EX-10.1






FIRST AMENDMENT AND CONSENT




     THIS AMENDMENT AND CONSENT, dated as of February 11, 2009 (this “Amendment”), to the
Amended and Restated Credit Agreement, dated as of July 20, 2006, (the “Credit Agreement”),
among General Motors Corporation (“GM”), General Motors of Canada Limited (“GM
Canada”), Saturn Corporation, Citicorp USA, Inc., as administrative agent for the Lenders
thereunder (in such capacity, the “Agent”), JPMorgan Chase Bank, N.A., as syndication agent
and the several banks and other financial institutions from time to time parties thereto as lenders
(the “Lenders”).



SECTION 1. DEFINITIONS




     1.1 Defined Terms. Unless otherwise defined herein, capitalized terms which are
defined in the Credit Agreement (as amended hereby) are used herein as therein defined.



SECTION 2. AMENDMENTS TO THE CREDIT AGREEMENT




     2.1 Amendment to Section 1.1 (Defined Terms). Subsection 1.1 of the Credit Agreement
is hereby amended by:



     (a) adding the following new definitions in the appropriate alphabetical order:




“‘Additional Canadian Obligations’: Indebtedness (other than
Indebtedness under any of the Loan Documents) that is secured by
property of GM Canada that constitutes Canadian Collateral;
provided that if such Indebtedness is owed to any Person(s)
which are not Canadian Governmental Authorities or US Governmental
Authorities, such Indebtedness does not have any scheduled payments
of principal prior to the Extended Termination Date.”;




“‘Additional Collateral’: property that becomes subject to a
Lien in favor of the Agent for the benefit of the Secured Lenders
pursuant to subsection 5.5(d) and/or 5.5(e).”;




“‘Additional US Government Creditor’: the holder of any
Additional US Government Debt.”;




“‘Additional US Government Debt’: Indebtedness under any
credit facility (other than the UST Loan Agreement and any Permitted
Refinancing Document) provided to GM or any of its Subsidiaries by
any US Governmental Authority to the extent such credit facility is
secured by any assets securing any obligations under the UST Loan
Documents; provided an agent or trustee for the holders of
such Indebtedness have agreed to be bound by the terms of the
Intercreditor Agreement with respect to such Indebtedness; and
provided further that Additional US Government Debt
shall not include any DIP Financing.”;




“‘Additional US Government Debt Documents’: the agreements,
instruments and other documents executed in connection with the
incurrence of any Additional US Government Debt, including, without



 









 





limitation, any agreements or documents relating to Liens securing
such Additional US Government Debt.”;




“‘Canadian Creditor’: the holder of any Additional Canadian
Obligations.”;




“‘Canadian Creditor Document’: the agreements, instruments
and other documents executed in connection with the incurrence of any
Additional Canadian Obligations, including, without limitation, any
agreements or documents relating to the Liens securing such
Additional Canadian Obligations.”;




“‘Canadian Governmental Authority’: any Governmental
Authority located in Canada and the Export Development Corporation
(Canada).”;




“‘DIP Financing’: as defined in the Intercreditor
Agreement.”;




“‘Early Maturity Date’: a final maturity date on or prior to
the Extended Termination Date with respect to any Subject Debt
Tranche.”;




“‘First Amendment’: the first amendment to this Agreement,
dated as of February 11, 2009.”;




“‘First Amendment Effective Date’: February 11, 2009.”;




“‘Going Concern Provision’: the provision of the PP&E Term
Loan Agreement that requires the delivery of financial statements
without a going concern qualification.”;




“‘Guaranty Document’: as defined in subsection 5.5(e).”;




“‘Individual Property’: as defined in the UST Loan Agreement
but excluding the real properties listed on Schedule 1 hereto.”;




“‘Initial Grace Period’: as defined in Section 7(j).”;




“‘Intellectual Property’: as defined in the UST Loan
Agreement.”;




“‘Intercreditor Agreement’: the intercreditor agreement,
dated as of February 11, 2009, among Citicorp USA, Inc., as agent for
the Bank Priority Secured Parties (as defined therein), Citicorp USA,
Inc., as agent for the Hedge Priority Secured Parties (as defined
therein), the UST Representative (as defined therein) and the
Grantors (as defined therein).”;




“‘Mandatory Prepayment Date’: as defined in subsection
2.8(f).”;




“‘Non-Canadian
Governmental Authority’: any Person who is
not directly or indirectly owned or controlled by one or more
Canadian Governmental Authorities. 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.”;



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“‘Non-US
Governmental Authority’: any Person who is not
directly or indirectly owned or controlled by one or more US
Governmental Authorities. 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.”;




“‘Permitted Refinancing Creditor’: the holder of any
Permitted Refinancing Debt.”;




“‘Permitted Refinancing Debt’: any Indebtedness issued in
exchange for, or the net proceeds of which are used to extend,
refinance, renew, replace, defease, discharge or refund the UST Loans
(a “refinancing”); provided that such Indebtedness
may be in a principal amount greater than the principal amount of the
UST Loans; provided further that (a) the terms of
such Indebtedness are at least as favorable to GM as it would obtain
in a comparable arm’s-length transaction on market terms (as
determined in good faith by GM) and (b) an agent or trustee for the
holders of such Indebtedness have agreed to be bound by the terms of
the Intercreditor Agreement with respect such Indebtedness; and
provided further that Permitted Refinancing Debt
shall not include any DIP Financing.”;




“‘Permitted Refinancing Documents’: the agreements,
instruments and other documents executed in connection with the
incurrence of any Permitted Refinancing Debt, including, without
limitation, any agreements or documents relating to the Liens
securing such Permitted Refinancing Debt.”;




“‘PP&E Term Loan Agreement’: the Term Loan Agreement, dated
as of November 29, 2006, among GM, Saturn, the lenders party thereto,
JPMorgan Chase Bank, N.A., as administrative agent, and the other
agents party thereto, as the same may be amended, supplemented, or
otherwise modified from time to time.”;




“‘Prepayment’: as defined in subsection 6.10.”;




“‘Prepayment Amount’: as defined in the definition of
“Prepayment Percentage.”;




“‘Prepayment Percentage’: with respect to a required
prepayment of Extended Secured Loans pursuant to subsection 6.10, the
product of (i) the amount of the applicable Subject Debt Tranche
proposed to be voluntarily prepaid (the “Prepayment Amount”)
divided by the principal amount outstanding of such Subject Debt
Tranche (prior to giving effect to such prepayment), multiplied by
(ii) 100.




“‘Priming Facility’: as defined in subsection 5.5(d).”;




“‘Restricted Payments’: with respect to any Person,
collectively, all direct or indirect cash dividends or other cash
distributions on, and all cash payments for, the purchase,
redemption, defeasance or retirement or



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other acquisition for value
of, any class of Capital Stock issued by such Person, whether such
securities are now or may hereafter be authorized or outstanding, and
any distribution in respect of any of the foregoing, whether directly
or indirectly.”;




“‘Second Priority Mexican Stock Pledge Agreement’: the pledge
agreement to be executed and delivered by GM in favor of the Agent
for the benefit of the Hedging Secured Parties, with respect to the
pledge by GM of 65% of the Capital Stock of CGM, in substantially the
same form as the Mexican Stock Pledge Agreement, as such agreement
may be amended, restated, supplemented or otherwise modified from
time to time.”;




“‘Second Priority Security Documents’: the collective
reference to the Second Priority Security Agreements and the Second
Priority Mexican Stock Pledge Agreement.”;




“‘Subject Debt Documents’: the UST Loan Documents, Permitted
Refinancing Documents, Additional US Government Debt Documents and
Canadian Creditor Documents.”;




“‘Subject Debt Tranche’: the commitments and provisions
related to extensions of credit made under any Subject Debt Documents
(including any revolving credit facility (whether or not funded)), in
each case that are designated and constitute a separate class of
commitments and/or extensions of credit (including, without
limitation, with respect to voting rights) under such Subject Debt
Documents, as applicable, and, if no such designation is made
thereunder, the commitments and provisions related to all extensions
of credit made under such Subject Debt Documents, as applicable.”;




“‘US Governmental Authority’: any Governmental Authority
located in the United States of America.”;




“‘UST Agent’: the United States Department of the Treasury,
as the initial UST Secured Party, and any successor representative
appointed for the UST Secured Parties.”;




“‘UST Loan Agreement’: the Loan and Security Agreement, dated
as of December 31, 2008, between GM, as borrower, the guarantors
party thereto and the United States Department of the Treasury, as
lender, as the same may from time to time be amended (including,
without limitation, to increase the principal amount thereunder),
modified, supplemented or otherwise refinanced or replaced with
Permitted Refinancing Debt.”;




“‘UST Loan Documents’: collectively, (a) the UST Loan
Agreement and (b) the other agreements, instruments and other
documents executed in connection with the UST Loan Agreement.”;




“‘UST Loans’: the loans made pursuant to the UST Loan
Agreement.”;



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“‘UST-Related IP Filings’: each of the short-form
intellectual property security agreements made by GM or any of its
Subsidiaries in favor of, or for the benefit of, the Agent, for the
benefit of the Lenders and the Hedging Secured Parties, in
substantially the same forms as accepted by the UST Agent for the
first priority liens on the Intellectual Property.”;




“‘UST-Related Mortgage’: each of the mortgages and deeds of
trust made by GM or any of its Subsidiaries in favor of, or for the
benefit of, the Agent, for the benefit of the Lenders and the Hedging
Secured Parties, in substantially the same forms as accepted by the
UST Agent for the first priority mortgages in its favor and subject
to all Permitted Encumbrances (as such term is defined in such
forms).”;




“‘UST-Related Security Agreement’: the guarantee and security
agreement made by GM and certain of its Subsidiaries in favor of the
Agent, for the benefit of the Lenders and the Hedging Secured
Parties, having substantially the same terms as agreed to by the UST
Agent in connection with the guarantee by such Subsidiaries of the
obligations arising under the UST Loan Agreement and the granting by
GM and such Subsidiaries of Liens on the “Facility Collateral” (as
such term is defined in the UST Loan Agreement).”;




“‘UST-Related Security Documents’: the UST-Related Mortgages,
UST-Related IP Filings, the UST-Related Security Agreement and all
other instruments, documents and agreements purporting to grant a
lien on, or security interest in, the Additional Collateral.”;




“‘UST Secured Obligations’: has the meaning assigned to such
term in the Intercreditor Agreement.”; and




“‘UST Secured Parties’: has the meaning assigned to such term
in the Intercreditor Agreement.”;



     (b) deleting the second sentence in the definition of “Canadian Collateral Value” in
its entirety and inserting in lieu thereof the following:




“For purposes of determining the Canadian Collateral Value, Canadian
Collateral shall be deemed to exclude any Canadian Collateral subject
to third-party liens or statutory deemed trusts securing
Indebtedness, or securing other monetary obligations, if all such
third-party liens or statutory deemed trusts securing other monetary
obligations, in the aggregate, would materially reduce the value of
the Canadian Collateral taken as a whole; provided that
Canadian Collateral shall not be excluded (and the Canadian
Collateral Value shall not be affected) as a consequence of any Liens
permitted by subsection 6.2(b)(xvii).”;



     (c) deleting the period at the end of the definition of “Collateral” and inserting in
lieu thereof the following:




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”; provided that for all purposes hereunder (other than
subsections 10.13 and 10.14), including, without limitation, for the
purposes of subsection 10.1A, “Collateral” shall exclude any
Additional Collateral.”;



     (d) inserting as a new sentence at the end of the definition of “Eurodollar Rate” the
following:




“Notwithstanding the foregoing, at no time shall the “Eurodollar
Rate” be a rate that is less than 2.00% per annum.”;



     (e) deleting the definition of “Loan Documents” in its entirety and inserting in lieu
thereof the following:




“this Agreement, the First Amendment, the Security Documents, the
Intercreditor Agreement, any intercreditor agreement entered into by
the Agent, any Canadian Creditor or any agent for any Canadian
Creditors, any intercreditor agreement entered into in connection
with the incurrence of any Permitted Refinancing Debt, any
intercreditor agreement entered into pursuant to subsection 5.5(d),
the Notes and any amendment, waiver, supplement or other modification
to any of the foregoing.”;



     (f) deleting the definition of “Loan Parties” in its entirety and inserting in lieu
thereof the following:




“each of GM, GM Canada and their respective Subsidiaries that are
party to a Loan Document.”;



     (g) deleting the definition of “Security Documents” in its entirety and inserting in
lieu thereof the following:




“the collective reference to the Canadian Security Documents, the US
Security Documents, the Mexican Stock Pledge Agreement, the Second
Priority Mexican Stock Pledge Agreement and the UST-Related Security
Documents.”;



     (h) deleting the second sentence in the definition of “US Collateral Value” in its
entirety and inserting in lieu thereof the following:




“For purposes of determining the US Collateral Value, US Collateral
shall be deemed to exclude any US 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 US Collateral
taken as a whole; provided that US Collateral shall not be
excluded (and the US Collateral Value shall not be affected) as a
consequence of any Liens permitted by subsection 6.2(b)(xvi).”; and



     (i) deleting the period at the end of the definition of “US Security Documents” and
inserting in lieu thereof of the following:



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”; provided that for all purposes hereunder, “US Security
Documents” shall not include any UST-Related Security Documents.”.



     2.2 Amendment to Subsection 2.8 (Prepayments). Subsection 2.8 is hereby amended by
inserting at the end thereof new subsection 2.8(f) as follows:




“(f) If (i) (x) the UST Loan Documents are amended to shorten the
final maturity date of any Subject Debt Tranche under the UST Loan
Documents to a date which is an Early Maturity Date or (y) any
Subject Debt Tranche under any Additional US Government Debt
Documents or under any Permitted Refinancing Documents shall have a
final maturity date which is an Early Maturity Date, and (ii) in the
case of each of sub-clauses (x) and (y) in clause (i) above, on a
date which is 30 days prior to any such Early Maturity Date with
respect to such Subject Debt Tranche (each a “Mandatory
Prepayment Date”), more than 50% of such Subject Debt Tranche is
held by Person(s) which are in each case, both a Non-US Governmental
Authority and a Non-Canadian Governmental Authority then, on any such Mandatory
Prepayment Date, GM shall, or shall cause GM Canada to, promptly, and
in any event no later than such Early Maturity Date, (x) ratably
prepay the US Secured Loans and/or Canadian/US Secured Loans made to
GM or GM Canada, as applicable, in an aggregate amount equal to the
principal amount of such Subject Debt Tranche due on such Early
Maturity Date (or, to the extent required by Section 2.8(e), cash
collateralize the L/C Obligations issued on behalf of GM or GM
Canada, as applicable, on such Mandatory Prepayment Date), and (y)
permanently reduce the Commitments under the applicable Tranche by
the amount of such prepayment or cash collateralization.”



     2.3 Amendment to Subsection 2.12A (Interest Rates and Payment Dates for Extended Secured
Loans). Subsection 2.12A is hereby amended by:



     (a) deleting clause (e) thereof in its entirety and inserting in lieu thereof the following:




“(e) The “Applicable Margin” with respect to Extended
Secured Loans at any date, subject to the provisions of subsection
2.25, shall be (i) in the case of Eurodollar Loans, 2.500%, and (ii)
in the case of ABR Loans and Canadian Base Rate Loans, 1.500%.”;



     (b) deleting the reference in clause (f)(x) thereof to “2%” and inserting in lieu thereof
“5%”; and



     (c) deleting clause (f)(y) thereof in its entirety and inserting in lieu thereof the
following:




“(y) in the case of overdue interest, facility fee or other amount, a
rate equal to the ABR plus 6.500%.”.



     2.4 Addition of New Subsection 2.25 (Increased Interest Rate). Section 2 of the
Credit Agreement is hereby amended by adding at the end thereof the following new subsection 2.25
as follows:



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“2.25 Increased Interest Rates. If (a)(x) the interest rate
applicable to any Subject Debt Tranche under any Permitted
Refinancing Documents or Additional US Government Debt Documents, at
a time when more than 50% of such Subject Debt Tranche is held by
Person(s) which are, in each case, both a Non-US Governmental
Authority and a Non-Canadian Governmental Authority, is greater than the highest rate
applicable to any Subject Debt Tranche under the UST Loan Documents
immediately prior to the incurrence of such Subject Debt Tranche
under any Permitted Refinancing Documents or Additional US Government
Debt Documents, or (y) the UST Loan Agreement is amended,
supplemented or otherwise modified to increase (or effectively
increase) the interest rate applicable to any Subject Debt Tranche
under the UST Loan Documents at a time when more than 50% of such
Subject Debt Tranche is held by Person(s) which are in each case,
both a Non-US
Governmental Authority and a Non-Canadian Governmental Authority, and
(b) the aggregate principal amount of all Subject Debt Tranches
satisfying sub-clause (x) or (y) in clause (a) above is equal to or
greater than $1,000,000,000, then the interest rates on the Extended
Secured Loans shall be automatically increased so that the Extended
Secured Loans bear interest at a rate equal to the weighted average
interest rate applicable to all Subject Debt Tranches having interest
rates greater than that in effect under the UST Loan Agreement on the
First Amendment Effective Date (calculated assuming that any
revolving credit facility is fully drawn), as determined in good
faith by the Agent in consultation with GM. Upon the effectiveness
of any such increase in the interest rate, the definitions of
“Applicable Margin” shall be deemed to be amended to reflect such
increase.”



     2.5 Amendment to Section 3 (Representations and Warranties). The introductory
paragraph of Section 3 is hereby amended by deleting it in its entirety and inserting in lieu
thereof the following:




“To induce the Agent and the Lenders to enter into this Agreement, to
make Loans and other extensions of credit hereunder, each Loan Party
(other than GM Canada with respect to subsections 3.1 and 3.8 (it
being understood that with respect to all other subsections in this
Section 3, GM Canada is making such representations and warranties
only as to itself and, if applicable, its Subsidiaries)) as to
itself, and GM as to itself and each other Loan Party (other than GM
Canada), hereby represents and warrants to the Agent and each Lender
that:”.



     2.6 Amendment to Subsection 3.12 (Security Documents). Subsection 3.12 is hereby
amended by:



     (a) deleting clause (a) thereof in its entirety and inserting in lieu thereof the following:




“(a) (i) Each of the US Security Agreement and the Mexican Stock
Pledge Agreement is effective to create in favor of the Agent, for
the benefit of the Secured Parties a legal, valid and enforceable
security
interest in the Collateral described therein and proceeds thereof,
(ii) the Canadian Security Agreements are effective to create in
favor of the Agent, for the benefit of the Canadian Secured Parties a
legal, valid and enforceable security interest in the Collateral
described therein and proceeds thereof,



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(iii) the Second Priority
Security Documents are effective to create in favor of the Agent, for
the benefit of the Hedging Secured Parties, a legal, valid and
enforceable security interest in the Collateral described therein and
proceeds thereof and (iv) each of the UST-Related Security Documents
is effective to create in favor of the Agent, for the benefit of each
of the Secured Parties and the Hedging Secured Parties, a legal,
valid and enforceable security interest in the Additional Collateral
described therein and proceeds thereof.”; and



     (b) designating the existing clause (c) thereof as clause (d) and inserting prior thereto the
following new clause (c):




“(c) In the case of Additional Collateral described in the
UST-Related Security Agreement, when financing statements and the
UST-Related IP Filings, in appropriate form, are filed in the
applicable offices of the Secretaries of State of the jurisdictions
of organization of the applicable Loan Parties, the United States
Patent and Trademark Office or the United States Copyright Office, as
applicable, the UST-Related Security Agreement shall constitute a
fully perfected Lien on, and security interest in, all right, title
and interest of the Loan Parties in such Additional Collateral and
the proceeds thereof which can be perfected by the filing of
financing statements, as security for the Total Secured Exposure and
the Hedging Obligations, in each case with the priority specified in
the UST-Related Security Agreement.”.



     2.7 Amendment to Subsection 5.1 (Financial Statements). Subsection 5.1 is hereby
amended by inserting at the end of the parenthetical in clause (a)(i) thereof the phrase “;
provided that the requirement that such reports not include a “going concern” or like
qualification or exception shall not be applicable to such reports provided for the fiscal year
ended December 31, 2008”.



     2.8 Amendment to Subsection 5.5 (Additional Collateral, etc.). Subsection 5.5 of the
Credit Agreement is hereby amended by inserting at the end thereof new clauses (d), (e) and (f) as
follows:




“(d) With respect to any property of GM or any other Loan Party of a
type not constituting Collateral immediately prior to the First
Amendment Effective Date or that becomes Collateral pursuant to
subsection 5.5(a) or (b) hereof but at such time constituting
“Facility Collateral” under the UST Loan Agreement, GM shall, and
shall cause such other Loan Parties to:




(i) on the First Amendment Effective Date, (x) execute and
deliver to the Agent the UST-Related Security Agreement,
granting to the Agent, for the benefit of the Secured Lenders
and the Hedging Secured Parties, a security interest in the
personal property, Intellectual Property and equity interests
described therein and in which GM and/or such Loan Party
purports to
grant to the UST Agent a first priority security interest,
(y) deliver to the Agent financing statements covering such
personal property, Intellectual Property and equity interests
in appropriate form for filing under the Uniform Commercial
Code to perfect



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the security interests created thereby and
(z) deliver to the Agent a certificate of GM, Saturn and each
other Loan Party signing the UST-Related Security Agreement,
in form and substance consistent with the requirements of
subsection 4.1(d);




(ii) not later than 90 days after the First Amendment
Effective Date (or such later date as the Agent shall agree
in its sole discretion), (x) execute and deliver to the
Agent, and cause to be recorded, each of the UST-Related
Mortgages covering each owned Individual Property in each of
the relevant jurisdictions necessary to perfect the Lien of
such UST-Related Mortgage (but only to the extent the first
priority mortgage on such Individual Property was recorded by
the UST Agent (other than in the States of New York and
Florida)), (y) with respect to each Individual Property that
constitutes a leasehold interest for which Individual
Property the UST Agent requires a mortgage to be delivered to
the UST Agent, (A) use commercially reasonable efforts to
obtain all consents required to encumber such Individual
Property that is subject to a mortgage for the benefit of the
UST Secured Parties, including requesting consent for both
Liens simultaneously and sending consent requests to
landlords whose consent has already been sought with respect
to such mortgages benefiting the UST Secured Parties, and (B)
upon obtaining the necessary consents, execute and deliver to
the Agent, and cause to be recorded, each of the UST-Related
Mortgages covering each such Individual Property that
constitutes a leasehold interest in each of the relevant
jurisdictions necessary to perfect the Lien of such
UST-Related Mortgage (but only to the extent the first
priority mortgage on such Individual Property was recorded by
the UST Agent (other than in the States of New York and
Florida)) and (z) pay all recording fees and all stamp taxes,
documentary taxes, intangible taxes and any other recording
taxes payable in connection with the recording of such
UST-Related Mortgages;




(iii) not later than 90 days after the First Amendment
Effective Date (or such later date as the Agent shall agree
in its sole discretion), execute and deliver to the Agent the
UST-Related IP Filings and file such UST-Related IP Filings
with the United States Patent and Trademark Office and/or the
United States Copyright Office, as applicable (to the extent
first priority liens on the Intellectual Property were so
filed by the UST Agent);




(iv) not later than 90 days after the First Amendment
Effective Date (or such later date as the Agent shall agree
in its sole discretion), to the extent that the UST Agent has
perfected its first priority lien on the equity interests of
Foreign Subsidiaries
(as defined in the UST Loan Agreement) of GM or any other
Loan Party in foreign jurisdictions, take actions necessary
to perfect the Lien on such equity interests made in favor
the Agent; and



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(v) not later than 90 days after the First Amendment
Effective Date (or such later date as the Agent shall agree
in its sole discretion), deliver to the Agent a certificate
of each Loan Party executing any UST-Related Security
Document that has not previously delivered a certificate
pursuant to subsection 5.5(d)(i) above, in form and substance
consistent with the requirements of subsection 4.1(d).




Notwithstanding the foregoing but subject to subsection
6.2(a), if applicable, in the event GM or any of its
Subsidiaries incurs Indebtedness, other than the UST Secured
Obligations and any senior secured Indebtedness outstanding
on the First Amendment Effective Date, but including, without
limitation, Indebtedness incurred in connection with a
refinancing or replacement of Indebtedness of GM or such
Subsidiaries outstanding on the First Amendment Effective
Date (other than the UST Secured Obligations or such other
senior secured Indebtedness of GM or any of its
Subsidiaries), which is secured by any Additional Collateral
(a “Priming Facility”), the Agent’s, the other
Secured Parties’ and the Hedging Secured Parties’ Liens on
such Additional Collateral, shall, at GM’s option, be
subordinated to the Liens securing such Priming Facility, so
long as at the time such security interest is granted (x) no
Default has occurred and is continuing, (y) the Agent has
received an intercreditor agreement with the appropriate
parties to the Priming Facility in form and substance
reasonably acceptable to the Agent (it being agreed that an
intercreditor agreement in substantially the same form and
substance as the Intercreditor Agreement shall be acceptable
to the Agent) and (z) if the creditors with respect to such
Priming Facility shall take additional steps to perfect or
protect their respective security interests in the Additional
Collateral beyond what is required by the foregoing
provisions of this subsection 5.5(d), including, without
limitation, entering into additional mortgages, making
additional mortgage recordings, providing title insurance,
surveys, appraisals, consents or estoppels with respect to
real property collateral, taking additional actions to
perfect in foreign jurisdictions or making additional filings
with respect to Intellectual Property, such actions shall
also be taken for the benefit of the Agent and Secured
Lenders hereunder.




(e) To the extent that GM or any of its Subsidiaries executes or
delivers any documents, makes any filing or recording or takes any
other action which purports to grant or perfect a first priority Lien
on additional property in favor of (x) any UST Secured Party to
secure its obligations under the UST Loan Documents, (y) any
Permitted Refinancing Creditor
to secure its obligations under the applicable Permitted Refinancing
Documents or (z) any Additional US Government Creditor to secure its
obligations under the applicable Additional US Government Debt
Documents (including the granting of a guarantee by any Subsidiary
not then a Loan Party in connection with any of the foregoing), such
Person



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shall substantially concurrently therewith take any action
necessary to (A) to the extent not previously granted, grant a
guarantee in favor of the Agent for the benefit of the Secured
Lenders and the Hedging Secured Parties (any agreement evidencing
such a guarantee, a “Guaranty Document”) and (B) grant or
perfect a junior Lien on such property in favor of the Agent for the
benefit of the Secured Lenders and the Hedging Secured Parties.




(f) Notwithstanding anything to the contrary, the actions
contemplated by subsection 5.5(d) and subsection (e) hereof shall not
be required to be taken to the extent that the Agent and GM mutually
agree that the cost of taking such action to obtain perfection in any
jurisdiction is outweighed by the benefit to the Secured Lenders and
the Hedging Secured Parties provided thereby. GM shall reimburse the
Agent for all of its reasonable out-of-pocket costs and expenses
incurred in connection with perfecting its Liens on the Additional
Collateral and any other property referred to in clauses (i), (iii),
(iv) and (v) of subsection 5.5(d) and in subsection 5.5(e) above.”.



     2.9 Other Amendments to Section 5 (Affirmative Covenants). Section 5 of the Credit
Agreement is hereby amended by inserting at the end thereof new subsections 5.7 and 5.8 as follows:




“5.7. Restricted Payments. Make Restricted Payments, and
permit each other Loan Party to make Restricted Payments, only to the
extent that the making of such Restricted Payments are permitted or
consented to under the UST Loan Agreement, each Permitted Refinancing
Document and each Additional US Government Debt Document.




5.8 Notices. (a) Promptly, but in any event within 10 days
thereof, give notice to the Agent of (i) the occurrence of any “Event
of Default”, as defined in the UST Loan Agreement, any Permitted
Refinancing Documents, any Additional US Government Debt Documents,
any Priming Facility or any Canadian Creditor Documents or (ii) any
failure by GM to comply with the Going Concern Provision; and (b)
promptly, but in any event within 15 days thereof, give notice to the
Agent of (i) the occurrence of any “Termination Event”, as defined in
the UST Loan Agreement, any Permitted Refinancing Documents, any
Additional US Government Debt Documents, any Priming Facility or any
Canadian Creditor Documents or (ii) any amendment to or waiver of the
Going Concern Provision; provided that the foregoing
obligations to give notice shall apply to GM Canada only to the
extent it has knowledge of such event.”.



     2.10 Amendment to Subsection 6.1 (Mergers, Consolidations, etc.). Subsection 6.1 of
the Credit Agreement is hereby by deleting it in its entirety and inserting in lieu thereof the
following:




“GM will not, and GM will not permit any other Loan Party to, merge
or consolidate with any other Person or sell or convey all or
substantially all of its assets to any Person unless, in the case of
mergers and consolidations, (a)(i) a Loan Party shall be the
continuing corporation,



12









 







(ii) with respect to a merger between GM
Canada and a Loan Party (other than GM), GM Canada shall be the
continuing corporation and (iii) with respect to a merger between GM
and any other Loan Party, GM shall be the continuing corporation, (b)
immediately before and immediately after giving effect to such merger
or consolidation, no Default or Event of Default shall have occurred
and be continuing and (c) the guarantees provided in Section 9
hereof, the UST-Related Security Agreement and any Guaranty Document
shall be in full force and effect immediately after giving effect to
such merger or consolidation, except in the case of a merger of a
Loan Party into a Person guaranteeing such Loan Party’s Obligations
pursuant to Section 9 hereof, the UST-Related Security Agreement or a
Guaranty Document, to the extent such merger is otherwise permitted
hereunder.”.



     2.11 Amendment to Subsection 6.2 (Limitation on Liens). Subsection 6.2 of the Credit
Agreement is hereby amended by:



     (a) inserting at the end of clause (a) thereof the following:




“Notwithstanding anything herein to the contrary, the restrictions
contemplated by this subsection 6.2(a) shall cease to apply when
either (i) a Lien on any Principal Domestic Manufacturing Property is
granted to secure obligations in connection with any balance sheet
restructuring by GM and any of its creditors or (ii) all
substantially similar restrictions under Indebtedness of GM
outstanding on the First Amendment Effective Date cease to be
applicable and GM has delivered to the Agent a certificate of a
Financial Officer to such effect.”;



     (b) deleting the word “and” at the end of clause (b)(xv) thereof; and



     (c) designating the existing clause (b)(xvi) thereof as clause (b)(xviii) and inserting prior
thereto the following new clauses (b)(xvi) and (b)(xvii):




“(xvi) Liens securing the obligations under the UST Loan Documents,
the Additional US Government Debt Documents and any Permitted
Refinancing Documents; provided that any such Liens upon the
Collateral (x) shall be junior in priority to both the Liens securing
the Total Secured Exposure and the Hedging Obligations and (y) are
subject to the Intercreditor Agreement or an intercreditor agreement
with the Agent in form and substance reasonably acceptable to the
Agent;




“(xvii) Liens securing any Additional Canadian Obligations;
provided that (x) any such Liens upon the Collateral shall be
junior in priority to the Liens securing the Canadian Total Secured
Exposure and (y) the rights in respect of such Liens upon the
Collateral are subject to an intercreditor agreement with the Agent
in form and substance reasonably acceptable to the Agent; and”.



     2.12 Amendment to Subsection 6.4 (Limitations on Dispositions of Collateral).
Subsection 6.4 of the Credit Agreement is hereby amended by deleting the words “any disposition to
any



13









 







Loan Party” and inserting in lieu thereof “any Disposition to any of GM, GM Canada and Saturn”
in clause (e) thereof.



     2.13 Other Amendments to Section 6 (Negative Covenants). Section 6 of the Credit
Agreement is hereby amended by inserting at the end thereof new subsection 6.10 as follows:




“6.10. Prepayments of Permitted Refinancing Debt. GM will
not, and will not permit any Subsidiary to optionally prepay,
repurchase, redeem or otherwise optionally satisfy or defease with
cash any Subject Debt Tranche (a “Prepayment”), if on the
date of such Prepayment more than 50% of such Subject Debt Tranche is
held by Person(s) which are in each case, both a Non-US Governmental
Authority and a Non-Canadian Governmental Authority, unless GM shall, or shall cause GM
Canada to, simultaneously (a) ratably prepay the US Secured Loans
and/or Canadian/US Secured Loans made to GM or GM Canada, as
applicable (or, to the extent required by subsection 2.8(e), cash
collateralize the L/C Obligations issued on behalf of GM or GM
Canada, as applicable) in an amount equal to the lesser of (x) the
Prepayment Amount and (y) an amount equal to the Prepayment
Percentage of the Extended Secured Commitments then in effect, and
(b) permanently reduce the Commitments under the applicable Tranche
by the amount of such prepayment or cash collateralization;
provided that the foregoing requirements shall not apply to
any prepayment of any Subject Debt Tranche that is a revolving
facility so long as the commitments under such facility are not
permanently reduced or terminated as a result of such prepayment.”



     2.14 Amendment to Section 7 (Events of Default). Section 7 of the Credit Agreement is
hereby amended by:



     (a) deleting clause (c) in its entirety and inserting in lieu thereof the following:




“(c) Any Loan Party shall default in the observance or performance of
any other agreement contained in this Agreement or any Security
Document (other than as provided in paragraphs (a) or (b) of this
Section 7) and (i) in the case of any default in the observance or
performance of the covenants in subsections 5.7, 5.8, 6.6, 6.7, 6.8
or 6.10 of this Agreement, such default shall continue unremedied for
a period of five (5) Business Days, and (ii) in the case of any
default in the observance or performance of any other agreement
contained in this Agreement or any Security Document, such default
shall continue unremedied for a period of 30 days after written
notice thereof shall have been given to such Loan Party by the Agent
or the Majority Lenders; or”;



     (b) deleting clause (h) in its entirety and inserting in lieu thereof the following:




“any guarantee contained in (i) Section 9 hereof, (ii) the
UST-Related Security Agreement or (iii) any Guaranty Document shall
cease, for any reason, to be in full force and effect (other than (x)
as a result of a
transaction permitted by subsection 6.1 hereof or (y) with respect to
any guarantee obligation arising under the UST-Related Security
Agreement



14









 







or any Guaranty Document, to the extent that the UST Agent
and each Additional US Government Creditor, as applicable, releases
such guarantee (other than the guarantee from Saturn or GM (except as
permitted by clause (x) of this Section 7(h))) or any Loan Party or
any Subsidiary of a Loan Party shall so assert; or”; and



     (c) inserting the following new clauses (i) and (j) in the appropriate order:




“(i) an “Event of Default” (as defined in the UST Loan Agreement, any
Additional US Government Debt Document, any Permitted Refinancing
Document or any Canadian Creditor Document) shall have occurred and
shall continue for 20 Business Days; or




(j) GM shall fail to comply with the Going Concern Provision and such
failure shall not have been cured or waived by the agent or lenders
under the PP&E Term Loan Agreement within a period of 15 days
following such failure (or such shorter period ending on the date, if
any, on which the agent or the requisite lenders thereunder deliver a
notice of default to GM with respect to the failure to comply with
the Going Concern Provision) (the “Initial Grace Period”),
and after the end of the Initial Grace Period (regardless of whether
such default is waived by the agent or the lenders under the PP&E
Term Loan Agreement after the end of the Initial Grace Period), such
default shall continue for a period of 30 days after the earliest of
written notice from the Agent, the Majority Lenders or the agent or
the requisite lenders under the PP&E Term Loan Agreement;”.



     2.15 Amendment to Subsection 10.13 (Releases of Guarantees and Liens). Subsection
10.13 of the Credit Agreement is hereby amended by inserting at the end thereof a new clause (f) as
follows:




“(f) Notwithstanding anything to the contrary contained herein or in
any other Loan Document, the Agent will, and is hereby irrevocably
authorized by each Lender (without requirement of notice to or
consent of any Lender) to, take any action requested by GM or any
other Loan Party having the effect of releasing any Additional
Collateral or any guarantee of a Loan Party (other than the
guarantees from Saturn or GM (except as otherwise permitted by
another paragraph of this subsection 10.13)), to the extent that no
outstanding UST Secured Obligation is secured by a Lien on such
Additional Collateral or has the benefit of such guarantee and GM so
certifies to the Agent (and the Agent may rely conclusively on any
such certificate, without further inquiry). In no event shall any
agreement by any UST Secured Party to subordinate its first priority
Lien on any Additional Collateral result in an obligation on the part
of the Agent under this subsection 10.13 to release its junior Lien
on such Additional Collateral, which junior Lien shall continue
unimpaired notwithstanding the agreement by such UST Secured Party to
subordinate its first priority Lien on such Additional Collateral.”.



15









 





SECTION 3. MISCELLANEOUS




     3.1 Consent. The Lenders hereby (i) consent to the execution and delivery by the
Agent of an intercreditor agreement with the United States Department of the Treasury substantially
on the terms attached hereto as Exhibit A (the “Intercreditor Agreement”; and together with
this Amendment, the “Amendment Documents”) and (ii) authorize the Agent to enter into (x)
any UST-Related Security Documents and (y) any intercreditor agreement contemplated by this
Amendment with the holders of any Additional Canadian Obligations or any Priming Facility.



     3.2 Conditions Precedent; Effectiveness. This Amendment shall become effective on the
date that: (i) the Agent shall have received executed signature pages to this Amendment from
Lenders constituting the Majority US Secured Lenders and the Majority Canadian/US Secured Lenders,
(ii) the Agent shall have received executed copies of the Intercreditor Agreement, (iii) the Agent
shall have received the documents required by subsection 5.5(d)(i) of the Credit Agreement (as
amended by the First Amendment), (iv) the Lenders shall have received copies of the executed UST
Loan Agreement and all loan and security documents related thereto (but excluding all schedules and
exhibits thereto that are not publicly available other than those relating to the Additional
Collateral) and (v) each Secured Lender that has provided its written consent to this Amendment on
or prior to 5:00 p.m. EST on the First Amendment Effective Date shall have received an amendment
fee (or the Agent shall have received such fee for the account of such Secured Lender) in an amount
equal to 0.50% of such Secured Lender’s Extended Secured Commitments.



     3.3 Representations and Warranties. Each Loan Party hereby represents and warrants
that, on the date hereof after giving effect to the provisions of this Amendment, (a) each of the
representations and warranties made by any Loan Party in the Credit Agreement, as amended by this
Amendment (other than to the extent enforceability of the default interest rate contemplated by
amended subsection 2.12(f) may be limited by Canadian law), are true and correct in all material
respects on and as of the date hereof as if made on and as of such date, except to the extent such
representations and warranties expressly relate to a particular date, in which case such
representations and warranties were true and correct in all material respects as of such date and
(b) no Default or Event of Default has occurred and is continuing.



     3.4 Continuing Effect of the Loan Documents. This Amendment shall not constitute an
amendment of any other provisions of the Loan Documents not expressly referred to herein and shall
not be construed as a waiver or consent to any further or future action on the part of any Loan
Party that would require the consent of the Lenders or the Agent. Except as expressly amended
hereby, the provisions each of the Loan Documents are and shall remain in full force and effect.



     3.5 Counterparts. This Amendment may be executed by the parties hereto in any number
of separate counterparts (including facsimiled or electronic PDF counterparts), each of which shall
be deemed to be an original, and all of which taken together shall be deemed to constitute one and
the same instrument.



     3.6 Expenses. Each of the Loan Parties agrees to pay or reimburse the Agent for all
of their reasonable out-of-pocket costs and expenses incurred in connection with the preparation,
negotiation and execution of this Amendment, including, without limitation, the reasonable fees and
disbursements of counsel to the Agent.



     3.7 Limited Effect. Except as expressly modified by this Amendment, each of the Loan
Documents are ratified and confirmed and are, and shall continue to be, in full force and effect in
accordance with their respective terms. Each Loan Party acknowledges and agrees that such Loan
Party



16









 







is truly and justly indebted to the Lenders and the Agent for the Obligations, without
defense, counterclaim or offset of any kind, other than as provided in the Loan Documents, and such
Loan Party ratifies and reaffirms the validity, enforceability and binding nature of such
Obligations. GM acknowledges and agrees that nothing in this Amendment shall constitute an
indication of the Lenders’ willingness to consent to any other amendment or waiver of any other
provision of any of the Loan Documents or a waiver of any Default or Event of Default. Nothing
contained in this Amendment or any other Amendment Document shall be construed as a waiver of any
rights the Agent, or any Lender may have to object in any insolvency proceeding under the
Bankruptcy Code or otherwise either (x) to any action taken by any US Governmental Authority or any
other lender or secured party under or in connection with the UST Loan Documents, any Permitted
Refinancing Document or any Additional US Government Debt Document, including the seeking by any
such entity to provide “debtor-in possession” or similar financing or of adequate protection or (y)
to the assertion by any such party of any of its rights and remedies under any UST Loan Document,
any Permitted Refinancing Document or any Additional US Government Debt Document in respect of
obligations under the UST Loan Documents, the Permitted Refinancing Documents or the Additional US
Government Debt Documents, respectively or otherwise; in each case except as provided in the
Intercreditor Agreement. All rights of the Agent and each Lender as a secured creditor in any
proceeding are expressly reserved.



     3.8 GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.



[remainder of the page intentionally left blank]




17









 





     IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed and
delivered by their proper and duly authorized officers as of the day and year first above written.



	 	 	 	 	 
	 	GENERAL MOTORS CORPORATION,

as a Borrower and as a Guarantor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	GENERAL MOTORS OF CANADA LIMITED,

as a Borrower

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	SATURN CORPORATION,

as a Guarantor

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	CITICORP USA, INC.,

as Agent and as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



	 	 	 	 	 
	 	[INSERT LENDER NAME], as a Lender

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 



 









 






	 	 	 	 	 



EXHIBIT A




INTERCREDITOR AGREEMENT




 









 





SCHEDULE 1




EXCLUDED REAL PROPERTIES




Tyco Property

312, 313 and 314 Constitution

Menlo Park, CA




Gilroy Dealership

6720 Bearcat Court

Gilroy, CA




Indianapolis Dealership

7250 N. Keystone Avenue

Indianapolis, IN




Kendall Chevrolet Dealership

8455 South Dixie Highway

Miami, FL




GM Powertrain Saginaw

77 West Center Street

Saginaw, MI





Additional real properties owned by GM or any other Loan Party which (i) are located in a flood
zone and (ii) are not vacant and/or undeveloped land.