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<PAGE>
EXHIBIT 10.6
EXECUTION COPY
================================================================================
364-DAY REVOLVING CREDIT AGREEMENT
among
GENERAL MOTORS CORPORATION,
as the Borrower,
THE SEVERAL LENDERS,
from time to time party hereto,
BANK OF AMERICA, N.A.,
as Syndication Agent
and
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent,
Dated as of June 22, 2007
================================================================================
J.P. MORGAN SECURITIES INC.
and
BANC OF AMERICA SECURITIES LLC
as Co-Lead Arrangers and Joint Bookrunners
================================================================================
[CS&M Ref. No. 6701-619]
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
Definitions
SECTION 1.01. Defined
Terms.............................................. 1
SECTION 1.02. Other Definitional
Provisions.............................. 12
ARTICLE II
Amount and Terms of Commitments
SECTION 2.01.
Commitments................................................ 13
SECTION 2.02. Procedure for Borrowing
Loans.............................. 13
SECTION 2.03. Termination or Reduction of
Commitments.................... 14
SECTION 2.04.
Prepayments................................................ 14
SECTION 2.05. Conversion and Continuation
Options........................ 15
SECTION 2.06. Minimum Amounts of Eurodollar
Borrowings................... 16
SECTION 2.07. Repayment of Loans; Evidence of
Debt....................... 16
SECTION 2.08. Interest Rates and Payment
Dates........................... 16
SECTION 2.09.
Fees....................................................... 17
SECTION 2.10. Computation of Interest and
Fees........................... 17
SECTION 2.11. Inability to Determine Interest
Rate....................... 18
SECTION 2.12. Pro Rata Treatment and
Payments............................ 18
SECTION 2.13.
Illegality................................................. 20
SECTION 2.14. Increased
Costs............................................ 20
SECTION 2.15.
Taxes...................................................... 21
SECTION 2.16.
Indemnity.................................................. 24
SECTION 2.17. Notice of Amounts Payable; Relocation of Lending
Office;
Mandatory Assignment.......................................
25
SECTION 2.18. Replacement of
Lenders..................................... 26
ARTICLE III
Representations and Warranties
SECTION 3.01. Financial
Condition........................................ 27
SECTION 3.02. Corporate
Existence........................................ 27
SECTION 3.03. Corporate Power; Authorization; Enforceable
Obligations.... 27
SECTION 3.04. No Legal or Contractual
Bar................................ 27
SECTION 3.05. No Material
Litigation..................................... 28
SECTION 3.06. Federal
Regulations........................................ 28
</TABLE>
i
<PAGE>
<TABLE>
<S> <C>
SECTION 3.07. Investment Company
Act..................................... 28
SECTION 3.08.
ERISA...................................................... 28
SECTION 3.09. No Material
Misstatements.................................. 28
SECTION 3.10. Purpose of
Loans........................................... 28
SECTION 3.11. Pari
Passu................................................. 28
SECTION 3.12. Security
Documents......................................... 29
SECTION 3.13. Title to
Assets............................................ 29
ARTICLE IV
Conditions Precedent
SECTION 4.01. Conditions to
Loans........................................ 29
SECTION 4.02. Conditions to Each
Loan.................................... 30
ARTICLE V
Affirmative Covenants
SECTION 5.01. Financial
Statements....................................... 31
SECTION 5.02.
Certificates............................................... 32
SECTION 5.03.
Notices.................................................... 32
SECTION 5.04. Conduct of Business and Maintenance of
Existence........... 32
SECTION 5.05. Ownership of
Collateral.................................... 32
SECTION 5.06. Additional Collateral,
etc................................. 33
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.......................... 35
SECTION 6.04. Passive Holding Company
Status............................. 36
SECTION 6.05. Withholding of Consent to Certain Actions under
the GMAC
LLC Agreement..............................................
36
</TABLE>
ii
<PAGE>
ARTICLE VII
Events of Default
ARTICLE VIII
The Agent
<TABLE>
<S> <C>
SECTION 8.01.
Appointment................................................ 38
SECTION 8.02. Delegation of
Duties....................................... 39
SECTION 8.03. Exculpatory
Provisions..................................... 39
SECTION 8.04. Reliance by
Agent.......................................... 39
SECTION 8.05. Notice of
Default.......................................... 39
SECTION 8.06. Non-Reliance on Agent and Other
Lenders.................... 40
SECTION 8.07.
Indemnification............................................ 40
SECTION 8.08. Agent in Its Individual
Capacity........................... 41
SECTION 8.09. Successor
Agent............................................ 41
ARTICLE IX
Miscellaneous
SECTION 9.01. Amendments and
Waivers..................................... 41
SECTION 9.02.
Notices.................................................... 42
SECTION 9.03. No Waiver; Cumulative
Remedies............................. 43
SECTION 9.04. Survival of Representations and
Warranties................. 43
SECTION 9.05. Payment of Expenses and
Taxes.............................. 44
SECTION 9.06. Successors and Assigns; Participations and
Assignments..... 44
SECTION 9.07.
Adjustments................................................ 49
SECTION 9.08.
Counterparts............................................... 49
SECTION 9.09.
Severability............................................... 49
SECTION 9.10. GOVERNING
LAW.............................................. 49
SECTION 9.11. Jurisdiction; Consent to Service of
Process................ 49
SECTION 9.12. Releases of
Liens.......................................... 50
SECTION 9.13. USA Patriot
Act............................................ 51
SECTION 9.14. WAIVER OF JURY
TRIAL....................................... 51
</TABLE>
SCHEDULES
2.01 Commitments
3.12 UCC Filing Offices
EXHIBITS
A Form of Assignment and Acceptance
B Form of Promissory Note
iii
<PAGE>
C Form of Tax Compliance Certificate
D Form of Confidentiality Agreement
E Form of Pledge Agreement
F Form of Opinion of Weil, Gotshal & Manges LLP
G Form of Opinion of Martin I. Darvick, Esq.
iv
<PAGE>
364-DAY REVOLVING CREDIT AGREEMENT, dated as of June 22,
2007, among GENERAL MOTORS CORPORATION, a Delaware
corporation
(the "Borrower"); the SEVERAL LENDERS from time to time
party
hereto (the "Lenders"); BANK OF AMERICA, N.A., as
Syndication
Agent; and JPMORGAN CHASE BANK, N.A., as administrative
agent
(the "Agent").
The Borrower has requested that the Lenders establish the
credit
facility provided for herein under which the Borrower may obtain
Loans (such
term and each other capitalized term used and not otherwise
defined herein
having the meaning assigned to it in Article I) in an aggregate
principal amount
of $4,100,000,000. The proceeds of the Loans are to be used for
general
corporate purposes of the Borrower and its Subsidiaries.
The Lenders are willing to establish such credit facility and
make the
Loans 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.
"Additional Holdco": each Subsidiary of the Borrower that, after
the
date hereof, becomes party to the Pledge Agreement and, pursuant
thereto,
pledges any Equity Interest of GMAC owned by such Subsidiary as
Collateral.
"Adjustment Certificate": as defined in Section 2.03.
"Adjustment Event": as defined in Section 2.03.
"Affiliate": with respect to any Person, any other Person
directly or
indirectly
<PAGE>
2
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 364-Day Revolving Credit 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 Loan at any date shall
be the
applicable percentage amount set forth in the table below based
upon the Type of
such Loan and the ratings applicable to the Extended Secured
Commitments on such
date:
<TABLE>
<CAPTION>
RATINGS OF S&P/MOODY'S/FITCH OF THE
LEVEL EXTENDED SECURED COMMITMENTS EURODOLLAR LOANS ABR
LOANS
----- ----------------------------------- ----------------
---------
<S> <C> <C> <C>
I BB+/Ba1/BB+ or higher 1.375% 0.375%
II BB/Ba2/BB 1.600% 0.600%
III BB-/Ba3/BB- 1.750% 0.750%
IV B+/B1/B+ 2.000% 1.000%
V B/B2/B 2.250% 1.250%
VI B-/B3/B- or lower 2.500% 1.500%
</TABLE>
provided, that on the date of and at all times after the
termination of the
Commitments, each of the percentages set forth in the table
above shall be
increased by 0.30%. If the grading scale of any of S&P,
Moody's or Fitch shall
change, or if any such rating agency shall cease to issue
ratings for the
Extended Secured Commitments, then (a) the Agent and the
Borrower shall
negotiate in good faith to amend this definition to reflect such
changed grading
scale or to agree upon a substitute rating agency (and to
correlate the system
of ratings of such substitute rating agency with that of the
rating agency for
which it is substituting) and (b) until such amendment or such
substitute rating
agency is agreed upon, the Applicable Margin shall be determined
on the basis of
the ratings assigned by the other two rating agencies (or the
other rating
agency, if only one agency shall provide such a rating at such
time). At any
time when the Extended Secured Commitments are not rated by any
rating agency,
the Applicable Margin shall be deemed to be the percentage
amounts set forth
with respect to Level VI. In the event of split ratings, the
Level that is next
higher than the Level in which the lowest of such ratings
resides shall apply.
Changes in the Applicable Margin due to changes in ratings shall
become
effective on the date on which S&P, Moody's and/or Fitch
changes the rating it
has issued with respect to the Extended Secured Commitments. In
connection with
each change in the Applicable Margin,
<PAGE>
3
the Agent shall as soon as practicable notify the Borrower and
the Lenders of
the effective date and the amount of such change.
"Applicable Percentage": as to any Lender at any time, the
percentage
which such Lender's Commitment then constitutes of the Total
Commitments or, at
any time after the Commitments shall have expired or terminated,
the percentage
that the aggregate principal amount of such Lender's Loans then
outstanding
constitutes of the aggregate principal amount of all Loans then
outstanding.
"Assignee": as defined in Section 9.06.
"Assignment and Acceptance": as defined in Section 9.06.
"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.
"Available Commitment": as to any Lender at any time, an amount
equal
to the excess, if any, of (a) such Lender's Commitment then in
effect over (b)
such Lender's Loans then outstanding.
"Borrower": as defined in the preamble to this Agreement.
"Borrowing": a group of Loans of a single Type as to which a
single
Interest Period is in effect.
"Business Day": any day that (a) is not a Saturday or Sunday and
(b)
is (i) when used in connection with any ABR Loan, any day on
which banks are
open for business in New York and (ii) 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.
<PAGE>
4
"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.
"Class B Membership Interest": as defined in the GMAC LLC
Agreement,
as in effect on the date hereof.
"Class C Membership Interest": as defined in the GMAC LLC
Agreement,
as in effect on the date hereof.
"Code": the Internal Revenue Code of 1986, as amended from time
to
time.
"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 the Pledge Agreement. As of the date
hereof, the
Collateral includes all the Class B Membership Interests and all
the Equity
Interests in GM Holdco, but does not include any other Equity
Interest of any
other Person.
"Commitment": as to any Lender, the commitment of such Lender to
make
Loans hereunder, expressed as an amount representing the maximum
principal
amount of the Loans 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.
"Commitment Period": the period from and including the Effective
Date
to but excluding the earlier of (a) the Maturity Date and (b)
the date on which
the Commitments are otherwise terminated pursuant to the terms
hereof.
"Common Membership Interest Pledged Percentage": as of any date,
the
percentage of the Common Membership Interests pledged as
Collateral on such
date. In the event that different classes of Common Membership
Interests shall
have different entitlements in the event of a liquidation of
GMAC, such
percentage shall equal the percentage of the proceeds of a
liquidation of GMAC
that the holders of the Common Membership Interests pledged as
Collateral would
be entitled to receive after the satisfaction of all creditors'
claims and the
payment of all amounts due to holders of Preferred Membership
Interests. The
Common Membership Interest Pledged Percentage immediately
following any
Adjustment Event shall be determined taking into account any
additional Common
Membership Interests that shall have been pledged by any Loan
Party as
Collateral in connection with such Adjustment Event.
"Common Membership Interests": the membership interests of GMAC
that
would be accounted for as "Equity" on a balance sheet of GMAC
prepared on a
basis consistent with the GMAC Balance Sheet, other than Class C
Membership
Interests.
"Conduit Lender": any special purpose funding vehicle that (a)
is
organized
<PAGE>
5
under the laws of the United States or any state thereof and (b)
is engaged in
making, purchasing or otherwise investing in commercial loans in
the ordinary
course of its business.
"Continuation Fee": as defined in Section 2.09.
"Contractual Obligation": as to any Person, any provision of
the
organizational documents of such Person or 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.
"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. Solely for
the purposes of Section 2.03(c), any release of Collateral that
is effected
through an amendment, waiver or other modification of any Loan
Document in
accordance with Section 9.01 shall be deemed to be a Disposition
of such
Collateral.
"Dollars" and "$": dollars in lawful currency of the United
States of
America.
"Effective Date": the date on which each of the conditions
precedent
set forth in Section 4.01 shall have been satisfied.
"Equity Interests" means shares of capital stock,
partnership
interests, membership interests in a limited liability company,
beneficial
interests in a trust or other equity ownership interests in a
Person, and any
warrants, options or other rights entitling the holder thereof
to purchase or
acquire any such equity interest.
"ERISA": the Employee Retirement Income Security Act of 1974,
as
amended from time to time.
"Eurodollar Borrowing": a Borrowing 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 the Reuters
LIBOR01 page 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 (or
otherwise on the Reuters 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
<PAGE>
6
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
1/100th of 1%):
(Eurodollar Rate)
Eurodollar Reserve 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.
"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.
"Extended Secured Commitments": as defined in the Existing
Credit
Agreement, as in effect on the date hereof.
"Facility Fee": as defined in Section 2.09.
"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 Payment Date": (a) the third Business Day following the
last day
of each March, June, September and December and (b) the Maturity
Date (or, if
earlier, on the date on which the Commitments shall have been
terminated in
full, other than pursuant to Section 2.03(d)).
<PAGE>
7
"Fees": the Facility Fee, the Upfront Fee and the Continuation
Fees.
"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.
"Fitch": Fitch Ratings and its successors. Fitch Ratings is a
part of
the Fitch Group, a majority-owned subsidiary of Fimalac,
S.A.
"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.
"GM Holdco": GM Finance Co. Holdings LLC, a Delaware limited
liability
company.
"GMAC": GMAC LLC (or any successor thereto).
"GMAC Balance Sheet": the audited balance sheet of GMAC for its
fiscal
year ended December 31, 2006, filed with the Securities and
Exchange Commission
on March 13, 2007.
"GMAC LLC Agreement": the Amended and Restated Limited
Liability
Company Operating Agreement of GMAC, dated as of November 30,
2006 (as amended,
supplemented or otherwise modified from time to time).
"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, without
limitation, 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, (a) to advance
or supply funds for the purchase or payment of any such primary
obligation, (b)
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 (c)
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 (i) an amount equal to the
stated or
determinable amount of the primary obligation in respect of
which such Guarantee
Obligation is made and (ii) the maximum amount for which such
guaranteeing
Person may be liable pursuant to the
<PAGE>
8
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.
"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.
"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 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 week or 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
week or one, two, three or six months thereafter, as selected by
the
Borrower by irrevocable notice to the Agent not less than three
Business
Days prior to the last day of the then current Interest Period
with respect
thereto;
provided that all of the foregoing provisions relating to
Interest Periods are
subject to the following: (i) if any Interest Period would
otherwise end on a
day that is not a Business Day, such Interest Period shall be
extended to the
next succeeding Business Day unless the result of such extension
would be to
carry such Interest Period into another calendar month in which
event such
Interest Period shall end on the immediately preceding Business
Day; and (ii)
any Interest Period that begins on the last Business Day of a
calendar month (or
on a day for which
<PAGE>
9
there is no numerically corresponding day in the calendar month
at the end of
such Interest Period) shall end on the last Business Day of a
calendar month.
Notwithstanding anything to the contrary contained in this
Agreement, no
Interest Period shall be selected by the Borrower which ends on
a date after the
Maturity Date.
"Joint Majority Holders": as defined in the GMAC LLC Agreement,
as in
effect on the date hereof.
"Lender": as defined in the preamble to this Agreement;
collectively,
the "Lenders"; provided that unless the context otherwise
requires, each
reference herein to the Lenders shall be deemed to include any
Conduit Lender.
"Lien": any mortgage, pledge, lien, security interest,
charge,
statutory deemed trust, conditional sale or other title
retention agreement or
other similar encumbrance.
"Loan": a loan made by a Lender to the Borrower pursuant to
this
Agreement.
"Loan Documents": this Agreement, the Security Documents, the
Notes
and any amendment, waiver, supplement or other modification to
any of the
foregoing.
"Loan Parties": the Borrower, GM Holdco, each Additional Holdco,
if
any, and each additional Person, if any, that pledges any asset
as Collateral.
"Majority Lenders": at any time, Lenders holding more than 50%
of the
Commitments or, if the Commitments have terminated or for
purposes of
acceleration pursuant to Article VII, Lenders holding more than
50% of the Loans
then outstanding.
"Manufacturing Subsidiary": any Subsidiary of the Borrower
(i)
substantially all the property of which is located within the
continental United
States of America, (ii) which owns a Principal Domestic
Manufacturing Property
and (iii) in which the Borrower's investment, direct or indirect
and whether in
the form of equity, debt, advances or otherwise, is in excess of
$2,500,000,000
as shown on the books of the Borrower as of the end of the
fiscal year
immediately preceding the date of determination; provided that
"Manufacturing
Subsidiary" shall not include GMAC (or any Subsidiary of GMAC)
or any other
Subsidiary which is principally engaged in leasing or in
financing installment
receivables or otherwise providing financial or insurance
services to the
Borrower or others or which is principally engaged in financing
the Borrower's
operations outside the continental United States of America.
"Material Adverse Effect": a material adverse effect on (a)
the
financial condition of the Borrower and its Subsidiaries taken
as a whole or (b)
the validity or enforceability of this Agreement and any of the
other Loan
Documents or the rights or remedies of the Agent and the Lenders
under the Loan
Documents.
"Maturity Date": the earlier of (a) June 20, 2008, and (b) the
30th
day after the Commitments shall have been terminated pursuant to
Section
2.03(d).
"Minimum Percentage": 20%.
<PAGE>
10
"Moody's": Moody's Investors Service, Inc. and its
successors.
"Non-Excluded Taxes": as defined in Section 2.15.
"Non-Material Change": any amendment to, waiver of or action
under the
GMAC LLC Agreement that results in GM Holdco waiving, forfeiting
or otherwise
losing any voting or approval rights with respect to matters
under the GMAC LLC
Agreement over which GM Holdco possessed voting or approval
rights on the date
hereof, but that is not adverse, or is adverse in only an
immaterial respect, to
the interests of the Lenders as secured parties secured by the
Collateral.
"Non-US Lender": as defined in Section 2.15.
"Note": a promissory note, executed and delivered by the
Borrower with
respect to the Loans, substantially in the form of Exhibit
B.
"Obligations": all obligations of any Loan Party in respect of
any
unpaid Loans and any interest thereon (including interest
accruing after the
maturity of any Loan and interest accruing after the filing of
any petition in
bankruptcy, or the commencement of any insolvency,
reorganization or like
proceeding, relating to any Loan Party, whether or not a claim
for post-filing
or post-petition interest is allowed in such proceeding) and all
other
obligations and liabilities of any Loan Party to the Agent or to
any Lender,
whether direct or indirect, absolute or contingent, due or to
become due, or now
existing or hereafter incurred, which may arise under, out of,
or in connection
with this Agreement, any other Loan Document or any other
document made,
delivered or given in connection herewith or therewith, whether
on account of
principal, interest, reimbursement obligations, fees,
indemnities, costs,
expenses or otherwise.
"Participant": as defined in Section 9.06.
"Person": an individual, partnership, corporation, business
trust,
joint stock company, trust, unincorporated association, joint
venture,
Governmental Authority or other entity of whatever nature.
"Pledge Agreement": the Pledge Agreement, substantially in the
form of
Exhibit E, 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.
"Post-Adjustment Collateral Value": with respect to any
Adjustment
Event, the dollar amount obtained by multiplying (a) the Common
Membership
Interest Pledged Percentage immediately following such
Adjustment Event by (b)
Total Equity immediately following such Adjustment Event.
"Pre-Adjustment Collateral Value": with respect to any
Adjustment
Event, the dollar amount obtained by multiplying (a) the Common
Membership
Interest Pledged Percentage immediately prior to such Adjustment
Event by (b)
Total Equity immediately prior to such Adjustment Event.
"Preferred Membership Interests": the membership interests of
GMAC
that
<PAGE>
11
would not be accounted for as "Equity" on a balance sheet of
GMAC prepared on a
basis consistent with the GMAC Balance Sheet.
"Prime Rate": the rate of interest per annum equal to the prime
rate
publicly announced by the majority (or, if there is not a
majority, the
plurality) of the eleven largest commercial banks chartered
under United States
Federal or State banking laws as their prime rates (or similar
base rates) in
effect at their principal offices. The determination of such
eleven largest
commercial banks shall be based upon deposits as of the prior
year-end, as
reported in the American Banker or such other source as may be
mutually agreed
upon by the Agent and the Borrower.
"Principal Domestic Manufacturing Property": any manufacturing
plant
or facility owned by the Borrower or any Manufacturing
Subsidiary of the
Borrower which is located within the continental United States
of America and,
in the opinion of the Borrower's Board of Directors, is of
material importance
to the total business conducted by the Borrower and its
consolidated affiliates
as an entity.
"Reduction Factor": as defined in Section 2.03.
"Reference Lender": the Agent.
"Register": as defined in Section 9.06.
"Requirement of Law": as to any Person, any law, treaty, rule
or
regulation or determination of an arbitrator or a court or other
Governmental
Authority, in each case applicable to or binding upon such
Person or any of its
property or to which such Person or any of its property is
subject.
"Secured Parties": the Agent, each Lender and each other Person
to
which any Obligations are owed.
"Security Documents": the Pledge Agreement and all other
security
documents delivered to the Agent granting or purporting to grant
a Lien on any
property of any Person to secure the Obligations, including
financing statements
or financing change statements under the applicable Uniform
Commercial Code.
"S&P": Standard & Poor's, a division of The McGraw-Hill
Companies,
Inc., and its successors.
"Significant Subsidiary": at any time, (a) GM Holdco, any
Additional
Holdco and any other Subsidiary of the Borrower that is a Loan
Party, and (b)
any Subsidiary of the Borrower which has at least 10% of the
consolidated assets
of the Borrower and its Subsidiaries at such time as reflected
in the most
recent annual audited consolidated financial statements of the
Borrower.
"Subsidiary": as to any Person (the "parent"), any other Person
of
which at least a majority of the outstanding stock or other
equity interests
having by the terms thereof ordinary voting power to elect a
majority of the
board of directors or comparable governing body of such
<PAGE>
12
Person (irrespective of whether or not at the time stock or
other equity
interests of any other class or classes of such Person shall
have or might have
voting power by reason of the happening of any contingency) is
at the time owned
by the parent, or by one or more Subsidiaries, or by the parent
and one or more
Subsidiaries. Unless otherwise qualified, all references to a
"Subsidiary" or to
"Subsidiaries" in this Agreement shall refer to a Subsidiary or
Subsidiaries of
the Borrower. For the purposes of this Agreement (other than
Sections 3.01, 5.01
and 5.02) and the other Loan Documents, GMAC and its
Subsidiaries shall not be
deemed to be Subsidiaries or Affiliates of the Borrower, and any
references
herein or therein to the subsidiaries or affiliates of the
Borrower shall be to
the Borrower's Subsidiaries or Affiliates, as applicable, other
than GMAC and
its Subsidiaries.
"Super Majority Lenders": at any time, Lenders holding more
than
66.67% of the Commitments or, if the Commitments have
terminated, Lenders
holding more than 66.67% of the Loans then outstanding.
"Threshold Collateral Value": with respect to any Adjustment
Event,
the dollar amount obtained by multiplying the Threshold
Percentage in effect
immediately prior to such Adjustment Event by Total Equity
immediately prior to
such Adjustment Event.
"Threshold Percentage": initially, 40%. Following the occurrence
of
any Adjustment Event resulting from any issuance by GMAC of
Common Membership
Interests, the Threshold Percentage will be adjusted from its
then current
amount by multiplying such then current amount by Total Equity
immediately prior
to such Adjustment Event and dividing the result thereof by
Total Equity
immediately following such Adjustment Event.
"Total Commitments": at any time, the aggregate amount of
all
Commitments then in effect. The amount of the Total Commitments
on the Effective
Date is $4,100,000,000.
"Total Equity": as of any date, the amount shown on the then
most
recently published balance sheet of GMAC as "Total Equity" (or,
if such amount
shall not have been determined in a manner consistent with the
determination of
"Total Equity" in the GMAC Balance Sheet, the amount that would
be obtained
using such a consistent determination), but adjusted to take
into account any
changes in the equity capitalization of GMAC occurring following
the date of
such published balance sheet.
"Transferee": as defined in Section 9.06.
"Type": as to any Loan, its nature as an ABR Loan or a
Eurodollar
Loan.
"Upfront Fee": as defined in Section 2.09.
SECTION 1.02. Other Definitional Provisions. (a) Unless
otherwise
specified therein, all terms defined in this Agreement shall
have the defined
meanings when used in the other Loan Documents or any
certificate or other
document made or delivered pursuant hereto.
(b) As used herein, and any certificate or other document made
or
delivered pursuant hereto, accounting terms relating to the
Borrower and its
Subsidiaries not defined in Section 1.01 and accounting terms
partly defined in
Section 1.01, to the extent not defined, shall
<PAGE>
13
have the respective meanings given to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar
import when used in this Agreement shall refer to this Agreement
as a whole and
not to any particular provision of this Agreement, and Article,
Section,
Schedule and Exhibit references are to the Articles, Sections,
Schedules and
Exhibits of this Agreement, unless otherwise specified.
(d) The meanings given to terms defined herein shall be
equally
applicable to both the singular and plural forms of such
terms.
ARTICLE II
Amount and Terms of Commitments
SECTION 2.01. Commitments. (a) Subject to the terms and
conditions
hereof, each Lender severally agrees to make revolving credit
loans to the
Borrower from time to time during the Commitment Period in an
aggregate
principal amount at any one time outstanding not to exceed the
amount of such
Lender's Commitment; provided that, after giving effect to the
making of any
Borrowing (and after giving effect to the use of proceeds
thereof) (i) the
Available Commitment of any Lender shall not be less than zero
and (ii) the
aggregate principal amount of the Loans then outstanding shall
not exceed the
Total Commitments then in effect. All Loans shall be made and
repaid or prepaid
in Dollars. During the Commitment Period, the Borrower may use
the Commitments
by borrowing, prepaying the Loans in whole or in part, and
reborrowing, all in
accordance with the terms and conditions hereof.
(b) The Loans, together with all accrued and unpaid interest
thereon,
shall mature and be due and payable in full on the Maturity
Date.
(c) Subject to Sections 2.11 and 2.13, the Loans may from time
to time
be (i) Eurodollar Loans, (ii) ABR Loans or (iii) any combination
thereof, as
determined by the Borrower and notified to the Agent in
accordance with Sections
2.02 and 2.05. Notwithstanding the foregoing, no Loan shall be
made as a
Eurodollar Loan after the day that is one week prior to the
Maturity Date. Each
Lender may make or maintain its Loans by or through such
Lender's Applicable
Lending Office.
SECTION 2.02. Procedure for Borrowing Loans. The Borrower may
borrow
Loans under the Commitments during the Commitment Period on any
Business Day.
The Borrower shall give the Agent an irrevocable notice (which
notice must be
received by the Agent prior to 1:00 p.m., New York City time,
(i) three Business
Days prior to the requested borrowing date, if any requested
Borrowing is to be
comprised of Eurodollar Loans, or (ii) one Business Day prior to
the requested
borrowing date, otherwise), specifying for each Borrowing in
such request, (a)
the amount to be borrowed, (b) the requested borrowing date, (c)
whether the
Borrowing is to be of Eurodollar Loans or ABR Loans and (d) if
the requested
Borrowing is to be of Eurodollar Loans, the respective length of
the initial
Interest Period therefor. Each Borrowing shall, subject to the
requirements of
Section 2.06, be in an amount equal to $10,000,000 or a whole
multiple of
$1,000,000 in excess thereof. Upon receipt of any such
<PAGE>
14
notice from the Borrower, the Agent shall promptly notify each
Lender thereof.
Each Lender will make the amount of its Applicable Percentage of
each Borrowing
available to the Agent for the account of the Borrower at the
office of the
Agent most recently designated by it for such purpose by notice
to the Lenders
prior to 12:00 noon, New York City time, on the borrowing date
requested by the
Borrower in funds immediately available to the Agent. Such
Borrowing will then
immediately be made available to the Borrower by the Agent
crediting the account
of the Borrower on the books of such office with the aggregate
of the amounts
made available to the Agent by the Lenders and in like funds as
received by the
Agent.
SECTION 2.03. Termination or Reduction of Commitments. (a)
Unless
previously terminated in accordance with the terms hereof, the
Commitments shall
terminate on the Maturity Date.
(b) Upon not less than five Business Days' notice to the Agent,
the
Borrower shall have the right to permanently terminate the
Commitments (provided
that no Loans are then outstanding) or, from time to time,
permanently reduce
the unutilized portion of the Commitments. Any such reduction
shall be in an
amount equal to $10,000,000 or a whole multiple of $5,000,000 in
excess thereof.
(c) Upon any direct or indirect Disposition by any Loan Party of
any
Common Membership Interests pledged as Collateral, or upon any
issuance of any
Common Membership Interests by GMAC (each an "Adjustment
Event"), the Borrower
shall determine, and shall set forth in a certificate of a
Financial Officer of
the Borrower (each, an "Adjustment Certificate") delivered to
the Agent not
later than 10 Business Days after such Adjustment Event, the
Pre-Adjustment
Collateral Value and the Post-Adjustment Collateral Value
associated with such
Adjustment Event. If the Post-Adjustment Collateral Value shall
be less than the
Threshold Collateral Value, then the Commitments shall be
reduced, effective on
the tenth Business Day following the applicable Adjustment
Event, by an amount
equal to the Reduction Factor multiplied by $102,500,000. For
purposes of the
foregoing: (i) the "Reduction Factor" shall be a number (but not
less than zero)
determined by dividing the Lost Collateral Value by
$15,066,406,062 and
multiplying the result thereof by 100; and (ii) the "Lost
Collateral Value"
shall mean the dollar amount determined by subtracting (A) the
Post-Adjustment
Collateral Value from (B) the lesser of (1) the Pre-Adjustment
Collateral Value
and (2) the Threshold Collateral Value.
(d) The Commitments shall automatically terminate on the first
date on
which the Common Membership Interest Pledged Percentage is less
than either (i)
the Minimum Percentage or (ii) such greater percentage as shall
be the minimum
percentage of the Common Membership Interests required in order
for GM Holdco
(A) to be a Joint Majority Holder and (B) to have approval
rights over matters
under the GMAC LLC Agreement requiring GM Holdco's approval on
the date hereof,
provided, that any loss of such approval rights resulting solely
from an
amendment to, waiver of or action under the GMAC LLC Agreement
that is permitted
by Section 6.05(b)(ii) shall not give rise to a termination of
the Commitments
under this clause (B).
SECTION 2.04. Prepayments. (a) The Borrower may, at any time and
from
time to time, prepay Loans, in whole or in part, without premium
or penalty (but
subject to the provisions of Section 2.16), upon at least one
Business Day's
irrevocable notice to the Agent
<PAGE>
15
(which notice must be received by the Agent prior to 12:00 noon,
New York City
time, on the date upon which such notice is due), specifying (i)
the date and
amount of the prepayment and (ii) the Borrowing or Borrowings
being prepaid and,
if more than one Borrowing is being prepaid, the amount
allocated to each such
Borrowing. Upon receipt of any such notice, the Agent shall
promptly notify each
Lender. If any such notice is given, the amount specified in
such notice shall
be due and payable on the date specified therein, together with
any amounts
payable pursuant to Section 2.16, if applicable. Partial
prepayments of
Borrowings shall be in an aggregate principal amount of
$10,000,000 or a
multiple of $5,000,000 in excess thereof.
(b) If, as a result of any reduction of the Commitments pursuant
to
Section 2.03(b), the aggregate amount of the outstanding Loans
shall exceed the
Total Commitments, the Borrower shall, on the date of such
reduction, prepay
Loans in an aggregate principal amount equal to such excess.
(c) If, as a result of any reduction of the Commitments pursuant
to
Section 2.03(c), the aggregate amount of the outstanding Loans
shall exceed the
Total Commitments, the Borrower shall, within five Business Days
of the date of
delivery of the applicable Adjustment Certificate, prepay Loans
in an aggregate
principal amount equal to such excess.
SECTION 2.05. Conversion and Continuation Options. (a) The
Borrower
may elect from time to time to convert any Eurodollar Loans to
ABR Loans by
giving the Agent at least one Business Day's prior irrevocable
notice of such
election; provided that any such conversion of Eurodollar Loans
may only be made
on the last day of an Interest Period with respect thereto. The
Borrower may
elect from time to time to convert ABR Loans to Eurodollar Loans
by giving the
Agent at least three Business Days' prior irrevocable notice of
such election.
Any such notice of conversion to Eurodollar Loans shall specify
the length of
the initial Interest Period or Interest Periods therefor. Upon
receipt of any
such notice the Agent shall promptly notify each Lender.
Notwithstanding the
foregoing, (i) no ABR Loan may be converted into a Eurodollar
Loan when any
Event of Default under paragraphs (a), (b) or (e) of Article VII
has occurred
and is continuing and the Agent has or the Majority Lenders have
determined that
such conversion is not appropriate and (ii) no ABR Loan may be
converted into a
Eurodollar Loan after the date that is one week prior to the
Maturity Date.
(b) Any Eurodollar Loan may be continued as such upon the
expiration
of the then current Interest Period with respect thereto by the
Borrower giving
notice to the Agent, in accordance with the applicable
provisions of the term
"Interest Period" set forth in Section 1.01, specifying the
length of the next
Interest Period to be applicable to such Loan; provided that no
Eurodollar Loan
may be continued as such (i) when any Event of Default under
paragraphs (a), (b)
or (e) of Article VII has occurred and is continuing and the
Agent has or the
Majority Lenders have determined that such continuation is not
appropriate or
(ii) after the date that is one month prior to the Maturity
Date; provided,
further, that if such continuation is not permitted pursuant to
the preceding
proviso, such Eurodollar Loan shall be automatically converted
to an ABR Loan on
the last day of the then expiring Interest Period. If the
Borrower shall fail to
give any notice required by this paragraph, the affected
Eurodollar Loan shall,
subject to the second proviso of the preceding sentence,
automatically continue
as a Eurodollar Loan having a new Interest Period of the same
duration as the
Interest Period then expired, unless such new Interest Period
would extend
beyond the Maturity Date, in which case such Loan shall be
converted to an
<PAGE>
16
ABR Loan on the last day of the then expiring Interest
Period.
SECTION 2.06. Minimum Amounts of Eurodollar Borrowings. All
borrowings, conversions and continuations of Eurodollar Loans
hereunder and all
selections of Interest Periods hereunder shall be in such
amounts and be made
pursuant to such elections so that, after giving effect thereto,
the aggregate
principal amount of each Eurodollar Borrowing shall be equal to
$50,000,000 or a
whole multiple of $5,000,000 in excess thereof. In no event
shall there be more
than 30 Eurodollar Borrowings outstanding at any time.
SECTION 2.07. Repayment of Loans; Evidence of Debt. (a) The
Borrower
hereby unconditionally promises to pay to the Agent for the
account of each
Lender on the Maturity Date (or such earlier date as the Loans
become due and
payable pursuant to this Agreement) the unpaid principal amount
of each Loan
made by such Lender to the Borrower.
(b) The Borrower hereby further agrees to pay interest in
immediately
available funds at the office of the Agent on the unpaid
principal amount of the
Loans owing by the Borrower from time to time from the date
hereof until payment
in full thereof at the rates per annum, and on the dates, set
forth in Section
2.08.
(c) Each Lender shall maintain an account or accounts evidencing
the
Indebtedness of the Borrower to the Applicable Lending Office of
such Lender
resulting from each Loan made by such lending office of such
Lender from time to
time, including the amounts of principal and interest payable
and paid to such
lending office of such Lender from time to time under this
Agreement.
(d) The Agent shall maintain the Register pursuant to Section
9.06,
and a sub-account for each Lender, in which Register and
sub-accounts (taken
together) shall be recorded (i) the amount of each Loan made
hereunder, the Type
of each Loan and the Interest Period applicable thereto (if such
Loan shall be a
Eurodollar Loan), (ii) the amount of any principal or interest
due and payable
or to become due and payable from the Borrower to each Lender
hereunder and
(iii) the amount of any sum received by the Agent hereunder from
the Borrower
and each Lender's share thereof.
(e) The entries made in the Register and accounts maintained
pursuant
to this Section shall, to the extent permitted by applicable
law, be prima facie
evidence of the existence and amounts of the obligations of the
Borrower therein
recorded; provided, however, that the failure of any Lender or
the Agent to
maintain such account, such Register or such sub-account, as
applicable, or any
error therein, shall not in any manner affect the obligation of
the Borrower to
repay (with applicable interest) the Loans made to the Borrower
in accordance
with the terms of this Agreement.
SECTION 2.08. Interest Rates and Payment Dates. (a) Each ABR
Loan
shall bear interest at a rate per annum equal to the ABR plus
the Applicable
Margin.
(b) Each Eurodollar Loan shall bear interest at a rate per annum
equal
to the Eurodollar Rate for the Interest Period in effect for
such Loan plus the
Applicable Margin.
(c) Interest on the Loans shall be payable in arrears on each
Interest
Payment
<PAGE>
17
Date; provided that interest accruing pursuant to paragraph (d)
of this Section
shall be payable from time to time on demand.
(d) If all or a portion of (i) the principal amount of any Loan,
(ii)
any interest payable thereon or (iii) any Fee or other amount
payable hereunder
shall not be paid when due (whether at the stated maturity, by
acceleration or
otherwise), such overdue amount shall bear interest at a rate
per annum which is
(A) in the case of overdue principal, the rate that would
otherwise be
applicable thereto pursuant to the foregoing provisions of this
Section plus
2.00% or (B) in the case of overdue interest, Fees or other
amounts, the rate
described in paragraph (a) of this Section plus 2.00%, in each
case from the
date of such non-payment until such amount is paid in full
(after as well as
before judgment). For purposes of this Agreement, principal
shall be "overdue"
only if not paid in accordance with the provisions of Section
2.04 or 2.07.
SECTION 2.09. Fees. (a) The Borrower shall pay a facility fee
(the
"Facility Fee") to the Agent for the account of each Lender
which shall accrue
at a rate of 0.30% per annum on the daily amount of the
Commitment of such
Lender, whether such Commitment is drawn or undrawn, from the
Effective Date to
but excluding the date on which such Commitment terminates.
Accrued Facility
Fees shall be payable in arrears on each Fee Payment Date,
commencing on the
first Fee Payment Date following the Effective Date.
(b) The Borrower shall pay to the Agent for the account of each
Lender
(i) on the Effective Date, an upfront fee (the "Upfront Fee")
equal to 0.20% of
the amount of each Lender's Commitment as of such date (whether
drawn or
undrawn) and (ii) on the date that is six-months after the
Effective Date and on
each one-month anniversary of such date until the earlier of the
(A) Maturity
Date and (B) the date on which the Commitments shall have
terminated and all the
Loans shall have been repaid, a continuation fee (each, a
"Continuation Fee")
equal to 0.05% of the amount of each Lender's Commitment (or, if
the Commitments
shall have terminated, such Lender's outstanding Loans) as of
each such date.
SECTION 2.10. Computation of Interest and Fees. (a) Interest on
all
Loans shall be computed on the basis of the actual number of
days elapsed over a
year of 360 days or, in the case of ABR Loans on any date when
the ABR is
determined by reference to the Prime Rate, a year of 365 or 366
days as
appropriate (in each case including the first day but excluding
the last day).
Each determination of an interest rate by the Agent pursuant to
any provision of
this Agreement shall be conclusive and binding on the Borrower
and the Lenders
in the absence of manifest error. All Facility Fees shall be
computed on the
basis of the actual number of days elapsed over a year of 360
days (including
the first day but excluding the last day). The Agent shall, at
any time and from
time to time upon the request of the Borrower, deliver to the
Borrower a
statement showing the quotations used by the Agent in
determining any interest
rate applicable to any Loan pursuant to this Agreement.
(b) Any change in the interest rate on a Loan resulting from a
change
in the ABR or the Eurodollar Reserve Requirements shall become
effective as of
the opening of business on the day on which such change in the
ABR is announced
or such change in the Eurodollar Reserve Requirements becomes
effective, as the
case may be. The Agent shall as soon as practicable notify the
Borrower and the
Lenders of the effective date and the amount of each such change
in interest
rate.
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18
SECTION 2.11. Inability to Determine Interest Rate. If the
Eurodollar
Rate cannot be determined by the Agent in the manner specified
in the definition
of "Eurodollar Rate" in Section 1.01, the Agent shall give
telecopy or
telephonic notice thereof to the Borrower and the Lenders as
soon as practicable
thereafter. Until such time as the Eurodollar Rate can be
determined by the
Agent in the manner specified in the definition of such term, no
further
Eurodollar Loans shall be continued as such at the end of the
then current
Interest Period (other than any Eurodollar Loans previously
requested and with
respect to which the Eurodollar Rate was previously determined),
nor shall the
Borrower have the right to convert ABR Loans to Eurodollar
Loans, and any
affected Loans shall be converted on the last day of the then
current Interest
Period to ABR Loans in accordance with Section 2.05.
SECTION 2.12. Pro Rata Treatment and Payments. (a) The borrowing
of
Loans of each Borrowing hereunder, and each conversion or
continuation of Loans
of any Borrowing, shall be made pro rata among the Lenders
according to their
respective Applicable Percentages.
(b) Each payment (including each prepayment) on account of
principal
of and interest on the Loans of any Borrowing shall be made pro
rata among the
Lenders according to the respective outstanding principal
amounts of their Loans
comprising such Borrowing. Each payment by the Borrower on
account of any Fee
hereunder shall be made pro rata among the Lenders according to
their respective
Applicable Percentages.
(c) Any payments from proceeds of the Collateral during the
continuance of an Event of Default shall be applied in the
following order:
(i) first, to pay incurred and unpaid fees and expenses of
the
Agent under the Loan Documents;
(ii) second, to the Agent, for application by it towards
payment
of interest and fees then due and owing and remaining unpaid
in
respect of the Obligations, pro rata among the Secured
Parties
according to the amount of interest and fees then due and owing
and
remaining unpaid to such Secured Parties;
(iii) third, to the Agent, for application by it towards
payment
of all other amounts then due and owing and remaining unpaid
in
respect of the Obligations, pro rata among the Secured
Parties
according to the amounts of the Obligations then due and owing
and
remaining unpaid to such Secured Parties; and
(iv) fourth, any balance remaining after the Obligations
shall
have been paid in full shall be paid over to the Borrower or
to
whomsoever may be lawfully entitled to receive the same.
provided that, if sufficient funds are not available to fund all
payments to be
made in respect of any of the Obligations described in any of
clause (i), (ii)
or (iii) above, the available funds being applied with respect
to such
Obligations shall be allocated to the payment of such
Obligations ratably, based
on the proportion of the Agent's and each other Secured Party's
interest in such
Obligations.
(d) Any reduction of the Commitments shall be made pro rata
according
to the
<PAGE>
19
Applicable Percentages of the Lenders.
(e) All payments (including prepayments) to be made by the
Borrower
hereunder, whether on account of principal, interest, fees or
otherwise, shall
be made without set-off or counterclaim and shall be made prior
to 1:00 p.m.,
New York City time, on the due date thereof to the Agent, for
the account of the
Lenders, at the Agent's office specified in Section 9.02. All
payments of
principal and interest on any Loan, fees and all other amounts
payable hereunder
shall be made in Dollars in immediately available funds. The
Agent shall
distribute such payments to the Lenders promptly upon receipt in
like funds as
received. If any payment hereunder (other than any payment on
any Eurodollar
Loan) becomes due and payable on a day other than a Business
Day, such payment
shall be extended to the next succeeding Business Day, and, with
respect to
payments of principal, interest thereon shall be payable at the
then applicable
rate during such extension. If any payment on a Eurodollar Loan
becomes due and
payable on a day other than a Business Day, the maturity thereof
shall be
extended to the next succeeding Business Day unless the result
of such extension
would be to extend such payment into another calendar month, in
which event such
payment shall be made on the immediately preceding Business
Day.
(f) Unless the Agent shall have been notified in writing by any
Lender
prior to the deadline for funding a requested Borrowing that
such Lender will
not make the amount that would constitute its relevant
Applicable Percentage of
such Borrowing available to the Agent, the Agent may assume that
such Lender is
making such amount available to the Agent and may, in reliance
upon such
assumption, make available to the Borrower a corresponding
amount. If such
amount is not made available to the Agent by the required time
on the borrowing
date therefor, such Lender shall pay to the Agent, on demand,
such amount with
interest thereon at a rate equal to the daily average Federal
Funds Effective
Rate for the period until such Lender makes such amount
immediately available to
the Agent. A certificate of the Agent submitted to any Lender
with respect to
any amounts owing under this Section shall be conclusive in the
absence of
manifest error. If such Lender's relevant Applicable Percentage
of such
requested Borrowing is not made available to the Agent by such
Lender within
three Business Days of the borrowing date therefor, the Agent
shall be entitled
to recover such amount with interest thereon at the rate
described above, on
demand, from the Borrower.
(g) The Agent agrees to provide the Borrower with a written
invoice of
the amount of (i) any interest payable on any Interest Payment
Date, (ii) any
Fee payable on any Fee Payment Date and (iii) any expense
payable by the
Borrower under this Agreement or any other Loan Document. Such
invoice shall be
provided (A) three Business Days in advance of any Interest
Payment Date in the
case of Loans bearing interest based on the Eurodollar Rate, (B)
on the Interest
Payment Date in the case of Loans based on the ABR, (C) on the
applicable Fee
Payment Date in the case of any Fees and (D) three Business Days
in advance of
any date any expense is due. Failure to deliver any such invoice
shall not
affect the Borrower's payment obligations hereunder; provided
that, with respect
to any interest payable on any Interest Payment Date, any Fee
payable on any Fee
Payment Date or any expense payable by the Borrower on any date
as provided in
any Loan Document, in the event that (1) any invoice is later
determined to have
understated the amount of interest, Fee or expense, as
applicable, due on such
date or (2) the Borrower makes a good faith payment of the
interest, Fee or
expense, as applicable, due on such date prior to receipt of an
invoice as
provided above, and, in each case,
<PAGE>
20
the amount paid is later determined to have been less than the
amount of
interest, Fee or expense, as the case may be, actually due on
such date pursuant
to this Agreement or any other Loan Document, the failure by the
Borrower to
have paid the full amount of interest, Fee or expense, as the
case may be, on
such date shall not constitute a Default or an Event of Default
unless the
Borrower fails to pay the amount of such shortfall within five
Business Days
after written notice from the Agent of the amount thereof.
SECTION 2.13. Illegality. Notwithstanding any other provision
herein,
if the adoption of or any change in any Requirement of Law or in
the
interpretation or application thereof shall make it unlawful for
any Lender to
make or maintain Eurodollar Loans as contemplated by this
Agreement, such Lender
shall give notice thereof to the Agent and the Borrower
describing the relevant
provisions of such Requirement of Law (and, if the Borrower
shall so request,
provide the Borrower with a memorandum or opinion of counsel of
recognized
standing (as selected by such Lender) as to such illegality),
following which
(i) the commitment of such Lender hereunder to make Eurodollar
Loans, continue
such Eurodollar Loans as such and convert ABR Loans to
Eurodollar Loans shall
forthwith be canceled and (ii) such Lender's outstanding
Eurodollar Loans shall
be converted automatically on the respective last days of the
then current
Interest Periods with respect to such Loans (or within such
earlier period as
shall be required by law) to ABR Loans. If any such conversion
of a Eurodollar
Loan occurs on a day which is not the last day of the then
current Interest
Period with respect thereto, the Borrower shall pay to such
Lender such amounts,
if any, as may be required pursuant to Section 2.16.
SECTION 2.14. Increased Costs. (a) If (i) there shall be any
increase
in the cost to any Lender of agreeing to make or making, funding
or maintaining
any Loan or (ii) any reduction in any amount receivable in
respect thereof, and
such increased cost or reduced amount receivable is due to
either (A) the
introduction of or any change in or in the interpretation of any
law or
regulation after the date hereof or (B) the compliance with any
guideline or
request made after the date hereof from any central bank or
other Governmental
Authority (whether or not having the force of law), then
(subject to the
provisions of Section 2.17) the Borrower shall from time to
time, upon demand by
such Lender, pay such Lender additional amounts sufficient to
compensate such
Lender for such increased cost or reduced amount receivable;
provided that no
such additional amounts shall be payable by the Borrower with
respect to, and
this paragraph (a) shall not apply to, any increased cost or
reduced amount due
to the imposition or change in the rate of any tax,
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