Looking for an agreement? Search from over 1 million agreements now.

Term Loan Agreement

This is an actual contract by Motors Liquidation.
Browse the agreement preview below and buy the entire agreement for $35
Search This Document
Exhibit 10.1

EXECUTION COPY


TERM LOAN AGREEMENT

among GENERAL MOTORS CORPORATION,

as the Borrower

SATURN CORPORATION,

as a Guarantor

THE SEVERAL LENDERS

from Time to Time Party Hereto,

CREDIT SUISSE SECURITIES (USA) LLC,

as Syndication Agent,

BARCLAYS BANK PLC, CITIGROUP GLOBAL MARKETS INC.,

DEUTSCHE BANK SECURITIES INC.,

MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED,

and

MORGAN STANLEY SENIOR FUNDING, INC., as Co-Documentation Agents,

and

JPMORGAN CHASE BANK, N.A.,

as Administrative Agent

Dated as of November 29, 2006


J.P. MORGAN SECURITIES INC. and

CREDIT SUISSE SECURITIES (USA) LLC

as Joint Lead Arrangers and Joint Bookrunners


TABLE OF CONTENTS

Page ARTICLE I Definitions

SECTION 1.01. Defined Terms 1

SECTION 1.02. Other Definitional Provisions 11 ARTICLE II Amount and Terms of Commitments

SECTION 2.01. Commitments 12

SECTION 2.02. Procedure for Borrowing Loans 12

SECTION 2.03. Termination of Commitments 12

SECTION 2.04. Prepayments 13

SECTION 2.05. Conversion and Continuation Options 13

SECTION 2.06. Minimum Amounts of Eurodollar Loan Groups 14

SECTION 2.07. Repayment of Loans; Evidence of Debt 14

SECTION 2.08. Amortization of Loans 14

SECTION 2.09. Interest Rates for Loans 15

SECTION 2.10. Computation of Interest 15

SECTION 2.11. Inability to Determine Interest Rate 16

SECTION 2.12. Pro Rata Treatment and Payments 16

SECTION 2.13. Illegality 18

SECTION 2.14. Increased Costs 18

SECTION 2.15. Taxes 19

SECTION 2.16. Indemnity 23

SECTION 2.17. Notice of Amounts Payable; Relocation of Lending Office; Mandatory Assignment 23

SECTION 2.18. Replacement of Lenders 24 ARTICLE III Representations and Warranties

SECTION 3.01. Financial Condition 25

SECTION 3.02. Corporate Existence 25

SECTION 3.03. Corporate Power; Authorization; Enforceable Obligations 25

SECTION 3.04. No Legal or Contractual Bar 26

SECTION 3.05. No Material Litigation 26

SECTION 3.06. Federal Regulations 26

SECTION 3.07. Investment Company Act 26

SECTION 3.08. ERISA 26

SECTION 3.09. No Material Misstatements 26

SECTION 3.10. Purpose of Loans 27

SECTION 3.11. Pari Passu 27

SECTION 3.12. Security Documents 27

SECTION 3.13. Title to Assets 27

SECTION 3.14. Environmental Matters 27 ARTICLE IV Conditions Precedent

SECTION 4.01. Conditions to Loans 28 ARTICLE V Affirmative Covenants

SECTION 5.01. Financial Statements 30

SECTION 5.02. Certificates; Other Information 30

SECTION 5.03. Notices 31

SECTION 5.04. Conduct of Business and Maintenance of Existence 31

SECTION 5.05. Additional Collateral, Fixture Filings, etc 31

SECTION 5.06. Environmental Matters 32 ARTICLE VI Negative Covenants

SECTION 6.01. Merger, Consolidation, etc 33

SECTION 6.02. Limitations on Liens 33

SECTION 6.03. Limitation on Sale and Lease-Back 36

SECTION 6.04. Collateral Value 37 ARTICLE VII Events of Default ARTICLE VIII The Agent

SECTION 8.01. Appointment 39


ii

SECTION 8.02. Delegation of Duties 39

SECTION 8.03. Exculpatory Provisions 39

SECTION 8.04. Reliance by Agent 40

SECTION 8.05. Notice of Default 40

SECTION 8.06. Non-Reliance on Agent and Other Lenders 40

SECTION 8.07. Indemnification 41

SECTION 8.08. Agent in Its Individual Capacity 41

SECTION 8.09. Successor Agent 41 ARTICLE IX The Guarantee

SECTION 9.01. Guarantee 42

SECTION 9.02. No Subrogation 42

SECTION 9.03. Amendments, etc. with Respect to the Obligations 43

SECTION 9.04. Guarantee Absolute and Unconditional 43

SECTION 9.05. Reinstatement 44 ARTICLE X Miscellaneous

SECTION 10.01. Amendments and Waivers 44

SECTION 10.02. Notices 45

SECTION 10.03. No Waiver; Cumulative Remedies 46

SECTION 10.04. Survival of Representations and Warranties 46

SECTION 10.05. Payment of Expenses and Taxes 46

SECTION 10.06. Successors and Assigns; Participations and Assignments 47

SECTION 10.07. Adjustments 51

SECTION 10.08. Counterparts 52

SECTION 10.09. Severability 52

SECTION 10.10. GOVERNING LAW 52

SECTION 10.11. Jurisdiction; Consent to Service of Process 52

SECTION 10.12. Releases of Collateral 53

SECTION 10.13. USA Patriot Act 53

SECTION 10.14. WAIVER OF JURY TRIAL 53

SECTION 10.15. Additional Guarantors 53

SCHEDULES 2.01 Initial Commitments of the Lenders 3.12 List of Financing Statements to be Filed 6.02(b) Existing Liens


iii

EXHIBITS A Form of Assignment and Acceptance B Form of Note C Form of Collateral Agreement D Form of Tax Compliance Certificate E-1 Form of Opinion of Weil, Gotshal & Manges LLP E-2 Form of Opinion of Martin I. Darvick, Esq. F-1 Form of Collateral Value Certificate F-2 Form of Summary Collateral Value Certificate


iv

TERM LOAN AGREEMENT, dated as of November 29, 2006, among GENERAL MOTORS CORPORATION, a Delaware corporation (the " Borrower" ); SATURN CORPORATION, a Delaware corporation, as a Guarantor; the LENDERS party hereto (the " Lenders" ); CREDIT SUISSE SECURITIES (USA) LLC, as Syndication Agent (the " Syndication Agent" ); BARCLAYS BANK PLC, CITIGROUP GLOBAL MARKETS INC., DEUTSCHE BANK SECURITIES INC., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, and MORGAN STANLEY SENIOR FUNDING, INC., as Co-Documentation Agents (the " Co-Documentation Agents" ); and JPMORGAN CHASE BANK, N.A., as Administrative Agent (in such capacity, the " Agent" ).

The Borrower has requested the Lenders to extend credit in the form of Loans (such term and each other capitalized term used and not otherwise defined herein having the meaning assigned to it in Article I) to the Borrower on the Funding Date in Dollars in an aggregate principal amount of $1,500,000,000. The proceeds of the Loans are to be used for general corporate purposes of the Borrower and its Subsidiaries. The Lenders are willing to extend such credit on the terms and subject to the conditions set forth herein. Accordingly, the parties hereto agree as follows:

ARTICLE I

Definitions

SECTION 1.01. Defined Terms. As used in this Agreement, the following terms shall have the following meanings:

" ABR" : for any day, a rate per annum (rounded upwards, if necessary, to the next 1 / 16 of 1%) equal to the greater of (a) the Prime Rate in effect on such day and (b) the Federal Funds Effective Rate in effect on such day plus 1 / 2 of 1%. If for any reason the Agent shall have determined (which determination shall be conclusive absent manifest error) that it is unable to ascertain the Federal Funds Effective Rate for any reason, the ABR shall be determined without regard to clause (b) of the first sentence of this definition until the circumstances giving rise to such inability no longer exist. Any change in the ABR due to a change in the Prime Rate or the Federal Funds Effective Rate shall be effective as of the opening of business on the effective day of such change in the Prime Rate or the Federal Funds Effective Rate, respectively.

" ABR Loans" : Loans bearing interest at a rate determined by reference to the ABR.

" Affiliate" : with respect to any Person, any other Person directly or indirectly controlling or that is controlled by or is under common control with such Person, each officer, director, general partner or joint-venturer of such Person, and each Person that is the beneficial owner of 10% or more of any class of voting stock of such Person. For the purposes of this definition, " control" means the possession of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities, by contract or otherwise.

" Agent" : as defined in the preamble to this Agreement. " Agreement" : this Term Loan Agreement, as amended, supplemented or otherwise modified from time to time. " Applicable Lending Office" : for any Lender, such Lender' s office, branch or Affiliate designated for Eurodollar Loans or ABR Loans, as applicable, as notified to the Agent and the Borrower or as otherwise specified in the Assignment and Acceptance applicable to such Lender, any of which offices may, subject to Section 2.15, be changed by such Lender upon 10 days' prior written notice to the Agent and the Borrower.

" Applicable Margin" : with respect to any ABR Loan, 1.375% per annum, and, with respect to any Eurodollar Loan, 2.375% per annum.

" Applicable Percentage" : as to any Lender at any time, the percentage which such Lender' s Commitment then constitutes of the aggregate Commitments or, at any time after the Funding Date, the percentage that the principal amount of such Lender' s Loans then outstanding constitutes of the aggregate principal amount of the Loans of all Lenders then outstanding.

" Arrangers" : J.P. Morgan Securities Inc. and Credit Suisse Securities (USA) LLC.

" Assignee" : as defined in Section 10.06. " Assignment and Acceptance" : as defined in Section 10.06. " Attributable Indebtedness" : at the time of determination as to any lease, the present value (discounted at the actual rate, if stated, or, if no rate is stated, the implicit rate of interest of such lease transaction as determined by a Financial Officer of the Borrower), calculated using the interval of scheduled rental payments under such lease, of the obligation of the lessee for net rental payments during the remaining term of such lease (excluding any subsequent renewal or other extension options held by the lessee). The term " net rental payments" means, with respect to any lease for any period, the sum of the rental and other payments required to be paid in such period by the lessee thereunder, but not including, however, any amounts required to be paid by such lessee (whether or not designated as rental or additional rental) on account of maintenance and repairs, insurance, taxes, assessments, water rates, indemnities or similar charges required to be paid by such lessee thereunder or any amounts required to be paid by such lessee thereunder contingent upon the amount of sales, earnings or profits or of maintenance and repairs, insurance, taxes, assessments, water rates, indemnities or similar charges; provided that in the case of any lease which is terminable by the lessee upon the payment of a penalty in an amount which is less than the total discounted net rental payments required to be paid from the later of the first date upon which such lease may be so terminated and the date of the determination of net rental payments, " net rental payments" shall include the then current amount of such penalty from the later of such two dates and shall exclude the rental payments relating to the remaining period of the lease commencing with the later of such two dates.

2

" Borrower" : as defined in the preamble to this Agreement. " Business Day" : any day that (i) is not a Saturday or Sunday and (ii) is (A) when used in connection with any ABR Loan, any day on which banks are open for business in New York and (B) when used in connection with any Eurodollar Loan, any day on which dealings in Dollars can occur in the London interbank market and on which banks are open for business in New York.

" Capital Lease Obligations" : as to any Person, the obligations of such Person to pay rent or other amounts under any lease of (or other arrangement conveying the right to use) real or personal property, or a combination thereof, which obligations are required to be classified and accounted for as capital leases on a balance sheet of such Person under GAAP and, for the purposes of this Agreement, the amount of such obligations at any time shall be the capitalized amount thereof at such time determined in accordance with GAAP. " Code" : the Internal Revenue Code of 1986, as amended from time to time. " Co-Documentation Agents" : as defined in the preamble to this Agreement. " Collateral" : all property of the Loan Parties, now owned or hereafter acquired, upon which a Lien is created in favor of the Agent for the benefit of the Secured Parties by any Security Document.

" Collateral Agreement" : the Collateral Agreement, substantially in the form of Exhibit C , to be executed and delivered by the Loan Parties and the Agent, as such agreement may be amended, restated, supplemented or otherwise modified from time to time. " Collateral Value" : as of any date of determination, the aggregate net book value of the Collateral located in the United States of America as of the end of the most recent fiscal quarter of the Borrower, excluding (i) any Collateral Disposed of since the last day of such fiscal quarter, (ii) any Collateral subject to third-party Liens securing Indebtedness (or securing other monetary obligations, if all such third-party Liens securing other monetary obligations, in the aggregate, would materially reduce the value of the Collateral taken as a whole), (iii) all Collateral owned by any Guarantor if any of the events described in paragraph (e) of Article VII shall have occurred and be continuing as of such date with respect to such Guarantor (with references in such paragraph (e) to the Borrower being deemed for purposes of this clause (iii) to be references to such Guarantor), and (iv) any Collateral installed or located on or at any facility or other real property not owned by a Loan Party or subject to any Lien securing Indebtedness (other than Obligations) or any sale and lease-back arrangement, unless (x) the Agent shall have received a landlord waiver, bailee letter or other access agreement reasonably satisfactory to it, executed by each applicable owner of or holder of such Lien on such facility or other real property (or a representative authorized to act on its behalf) on customary terms or (y) the Agent shall have agreed with the Borrower in writing that such a waiver, letter or agreement is not required with respect to such Collateral. Notwithstanding the foregoing, for purposes of determining Collateral Value, Collateral shall not be excluded pursuant to subclause (iv)(x) of


3

the preceding sentence prior to February 1, 2007 (or, as to the Collateral installed or located on or at any particular facilities or other real properties, such later date or dates as the Agent shall agree) so long as the Borrower shall be endeavoring in good faith to obtain the required landlord waivers, bailee letters or other access agreements. " Collateral Value Certificate" : a certificate in substantially the form of, and containing the information called for by, Exhibit F-1 , signed by a Financial Officer of the Borrower and setting forth the Collateral Value as of the last day of the fiscal period covered by the financial statements to which such certificate relates. " Commitment" : as to any Lender, the commitment of such Lender to make a Loan hereunder on the Funding Date, expressed as an amount representing the maximum principal amount of the Loan to be made by such Lender hereunder, as such commitment may be reduced or increased from time to time in accordance with the provisions of this Agreement. The initial amount of each Lender' s Commitment is set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender shall have assumed its Commitment, as applicable.

" Conduit Lender" : any special purpose funding vehicle that (i) is organized under the laws of the United States or any state thereof and (ii) is engaged in making, purchasing or otherwise investing in commercial loans in the ordinary course of its business.

" Contractual Obligation" : as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound. " Default" : any of the events specified in Article VII, whether or not any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied.

" Designated Refinancing" : (a) any prepayment of all or a substantial portion of the Loans with the proceeds of a replacement loan or credit facility of the Borrower or any of its Subsidiaries or (b) any amendment to this Agreement that reduces the Applicable Margin, in the case of each of clause (a) or (b), made or effective on or prior to the first anniversary of the Funding Date.

" Disposition" : with respect to any property, any sale, lease, sale and lease-back, assignment, conveyance, transfer or other disposition thereof. The terms " Dispose" and " Disposed of" shall have correlative meanings. " Dollars" and " $" : dollars in lawful currency of the United States of America. " Environmental Activity" : any past, present or future activity, event or circumstance in respect of a Hazardous Substance, including its presence, storage, use, holding, collection, purchase, accumulation, assessment, generation, manufacture, construction, processing, treatment, stabilization, disposition, handling, disposal or transportation, or its spill, discharge, leak, release, leaching, dispersal or migration into the environment, including the movement through or in the air, soil, surface water or groundwater.


4

" Environmental Laws" : all applicable laws regulating, relating to or imposing liability or standards of conduct concerning protection or quality of the environment, human health, employee health and safety or Hazardous Substances.

" Equipment" : as defined in the Collateral Agreement.

" ERISA" : the Employee Retirement Income Security Act of 1974, as amended from time to time.

" Eurodollar Loan Group" : a Loan Group comprised of Eurodollar Loans.

" Eurodollar Loan" : any Loan bearing interest at a rate determined by reference to the Eurodollar Rate. " Eurodollar Rate" : with respect to an Interest Period pertaining to any Eurodollar Loan, the rate of interest determined on the basis of the rate for deposits in Dollars for a period equal to such Interest Period commencing on the first day of such Interest Period appearing on Page 3750 of the Telerate Screen as of 11:00 a.m., London time, two Business Days prior to the beginning of such Interest Period. In the event that such rate does not appear on such page of the Telerate Screen (or otherwise on the Telerate Service), the " Eurodollar Rate" shall instead be the interest rate per annum (rounded upwards, if necessary, to the next 1 / 16 of 1%) equal to the rate at which deposits in Dollars approximately equal to $10,000,000, and for a maturity comparable to such Interest Period, are offered by the principal London office of the Reference Lender (or, if the Reference Lender does not at the time maintain a London office, the principal London office of any Affiliate of the Reference Lender) for immediately available funds in the London interbank market at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period.

" Eurodollar Reserve Rate" : with respect to each day during each Interest Period pertaining to a Eurodollar Loan, a rate per annum determined for such day in accordance with the following formula (rounded upward to the nearest 1 / 100 th of 1%):


Eurodollar Reserve Rate =

(Eurodollar Rate) (1.00 - Eurodollar Reserve Requirements)

" Eurodollar Reserve Requirements" : for any day as applied to a Eurodollar Loan, the aggregate (without duplication) of the maximum rates (expressed as a decimal fraction) of reserve requirements in effect on such day (including, without limitation, basic, supplemental, marginal and emergency reserves under any regulations of the Board of Governors of the Federal Reserve System or other Governmental Authority having jurisdiction with respect thereto) dealing with reserve requirements prescribed for eurodollar funding (currently referred to as " Eurocurrency liabilities" in Regulation D of such Board) maintained by a member bank of such System.

" Event of Default" : any of the events specified in Article VII; provided that any requirement for the giving of notice, the lapse of time, or both, or any other condition, has been satisfied.


5

" Existing Credit Agreement" : the Amended and Restated Credit Agreement dated as of July 20, 2006, among the Borrower, General Motors of Canada Limited, Saturn Corporation, the lenders party thereto and Citicorp USA, Inc. as administrative agent, as amended, restated, supplemented, replaced or otherwise modified from time to time.

" Federal Funds Effective Rate" : for any day, the weighted average of the rates (rounded upward, if necessary, to the next 1 / 100 of 1%) on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers, as published on the next succeeding Business Day by the Federal Reserve Bank of New York, or, if such rate is not so published for any day which is a Business Day, the average (rounded upward, if necessary, to the next 1 / 100 of 1%) of the quotations for such day of such rates on such transactions received by the Agent from three Federal funds brokers of recognized standing selected by it.

" Fee Letter" : the fee letter among the Borrower, the Arrangers and the Agent, dated the date of this Agreement.

" Financial Officer" : with respect to any Person, the chief financial officer, principal accounting officer, a financial vice president, treasurer, assistant treasurer or controller of such Person. " Fixture" : as defined in the Collateral Agreement.

" Fixture Filing Financing Statement" : as defined in the Collateral Agreement.

" Funding Date" : a date on or before December 15, 2006, selected by the Borrower in accordance with Section 2.02 as the date on which the Loans will be made hereunder. " GAAP" : generally accepted accounting principles in the United States of America as in effect from time to time and as applied by the Borrower in the preparation of its public financial statements.

" GMAC" : GMAC LLC (or any successor thereto) and its Subsidiaries.

" Governmental Authority" : any nation or government, any state, province, municipality or other political subdivision thereof and any entity exercising executive, legislative, judicial, regulatory, taxing or administrative functions of government including the European Central Bank. " Guarantee Obligations" : as to any Person (the " guaranteeing Person" ), if the primary purpose or intent thereof is to provide assurance that the Indebtedness of another Person will be paid or discharged, any obligation of the guaranteeing Person that guarantees or in effect guarantees, or which is given to induce the creation of a separate obligation by another Person (including any bank under any letter of credit) that guarantees or in effect guarantees, any Indebtedness (the " primary obligations" ) of any other third Person (the " primary obligor" ) in any manner, whether directly or indirectly, including any obligation of the guaranteeing Person, whether or not contingent, (i) to advance or supply funds for the purchase or payment of any


6

such primary obligation, (ii) to purchase property, securities or services primarily for the purpose of assuring the owner of any such primary obligation of the ability of the primary obligor to make payment of such primary obligation or (iii) otherwise to assure or hold harmless the owner of any such primary obligation against loss in respect thereof; provided , however , that the term Guarantee Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guarantee Obligation of any guaranteeing 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 Guarantee Obligation is made and (b) the maximum amount for which such guaranteeing Person may be liable pursuant to the terms of the instrument embodying such Guarantee Obligation, unless such primary obligation and the maximum amount for which such guaranteeing Person may be liable are not stated or determinable, in which case the amount of such Guarantee Obligation shall be such guaranteeing Person' s maximum reasonably anticipated liability in respect thereof as determined by the Borrower in good faith.

" Guarantor" : Saturn Corporation and each other direct or indirect wholly-owned domestic Subsidiary of the Borrower that at the option of the Borrower becomes a party to this Agreement, the Collateral Agreement and each other relevant Loan Document, in each case by executing a joinder agreement in form and substance reasonably acceptable to the Agent.

" Hazardous Substance" : (a) all chemicals, materials, contaminants, wastes and substances defined as or included in the definition of " contaminants" , " wastes" , " hazardous wastes" , " hazardous materials" , " hazardous substances" , " extremely hazardous wastes" , " extremely hazardous substances" , " restricted hazardous waste" , " toxic substances" , " toxic pollutants" , or " pollutants" or words of similar import under any applicable Environmental Laws and (b) all other chemicals, materials and substances, exposure to which is prohibited, limited or regulated by any Governmental Authority pursuant to any applicable Environmental Laws.

" Indebtedness" : (a) for purposes of Sections 6.02(a) and 6.03 and paragraph (d) of Article VII, of any Person at any date, the amount outstanding on such date under notes, bonds, debentures or other similar evidences of indebtedness for money borrowed (including, without limitation, indebtedness for borrowed money evidenced by a loan account) and (b) for all other purposes, of any Person at any date, without duplication, (i) all indebtedness of such Person for borrowed money, (ii) all obligations of such Person evidenced by notes, bonds, debentures or other similar instruments, (iii) all Capital Lease Obligations of such Person, (iv) all obligations of such Person, contingent or otherwise, as an account party or applicant under or in respect of acceptances, letters of credit and similar arrangements, (v) all obligations of such Person in respect of securitizations of receivables, (vi) all net obligations of such Person under swap agreements, (vii) all purchase money indebtedness of such Person and (viii) all Guarantee Obligations of such Person in respect of any of the foregoing.

" Indenture" : the Indenture dated as of December 7, 1995 between the Borrower and Citibank, N.A., as Trustee, all supplemental indentures related thereto and any resolutions that have added any covenants to, or modified the covenants contained in, the Indenture.

" Interest Payment Date" : (a) as to any ABR Loan, the third Business Day after the last day of each March, June, September and December to occur while such Loan is


7

outstanding and the date such Loan is paid in full, (b) as to any Eurodollar Loan, the last day of each Interest Period applicable thereto and (c) as to any Eurodollar Loan having an Interest Period longer than three months, each day which is three months after the first day of such Interest Period; provided that, in addition to the foregoing, each of (i) the date upon which the Loans have been paid in full and (ii) the Maturity Date shall be deemed to be an " Interest Payment Date" with respect to any interest which is then accrued hereunder. " Interest Period" : with respect to any Eurodollar Loan:

(a) initially, the period commencing on the borrowing or conversion date, as the case may be, with respect to such Eurodollar Loan and ending one, two, three or six months thereafter, as selected by the Borrower in its notice of borrowing or notice of conversion, as the case may be, given with respect thereto; and

(b) thereafter, each period commencing on the last day of the next preceding Interest Period applicable to such Eurodollar Loan and ending one, two, three or six months thereafter, as selected by the Borrower by irrevocable notice to the Agent not less than three Business Days prio
-- End of Preview --
Home| About Us| FAQ| Subscription | Contact Us |