserve
requirement (including all basic, supplemental, marginal and other reserves)
which is imposed under Regulation D on Eurocurrency liabilities.


 


“Reset Date”
is defined in Section 1.2 hereof.


 


“Risk-Based Capital
Guidelines” is defined in Section 3.2 hereof.


 


“Selling Lender”
is defined in Section 2.4(b)(ii) hereof.


 


“Stamping Fee”
is defined in the Syndicated Canadian Addendum.


 


“Subordinated Indebtedness”
is defined in Section 6.4(A) hereof.


 


“Subordinated Indebtedness
Documents” means any instruments and documents evidencing, or
entered into in connection with, Subordinated Indebtedness.


 


“Subordinated Intercompany
Indebtedness” is defined in Section 6.3(A)(2)
hereof.


 


“Subsidiary”
of a Person means (i) any corporation more than 50% of the outstanding
securities having ordinary voting power of which shall at the time be owned or
controlled, directly or indirectly, by such Person or by one or more of its
Subsidiaries or by such Person and one or more of its Subsidiaries, or (ii) any
company, partnership, association, joint venture or similar business
organization more than 50% of the ownership interests having ordinary voting
power of which shall at the time be so owned or controlled.  Unless otherwise expressly provided, all
references herein to a “Subsidiary” shall mean a direct or indirect Subsidiary
of the U.S. Borrower.


 


“Support Agreement”
means the Support Agreement dated as of September 26, 1996 between Harley
and HDFS evidencing Harley’s agreement to support certain debts of HDFS and its
Subsidiaries, together with and as supplemented by the letter agreement


 


25





















 


dated
as of September 16, 2004 to the Global Administrative Agent from Harley
and HDFS pursuant to which certain modifications to the above-referenced
Support Agreement were agreed to for the benefit of the Global Administrative
Agent and the Lenders.


 


“Swing Line Commitment”
means the Canadian Swing Line Commitment, U.K. Swing Line Commitment or USD
Swing Line Commitment, as applicable.


 


“Swing Line Loan”
means a Canadian Swing Line Loan, U.K. Swing Line Loan or USD Swing Line Loan,
as applicable, made available to the applicable Borrower by the Global Swing
Line Lender pursuant to Section 2.9.


 


“Swiss Francs”
means the lawful currency of Switzerland.


 


“Syndicated Canadian
Addendum” means an addendum substantially in the form of Exhibit G
with such modifications thereto as shall be approved by the Global
Administrative Agent.


 


“Syndicated Canadian
Advance” means a borrowing consisting of simultaneous Syndicated
Canadian Loans (of the same Type, currency and, if relevant, for the same
Interest Period) made to the Canadian Borrower by the Syndicated Canadian Banks
pursuant to Section 2.2.


 


“Syndicated Canadian Bank”
means any Lender (or any Affiliate, branch or agency thereof) to the extent it
is party to a Syndicated Canadian Addendum. 
If any agency, branch or Affiliate of any Lender shall be a party to the
Syndicated Canadian Addendum, such agency, branch or Affiliate shall, to the
extent of any commitment extended and any Loans made by it, have all the rights
of such Lender hereunder; provided, however, that such Lender
shall, to the exclusion of such agency, branch or Affiliate, continue to have
all the voting rights vested in it by the terms hereof.


 


“Syndicated Canadian
Borrowing” means any borrowing consisting of a Loan made to the
Canadian Borrower.


 


“Syndicated Canadian
Borrowing Notice” has the meaning specified in Section 2.6(a)
hereof.


 


“Syndicated Canadian
Commitment” means, for any Syndicated Canadian Bank, the
obligation of such Syndicated Canadian Bank to make Syndicated Canadian Loans
not exceeding the Dollar Amount set forth in Exhibit A to this
Agreement, as such amount may be modified from time to time pursuant to the
terms of this Agreement and/or the Syndicated Canadian Addendum.


 


“Syndicated Canadian Loan”
means any loan or Bankers’ Acceptance Loan made by a Syndicated Canadian Bank
to the Canadian Borrower pursuant to Section 2.2 and the Syndicated
Canadian Addendum.


 


26





















 


“Syndicated Canadian Note”
means, to the extent requested, a promissory note of the Canadian Borrower
payable to the order of any requesting Syndicated Canadian Bank, in
substantially the form attached to the Syndicated Canadian Addendum, evidencing
the aggregate indebtedness of the Canadian Borrower to such Syndicated Canadian
Bank resulting from the Syndicated Canadian Loans made by such Syndicated
Canadian Bank to the Canadian Borrower.


 


“Syndicated Canadian Pro
Rata Share” means, with respect to any Syndicated Canadian Bank,
the percentage obtained by dividing (A) such Syndicated Canadian Bank’s Syndicated
Canadian Commitment at such time (in each case, as adjusted from time to time
in accordance with the provisions of this Agreement and the Syndicated Canadian
Commitment) by (B) the aggregate of the Syndicated Canadian Commitments at such
time; provided, however, that, if the Syndicated Canadian
Commitments have been terminated pursuant to the terms of this Agreement or the
Syndicated Canadian Addendum, “Syndicated Canadian Pro
Rata Share” means, with respect to any Syndicated Canadian Bank, the
percentage obtained by dividing (A) the amount of such Syndicated Canadian Bank’s
(i) Syndicated Canadian Loans plus (ii) share of the obligation to
purchase participations in Canadian Swing Line Loans to the Canadian Borrower
by (B) the aggregate outstanding principal amount of all Syndicated Canadian
Loans and Canadian Swing Line Loans to the Canadian Borrower.


 


“Syndicated Global Advance”
means a borrowing consisting of simultaneous Syndicated Global Loans of the
same Type made to a Global Borrower by each of the Syndicated Global Lenders
pursuant to Section 2.1, and in the case of Eurocurrency Rate
Advances, denominated in the same currency and for the same Interest Period.


 


“Syndicated Global Advance
Borrowing Notice” has the meaning specified in Section 2.6(a)
hereof.


 


“Syndicated Global Lender”
means any Lender (or any Affiliate, branch or agency thereof) party hereto with
a commitment to make Syndicated Global Loans to each Global Borrower.


 


“Syndicated Global Loan”
means a loan by a Syndicated Global Lender to a Global Borrower as part of a
Syndicated Global Advance.


 


“Syndicated Global Note”
means, to the extent requested, a promissory note of a Global Borrower payable
to the order of any requesting Syndicated Global Lender, in substantially the
form of Exhibit B-1 hereto, evidencing the aggregate indebtedness of
such Global Borrower to such Syndicated Global Lender resulting from the
Syndicated Global Loans made by such Syndicated Global Lender to such Global
Borrower.


 


“TARGET Settlement Day”
means any day on which the Trans-European Automated Real-Time Gross Settlement
Express Transfer (TARGET) System is open.


 


“Taxes”
means any and all present or future taxes, duties, levies, imposts, deductions,
charges or withholdings, and any and all liabilities with respect to the
foregoing, but excluding Excluded Taxes.


 


27





















 


“Tax Credit”
means a credit against, relief or remission of, or repayment of any Taxes or
Other Taxes.


 


“Taxes Act”
means the Income and Corporation Taxes Act 1988 as in effect in the United
Kingdom.


 


“Termination Date”
means the earlier of (a) September 16, 2009 and (b) the date of
termination of the Commitments pursuant to Section 2.4 or Section 8.1.


 


“Transferee”
is defined in Section 13.5 hereof.


 


“Treaty Lender”
means a Lender which:


 


(i)                                     is
treated as a resident of a Treaty State for the purposes of the Treaty; and


 


(ii)                                  does
not carry on a business in the United Kingdom through a permanent establishment
with which that Lender’s participation in a Loan or Advance is effectively
connected or to which payments under this Agreement are attributable.


 


“Treaty State”
means a jurisdiction having a double taxation agreement (a “Treaty”) with the United Kingdom
which makes provision for full exemption from tax imposed by the United Kingdom
on interest.


 


“Type”
means, (a) with respect to any Syndicated Global Loan, its nature as a Base
Rate Loan or Eurocurrency Rate Loan, (b) with respect to any Syndicated Global
Advance, its nature as a Base Rate Advance or Eurocurrency Rate Advance, (c)
with respect to any Swing Line Loan, its nature as a Eurocurrency Rate Loan,
Canadian Prime Rate Loan or CDOR Loan, (d) with respect to any Syndicated
Canadian Loan, its nature as a CDOR Loan, Eurocurrency Rate Loan, Base Rate
Loan or Canadian Prime Rate Loan and (e) with respect to any Syndicated
Canadian Advance, its nature as a CDOR Advance, Eurocurrency Rate Advance, Base
Rate Advance or Canadian Prime Rate Advance.


 


“U.K. Borrower”
means Harley-Davidson Financial Services Europe Limited, a company incorporated
under the laws of England and Wales, and its successors and permitted assigns.


 


“U.K. Swing Line Borrowing
Notice” is defined in Section 2.9.3 hereof.


 


“U.K. Swing Line Commitment”
means the obligation of the Global Swing Line Lender to make U.K. Swing Line
Loans to the Global Borrowers up to a maximum principal Dollar Amount of
$20,000,000 in the aggregate and on a cumulative basis at any one time
outstanding, as such amount may be adjusted from time to time in accordance
with the provisions of Section 2.9.3.


 


“U.K. Swing Line Currency”
means Dollars, euro, and so long as such currencies remain in effect, Pounds
Sterling and Swiss Francs.


 


28





















 


“U.K. Swing Line Loan”
means a loan denominated in any U.K. Swing Line Currency made available to a
Global Borrower by the Global Swing Line Lender pursuant to Section 2.9.3.


 


“Unfunded Liabilities”
means the amount, if any, by which the present value of all accumulated benefit
obligations under each Benefit Plan exceeds the fair market value of the assets
of such Benefit Plan, determined as of the date of the most recent financial
statements reflecting such amounts using assumptions for purposes of Statement
of Financial Accounting Standards No. 87.


 


“Unmatured Default”
means an event which, but for the lapse of time or the giving of notice, or
both, would constitute a Default.


 


“U.S. Borrower”
means Harley-Davidson Funding Corp., a Nevada corporation, and its successors
and permitted assigns.


 


“USD Swing Line Borrowing
Notice” is defined in Section 2.9.1 hereof.


 


“USD Swing Line Commitment”
means the obligation of the Global Swing Line Lender to make USD Swing Line
Loans up to a maximum principal amount of $25,000,000 in the aggregate at any
one time outstanding.


 


“USD Swing Line Loan”
means a Dollar denominated Loan made available to the U.S. Borrower by the
Global Swing Line Lender pursuant to Section 2.9.1.


 


“Utilization Fee”
means the per annum rate constituting the Utilization Fee determined in
accordance with schedule set forth in Section 2.6(b).


 


The
foregoing definitions shall be equally applicable to both the singular and
plural forms of the defined terms.  Any
accounting terms used in this Agreement which are not specifically defined
herein shall have the meanings customarily given them in accordance with
generally accepted accounting principles in existence as of the date hereof
consistently applied.


 


1.2  Currency Equivalents.  Not later than 1:00 p.m., New York time or local
time, as applicable, on each Calculation Date, the Global Administrative Agent
shall (i) determine the Exchange Rate as of such Calculation Date with respect
to each Agreed Currency and (ii) give notice thereof to the U.S. Borrower and
the Syndicated Global Lenders.  The
Exchange Rates so determined shall become effective immediately with respect to
any new Loans being made on any Calculation Date and any Loans being repaid on
any Calculation Date and otherwise on the fifth Business Day immediately following
the relevant Calculation Date (a “Reset Date”),
shall remain effective until the next succeeding Reset Date and shall during
the period of their effectiveness be employed in making any computation of
currency equivalents required to be made under this Agreement (other than
pursuant to Section 2.19).


 


ARTICLE II 
THE CREDITS


 


2.1  Syndicated Global Loans.  Upon the satisfaction of the conditions
precedent set forth in Sections 4.1 and 4.2 hereof, from and
including the date of this Agreement and prior to the


 


29





















 


Termination Date,
each Syndicated Global Lender severally and not jointly agrees, on the terms
and conditions set forth in this Agreement, to make Syndicated Global Loans to
the Global Borrowers from time to time, in the Applicable Agreed Currency, in a
Dollar Amount not to exceed in the aggregate at any one time outstanding an
amount equal to such Syndicated Global Lender’s Pro Rata Share of the Aggregate
Commitment; provided, however


 


(i)  that the
sum of (a) the aggregate Dollar Amount of the Syndicated Global Loans then
outstanding, (b) the aggregate Dollar Amount of the Bid Rate Loans then
outstanding, (c) the aggregate amount of the USD Swing Line Loans then
outstanding, (d) the aggregate Dollar Amount of the Canadian Swing Line Loans
then outstanding, (e) the aggregate Dollar Amount of the U.K. Swing Line Loans
then outstanding and (f) the aggregate Dollar Amount of Syndicated Canadian
Loans then outstanding, shall not exceed the Aggregate Commitment;


 


(ii)  that the
aggregate outstanding Dollar Amount of Syndicated Global Loans in Canadian
Dollars, Syndicated Canadian Loans in Canadian Dollars and Canadian Swing Line
Loans at any time shall not exceed the Canadian Dollar Sublimit;


 


(iii)  that the
aggregate outstanding Dollar Amount of all Loans at any time shall not exceed
the Aggregate Commitment; and


 


(iv)  that,
notwithstanding anything contained in this Agreement or the Syndicated Canadian
Addendum, the aggregate Dollar Amount of all Syndicated Global Loans made by a
Syndicated Global Lender, when aggregated with the Syndicated Canadian Loans
made by its affiliated Syndicated Canadian Bank, shall not at any time exceed
the amount of such Syndicated Global Lender’s Commitment.


 


Each
Syndicated Global Advance under this Section 2.1 shall consist of
Syndicated Global Loans made by each Syndicated Global Lender ratably in
proportion to such Syndicated Global Lender’s respective Pro Rata Share; provided
that, the Global Administrative Agent may allocate any Syndicated Global
Advance on a non-pro rata basis to the extent the failure to so allocate would
cause a Syndicated Global Lender’s Loans, when aggregated with its affiliated
Syndicated Canadian Bank’s Loans, to exceed such Syndicated Global Lender’s
Commitment.  Subject to the terms of this
Agreement, each Global Borrower may borrow, repay and reborrow Syndicated
Global Loans at any time prior to the Termination Date.  Each Global Borrower may select, in
accordance with Sections 2.6 and 2.8 and subject to the other
conditions and limitations therein set forth and set forth in this Article II,
Global Rate Options and Interest Periods applicable to portions of the
Syndicated Global Advances.  On the
Termination Date, the outstanding principal balance of the Syndicated Global
Loans shall be paid in full by the Global Borrowers.


 


2.2  Syndicated Canadian Advances.


 


(A)  Making of Syndicated
Canadian Loans.  Upon the
satisfaction of the conditions precedent set forth in Article IV
hereof and set forth in the Syndicated Canadian Addendum, from and including
the later of the date of this Agreement and the date of execution of the
Syndicated Canadian Addendum and prior to the Termination Date (unless an
earlier termination


 


30





















 


date shall be
specified in or pursuant to the Syndicated Canadian Addendum), each Syndicated
Global Lender shall cause its affiliated Syndicated Canadian Bank, on the terms
and conditions set forth in this Agreement and in the Syndicated Canadian
Addendum, to make its Syndicated Canadian Pro Rata Share of Syndicated Canadian
Loans to the Canadian Borrower from time to time in Dollars (solely with
respect to Base Rate Loans and Eurocurrency Rate Loans) and Canadian Dollars
(solely with respect to Canadian Prime Rate Loans, Eurocurrency Rate Loans and
CDOR Loans), in an amount not to exceed each such Syndicated Canadian Bank’s
Syndicated Canadian Commitment (provided that the Global Administrative Agent
may allocate any Syndicated Canadian Advance on a non-pro rata basis to the
extent the failure to so allocate would cause a Syndicated Canadian Bank’s
Loans, when aggregated with its affiliated Syndicated Global Lender’s Loans, to
exceed such Syndicated Canadian Bank’s Syndicated Canadian Commitment); provided,
however, at no time shall (i) the Dollar Amount of the outstanding
principal amount of Syndicated Canadian Loans exceed the Syndicated Canadian
Commitments set forth in the Syndicated Canadian Addendum or the Dollar Amount
of all Syndicated Canadian Loans denominated in Canadian Dollars, when
aggregated with the Dollar Amount of all Canadian Swing Line Loans and
Syndicated Global Loans denominated in Canadian Dollars, exceed the Canadian
Dollar Sublimit, in each case other than as a result of currency fluctuations
and then only to the extent permitted in Section 2.3(B) and (ii)
the Dollar Amount of the outstanding principal amount of the Loans exceed the
Aggregate Commitment other than as a result of currency fluctuations and then
only to the extent permitted in Section 2.3(B).  Subject to the terms of this Agreement and
the Syndicated Canadian Addendum, the Canadian Borrower may borrow, repay and
reborrow Syndicated Canadian Loans at any time prior to the Termination Date
(unless an earlier termination date shall be specified in or pursuant to the
Syndicated Canadian Addendum).  On the
Termination Date (unless an earlier termination date shall be specified in or
pursuant to the Syndicated Canadian Addendum), the outstanding principal balance
of the Syndicated Canadian Loans shall be paid in full by the Canadian Borrower
and prior to Termination Date (unless an earlier termination date shall be
specified in or pursuant to the Syndicated Canadian Addendum), prepayments of
the Syndicated Canadian Loans shall be made by the Canadian Borrower if and to
the extent required in Section 2.3(B).  By its execution and delivery hereof, each
Syndicated Global Lender agrees that it shall cause its affiliated Syndicated
Canadian Bank with a Syndicated Canadian Commitment to execute and deliver to
(or as directed by) the Global Administrative Agent, on such Business Day as is
reasonably requested by the Global Administrative Agent, an executed
counterpart to such Syndicated Canadian Bank’s signature page to the Syndicated
Canadian Addendum.


 


(B)  Borrowing Notice.  When the Canadian Borrower desires to borrow
under this Section 2.2, the Canadian Borrower shall deliver to the
Global Administrative Agent a Syndicated Canadian Advance Borrowing Notice,
signed by it, as provided in Section 2.6(a)(ii) specifying that the
Canadian Borrower is requesting a Syndicated Canadian Loan pursuant to this Section 2.2.  Any Syndicated Canadian Advance Borrowing
Notice given pursuant to Section 2.6(a)(ii) shall be irrevocable.


 


(C)  Termination.  Except as otherwise required by applicable
law, in no event shall a Syndicated Canadian Bank have the right to accelerate
the Syndicated Canadian Loans outstanding or to terminate its commitments (if
any) thereunder to make Syndicated Canadian Loans prior to the stated
termination date in respect thereof, except that such Syndicated


 


31





















 


Canadian Bank
shall have such rights upon an acceleration of the Loans and a termination of
the Commitments pursuant to Article VII.


 


(D)  Statements.  The Global Administrative Agent shall furnish
to the U.S. Borrower not less frequently than monthly, and at any other time at
the reasonable request of the U.S. Borrower, a statement setting forth the
outstanding Syndicated Canadian Loans made and repaid during the period since
the last such report under the Syndicated Canadian Addendum.


 


(E)  Risk Participation.  Immediately and automatically upon the
occurrence of a Default under Sections 7.1(f) or (g), all
Syndicated Canadian Loans shall be converted to and redenominated in Dollars
equal to the Dollar Amount of each such Syndicated Canadian Loan determined as
of the date of such conversion and each Syndicated Global Lender shall be
deemed to have automatically, irrevocably and unconditionally purchased and
received (to the extent of its unused Commitment) from each other Lender an
undivided interest and participation in and to each Loan in such amounts as are
necessary such that, after giving effect thereto, each Syndicated Global Lender
shall hold its Pro Rata Share of each Loan; provided, that to the extent
such conversion shall occur other than at the end of an Interest Period, the
Borrowers shall pay to the Global Administrative Agent for the ratable benefit
of each applicable Lender, all losses and breakage costs related thereto in
accordance with Section 3.4 and, upon the written request of the
Global Administrative Agent, each of the Syndicated Global Lenders shall pay to
the Global Administrative Agent for the ratable benefit of each applicable
Lender not later than two (2) Business Days following a request for payment
from such Lender, in Dollars, an amount equal to the undivided interest in and
participation in the applicable Loan purchased by such Syndicated Global Lender
pursuant to this Section 2.2(E). 
In the event that any Syndicated Global Lender fails to make payment to
the Global Administrative Agent of any amount due under this Section 2.2(E),
the Global Administrative Agent shall be entitled to receive, retain and apply
against such obligation the principal and interest otherwise payable to such
Syndicated Global Lender hereunder until the Global Administrative Agent
receives from such Syndicated Global Lender an amount sufficient to discharge
such Syndicated Global Lender’s payment obligation as prescribed in this Section 2.2(E)
together with interest thereon at the Federal Funds Effective Rate for each day
during the period commencing on the date of demand by the applicable Lender and
ending on the date such obligation is fully satisfied.  The Global Administrative Agent will promptly
remit all payments received as provided above to each relevant Lender.


 


(F)  Other Provisions
Applicable to Syndicated Canadian Loans. 
The specification of payment of Syndicated Canadian Loans in Dollars or
Canadian Dollars (as applicable) at a specific place pursuant to this Agreement
and the Syndicated Canadian Addendum is of the essence.  Dollars or Canadian Dollars (as applicable)
shall be the currency of account and payment of such Loans under this Agreement
and the Syndicated Canadian Addendum. 
Notwithstanding anything in this Agreement, the obligation of the
Canadian Borrower in respect of such Loans shall not be discharged by an amount
paid in any other currency or at another place, whether pursuant to a judgment
or otherwise, to the extent the amount so paid, on prompt conversion into
Dollars or Canadian Dollars (as applicable) and transfer to such Syndicated
Canadian Bank under normal banking procedure, does not yield the amount of
Dollars or Canadian Dollars (as applicable) due under this Agreement and the
Syndicated Canadian Addendum.  In the
event that any payment, whether pursuant to a judgment or otherwise, upon
conversion and transfer, does not result in payment of the amount of Dollars or
Canadian Dollars


 


32





















 


(as applicable)
due under this Agreement or the Syndicated Canadian Addendum, such Syndicated
Canadian Bank shall have an independent cause of action against each of the
Borrowers for the currency deficit.


 


2.3  Payments of Loans.


 


(A)  Optional Payments.
Subject to Section 3.4 and the requirements of Section 2.7,
each relevant Global Borrower may (a) prepay Dollar denominated Floating Rate
Loans following irrevocable notice given to the Global Administrative Agent by
such Borrower, by not later than 12:00 noon (New York time) on the date of the
proposed prepayment, such notice specifying the aggregate principal amount of
and the proposed date of the prepayment, and if such notice is given such
Borrower shall, prepay the outstanding principal amounts of the specified
Dollar denominated Floating Rate Loans comprising part of the same Syndicated
Global Advance in whole or ratably in part and (b) prepay non-Dollar
denominated Floating Rate Loans or Fixed Rate Loans following notice given to
the Global Administrative Agent by such Borrower by not later than 12:00 noon
(New York time) on the date that is not less than one (1) Business Day
preceding the date of the proposed prepayment, such notice specifying the
Syndicated Global Advance to be prepaid and the proposed date of the
prepayment, and, if such notice is given, such Borrower shall, prepay the
outstanding principal amounts of the non-Dollar denominated Floating Rate Loans
or the Fixed Rate Loans comprising an Advance in whole (and not in part),
together with accrued interest to the date of such prepayment on the principal
amount prepaid.  With respect to Floating
Rate Advances, each partial prepayment shall be in an aggregate principal
Dollar Amount not less than $1,000,000 and integral multiples of $100,000.  Subject to Section 3.4 and the
requirements of Section 2.7, the Canadian Borrower may, upon prior
written notice to the Global Administrative Agent as prescribed in the
Syndicated Canadian Addendum and specifying that it is prepaying all or a
portion of its Syndicated Canadian Advances, prepay its Syndicated Canadian
Advances in whole at any time, or from time to time in part as specified in the
Syndicated Canadian Addendum by paying the principal amount to be paid together
with all accrued and unpaid interest thereon to and including the date of
payment.


 


(B)  Mandatory
Prepayments.


 


(i)  Mandatory
Prepayments of Loans Generally.  If
at any time, other than as a result of fluctuations in currency exchange rates,
(a) the Dollar Amount of all Loans exceed the Aggregate Commitment, the
applicable Borrowers shall, within five Business Days’ notice from the Global
Administrative Agent, prepay the applicable Loans in an aggregate amount such
that after giving effect thereto the Dollar Amount of all Loans is less than or
equal to the Aggregate Commitment and (b) the Dollar Amount of Syndicated
Canadian Loans exceeds the Syndicated Canadian Commitments, the Canadian
Borrower shall, within five Business Days’ notice from the Global
Administrative Agent, prepay the Syndicated Canadian Loans in an aggregate
amount such that after giving effect thereto the Dollar Amount of Syndicated
Canadian Loans is less than or equal to the Syndicated Canadian Commitments.


 


(ii)  Mandatory
Prepayments of Canadian Dollar Denominated Loans.  If at any time other than as a result of
fluctuations in currency exchange rates, the Dollar Amount of all Canadian
Swing Line Loans denominated in Canadian Dollars, Syndicated


 


33





















 


Canadian
Loans denominated in Canadian Dollars and Syndicated Global Loans denominated
in Canadian Dollars exceeds the Canadian Dollar Sublimit, the applicable Borrowers
(as determined by the U.S. Borrower) shall, within five Business Days’ notice
from the Global Administrative Agent, prepay such Canadian Swing Line Loans,
Syndicated Canadian Loans or Syndicated Global Loans (subject to Section 3.4)
in an aggregate amount such that after giving effect thereto the Dollar Amount
of all remaining Canadian Swing Line Loans, Syndicated Canadian Loans and
Syndicated Global Loans, in each case to the extent denominated in Canadian
Dollars, is less than or equal to the Canadian Dollar Sublimit.  Prepayments of CDOR Loans under clauses (i),
(ii) or (iii) of this Section 2.3(B) shall be governed by the terms set
forth in the Syndicated Canadian Addendum.


 


(iii)  Mandatory
Prepayments due to Currency Fluctuations. 
If, solely as a result of fluctuations in currency exchange rates, on
any Reset Date, (a) the Dollar Amount of the sum of (i) the outstanding
principal amount of the Syndicated Global Loans at such time, plus (ii)
the outstanding principal amount of the Syndicated Canadian Loans at such time,
plus (iii) the outstanding principal amount of the Swing Line Loans at
such time, plus (iv) the aggregate Dollar Amount of the Bid Rate Loans
then outstanding, exceeds 105% of the Aggregate Commitments, (b) the Dollar
Amount of all Canadian Swing Line Loans, Syndicated Canadian Loans and
Syndicated Global Loans, in each case to the extent denominated in Canadian
Dollars, exceeds the Canadian Dollar Sublimit, (c) the amount of the
outstanding Canadian Swing Line Loans at such time exceeds the Canadian Swing
Line Commitment, (d) the Dollar Amount of the outstanding U.K. Swing Line Loans
at such time exceeds the U.K. Swing Line Commitment or (e) the Dollar Amount of
the Syndicated Canadian Loans exceeds the Syndicated Canadian Commitments, the
applicable Borrower shall on such Reset Date prepay the applicable Loans
(subject to Section 3.4 if applicable) in an aggregate amount such
that after giving effect thereto: (v) the Dollar Amount of the sum of (i) the
outstanding principal amount of the Syndicated Global Loans at such time, plus
(ii) the outstanding principal amount of the Syndicated Canadian Loans at such
time, plus (iii) the outstanding principal amount of the Swing Line
Loans at such time, plus (iv) the aggregate amount of the Bid Rate Loans
at such time, is less than or equal to the Aggregate Commitment, (w) the Dollar
Amount of all Canadian Swing Line Loans, Syndicated Canadian Loans and
Syndicated Global Loans, in each case to the extent denominated in Canadian
Dollars, is less than or equal to the Canadian Dollar Sublimit, (x) the amount
of the outstanding Canadian Swing Line Loans is less than or equal to the
Canadian Swing Line Commitment, (y) the Dollar Amount of the outstanding U.K.
Swing Line Loans is less than or equal to the U.K. Swing Line Commitment and
(z) the Dollar Amount of the Syndicated Canadian Loans is less than or equal to
the Syndicated Canadian Commitments.


 


2.4  Reduction/Increase of Commitments.


 


(a)  Reduction of Commitments.  The U.S. Borrower may permanently reduce the
Aggregate Commitment in whole, or in part ratably among the Lenders, in an
aggregate minimum amount of $10,000,000 and integral multiples of $5,000,000 in
excess of that amount, upon at least five Business Days’ prior written notice
to the Global Administrative Agent, which notice shall specify the amount of
any such reduction; provided, however, that the amount of the


 


34





















 


Aggregate Commitment may
not be reduced below the sum of the aggregate principal Dollar Amount of the
outstanding Advances (including Syndicated Canadian Advances) and the Swing
Line Loans.  In addition, the Canadian
Borrower may, upon three (3) Business Days’ prior written notice to the Global
Administrative Agent, terminate entirely at any time or reduce from time to
time, by an aggregate amount of $5,000,000 or any larger multiple of $1,000,000
(or as otherwise set forth in the Syndicated Canadian Addendum), the unused
portions of the Syndicated Canadian Commitments as specified by the Canadian
Borrower in such notice to the Global Administrative Agent; provided, however,
that at no time shall the Syndicated Canadian Commitments be reduced to a
figure less than the total of the outstanding principal amount of all
Syndicated Canadian Loans and Canadian Swing Line Loans owing by the Canadian
Borrower.  All accrued facility fees
shall be payable on the effective date of any termination of the obligations of
the Lenders to make Loans hereunder.  The
Global Administrative Agent shall promptly distribute to the relevant Lenders
any notices received by it under this Section 2.4(a).


 


(b)  Increase in Aggregate Commitment.


 


(i)  At any time prior to the
Termination Date, the U.S. Borrower may request that the Aggregate Commitment
be increased; provided that, without the prior
written consent of all of the Lenders, (A) the Aggregate Commitment shall at no
time exceed $1,400,000,000 and (B) each such request shall be in a minimum
amount of at least $10,000,000.  Each request
shall be made in a written notice given to the Global Administrative Agent and
the Lenders by the U.S. Borrower not less than twenty (20) Business Days prior
to the proposed effective date of such increase, which notice (a “Commitment
Increase Notice”) shall specify the amount of the proposed increase in the
Aggregate Commitment and the proposed effective date of such increase.  In the event of such a Commitment Increase
Notice, each of the Syndicated Global Lenders shall be given the opportunity to
participate in the requested increase ratably in the proportions that their
respective Commitments bear to the Aggregate Commitment under this
Agreement.  On or prior to the date that
is fifteen (15) Business Days after receipt of the Commitment Increase Notice,
each Syndicated Global Lender shall submit to the Global Administrative Agent a
notice indicating the maximum amount by which it is willing to increase its
Commitment in connection with such Commitment Increase Notice (any such notice
to the Global Administrative Agent being herein a “Lender Increase Notice”).  Any Syndicated Global Lender which does not
submit a Lender Increase Notice to the Global Administrative Agent prior to the
expiration of such fifteen (15) Business Day period shall be deemed to have
denied any increase in its Commitment. 
In the event that the increases of Commitments set forth in the Lender
Increase Notices exceed the amount requested by the U.S. Borrower in the
Commitment Increase Notice, the Global Administrative Agent and the Arrangers
shall have the right, with the consent of the U.S. Borrower, to allocate the
amount of increases necessary to meet the Commitment Increase Notice.  In the event that the Lender Increase Notices
are less than the amount requested by the Commitment Increase Notice, not later
than three (3) Business Days prior to the proposed effective date of the
requested increase, the U.S. Borrower may notify the Global Administrative
Agent of any financial institution that shall have agreed to become a “Lender”
party hereto (a “Proposed New Lender”) in connection with the Commitment
Increase Notice.  Any Proposed New Lender
shall be subject to the consent of the Global Administrative Agent (which
consent shall not be unreasonably withheld). 
If the U.S. Borrower shall not have arranged any Proposed New Lender(s)
to commit to the shortfall from the Lender Increase Notices, then the U.S.
Borrower shall be deemed to have reduced the amount of the Commitment


 


35





















 


Increase Notice to
the aggregate amount set forth in the Lender Increase Notices.  Based upon the Lender Increase Notices, any
allocations made in connection therewith and any notice regarding any Proposed
New Lender, if applicable, the Global Administrative Agent shall notify the
U.S. Borrower and the Syndicated Global Lenders on or before the Business Day
immediately prior to the proposed effective date of the amount of each
Syndicated Global Lender’s and Proposed New Lenders’ Commitment (the “Effective
Commitment Amount”) and the amount of the Aggregate Commitment, which
amounts shall be effective on the following Business Day.  Any increase in the Aggregate Commitment
shall be subject to the following conditions precedent: (I) as of the date of
the Commitment Increase Notice and as of the proposed effective date of the
increase in the Aggregate Commitment, no event shall have occurred and then be
continuing which constitutes a Default or Unmatured Default, (II) the U.S.
Borrower, the Global Administrative Agent and each Proposed New Lender or
Syndicated Global Lender that shall have agreed to provide a “Commitment” in
support of such increase in the Aggregate Commitment shall have executed and
delivered a “Commitment and Acceptance” substantially in the form of Exhibit I
hereto, (III) counsels for the Borrowers and for the Guarantors shall have
provided to the Global Administrative Agent supplemental opinions in form and
substance reasonably satisfactory to the Global Administrative Agent and (IV)
the Borrowers, the Guarantors and the Proposed New Lender shall otherwise have
executed and delivered such other instruments and documents as the Global
Administrative Agent shall have reasonably requested in connection with such
increase.  If any fee shall be charged by
the Lenders in connection with any such increase, such fee shall be in
accordance with then prevailing market conditions, which market conditions
shall have been reasonably documented by the Global Administrative Agent to the
U.S. Borrower.  No less than two (2)
Business Days prior to the effective date of the increase of the Aggregate
Commitment, the Global Administrative Agent shall notify the U.S. Borrower of
the amount of the fee to be charged by the Lenders, and the U.S. Borrower may,
at least one (1) Business Day prior to such effective date, cancel its request
for the commitment increase.  Upon
satisfaction of the conditions precedent to any increase in the Aggregate
Commitment, the Global Administrative Agent shall promptly advise the U.S.
Borrower and each Syndicated Global Lender of the effective date of such
increase.  Upon the effective date of any
increase in the Aggregate Commitment that is supported by a Proposed New
Lender, such Proposed New Lender shall be a party to this Agreement as a Lender
and shall have the rights and obligations of a Lender hereunder.  Nothing contained herein shall constitute, or
otherwise be deemed to be, a commitment on the part of any Lender to increase
its Commitment hereunder at any time.


 


(ii)  For purposes of this clause
(ii), (A) the term “Buying Lender(s)” shall mean (1) each Syndicated
Global Lender the Effective Commitment Amount of which is greater than its
Commitment prior to the effective date of any increase in the Aggregate
Commitment and (2) each Proposed New Lender that is allocated an Effective
Commitment Amount in connection with any Commitment Increase Notice and (B) the
term “Selling Lender(s)” shall mean each Syndicated Global Lender whose
Commitment is not being increased from that in effect prior to such increase in
the Aggregate Commitment.  Effective on
the effective date of any increase in the Aggregate Commitment pursuant to
clause (i) above, each Selling Lender hereby sells, grants, assigns and conveys
to each Buying Lender, without recourse, warranty, or representation of any
kind, except as specifically provided herein, an undivided percentage in such
Selling Lender’s right, title and interest in and to the sum of (i) the
aggregate principal amount of its Syndicated Global Loans outstanding at such
time, plus (ii) an amount equal to its actual


 


36





















 


participation
interest of its Pro Rata Share of the aggregate principal amount of Swing Line
Loans and Syndicated Canadian Loans outstanding at such time (“Outstanding
Credit Exposure”) in the respective Dollar Amounts and percentages
necessary so that, from and after such sale, each such Selling Lender’s
Outstanding Credit Exposure shall equal such Selling Lender’s Pro Rata Share
(calculated based upon the Effective Commitment Amounts) of the Aggregate
Outstanding Credit Exposure.  Effective
on the effective date of the increase in the Aggregate Commitment pursuant to
clause (i) above, each Buying Lender hereby purchases and accepts such grant,
assignment and conveyance from the Selling Lenders. Each Buying Lender hereby
agrees that its respective purchase price for the portion of the Aggregate
Outstanding Credit Exposure purchased hereby shall equal the respective Dollar
Amount necessary so that, from and after such payments, each Buying Lender’s
Outstanding Credit Exposure shall equal such Buying Lender’s Pro Rata Share
(calculated based upon the Effective Commitment Amounts) of the aggregate of
the Outstanding Credit Exposure of all the Syndicated Global Lenders (“Aggregate
Outstanding Credit Exposure”).  Such
amount shall be payable on the effective date of the increase in the Aggregate
Commitment by wire transfer of immediately available funds to the Global
Administrative Agent.  The Global
Administrative Agent, in turn, shall wire transfer any such funds received to
the Selling Lenders, in same day funds, for the sole account of the Selling
Lenders.  Each Selling Lender hereby
represents and warrants to each Buying Lender that such Selling Lender owns the
Outstanding Credit Exposure being sold and assigned hereby for its own account
and has not sold, transferred or encumbered any or all of its interest in such
Outstanding Credit Exposure, except for participations which will be reduced or
extinguished (as applicable) upon payment to Selling Lender of an amount equal
to the portion of the Aggregate Outstanding Credit Exposure being sold by such
Selling Lender.  Each Buying Lender
hereby acknowledges and agrees that, except for each Selling Lender’s
representations and warranties contained in the foregoing sentence, each such
Buying Lender is buying such interest without recourse to the Selling Lender
and has entered into its Commitment and Acceptance with respect to such
increase on the basis of its own independent investigation and has not relied
upon, and will not rely upon, any explicit or implicit written or oral
representation, warranty or other statement of the Lenders or the Global
Administrative Agent concerning the authorization, execution, legality,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or the other Loan Documents. 
The U.S. Borrower hereby agrees to compensate each Selling Lender for
all losses, expenses and liabilities incurred by such Selling Lender in
connection with the sale and assignment of any Eurocurrency Rate Loan hereunder
on the terms and in the manner as set forth in Section 3.4.


 


2.5  Method of Borrowing
Advances.


 


(a)  Syndicated Global Advances.  The Global Administrative Agent shall,
promptly upon receipt of a Syndicated Global Advance Borrowing Notice, notify
each Syndicated Global Lender of such Syndicated Global Advance Borrowing
Notice and, not later than such time as is reasonably requested by the Global
Administrative Agent on each Borrowing Date, each Syndicated Global Lender
shall make available its Syndicated Global Loan or Loans, in funds immediately
available to the Global Administrative Agent at its address specified pursuant
hereto, unless the Global Administrative Agent has notified the Syndicated
Global Lenders that such Loan is to be made available to a Global Borrower at
the Global Administrative Agent’s Eurocurrency Payment Office, in which case
each Syndicated Global Lender shall make available its Syndicated Global Loan
or Loans, in funds immediately


 


37





















 


available to the Global
Administrative Agent at its Eurocurrency Payment Office, not later than 4:00
p.m. (local time in the city of the Global Administrative Agent’s Eurocurrency
Payment Office) in the Agreed Currency designated by the Global Administrative
Agent.  The Global Administrative Agent
will promptly make the funds so received from the Syndicated Global Lenders
available to the relevant Global Borrower.


 


(b)  Syndicated Canadian Advances.  Subject to any alternate procedures set forth
in the Syndicated Canadian Addendum, the Global Administrative Agent shall,
promptly upon receipt of a Syndicated Canadian Borrowing Notice, notify each
relevant Syndicated Canadian Bank of such Syndicated Canadian Borrowing Notice
and, not later than such local time as is reasonably requested by the Global
Administrative Agent on each Borrowing Date, each such Syndicated Canadian Bank
shall make available its Syndicated Canadian Loan(s), in funds immediately
available in Canadian Dollars, to the Global Administrative Agent at its
address specified pursuant to Article XIV hereof.  The Global Administrative Agent will promptly
make the funds so received from the Syndicated Canadian Banks available to the
Canadian Borrower.


 


2.6  Method of Selecting
Types and Interest Periods; Determination of Applicable Margins.


 


(a)  Method of Selecting Types and Interest
Periods for Advances.  Each Borrower
shall select the Type of Syndicated Global Advance or Syndicated Canadian
Advance and, in the case of each Eurocurrency Rate Advance or CDOR Advance, the
Interest Period and permitted currency applicable to each Syndicated Global
Advance, Syndicated Canadian Advance and CDOR Advance from time to time.


 


(i)  Syndicated
Global Advances.  Each Global
Borrower shall give the applicable office of the Global Administrative Agent or
its applicable Affiliate (in each case as previously directed by the Global
Administrative Agent to such Global Borrower) irrevocable notice (a “Syndicated Global Advance Borrowing Notice”), at its
applicable office as previously specified to such Borrower, not later than the
applicable time described in Schedule I, specifying:  (i) the Borrowing Date of such Advance (which
shall be a Business Day); (ii) the aggregate amount of such Advance; (iii) the
Type of Advance selected and (iv) in the case of each Eurocurrency Rate
Advance, the Interest Period and Agreed Currency applicable thereto.  Each Syndicated Global Advance in an Agreed
Currency other than Dollars must be a Eurocurrency Rate Advance; provided that
each Syndicated Global Advance in euro must be a Eurocurrency Rate Advance
based on EURIBOR.  Each Syndicated Global
Advance in Canadian Dollars shall only be a Eurocurrency Rate Advance.  There shall be no more than ten (10) Interest
Periods in effect with respect to all of the Syndicated Global Advances to any
one Global Borrower at any time.  Each
Floating Rate Advance shall bear interest from and including the date of the
making of such Advance to (but not including) the date of repayment thereof at
the applicable Floating Rate, changing when and as such Floating Rate
changes.  Changes in the rate of interest
on that portion of any Syndicated Global Advance maintained as a Floating Rate Loan
will take effect simultaneously with each change in the Alternate Base Rate or
Canadian Prime Rate, as applicable.  Each
Eurocurrency Rate Advance shall bear interest from and including the first day
of the Interest Period applicable


 


38





















 


thereto
to (but not including) the last day of such Interest Period at the interest
rate determined as applicable to such Eurocurrency Rate Advance.


 


(ii)  Syndicated
Canadian Advances.  The Canadian
Borrower shall give the Global Administrative Agent irrevocable notice (an “Syndicated Canadian Advance Borrowing Notice”) not later
than the applicable time described in Schedule I, specifying:  (i) the Borrowing Date of such Advance (which
shall be a Business Day); (ii) the aggregate amount of such Advance; (iii) the
Type of Advance selected; (iv) in the case of each CDOR Advance and
Eurocurrency Rate Advance, the Interest Period applicable thereto and (v) the
permitted currency applicable thereto. 
Each Syndicated Canadian Advance shall be a CDOR Advance denominated in
Canadian Dollars, Eurocurrency Rate Advance denominated in Dollars or Canadian
Dollars, Base Rate Advance denominated in Dollars or a Canadian Prime Rate
Advance denominated in Canadian Dollars. 
There shall be no more than ten (10) Interest Periods in effect with
respect to all of the Syndicated Canadian Advances at any time.  Each Canadian Prime Rate Advance shall bear
interest from and including the date of the making of such Advance to (but not
including) the date of repayment thereof at the applicable Canadian Prime Rate,
changing when and as such Canadian Prime Rate changes.  Each Syndicated Canadian Advance which is a
Base Rate Advance shall bear interest from and including the date of the making
of such Advance to (but not including) the date of repayment thereof at the
applicable Alternate Base Rate, changing when and as such Alternate Base Rate
changes.  Each Syndicated Canadian
Advance which is a CDOR Advance shall be discounted over the relevant Interest
Period at CDOR.  Each Syndicated Canadian
Advance which is a Eurocurrency Rate Advance shall bear interest from and
including the first day of the Interest Period applicable thereto to (but not
including) the last day of such Interest Period at the interest rate determined
as applicable to such Eurocurrency Rate Advance.


 


(b)  Determination of Applicable Margin and
Applicable Facility Fee.


 


(i)  Definitions.  As used in this Section 2.6(b)
and in this Agreement, the following terms shall have the following meanings:


 


“Applicable Margin”
and  “Applicable
Facility Fee” shall mean the per annum rates constituting the
Applicable Margin and Applicable Facility Fee, respectively, determined in
accordance with the provisions of this Section 2.6(b) by reference to
the U.S. Borrower’s Status (or, in the circumstances described in clause (ii)
below, Harley’s Status) and established by reference to the following:


 


	
  Applicable Pricing

  	
   

  	
  Level I

  	
   

  	
  Level II

  	
   

  	
  Level III

  	
   

  	
  Level IV

  	
   

  	
  Level V

  	
   

  
	
  Applicable Margin for Relevant Loans

  	
   

  	
  0.14

  	
  %

  	
  0.18

  	
  %

  	
  0.22

  	
  %

  	
  0.26

  	
  %

  	
  0.375

  	
  %

  
	
  Applicable Facility Fee

  	
   

  	
  0.06

  	
  %

  	
  0.07

  	
  %

  	
  0.08

  	
  %

  	
  0.09

  	
  %

  	
  0.1250

  	
  %

  
	
  Utilization Fee (>50%)

  	
   

  	
  0.05

  	
  %

  	
  0.05

  	
  %

  	
  0.10

  	
  %

  	
  0.10

  	
  %

  	
  0.125

  	
  %

  
	
  All in Drawn Cost (<50%)

  	
   

  	
  0.20

  	
  %

  	
  0.25

  	
  %

  	
  0.30

  	
  %

  	
  0.35

  	
  %

  	
  0.50

  	
  %

  
	
  All in Drawn Cost (>50%)

  	
   

  	
  0.25

  	
  %

  	
  0.30

  	
  %

  	
  0.40

  	
  %

  	
  0.45

  	
  %

  	
  0.625

  	
  %

  



 


39





















 


“Level I Status”
exists at any date if, on such date, the U.S. Borrower’s Moody’s Rating is Aa3
or better or the U.S. Borrower’s S&P Rating is AA- or better (or in the circumstances
described in clause (ii) below, the Moody’s Rating and S&P Rating of
Harley).


 


“Level II Status”
exists at any date if, on such date, (i) the U.S. Borrower has not qualified
for Level I Status and (ii) the U.S. Borrower’s Moody’s Rating is A1 or better
or the U.S. Borrower’s S&P Rating is A+ or better (or in the circumstances
described in clause (ii) below, the Moody’s Rating and S&P Rating of
Harley).


 


“Level III Status”
exists at any date if, on such date, (i) the U.S. Borrower has not qualified
for Level I Status or Level II Status and (ii) the U.S. Borrower’s Moody’s
Rating is A2 or better or the U.S. Borrower’s S&P Rating is A or better (or
in the circumstances described in clause (ii) below, the Moody’s Rating and
S&P Rating of Harley).


 


“Level IV Status”
exists at any date if, on such date, (i) the U.S. Borrower has not qualified
for Level I Status, Level II Status or Level III Status and (ii) the U.S.
Borrower’s Moody’s Rating is A3 or better or the U.S. Borrower’s S&P Rating
is A- or better (or in the circumstances described in clause (ii) below, the
Moody’s Rating and S&P Rating of Harley).


 


“Level V Status”
exists at any date if, on such date, the U.S. Borrower (or in the circumstances
described in clause (ii) below, Harley) has not qualified for Level I Status,
Level II Status, Level III Status or Level IV Status.


 


“Moody’s Rating”
means, at any time, the rating issued by Moody’s Investor Service, Inc., and
then in effect with respect to the U.S. Borrower’s senior unsecured long-term debt
securities, without third-party credit enhancement.


 


“Relevant Loans”
means (1) Eurocurrency Rate Loans, (2) Eurocurrency Rate Advances, (3) CDOR
Loans, (4) CDOR Advances, (5) Swing Line Loans which are Fixed Rate Loans and
(6) USD Swing Line Loans described in Section 2.9.1(b)(y).


 


“S&P Rating”
means, at any time, the rating issued by Standard and Poor’s Rating Services, a
division of The McGraw Hill Companies, Inc., and then in effect with respect to
the U.S. Borrower’s senior unsecured long-term debt securities, without
third-party credit enhancement.


 


40





















 


“Status” means
either Level I Status, Level II Status, Level III Status, Level IV Status or
Level V Status.


 


(ii)  Determination
of Applicable Margin and Applicable Facility Fee.  The Applicable Margin in respect of any Loan
and the Applicable Facility Fee payable under Section 2.14(C) shall
be determined by reference to the table set forth in clause (i) above,
as applicable, on the basis of the U.S. Borrower’s Status as determined from
its then-current Moody’s Rating and S&P Rating, to change as and when such
Moody’s Rating or S&P Rating changes. 
The credit rating in effect on any date for the purposes of this Section is
that in effect at the close of business on such date.  Notwithstanding the foregoing, (i) if at any
time the U.S. Borrower has no Moody’s Rating or S&P Rating, then Harley’s
S&P Rating and Moody’s Rating shall be used to determine Status and if at
any time neither the U.S. Borrower nor Harley has any Moody’s Rating or S&P
Rating, Level V Status shall exist and (ii) if the U.S. Borrower (or in the
circumstance described above, Harley) is split-rated and the ratings
differential is two levels or more, the intermediate rating at the midpoint
will apply and if there is no midpoint, the higher of the two intermediate
ratings will apply.


 


2.7  Minimum Amount of Each Syndicated Global
Advance and Syndicated Canadian Advance.  Each Syndicated Global Advance and Syndicated
Canadian Advance shall be in the applicable minimum amounts specified in Schedule I
or, in the case of a Syndicated Canadian Advance, such other amounts as may be
specified in the Syndicated Canadian Addendum; provided, however,
that any Base Rate Advance may be in the amount of the unused Aggregate
Commitment and any Canadian Prime Rate Advance or Base Rate Advance to the
Canadian Borrower may be in the amount of the unused Syndicated Canadian
Commitments.


 


2.8  Method of Selecting Types and Interest
Periods for Conversion and Continuation of Syndicated Global Advances,
Syndicated Canadian Advances and Swing Line Loans.


 


(A)  Right to Convert.  The applicable Borrower may elect from time
to time, subject to the provisions of Section 2.6, Section 2.7
and this Section 2.8, to convert all or any part of an Advance of
any Type into any other Type or Types of Advance; provided that any
conversion of any Fixed Rate Advance or Fixed Rate Loan shall be made on, and
only on, the last day of the Interest Period applicable thereto.


 


(B)  Automatic Conversion and Continuation.  Floating Rate Loans shall continue as
Floating Rate Loans of the same Type unless and until such Floating Rate Loans
are converted into Fixed Rate Loans. 
Fixed Rate Loans shall continue as Fixed Rate Loans until the end of the
then applicable Interest Period therefor, at which time such Fixed Rate Loans
(other than Fixed Rate Loans in Agreed Currencies other than Dollars) shall be
automatically converted into Base Rate Loans unless the applicable Borrower
shall have given the Global Administrative Agent notice in accordance with Section 2.8(D)
requesting that, at the end of such Interest Period, such Fixed Rate Loans
continue as a Fixed Rate Loan.  Fixed
Rate Loans, including, without limitation, Swing Line Loans, in a currency
other than Dollars and Syndicated Canadian Loans (other than CDOR Loans which
shall be converted to Canadian Prime Rate Loans in accordance with the
Syndicated Canadian Addendum) shall, upon the expiry of the then current
Interest Period, automatically continue as Fixed Rate Loans in the same
currency and of the same Type


 


41





















 


unless the applicable
Borrower notifies the Global Administrative Agent otherwise as provided herein.


 


(C)  No Conversion Post-Default.  Notwithstanding anything to the contrary
contained in Section 2.8(A) or Section 2.8(B), no
Syndicated Global Loan, Swing Line Loan or Syndicated Canadian Loan may be
converted into or continued as a Fixed Rate Loan except with the consent of the
Required Lenders when any Default has occurred and is continuing; provided
that, absent such consent, any such Syndicated Global Loan, Swing Line Loan
or Syndicated Canadian Loan which is a Eurocurrency Rate Loan in a currency
other than Dollars or Canadian Dollars shall, upon the expiration of the
relevant Interest Period then applicable thereto, bear interest for each
subsequent day at a per annum rate equal to the rate applicable to Eurocurrency
Rate Loans to the relevant Borrower for such currency for an Interest Period of
one month.


 


(D)  Conversion/Continuation Notice.  The applicable Borrower shall give the Global
Administrative Agent irrevocable notice (a “Conversion/Continuation
Notice”) of each conversion of a Floating Rate Loan into a Fixed
Rate Loan or continuation of a Fixed Rate Loan not later than the time prior to
the date of the requested conversion or continuation which is consistent with
the requisite time and notice required in connection with Section 2.6(a),
specifying:  (1) the requested date
(which shall be a Business Day) of such conversion or continuation; (2) the
amount and Type of the Syndicated Global Loan, Swing Line Loan or Syndicated
Canadian Loan to be converted or continued; and (3) the amounts of Fixed Rate
Loan(s) into which such Syndicated Global Loan, Swing Line Loan or Syndicated
Canadian Loan is to be converted or continued, the applicable permitted
currency and the duration of the Interest Periods applicable thereto.  If no such notice is given with respect to a
Fixed Rate Loan (other than CDOR Loans) in a currency other than Dollars, the
Interest Period applicable to the automatic continuation of such Loan shall be
one month.


 


(E)  Limitations on Conversions.  Notwithstanding anything herein to the
contrary, at the election of the applicable Borrowers under this Section 2.8,
(x) Eurocurrency Rate Advances in an Agreed Currency may be converted and/or
continued as Eurocurrency Rate Advances only in the same Agreed Currency, (y)
U.K. Swing Line Loans in a U.K. Swing Line Currency may be converted and/or
continued as U.K. Swing Line Loans only in the same U.K. Swing Line Currency
and (z) Syndicated Canadian Loans in a particular permitted currency may be
converted and/or continued as Syndicated Canadian Loans only in the same currency.


 


2.9  Swing Line Loans.


 


2.9.1  USD Swing Line Loans.  (a)  Amount
of USD Swing Line Loans.  Upon the
satisfaction of the conditions precedent set forth in Sections 4.1 and 4.2,
from and including the date of this Agreement and prior to the Termination
Date, the Global Swing Line Lender agrees, on the terms and conditions set
forth in this Agreement, to make USD Swing Line Loans in Dollars to the U.S.
Borrower from time to time in an amount not to exceed in the aggregate at any
one time outstanding the lesser of (i) $25,000,000 or (ii) the amount by which
the Aggregate Commitment exceeds the sum of the outstanding principal Dollar
Amount of Syndicated Global Advances, Bid Rate Advances, Swing Line Loans and
Syndicated Canadian Advances at such time. 
Each USD Swing Line Loan shall be in the applicable minimum amounts
specified in Schedule II (or such lesser amount as may be agreed to by the
Global Swing Line Lender) or an


 


42





















 


integral multiple
thereof as specified in Schedule II (or such lesser amount as may be
agreed to by the Global Swing Line Lender) in excess thereof, and all interest
payable on the USD Swing Line Loans shall be payable to the Global Swing Line
Lender for the account of the Global Swing Line Lender.


 


(b)  Borrowing Notice; Interest on USD Swing
Line Loans.  The U.S. Borrower shall
deliver to the Global Administrative Agent and the Global Swing Line Lender a
notice (a “USD Swing Line Borrowing Notice”)
signed by it not later than the applicable time and to the applicable location
described in Schedule II on the Borrowing Date of each USD Swing Line Loan
specifying (i) the applicable Borrowing Date (which shall be a Business Day)
and (ii) the aggregate amount of the requested USD Swing Line Loan.  All USD Swing Line Loans shall bear interest
at the election of the U.S. Borrower at a per annum rate equal to (x) the Prime
Rate or (y) the sum of (a) a money market rate or fixed rate of interest for an
interest period as agreed to by the Global Swing Line Lender and the U.S.
Borrower (which interest period shall not in any event exceed thirty (30) days)
plus (b) the Applicable Margin then in effect.


 


(c)  Making of USD Swing Line Loans.  Promptly after receipt of the Borrowing
Notice under Section 2.9.1(b), the Global Administrative Agent
shall notify the Global Swing Line Lender of the requested USD Swing Line
Loan.  Not later than 3:00 p.m. (New York
time) on the applicable Borrowing Date, the Global Swing Line Lender shall make
available its USD Swing Line Loan in funds immediately available as directed by
the U.S. Borrower.


 


(d)  Repayment of USD Swing Line Loans.  Each USD Swing Line Loan shall be paid in
full by the U.S. Borrower on or before the thirtieth day after the Borrowing
Date for such USD Swing Line Loan (or if earlier on the last day of the
interest period applicable thereto). 
Outstanding USD Swing Line Loans may be repaid from the proceeds of
Syndicated Global Advances or Bid Rate Advances.  Any repayment or prepayment of a USD Swing
Line Loan shall be accompanied by accrued interest thereon and, subject to Section 2.9.1(a),
shall be in the minimum amount of $100,000 (or such lesser amount as may be
agreed to by the Global Swing Line Lender) and in increments of $100,000 (or
such lesser amount as may be agreed to by the Global Swing Line Lender) in
excess thereof or the full amount of such USD Swing Line Loan.  If the U.S. Borrower at any time fails to
repay a USD Swing Line Loan on the applicable date when due, the U.S. Borrower
shall be deemed to have elected to borrow a Syndicated Global Advance which
shall be a Base Rate Advance under Section 2.1 as of such date
equal in amount to the unpaid amount of such USD Swing Line Loan
(notwithstanding the minimum amount of Base Rate Advances as provided in Section 2.7).  The proceeds of any such Advance shall be
used to repay such USD Swing Line Loan. 
Unless the Global Administrative Agent upon the request of or with the
consent of the Required Lenders shall have notified the Global Swing Line
Lender prior to such Global Swing Line Lender making any USD Swing Line Loan,
that the applicable conditions precedent set forth in Article IV
have not then been satisfied, each Syndicated Global Lender’s obligation to
make Syndicated Global Loans pursuant to Section 2.1 and this Section 2.9.1(d)
to repay such USD Swing Line Loan shall be unconditional, continuing,
irrevocable and absolute and shall not be affected by any circumstances,
including the inability of the U.S. Borrower to satisfy the conditions
precedent set forth in Article IV or the occurrence or continuance
of a Default.  In the event that any
Syndicated Global Lender fails to make payment to the Global Administrative
Agent of any amount due under this Section 2.9.1(d), the Global Administrative
Agent shall be entitled to receive, retain and apply against such obligation


 


43





















 


the
principal and interest otherwise payable to such Syndicated Global Lender
hereunder until the Global Administrative Agent receives such payment from such
Syndicated Global Lender or such obligation is otherwise fully satisfied.  In addition to the foregoing, if for any
reason any Syndicated Global Lender fails to make payment to the Global
Administrative Agent of any amount due under this Section 2.9.1(d),
such Syndicated Global Lender shall be deemed, at the option of the Global
Administrative Agent, to have unconditionally and irrevocably purchased from
the Global Swing Line Lender, without recourse or warranty, an undivided
interest in and participation in the applicable USD Swing Line Loan in the
amount of the Syndicated Global Loan such Syndicated Global Lender was required
to make pursuant to this Section 2.9.1(d), and such interest and
participation may be recovered from such Syndicated Global Lender together with
interest thereon at the Federal Funds Effective Rate for each day during the
period commencing on the date of demand by the Global Administrative Agent and
ending on the date such obligation is fully satisfied.


 


2.9.2  Canadian
Swing Line Loans.  (a)  Amount of Canadian Swing Line Loans.  Upon the satisfaction of the conditions
precedent set forth in Sections 4.1 and 4.2, from and including
the date of this Agreement and prior to the Termination Date, the Global Swing
Line Lender agrees, on the terms and conditions set forth in this Agreement and
pursuant to other arrangements agreed to in writing by the U.S. Borrower and
the Global Swing Line Lender, to make Canadian Swing Line Loans in Canadian
Dollars to the Canadian Borrower and the U.S. Borrower, in each case from time
to time in an amount not to exceed in the aggregate, and on a cumulative basis
for the Canadian Borrower and the U.S. Borrower, at any one time outstanding
the lesser of (i) the Canadian Swing Line Commitment and (ii) the amount by
which the Aggregate Commitment exceeds the sum of the outstanding principal
Dollar Amount of Syndicated Global Advances, Bid Rate Advances, Swing Line
Loans and Syndicated Canadian Advances at such time.  Each Canadian Swing Line Loan shall be in the
applicable minimum amounts specified in Schedule II (or such lesser amount
as may be agreed to by the Global Swing Line Lender) or an integral multiple
thereof as specified in Schedule II (or such lesser amount as may be
agreed to by the Global Swing Line Lender) in excess thereof, and all interest
payable on the Canadian Swing Line Loans shall be payable to the Global Swing
Line Lender for the account of the Global Swing Line Lender.  In no event shall the number of Interest
Periods under Canadian Swing Line Loans outstanding at any time be greater than
five (5).


 


(b)  Borrowing Notice; Interest on Canadian
Swing Line Loans.  The relevant
Borrower shall (unless such Borrower and the Global Swing Line Lender agree
otherwise) deliver to the Global Administrative Agent and the Global Swing Line
Lender a notice (a “Canadian Swing Line
Borrowing Notice”) signed by it not later than the applicable time
and to the applicable location described in Schedule II specifying (i) the
applicable Borrowing Date (which shall be a Business Day), (ii) the aggregate
amount of the requested Canadian Swing Line Loan, (iii) whether such Canadian
Swing Line Loan is to be made to the Canadian Borrower or the U.S. Borrower and
(iv) the Type of Loan requested.  All
Canadian Swing Line Loans made to the Canadian Borrower shall be Canadian Prime
Rate Loans or CDOR Loans and all Canadian Swing Line Loans made to the U.S.
Borrower shall be Canadian Prime Rate Loans or Eurocurrency Rate Loans
denominated in Canadian Dollars only. 
All Canadian Swing Line Loans (x) that are Canadian Prime Rate Loans
shall bear interest at the Canadian Prime Rate and (y) that are CDOR Loans or
Eurocurrency Rate Loans shall have an Interest Period not in excess of thirty
(30) days.


 


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(c)  Making of Canadian Swing Line Loans.  Unless otherwise agreed by the applicable
Borrower and the Global Swing Line Lender, not later than 4:00 p.m. (Toronto
time) on the applicable Borrowing Date, (i) if the requested Canadian Swing
Line Loan is to be made to the Canadian Borrower, the Global Swing Line Lender
shall make available its Canadian Swing Line Loan in funds immediately
available at the applicable location described in Schedule II to the
Canadian Borrower and (ii) if the requested Canadian Swing Line Loan is to be
made to the U.S. Borrower, the Global Swing Line Lender shall make available
its Canadian Swing Line Loan in funds immediately available at the applicable
location described in Schedule II to the U.S. Borrower.


 


(d)  Repayment of Canadian Swing Line Loans.  Each Canadian Swing Line Loan shall be paid in
full by the applicable Borrower which has received such Canadian Swing Line
Loan on or before the thirtieth day after the Borrowing Date for such Canadian
Swing Line Loan (or if earlier on the last day of the interest period
applicable thereto).  Outstanding
Canadian Swing Line Loans may be repaid from the proceeds of Syndicated Global
Advances or, if such Canadian Swing Line Loans were made to the Canadian
Borrower, Syndicated Canadian Advances. 
Any payment or repayment of a Canadian Swing Line Loan shall be
accompanied by accrued interest thereon and, subject to Section 2.9.2(a),
shall be in the minimum amount of Cdn. $500,000 (or such lesser amount as may
be agreed to by the Global Swing Line Lender) and in increments of Cdn.
$100,000 (or such lesser amount as may be agreed to by the Global Swing Line
Lender) in excess thereof or the full amount of such Canadian Swing Line
Loan.  Any prepayment or repayment of a
Canadian Swing Line Loan other than at the end of the applicable Interest
Period, if any, shall be for the full amount thereof and shall be accompanied
by all amounts payable pursuant to Section 3.4.


 


(e)  Risk Participation by Syndicated Canadian
Banks in Canadian Swing Line Loans. 
If the Canadian Borrower at any time fails to repay a Canadian Swing
Line Loan made to such Borrower on the applicable date when due, such Borrower
shall be deemed to have elected to borrow a Syndicated Canadian Advance which
shall be a Canadian Prime Rate Advance under Section 2.2 as of such
date equal in amount to the unpaid amount of such Canadian Swing Line Loan
(notwithstanding the minimum amount of Canadian Prime Rate Advances as provided
in Section 2.7).  The
proceeds of any such Advance shall be used to repay such Canadian Swing Line
Loan.  Other than with respect to
Canadian Swing Line Loans, if any, made by virtue of the relevant Borrower’s
overdraft facilities with the Global Swing Line Lender, unless the Global
Administrative Agent upon the request of or with the consent of the Required
Lenders shall have notified the Global Swing Line Lender prior to such Global
Swing Line Lender making any Canadian Swing Line Loan, that the applicable
conditions precedent set forth in Article IV have not then been
satisfied, each Syndicated Canadian Bank’s obligation to make Syndicated
Canadian Loans pursuant to Section 2.2 and this Section 2.9.2(e)
to repay such Canadian Swing Line Loan shall be unconditional, continuing,
irrevocable and absolute and shall not be affected by any circumstances,
including the inability of the applicable Borrower to satisfy the conditions
precedent set forth in Article IV or the occurrence or continuance
of a Default.  In the event that any
Syndicated Canadian Bank fails to make payment to the Global Administrative
Agent of any amount due under this Section 2.9.2(e), the Global
Administrative Agent shall be entitled to receive, retain and apply against
such obligation the principal and interest otherwise payable to such Syndicated
Canadian Bank hereunder until the Global Administrative Agent receives such
payment from such Syndicated Canadian Bank or such obligation is otherwise
fully satisfied.  In


 


45





















 


addition to the
foregoing, if for any reason any Syndicated Canadian Bank fails to make payment
to the Global Administrative Agent of any amount due under this Section 2.9.2(e),
such Syndicated Canadian Bank shall be deemed, at the option of the Global
Administrative Agent, to have unconditionally and irrevocably purchased from
the Global Swing Line Lender, without recourse or warranty, an undivided
interest in and participation in the applicable Canadian Swing Line Loan in the
amount of the Syndicated Canadian Loan such Syndicated Canadian Bank was
required to make pursuant to this Section 2.9.2(e), and such
interest and participation may be recovered from such Syndicated Canadian Bank
together with interest thereon at the Federal Funds Effective Rate for each day
during the period commencing on the date of demand by the Global Administrative
Agent and ending on the date such obligation is fully satisfied.


 


(f)  Risk Participation by Syndicated Global
Lenders in Canadian Swing Line Loans. 
If the U.S. Borrower at any time fails to repay a Canadian Swing Line
Loan made to such Borrower on the applicable date when due, such Canadian Swing
Line Loan shall be converted to and redenominated in Dollars equal to the
unpaid Dollar Amount of such Canadian Swing Line Loan determined as of the date
of such conversion and such Borrower shall be deemed to have elected to borrow
a Syndicated Global Advance which shall be a Base Rate Advance under Section 2.1
as of such date in such Dollar Amount (notwithstanding the minimum amount of
Base Rate Advances as provided in Section 2.7).  The proceeds of any such Advance shall be
used to repay such Canadian Swing Line Loan. 
Each Syndicated Global Lender’s obligation to make Syndicated Global
Loans pursuant to Section 2.1 and this Section 2.9.2(f)
to repay such Canadian Swing Line Loan shall be unconditional, continuing, irrevocable
and absolute and shall not be affected by any circumstances, including the
inability of the applicable Borrower to satisfy the conditions precedent set
forth in Article IV or the occurrence or continuance of a
Default.  In the event that any Syndicated
Global Lender fails to make payment to the Global Administrative Agent of any
amount due under this Section 2.9.2(f), the Global Administrative
Agent shall be entitled to receive, retain and apply against such obligation
the principal and interest otherwise payable to such Syndicated Global Lender
hereunder until the Global Administrative Agent receives such payment from such
Syndicated Global Lender or such obligation is otherwise fully satisfied.  In addition to the foregoing, if for any
reason any Syndicated Global Lender fails to make payment to the Global
Administrative Agent of any amount due under this Section 2.9.2(f),
such Syndicated Global Lender shall be deemed, at the option of the Global
Administrative Agent, to have unconditionally and irrevocably purchased from
the Global Administrative Agent, without recourse or warranty, an undivided
interest in and participation in the applicable Canadian Swing Line Loan in the
amount of the Syndicated Global Loan such Syndicated Global Lender was required
to make pursuant to this Section 2.9.2(f), and such interest and
participation may be recovered from such Syndicated Global Lender together with
interest thereon at (1) the Federal Funds Effective Rate in the case of Loans
denominated in Dollars and (2) the Overnight Foreign Currency Rate for Canadian
Dollars in the case of Loans denominated in Canadian Dollars, in each case for
each day during the period commencing on the date of demand by the Global
Administrative Agent and ending on the date such obligation is fully satisfied.


 


2.9.3  U.K.
Swing Line Loans.


 


(a)  Amount of U.K. Swing Line Loans.  Upon the satisfaction of the conditions
precedent set forth in Sections 4.1 and 4.2, from and including the date
of this Agreement and


 


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prior to the date that is
five (5) Business Days prior to the Termination Date, the Global Swing Line
Lender agrees, on the terms and conditions set forth in this Agreement, to make
U.K. Swing Line Loans in one or more U.K. Swing Line Currencies to the Global
Borrowers from time to time in a Dollar Amount not to exceed in the aggregate
at any one time outstanding the lesser of (i) the U.K. Swing Line Commitment at
such time and (ii) the amount by which the Aggregate Commitment exceeds the sum
of the outstanding principal Dollar Amount of Syndicated Global Advances, Bid
Rate Advances, Swing Line Loans and Syndicated Canadian Advances at such
time.  Each U.K. Swing Line Loan shall be
in the applicable minimum amounts specified in Schedule II (or such lesser
amount as may be agreed to by the Global Swing Line Lender) or an integral
multiple thereof as specified in Schedule II (or such lesser amount as may
be agreed to by the Global Swing Line Lender) in excess thereof, and all interest
payable on the U.K. Swing Line Loans shall be payable to the Global Swing Line
Lender for the account of the Global Swing Line Lender.  In no event shall the number of U.K. Swing
Line Loans outstanding at any time be greater than five (5).


 


(b)  Borrowing Notice; Interest on U.K. Swing
Line Loans.  The relevant Global
Borrower shall deliver to the Global Administrative Agent and the Global Swing
Line Lender a notice (a “U.K. Swing Line Borrowing
Notice”) signed by it not later than the applicable time and to the
applicable location described in Schedule II specifying (i) the applicable
Borrowing Date (which shall be a Business Day), (ii) the aggregate amount of
the requested U.K. Swing Line Loan, (iii) the U.K. Swing Line Currency in which
such Loan is requested and (iv) the initial Interest Period in connection
therewith.  All of the U.K. Swing Line
Loans shall be Eurocurrency Rate Loans with an Interest Period not in excess of
thirty (30) days.


 


(c)  Making of U.K. Swing Line Loans.  Not later than 3:00 p.m. (London time) on the
applicable Borrowing Date, the Global Swing Line Lender shall make available
its U.K. Swing Line Loan in funds in the applicable U.K. Swing Line Currency
immediately available at the applicable location described in Schedule II
to the relevant Global Borrower.


 


(d)  Repayment of U.K. Swing Line Loans.  Each U.K. Swing Line Loan shall be paid in
full by the relevant Global Borrower on or before the date that is the last day
of the Interest Period applicable to such U.K. Swing Line Loan and shall be
prepaid if required in connection with the provisions of Section 2.3(B)(ii). 
Outstanding U.K. Swing Line Loans may be repaid from the proceeds of
Syndicated Global Advances.  Any
repayment or prepayment of a U.K. Swing Line Loan shall be accompanied by
accrued interest thereon and, subject to Section 2.9.3(a), shall be
in the minimum amount of $50,000 or the Equivalent Amount in the relevant U.K.
Swing Line Currency (or such lesser amount as may be agreed to by the Global
Swing Line Lender) and in increments of $50,000 or the Equivalent Amount in the
relevant U.K. Swing Line Currency (or such lesser amount as may be agreed to by
the Global Swing Line Lender) in excess thereof or the full amount of such U.K.
Swing Line Loan.  Any prepayment or
repayment of a U.K. Swing Line Loan other than at the end of the applicable
Interest Period shall be for the full amount thereof and shall be accompanied
by all amounts payable pursuant to Section 3.4.  If any Global Borrower at any time fails to
repay a U.K. Swing Line Loan on the applicable date when due, such Borrower
shall be deemed to have elected to borrow a Syndicated Global Advance which
shall be a Eurocurrency Rate Advance in the applicable Agreed Currency under Section 2.1
as of such date equal in amount to the unpaid amount of such U.K. Swing Line
Loan (notwithstanding the minimum amount of Eurocurrency Rate Advances).  The proceeds of any


 


47





















 


such
Advance shall be used to repay such U.K. Swing Line Loan.  Unless the Global Administrative Agent upon
the request of or with the consent of the Required Lenders shall have notified
the Global Swing Line Lender prior to such Global Swing Line Lender making any U.K.
Swing Line Loan, that the applicable conditions precedent set forth in Article IV
have not then been satisfied, each Syndicated Global Lender’s obligation to
make Syndicated Global Loans pursuant to Section 2.1 and this Section 2.9.3(d)
to repay such U.K. Swing Line Loan shall be unconditional, continuing,
irrevocable and absolute and shall not be affected by any circumstances,
including the inability of any Borrower to satisfy the conditions precedent set
forth in Article IV or the occurrence or continuance of a
Default.  In the event that any
Syndicated Global Lender fails to make payment to the Global Administrative
Agent of any amount due under this Section 2.9.3(d), the Global
Administrative Agent shall be entitled to receive, retain and apply against
such obligation the principal and interest otherwise payable to such Syndicated
Global Lender hereunder until the Global Administrative Agent receives such
payment from such Syndicated Global Lender or such obligation is otherwise
fully satisfied.  In addition to the
foregoing, if for any reason any Syndicated Global Lender fails to make payment
to the Global Administrative Agent of any amount due under this Section 2.9.3(d),
such Syndicated Global Lender shall be deemed, at the option of the Global
Administrative Agent, to have unconditionally and irrevocably purchased from
the Global Swing Line Lender, without recourse or warranty, an undivided
interest in and participation in the applicable U.K. Swing Line Loan in the
amount of the Syndicated Global Loan such Syndicated Global Lender was required
to make pursuant to this Section 2.9.3(d), and such interest and
participation may be recovered from such Syndicated Global Lender together with
interest thereon at (1) the Federal Funds Effective Rate in the case of Loans
denominated in Dollars and (2) the Overnight Foreign Currency Rate in the case
of Loans denominated in any other U.K. Swing Line Currency, in each case for
each day during the period commencing on the date of demand by the Global
Administrative Agent and ending on the date such obligation is fully satisfied.


 


2.10  The Bid Rate Advances.  (a)  Each
Syndicated Global Lender severally agrees that, on the terms and conditions set
forth in this Agreement, either Global Borrower may request and receive Bid
Rate Advances in Dollars, euro or any Eligible Currency under this Section 2.10
from time to time on any Business Day during the period from the date hereof
until the date occurring 30 days prior to the Termination Date in the manner
set forth below; provided, however, that, following the making of
each Bid Rate Advance, the aggregate Dollar Amount of (i) the Advances, (ii)
the Swing Line Loans and (iii) the Syndicated Canadian Loans then outstanding
shall not exceed the Aggregate Commitment.


 


(b)  The procedures for the solicitation and
acceptance of Bid Rate Loans are set forth below:


 


(i)  The
applicable Global Borrower may request a Bid Rate Advance under this Section 2.10(b)
by giving the Global Administrative Agent irrevocable notice at the office and
location specified by the Global Administrative Agent, in the form attached
hereto as Exhibit G (a “Bid Rate Advance Borrowing Notice”),
specifying the date, currency and aggregate amount of the proposed Bid Rate
Advance, the maturity date for repayment of each Bid Rate Loan to be made as
part of such Bid Rate Advance (which maturity date may not be earlier than, in
the case of an Absolute Rate Auction, the date occurring thirty days, and in
the case of an Indexed Rate Auction, the date occurring one


 


48





















 


month
after the date of the related Bid Rate Advance or later than, in the case of an
Absolute Rate Auction, the earlier of the day occurring 180 days after the date
of such Bid Rate Advance and the Termination Date, and in the case of an Indexed
Rate Auction, the earlier of the day occurring six months after the date of
such Bid Rate Advance and the Termination Date), the interest payment date or
dates relating thereto, and any other terms to be applicable to such Bid Rate
Advance, not later than 10:00 a.m. (New York time in the case of Bid Rate
Advances to the U.S. Borrower and London time in the case of Bid Rate Advances
to the U.K. Borrower) (A) one Business Day prior to the date of the proposed
Bid Rate Advance, if the applicable Global Borrower shall specify in the Bid
Rate Advance Borrowing Notice that the rates of interest to be offered by the
Syndicated Global Lenders shall be absolute rates per annum (such type of
solicitation being an “Absolute Rate Auction”) and (B) five Business Days
prior to the date of the proposed Bid Rate Advance, if the applicable Global
Borrower shall specify in the Bid Rate Advance Borrowing Notice that the rates
of interest to be offered by the Syndicated Global Lenders shall be based on
the Eurocurrency Base Rate with respect to the applicable currency (such type
of solicitation being an “Indexed Rate Auction”).  The Global Administrative Agent shall,
promptly following its receipt of a Bid Rate Advance Borrowing Notice under
this Section 2.10(b), notify each Syndicated Global Lender of such
request by sending such Syndicated Global Lender a copy of such Bid Rate
Advance Borrowing Notice.


 


(ii)  Each
Syndicated Global Lender may, if, in its sole discretion, it elects to do so,
irrevocably offer to make one or more Bid Rate Loans to the applicable Global
Borrower as part of such proposed Bid Rate Advance at a rate or rates of
interest specified by such Syndicated Global Lender in its sole discretion, by
notifying the Global Administrative Agent (which shall give prompt notice
thereof to the applicable Global Borrower), before 11:00 a.m. (New York time in
the case of Bid Rate Loans to the U.S. Borrower and London time in the case of
Bid Rate Loans to the U.K. Borrower) (or if such Syndicated Global Lender is the
Global Administrative Agent, before 10:45 a.m. (New York time in the case of
Bid Rate Loans to the U.S. Borrower and London time in the case of Bid Rate
Loans to the U.K. Borrower)) (A) on the date of such proposed Bid Rate Advance,
in the case of an Absolute Rate Auction, and (B) four Business Days before the
date of such proposed Bid Rate Advance, in the case of an Indexed Rate Auction
of the minimum amount and maximum amount of each Bid Rate Loan which such
Syndicated Global Lender would be willing to make as part of such proposed Bid
Rate Advance (which amounts may, subject to the proviso to the first sentence
of Section 2.10(a), exceed such Syndicated Global Lender’s
Commitment), the rate or rates of interest, in the case of an Absolute Rate
Auction, or the spread or spreads with respect to the Eurocurrency Base Rate,
in the case of an Indexed Rate Auction, therefor and such Syndicated Global
Lender’s Lending Installation with respect to such Bid Rate Loan.


 


(iii)  The applicable Global Borrower shall, in
turn, before (A) 12:00 noon (New York time in the case of Bid Rate Advances to
the U.S. Borrower and London time in the case of Bid Rate Advances to the U.K.
Borrower) on the date of such proposed Bid Rate Advance, in the case of an
Absolute Rate Auction, and (B) 11:00 a.m. (New York time in the case of Bid
Rate Advances to the U.S. Borrower and London time in the case of Bid Rate
Advances to the U.K. Borrower) three Business Days before the date of such


 


49





















 


proposed Bid Rate Advance, in the
case of an Indexed Rate Auction for a Bid Rate Advance, either:


 


(x) cancel such Bid Rate
Advance by giving the Global Administrative Agent notice to that effect; or


 


(y) accept, subject to Section 2.10(d),
one or more of the offers made by any Syndicated Global Lender or Syndicated
Global Lenders pursuant to Section 2.10(b)(ii), in its sole
discretion, by giving notice to the Global Administrative Agent of the amount
of each Bid Rate Loan (which amount shall be equal to or greater than the
minimum amount, and equal to or less than the maximum amount, notified to the
applicable Global Borrower by the Global Administrative Agent on behalf of such
Syndicated Global Lender for such Bid Rate Loan pursuant to Section 2.10(b)(ii))
to be made by each Syndicated Global Lender as part of such Bid Rate Advance,
and reject any remaining offers made by Syndicated Global Lenders pursuant to Section 2.10(b)(ii)
by giving the Global Administrative Agent notice to that effect.


 


(iv)  If the
applicable Global Borrower notifies the Global Administrative Agent that such
Bid Rate Advance is canceled pursuant to Section 2.10(b)(iii)(x), the Global Administrative Agent shall give
prompt notice thereof to the Syndicated Global Lenders and such Bid Rate
Advance shall not be made.


 


(v)  If the
applicable Global Borrower accepts one or more of the offers made by any
Syndicated Global Lender or Syndicated Global Lenders pursuant to Section 2.10(b)(iii)(y),
the Global Administrative Agent shall in turn promptly notify (A) each
Syndicated Global Lender that has made an offer as described in Section 2.10(b)(ii)
of the date, and aggregate amount of such Bid Rate Advance and whether or not
any offer or offers made by such Syndicated Global Lender pursuant to Section 2.10(b)(ii)
have been accepted by the applicable Global Borrower and (B) each Syndicated
Global Lender that is to make a Bid Rate Loan as part of such Bid Rate Advance,
of the amount of each Bid Rate Loan to be made by such Syndicated Global Lender
as part of such Bid Rate Advance.  Each
Syndicated Global Lender that is to make a Bid Rate Loan as part of such Bid
Rate Advance shall, not later than 3:00 p.m. (New York time) on the date of
such Bid Rate Advance specified in the notice received from the Global
Administrative Agent pursuant to clause (A) of the preceding sentence,
make available for the account of its Lending Installation to the Global
Administrative Agent at the relevant Payment Office such Syndicated Global
Lender’s portion of such Bid Rate Advance, in same day funds in the currency
specified in the applicable Bid Rate Advance Borrowing Notice.  Upon fulfillment of the applicable conditions
set forth in Article IV and after receipt by the Global
Administrative Agent of such funds, the Global Administrative Agent will make
such funds available to the applicable Global Borrower at the Global
Administrative Agent’s aforesaid address. 
Promptly after each Bid Rate Advance, the Global Administrative Agent
will notify each Syndicated Global Lender of the amount of such Bid Rate
Advance, the consequent Bid Rate Reduction and the dates upon which such Bid
Rate Reduction commenced and will terminate.


 


50





















 


(vi)  Notwithstanding
the other provisions of this Section 2.10(b), the applicable Global
Borrower may elect at its own discretion to assume the responsibilities of the
Global Administrative Agent in connection with the solicitation and acceptance
of Bid Rate Loans as described in this section. 
In the event that the applicable Global Borrower makes the election
described in this subsection, all notices to be given by such Borrower to the
Global Administrative Agent pursuant to this Section 2.10(b) shall
be given by such Borrower directly to the Global Administrative Agent and the
Syndicated Global Lenders, all notices to be given by the Global Administrative
Agent to the Syndicated Global Lenders pursuant to this Section 2.10(b)
shall be given by such Borrower to the Syndicated Global Lenders, and all
notices to be given by the Syndicated Global Lenders to the Global
Administrative Agent pursuant to this Section 2.10(b) shall be
given by the Syndicated Global Lenders to such Borrower and the Global
Administrative Agent.  In addition, any
fee payable to the Global Administrative Agent in connection with the Bid Rate
Loans in connection with such Bid Rate Loans solicited and accepted by either
Global Borrower pursuant to this clause (vi) is hereby
waived.


 


(c)  Each Bid Rate Advance shall be in an aggregate
amount not less than the Equivalent Amount of $10,000,000 in the applicable
currency or an integral multiple of approximately $1,000,000 in the applicable
currency in excess thereof, and, following the making of each Bid Rate Advance,
the Borrowers shall be in compliance with the limitation set forth in the
proviso to the first sentence of Section 2.10(a).


 


(d)  Each acceptance by the applicable Global
Borrower pursuant to Section 2.10(b)(iii)(y) of the offers made in
response to a Bid Rate Advance Borrowing Notice shall be treated as an
acceptance of such offers in ascending order of the rates or margins, as
applicable, at which the same were made but if, as a result thereof, two or
more offers at the same such rate or margin would be partially accepted, then
the amounts of the Bid Rate Loans in respect of which such offers are accepted
shall be treated as being the amounts which bear the same proportion to one
another as the respective amounts of the Bid Rate Loans so offered bear to one
another but, in each case, rounded as the Global Administrative Agent (or the
applicable Global Borrower in the event such Borrower runs the bid rate process
under clause (b)(vi) above) may consider necessary to ensure that the
Equivalent Amount of each such Bid Rate Loan is approximately $500,000 or an
integral multiple thereof.


 


(e)  Within the limits and on the conditions set
forth in this Section 2.10, each Global Borrower may from time to
time borrow under this Section 2.10, repay pursuant to Section 2.10(f),
and reborrow under this Section 2.10.


 


(f)  The applicable Global Borrower shall repay to
the Global Administrative Agent, for the account of each Syndicated Global
Lender which has made a Bid Rate Loan to it, on the maturity date of such Bid
Rate Loan (such maturity date being that specified by such Borrower for
repayment of such Bid Rate Loan in the related Bid Rate Advance Borrowing
Notice), or, if earlier, the acceleration of the Obligations pursuant to Section 8.1,
the then unpaid principal amount of such Bid Rate Loan.  No Borrower shall have the right to prepay
any principal amount of any Bid Rate Loan without the consent of the applicable
Syndicated Global Lender.


 


51





















 


(g)  The applicable Global Borrower shall pay
interest on the unpaid principal amount of each Bid Rate Loan made to it, from
the date of such Bid Rate Loan to the date the principal amount of such Bid
Rate Loan is repaid in full, at the rate of interest for such Bid Rate Loan
specified by the Syndicated Global Lender making such Bid Rate Loan in the
related notice submitted by such Syndicated Global Lender pursuant to Section 2.10(b)(ii),
payable on the interest payment date or dates specified by such Borrower for
such Bid Rate Loan in the related Bid Rate Advance Borrowing Notice and on any
date on which such Bid Rate Loan is prepaid, whether by acceleration or
otherwise.  In the event the term of any
Bid Rate Loan shall be longer than three months, interest thereon shall be
payable not less frequently than once each three-month period during such
term.  Unless otherwise specified in the
applicable Bid Rate Advance Borrowing Notice, interest on Bid Rate Advances
shall be calculated (a) for actual days elapsed on the basis of a 365-day year
or, when appropriate, 366-day year for Bid Rate Advances made pursuant to an
Indexed Rate Auction and (b) for actual days elapsed on the basis of a 360-day
year for Bid Rate Advances made pursuant to an Absolute Rate Auction.


 


(h)  Except as provided in clause (b)(vi) above, in connection with each Bid Rate Loan, the
applicable Global Borrower shall pay to the Global Administrative Agent the fee
with respect thereto set forth in the relevant fee letter dated as of even date
herewith between the Global Borrowers, J.P. Morgan Securities Inc. and the
Global Administrative Agent.


 


2.11  Default Rate.  Notwithstanding anything contained herein to
the contrary, if any principal of or interest on any Loan or any fee or other
amount payable by any Borrower hereunder is not paid when due, whether at
stated maturity, upon acceleration or otherwise, such overdue amount shall bear
interest, after as well as before judgment, at a rate per annum equal to (i) in
the case of overdue principal of any Loan, 2% plus the rate otherwise
applicable to such Loan as provided herein or (ii) in the case of any other
amount (other than as set forth in the following clause (iii)), 2% plus the
rate applicable to Base Rate Advances as provided herein or (iii) in the case
of any Syndicated Canadian Loan or Canadian Swing Line Loan, 2% plus the rate
applicable to Canadian Prime Rate Loans.


 


2.12  Method of Payment.  (i) 
All payments of principal, interest, and fees hereunder to the Global
Administrative Agent shall be made, without setoff, deduction or counterclaim
(a) at the Global Administrative Agent’s office at the applicable location at
which such Advance was made in immediately available funds with respect to
Advances denominated in Dollars and (b) in the Global Administrative Agent’s
applicable Eurocurrency Payment Office in immediately available funds with
respect to any Advance denominated in an Agreed Currency other than Dollars, in
each case, or at any other Lending Installation of the Global Administrative
Agent specified in writing (by 11:00 a.m. (New York time) on the day before the
date when due) by the Global Administrative Agent to the applicable Borrower,
by 12:00 noon local time in New York, New York with respect to Advances
denominated in Dollars and 12:00 noon local time in the Global Administrative
Agent’s Eurocurrency Payment Office with respect to Advances denominated in an
Agreed Currency other than Dollars on the date when due and shall be made
ratably among the relevant Lenders (unless such amount is not to be shared
ratably in accordance with the terms hereof). 
Each Advance shall be repaid or prepaid in the currency in which it was
made (the “Advanced Currency”) in the amount
borrowed and interest payable thereon shall be paid in such Advanced
Currency.  Notwithstanding anything in
this Agreement, the obligation of any Borrower in respect of any Advance shall
not be discharged by an amount paid in any


 


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currency other
than the Advanced Currency or at another location other than the location
designated by the Global Administrative Agent, whether pursuant to a judgment
or otherwise, to the extent the amount so paid, on prompt conversion into the
Advanced Currency and transfer to the relevant Lenders under normal banking
procedure, does not yield the amount of the Advanced Currency due under the
Loan Documents.  In the event that any
payment, whether pursuant to a judgment or otherwise, upon conversion and
transfer, does not result in payment of the amount of the Advanced Currency due
under the Loan Documents, such Lender shall have an independent cause of action
against each of the Borrowers for the currency deficit.  Each payment delivered to the Global
Administrative Agent for the account of any Lender shall be delivered promptly
by the Global Administrative Agent to such Lender in the same type of funds
which the Global Administrative Agent received at its address specified
pursuant to Article XIV or at any Lending Installation specified in
a notice received by the Global Administrative Agent from such Lender.


 


(ii)  All payments to be made by the applicable
Borrowers hereunder in respect of any Swing Line Loans and Syndicated Canadian
Loans shall be made in the currencies in which such Loans are denominated and
in funds immediately available, at the Global Administrative Agent’s office or
Global Swing Line Lender’s office (as applicable) office from which such Loan
was made not later than 12:00 noon (local time) on the date on which such
payment shall become due.


 


(iii)  Notwithstanding the foregoing provisions of
this Section, if, after the making of any Advance or Loan in any currency other
than Dollars or euro, currency control or exchange regulations are imposed in
the country which issues such currency with the result that different types of
such currency (the “New Currency”) are introduced and the type of currency in
which the Advance was made (the “Original Currency”) no longer exists or the
applicable Borrower is not able to make payment to the Global Administrative
Agent or the Global Swing Line Lender, as applicable, in such Original
Currency, then all payments to be made by the applicable Borrower hereunder in
such currency shall be made in such amount and such type of the New Currency or
Dollars as shall be equivalent to the amount of such payment otherwise due
hereunder in the Original Currency, it being the intention of the parties
hereto that the Borrowers take all risks of the imposition of any such currency
control or exchange regulations.  In
addition, notwithstanding the foregoing provisions of this Section, if, after
the making of any Advance or Loan in any currency other than Dollars or euro,
any applicable Borrower is not able to make payment to the Global
Administrative Agent or the Global Swing Line Lender, as applicable, in the
type of currency in which such Advance or Loan was made because of the
imposition of any such currency control or exchange regulation, then such
Advance or Loan shall instead be repaid when due in Dollars in a principal
amount equal to the Dollar Amount (as of the date of repayment) of such
Advance.


 


2.13  Notes, Telephonic Notices.  Any Lender may request that the Loans made by
it each be evidenced by the applicable Notes to evidence such Lender’s
Loans.  In such event, each applicable Borrower
shall prepare, execute and deliver to such Lender such Note(s) for such Loans
payable to the order of such Lender. 
Thereafter, such Loans evidenced by such Note(s) and interest thereon
shall at all times be represented by one or more Notes, except to the extent
that any such Lender subsequently returns any such Note for cancellation.  Each Borrower authorizes the applicable
Lenders and the Global Administrative Agent to extend Advances,


 


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effect selections
of Types of Advances and to transfer funds based on telephonic notices made by
any person or persons that the Global Administrative Agent or Lender in good
faith believes to be acting on behalf of such Borrower.  Each Borrower agrees to deliver promptly to
the Global Administrative Agent a written confirmation, signed by an Authorized
Officer, if such confirmation is requested by the Global Administrative Agent
or any Lender, of each telephonic notice. 
If the written confirmation differs in any material respect from the
action taken by the Global Administrative Agent and Lenders, (i) the telephonic
notice shall govern absent manifest error and (ii) the Global Administrative
Agent or Lender, as applicable, shall promptly notify the Authorizing Officer
who provided such confirmation of such difference.


 


2.14  Promise to Pay; Interest and Fees; Interest Payment Dates; Interest
and Fee Basis; Loan Accounts.


 


(A)  Promise to Pay.  Each Borrower unconditionally promises to pay
when due the principal amount of each Loan made to it and all other Obligations
incurred by it, and to pay all unpaid interest accrued thereon, in accordance
with the terms of this Agreement.


 


(B)  Interest Payment Dates.  Interest accrued on each Floating Rate Loan,
each Canadian Prime Rate Loan and USD Swing Line Loan shall be payable on each
Payment Date, commencing with the first such date to occur after the date
hereof, at maturity (whether by acceleration or otherwise) and, with respect to
any USD Swing Line Loans on any date on which a USD Swing Line Loan is prepaid,
whether due to acceleration or otherwise. 
Interest accrued on each Fixed Rate Loan (other than CDOR Loans which
are governed by the Syndicated Canadian Addendum) shall be payable on the last
day of its applicable Interest Period, on any date on which the Fixed Rate Loan
is prepaid, whether by acceleration or otherwise, and at maturity.  Interest accrued on each Fixed Rate Loan
having an Interest Period longer than three months shall also be payable on the
last day of each three-month interval during such Interest Period.  Interest accrued on each Bid Rate Loan shall
be payable as provided in Section 2.10(g).  Interest accrued on the principal balance of
all other Obligations shall be payable in arrears (i) upon repayment thereof in
full, (ii) if not theretofore paid in full, at the time such other Obligation
becomes due and payable (whether by acceleration or otherwise) and (iii) if not
theretofore paid in full, on demand, commencing on the first such day following
the date such Obligation became payable pursuant to the terms of this Agreement
or the other Loan Documents.


 


(C)  Fees.  (i) 
The relevant Borrowers shall, or shall cause their respective
Subsidiaries to, pay to the Global Administrative Agent, for the account of
each relevant Lender in accordance with their Pro Rata Shares and Syndicated
Canadian Pro Rata Shares (as appropriate), on arrangements satisfactory to the
U.S. Borrower and the Global Administrative Agent, a facility fee accruing at
the rate of the Applicable Facility Fee per annum from and after the date
hereof until the Termination Date on the amounts of the Aggregate Commitment in
effect from time to time (calculated without regard to amounts
outstanding).  All such facility fees
payable under this clause (C) shall be payable quarterly in arrears on
the first Business Day of each calendar quarter occurring after the date hereof
and, in addition, on the Termination Date.


 


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(ii)  Utilization Fee.  If, at the end of any fiscal quarter, the
average daily aggregate principal amount of outstanding Syndicated Global Loans
and Syndicated Canadian Loans during such quarter exceeded fifty percent (50%)
of the Aggregate Commitment, the relevant Borrowers shall, or shall cause their
respective Subsidiaries to, pay to the Global Administrative Agent, for the
ratable account of each relevant Lender in accordance with its Pro Rata Share
and Syndicated Canadian Pro Rata Share (as appropriate) on arrangements satisfactory
to the U.S. Borrower and the Global Administrative Agent, a utilization fee at
a rate per annum equal to the applicable Utilization Fee set forth in Section 2.6(b)
on the average daily outstanding principal balance of the Syndicated Global
Loans and Syndicated Canadian Loans during such quarter, payable quarterly in
arrears on the first Payment Date to occur in each calendar quarter hereafter
and on the Termination Date or earlier termination of the Commitments.


 


(D)  Interest and Fee Basis.  (i)  Interest
on all Loans (other than Eurocurrency Rate Loans denominated in Pounds
Sterling, Base Rate Loans with respect to which interest is calculated by
reference to the Alternate Base Rate and USD Swing Line Loans), including all
Syndicated Canadian Loans and all fees shall be calculated for actual days
elapsed on the basis of a 360-day year (except as provided otherwise in the
Syndicated Canadian Addendum).  Interest
on (a) Base Rate Loans with respect to which interest is calculated by
reference to the Alternate Base Rate and USD Swing Line Loans and (b)
Eurocurrency Rate Loans denominated in Pounds Sterling and Syndicated Canadian
Loans shall in each case be calculated for actual days elapsed on the basis of
a 365-day year or, when appropriate, 366-day year; provided that Stamping Fees
shall be calculated for actual days elapsed on the basis of a 365-day
year.  Interest shall be payable for the
day an Obligation is incurred but not for the day of any payment on the amount
paid if payment is received by the times and in the offices required under Section 2.12.  If any payment of principal of or interest on
a Loan or any payment of any other Obligations shall become due on a day which
is not a Business Day, such payment shall be made on the next succeeding Business
Day and, in the case of a principal payment, such extension of time shall be
included in computing interest in connection with such payment.


 


(ii)  For purposes of the Interest Act
(Canada), (a) whenever any interest or fee under this Agreement or any
of the other Loan Documents is calculated using a rate based on a year of 360
days or 365 days, as the case may be, the rate determined pursuant to such
calculation, when expressed as an annual rate, is equivalent to (1) the
applicable rate based on a year of 360 days or 365 days, as the case may be,
(2) multiplied by the actual number of days in the calendar year in which the
period for which such interest or fee is payable (or compounded) ends, and (3)
divided by 360 or 365, as the case may be, (b) the principle of deemed
reinvestment of interest does not apply to any interest calculation under this
Agreement, and (iii) the rates of interest stipulated in this Agreement are
intended to be nominal rates and are not effective rates or yields.


 


(E)  Loan Account.  Each Lender shall maintain in accordance with
its usual practice an account or accounts (a “Loan Account”)
evidencing the Obligations of the Borrowers to such Lender owing to such Lender
from time to time, including the amount of principal and interest payable and
paid to such Lender from time to time hereunder.


 


(F)  Entries Binding.  The entries made in the Register and each
Loan Account shall be conclusive and binding for all purposes, absent manifest
error, unless any Borrower objects to


 


55





















 


information
contained in the Register and each Loan Account within thirty (30) days of such
Borrower’s receipt of such information.


 


2.15  Notification of Advances,
Interest Rates, Prepayments and Aggregate Commitment Reductions.  Promptly after receipt thereof, the Global
Administrative Agent will notify each relevant Lender of the contents of each
Aggregate Commitment reduction notice, Borrowing Notice,
Continuation/Conversion Notice and repayment notice received by it
hereunder.  The Global Administrative
Agent will notify each relevant Lender of the interest rate applicable to each
Fixed Rate Loan promptly upon determination of such interest rate.


 


2.16  Lending Installations.  Each Lender may book its Loans at any Lending
Installation selected by such Lender and may change its Lending Installation
from time to time.  All terms of this
Agreement shall apply to any such Lending Installation and any Notes shall be
deemed held by each Lender for the benefit of such Lending Installation.  Each Lender may, by written or facsimile
notice to the Global Administrative Agent and the U.S. Borrower, designate a
Lending Installation through which Loans will be made by it and for whose
account Loan payments are to be made.


 


2.17  Non-Receipt of
Funds by the Global Administrative Agent.  Unless a Borrower or a Lender, as the case
may be, notifies the Global Administrative Agent prior to the date (or time, in
the case of a Floating Rate Loan) on which it is scheduled to make payment to
the Global Administrative Agent of (i) in the case of a Lender, the proceeds of
a Loan or (ii) in the case of a Borrower, a payment of principal, interest or
fees to the Global Administrative Agent for the account of the relevant
Lenders, that it does not intend to make such payment, the Global
Administrative Agent may assume that such payment has been made.  The Global Administrative Agent may, but
shall not be obligated to, make the amount of such payment available to the
intended recipient in reliance upon such assumption.  If such Lender or Borrower, as the case may
be, has not in fact made such payment to the Global Administrative Agent, the
recipient of such payment shall, on demand by the Global Administrative Agent,
repay to the Global Administrative Agent the amount so made available together
with interest thereon in respect of each day during the period commencing on
the date such amount was so made available by the Global Administrative Agent
until the date the Global Administrative Agent recovers such amount at a rate
per annum equal to (i) in the case of payment by a Lender (other than in
respect of any Loan denominated in Canadian Dollars), the Federal Funds
Effective Rate for such day or (ii) in the case of payment by a Lender in respect
of any Loan denominated in Canadian Dollars, at the one-month CDOR for such
day, or (iii) in the case of payment by a Borrower, the interest rate
applicable to the relevant Loan (including without limitation pursuant to Section 2.11
if applicable).


 


2.18  Termination Date.  This Agreement shall be effective until the
Termination Date.  Notwithstanding the
termination of this Agreement on the Termination Date, until all of the
Obligations (other than contingent indemnity and reimbursement obligations, to
the extent such obligations have not accrued) shall have been fully and
indefeasibly paid and satisfied and all financing arrangements under the Loan
Documents among the Borrowers and the Lenders shall have been terminated, all
of the rights and remedies under this Agreement and the other Loan Documents
shall survive.


 


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2.19  Judgment Currency.  If, for the purposes of obtaining judgment in
any court, it is necessary to convert a sum due from a Borrower hereunder or
under the Syndicated Canadian Addendum in the currency expressed to be payable
herein or under the Syndicated Canadian Addendum (the “specified currency”)
into another currency, the parties hereto agree, to the fullest extent that
they may effectively do so, that the rate of exchange used shall be that at
which in accordance with normal banking procedures the Global Administrative
Agent could purchase the specified currency with such other currency at the
Global Administrative Agent’s main office in New York, New York on the Business
Day preceding that on which the final, non-appealable judgment is given.  The obligations of each Borrower in respect
of any sum due to any Lender or the Global Administrative hereunder or under
the Syndicated Canadian Addendum shall, notwithstanding any judgment in a
currency other than the specified currency, be discharged only to the extent
that on the Business Day following receipt by such Lender or the Global
Administrative Agent (as the case may be) of any sum adjudged to be so due in
such other currency such Lender or the Global Administrative Agent (as the case
may be) may in accordance with normal, reasonable banking procedures purchase
the specified currency with such other currency.  If the amount of the specified currency so
purchased is less than the sum originally due to such Lender or the Global
Administrative Agent, as the case may be, in the specified currency, each
Borrower agrees, to the fullest extent that it may effectively do so, as a
separate obligation and notwithstanding any such judgment, to indemnify such
Lender or the Global Administrative Agent, as the case may be, against such
loss, and if the amount of the specified currency so purchased exceeds (a) the
sum originally due to any Lender or the Global Administrative Agent, as the
case may be, in the specified currency and (b) any amounts shared with other
Lenders as a result of allocations of such excess as a disproportionate payment
to such Lender under Section 11.2, such Lender or the Global Administrative
Agent, as the case may be, agrees to remit such excess to such Borrower.


 


2.20  Intentionally Omitted.


 


2.21  Canadian Borrower as
Borrower.  The U.S. Borrower
may at any time add as a party to this Agreement the Canadian Borrower to be
the “Canadian Borrower” in respect of Canadian Swing Line Loans and Canadian
Syndicated Loans, in each case by the execution and delivery to the Global
Administrative Agent of (a) a duly completed Assumption Letter by each of the
Canadian Borrower and the Canadian Guarantor, with the written consent of the
U.S. Borrower at the foot thereof (it being understood and agreed that if the
Canadian Guarantor does not exist at the time of the Canadian Borrower becoming
a party hereto, the U.S. Borrower shall cause the Canadian Guarantor, within 60
days of its formation, to execute and deliver a duly completed Assumption
Letter to the Global Administrative Agent, accompanied by the other instruments
and documents in respect of the Canadian Guarantor contemplated by the following
clause (b)) and (b) any other instruments and documents required by Section 4.3
hereof (in the case of the Canadian Borrower) and comparable instruments and
documents for the Canadian Guarantor. 
Upon such execution, delivery and consent, each of the Canadian Borrower
and the Canadian Guarantor shall for all purposes be a party hereto as the
Canadian Borrower and the Canadian Guarantor, respectively, as fully as if it
had executed and delivered this Agreement.


 


2.22  Termination as Borrower.  So long as the principal of and interest on
any Loans or Advances made to any Foreign Borrower under this Agreement or the
Syndicated Canadian Addendum shall have been repaid or paid in full and all
other obligations of such Foreign


 


57





















 


Borrower under
this Agreement and the Syndicated Canadian Addendum shall have been fully
performed, the U.S. Borrower may, by not less than five (5) Business Days’
prior notice to the Global Administrative Agent (which shall promptly notify
the Lenders thereof), terminate such Foreign Borrower’s rights as a “Borrower”.


 


ARTICLE III  CHANGE IN CIRCUMSTANCES


 


3.1  Yield Protection.  If any law or any governmental or
quasi-governmental rule, regulation, policy, guideline or directive (whether or
not having the force of law) adopted after the date of this Agreement and
having general applicability to all banks within the jurisdiction in which such
Lender operates (excluding, for the avoidance of doubt, the effect of and
phasing in of capital requirements or other regulations or guidelines passed
prior to the date of this Agreement), or any interpretation or application
thereof by any Governmental Authority charged with the interpretation or
application thereof, or the compliance of any Lender therewith,


 


(i)  subjects
any Lender or any applicable Lending Installation to any tax, duty, charge or
withholding on or from payments due from any Borrower (excluding Excluded
Taxes), or changes the basis of taxation of payments to any Lender in respect
of its Loans or other amounts due it hereunder, provided, that this clause
(i) shall not apply with respect to any Taxes to which Section 3.5
applies, or


 


(ii)  imposes or
increases or deems applicable any reserve, assessment, insurance charge, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any applicable Lending
Installation with respect to its Fixed Rate Loans, or


 


(iii)  imposes
any other condition the result of which is to increase the cost to any Lender
or any applicable Lending Installation of making, funding or maintaining the
Fixed Rate Loans or reduces any amount received by any Lender or any applicable
Lending Installation in connection with Fixed Rate Loans, or requires any
Lender or any applicable Lending Installation to make any payment calculated by
reference to the amount of Loans held or interest or fee received by it, by an
amount deemed material by such Lender;


 


and the result of any of the foregoing is to increase
the cost to that Lender of making, renewing or maintaining its Loans or to
reduce any amount received under this Agreement, then, within 15 days after
receipt by the relevant Borrower of written demand by such Lender pursuant to Section 3.6,
such Borrower shall pay such Lender that portion of such increased expense
incurred or reduction in an amount received which such Lender determines is
attributable to making, funding and maintaining its Loans and its Commitment or
Syndicated Canadian Commitment.


 


3.2  Changes in Capital
Adequacy Regulations.  If a
Lender determines (i) the amount of capital required or expected to be
maintained by such Lender, any Lending Installation of such Lender or any
corporation controlling such Lender is increased as a result of a “Change” (as
defined below), and (ii) such increase in capital will result in an increase in
the cost to such Lender of maintaining its Loans or its obligation to make
Loans hereunder, then, within 15 days


 


58





















 


after receipt by
the relevant Borrower of written demand by such Lender pursuant to Section 3.6,
such Borrower shall pay such Lender the amount necessary to compensate for any
shortfall in the rate of return on the portion of such increased capital which
such Lender determines is attributable to this Agreement, its Loans or its
obligation to make Loans hereunder (after taking into account such Lender’s
policies as to capital adequacy).  “Change” means (i) any change after the date of this Agreement
in the “Risk-Based Capital Guidelines” (as defined below) excluding, for the
avoidance of doubt, the effect of any phasing in of such Risk-Based Capital
Guidelines or any other capital requirements, in each case passed prior to the
date hereof, or (ii) any adoption of or change in any other law, governmental
or quasi-governmental rule, regulation, policy, guideline, interpretation, or
directive (whether or not having the force of law) after the date of this
Agreement and having general applicability to all banks and financial
institutions within the jurisdiction in which such Lender operates which
affects the amount of capital required or expected to be maintained by any
Lender or any Lending Installation or any corporation controlling any Lender.  “Risk-Based Capital
Guidelines” means (i) the risk-based capital guidelines in effect in
the United States on the date of this Agreement, including transition rules,
and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States or Canada (if applicable) implementing
the July 1988 report of the Basel Committee on Banking Supervision
Entitled “International Convergence of Capital Measurement and Capital
Standards,” including transition rules, and any amendments to such regulations
adopted prior to the date of this Agreement and including, for the avoidance of
doubt, the recommendations set out in the report entitled ‘Basel II:  International Convergence of Capital
Measurement and Capital Standards:  A
Revised Framework’, which was published by the Basel Committee on Banking
Supervision on June 26, 2004 and the European Commission proposal (COM
(2004) 486) of July 14, 2004.


 


Notwithstanding
any other provision of this Section 3.2, the U.K. Borrower shall not be obliged
to make any increased payment pursuant to this Section 3.2 to the extent
that the relevant cost, increased cost, reduction or liability is compensated
for by any payment calculated in accordance with the Mandatory Cost or
represents Excluded Taxes.


 


3.3  Availability of Types of
Advances.  If (i) any Lender
determines that maintenance of any of its Fixed Rate Loans at a suitable
Lending Installation would violate any applicable law, rule, regulation or
directive, whether or not having the force of law, or (ii) the Required Lenders
with respect to Fixed Rate Advances or the Global Swing Line Lender with
respect to Swing Line Loans determine that (x) deposits of a type, currency and
maturity appropriate to match fund Fixed Rate Advances or Swing Line Loans, as
applicable, are not available or (y) the interest rate applicable to a Fixed
Rate Advance or Swing Line Loan does not accurately reflect the cost of making
or maintaining such a Fixed Rate Advance or Swing Line Loans, then the Global
Administrative Agent shall suspend the availability of Fixed Rate Advances or
such Swing Line Loans of the affected Type or in the affected currency and, in
the case of any occurrence set forth in clause (i), require any affected Fixed
Rate Advances or Swing Line Loans to be repaid or, in the case of Eurocurrency
Rate Loans in Dollars, at the option of the U.S. Borrower, converted to Base
Rate Advances or, in the case of any Loans to the Canadian Borrower, at the
option of the Canadian Borrower, converted to Canadian Prime Rate Advances.


 


3.4  Funding Indemnification.  If any payment of a Fixed Rate Advance, Fixed
Rate Swing Line Loan or Bid Rate Advance occurs on a date which is not the last
day of the


 


59





















 


applicable Interest
Period in the case of a Fixed Rate Advance or Fixed Rate Swing Line Loans, or
the applicable maturity date in the case of a Bid Rate Advance, whether because
of acceleration, prepayment, assignment (to the extent such assignment is
effected pursuant to Section 3.8) or otherwise, or a Fixed Rate
Advance, Fixed Rate Swing Line Loan or Bid Rate Advance is not made or
continued on the date specified by any Borrower for any reason other than
default by the Lenders, the U.S. Borrower and such Borrower agrees to indemnify
each Lender for any loss or cost (including lost profits) incurred by it
resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain the Fixed Rate
Advance, Fixed Rate Swing Line Loan or Bid Rate Advance, as the case may be.


 


3.5  Taxes. 
(i)  Unless such deduction is
required by applicable law, all payments by any Borrower or any Guarantor to or
for the account of any Lender or the Global Administrative Agent hereunder or
under any Note shall be made free and clear of and without deduction for any
and all Taxes.  If any Borrower or any
Guarantor shall be required by applicable law to deduct any Taxes from or in
respect of any sum payable hereunder to any Lender or the Global Administrative
Agent, then, except as otherwise specifically provided in this Section 3.5,
(a) the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 3.5) such Lender or the Global Administrative
Agent (as the case may be) receives an amount equal to the sum it would have
received had no such deductions been made, (b) such Borrower or Guarantor, as
applicable, shall make such deductions, (c) such Borrower or Guarantor, as
applicable, shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) such Borrower or Guarantor, as
applicable, shall furnish to the Global Administrative Agent the original or a
certified copy of a receipt evidencing payment thereof or, in the case of a
deduction made under tax legislation in the United Kingdom or England and
Wales, evidence reasonably satisfactory to the Global Administrative Agent that
the deduction has been made.  Each
Syndicated Global Lender which is not otherwise a Qualifying Lender hereby
agrees to fund its Syndicated Global Loans to the U.K. Borrower through an
office, branch or Affiliate, if any, resident in the United Kingdom for United
Kingdom tax purposes.


 


(ii) In addition, except as otherwise specifically
provided in this Section 3.5, each Borrower and Guarantor hereby
agrees to pay any present or future stamp or documentary taxes and any other
excise or property taxes, charges or similar levies which arise from any
payment made hereunder by the relevant Borrower or Guarantor to the relevant
Lender, or under any Note but excluding any such taxes, charges or levies in
respect of any assignment, sale or transfer or participation (but excluding any
participations and transfers pursuant to Section 2.2(E)) by any
Lender or the Global Administrative Agent or from the execution or delivery of,
or otherwise with respect to, this Agreement or any Note (“Other Taxes”).


 


(iii) Each Borrower and Guarantor hereby agree to
indemnify the Global Administrative Agent and each Lender for the full amount
of Taxes or Other Taxes (including, without limitation, any Taxes or Other
Taxes imposed on amounts payable under this Section 3.5) paid by
the Global Administrative Agent or such Lender and any liability (including
penalties, interest and expenses) arising therefrom or with respect thereto;
provided that each Borrower and Guarantor shall not be required to so indemnify
to the extent any relevant amount is actually compensated for under any other
provision of this Agreement.  Payments
due under this


 


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indemnification
shall be made within 30 days of the date the Global Administrative Agent or
such Lender makes demand therefor pursuant to Section 3.6.


 


(iv) At least five Business Days prior to the first
date on which interest or fees are payable hereunder for the account of any
Syndicated Global Lender, such Lender to the extent it is not incorporated
under the laws of the United States of America or a state thereof (each a “Non-U.S. Lender”) agrees that it will deliver to each of
the U.S. Borrower, each Guarantor and the Global Administrative Agent (1) two
duly completed copies of IRS Form W-8BEN or W-8ECI, certifying in either case
that such Lender is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes or (2) in
the case of a Non-U.S. Lender that is fiscally transparent, a copy of IRS Form
W-8IMY together with the applicable accompanying forms, W-8 or W-9, as the case
may be, and certify that it is entitled to an exemption from United States
backup withholding tax (such certificate, an “Exemption
Certificate”).  Each Non-U.S.
Lender further undertakes to deliver to each of the U.S. Borrower and the
Global Administrative Agent (i) two renewals or additional copies of such form
(or any successor form) on or before the date that such form expires or becomes
obsolete, and (ii) after the occurrence of any event requiring a change in the
most recent forms so delivered by it, such additional forms or amendments
thereto as may be reasonably requested by the U.S. Borrower, any Guarantor or
the Global Administrative Agent.  All
forms or amendments described in the preceding sentence shall certify that such
Lender is entitled to receive payments under this Agreement without deduction
or withholding of any United States federal income taxes, unless
an event (including without limitation any change in treaty, law or regulation)
has occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the U.S. Borrower, the Guarantors and the
Global Administrative Agent that it is not capable of receiving payments
without any deduction or withholding of United States federal income tax.


 


(v) For any period during which a Non-U.S. Lender has
failed to provide the U.S. Borrower or the Guarantors with an appropriate form
or Exemption Certificate pursuant to clause (iv) above (unless such
failure is due to a change in treaty, law or regulation, or any change in the
interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a form or Exemption Certificate
originally was required to be provided), such Non-U.S. Lender shall not be
entitled to indemnification under this Section 3.5 with respect to
Taxes imposed by the United States; provided that, should a Non-U.S.
Lender which is otherwise exempt from or subject to a reduced rate of
withholding tax become subject to Taxes because of its failure to deliver a
form or Exemption Certificate required under clause (iv), above, the
U.S. Borrower or the Guarantors shall take such steps as such Non-U.S. Lender
shall reasonably request to assist such Non-U.S. Lender to recover such Taxes.


 


(vi) The U.K. Borrower and/or any Guarantor is not
required to make an increased payment to the Global Administrative Agent or a
Lender under this Section 3.5 with respect to Taxes imposed, nor
any deductions required, by the United Kingdom in respect of a payment of
interest (including any items classified as interest by the relevant taxing
authority) on a Loan, if on the date on which the payment falls due:


 


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(a)  the payment could have been
made to the relevant Lender without a deduction for Taxes if it was a Qualifying
Lender, but on that date that Lender is not or has ceased to be a Qualifying
Lender other than as a result of any change after the date it became a Lender
under this Agreement in (or in the interpretation, administration, or
application of) any law or Treaty, or any published practice or concession of
any relevant taxing authority; or


 


(b)  (1) the relevant Lender is a
Qualifying Lender solely under sub-paragraph (ii) of the definition of
Qualifying Lender; (2) the Board of the Inland Revenue has given (and not
revoked) a direction (a “Direction”) under section 349C of the Taxes Act
(as that provision has effect on the date on which the relevant Lender became a
Lender) which relates to that payment and that Lender has received from the
U.K. Borrower a certified copy of that Direction; and (3) the payment could
have been made to the Lender without any deduction for Tax in the absence of
that Direction; or


 


(c)  the relevant Lender is a
Treaty Lender and either (1) neither of the following conditions have been
satisfied (A) notice under the relevant Treaty has been given by the United
Kingdom Inland Revenue to the U.K. Borrower or the relevant Guarantor
authorizing the U.K. Borrower or the relevant Guarantor to make such payment
without deduction for Tax or (B) the Global Administrative Agent has obtained
provisional authority under the PTR Scheme authorizing the relevant Borrower to
make such payment without deduction for Tax and such provisional authority has
not been withdrawn or revoked or (2) the U.K. Borrower or the relevant
Guarantor is able to demonstrate that the payment could have been made to the
Lender without deduction for Tax had that Lender complied with its obligations paragraphs
(vii) or (viii) below.


 


(vii) Each Treaty Lender and the U.K. Borrower shall
use reasonable efforts to co-operate in completing any procedural formalities
necessary for the U.K. Borrower to obtain authorization to make that payment
without a deduction for Tax or allow the relevant Treaty Lender to recover such
Taxes where any such payment has been made subject to a deduction for Tax.


 


(viii) PTR Scheme


 


(a)  Each Treaty Lender:


 


(1)  irrevocably appoints
the Global Administrative Agent to act as syndicate manager under, and
authorizes the Global Administrative Agent to operate, and take any action
necessary or desirable under, the PTR Scheme in connection with this Agreement;


 


(2)  shall co-operate
with the Global Administrative Agent in completing any procedural formalities
necessary under the PTR Scheme, and shall promptly supply to the Global
Administrative Agent such information as the Global Administrative Agent may
request in connection with the operation of the PTR Scheme;


 


(3)  without limiting the
liability of the U.K. Borrower under this Agreement, shall, within 30 Business
Days of demand, indemnify the Global


 


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Administrative Agent for any liability or loss
incurred by the Global Administrative Agent as a result of the Global
Administrative Agent acting as syndicate manager under the PTR Scheme in
connection with the Treaty Lender’s participation in any Loan (except to the
extent that the liability or loss arises directly from the Global
Administrative Agent’s gross negligence or willful misconduct); and


 


(4)  agrees to, indemnify the U.K. Borrower and
each Guarantor for any Tax or increased Tax or any interest or penalties
associated therewith which the U.K. Borrower or such Guarantor becomes liable
to pay in respect of any payments made to such Treaty Lender arising as a
result of any incorrect information supplied by such Treaty Lender which
results in a provisional authority issued by the U.K. Inland Revenue under the
PTR Scheme being withdrawn.  Payments due
under this indemnification shall be made within 30 Business Days of demand by
U.K. Borrower or the applicable Guarantor.


 


(b)  The U.K. Borrower acknowledges that it is
fully aware of its contingent obligations under the PTR Scheme and shall:


 


(1)  promptly supply to the Global Administrative
Agent such information as the Global Administrative Agent may request in
connection with the operation of the PTR Scheme; and


 


(2)  act in accordance
with any provisional notice issued by the U.K. Inland Revenue under the PTR
Scheme.


 


(c)  The Global Administrative Agent agrees to
provide, as soon as reasonably practicable, a copy of any provisional authority
issued to it under the PTR Scheme in connection with any Loan to the U.K.
Borrower.


 


(d)  All of the parties hereto acknowledge that
the Global Administrative Agent:


 


(1)  is entitled to rely
completely upon information provided to it in connection with sub-paragraph (a)
or (b) above;


 


(2)  is not obliged to undertake any enquiry into
the accuracy of such information, nor into the status of the Treaty Lender or, as
the case may be, U.K. Borrower providing such information; and


 


(3)  shall have no
liability to any person for the accuracy of any information it submits in
connection with paragraph (a)(1) above.


 


(e)  In this Clause “PTR Scheme” means the
Provisional Treaty Relief scheme as described in Inland Revenue Guidelines
dated January 2003 and administered by the Inland Revenue’s Centre for
Non-Residents.


 


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(ix) At least five Business Days prior to the first date
on which interest or fees are payable hereunder for the account of any
Syndicated Canadian Bank or the Global Swing Line Lender in respect of Canadian
Swing Line Loans to the Canadian Borrower, such Syndicated Canadian Bank or
Global Swing Line Lender to the extent it is neither incorporated under the
laws of a jurisdiction in Canada nor deemed to be a resident in Canada for
purposes of Part XIII of the Income Tax Act (Canada)
(each a “Non-Canadian Lender”) agrees that it
will deliver to each of the Canadian Borrower and the Global Administrative
Agent a certificate of a duly authorized officer of such Non-Canadian Lender to
the effect that such Non-Canadian Lender is capable under the provisions of an
applicable tax treaty or under the provisions of applicable law of receiving,
and enabling the Canadian Borrower under the provisions of the Income Tax Act (Canada) to make, payments of interest or
fees with respect to the Syndicated Canadian Loans and Canadian Swing Line
Loans to the Canadian Borrower without deduction or withholding of income tax
(such certificate, a “Canadian Exemption
Certificate”).  Each
Non-Canadian Lender further undertakes to deliver to each of the Canadian
Borrower and the Global Administrative Agent a replacement certificate of a duly
authorized officer of such Non-Canadian Lender before or promptly upon the
occurrence of any event requiring a change in the Canadian Exemption
Certificate so delivered by it.  All
certificates described in the preceding sentences shall certify that such
Non-Canadian Lender is entitled to receive interest or fees under this
Agreement or the Syndicated Canadian Addendum without deduction or withholding
of any applicable income taxes, unless an event
(including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such certificates inapplicable or which would
prevent such Non-Canadian Lender from duly completing and delivering any such
certificate with respect to it and such Non-Canadian Lender advises the
Canadian Borrower and the Global Administrative Agent that it is not capable of
receiving payments without any deduction or withholding of applicable income
tax.


 


(x) For any period during which a Non-Canadian Lender
has failed to provide the Canadian Borrower with an appropriate Canadian
Exemption Certificate as required pursuant to clause (ix) above (unless
such failure is due to a change in treaty, law or regulation, or any change in
the interpretation or administration thereof by any governmental authority,
occurring subsequent to the date on which a Canadian Exemption Certificate
originally was required to be provided), such Non-Canadian Lender shall not be
entitled to indemnification under this Section 3.5 with respect to
Taxes imposed by the applicable jurisdiction in Canada; provided that,
should a Non-Canadian Lender which is otherwise exempt from or subject to a
reduced rate of withholding tax become subject to Taxes because of its failure
to deliver a Canadian Exemption Certificate required under clause (ix),
above, the Canadian Borrower shall take such steps as such Non-Canadian Lender
shall reasonably request to assist such Non-Canadian Lender to recover such
Taxes.  In addition, neither any
Syndicated Canadian Bank nor the Global Swing Line Lender shall be entitled to
indemnification under this Section 3.5 with respect to Taxes
imposed by the applicable jurisdiction in Canada other than indemnity
obligations under this Section 3.5 arising out of a change after
the Closing Date in any applicable treaty, law or regulation, or any change in
the interpretation or administration thereof by any governmental authority.


 


(xi) If a Borrower
or Guarantor pays an amount under this Section 3.5, or is required
to make a deduction or withholding in relation to a payment hereunder or under
any Note and


 


64





















 


account
for the same to the relevant tax authority, which gives or may give rise to a
Tax Credit for the recipient of that payment (the “Recipient”),
the Recipient shall, promptly upon utilisation or receipt of such Tax Credit,
pay an amount to such Borrower or the relevant Guarantor which will leave it
(after that payment) in the same after-Tax position as it would have been in
had the original amount paid under this Section 3.5 (or withheld or
deducted pursuant to applicable law) not been required to have been made,
withheld or deducted; provided that nothing in this clause (xi)
shall require any Lender to make available its tax return (or any other
information relating to its taxes which it deems confidential).


 


(xii) If (i) a Lender or the Global Administrative
Agent assigns, transfers or sells all or any portion of its rights and/or
delegates all or any portion of its obligations under this Agreement and the
other Loan Documents (but excluding any participations and other transfers
pursuant to Section 2.2(E)) or changes its Lending Installation for
the purposes of this Agreement, and (ii) as a direct result of circumstances
existing at the date of the assignment, transfer, sale, delegation or change,
any Borrower or Guarantor would be obliged to pay any incremental amount under
this Section 3.5, then the transferee or Lender acting through its
new Lending Installation shall only be entitled to receive payment under this Section 3.5
to the same extent that the previous Lender or the Lender acting through its
previous Lending Installation would have been entitled if no such transaction
had taken place.  If a Lender sells a
participation in all or any part of its rights or obligations under this
Agreement and the other Loan Documents, the participant shall only be entitled
to receive payment under this Section 3.5 to the extent that the
Lender selling the participation would have been entitled if no such
participation had taken place. 
Notwithstanding the foregoing or anything else contained in this Section 3.5,
in the event of a participation or transfer pursuant to Section 2.2(E),
the participant shall be entitled to the indemnification under Sections
3.5(i) and 3.5(iii) in respect of any payments received pursuant to
such participation or transfer.


 


(xiii) Where this Agreement or any Note requires the
relevant Borrower or Guarantor to reimburse a Lender or the Global
Administrative Agent for any costs or expenses, such Borrower or Guarantor
shall also at the same time pay and indemnify the relevant Lender or the Global
Administrative Agent (as applicable) against all United Kingdom value added tax
(“VAT”) incurred by such Lender or the
Global Administrative Agent (as applicable) in respect of the costs or expenses
to the extent that such Lender or the Global Administrative Agent (as
applicable) reasonably determines that neither it nor any other member of any group
of which it is a member for VAT purposes is entitled to credit or repayment
from the relevant tax authority in respect of VAT.


 


3.6  Mitigation; Lender
Statements; Survival of Indemnity. 
To the extent reasonably possible, each Lender shall designate an
alternate Lending Installation with respect to its Fixed Rate Loans to reduce
any liability of the relevant Borrower or the Guarantors to such Lender under Sections
3.1 and 3.2 or to avoid the unavailability of a Type of Advance
under Section 3.3, so long as such designation is not materially
disadvantageous to such Lender.  Each
Lender requiring compensation pursuant to this Article III shall
use its reasonable efforts to notify the relevant Borrower and the Global
Administrative Agent in writing of any Change, law, policy, rule, guideline or directive
giving rise to such demand for compensation not later than one hundred and
twenty (120) days following the date upon which the responsible account officer
of such Lender knows or should have known of such Change, law, policy, rule,
guideline or


 


65





















 


directive.  Any demand for compensation pursuant to this Article III
shall be in writing and shall state the amount due, if any, under Section 3.1,
3.2, 3.4 or 3.5 and shall set forth in reasonable detail
the calculations upon which such Lender determined such amount.  Such written demand shall be rebuttably
presumed correct for all purposes. Determination of amounts payable under such
Sections in connection with a Fixed Rate Loan shall be calculated as though
each Lender funded its Fixed Rate Loan through the purchase of a deposit of the
type, currency and maturity corresponding to the deposit used as a reference in
determining the applicable fixed rate of interest with respect to such Loan,
whether in fact that is the case or not. 
The obligations of the Borrowers and the Guarantors under Sections
3.1, 3.2, 3.4 and 3.5 shall survive payment of the
Obligations and termination of this Agreement.


 


3.7  Non-U.S. Reserve Costs
or Fees.  If, any law
or any governmental or quasi-governmental rule, regulation, policy, guideline
or directive of any jurisdiction outside of the United States of America or any
subdivision thereof and outside of England and Wales or any subdivision thereof
(whether or not having the force of law), imposes or deems applicable any
reserve requirement against or fee with respect to assets of, deposits with or
for the account of, or credit extended by, any Lender or any applicable Lending
Installation (other than any Tax), and the result of the foregoing is to
increase the cost to such Lender or applicable Lending Installation of making
or maintaining its Loans to any Foreign Borrower or its Commitment, Swing Line
Commitment or Syndicated Canadian Commitment to any Borrower or to reduce the
return received by such Lender or applicable Lending Installation in connection
with such Loans to any Foreign Borrower or Commitment, Swing Line Commitment or
Syndicated Canadian Commitment to any Foreign Borrower, then, within 15 days of
demand by such Lender, such Foreign Borrower shall pay such Lender such
additional amount or amounts as will compensate such Lender for such increased
cost or reduction in amount received.


 


3.8  Replacement of Affected
Lenders.  If, any
Lender requests compensation under Section 3.1, 3.2 or 3.7,
or if any Borrower is required to pay any additional amount pursuant to Section 3.5,
or if any Lender defaults in its obligation to fund Loans hereunder, then the
U.S. Borrower may, at its sole expense and effort, upon notice to such Lender
and the Global Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions
contained in Section 13.3), all its interests, rights and
obligations under this Agreement (other than any outstanding Bid Rate Loans
held by it) to an assignee that shall assume such obligations (which assignee
may be another Lender, if a Lender accepts such assignment); provided
that (i) in the case of an assignment to an assignee which is not a Lender, the
U.S. Borrower shall have received the prior written consent of the Global
Administrative Agent, which consent shall not unreasonably be withheld, (ii)
such Lender shall have received payment of an amount equal to the outstanding
principal of its Loans (other than Bid Rate Loans) and participations in the
relevant Loans, accrued interest thereon, accrued fees and all other amounts
payable to it hereunder, from the assignee (to the extent of such outstanding principal
and accrued interest and fees) or the U.S. Borrower (in the case of all other
amounts) and (iii) in the case of any such assignment resulting from a
claim for compensation under Sections 3.1, 3.2 or 3.7
or payments required to be made pursuant to Section 3.5, such
assignment will result in a reduction in such compensation or payments with
respect to the assignee Lender.  A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling the U.S. Borrower to require such assignment and delegation cease to
apply.


 


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ARTICLE IV  CONDITIONS PRECEDENT


 


4.1  Initial Loans.  This Agreement shall not become effective nor
shall the Lenders be required to make the initial Loans unless the initial
Borrowers shall have (a) paid all fees required to be paid in connection with
the execution of this Agreement, (b) furnished to the Global Administrative
Agent, with sufficient copies (other than in the case of any Notes) for each of
the Lenders, such documents as the Global Administrative Agent or any Lender or
its counsel may have reasonably requested, including, without limitation, all
of the documents reflected on the List of Closing Documents attached as Exhibit
D to this Agreement and (c) delivered evidence reasonably satisfactory to
the Global Administrative Agent of the payment of all principal, interest, fees
and premiums, if any, on all Indebtedness under the Existing Credit Agreements,
and the termination of the applicable agreements relating thereto, all taking
effect concurrently with the effectiveness of this Agreement.


 


4.2  Each Loan.  Except as expressly provided in Sections
2.2(E), 2.9.1(d), 2.9.2(e) 2.9.2(f), and 2.9.3(d), no Lender
shall be required to make any Loan unless on the applicable Borrowing Date:


 


(i)  there exists no Default or Unmatured Default; and


 


(ii)  the
representations and warranties contained in Article V are true and
correct as of such Borrowing Date, except for representations and warranties
made with reference solely to an earlier date, which representations and
warranties shall be true and correct as of such earlier date; provided,
that the representation set forth in Section 5.5 shall be deemed to
be made only (1) on and as of the Closing Date, (2) on and as of each date (if
any) on which the Lenders agree to extend the Termination Date and (3) on and
as of the effective date of any increase in the Commitments (if any).


 


Each Borrowing Notice with respect to each Loan or
Advance shall constitute a representation and warranty by the applicable
Borrower that the conditions contained in Sections 4.2(i) and (ii)
will have been satisfied as of the date of such Loan or Advance.


 


4.3  Initial Advance to
the Canadian Borrower.  No
Syndicated Canadian Bank shall be required to make any Syndicated Canadian
Loans to the Canadian Borrower unless the Canadian Borrower has furnished or
caused to be furnished to the Global Administrative Agent with sufficient
copies for the Syndicated Canadian Banks:


 


(A)  The Syndicated Canadian
Addendum and the Assumption Letter executed and delivered by the Canadian
Borrower and, if requested by the Global Administrative Agent, containing the
written consent of the U.S. Borrower thereon.


 


(B)  Copies of the Certificate of
Incorporation (or other comparable constituent document) of the Canadian
Borrower, together with all amendments and a certificate of good standing, both
certified by the appropriate governmental officer in its jurisdiction of
organization.


 


(C)  Copies, certified by the
Secretary or Assistant Secretary of the Canadian Borrower, of its By-Laws (or
other comparable governing document) and of its Board of Directors’ (or


 


67





















 


comparable
governing body’s) resolutions (and resolutions of other bodies, if any are
deemed necessary by the Global Administrative Agent) approving the Assumption
Letter and Syndicated Canadian Addendum.


 


(D)  An incumbency certificate,
executed by the Secretary, Assistant Secretary, Director or Authorized Officer
of the Canadian Borrower, which shall identify by name and title and bear the
signature of the officers of the Canadian Borrower authorized to sign the
Assumption Letter, Syndicated Canadian Addendum and the other documents to be
executed and delivered by the Canadian Borrower hereunder, upon which
certificate the Global Administrative Agent and the Lenders shall be entitled
to rely until informed of any change in writing by the U.S. Borrower or the
Canadian Borrower.


 


(E)  An opinion of counsel to the
Canadian Borrower, in a form reasonably acceptable to the Global Administrative
Agent and its counsel.


 


(F)  Promissory notes payable to
each of the Syndicated Canadian Banks requesting promissory notes;


 


(G)  Such other instruments,
documents or agreements as the Global Administrative Agent or its counsel may
reasonably request, all in form and substance reasonably satisfactory to the
Global Administrative Agent and its counsel.


 


ARTICLE V  REPRESENTATIONS AND WARRANTIES


 


In order to induce the Global Administrative Agent and
the Lenders to enter into this Agreement and to make the Loans and the other
financial accommodations to the Borrowers, each of the Borrowers and, solely in
the case of the representation and warranty set forth in Section 5.4
hereof, each of the Companies represents and warrants as follows to each Lender
and the Global Administrative Agent as of the Closing Date and thereafter on
each date as required by Section 4.2:


 


5.1  Corporate Existence and
Standing.  Each of the
Companies and each of their respective Subsidiaries is a corporation duly
incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all requisite authority to conduct its
business in each jurisdiction in which its business is conducted, except to the
extent that the failure to be in good standing or authorized to conduct
business in any jurisdiction could not, when taken together with all similar
failures, reasonably be expected to have a Material Adverse Effect.


 


5.2  Authorization and Validity.  Each of the Companies has the corporate power
and authority and legal right to execute and deliver the Loan Documents to
which it is party and to perform its obligations thereunder.  The execution and delivery by each of the
Companies of the Loan Documents to which it is party and the performance of its
obligations thereunder have been duly authorized by proper corporate
proceedings, and each Loan Document to which any Company is party constitutes
the legal, valid and binding obligation of such Companies, as applicable,
enforceable against such Companies, as applicable, in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the


 


68





















 


enforcement of creditors’ rights generally and general principles of
equity, regardless of whether the application of such principles is considered
in a proceeding in equity or at law.


 


5.3  No Conflict.  Neither the execution and delivery by each of
the Companies of the Loan Documents to which it is party, nor the consummation
of the transactions therein contemplated, nor compliance with the provisions
thereof will violate any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding on any Company or any of their Subsidiaries
or any Company’s or any of their Subsidiaries’ articles of incorporation or by-laws
or comparable constitutive documents or the provisions of any indenture,
instrument or agreement to which any Company or any of their Subsidiaries is a
party or is subject, or by which it, or its Property, is bound, or conflict
with or constitute a default thereunder, or result in the creation or
imposition of any Lien in, of or on the Property of any of the Companies or any
of their Subsidiaries pursuant to the terms of any such indenture, instrument
or agreement which violation, conflict or imposition could reasonably be
expected to have a Material Adverse Effect.


 


5.4  Financial Statements.  The December 31, 2003, consolidated
financial statements of HDFS and its consolidated Subsidiaries and of Harley
and its Subsidiaries, previously delivered to certain of the Lenders, were
prepared in accordance with Agreement Accounting Principles in effect on the
date such statements were prepared and fairly present the consolidated
financial condition of HDFS and its consolidated Subsidiaries and Harley and
its consolidated Subsidiaries, as applicable, at the date thereof and the
consolidated results of their operations for the period then ended.  The consolidated financial statements of HDFS
and its Subsidiaries dated as of June 30, 2004, previously delivered to
certain of the Lenders, were prepared in accordance with Agreement Accounting
Principles in effect on the date such statements were prepared and fairly
present the consolidated financial condition of HDFS and its Subsidiaries at
the date thereof and the consolidated results of their operations for the
six-month period then ended, subject to normal year-end adjustments.


 


5.5  Material Adverse Change.  From December 31, 2003 up to the Closing
Date, there has been no event, development or circumstance which could
reasonably be expected to have a Material Adverse Effect.


 


5.6  Taxes.  Except as described on Schedule 5.6
hereto, all material tax returns required to be filed by any of the Companies
or their respective Subsidiaries in any jurisdiction have, in fact, been filed,
all such tax returns have been prepared in accordance with applicable laws, and
all taxes, assessments, fees and other governmental charges upon the Companies
or any of their Subsidiaries or upon any of their respective properties, income
or franchises, which are shown on such returns have been paid except to the
extent such tax payments are being contested in good faith by appropriate
proceedings or with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with Agreement Accounting
Principles.  For all taxable years ending
on or before December 31, 2001, the United States Federal income tax
liability and the United Kingdom corporation tax liability of the Companies and
their respective Subsidiaries has been satisfied and, in the case of United
States federal income tax, either the period of limitations on assessment of additional
United States Federal income tax has expired or the applicable Company or the
applicable Subsidiary has entered into an agreement with the IRS closing
conclusively the total tax liability for the taxable year.


 


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5.7  Litigation.
There is no litigation, arbitration, governmental investigation, proceeding or
inquiry pending or, to the knowledge of any of their officers, threatened
against or affecting any of the Companies or any of their Subsidiaries which
could reasonably be expected to have a Material Adverse Effect.


 


5.8  Subsidiaries.  Schedule 5.8 hereto contains an
accurate list as of the Closing Date of all of the Subsidiaries of each of the
Companies, setting forth their respective jurisdictions of incorporation and
the percentage of their respective capital stock owned by the Companies or
their Subsidiaries.  All of the issued
and outstanding shares of capital stock of the Subsidiaries reflected on Schedule 5.8
hereto have been duly authorized and issued and are fully paid and non-assessable
and are free and clear of all Liens, except Liens permitted under Section 6.3(B).


 


5.9  ERISA.  The Unfunded Liabilities of all Benefit Plans
are not such that the ongoing funding of such obligations in accordance with
ERISA and the Code could reasonably be expected to cause a Material Adverse
Effect.  None of the Companies nor any
other member of the Controlled Group has incurred, or is reasonably expected to
incur, any withdrawal liability to Multiemployer Plans in each case, which
could reasonably be expected to have a Material Adverse Effect.  Each Plan complies in all material respects
with all applicable requirements of law and regulations, no Reportable Event
has occurred with respect to any Benefit Plan, none of the Companies or any
other member of the Controlled Group has withdrawn from any Plan or initiated
steps to do so, and no steps have been taken to reorganize or terminate any
Plan in each case, which could reasonably be expected to have a Material
Adverse Effect.


 


5.10  Accuracy of
Information.  As of the Closing Date,
(i) the information, exhibits and reports furnished by or on behalf of Harley,
the Companies and any of their Subsidiaries to the Global Administrative Agent
or to any Lender in connection with the negotiation or preparation of the
initial Loan Documents, including, without limitation, the Confidential
Information Memorandum, if any, prepared in connection herewith, (ii) the
representations and warranties of the Companies and their Subsidiaries
contained in the initial Loan Documents, and (iii) all certificates and
documents delivered on or prior to the Closing Date to the Global
Administrative Agent and the Lenders pursuant to the terms thereof do not in
each case contain as of the date furnished any untrue statement of a material
fact or omit to state a material fact necessary in order to make the statements
contained herein or therein, in light of the circumstances under which they
were made, not misleading.


 


5.11  Securities Activities.  None of the Companies nor any of its
Subsidiaries is engaged in the business of extending credit for the purpose of
purchasing or carrying Margin Stock.


 


5.12  Material Agreements.  None of the Companies nor any of their
Subsidiaries is a party to any agreement or instrument or subject to any
charter or other contractual or corporate restriction which will have or is
reasonably likely to have a Material Adverse Effect.  None of the Companies nor any of their
Subsidiaries has received notice or has knowledge that (i) it is in default in
the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in any material Contractual Obligation applicable to
it, or (ii) any condition exists which, with the giving of notice or the lapse
of time or both, would constitute a default with respect to any such
Contractual Obligation, in each case, except where such default or defaults, if
any, will not have or are not reasonably likely to have a Material Adverse
Effect.


 


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5.13  Compliance with Laws.  Each of the Companies and their Subsidiaries
are in compliance with all Requirements of Law applicable to them and their
respective businesses, in each case where the failure to so comply individually
or in the aggregate will have or is reasonably likely to have a Material
Adverse Effect.


 


5.14  Assets and Properties.  Each Borrower and each of its Subsidiaries has
good and marketable title to all of its assets and properties (tangible and
intangible, real or personal) owned by it or a valid leasehold interest in all
of its leased assets (except insofar as marketability may be limited by any
laws or regulations of any Governmental Authority affecting such assets) except
to the extent failure to have such good and marketable title could not
reasonably be expected to have a Material Adverse Effect, and all such assets
and property are free and clear of all Liens, except Liens permitted under Section 6.3(B).


 


5.15  Statutory Indebtedness
Restrictions.  None of the Companies, nor any of their
Subsidiaries is subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, the Interstate Commerce Act, or the
Investment Company Act of 1940, or any other federal or state statute or
regulation which limits its ability to incur indebtedness.


 


5.16  Foreign Employee Benefit
Matters. 
Each Foreign Employee Benefit Plan is in compliance in all respects with
all laws, regulations and rules applicable thereto and the respective
requirements of the governing documents for such Foreign Employee Benefit Plan,
except for any non-compliance the consequences of which, in the aggregate,
would not result in a Material Adverse Effect. 
The aggregate of the accumulated benefit obligations under all Foreign
Pension Plans does not exceed the current fair market value of the assets held
in the trusts or similar funding vehicles for such Foreign Pension Plans or
reasonable reserves have been established in accordance with prudent business
practices or as required by Agreement Accounting Principles with respect to any
shortfall.  With respect to any Foreign
Employee Benefit Plan maintained or contributed to by any of the Companies or
any other member of its Controlled Group (other than a Foreign Pension Plan),
reasonable reserves have been established in accordance with prudent business
practice or where required by ordinary accounting practices in the jurisdiction
in which such Foreign Employee Benefit Plan is maintained.


 


ARTICLE VI  COVENANTS


 


Each of the Companies covenants and agrees
that so long as any Commitments or Syndicated Canadian Commitments are
outstanding and thereafter until payment in full of all of the Obligations
(other than contingent indemnity and reimbursement obligations to the extent
such obligations have not accrued), unless the Required Lenders shall otherwise
give prior written consent, to comply with the following:


 


6.1  Reporting.  The Companies shall:


 


(A)  Financial
Reporting. Furnish to the Global Administrative Agent for distribution or
electronic posting to each Lender:


 


(i)  Quarterly
Reports.  As soon as practicable, and
in any event within sixty (60) days after the end of each of the first three
fiscal quarters in each fiscal year, the consolidated balance sheet of Harley
and the consolidated balance sheet of the


 


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Companies and their Subsidiaries as at the
end of such period and the related consolidated statements of income,
operations and retained earnings (deficit) of Harley and the consolidated
statements of income or operations, retained earnings (deficit) and cash flow
of each of the Companies and their Subsidiaries for such fiscal quarter, for
the period from the beginning of the then current fiscal year to the end of
such fiscal quarter and with comparative information for the preceding fiscal
year, certified by the chief financial officer or treasurer of the U.S.
Borrower on behalf of Harley and the Companies as fairly presenting in all material
respects the consolidated financial position of Harley and the consolidated
financial position of the Companies and their Subsidiaries as at the dates
indicated and the results of their operations and cash flow for the periods
indicated in accordance with Agreement Accounting Principles, subject to normal
year end adjustments.


 


(ii)  Annual Reports.  As soon as practicable, and in any event
within one hundred and five (105) days after the end of each fiscal year, (a)
the consolidated balance sheet of Harley and the consolidated balance sheet of
each of the Companies and their consolidated Subsidiaries as at the end of such
fiscal year and the related consolidated statements of income, operations,
retained earnings (deficit) and cash flow, and the notes thereto, of Harley and
the related consolidated statements of income, operations and retained
earnings, and the notes thereto, of each of the Companies and their
consolidated Subsidiaries for such fiscal year and, in comparative form the
corresponding figures for the previous fiscal year and (b) an audit report on
the items listed in clause (a) hereof of independent certified public
accountants of recognized national standing, which audit report shall be
unqualified and shall state that such financial statements fairly present in
all material respects the consolidated financial position of Harley, each of
the Companies and their Subsidiaries as at the dates indicated and the results
of their operations and cash flow for the periods indicated in conformity with
Agreement Accounting Principles and that the examination by such accountants in
connection with such consolidated financial statements has been made in
accordance with generally accepted auditing standards.


 


(iii)  Officer’s Certificate.  Together with each delivery of any financial
statement pursuant to clauses (i) and (ii) of this Section 6.1(A),
(a) an Officer’s Certificate of the U.S. Borrower, substantially in the form of
Exhibit E attached hereto and made a part hereof, stating that no
Default or Unmatured Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof and (b) a Compliance Certificate,
substantially in the form of Exhibit F attached hereto and made a part
hereof, signed by the U.S. Borrower’s chief financial officer or treasurer,
setting forth calculations which demonstrate compliance with the provisions of Section 6.4.


 


(B)  Notice
of Default.  Promptly upon any of the
chief executive officer, chief operating officer, chief financial officer, treasurer
or controller of any of the Companies obtaining knowledge (i) of any condition
or event which constitutes a Default or Unmatured Default, or becoming aware
that any Lender or Global Administrative Agent has given any written notice
with respect to a claimed Default or Unmatured Default under this Agreement, or
(ii) that any Person has given any written notice to any of the Companies or
any of their Subsidiaries or taken any other action with respect to a claimed
default or event or condition of the type referred to in Section 7.1(e),
deliver to the Global Administrative Agent and the Lenders an Officer’s


 


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Certificate specifying (a) the nature and period of existence of any
such claimed default, Default, Unmatured Default, condition or event, (b) the
notice given or action taken by such Person in connection therewith, and (c)
what action the Companies have taken, are taking and propose to take with
respect thereto.


 


(C)  Other
Information.  Promptly upon receiving
a request therefor from the Global Administrative Agent, prepare and deliver to
the Global Administrative Agent and the Lenders such other information with
respect to the business, Property, prospects, condition (financial or
otherwise) or results of operations of any of the Companies and their
Subsidiaries as from time to time may be reasonably requested by the Global
Administrative Agent.


 


6.2  Affirmative Covenants.


 


(A)  Existence,
Etc.  Each of the Companies shall,
and shall cause each of its respective Subsidiaries to, at all times maintain
its existence and preserve and keep, or cause to be preserved and kept, in full
force and effect its rights and franchises material to its businesses, except
where such failure could not reasonably be expected to have a Material Adverse
Effect.


 


(B)  Powers.  Each of the Companies shall, and shall cause
each of its respective Subsidiaries to, qualify and remain qualified to do
business in each jurisdiction in which the nature of its business requires it to
be so qualified and where the failure to be so qualified will have or is
reasonably likely to have a Material Adverse Effect.


 


(C)  Compliance
with Laws, Etc.  Each of the
Companies shall, and shall cause its respective Subsidiaries to, (a) comply,
and cause its Plans to comply, with all Requirements of Law and all restrictive
covenants affecting such Person or the business, properties, assets or
operations of such Person, and (b) obtain as needed all material permits,
licenses and franchises required for its operations and maintain such permits
in good standing, in each case, except to the extent such failure to comply or
failure to obtain could not reasonably be expected to have a Material Adverse
Effect.


 


(D)  Payment
of Taxes and Claims.  Each of the Companies
shall pay, and cause each of its Subsidiaries to pay, (i) all taxes,
assessments and other governmental charges imposed upon it or on any of its
properties or assets or in respect of any of its franchises, business, income
or Property before any material penalty or interest accrues thereon, and (ii)
all claims (including, without limitation, claims for labor, services,
materials and supplies) for sums which have become due and payable and which by
law have or may become a Lien (other than a Lien permitted by Section 6.3(B))
upon any of such Person’s Property or assets, prior to the time when any
material penalty or fine shall be incurred with respect thereto; provided,
however, that no such taxes, assessments and governmental charges
referred to in clause (i) above or claims referred to in clause (ii)
above (and interest, penalties or fines relating thereto) need be paid if being
contested in good faith by appropriate proceedings diligently instituted and
conducted or if such reserve or other appropriate provision, if any, as shall
be required in conformity with Agreement Accounting Principles shall have been
made therefor.


 


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(E)  Insurance.  Each of the Companies shall maintain for
itself and its Subsidiaries, or shall cause each of its Subsidiaries to
maintain in full force and effect insurance policies and programs providing
coverage that is reasonably consistent with prudent industry practice.


 


(F)  Inspection
of Property; Books and Records; Discussions.  (i)  If
a Default has occurred and is continuing, each of the Companies shall permit,
and cause each of the their respective Subsidiaries to permit, any authorized
representative(s) designated by the Global Administrative Agent to visit and
inspect any of the properties of such Persons, to examine, audit, check and
make copies of their respective financial and accounting records, books,
journals, orders, receipts and any correspondence and other data relating to
their respective businesses or the transactions contemplated hereby, and to
discuss their affairs, finances and accounts with their officers and
independent certified public accountants, all upon reasonable notice and at
such reasonable times during normal business hours, as often as may be reasonably
requested; provided, however, in the case of any meeting or
discussion with the independent auditors of the Companies, the Companies shall
have the right to have their representatives present at any such meeting.  (ii) 
Each of the Companies shall keep and maintain, and cause each of its
respective Subsidiaries to keep and maintain, in all material respects, proper
books of record and account in which entries in conformity with Agreement
Accounting Principles shall be made of all dealings and transactions in
relation to their respective businesses and activities.  (iii) 
If a Default has occurred and is continuing, the Companies, upon the
Global Administrative Agent’s request, shall turn over copies of any such
records to the Global Administrative Agent or its representatives.


 


(G)  Maintenance
of Property.  Each of the Companies
shall cause all Property used or useful in the conduct of its business or the
business of any of its Subsidiaries to be maintained and kept in adequate
condition, repair and working order and supplied with all necessary equipment
and shall cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, to the extent that the failure to do so
could reasonably be expected to have a Material Adverse Effect.


 


(H)  Use
of Proceeds.  Each Borrower shall use
the proceeds of the Loans to provide funds for the working capital needs and
other general corporate purposes of such Borrower and its Subsidiaries and to
repay outstanding Indebtedness (including, without limitation, maturing
commercial paper).  No Borrower will, nor
will it permit any Subsidiary to, use any of the proceeds of the Loans to
purchase or carry any “Margin Stock” or to make any Acquisition other than an
Acquisition permitted under the terms of Section 6.3(C).


 


(I)  Maintenance
of Rights.  Each of the Companies
shall obtain and maintain, and shall cause each of its Subsidiaries to obtain
and maintain, in full force and effect all licenses, franchises, permits other
similar rights necessary for the operation of its business, except where the
failure to obtain or maintain such rights does not have and could not
reasonably be expected to have a Material Adverse Effect.


 


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6.3  Negative Covenants.


 


(A)  Indebtedness.
The Companies shall not and shall not permit any of their Subsidiaries to
directly or indirectly create, incur, assume or otherwise become or remain
directly or indirectly liable with respect to any Indebtedness, except:


 


(1)  the Obligations and, in the case of the
Guarantors, the guaranty of the Obligations;


 


(2)  (a) Subordinated Indebtedness and (b)
Indebtedness arising from intercompany loans; provided if the obligor on
such Indebtedness under this clause (b) is one or more of the Companies
(whether directly or through Contingent Obligations), such Indebtedness shall
be subordinated to the Obligations pursuant to the subordination terms attached
as Schedule 6.3 (“Subordinated
Intercompany Indebtedness”);


 


(3)  Customary Permitted Contingent Obligations;


 


(4)  Contingent Obligations which are included in
the calculation of Consolidated Debt;


 


(5)  unsecured Indebtedness of one or more of the
Companies and other liabilities of one or more of the Companies incurred in the
ordinary course of business and consistent with past practice, but not incurred
through the borrowing of money or the obtaining of credit (other than customary
trade terms);


 


(6)  other unsecured Indebtedness of one or more
of the Companies included in the calculation of Consolidated Debt;


 


(7)  secured Indebtedness of one or more of the
Companies included in the calculation of Consolidated Debt, provided that in
connection therewith the Obligations of the Companies hereunder shall be
secured equally and ratably with (or, at the option of the U.S. Borrower, prior
to) such Indebtedness, so long as such Indebtedness shall be so secured
pursuant to collateral trust or intercreditor agreements reasonably acceptable
to the Global Administrative Agent;


 


(8)  unsecured Hedging Obligations; and


 


(9)  other secured Indebtedness of one or more of
the Companies in an aggregate outstanding principal amount thereof not at any
time in excess of ten percent (10%) of (a) Consolidated Equity of HDFS and its
Subsidiaries minus (b) Subordinated Indebtedness (to the extent included
in the definition of Consolidated Equity);


 


provided that,
immediately after giving effect to the creation, issuance, assumption,
guarantee or incurrence of any such Indebtedness, the Companies are in compliance
with the terms of Section 6.4.


 


(B)  Liens.  None of the Companies nor any of their
Subsidiaries shall directly or indirectly create, incur, assume or permit to
exist any Lien on or with respect to any of their respective Property or assets
except:


 


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(i)            Permitted
Existing Liens;


 


(ii)           Customary
Permitted Liens;


 


(iii)          Liens
(A) consisting of sales, assignments, pledges or other transfers of Finance
Receivables in connection with a Permitted Finance Receivables Securitization,
and (B) on Finance Receivables and on any interest in Finance Receivables
retained by any of the Companies or their Subsidiaries (including a Finance
Receivables Subsidiary), whether directly or through the ownership of a certificate
or other interest in a trust, provided to secure Permitted Securitization
Recourse Obligations of any of the Companies or their Subsidiaries;


 


(iv)          Liens
to secure Indebtedness incurred pursuant to clause (7) of Section 6.3(A)
provided the other terms and conditions of such clause have been met; and


 


(v)           Liens
to secure Indebtedness permitted pursuant to clause (9) of Section 6.3(A).


 


(C)  Conduct
of Business; Acquisitions.  None of
the Companies nor any of their Subsidiaries shall engage in any business other
than (1) the businesses engaged in by them on the date hereof and any business
or activities which are substantially similar, related or incidental thereto,
(2) the origination or acquisition of Finance Receivables and (3) engaging in
Permitted Finance Receivables Securitizations and other sales, assignments and
transfers of Finance Receivables.  The
Companies shall not and shall not permit any of their Subsidiaries to
consummate any Acquisition other than a Permitted Acquisition.


 


(D)  Restriction
on Fundamental Changes.  None of the
Companies nor any of their Subsidiaries shall enter into any merger or
consolidation, or liquidate, wind-up or dissolve (or suffer any liquidation or
dissolution), and neither HDFS nor the U.S. Borrower shall convey, lease, sell,
transfer or otherwise dispose of, in one transaction or series of transactions,
all or substantially all of any such Person’s business or Property, whether now
or hereafter acquired; provided that (1) in the event any Foreign Borrower
conveys, sells, transfers or otherwise disposes of, in one transaction or
series of transactions, all or substantially all of any such Person’s business
or Property, such Foreign Borrower must have been terminated as a Borrower in
accordance with Section 2.22 and (2) any Subsidiary (i) may merge
with or liquidate into the U.S. Borrower in a transaction in which the U.S.
Borrower is the surviving corporation, (ii) that is not a Borrower may merge
into any Guarantor in a transaction in which the surviving entity is a
Guarantor, (iii) that is not a Borrower or a Guarantor may merge into any
Subsidiary that is not a Borrower or a Guarantor or any Person that becomes a
Guarantor simultaneously with such merger, (iv) that is not a Borrower or a
Guarantor may merge into any other Person in connection with a Permitted
Acquisition, (v) that is not a Borrower or a Guarantor may liquidate or
dissolve if the U.S. Borrower determines in good faith that such liquidation or
dissolution is in the best interests of the U.S. Borrower and is not materially
disadvantageous to the Lenders.


 


(E)  Margin
Regulations.  No Borrower shall use
all or any portion of the proceeds of any credit extended under this Agreement
to purchase or carry Margin Stock.


 


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(F)  Fiscal
Year.  HDFS shall not change its
fiscal year for accounting or tax purposes from a period consisting of the
12-month period ending on December 31 of each calendar year.


 


(G)  Amendments
to Support Agreement.  None of the
Companies will allow or suffer to exist any amendment, supplement or other
modification to the Support Agreement without the prior written consent of the
Required Lenders.


 


6.4  Financial Covenants.  The Companies shall comply with the
following:


 


(A)  Defined
Terms for Financial Covenants.  The
following terms used in this Agreement shall have the following meanings (such
meanings to be applicable, except to the extent otherwise indicated in a
definition of a particular term, both to the singular and the plural forms of
the terms defined):


 


“Consolidated Debt” means, at any time, all
Indebtedness of HDFS and its consolidated Subsidiaries as reflected in the most
recent consolidated balance sheet of HDFS in accordance with Agreement
Accounting Principles; provided, there shall be excluded from such amounts (i)
Subordinated Indebtedness and (ii) Subordinated Intercompany Indebtedness.


 


“Consolidated Equity” means and refers to,
as of the end of any period of determination, the sum, without duplication, of
(i) Consolidated Tangible Net Worth of HDFS, (ii) preferred stock and (iii)
Subordinated Indebtedness.


 


“Consolidated Tangible Net Worth” of HDFS
means its consolidated shareholder’s equity net of intangible assets, as shall
be determined in accordance with Agreement Accounting Principles.


 


“Leverage Ratio” will mean the ratio of (a)
Consolidated Debt to (b) Consolidated Equity.


 


“Subordinated Indebtedness” will mean
Indebtedness of HDFS or its Subsidiaries, whether direct or indirect, to
non-affiliated Persons which is subordinated to the Obligations on a basis
acceptable to the Global Administrative Agent.


 


(B)  Minimum
Consolidated Tangible Net Worth. 
HDFS will at all times maintain a minimum Consolidated Tangible Net
Worth of $300,000,000.


 


(C)  Maximum
Leverage Ratio.  The Companies shall
not permit the Leverage Ratio of HDFS and its consolidated Subsidiaries at any
time to exceed 9.00 to 1.00.


 


ARTICLE VII  DEFAULTS


 


7.1  Defaults.  Each of the following occurrences shall
constitute a Default under this Agreement:


 


(a)  Failure
to Make Payments When Due.  Any
Borrower (i) shall fail to pay when due any of the Obligations consisting of
principal with respect to the Loans or (ii) shall fail


 


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to pay within five (5) days of the date when due any of the other
Obligations under this Agreement or the other Loan Documents.


 


(b)  Breach
of Certain Covenants.  Any of the
Companies shall fail duly and punctually to perform or observe any agreement,
covenant or obligation under Section 6.1(A), 6.1(B), 6.2(F)(i),
6.2(F)(iii), 6.2(H), 6.3, or 6.4.


 


(c)  Breach
of Representation or Warranty.  Any
representation or warranty made or deemed made by any Company to the Global
Administrative Agent or any Lender herein or by any Company or any of their
Subsidiaries in any of the other Loan Documents or in any statement or
certificate at any time given by any such Person pursuant to any of the Loan
Documents shall be false or misleading in any material respect on the date as
of which made (or deemed made).


 


(d)  Other
Defaults.  Any of the Companies shall
default in the performance of or compliance with any term contained in this
Agreement (other than as covered by paragraphs (a), (b) or (c)
of this Section 7.1), or any of the Companies or any of their
Subsidiaries shall default in the performance of or compliance with any term
contained in any of the other Loan Documents, and such default shall continue
for twenty (20) days after notice thereof has been given by the Global
Administrative Agent to any of the Companies.


 


(e)  Default
as to Other Indebtedness.  Any of
HDFS, any Borrower or any Material Subsidiary shall fail to make any payment
when due (whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise) with respect to any Indebtedness (other than the
Obligations) the outstanding principal amount of which Indebtedness is in
excess of $50,000,000; or any breach, default or event of default shall occur,
or any other condition shall exist under any instrument, agreement or indenture
pertaining to any such Indebtedness, if the effect thereof is to cause an
acceleration, mandatory redemption, a requirement that any of HDFS, any
Borrower or any such Material Subsidiary offer to purchase such Indebtedness or
other required repurchase of such Indebtedness, or permit the holder(s) of such
Indebtedness to accelerate the maturity of any such Indebtedness or require a
redemption or other repurchase of such Indebtedness; or any such Indebtedness
shall be otherwise declared to be due and payable (by acceleration or
otherwise) or required to be prepaid, redeemed or otherwise repurchased by any
of HDFS, any Borrower or any such Material Subsidiary (other than by a
regularly scheduled required prepayment) prior to the stated maturity thereof.


 


(f)  Involuntary
Bankruptcy; Appointment of Receiver, Etc.


 


(i)  An
involuntary case shall be commenced against any of Harley, HDFS, any Borrower
or any Material Subsidiary and the petition shall not be dismissed, stayed,
bonded or discharged within sixty (60) days after commencement of the case; or
a court having jurisdiction in the premises shall enter a decree or order for
relief in respect of any such Person in an involuntary case, under any
applicable bankruptcy, insolvency or other similar law now or hereinafter in
effect; or any other similar relief shall be granted under any applicable
federal, state, local or foreign law.


 


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(ii)  A decree or order of a court having
jurisdiction in the premises for the appointment of a receiver, administrator,
administrative receiver, liquidator, sequestrator, trustee, custodian or other
officer having similar powers over any of Harley, HDFS, any Borrower or any
Material Subsidiary or over all or a substantial part of the Property of any
such Person shall be entered or any analogous procedure or step is taken in any
jurisdiction; or an interim receiver, trustee or other custodian of any such
Person or of all or a substantial part of the Property of any such Person shall
be appointed or a warrant of attachment, execution or similar process against
any substantial part of the Property of any such Person shall be issued and any
such event shall not be stayed, dismissed, bonded or discharged within sixty (60)
days after entry, appointment or issuance.


 


(g)  Voluntary
Bankruptcy; Appointment of Receiver, Etc. 
Any of Harley, HDFS, any Borrower or any Material Subsidiary shall (i)
commence a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, (ii) consent to the entry of an order
for relief in an involuntary case, or to the conversion of an involuntary case
to a voluntary case, under any such law, (iii) consent to the appointment of or
taking possession by a receiver, trustee or other custodian for all or a
substantial part of its Property, (iv) make any assignment or arrangement for
the benefit of creditors, (v) take any corporate, partnership or comparable
action to authorize any of the foregoing or (vi) take any procedure or step in
relation to any analogous proceedings in any jurisdiction.


 


(h)  Judgments
and Attachments.  Any money
judgment(s) (other than a money judgment covered by insurance as to which the
insurance company has not disclaimed or reserved the right to disclaim
coverage), writ or warrant of attachment, or similar process in any
jurisdiction against any of Harley, HDFS, any Borrower or any Material
Subsidiary or any of their respective assets involving in any single case or in
the aggregate an amount in excess of $50,000,000 is (are) entered and shall
remain undischarged, unvacated, unbonded or unstayed for a period of sixty (60)
days or in any event later than fifteen (15) days prior to the date of any
proposed sale thereunder.


 


(i)  Dissolution.  Any order, judgment or decree shall be
entered against Harley, HDFS, any Borrower or any Material Subsidiary decreeing
its involuntary dissolution or split up and such order shall remain
undischarged and unstayed for a period in excess of sixty (60) days; or any
such Person shall otherwise dissolve or cease to exist except as specifically
permitted by this Agreement.


 


(j)  Loan
Documents.  At any time, for any
reason, any Loan Document ceases to be in full force and effect or Harley, any
Company or any of their Subsidiaries party thereto seeks to repudiate its
obligations thereunder.


 


(k)  ERISA
Default Event.  Any ERISA Default
Event shall have occurred that, in the opinion of the Required Lenders, when
taken together with all other ERISA Default Events that have occurred and have
not been remedied, could reasonably be expected to result in liability in
excess of 15% of the Consolidated Tangible Net Worth of the Companies and their
Subsidiaries.


 


(l)  Change
of Control.  A Change of Control
shall occur.


 


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(m)  Guaranty
Default.  Any Guarantor shall
terminate, revoke, refuse to perform or otherwise breach any its guaranty and
other obligations contained in Article XII, or such guaranty shall
otherwise become unenforceable for any reason.


 


(n)  Support
Agreement Default.  Harley shall
terminate, revoke, refuse to perform or otherwise breach any of its obligations
contained in the Support Agreement or such Support Agreement or any part
thereof shall otherwise become unenforceable for any reason.


 


A Default shall be deemed “continuing” until
cured or until waived in writing in accordance with Section 8.3.


 


ARTICLE VIII  ACCELERATION,
DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND REMEDIES


 


8.1  Remedies


 


(a)  Termination
of Commitments; Acceleration.  If any
Default described in Section 7.1(f), 7.1(g) or 7.1(i)
occurs with respect to any Borrower, the obligations of the Lenders to make
Loans (including without limitation Syndicated Canadian Loans) hereunder shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Global Administrative
Agent or any Lender.  If any other
Default occurs, the Required Lenders may (i) terminate the obligations of the
Lenders to make Loans (including without limitation Syndicated Canadian Loans)
hereunder or (ii) declare the Obligations to be due and payable, or both, and
upon any declaration under clause (ii), the Commitments shall terminate and the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which each Borrower expressly
waives.


 


(b)  Rescission.  If, at any time after termination of the
Lenders’ obligations to make Loans but before acceleration of the maturity of
the Loans, the relevant Borrower shall pay all arrears of interest and all
payments on account of principal of the Loans which shall have become due
otherwise than by acceleration (with interest on principal and, to the extent
permitted by law, on overdue interest, at the rates specified in this
Agreement) and all Defaults and Unmatured Defaults (other than nonpayment of
principal of and accrued interest on the Loans due and payable solely by virtue
of acceleration) shall be remedied or waived pursuant to Section 8.3,
then upon the written consent of the Required Lenders and written notice to the
U.S. Borrower, the termination of Lenders’ respective obligations to make Loans
or the aforesaid acceleration and its consequences may be rescinded and
annulled; but such action shall not affect any subsequent Default or Unmatured
Default or impair any right or remedy consequent thereon.  The provisions of the preceding sentence are
intended merely to bind the Lenders to a decision which may be made at the
election of the Required Lenders; they are not intended to benefit any Borrower
and do not give any Borrower the right to require the Lenders to rescind or
annul any termination of the aforesaid obligations of the Lenders or any
acceleration hereunder, even if the conditions set forth herein are met.


 


8.2  Defaulting Lender.  In the event that any Lender fails to fund
its Pro Rata Share or Syndicated Canadian Pro Rata Share (as applicable) of any
Syndicated Global Advance or


 


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Syndicated Canadian Advance requested or deemed requested by the
applicable Borrower which such Lender is obligated to fund under the terms of
this Agreement (the funded portion of such Advance being hereinafter referred
to as a “Non Pro Rata Loan”),
until the earlier of such Lender’s cure of such failure and the termination of
the Commitments, the proceeds of all amounts thereafter repaid to the Global
Administrative Agent by any Borrower and otherwise required to be applied to
such Lender’s share of all other Obligations pursuant to the terms of this
Agreement shall be advanced to the applicable Borrower by the Global
Administrative Agent (“Cure Loans”)
on behalf of such Lender to cure, in full or in part, such failure by such
Lender, but shall nevertheless be deemed to have been paid to such Lender in
satisfaction of such other Obligations. 
Notwithstanding anything in this Agreement to the contrary:


 


(i) 
the foregoing provisions of this Section 8.2 shall apply
only with respect to the proceeds of payments of Obligations and shall not
affect the conversion or continuation of Loans pursuant to Section 2.8;


 


(ii)  any such Lender shall be deemed to have cured
its failure to fund its Pro Rata Share of any Syndicated Global Advance or
Syndicated Canadian Pro Rata Share of any Syndicated Canadian Advance at such
time as an amount equal to such Lender’s original Pro Rata Share or Syndicated
Canadian Pro Rata Share (as applicable) of the requested principal portion of
such Advance is fully funded to the applicable Borrower, whether made by such
Lender itself or by operation of the terms of this Section 8.2, and
whether or not the Non Pro Rata Loan with respect thereto has been repaid,
converted or continued;


 


(iii)  amounts advanced to any Borrower to cure, in
full or in part, any such Lender’s failure to fund its Pro Rata Share of any
Syndicated Global Advance or Syndicated Canadian Pro Rata Share of any
Syndicated Canadian Advance shall be redenominated in the relevant currency and
shall bear interest at the rate applicable to Syndicated Global Loans which are
Base Rate Loans or Syndicated Canadian Loans which are Canadian Prime Rate
Loans (as applicable), in effect from time to time, and for all other purposes
of this Agreement shall be treated as if they were Base Rate Loans or Canadian
Prime Rate Loans (as applicable);


 


(iv)  regardless of whether or not a Default has
occurred or is continuing, and notwithstanding the instructions of any Borrower
as to its desired application, all repayments of principal which, in accordance
with the other terms of this Agreement, would be applied to the outstanding
Base Rate Loans or Canadian Prime Rate Loans shall be applied first,
ratably to all Base Rate Loans or Canadian Prime Rate Loans (as applicable)
constituting Non Pro Rata Loans, second, ratably to Base Rate Loans or
Canadian Prime Rate Loans (as applicable) 
other than those constituting Non Pro Rata Loans or Cure Loans and, third,
ratably to Base Rate Loans or Canadian Prime Rate Loans (as applicable)
constituting Cure Loans;


 


(v)  for so long as and until the earlier of any
such Lender’s cure of the failure to fund its Pro Rata Share of any Syndicated
Global Advance or Syndicated Canadian Pro Rata Share of any Syndicated Canadian
Advance and the termination of the Commitments or Syndicated Canadian
Commitments (as applicable), (1) the term


 


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“Required Lenders” for purposes of this
Agreement shall mean Lenders (excluding all Lenders whose failure to fund their
respective Pro Rata Share of such Advance have not been so cured) whose Pro
Rata Shares represent greater than fifty-one percent (51%) of the aggregate Pro
Rata Shares of such Lenders and (2) the term “Required Syndicated Canadian
Banks” for purposes of this Agreement shall mean Syndicated Canadian Banks
(excluding all Syndicated Canadian Banks whose failure to fund their respective
Syndicated Canadian Pro Rata Share of such Advance have not been so cured)
whose Syndicated Canadian Pro Rata Shares represent greater than fifty-one
percent (51%) of the aggregate Syndicated Canadian Pro Rata Shares of such
Syndicated Canadian Banks; and


 


(vi)  for so long as and until any such Lender’s
failure to fund its Pro Rata Share of any Syndicated Global Advance or
Syndicated Canadian Pro Rata Share of any Syndicated Canadian Advance is cured
in accordance with Section 8.2(ii), such Lender shall not be
entitled to any fees with respect to its Commitment or Syndicated Canadian
Commitment (as applicable), which fees shall accrue in favor of the Lenders
which have funded their respective Pro Rata Share or Syndicated Canadian Pro
Rata Share (as applicable) of such requested Advance, shall be allocated among
such performing Lenders ratably based upon their relative Commitments or
Syndicated Canadian Commitments (as applicable).


 


8.3  Amendments.  Subject to the provisions of this Article VIII,
the Required Lenders (or the Global Administrative Agent with the consent in
writing of the Required Lenders) and the Borrowers may enter into agreements
supplemental hereto for the purpose of adding or modifying any provisions to
the Loan Documents or changing in any manner the rights of the Lenders or the
Borrower hereunder or waiving any Default hereunder; provided, however,
that (a) no such supplemental agreement shall, without the consent of each
Lender directly affected thereby:


 


(i) 
postpone or extend the Termination Date or any other date fixed for any
payment of principal of, or interest on, the Loans or any fees or other amounts
payable to such Lender (except with respect to a waiver of the application of
the default rate of interest pursuant to Section 2.11 hereof);


 


(ii) 
reduce the principal amount of any Loans, or reduce the rate or extend
the time of payment of interest or fees thereon or other amounts payable
hereunder;


 


(iii) 
reduce the percentage specified in the definition of Required Lenders or
any other percentage of Lenders specified to be the applicable percentage in
this Agreement to act on specified matters or amend the definitions of “Required
Lenders”, “Required Syndicated Canadian Banks”, “Pro Rata Share” or “Syndicated
Canadian Pro Rata Share”;


 


(iv) 
increase the amount of the Commitment of any Syndicated Global Lender or
the Syndicated Canadian Commitment of any Syndicated Canadian Bank or increase
any Lender’s Pro Rata Share or any Syndicated Canadian Bank’s Syndicated
Canadian Pro Rata Share;


 


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(v) 
permit any Borrower to assign its rights under this Agreement;


 


(vi) 
notwithstanding anything to the contrary in the Support Agreement,
release Harley from any of its obligations under the Support Agreement or
otherwise terminate the Support Agreement;


 


(vii) 
release any Guarantor;


 


(viii) 
alter the manner in which payments or prepayments of principal, interest
or other amounts under the Loan Documents shall be applied as among the
Lenders;


 


(ix) 
amend this Section 8.3;


 


and (b) any supplemental agreement amending
or modifying any provision of the Syndicated Canadian Addendum only requires
the written consent of the Canadian Borrower, the Required Syndicated Canadian
Banks and the Global Administrative Agent.


 


No amendment of any provision of this
Agreement relating to the Global Administrative Agent shall be effective
without the written consent of the Global Administrative Agent.  No amendment of any provision of this
Agreement relative to the Global Swing Line Lender shall be effective without
the written consent of the Global Swing Line Lender.  No amendment of any provision of this
Agreement relative to the Global Administrative Agent shall be effective
without the written consent of the Global Administrative Agent.  The Global Administrative Agent may waive
payment of the fee required under Section 13.3(B) without obtaining
the consent of any of the Lenders or Borrowers.


 


8.4  Preservation of Rights.  No delay or omission of the Lenders or the
Global Administrative Agent to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Loan notwithstanding the existence of
a Default or the inability of any Borrower to satisfy the conditions precedent
to such Loan shall not constitute any waiver or acquiescence.  Any single or partial exercise of any such
right shall not preclude other or further exercise thereof or the exercise of
any other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by the Lenders required pursuant to Section 8.3,
and then only to the extent in such writing specifically set forth.  All remedies contained in the Loan Documents
or by law afforded shall be cumulative and all shall be available to the Global
Administrative Agent and the Lenders until the Obligations have been paid in
full.


 


ARTICLE IX  GENERAL
PROVISIONS


 


9.1  Survival of Representations.  All representations and warranties of the relevant
Companies contained in this Agreement shall survive delivery of any Notes and
the making of the Loans herein contemplated.


 


9.2  Governmental Regulation.  Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to any
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation.


 


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9.3  Headings.  Section headings in the Loan Documents
are for convenience of reference only, and shall not govern the interpretation
of any of the provisions of the Loan Documents.


 


9.4  Entire Agreement.  The Loan Documents embody the entire
agreement and understanding among the Companies, the Global Administrative Agent
and the Lenders and supersede all prior agreements and understandings among the
Companies, the Global Administrative Agent and the Lenders relating to the
subject matter thereof.


 


9.5  Several Obligations; Benefits
of this Agreement.  The respective
obligations of the Lenders hereunder are several and not joint and no Lender
shall be the partner or agent of any other. 
The failure of any Lender to perform any of its obligations hereunder
shall not relieve any other Lender from any of its obligations hereunder.  This Agreement shall not be construed so as
to confer any right or benefit upon any Person other than the parties to this
Agreement and their respective successors and assigns.


 


9.6  Expenses; Indemnification.


 


(A)  Expenses.  The Borrowers shall reimburse the Global
Administrative Agent, the Global Swing Line Lender and the Arrangers for any
reasonable costs, internal charges and out-of-pocket expenses (including
attorneys’ and paralegals’ fees and time charges of attorneys and paralegals
for each such Person, which attorneys and paralegals may be employees of such
Persons) paid or incurred by such Persons in connection with the preparation,
negotiation, execution, delivery, syndication, distribution (including via the
internet), review, amendment, modification, and administration of the Loan
Documents.  The Borrowers also agree to
reimburse the Global Administrative Agent, the Global Swing Line Lender and the
Lenders for any costs, internal charges and out-of-pocket expenses (including
attorneys’ and paralegals’ fees and time charges of attorneys and paralegals
for each such Person, which attorneys and paralegals may be employees of such
Persons) paid or incurred by each such Person in connection with the collection
of the Obligations and enforcement of the Loan Documents; provided that the
Borrowers shall not be obligated to so reimburse for more than one law firm
(and, in addition to such law firm, any local counsel engaged in each relevant
jurisdiction by such law firm) as counsel for the Global Administrative Agent
and more than one law firm (and, in addition to such law firm, any local
counsel engaged in each relevant jurisdiction by such law firm) as counsel for
the Lenders in connection with such collection or enforcement.


 


(B)  Indemnity.  Each of the Borrowers further agrees to
defend, protect, indemnify, and hold harmless the Global Administrative Agent,
the Global Swing Line Lender, the Arrangers, each and all of the Lenders, and
each of their respective Affiliates, and each of such Person’s respective
officers, directors, employees, attorneys and agents (including, without
limitation, those retained in connection with the satisfaction or attempted
satisfaction of any of the conditions set forth in Article IV)
(collectively, the “Indemnitees”) from
and against any and all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, claims, costs, expenses of any kind or nature
whatsoever (including, without limitation, the fees and disbursements of
counsel for such Indemnitees in connection with any investigative,
administrative or judicial proceeding, whether or not such Indemnitees shall be
designated a party thereto), imposed on, incurred by, or asserted against such
Indemnitees in any manner relating to or arising out of:


 


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(i) 
this Agreement, the other Loan Documents, or any act, event or
transaction related or attendant thereto, the making of the Loans hereunder,
the management of such Loans or the use or intended use of the proceeds of the
Loans; or


 


(ii)  any liabilities, obligations,
responsibilities, losses, damages, personal injury, death, punitive damages,
economic damages, consequential damages, treble damages, intentional, willful
or wanton injury, damage or threat to the environment, natural resources or
public health or welfare, costs and expenses (including, without limitation,
attorney, expert and consulting fees and costs of investigation, feasibility or
remedial action studies), fines, penalties and monetary sanctions, interest,
direct or indirect, known or unknown, absolute or contingent, past, present or
future relating to violation of any Environmental, Health or Safety
Requirements of Law arising from or in connection with the past, present or
future operations of the Companies, their Subsidiaries or any of their
respective predecessors in interest, or, the past, present or future
environmental, health or safety condition of any respective Property of the
Companies or their Subsidiaries, the presence of asbestos-containing materials
at any respective Property of the Companies or their Subsidiaries or the
Release or threatened Release of any Contaminant into the environment
(collectively, the “Indemnified Matters”);


 


provided, however,
no Borrower shall have any obligation to an Indemnitee hereunder with respect
to Indemnified Matters caused solely by or resulting solely from the willful
misconduct or Gross Negligence of such Indemnitee, as determined by the final
non-appealable judgment of a court of competent jurisdiction.  If the undertaking to indemnify, pay and hold
harmless set forth in the preceding sentence may be unenforceable because it is
violative of any law or public policy, the Borrowers shall contribute the
maximum portion which it is permitted to pay and satisfy under applicable law,
to the payment and satisfaction of all Indemnified Matters incurred by the
Indemnitees.


 


(C)  Waiver
of Certain Claims; Settlement of Claims. 
Each of the Companies further agrees to assert no claim against any of
the Indemnitees on any theory of liability for consequential, special,
indirect, exemplary or punitive damages. 
No settlement shall be entered into by any Company or any of their
Subsidiaries with respect to any claim, litigation, arbitration or other proceeding
relating to or arising out of the transaction evidenced by this Agreement or
the other Loan Documents (whether or not the Global Administrative Agent, any
Lender, the Global Swing Line Lender or any Indemnitee is a party thereto)
unless such settlement releases all Indemnitees from any and all liability with
respect thereto.


 


(D)  Survival
of Agreements.  The obligations and
agreements of the Companies under this Section 9.6 shall survive
the termination of this Agreement.


 


9.7  Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Global
Administrative Agent with sufficient counterparts so that the Global
Administrative Agent may furnish one to each of the relevant Lenders.


 


9.8  Accounting.  Except as provided to the contrary herein,
all accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles.


 


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9.9  Severability of Provisions.  Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that jurisdiction or the operation,
enforceability, or validity of that provision in any other jurisdiction, and to
this end the provisions of all Loan Documents are declared to be severable.


 


9.10  Nonliability of Lenders.  The relationship among the Companies and the
Lenders, the Global Swing Line Lender and the Global Administrative Agent shall
be solely that of borrower or guarantor and lender.  Neither the Global Administrative Agent, nor
the Global Swing Line Lender nor any Lender shall have any fiduciary
responsibilities to any of the Companies. 
Neither the Global Administrative Agent, nor any Lender, nor the Global
Swing Line Lender undertakes any responsibility to any of the Companies to review
or inform any of the Companies of any matter in connection with any phase of
any of the Companies’ business or operations.


 


9.11  CHOICE OF LAW.  THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS, BUT GIVING EFFECT
TO FEDERAL LAWS APPLICABLE TO BANKS.


 


9.12  WAIVER OF JURY TRIAL.  EACH OF THE COMPANIES, THE GLOBAL
ADMINISTRATIVE AGENT, THE GLOBAL SWING LINE LENDER AND EACH LENDER HEREBY WAIVE
TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT
OF, RELATED TO, OR CONNECTED WITH ANY LOAN DOCUMENT OR THE RELATIONSHIP
ESTABLISHED THEREUNDER.  EACH OF THE
PARTIES HERETO AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY AND THAT ANY PARTY
HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS AGREEMENT WITH ANY
COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE PARTIES HERETO TO THE WAIVER OF
THEIR RIGHT TO TRIAL BY JURY.


 


9.13  No Strict Construction.  The parties hereto have participated jointly
in the negotiation and drafting of this Agreement and the other Loan
Documents.  In the event an ambiguity or
question of intent or interpretation arises, this Agreement and the other Loan
Documents shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement or any of the
other Loan Documents.


 


9.14  USA PATRIOT ACT.  Each Lender that is subject to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the “Act”)
hereby notifies each Borrower that pursuant to the requirements of the Act, it
is required to obtain, verify and record information that identifies such
Borrower, which information includes the name and address of such Borrower and
other information that will allow such Lender to identify such Borrower in
accordance with the Act.


 


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ARTICLE X  THE GLOBAL
ADMINISTRATIVE AGENT


 


10.1  Appointment; Nature of
Relationship. JPMorgan Chase Bank is appointed by
the Lenders (each reference in this Article X to a Lender being in
its capacity either as a Lender or the Global Swing Line Lender, or any or all
of the foregoing) as the Global Administrative Agent hereunder and under each
other Loan Document, and each of the Lenders irrevocably authorizes the Global
Administrative Agent to act as the contractual representative of such Lender
with the rights and duties expressly set forth herein and in the other Loan
Documents.  The Global Administrative
Agent agrees to act as such contractual representative upon the express
conditions contained in this Article X.  Notwithstanding the use of the defined term “Global
Administrative Agent”, it is expressly understood and agreed that the Global
Administrative Agent shall not have any fiduciary responsibilities to any
Lender by reason of this Agreement and that the Global Administrative Agent is
merely acting as the representative of the Lenders with only those duties as
are expressly set forth in this Agreement and the other Loan Documents.  In its capacity as the Lenders’ contractual
representative, the Global Administrative Agent (i) does not assume any
fiduciary duties to any of the Lenders, and (ii) is acting as an independent
contractor, the rights and duties of which are limited to those expressly set
forth in this Agreement and the other Loan Documents.  Each of the Lenders agrees to assert no claim
against the Global Administrative Agent on any agency theory or any other
theory of liability for breach of fiduciary duty, all of which claims each
Lender waives.


 


10.2  Powers.  The Global Administrative Agent shall have
and may exercise such powers under the Loan Documents as are specifically
delegated to the Global Administrative Agent by the terms of each thereof,
together with such powers as are reasonably incidental thereto. The Global
Administrative Agent shall have no implied duties or fiduciary duties to the
Lenders, or any obligation to the Lenders to take any action hereunder or under
any of the other Loan Documents except any action specifically provided by the
Loan Documents required to be taken by the Global Administrative Agent.  The Global Administrative Agent shall have
and may exercise such powers under the Loan Documents as are specifically
delegated to the Global Administrative Agent by the terms of each thereof,
together with such powers as are reasonably incidental thereto.  The Global Administrative Agent shall have no
implied duties or fiduciary duties to the Lenders, or any obligation to the
Lenders to take any action hereunder or under any of the other Loan Documents
except any action specifically provided by the Loan Documents required to be
taken by the Global Administrative Agent. 
Without limiting the foregoing, the Global Administrative Agent hereby
agrees to provide the notice contemplated by Section 7.1(d) if so
requested by the Required Lenders.


 


10.3  General Immunity.  Neither the Global Administrative Agent nor
any of its directors, officers, agents or employees shall be liable to any of
the Borrowers or Lenders for any action taken or omitted to be taken by it or
them hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is found in a final
non-appealable judgment by a court of competent jurisdiction to have arisen
solely from (i) the Gross Negligence or willful misconduct of such Person or
(ii) breach of contract by such Person with respect to the Loan Documents.


 


10.4  No Responsibility for
Loans, Creditworthiness, Recitals, Etc. 
Neither the Global Administrative Agent nor any of its directors,
officers, agents or employees shall be responsible 


 


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for or have any duty to ascertain, inquire into, or verify (i) any
statement, warranty or representation made in connection with any Loan Document
or any borrowing hereunder; (ii) the performance or observance of any of the
covenants or agreements of any obligor under any Loan Document; (iii) the
satisfaction of any condition specified in Article IV; (iv) the
existence or possible existence of any Default or (v) the validity,
effectiveness or genuineness of any Loan Document or any other instrument or
writing furnished in connection therewith. 
The Global Administrative Agent shall not be responsible to any Lender
for any recitals, statements, representations or warranties herein or in any of
the other Loan Documents, for the execution, effectiveness, genuineness,
validity, legality, enforceability, collectibility, or sufficiency of this Agreement
or any of the other Loan Documents or the transactions contemplated thereby, or
for the financial condition of Harley, any guarantor of any or all of the
Obligations, any Company or any of their Subsidiaries.


 


10.5  Action on Instructions of
Lenders.  The Global Administrative
Agent shall in all cases be fully protected in acting, or in refraining from
acting, hereunder and under any other Loan Document in accordance with written
instructions signed by the Required Lenders (except with respect to actions
that require the consent of all of the Lenders as provided in Section 8.3),
and such instructions and any action taken or failure to act pursuant thereto
shall be binding on all of the Lenders and on all holders of Notes.  The Global Administrative Agent shall be
fully justified in failing or refusing to take any action hereunder and under
any other Loan Document unless it shall first be indemnified to its
satisfaction by the Lenders pro rata against any and all liability, cost and
expense that it may incur by reason of taking or continuing to take any such
action.


 


10.6  Employment of the
Global Administrative Agent and Counsel. 
The Global Administrative Agent may execute any of their respective
duties hereunder and under any other Loan Document by or through employees,
agents, affiliates and attorneys-in-fact, and shall not be answerable to the
Lenders, except as to money or securities received by it or its authorized
agents, for the default or misconduct of any such agents or attorneys-in-fact selected
by it with reasonable care.  The Global
Administrative Agent shall be entitled to advice of counsel concerning the
contractual arrangement among the Global Administrative Agent and the Lenders
and all matters pertaining to the Global Administrative Agent’s duties
hereunder and under any other Loan Document.


 


10.7  Reliance on Documents;
Counsel. The Global Administrative Agent shall be
entitled to rely upon any Note, notice, consent, certificate, affidavit,
letter, telegram, statement, paper or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons, and,
in respect to legal matters, upon the opinion of counsel selected by the Global
Administrative Agent, which counsel may be employees of the Global
Administrative Agent.


 


10.8  The Global
Administrative Agent’s Reimbursement and
Indemnification.  The Lenders agree
to reimburse and indemnify the Global Administrative Agent ratably in
proportion to their respective Pro Rata Shares (determined at the time such
indemnity is sought) (i) for any amounts not reimbursed by any Borrower for
which the Global Administrative Agent is entitled to reimbursement or
indemnification by any Borrower under the Loan Documents, (ii) for any other
expenses incurred by the Global Administrative Agent on behalf of the Lenders
in


 


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connection with the preparation, execution, delivery, administration,
distribution (including via the internet) and enforcement of the Loan Documents,
including as a result of a dispute among the Lenders or between any Lender and
the Global Administrative Agent, and (iii) for any liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Global Administrative Agent in any way
relating to or arising out of the Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby, or
the enforcement of any of the terms thereof or of any such other documents,
including as a result of a dispute among the Lenders or between any Lender and
the Global Administrative Agent; provided that no Lender shall be liable
for any of the foregoing to the extent any of the foregoing is found in a final
non-appealable judgment by a court of competent jurisdiction to have arisen
solely from the Gross Negligence or willful misconduct of the Global
Administrative Agent.


 


10.9  Rights as a Lender.  With respect to its Commitment, Swing Line
Commitment or Syndicated Canadian Commitment, Loans made by it and any Notes
issued to it, the Global Administrative Agent shall have the same rights and
powers hereunder and under any other Loan Document as any Lender and may
exercise the same as though it were not the Global Administrative Agent, as
applicable, and the term “Lender” or “Lenders”, “Syndicated Canadian Bank” or “Global
Swing Line Lender”, as applicable, shall, unless the context otherwise
indicates, include the Global Administrative Agent in its individual
capacity.  The Global Administrative
Agent may accept deposits from, lend money to and generally engage in any kind
of trust, debt, equity or other transaction, in addition to those contemplated
by this Agreement or any other Loan Document, with Harley, any Company or any
of their Subsidiaries in which such Person is not prohibited hereby from
engaging with any other Person.


 


10.10  Lender Credit Decision.  Each Lender acknowledges that it has,
independently and without reliance upon the Global Administrative Agent or any
other Lender and based on the financial statements prepared by the Borrowers
and such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement and the other
Loan Documents.  Each Lender also
acknowledges that it will, independently and without reliance upon the Global
Administrative Agent or any other Lender and based on such documents and information
as it shall deem appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Agreement and the other
Loan Documents.


 


10.11  Successor Global
Administrative Agent.  The Global
Administrative Agent may resign at any time by giving written notice thereof to
the Lenders and the Borrowers.  Upon any
such resignation, the Required Lenders shall have the right to appoint, on
behalf of the Lenders, a successor Global Administrative Agent.  If no successor Global Administrative Agent
shall have been so appointed by the Required Lenders and shall have accepted
such appointment within thirty days after the retiring Global Administrative
Agent’s giving notice of resignation, then the retiring Global Administrative
Agent may appoint, on behalf of the Lenders, a successor Global Administrative
Agent.  Notwithstanding anything herein
to the contrary, so long as no Default has occurred and is continuing, each
such successor Global Administrative Agent shall be subject to approval by the
U.S. Borrower, which approval shall not be unreasonably withheld.  Such successor Global Administrative Agent
shall be a commercial bank (including a branch


 


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thereof) having capital and retained earnings of at least
$500,000,000.  Upon the acceptance of any
appointment as the Global Administrative Agent hereunder by a successor Global
Administrative Agent, such successor Global Administrative Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Global Administrative Agent, and the retiring Global
Administrative Agent shall be discharged from its duties and obligations
hereunder and under the other Loan Documents. 
After any retiring Global Administrative Agent’s resignation hereunder
as the Global Administrative Agent, the provisions of this Article X
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Global Administrative
Agent hereunder and under the other Loan Documents.


 


10.12  Co-Agents, Documentation Agent,
Syndication Agent, etc.  None of the
Lenders, if any, identified in this Agreement as a “co-agent”, “documentation
agent” or “syndication agent” shall have any right, power, obligation,
liability, responsibility or duty under this Agreement other than those
applicable to all Lenders as such. 
Without limiting the foregoing, none of such Lenders shall have or be
deemed to have a fiduciary relationship with any Lender.  Each Lender hereby makes the same
acknowledgments with respect to such Lenders as it makes with respect to the
Administrative Agent in Section 10.10.


 


ARTICLE XI  SETOFF; RATABLE
PAYMENTS


 


11.1  Setoff.  In addition to, and without limitation of,
any rights of the Lenders or the Global Swing Line Lender under applicable law,
if any Default occurs and is continuing, any indebtedness from any Lender or
the Global Swing Line Lender to any Company (including all account balances, whether
provisional or final and whether or not collected or available) may be offset
and applied toward the payment of the Obligations owing to such Lender or the
Global Swing Line Lender and the other Obligations, whether or not the
Obligations, or any part hereof, shall then be due.


 


11.2  Ratable Payments.  (a) If any Syndicated Global Lender, whether
by setoff or otherwise, has payment made to it upon its Syndicated Global Loans
(other than payments received pursuant to Sections 3.1, 3.2, 3.4
or 3.5) in a greater proportion than that received by any other
Syndicated Global Lender, such Syndicated Global Lender agrees, promptly upon
demand, to purchase a portion of the Syndicated Global Loans held by the other
Syndicated Global Lenders so that after such purchase each Syndicated Global
Lender will hold its ratable proportion of Syndicated Global Loans.  If any Syndicated Global Lender, whether in
connection with setoff or amounts which might be subject to setoff or otherwise,
receives collateral or other protection for its Obligations or such amounts
which may be subject to setoff, such Syndicated Global Lender agrees, promptly
upon demand, to take such action necessary such that all Syndicated Global
Lenders share in the benefits of such collateral ratably in proportion to their
Syndicated Global Loans.  In case any
such payment is disturbed by legal process, or otherwise, appropriate further
adjustments shall be made.


 


(b)  If
any Syndicated Canadian Bank, whether by setoff or otherwise, has payment made
to it upon its Syndicated Canadian Loans (other than payments received pursuant
to Sections 3.1, 3.2, 3.4 or 3.5) in a greater
proportion than that received by any other Syndicated Canadian Bank, such
Syndicated Canadian Bank agrees, promptly upon demand, to purchase a portion of


 


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the Syndicated Canadian Loans held by the other Syndicated Canadian
Banks so that after such purchase each Syndicated Canadian Bank will hold its
ratable proportion of Syndicated Canadian Loans.  If any Syndicated Canadian Bank, whether in
connection with setoff or amounts which might be subject to setoff or
otherwise, receives collateral or other protection for its Obligations or such
amounts which may be subject to setoff, such Syndicated Canadian Bank agrees,
promptly upon demand, to take such action necessary such that all Syndicated
Canadian Banks share in the benefits of such collateral ratably in proportion
to their Syndicated Canadian Loans.  In
case any such payment is disturbed by legal process, or otherwise, appropriate
further adjustments shall be made.


 


ARTICLE XII  GUARANTEE


 


In order to induce the Lenders to extend
credit hereunder, each Guarantor fully and unconditionally and irrevocably
guarantees, as a primary obligor and not merely as a surety, jointly with the
other Guarantors and severally, the Obligations (including, without limitation,
interest accruing hereunder after the commencement of any case under the United
States Bankruptcy Code or any other bankruptcy-related rules or legislation in
any country in which a Company is organized, whether or not allowed as a claim
in such case).  The obligations of the
Guarantors under this Article XII are sometimes referred to as the “Guarantee”. 
Each Guarantor further agrees that the Obligations may be extended or
renewed, in whole or in part, without notice to or further assent from it, and
that it will remain bound upon its Guarantee hereunder notwithstanding any such
extension or renewal of any Obligation.


 


Each Guarantor waives presentment to, demand
of payment from and protest to any Borrower of any of the Obligations, and also
waives notice of acceptance of its obligations and notice of protest for
nonpayment.  The obligations of the
Guarantors hereunder shall not be affected by the failure of any Lender or the
Global Administrative Agent to assert any claim or demand or to enforce any
right or remedy against any Borrower under the provisions of this Agreement or
any of the other Loan Documents or otherwise, or, except as specifically
provided therein, by any rescission, waiver, amendment or modification of any
of the terms or provisions of this Agreement, any of the other Loan Documents
or any other agreement.


 


Each Guarantor further agrees that its
Guarantee hereunder constitutes a promise of payment when due and not merely of
collection, and waives any right to require that any resort be had by any
Lender to any balance of any deposit account or credit on the books of any
Lender in favor of any Borrower or any other person.


 


Each Guarantor agrees that its obligations
under this Guarantee shall be unconditional, irrespective of:


 


(i) 
the validity, enforceability, avoidance, novation or subordination of
any of the Obligations or any of the Loan Documents;


 


(ii) 
the absence of any attempt by, or on behalf of, any Lender or the Global
Administrative Agent to collect, or to take any other action to enforce, all or
any part of the Obligations whether from or against any Borrower, any other
guarantor of the Obligations or any other Person;


 


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(iii) 
the election of any remedy by, or on behalf of, any Lender or the Global
Administrative Agent with respect to all or any part of the Obligations;


 


(iv) 
the waiver, consent, extension, forbearance or granting of any
indulgence by, or on behalf of, any Lender or the Global Administrative Agent
with respect to any provision of any of the Loan Documents;


 


(v) 
the failure of the Global Administrative Agent to take any steps to
perfect and maintain its security interest in, or to preserve its rights to,
any security or collateral for the Obligations;


 


(vi) 
the election by, or on behalf of, any one or more of the Lenders or
the Global Administrative Agent in any proceeding instituted under
Chapter 11 of Title 11 of the United States Code (11 U.S.C. 101 et
seq.) (the “Bankruptcy Code”) or
other bankruptcy-related rules or legislation in any country in which a Company
is organized, of the application of Section 1111(b)(2) of the Bankruptcy Code;


 


(vii) 
any borrowing or grant of a security interest by any Company, as debtor-in-possession,
under Section 364 of the Bankruptcy Code or any other bankruptcy-related
rules or regulations in any country in which a Borrower is organized;


 


(viii) 
the disallowance, under Section 502 of the Bankruptcy Code or any
other bankruptcy-related rules or regulations in any country in which a Company
is organized, of all or any portion of the claims of any of the Lenders or the
Global Administrative Agent for repayment of all or any part of the
Obligations; or


 


(ix) 
any other circumstance which might otherwise constitute a legal or
equitable discharge or defense of any Borrower or any Guarantor.


 


The obligations of the Guarantors hereunder
shall not be subject to any reduction, limitation, impairment or termination
for any reason, and shall not be subject to any defense or setoff,
counterclaim, recoupment or termination whatsoever, by reason of the
invalidity, illegality or unenforceability of the Obligations, any
impossibility in the performance of the Obligations or otherwise.  The Lenders, either themselves or acting
through the Global Administrative Agent, are authorized, without notice or
demand and without affecting the liability of any Guarantor hereunder, from
time to time, (a) to renew, extend, accelerate or otherwise change the
time for payment of, or other terms relating to, all or any part of the
Obligations, or to otherwise modify, amend or change the terms of any of the
Loan Documents; (b) to accept partial payments on all or any part of the
Obligations; (c) to take and hold security or collateral for the payment
of all or any part of the Obligations, this Guarantee, or any other guaranties
of all or any part of the Obligations, (d) to exchange, enforce, waive and
release any such security or collateral; (e) to apply such security or
collateral and direct the order or manner of sale thereof as in their
discretion they may determine; (f) to settle, release, exchange, enforce,
waive, compromise or collect or otherwise liquidate all or any part of the
Obligations, this Guarantee, any other guaranty of all or any part of the
Obligations, and any security or collateral for the Obligations or for any such
guaranty.


 


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The Guarantors consent and agree that none of
the Lenders nor the Global Administrative Agent nor any Person acting for or on
behalf of the Lenders or the Global Administrative Agent shall be under any
obligation to marshall any assets in favor of any Guarantor or against or in
payment of any or all of the Obligations. 
The Guarantors further agree that, to the extent that any Borrower, any
Guarantor or any other guarantor of all or any part of the Obligations makes a
payment or payments to any Lender or the Global Administrative Agent, or any
Lender or the Global Administrative Agent receives any proceeds of collateral
for all or any part of the Obligations, which payment or payments or any part
thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to any Borrower, such
Guarantor, such other guarantor or any other Person, or their respective
estates, trustees, receivers or any other party, under any bankruptcy law,
state, provincial or federal law, common law or equitable cause, then, to the
extent of such payment or repayment, the part of the Obligations which has been
paid, reduced or satisfied by such amount shall be reinstated and continued in
full force and effect as of the time immediately preceding such initial
payment, reduction or satisfaction.


 


In furtherance of the foregoing and not in
limitation of any other right which the Global Administrative Agent or any
Lender may have at law or in equity against the Guarantors by virtue hereof,
upon the failure of any Borrower to pay any of the Obligations when and as the
same shall become due, whether at maturity, by acceleration, after notice of
prepayment or otherwise, each Guarantor promises to and will, upon receipt of
written demand by the Global Administrative Agent, forthwith pay, or cause to
be paid, in cash, the amount of such unpaid Obligations.  The Guarantors further agree, jointly and
severally, that if payment in respect of any of the Obligations owed to any
Lender shall be due in a currency other than Dollars and/or at a place of
payment other than as designated in this Agreement or the Syndicated Canadian
Addendum and if, by reason of any Change in Law, disruption of currency or
foreign exchange markets, war or civil disturbance or other event, payment of
such Obligations in such currency or such place of payment shall be impossible
or, in the judgment of such Lender, not consistent with the protection of its
rights or interests, then, at the election of such Lender, the Guarantors shall
make payment of such Obligation in Dollars (based upon the applicable Exchange
Rate in effect on the date of payment) and/or in the applicable place
designated in this Agreement or the Syndicated Canadian Addendum, and shall
indemnify such Lender against any losses or expenses that it shall sustain as a
result of such alternative payment.


 


Until the Obligations have been indefeasibly
paid in full in cash and the Termination Date shall have occurred, the
Guarantors (i) shall have no right of subrogation with respect to such
Obligations and (ii) waive any right to enforce any remedy which the Lenders or
the Global Administrative Agent (or any of them) now have or may hereafter have
against any Borrower, any endorser or any guarantor of all or any part of the
Obligations or any other Person, and the Guarantors waive any benefit of, and
any right to participate in, any security or collateral given to the Lenders
and the Global Administrative Agent (or any of them) to secure the payment or
performance of all or any part of the Obligations or any other liability of any
Borrower to the Lenders or the Global Administrative Agent (or any of them).


 


This Guarantee shall continue in full force
and effect and may not be terminated or otherwise revoked until the Obligations
shall have been fully and indefeasibly paid (in cash) and discharged and this
Agreement and all financing arrangements between any Borrower, the


 


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Global Administrative Agent and the Lenders shall have been terminated;
provided that if the capital stock of a Guarantor is sold, transferred
or otherwise disposed of in a transaction permitted pursuant to the terms of
this Agreement (as in effect on the Closing Date), such Guarantor shall be
released from its obligations under this Agreement without further action.  If, notwithstanding the foregoing, the
Guarantors (or either of them) shall have any right under applicable law to
terminate or revoke this Guarantee, the Guarantors agree that such termination
or revocation shall not be effective until a written notice of such revocation
or termination, specifically referring hereto, signed by the Guarantors, is
actually received by the Global Administrative Agent.  Such notice shall not affect the right and
power of any of the Lenders or the Global Administrative Agent to enforce
rights arising prior to receipt thereof by the Global Administrative Agent.  If any Lender grants loans or takes other
action after a Guarantor terminates or revokes this Guarantee but before the
Global Administrative Agent receives such written notice, the rights of such
Lender with respect thereto shall be the same as if such termination or
revocation had not occurred.  The
provisions of this Article XII shall remain in full force and effect,
notwithstanding any termination of this Agreement, until the Obligations shall
have been fully and indefeasibly paid (in cash) and discharged.


 


Notwithstanding anything contained in this Article XII,
the guaranty obligations of the Canadian Guarantor shall only apply to the
Obligations of the Canadian Borrower.


 


ARTICLE XIII  BENEFIT OF
AGREEMENT; ASSIGNMENTS; PARTICIPATIONS


 


13.1  Successors and Assigns.  The terms and provisions of the Loan Documents
shall be binding upon and inure to the benefit of the Companies, the Lenders
and the Global Administrative Agent and their respective successors and
assigns, except that (i) the Companies shall not have the right to assign their
rights or obligations under the Loan Documents and (ii) any assignment by any
Lender must be made in compliance with Section 13.3 hereof.  Notwithstanding clause (ii) of this Section 13.1,
any Lender may at any time, without the consent of the Borrower or the Global
Administrative Agent, assign all or any portion of its rights under this
Agreement and any Notes to a Federal Reserve Bank; provided, however,
that no such assignment shall release the transferor Lender from its
obligations hereunder.  The Global
Administrative Agent may treat any Lender as the owner of the Loans for all
purposes hereof unless and until such Lender complies with Section 13.3
hereof in the case of an assignment thereof or, in the case of any other
transfer, a written notice of the transfer is filed with the Global
Administrative Agent.  Any such assignee
or transferee agrees by acceptance thereof to be bound by all the terms and
provisions of the Loan Documents.  Any
request, authority or consent of any Person, who at the time of making such
request or giving such authority or consent is the holder of any Loan, shall be
conclusive and binding on any subsequent holder, transferee or assignee of such
Loan.


 


13.2  Participations.


 


(A)  Permitted
Participants; Effect.  Subject to the
terms set forth in this Section 13.2, any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more banks or other entities (“Participants”) participating interests in any Loan owing to
such Lender, any Commitment or Syndicated Canadian Commitment of such Lender or
any other interest of such Lender under the Loan Documents on a pro rata
basis.  In


 


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the event of any such sale by a Lender of participating interests to a
Participant, such Lender’s obligations under the Loan Documents shall remain
unchanged, such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations, such Lender shall remain the
owner of all Loans for all purposes under the Loan Documents, all amounts
payable by any Borrower under this Agreement shall be determined as if such
Lender had not sold such participating interests, and such Borrower and the
Global Administrative Agent shall continue to deal solely and directly with
such Lender in connection with such Lender’s rights and obligations under the
Loan Documents except that, for purposes of Article III hereof, the
Participants shall be entitled to the same rights as if they were Lenders
provided however that no Participant shall be entitled to receive any greater
payment under Article III than the Lender would have been entitled
to receive with respect to the rights participated.


 


(B)  Voting
Rights.  Each Lender shall retain the
sole right to approve, without the consent of any Participant, any amendment,
modification or waiver of any provision of the Loan Documents, other than any
amendment, modification or waiver with respect to any Loan or Commitment or
Syndicated Canadian Commitment in which such Participant has an interest which
involves an amendment, modification or waiver with respect to a matter which,
if such Participant were a Lender hereunder, would require the consent of such
Lender under clauses (i) through (viii) of Section 8.3
hereof.


 


(C)  Benefit
of Setoff.  The Companies agree that
each Participant shall be deemed to have the right of setoff provided in Section 11.1
hereof in respect to its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest
were owing directly to it as a Lender under the Loan Documents, provided
that each Lender shall retain the right of setoff provided in Section 11.1
hereof with respect to the amount of participating interests sold to each
Participant except to the extent such Participant exercises its right of set
off.  The Lenders agree to share with
each Participant, and each Participant, by exercising the right of setoff
provided in Section 11.1 hereof, agrees to share with each Lender,
any amount received pursuant to the exercise of its right of setoff, such
amounts to be shared in accordance with Section 11.2 as if each
Participant were a Lender.


 


13.3  Assignments.


 


(A)  Permitted
Assignments.  Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time assign to one or more banks or other entities which is not (i) a
competitor of Harley or any Borrower or (ii) a Person that is, or is owned or
controlled by, a participant in the transportation industry (“Purchasers”) all or a portion of its rights
and obligations under this Agreement (including, without limitation, its
Commitment, Syndicated Canadian Commitment, Swing Line Commitment, all Loans
owing to it, all of its participation interests in Syndicated Canadian Loans
and Swing Line Loans, and its obligation to participate in additional
Syndicated Canadian Loans and Swing Line Loans hereunder) in accordance with
the provisions of this Section 13.3.  Each assignment shall be of a constant, and
not a varying, ratable percentage of all of the rights and obligations of any
assigning Lender under this Agreement. 
Such assignment shall be substantially in the form of Exhibit C
hereto and shall not be permitted hereunder unless such assignment is either
for all of such Lender’s rights and obligations under the Loan Documents or,
except for assignments to another Lender, an Affiliate thereof or an Approved
Fund, involves loans and commitments in an aggregate 


 


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amount of at least $5,000,000. 
Notice to the Global Administrative Agent shall be required prior to any
assignment becoming effective and the consent of the Global Administrative
Agent (which consent will not be unreasonably withheld) shall be required prior
to any assignment becoming effective with respect to a Purchaser which is not a
Lender and, so long as no Default shall have occurred and be continuing, notice
to and consent of the U.S. Borrower (which consent will not be unreasonably
withheld) shall be required prior to an assignment becoming effective with
respect to a Purchaser which is not a Lender, an Affiliate thereof or an
Approved Fund.


 


(B)  Effect;
Effective Date.  Upon (i) delivery to
the Global Administrative Agent of a notice of assignment, substantially in the
form attached as Appendix I to Exhibit C hereto (a “Notice of Assignment”), together with any
consents required by Section 13.3(A) hereof, and (ii) payment of a
$3,500 fee to the Global Administrative Agent for processing such assignment,
such assignment shall become effective on the effective date specified in such
Notice of Assignment.  The Notice of
Assignment shall contain a representation by the Purchaser to the effect that
none of the consideration used to make the purchase of the Commitment and Loans
under the applicable assignment agreement are “plan assets” as defined under
ERISA and that the rights and interests of the Purchaser in and under the Loan
Documents will not be “plan assets” under ERISA.  On and after the effective date of such
assignment, such Purchaser, if not already a Lender, shall for all purposes be
a Lender party to this Agreement and any other Loan Documents executed by the
Lenders and shall have all the rights and obligations of a Lender under the
Loan Documents, to the same extent as if it were an original party hereto, and
no consent or action by any of the Borrower or the Lenders and no further
consent or action by the Global Administrative Agent shall be required to
release the transferor Lender with respect to the percentage of the Aggregate
Commitment, Loans and the Syndicated Canadian Loan participations and Swing
Line Loan participations assigned to such Purchaser.  Upon the consummation of any assignment to a
Purchaser pursuant to this Section 13.3(B), the transferor Lender,
the Global Administrative Agent and the U.S. Borrower shall, if requested by
such transferor Lender or Purchaser, make appropriate arrangements so that
replacement Notes are issued to such transferor Lender and new Notes or, as
appropriate, replacement Notes, are issued to such Purchaser.


 


(C)  The
Register.  The Global Administrative
Agent shall maintain at its address referred to in Section 14.1 a
copy of each assignment delivered to and accepted by it pursuant to this Section 13.3
and a register (the “Register”)
for the recordation of the names and addresses of the Lenders and the
Commitment of and principal amount of the Loans owing to, each Lender from time
to time and whether such Lender is an original Lender or the assignee of
another Lender pursuant to an assignment under this Section 13.3.  The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and each
Borrower and each of its Subsidiaries, the Global Administrative Agent and the
Lenders may treat each Person whose name is recorded in the Register as a
Lender hereunder for all purposes of this Agreement.  The Register shall be available for
inspection by any Borrower or any Lender at any reasonable time and from time
to time upon reasonable prior notice.


 


13.4  Confidentiality.  (i) 
Subject to Section 13.5, the Global Administrative Agent and
the Lenders shall hold (A) all nonpublic information obtained pursuant to the
requirements of this Agreement and identified as such by Harley or any Company
and (B) except as otherwise


 


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permitted by HDFS, all information related to the Licensed Marks (as
defined in Section 13.6)) and all other information which a
reasonable person would deem to be confidential and/or proprietary in light of
the nature of the information and the manner in which it was disclosed, in
accordance with such Person’s customary procedures for handling confidential
information of this nature and in accordance with safe and sound banking
practices and in any event may make disclosure reasonably required by a
prospective Transferee in connection with the contemplated participation or
assignment or as required or requested by any Governmental Authority or
representative thereof or pursuant to legal process and shall require any such
Transferee or prospective Transferee to agree (and require any of its
Transferees to agree) to comply with this Section 13.4.  In no event shall the Global Administrative
Agent or any Lender be obligated or required to return any materials furnished
by Harley, the Companies or any of their Subsidiaries; provided, however,
each prospective Transferee shall be required to agree that if it does not
become a participant or assignee it shall return all materials furnished to it
by or on behalf of Harley or any Company in connection with this Agreement.


 


(ii)           (A)
To the extent that the Gramm-Leach-Bliley Act, Title V/Privacy (collectively
with the related implementing regulations, the “GLBA”), shall be applicable to
the transactions contemplated herein, each of the parties hereto agrees that
(1) it shall use all non-public personal information obtained pursuant to the
requirements of this Agreement solely for the purposes for which the information
is disclosed or as otherwise permitted in conformance with the requirements of
the GLBA and (2) it shall maintain the confidentiality of such information to
the same extent as described in Section 13.4(i).  This clause shall survive the termination of
this Agreement.


 


(B)           In
the event that the Global Administrative Agent or any Lender reasonably
believes that any physical and/or electronic safeguards have been breached, and
that non-public personal information has been obtained by persons and/or
entities without authority to use or view such non-public personal information,
the Global Administrative Agent or such Lender, as applicable, will notify
HDFS, in writing, as soon as reasonably practicable.  The Global Administrative Agent and each
Lender shall also maintain commercially reasonable processes and procedures for
the storage, retention, and disposal of documents and storage media containing
nonpublic personal information.  Nothing
in this clause shall be construed to create any third-party beneficiary rights
in any consumer or other holder of nonpublic personal information.  This clause shall survive the termination of
this Agreement.


 


(iii)          Each of the parties hereto
acknowledges that any breach of the aforesaid confidentiality obligations in
this Section 13.4 is likely to cause or threaten irreparable harm
to HDFS.  Therefore, HDFS shall be
entitled to seek equitable relief to protect its interests, including but not
limited to preliminary and permanent injunctive relief, as well as monetary
damages. Nothing stated herein will be construed to limit any other remedies
available to the parties hereto. This section shall survive the
termination of this Agreement.


 


13.5  Dissemination of
Information. 
Each of the Companies authorizes each Lender to disclose to any
Participant or Purchaser or any other Person acquiring an interest in the Loan
Documents by operation of law (each a “Transferee”)
and any prospective Transferee any and all information in such Lender’s
possession concerning the Companies and their Subsidiaries; provided
that prior to any such disclosure, such prospective Transferee shall agree to
preserve in


 


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accordance with Section 13.4 the confidentiality of any
confidential information described therein.


 


13.6  Non-Use of HDFS’
Licensed Marks. 
(i)  HDFS and its affiliates have
the licensed right to use certain trademarks, logos, etc. relating to
Harley-Davidson Motorcycles, HDFS and their affiliates (the “Licensed Marks”).  Except as permitted by the following
sentences, none of the Global Administrative Agent, the Lenders or their
Affiliates are authorized to use such Licensed Marks or Harley’s or HDFS’s text
name and logo on forms, in legal documents, in advertising, marketing materials,
in press releases or any other document or material.  In the event the Global Administrative Agent,
any Lender or any of their Affiliates wish to use said Licensed Marks, such
Person must obtain HDFS’s prior written approval, which said approval is at
HDFS’s sole and absolute discretion and subject to subsequent periodic review
of such use and to such reasonable specifications of HDFS to the extent such
specifications are directly related to the legal maintenance, whether such is
before or after lapse or termination of this Agreement.  The Harley-Davidson text name, logo(s) and
registered trademark are not to be used by the Global Administrative Agent, any
Lender or any of their Affiliates in any way before, during or after the term
of this Agreement, unless prior written consent is obtained from HDFS.  This section shall survive the
termination of this Agreement.


 


(ii)           Each
of the parties hereto acknowledges that any breach of the aforestated non-use
obligations in this Section 13.6 is likely to cause or threaten
irreparable harm to HDFS.  Therefore, in
the event of any such breach, HDFS shall be entitled to seek equitable relief
to protect its interests, including but not limited to preliminary and
permanent injunctive relief, as well as monetary damages.  Nothing stated in this Section 13.6
shall be construed to limit any other remedies available to any party hereto.


 


ARTICLE XIV  NOTICES


 


14.1  Giving Notice.  Except as otherwise permitted by Article II
with respect to Borrowing Notices, all notices and other communications
provided to any party hereto under this Agreement or any other Loan Documents
shall be in writing or by telex or by facsimile and addressed or delivered to
such party at its address set forth below its signature hereto or at such other
address as may be designated by such party in a notice to the other
parties.  Any notice, if mailed and
properly addressed with postage prepaid, shall be deemed given when received;
any notice, if transmitted by telex or facsimile, shall be deemed given when
transmitted (answerback confirmed in the case of telexes); or, if by courier,
one (1) Business Day after deposit with a reputable overnight carrier service;
with all charges paid.


 


14.2  Change of Address.  Any of the Companies, the Global Administrative
Agent, the Global Swing Line Lender and any Lender may each change the address
for service of notice upon it by a notice in writing to the other parties
hereto (or, in the case of any Lender, by notice in writing to the U.S.
Borrower and the Global Administrative Agent).


 


98





















 


ARTICLE XV  COUNTERPARTS


 


15.1  Counterparts.  This Agreement may be executed in any number
of counterparts, all of which taken together shall constitute one agreement,
and any of the parties hereto may execute this Agreement by signing any such
counterpart.


 


[Remainder
of This Page Intentionally Blank]


 


99





















 


IN WITNESS WHEREOF, the Companies, the
Lenders and the Global Administrative Agent have executed this Agreement as of
the date first above written.


 


 


	
   

  	
  HARLEY-DAVIDSON FUNDING CORP.,
  as 

  the U.S. Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  150 South Wacker Drive, Suite 3020

  
	
   

  	
  Chicago, IL 60606

  
	
   

  	
   

  
	
   

  	
  Attention: Treasurer

  
	
   

  	
  Telephone No.:

  	
  (312) 696-5375

  
	
   

  	
  Facsimile No.:

  	
  (312) 368-4372

  
					



 





















 


	
   

  	
  HARLEY-DAVIDSON FINANCIAL

  SERVICES EUROPE LIMITED, as the U.K. 

  Borrower

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  150 South Wacker Drive, Suite 3020

  
	
   

  	
  Chicago, IL 60606

  
	
   

  	
   

  
	
   

  	
  Attention: Treasurer

  
	
   

  	
  Telephone No.:

  	
  (312) 696-5375

  
	
   

  	
  Facsimile No.:

  	
  (312) 368-4372

  
					



 





















 


	
   

  	
  HARLEY-DAVIDSON FINANCIAL 

  SERVICES, INC., as a Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  150 South Wacker Drive, Suite 3020

  
	
   

  	
  Chicago, IL 60606

  
	
   

  	
   

  
	
   

  	
  Attention: Treasurer

  
	
   

  	
  Telephone No.:

  	
  (312) 696-5375

  
	
   

  	
  Facsimile No.:

  	
  (312) 368-4372

  
					



 





















 


	
   

  	
  HARLEY-DAVIDSON FINANCIAL 

  SERVICES INTERNATIONAL, INC., as a

  Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  150 South Wacker Drive, Suite 3020

  
	
   

  	
  Chicago, IL 60606

  
	
   

  	
   

  
	
   

  	
  Attention: Treasurer

  
	
   

  	
  Telephone No.:

  	
  (312) 696-5375

  
	
   

  	
  Facsimile No.:

  	
  (312) 368-4372

  
					



 





















 


	
   

  	
  HARLEY-DAVIDSON CREDIT CORP.,
  as a 

  Guarantor

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  150 South Wacker Drive, Suite 3020

  
	
   

  	
  Chicago, IL 60606

  
	
   

  	
   

  
	
   

  	
  Attention: Treasurer

  
	
   

  	
  Telephone No.:

  	
  (312) 696-5375

  
	
   

  	
  Facsimile No.:

  	
  (312) 368-4372

  
					



 





















 


	
   

  	
  JPMORGAN CHASE BANK, as
  the Global 

  Administrative Agent, the Global Swing Line 

  Lender and as a Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention:

  
	
   

  	
  Telephone No.:

  
	
   

  	
  Facsimile No.:

  
					



 





















 


	
   

  	
  CITIBANK, N.A., as
  Syndication Agent and as a 

  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name: Mark
  Chabrel

  
	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
  399 Park Ave.

  
	
   

  	
  8th Floor, Zone 12

  
	
   

  	
  New York., NY 10043

  
	
   

  	
   

  
	
   

  	
  Attention: Mark Chabrel

  
	
   

  	
  Telephone No.:

  	
  (212) 559-4637

  
	
   

  	
  Facsimile No.:

  	
  (212) 826-2375

  
					



 





















 


	
   

  	
  BNP PARIBAS, as
  Documentation Agent and as a 

  Lender

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  
	
   

  	
  Title:

  
	
   

  	
   

  
	
   

  	
  Address:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Attention: 

  	
   

  	
   

  
	
   

  	
  Telephone No.:

  	
   

  	
   

  
	
   

  	
  Facsimile No.:

  	
   

  	
   

  
									



 





















 


SCHEDULE I


 


FUNDING
PROTOCOLS re: SYNDICATED GLOBAL LOANS


 


and
SYNDICATED CANADIAN LOANS


 


Harley-Davidson $1.1billion Global Credit Facility


 


	
  Location

  	
   

  	
  Tenor

  	
   

  	
  Notice to Ad Agent

  	
   

  	
  Minimum Amounts

   Borrowing/Increments

  	
   

  	
  Currency fixing

  	
   

  	
  Screen

  	
   

  	
  Comment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US
  Borrower - Syndicate Borrowing - US or IBF Nassau 

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US $ Borrowing

  	
   

  	
   

  	
   

  	
  Houston
  Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ABR

  	
   

  	
  overnight

  	
   

  	
  same day/3PM NYT

  	
   

  	
  $5mm/500m

  	
   

  	
  Not Applicable

  	
   

  	
  Not Applicable

  	
   

  	
   

  
	
  Eurodollar

  	
   

  	
  30, 60, 90, 180

  	
   

  	
  2 days/12 noon
  NYT

  	
   

  	
  $5mm/500m

  	
   

  	
  Not Applicable

  	
   

  	
  Telerate 3750

  	
   

  	
  NY fixing

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GBP Sterling

  	
   

  	
   

  	
   

  	
  London
  Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR

  	
   

  	
  30, 60, 90, 180

  	
   

  	
  3 days/10AM NYT

  	
   

  	
  £2.5mm/250m

  	
   

  	
  funding date

  	
   

  	
  Telerate 3750

  	
   

  	
  11AM London
  fixing

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Euros

  	
   

  	
   

  	
   

  	
  London
  Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EURIBOR

  	
   

  	
  30, 60, 90, 180

  	
   

  	
  3 days/10AM NYT

  	
   

  	
  €5mm/500m

  	
   

  	
  2 days before funding

  	
   

  	
  Reuters

  EURIBOR 01

  	
   

  	
  11AM Brussels
  fixing

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Canadian $

  	
   

  	
   

  	
   

  	
  London
  Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C$ LIBOR

  	
   

  	
  30, 60, 90, 180

  	
   

  	
  3 days/11AM NYT

  	
   

  	
  C$5mm/500m

  	
   

  	
  2 days before  funding

  	
   

  	
  Telerate 3750

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UK
  Borrower - Syndicate Borrowings in London

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GBP Sterling

  	
   

  	
   

  	
   

  	
  London
  Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR

  	
   

  	
  30, 60, 90, 180

  	
   

  	
  2 days/11am
  London

  	
   

  	
  £2.5mm/250m

  	
   

  	
  funding date

  	
   

  	
  Reuters

  LIBOR 01

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Euros

  	
   

  	
   

  	
   

  	
  London
  Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EURIBOR

  	
   

  	
  30, 60, 90, 180

  	
   

  	
  3 days/11am
  London

  	
   

  	
  €5mm/500m

  	
   

  	
  2 days before
  funding

  	
   

  	
  Reuters

  EURIBOR 01

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US$

  	
   

  	
   

  	
   

  	
  London
  Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR

  	
   

  	
  30, 60, 90, 180

  	
   

  	
  3 days/11am
  London

  	
   

  	
  $5mm/500m

  	
   

  	
  2 days before
  funding

  	
   

  	
  Telerate 3750

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CHF

  	
   

  	
   

  	
   

  	
  London
  Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR

  	
   

  	
  30, 60, 90, 180

  	
   

  	
  3 days/11am
  London

  	
   

  	
  CHF5mm/500m

  	
   

  	
  2 days before
  funding

  	
   

  	
  Reuters

  LIBOR 02

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Canadian
  Borrower - Syndicate Borrowings in Canada

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Toronto
  Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C$ Prime

  	
   

  	
  overnight

  	
   

  	
  same day/12 noon
  Toronto

  	
   

  	
  C$500m/100m

  	
   

  	
  notice day

  	
   

  	
  Not Applicable

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US$ ABR

  	
   

  	
  overnight

  	
   

  	
  same day/12 noon
  Toronto

  	
   

  	
  $5mm/500m

  	
   

  	
  Not Applicable

  	
   

  	
  Not Applicable

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C$ LIBOR

  	
   

  	
  30, 60, 90, 180

  	
   

  	
  3 days/12 noon
  Toronto

  	
   

  	
  C$5mm/500m

  	
   

  	
  notice day

  	
   

  	
  Telerate 3750

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US$ Eurodollar

  	
   

  	
  30, 60, 90, 180

  	
   

  	
  3 days/12 noon
  Toronto

  	
   

  	
  $5mm/500m

  	
   

  	
  2 days before
  funding

  	
   

  	
  Telerate 3750

  	
   

  	
  11AM London
  fixing

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CDOR (BAs)

  	
   

  	
  30, 60, 90, 180

  	
   

  	
  same day/10 am
  Toronto or 1 day/12 noon Toronto

  	
   

  	
  C$500m/100m

  	
   

  	
  notice day

  	
   

  	
  Reuters CDOR

  	
   

  	
   

  



 





















 


SCHEDULE II


 


FUNDING
PROTOCOLS re: SWINGLINE LOANS


 


Harley-Davidson $1.1billion Global Credit Facility


 


	
  Location

  	
   

  	
  Tenor

  	
   

  	
  Notice
  to Ad Agent

  	
   

  	
  Minimum
  Amounts 

  Borrowing/Increments

  	
   

  	
  Currency
  fixing

  	
   

  	
  Screen

  	
   

  	
  Comment

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US Borrower - Swingline Borrowing

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US $ Borrowing

  	
   

  	
   

  	
   

  	
  Houston Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ABR

  	
   

  	
  overnight

  	
   

  	
  same day/3PM NYT

  	
   

  	
  $1mm/500m

  	
   

  	
  Not applicable

  	
   

  	
  Not applicable

  	
   

  	
   

  
	
  Money Market

  	
   

  	
  less than 30 days

  	
   

  	
  same day/3PM NYT

  	
   

  	
  $1mm/500m

  	
   

  	
  Not applicable

  	
   

  	
  Telerate 3750

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GBP Sterling

  	
   

  	
   

  	
   

  	
  London Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR

  	
   

  	
  less than 30 days

  	
   

  	
  1 day/12 noon NYT

  	
   

  	
  £500m/250m

  	
   

  	
  day before funding

  	
   

  	
  Telerate 3750

  	
   

  	
  11AM London fixing

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Euros

  	
   

  	
   

  	
   

  	
  London Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EURIBOR

  	
   

  	
  less than 30 days

  	
   

  	
  1 day/12 noon NYT

  	
   

  	
  €1mm/500m

  	
   

  	
  day before funding

  	
   

  	
  Reuters

  EURIBOR 01

  	
   

  	
  11AM Brussels fixing

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Canadian $ in U.S.

  	
   

  	
   

  	
   

  	
  Houston Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C$ LIBOR

  	
   

  	
  less than 30 days

  	
   

  	
  1 day/12 noon NYT

  	
   

  	
  C$500m/100m

  	
   

  	
  day before funding

  	
   

  	
  Telerate 3750

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Canadian $ in Canada

  	
   

  	
   

  	
   

  	
  Bank One Toronto Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C$ Prime

  	
   

  	
  overnight

  	
   

  	
  same day/12 noon Toronto

  	
   

  	
  C$500m/100m

  	
   

  	
  notice day

  	
   

  	
  Not applicable

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  UK Borrower - Swingline Borrowings
  in London

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  GBP Sterling

  	
   

  	
   

  	
   

  	
  London Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR

  	
   

  	
  less than 30 days

  	
   

  	
  same day/11am London

  	
   

  	
  £500m/250m

  	
   

  	
  notice day

  	
   

  	
  Reuters

  LIBOR 01

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Euros

  	
   

  	
   

  	
   

  	
  London Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  EURIBOR

  	
   

  	
  less than 30 days

  	
   

  	
  same day/11am London

  	
   

  	
  €1mm/500m

  	
   

  	
  notice day

  	
   

  	
  JPM Ref Rate

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  US$

  	
   

  	
   

  	
   

  	
  London Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR

  	
   

  	
  less than 30 days

  	
   

  	
  same day/11am London

  	
   

  	
  $1mm/500m

  	
   

  	
  notice day

  	
   

  	
  JPM Ref Rate

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CHF

  	
   

  	
   

  	
   

  	
  London Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  LIBOR

  	
   

  	
  less than 30 days

  	
   

  	
  1 day/11am London

  	
   

  	
  CHF1mm/500m

  	
   

  	
  notice day

  	
   

  	
  JPM Ref Rate

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Canadian Borrower - Swingline
  Borrowings in Canada

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  Bank One Toronto Loan & Agency

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C$ Prime

  	
   

  	
  overnight

  	
   

  	
  same day/12 noon Toronto

  	
   

  	
  C$500m/100m

  	
   

  	
  notice day

  	
   

  	
  Not applicable

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CDOR

  	
   

  	
  less than 30 days

  	
   

  	
  same day/12 noon Toronto

  	
   

  	
  C$500m/100m

  	
   

  	
  notice day

  	
   

  	
  Not applicable

  	
   

  	
   

  



 





















 


SCHEDULE III


 


MANDATORY
COST


 


1.                                       The
Mandatory Cost is an addition to the interest rate to compensate Lenders for
the cost of compliance with (a) the requirements of the Bank of England and/or
the Financial Services Authority (or, in either case, any other authority which
replaces all or any of its functions) or (b) the requirements of the European
Central Bank.


 


2.                                       On the first
day of each Interest Period (or as soon as possible thereafter) the Global
Administrative Agent shall calculate, as a percentage rate, a rate (the “Associated Costs Rate”) for each Lender, in
accordance with the paragraphs set out below. 
The Mandatory Cost will be calculated by the Global Administrative Agent
as a weighted average of the Lenders’ Associated Costs Rates (weighted in
proportion to the percentage participation of each Lender in the relevant Loan)
and will be expressed as a percentage rate per annum.


 


3.                                       The
Associated Costs Rate for any Lender lending from a Facility Office in a
Participating Member State will be the percentage notified by that Lender to
the Global Administrative Agent.  This
percentage will be certified by that Lender in its notice to the Global
Administrative Agent to be its reasonable determination of the cost (expressed
as a percentage of that Lender’s participation in all Loans made from that
Facility Office) of complying with the minimum reserve requirements of the European
Central Bank in respect of loans made from that Facility Office.


 


4.                                       The
Associated Costs Rate for any Lender lending from a Facility Office in the
United Kingdom will be calculated by the Global Administrative Agent as
follows:


 


(a)                                  in
relation to a Loan in Pounds Sterling:


 




	
  

  	
   per
  cent. per annum

  	
   

  






 


(b)                                 in
relation to a Loan in any currency other than Pounds Sterling:


 




	
  

  	
   per
  cent. per annum.

  	
   

  






 


Where:


 


A                                      is
the percentage of Eligible Liabilities (assuming these to be in excess of any
stated minimum) which that Lender is from time to time required to maintain as
an interest free cash ratio deposit with the Bank of England to comply with
cash ratio requirements.


 





















 


B                                        is
the percentage rate of interest (excluding the Applicable Margin and the
Mandatory Cost and, if the Loan is an Unpaid Sum, the additional rate of
interest specified in Section 2.11 (Default
Rate) payable for the relevant Interest Period on the Loan.


 


C                                        is
the percentage (if any) of Eligible Liabilities which that Lender is required
from time to time to maintain as interest bearing Special Deposits with the
Bank of England.


 


D                                       is
the percentage rate per annum payable by the Bank of England to the Global
Administrative Agent on interest bearing Special Deposits.


 


E                                         is
designed to compensate Lenders for amounts payable under the Fees Rules and is
calculated by the Global Administrative Agent as being the average of the most
recent rates of charge supplied by the Reference Banks to the Global
Administrative Agent pursuant to paragraph 7 below and expressed in pounds per
£1,000,000.


 


5.                                       For the
purposes of this Schedule:


 


(a)                                  “Eligible Liabilities” and “Special
Deposits” have the meanings given to them from time to time under or
pursuant to the Bank of England Act 1998 or (as may be appropriate) by the Bank
of England;


 


(b)                                 “Facility Office” means the office or offices notified by a
Lender to the Global Administrative Agent in writing on or before the date it
becomes a Lender (or, following that date, by not less than five Business Days’
written notice) as the office or offices through which it will perform its
obligations under this Agreement.


 


(c)                                  “Fees Rules” means the rules on periodic fees contained in
the FSA Supervision Manual or such other law or regulation as may be in force
from time to time in respect of the payment of fees for the acceptance of
deposits;


 


(d)                                 “Fee Tariffs” means the fee tariffs specified in the Fees
Rules under the activity group A.1 Deposit acceptors (ignoring any minimum fee
or zero rated fee required pursuant to the Fees Rules but taking into account
any applicable discount rate);


 


(e)                                  “Participating Member State” means any member state of the
European Union that adopts or has adopted the euro as its lawful currency in
accordance with legislation of the European Union relating to economic and
monetary union.


 


(f)                                    “Reference Banks” means, in relation to Mandatory Cost, the
principal London offices of JPMorgan Chase Bank and Citibank, N.A. and, in
relation to EURIBOR, the principal offices of JPMorgan Chase Bank and Citibank,
N.A. in the relevant jurisdiction or such


 





















 


other banks as
may be appointed by the Global Administrative Agent in consultation with the
Borrowers.


 


(g)                                 “Tariff Base” has the meaning given to it in, and will be
calculated in accordance with, the Fees Rules.


 


(h)                                 “Unpaid Sum” means any sum due and payable but unpaid by a
Borrower under the Loan Documents.


 


6.                                       In
application of the above formulae, A, B, C and D will be included in the
formulae as percentages (i.e. 5 per cent. will be included in the formula as 5
and not as 0.05).  A negative result
obtained by subtracting D from B shall be taken as zero.  The resulting figures shall be rounded to
four decimal places.


 


7.                                       If
requested by the Global Administrative Agent, each Reference Bank shall, as soon
as practicable after publication by the Financial Services Authority, supply to
the Global Administrative Agent, the rate of charge payable by that Reference
Bank to the Financial Services Authority pursuant to the Fees Rules in respect
of the relevant financial year of the Financial Services Authority (calculated
for this purpose by that Reference Bank as being the average of the Fee Tariffs
applicable to that Reference Bank for that financial year) and expressed in
pounds per £1,000,000 of the Tariff Base of that Reference Bank.


 


8.                                       Each
Lender shall supply any information required by the Global Administrative Agent
for the purpose of calculating its Associated Costs Rate.  In particular, but without limitation, each
Lender shall supply the following information on or prior to the date on which
it becomes a Lender:


 


(a)                                  the
jurisdiction of its Facility Office; and


 


(b)                                 any other
information that the Global Administrative Agent may reasonably require for
such purpose.


 


Each Lender shall promptly notify the Global Administrative Agent of
any change to the information provided by it pursuant to this paragraph.


 


9.                                       The
percentages of each Lender for the purpose of A and C above and the rates of
charge of each Reference Bank for the purpose of E above shall be determined by
the Global Administrative Agent based upon the information supplied to it
pursuant to paragraphs 7 and 8 above and on the assumption that, unless a
Lender notifies the Global Administrative Agent to the contrary, each Lender’s
obligations in relation to cash ratio deposits and Special Deposits are the
same as those of a typical bank from its jurisdiction of incorporation with a
Facility Office in the same jurisdiction as its Facility Office.


 





















 


10.                                 The Global
Administrative Agent shall have no liability to any person if such
determination results in an Associated Costs Rate which over or under
compensates any Lender and shall be entitled to assume that the information
provided by any Lender or Reference Bank pursuant to paragraphs 3, 7 and 8 above
is true and correct in all respects.


 


11.                                 The Global
Administrative Agent shall distribute the additional amounts received as a
result of the Mandatory Cost to the Lenders on the basis of the Associated
Costs Rate for each Lender based on the information provided by each Lender and
each Reference Bank pursuant to paragraphs 3, 7 and 8 above.


 


12.                                 Any
determination by the Global Administrative Agent pursuant to this Schedule in
relation to a formula, the Mandatory Cost, an Associated Costs Rate or any
amount payable to a Lender shall, in the absence of manifest error, be
conclusive and binding on all parties hereto.


 


13.                                 The Global
Administrative Agent may from time to time, after consultation with the
relevant Borrowers and Lenders, determine and notify to all parties hereto any
amendments which are required to be made to this Schedule in order to
comply with any change in law, regulation or any requirements from time to time
imposed by the Bank of England, the Financial Services Authority or the
European Central Bank (or, in any case, any other authority which replaces all
or any of its functions) and any such determination shall, in the absence of
manifest error, be conclusive and binding on all parties hereto.