exhibit43-amendment1to36






                                                               Exhibit 4.3              AMENDMENT NO. 1 TO 364-DAY CREDIT AGREEMENT                             Dated as of April 23, 2020                                      to                         364-DAY CREDIT AGREEMENT                             Dated as of May 13, 2019               THIS  AMENDMENT  NO.  1  TO  364-DAY  CREDIT  AGREEMENT  (“Amendment”)  is  made  as  of  April  23,  2020  (the  “Effective  Date”)  by  and  among  Harley- Davidson, Inc., a Wisconsin corporation (“Harley”), Harley-Davidson Financial Services, Inc., a  Delaware  corporation  (“HDFS”,  and  together  with  Harley,  collectively,  the  “Borrowers”),  the  financial  institutions  listed  on  the  signature  pages  hereof  and  JPMorgan  Chase  Bank,  N.A., as  Global  Administrative  Agent  (the  “Administrative  Agent”),  under  that  certain  364-Day  Credit  Agreement dated as of May 13, 2019 by and among the Borrowers and Harley-Davidson Credit  Corp.,  a  Nevada corporation, as the  Guarantor,  the Lenders  and  the Administrative  Agent  (the  “Credit Agreement”). Capitalized definitional terms used herein and not otherwise defined herein  shall have the respective meanings given to them in the Credit Agreement.               WHEREAS, the Borrowers have requested that certain modifications be made to  the Credit Agreement; and               WHEREAS,  the  Borrowers,  the  Lenders  party  hereto  and  the  Administrative  Agent have agreed to amend the Credit Agreement on the terms and conditions set forth herein;               NOW, THEREFORE, in consideration of the premises set forth above, the terms  and  conditions  contained  herein,  and  other  good  and  valuable  consideration,  the  receipt  and  sufficiency of which are hereby acknowledged, the Borrowers, the Lenders party hereto and the  Administrative Agent hereby agree to the following amendments to the Credit Agreement.               1.    Amendments to Credit Agreement.  Effective as of the Effective Date but  subject to the satisfaction of the conditions precedent set forth in Section 2 below:                  (a) The  parties  hereto  agree  that  the  Credit  Agreement  (including  the    Schedules and Exhibits thereto) shall be amended to delete the stricken text (indicated textually    in the same manner as the following example: stricken text) and to add the double-underlined    text (indicated textually in the same manner as the following example: double-underlined text)    as set forth in the pages of the Credit Agreement (including the Schedules and Exhibits thereto)    attached  as  Annex  A  hereto  (the  Credit  Agreement  as  so  amended,  the  “Amended  Credit    Agreement”).               2.    Conditions  of  Effectiveness.   The  effectiveness  of  this  Amendment  is  subject to the conditions precedent that the Administrative Agent shall have received:                  (a) Counterparts of this Amendment duly executed by each Borrower, each    of the Lenders and the Administrative Agent and counterparts of the Consent and Reaffirmation    attached hereto duly executed by the Guarantor. 





 






               (b) A favorable written opinion (addressed to the Administrative Agent and    the Lenders and dated the Effective Date) of each of (i) Foley & Lardner LLP, special counsel    for  the  Companies  and  (ii)  Paul  J.  Krause,  Chief  Legal  Officer,  Chief  Compliance  Officer    and Secretary  of  Harley,  in  each  case  in  form  and  substance  reasonably  satisfactory  to  the    Administrative Agent and its counsel and covering such matters relating to the Loan Parties,    this  Amendment  and  the  Credit  Agreement,  as  amended  by  this  Amendment,  as  the    Administrative Agent shall reasonably request.  Harley hereby requests such counsels to deliver    such opinions.                  (c) Such other documents and certificates as the Administrative Agent or its    counsel may reasonably request relating to the organization, existence and good standing of the    Companies, the authorization of this Amendment, the Credit Agreement, as amended by this    Amendment, and any other legal matters relating to the Companies, the Amendment and the    Credit  Agreement,  as  amended  by  this  Amendment,  all  in  form  and  substance  reasonably    satisfactory to the Administrative Agent and its counsel.                  (d) For the account of each Lender that delivers its executed signature page    to this Amendment by no later than the date and time specified by the Administrative Agent (in    consultation with Harley), an upfront fee in respect of its Commitment in an amount equal to    the  applicable  amount  previously  disclosed  to  the  Lenders  (and  established  by  the    Administrative Agent in consultation with the Harley).                  (e) Payment and/or reimbursement of the reasonable fees and expenses of the    Administrative Agent and its affiliates (including, to the extent invoiced, reasonable fees and    expenses of one U.S. counsel for the Administrative Agent) in connection with this Amendment    and the Loan Documents to the extent invoices have been provided to Harley at least one (1)    Business Day in advance of the Effective Date.               3.    Representations and Warranties of each Borrower.  Each Borrower hereby  represents and warrants to the Lenders and the Administrative Agent on the date hereof as follows:                  (a) This Amendment and the Credit Agreement as amended hereby constitute    the legal, valid and binding obligations of such Borrower enforceable against such Borrower in    accordance with their respective terms (subject to the effect of bankruptcy and other similar    laws affecting creditors’ rights generally and general principles of equity).                  (b) As of the date hereof and giving effect to the terms of this Amendment,    (i) no Default or Unmatured Default has occurred and is continuing and (ii) the representations    and warranties of such Borrower contained in Article V of the Credit Agreement, as amended    hereby,  are  true  and  correct  in  all  material  respects  as  of  the  Effective  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.               4.    Reference to and Effect on the Credit Agreement.                  (a) Upon the effectiveness hereof, each reference to the Credit Agreement in    the Credit Agreement or any other Loan Document shall mean and be a reference to the Credit    Agreement as amended hereby.                  (b) Except as specifically amended above, the Credit Agreement and all other    documents, instruments and agreements executed and/or delivered in connection therewith shall    remain in full force and effect and are hereby ratified and confirmed.                                         2 





 






               (c) Except  as  specifically  provided  above,  the  execution,  delivery  and    effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of    the Administrative Agent or the Lenders, nor constitute a waiver of any provision of the Credit    Agreement or any other documents, instruments and agreements executed and/or delivered in    connection therewith.                  (d) This Amendment shall be a Loan Document.               5.    Governing Law.  This Amendment shall be construed in accordance with  and  governed  by  the internal laws  of  the  State of New York,  but  giving  effect  to federal laws  applicable to banks.               6.    Headings.  Section headings in this Amendment are included herein for  convenience of reference only and shall not constitute a part of this Amendment for any other  purpose.               7.    Counterparts.  This Amendment may be executed by one or more of the  parties hereto on any number of separate counterparts, and all of said counterparts taken together  shall be deemed to constitute one and the same instrument.  Delivery of an executed counterpart of  a signature page of this Amendment by telecopy, e-mailed .pdf or any other electronic means that  reproduces  an  image  of  the  actual  executed  signature  page  shall  be  effective  as  delivery  of  a  manually executed counterpart of this Amendment.                             [Signature Pages Follow]                                          3 





 






            IN WITNESS WHEREOF, this Amendment has been duly executed as of the day and year  first above written.                                       HARLEY-DAVIDSON, INC.,                                      as a Borrower                                       By:/s/ J. Darrell Thomas                                      Name: J. Darrell Thomas                                      Title: Vice President and Treasurer                                       HARLEY-DAVIDSON FINANCIAL SERVICES,                                      INC.,                                      as a Borrower                                       By:/s/ J. Darrell Thomas                                      Name: J. Darrell Thomas                                      Title: Vice President, Chief Financial Officer and                                      Treasurer                              Signature Page to Amendment No. 1                       364-Day Credit Agreement dated as of May 13, 2019                               Harley-Davidson, Inc. et al 





 






               JPMORGAN CHASE BANK, N.A.,                 as Global Administrative Agent and individually as a                 Lender                  By:/s/ Peter S. Predun                 Name: Peter S. Predun                 Title: Executive Director        Signature Page to Amendment No. 1  364-Day Credit Agreement dated as of May 13, 2019          Harley-Davidson, Inc. et al 





 






                  BARCLAYS BANK PLC,                    as a Lender                     By:/s/ Craig Malloy                    Name: Craig Malloy                    Title: Director           Signature Page to Amendment No. 1  364-Day Credit Agreement dated as of May 13, 2019             Harley-Davidson, Inc. et al 





 






               THE TORONTO-DOMINION BANK, NEW YORK                 BRANCH,                 as a Lender                  By:/s/ Peter Kuo                  Name: PETER KUO                 Title: AUTHORIZED SIGNATORY         Signature Page to Amendment No. 1  364-Day Credit Agreement dated as of May 13, 2019          Harley-Davidson, Inc. et al 





 






               AUSTRALIA AND NEW ZEALAND BANKING                 GROUP LIMITED,                 as a Lender                  By:/s/ Robert Grillo                 Name: Robert Grillo                 Title: Director         Signature Page to Amendment No. 1  364-Day Credit Agreement dated as of May 13, 2019          Harley-Davidson, Inc. et al 





 






                  GOLDMAN SACHS BANK USA,                    as a Lender                     By:/s/ Ryan Durkin                    Name: Ryan Durkin                    Title: Authorized Signatory           Signature Page to Amendment No. 1  364-Day Credit Agreement dated as of May 13, 2019             Harley-Davidson, Inc. et al 





 






               LLOYDS BANK CORPORATE MARKETS PLC,                 as a Lender                  By:/s/ Kamala Basdeo                 Name: Kamala Basdeo                 Title: Assistant Vice President                  By:/s/ Tina Wong                 Name: Tina Wong                 Title: Assistant Vice President         Signature Page to Amendment No. 1  364-Day Credit Agreement dated as of May 13, 2019          Harley-Davidson, Inc. et al 





 






                        CONSENT AND REAFFIRMATION              The undersigned hereby acknowledges receipt of a copy of the foregoing Amendment No.  1 to the 364-Day Credit Agreement dated as of May 13, 2019 (as amended, restated, supplemented or  otherwise modified from time to time, the “Credit Agreement”) by and among Harley-Davidson, Inc., a  Wisconsin  corporation  (“Harley”),  Harley-Davidson  Financial  Services,  Inc.,  a  Delaware  corporation  (“HDFS”, and together with Harley, collectively, the “Borrowers”) and Harley-Davidson Credit Corp., a  Nevada corporation, as Guarantor, the Lenders and JPMorgan Chase Bank, N.A., as Global Administrative  Agent (the “Administrative Agent”), which Amendment No. 1 is dated as of April 23, 2020 and is by and  among the Borrowers, the financial institutions listed on the signature pages thereof and the Administrative  Agent (the “Amendment”).  Capitalized terms used in this Consent and Reaffirmation and not defined  herein shall have the meanings given to them in the Credit Agreement.  Without in any way establishing a  course of dealing by the Administrative Agent or any Lender, the undersigned consents to the Amendment  and reaffirms the terms and conditions of the Guarantee and any other Loan Document executed by it and  acknowledges and agrees that each and every Loan Document executed by the undersigned in connection  with the Credit Agreement remains in full force and effect and is hereby reaffirmed, ratified and confirmed.   All references to the Credit Agreement contained in the above-referenced documents shall be a reference  to the Credit Agreement as so modified by the Amendment and as the same may from time to time hereafter  be amended, modified or restated.     Dated April 23, 2020                               [Signature Page Follows] 





 






      IN WITNESS WHEREOF, this Consent and Reaffirmation has been duly executed as of the day  and year above written.                                    HARLEY-DAVIDSON CREDIT CORP.                                   By:/s/ J. Darrell Thomas                                  Name: J. Darrell Thomas                                  Title: Vice President, Chief Financial Officer and Treasurer                    Signature Page to Consent and Reaffirmation to Amendment No. 1                       364-Day Credit Agreement dated as of May 13, 2019                               Harley-Davidson, Inc. et al





 






ANNEX A    Attached 





 






                                    TABLE OF CONTENTS                                                                                    Page  ARTICLE I DEFINITIONS                                                                1            1.1 Certain Defined Terms                                                  1  ARTICLE II THE CREDITS                                                            2126            2.1 Syndicated Global Loans                                             2126           2.2 [Reserved]Mandatory Prepayments of Loans and Mandatory Commitment                 Reductions                                                        2127           2.3 Optional Payments of Loans                                          2127           2.4 Reduction of Commitments                                            2227           2.5 Method of Borrowing Syndicated Global Advances                      2328           2.6 Method of Selecting Types and Interest Periods for Syndicated Global Advances. 2329           2.7 Minimum Amount of Each Syndicated Global Advance                    2329           2.8 Method of Selecting Types and Interest Periods for Conversion and Continuation                  of Syndicated Global Advances                                    2329           2.9 [Reserved]                                                          2430           2.10 The Bid Rate Advances                                              2430           2.11 Default Rate                                                       2733           2.12 Method of Payment                                                  2733           2.13 Notes, Telephonic Notices                                          2834           2.14 Promise to Pay; Interest and Fees; Interest Payment Dates; Interest and Fee                  Basis; Loan Accounts                                             2834           2.15 Notification of Advances, Interest Rates, Prepayments and Aggregate                 Commitment Reductions                                             2935           2.16 Lending Installations                                              2935           2.17 Non-Receipt of Funds by the Global Administrative Agent            2935           2.18 MaturityTermination Date                                           3035           2.19 Term-Out Option                                                      30  ARTICLE III CHANGE IN CIRCUMSTANCES                                               3036            3.1 Yield Protection                                                    3036           3.2 Changes in Capital Adequacy Regulations                             3137           3.3 Availability of Types of Advances                                   3237           3.4 Funding Indemnification                                             3339           3.5 Taxes                                                               3339           3.6 Mitigation; Lender Statements; Survival of Indemnity                3641           3.7 [Reserved]                                                          3642           3.8 Replacement of Affected Lenders                                     3642           3.9 Removal of Lenders                                                  3742  ARTICLE IV CONDITIONS PRECEDENT                                                   3843            4.1 Initial Loans                                                       3843           4.2 Each Loan                                                           3844                                             i





 






ARTICLE V REPRESENTATIONS AND WARRANTIES                                          3844            5.1 Representations and Warranties                                      3844  ARTICLE VI COVENANTS                                                              4046            6.1 Affirmative Covenants                                               4046           6.2 Negative Covenants                                                  4348           6.3 Financial Covenants                                                 4551  ARTICLE VII DEFAULTS                                                              4652            7.1 Defaults                                                            4652  ARTICLE VIII ACCELERATION, DEFAULTING LENDERS; WAIVERS, AMENDMENTS AND                 REMEDIES                                                          4955            8.1 Remedies.                                                           4955           8.2 Defaulting Lender                                                   4955           8.3 Amendments                                                          5056           8.4 Preservation of Rights                                              5258  ARTICLE IX GENERAL PROVISIONS                                                     5258            9.1 Survival of Representations                                         5258           9.2 Governmental Regulation                                             5258           9.3 Headings                                                            5259           9.4 Entire Agreement                                                    5259           9.5 Several Obligations; Benefits of this Agreement                     5259           9.6 Expenses; Indemnification                                           5259           9.7 Numbers of Documents                                                5460           9.8 Accounting                                                          5460           9.9 Severability of Provisions                                          5461           9.10 Nonliability of Lenders                                            5561           9.11 CHOICE OF LAW AND SUBMISSION TO JURISDICTION                       5561           9.12 WAIVER OF JURY TRIAL                                               5562           9.13 No Strict Construction                                             5662           9.14 USA PATRIOT ACT                                                    5662           9.15 Service of Process                                                 5662           9.16 Acknowledgement and Consent to Bail-In of EEAAffected Financial                 Institutions                                                      5663           9.17 Certain Calculations                                               5763           9.18 Interest Rates 57[Intentionally Omitted                              63           9.19 LLC Division                                                       5763           9.20 Interest Rates; LIBOR Notification                                 5763           9.21 Acknowledgement Regarding Any Supported QFCs                         64  ARTICLE X THE GLOBAL ADMINISTRATIVE AGENT                                         5864            10.1 Appointment; Nature of Relationship                                5865                                             ii





 






          10.2 Powers                                                             5865           10.3 General Immunity                                                   5865           10.4 No Responsibility for Loans, Creditworthiness, Recitals, Etc       5865           10.5 Action on Instructions of Lenders                                  5966           10.6 Employment of the Global Administrative Agent and Counsel          5966           10.7 Reliance on Documents; Counsel                                     5966           10.8 The Global Administrative Agent’s Reimbursement and Indemnification 5966           10.9 Rights as a Lender                                                 6066           10.10 Lender Credit Decision                                            6067           10.11 Successor Global Administrative Agent                             6067           10.12 Co-Agents, Documentation Agent, Syndication Agent, etc            6067           10.13 Certain ERISA Matters                                             6167  ARTICLE XI SETOFF; RATABLE PAYMENTS                                               6269            11.1 Setoff                                                             6269           11.2 Ratable Payments                                                   6269  ARTICLE XII GUARANTEE                                                             6269  ARTICLE XIII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS                    6572            13.1 Successors and Assigns                                             6572           13.2 Participations.                                                    6572           13.3 Assignments.                                                       6673           13.4 Confidentiality                                                    6976           13.5 Dissemination of Information                                       7077           13.6 Non-Use of HDFS’ Licensed Marks                                    7077  ARTICLE XIV NOTICES                                                               7178            14.1 Giving Notice                                                      7178           14.2 Change of Address                                                  7280  ARTICLE XV COUNTERPARTS                                                           7280            15.1 Counterparts; Effectiveness; Electronic Execution                  7280                                              iii





 






                            364-DAY CREDIT AGREEMENT        This  364-Day  Credit  Agreement  dated  as  of  May  13,  2019  is  entered  into  among  Harley- Davidson,  Inc.,  a  Wisconsin  corporation,  Harley-Davidson  Financial  Services,  Inc.,  a  Delaware corporation, Harley-Davidson Credit Corp., a Nevada corporation, the institutions from time to time a party  hereto  as  Lenders,  whether  by  execution  of  this  Agreement  or  an  assignment  and  assumption pursuant to Section 13.3, JPMorgan Chase Bank, N.A., as the Global Administrative Agent and Barclays Bank plc, Goldman Sachs Bank USA and The Toronto-Dominion Bank, New York Branch, each in its capacity as a 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  specifiedis  defined  in  Section  2.10(b)(i)       hereof.               “Act” is defined in Section 9.14 hereof.               “Advance” means a Bid Rate Advance or Syndicated Global Advance.               “Affected Financial Institution” means (a) any EEA Financial Institution or (b) any       U.K. Financial Institution.               “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 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.               “Agent Party” has the meaning assigned to such term in Section 14.1(c).               “Aggregate  Commitment”  means  the  aggregate  of  the  Commitments  of  all  the       Syndicated Global Lenders, as reduced from time to time pursuant to the terms hereof.  The initial       Aggregate Commitment is $195,000,000.               “Agreement” means this 364-Day Credit Agreement, as it may be amended, restated or       otherwise modified and in effect from time to time.               “Agreement Accounting Principles” means, subject to Section 9.8, generally accepted        accounting  principles  as  in  effect from time to time in the United States, applied in a manner        consistent with that used by Harley in its preparation of its audited financial statements for the        year ended December 31, 20182019 (except for changes to such application as are concurred on       by  Harley’s  independent  public  accountants);  provided  that,  if  Harley  notifies  the  Global        Administrative  Agent  that  Harley  wishes  to  amend  Section 6.3  to  eliminate  the  effect  of  any        change in Agreement Accounting Principles  (or in the application thereof) on the operation of                                             1





 






such covenant (or if the Global Administrative Agent notifies Harley that the Required Lenders wish to amend Section 6.3 for such purpose), then Harley’s compliance with such section shall be determined on the basis of Agreement Accounting Principles as in effect without giving effect to the  relevant  change  in  Agreement  Accounting  Principles  (or  in  the  application  thereof),  until either such notice is withdrawn or such Section is amended in a manner satisfactory to Harley and the Required Lenders.         “Alternate Base Rate” means, for any day, a fluctuating interest rate per annum 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; (b) the sum of one-half of one percent (0.50%) and the  NYFRB Rate in effect on such day; and (c) the Eurodollar Rate for a one month Interest Period  on such day (or, if such day is not a Business Day, the immediately preceding Business Day) plus 11.00%; provided that for the purpose of this definition, the Eurodollar Rate for any day shall be based  on  LIBOR  (or  if  LIBOR  is  not  available  for  such  one  month  Interest  Period,  the Interpolated Rate) at approximately 11:00 a.m. London time on such day; provided, further, that  if  any  of  the  aforesaid  rates  shall  be  less  than  zero,  such  rate  shall  be  deemed  to  be  zero  for  purposes of this Agreement.  Any change in the Alternate Base Rate due to a change in the Prime  Rate,  the  NYFRB Rate or the Eurodollar Rate shall be effective on the effective date of such  change. If the Alternate Base Rate is being used as an alternate rate of interest pursuant to Section 3.3 hereof, then the Alternate Base Rate shall be the greater of clause (a) and (b) above and shall  be determined without reference to clause (c) above.         “Amendment No. 1 Effective Date” means April 23, 2020.         “Anti-Corruption Laws”  means  all  laws,  rules,  and  regulations  of  any  jurisdiction applicable to any Company or its Subsidiaries from time to time concerning or relating to bribery or corruption.         “Applicable Commitment Fee Rate” means 0.070.40%.         “Applicable Margin” means 1.001.75%.         “Applicable Parties” is defined in Section 14.1(c)(iii) hereof.         “Approved Electronic Platform” is defined in Section 14.1(c)(i) 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 JPMorgan Chase Bank, N.A.         “Authorized Officer” means any of the chief executive officer, chief financial officer, any vice president, controller, treasurer or any other officer of the relevant Borrower from time to time designated by an Authorized Officer in writing to the Global Administrative Agent as an Authorized Officer, acting singly.                                        2





 






       “Bail-In Action” means the exercise of any Write-Down and Conversion Powers by the  applicable EEA Resolution Authority in respect of any liability of an EEAAffected Financial Institution.         “Bail-In  Legislation”  means, (a)  with  respect  to  any  EEA  Member  Country implementing Article 55 of Directive 2014/59/EU of the European Parliament and of the Council of the European Union, the implementing law, regulation, rule or requirement for such EEA Member Country from time to time which is described in the EU Bail-In Legislation Schedule. and (b) with respect to the United Kingdom, Part I of the United Kingdom Banking Act 2009 (as amended from time to time) and any other law, regulation or rule applicable in the United Kingdom relating to the resolution of unsound or failing banks, investment firms or other financial institutions or their affiliates (other than through liquidation, administration or other insolvency proceedings).         “Bankruptcy Code” is defined in Article XII hereof.         “Base Rate Advance” means a Syndicated Global Advance which bears interest at the Alternate Base Rate.         “Base Rate  Loan”  means  a  Syndicated  Global  Loan,  or  portion  thereof,  which  bears interest at the Alternate Base Rate.         “Benchmark  Replacement” means the sum of: (a) the  alternate  benchmark rate (which may be a SOFR-Based Rate) that has been selected by the Global Administrative Agent and Harley  giving  due  consideration to (i) any  selection or  recommendation of a replacement rate or the  mechanism for  determining such a rate by the  Relevant Governmental Body  and/or  (ii) any  evolving or  then-prevailing market  convention for determining a rate of interest as a replacement to the Relevant Rate for syndicated credit facilities  denominated in  Dollars and (b) the  Benchmark  Replacement  Adjustment; provided that, if the Benchmark Replacement as so determined would be less than zero, the Benchmark  Replacement  will be  deemed to be  zero for the  purposes of this  Agreement; provided further that any such Benchmark Replacement shall be administratively feasible as  determined by the Global  Administrative Agent in its sole  reasonable  good faith discretion.         “Benchmark Replacement Adjustment”  means the spread adjustment, or method for calculating or determining such spread adjustment, (which may be a positive or negative value or zero) that has been selected by the Global Administrative Agent and Harley giving due consideration to (i) any selection or recommendation of a spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the Relevant Rate with the  applicable  Unadjusted  Benchmark  Replacement by the  Relevant Governmental Body  and/or  (ii) any  evolving or  then-prevailing market  convention for determining a  spread  adjustment, or method for calculating or  determining such  spread adjustment, for the  replacement of the  Relevant Rate with the  applicable  Unadjusted Benchmark  Replacement for  syndicated  credit  facilities  denominated in  Dollars at such time.         “Benchmark  Replacement Conforming  Changes” means, with  respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the  definition of  “Alternate Base Rate,” the  definition of  “Interest  Period,” timing and  frequency of  determining rates and making  payments of  interest and other                                       3





 






administrative matters) that the Global Administrative Agent, in consultation with Harley, decides in its reasonable good faith discretion may be appropriate to reflect the adoption and  implementation of such  Benchmark  Replacement and to  permit the  administration thereof by the Global  Administrative Agent in a  manner  substantially  consistent with market practice (or, if the Global Administrative Agent decides in its reasonable good faith discretion that  adoption of any  portion of such market  practice is not  administratively feasible or if the Global  Administrative Agent  determines in its  reasonable  good faith discretion that no market practice for the administration of the Benchmark Replacement exists, in such other  manner of  administration as the Global  Administrative Agent, in consultation with  Harley,  decides is  reasonably  necessary in  connection with the administration of this Agreement).         “Benchmark Replacement Date” means the earlier to occur of the following events with respect to the Relevant Rate:         (1) in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the Relevant Screen Rate in respect of such Relevant Rate permanently or indefinitely ceases to provide such Relevant Screen Rate; or         (2) in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein.         “Benchmark  Transition Event” means the  occurrence of one or more of the following events with respect to the Relevant Rate:         (1) a  public  statement or  publication of  information by or on behalf of the administrator of the Relevant Screen Rate in respect of such Relevant Rate announcing that such  administrator has  ceased or  will  cease to  provide such  Relevant  Screen Rate, permanently or  indefinitely;  provided that, at the time of such  statement or  publication, there is no successor administrator that will continue to provide such Relevant Screen Rate;         (2) a public statement or publication of information by the regulatory supervisor for the administrator of the Relevant Screen Rate in respect of such Relevant Rate, the U.S. Federal Reserve System, an insolvency official with jurisdiction over the administrator for such Relevant Screen Rate, a resolution authority with jurisdiction over the administrator for such Relevant Screen Rate or a court or an entity with similar insolvency or resolution authority over the administrator for such Relevant Screen Rate, in each case which states that the administrator of such Relevant Screen Rate has ceased or will cease to provide such Relevant  Screen Rate  permanently or  indefinitely;  provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide such Relevant Screen Rate; and/or         (3) a public statement or publication of information by the regulatory supervisor for the administrator of the Relevant Screen Rate in respect of such Relevant Rate announcing that such Relevant Screen Rate is no longer representative.         “Benchmark  Transition Start Date” means (a) in the case of a  Benchmark Transition Event, the earlier of (i) the applicable Benchmark Replacement Date and (ii) if                                       4





 






such Benchmark Transition Event is a public statement or publication of information of a prospective event, the 90th day prior to the expected date of such event as of such public statement or publication of information (or if the expected date of such prospective event is fewer than 90  days  after such  statement or  publication, the date of such  statement or publication) and (b) in the case of an Early Opt-in Election, the date specified by the Global Administrative Agent and/or Harley or the Required Lenders, as applicable, by notice to Harley (in the case of notice by the Required Lenders), the Global Administrative Agent (in the case of such notice by the Required Lenders) and the Lenders.         “Benchmark Unavailability Period” means, if a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to the Relevant Rate and solely to the extent that such Relevant Rate has not been replaced with a Benchmark Replacement, the period (x) beginning at the time that such Benchmark Replacement Date has occurred if, at such time, no Benchmark Replacement has replaced such Relevant Rate for all purposes hereunder in accordance with Section 3.3 and (y) ending at the time that a Benchmark  Replacement has  replaced such  Relevant Rate for all  purposes  hereunder pursuant to Section 3.3.         “Beneficial Ownership Regulation” means 31 C.F.R. § 1010.230.         “Benefit Plan” means any of (a) an “employee benefit plan” (as defined in Section 3(3) of ERISA) that is subject to Title I of ERISA, (b) a “plan” as defined in Section 4975 of the Code to which Section 4975 of the Code applies, and (c) any Person whose assets include (for purposes of the Plan Asset Regulations or otherwise for purposes of Title I of ERISA or Section 4975 of the Code) the assets of any such “employee benefit plan” or “plan”.         “BHC Act Affiliate” of a party means an “affiliate” (as such term is defined under, and interpreted in accordance with, 12 U.S.C. 1841(k)) of such party.         “Bid Rate Advance” means a borrowing consisting of simultaneous Bid Rate Loans to a  Global Borrower 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  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.         “Board”  means  the  Board  of  Governors  of  the  Federal  Reserve  System  of the United States of America.                                        5





 






       “Borrower” means any of the U.S. Borrowers, and “Borrowers” means, collectively, the U.S. Borrowers.         “Borrowing Date” means a date on which an Advance or a Loan is made hereunder.         “Borrowing Notice” means a Syndicated Global Advance Borrowing Notice or a Bid Rate Advance Borrowing Notice.         “Business Day” means (i) with respect to any borrowing, payment or rate selection of  Loans bearing interest at the Eurodollar 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 are carried on in the London interbank market; and (ii) 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.         “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, subject to Section 9.8, 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 in effect as of December 1, 2018.         “Change” is defined in Section 3.2 hereof.         “Change of Control” means any transaction or event as a result of which:  (a)  (i) any  Person  or  two  or  more  Persons  acting  in  concert  (other  than  any  Related  Person)  shall  have  acquired beneficial ownership (within the meaning of Rule 13d-3 of the Commission under the  Securities  Exchange  Act  of  1934),  directly  or  indirectly,  of  Voting  Stock  of  Harley  (or  other  securities convertible into such Voting Stock) representing 30% or more of the combined voting  power of all Voting Stock of Harley; or (ii) during any period of up to 12 consecutive calendar  months, commencing after the ClosingAmendment No. 1 Effective Date, individuals who at the beginning  of  such  12-month  period  were  directors  of  Harley  shall  cease  for  any  reason  to constitute a majority of the board of directors of Harley (except to the extent that individuals who, at the beginning of such 12-month period, were directors of Harley were replaced by individuals (x) elected by a majority of the remaining members of the board of directors of Harley or (y) nominated  for  election  by  a  majority  of  the  remaining  members  of  the  board  of  directors  of Harley  and  thereafter  elected  as  directors  by  the  shareholders of  Harley  or  (z)  approved  or appointed by a majority of the remaining members of the board of directors of Harley) or (b) in each case other than as a result of a transaction permitted under Section 6.2.3, (i) Harley, directly  or  through  one  or  more  Subsidiaries,  shall  cease  to  own  of  record  and  beneficially,  with  sole  voting  power,  in  the  aggregate,  at  least  fifty-one  percent  (51%)  of  the  issued  and  outstanding  class or classes of Voting Stock of HDFS (such percentage measured by voting power rather than  number of shares) or (ii) HDFS, directly or through one or more Subsidiaries, shall cease to own  of record and beneficially, with sole voting power, all of the issued and outstanding Voting Stock  of HDCC.         “Closing Date” means May 13, 2019.                                        6





 






       “Code” means the Internal Revenue Code of 1986, as amended from time to time, and  the regulations promulgated and rulings issued thereunder.         “Combination” has the  meaning  assigned to such  termis  defined  in  Section 2.4(b) hereof.         “Combined  Lender” has the  meaning  assigned to such  termis  defined  in  Section 2.4(b) hereof.         “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  in  an amount  not  exceeding  the  amount set forth on Exhibit A to this Agreement opposite its name thereon under the heading “Commitment” or contained in the assignment and assumption by which it became a Lender, as such amount may be modified from time to time pursuant to the terms of this Agreement or to give effect to any applicable assignment and assumption.         “Communications” has the meaning assigned to such term inmeans, collectively, any notice, demand, communication, information, document or other material provided by or on behalf of any  Company  pursuant to any  Loan Document or the  transactions contemplated  therein which is  distributed by the Global  Administrative Agent or any Lender by means of  electronic  communications  pursuant to  Section  14.1(c),  including through an Approved Electronic Platform.         “Company”  means  any  Borrower  or  the  Guarantor,  individually,  and  “Companies” means each of the Borrowers and the Guarantor, collectively.         “Compounded SOFR” means the compounded average of SOFRs for the applicable Corresponding Tenor, with the rate, or methodology for this rate, and conventions for this rate (which may include compounding in arrears with a lookback and/or suspension period as a mechanism to determine the interest amount payable prior to the end of each Interest Period) being established by the Global Administrative Agent in accordance with:         (1) the rate, or methodology for this rate, and conventions for this rate selected or recommended by the  Relevant  Governmental Body for  determining  compounded SOFR; provided that:         (2) if, and to the extent that, the Global  Administrative Agent  determines that Compounded SOFR cannot be determined in accordance with clause (1) above, then the rate, or  methodology for this rate, and  conventions for this rate that the Global Administrative Agent and Harley determine in their reasonable good faith discretion are substantially  consistent with any  evolving or  then-prevailing market  convention for determining compounded SOFR for Dollar-denominated syndicated credit facilities at such time;         provided, further, that if the Global Administrative Agent decides reasonably and in good faith that any such rate, methodology or convention determined in accordance with clause (1) or clause (2) is not administratively feasible for the Global Administrative Agent,                                        7





 






then  Compounded SOFR  will be  deemed  unable to be  determined for  purposes of the definition of “Benchmark Replacement.”         “Consolidated” refers to the consolidation of accounts (or Subsidiaries, as applicable) in accordance with Agreement Accounting Principles.         “Consolidated Equity” is defined in Section 6.3(A) hereof.         “Consolidated Finco Debt” is defined in Section 6.3(A) hereof.         “Consolidated Net Income” of any Person for any period means the Consolidated 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  shareholders’  equity,  as  shall  be  determined  in  accordance  with  Agreement  Accounting  Principles.         “Consolidated Opco Debt” is defined in Section 6.3(A) hereof.         “Consolidated Shareholders’ Equity” is defined in Section 6.3(A) hereof.         “Consolidated  Total  Assets”  means,  as  of  the  date  of  any  determination  thereof,  the Consolidated total assets of Harley and its Subsidiaries as of such date, as shall be determined in accordance with Agreement Accounting Principles.         “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.  It is understood and agreed that the amount of liability in respect of any Contingent Obligation of any Person shall be deemed to be the lower of (a) an amount equal to the stated or determinable amount of the primary obligation in respect of which such Contingent Obligation exists and (b) the  maximum  amount  for  which  such  Person  may  be  liable  pursuant  to  the  terms  of  the instrument  embodying  such  Contingent  Obligation,  unless  such  primary  obligation  and  the maximum amount for which such Person may be liable are not stated or determinable, in which case  the  amount  of  such  Contingent  Obligation  shall  be  such  Person’s  maximum  reasonably anticipated liability in respect thereof as reasonably determined by Harley in good faith.         “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                                        8





 






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.         “Conversion/Continuation Notice” is defined in Section 2.8(D) hereof.         “Corresponding Tenor” with respect to a Benchmark Replacement means a tenor (including  overnight)  having  approximately the same length  (disregarding  business day adjustment) as the  applicable tenor for the  applicable  Interest  Period with  respect to LIBOR.         “Covered Entity” means any of the following:         (i)    a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);         (ii)   a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or         (iii)  a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).         “Covered Party” has the meaning set forth in Section 9.21.         “Credit Party” means any Lender or the Global Administrative Agent, individually, and  “Credit Parties” means each of the Lenders and the Global Administrative Agent, collectively.         “Cure Loan” is defined in Section 8.2 hereof.         “Default” means an event described in Article VII hereof.         “Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.         “Defaulting  Lender”  means  any  Lender,  as  determined  by  the  Global  Administrative  Agent, that has (a) within three (3) Business Days of the date required to be funded or paid failed to  (i)  fund  its  Pro  Rata  Share  of  any  Advance  or  Loan  or  (ii)  pay  over  to  the  Global Administrative Agent or any Lender any other amount required to be paid by it hereunder, unless, in the case of clause (i) above, such Lender notifies the Global Administrative Agent in writing that such failure is the result of such Lender’s good faith determination that a condition precedent to  funding  (specifically  identified  and  including  the  particular  default,  if  any)  has  not  been satisfied, (b) notified any Company, the Global Administrative Agent or any Lender in writing that it does not intend to comply with any of its funding obligations under this Agreement or has made a public statement to the effect that it does not intend to comply with its funding obligations under this Agreement (unless such writing or public statement states that such position is based on  such  Lender’s  good  faith  determination  that  a  condition  precedent  to  funding  (specifically identified and including the particular default, if any) cannot be satisfied) or generally under other agreements in which it commits to extend credit, (c) failed, within three (3) Business Days after written request by the Global Administrative Agent, to provide a certification in writing from an authorized officer of such Lender that it will comply with the terms of this Agreement relating to its  obligations  to  fund  prospective  Loans  (provided  that  such  Lender  shall  cease  to  be  a Defaulting Lender pursuant to this clause (c) upon the Global Administrative Agent’s receipt of                                       9





 






such certification in form and substance reasonably satisfactory to it), (d) otherwise failed to pay over to the Global Administrative Agent or any other Lender any other amount required to be paid by it hereunder within three (3) Business Days of the date when due, unless the subject of a good faith dispute, (e) become the subject of a bankruptcy or insolvency proceeding, or has had a receiver, conservator, trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian, appointed for it, or has taken any action in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding or appointment or has a direct or indirect parent company that has become the subject  of  a  bankruptcy  or  insolvency  proceeding,  or  has  had  a receiver,  conservator,  trustee, administrator, assignee for the benefit of creditors or similar Person charged with reorganization or liquidation of its business or custodian appointed for it, or has taken any action in furtherance of,  or  indicating  its  consent  to,  approval  of  or  acquiescence  in  any  such  proceeding  or appointment and/or (f) become the subject of a Bail-In Action; provided, that a Lender shall not become  a  Defaulting  Lender  solely  as  the  result  of  (x)  the  acquisition  or  maintenance  of  an ownership  interest  in  such  Lender  or  a  Person  controlling  such Lender  or  (y)  the  exercise  of control  over  a  Lender  or  a  Person  controlling  such  Lender,  in  each  case,  by  a  Governmental Authority or an instrumentality thereof.         “Disqualified Institutions” means (a)(i) those Persons that are reasonably determined by  Harley  to  be  (A) a  competitor  of  any  of  the  Companies  or  any  of  their  Subsidiaries  or  (B) a  Person that is, or is owned or controlled by, a participant in the transportation industry and/or a  credit union in the business of providing commercial and/or consumer financing for the purchase  of products of a type sold by one or more of the Companies and/or their Affiliates (the entities in  this  clause  (B)  being  referred  to  as  “transportation  industry  entities”),  and  (ii) those  banks, financial  institutions  and  other institutional  lenders  that,  in  the  case  of  each  of  the  foregoing clauses (a)(i) and (a)(ii), have been specifically identified by Harley to the Global Administrative Agent  and  the  Lenders  in  writing  prior  to  the ClosingAmendment No. 1  Effective  Date; provided that, Harley, by notice to the Global Administrative Agent and the Lenders after the  ClosingAmendment No. 1 Effective Date, shall be permitted to supplement from time to time in writing by name the list of Persons that are Disqualified Institutions to the extent that the Persons added  by  such  supplements  are  competitors  of  the  Companies  or  are  transportation  industry entities, and each such supplement shall become effective three (3) Business Days after delivery thereof  to  the  Global  Administrative  Agent  and  the  Lenders  (including  through  an Approved Electronic SystemPlatform), but which shall not apply retroactively to disqualify any Persons that have previously acquired an assignment or participation interest in the Loans (but solely with respect  to  such  Loans)  in  accordance  with  this  Agreement  and  (b) any  Affiliate  of  a  Person  described  in  the  immediately  preceding  clause (a),  to  the  extent  such  Affiliate  (i)  is  clearly identifiable  as  an  affiliate  of  the  applicable  competitor,  transportation  industry  entity,  bank, financial institution or institutional lender solely by similarity of such Affiliate’s name and (ii) is not  a  bona  fide  debt  investment  fund  that  is  an  Affiliate  of  the  applicable  competitor, transportation industry entity, bank, financial institution or institutional lender.  It is understood and agreed that (i) the Global Administrative Agent shall have no responsibility or liability to determine or monitor whether any Lender or potential Lender is a Disqualified Institution and (ii)  Harley’s failure to deliver such list (or supplement thereto) in accordance with Section 14.1 shall  render such list (or supplement thereto) not received and not effective.         “Dollar” and “$” means dollars in the lawful currency of the United States of America.         “DQ List” has the meaning specifiedis defined in Section 13.3(D)(iv) hereof.                                        10





 






       “Early Opt-in Election” means the occurrence of:         (1) (i) a determination by the Global Administrative Agent and/or Harley or (ii) a notification by the Required Lenders to the Global Administrative Agent (with a copy to Harley) that the  Required  Lenders  have  determined that  syndicated  credit  facilities denominated in Dollars being executed at such time, or that include language similar to that contained in Section 3.3 are being executed or amended, as applicable, to incorporate or adopt a new benchmark interest rate to replace the Relevant Rate, and         (2) (i) the  election by the Global  Administrative Agent  and/or Harley or  (ii) the election by the Required Lenders to declare that an Early Opt-in Election has occurred and the provision, as applicable, by the Global Administrative Agent of written notice of such election to Harley and the  Lenders, by Harley of  written notice of such  election to the Global Administrative Agent and the Lenders or by the Required Lenders of written notice of such election to the Global Administrative Agent (with a copy to Harley).         “Earnouts” means any “earnouts” or similar obligations accrued in connection with any  acquisition determined in accordance with generally accepted accounting principles.         “EEA Financial Institution” means (a) any institution established in any EEA Member  Country  which  is  subject  to  the  supervision  of  an  EEA  Resolution  Authority,  (b)  any  entity  established in an EEA Member Country which is a parent of an institution described in clause (a)  of  this  definition,  or  (c)  any  institution  established  in  an  EEA  Member  Country  which  is  a  subsidiary  of  an  institution  described  in  clauses  (a)  or  (b)  of  this  definition  and  is  subject  to  consolidated supervision with its parent.         “EEA Member  Country”  means  any  of  the  member  states  of  the  European  Union,  Iceland, Liechtenstein, and Norway.         “EEA Resolution Authority” means any public administrative authority or any Person  entrusted  with  public  administrative  authority  of  any  EEA  Member  Country  (including  any  delegee) having responsibility for the resolution of any EEA Financial Institution.         “Electronic Signature” means an electronic sound, symbol, or process attached to, or  associated  with,  a  contract  or  other  record  and  adopted  by  a  Person  with  the  intent  to  sign,  authenticate or accept such contract or record.         “Electronic System” means any  electronic system,  including  e-mail,  e-fax, Intralinks®, ClearPar®, Syndtrak, Debt Domain and any other Internet or extranet-based site, whether such  electronic system is owned,  operated or hosted by the Global Administrative Agent and any of its Affiliates, and each of such Person’s respective officers, directors,  employees,  attorneys and  agents,  providing for  access to data  protected by passcodes or other security system.         “Environmental Action” means any action, suit, demand, demand letter, claim, notice of non-compliance or violation, notice of liability or potential liability, investigation, proceeding, consent  order  or  consent  agreement  relating  in  any  way  to  any  Environmental  Law, Environmental Permit or Hazardous Materials or arising from alleged injury or threat of injury to the environment, including, without limitation, (a) by any governmental or regulatory authority for enforcement, cleanup, removal, response, remedial or other actions or damages and (b) by any                                        11





 






governmental  or  regulatory  authority  or  any  third  party  for  damages,  contribution, indemnification, cost recovery, compensation or injunctive relief.         “Environmental Law” means any federal, state, local or foreign statute, law, ordinance, rule,  regulation,  code,  order,  judgment,  decree  or  judicial  or agency  interpretation,  policy  or guidance relating to pollution or protection of the environment or natural resources, including, without limitation, those relating to the use, handling, transportation, treatment, storage, disposal, release or discharge of Hazardous Materials.         “Environmental Permit” means any permit, approval, identification number, license or  other authorization required under any Environmental Law.         “ERISA”  means  the  Employee  Retirement  Income  Security  Act  of  1974,  as  amended from time to time, and the regulations promulgated and rulings issued thereunder.         “ERISA Affiliate” means any Person that for purposes of Title IV of ERISA is a member  of  Harley’s  controlled  group,  or  under  common  control  with  Harley,  within  the  meaning  of  Section 414 of the Code.         “ERISA Event” means (a) (i) the occurrence of a reportable event, within the meaning of  Section  4043  of  ERISA,  with  respect  to  any  Plan  unless  the  30-day  notice  requirement  with  respect to such event has been waived by the PBGC, or (ii) the requirements of subsection (1) of  Section  4043(b)  of  ERISA  (without  regard  to  subsection  (2)  of  such Section) are met with a  contributing  sponsor,  as  defined  in  Section  4001(a)(13)  of  ERISA,  of  a  Plan,  and  an  event  described in paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably  expected to occur with respect to such Plan within the following 30 days; (b) the application for a  minimum funding waiver with respect to a Plan; (c) the provision by the administrator of any  Plan  of  a  notice  of  intent  to  terminate  such  Plan  pursuant  to  Section  4041(a)(2)  of  ERISA  (including any such notice with respect to a plan amendment referred to in Section 4041(e) of  ERISA);  (d)  the  cessation  of  operations  at  a  facility  of  Harley  or  any  ERISA  Affiliate  in  the  circumstances  described  in  Section  4062(e)  of  ERISA;  (e)  the  withdrawal  by  Harley  or  any  ERISA Affiliate from a Multiple Employer Plan during a plan year for which it was a substantial  employer, as defined in Section 4001(a)(2) of ERISA; (f)  the conditions for the imposition of a  lien under Section 302(f) of ERISA shall have been met with respect to any Plan; (g) the adoption  of an amendment to a Plan requiring the provision of security to such Plan pursuant to Section  307 of ERISA; or (h) the institution by the PBGC of proceedings to terminate a Plan pursuant to  Section 4042 of ERISA, or the occurrence of any event or condition described in Section 4042 of  ERISA  that  constitutes  grounds  for  the  termination  of,  or  the  appointment  of  a  trustee  to  administer, a Plan.         “EU  Bail-In  Legislation  Schedule”  means  the  EU  Bail-In  Legislation  Schedule published by the Loan Market Association (or any successor Person), as in effect from time to time.         “Eurodollar Base Rate” means, with respect to any Eurodollar Rate Advance 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, LIBOR.         “Eurodollar Rate” means, with respect to a Eurodollar Rate Loan and a Eurodollar Rate Advance for the relevant Interest Period, an interest rate per annum equal to the sum of (i) the quotient of (a) the Eurodollar Base Rate applicable to such Interest Period, divided by (b) one                                       12





 






minus the Reserve Requirement (expressed as a decimal) applicable to such Interest Period, plus (ii) the Applicable Margin.         “Eurodollar Rate Advance” means a Syndicated Global Advance which bears interest at the Eurodollar Rate.         “Eurodollar Rate Loan”  means  a  Syndicated  Global  Loan,  or  portion  thereof,  which bears interest at the Eurodollar Rate.         “Excluded Conduit Facility Indebtedness” means the first $350,000,000 in principal amount of  indebtedness  (and/or,  without  duplication,  aggregate  commitment  amounts) under Specified Conduit Facilities entered into after the Amendment No. 1 Effective Date.         “Excluded Taxes” means, in the case of each Lender or applicable Lending Installation and  the  Global  Administrative  Agent,  (a)  taxes  imposed  on  (or  measured  by)  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  and  (b)  withholding  taxes  imposed  under FATCA.         “Exemption Certificate” is defined in Section 3.5(iv) hereof.          “FATCA” means Sections 1471 through 1474 of the Code, as of the Closing Date (or  any  amended  or  successor  version  that  is  substantively  comparable  and  not  materially  more  onerous to comply with), any current or future regulations or official interpretations thereof, any  agreements entered into pursuant to Section 1471(b)(1) of the Code, and any fiscal or regulatory  legislation,  rules  or  practices  adopted  pursuant  to  any  intergovernmental  agreement,  treaty  or  convention among Governmental Authorities and implementing such Sections of the Code.         “Federal  Funds  Effective Rate”  shall  mean,  for  any  day,  the  rate  calculated  by  the NYFRB based on such day’s federal funds transactions by depositary institutions (as determined in such manner as the NYFRB shall be set forth on its public websitethe Federal Reserve Bank of New York’s Website from time to time) and published on the next succeeding Business Day by the NYFRB as the effective federal funds rate; provided that if the Federal Funds Effective  Rate  as  so  determined  would  be  less  than  zero,  such  rate  shall be  deemed  to  be  zero  for  the  purposes of this Agreement.         “Federal Reserve Bank of New York’s Website” means the website of the NYFRB at http://www.newyorkfed.org, or any successor source.          “Finance Receivables” means dealer wholesale receivables, retail installment contracts,  promissory notes, retail leases, charge accounts or other receivables, chattel paper or other similar  financial assets 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, limited liability company or trust which is wholly-owned, directly or  indirectly, by any one or more of 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                                       13





 






(provided  that  if  such  Person  has  not  assumed  or  become  liable for  the  payment  of  such Indebtedness, it shall be taken into account only to the extent of the book value or fair market value, whichever is greater, of the Property subject to such Indebtedness).  Notwithstanding the foregoing, Indebtedness shall exclude (i) obligations in respect of Permitted Finance Receivables Securitizations to the extent such obligations would not appear as a liability upon a balance sheet of  such  Person  prepared  in  accordance  with  Agreement  Accounting  Principles,  (ii) all intercompany indebtedness, obligations and Contingent Obligations, all to the extent owing by  and among one or more of the Companies and their Subsidiaries, (iii) all obligations under the  Support  Agreement  or  other  support  agreements  among  one  or  more  of  the  Companies,  (iv)  Earnouts andpurchase price adjustments, Earnouts, holdbacks and deferred payments of a similar nature in  connection with an  acquisition  (including  deferred  compensation representing consideration or other contingent obligations incurred in connection with an acquisition),  (v) any  Indebtedness  that  has  been  defeased,  discharged  and/or dischargedredeemed, provided that funds in an amount equal to all such Indebtedness (including interest and any other amounts required to be paid to the holders thereof in order to give effect to such defeasance, discharge and/or dischargeredemption) have been irrevocably deposited with a  trustee  for  the  benefit  of  the  relevant  holders  of  such  Indebtedness and (vi)  interest,  fees, make-whole  amounts,  premiums,  charges or  expenses, if any,  relating to the principal amount of Indebtedness.  The amount of Indebtedness of Harley and any Subsidiary hereunder shall be calculated without duplication of guaranty obligations of Harley or any Subsidiary in  respect thereof.         “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.         “Ineligible Institution” means (a) a natural person, (b) a Defaulting Lender or its Lender  Parent,  (c)  Harley,  any  of  its  Subsidiaries  or  any  of  its  Affiliates,  (d)  a  company,  investment  vehicle  or  trust  for,  or  owned  and  operated  for  the  primary  benefit  of,  a  natural  person  or  relative(s) thereof or (e) a Disqualified Institution.         “Interest Period” means, with respect to a Eurodollar Rate Loan, a period of one (1) week or one (1), two (2), three (3) or six (6) months  (or such other period of time as is consented to by each of the Lenders) commencing on a Business Day selected by the applicable Borrower pursuant to this Agreement.  For Eurodollar Rate Loans, such Interest Period shall end on (but exclude) the day which corresponds numerically to such date one (1) week or one (1), two (2), three (3) or six (6) months thereafter (or such other period of time as is consented to by each of the Lenders); provided, however, that if there is no such numerically corresponding day in such  next, second, third or sixth (or other applicable) succeeding month, such Interest Period shall end  on  the  last  Business  Day  of  such  next,  second,  third  or  sixth  (or  other  applicable)  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, except in the case of a one (1) week Interest Period, for Eurodollar 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.         “Interpolated Rate”  means,  at  any  time,  for  any  Interest  Period,  the  rate  per  annum  determined  by  the  Global  Administrative  Agent  (which  determination  shall  be  conclusive  and  binding absent manifest error) to be equal to the rate that results from interpolating on a linear                                       16





 






basis between: (a) the LIBOR Screen Rate for the longest period (for which the LIBOR Screen Rate is available) that is shorter than the Impacted Interest Period and (b) the LIBOR Screen Rate for the shortest period (for which the LIBOR Screen Rate is available) that exceeds the Impacted Interest Period, in each case, at such time; provided that, if any Interpolated Rate shall be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.         “IRS” means the Internal Revenue Service and any Person succeeding to the functions thereof.         “Lender Parent” means, with respect to any Lender, any Person as to which such Lender is, directly or indirectly, a subsidiary.         “Lenders” means the lending institutions listed on the signature pages of this Agreement, including each Syndicated Global Lender and their respective successors and assigns.         “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.         “LIBOR”  means,  forwith  respect to  any  Eurodollar  Rate  Loan  for  any applicable Interest  Period,  the  London  interbank  offered  rate  administered  by  ICE  Benchmark Administration (or any other Person that takes over the administration of such rate) for Dollars appearing  on  the  applicable  LIBOR  Reference  Page for  Dollars as  of  the  applicable  LIBOR Fixing Time and, in each case, having a maturity approximately equal to the requested Interest Period  (in  each  case  the  “LIBOR  Screen Rate”);  provided  that,  if  the  LIBOR  Screen  Rate shallas so determined would be less than zero, such rate shall be deemed to be zero for purposes of  this  Agreement.   Notwithstanding  the  foregoing,  (A)  if  a  LIBOR  Screen  Rate  shall  not  be available at such time for such Interest Period (the “Impacted Interest Period”), then LIBOR for  such Interest Period shall be the Interpolated Rate and (B) if any Interpolated Rate shall be less  than zero, such rate shall be deemed to be zero for purposes of this Agreement.  It is understood  and agreed that all of the terms and conditions of this definition of “LIBOR” shall be subject to  Section 3.3.         “LIBOR Fixing Time” means the relevant fixing date and/or time described in Schedule I.         “LIBOR Reference Page” means, with respect to any London interbank offered rate as administered  by  ICE  Benchmark  Administration  (or  any  other  Person  that  takes  over  the administration of such rate) for Dollars, page LIBOR01 of the Reuters screen that displays such rate or, in the event such rate does not appear on such Reuters page or screen, any successor or substitute page on such screen that displays such rate, or on the appropriate page of such other information  service  that  publishes  such  rate  as  shall  be  selected  by  the  Global  Administrative Agent from time to time in its reasonable discretion (and consistent with any such selection by the Global  Administrative  Agent generally under substantially similar credit facilities for which it acts  as  administrative  agent)  at  approximately  11:00  a.m.,  London  time,  at  the  LIBOR  Fixing Time for such Interest Period.         “LIBOR  Screen Rate”  has  the  meaning  assigned  to  such  term  in  the  definition  of “LIBOR”.                                        17





 






       “Lien” means any security interest, lien (statutory or other) or other similar charge or encumbrance 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 (excluding operating leases)).         “Loan” means a Syndicated Global Loan or a Bid Rate Loan.         “Loan Account” is defined in Section 2.14(E) hereof.         “Loan Documents” means this Agreement, the Notes, the Support Agreement and all  other documents, instruments and agreements executed pursuant thereto or contemplated thereby,  in each case as the same may be amended, restated or otherwise modified and in effect from time  to time.         “Material Adverse Change” means any material adverse change in the business, assets, operations  or  financial  condition of  Harley  and  its  Subsidiaries  taken  as  a  whole  (excluding changes  or  effects  in  connection  with  specific  events  (and  not general  economic  or  industry conditions) applicable specifically to Harley and/or its Subsidiaries as disclosed in any Annual Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K filed with or furnished to the Commission prior to the ClosingAmendment No. 1 Effective Date).         “Material Adverse Effect” means any event, development or circumstance that has had  a material adverse effect on (a) the business, assets, operations or financial condition of Harley  and its Subsidiaries taken as a whole (excluding changes or effects in connection with specific  events (and not general economic or industry conditions) applicable specifically to Harley and/or  its Subsidiaries as disclosed in any Annual Report on Form 10-K, Quarterly Report on Form 10-  Q  or  Current  Report  on  Form  8-K  filed  with  or  furnished  to  the Commission  prior  to  the  ClosingAmendment No. 1  Effective  Date)  or  (b)  the  validity  or  enforceability  against  the Companies of any of the Loan Documents or the rights or remedies of the Global Administrative Agent and the Lenders against the Companies thereunder.         “Material Subsidiary” means, at any time, any Subsidiary of Harley with a Net Worth  (after  elimination  of  intercompany  assets)  equal  to  or  greater than  10%  of  Consolidated  Net  Worth of Harley (as of the end of the most recent fiscal quarter), or Net Income (after elimination  of intercompany revenues) for the period of four consecutive fiscal quarters then most recently  ended during which the Consolidated Net Income of Harley was not a loss equal to or greater  than 10% of Consolidated Net Income (for such period) of Harley; provided that, if at any time  the  aggregate  amount  of  Harley’s  Consolidated  Net  Income  for  such  period  attributable  to  Subsidiaries  that  are  not  Material  Subsidiaries  exceeds  thirty percent  (30%)  of  Harley’s  Consolidated  Net  Income  for  such  period,  Harley  shall  designate  sufficient  Subsidiaries  as  “Material Subsidiaries” to eliminate such excess, and such designated Subsidiaries shall for all  purposes of this Agreement constitute Material Subsidiaries until such designation is no longer  necessary to comply with this proviso; provided further, that no Subsidiary of Harley that is not a  Consolidated Subsidiary of Harley shall be deemed to be a “Material Subsidiary”.         “Maturity Date” means the Termination Date or, if applicable, the date to which the Maturity Date shall have been extended in accordance with Section 2.19.         “Moody’s” means Moody’s Investors Service, Inc.                                        18





 






       “Multiemployer Plan” means a multiemployer plan, as defined in Section 4001(a)(3) of ERISA, to which Harley or any ERISA Affiliate is making or accruing an obligation to make contributions, or has within any of the preceding five plan years made or accrued an obligation to make contributions.         “Multiple  Employer Plan”  means  a  single  employer  plan,  as  defined  in  Section  4001(a)(15) of ERISA, that (a) is maintained for employees of Harley or any ERISA Affiliate and  at least one Person other than Harley and the ERISA Affiliates or (b) was so maintained and in  respect of which Harley or any ERISA Affiliate could have liability under Section 4064 or 4069  of ERISA in the event such plan has been or were to be terminated.         “Net Cash Proceeds” means, with respect to any Specified Indebtedness, (a) the cash proceeds received in respect of such Specified Indebtedness (other than from Harley or any of its  Subsidiaries)  including any cash  received in  respect of any  non-cash  proceeds,  but only as and when  received, net of (b) the sum of all  fees,  commissions, costs and other expenses incurred in connection with such Specified Indebtedness (excluding amounts paid to  Affiliates),  including any  legal,  accounting and  investment  banking  fees,  underwriting discounts and  fees,  commissions, costs and other  expenses  incurred by Harley  and/or its Subsidiaries in  connection with the  incurrence,  issuance,  offering or  placement of such Specified Indebtedness.         “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 shareholders’ equity, as shall be determined in accordance with Agreement Accounting Principles.         “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 and the Bid Rate Notes.         “Notice of Assignment” is defined in Section 13.3(B) hereof.         “NYFRB” means the Federal Reserve Bank of New York.         “NYFRB Rate” means, for any day, the greater of (a) the Federal Funds Effective Rate in effect on such day and (b) the Overnight Bank Funding Rate in effect on such day (or for any day that is not a Business Day, for the immediately preceding Business Day); provided that if both such rates are not so published for any day that is a Business Day, the term “NYFRB Rate” means the rate quoted for such day for a federal funds transaction at 11:00 a.m., New York City time,  on  such  day  received  by  the  Global  Administrative  Agent  from  a  Federal  funds  broker unaffiliated with the Global Administrative Agent of recognized standing selected by it; provided, further, that if any of the aforesaid rates as so determined would be less than zero, such rate shall be deemed to be zero for purposes of this Agreement.         “Obligations” means all Loans, advances, debts, liabilities, obligations, covenants and duties owing by any Borrower to the Global Administrative Agent, the Arranger, any Lender, any Affiliate  of  any  of  the  foregoing  or  any  Indemnitee,  of  any  kind  or  nature,  present  or  future,                                       19





 






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.         “OFAC”  means  the  Office  of  Foreign  Assets  Control  of  the  U.S.  Department  of Treasury.         “Other Taxes” is defined in Section 3.5 hereof.         “Overnight Bank  Funding Rate”  means,  for  any  day,  the  rate  comprised  of  both overnight federal funds and overnight eurodollar borrowings by U.S.-managed banking offices of  depository institutions (as such composite rate shall be determined by the NYFRB as set forth on  its public websitethe Federal Reserve Bank of New York’s Website from time to time) and published on the next succeeding Business Day by the NYFRB as an overnight bank funding rate.         “Participant Register” is defined in Section 13.2(D) hereof.         “Participants” is defined in Section 13.2(A) hereof.         “Payment Date”  means  the  last  Business  Day  of  each  calendar  quarter  and  the  MaturityTermination Date.         “PBGC” means the Pension Benefit Guaranty Corporation, or any successor thereto.         “Permitted Finance  Receivables  Securitization”  means  any  financial  asset  financing program  or  facility  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 or other third party investors or financiers, either directly or through one or more Subsidiaries.         “Permitted Liens” means such of the following as to which no enforcement, collection, execution,  levy  or  foreclosure  proceeding  shall  have  been  commenced:   (a)  Liens  for  taxes, assessments  and  governmental  charges  or  levies  to  the  extent  not  required  to  be  paid  under Section  6.1.2  hereof;  (b)  Liens  imposed  by  law,  such  as  materialmen’s,  mechanics’,  carriers’,  landlords’,  workmen’s  and  repairmen’s  Liens  and  other  similar  Liens  arising  in  the  ordinary  course of business securing obligations that are either (i) not overdue for a period of more than  forty-five (45) days or (ii) being contested in good faith and by proper actions and as to which  appropriate  reserves  are  being  maintained;  (c)  pledges  or  deposits  to  secure  obligations  under  workers’ compensation laws, unemployment insurance or similar legislation or to secure public  or statutory obligations and/or securing liability for reimbursement or indemnification obligations  to  insurance  carriers  providing  property,  casualty  or  liability  insurance  to  one  or  more  of  the  Companies  and/or  the  Material  Subsidiaries;  (d)(i) easements,  rights  of  way  and  other  encumbrances  on  title  to  real  Property,  (ii) zoning,  building, entitlement  and  other  land  use  regulations and (iii) any zoning or similar law, rule, regulation or requirement or right reserved  to, or vested in, any Governmental Authority to control or regulate the use of any real property, in  each  of  the  foregoing  cases  that  does  not  render  title  to  the  Property  encumbered  thereby                                       20





 






       “Plan Asset Regulations” means 29 CFR § 2510.3-101 et seq., as modified by Section  3(42) of ERISA, as amended from time to time.         “Prime Rate” means the rate of interest last quoted by The Wall Street Journal as the  “Prime Rate” in the U.S. or, if The Wall Street Journal ceases to quote such rate, the highest per  annum  interest  rate  published  by  the  Board  in  Federal  Reserve  Statistical  Release  H.15  (519) (Selected Interest Rates) as the “bank prime loan” rate or, if such rate is no longer quoted therein, any  similar  rate  quoted  therein  (as  determined  reasonably  and  in  good  faith  by  the Global Administrative Agent and consistent with any such determination by the Global Administrative  Agent  generally  under  substantially  similar  credit  facilities  for  which  it  acts  as  administrative  agent) or any similar release by the Board (as determined reasonably and in good faith by the  Global  Administrative  Agent  and  consistent  with  any  such  determination  by  the  Global Administrative Agent generally under substantially similar credit facilities for which it acts as administrative agent). Each change in the Prime Rate shall be effective from and including the date such change is publicly announced or quoted as being effective.         “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  aggregate  outstanding  principal  amount  of  such  Syndicated  Global  Lender’s  Syndicated Global  Loans  by  (B)  the  aggregate outstanding principal amount of all Syndicated Global 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.         “PTE” means a prohibited transaction class exemption issued by the U.S. Department of  Labor, as any such exemption may be amended from time to time.         “Purchasers” is defined in Section 13.3(A) hereof.         “QFC” has the meaning assigned to the term “qualified financial contract” in, and shall be interpreted in accordance with, 12 U.S.C. 5390(c)(8)(D).         “QFC Credit Support” is defined in Section 9.21 hereof.         “Register” is defined in Section 13.3(C) hereof.         “Regulation D” means Regulation D of the Board as from time to time in effect and any  successor  thereto  or  other  regulation  or  official  interpretation  of  the  Board  relating  to  reserve  requirements applicable to member banks of the Federal Reserve System.         “Related Person” means each of the following: (a) Harley, (b) any Subsidiary of Harley or  (c)  any  employee  benefit  plan  of  Harley  or  of  any  Subsidiary  of  Harley  or  any  Person organized, appointed or established by Harley for or pursuant to the terms of any such plan.                                        22





 






       “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.         “Relevant  Governmental  Body” means the  Board  and/or the  NYFRB, or a committee officially endorsed or convened by the Board and/or the NYFRB or, in each case, any successor thereto.         “Relevant Rate” means LIBOR.         “Relevant Screen Rate” means the LIBOR Screen Rate.         “Replacement Lender” has the meaning assigned to such termis defined in Section 2.4(b) hereof.         “Required Lenders” means, in all cases subject to Section 8.2(v) hereof, 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%).         “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.         “Resolution Authority” means an EEA Resolution Authority or, with respect to any U.K. Financial Institution, a U.K. Resolution Authority.         “Retired Commitments” has the meaning assigned to such termis defined in Section 2.4(b) hereof.         “Reuters” means Thomson Reuters Corp., Refinitiv or any successor thereto.         “S&P” means S&P Global Ratings, a division of S&P Global Inc.         “Sanctioned Country” means, at any time, a country or territory which is the subject of any Sanctions (at the time of this Agreementthe Amendment No. 1 Effective Date, Crimea, Cuba, Iran, North Korea, Sudan and Syria).         “Sanctioned Person” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by OFAC, the U.S. Department of State, the United Nations Security  Council,  the  European  Union,  any  EU  member  state,  Her Majesty’s  Treasury  of  the United Kingdom or other relevant sanctions authority, (b) any Person organized or resident in a                                        23





 






Sanctioned  Country  in  violation of  Sanctions  or  (c)  any  Person 50%  or  greater  owned  or  controlled by any such Person or Persons.         “Sanctions”  means  economic  or  financial  sanctions  or  trade  embargoes  imposed,  administered  or  enforced  from  time  to  time  by  (a)  the  U.S.  government,  including  those  administered  by  OFAC  or  the  U.S.  Department  of  State  or  (b)  the  United  Nations  Security  Council,  the  European  Union,  any  EU  member  state,  Her  Majesty’s  Treasury  of  the  United  Kingdom or other relevant sanctions authority.         “Single  Employer Plan”  means  a  single  employer  plan,  as  defined  in  Section  4001(a)(15) of ERISA, that (a) is maintained for employees of Harley or any  ERISA Affiliate  and no Person other than Harley and the ERISA Affiliates or (b) was so maintained and in respect  of which Harley or any ERISA Affiliate could have liability under Section 4069 of ERISA in the  event such plan has been or were to be terminated.         “SOFR” with  respect to any day means the  secured  overnight financing rate published for such day by the  NYFRB, as the  administrator of the  benchmark (or a successor administrator), on the Federal Reserve Bank of New York’s Website.         “SOFR-Based Rate” means SOFR, Compounded SOFR or Term SOFR.         “Specified  Conduit  Facility” means (i) any  committed  asset-backed  commercial paper  conduit facility entered into after the Amendment No. 1 Effective Date by and among Harley and/or any of its Subsidiaries and one or more commercial paper conduits and (ii) without  duplication, any  Permitted Finance  Receivables  Securitization  entered into  after the Amendment No. 1 Effective Date.         “Specified Indebtedness” means (i) any indebtedness in the form of publicly issued or  privately  placed  unsecured debt  securities  issued on or  after the  Amendment No. 1 Effective Date in the  capital markets  (including hybrid  securities and debt  securities convertible into equity securities) pursuant to a public registered offering or Rule 144A or other private placement, but excluding, for the avoidance of doubt, (a) syndicated credit or loan facilities, (b) bilateral credit or loan facilities, (c) commercial paper, (d) sale-leaseback transactions,  (e) purchase money  indebtedness,  capital  leases  and/or  inventory financing, (f) indebtedness  incurred to  refinance,  extend,  renew  and/or  refund any existing indebtedness (other than  under this  Agreement or in  respect of any  Permitted Finance Receivables  Securitization) to the extent that the  outstanding principal  amount of such existing indebtedness is not increased (except as grossed-up for customary fees and expenses incurred in  connection with such  refinancing,  extension,  renewal or  refunding), (g) any asset-backed commercial paper conduit facility entered into on or before the Amendment No. 1 Effective Date and (h) any borrowing subsequent to closing under any asset-backed commercial paper  conduit  facility or other  credit  facility  entered into on or prior to the Amendment No. 1 Effective Date, and (ii) without duplication, any indebtedness under any Specified Conduit Facility, other than any Excluded Conduit Facility Indebtedness;  other than, in addition to the foregoing exceptions, any event described in clause (i) the Net Cash Proceeds of which do not exceed an aggregate amount of $50,000,000.         “Subordinated Indebtedness” is defined in Section 6.3(A) hereof.                                        24





 






       “Subordinated  Intercompany  Indebtedness”  means  Indebtedness  arising  from  intercompany  loans;  provided  if  the  obligor  on  such  Indebtedness  is  one  or  more  of  the Companies  (whether  as  a  primary  obligor  or  a  secondary  obligor),  such Indebtedness shall be subordinated to the Obligations pursuant to the subordination terms attached as Schedule II.         “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, trust, 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 Harley.         “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 dated as of April 7,  2016, the letter agreement dated as of May 1, 2017, the letter agreement dated as of April 6, 2018 and, the letter agreement dated as of May 13, 2019 and the letter agreement dated as of April 1, 2020, in each case 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.         “Supported QFC” is defined in Section 9.21 hereof.         “Surviving Commitment” has the meaning assigned to such termis defined in Section 2.4(b) hereof.         “Surviving  Lender” has the  meaning  assigned to such  termis  defined  in  Section 2.4(b) hereof.         “Swap Agreement” means any agreement with respect to any swap, forward, future or derivative transaction or option or similar agreement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or securities, or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar transaction or any combination of these transactions; provided that no phantom stock or similar plan providing for payments only on account of services provided by  current or former  directors,  officers,  employees or  consultants of Harley or the Subsidiaries shall be a Swap Agreement.         “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 Eurodollar Rate Advances, for the same Interest Period.         “Syndicated Global Advance Borrowing Notice” is defined in Section 2.6 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.                                        25





 






       “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  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.         “Taxes” means any and all present or future taxes, duties, levies, imposts, deductions,  assessments,  fees,  charges  or  withholdings,  and  any  and  all  liabilities  with  respect  to  the  foregoing, in each case (i) imposed on or with respect to any payment made by or on account of  any obligation of the Borrowers under any Loan Document, but (ii) excluding Excluded Taxes.         “Tax Credit” means a credit against, relief or remission of, or repayment of any Taxes or Other Taxes.         “Term SOFR” means the forward-looking term rate based on SOFR that has been selected or recommended by the Relevant Governmental Body.         “Termination Date” means the earlier of (a) May 11August 10, 2020 and (b) the date of termination of the Commitments pursuant to Section 2.4 or Section 8.1.         “Term-Out Date” has the meaning specified in Section 2.19 hereof.         “Term-Out Option” has the meaning specified in Section 2.19 hereof.         “Trade Date” has the meaning specifiedis defined in Section 13.3(D)(i) hereof.         “Transactions” means the execution, delivery and performance by the Companies of this Agreement and the other Loan Documents, the borrowing of Loans and the use of the proceeds thereof.         “Transferee” is defined in Section 13.5 hereof.         “Type” means, (a) with respect to any Syndicated Global Loan, its nature as a Base Rate  Loan or Eurodollar Rate Loan, and (b) with respect to any Syndicated Global Advance, its nature  as a Base Rate Advance or Eurodollar Rate Advance.         “U.K. Financial Institution” means any BRRD Undertaking (as such term is defined under the PRA  Rulebook (as  amended from time to time)  promulgated by the United Kingdom Prudential Regulation Authority) or any person falling within IFPRU 11.6 of the FCA  Handbook (as  amended from time to time)  promulgated by the United  Kingdom Financial  Conduct  Authority, which  includes  certain  credit  institutions and  investment firms and certain affiliates of such credit institutions or investment firms.         “U.K.  Resolution  Authority” means the Bank of  England or any other  public administrative  authority  having  responsibility for the  resolution of any U.K.  Financial Institution.                                        26





 






             “Unadjusted  Benchmark  Replacement”   means the  Benchmark  Replacement       excluding the  Benchmark  Replacement  Adjustment;  provided that, if the  Unadjusted       Benchmark  Replacement as so  determined would be  less than  zero, the  Unadjusted       Benchmark Replacement will be deemed to be zero for the purposes of this Agreement.               “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 or HDFS, and “U.S. Borrowers” means, collectively,       Harley and HDFS.               “U.S. Special Resolution Regime” is defined in Section 9.21 hereof.               “Voting Stock” means capital stock issued by a corporation, or equivalent interests in        any other Person, the holders of which are ordinarily, in the absence of contingencies, entitled to        vote for the election of directors (or persons performing similar functions) of such Person, even if        the right so to vote has been suspended by the happening of such a contingency.               “Write-Down and Conversion Powers” means, (a) with respect to any EEA Resolution       Authority, the write-down and conversion powers of such EEA Resolution Authority from time        to time under the Bail-In Legislation for the applicable EEA Member Country, which write-down        and  conversion  powers  are  described  in  the  EU  Bail-In  Legislation  Schedule. and (b) with       respect to the United Kingdom, any powers of the applicable Resolution Authority under       the  Bail-In  Legislation to  cancel,  reduce, modify or  change the form of a liability of any       U.K. Financial Institution or any contract or instrument under which that liability arises, to       convert all or part of that liability into shares, securities or obligations of that person or any       other person, to provide that any such contract or instrument is to have effect as if a right       had been exercised under it or to suspend any obligation in respect of that liability or any of       the powers under that Bail-In Legislation that are related to or ancillary to any of those       powers.        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 be interpreted in accordance with Section 9.8 hereof.  Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document in any Loan Document shall be construed  as  referring  to  such  agreement,  instrument  or  other  document  as  amended,  restated, supplemented or otherwise modified from time to time (subject to any restrictions on such amendments, restatements,  supplements  or  modifications  set  forth  herein  or in  any  other  Loan  Document),  (ii) any reference to any Person in any Loan Document shall be construed to include such Person’s successors and assigns (subject to any restrictions on assignments set forth herein or in any other Loan Document) and (iii) any reference in any Loan Document to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law, and any reference in any Loan Document to any  law  or  regulation  shall,  unless  otherwise  specified,  refer to  such  law  or  regulation  as  amended, modified or supplemented from time to time.                                 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 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                                             27





 






Dollars, in an 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  amount  of  the  Syndicated  Global  Loans  then       outstanding  and  (b)  the  aggregate  amount  of  the  Bid  Rate  Loans then  outstanding,  shall  not       exceed the Aggregate Commitment;               (ii)  that the aggregate outstanding amount of all Loans at any time shall not exceed the       Aggregate Commitment; and               (iii)  that, notwithstanding anything contained in this Agreement, the aggregate amount of       all Syndicated Global Loans made by a Syndicated Global Lender 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 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 MaturityTermination Date, the outstanding principal balance of the Syndicated Global Loans shall be paid in full by the Global Borrowers.         2.2  [Reserved]Mandatory Prepayments of Loans and Mandatory Commitment Reductions.               (a)    In the event and on each occasion that any Net Cash Proceeds are received    by or on behalf of Harley or any of its  Subsidiaries from the  incurrence of any  Specified    Indebtedness, Harley  shall, with  respect to any  Loans then  outstanding, within  three (3)    Business Days after such Net Cash Proceeds are received by Harley or any of its Subsidiaries,    prepay the principal amount of such Loans then outstanding (if any) in an amount equal to the    lesser of (x) the principal amount of Loans then outstanding and (y) 100% of the amount of    such Net Cash Proceeds, which proceeds shall be applied in each case to minimize, to the extent    reasonably practicable, any additional amounts required under Section 3.4 (it being understood    and agreed that nothing in such Section 3.4 or with respect to the amounts required thereunder    in  respect of such  application of  proceeds shall delay the  application of such  proceeds as    contemplated by this Section 2.2(a)), and, regardless of whether any Loans were outstanding    and  required to be so  prepaid  pursuant to this clause (a),  there shall be an  immediate,    permanent and irrevocable ratable reduction of the Commitments then outstanding (i) effective    as of the date such Net Cash Proceeds are received by Harley or any of its Subsidiaries, in an    amount equal to the amount by which 100% of the amount of such Net Cash Proceeds exceeds    the principal amount of Loans then outstanding, and (ii) upon the earlier of such prepayment of    outstanding Loans described above and such third (3rd) Business Day after the receipt of such    Net Cash Proceeds in an amount equal to the principal amount of Loans then outstanding.               (b)    In the event and on each  occasion that Harley or any of its  Subsidiaries    enters into any  Specified  Conduit  Facility,  upon the  effectiveness of such  Specified  Conduit    Facility, regardless of whether any Net Cash Proceeds are received in respect thereof by or on    behalf of Harley or any of its  Subsidiaries  (but  without  duplication of any  Commitment                                             28





 






   reduction (if any)  under  Section 2.2(a) in  respect of such  Specified  Conduit  Facility), the    Commitments then  outstanding shall be  immediately,  permanently and  irrevocably  ratably    reduced by an  amount  equal to  (i) 100% of the  committed  amount  under such  Specified    Conduit  Facility,  minus  (ii) all or any  portion of such  committed  amount that  constitutes    Excluded Conduit Facility Indebtedness.        2.3  Optional Payments of Loans. Subject to Section 3.4 and the requirements of Section 2.7, each relevant Global Borrower may (a) prepay 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 Floating Rate Loans comprising part of the same Syndicated Global Advance in whole or ratably in part and (b) prepay any 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 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; provided that any notice of optional prepayment of the Loans delivered by Harley pursuant to this Section may state that such notice is conditioned upon the effectiveness of other credit facilities or other transactions specified therein, in which case such notice may be revoked by Harley (by notice to the Global Administrative Agent on or prior to the specified effective date) if such condition is not satisfied.  With respect to Floating Rate Advances, each partial prepayment shall be in an aggregate principal amount not less than $1,000,000 and integral multiples of $100,000.        2.4  Reduction of Commitments.                   (a)  Harley 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 (5) 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 Aggregate Commitment may not be reduced below the sum    of the aggregate principal amount of the outstanding Advances; provided further that any such notice    delivered by Harley pursuant to this Section 2.4(a) may state that such notice is conditioned upon the    effectiveness of other credit facilities or other transactions specified therein, in which case such notice    may be revoked by Harley (by notice to the Global Administrative Agent on or prior to the specified    effective date) if such condition is not satisfied.  All accrued and unpaid commitment 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)  Notwithstanding the foregoing, upon the acquisition of one Lender by another    Lender,  or  the  merger, consolidation or other combination of any two or more Lenders (any such    acquisition,  merger,  consolidation  or  other  combination  being  referred  to  hereinafter  as  a    “Combination” and each Lender which is a party to such Combination being hereinafter referred to as    a “Combined Lender”), Harley may notify the Global Administrative Agent that it desires to reduce    the Commitment of the Lender surviving such Combination (the “Surviving Lender”) to an amount    equal to the Commitment of that Combined Lender which had the largest Commitment of each of the    Combined  Lenders  party  to  such  Combination  (such  largest  Commitment  being  the  “Surviving    Commitment” and the Commitments of the other Combined Lenders being hereinafter referred to,                                             29





 






   collectively, as the “Retired Commitments”).  If the Required Lenders (determined as set forth below)    and the Global Administrative Agent agree to such reduction in the Surviving Lender’s Commitment,    then  (i)  the  aggregate  amount  of  the  Commitments  shall  be  reduced  by  the  Retired  Commitments    effective upon the effective date of the Combination (or such later date as Harley may specify in its    request),  provided,  that,  on  or  before  such  date  the  Borrowers have  paid  in  full  the  outstanding    principal amount of the Loans of each of the Combined Lenders other than the Combined Lender    whose  Commitment  is  the  Surviving  Commitment,  (ii)  from  and  after  the  effective  date  of  such    reduction, the Surviving Lender shall have no obligation with respect to the Retired Commitments,    and (iii) Harley shall notify the Global Administrative Agent whether they wish such reduction to be    a permanent reduction or a temporary reduction.  If such reduction is to be a temporary reduction,    then Harley shall be responsible for finding one or more financial institutions (each, a “Replacement    Lender”),  acceptable  to  the  Global  Administrative Agent (such acceptance not to be unreasonably    withheld,  conditioned  or  delayed),  willing  to  assume  the  obligations  of  a  Lender  hereunder  with    aggregate Commitments up to the amount of the Retired Commitments.  The Global Administrative    Agent may require the Replacement Lenders to execute such documents, instruments or agreements    as  the  Global  Administrative  Agent  deems  necessary  or  desirable  to  evidence  such  Replacement    Lenders’  agreement  to  become  parties  hereunder.   For  purposes  of  this  Section 2.4(b),  Required    Lenders  shall  be  determined  as  if  the  reduction  in  the  aggregate  amount  of  the  Commitments    requested  by  Harley  had  occurred  (i.e.,  the  Combined  Lenders  shall  be  deemed  to  have  a  single    Commitment  equal  to  the  Surviving  Commitment  and  the  aggregate amount  of  the  Commitments    shall be deemed to have been reduced by the Retired Commitments).                   (c)  In  addition, the  Commitments shall be  permanently and  irrevocably    reduced as and when provided in Section 2.2.        2.5  Method of Borrowing 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.  The Global Administrative Agent will promptly make the funds so received from the Syndicated Global Lenders available to the relevant Global Borrower.        2.6  Method of  Selecting Types and  Interest  Periods for  Syndicated  Global  Advances.  Each Borrower shall select the Type of Syndicated Global Advance and, in the case of each Eurodollar Rate Advance,  the  Interest  Period  applicable  to  each  Syndicated  Global  Advance  from  time  to  time.  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 Eurodollar Rate Advance, the Interest Period applicable thereto.  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, plus the Floating Rate Margin.  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.  Each Eurodollar Rate Advance shall bear interest from and including the first day of the Interest Period applicable thereto to (but not including) the                                             30





 






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 reasonably 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 Harley, 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, the Federal Funds Effective Rate for such day or (ii) 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  MaturityTermination Date.   This  Agreement  shall  be  effective  until  the MaturityTermination  Date.   Notwithstanding  the  termination  of  this  Agreement  on  the MaturityTermination  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 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.         2.19   Term-Out Option.  Harley  may, by  irrevocable  written notice to the Global Administrative Agent given not fewer than ten (10) Business Days prior to the Termination Date, elect (such election, the “Term-Out Option”), effective as of the Termination Date (the “Term-Out Date”), to extend the Maturity Date for all or a ratable portion of the Advances outstanding on such date to May 11, 2021; provided that such extension of the Maturity Date shall become effective only if, on the Term-Out Date, (a) no Default or Unmatured Default shall have occurred and be continuing on the Term-Out Date and immediately after giving effect to the exercise of the Term- Out Option, (b) the representations and warranties of Harley set forth in this Agreement are true and correct in all material respects (or in all respects if the applicable representation or warranty is qualified by  Material  Adverse  Effect or  materiality) on and as of the  Term-Out Date and immediately after giving effect to the exercise of the Term-Out Option, as though made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date), (c) the Global Administrative Agent shall have received a certificate from Harley signed by an Authorized Officer of Harley (1) certifying the accuracy of the                                             37





 






foregoing  clauses (a) and (b) and (2) certifying and attaching the resolutions adopted by Harley approving or consenting to such extension of the Maturity Date, (d) Harley shall pay to the Global Administrative Agent, for the  account of each  Lender, a  term-out fee  equal to  0.75% of the aggregate principal amount of such Lender’s outstanding Advances the Maturity Date in respect of which is being extended on the Termination Date pursuant to the exercise of the Term-Out Option in accordance with this Section 2.19, and (e) Harley shall not have previously exercised the Term- Out Option.  In the event the Maturity Date shall be so extended, (i) all Advances that are subject to such  extension and  outstanding on the  Termination Date shall  continue to constitute  Advances following such date, (ii) all Advances that are not subject to such extension but are outstanding on the Termination Date shall be repaid on such date, (iii) the aggregate Commitments will terminate on the Termination Date and the commitment fee pursuant to Section 2.14(C) shall cease to accrue on the Termination Date, and (iv) no Borrower may borrow or reborrow any additional Advances on or after the Termination Date.                         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, but excluding those that are merely proposed and not in effect) adopted after the ClosingAmendment No. 1 Effective Date (or with respect to any Lender, if later, the date on which such Lender becomes a Lender) and having general applicability to  all  banks  (or  a  Lender’s  holding  company  or  applicable  Lending  Installation  for  purposes  of  this Agreement) 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 ClosingAmendment No. 1 Effective Date (or with respect to any Lender, if later, the date on which such Lender becomes a Lender)), or any interpretation or application thereof by any Governmental Authority charged with the interpretation or application thereof, or the compliance of any Lender therewith (any of the  foregoing,  a  “Change  in  Law”;  provided,  however,  that  notwithstanding  anything  herein  to  the contrary, except to the extent they are merely proposed and not in effect, (i) the Dodd-Frank Wall Street Reform  and  Consumer  Protection  Act  and  all  requests,  rules,  guidelines,  requirements  and  directives thereunder  or  issued  in  connection  therewith  by  any  Governmental  Authority  charged  with  the interpretation or application thereof and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any  successor  or  similar authority) or the United States or foreign regulatory authorities, in each case pursuant  to  Basel  III,  shall  in  each  case  be  deemed  to  be  a  “Change  in  Law”,  regardless  of  the  date enacted, adopted or issued to the extent having general applicability to all banks (or a Lender’s holding company  or  applicable  Lending  Installation  for  purposes  of  this  Agreement)  within  the  jurisdiction  in which the applicable Lender (or its holding company or such Lending Installation) operates),               (i)  subjects  the  Global  Administrative  Agent,  any  Lender  or  any  applicable  Lending        Installation  to  any  taxes,  duties,  levies,  imposts,  deductions,  assessments,  fees,  charges  or        withholdings (other than (A) Taxes, (B) Excluded Taxes and (C) Other Taxes) on its loans, loan        principal,  letters  of  credit,  commitments,  or  other  obligations,  or  its  deposits,  reserves,  other        liabilities or capital attributable thereto, 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                                             38





 






      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 Person of making, renewing or maintaining  its  Commitment  or  Loans  or  to  reduce  any  amount  received  under  this  Agreement,  then, within  30  days  after  receipt  by  the  relevant  Borrower  of  written  demand  by  such  Person  pursuant  to Section 3.6,  such  Borrower  shall  pay  such  Person  that  portion  of  such  increased  expense  incurred  or reduction in an amount received which such Person determines is attributable to making, funding and maintaining  its  Loans  and  its  Commitment  as  reasonably  determined  by  such  Person  (which determination shall be made in good faith (and not on an arbitrary or capricious basis) and consistent with similarly situated customers of such Person under agreements having provisions similar to this Section 3.1 after consideration of such factors as such Person then reasonably determines to be relevant).         3.2  Changes in Capital Adequacy Regulations.  If a Lender determines (i) the amount of capital or  liquidity  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 or liquidity will result in an increase in the cost to such Lender of maintaining its Loans or its obligation to make Loans hereunder, then, within 30 days 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 or liquidity 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  and  liquidity)  as  such  amount  is  reasonably  determined  by  such  Lender  (which determination shall be made in good faith (and not on an arbitrary or capricious basis) and consistent with similarly situated customers of the applicable Lender under agreements having provisions similar to this Section 3.2 after consideration of such factors as such Lender then reasonably determines to be relevant). “Change” means 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,  but excluding those that are merely proposed and not in effect) after the ClosingAmendment No. 1 Effective Date (or with respect to any Lender, if later, the date on which  such  Lender  becomes  a  Lender)  and having general applicability to all banks and financial institutions within the jurisdiction in which such Lender operates which affects the amount of capital or liquidity required or expected to be maintained by any Lender or any Lending Installation or any corporation controlling any Lender (provided, however, that notwithstanding anything herein to the contrary, except to the extent they are merely proposed and not in effect, (i) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines,  requirements  and  directives  thereunder  or  issued  in  connection  therewith  by  any Governmental Authority charged with the interpretation or application thereof and (ii) all requests, rules, guidelines, requirements and directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change”, regardless of the date enacted, adopted or issued to the extent having general applicability to all banks (or a Lender’s holding company or applicable Lending Installation for purposes of this Agreement) within the  jurisdiction  in  which  the  applicable  Lender  (or  its  holding  company  or  such  Lending  Installation) operates).         3.3  Availability of Types of Advances.                  (a)  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                                             39





 






or not having the force of law, (ii) prior to the commencement of any Interest Period for a Fixed Rate Advance, the Global Administrative Agent determines (which determination shall be conclusive and binding absent demonstrable error) that adequate and reasonable means do not exist for ascertaining the  Eurodollar  Rate  or  LIBOR,  as  applicable  (including,  without  limitation,  because  the LIBORRelevant Screen Rate is not available or published on a current basis), for a Loan for the applicable Interest Period; provided that no Benchmark Transition Event shall have occurred at such time  or  (iii)  the  Required  Lenders  with  respect  to  Fixed  Rate  Advances  determine  that (x) deposits of a type, currency and maturity appropriate to match fund Fixed Rate Advances are not available or (y) the interest rate, Eurodollar Rate or LIBOR applicable to a Fixed Rate Advance does not accurately reflect the cost of making or maintaining such a Fixed Rate Advance, then the Global Administrative Agent shall give notice (in reasonable detail) thereof to the Borrowers and the Lenders by telephone or telecopy or electronic mail as promptly as practicable thereafter and, until the Global Administrative Agent notifies the Borrowers and the Lenders that the circumstances giving rise to such notice no longer exist (which notice shall be given by the Global Administrative Agent promptly after such circumstances cease to exist), (A) the availability of Fixed Rate Advances of the affected Type shall be suspended and (B) in the case of any occurrence set forth in clause (i) above, the Global Administrative Agent shall require any affected Fixed Rate Advances to be repaid or, in the case of Eurodollar Rate Loans, at the option of the applicable U.S. Borrower, converted to Base Rate Advances.if any Borrowing Notice requests a Eurodollar Rate Advance in Dollars, such Advance shall be made as a Base Rate Advance in Dollars.  Furthermore, if any Fixed Rate Loan is outstanding on the date of Harley’s receipt of the notice from the Global Administrative Agent  referred to in this  Section 3.3(a) with  respect to a  Relevant Rate applicable to such  Loan (any such  Loan, a  “Specified  Loan”), then on the last day of the Interest Period applicable to such Specified Loan (or the next succeeding Business Day if such day is not a Business Day), such Loan shall be converted by the Global Administrative Agent to, and shall constitute, a Base Rate Loan denominated in Dollars on such day.               (b)   Notwithstanding the  foregoing, if at any time the Global  Administrative Agent determines (which determination shall be conclusive absent demonstrable error) that (i) the circumstances set forth in Section 3.3(a)(ii) have arisen and such circumstances are unlikely to be temporary or (ii) the circumstances set forth in Section 3.3(a)(ii) have not arisen but any of (w) the  supervisor for the  administrator of the LIBOR  Screen Rate has made a  public statement that the  administrator of the LIBOR  Screen Rate is  insolvent (and  there is no successor  administrator that  will  continue  publication of the LIBOR  Screen Rate), (x) the administrator of the LIBOR  Screen Rate has made a  public  statement  identifying a  specific date after which the LIBOR Screen Rate will permanently or indefinitely cease to be published by it (and  there is no  successor  administrator that  will  continue  publication of the LIBOR Screen Rate), (y) the supervisor for the administrator of the LIBOR Screen Rate has made a public  statement  identifying a  specific date  after which the LIBOR  Screen Rate  will permanently or indefinitely cease to be published or (z) the supervisor for the administrator of the LIBOR  Screen Rate or a  Governmental  Authority  having  jurisdiction  over the Global Administrative Agent has made a public statement identifying a specific date after which the LIBOR Screen Rate may no longer be used for determining interest rates for loans, then the Global Administrative Agent and Harley shall endeavor to establish an alternate rate of interest to LIBOR that gives  due  consideration to the then  prevailing market  convention for determining a rate of interest for syndicated loans in the United States at such time, and shall enter into an amendment to this Agreement to reflect such alternate rate of interest and such other related changes to this Agreement as may be applicable; provided that, if such alternate rate of interest as so determined would be less than zero, such rate shall be deemed to be zero for the purposes of this Agreement.  Notwithstanding anything to the contrary in Section 8.3, such  amendment shall  become  effective  without any further action or  consent of any other                                          40





 






party to this Agreement so long as the Global Administrative Agent shall not have received, within five (5) Business Days of the date notice of such alternate rate of interest is provided to the Lenders, a written notice from the Required Lenders stating that such Required Lenders object to such amendment.  Until an alternate rate of interest shall be determined in accordance with this Section 3.3(b) (but, in the case of the circumstances described in clause (ii)(w), clause (ii)(x) or clause (ii)(y) of the first sentence of this Section 3.3(b), only to the extent the LIBOR Screen Rate for the  Interest  Period is not  available or  published at such time on a  current basis), (A) the availability of Fixed Rate Advances of the affected Type shall be suspended and (B) in the case of any occurrence set forth in clause (i) above, the Global Administrative Agent shall require any affected Fixed Rate Advances to be repaid or, in the case of Eurodollar Rate Loans, at the option of the applicable U.S. Borrower, converted to Base Rate Advances.               (b)  Notwithstanding anything to the  contrary  herein or in any other  Loan Document, upon the occurrence of a Benchmark Transition Event or an Early Opt-in Election, as  applicable, the Global  Administrative Agent and Harley may amend this  Agreement to replace the Relevant Rate with a Benchmark Replacement (and in the case of the replacement of LIBOR in respect of Dollars, such amendment will include the modification or replacement of clause (c) set forth in the definition of “Alternate Base Rate”).  Any such amendment with respect to a Benchmark Transition Event will become effective at 5:00 p.m. on the fifth (5th) Business Day after the Global Administrative Agent has posted such proposed amendment to all Lenders and Harley, so long as the Global Administrative Agent has not received, by such time,  written notice of  objection to such  proposed  amendment from  Lenders  comprising the Required  Lenders;  provided that, with  respect to any  proposed  amendment  containing any SOFR-Based Rate in respect of any Loan denominated in Dollars, the Lenders shall be entitled to  object only to the  Benchmark  Replacement  Adjustment contained  therein.  Any such amendment with  respect to an Early  Opt-in  Election  will  become  effective on the date that Lenders comprising the Required Lenders have delivered to the Global Administrative Agent written notice that such  Required  Lenders  accept such  amendment. No  replacement of any Relevant Rate with a Benchmark Replacement will occur prior to the applicable Benchmark Transition Start Date.               (c)  In  connection with the  implementation of a  Benchmark  Replacement, the Global Administrative Agent will have the right to make Benchmark Replacement Conforming Changes from time to time  and,  notwithstanding anything to the  contrary  herein or in any other  Loan Document, any such  amendments  implementing such  Benchmark  Replacement Conforming Changes will become effective without any further action or consent of any other party to this Agreement.               (d)  The Global  Administrative Agent  will promptly notify Harley and the Lenders of (i) any occurrence of a Benchmark Transition Event or an Early Opt-in Election, as applicable, (ii) the implementation of any Benchmark Replacement, (iii) the effectiveness of any Benchmark  Replacement Conforming  Changes and (iv) the  commencement or conclusion of any  Benchmark  Unavailability  Period.  Any  determination,  decision or  election that may be made by the Global Administrative Agent or Lenders pursuant to this Section 3.3, including any  determination with  respect to a tenor, rate or  adjustment or of the  occurrence or non- occurrence of an event, circumstance or date and any decision to take or refrain from taking any action, will be conclusive and binding absent demonstrable error and may be made in its or their sole reasonable good faith discretion and without consent from any other party hereto, except, in each case, as expressly required pursuant to this Section 3.3.               (e)  Upon  Harley’s  receipt of notice of the  commencement of a  Benchmark                                          41





 






   Unavailability Period, (A) the availability of Fixed Rate Advances of the affected (including any    conversion or  continuation in  respect  thereof) shall be  suspended and (B) if any  Borrowing    Notice requests a Eurodollar Rate Advance in Dollars, such Advance shall be made as a Base    Rate Advance in Dollars.  Furthermore, if any Fixed Rate Loan is outstanding on the date of    Harley’s  receipt of notice of the  commencement of a  Benchmark  Unavailability  Period with    respect to a Relevant Rate applicable to such Loan (any such Loan, a “Specified Loan”), then    on the last day of the Interest Period applicable to such Specified Loan (or the next succeeding    Business Day if such day is not a Business Day), such Loan shall be converted by the Global    Administrative Agent to, and shall constitute, a Base Rate Loan denominated in Dollars on such    day.        3.4  Funding Indemnification.  If any payment of a Fixed Rate Advance or Bid Rate Advance occurs on a date which is not the last day of the applicable Interest Period in the case of a Fixed Rate Advance  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  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, Harley 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 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  the  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 the Guarantor or the Global Administrative Agent 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  by  such  Borrower  or  the  Guarantor  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  the  Guarantor,  as applicable, shall make such deductions, (c) such Borrower or the Guarantor, as applicable, shall pay the full amount deducted to the relevant authority in accordance with applicable law and (d) such Borrower or the Guarantor, as applicable, shall furnish to the Global Administrative Agent the original or a certified copy  of  a  receipt  evidencing  payment  thereof,  or  other  evidence  of  such  payment  that  is  reasonably satisfactory to the Global Administrative Agent.        (ii) In addition, except as otherwise specifically provided in this Section 3.5, each Borrower and the 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  the  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  by  any  Lender  or  the Global  Administrative  Agent  and  excluding  Excluded  Taxes)  or  from  the  execution  or delivery of, or otherwise with respect to, this Agreement or any Note (“Other Taxes”).         (iii) Each  Borrower  and  the  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 the Guarantor shall not be required to so indemnify to the extent any relevant amount is actually compensated for under any other provision of                                             42





 






materially disadvantageous to such Lender.  Each Lender requiring compensation pursuant to this Article III shall 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;  provided  that  the relevant Borrower or the Guarantor shall not be required to pay such amounts to the extent such amounts accrued prior to the date that is 90 days prior to the date of such notice; and of such Lender’s intention to claim compensation therefor; provided further that, if the circumstances giving rise to such amounts are  retroactive,  then  such  90-day  period  shall  be  extended  to  include  the  period  of  retroactive  effect thereof.  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 Guarantor under Sections 3.1, 3.2, 3.4 and 3.5 shall survive payment of the Obligations and termination of this Agreement.         3.7  [Reserved]         3.8  Replacement of Affected Lenders.  (a) If any Lender (or any Participant holding interests in any Loan owing to such Lender or in any Commitment of such Lender or in any other interest of such Lender  under  the  Loan  Documents)  requests  compensation  under  Section 3.1 or  3.2,  or  (b)  if  any Borrower is required to pay any additional amount pursuant to Section 3.5, or (c) if any Lender becomes a Defaulting Lender or (d) if any Lender (1) shall at any time have (or have a parent that has) a long-term credit rating of lower than BBB from S&P, lower than Baa2 from Moody’s or lower than the equivalent rating from any other nationally recognized statistical rating organization, or shall at any time not have a long-term  credit  rating  from  S&P,  Moody’s  or  any  other  nationally  recognized  statistical  rating organization (in each case under this clause (d)(1) regardless of whether any such circumstances existed at the time such Lender became a Lender), (2) is an Ineligible Institution, (3) enters into, or purports to enter into, an assignment or a participation with an Ineligible Institution in violation of this Agreement or (4) has become the subject of a Bail-In Action (or any case or other proceeding in which a Bail-In Action may occur), then Harley 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, Harley 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 Harley (in the case of all other amounts) and (iii) in the case of any such assignment arising under clause (d)(1) above, the assignee shall have a credit rating greater than or equal to BBB from S&P and/or greater than or equal to Baa2 from Moody’s. Each party hereto agrees that (1) an assignment required pursuant to this paragraph may be effected pursuant to an assignment and assumption  executed  by  Harley,  the  Global  Administrative  Agent and  the  assignee  (or,  to  the  extent applicable, an agreement incorporating an Assignment and Assumptionassignment and assumption by reference  pursuant  to Debt  Domain,  Intralinks,  Syndtrak, ClearPar or a  substantially  similaran Approved Electronic SystemPlatform as to which the Global Administrative Agent and such parties are participants), and (2) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the terms                                             45





 






thereof;  provided  that,  following  the  effectiveness  of  any  such  assignment,  the other  parties  to  such assignment  agree  to  execute  and  deliver  such  documents  necessary  to  evidence  such  assignment  as reasonably  requested  by  the  applicable  Lender,  provided  that  any  such  documents  shall  be  without recourse to or warranty by the parties thereto.         3.9    Removal of  Lenders.   (i)  Notwithstanding  any  other  provision  of  this  Agreement  to the contrary, if a Lender (or any Participant holding interests in any Loan owing to such Lender or in any Commitment of such Lender or in any other interest of such Lender under the Loan Documents) (each, a “Demanding Lender”) demands any payment of any amount pursuant to this Article III and the amount so demanded is disproportionately greater than the amount of compensation (if any) that the Borrowers generally are obligated to pay to other Lenders arising out of the same event or circumstance giving rise to such demand (a “Trigger Event”), then Harley may terminate such Demanding Lender’s Commitment hereunder, provided that (A) no Unmatured Default or Default shall have occurred and be continuing at the  time  of  such  Commitment  termination,  (B)  in  the  case  of  a  Demanding  Lender,  Harley  shall concurrently terminate the Commitment of each other Lender that has made a demand for payment under this Article III that arises out of such Trigger Event and that is similarly disproportionate to the amount the Borrowers are generally obligated to pay to other Lenders arising out of such Trigger Event, (C) the Global Administrative Agent and the Required Lenders shall have consented to each such Commitment termination (such consents not to be unreasonably withheld or delayed, but may include consideration of the adequacy of the liquidity of Harley and its Subsidiaries) and (D) such Demanding Lender shall have been paid all amounts then due to it under this Agreement and each other Loan Document (which, for the avoidance of doubt, the respective Borrowers may pay in connection with any such termination without making  ratable  payments  to  any other Lender (other than another Lender that has a Commitment that concurrently  is  being  terminated  under  this  Section 3.9(i))).   In  no  event  shall  the  termination  of  a Lender’s Commitment in accordance with this Section 3.9(i) impair or otherwise affect the obligation of the Borrowers to make any payment demanded by such Lender in accordance with this Article III.  (ii) Notwithstanding  any  other  provision  of  this  Agreement  to  the  contrary,  if  a  Lender  has  become  the subject of a Bail-In Action (or any case or other proceeding in which a Bail-In Action may occur) (each, a “Bail-In Lender”), then Harley may terminate such Bail-In Lender’s Commitment hereunder, provided that  (A)  no  Unmatured  Default  or  Default  shall  have  occurred  and  be  continuing  at  the  time  of  such Commitment  termination,  (B)  in  the case of a Bail-In Lender, Harley shall concurrently terminate the Commitment of each other Lender that is a Bail-In Lender at such time, (C) the Global Administrative Agent  and  the  Required  Lenders  shall  have  consented  to  each  such  Commitment  termination  (such consents not to be unreasonably withheld or delayed, but may include consideration of the adequacy of the liquidity of Harley and its Subsidiaries) and (D) such Bail-In Lender shall have been paid all amounts then due to it under this Agreement and each other Loan Document (which, for the avoidance of doubt, the  respective  Borrowers  may  pay  in  connection  with  any  such  termination  without  making  ratable payments to any other Lender (other than another Lender that has a Commitment that concurrently is being terminated under this Section 3.9(ii))).                            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  (i)  since  December  31,  2018,  no  event,  development  or circumstance  shall  have  occurred  that  has  had,  or  could  reasonably  be  expected  to  have,  a  material adverse  effect  on  the  business,  assets,  operations  or  financial  condition  of  Harley  and  its  subsidiaries taken as a whole and (ii) the Borrowers shall have (a) paid all fees required to be paid, and all expenses required to be paid for which invoices have been presented reasonably in advance of the Closing Date, in connection with the execution of this Agreement, (b) furnished to the Global Administrative Agent such                                             46





 






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,  (c)  obtained  all  governmental  and  third  party  approvals necessary in connection with the financing contemplated hereby and the continuing operations of Harley and its Subsidiaries (including the Borrowers) and such approvals remain in full force and effect, and (d) delivered to the Lenders (1) audited consolidated financial statements of Harley (on a Consolidated basis) and (2) audited Consolidated financial statements of HDFS and its Subsidiaries (on a Consolidated basis), in the case of each of the foregoing clauses (1) and (2), for the two most recent fiscal years ended prior to the Closing Date as to which such financial statements are available.  It is acknowledged and agreed that the  foregoing  conditions  were satisfied, and this  Agreement became effective, as of May 13, 2019.        4.2  Each Loan.   No  Lender  shall  be  required  to  make  any  Loan  unless  on  the  applicable Borrowing Date:               (i)  at  the  time  of  and  immediately  after  giving  effect  to  such  Advance  or  Loan,  no        Default or Unmatured Default shall have occurred and be continuing; and               (ii)  the representations and warranties contained in Article V are true and correct in all       material respects 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 representations set forth in Sections 5.1.6 and 5.1.7 shall       be deemed to be made only (1) on and as of the Closing Date and (2) pursuant to the terms of       Section 2.19, on and as of the Term-Out Date (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.                     ARTICLE V  REPRESENTATIONS AND WARRANTIES        5.1  Representations and  Warranties.   Each  of  the  Companies  represents  and  warrants  to  the Lenders and the Global Administrative Agent as follows as of the Closing Date and thereafter on each date as and to the extent required by Section 4.2:                   5.1.1  Corporate Existence and Standing.  Each of the Companies and each Material            Subsidiary is a corporation duly organized, validly existing and in good standing under the            laws of its jurisdiction of organization.                   5.1.2  Corporate Power and  Authority; No  Conflict.   The  execution,  delivery  and            performance by each of the Companies of this Agreement and the other Loan Documents to            be  delivered  by  it,  and  the  consummation  of  the  transactions  contemplated  hereby,  are            within  such  Company’s  corporate  powers,  have  been  duly  authorized  by  all  necessary            corporate action, and do not contravene (i) such Company’s charter or by-laws or (ii) law or            any indenture or other agreement evidencing debt for borrowed money in an outstanding            principal balance in excess of $50,000,000 or any material contractual restriction binding on            or affecting any Company.                   5.1.3  No Authorization or Approval.  No authorization or approval or other action            by, and no notice to or filing with, any governmental authority or regulatory body or any                                              47





 






other third party is required as a condition to the due execution, delivery and performance by the Companies of this Agreement or the other Loan Documents to be delivered by it.        5.1.4  Execution, Delivery  and Enforceability.  This Agreement has been, and each of the other Loan Documents to be delivered by each Company when delivered hereunder will  have  been,  duly  executed  and  delivered  by  such  Company.   This  Agreement is, and each of the other Loan Documents when delivered hereunder will be, the legal, valid and binding obligation of each Company enforceable against such Company in accordance with their respective terms (subject to the effect of bankruptcy and other similar laws affecting creditors’ rights generally and general principles of equity).        5.1.5  Financial  Statements.   The  Consolidated  balance  sheet  of  Harley  and  its Subsidiaries  as  at  December  31, 20182019,  and  the  related  Consolidated  statements  of income  and  cash  flows  of  Harley  and  its  Subsidiaries  for  the  fiscal  year  then  ended, accompanied by an opinion of Ernst & Young LLP, independent public accountants copies of  which  have  been  furnished  to  each  Lender,  fairly  present  in all  material  respects  the Consolidated  financial  condition  of  Harley  and  its  Subsidiaries  as  at  such  date  and  the Consolidated results of the operations of Harley and its Subsidiaries for the periods ended on such  date,  all  in  accordance  with  generally  accepted  accounting  principles  consistently applied.        5.1.6  Material Adverse Change.  Since December 31, 20182019, there has been no Material  Adverse  Change. (excluding, for the  avoidance of  doubt,  changes or  effects directly  arising out of or  otherwise  directly  related to the impact of the COVID-19 pandemic on  Harley’s  operations, as  described in  Harley’s  press  release dated March 18, 2020 and Harley’s Current Report on Form 8-K filed with the Commission on March 26, 2020).        5.1.7  Litigation.  There  is  no  action,  suit,  investigation,  litigation  or  proceeding, including, without limitation, any Environmental Action, pending or threatened in writing against Harley or any of its Subsidiaries before any court, governmental agency or arbitrator that  (i)  would  be  reasonably  likely  to  have  a  Material  Adverse Effect  or  (ii)  purports  to affect the legality, validity or enforceability of this Agreement or any other Loan Document or the consummation of the transactions contemplated hereby.        5.1.8  Regulations T, U and X.   No  Borrower  is  engaged  in  the  business  of extending credit for the purpose of purchasing or carrying margin stock (within the meaning of Regulations T, U and X issued by the Board), and no proceeds of any Advance will be used,  directly  or  indirectly,  to  purchase  or  carry  any  margin  stock  or  to  extend  credit  to others for the purpose of purchasing or carrying any margin stock that entails a violation of any of the Regulations of the Board.        5.1.9  Investment Company Status.  No Borrower is an “investment company”, or a company “controlled” by an “investment company”, within the meaning of the Investment Company Act of 1940, as amended.        5.1.10  Anti-Corruption Laws and  Sanctions.   The  Companies  have  implemented and maintain in effect policies and procedures designed to promote and achieve compliance by the Companies, their Subsidiaries and their respective directors, officers, employees and agents  with  Anti-Corruption  Laws  and  applicable  Sanctions,  and the  Companies,  their Subsidiaries  and  their  respective  directors  and  officers  and,  to  the  knowledge  of  each                                  48





 






   recognized national standing and certificates of the chief financial officer or treasurer of Harley (on    behalf of Harley and HDFS) as to compliance with the terms of this Agreement and setting forth in    reasonable detail the calculations necessary to demonstrate compliance with Section 6.3;                   (c)  as  soon  as  possible  and  in  any  event  within  five  (5)  Business  Days  after  an    executive  officer  of  Harley  knows  or  should  have  known  of  the  occurrence  of  each  Default  or    Unmatured Default continuing, a statement of the chief financial officer or treasurer of Harley setting    forth details of such Default or Unmatured Default and the action that Harley has taken and proposes    to take with respect thereto;                   (d)  promptly  after  the  sending  or  filing  thereof,  copies  of  all  reports  that  Harley    sends to any of its securityholders as such, and copies of all reports on Forms 10-K, 10-Q and 8-K (or    their  equivalents)  and  registration  statements  (other  than  the exhibits  thereto  and  any  registration    statements on Form S-8 or its equivalent) that Harley or any Subsidiary files with the Commission or    any  national  securities  exchange,  excluding  any  of  the  foregoing  to  the  extent  related  solely  to  a    Permitted  Finance  Receivables  Securitization  (unless  such  report  constitutes  a  notice  of  default  or    acceleration);                   (e)  promptly after the commencement thereof, notice of all actions and proceedings    before any court, governmental agency or arbitrator affecting Harley or any of its Subsidiaries of the    type described in Section 5.1.7(ii); and                  (f)  from time to time such information and documentation reasonably requested    by the Global Administrative Agent or any Lender for purposes of compliance with applicable    “know your customer” and anti-money laundering rules and regulations, including the Act and    the Beneficial Ownership Regulation; and                  (g)  (f)   such other information respecting Harley or any of its Subsidiaries as any    Lender through the Global Administrative Agent may from time to time reasonably request (it being    understood and agreed that neither Harley nor any of its Subsidiaries shall be required to disclose or    discuss, or permit the inspection, examination or making of extracts of, any records, books or account    or other matter (i) in respect of which disclosure to the Global Administrative Agent, any Lender or    their representatives is then prohibited by applicable law or any agreement binding on Harley or its    Subsidiaries; (ii) that is protected from disclosure by the attorney-client privilege or the attorney work    product  privilege  or  (iii)  constitutes  non-financial  trade  secrets  or  non-financial  proprietary    information).  Financial statements (other than the certificate of the chief financial officer or the treasurer) required to be delivered pursuant to clauses (a), (b) and (d) of this Section 6.1.9 may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date on which (i) such financial statements are filed for public availability on the Commission’s Electronic Data Gathering and Retrieval System or (ii) Harley notifies (which may be by facsimile or electronic mail) the Global Administrative Agent that such financial statements have been posted at a site (the address of which shall be contained in such notice) on the world wide web, which site is accessible by a widely held nationally recognized web browser, from which such financial statements may be readily viewed and printed.                   6.1.10  Use of Proceeds.                  (a)  Each  Borrower  shall  use  the  proceeds  of  the  Loans  to  provide  funds  for  the    general corporate purposes of such Borrower and its Subsidiaries.                                              51





 






                (b)  No Borrower will request any Loan or Advance, and no Borrower shall use, and    each  Borrower  shall  procure  that  its  Subsidiaries  and  its  or  their  respective  directors,  officers,    employees and agents shall not use, the proceeds of any Loan or Advance (i) in furtherance of an    offer, payment, promise to pay, or authorization of the payment or giving of money, or anything else    of value, to any Person in violation of any Anti-Corruption Laws, (ii) for the purpose of funding or    financing  any  activities,  business  or  transaction  of  or  with  any  Sanctioned  Person,  or  in  any    Sanctioned Country, in each case except to the extent permissible for a Person required to comply    with Sanctions, or (iii) in any other manner that would result in liability to the Global Administrative    Agent or any Lender under any applicable Sanctions or a breach by the Global Administrative Agent    or any Lender of Sanctions.        6.2  Negative Covenants.  So long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, each of the Companies will not:                   6.2.1   [Reserved].                   6.2.2  Liens, Etc. Create or suffer to exist, or permit any Material Subsidiaries to            create or suffer to exist, any Lien on or with respect to any of its properties, whether now            owned  or  hereafter  acquired,  or  assign  for  security  purposes,  or  permit  any  Material            Subsidiaries to assign for security purposes, any right to receive income, other than:                  (a)  Permitted Liens;                  (b)  purchase money Liens (including Liens securing Capitalized Lease Obligations)    upon or in any real Property or goods acquired, constructed or held by any of the Companies or any    Material Subsidiary in the ordinary course of business to secure the purchase price of such Property    or  goods  or  to  secure  Indebtedness  and/or  other  obligations  incurred  solely  for  the  purpose  of    financing the acquisition or construction of such real Property or goods, or Liens existing on such    real  Property  or  goods  at  the  time  of  its  acquisition or  construction  (other  than  any  such  Liens    created in contemplation of such acquisition or construction that were not incurred to finance the    acquisition or construction of such Property) and extensions, renewals or replacements of any of the    foregoing to the extent the principal amount secured is not increased; provided, however, that no such    Lien shall extend to or cover any properties of any character other than the real Property or goods    being acquired or constructed (and related Property), and no such extension, renewal or replacement    shall extend to or cover any properties not theretofore subject to the Lien being extended, renewed or    replaced (it being understood that individual financings permitted by this subsection provided by one    Person  (or  an  Affiliate  thereof)  may  be  cross-collateralized  to  other  financings  provided  by  such    Person and its Affiliates that are permitted under this subsection); provided, further that such Lien    attaches to such  real  Property or  goods  concurrently with or within  270  days  after (i) the    acquisition of such  real  Property or  goods or  (ii) the later of (x) the completion of such    construction of such  real  Property or  goods and (y) the date of  commencement of the    commercial  operation of such  real  Property or  goods  constructed, as  applicable;  provided,    further that the aggregate principal amount of the Indebtedness secured by the Liens referred to in this    clause  (b)  shall  not  exceed  the  greater  of  (i)  $150,000,000  and  (ii)  an  amount  equal  to  1.5%  of    Consolidated Total Assets (determined by reference to the most recent financial statements of Harley    delivered pursuant to Section 6.1.9(a) or 6.1.9(b) or, if prior to the date of the delivery of the first    financial statements to be delivered pursuant to Section 6.1.9(a) or 6.1.9(b), the most recent financial    statements referred to in Section 5.1.5) as determined at the time of, and immediately after giving    effect  to,  the  incurrence  of  such  Lien  (for  the  purposes  of  this  Section  6.2.2(b),  “goods”  has  the    meaning set forth in Section 9-102(44) of the Uniform Commercial Code as in effect in the State of                                              52





 






New York);                (c)  the  Liens  existing  on  the ClosingAmendment No. 1  Effective  Date  and described on Schedule 6.2.2(c) hereto;                (d)  Liens  on  (or  assignments  of)  Property  of  a  Person  existing  at  the  time  such Person is merged into or consolidated with any of the Companies or any Material Subsidiary of any of the Companies or becomes a Material Subsidiary of any of the Companies or at the time any of the Companies or any Material Subsidiary of any of the Companies otherwise acquires such Property from such Person; provided that such Liens or assignments were not created in contemplation of such merger,  consolidation  or  acquisition,  or  such  Person  becoming  a  Material  Subsidiary,  and  do  not extend to any assets other than those of the Person so merged into or consolidated with any of the Companies or such Subsidiary or acquired by any of the Companies or such Subsidiary or those of such Person becoming a Material Subsidiary;                (e)  other  Liens  or  assignments  securing  Indebtedness  and  other  obligations  in  an aggregate  principal  amount  not  to  exceed  the  greater  of  (i)  $250,000,000500,000,000 and (ii) an amount  equal  to 2.55.0%  of  the  Consolidated  Total  Assets  (determined  by  reference  to the  most recent financial statements of Harley delivered pursuant to Section 6.1.9(a) or 6.1.9(b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 6.1.9(a) or 6.1.9(b), the most recent financial statements referred to in Section 5.1.5) as determined at the time of, and immediately after giving effect to, the incurrence of such Lien or the making of such assignment;                (f)  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 Harley or any of its Subsidiaries (including  a  Finance  Receivables  Subsidiary),  whether  directly or  through  the  ownership  of  a certificate or other interest in another Person, provided to secure Permitted Securitization Recourse Obligations of Harley or any of its Subsidiaries;                (g)  the replacement, extension or renewal of any Lien or assignment permitted by clause  (b),  (c)  or  (d)  above  upon  or  in  the  same  Property  theretofore  subject  thereto  or  the replacement, extension or renewal (to the extent the principal amount secured is not increased) of the Indebtedness or other obligation secured thereby;                (h)  Liens incurred in connection with sale and leaseback transactions securing assets or other Property with a value of not in excess of the greater of (i) $150,000,000 and (ii) an amount equal  to  1.5%  of  Consolidated  Total  Assets  (determined  by  reference  to  the  most  recent  financial statements of Harley delivered pursuant to Section 6.1.9(a) or 6.1.9(b) or, if prior to the date of the delivery of the first financial statements to be delivered pursuant to Section 6.1.9(a) or 6.1.9(b), the most  recent  financial  statements  referred  to  in  Section  5.1.5)  as  determined  at  the  time  of,  and immediately after giving effect to, the incurrence of such Lien;               (i)  Liens on proceeds of any of the assets permitted to be the subject of any Lien or assignment permitted by this Section 6.2.2;                (j)  options,  put  and  call  arrangements,  rights  of  first  refusal  and  similar  rights relating to investments in joint ventures, partnerships and other similar investments not prohibited by this  Agreement,  and  Liens  on  equity  interests  of  joint  ventures  securing  obligations  of  such  joint ventures; and                                           53





 






             (k)  Liens  on  assets  in  order  to  secure  defeased  and/or  discharged,  discharged and/or redeemed indebtedness.                6.2.3  Mergers, Etc.  Merge or consolidate with or into, or convey, transfer, lease or         otherwise dispose of (but excluding, for the avoidance of doubt, the following transactions:         (w) any transfer of cash, cash equivalents or marketable securities in the ordinary course of         business,  (x)  any  issuance  by  a  Person  of  its  own  equity  interests,  (y)  any  transfer  for         security purposes that is permitted by Section 6.2.2 and (z) any casualty loss, governmental         taking  or  similar  disposition)  (whether  in  one  transaction  or  in  a  series  of  related         transactions) all or substantially all of the assets (whether now owned or hereafter acquired)         of any Borrower or of any Borrower and its Subsidiaries (taken as a whole) to, any Person,         or permit any of its Material Subsidiaries to do so, except that (i) any Subsidiary (other than         any  Company)  may  merge  or  consolidate  with  or  into,  or  transfer,  convey  or  dispose  of         assets to, any other Person so long as such transaction or series of related transactions does         not result in the transfer, conveyance or other disposal of all or substantially all of the assets         (whether  now  owned  or  hereafter  acquired)  of  any  Borrower  or  of  any  Borrower  and  its         Subsidiaries (taken as a whole), (ii) any of the Companies and any Material Subsidiary may         merge into or transfer, convey or dispose of assets to any Person in a transaction in which a         Company or a Material Subsidiary is the surviving or transferee entity (provided that any         such  transaction  involving  a  Company  must  result  in  a  Company  as  the  surviving  or         transferee  entity),  (iii)  Harley  may  merge  into  a  wholly-owned Subsidiary  that  has  no         material assets or liabilities for the sole purpose of changing the state of incorporation of         Harley if the surviving corporation shall expressly assume the liabilities of Harley under this         Agreement and the other Loan Documents and (iv) the Guarantor may merge or consolidate         with  a  Person  (other  than  a  Borrower)  in  a  transaction  in  which  the  Guarantor  is  the         surviving entity; provided, in each case, that no Unmatured Default shall have occurred and         be continuing at the time of such proposed transaction or would result after giving effect         thereto and provided, further, that the foregoing shall not restrict any of the Companies or         any Material Subsidiaries in respect of dispositions of inventory, cash or obsolete, used or         surplus equipment or other Property in the ordinary course of business or in respect of any         Permitted Finance Receivables Securitization and provided, further, that the foregoing shall         not restrict any of the Companies or any Material Subsidiaries from selling or disposing of         any  Property  the  contemplated  disposition  of  which  Harley  has  disclosed  in  any  Annual         Report on Form 10-K, Quarterly Report on Form 10-Q or Current Report on Form 8-K filed         with or furnished to the Commission prior to the ClosingAmendment No. 1 Effective Date.                6.2.4  [Reserved].                6.2.5  [Reserved].                6.2.6  Margin  Regulations.   Permit  more  than  25%  of  the  “value”  (within  the         meaning of Regulation U issued by the Board) of the assets of Harley and its Subsidiaries,         both before and after giving effect to any Advance hereunder, to constitute “margin stock”         as defined in Regulations T, U and X issued by the Board.                6.2.7  Amendments to Support Agreement.  Allow or suffer to exist any amendment,         supplement  or  other  modification  to  the  Support  Agreement  (if  the  foregoing  adversely         affects,  or  could  reasonably  be  expected  to  adversely  affect,  the  Lenders  but  in  no  event         shall any amendment reduce, or effectively reduce, the amount of support under the Support         Agreement) without the prior written consent of the Required Lenders.                                           54





 






      6.3  Financial Covenants.  So long as any Advance shall remain unpaid or any Lender shall have any Commitment hereunder, 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 Equity” means and refers to, as of the end of any period of determination,       the  sum,  without  duplication,  of  (i)  consolidated  shareholders’  equity  of  HDFS,  (ii)  preferred       stock and (iii) Subordinated Indebtedness.               “Consolidated Finco Debt” means, at any time, all Indebtedness for borrowed money 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,  (ii) Subordinated  Intercompany        Indebtedness  and  (iii)  Indebtedness  for  borrowed  money  in  respect  of  Permitted  Finance        Receivables  Securitizations  to  the  extent  such  obligations  would  appear  as  a  liability  upon  a        balance  sheet  of  such  Person  prepared  in  accordance  with  Agreement  Accounting  Principles;        provided that the aggregate outstanding credit enhancements in the form of cash or letter(s) of        credit provided by HDFS or any of its Subsidiaries (other than any structured bankruptcy-remote        Subsidiary of HDFS) in excess of 10% of the aggregate outstanding Indebtedness for borrowed        money  and  owner  trust  certificates  (however  classified)  incurred  in  connection  with  such        Permitted  Finance  Receivables  Securitizations  shall  not  be  excluded  from  Consolidated  Finco        Debt pursuant to this clause (iii).               “Consolidated Opco Debt” means, at any time, all Indebtedness for borrowed money of        Harley  and  its  Consolidated  Subsidiaries  as  reflected  in  the  most  recent  Consolidated  balance        sheet of Harley in accordance with Agreement Accounting Principles; provided, there shall be       excluded from such amounts any Indebtedness of HDFS and its Consolidated Subsidiaries.               “Consolidated Shareholders’ Equity” means, as of the end of any fiscal quarter, the       consolidated  shareholders’  equity  of  Harley  at  the  end  of  such fiscal  quarter  of  Harley       (determined  by  reference  to  the  financial  statements  of  Harley delivered  with  respect  to  such       fiscal  quarter  pursuant  to  Section  6.1.9(a)  or  6.1.9(b)),  determined  on  a  Consolidated  basis  in        accordance with Agreement Accounting Principles.               “Finco Leverage Ratio” means the ratio of (a) Consolidated Finco Debt to (b) the sum       of (i) Consolidated Equity plus (ii) the allowance for credit losses on finance receivables of       HDFS determined on a consolidated basis.               “Opco Leverage Ratio” means the ratio of (a) Consolidated Opco Debt to (b) the sum of        (i) Consolidated Opco Debt plus (ii) Consolidated Shareholders’ Equity.               “Subordinated  Indebtedness”  means  Indebtedness  of  Harley  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)  Maximum Finco Leverage Ratio.  The Companies shall not permit the Finco Leverage Ratio, as of the end of any fiscal quarter, to exceed 10.00 to 1.00.                                              55





 






      (C)  Maximum Opco Leverage Ratio.  The Companies shall not permit the Opco Leverage Ratio, as of the end of any fiscal quarter, to exceed 0.70 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 any    principal of any Advance when the same becomes due and payable or (ii) shall fail to pay any interest    on any Advance or make any other payment of fees or other amounts payable under this Agreement    or any other Loan Document within five (5) Business Days after the same becomes due and payable.                  (b)  Breach of Representation or Warranty.  Any representation or warranty made by    any Company herein or by any Company (or any of their respective officers) in connection with this    Agreement shall prove to have been incorrect in any material respect when made.                   (c)  Breach of Certain Covenants.  (i) Any of the Companies shall fail to perform or    observe any term, covenant or agreement under Section 6.1.4, 6.1.9(c), 6.1.9(e), 6.1.10(b), 6.2, or 6.3    or (ii) any of the Companies shall fail to perform or observe any other term, covenant or agreement    contained in this Agreement or any other Loan Document on its part to be performed or observed if    such failure shall remain unremedied for thirty (30) days after written notice thereof shall have been    given to the applicable Company by the Global Administrative Agent or any Lender.                   (d)  Default as to Other Indebtedness.  (i) Any Borrower or any Material Subsidiary    shall fail to pay any principal of or premium or interest on any Indebtedness (other than Indebtedness    owed to any Borrower or any Material Subsidiaries) that is outstanding in a principal or net amount of    at least $125,000,000 in the aggregate (but excluding (1) Indebtedness outstanding hereunder and (2)    Indebtedness  under  a  Permitted  Finance  Receivables  Securitization)  of  such  Borrower  or  such    Material  Subsidiary  (as  the  case  may  be),  when  the  same  becomes  due  and  payable  (whether  by    scheduled maturity, required prepayment, acceleration, demand or otherwise), and such failure shall    continue after the applicable grace period, if any, specified in the agreement or instrument relating to    such Indebtedness; or (ii) or any event shall occur or condition shall exist under any agreement or    instrument  relating  to  any  such  Indebtedness   (including,  for  the  avoidance  of  doubt,  such    Indebtedness under a Permitted Finance Receivables Securitization to the extent such Indebtedness    appears as a liability or indebtedness on the balance sheet of any Borrower or any Material Subsidiary    in  accordance  with  Agreement  Accounting  Principles  –  “Balance  Sheet  ABS  Debt”)  and  shall    continue after the applicable grace period, if any, specified in such agreement or instrument, if the    effect  of  such  event  or  condition  is  to  cause  such  Indebtedness  to  become  due,  or  require  the    prepayment, repurchase, redemption or defeasance thereof, prior to its stated maturity date (other than    by a regularly scheduled required prepayment or redemption); or any such Indebtedness (including    Balance  Sheet  ABS  Debt)  shall  be  declared  to  be  due  and  payable,  or  required  to  be  prepaid  or    redeemed  (other  than  by  a  regularly  scheduled  required  prepayment  or  redemption),  purchased  or    defeased, or an offer to prepay, redeem, purchase or defease such Indebtedness (including Balance    Sheet  ABS  Debt)  shall  be  required  to  be  made,  in  each  case  prior  to  the  stated  maturity thereof.    Notwithstanding  the  foregoing,  none  of  the  following  events  shall  constitute  a  Default  under  this    clause (d) unless such event results in the acceleration of other Indebtedness of a Borrower or any    Material Subsidiary in an aggregate principal amount of more than $125,000,000:  (i) any secured    Indebtedness  becoming  due  as  a  result  of  the  voluntary  sale  or transfer  of  the  property  or  assets    securing  such  Indebtedness or a casualty or similar event, (ii) any change of control offer made                                             56





 






within 60 days after an acquisition with respect to, and effectuated pursuant to, Indebtedness of an acquired  business,  (iii) any  default  under  Indebtedness  of  an  acquired  business  if  such  default  is cured, or such Indebtedness is repaid, within 60 days after the acquisition of such business so long as no  other  creditor  accelerates  or  commences  any  kind  of  enforcement  action  in  respect  of  such Indebtedness, (iv) mandatory prepayment requirements arising from the receipt of net cash proceeds from  debt,  dispositions  (including  casualty  losses,  governmental  takings  and  other  involuntary dispositions), equity issues or excess cash flow, in each case pursuant to Indebtedness of an acquired business, (v) prepayments required by the terms of debt as a result of customary provisions in respect of  illegality,  replacement  of  lenders  and  gross-up  provisions  for  taxes,  increased  costs,  capital adequacy  and  other  similar  customary  requirements andor  (vi) any  voluntary  prepayment, redemption or other satisfaction of debt that becomes mandatory in accordance with the terms of such debt solely as the result of the company or applicable subsidiary delivering a prepayment, redemption or similar notice with respect to such prepayment, redemption or other satisfaction.                (e)  Bankruptcy  Events, Etc.   Any  Borrower  or  any  Material  Subsidiary  shall generally not pay its debts as such debts become due, or shall admit in writing its inability to pay its debts generally, or shall make a general assignment for the benefit of creditors; or any proceeding shall be instituted by or against any Borrower or any Material Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief, or composition of it or its debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief or the appointment of a receiver, trustee, custodian or other similar official for it or for any substantial part of its Property and,  in  the  case  of  any  such  proceeding  instituted  against  it  (but  not  instituted  by  it),  either  such proceeding shall remain undismissed for a period of sixty (60) days, or any of the actions sought in such  proceeding  (including,  without  limitation,  the  entry  of  an  order  for  relief  against,  or  the appointment of a receiver, trustee, custodian or other similar official for, it or for any substantial part of its Property) shall occur; or any such Borrower or any such Material Subsidiary shall take any corporate action to authorize any of the actions set forth above in this Section 7.1(e).                (f)  Monetary Judgments.  Judgments or orders for the payment of money in excess of $125,000,000 in the aggregate shall be rendered against any Borrower or any Material Subsidiary with respect to which (i) enforcement proceedings shall have been commenced by any creditor upon such judgments or orders or (ii) there shall be any period of ten (10) consecutive days during which a stay of enforcement of such judgments or orders, by reason of a pending appeal or otherwise, shall not  be  in  effect;  provided,  however,  that  any  such  judgment  or  order  shall  not  be  a  Default  or included in the calculation of the aggregate amount of judgments or orders under this Section 7.1(f) if and for so long as (i) the amount of such judgment or order is covered by a valid and binding policy of insurance between the defendant and the insurer covering payment thereof and (ii) such insurer, which shall be rated at least “A” by A.M. Best Company, has been notified of, and has not disputed the claim made for payment of, the amount of such judgment or order.               (g)  Non-Monetary  Judgments.   Any  non-monetary  judgment  or  order  shall  be rendered against any Borrower or any Material Subsidiary that would be reasonably expected to have a Material Adverse Effect, and there shall be any period of ten (10) consecutive days during which a stay of enforcement of such judgment or order, by reason of a pending appeal or otherwise, shall not be in effect.                (h)  Change of Control.  A Change of Control shall occur.                (i)  ERISA.  (i) The occurrence of any ERISA Event; (ii) the partial or complete withdrawal  of  Harley  or  any  of  its  ERISA  Affiliates  from  a  Multiemployer  Plan;  or  (iii)  the                                          57





 






hereinafter  referred  to  as  a  “Non  Pro  Rata  Loan”)  or  any  Lender  otherwise  becomes  a  Defaulting Lender, 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 Defaulting Lender shall be deemed to have cured its failure to fund its Pro Rata       Share of any Syndicated Global Advance at such time as an amount equal to such Defaulting       Lender’s  original  Pro  Rata  Share  of  the  requested  principal  portion  of  such  Advance  is  fully       funded  to  the  applicable  Borrower,  whether  made  by  such  Defaulting  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 Defaulting        Lender’s failure to fund its Pro Rata Share of any Syndicated Global Advance shall bear interest        at the rate applicable to Syndicated Global Loans which are Base Rate Loans, in effect from time        to time, and for all other purposes of this Agreement shall be treated as if they were Base Rate        Loans;               (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 shall be applied first, ratably to all Base Rate Loans constituting        Non Pro Rata Loans, second, ratably to Base Rate Loans other than those constituting Non Pro       Rata Loans or Cure Loans and, third, ratably to Base Rate Loans constituting Cure Loans;               (v)  for so long as and until the earlier of any such Defaulting Lender’s cure of all matters        that caused such Lender to be a Defaulting Lender and the termination of the Commitments, the        term  “Required  Lenders”  for  purposes  of  this  Agreement  shall  mean  Lenders  (excluding  all        Defaulting Lenders) whose Pro Rata Shares represent greater than fiftyfifty-one percent (5051%)       of the aggregate Pro Rata Shares of such Lenders; and               (vi)  for so long as and until any such Defaulting Lender’s cure of all matters that caused       such Lender to be a Defaulting Lender, such Defaulting Lender shall not be entitled to any fees,        and no fees shall accrue, with respect to its Commitment.         8.3  Amendments.  Except as provided in Section 3.3(b) or (c), 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 Borrowers hereunder or waiving any Default hereunder; provided, however, that (a) no such supplemental agreement shall, without the consent of (1) with respect to clauses (iii), (iv), (v), (vi),                                              59





 






(vii) and (ix) below, each Lender directly affected thereby or (2) with respect to clauses (i), (ii) and (viii) below, each Lender directly and adversely affected thereby:               (i)  postpone or extend the Termination Date, the Maturity Date (except as permitted       under Section 2.19) 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)  or  postpone  the        scheduled date of expiration of any Commitment of such Lender;               (ii)  reduce the principal amount of any Loans, or reduce the rate or amount of or extend        the time of payment of interest or fees thereon or other amounts payable hereunder (except with        respect to a waiver of the application of the default rate of interest pursuant to Section 2.11 hereof       and except that no amendment entered into pursuant to the terms of Section 3.3(b) or (c) shall       constitute a reduction in the rate of interest or fees for purposes of this clause (ii));               (iii)  reduce the percentage specified in the definition of Required Lenders or any other       provision hereof specifying the percentage or number of Lenders specified to be the applicable       percentage or number in this Agreement to act on specified matters or amend the definitions of       “Required Lenders” or “Pro Rata Share”;               (iv)  increase  the  amount  of  the  Commitment  of  any  Syndicated  Global  Lender  or       increase  any  Lender’s  Pro  Rata  Share,  it  being  understood  that an  amendment,  modification,       termination,  waiver  or  consent  with  respect  to  any  condition  precedent,  covenant,  mandatory       prepayment, Unmatured Default or Default shall not constitute an increase in the Commitment of       any Syndicated Global Lender;               (v)  permit any Borrower to assign its rights under this Agreement;               (vi)  [reserved];               (vii)  release  the  Guarantor  other than  in  accordance  with  the terms  of  the  Loan       Documents;               (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; or               (ix)  amend this Section 8.3.;        provided that no consent of any Defaulting Lender shall be required pursuant to clause (iii) or (viii) above as to any modification that does not adversely affect such Defaulting Lender in a non-ratable manner.         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.   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.         If, in connection with any proposed amendment, waiver or consent requiring the consent of “the Lenders”, “each Lender” or “each Lender directly affected thereby,” the consent of the Required Lenders is obtained, but the consent of other necessary Lenders is not obtained (any such Lender whose consent is necessary but not obtained being referred to herein as a “Non-Consenting Lender”), then Harley may (at                                             60





 






its sole cost and expense) elect to replace a Non-Consenting Lender as a Lender party to this Agreement; provided that, concurrently with such replacement, (i) another bank or other entity which is reasonably satisfactory to Harley and the Global Administrative Agent shall agree, as of such date, to purchase for cash the Loans and other Obligations due to the Non-Consenting Lender pursuant to an assignment and assumption and to become a Lender for all purposes under this Agreement and to assume all obligations of the Non-Consenting Lender to be terminated as of such date and to comply with the requirements of Section 13.3(A), and with Harley or such replacement Lender paying the $3,500 processing fee required in Section 13.3(B) and (ii) Harley shall pay to such Non-Consenting Lender in same day funds on the day of such replacement (1) all principal, interest, fees and other amounts then accrued but unpaid to such Non-Consenting Lender by any Borrower hereunder to and including the date of termination, including without limitation payments due to such Non-Consenting Lender under Sections 3.1, 3.2 and 3.5, and (2) an amount, if any, equal to the payment which would have been due to such Lender on the day of such replacement under Section 3.4 had the Loans of such Non-Consenting Lender been prepaid on such date rather than sold to the replacement Lender.  Each party hereto agrees that (1) an assignment required pursuant to this paragraph may be effected pursuant to an assignment and assumption executed by Harley, the Global  Administrative Agent and the  assignee (or, to the extent  applicable, an agreement  incorporating an  assignment and  assumption by  reference  pursuant to an  Approved Electronic  Platform as to which the Global  Administrative Agent and such parties are participants), and (2) the Lender required to make such assignment need not be a party thereto in order for such assignment to be effective and shall be deemed to have consented to and be bound by the  terms  thereof;  provided that,  following the  effectiveness of any such  assignment, the other parties to such assignment agree to execute and deliver such documents necessary to evidence such assignment as reasonably requested by the applicable Lender, provided that any such documents shall be without recourse to or warranty by the parties thereto.        Notwithstanding  anything  herein  to  the  contrary,  as  to  any  amendment  or  amendment  and restatement otherwise approved in accordance with this Section, it shall not be necessary to obtain the consent  or  approval  of  any  Lender  that,  upon  giving  effect  to  such  amendment  or  amendment  and restatement, would have no Commitment or outstanding Loans so long as such Lender receives payment in full of the principal of and interest accrued on each Loan made by, and all other amounts owing to, such  Lender  or  accrued  for  the  account  of  such  Lender  under  this  Agreement  and  the  other  Loan Documents  at  the  time  such  amendment,  amendment  and  restatement  or  other  modification  becomes effective.        Notwithstanding anything herein to the contrary, if the Global Administrative Agent and Harley acting  together  identify any ambiguity,  omission, mistake,  typographical  error or other defect in any  provision of this  Agreement or any other  Loan Document, then the Global Administrative Agent and Harley shall be  permitted to  amend, modify or  supplement such provision to cure such ambiguity, omission, mistake, typographical error or other defect, and such amendment shall become effective without any further action or consent of any other party to this Agreement.        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                                             61





 






Accounting Principles.  Notwithstanding any other provision contained herein, all terms of an accounting or financial nature used herein shall be construed, and all computations of amounts and ratios referred to herein shall be made (i) without giving effect to any election under Accounting Standards Codification 825-10-25 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar  result  or  effect)  to  value  any  Indebtedness  or  other  liabilities  of  Harley  or  any  Subsidiary  of Harley at “fair value”, as defined therein, (ii) without giving effect to any treatment of Indebtedness in respect of convertible debt instruments under Accounting Standards Codification 470-20 or 2015-03 (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) to value any such Indebtedness in a reduced or bifurcated manner as described therein, and such Indebtedness shall at all times be valued at the full stated principal amount thereof and (iii) for purposes of calculating shareholders’ equity, by excluding all accumulated other comprehensive income (or loss) as  shown  on  the  most  recent  Consolidated  balance  sheet  of  Harley  or  HDFS,  as  applicable,  delivered pursuant  to  Section  6.1.9(a)  or  6.1.9(b)  or,  if  prior  to  the  date  of  the  delivery  of  the  first  financial statements to be delivered pursuant to Section 6.1.9(a) or 6.1.9(b), the most recent financial statements referred  to  in  Section  5.1.5.   Notwithstanding  any  other  provision  of  this  Agreement  to  the  contrary, except  for  the  purpose  of  preparing  financial  statements  in  accordance  with  Agreement  Accounting Principles, (x) the determination of whether a lease constitutes a capital or finance lease, on the one hand, or an operating lease, on the other hand, and whether obligations arising under a lease are required to be capitalized on the balance sheet of the lessee thereunder and/or recognized as interest expense, shall be determined by reference to Agreement Accounting Principles as in effect on December 1, 2018 without giving effect to the phase-in of the effectiveness of any amendments to Agreement Accounting Principles that  have  been  adopted  as  of  December  1,  2018 and (y)  Accounting  Standards  Update  2016-13 Financial  Instruments-  Credit  Losses (Topic  326)  Measurement of  Credit  Losses on  Financial Instruments (or any other Accounting Standards Codification or Financial Accounting Standard having a similar result or effect) shall not be given effect..        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 Credit Parties shall be  solely  that  of  borrower  or  guarantor  and  lender.   No  Credit Party  shall  have  any  fiduciary responsibilities to any of the Companies.  No Credit Party 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.   Each  Company  further  acknowledges  and  agrees,  and acknowledges its Subsidiaries’ understanding, that each Credit Party is a full service securities or banking firm engaged in securities trading and brokerage activities as well as providing investment banking and other financial services.  In the ordinary course of business, any Credit Party may provide investment banking and other financial services to, and/or acquire, hold or sell, for its own accounts and the accounts of customers, equity, debt and other securities and financial instruments (including bank loans and other obligations) of, such Company, its Subsidiaries and other companies with which such Company or any of its  Subsidiaries  may  have  commercial  or  other  relationships.   With  respect  to  any  securities  and/or financial instruments so held by any Credit Party or any of its customers, all rights in respect of such securities and financial instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion.  In addition, each Company acknowledges and agrees, and acknowledges its Subsidiaries’  understanding,  that  each  Credit  Party  and  its  affiliates  may  be  providing  debt  financing, equity capital or other services (including financial advisory services) to other companies in respect of which such Company or any of its Subsidiaries may have conflicting interests regarding the transactions described  herein  and  otherwise.   No  Credit  Party  will  use  confidential  information  obtained  from  the                                             64





 






Company by virtue of the transactions contemplated by the Loan Documents or its other relationships with  the  Company  in  connection  with  the  performance  by  such  Credit  Party  of  services  for  other companies, and no Credit Party will furnish any such information to other companies.  Each Company also  acknowledges  that  no  Credit  Party  has  any  obligation  to  use  in  connection  with  the  transactions contemplated  by  the  Loan  Documents,  or  to  furnish  to  such  Company  or  any  of  its  Subsidiaries, confidential information obtained from other companies.         9.11  CHOICE OF LAW  AND  SUBMISSION TO  JURISDICTION.  THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION)  SHALL  BE  CONSTRUED  IN  ACCORDANCE  WITH  AND  GOVERNED  BY  THE LAWS  OF  THE  STATE  OF  NEW  YORK,  BUT  GIVING  EFFECT  TO  FEDERAL  LAWS APPLICABLE     TO   BANKS.       EACH    COMPANY      HEREBY    IRREVOCABLY       AND UNCONDITIONALLY SUBMITS, FOR ITSELF AND ITS PROPERTY, TO THE NONEXCLUSIVE JURISDICTION OF THE SUPREME COURT OF THE STATE OF NEW YORK SITTING IN NEW YORK  COUNTY,  BOROUGH  OF  MANHATTAN,  AND  OF  THE  UNITED  STATES  DISTRICT COURT  FOR  THE  SOUTHERN  DISTRICT  OF  NEW  YORK,  AND  ANY  APPELLATE       COURT FROM ANY THEREOF, IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO  THIS  AGREEMENT,  OR  FOR  RECOGNITION  OR  ENFORCEMENT  OF  ANY  JUDGMENT, AND EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD  AND  DETERMINED  IN  SUCH  NEW  YORK  STATE  COURT  OR,  TO  THE  EXTENT PERMITTED BY LAW, IN SUCH FEDERAL COURT.  EACH OF THE PARTIES HERETO AGREES THAT  A  FINAL  JUDGMENT  IN  ANY  SUCH  ACTION  OR  PROCEEDING  SHALL  BE CONCLUSIVE  AND  MAY  BE  ENFORCED  IN  OTHER  JURISDICTIONS  BY  SUIT  ON  THE JUDGMENT  OR  IN  ANY  OTHER  MANNER  PROVIDED  BY  LAW.   NOTHING  IN  THIS AGREEMENT  SHALL  AFFECT  ANY  RIGHT THAT THE GLOBAL ADMINISTRATIVE AGENT OR  ANY  LENDER  MAY  OTHERWISE  HAVE  TO  BRING  ANY  ACTION  OR  PROCEEDING RELATING  TO  THIS  AGREEMENT  AGAINST  ANY  COMPANY  OR  ITS  PROPERTIES  IN  THE COURTS OF ANY JURISDICTION.         9.12  WAIVER OF JURY TRIAL.   EACH  OF  THE  COMPANIES,  THE  GLOBAL ADMINISTRATIVE  AGENT  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”) and the requirements of                                             65





 






the Beneficial Ownership Regulation hereby notifies each Company that pursuant to the requirements of  the  Act and the  Beneficial  Ownership Regulation,  it  is  required  to  obtain,  verify  and  record information  that  identifies  such  Company,  which  information  includes  the  name  and  address  of  such Company and other information that will allow such Lender to identify such Company in accordance with the  Act. and the  Beneficial  Ownership  Regulation.  Each  Company  shall, promptly  following a request by the Global Administrative Agent (including any such request on behalf of any Lender), provide all documentation and other information that the Global Administrative Agent (or such Lender)  reasonably  requests in  order to comply with its  ongoing  obligations  under  applicable “know your customer” and anti-money laundering rules and regulations, including the Act and the Beneficial Ownership Regulation.        9.15  Service of Process.  Each party to this Agreement irrevocably consents to service of process in  the  manner  provided  for  notices  in  Article  XIV.   Nothing  in this  Agreement  or  any  other  Loan Document  will  affect  the  right  of  any  party  to  this  Agreement  to  serve  process  in  any  other  manner permitted by law.         9.16  Acknowledgement and  Consent to  Bail-In of EEAAffected  Financial  Institutions. Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or  understanding  among  any  such  parties,  each  party  hereto  acknowledges  that  any  liability  of  any EEAAffected Financial Institution arising under any Loan Document may be subject to the Write-Down and Conversion Powers of an EEAthe applicable Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:         (A)  the  application  of  any  Write-Down  and  Conversion  Powers  by an  EEAthe  applicable Resolution Authority to any such liabilities arising hereunder which may be payable to it by any party hereto that is an EEAAffected Financial Institution; and        (B)  the effects of any Bail-In Action on any such liability, including, if applicable:               (i)    a reduction in full or in part or cancellation of any such liability;               (ii)   a conversion of all, or a portion of, such liability into shares or other instruments        of ownership in such EEAAffected Financial Institution, its parent entity, or a bridge institution       that may be issued to it or otherwise conferred on it, and that such shares or other instruments of       ownership will be accepted by it in lieu of any rights with respect to any such liability under this       Agreement or any other Loan Document; or               (iii)  the variation of the terms of such liability in connection with the exercise of the       Write-Down and Conversion Powers of any EEAthe applicable Resolution Authority.  To the extent not prohibited by applicable law, rule or regulation, each Lender shall notify Harley and the Global  Administrative  Agent  if  it  has  become  the  subject  of  a  Bail-In  Action  (or  any  case  or  other proceeding in which a Bail-In Action may occur).        9.17  Certain  Calculations.   No  Unmatured  Default  or  Default  shall  arise  as  a  result  of  any limitation or threshold set forth in Dollars in Sections  6.2 and 6.3 and Article VII under this Agreement being exceeded solely as a result of changes in currency exchange rates from those rates applicable on the last day of the fiscal quarter of Harley immediately preceding the fiscal quarter of Harley in which such transaction requiring a determination occurs.                                              66





 






      9.18   Interest Rates.  The Global  Administrative Agent does not  warrant or  accept responsibility for, and shall not have any liability with respect to, the administration, submission or any other  matter  related to the rates in the  definition of  “LIBOR” or with  respect to any comparable or successor rate thereto, or replacement rate therefor (other than, for the avoidance of doubt, with  respect to its  obligation to  apply the  definition of such rate in  accordance with its terms).        9.18  [Intentionally Omitted].        9.19  LLC Division.  Any reference in this Agreement to a merger, transfer, consolidation, amalgamation,  consolidation,  assignment, sale, disposition or  transfer, or  similar  term, shall be deemed to apply to a division of or by a limited liability company, limited partnership or trust, in each case within the  meaning of  applicable law, or an  allocation of  assets, rights,  obligations or liabilities to a series of a limited liability company, limited partnership or trust (or the unwinding of such a  division or  allocation), in each case within the  meaning of  applicable law, as if it  were a merger,  transfer,  consolidation,  amalgamation,  consolidation,  assignment, sale, disposition or transfer, or similar term, as applicable, to, of or with a separate Person, and any Person resulting from such a division of a limited liability company, limited partnership or trust shall constitute a separate Person hereunder (and any Person resulting from such a division of any limited liability company,  limited  partnership or  trust that is a  Subsidiary, joint  venture or any other like term shall also constitute a separate Person or entity).For all purposes under the Loan Documents, in connection with any  division or plan of  division  under  Delaware law (or any  comparable event under a different jurisdiction’s laws): (a) if any asset, right, obligation or liability of any Person becomes the asset, right, obligation or liability of a different Person, then it shall be deemed to have been  transferred from the original  Person to the  subsequent  Person, and (b) if any new  Person comes into existence, such new Person shall be deemed to have been organized and acquired on the first date of its existence by the holders of its equity interests at such time.        9.20  Interest Rates; LIBOR Notification.  The interest rate on FixedEurodollar Rate Advances is  determined  by  reference  to LIBOR, which is derived from the London interbank offered rate.  The London interbank offered rate is intended to represent the rate at which contributing banks may obtain short-term borrowings from each other in the London interbank market.  In July 2017, the U.K. Financial Conduct  Authority  announced  that,  after  the  end  of  2021,  it  would  no  longer  persuade  or  compel contributing banks to make rate submissions to the ICE Benchmark Administration (together with any successor to the ICE Benchmark Administration, the “IBA”) for purposes of the IBA setting the London interbank offered rate. As a result, it is possible that commencing in 2022, the London interbank offered rate may no longer be available or may no longer be deemed an appropriate reference rate upon which to determine the interest rate on FixedEurodollar Rate AdvancesLoans. In light of this eventuality, public and private sector industry initiatives are currently underway to identify new or alternative reference rates to  be  used  in  place  of  the  London  interbank  offered  rate.  In the event that the  London  interbank offered rate is no longer available or in certain other circumstances as set forth in Section 3.3(b) of this Agreement, suchUpon the occurrence of a Benchmark Transition Event or an Early Opt-In Election, Section 3.3(b) provides a mechanism for determining an alternative rate of interest.  The Global Administrative Agent will promptly notify Harley, pursuant to Section 3.3(d), and endeavor to agree upon a successor benchmark as expressly contemplated by Section 3.3, in advance of any change to the reference rate upon which the interest rate on Eurodollar Rate Loans is based.  However, the Global Administrative Agent does not warrant or accept any responsibility for, and shall not have any liability with respect to, the administration, submission or any other matter related toavailability of the London interbank offered rate or other rates in the definition of “LIBOR” or with respect to any alternative or successor rate thereto, or replacement rate thereof (provided that, for the avoidance of doubt, the Global Administrative Agent shall administer the definition of any such rate in accordance with its                                             67





 






terms and to comply with the terms of Section 3.3(b), subject to the other terms and conditions of this Agreement)including, without limitation, (i) any such alternative, successor or replacement rate implemented pursuant to Section 3.3(b), whether upon the occurrence of a Benchmark Transition Event or an Early  Opt-in  Election, and  (ii) the  implementation of any  Benchmark  Replacement Conforming  Changes  pursuant to  Section 3.3(c)),  including  without  limitation,  whether  the composition or characteristics of any such alternative, successor or replacement reference rate, as it may or may not be adjusted pursuant to Section 3.3(b), will be similar to, or produce the same value or economic  equivalence  of,  LIBOR  or  have  the  same  volume  or  liquidity  as  did  the  London  interbank offered rate prior to its discontinuance or unavailability (other than, for the avoidance of doubt, with respect to its obligation to apply the definition of such rate in accordance with its terms and comply with its obligations in Article II (including Section 3.3) of this Agreement).        9.21  Acknowledgement  Regarding Any  Supported QFCs.  To the extent that the  Loan Documents provide support, through a guarantee or otherwise, for Swap Agreements or any other agreement or instrument that is a QFC (such support “QFC Credit Support” and each such QFC a “Supported QFC”), the parties  acknowledge and  agree as  follows with  respect to the  resolution power of the Federal Deposit Insurance Corporation under the Federal Deposit Insurance Act and Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act (together with the regulations  promulgated  thereunder, the “U.S.  Special  Resolution  Regimes”) in  respect of such Supported QFC and QFC Credit Support (with the provisions below applicable notwithstanding that the Loan Documents and any Supported QFC may in fact be stated to be governed by the laws of the State of New York and/or of the United States or any other state of the United States):        In the event a Covered Entity that is party to a Supported QFC (each, a “Covered Party”) becomes  subject to a  proceeding  under a U.S.  Special  Resolution  Regime, the transfer of such Supported QFC and the benefit of such QFC Credit Support (and any interest and obligation in or under such Supported QFC and such QFC Credit Support, and any rights in property securing such Supported QFC or such QFC Credit Support) from such Covered Party will be effective to the same extent as the transfer would be  effective  under the U.S.  Special  Resolution Regime if the Supported QFC and such QFC  Credit  Support (and any such  interest,  obligation and rights in property) were governed by the laws of the United States or a state of the United States. In the event a Covered Party or a BHC Act Affiliate of a Covered Party becomes subject to a proceeding under a U.S.  Special  Resolution  Regime, Default Rights  under the  Loan Documents that might otherwise apply to such Supported QFC or any QFC Credit Support that may be exercised against such Covered Party are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if the Supported QFC and the Loan Documents were governed by the laws of the United States or a state of the United States. Without limitation of the foregoing, it is understood and agreed that rights and remedies of the parties with respect to a Defaulting Lender shall in no event affect the rights of any Covered Party with respect to a Supported QFC or any QFC Credit Support.                    ARTICLE X  THE GLOBAL ADMINISTRATIVE AGENT         10.1  Appointment; Nature of  Relationship.   JPMorgan  Chase  Bank,  N.A.  is  appointed  by  the Lenders (each reference in this Article X to a Lender being in its capacity as a Lender) 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                                             68





 






             exemption for certain transactions involving bank collective investment funds) or PTE              96-23 (a class exemption for certain transactions determined by in-house asset managers),              is applicable with respect to such Lender’s entrance into, participation in, administration              of and performance of the Loans, the Commitments and this Agreement,                      (iii)   (A)  such  Lender  is  an  investment  fund  managed  by  a  “Qualified              Professional Asset Manager” (within the meaning of Part VI of PTE 84-14), (B) such              Qualified Professional Asset Manager made the investment decision on behalf of such              Lender to enter into, participate in, administer and perform the Loans, the Commitments              and  this  Agreement,  (C)  the  entrance  into,  participation  in,  administration  of  and              performance  of  the  Loans,  the  Commitments  and  this  Agreement  satisfies  the              requirements of sub-sections (b) through (g) of Part I of PTE 84-14 and (D) to the best              knowledge of such Lender, the requirements of subsection (a) of Part I of PTE 84-14 are              satisfied with respect to such Lender’s entrance into, participation in, administration of              and performance of the Loans, the Commitments and this Agreement, or                      (iv)   such  other  representation,  warranty  and  covenant  as  may  be  agreed  in              writing between the Global Administrative Agent, in its sole discretion, and such Lender.               (b)  In addition, unless sub-clause (i) in the immediately preceding clause (a) is true with        respect  to  a  Lender  or  such  Lender  has not provided  another  representation,  warranty  and       covenant  as  provided  in  sub-clause  (iv)  in  the  immediately  preceding  clause  (a),  such  Lender       further (x) represents and warrants, as of the date such Person became a Lender party hereto, to,       and  (y)  covenants,  from  the  date  such  Person  became  a  Lender  party  hereto  to  the  date  such       Person ceases being a Lender party hereto, for the benefit of, the Global Administrative Agent,       and the Arranger or any of their respective Affiliates, and not, for the avoidance of doubt, to or       for the benefit of the Companies, that none of the Global Administrative Agent, or the Arranger       or  any  of  their  respective  Affiliates  is  a  fiduciary  with  respect  to  the  assets  of  such  Lender       involved in the Loans, the Commitments and this Agreement (including in connection with the       reservation or exercise of any rights by the Global Administrative Agent under this Agreement,       any Loan Document or any documents related hereto or thereto).               (c)  The Global Administrative Agent and the Arranger hereby inform the Lenders that       each such Person is not undertaking to provide impartial investment advice, or to give advice in a       fiduciary capacity, in connection with the transactions contemplated hereby, and that such Person       has a financial interest in the transactions contemplated hereby in that such Person or an Affiliate       thereof (i) may receive interest or other payments with respect to the Loans, the Commitments,       this  Agreement  and  any  other  Loan  Documents,  (ii)  may  recognize  a  gain  if  it  extended  the       Loans, or the Commitments for an amount less than the amount being paid for an interest in the       Loans,  or  the  Commitments  by  such  Lender  or  (iii)  may  receive  fees  or  other  payments  in       connection  with  the  transactions  contemplated  hereby,  the  Loan Documents  or  otherwise,       including structuring fees, commitment fees, arrangement fees, facility fees, commitment fees,       upfront fees, underwriting fees, ticking fees, agency fees, administrative agent fees or collateral       agent fees, utilization fees, minimum usage fees, letter of credit fees, fronting fees, deal-away or       alternate  transaction  fees,  amendment  fees,  processing  fees,  term  out  premiums,  banker’s       acceptance fees, breakage or other early termination fees or fees similar to the foregoing.                        ARTICLE XI  SETOFF; RATABLE PAYMENTS        11.1  Setoff.  In addition to, and without limitation of, any rights of the Lenders under applicable law,  if  any  Default  occurs  and  is  continuing,  any  indebtedness from  any  Lender  to  any  Company                                             72





 






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.        The Guarantor consents and agrees 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 the Guarantor or against or in payment of any or all of the Obligations.  The Guarantor further agrees that, to the extent that any Borrower 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,  the  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 Guarantor 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, the 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 Guarantor further agrees that if payment in respect of any of the Obligations owed to any Lender shall be due at a place of payment other than as designated in this Agreement and if, by reason of any Change in Law (as defined in Section 3.1), war or civil disturbance or other event, 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 Guarantor shall make payment of such Obligation in the applicable place designated in this Agreement, 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 paid in full in cash and the MaturityTermination Date shall have occurred, the Guarantor (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 Guarantor waives 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 paid (in cash) and discharged and this Agreement and all  financing  arrangements  between any Borrower, the Global Administrative  Agent  and  the  Lenders pursuant  to  this  Agreement  shall  have  been  terminated;  provided that  if  the  Guarantor  is  merged  or consolidated with another Company pursuant to Section 6.2.3 or if the capital stock of the Guarantor is sold,  transferred  or  otherwise  disposed  of  in  a  transaction  permitted  pursuant  to  the  terms  of  this Agreement  (as  in  effect  on  the ClosingAmendment No. 1  Effective  Date),  the  Guarantor  shall  be released  from  its  obligations  under  this  Agreement  without  further  action.   If,  notwithstanding  the foregoing, the Guarantor shall have any right under applicable law to terminate or revoke this Guarantee, the Guarantor agrees that such termination or revocation shall not be effective until a written notice of such revocation or termination, specifically referring hereto, signed by the Guarantor, is actually received                                             75





 






and  obligations  under  this  Agreement  to  such  Person  (unless  Harley  has  consented  to  such assignment  or  participation  in  writing  in  its  sole  and  absolute  discretion,  in  which  case  such Person will not be considered a Disqualified Institution for the purpose of such assignment or participation).  For  the  avoidance  of  doubt,  with  respect  to  any  Purchaser  or  Participant  that becomes a Disqualified Institution after the applicable Trade Date (including as a result of the delivery  of  a  notice  pursuant  to,  and/or  the  expiration  of  the notice  period  referred  to  in,  the definition of “Disqualified Institution”), (x) such Purchaser or Participant shall not retroactively be  disqualified  from  becoming  a  Lender  or  Participant  and  (y)  the  execution  by  Harley  of  an assignment agreement with respect to such Purchaser will not by itself result in such Purchaser no longer being considered a Disqualified Institution. Any assignment or participation in violation of this clause (D)(i) shall not be void, but the other provisions of this clause (D) shall apply.         (ii)   If any assignment or participation is made to any Disqualified Institution without  Harley’s  prior  written  consent  in  violation  of  clause (i)  above,  or  if  any  Person  becomes  a  Disqualified  Institution  after  the  applicable  Trade  Date,  Harley  may,  at  its  sole  expense  and  effort, upon notice to the applicable Disqualified Institution and the Global Administrative Agent,  require such Disqualified Institution to assign, without recourse (in accordance with and subject  to the restrictions contained in this Section 13.3), all of its interest, rights and obligations under  this Agreement to one or more Persons (other than an Ineligible Institution) at the lesser of (x) the  principal  amount  thereof  and  (y)  the  amount  that  such  Disqualified  Institution  paid  to  acquire  such interests, rights and obligations in each case plus accrued interest, accrued fees and all other  amounts (other than principal amounts) payable to it hereunder.         (iii)  Notwithstanding  anything  to  the  contrary  contained  in  this  Agreement,  Disqualified Institutions to whom an assignment or participation is made in violation of clause (i) above (A) will not have the right to (x) receive information, reports or other materials provided to Lenders by Harley, the Global Administrative Agent or any other Lender, (y) attend or participate in meetings attended by the Lenders (or any of them) and the Global Administrative Agent, or (z)  access  any  electronic  site  established  for  the  Lenders  or  confidential  communications  from  counsel to or financial advisors of the Global Administrative Agent or the Lenders and (B) (x) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the Global Administrative Agent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or any other Loan Document, each  Disqualified  Institution  will  be  deemed  to  have  consented in  the  same  proportion  as  the Lenders that are not Disqualified Institutions consented to such matter., and (y) for purposes of voting on any plan of  reorganization, each  Disqualified  Institution party  hereto  hereby agrees (1) not to vote on such plan of reorganization, (2) if such Disqualified Institution does vote on such plan of reorganization notwithstanding the restriction in the foregoing clause (1), such vote will be deemed not to be in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code (or any similar provision in any other applicable laws), and such vote shall not be counted in determining whether the applicable class has accepted or rejected such plan of reorganization in accordance with Section 1126(c) of the Bankruptcy Code (or any  similar  provision in any other  applicable laws) and (3) not to contest any request by any party for a determination by the Bankruptcy Court (or other applicable court of competent jurisdiction) effectuating the foregoing clause (2).         (iv)   The  Global  Administrative  Agent  shall  have  the  right,  and  Harley  hereby expressly  authorizes  the  Global  Administrative  Agent,  to  (A)  post  the  list  of  Disqualified Institutions provided by Harley and any updates thereto from time to time (collectively, the “DQ List”)  on Debt  Domain,  Intralinks,  Syndtrak, ClearPar or a  substantially  similaran Approved Electronic SystemPlatform, including that portion of such platform that is designated                                       79





 






      for “public side” Lenders and/or (B) provide the DQ List to each Lender requesting the same.       The DQ List shall be subject to the requirements of Section 13.4.               (v)    The Global Administrative Agent shall not be responsible or have any liability       for,  or  have  any  duty  to  ascertain,  inquire  into,  monitor  or  enforce,  compliance  with  the       provisions  hereof  relating  to  Disqualified  Institutions.   Without  limiting  the  generality  of  the       foregoing,  the  Global  Administrative  Agent  shall not  (x) be obligated to ascertain, monitor or       inquire  as  to  whether  any  Lender  or  Participant  or  prospective Lender  or  Participant  is  a       Disqualified Institution  or (y) have any liability with respect to or arising out of any assignment       or participation of Loans, or disclosure of confidential information, by any other Person to any        Disqualified  Institution.        (E)  EEAAffected  Financial  Institutions.   Notwithstanding  anything  to  the  contrary  in  this Section 13.3, or elsewhere in this Agreement, the consent of Harley shall be required (such consent not to be unreasonably withheld or delayed) for an assignment to an assignee that is an EEAAffected Financial Institution unless a Default shall have occurred and be continuing at the time of such assignment.        13.4  Confidentiality.  (i)  Subject to Section  13.5,  the  Global  Administrative  Agent  and  the Lenders shall hold confidential (A) all nonpublic information obtained pursuant to the requirements of this Agreement and (B) except as otherwise permitted by Harley, 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; provided that the Global Administrative Agent and the Lenders may each make disclosure (1) to its and its Affiliates’ directors, officers, employees and agents, including accountants, legal counsel and other advisors (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such information and instructed to keep such information confidential and the Global  Administrative  Agent  and  each  Lender,  as  applicable,  shall  be  responsible  for  breach  by  its respective  affiliated  Persons  to  which  the  Global  Administrative  Agent  or  such  Lender  made  such disclosure),  (2)  to  the  extent  requested  by  any  regulatory  authority,  (3)  to  the  extent  required  by applicable laws or regulations or by any subpoena or similar legal process, (4) to any other party to this Agreement,  (5)  in  connection  with  the  exercise  of  any  remedies hereunder  or  any  suit,  action  or proceeding  relating  to  this  Agreement  or  any  other  Loan  Document  or  the  enforcement  of  rights hereunder or thereunder, (6) subject to a written agreement containing provisions substantially the same as  those  of  this  Section,  to  (a)  any  assignee  of  or  Participant  in,  or  any  prospective  assignee  of  or Participant in, any of its rights or obligations under this Agreement (it being understood that the DQ List may be disclosed to any assignee or Participant, or prospective assignee or Participant, in reliance on and subject to the terms of this clause (6)) or (b) any actual or prospective counterparty (or its advisors) to any swap  or  derivative  transaction  relating  to  any  Borrower  and  its  obligations,  (7)  with  the  prior  written consent of Harley, (8) to the extent such information (a) becomes publicly available other than as a result of a breach of this Section or (b) becomes available to the Global Administrative Agent or any Lender on a nonconfidential basis from a source other than the Companies, (9) to any rating agency when required by it, provided that, prior to any disclosure, such rating agency shall undertake in writing to preserve the confidentiality  of  any  such  information  relating  to  the  Companies  received  by  it  from  the  Global Administrative Agent or any Lender or (10) on a confidential basis to the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers with respect to the Loans.   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.                                              80





 






Therefore, in the event of any such breach, HDFS and Harley 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.  (a) Except as otherwise permitted by Article II with respect to Borrowing Notices and Section 6.1.9, 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 (provided that any notification of the DQ List to  the  Global  Administrative  Agent  shall  be  made  via  email  to  the  following  address: JPMDQ_Contact@jpmorgan.com).  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.         (b)   Notices  and  other  communications  to  the  Lenders  hereunder  may  be  delivered  or furnished  by  using Approved  Electronic SystemsPlatforms  pursuant  to  procedures  approved  by  the Global Administrative Agent; provided that the foregoing shall not apply to notices pursuant to Article II unless  otherwise  agreed  by  the  Global  Administrative  Agent  and the  applicable  Lender.   The  Global Administrative Agent or the Companies may, in their respective discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it; provided that approval of such procedures may be limited to particular notices or communications.         Unless  the  Global  Administrative Agent  otherwise  prescribes,  (i) notices  and  other communications  sent  to  an  e-mail  address  shall  be  deemed  received  upon  the  sender’s  receipt  of  an acknowledgement  from  the  intended  recipient  (such  as  by  the  “return  receipt  requested”  function,  as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an  Internet  or  intranet  website  shall  be  deemed  received  upon  the  deemed  receipt  by  the  intended recipient, at its e-mail address as described in the foregoing clause (i), of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii) above, if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice or communication shall be deemed to have been sent at the opening of business on the next business day for the recipient.         (c)   Electronic SystemsPosting of Communications.               (i)    Each Borrower agrees that the Global Administrative Agent may, but shall not be       obligated to, make any Communications (as defined below) available to the other Lenders by       posting  the  Communications  on Debt  Domain,  Intralinks,  Syndtrak, ClearPar or a       substantially similarIntraLinksTM, DebtDomain, SyndTrak, ClearPar or any other similar       electronic  platform  chosen by the Global  Administrative Agent  reasonably and in  good       faith to be its electronic transmission system and used by it for such purpose with respect to       its credit facilities generally (the “Approved Electronic SystemPlatform”).               (ii)   Any Electronic System used by the Global Administrative Agent is provided       “as is” and  “as  available.”  The Agent Parties (as  defined below) do not  warrant the       adequacy of such Electronic Systems and expressly disclaim liability for errors or omissions       in the Communications.  No warranty of any kind, express, implied or statutory, including,                                             82





 






without limitation, any warranty of merchantability, fitness for a particular purpose, non- infringement of third-party rights or freedom from viruses or other code defects, is made by any Agent Party in connection with the Communications or any Electronic System.  In no event shall the Global  Administrative Agent or any of its  Affiliates, and each of such Person’s  respective  officers,  directors,  employees,  attorneys and  agents  (collectively, the “Agent Parties”), have any liability to any Company, any Lender or any other Person or entity for  damages of any  kind,  including,  without  limitation,  direct or  indirect,  special, incidental or  consequential  damages,  losses or  expenses (whether in tort,  contract or otherwise) arising out of any Company’s or the Global Administrative Agent’s transmission of  Communications  through an  Electronic System,  except to the extent  determined by a court of competent jurisdiction by final and nonappealable judgment to have resulted from the gross negligence or willful misconduct of the Global Administrative Agent or the Agent Parties.   “Communications” means,  collectively, any  notice,  demand,  communication, information, document or other  material  provided by or on behalf of any  Company pursuant to any  Loan Document or the  transactions  contemplated  therein which is distributed by the Global  Administrative Agent or any  Lender by means of  electronic communications pursuant to this Section, including through an Electronic System.         (ii)   Although the Approved Electronic Platform and its primary web portal are secured with generally-applicable security procedures and policies implemented or modified by the Global Administrative Agent from time to time (including, as of the Closing Date, a user ID/password authorization system) and the Approved Electronic Platform is secured through a  per-deal  authorization method  whereby each  user may  access the  Approved Electronic Platform only on a deal-by-deal basis, each of the Lenders and the Borrowers acknowledges and agrees that the distribution of material through an electronic medium is not  necessarily  secure, that the Global  Administrative Agent is not  responsible for approving or vetting the representatives or contacts of any Lender that are added to the Approved  Electronic  Platform, and that  there may be  confidentiality and other risks associated with such distribution.  Each of the Lenders and the Borrowers hereby approves distribution of the  Communications  through the  Approved  Electronic  Platform and understands and assumes the risks of such distribution, other than risks arising from the gross  negligence, bad faith or  willful  misconduct of any of the  foregoing parties (as determined by a court of competent jurisdiction by a final and nonappealable judgment).         (iii)  THE    APPROVED       ELECTRONIC       PLATFORM       AND THE COMMUNICATIONS  ARE  PROVIDED “AS IS”  AND “AS  AVAILABLE”. THE APPLICABLE  PARTIES (AS  DEFINED  BELOW) DO NOT  WARRANT THE ACCURACY OR  COMPLETENESS OF THE  COMMUNICATIONS, OR THE ADEQUACY OF THE  APPROVED  ELECTRONIC  PLATFORM  AND  EXPRESSLY DISCLAIM  LIABILITY FOR  ERRORS OR  OMISSIONS IN THE  APPROVED ELECTRONIC  PLATFORM  AND THE  COMMUNICATIONS. NO  WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF  MERCHANTABILITY, FITNESS FOR A  PARTICULAR  PURPOSE, NON- INFRINGEMENT OF THIRD  PARTY  RIGHTS OR  FREEDOM FROM  VIRUSES OR OTHER CODE  DEFECTS, IS  MADE BY THE  APPLICABLE  PARTIES IN CONNECTION WITH THE COMMUNICATIONS OR THE APPROVED ELECTRONIC PLATFORM. IN NO EVENT SHALL THE GLOBAL ADMINISTRATIVE AGENT, ANY ARRANGER,  ANY  DOCUMENTATION AGENT,  ANY  SYNDICATION AGENT, OR ANY OF THEIR           RESPECTIVE     RELATED      PARTIES    (COLLECTIVELY, “APPLICABLE  PARTIES”)  HAVE  ANY  LIABILITY TO  ANY  COMPANY,  ANY LENDER OR  ANY  OTHER PERSON OR ENTITY FOR  DAMAGES OF  ANY  KIND,                                       83





 






      INCLUDING DIRECT OR               INDIRECT,     SPECIAL,     INCIDENTAL OR       CONSEQUENTIAL  DAMAGES,  LOSSES OR EXPENSES  (WHETHER IN TORT,       CONTRACT OR  OTHERWISE)  ARISING OUT OF  ANY  COMPANY’S OR THE       GLOBAL  ADMINISTRATIVE AGENT’S  TRANSMISSION OF  COMMUNICATIONS       THROUGH THE  INTERNET OR THE  APPROVED  ELECTRONIC  PLATFORM,       OTHER THAN DIRECT  ACTUAL  DAMAGES  ARISING FROM                   THE GROSS       NEGLIGENCE, BAD FAITH OR  WILLFUL  MISCONDUCT OF  ANY  APPLICABLE       PARTY (AS  DETERMINED BY A  COURT OF  COMPETENT  JURISDICTION BY A       FINAL AND NONAPPEALABLE JUDGMENT).               (iv)   Each  Lender  agrees that notice to it (as  provided in the next  sentence)       specifying that  Communications  have  been posted to the  Approved  Electronic  Platform       shall constitute effective delivery of the Communications to such Lender for purposes of the       Loan Documents. Each  Lender  agrees (i) to notify the Global  Administrative Agent in       writing (which could be in the form of electronic communication) from time to time of such       Lender’s email address to which the foregoing notice may be sent by electronic transmission       and (ii) that the foregoing notice may be sent to such email address.               (v)    Each of the  Lenders and the  Borrowers  agrees that the Global       Administrative Agent may, but (except as may be required by applicable law) shall not be       obligated to, store the Communications on the Approved Electronic Platform in accordance       with the Global  Administrative  Agent’s  generally  applicable document  retention       procedures and policies.               (vi)   Nothing herein shall prejudice the right of the Global Administrative Agent       or any Lender to give any notice or other communication pursuant to any Loan Document       in any other manner specified in such Loan Document.               (iii)  For  the  avoidance  of  doubt,  nothing  in  this  Section 14.1(c)  shall  affect  any       obligations arising under Section 13.4.         (d)   Reports Due on  Non-Business Days.   If  any  document,  statement,  notice  or  report hereunder or under any other Loan Document shall be due on a day that is not a Business Day, the date of required delivery shall be extended to the next succeeding Business Day.        14.2  Change of  Address.   Any  of  the  Companies,  the  Global  Administrative  Agent  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 Harley and the Global Administrative Agent).                               ARTICLE XV  COUNTERPARTS         15.1  Counterparts; Effectiveness; Electronic Execution.  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.  Except as provided in Section 4.1, this Agreement shall become effective when it shall have been executed by the Global Administrative Agent and when the Global Administrative Agent shall have received counterparts hereof which, when taken together, bear the signatures of each of the other parties hereto, and thereafter shall be binding upon and  inure  to  the  benefit  of  the  parties  hereto  and  their  respective  successors  and  permitted  assigns. Delivery of an executed counterpart of a signature page of this Agreement by telecopy, e-mailed .pdf or any  other  electronic  means  that  reproduces  an  image  of  the  actual  executed  signature  page  shall  be                                             84





 






effective  as  delivery  of  a  manually  executed  counterpart  of  this  Agreement.   The  words  “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to any document to be signed in connection  with  this  Agreement  and  the  transactions  contemplated  hereby  shall  be  deemed  to  include Electronic Signatures, deliveries or the keeping of records in electronic form, each of which shall be of the  same  legal  effect,  validity  or  enforceability  as  a  manually  executed  signature,  physical  delivery thereof  or  the  use  of  a  paper-based  recordkeeping  system,  as  the  case  may  be,  to  the  extent  and  as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws  based  on  the  Uniform  Electronic  Transactions  Act.  Without  limiting the  generality of the foregoing, the Companies hereby (i) agree that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Global  Administrative Agent, the  Lenders and the  Companies,  electronic images of this Agreement or any other Loan Documents (in each case, including with respect to any signature pages thereto)  shall have the same legal effect, validity and enforceability as any paper original, and (ii) waive any argument, defense or right to contest the validity or enforceability of the Loan Documents  based solely on the lack of paper original copies of any  Loan Documents, including with respect to any signature pages thereto.                          [Remainder of This Page Intentionally Blank]                                              85





 






      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, INC.,                                          as a U.S. Borrower                                           By:_________________________________                                              Name:                                              Title:                                           Address:                                           Harley-Davidson, Inc.                                          3700 West Juneau Avenue                                          Milwaukee, Wisconsin 53208                                          Attention: J. Darrell Thomas, Vice President and                                          Treasurer                                          Telephone No.: (414) 343-7863                                          Facsimile No.:  (414) 343-4990                                           with copy to (in the case of a notice of Default):                                           Harley-Davidson, Inc.                                          3700 West Juneau Avenue                                          Milwaukee, Wisconsin 53208                                          Attention: Paul J. Jones, Vice-President, Strategy &                                          SustainabilityKrause, Chief Legal Officer, Chief                                          Compliance Officer and Secretary                                          Telephone No.: (414) 343339-48856063                                          Facsimile No.:  (414) 343-49904189                             Signature Page to 364-Day Credit Agreement                                  Harley-Davidson, Inc. et al





 






                                              SCHEDULE 6.2.2(c)                                                      LIENS             Liens from time to time securing the following industrial revenue bonds and related agreements, instruments, and documents:      $2,273,000 Missouri Development Finance Board BUILD Missouri Revenue Bonds Series 2002 (Harley-Davidson Project), including      extensions, renewals, and replacements thereof.                                                Harley-Davidson, Inc.    JURISDICTION      SECURED PARTY    FILE          FILING       SUMMARY COLLATERAL      ADDITIONAL                                      NUMBER        DATE         DESCRIPTION             FILINGS   Wisconsin         Die-Tech and     160006069223  05/05/16     Certain equipment       N/A                     Engineering, Inc.   Wisconsin         Grand Die Engravers, 160008046422 06/15/16  Certain equipment       N/A                     Inc.   Wisconsin         Die-Tech and     160014237926  10/31/16     Certain equipment       N/A                     Engineering, Inc.   Wisconsin         Die-Tech and     170000136313  01/04/17     Certain equipment       N/A                     Engineering, Inc.   Wisconsin         Die-Tech and     170015023112  11/03/17     Certain equipment       N/A                     Engineering, Inc.   Wisconsin         Die-Tech and     170017439731  12/29/17     Certain equipment       N/A                     Engineering, Inc.   Wisconsin         Die-Tech and     180004543824  04/06/18     Certain equipment       N/A                     Engineering, Inc.   Wisconsin         Die-Tech and     180012228520  09/07/18     Certain equipment       N/A                     Engineering, Inc.   Wisconsin         Die-Tech and     190004670421  04/12/19     Certain equipment       N/A                     Engineering, Inc.   Wisconsin         Die Tech and     2019080900051 08/09/19     Certain equipment       N/A                     Engineering, Inc. 6-1   Wisconsin         Die-Tech and     2020021900089 02/19/20     Certain equipment       N/A                     Engineering, Inc. 3-6                                                       1 4811-8456-1847.2 4811-8456-1847.4





 






                                           Harley-Davidson Credit Corp.    JURISDICTION      SECURED PARTY     FILE         FILING       SUMMARY COLLATERAL       ADDITIONAL                                       NUMBER       DATE         DESCRIPTION              FILINGS   Nevada            Harley-Davidson   2013010510 201 04/24/13 05/27/ (i) All right, title and interest of N/A                     Motorcycle Trust  5013857 -23  15           Debtor in and to the Contracts                     2013 2015 -12;                              listed on the List of Contracts                     Harley-Davidson                             in effect on the closing date                     Customer Funding                            (including without limitation all                     Corp.; and                                  security interests and all rights                     The Bank of New                             to receive certain payments),                     York Mellon Trust                           (ii) all rights of Debtor to                     Company, N.A., as                           payments which are collected,                     Indenture Trustee                           including liquidation proceeds,                                                                 (iii) all rights of Debtor under                                                                 any theft, physical damage,                                                                 credit life, disability or other                                                                 individual insurance policy, any                                                                 debt insurance policy or any                                                                 debt cancellation agreement                                                                 relating to any such Contract,                                                                 an Obligor or a Motorcycle                                                                 securing such Contract, (iv) all                                                                 security interests in each such                                                                 Motorcycle, (v) all documents                                                                 contained in the related                                                                 Contract Files, (vi) all rights to                                                                 certain lockboxes, (vii) all                                                                 rights under certain dealer                                                                 agreements, (viii) all of                                                                 Debtor’s rights to certain                                                                 rebates and other amounts                                                                 relating to insurance policies,                                                        2 4811-8456-1847.2 4811-8456-1847.4





 






  JURISDICTION      SECURED PARTY     FILE         FILING       SUMMARY COLLATERAL       ADDITIONAL                                       NUMBER       DATE         DESCRIPTION              FILINGS                                                                 debt cancellation agreements,                                                                 extended service contracts and                                                                 repair agreements, and (ix) all                                                                 proceeds and products of the                                                                 foregoing.   Nevada            TD Securities Inc., as 2015034785-5 12/16/15 All Debtor’s right, title and Amendment #                     Administrative Agent;                       interest in and to the retail 2016034831-6 filed                     Harley-Davidson                             installment sale contracts, 12/14/16 amending                     Warehouse Funding                           promissory notes and security collateral.                     Corp.                                       agreements and related assets                                                                 and interests in property                                                                 purportedly conveyed to                                                                 Harley-Davidson Warehouse                                                                 Funding Corp pursuant to that                                                                 certain Amended and Restated                                                                 2015 Receivables Sale                                                                 Agreement dated as of                                                                 December 14, 2016.   Nevada            Harley-Davidson   2014009535 201 04/16/14 06/15/ (i) All Debtor’s  right, title and N/A                     Motorcycle Grantor 6016884 -35 16           interest of Debtor in and to the                     Trust 2014 2016 -1A;                        Contracts listed on the List of                      Harley-Davidson                            Contracts in effect on the                     Customer Funding                            closing date (including without                     Corp .; and                                 limitation all security interests                     The Bank of New                             and all rights to receive certain                     York Mellon Trust                           payments created thereunder ),                     Company, N.A., as                           (ii) all rights of Debtor to                     Indenture Trustee                           payments which are collected,                                                                 including liquidation proceeds,                                                                 (iii) all rights of Debtor under                                                                 any theft, physical damage,                                                                 credit life, disability or other                                                                 individual insurance policy, any                                                       3 4811-8456-1847.2 4811-8456-1847.4





 






  JURISDICTION      SECURED PARTY     FILE         FILING       SUMMARY COLLATERAL       ADDITIONAL                                       NUMBER       DATE         DESCRIPTION              FILINGS                                                                 debt insurance policy or any                                                                 debt cancellation agreement                                                                 relating to any such Contract,                                                                 an Obligor or a Motorcycle                                                                 securing such Contract, (iv) all                                                                 security interests in each such                                                                 Motorcycle, (v) all documents                                                                 contained in the related                                                                 Contract Files, (vi) all rights to                                                                 certain lockboxes, (vii) all                                                                 rights under certain dealer                                                                 agreements, (viii) all of                                                                 Debtor’s rights to certain                                                                 rebates and other amounts                                                                 relating to insurance policies,                                                                 debt cancellation agreements,                                                                 extended service contracts and                                                                 repair agreements, and (ix) all                                                                 proceeds and products of the                                                                 foregoing.   Nevada            TD Securities Inc., as 2016034830-4 12/14/16 All Debtor’s right, title and N/A                     Administrative Agent;                       interest in and to the retail                     Harley-Davidson                             installment sale contracts,                     Warehouse Funding                           promissory notes and security                     Corp.                                       agreements and related assets                                                                 and interests in property                                                                 purportedly conveyed to                                                                 Harley-Davidson Warehouse                                                                 Funding Corp pursuant to that                                                                 certain 2016 Receivables Sale                                                                 Agreement dated as of                                                                 December 14, 2016.   Nevada            Harley-Davidson   2015002666 201 01/28/15 5/28/1 (i) All the  right, title and N/A                                                       4 4811-8456-1847.2 4811-8456-1847.4





 






  JURISDICTION      SECURED PARTY     FILE         FILING       SUMMARY COLLATERAL       ADDITIONAL                                       NUMBER       DATE         DESCRIPTION              FILINGS                     Motorcycle Trust  9018856 -54  9            interest of Debtor /Seller  in and                     2015-1;                                     to the Contracts listed on the                     Harley-Davidson                             List of Contracts in effect on                     Customer Funding                            the closing date (including                     Corp.; and                                  without limitation all security                     The Bank of New                             interests and all rights to                     York Mellon Trust                           receive certain                     Company , N.A., as                          payments created thereunder ),                     Indenture Trustee ;                         (ii) all rights of Debtor /Seller                     Harley-Davidson                             to payments which are                     Customer Funding                            collected, including liquidation                     Corp.; Harley-                              proceeds, (iii) all rights of                     Davidson Motorcycle                         Debtor /Seller  under any theft,                     Trust 2019-L                                physical damage, credit life,                                                                 disability or other individual                                                                 insurance policy, any debt                                                                 insurance policy or any debt                                                                 cancellation agreement relating                                                                 to any such Contract, an                                                                 Obligor or a Motorcycle                                                                 securing such Contract, (iv) all                                                                 security interests in each such                                                                 Motorcycle, (v) all documents                                                                 contained in the related                                                                 Contract Files, (vi) all rights to                                                                 certain lockboxes, (vii) all                                                                 rights under certain dealer                                                                 agreements, (viii) all of                                                                 Debtor’s of Debtor/Seller’s                                                                 rights to certain rebates and                                                                 other amounts relating to                                                                 insurance policies, debt                                                                 cancellation agreements,                                                        5 4811-8456-1847.2 4811-8456-1847.4





 






  JURISDICTION      SECURED PARTY     FILE         FILING       SUMMARY COLLATERAL       ADDITIONAL                                       NUMBER       DATE         DESCRIPTION              FILINGS                                                                 extended service contracts and                                                                 repair agreements, and ( ix viii )                                                                 all proceeds and products of                                                                 the foregoing.   Nevada            Harley-Davidson   2015013857 201 05/27/15 6/26/1 (i) All the  right, title and N/A                     Motorcycle Trust  9022667 -39  9            interest of Debtor /Seller  in and                     2015-2;                                     to the Contracts listed on the                     Harley-Davidson                             List of Contracts in effect on                     Customer Funding                            the closing date (including                     Corp.; and                                  without limitation all security                     The Bank of New                             interests and all rights to                     York Mellon Trust                           receive certain                     Company, N.A., as                           payments created thereunder ),                     Indenture Trustee ;                         (ii) all rights of Debtor /Seller                     Harley-Davidson                             to payments which are                     Customer Funding                            collected, including liquidation                     Corp.; Harley-                              proceeds, (iii) all rights of                     Davidson Motorcycle                         Debtor /Seller  under any theft,                     Trust 2019-A                                physical damage, credit life,                                                                 disability or other individual                                                                 insurance policy, any debt                                                                 insurance policy or any debt                                                                 cancellation agreement relating                                                                 to any such Contract, an                                                                 Obligor or a Motorcycle                                                                 securing such Contract, (iv) all                                                                 security interests in each such                                                                 Motorcycle, (v) all documents                                                                 contained in the related                                                                 Contract Files, (vi) all rights to                                                                 certain lockboxes, (vii) all                                                                 rights under certain dealer                                                                 agreements, (viii) all of                                                       6 4811-8456-1847.2 4811-8456-1847.4





 






  JURISDICTION      SECURED PARTY     FILE         FILING       SUMMARY COLLATERAL       ADDITIONAL                                       NUMBER       DATE         DESCRIPTION              FILINGS                                                                 Debtor’s of Debtor/Seller’s                                                                 rights to certain rebates and                                                                 other amounts relating to                                                                 insurance policies, debt                                                                 cancellation agreements,                                                                 extended service contracts and                                                                 repair agreements, and ( ix viii )                                                                 all proceeds and products of                                                                 the foregoing.   Nevada            TD Securities Inc., as 2015034785-5 12/16/15 All Debtor’s right, title and Amendment #                     Administrative Agent;                       interest in and to the retail 2016034831-6 filed                     Harley-Davidson                             installment sale contracts, 12/14/16 amending                     Warehouse Funding                           promissory notes and security collateral.                     Corp.                                       agreements and related assets                                                                 and interests in property                                                                 purportedly conveyed to                                                                 Harley-Davidson Warehouse                                                                 Funding Corp pursuant to that                                                                 certain Amended and Restated                                                                 2015 Receivables Sale                                                                 Agreement dated as of                                                                 December 14, 2016.   Nevada            Harley-Davidson   2016016884 202 06/15/16 1/30/2 (i)  All Debtor’s right, title and N/A                     Motorcycle Grantor 0065229 -50 0            interest of Debtor/Seller  in and                     The Bank of New                             to the Contracts in effect on                     York Mellon Trust                           the closing date (including                     2016- Company,                              without limitation all security                     N. A., as Indenture                         interests created thereunder),                     Trustee ; Harley-                           (ii) all rights of Debtor /Seller                     Davidson Customer                           to payments which are                     Funding Corp                                collected, including liquidation                     .; Harley-Davidson                          proceeds, (iii) all rights of                     Motorcycle Trust                            Debtor /Seller  under any theft,                                                       7 4811-8456-1847.2 4811-8456-1847.4





 






  JURISDICTION      SECURED PARTY     FILE         FILING       SUMMARY COLLATERAL       ADDITIONAL                                       NUMBER       DATE         DESCRIPTION              FILINGS                     2020-A                                      physical damage, credit life,                                                                 disability or other individual                                                                 insurance policy, any debt                                                                 insurance policy or any debt                                                                 cancellation agreement relating                                                                 to any such Contract, an                                                                 Obligor or a Motorcycle                                                                 securing such Contract, (iv) all                                                                 security interests in each such                                                                 Motorcycle, (v) all documents                                                                 contained in the related                                                                 Contract Files, (vi) all rights to                                                                 certain lockboxes, (vii) all                                                                 rights under certain dealer                                                                 agreements, (viii) all of                                                                 Debtor’s of Debtor/Seller’s                                                                 rights to certain rebates and                                                                 other amounts relating to                                                                 insurance policies, debt                                                                 cancellation agreements,                                                                 extended service contracts and                                                                 repair agreements, and ( ix viii )                                                                 all proceeds and products of                                                                 the foregoing.   Nevada            TD Securities Inc., as 2016034830-4 12/14/16 All Debtor’s right, title and N/A                     Administrative Agent;                       interest in and to the retail                     Harley-Davidson                             installment sale contracts,                     Warehouse Funding                           promissory notes and security                     Corp.                                       agreements and related assets                                                                 and interests in property                                                                 purportedly conveyed to                                                                 Harley-Davidson Warehouse                                                                 Funding Corp pursuant to that                                                       8 4811-8456-1847.2 4811-8456-1847.4





 






  JURISDICTION      SECURED PARTY     FILE         FILING       SUMMARY COLLATERAL       ADDITIONAL                                       NUMBER       DATE         DESCRIPTION              FILINGS                                                                 certain 2016 Receivables Sale                                                                 Agreement dated as of                                                                 December 14, 2016.                                                         9 4811-8456-1847.2 4811-8456-1847.4