EX-10.1






Exhibit 10.1




EXECUTION VERSION




 





LOAN AND SECURITY AGREEMENT




By and Between




The Borrower Listed on Appendix A




as Borrower




and




THE UNITED STATES DEPARTMENT OF THE TREASURY




as Lender




Dated as of December 31, 2008




 



*** Portions
of this exhibit have been omitted under a request for confidential
treatment pursuant to Rule 24b-2 of the Securities and Exchange Act of
1934 and filed separately with the United States Securities and
Exchange Commission.




 









 





TABLE OF CONTENTS




	 	 	 	 	 
	 	 	Page	 
	SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS
	 	 	1	 
	1.01 Certain Defined Terms
	 	 	1	 
	1.02 Interpretation
	 	 	21	 
	1.03 Accounting Terms and Determinations
	 	 	22	 
	 
	 	 	 	 
	SECTION 2. ADVANCES, NOTE AND PAYMENTS
	 	 	22	 
	2.01 Advances
	 	 	22	 
	2.02 The Note
	 	 	22	 
	2.03 Procedure for Borrowing
	 	 	22	 
	2.04 Limitation on Types of Advances; Illegality
	 	 	23	 
	2.05 Repayment of the Advances; Interest
	 	 	23	 
	2.06 Optional Prepayments
	 	 	24	 
	2.07 Mandatory Prepayments
	 	 	24	 
	2.08 Requirements of Law
	 	 	25	 
	2.09 Use of Proceeds
	 	 	25	 
	 
	 	 	 	 
	SECTION 3. PAYMENTS; COMPUTATIONS; TAXES
	 	 	26	 
	3.01 Payments
	 	 	26	 
	3.02 Computations
	 	 	26	 
	3.03 US Taxes
	 	 	26	 
	 
	 	 	 	 
	SECTION 4. COLLATERAL SECURITY
	 	 	29	 
	4.01 Collateral; Security Interest
	 	 	29	 
	4.02 UCC Matters; Further Assurances
	 	 	30	 
	4.03 Changes in Locations, Name, etc
	 	 	30	 
	4.04 Lender’s Appointment as Attorney-in-Fact
	 	 	31	 
	4.05 Performance by the Lender of the Borrower’s Obligations
	 	 	32	 
	4.06 Proceeds
	 	 	32	 
	4.07 Remedies
	 	 	32	 
	4.08 Continuing Liability of the Borrower
	 	 	33	 
	4.09 Limitation on Duties Regarding Preservation of Facility Collateral
	 	 	33	 
	4.10 Powers Coupled with an Interest
	 	 	34	 
	4.11 Release of Security Interest Upon Satisfaction of all Obligations
	 	 	34	 
	4.12 Partial Release of Facility Collateral
	 	 	34	 
	 
	 	 	 	 
	SECTION 5. CONDITIONS PRECEDENT
	 	 	35	 
	5.01 Initial Advance
	 	 	35	 
	5.02 Initial and Subsequent Advances
	 	 	38	 
	 
	 	 	 	 
	SECTION 6. REPRESENTATIONS AND WARRANTIES
	 	 	39	 
	6.01 Existence
	 	 	39	 
	6.02 Financial Condition
	 	 	39	 
	6.03 Litigation
	 	 	40	 
	6.04 No Breach
	 	 	40	 
	6.05 Action, Binding Obligations
	 	 	40	 
	6.06 Approvals
	 	 	40	 
	6.07 Taxes
	 	 	40	 






- i -









 






	 	 	 	 	 
	 	 	Page	 
	6.08 Investment Company Act
	 	 	41	 
	6.09 No Default
	 	 	41	 
	6.10 Chief Executive Office; Chief Operating Office
	 	 	41	 
	6.11 Location of Books and Records
	 	 	41	 
	6.12 True and Complete Disclosure
	 	 	41	 
	6.13 Material Agreements
	 	 	41	 
	6.14 ERISA
	 	 	41	 
	6.15 Expense Policy
	 	 	41	 
	6.16 Subsidiaries
	 	 	41	 
	6.17 Capitalization
	 	 	42	 
	6.18 Fraudulent Conveyance
	 	 	42	 
	6.19 USA PATRIOT Act
	 	 	42	 
	6.20 Embargoed Person
	 	 	42	 
	6.21 Borrowing for Own Benefit
	 	 	43	 
	6.22 Indebtedness
	 	 	43	 
	6.23 Labor Matters
	 	 	43	 
	6.24 Survival of Representations and Warranties
	 	 	43	 
	6.25 Representations Concerning the Facility Collateral
	 	 	44	 
	6.26 Intellectual Property
	 	 	44	 
	6.27 JV Agreements
	 	 	45	 
	6.28 Senior Lien Assets
	 	 	45	 
	6.29 Excluded Collateral
	 	 	45	 
	6.30 Mortgaged Real Property
	 	 	45	 
	6.31 Additional Representations and Warranties
	 	 	46	 
	 
	 	 	 	 
	SECTION 7. AFFIRMATIVE AND FINANCIAL COVENANTS OF THE LOAN PARTIES
	 	 	46	 
	7.01 Financial Statements
	 	 	46	 
	7.02 Reporting Requirements
	 	 	48	 
	7.03 Financial Covenants
	 	 	49	 
	7.04 Existence, Etc
	 	 	49	 
	7.05 Use of Proceeds
	 	 	50	 
	7.06 Maintenance of Property; Insurance
	 	 	50	 
	7.07 Further Identification of Facility Collateral
	 	 	50	 
	7.08 Defense of Title
	 	 	51	 
	7.09 Preservation of Facility Collateral
	 	 	51	 
	7.10 Maintenance of Papers, Records and Files
	 	 	51	 
	7.11 Maintenance of Licenses
	 	 	51	 
	7.12 Payment of Obligations
	 	 	51	 
	7.13 OFAC
	 	 	52	 
	7.14 Investment Company
	 	 	52	 
	7.15 Due Diligence
	 	 	52	 
	7.16 Further Assurances
	 	 	52	 
	7.17 Executive Privileges and Compensation
	 	 	53	 
	7.18 Asset Divestiture
	 	 	54	 
	7.19 Restrictions on Expenses
	 	 	54	 
	7.20 Restructuring Plan; Restructuring Targets
	 	 	54	 
	7.21 Term Sheet Requirements
	 	 	55	 
	7.22 Restructuring Plan Report
	 	 	55	 
	7.23 President’s Designee Review/Certification
	 	 	55	 
	7.24 Required Distributions
	 	 	56	 
	7.25 Provide Additional Information
	 	 	56	 






- ii -









 






	 	 	 	 	 
	 	 	Page	 
	7.26 Material Transaction
	 	 	56	 
	 
	 	 	 	 
	SECTION 8. NEGATIVE COVENANTS OF THE LOAN PARTIES
	 	 	56	 
	8.01 Prohibition of Fundamental Changes
	 	 	56	 
	8.02 Lines of Business
	 	 	56	 
	8.03 Transactions with Affiliates
	 	 	56	 
	8.04 Limitation on Liens
	 	 	57	 
	8.05 Limitation on Distributions
	 	 	57	 
	8.06 No Amendment or Waiver
	 	 	57	 
	8.07 Prohibition of Certain Prepayments
	 	 	57	 
	8.08 Change of Fiscal Year
	 	 	57	 
	8.09 Limitation on Negative Pledge Clauses
	 	 	57	 
	8.10 Limitations on Indebtedness
	 	 	57	 
	8.11 Limitations on Investments
	 	 	58	 
	8.12 ERISA
	 	 	58	 
	8.13 Action Adverse to the Facility Collateral
	 	 	58	 
	8.14 Limitation on Sale of Assets
	 	 	58	 
	8.15 Restrictions on Pension Plans
	 	 	58	 
	8.16 JV Agreements
	 	 	59	 
	 
	 	 	 	 
	SECTION 9. EVENTS OF DEFAULT; TERMINATION EVENTS
	 	 	59	 
	9.01 Events of Default
	 	 	59	 
	 
	 	 	 	 
	SECTION 10. REMEDIES
	 	 	61	 
	 
	 	 	 	 
	SECTION 11. MISCELLANEOUS
	 	 	63	 
	11.01 Waiver
	 	 	63	 
	11.02 Notices
	 	 	63	 
	11.03 Indemnification and Expenses
	 	 	63	 
	11.04 Amendments
	 	 	64	 
	11.05 Successors and Assigns
	 	 	64	 
	11.06 Survival
	 	 	64	 
	11.07 Captions
	 	 	65	 
	11.08 Counterparts and Facsimile
	 	 	65	 
	11.09 Loan Agreement Constitutes Security Agreement
	 	 	65	 
	11.10 Governing Law
	 	 	65	 
	11.11 SUBMISSION TO JURISDICTION; WAIVERS
	 	 	65	 
	11.12 WAIVER OF JURY TRIAL
	 	 	66	 
	11.13 Acknowledgments
	 	 	66	 
	11.14 Hypothecation or Pledge of Facility Collateral
	 	 	66	 
	11.15 Assignments; Participations
	 	 	66	 
	11.16 Periodic Due Diligence Review
	 	 	67	 
	11.17 Set-Off
	 	 	68	 
	11.18 Reliance
	 	 	68	 
	11.19 Reimbursement
	 	 	68	 
	11.20 Waiver Of Redemption And Deficiency Rights
	 	 	69	 
	11.21 Single Agreement
	 	 	69	 
	11.22 Severability
	 	 	69	 
	11.23 Entire Agreement
	 	 	69	 
	11.24 Appendix A
	 	 	69	 






- iii -









 





	 	 	 
	SCHEDULES
	 	 
	 
	SCHEDULE 1.1
	 	List of Pledgors
	 
	SCHEDULE 1.2
	 	List of Guarantors
	 
	SCHEDULE 6.03
	 	Litigation
	 
	SCHEDULE 6.10
	 	Chief Executive Office, Chief Operating Office
	 
	SCHEDULE 6.13
	 	Existing Agreements
	 
	SCHEDULE 6.16
	 	Subsidiaries
	 
	SCHEDULE 6.17
	 	Ownership of Loan Parties
	 
	SCHEDULE 6.22
	 	Existing Indebtedness
	 
	SCHEDULE 6.25
	 	Filing Jurisdictions and Offices
	 
	SCHEDULE 6.26
	 	Intellectual Property
	 
	SCHEDULE 6.27
	 	JV Agreements
	 
	SCHEDULE 6.28
	 	Facility Collateral Subject to a Senior Lien
	 
	SCHEDULE 6.29
	 	Excluded Collateral
	 
	SCHEDULE 6.30
	 	Excluded Real Property






	 	 	 
	EXHIBITS
	 	 
	 
	EXHIBIT A
	 	Form of Note
	 
	EXHIBIT B
	 	Acknowledgment and Consent
	 
	EXHIBIT C
	 	Form of Notice of Borrowing
	 
	EXHIBIT D
	 	Form of Confidentiality Agreement
	 
	EXHIBIT E
	 	Form of Compliance Certificate
	 
	EXHIBIT F
	 	Form of Exemption Certificate
	 
	EXHIBIT G-1
	 	Form of Waiver for the Loan Parties
	 
	EXHIBIT G-2
	 	Form of Waiver from SEOs to Lender
	 
	EXHIBIT G-3
	 	Form of Consent and Waiver of SEOs to Loan Parties
	 
	EXHIBIT G-4
	 	Form of Waiver of Senior Employees to Lender
	 
	EXHIBIT G-5
	 	Form of Consent and Waiver of Senior Employees to Loan Parties
	 
	APPENDICES
	 	 
	 
	APPENDIX A
	 	Supplement to Loan and Security Agreement






- iv -









 





LOAN AND SECURITY AGREEMENT




          LOAN AND SECURITY AGREEMENT, dated as of December 31, 2008, between the Borrower set forth on
Appendix A (the “Borrower”) and THE UNITED STATES DEPARTMENT OF THE TREASURY (the
“Lender”).



RECITALS




          The Borrower wishes to obtain financing from time to time to restore liquidity to its
business, and to restore stability to the domestic automobile industry in the United States, and
the Lender has agreed, subject to the terms and conditions of this Loan Agreement, to provide such
financing to the Borrower.



          The financing provided hereunder will be used in a manner that (A) enables the Borrower and
its Subsidiaries to develop a viable and competitive business that minimizes adverse effects on the
environment; (B) enhances the ability and the capacity of the Borrower and its Subsidiaries to
pursue the timely and aggressive production of energy-efficient advanced technology vehicles; (C)
preserves and promotes the jobs of American workers employed directly by the Borrower and its
Subsidiaries and in related industries; (D) safeguards the ability of the Borrower and its
Subsidiaries to provide retirement and health care benefits for their retirees and their
dependents; and (E) stimulates manufacturing and sales of automobiles produced by the Borrower and
its Subsidiaries.



          Accordingly, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:



          SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS.



          1.01 Certain Defined Terms. Subject to the amendments, restatements, supplements or
other modifications in Section 1.01 of Appendix A, as used herein, the following terms shall have
the following meanings (all terms defined in this Section 1.01 or in other provisions of this Loan
Agreement in the singular to have the same meanings when used in the plural and vice versa):



          “Account Control Agreement” shall mean one or more account control agreements among
the Lender, the applicable Loan Parties and each bank party thereto, in form and substance
acceptable to the Lender, to be entered into with respect to each Facility Account, as amended,
restated, supplemented or otherwise modified from time to time.



          “Acknowledgement and Consent” shall have the meaning specified in Section 5.01(r)
hereof.



          “Advance” shall have the meaning specified in Section 2.01(a).



          “Affiliate” shall mean, with respect to any Person, any other Person which, directly
or indirectly, controls, is controlled by, or is under common control with, such Person. For
purposes of this Loan Agreement, “control” (together with the correlative meanings of “controlled
by” and “under common control with”) means possession, directly or indirectly, to direct or cause
the direction of the management or policies of such Person, whether through the ownership of voting
securities, by contract, or otherwise.



          “After Acquired Real Property” shall have the meaning set forth in Section 7.16(b)
hereof.



 









 





          “Applicable Law” shall mean, with reference to any Person, all laws (including common
law), statutes, regulations, ordinances, treaties, judgments, decrees, injunctions, writs and
orders of any court, governmental agency or authority and rules, regulations, orders, directives,
licenses and permits of any Governmental Authority applicable to such Person or its property or in
respect of its operations.



          “Bankruptcy Code” shall mean Title 11 of the United States Code, as amended from time
to time.



          “Bankruptcy Exceptions” shall mean limitations on, or exceptions to, the
enforceability of an agreement against a Person due to applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting the enforcement of creditors’ rights generally
or the application of general equitable principles, regardless of whether such enforceability is
considered in a proceeding at law or in equity.



          “Benefit Plan” shall mean any employee benefit plan within the meaning of section 3(3)
of ERISA and any other plan, arrangement or agreement which provides for compensation, benefits,
fringe benefits or other remuneration to any employee, former employee, individual independent
contractor or director, including without limitation, any bonus, incentive, supplemental retirement
plan, golden parachute, employment, individual consulting, change of control, bonus or retention
agreement, whether provided directly or indirectly by any Loan Party or otherwise.



          “Board” shall mean the Board of Governors of the Federal Reserve System of the United
States.



          “Bond Exchange” shall mean the conversion of existing public debt into equity, debt
and/or cash as contemplated in Section 7.20(c).



          “Business Day” shall mean any day other than (i) a Saturday or Sunday, (ii) a Federal
holiday or other day on which banks in New York, New York or the District of Columbia are permitted
to close, or (iii) a day on which trading in securities on the New York Stock Exchange or any other
major securities exchange in the United States is not conducted.



          “Capital Lease Obligations” shall mean, for any Person, all obligations of such Person
to pay rent or other amounts under a lease of (or other agreement conveying the right to use)
Property to the extent such obligations are required to be classified and accounted for as a
capital lease on a balance sheet of such Person under GAAP, and, for purposes of this Loan
Agreement, the amount of such obligations shall be the capitalized amount thereof, determined in
accordance with GAAP.



          “Cash Equivalents” shall mean (a) U.S. dollars, or money in other currencies received
in the ordinary course of business, (b) securities with maturities of one (1) year or less from the
date of acquisition issued or fully guaranteed or insured by the U.S. Government or any agency
thereof, (c) securities with maturities of one (1) year or less from the date of acquisition issued
or fully guaranteed by any state, commonwealth or territory of the United States, by any political
subdivision or taxing authority of any such state, commonwealth or territory or by any foreign
government, the securities of which state, commonwealth, territory, political subdivision, taxing
authority or foreign government (as the case may be) are rated at least A by S&P or A by Moody’s,
(d) demand deposit, certificates of deposit and time deposits with maturities of one (1) year or
less from the date of acquisition and overnight bank deposits of any commercial bank, supranational
bank or trust company having capital and surplus in excess of $500,000,000, (e) repurchase
obligations with respect to securities of the types (but not necessarily maturity) described in
clauses (b) and (c) above, having a term of not more than ninety (90) days, of banks (or bank
holding companies) or subsidiaries of such banks (or bank holding companies) and non-bank
broker-dealers listed on the Federal Reserve Bank of New York’s list of primary and other reporting



 - 2 - 









 







dealers (“Repo Counterparties”), which Repo Counterparties have capital, surplus and
undivided profits aggregating in excess of $500,000,000 (or the foreign equivalent thereof) and
which Repo Counterparties or their parents (if the Repo Counterparties are not rated) will at the
time of the transaction be rated “A-1” by S&P (or such similar equivalent rating) or higher by at
least one nationally recognized statistical rating organization, (f) commercial paper rated at
least A-1 or the equivalent thereof by S&P or P-1 or the equivalent thereof by Moody’s and in
either case maturing within one (1) year after the day of acquisition, (g) short-term marketable
securities of comparable credit quality, (h) shares of money market mutual or similar funds which
invest at least 95% in assets satisfying the requirements of clauses (a) through (g) of this
definition, and (i) in the case of a Foreign Subsidiary, substantially similar investments, of
comparable credit quality, denominated in the currency of any jurisdiction in which such Person
conducts business.



          “Certification Deadline” shall mean March 31, 2009 or such later date (not to exceed
thirty (30) days after March 31, 2009) as determined by the President’s Designee in his or her sole
discretion.



          “Change of Control” shall mean with respect to the Borrower, the acquisition, after
the Effective Date, by any other Person, or two or more other Persons acting in concert other than
the Permitted Investors, the Lender or any Affiliate of the Lender, of beneficial ownership (within
the meaning of Rule 13d-3 of the Securities and Exchange Commission under the Securities Exchange
Act of 1934, as amended) of outstanding shares of voting stock of the Borrower at any time if after
giving effect to such acquisition such Person or Persons owns twenty percent (20%) or more of such
outstanding voting stock.



          “Code” shall mean the Internal Revenue Code of 1986, as amended from time to time.



          “Collateral” shall have the meaning assigned to such term in Section 4.01(a) hereof.



          “Collateral Substitution” shall have the meaning assigned to such term in
Section 2.07.



          “Compensation Reductions” shall mean, with respect to the Borrower or any Subsidiary,
the reduction of the total amount of compensation, including wages and benefits, paid to its United
States employees so that, by no later than December 31, 2009, the average of such total amount, per
hour and per person, is an amount that is competitive with the average total amount of such
compensation, as certified by the Secretary of the United States Department of Labor, paid per hour
and per person to employees of Nissan Motor Company, Toyota Motor Corporation, or American Honda
Motor Company whose site of employment is in the United States.



          “Consolidated” refers to the consolidation of accounts in accordance with GAAP.



          “Contractual Obligation” shall mean, as to any Person, any material provision 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 or any material provision of any security issued by such Person.



          “Controlled Affiliate” shall have the meaning assigned to such term in Section 6.19.



          “Controlled Foreign Subsidiary” shall mean any Subsidiary that is a “controlled
foreign corporation” within the meaning of the Code. For this purpose, a “controlled foreign
corporation” includes any Subsidiary (i) classified as a corporation for U.S. federal income tax
purposes, substantially all of the assets of which consist of stock of one or more controlled
foreign corporations, or (ii) classified



 - 3 - 









 







as a partnership or disregarded entity for U.S. federal income tax purposes, any assets of
which consist of stock of one or more controlled foreign corporations.



          “Copyright Licenses” shall mean all licenses, contracts or other agreements, whether
written or oral, naming a Loan Party as licensee or licensor and providing for the grant of any
right to reproduce, publicly display, publicly perform, distribute, create derivative works of or
otherwise exploit any works covered by any Copyright (including, without limitation, all Copyright
Licenses set forth in Schedule 6.26 hereto).



          “Copyrights” shall mean all domestic and foreign copyrights, whether registered or
unregistered, including, without limitation, all copyright rights throughout the universe (whether
now or hereafter arising) in any and all media (whether now or hereafter developed), in and to all
original works of authorship (including, without limitation, all marketing materials created by or
on behalf of any Loan Party), acquired or owned by a Loan Party (including, without limitation, all
copyrights described in Schedule 6.26 hereto), all applications, registrations and recordings
thereof (including, without limitation, applications, registrations and recordings in the United
States Copyright Office or in any similar office or agency of the United States or any other
country or any political subdivision thereof), and all reissues, renewals, restorations, extensions
or revisions thereof.



          “Default” shall mean an event that with the giving of notice or the passage of time or
both, would become an Event of Default.



          “Disposition” shall mean with respect to any Property, any sale, lease, sale and
leaseback, assignment, conveyance, transfer or other disposition thereof (other than (i) exclusive
Licenses that do not materially impair the relevant Loan Party’s ability to use or exploit the
relevant Intellectual Property as it has been used or exploited by the Loan Parties as of the
Effective Date or (ii) nonexclusive Licenses); and the terms “Dispose” and “Disposed
of” shall have correlative meanings.



          “Dollars” or “$” shall mean lawful currency of the United States.



          “Domestic Subsidiary” shall mean any Subsidiary that is organized or existing under
the laws of the United States, any state or territory thereof or the District of Columbia.



          “Due Diligence Review” shall mean the performance by or on behalf of the Lender of any
or all of the reviews permitted under Section 11.16, as desired by the Lender from time to time.



          “EESA” shall mean the Emergency Economic Stabilization Act of 2008, Public Law No:
110-343, effective as of October 3, 2008, as amended from time to time.



          “Effective Date” shall have the meaning set forth in Appendix A.



          “EISA” shall mean the Energy Independence and Security Act of 2007 (Public Law
110-140; 42 U.S.C. 17013), as amended.



          “Electronic Transmission” shall mean the delivery of information by electronic mail,
facsimile or other electronic format acceptable to the Lender. An Electronic Transmission shall be
considered written notice for all purposes hereof.



          “Environmental Indemnity” shall mean that certain Environmental Indemnity Agreement,
dated as of the date hereof, executed by the applicable Loan Parties in connection with the
Advances for



 - 4 - 









 







the benefit of Lender, as the same may be amended, restated, replaced, supplemented or
otherwise modified from time to time.



          “Equity Interests” shall mean any and all equity interests, including any shares of
stock, membership or partnership interests, participations or other equivalents whether
certificated or uncertificated (however designated) of a corporation, limited liability company,
partnership or any other entity, and any and all similar ownership interests in a Person and any
and all warrants or options to purchase any of the foregoing.



          “Equity Pledge Agreement” shall mean that certain pledge agreement, dated as of the
date hereof, by each Pledgor in favor of the Lender.



          “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended
from time to time.



          “ERISA Affiliate” shall mean any corporation or trade or business or other entity,
whether or not incorporated, that is a member of any group of organizations (i) described in
Section 414(b), (c), (m) or (o) of the Code of which any Loan Party is a member or (ii) which is
under common control with any Loan Party within the meaning of section 4001 of ERISA.



          “ERISA Event” shall mean (i) any Reportable Event or a determination that a Plan is
“at risk” (within the meaning of Section 302 of ERISA); (ii) the incurrence by the Borrower or any
ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any
Plan or the withdrawal or partial withdrawal of the Borrower or any of its respective ERISA
Affiliates from any Plan or Multiemployer Plan; (iii) the receipt by the Borrower or any ERISA
Affiliates from the PBGC or a plan administrator of any notice relating to the intention to
terminate any Plan or Plans or to appoint a trustee to administer any Plan; (iv) the receipt by the
Borrower or any ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability
or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in
reorganization, within the meaning of Title IV of ERISA; or (v) the occurrence of a nonexempt
“prohibited transaction” with respect to which the Borrower, the other Loan Parties or their ERISA
Affiliates is a “disqualified person” (within the meaning of Section 4975 of the Code) or with
respect to which the Borrower or any ERISA Affiliate could otherwise be liable.



          “Event of Default” shall have the meaning provided in Section 9.01.



          “Excluded Collateral” shall mean any Property to the extent that a grant of a security
interest therein (a) is prohibited by any Applicable Law, or requires a consent pursuant to
Applicable Law that has not been obtained from any Governmental Authority, or (b) is contractually
prohibited, or constitutes a breach or default under or results in the termination of any contract
(except to the extent that such contract or the related prohibitive provisions therein are
ineffective under the New York Uniform Commercial Code or other Applicable Law) or requires a
consent from any other Person (other than the Borrower or any of its Affiliates) that has not been
obtained, (c) in the case of any investment property (as such term is defined in the Uniform
Commercial Code), is prohibited under any applicable organizational, constitutive, shareholder or
similar agreement (except to the extent that such agreement or the related prohibitive provisions
therein are ineffective under the Uniform Commercial Code or other Applicable Law), or (d) is
Property of any of the following types:




          (i) motor vehicles situated in a jurisdiction in which the perfection of a security
interest is excluded from the Uniform Commercial Code;



 - 5 - 









 






          (ii) voting Equity Interests in any Controlled Foreign Subsidiary, to the extent (but
only to the extent) required to prevent the Collateral from including more than 65% of all
voting Equity Interests in such Controlled Foreign Subsidiary;




          (iii) any Equity Interests owned by the Borrower or other Loan Party in any Excluded
Subsidiary;




          (iv) assets that give rise to tax-exempt interest income within the meaning of
Section 265(a)(2) of the Internal Revenue Code of 1986, as amended from time to time;




          (v) any Property, including any debt or Equity Interest and any manufacturing plant or
facility which is located within the continental United States, to the extent that the grant
of a security interest therein to secure the Obligations will result in a lien, or an
obligation to grant a lien, in such Property to secure any other obligation;




          (vi) any “intent to use” United States trademark application for which a statement of
use has not been filed;




          (vii) any Property that is subject to a purchase option granted to any dealer of the
Borrower’s or any Loan Parties’ products with respect to the related dealership Properties;




          (viii) any Property (including any tangible embodiments of Intellectual Property that
may be affixed to or embodied in any Property), including any Equity Interest, to the extent
that the Borrower or any other Loan Party has assigned, pledged, or otherwise granted a
security interest in or with respect to such Property to secure any indebtedness or any
other obligations, including any Senior Lien Loan, prior to the Effective Date, to the
extent that a grant of a security interest therein is contractually prohibited, or
constitutes a breach or default under or results in the termination of any contract, or
requires a consent from any other Person (other than the Borrower or any of its Affiliates)
that has not been obtained;




          (ix) any Property of the Borrower or any Loan Party acquired with (a) funds obtained
from the Government of the United States, including proceeds of any loan obtained under
Section 136 of the EISA or (b) under any other government programs or using other government
funds, including proceeds of government loans, contracts, grants, cooperative agreements, or
Cooperative Research and Development Agreements, to the extent that a grant of a security
interest therein is contractually prohibited, or constitutes a breach or default under or
results in the termination of any contract or precludes eligibility for funding described in
clauses (a) or (b) above or requires a consent from any other Person (other than the
Borrower or any of its Affiliates) that has not been obtained;




          (x) any Property, including cash and cash equivalents, (x) pledged or deposited in
connection with insurance, including worker’s compensation, unemployment insurance or other
types of social security or pension benefits, (y) pledged or deposited to secure the
performance of bids, tenders, statutory obligations, and surety, appeal, customs or
performance bonds and similar obligations, or (z) pledged or deposited to secure
reimbursement obligations in respect of letters of credit issued to support any obligations
or liabilities described in clauses (x) or (y) above; and




          (xi) to the extent not otherwise included, all proceeds, including cash proceeds (as
each such term is defined in the Uniform Commercial Code), and products of Excluded
Collateral, in whatever form, including cash or cash equivalents.



 - 6 - 









 





          “Excluded Subsidiary” shall have the meaning set forth in Appendix A.



          “Excluded Taxes” shall have the meaning provided in Section 3.03(a).



          “Executive Order” shall have the meaning provided in Section 6.20.



          “Existing Agreements” shall mean the agreements of the Loan Parties and their
Subsidiaries in effect on the Effective Date and any extensions, renewals and replacements thereof
so long as any such extension, renewal and replacement could not reasonably be expected to have a
material adverse effect on the rights and remedies of the Lender under any of the Loan Documents.



          “Expense Policy” shall mean the Borrower’s comprehensive written policy on corporate
expenses maintained and implemented in accordance with Section 7.19.



          “Expiration Date” shall have the meaning set forth in Appendix A.



          “Facility Account” shall have the meaning set forth in Appendix A.



          “Facility Collateral” shall mean collectively, (i) the Collateral pledged hereunder,
(ii) the Collateral (as defined in the Equity Pledge Agreement) pledged to the Lender under the
Equity Pledge Agreement, (iii) the Collateral (as defined in the Intellectual Property Pledge
Agreement), pledged to the Lender under the Intellectual Property Agreement, (iv) the Guaranty
Collateral (as defined in the Guaranty), pledged to the Lender under the Guaranty, and (v) any
other collateral security pledged to Lender under any other Loan Document, including without
limitation each Mortgage; provided that Facility Collateral shall exclude any Property constituting
Excluded Collateral.



          “Foreign Subsidiary” shall mean any Subsidiary that is not a Domestic Subsidiary.



          “Funding Date” shall have the meaning set forth in Appendix A.



          “GAAP” shall mean generally accepted accounting principles as in effect from time to
time in the United States.



          “Governmental Authority” shall mean, with respect to any Person, any nation or
government, any state or other political subdivision, agency or instrumentality thereof, any entity
exercising executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government and any court or arbitrator having jurisdiction over such Person, any of
its Subsidiaries or any of its properties.



          “Guarantee” shall mean, as to any Person, any obligation of such Person directly or
indirectly guaranteeing any Indebtedness of any other Person or in any manner providing for the
payment of any Indebtedness of any other Person or otherwise protecting the holder of such
Indebtedness against loss (whether by virtue of partnership arrangements, by agreement to
keep-well, to purchase assets, goods, securities or services, or to take-or-pay or otherwise),
provided that the term “Guarantee” shall not include (i) endorsements for collection or deposit in
the ordinary course of business, or (ii) obligations to make servicing advances for delinquent
taxes and insurance, or other obligations in respect of a mortgaged property, to the extent
required by the Lender. The amount of any Guarantee of a Person shall be deemed to be an amount
equal to the stated or determinable amount of the primary obligation in respect of which such
Guarantee is made or, if not stated or determinable, the maximum reasonably anticipated liability
in respect thereof as determined by such Person in good faith. The terms “Guarantee” and
“Guaranteed” used as verbs shall have correlative meanings.



 - 7 - 









 





          “Guarantors” shall mean those Persons listed on Schedule 1.2.



          “Guaranty” shall mean that certain Guaranty and Security Agreement, dated as of the
date hereof, by each Guarantor in favor of the Lender guarantying the Obligations of the Borrower.



          “Hedging Agreement” means any (i) interest rate swap agreement, interest rate cap
agreement or other agreement designed to protect against fluctuations in interest rates or (ii)
foreign exchange forward contract, currency swap agreement or other agreement designed to protect
against fluctuations in foreign exchange rates or (iii) commodity or raw material futures contract
or other agreement designed to protect against fluctuations in raw material prices.



          “Indebtedness” shall mean, for any Person: (a) obligations created, issued or incurred
by such Person for borrowed money (whether by loan, the issuance and sale of debt securities or the
sale of Property to another Person subject to an understanding or agreement, contingent or
otherwise, to repurchase such Property from such Person); (b) obligations of such Person to pay the
deferred purchase or acquisition price of Property or services; (c) indebtedness of others of the
type referred to in clauses (a), (b), (d), (e), (f) and (g) of this definition secured by a Lien on
the Property of such Person, whether or not the respective indebtedness so secured has been assumed
by such Person; (d) obligations (contingent or otherwise) of such Person in respect of letters of
credit or similar instruments issued or accepted by banks and other financial institutions for the
account of such Person; (e) Capital Lease Obligations of such Person; (f) obligations of such
Person under repurchase agreements or like arrangements; (g) indebtedness of others of the type
referred to in clauses (a), (b), (d), (e), (f) and (g) of this definition Guaranteed by such
Person; (h) all obligations of such Person incurred in connection with the acquisition or carrying
of fixed assets by such Person; (i) indebtedness of general partnerships of which such Person is a
general partner unless the terms of such indebtedness expressly provide that such Person is not
liable therefor; and (j) any other indebtedness of such Person evidenced by a note, bond, debenture
or similar instrument.



          “Individual Property” shall mean each parcel of real property, the improvements
thereon and all personal property owned by the applicable Loan Party and encumbered by a Mortgage,
together with all rights pertaining to such real property, improvements and personal property, as
more particularly described in Article 1 of each Mortgage and referred to therein as the
“Property”.



          “Intellectual Property” shall mean all Patents, Trademarks and Copyrights owned by any
Loan Party, and all rights under any Licenses to which a Loan Party is a party.



          “Intellectual Property Pledge Agreement” shall mean that certain Intellectual Property
Pledge Agreement, dated as of the date hereof, by and among each Loan Party and the Lender.



          “Interest Payment Date” shall have the meaning set forth in Appendix A.



          “Interest Period” shall mean, with respect to any Advance, (i) initially, the period
commencing on the Funding Date with respect to such Advance and ending on the calendar day prior to
the next succeeding Interest Payment Date, and (ii) thereafter, each period commencing on an
Interest Payment Date and ending on the calendar day prior to the next succeeding Interest Payment
Date. Notwithstanding the foregoing, no Interest Period may end after the Maturity Date.



          “Investment” shall mean any advance, loan, extension of credit (by way of guaranty or
otherwise) or capital contribution to, or purchase of any Equity Interests, bonds, notes,
debentures or other debt securities of, or any assets constituting a business unit of, or any other
similar investment in, any Person.



 - 8 - 









 





          “Investment Company Act” shall mean the Investment Company Act of 1940, as amended
from time to time, including all rules and regulations promulgated thereunder.



          “Joint Venture” shall mean any joint venture, partnership or similar arrangement
between any Loan Party or one of its Subsidiaries and independent third parties which are not
Subsidiaries of a Loan Party.



          “JV Agreement” shall mean each partnership or limited liability company agreement (or
similar agreement) between a Loan Party or one of its Subsidiaries and the relevant JV Partner as
the same may be amended, restated, supplemented or otherwise modified from time to time, in
accordance with the terms hereof.



          “JV Partner” shall mean each Person party to a JV Agreement that is not a Loan Party
or one of its Subsidiaries.



          “Labor Modifications” shall mean, collectively, the Compensation Reductions, the
Severance Rationalization and the Work Rule Modifications.



          “Lender” shall have the meaning assigned thereto in the preamble hereof.



          “LIBOR” shall mean with respect to each Advance, the greater of (a) the LIBOR Floor
and (b) the rate (adjusted for statutory reserve requirements for eurocurrency liabilities) for
eurodollar deposits for a period equal to three months appearing on Reuters Screen LIBOR01 Page or
if such rate ceases to appear on Reuters Screen LIBOR01 Page, on any other service providing
comparable rate quotations at approximately 11:00 a.m., London time. LIBOR shall be determined on
the Effective Date and reset on each Interest Payment Date.



          “LIBOR Floor” shall have the meaning set forth in Appendix A.



          “Licenses” shall mean the Copyright Licenses, the Trademark Licenses and the Patent
Licenses.



          “Lien” shall mean any mortgage, pledge, security interest, lien or other charge or
encumbrance (in the nature of a security interest and other than licenses of Intellectual
Property), including the lien or retained security title of a conditional vendor, upon or with
respect to any property or assets.



          “Loan Agreement” shall mean this Loan and Security Agreement, as may be amended,
restated, supplemented or otherwise modified from time to time in accordance with the terms hereof.



          “Loan Documents” shall mean the documents set forth on Appendix A, together with all
other such documentation entered into in connection with the transactions contemplated under such
documents and to fully evidence and secure the Borrower’s Obligations hereunder.



          “Loan Parties” shall mean the Borrower, the Guarantors, and the Pledgors, and “Loan
Party” shall mean each of them.



          “Mandatory Prepayment” shall have the meaning ascribed thereto in Section 2.07.



          “Material Adverse Effect” shall mean a material adverse effect on (a) the business,
operations, property, condition (financial or otherwise) or prospects of the Loan Parties and their



 - 9 - 









 







Subsidiaries (taken as a whole), (b) the ability of the Loan Parties (taken as a whole) to
perform any of their obligations under any of the Loan Documents to which they are a party, (c) the
validity or enforceability in any material respect of any of the Loan Documents to which they are a
party, (d) the rights and remedies of the Lender under any of the Loan Documents, or (e) the
Facility Collateral (taken as a whole).



          “Maturity Date” shall mean the earlier of (i) the Expiration Date, (ii) the date
specified in Section 2.05(a)(ii), or (iii) the occurrence of an Event of Default, at the option of
the Lender.



          “Maximum Loan Amount” shall have the meaning set forth in Appendix A.



          “Moody’s” shall mean Moody’s Investors Service, Inc.



          “Mortgage” shall mean, with respect to each Individual Property, that certain Mortgage
(or Deed of Trust or Deed to Secure Debt, as applicable), Assignment of Leases and Rents, and
Security Agreement or similar agreement, executed and delivered by a Loan Party as security for the
Advances and encumbering such Individual Property, as the same may be amended, restated, replaced,
supplemented or otherwise modified from time to time.



          “Multiemployer Plan” shall mean a multiemployer plan defined as such in Section 3(37)
of ERISA to which contributions are required to be made by any Loan Party or any ERISA Affiliate or
to which any Loan Party or any ERISA Affiliate may have any direct or indirect liability or
obligation contingent or otherwise.



          “Net Proceeds” shall mean, with respect to any event, (a) the cash proceeds received
in respect of such event including (i) any cash received in respect of any non-cash proceeds
(including any cash payments received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or otherwise, but excluding any
interest payments), but only as and when received, (ii) in the case of a casualty, insurance
proceeds and (iii) in the case of a condemnation or similar event, condemnation awards and similar
payments, net of (b) the sum of (i) all reasonable fees and out-of-pocket expenses paid to third
parties (other than Affiliates) in connection with such event, (ii) in the case of a Disposition of
an asset (including pursuant to a sale and leaseback transaction or a casualty or a condemnation or
similar proceeding), the amount of all payments required to be made as a result of such event to
repay Indebtedness (other than the Advances) secured by such asset or otherwise subject to
mandatory prepayment as a result of such event and (iii) the amount of all taxes paid (or
reasonably estimated to be payable, including under any tax sharing arrangements) and the amount of
any reserves established to fund contingent liabilities reasonably estimated to be payable, in each
case that are directly attributable to such event (as determined reasonably and in good faith by a
Responsible Person).



          “Non-Excluded Taxes” shall have the meaning provided in Section 3.03(a).



          “Note” shall mean the promissory note provided for by Section 2.02(a) for the Advances
and any promissory note delivered in substitution or exchange therefor, in each case as the same
shall be modified and supplemented and in effect from time to time.



          “Obligations” shall mean (a) all of the Borrower’s obligations to repay the Advances
on the Maturity Date, to pay interest on an Interest Payment Date and all other obligations and
liabilities of the Borrower to the Lender, or any other Person arising under, or in connection
with, the Loan Documents, whether now existing or hereafter arising; (b) any and all sums paid by
the Lender pursuant to the Loan Documents in order to preserve any Facility Collateral or the
interest of the Lender therein;



 - 10 - 









 





(c) in the event of any proceeding for the collection or enforcement of any of the Borrower’s
obligations or liabilities referred to in clause (a), the reasonable expenses of retaking, holding,
collecting, preparing for sale, selling or otherwise disposing of or realizing on any Facility
Collateral, or of any exercise by the Lender of its rights under the Loan Documents, including
without limitation, reasonable attorneys’ fees and disbursements and court costs; and (d) all of
the Borrower’s indemnity obligations to the Lender pursuant to the Loan Documents.



          “OFAC” shall mean the Office of Foreign Assets Control of the United States Department
of the Treasury.



          “Other Taxes” shall mean any and all present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies arising from any payment made
hereunder or from the execution, delivery or enforcement of, or otherwise with respect to, this
Loan Agreement or any other Loan Document (excluding, in each case, amounts imposed on an
assignment, a grant of a participation or other transfer of an interest in an Advance or Loan
Document), except pursuant to Section 3.03.



          “Patent Licenses” shall mean all licenses, contracts or other agreements, whether
written or oral, naming a Loan Party as licensee or licensor and providing for the grant of any
right to manufacture, use, lease, or sell any invention, design, idea, concept, method, technique,
or process covered by any Patent (including, without limitation, all Patent Licenses set forth in
Schedule 6.26 hereto).



          “Patents” shall mean all domestic and foreign letters patent, design patents, utility
patents, industrial designs, and all intellectual property rights in inventions, trade secrets,
ideas, concepts, methods, techniques, processes, proprietary information, technology, know-how,
formulae, and other general intangibles of like nature, now existing or hereafter acquired or owned
by a Loan Party (including, without limitation, all domestic and foreign letters patent, design
patents, utility patents, industrial designs, inventions, trade secrets, ideas, concepts, methods,
techniques, processes, proprietary information, technology, know-how and formulae described in
Schedule 6.26 hereto), all applications, registrations and recordings thereof (including, without
limitation, applications, registrations and recordings in the United States Patent and Trademark
Office, or in any similar office or agency of the United States or any other country or any
political subdivision thereof), and all reissues, divisions, continuations, continuations in part
and extensions or renewals thereof.



          “PBGC” shall mean the Pension Benefit Guaranty Corporation or any entity succeeding to
any or all of its functions under ERISA.



          “Permitted Capped Call” shall mean any capped call, ratio capped call or other similar
derivative transaction entered into by a Loan Party on or before the Effective Date.



          “Permitted Indebtedness” shall mean any of the following:




          (i) Indebtedness created under any Loan Document;




          (ii) purchase money Indebtedness for real property, improvements thereto or equipment
or personal property hereafter acquired (or, in the case of improvements, constructed) by,
or Capitalized Lease Obligations of, the Borrower or any Subsidiary;




          (iii) trade payables, if any, in the ordinary course of its business;



 - 11 - 









 






          (iv) Indebtedness existing on the date hereof;




          (v) Indebtedness incurred after the date hereof under Existing Agreements;




          (vi) intercompany Indebtedness of a Loan Party in the ordinary course of business;
provided that, the right to receive any repayment of such Indebtedness
(other than Indebtedness meeting the criteria of clauses (iv) or (v) above, or any
extensions, renewals, exchanges or replacements thereof) shall be subordinated to the
Lender’s rights to receive repayment of the Obligations;




          (vii) Indebtedness consisting of loans made, or guaranteed, by any Specified
Governmental Authority;




          (viii) Indebtedness existing at the time any Person merges with or into or becomes a
Loan Party and not incurred in connection with, or in contemplation of, such Person merging
with or into or becoming a Loan Party; provided that any such merger shall
comply with Section 8.01;




          (ix) Hedging Agreements not entered into for speculative purposes;




          (x) other unsecured Indebtedness of the Loan Parties incurred in the ordinary course of
business; provided that such Indebtedness shall not mature, and there shall
be no scheduled principal payments due under such Indebtedness, prior to the date that is
six (6) months after the Maturity Date;




          (xi) Indebtedness with respect to (x) letters of credit, bankers’ acceptances and
similar instruments issued in the ordinary course of business, including letters of credit,
bankers’ acceptances and similar instruments in respect of the financing of insurance
premiums, customs, stay, performance, bid, surety or appeal bonds and similar obligations,
completion guaranties, “take or pay” obligations in supply agreements, reimbursement
obligations regarding workers’ compensation claims, indemnification, adjustment of purchase
price and similar obligations incurred in connection with the acquisition or disposition of
any business or assets, and sales contracts, coverage of long-term counterparty risk in
respect of insurance companies, purchasing and supply agreements, rental deposits, judicial
appeals and service contracts and (y) appeal, bid, performance, surety, customs or similar
bonds issued for the account of the Borrower or any of its Subsidiaries in the ordinary
course of business;




          (xii) Indebtedness incurred in the ordinary course of business in connection with cash
management and deposit accounts and operations, netting services, employee credit card
programs and similar arrangements and Indebtedness arising from the honoring by a bank or
other financial institution of a check, draft or similar instrument drawn against
insufficient funds in the ordinary course of business, provided that such
Indebtedness is extinguished within five (5) Business Days of its incurrence;




          (xiii) any guarantee by any Loan Party of Permitted Indebtedness;




          (xiv) Indebtedness entered into under Section 136 of EISA;




          (xv) any extensions, renewals, exchanges or replacements of Indebtedness of the kind in
clauses (i), (iv), (v), (vii), (viii), (xiv), (xv) and (xvii) of this definition to the
extent (a) the principal amount of or commitment for such Indebtedness is not increased
(except by an



 - 12 - 









 







amount equal to unpaid accrued interest and premium thereon plus other reasonable fees
and expenses incurred in connection with such extension, renewals or replacement), (b)
neither the final maturity nor the weighted average life to maturity of such Indebtedness is
decreased and (c) such Indebtedness, if subordinated in right of payment to the Lender of
the Indebtedness under this Loan Agreement, remains so subordinated on terms no less
favorable to the Lender;




          (xvi) other Indebtedness not incurred under any other clause of this definition in an
amount not to exceed an aggregate principal balance of $100,000,000 outstanding at any one
time; and




          (xvii) any other Permitted Indebtedness set forth on Appendix A.



          “Permitted Investments” shall mean any of the following:




          (i) any Investment in Cash Equivalents;




          (ii) any Investment by a Loan Party in the Borrower or another Loan Party or a Pledged
Entity that is a Domestic Subsidiary;




          (iii) any Investment by a Loan Party in any Domestic Subsidiary that is neither a Loan
Party nor a Pledged Entity, in an aggregate amount not to exceed $100,000,000 in the
aggregate at any one time outstanding;




          (iv) Investments in Foreign Subsidiaries, only (A) prior to the Certification
Deadline, in accordance with Appendix A, or (B) from and after the Certification Deadline,
pursuant to a Restructuring Plan that has been approved by the President’s Designee;




          (v) any Investment existing on the Effective Date or made pursuant to binding
commitments in effect on the Effective Date or an investment consisting of any extension,
modification or renewal of any Investment existing on the Effective Date; provided
that the amount of any such Investment is not increased through such extension,
modification or renewal;




          (vi) any Investment acquired solely in exchange for Equity Interests of the Borrower;




          (vii) Investments in Joint Ventures in an aggregate amount, taken together with all
other Investments made in reliance on this clause, not to exceed $25,000,000 in the
aggregate at any one time outstanding plus the aggregate cash distributions received by the
Borrower and the Loan Parties from Joint Ventures after the Effective Date;




          (viii) Investments in Joint Ventures to the extent funded by grants from, Investments
in the Borrower and the Subsidiaries by, or Indebtedness of the Borrower and the
Subsidiaries guaranteed by, any Specified Governmental Authority and required to be so
invested by the terms of the related arrangements with such Specified Governmental
Authority;




          (ix) any Investment otherwise permitted under the Loan Agreement;




          (x) Investments in Indebtedness of, or Investments guaranteed by, Specified
Governmental Authorities, in connection with industrial revenue, municipal, pollution
control, development or other bonds or similar financing arrangements;



 - 13 - 









 






          (xi) any Permitted Capped Call;




          (xii) Trade Credit;




          (xiii) to the extent not otherwise addressed in this definition, Investments in the
ordinary course of such Loan Party’s business if the value of such Investments do not exceed
$25,000,000 in the aggregate at any one time outstanding for all Loan Parties;




          (xiv) Investments not in the ordinary course of such Loan Party’s business or if the
value of such Investment exceeds $100,000,000, and, in each case, such Loan Party has
provided at least twenty (20) days’ prior written notice to the President’s Designee of such
Investments and the details thereof (or such lesser time as may be agreed by the President’s
Designee), and the President’s Designee has not notified such Loan Party that he or she has
determined that such Investment would be inconsistent with, or detrimental to, the long-term
viability of such Loan Party;




          (xv) loans and advances to directors, officers and employees in the ordinary course of
business (including for travel, entertainment and relocation expenses consistent with the
Expense Policy);




          (xvi) Investments (i) received in satisfaction or partial satisfaction of delinquent
accounts and disputes with customers or suppliers in the ordinary course of business, or
(ii) acquired as a result of foreclosure of a Lien securing an Investment or the transfer of
the assets subject to such Lien in lieu of foreclosure;




          (xvii) Investments constituting non-cash consideration useful in the operation of the
business of the Borrower or any of its Subsidiaries and acquired in connection with a
Disposition permitted by this Loan Agreement;




          (xviii) commercial transactions in the ordinary course of business with the Borrower or
any of its Subsidiaries to the extent such transactions would constitute an Investment;




          (xix) conveyance of Facility Collateral in an arms length transaction to a Subsidiary
that is not a Loan Party or an Affiliate of the Borrower for non-cash consideration
consisting of Trade Credit or other Property to become Facility Collateral having a fair
market value equal to or greater than the fair market value of the conveyed Facility
Collateral; and




          (xx) Investments in dealerships in the ordinary course of business; and




          (xxi) any other Permitted Investment set forth in Appendix A.


For the avoidance of doubt, no Investment may be made in a Foreign Subsidiary other than in
accordance with subclauses (iv) and (xii) of this definition.




          “Permitted Liens” shall mean, with respect to any Property of the Borrower or any Loan
Party:




          (i) Liens created under the Loan Documents;



 - 14 - 









 






          (ii) Liens on Property of a Loan Party existing on the date hereof (including Liens on
Property of a Loan Party pursuant to Existing Agreements; provided that such Liens shall
secure only those obligations that they secure on the date hereof);




          (iii) any Lien existing on any Property prior to the acquisition thereof by a Loan
Party or existing on any Property of any Person that becomes a Subsidiary after the date
hereof prior to the time such Person becomes a Loan Party, as the case may be;
provided that (x) such Lien is not created in contemplation of or in connection with
such acquisition or such Person becoming a Loan Party, (y) such Lien does not apply to any
other Property or assets of a Loan Party, and (z) such Lien secures only those obligations
that it secures on the date of such acquisition or the date such Person becomes a Loan
Party, as the case may be; Liens for taxes and utility charges not yet due or that are being
contested in compliance with Section 6.07;




          (iv) Liens for taxes and utility charges not yet due or that are being contested in
compliance with Section 6.07;




          (v) carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like
Liens arising in the ordinary course of business and securing obligations that are not due
and payable or that are being contested in compliance with Section 7.12;




          (vi) Liens securing reimbursement obligations with respect to letters of credit that
encumber documents and other property relating to such letters of credit and the proceeds
thereof;




          (vii) Liens securing Hedging Agreements permitted hereunder;




          (viii) Liens created in the ordinary course of business in favor of banks and other
financial institutions over balances of any accounts held at such banks or financial
institutions or over investment property held in a securities account, as the case may be,
to facilitate the operation of cash pooling, cash management or interest set-off
arrangements;




          (ix) customary Liens in favor of trustees and escrow agents, and netting and set-off
rights, banker’s liens and the like in favor of counterparties to financial obligations and
instruments, including, without limitation, Hedging Agreements;




          (x) Liens securing Indebtedness incurred under Section 136 of EISA;




          (xi) pledges and deposits made in the ordinary course of business in compliance with
workmen’s compensation, unemployment or other insurance and other social security laws or
regulations;




          (xii) deposits to secure the performance of bids, trade contracts (other than for
Indebtedness), leases (other than Capital Lease Obligations), statutory obligations, surety,
customs and appeal bonds, performance bonds and other obligations of a like nature, or to
secure the payment of import or customs duties, in each case incurred in the ordinary course
of business;




          (xiii) zoning restrictions, easements, rights-of-way, restrictions on use of real
property and other similar encumbrances incurred in the ordinary course of business that, in
the aggregate, are not substantial in amount and do not materially detract from the value of
the property subject thereto or interfere with the ordinary conduct of the business of the
Borrower or any of its Subsidiaries;



 - 15 - 









 






          (xiv) purchase money security interests in real property, improvements thereto or
equipment hereafter acquired (or, in the case of improvements, constructed) by a Loan Party,
including pursuant to Capital Lease Obligations; provided that (w) such security
interests secure Indebtedness permitted by Section 8.10, (x) such security interests are
incurred, and the Indebtedness secured thereby is created, within 90 days after such
acquisition (or construction), (y) the Indebtedness secured thereby does not exceed the
lesser of the cost or the fair market value of such real property, improvements or equipment
at the time of such acquisition (or construction) and (z) such security interests do not
apply to any other property or assets of the Borrower or any Subsidiary;




          (xv) judgment Liens securing judgments not constituting an Event of Default under
Section 9.01(g);




          (xvi) any Lien consisting of rights reserved to or vested in any Governmental Authority
by statutory provision;




          (xvii) Liens securing Indebtedness described in clause (vi) or clause (vii) of the
definition of Permitted Indebtedness;




          (xviii) pledges or deposits made to secure reimbursement obligations in respect of
letters of credit issued to support any obligations or liabilities described in clauses (xi)
or (xii) of this definition;




          (xix) other Liens created or assumed in the ordinary course of business of a Loan
Party; provided that the obligations secured by all such Liens shall not
exceed the principal amount of $50,000,000 in the aggregate at any one time outstanding; and




          (xx) any other Permitted Lien set forth on Appendix A.



          “Person” shall mean any individual, corporation, company, voluntary association,
partnership, joint venture, limited liability company, trust, unincorporated association or
government (or any agency, instrumentality or political subdivision thereof).



          “Plan” shall mean an employee benefit or other plan covered by Title IV of ERISA,
other than a Multiemployer Plan which is sponsored, established, contributed to or maintained by
any Loan Party or any ERISA Affiliate, or for which any of the Loan Parties or any of their
respective ERISA Affiliates could have any liability, whether actual or contingent (whether
pursuant to section 4069 of ERISA or otherwise) or to which any of the Loan Parties or any of
their respective ERISA Affiliates previously maintained or contributed to during the six years
prior to the Effective Date.



          “Plan Completion Certification” shall mean the certification of the President’s
Designee delivered in accordance with Section 7.23.



          “Pledged Entity” shall mean a Subsidiary of a Loan Party whose Equity Interests are
Pledged Equity pursuant to the Equity Pledge Agreement.



          “Pledged Equity” shall mean all of the Equity Interests of a Pledged Entity (or such
lesser amount as may be required pursuant to the Pledge Limitation (as defined in the Equity Pledge
Agreement)), together with all ownership certificates, options or rights of any nature whatsoever
which may be issued, granted or pledged by the owners of such interests to the Lender while this
Loan Agreement is in effect.



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          “Pledgors” shall mean the Persons set forth on Schedule 1.1 hereof.



          “Post-Closing Letter Agreement” shall mean that certain Post-Closing Letter Agreement,
dated as of the date hereof, by and between the Borrower and the Lender.



          “Post-Default Rate” shall mean, in respect of any principal of any Advance or any
other amount under this Loan Agreement, the Note or any other Loan Document that is not paid when
due to the Lender (whether at stated maturity, by acceleration or mandatory prepayment or
otherwise), a rate per annum during the period from and including the due date to but excluding the
date on which such amount is paid in full equal to 5.00% per annum, plus (x) the interest rate
otherwise applicable to such Advance or other amount, or (y) if no interest rate is otherwise
applicable, the sum of (i) LIBOR plus (ii) the Spread Amount.



          “Prepayment Event” shall mean the occurrence of any of the following events:




          (i) the Disposition of any Facility Collateral to any Person other than to any
Loan Party or Pledged Entity;




          (ii) the incurrence by any Loan Party of any Indebtedness (other than the incurrence
of Indebtedness that constitutes Permitted Indebtedness) or any equity or other capital
raises (other than (x) contributions of indemnity payments received by the Borrower and
required to be applied to satisfy (or reimburse a payment made in respect of) obligations
and liabilities of the Borrower or any of its Subsidiaries or (y) the proceeds of the
Advances), either public or private, whether in connection with a primary securities
offering, a business combination of any kind, or otherwise; or




          (iii) the Disposition of unencumbered assets of the Borrower other than in the
ordinary course of business (including aircraft divestments).



          “President’s Designee” shall mean (i) one or more officers from the Executive Branch
appointed by the President to monitor and oversee the restructuring of the U.S. domestic automobile
industry and (ii) if no such officer has been appointed, the Secretary of the Treasury.



          “proceeds” shall have the meaning assigned to such term under the Uniform Commercial
Code.



          “Prohibited Jurisdiction” shall mean, any country or jurisdiction, from time to time,
that is the subject of a prohibition order (or any similar order or directive), sanctions or
restrictions promulgated or administered by any Governmental Authority of the United States.



          “Prohibited Person” shall mean any Person:




     (i) listed in the Annex to (the “Annex”), or otherwise subject to the
provisions of the Executive Order;




     (ii) that is owned or controlled by, or acting for or on behalf of, any person
or entity that is listed to the Annex to, or is otherwise subject to the provisions
of, the Executive Order;



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     (iii) with whom the Lender is prohibited from dealing or otherwise engaging in
any transaction by any terrorism or money laundering law, including the Executive
Order;




     (iv) who commits, threatens or conspires to commit or supports “terrorism” as
defined in the Executive Order;




     (v) that is named as a “specially designated national and blocked person” on
the most current list published by the OFAC at its official website,
http://www.treas.gov.ofac/t11sdn.pdf or at any replacement website or other
replacement official publication of such list; or




     (vi) who is an Affiliate of or affiliated with a Person listed above.



          “Property” shall mean any right or interest in or to property of any kind whatsoever,
whether real, personal or mixed and whether tangible or intangible.



          “Records” shall mean all books, instruments, agreements, customer lists, credit files,
computer files, storage media, tapes, disks, cards, software, data, computer programs, printouts
and other computer materials and records generated by other media for the storage of information
maintained by any Person with respect to the business and operations of the Loan Parties and the
Facility Collateral.



          “Relevant Companies” shall have the meaning set forth in Appendix A.



          “Reportable Event” shall mean any of the events set forth in Section 4043(b) of ERISA,
other than those events as to which the thirty day notice period is waived.



          “Requirement of Law” shall mean as to any Person, the certificate of incorporation and
by-laws or other organizational or governing documents of such Person, and 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.



          “Responsible Person” shall mean, as to any Person, the chief executive officer or,
with respect to financial matters, the chief financial officer of such Person, an individual so
designated from time to time by such Person’s board of directors or, in the event any such officer
is unavailable at any time he or she is required to take any action hereunder, Responsible Person
shall mean any officer authorized to act on such officer’s behalf as demonstrated by a certificate
of corporate resolution (or equivalent); provided that the Lender is notified in
writing of the identity of such Responsible Person.



          “Restricted Payments” shall mean with respect to any Person, collectively, all direct
or indirect dividends or other distributions of any nature (cash, securities, assets or otherwise)
on, and all payments for, the purchase, redemption, defeasance or retirement or other acquisition
for value of, any class of Equity Interests 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.



          “Restructuring Plan” shall mean the plan to achieve and sustain the long-term
viability, international competitiveness and energy efficiency of the Borrower and its Subsidiaries
required by Section 7.20.



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          “Restructuring Plan Report” shall mean the report to be submitted by the Borrower to
the President’s Designee in accordance with Section 7.22.



          “Reuters Screen LIBOR01 Page” shall mean the display page currently so designated on
the Reuters Monitor Money Rates Service (or such other page as may replace that page on that
service for the purpose of displaying comparable rates or prices).



          “S&P” shall mean Standard & Poor’s Ratings Services, a division of The McGraw Hill
Companies, Inc.



          “Senior Employee” shall mean, with respect to the Loan Parties collectively, any of
the twenty-five (25) most highly compensated employees (including the SEOs).



          “Senior Lien” shall mean the Lien granted to or for the benefit of a Senior Lien
Lender on Facility Collateral pursuant to a Senior Lien Loan Agreement that is senior in priority
to the Lien thereon granted to Lender hereunder or under any other Loan Documents and in effect as
of the Effective Date.



          “Senior Lien Lender” shall mean the lenders under the Senior Lien Loan Agreements,
together with their successors and assigns.



          “Senior Lien Loan Agreements” shall mean those certain loan agreements identified as
such on Schedule 6.22 in effect as of the Effective Date between any Loan Party and a Senior Lien
Lender.



          “Senior Lien Loans” shall mean those certain loans made by Senior Lien Lender to a
Loan Party pursuant to the Senior Lien Loan Agreements, which are secured by Senior Liens.



          “SEO” shall mean a senior executive officer within the meaning of section 111(b)(3) of
EESA and any interpretation of the United States Department of the Treasury thereunder, including
the rules set forth in 31 C.F.R. Part 30.



          “Severance Rationalization” shall mean elimination of the payment of any compensation
or benefits to U.S. employees of the Borrower or any of its Subsidiaries who have been fired,
laid-off, furloughed, or idled, other than customary severance pay.



          “Specified Governmental Authority” shall mean any nation or government, any state or
other political subdivision, agency or instrumentality thereof or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining to government and
any quasi-governmental entity, including any international organization or agency.



          “Spread Amount” shall have the meaning set forth in Appendix A.



          “Subsidiary” shall mean, with respect to any Person, any corporation, partnership or
other entity of which at least a majority of the securities or other ownership interests having by
the terms thereof ordinary voting power to elect a majority of the board of directors or other
persons performing similar functions of such corporation, partnership or other entity (irrespective
of whether or not at the time securities or other ownership interests of any other class or classes
of such corporation, partnership or other entity shall have or might have voting power by reason of
the happening of any contingency) is at the time directly or indirectly owned or controlled by such
Person or one or more Subsidiaries of such Person or by such Person and one or more Subsidiaries of
such Person.



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          “supporting obligations” shall have the meaning assigned to such term under the
Uniform Commercial Code.



          “Termination Event” shall mean if the President’s Designee shall not have issued the
Plan Completion Certification by the Certification Deadline.



          “Trade Credit” shall mean accounts receivable, trade credit or other advances extended
to, or investment made in, customers or suppliers, including intercompany, in the ordinary course
of business.



          “Trademark Licenses” shall mean all licenses, contracts or other agreements, whether
written or oral, naming any Loan Party as licensor or licensee and providing for the grant of any
right concerning any Trademark, together with any goodwill connected with and symbolized by any
such trademark licenses, contracts or agreements and the right to prepare for sale or lease and
sell or lease any and all Inventory now or hereafter owned by any Loan Party and now or hereafter
covered by such licenses (including, without limitation, all Trademark Licenses described in
Schedule 6.26 hereto).



          “Trademarks” shall mean all domestic and foreign trademarks, service marks, collective
marks, certification marks, trade dress, trade names, business names, d/b/a’s, Internet domain
names, trade styles, designs, logos and other source or business identifiers and all general
intangibles of like nature, now or hereafter owned, adopted or acquired by any Loan Party
(including, without limitation, all domestic and foreign trademarks, service marks, collective
marks, certification marks, trade dress, trade names, business names, d/b/a’s, Internet domain
names, trade styles, designs, logos and other source or business identifiers described in
Schedule 6.26 hereto), all applications, registrations and recordings thereof (including, without
limitation, applications, registrations and recordings in the United States Patent and Trademark
Office or in any similar office or agency of the United States, any state thereof or any other
country or any political subdivision thereof), and all reissues, extensions or renewals thereof,
together with all goodwill of the business symbolized by such marks.



          “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect from
time to time in the State of New York; provided that if by reason of mandatory provisions
of law, the perfection or the effect of perfection or non-perfection of the security interest in
any Facility Collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction
other than New York, “Uniform Commercial Code” shall mean the Uniform Commercial Code as in effect
in such other jurisdiction for purposes of the provisions hereof relating to such perfection or
effect of perfection or non-perfection.



          “Union” shall mean the leadership of each major United States labor organization that
represents the employees of the Borrower and its Subsidiaries.



          “United States” or “U.S.” shall mean the United States of America.



          “VEBA” shall mean a voluntary employees’ beneficiary association authorized under
Section 501(c)(9) of the Code.



          “VEBA Modifications” shall mean provision that not less than one-half of the value of
each future payment or contribution made by the Borrower and its Subsidiaries or any of them to the
VEBA account (or similar account) of a labor organization representing their employees (or as
otherwise provided in Appendix A) shall be made in the form of the stock of the Borrower or one of
its Subsidiaries, and the total value of any such payment or contribution shall not exceed the
amount of any such payment or contribution that was required for such time period under the
collective bargaining agreement that applied as of the date set forth in Appendix A.



 - 20 - 









 





          “Work Rule Modifications” shall mean application of work rules for the U.S. employees
of the Borrower and its Subsidiaries, beginning not later than December 31, 2009, in a manner that
is competitive with the work rules for employees of Nissan Motor Company, Toyota Motor Corporation,
or American Honda Motor Company whose site of employment is in the United States.



          1.02 Interpretation. The following rules of this Section 1.02 apply unless the
context requires otherwise. A gender includes all genders. Where a word or phrase is defined, its
other grammatical forms have a corresponding meaning. A reference to a subsection, Section,
Appendix, Annex or Exhibit is, unless otherwise specified, a reference to a Section of, or annex or
exhibit to, this Loan Agreement. A reference to a party to this Loan Agreement or another
agreement or document includes the party’s successors and permitted substitutes or assigns. A
reference to an agreement or document (including any Loan Document) is to the agreement or document
as amended, restated, modified, novated, supplemented or replaced, except to the extent prohibited
thereby or by any Loan Document and in effect from time to time in accordance with the terms
thereof. A reference to legislation or to a provision of legislation includes a modification or
re-enactment of it, a legislative provision substituted for it and a regulation or statutory
instrument issued under it. A reference to writing includes a facsimile transmission and any means
of reproducing words in a tangible and permanently visible form. A reference to conduct includes,
without limitation, an omission, statement or undertaking, whether or not in writing. The words
“hereof”, “herein”, “hereunder” and similar words refer to this Loan Agreement as a whole and not
to any particular provision of this Loan Agreement. The term “including” is not limiting and means
“including without limitation”. In the computation of periods of time from a specified date to a
later specified date, the word “from” means “from and including”, the words “to” and “until” each
mean “to but excluding”, and the word “through” means “to and including”.



          Except where otherwise provided in this Loan Agreement, any determination, consent, approval,
statement or certificate made or confirmed in writing with notice to the Borrower by the Lender or
an authorized officer of the Lender provided for in this Loan Agreement is conclusive and binds the
parties in the absence of manifest error. A reference to an agreement includes a security interest,
guarantee, agreement or legally enforceable arrangement whether or not in writing related to such
agreement.



          A reference to a document includes an agreement (as so defined) in writing or a certificate,
notice, instrument or document, or any information recorded in computer disk form. Where a Loan
Party is required to provide any document to the Lender under the terms of this Loan Agreement, the
relevant document shall be provided in writing or printed form unless the Lender requests
otherwise. At the request of the Lender, the document shall be provided in computer disk form or
both printed and computer disk form.



          This Loan Agreement is hereby modified where indicated in Appendix A hereto.



          This Loan Agreement is the result of negotiations among, and has been reviewed by counsel to,
the Lender and the Loan Parties, and is the product of all parties. In the interpretation of this
Loan Agreement, no rule of construction shall apply to disadvantage one party on the ground that
such party proposed or was involved in the preparation of any particular provision of this Loan
Agreement or this Loan Agreement itself. Except where otherwise expressly stated, the Lender may
give or withhold, or give conditionally, approvals and consents and may form opinions and make
determinations at its absolute discretion. Any requirement of good faith, discretion or judgment
by the Lender shall not be construed to require the Lender to request or await receipt of
information or documentation not immediately available from or with respect to the Borrower, any
other Loan Party, any other Person, or the Facility Collateral themselves.



 - 21 - 









 





       1.03 Accounting Terms and Determinations. Except as otherwise expressly provided
herein, all accounting terms used herein shall be interpreted, and all financial statements and
certificates and reports as to financial matters required to be delivered to the Lender hereunder
shall be prepared, in accordance with GAAP.



       SECTION
2. ADVANCES, NOTE AND PAYMENTS.

       2.01 Advances.




          (a) Subject to fulfillment of the conditions precedent set forth in Sections 5.01 and 5.02
hereof, and provided that no Default or Event of Default shall have occurred and be continuing
hereunder, the Lender agrees, on the terms and conditions of this Loan Agreement, to make loans
(individually, an “Advance”; collectively, the “Advances”) to the Borrower in
Dollars, on each Funding Date in an aggregate principal amount up to but not exceeding the Maximum
Loan Amount.



          (b) The Advances made on each Funding Date shall be in an amount as set forth in
Section 2.01(b) of Appendix A.



          (c) Each Advance shall be a term loan and no amounts of any Advance repaid may be reborrowed
hereunder.



          (d) Lender shall have no obligation to make an Advance when any Default or Event of Default
has occurred and is continuing.



          (e) Without limiting any other provision of this Loan Agreement, the obligation of the Lender
to fund any Advance is subject to the satisfaction (or waiver by the Lender) of the conditions
precedent set forth in Section 5.



       2.02 The Note.



          (a) Subject to the amendments, restatements, supplements or other modifications in
Section 2.02(a) of Appendix A, the Advances made by the Lender shall be evidenced by a single
promissory note of the Borrower substantially in the form of Exhibit A hereto (the
“Note”), dated the date hereof, payable to the Lender in a principal amount equal to the
amount of the Maximum Loan Amount as originally in effect and otherwise duly completed. The Lender
shall have the right to have its Note subdivided, by exchange for promissory notes of lesser
denominations or otherwise.



          (b) The date, amount and interest rate of each Advance made by the Lender to the Borrower,
and each payment made on account of the principal thereof, shall be recorded by the Lender on its
books and, prior to any transfer of the Note, noted by the Lender on the grid attached to the Note
or any continuation thereof; provided, that the failure of the Lender to make any such
recordation or notation shall not affect the obligations of the Borrower to make a payment when
due of any amount owing hereunder or under the Note in respect of the Advances.



       2.03 Procedure for Borrowing.



          (a) The Borrower may request a borrowing to be made on a Funding Date, by delivering to the
Lender an irrevocable Notice of Borrowing substantially in the form of Exhibit C hereto (a
“Notice of Borrowing”), appropriately completed, which Notice of Borrowing must be
received no later than 5:00 p.m. (Washington, D.C. time) two (2) Business Days prior to the
requested



 - 22 - 









 







Funding Date (other than the Notice of Borrowing for the Advance to be made on the Effective
Date, which Notice must be received no later than 3:00 p.m. (Washington D.C. time) on the
Effective Date).



          (b) Upon the Borrower’s request for a borrowing pursuant to Section 2.03(a), the Lender
shall, assuming all conditions precedent set forth in this Section 2.03 and in Sections 5.01 and
5.02 have been met, and provided no Default or Event of Default shall have occurred and be
continuing, not later than 5:00 p.m. (Washington, D.C. time) on the requested Funding Date, make
an Advance in an amount for each Funding Date as set forth in Section 2.01(b) of Appendix A.
Subject to the foregoing, the Lender shall deliver the Advance to the Borrower in immediately
available funds, via wire transfer (pursuant to the wire transfer instructions set forth in
Section 2.03(b) of Appendix A).



       2.04 Limitation on Types of Advances; Illegality. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of LIBOR:



          (a) the Lender determines, which determination shall be conclusive, that quotations of
interest rates for the relevant deposits referred to in the definition of “LIBOR” in Section 1.01
hereof are not being provided in the relevant amounts or for the relevant maturities for purposes
of determining rates of interest for Advances as provided herein; or



          (b) the Lender determines, which determination shall be conclusive, that the Spread Amount
plus the relevant rate of interest referred to in the definition of “LIBOR” in Section 1.01 hereof
upon the basis of which the rate of interest for Advances is to be determined is not likely
adequately to cover the cost to the Lender of making or maintaining Advances; or



          (c) it becomes unlawful for the Lender to make or maintain Advances hereunder using LIBOR;



then the Lender shall give the Borrower prompt notice thereof and, so long as such condition
remains in effect, the Borrower shall pay interest on all outstanding Advances at a rate per annum
as determined by the Lender taking into account the cost to the Lender of making and maintaining
the Advances.



       2.05 Repayment of the Advances; Interest.



          (a) On the Maturity Date, the Borrower shall repay to the Lender the aggregate principal
amount of all Advances then outstanding under the Note, together with all interest thereon and fees
and out-of-pocket expenses of the Lender accruing under this Loan Agreement; provided
that, if a Termination Event shall have occurred, all such amounts shall become due and
payable on the thirtieth (30th) day after the Certification Deadline without any further action on
the part of the Lender, except as may otherwise be provided in Section 2.05(a)(ii) of Appendix A.



          (b) Each Advance shall bear interest on the unpaid principal amount thereof at a rate per
annum equal to LIBOR plus the Spread Amount, payable in arrears (i) on each Interest Payment Date
in respect of the previous Interest Period, (ii) on the Maturity Date and (iii) on payment or
prepayment of an Advance in whole or in part, in the amount of interest accrued on the amount paid
or prepaid, provided that interest accruing pursuant to paragraphs (c) or (d) of this
Section shall be payable from time to time on demand.



          (c) If all or a portion of any Advance, any interest payable on any Advance or 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 equal to
the Post



 - 23 - 









 







Default Rate, in each case from the date of such non-payment until such amount is paid in
full (as well after as before judgment).



          (d) Upon the occurrence and continuance of any Default or Event of Default, at the option of
the Lender, all Advances, any fee or other amount payable hereunder shall bear interest at a rate
per annum equal to the Post Default Rate, in each case from the date of such Default or Event of
Default until such amount is paid in full (as well after as before judgment).



       2.06 Optional Prepayments.



          (a) The Advances are prepayable without premium or penalty, in whole or in part at any time,
in accordance herewith and subject to clause (b) below. Any amounts prepaid shall be applied (i)
first, to pay any fees and indemnity obligations owed to the Lender, (ii) second, to pay accrued
and unpaid interest and (iii) third, to repay the outstanding principal amount of any Advances
until paid in full. Amounts repaid may not be reborrowed. If the Borrower intends to prepay an
Advance in whole or in part from any source, the Borrower shall give two (2) Business Days’ prior
written notice thereof to the Lender. If such notice is given, the amount specified in such
notice shall be due and payable on the date specified therein, together with accrued interest to
such date on the amount prepaid. Partial prepayments shall be in an aggregate principal amount of
at least $100,000,000 and in integral multiples of $50,000,000 thereafter.



          (b) In connection with each prepayment, other than on an Interest Payment Date, the Borrower
shall indemnify the Lender and hold the Lender harmless from any actual loss or expense which the
Lender may sustain or incur arising from (i) the re-employment of funds obtained by the Lender to
maintain the Advances hereunder or (ii) fees payable to terminate the deposits from which such
funds were obtained, in either case, which actual loss or expense shall be equal to an amount
equal to the excess, as reasonably determined by the Lender, of (x) its cost of obtaining funds
for such Advance for the period from the date of such payment through the next Interest Payment
Date over (y) the amount of interest likely to be realized by the Lender in redeploying the funds
not utilized by reason of such payment for such period. This Section 2.06 shall survive
termination of this Loan Agreement and payment of the Note.



          (c) Notwithstanding the Borrower’s right to prepay the Advances pursuant to this
Section 2.06, in no event will the Lender’s Lien on any of the Facility Collateral be released
upon any such prepayment until payment in full of all Advances and the satisfaction of all other
Obligations.



       2.07 Mandatory Prepayments. In the event and on each occasion that any Net Proceeds
are received by or on behalf of any Loan Party in respect of any Prepayment Event, the Borrower
shall, within one (1) Business Day after such Net Proceeds are received by the applicable Loan
Party, prepay the Advances, in an aggregate amount equal to 100% of such Net Proceeds (a
“Mandatory Prepayment”). Notwithstanding the foregoing, the applicable Loan Party shall
not be required to make a Mandatory Prepayment arising in connection with a Disposition of Facility
Collateral in the ordinary course of business if such Loan Party reinvests 100% of the Net Proceeds
from such Disposition within twenty (20) days of the Disposition in Property that becomes, upon the
purchase thereof, subject to a Lien in favor of the Lender having the same priority as the Lender’s
Lien on the Facility Collateral so Disposed (a “Collateral Substitution”). Upon receiving
any Mandatory Prepayment in connection with the Disposition of Facility Collateral, the Lender
shall release its Lien thereon in accordance with Section 4.12. Unless and until all Advances have
been paid in full and all other Obligations have been satisfied, the Lender shall not be required
to release its Lien on any Facility Collateral other than Facility Collateral for which the
Disposition thereof gave rise to such Mandatory Prepayment. The Borrower’s



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obligation under this Section 2.07 to prepay Advances with any such Net Proceeds may be
modified as provided in Section 2.07 of Appendix A.



       2.08 Requirements of Law.



          (a) If any Requirement of Law (other than with respect to any amendment made to the Lender’s
certificate of incorporation, by-laws or other organizational or governing documents) or any
change in the interpretation or application thereof or compliance by the Lender with any request
or directive (whether or not having the force of law) from any central bank or other Governmental
Authority made subsequent to the date hereof:




     (i) shall subject the Lender to any tax of any kind whatsoever with respect to this
Loan Agreement, the Note or any Advance made by it (excluding net income taxes) or change
the basis of taxation of payments to the Lender in respect thereof (provided
that, this clause (i) shall not apply to any withholding taxes, Excluded Taxes or
taxes covered by Section 3.03);




     (ii) shall impose, modify or hold applicable any reserve, special deposit, compulsory
advance or similar requirement against assets held by deposits or other liabilities in or
for the account of Advances or other extensions of credit by, or any other acquisition of
funds by any office of the Lender which is not otherwise included in the determination of
LIBOR hereunder;




     (iii) shall impose on the Lender any other condition;


and the result of any of the foregoing is to increase the cost to the Lender, by an amount which
the Lender deems to be material, of making, continuing or maintaining any Advance or to reduce any
amount receivable hereunder in respect thereof, then, in any such case, the Borrower shall promptly
pay the Lender such additional amount or amounts as will compensate the Lender for such increased
cost or reduced amount receivable thereafter incurred.




          (b) If the Lender shall have determined that the adoption of or any change in any Requirement
of Law (other than with respect to any amendment made to the Lender’s certificate of
incorporation, by-laws or other organizational or governing documents) regarding capital adequacy
or in the interpretation or application thereof or compliance by the Lender or any Person
controlling the Lender with any request or directive regarding capital adequacy (whether or not
having the force of law) from any Governmental Authority made subsequent to the date hereof shall
have the effect of reducing the rate of return on the Lender’s or such Person’s capital as a
consequence of any obligations hereunder to a level below that which the Lender or such Person
(taking into consideration the Lender’s or such Person’s policies with respect to capital
adequacy) by an amount deemed by the Lender to be material, then from time to time, the Borrower
shall promptly pay to the Lender such additional amount or amounts as will thereafter compensate
the Lender for such reduction.



          (c) If the Lender becomes entitled to claim any additional amounts pursuant to this
subsection, it shall promptly notify the Borrower of the event by reason of which it has become so
entitled. A certificate as to any additional amounts payable pursuant to this subsection
submitted by the Lender to the Borrower shall be conclusive in the absence of manifest error.



       2.09 Use of Proceeds



       The Borrower shall utilize the proceeds from the Advances as set forth in Section 2.09 of
Appendix A.



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          SECTION 3. PAYMENTS; COMPUTATIONS; TAXES.



          3.01 Payments. Except to the extent otherwise provided herein, all payments of
principal, interest and other amounts to be made by the Borrower under the Loan Documents, shall be
made in Dollars, in immediately available funds, without deduction, set-off or counterclaim, to the
Lender at the account set forth in Section 3.01 of Appendix A not later than 5:00 p.m. (Washington,
D.C. time), on the date on which such payment shall be due. Any amounts received after such time
on any date may, in the discretion of the Lender, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. If any payment hereunder
shall be due on a day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest, interest thereon
shall be payable for the period of such extension. The Borrower acknowledges that it has no rights
of withdrawal from the foregoing account.



          3.02 Computations. Interest on the Advances shall be computed on the basis of a
360-day year for the actual days elapsed (including the first day but excluding the last day)
occurring in the period for which payable.



          3.03 US Taxes.



             (a) Except as required by Applicable Law, all payments made by the Borrower under this Loan
Agreement shall be made free and clear of, and without deduction or withholding for or on account
of, any present or future income, or Other Taxes, levies, imposts, duties, charges, fees,
deductions or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by
any Governmental Authority, excluding net or overall gross income taxes or net or overall gross
profit taxes, franchise taxes (imposed in lieu of net or overall gross income taxes) and branch
profit taxes imposed on the Lender as a result of a present or former connection between the
Lender and the jurisdiction of the Governmental Authority imposing such tax or any political
subdivision or taxing authority thereof or therein (other than any such connection arising solely
from the Lender’s having executed, delivered or performed its obligations or received a payment
under, or enforced, this Loan Agreement or any other Loan Document). If any such non-excluded
taxes, levies, imposts, duties, charges, fees, deductions or withholdings (“Non-Excluded
Taxes”) or any Other Taxes are required to be withheld from any amounts payable to the Lender
hereunder, the amounts so payable to the Lender shall be increased to the extent necessary to
yield to the Lender (after payment of all Non-Excluded Taxes and Other Taxes) interest or any such
other amounts payable hereunder at the rates or in the amounts specified in this Loan Agreement;
provided, however, that the Borrower shall not be required to increase any such
amounts payable to the Lender with respect to any Non-Excluded Taxes that are (i) attributable to
the Lender’s failure to comply with the requirements of paragraph (d) or (e) of this Section 3.03,
(ii) backup withholding taxes, imposed under Section 3406 of the Code, (iii) taxes imposed by way
of withholding on net or gross income, but not excluding such taxes arising as a result of a
change in Applicable Law occurring after (A) the date that such Person became a party to this Loan
Agreement, or (B) with respect to an assignment, acquisition, grant of a participation the
effective date of such assignment, acquisition, participation or appointment, except to the extent
that such Person’s predecessor was entitled to such amounts, or (C) with respect to the
designation of a new lending office, the effective date of such designation, except to the extent
such Person was entitled to receive such amounts with respect to its previous lending office; and
(iv) taxes resulting from such Person’s gross negligence or willful misconduct (collectively, and
together with the taxes excluded by the first sentence of this Section 3.03(a), “Excluded
Taxes”).



             (b) In addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with Applicable Law.



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          (c) Whenever any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly
as possible thereafter, the Borrower shall send to the Lender, a certified copy of an original
official receipt received by the Borrower showing payment thereof (or if an official receipt is
not available, such other evidence of payment as shall be satisfactory to such Lender). If the
Borrower fails to pay any Non-Excluded Taxes or Other Taxes required to be paid by the Borrower
under this Section 3.03 when due to the appropriate taxing authority or fails to remit to the
Lender the required receipts or other required documentary evidence, the Borrower shall indemnify
the Lender for any incremental taxes, interest or penalties that may become payable by the Lender
as a result of any such failure. The agreements in this Section shall survive the termination of
this Loan Agreement and the payment of the Advances and all other amounts payable hereunder.



          (d) If the Lender (or Participant or the Lender’s assignee) is not a “United States person”
as defined in Section 7701(a)(30) of the Code (a “Non-U.S. Lender”), such Person shall
deliver to the Borrower (and, in the case of a Participant, to the Lender from which the related
participation shall have been purchased) two original copies of either U.S. Internal Revenue
Service Form W-8BEN, Form W-8ECI and/or Form W-8IMY, or, in the case of a Non-U.S. Lender claiming
exemption from U.S. federal withholding tax under Section 871(h) or 881(c) of the Code with
respect to payments of “portfolio interest” a statement substantially in the form of Exhibit F and
a Form W-8BEN, and/or any subsequent versions thereof or successors thereto properly completed and
duly executed by such Non-U.S. Lender claiming complete exemption from, or a reduced rate of, U.S.
federal withholding tax on all payments by the Borrower under this Loan Agreement and the other
Loan Documents. Such forms shall be delivered by each Non-U.S. Lender on or before the date it
becomes a party to this Loan Agreement (or, in the case of any Participant or the Lender’s
assignee, on or before the date such Participant purchases the related participation, or Lender’s
assignee takes its assignment, as the case may be). In addition, each Non-U.S. Lender shall
deliver such forms promptly upon (i) the obsolescence, expiration or invalidity of any form
previously delivered by such Non-U.S. Lender and (ii) the written request of the Borrower. If the
Lender (or a Participant or the Lender’s assignee) is a “United States person” as defined in
Section 7701(a)(30) of the Code, it shall deliver a duly executed and properly completed Internal
Revenue Service Form W-9 to the Borrower at the time(s) and in the manner(s) described above with
respect to the other forms referenced in this clause (d) above certifying that such person is
exempt from United States backup withholding tax on payments made hereunder under the Loan
Documents; provided, however, that if the Lender is an “exempt recipient” within
the meaning of Treasury Regulations section 1.6049-4(c), it shall not be required to provide a
Form W-9 except to the extent required under Treasury Regulations section 1.1441-1.
Notwithstanding any other provision of this paragraph, the Lender shall not be required to deliver
any form pursuant to this paragraph that it is not legally able to deliver.



          (e) If the Lender is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Loan Agreement then the Lender shall
deliver to the Borrower, at the time or times prescribed by Applicable Law or reasonably requested
by the Borrower, such properly completed and executed documentation prescribed by Applicable Law
as will permit such payments to be made without withholding or at a reduced rate, provided that
the Lender is legally entitled to complete, execute and deliver such documentation and in the
Lender’s reasonable judgment such completion, execution or submission would not materially
prejudice the legal position of the Lender.



          (f) If the Lender determines that it has received a refund, credit, or other reduction of
taxes in respect of any Non-Excluded Taxes or Other Taxes paid by the Borrower, which refund,
credit or other reduction is directly attributable to any Non-Excluded Taxes or Other Taxes paid
by the Borrower, the Lender shall within sixty (60) days from the date of actual receipt of such
refund or the



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filing of the tax return in which such credit or other reduction results in a lower tax
payment, pay over such refund or the amount of such tax reduction to the Borrower (but only to the
extent of Non-Excluded Taxes or Other Taxes paid by the Borrower), net of all out of pocket
expenses of such Person, and without interest (other than interest paid by the relevant
Governmental Authority with respect to such refund). Notwithstanding anything to the contrary in
this Loan Agreement, upon the request of the Lender, the Borrower agrees to repay any amount paid
over to the Borrower pursuant to the immediately preceding sentence (plus penalties, interest, or
other charges) if such Person is required to repay such amount to the taxing Governmental
Authority.



          (g) Real Property Taxes.




     (i) If any law is enacted or adopted or amended after the date of this Loan
Agreement which deducts the principal amount of Advances then outstanding, the
interest thereon or the fees and out-of-pocket expenses accruing under this Loan
Agreement (collectively, the “Debt”) from the value of an
Individual Property and the effect is that a tax is imposed, either directly or
indirectly, on the Debt or the Lender’s interest in an Individual Property (the
“Real Property Tax”), the Borrower will pay or cause to be paid the Real
Property Tax, with interest and penalties thereon, if any. If the Lender is advised
by counsel chosen by it that the payment of Real Property Tax by the Borrower or
such other Person would be unlawful or taxable to the Lender or provide the basis
for a defense of usury, then Lender shall pay such Real Property Tax to the extent
required by Applicable Law, and each Loan Party agrees to pay as and when billed by
the Lender such Real Property Tax plus all of the reasonable out-of pocket costs
and expenses incurred by the Lender in connection therewith. If any Loan Party
fails to pay when due any costs, expenses or other amounts payable by it under this
Section 3.03(g)(i), including, without limitation, reasonable fees and expenses of
counsel the Borrower shall remain liable for any such payments by the Lender and
such amounts shall accrue interest at the Post-Default Rate. No such payment by the
Lender shall be deemed a waiver of any of its rights under the Loan Documents.




     (ii) Neither the Borrower nor any Loan Party shall claim or demand or be
entitled to any credit or credits on account of the Debt for any part of the real
estate and personal property taxes, assessments, impositions and any other charges
now or hereafter levied or assessed or imposed against any Individual Property or
part thereof, and no deduction shall otherwise be made or claimed from the assessed
value of an Individual Property, or any part thereof, for real estate tax purposes
by reason of any Mortgage or other Loan Document or the Debt. If such claim, credit
or deduction shall be required by Applicable Law and may not be legally waived by
the Borrower or the applicable Loan Party with respect to any Individual Property
(each such Individual Property, a “Specially Taxed Property”), and Lender is
required by Applicable Law to pay any tax with regard to a Specially Taxed Property,
then Lender shall pay such tax, and each Loan Party agrees to pay as and when billed
by the Lender the amount of such tax plus all of the reasonable out-of pocket costs
and expenses incurred by the Lender in connection therewith. If any Loan Party
fails to pay when due any costs, expenses or other amounts payable by it under this
Section 3.03(g)(ii), including, without limitation, reasonable fees and expenses of
counsel the Borrower shall remain liable for any such payments by the Lender and
such amounts shall accrue interest at the Post-Default Rate. No such payment by the
Lender shall be deemed a waiver of any of its rights under the Loan.



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       SECTION 4. COLLATERAL SECURITY.



       4.01 Collateral; Security Interest.



          (a) Subject to any amendments, restatements, supplements or other modifications in
Section 4.01 of Appendix A, as security for the prompt and complete payment when due of the
Obligations and the performance by the Borrower of all the covenants and obligations to be
performed by it pursuant to this Loan Agreement and the other Loan Documents, the Borrower hereby
mortgages, pledges and grants to the Lender a Lien on and security interest in all of its rights,
title and interest in and to all personal property and real property wherever located and whether
now or hereafter existing and whether now owned or hereafter acquired, of every kind and
description, tangible or intangible, including without limitation, the following, whether now or
hereafter existing and wherever located:




     (i) all Intellectual Property as well as royalties therefrom;




     (ii) each Individual Property;




     (iii) all cash and Cash Equivalents, and all other property from time to time
deposited in any account or deposit account and the monies and property in the
possession or under the control of Lender or any affiliate, representative, agent or
correspondent of Lender related to the foregoing;




     (iv) all other tangible and intangible personal property of the Borrower
(whether or not subject to the Uniform Commercial Code), including, without
limitation, all bank and other accounts and all cash and all investments therein,
all rights to receive cash and investments, including without limitation, state,
Federal or local tax refunds, intercompany debt, all proceeds, products, offspring,
accessions, rents, profits, income, benefits, substitutions and replacements of and
to any of the property of the Borrower described in the preceding clauses of this
Section 4.01(a) (including, without limitation, any proceeds of insurance thereon
and all causes of action, claims and warranties now or hereafter held by the
Borrower in respect of any of the items listed above), and all books,
correspondence, files and other Records in the possession or under the control of
the Borrower or any other Person from time to time acting for the Borrower that at
any time evidence or contain information relating to any of the property described
in the preceding clauses of this Section 4.01(a) or are otherwise necessary or
helpful in the collection or realization thereof;




     (v) all rights, title and interest of the Borrower (but not any of the
obligations, liabilities or indemnifications of the Borrower) in, to and under the
Loan Documents;




     (vi) all “accounts,” “chattel paper,” “commercial tort claims,” “deposit
accounts,” “documents,” “equipment,” “general intangibles” (including without
limitation, uncertificated Equity Interests), “goods,” “instruments,” “inventory,”
“investment property,” “letter of credit rights,” and “securities’ accounts,” as
each of those terms is defined in the Uniform Commercial Code;




     (vii) and all products and proceeds relating to or constituting any or all of
the foregoing (clauses (i) through (vii) collectively, the “Collateral”);



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in each case howsoever the Borrower’s interest therein may arise or appear (whether by ownership,
security interest, claim or otherwise), provided that, notwithstanding anything to
the contrary contained herein or in any other Loan Document, the term “Collateral” and each other
term used in the definition thereof shall not include, and the Borrower is not pledging or granting
a security interest in, any Property to the extent that such Property constitutes Excluded
Collateral; provided further that if and when, and to the extent that, any
Property ceases to be Excluded Collateral, the Borrower hereby grants to the Lender, and at all
times from and after such date, the Lender shall have, a first priority or junior priority, as
applicable, Lien in and on such Property (subject to Permitted Liens) and the Borrower shall
cooperate in all respects to ensure the prompt perfection of the Lender’s security interest
therein.




     The Liens granted to Lender hereinabove shall be first priority Liens on all of the Collateral
(subject to Permitted Liens and to the extent legally and contractually permissible);
provided that, with respect to the Collateral which is subject to a Senior Lien, as
set forth on Schedule 6.28, the Lien shall be of junior priority (subject to Permitted Liens and to
the extent legally and contractually permissible).



     The Obligations of the Borrower under the Loan Documents constitute recourse obligations of
the Borrower, and therefore, their satisfaction is not limited to payments from the Facility
Collateral.



             (b) With respect to each right to payment or performance included in the Collateral from time
to time, the Lien granted therein includes a continuing security interest in (i) any supporting
obligation that supports such payment or performance and (ii) any Lien that (A) secures such right
to payment or performance or (B) secures any such supporting obligation.



          4.02 UCC Matters; Further Assurances. The Borrower, shall, at all times on and after
the date hereof, and at its expense, cause Uniform Commercial Code financing statements and
continuation statements to be filed in all applicable jurisdictions as required to continue the
perfection of the security interests created by this Loan Agreement. The Borrower shall, from time
to time, at its expense and in such manner and form as the Lender may reasonably require, execute,
deliver, file and record any other statement, continuation statement, specific assignment or other
instrument or document and take any other action that may be necessary, or that the Lender, may
reasonably request, to create, evidence, preserve, perfect or validate the security interests
created hereunder or to enable the Lender to exercise and enforce its rights hereunder with respect
to any of the Facility Collateral. To the extent contemplated in the Post-Closing Letter Agreement,
the Borrower agrees that, if the grant of a security interest in any Property to Lender requires a
consent to such grant from any other Person (other than the Borrower or any of its Affiliates), the
Borrower shall use its best efforts to procure such consent. Further, the Borrower agrees that if
any Excluded Collateral should, at any time following the Effective Date, become Collateral on
which the Lender is permitted to take a Lien, the Borrower shall so notify the Lender and cooperate
with and shall take all steps as may be reasonably required by the Lender to enable and continue
the perfection of the Lender’s security interests therein and shall comply with the provisions of
Section 7.16 hereof in connection therewith, to the extent applicable. Without limiting the
generality of the foregoing, the Borrower shall: upon the request of the Lender, execute and file
such Uniform Commercial Code financing or continuation statements, or amendments thereto or
assignments thereof, Mortgages, and such other instruments or notices, as may be necessary or
appropriate or as the Lender may request. The Borrower hereby authorizes the Lender to file one or
more Uniform Commercial Code financing or continuation statements, and amendments thereto and
assignments thereof, relative to all or any of the Collateral now existing or hereafter arising
without the signature of the Borrower where permitted by law. A carbon, photographic or other
reproduction of this Loan Agreement or any financing statement covering the Collateral or any part
thereof shall be sufficient as a financing statement.



          4.03 Changes in Locations, Name, etc. If the Borrower shall (i) change the location
of its chief executive office/chief place of business from that specified in Section 6.10 hereof,
(ii) change



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its name, identity or corporate structure (or the equivalent) or change the location where it
maintains records with respect to the Collateral, or (iii) reincorporate or reorganize under the
laws of another jurisdiction, it shall give the Lender written notice thereof not later than ten
(10) days after such event occurs, and shall deliver to the Lender all Uniform Commercial Code
financing statements and amendments as the Lender shall request and taken all other actions deemed
reasonably necessary by the Lender to continue its perfected status in the Collateral with the same
or better priority.



       4.04 Lender’s Appointment as Attorney-in-Fact.



          (a) The Borrower hereby irrevocably constitutes and appoints the Lender and any officer or
agent thereof, with full power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Borrower and in the name of the
Borrower or in its own name, from time to time in the Lender’s discretion, for the purpose of
carrying out the terms of this Loan Agreement, to take any and all appropriate action and to
execute any and all documents and instruments which may be necessary or desirable to accomplish
the purposes of this Loan Agreement, which the Borrower is required to do hereunder but has failed
to do within the time limits required, including without limitation, to protect, preserve and
realize upon the Collateral, to file such financing statements relating to the Collateral as the
Lender at its option deems appropriate, and, without limiting the generality of the foregoing, the
Borrower hereby gives the Lender the power and right, on behalf of the Borrower, without assent
by, but with notice to, the Borrower, if an Event of Default shall have occurred and be
continuing, to do the following:




     (i) in the name of the Borrower or its own name, or otherwise, to take
possession of and endorse and collect any checks, drafts, notes, acceptances or
other instruments for the payment of moneys due under any insurance policies or with
respect to any of the Collateral and to file any claim or to take any other action
or proceeding in any court of law or equity or otherwise deemed appropriate by the
Lender for the purpose of collecting any and all such moneys due with respect to any
other Collateral whenever payable;




     (ii) to pay or discharge taxes and Liens levied or placed on or threatened
against the Collateral; and




     (iii) (A) to direct any party liable for any payment under any Collateral to
make payment of any and all moneys due or to become due thereunder directly to the
Lender or as the Lender shall direct; (B) to ask or demand for, collect, receive
payment of and receipt for, any and all moneys, claims and other amounts due or to
become due at any time in respect of or arising out of any Collateral; (C) to sign
and endorse any invoices, assignments, verifications, notices and other documents in
connection with any of the Collateral; (D) to commence and prosecute any suits,
actions or proceedings at law or in equity in any court of competent jurisdiction to
collect the Collateral or any part thereof and to enforce any other right in respect
of any Collateral; (E) to defend any suit, action or proceeding brought against the
Borrower with respect to any Collateral; (F) to settle, compromise or adjust any
suit, action or proceeding described in clause (E) above and, in connection
therewith, to give such discharges or releases as the Lender may deem appropriate;
and (G) in connection with its exercise of its remedies hereunder pursuant to
Sections 4.07 or 10, generally, to sell, transfer, pledge and make any agreement
with respect to or otherwise deal with any of the Collateral as fully and completely
as though the Lender were the absolute owner thereof for all purposes, and to do, at
the Lender’s option and the Borrower’s expense, at any time, or from time to time,
all acts and things which the Lender deems necessary to protect, preserve or realize
upon the Collateral and



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the Lender’s Liens thereon and to effect the intent of this Loan Agreement and
the other Loan Documents, all as fully and effectively as the Borrower might do.


The Borrower hereby ratifies all that said attorneys shall lawfully do or cause to be done by
virtue hereof. This power of attorney is a power coupled with an interest and shall be irrevocable.




             (b) The Borrower also authorizes the Lender, at any time and from time to time, to execute,
in connection with the sale provided for in Section 4.07 hereof, any endorsements, assignments or
other instruments of conveyance or transfer with respect to the Collateral.



             (c) The powers conferred on the Lender are solely to protect the Lender’s interests in the
Collateral and subject to Applicable Law shall not impose any duty upon the Lender to exercise any
such powers. The Lender shall be accountable only for amounts that it actually receives as a
result of the exercise of such powers, and neither the Lender nor any of its officers, directors,
agents or employees shall be responsible to the Borrower for any act or failure to act hereunder,
except for its own gross negligence or willful misconduct.



          4.05 Performance by the Lender of the Borrower’s Obligations. If the Borrower fails
to perform or comply with any of its agreements contained in the Loan Documents, the Lender may
itself perform or comply, or otherwise cause performance or compliance, with such agreement, and
the reasonable out-of-pocket expenses of the Lender incurred in connection with such performance or
compliance, together with interest thereon at a rate per annum equal to the Post-Default Rate,
shall be payable by the Borrower to the Lender on demand and shall constitute Obligations.



          4.06 Proceeds. If an Event of Default shall occur and be continuing, (a) all proceeds
of Facility Collateral received by the Borrower consisting of cash, checks and Cash Equivalents
shall be held by the Borrower in trust for the Lender, segregated from other funds of the Borrower,
and shall forthwith upon receipt by the Borrower be turned over to the Lender in the exact form
received by the Borrower (duly endorsed by the Borrower to the Lender, if required), and (b) any
and all such proceeds received by the Borrower will be applied by the Lender against, the
Obligations (whether matured or unmatured), such application to be in such order as the Lender
shall elect. For purposes hereof, proceeds shall include, but not be limited to, all principal and
interest payments, royalty payments, license fees, all prepayments and payoffs, all dividends and
distributions, insurance claims, condemnation awards, sale proceeds, rents and any other income and
all other amounts received with respect to the Facility Collateral and upon the liquidation of any
Facility Collateral, all such proceeds received by the Lender will be distributed by the Lender in
such order as the Lender shall elect. Any balance of such proceeds remaining after the Obligations
shall have been paid in full and this Loan Agreement shall have been terminated shall be promptly
paid over to the Borrower or to whomsoever may be lawfully entitled to receive the same.



          4.07 Remedies. If a Default or Event of Default shall occur and be continuing, the
Lender may exercise, in addition to all other rights and remedies granted to it in this Loan
Agreement and in any other instrument or agreement securing, evidencing or relating to the
Obligations, all rights and remedies of a secured party under the Uniform Commercial Code, at law
and in equity. Without limiting the generality of the foregoing, the Lender, without demand of
performance or other demand, presentment, protest, advertisement or notice of any kind (except any
notice required by law referred to below) to or upon the Borrower or any other Person (all and each
of which demands, defenses, presentments, protests, advertisements and notices are hereby waived),
may in such circumstances forthwith collect, receive, appropriate and realize upon the Facility
Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options
to purchase, or otherwise dispose of and deliver the Facility Collateral or any part thereof (or
contract to do any of the foregoing), in one or more parcels



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or as an entirety at public or private sale or sales, at any exchange, broker’s board or
office of the Lender or elsewhere upon such terms and conditions and at prices that are consistent
with the prevailing market for similar collateral as it may deem advisable and at such prices as it
may deem best, for cash or on credit or for future delivery without assumption of any credit risk.
The Lender shall act in good faith to obtain the best execution possible under prevailing market
conditions. The Lender shall have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to purchase the whole or any part of the
Facility Collateral so sold, free of any right or equity of redemption in the Borrower, which right
or equity is hereby waived and released. The Borrower further agrees, at the Lender’s request, to
assemble the Facility Collateral and make it available to the Lender at places which the Lender
shall reasonably select, whether at the Borrower’s premises or elsewhere. The Lender shall apply
the net proceeds of any such collection, recovery, receipt, appropriation, realization or sale,
after deducting all reasonable costs and expenses of every kind incurred therein or incidental to
the care or safekeeping of any of the Facility Collateral or in any way relating to the Facility
Collateral or the rights of the Lender hereunder, including, without limitation, reasonable
attorneys’ fees and disbursements, to the payment in whole or in part of the Obligations, in such
order as the Lender may elect, and only after such application and after the payment by the Lender
of any other amount required or permitted by any provision of law, including, without limitation,
Section 9-504(1)(c) of the Uniform Commercial Code, need the Lender account for the surplus, if
any, to the Borrower. To the extent permitted by Applicable Law, each Loan Party waives all claims,
damages and demands it may acquire against the Lender arising out of the exercise by the Lender of
any of its rights hereunder. If any notice of a proposed sale or other Disposition of Facility
Collateral shall be required by law, such notice shall be deemed reasonable and proper if given at
least ten (10) days before such sale or other Disposition. The Borrower shall remain liable for
any deficiency (plus accrued interest thereon) if the proceeds of any sale or other disposition of
the Facility Collateral are insufficient to pay the Obligations and the reasonable fees and
disbursements incurred by the Lender, including reasonable fees and expenses of any attorneys
employed by the Lender to collect such deficiency. Because the Borrower recognizes that the Lender
may not be able to purchase or sell all of the Facility Collateral on a particular Business Day, or
in a transaction with the same purchaser, or in the same manner because the market for such
Facility Collateral may not be liquid, the Borrower agrees that liquidation of the Facility
Collateral does not require a public purchase or sale and that a good faith private purchase or
sale shall be deemed to have been made in a commercially reasonable manner. Accordingly, the
Lender may elect, in its sole discretion, the time and manner of liquidating any Facility
Collateral and nothing contained herein shall (i) obligate the Lender to liquidate any Facility
Collateral on the occurrence of an Event of Default or to liquidate all Facility Collateral in the
same manner or on the same Business Day or (ii) constitute a waiver of any of the Lender’s rights
or remedies.



          4.08 Continuing Liability of the Borrower. The security interests described above are
granted as security only and shall not subject the Lender or any of its assigns to, or transfer or
in any way affect or modify, any obligation, liability or indemnity of the Borrower with respect
to, any of the Facility Collateral or any transaction relating thereto. None of the Lender or its
assigns shall be required or obligated in any manner to make any inquiry as to the nature or
sufficiency of any payment received by it or the sufficiency of any performance by any party under
any such obligation, or to make any payment or present or file any claim, or to take any action to
collect or enforce any performance or the payment of any amount thereunder to which any such Person
may be entitled at any time.



          4.09 Limitation on Duties Regarding Preservation of Facility Collateral. The Lender’s
duty with respect to the custody, safekeeping and physical preservation of the Facility Collateral
in its possession, under Section 9-207 of the Uniform Commercial Code or otherwise, shall be to
deal with it in the same manner as the Lender deals with similar property for its own account.
Neither the Lender nor any of its directors, officers or employees shall be liable for failure to
demand, collect or realize upon all or any part of the Facility Collateral or for any delay in
doing so or shall be under any



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obligation to sell or otherwise dispose of any Facility Collateral upon the request of the
Borrower or otherwise.



       4.10 Powers Coupled with an Interest. All authorizations and agencies herein
contained with respect to the Facility Collateral are irrevocable and powers coupled with an
interest.



       4.11 Release of Security Interest Upon Satisfaction of all Obligations. Upon
termination of this Loan Agreement and repayment to the Lender of all Obligations and the
performance of all obligations under the Loan Documents, the Lender shall release its security
interest in any remaining Facility Collateral; provided that if any payment, or any
part thereof, of any of the Obligations is rescinded or must otherwise be restored or returned by
the Lender upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower, or upon or as a result of the appointment of a receiver, intervenor or conservator of, or
a trustee or similar officer for the Borrower or any substantial part of its Property, or
otherwise, this Loan Agreement, all rights hereunder and the Liens created hereby shall continue to
be effective, or be reinstated, until such payments have been made.



       4.12 Partial Release of Facility Collateral. Provided that no Event of Default shall
then exist, the Lender shall, in connection with any Disposition of any Facility Collateral
permitted under this Loan Agreement (other than dispositions of Facility Collateral between and
among Loan Parties and Pledged Entities), release from the Lien of the Loan Documents the portion
of the Facility Collateral Disposed of, upon the applicable Loan Parties’ satisfaction of each of
the following conditions:



          (a) the Borrower shall provide the Lender with at least ten (10) Business Days prior written
notice of its request to obtain a release of such Facility Collateral;



          (b) except in the case of a Collateral Substitution or as otherwise permitted in Appendix A,
the Lender shall have received a wire transfer of immediately available federal funds in the
amount of the proceeds of the Disposition, together with (i) all accrued and unpaid interest on
the amount of principal being prepaid through and including the prepayment date; and (ii) all
other sums then due and owing under this Loan Agreement, the Note or the other Loan Documents in
connection with a partial prepayment;



          (c) the Borrower shall submit to the Lender, not less than ten (10) Business Days prior to
the date of such release, a release of Lien (and related Loan Documents) for such Facility
Collateral for execution by Lender. Such release shall be in a form that would be satisfactory to
a prudent institutional lender. In addition, the Borrower shall provide all other documentation
the Lender reasonably requires to be delivered by the Borrower in connection with such release,
together with a certificate of a Responsible Person of the Borrower certifying that (i) such
documentation is in compliance with all applicable Requirements of Law, and (ii) the release will
not impair or otherwise adversely affect the Liens, security interests and other rights of the
Lender under the Loan Documents not being released (or as to the parties to the Loan Documents and
property subject to the Loan Documents not being released); and



          (d) the Lender shall have received payment of all the Lender’s reasonable, third party costs
and expenses, including reasonable counsel fees and disbursements incurred in connection with the
release of such Facility Collateral from the Lien of the Loan Documents and the review and
approval of the documents and information required to be delivered in connection therewith.



For the avoidance of doubt, the Lien of the Lender on Facility Collateral (i) shall be
automatically released upon the Disposition of Facility Collateral consisting of current assets
Disposed of in the ordinary course of business and (ii) other than as provided in clause (i) above,
shall not be released in



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connection with the Disposition of Facility Collateral between and among Loan Parties and Pledged
Entities unless the Net Proceeds of such Disposition have been applied in accordance with Section
2.07.



       SECTION 5. CONDITIONS PRECEDENT.



       5.01 Initial Advance. Subject to the amendments, restatements, supplements or other
modifications in Section 5.01 of Appendix A and the terms and provisions of the Post-Closing Letter
Agreement (which may permit the delivery or satisfaction of certain of the following items after
the funding of the initial Advance), the obligation of the Lender to make the initial Advance
hereunder is subject to the satisfaction, immediately prior to or concurrently with the making of
such Advance, of the following conditions precedent or waiver of such conditions precedent by the
Lender:



          (a) Loan Agreement. The Lender shall have received this Loan Agreement, duly executed
and delivered by a Responsible Person of the Borrower.



          (b) Additional Loan Documents. The Lender shall have received the following
documents, each of which shall be satisfactory to the Lender in form and substance:




     (i) Note. The original Note, duly completed and executed; and




     (ii) Loan Documents. Each additional Loan Document (including the
Post-Closing Letter Agreement), duly executed and delivered by a Responsible Person
of each of the parties thereto.



          (c) Notice of Borrowing. The Lender shall have received a duly executed Notice of
Borrowing.



          (d) Organizational Documents. The Lender shall have received a certificate of a
Responsible Person of each Loan Party attesting to the validity of a good standing certificate and
certified copies of the charter and by-laws (or equivalent documents) of such Person and of all
corporate or other authority for such Person with respect to the execution, delivery and
performance of the Loan Documents and each other document to be delivered by such Person from time
to time in connection herewith (and the Lender may conclusively rely on such certificate until it
receives notice in writing from the relevant Loan Party to the contrary).



          (e) Incumbency Certificate. The Lender shall have received an incumbency certificate
of a secretary or assistant secretary of each Loan Party certifying the names, true signatures and
titles of such Person’s representatives duly authorized to request an Advance hereunder, if
applicable, and to execute the Loan Documents and the other documents to be delivered in
connection therewith.



          (f) Other Certificates. The Lender shall have received a certificate of a
Responsible Person of each Loan Party certifying that as of the Effective Date each of the
representations and warranties set forth in this Loan Agreement are true and accurate in all
material respects (or, if any such representation or warranty is expressly stated to have been
made as of a specific date, as of such specific date) and no Default or Event of Default has
occurred and is continuing.



          (g) Legal Opinion. A legal opinion of (i) in-house counsel to the Loan Parties, (ii)
U.S. counsel to the Loan Parties, and (iii) applicable local foreign counsel to the Loan Parties,
each in form and substance satisfactory to the Lender.




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          (h) Facility Collateral. The Lender’s interests in the Facility Collateral shall be
perfected and of first priority in accordance with Applicable Law (except to the extent the
interests will be perfected on a post-closing basis, as may be agreed to by the Lender), and shall
be subject to no Liens other than those created hereunder and Permitted Liens.




          (i) Filings, Registrations, Recordings. Any documents (including, without
limitation, financing statements, patent and trademark lien filings and Mortgages) required to be
filed, registered or recorded in order to perfect the Lender’s security interest in the Facility
Collateral, shall have been properly prepared and executed for filing (including the applicable
county(ies) if the Lender determines such filings are necessary in its reasonable discretion),
registration or recording in each office in each jurisdiction in which such filings, registrations
and recordations are required to perfect such first-priority security interest (or junior lien,
with respect to any portion of the Facility Collateral subject to a Senior Lien or other Permitted
Liens).




          (j) Searches. The Lender shall have received the results of a recent lien search in
each of the jurisdictions in which Uniform Commercial Code financing statements or other filings
or recordations should be made to evidence or perfect security interests in the Facility
Collateral, and such search shall reveal no liens on any of the Facility Collateral, except for
Permitted Liens, and shall in all cases be satisfactory to the Lender.




          (k) Lien Releases. With respect to the Facility Collateral on which the Lender will
have a first priority security interest, evidence that all then-existing Liens thereon (except
Permitted Liens) have been released or will be released simultaneously with the funding of the
initial Advance.




          (l) Lien Consents. With respect to Facility Collateral subject to a Senior Lien,
either (i) the Lender and the applicable Senior Lien Lender shall have entered into an
intercreditor agreement, in form and substance satisfactory to Lender in its sole discretion or
(ii) or the applicable Loan Parties shall have obtained the necessary waivers, amendments,
approvals, and consents to the pledge of the Facility Collateral prior to the Effective Date.




          (m) Fees and Expenses. The Lender shall have received all fees and expenses required
to be paid by the Borrower on or prior to the Effective Date, including, but not limited to,
counsel fees, which fees and expenses may be netted out of the initial Advance made by the Lender
hereunder.




          (n) Financial Statements. The Lender shall have received the financial statements
referenced in Section 6.02 for the quarter ended September 30, 2008 and year ended December 31,
2007.




          (o) Consents, Licenses, Approvals, etc. The Lender shall have received copies
certified by each Loan Party of all consents, licenses and approvals, if any, including, but not
limited to, consent and approvals of all relevant shareholders and members required in connection
with the execution, delivery and performance by each Loan Party of, and the validity and
enforceability of, the Loan Documents, which consents, licenses and approvals shall be in full
force and effect.




          (p) Insurance. The Lender shall have received evidence in form and substance
satisfactory to the Lender showing compliance by each Loan Party as of the Effective Date with
Section 7.06 hereof, to the extent applicable to such Loan Party.




          (q) Litigation. There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or threatened before any
Governmental




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Authority that (i) could have a Material Adverse Effect or (ii) purports to challenge the
legality, validity or enforceability of any Loan Document or the consummation of the transaction
contemplated hereby.




          (r) Pledged Equity. With respect to the Collateral (as defined in the Equity Pledge
Agreement) pledged to the Lender under the Equity Pledge Agreement, (i) the Pledgor shall have
complied with Sections 2.3 and 2.4 of the Equity Pledge Agreement, and (ii) the Lender shall have
received an Acknowledgment and Consent, substantially in the form of Exhibit B, duly executed by
each Pledged Entity (an “Acknowledgement and Consent”). In addition, the Lender shall
have received evidence that the registries of ownership interests for all uncertificated Pledged
Equity reflects the Lender’s security interests in the Pledged Equity.




          (s) Pledged Entity. The Borrower and the Pledgors shall deliver to the Lender a good
standing certificate for each Pledged Entity and copies of the certificate of formation, articles
of incorporation, by-laws and operating agreement (or equivalent documents) of such Pledged
Entity, as the Lender may reasonably require.




          (t) Pledged Equity Consents. With respect to the Pledged Entities and to the extent
required, the Lender shall have received all required approvals and consents to the pledge of the
Pledged Equity to the Lender duly executed by each creditor, joint venture partner, regulatory
body and any other Person or Governmental Authority with such approval and consent rights.




          (u) Guaranty Consents. The Lender shall have received all required approvals and
consents to the Guaranty duly executed by each creditor, JV Partner, regulatory body and any other
Person or Governmental Authority with such approval and consent rights.




          (v) Waivers.





     (i) A waiver shall have been duly executed by each Loan Party and delivered to
the Lender, in substantially the form attached hereto as Exhibit G-1, releasing the
Lender from any claims that any Loan Party may otherwise have as a result of (A) any
modifications to the terms of any Benefit Plans, arrangements and agreements to
eliminate any provisions that would not be in compliance with the executive
compensation and corporate governance requirements of Section 111 of the EESA and
the executive compensation requirements of Section 7.17 and (B) the Loan Parties’
failure to pay or accrue any bonus or incentive compensation as a result of any
action referenced in this Loan Agreement;




     (ii) A waiver shall have been duly executed by each SEO and delivered to the
Lender, in substantially the form attached hereto as Exhibit G-2, releasing the
Lender from any claims that any SEO may otherwise have as a result of any
modifications to the terms of any Benefit Plans, arrangements and agreements to
eliminate any provisions that would not be in compliance with the executive
compensation and corporate governance requirements of Section 111 of the EESA and
the executive compensation requirements of Section 7.17;




     (iii) A consent and waiver shall have been duly executed by each SEO and
delivered to the Loan Parties (with a copy to the Lender), in substantially the form
attached hereto as Exhibit G-3, releasing the Loan Parties from any claims that any
SEO may otherwise have as a result of any modification of the terms of any Benefit
Plans, arrangements and agreements to eliminate any provisions that would not be in



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compliance with the executive compensation and corporate governance
requirements of Section 111 of the EESA and the executive compensation requirements
of Section 7.17;




        (iv) A waiver shall have been duly executed by each Senior Employee and
delivered to the Lender, in substantially the form attached hereto as Exhibit G-4,
releasing the Lender from any claims that any Senior Employees may otherwise have as
a result of the Loan Parties’ failure to pay or accrue any bonus or incentive
compensation as a result of any action referenced in this Loan Agreement; and




        (v) A consent and waiver shall have been duly executed by each Senior Employee
and delivered to the Loan Parties (with a copy to the Lender), in substantially the
form attached hereto as Exhibit G-5, releasing the Loan Parties from any claims that
any Senior Employee may otherwise have as a result of the Loan Parties’ failure to
pay or accrue any bonus or incentive compensation as a result of any action
referenced in this Loan Agreement.



          5.02 Initial and Subsequent Advances. Subject to the amendments, restatements,
supplements or other modifications in Section 5.02 of Appendix A and the terms and provisions of
the Post-Closing Letter Agreement, the making of each Advance to the Borrower (including the
initial Advance) on each Funding Date is subject to the following further conditions precedent both
immediately prior to the making of such Advance and also after giving effect thereto and to the
intended use thereof:




             (a) no Default or Event of Default shall have occurred and be continuing;




             (b) both immediately prior to the making of such Advance and also after giving effect thereto
and to the intended use thereof, the representations and warranties made by each Loan party in
Section 6 hereof, and by each Loan Party in each of the other Loan Documents, shall be true and
complete on and as of the date of the making of such Advance in all material respects with the
same force and effect as if made on and as of such date (or, if any such representation or
warranty is expressly stated to have been made as of a specific date, as of such specific date).
At the request of the Lender, the Lender shall have received an officer’s certificate signed by a
Responsible Person of the Borrower certifying as to the truth and accuracy of the above, which
certificate shall be in form and substance acceptable to the Lender in its sole, reasonable
discretion.;




             (c) the aggregate principal amount of the Advances funded hereunder shall not exceed the
Maximum Loan Amount;




             (d) subject to the Lender’s right to perform one or more Due Diligence Reviews pursuant to
Section 11.16 hereof, the Lender shall have completed its due diligence review of such documents,
records, agreements, instruments, mortgaged properties or information relating to such Advance as
the Lender in its reasonable discretion deems appropriate to review and such review shall be
satisfactory to the Lender in its reasonable discretion;




             (e) the Lender shall have received a Notice of Borrowing and all other documents required
under Section 2.03;




             (f) the Lender shall have determined that all actions necessary or, in the opinion of the
Lender, desirable to maintain the Lender’s perfected interest in the Facility Collateral have been
taken (including after-acquired Facility Collateral), including, without limitation, duly filed
Uniform Commercial Code financing statements on Form UCC-1, duly filed liens with the United
States Copyright Office and the United States Patent and Trademark Office, and duly recorded
Mortgages;




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             (g) the Borrower shall have paid to the Lender all fees and expenses owed to the Lender,
including without limitation, reasonable attorney’s fees, in accordance with this Loan Agreement
and any other Loan Document;




             (h) the Lender or its designee shall have received any other documents reasonably requested
by the Lender and the Borrower shall have provided such documents within a reasonable period of
time after such request; and




             (i) each Loan Party shall have performed (to the satisfaction of the Lender) all other
conditions to the making of an Advance requested by the Lender, including, without limitation,
compliance in all respects with the terms and conditions of the Post-Closing Letter Agreement.




             (j) in the event that the Loan Parties were unable to obtain the necessary waivers,
amendments, approvals and consents described in Section 5.01(l), each Monday (or if such day is
not a Business Day, the next succeeding Business Day), the Borrower shall deliver to the Lender a
weekly status report, commencing with the week of January 5, 2009, identifying each holder of a
Senior Lien and each Senior Lien Lender, and the actions taken by the Loan Parties to obtain such
necessary waivers, amendments, approvals, and consents.



Each request for a borrowing by the Borrower hereunder shall constitute a certification by the
Borrower to the effect set forth in this Section (both as of the date of such notice, request or
confirmation and as of the date of such borrowing).




          SECTION 6. REPRESENTATIONS AND WARRANTIES. Each Loan Party, as applicable, represents
and warrants to the Lender that as of the Effective Date and as of each Funding Date:




          6.01 Existence. Each Loan Party (a) is a corporation, limited partnership or limited
liability company duly organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has all requisite corporate or other power, and has all
governmental licenses, authorizations, consents and approvals, necessary to own its assets and
carry on its business as now being or as proposed to be conducted, except where the lack of such
licenses, authorizations, consents and approvals would not be reasonably likely to have a Material
Adverse Effect, (c) is qualified to do business and is in good standing in all other jurisdictions
in which the nature of the business conducted by it makes such qualification necessary, except
where failure so to qualify would not be reasonably likely (either individually or in the
aggregate) to have a Material Adverse Effect, and (d) is in compliance in all material respects
with all Requirements of Law.




          6.02 Financial Condition. The Borrower has heretofore furnished to the Lender a copy
of its audited Consolidated balance sheets and the audited Consolidated balance sheets of its
Consolidated Subsidiaries (including each Loan Party), each as at December 31, 2007, with the
opinion thereon of an independent auditor, a copy of which has been provided to the Lender,
together with copies of the Borrower’s unaudited pro forma Consolidated balance sheet and the
unaudited pro forma Consolidated balance sheets of its Consolidated Subsidiaries (including each
Loan Party), each as of the Effective Date. The Borrower has also heretofore furnished to the
Lender the related Consolidated statements of income and retained earnings and of cash flows for
the Borrower and its Consolidated Subsidiaries (including each Loan Party) for its most recent
fiscal year, setting forth in comparative form the same information for the previous year. All
such financial statements are materially complete and correct and fairly present the Consolidated
financial condition of the Borrower and its Consolidated Subsidiaries (including each Loan Party)
and the Consolidated results of their operations for the fiscal year ended on said date, all in
accordance with GAAP applied on a consistent basis. There are no





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liabilities, contingent or otherwise, as of the Effective Date, known to any Loan Party and
not disclosed in the most recently publicly filed financial statements or in the footnotes thereto,
that involve a material amount or as otherwise disclosed to the Lender in writing prior to the
Effective Date.




          6.03 Litigation. Except as set forth on Schedule 6.03 hereto or otherwise disclosed
by a Responsible Person in writing to the Lender from time to time, there are no actions, suits,
arbitrations, investigations or proceedings pending or, to its knowledge, threatened against any
Loan Party or any of their Subsidiaries or affecting any of the property thereof before any
Governmental Authority, (i) as to which individually or in the aggregate there is a reasonable
likelihood of an adverse decision which could reasonably be expected to have a Material Adverse
Effect or (ii) which questions the validity or enforceability of this Loan Agreement or any of the
other Loan Documents or any action to be taken in connection with the transactions contemplated
hereby or thereby and could reasonably be expected to have a Material Adverse Effect or adverse
decision.




          6.04 No Breach. Neither the execution and delivery of the Loan Documents nor the
consummation of the transactions therein contemplated in compliance with the terms and provisions
thereof will (a) conflict with or result in a breach of (i) the charter, by laws, operating
agreement or similar organizational document of any Loan Party, (ii) any Requirement of Law, (iii)
any Applicable Law, rule or regulation, or any order, writ, injunction or decree of any
Governmental Authority, (iv) any material Contractual Obligation to which any Loan Party, or any of
their Subsidiaries, is a party or by which any of them or any of their Property is bound or to
which any of them or any of their Property is subject, or (b) constitute a default under any such
Contractual Obligation, or (c) (except for the Liens created pursuant to this Loan Agreement and
Permitted Liens) result in the creation or imposition of any Lien upon any property of any Loan
Party or any of their Subsidiaries, pursuant to the terms of any such agreement or instrument.




          6.05 Action, Binding Obligations. Each Loan Party has all necessary corporate or
other power, authority and legal right to execute, deliver and perform its obligations under each
of the Loan Documents to which it is a party; the execution, delivery and performance by each Loan
Party of each of the Loan Documents to which it is a party has been duly authorized by all
necessary corporate or other action on its part; and each Loan Document has been duly and validly
executed and delivered by each Loan Party and constitutes a legal, valid and binding obligation of
all of the Loan Parties, enforceable against all of the Loan Parties in accordance with its terms,
subject to the Bankruptcy Exceptions.




          6.06 Approvals. No authorizations, approvals or consents of, and no filings or
registrations with, any Governmental Authority, or any other Person, are necessary for the
execution, delivery or performance by each Loan Party of the Loan Documents to which it is a party
for the legality, validity or enforceability thereof, except for filings and recordings or other
actions in respect of the Liens created pursuant to this Loan Agreement unless the same has already
been obtained and provided to the Lender.




          6.07 Taxes. Each Loan Party and its Subsidiaries have filed all Federal income tax
returns and all other material tax returns that are required to be filed by them and have paid all
Federal and material State and local taxes due pursuant to such returns or pursuant to any
assessment received by any of them, except for any such taxes, if any, that are being appropriately
contested in good faith by appropriate proceedings diligently conducted and with respect to which
adequate reserves have been provided. The charges, accruals and reserves on the books of each Loan
Party and its Subsidiaries in respect of taxes and other governmental charges are, in the opinion
of such Loan Party, adequate. Any taxes, fees and other governmental charges payable by any Loan
Party in connection with the Advances and the execution and delivery of the Loan Documents have
been paid.




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          6.08 Investment Company Act. None of the Loan Parties is required to register as an
“investment company”, or is a company “controlled” by a Person required to register as an
“investment company”, within the meaning of the Investment Company Act of 1940, as amended. No Loan
Party is subject to any Federal or state statute or regulation which limits its ability to incur
Indebtedness.




          6.09 No Default. Neither any Loan Party nor any of its Subsidiaries is in default
under or with respect to any of their Contractual Obligations in any respect which could reasonably
be expected to have a Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.




          6.10 Chief Executive Office; Chief Operating Office. The chief executive office and
the chief operating office on the Effective Date for each Loan Party is located at the location set
forth on Schedule 6.10 hereto.




          6.11 Location of Books and Records. The location where the Loan Parties keep their
books and records including all Records relating to their business and operations and the Facility
Collateral are located in the locations set forth in Schedule 6.11.




          6.12 True and Complete Disclosure. The information, reports, financial statements,
exhibits and schedules furnished by or on behalf of any Loan Party to the Lender or its agents or
representatives in connection with the negotiation, preparation or delivery of this Loan Agreement
and the other Loan Documents (including, without limitation, the list of accounts provided by the
Loan Parties in connection with the Account Control Agreements and set forth on a schedule attached
thereto) or included herein or therein or delivered pursuant hereto or thereto, when taken as a
whole, do not contain any untrue statement of material fact or omit to state any material fact
necessary to make the statements herein or therein, in light of the circumstances under which they
were made, not misleading, it being understood that in the case of projections, such projections
are based on reasonable estimates, on the date as of which such information is stated or certified.
All information furnished after the date hereof by or on behalf of any Loan Party to the Lender in
connection with this Loan Agreement and the other Loan Documents and the transactions contemplated
hereby and thereby will be true, complete and accurate in every material respect, or (in the case
of projections) based on reasonable estimates, on the date as of which such information is stated
or certified. There is no fact known to a Responsible Person of any Loan Party that, after due
inquiry, could reasonably be expected to have a Material Adverse Effect that has not been disclosed
herein, in the other Loan Documents or in a report, financial statement, exhibit, schedule,
disclosure letter or other writing furnished to the Lender for use in connection with the
transactions contemplated hereby or thereby.




          6.13 Material Agreements. Except as provided in Appendix A, set forth on
Schedule 6.13 is a complete and accurate list as of the date hereof of all material Existing
Agreements, except Licenses.




          6.14 ERISA. ERISA provisions shall be set forth in Section 6.14 of Appendix A.




          6.15 Expense Policy. The Borrower has taken steps necessary to ensure that (a) the
Expense Policy conforms to the requirements set forth herein and (b) the Borrower and its
Subsidiaries are in compliance with the Expense Policy.




          6.16 Subsidiaries. All of the Subsidiaries of each Loan Party at the date hereof are
listed on Schedule 6.16, which schedule sets forth the name and jurisdiction of formation of each
of their





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Subsidiaries and, as to each such Subsidiary, the percentage of each class of Equity Interests
owned by each Loan Party or any of their Subsidiaries except as set forth on Schedule 6.16.




          6.17 Capitalization. One hundred percent (100%) of the issued and outstanding Equity
Interests of each Loan Party is owned by the Persons listed on Schedule 6.17 and, to the knowledge
of each Loan Party, such Equity Interests are owned by such Persons, free and clear of all Liens
other than Permitted Liens. No Loan Party has issued or granted any options or rights with respect
to the issuance of its respective Equity Interests which is presently outstanding except as set
forth on Schedule 6.17 hereto.




          6.18 Fraudulent Conveyance. Each Loan Party acknowledges that it will benefit from
the Advances contemplated by this Agreement. No Loan Party is incurring Indebtedness or
transferring any Facility Collateral with any intent to hinder, delay or defraud any of its
creditors.




          6.19 USA PATRIOT Act.




             (a) Each Loan Party represents and warrants that neither it nor any of its respective
Affiliates over which it exercises management control (a “Controlled Affiliate”) is a
Prohibited Person, and such Controlled Affiliates are in compliance with all applicable orders,
rules, regulations and recommendations of OFAC.




             (b) Each Loan Party represents and warrants that neither it nor any of its members,
directors, officers, employees, parents, Subsidiaries or Affiliates: (1) are subject to U.S. or
multilateral economic or trade sanctions currently in force; (2) are owned or controlled by, or
act on behalf of, any governments, corporations, entities or individuals that are subject to U.S.
or multilateral economic or trade sanctions currently in force; (3) is a Prohibited Person or is
otherwise named, identified or described on any blocked persons list, designated nationals list,
denied persons list, entity list, debarred party list, unverified list, sanctions list or other
list of individuals or entities with whom U.S. persons may not conduct business, including but not
limited to lists published or maintained by OFAC, lists published or maintained by the U.S.
Department of Commerce, and lists published or maintained by the U.S. Department of State.




             (c) None of the Facility Collateral are traded or used, directly or indirectly by a
Prohibited Person or organized in a Prohibited Jurisdiction.




             (d) Each Loan Party has established an anti-money laundering compliance program as required
by all applicable anti-money laundering laws and regulations, including without limitation the
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (Public Law 107-56) (the “USA PATRIOT Act”) (collectively,
the “Anti-Money Laundering Laws”).




          6.20 Embargoed Person. As of the date hereof and at all times throughout the term of
any Advance, (a) none of any Loan Party’s funds or other assets constitute property of, or are
beneficially owned, directly or indirectly, by any person, entity or government subject to trade
restrictions under U.S. law, including but not limited to, the International Emergency Economic
Powers Act, 50 U.S.C. §§ 1701 et seq., The Trading with the Enemy Act, 50 U.S.C.
App. 1 et seq. (the “Trading With the Enemy Act”), any of the foreign
assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter
V, as amended) (the “Foreign Assets Control Regulations”) or any enabling legislation or
regulations promulgated thereunder or executive order relating thereto (which for the avoidance of
doubt shall include but shall not be limited to (i) Executive Order No. 13224, effective as of
September 24, 2001 and relating to Blocking Property and Prohibiting Transactions With Persons Who





- 42 -









 







Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) (the
“Executive Order”) and (ii) the USA PATRIOT Act, with the result that the investment in the
Borrower (whether directly or indirectly), is prohibited by law or any Advance made by the Lender
is in violation of law (“Embargoed Person”); (b) no Embargoed Person has any interest of
any nature whatsoever in it with the result that the investment in it (whether directly or
indirectly), is prohibited by law or any Advance is in violation of law; (c) none of its funds have
been derived from any unlawful activity with the result that the investment in it (whether directly
or indirectly), is prohibited by law or any Advances is in violation of law; and (d) neither it nor
any of its Affiliates (i) is or will become a “blocked person” as described in the Executive Order,
the Trading With the Enemy Act or the Foreign Assets Control Regulations or (ii) engages or will
engage in any dealings or transactions, or be otherwise associated, with any such “blocked person”.
For purposes of determining whether or not a representation with respect to any indirect ownership
is true or a covenant is being complied with under this Section 6.20, no Loan Party shall be
required to make any investigation into (i) the ownership of publicly traded stock or other
publicly traded securities or (ii) the ownership of assets by a collective investment fund that
holds assets for employee benefit plans or retirement arrangements.




          6.21 Borrowing for Own Benefit. The Loan Parties are the ultimate beneficiaries of
this Loan Agreement and the Advances to be received hereunder. The Borrower will use the proceeds
of the Advances solely as set forth in Section 2.09 and the use of the Advances will comply with
all Applicable Laws, including money laundering laws. No portion of any Advance is to be used, for
the “purpose of purchasing or carrying” any “margin stock” as such terms are used in Regulations U
and X of the Board, as amended, and the Borrower is not engaged in the business of extending credit
to others for such purpose.




          6.22 Indebtedness. No Loan Party has incurred any Indebtedness other than Permitted
Indebtedness. The Indebtedness set forth on Schedule 6.22 is a complete and accurate list as of
the date hereof of all existing material Indebtedness (including the Senior Lien Loans), excluding
intercompany Indebtedness of each Loan Party, showing the parties and amendments and modifications
thereto. Other than as set forth on Schedule 6.22, as of the date hereof, each contract related to
existing Indebtedness of each Loan Party, excluding intercompany Indebtedness (i) is in full force
and effect and is binding upon and enforceable against each Loan Party that is a party thereto and,
to the knowledge of the Loan Parties, all other parties thereto in accordance with its terms, (ii)
has not been otherwise amended or modified, except as set forth on Schedule 6.22, and (iii) is not
in default due to the action of any Loan Party or, to the knowledge of any Loan Party, any other
party thereto, except to the extent any such defaults would not reasonably be expected to have a
Material Adverse Effect.




          6.23 Labor Matters. (a) There are no strikes against any Loan Party pending or, to
the knowledge of any Loan Party, threatened; (b) hours worked by and payment made to employees of
each Loan Party have not been in violation of the Fair Labor Standards Act or any other applicable
Requirement of Law dealing with such matters; and (c) all payments due from each Loan Party on
account of employee health and welfare benefits, or health or welfare benefits to any former
employees of any Loan Party or for which any Loan Party has any liability or obligation have been
paid or accrued as a liability on the books of such Loan Party in accordance with GAAP, except
where the failure to make or accrue such payments could not reasonably be expected to have a
Material Adverse Effect.




          6.24 Survival of Representations and Warranties. Each Loan Party agrees that all of
the representations and warranties of such Loan Party set forth in this Section 6 and elsewhere in
this Loan Agreement and in the other Loan Documents shall survive for so long as any amount remains
owing to the Lender under this Loan Agreement or any of the other Loan Documents by any Loan Party.
All representations, warranties, covenants and agreements made in this Loan Agreement or in the
other Loan





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Documents by each Loan Party shall be deemed to have been relied upon by the Lender
notwithstanding any investigation heretofore or hereafter made by the Lender or on their behalf.




       6.25 Representations Concerning the Facility Collateral. Each Loan Party represents
and warrants to the Lender that as of each day that an Advance is outstanding pursuant to this Loan
Agreement:




          (a) No Loan Party has assigned, pledged, conveyed, or encumbered any Facility Collateral to
any other Person (other than Permitted Liens) and immediately prior to the pledge of any such
Facility Collateral, a Loan Party was the sole owner of such Facility Collateral and had good and
marketable title thereto, free and clear of all Liens (other than Permitted Liens), and no Person,
other than the Lender has any Lien (other than Permitted Liens) on any Facility Collateral. No
security agreement, financing statement, equivalent security or lien instrument or continuation
statement covering all or any part of the Facility Collateral which has been signed by any Loan
Party or which any Loan Party has authorized any other Person to sign or file or record, is on
file or of record with any public office, except such as may have been filed by or on behalf of a
Loan Party in favor of the Lender pursuant to the Loan Documents or in respect of applicable
Permitted Liens.




          (b) The provisions of the Loan Documents are effective to create in favor of the Lender a
valid security interest in all right, title, and interest of each Loan Party in, to and under the
Facility Collateral, subject only to applicable Permitted Liens.




          (c) Upon the filing of financing statements on Form UCC-1 naming the Lender as “Secured
Party” and each Loan Party as “Debtor”, and describing the Facility Collateral, in the
jurisdictions and recording offices listed on Schedule 6.25 attached hereto, the security
interests granted hereunder in the Facility Collateral will constitute perfected first priority
security interests under the Uniform Commercial Code in all right, title and interest of the
applicable Loan Party in, to and under such Facility Collateral, which can be perfected by filing
under the Uniform Commercial Code except with respect to any Facility Collateral in which a Senior
Lien Lender has been granted a security interest, in which case, the security interests granted
hereunder in the Facility Collateral will constitute a junior Lien on such Facility Collateral, in
each case, subject to applicable Permitted Liens.




          (d) Each Loan Party has and will continue to have the full right, power and authority, to
pledge the Facility Collateral, and the pledge of the Facility Collateral may be further assigned
without any requirement.




       6.26 Intellectual Property.




          (a) Each of the Loan Parties owns and controls, or otherwise possesses adequate rights to
use, all Intellectual Property material to the conduct of its business in substantially the same
manner as conducted as of the date hereof. Schedule 6.26 hereto sets forth a true and complete
list as of the date hereof of all Intellectual Property owned by each Loan Party that is material
to the conduct of the business of such Loan Party. All such Intellectual Property, other than
Licenses, that is material to the conduct of the business of such Loan Party is subsisting and in
full force and effect, has not been adjudged invalid or unenforceable, is valid and enforceable
and has not been abandoned in whole or in part, except for such instances which, individually or
in the aggregate, could not reasonably be expected to have a Material Adverse Effect. Except as
set forth in Schedule 6.26, no such Intellectual Property that is material to the conduct of the
business of such Loan Party is the subject of any licensing or franchising agreement that
prohibits or restricts any Loan Party’s conduct of business as presently conducted. No Loan Party
has any knowledge of any conflict with the rights of others to any Intellectual Property and, to
the best knowledge of each Loan Party, no Loan Party is now infringing or in conflict





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with any such rights of others in any material respect, and to the best knowledge of each
Loan Party, no other Person is now infringing or in conflict in any material respect with any such
properties, assets and rights owned or used by or licensed to any Loan Party, except for such
infringements and conflicts which, individually or in the aggregate, could not reasonably be
expected to have a Material Adverse Effect. Except as set forth on Schedule 6.26 hereto, no Loan
Party has received any notice that it is violating or has violated the trademarks, patents,
copyrights, inventions, trade secrets, proprietary information and technology, know-how, formulae,
rights of publicity or other intellectual property rights of any third party, which, individually
or in the aggregate, could reasonably be expected to have a Material Adverse Effect.




          (b) Each material License now existing is, and each other material License will be, the
legal, valid and binding obligation of the parties thereto, enforceable against such parties in
accordance with its terms, except any unenforceability which could not reasonably be expected to
have a Material Adverse Effect. To the knowledge of each Loan Party, no default thereunder by any
such party has occurred, nor does any defense, offset, deduction, or counterclaim exist thereunder
in favor of any such party which could reasonably be expected to have a Material Adverse Effect.
Except as set forth on Schedule 6.26, each material License either (a) permits by its terms (1)
the pledge of the License, (2) the foreclosure on any such License by the Lender, and (3) any
potential change of control of the relevant Loan Party without material impairment of the License,
or (b) is subject to a waiver or consent secured by the relevant Loan Party.




          (c) The Borrower will use its best efforts to ensure that the Lender is obtaining through the
Loan Documents sufficient rights and assets to enable a subsequent purchaser of the Facility
Collateral in a sale pursuant to Section 4.07 to manufacture vehicles of substantially the same
quality and nature as those sold by Borrower as of the date hereof, provided that such purchaser
has access to reasonably common motor vehicle technologies and manufacturing capabilities
appropriate for vehicles of such nature, and market such vehicles through substantially similar
channels as those employed by Borrower.




       6.27 JV Agreements.




          (a) Set forth on Schedule 6.27 is a complete and accurate list as of the date hereof of all
JV Agreements, showing the parties and the dates of amendments and modifications thereto.




          (b) Each JV Agreement (i) is in full force and effect and is binding upon and enforceable
against each party thereto, (ii) has not been otherwise amended or modified, except as set forth
on Schedule 6.27, and (iii) is not in default and no event has occurred that, with the passage of
time and/or the giving of notice, or both, would constitute a default thereunder, except to the
extent any such default would not reasonably be expected to have a Material Adverse Effect.




       6.28 Senior Lien Assets. Set forth on Schedule 6.28 is a complete and accurate list of
all assets of each Loan Party subject to a Senior Lien.




       6.29 Excluded Collateral. Set forth on Schedule 6.29 is a complete and accurate list
of all Excluded Collateral of each Loan Party.




       6.30 Mortgaged Real Property. Except for those certain properties described on
Schedule 6.30, after giving effect to the recording of the Mortgages, all real property that is
either owned in fee simple or leased pursuant to a ground lease having a term of at least fifteen
(15) years by the Loan Parties (whether individually or collectively) and located in the United
States shall be subject to a recorded first lien mortgage, deed of trust or similar security
instrument (subject to Permitted Liens),





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except where the grant of such a lien (a) is legally impermissible, (b) is contractually
prohibited (and waiver of such prohibition has not been obtained), or (c) would give rise to the
obligation to create a Lien in favor of any other Person as set forth in Schedule 6.30 hereto.




          6.31 Additional Representations and Warranties. Additional representations and
warranties, and amendments, restatements, supplements or other modifications to those in this
Section 6 are set forth in Section 6 of Appendix A.




          SECTION 7. AFFIRMATIVE AND FINANCIAL COVENANTS OF THE LOAN PARTIES.




          Subject to the amendments, restatements, supplements or other modifications in Section 7 of
Appendix A, each Loan Party covenants and agrees with the Lender that, so long as any Advance is
outstanding and until payment in full of all Obligations:




          7.01 Financial Statements. Except as may otherwise be required pursuant to Appendix
A, the Borrower shall deliver to the Lender:




             (a) as soon as available and in any event within forty-five (45) days after the end of each
month, the Consolidated balance sheets of the Borrower and its Consolidated Subsidiaries
(including the Loan Parties) as at the end of such month and the related unaudited Consolidated
statements of income and retained earnings and of cash flows for the Borrower and its Consolidated
Subsidiaries (including the Loan Parties) for such month and the portion of the fiscal year
through the end of such month, setting forth in each case in comparative form the figures for the
previous year;




             (b) as soon as available and in any event within sixty (60) days after the end of each of the
first three quarterly fiscal periods of each fiscal year of the Borrower, the Consolidated balance
sheets of the Borrower and its Consolidated Subsidiaries (including the Loan Parties) as at the
end of such period and the related unaudited Consolidated statements of income and retained
earnings and of cash flows for the Borrower and its Consolidated Subsidiaries (including the Loan
Parties) for such period and the portion of the fiscal year through the end of such period,
setting forth in each case in comparative form the figures for the previous year;




             (c) as soon as available and in any event within ninety (90) days after the end of each
fiscal year of the Borrower, the Consolidated balance sheets of the Borrower and its Consolidated
Subsidiaries (including the Loan Parties) as at the end of such fiscal year and the related
Consolidated statements of income and retained earnings and of cash flows for the Borrower and its
Consolidated Subsidiaries for such year, setting forth in each case in comparative form the
figures for the previous year, accompanied by an opinion thereon of independent certified public
accountants of recognized national standing, which opinion shall state that said Consolidated
financial statements fairly present the Consolidated financial condition and results of operations
of the Borrower and its Consolidated Subsidiaries (including the Loan Parties) at the end of, and
for, such fiscal year in accordance with GAAP;




             (d) as soon as reasonably possible after receipt by the subject Loan Party, a copy of any
material report that may be prepared and submitted by such Loan Party’s independent certified
public accountants at any time;




             (e) from time to time such other information regarding the financial condition, operations,
or business of any Loan Party as the Lender may reasonably request;




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          (f) promptly upon their becoming available, copies of such other financial statements and
reports, if any, as any Loan Party may be required to publicly file with the Securities and
Exchange Commission or any similar or corresponding governmental commission, department or agency
substituted therefor, or any similar or corresponding governmental commission, department, board,
bureau, or agency, federal or state; and




          (g) as soon as reasonably possible, and in any event within five (5) Business Days after a
Responsible Person of a Loan Party knows or has reason to believe, that any of the events or
conditions specified below with respect to any Plan or Multiemployer Plan has occurred or exists,
a statement signed by a Responsible Person of the relevant Loan Party setting forth details
respecting such event or condition and the action, if any, that such Loan Party or its ERISA
Affiliate proposes to take with respect thereto (and a copy of any report or notice required to be
filed with or given to PBGC by such Loan Party or an ERISA Affiliate with respect to such event or
condition):





     (i) any Reportable Event (provided that a failure to meet the minimum funding
standard of Section 412 of the Code or Section 302 of ERISA, including, without
limitation, the failure to make on or before its due date a required installment
under the Code or ERISA, shall be a reportable event regardless of the issuance of
any waivers in accordance with Section 412(d) of the Code); and any request for a
waiver under Section 412(d) of the Code for any Plan;




     (ii) the distribution under Section 4041(c) of ERISA of a notice of intent to
terminate any Plan or any action taken by any Loan Party or an ERISA Affiliate to
terminate any Plan;




     (iii) the institution by PBGC of proceedings under Section 4042 of ERISA for
the termination of, or the appointment of a trustee to administer, any Plan, or the
receipt by any Loan Party or any ERISA Affiliate of a notice from a Multiemployer
Plan that such action has been taken by PBGC with respect to such Multiemployer
Plan;




     (iv) the complete or partial withdrawal from a Multiemployer Plan by any Loan
Party or any ERISA Affiliate that results in liability under Section 4201 or 4204 of
ERISA (including the obligation to satisfy secondary liability as a result of a
purchaser default) or the receipt by any Loan Party or any ERISA Affiliate of notice
from a Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA or that it intends to terminate or has terminated
under Section 4041A of ERISA;




     (v) the institution of a proceeding by a fiduciary of any Multiemployer Plan
against any Loan Party or any ERISA Affiliate to enforce Section 515 of ERISA, which
proceeding is not dismissed within thirty (30) days; and




     (vi) any violation of section 401(a)(29) of the Code.



          (h) as soon as available and in any event within thirty (30) days after the end of each of
the first quarterly fiscal period of each fiscal year of the Borrower commencing in the year 2010,
updated Schedules to this Loan Agreement, which shall be true, accurate and complete in all
material respects as of the last Business Day of such fiscal period.




          The Borrower will furnish to the Lender, at the time it furnishes each set of financial
statements pursuant to paragraphs (a), (b) and (c) above, a certificate of a Responsible Person of
the




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Borrower in the form of Exhibit E, wherein such Responsible Person shall certify that, (i)
said Consolidated financial statements fairly present the Consolidated financial condition and
results of operations of the Borrower and its Subsidiaries (including the Loan Parties) in
accordance with GAAP, consistently applied, as at the end of, and for, such period (subject to
normal year-end audit adjustments and the absence of footnotes if applicable), (ii) to the best of
such Responsible Person’s knowledge, each Loan Party during such fiscal period or year has observed
or performed all of its covenants and other agreements in all material respects, is in compliance
with the representations and warranties in this Loan Agreement and the other Loan Documents and has
satisfied every material condition contained in this Loan Agreement and the other Loan Documents to
be observed, performed or satisfied by them, and that such Responsible Person has obtained no
knowledge of any Default or Event of Default except as specified in such certificate (and, if any
Default or Event of Default has occurred and is continuing, describing the same in reasonable
detail and describing the action the Borrower has taken or proposes to take with respect thereto)
and (iii) that it is in compliance with the financial covenants set forth by the President’s
Designee pursuant to Section 7.03 and shall include calculations necessary to demonstrate such
compliance to the reasonable satisfaction of the Lender.




       7.02 Reporting Requirements. The relevant Loan Party shall deliver written notice to
the Lender of the following:




          (a) Defaults. Promptly after a Responsible Person or any officer of a Loan Party
with a title of at least executive vice president becomes aware of the occurrence of any Default
or Event of Default, or any event of default under any publicly filed material agreement;




          (b) Litigation. Promptly after a Responsible Person or an attorney in the general
counsel’s office of such Loan Party obtains knowledge of any action, suit or proceeding instituted
by or against such Loan Party or any of its Subsidiaries in any federal or state court or before
any commission, regulatory body or Governmental Authority in which the amount in controversy, in
each case, is an amount equal to $100,000,000 or more, such Loan Party shall furnish to the Lender
notice of such action, suit or proceeding;




          (c) Material Adverse Effect on Facility Collateral. Promptly upon any Loan Party
becoming aware of any default or any event or change in circumstances related to any Facility
Collateral which, in each case, could reasonably be expected to have a Material Adverse Effect;




          (d) Change of Control. The Borrower shall furnish the Lender notice of any Change of
Control prior to the occurrence of such event;




          (e) Judgment. Promptly upon the entry of a judgment or decree against any Loan Party
or any of its Subsidiaries in an amount in excess of $50,000,000;




          (f) Insurance. Promptly upon any material change in the insurance coverage required
of any Loan Party or any other Person pursuant to any Loan Document, with copy of evidence of same
attached;




          (g) Change in Accounting Policies. Simultaneously with the delivery of the financial
information required pursuant to Section 7.01(b) or 7.01(c), any material change in accounting
policies or financial reporting practices of the Borrower or any of its Consolidated Subsidiaries
(including the Loan Parties) since the delivery of the latest financial information required under
such sections;




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          (h) Organizational Documents. Subject to Section 8.06, each Loan Party shall furnish
the Lender notice of any material amendment to such Loan Party’s organizational documents and
copies of such amendments;




          (i) 13-Week Rolling Cash Forecast. On each Monday (or if such day is not a Business
Day, the next succeeding Business Day), the Borrower shall deliver to the Lender a weekly status
report, commencing with the week that includes the Effective Date, detailing the 13-week rolling
cash forecast for each Loan Party and its Subsidiaries (on a Consolidated and consolidating basis)
in a form agreed to between the parties;




          (j) Liquidity. On every other Monday (or if such day is not a Business Day, the next
succeeding Business Day), beginning on the second Monday after the Effective Date, the Borrower
shall deliver to the Lender a bi-weekly liquidity status report, detailing, with respect to each
Loan Party and its Subsidiaries (on a Consolidated and consolidating basis): (i) the current
liquidity profile; (ii) expected liquidity needs; (iii) any material changes in their business
since the date of the last status report; (iv) any transfer, sale, pledge or other Disposition of
any material asset since the date of the last status report; and (v) any changes to their capital
structure in a form agreed to between the parties;




          (k) Expense Policy. Within fifteen (15) days after the conclusion of each calendar
month, beginning with the month in which the Effective Date occurs, the Borrower shall deliver to
the Lender a certification signed by a Responsible Person of the Borrower and its Subsidiaries that
(i) the Expense Policy conforms to the requirements set forth herein; (ii) the Borrower and its
Subsidiaries are in compliance with the Expense Policy; and (iii) there have been no material
amendments to the Expense Policy or deviations from the Expense Policy other than those that have
been disclosed to and approved by the Lender; and




          (l) Executive Privileges and Compensation. The Borrower shall submit a certification
on the last day of each fiscal quarter beginning with the first fiscal quarter of 2009, certifying
that each Relevant Company has complied with and is in compliance with the provisions set forth in
Section 7.17. Such certification shall be made to the TARP Compliance Office by an SEO of the
Borrower, subject to the requirements and penalties set forth in Title 18, United States Code,
Section 1001.



Each notice pursuant to this Section 7.02 shall be accompanied by a certificate signed by a
Responsible Person of the relevant Loan Party setting forth details of the occurrence referred to
therein and stating what action such Loan Party has taken or proposes to take with respect thereto.




          7.03 Financial Covenants. The Loan Parties shall, at all times following March 31,
2009, comply with such financial covenants as may be required by the President’s Designee in
his/her sole discretion, based on the Restructuring Plan Report and any other information that the
President’s Designee deems relevant. The Loan Parties shall cooperate with the Lender to amend this
Loan Agreement as necessary in order to reflect such financial covenants.




          7.04 Existence, Etc. Each Loan Party shall:




             (a) preserve and maintain its legal existence and all of its material rights, privileges,
licenses and franchises;




             (b) comply with the requirements of all Applicable Laws, rules, regulations and orders of
Governmental Authorities if failure to comply with such requirements could be reasonably likely
(either individually or in the aggregate) to have a Material Adverse Effect;




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          (c) keep adequate records and books of account, in which complete entries will be made in
accordance with GAAP consistently applied, and maintain adequate accounts and reserves for all
taxes (including income taxes), all depreciation, depletion, obsolescence and amortization of its
properties, all contingencies, and all other reserves;




          (d) not move its chief executive office or chief operating office from the addresses referred
to in Schedule 6.10 unless it shall have provided the Lender not less than thirty (30) days prior
written notice of such change;




          (e) pay and discharge all taxes, assessments and governmental charges or levies imposed on it
or its income or profits or on any of its Property prior to the date on which penalties attach
thereto, except for any such tax, assessment, charge or levy the payment of which is being
contested in good faith and by proper proceedings and against which adequate reserves are being
maintained. Each Loan Party and its Subsidiaries shall file on a timely basis all federal, and
material state and local tax and information returns, reports and any other information statements
or schedules required to be filed by or in respect of it where the failure to file would
reasonably be expected to have a Material Adverse Effect;




          (f) keep in full force and effect the provisions of its charter documents, by-laws, operating
agreements or similar organizational documents; and




          (g) keep in full force and effect all agreements and instruments by which it or any of its
properties may be bound and all applicable decrees, orders and judgments, in each case in such
manner that a Material Adverse Effect will not result.




       7.05 Use of Proceeds. The Borrower will use the proceeds of each Advance as set forth
in Section 2.09 of Appendix A.




       7.06 Maintenance of Property; Insurance.




          (a) Each Loan Party shall keep all property useful and necessary in its business in good
working order and condition.




          (b) Each Loan Party shall maintain errors and omissions insurance and blanket bond coverage
in such amounts as are in effect on the Effective Date (as disclosed to the Lender in writing
except in the event of self-insurance) and shall not reduce such coverage without the written
consent of the Lender, and shall also maintain such other insurance with financially sound and
reputable insurance companies, and with respect to property and risks of a character usually
maintained by entities engaged in the same or similar business similarly situated, against loss,
damage and liability of the kinds and in the amounts customarily maintained by such entities.
Notwithstanding anything to the contrary in this Section 7.06(b), to the extent that any Loan
Party is engaged in self-insurance with respect to any of its property as of the Effective Date,
such Loan Party may, if consistent with past practices, continue to engage in such self-insurance
throughout the term of this Agreement; provided, that the Loan Parties shall promptly obtain third
party insurance that conforms to the criteria in this Section 7.06(b) at the request of the
Lender.




          (c) Each Loan Party shall use its best efforts to protect the Intellectual Property that is
material to the conduct of its business in a manner that is consistent with the value of such
Intellectual Property.




       7.07 Further Identification of Facility Collateral. Each Loan Party will furnish to
the Lender from time to time statements and schedules further identifying and describing the
Facility





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Collateral and such other reports in connection with the Facility Collateral as the Lender may
reasonably request, all in reasonable detail.




          7.08 Defense of Title. Each Loan Party warrants and will defend the right, title and
interest of the Lender in and to all Facility Collateral against all adverse claims and demands of
all Persons whomsoever, subject to (x) the restrictions imposed by the applicable Senior Lien Loan
Agreements to the extent that such restrictions are valid and enforceable under the applicable
Uniform Commercial Code and other Requirements of Law and (y) the rights of holders of any
Permitted Lien.




          7.09 Preservation of Facility Collateral. Each Loan Party shall do all things
necessary to preserve the Facility Collateral so that the Facility Collateral remains subject to a
first priority perfected security interest hereunder; provided, however, with
respect to the Facility Collateral that is subject to a Lien in favor of a Senior Lien Lender, each
Loan Party shall do all things necessary to preserve the Facility Collateral so that the Facility
Collateral remains subject to a junior Lien hereunder. Without limiting the foregoing, each Loan
Party will comply with all Applicable Laws, rules and regulations of any Governmental Authority
applicable to such Loan Party or relating to the Facility Collateral and will cause the Facility
Collateral to comply, with all Applicable Laws, rules and regulations of any such Governmental
Authority, except where failure to so comply would not reasonably be expected to have a Material
Adverse Effect. No Loan Party will allow any default to occur for which any Loan Party is
responsible under any Loan Documents and each Loan Party shall fully perform or cause to be
performed when due all of its obligations under the Loan Documents.




          7.10 Maintenance of Papers, Records and Files.




             (a) Each Loan Party will maintain all Records in good and complete condition and preserve
them against loss or destruction, all in accordance with industry and customary practices.




             (b) Each Loan Party shall collect and maintain or cause to be collected and maintained all
Records relating to its business and operations and the Facility Collateral in accordance with
industry custom and practice, including those maintained pursuant to the preceding subsection, and
all such Records shall be in the possession of the Loan Parties or reasonably obtainable upon the
request of the Lender unless the Lender otherwise approves.




             (c) For so long as the Lender has an interest in or Lien on any Facility Collateral, each
Loan Party will hold or cause to be held all related Records in trust for the Lender. Each Loan
Party shall notify, or cause to be notified, every other party holding any such Records of the
interests and Liens granted hereby.




          7.11 Maintenance of Licenses. Each Loan Party shall (i) maintain all licenses,
permits, authorizations or other approvals necessary for such Loan Party to conduct its business
and to perform its obligations under the Loan Documents, (ii) remain in good standing under the
laws of the jurisdiction of its organization, and in each other jurisdiction where such
qualification and good standing are necessary for the successful operation of such Loan Party’s
business, and (iii) shall conduct its business in accordance with Applicable Law in all material
respects.




          7.12 Payment of Obligations. The Borrower will duly and punctually pay or cause to
be paid the principal and interest on the Note and each Loan Party will duly and punctually pay or
cause to be paid all fees and other amounts from time to time owing by it hereunder or under the
other Loan Documents, all in accordance with the terms of this Loan Agreement, the Note and the
other Loan Documents. Each Loan Party will, and will cause each of its Subsidiaries to, pay its
obligations, including tax liabilities, assessments and governmental charges or levies imposed upon
such Person or





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upon its income and profits or upon any of its property, real, personal or mixed (including
without limitation, the Facility Collateral) or upon any part thereof, as well as any other lawful
claims which, if unpaid, could reasonably be expected to become a Lien upon such properties or any
part thereof, that, if not paid, could reasonably be expected to result in a Material Adverse
Effect before the same shall become delinquent or in default, except where (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings, (b) the relevant Loan
Party, or such Subsidiary, has set aside on its books adequate reserves with respect thereto and
(c) the failure to make payment pending such contest could not reasonably be expected to result in
a Material Adverse Effect.




          7.13 OFAC. At all times throughout the term of this Loan Agreement, each Loan Party
and its Controlled Affiliates (a) shall be in full compliance with all applicable orders, rules,
regulations and recommendations of OFAC and (b) shall not permit any Facility Collateral to be
maintained, insured, traded, or used (directly or indirectly) in violation of any United States
statutes, rules or regulations, in a Prohibited Jurisdiction or by a Prohibited Person, and no
lessee or sublessee shall be a Prohibited Person or organized in a Prohibited Jurisdiction.




          7.14 Investment Company. Each Loan Party will conduct its operations in a manner
which will not subject it to registration as an “investment company” as such term is defined in the
Investment Company Act of 1940, as amended from time to time.




          7.15 Due Diligence. Each Loan Party acknowledges that the Lender, at the expense of
the Loan Parties, has the right to perform continuing Due Diligence Reviews as set forth in
Section 11.16 and will assist the Lender in the performance of the Due Diligence Review as set
forth in Section 11.16.




          7.16 Further Assurances.




             (a) Each Loan Party agrees to do such further acts and things and to execute and deliver to
the Lender such additional assignments, acknowledgments, agreements, powers and instruments as are
reasonably required by the Lender to carry into effect the intent and purposes of this Loan
Agreement and the other Loan Documents, to perfect the interests of the Lender in the Facility
Collateral or to better assure and confirm unto the Lender its rights, powers and remedies
hereunder and thereunder.




             (b) Each Loan Party shall provide written notice to the Lender not later than twenty (20)
calendar days after acquiring any real property located in the United States after the Effective
Date having a value greater than $500,000 (such real property, “After Acquired Real
Property”). Unless such After Acquired Real Property constitutes Excluded Collateral, such
After Acquired Real Property shall become Facility Collateral subject to a first priority Lien (or
junior Lien, as applicable) in favor of the Lender. Each Loan Party shall execute a Mortgage and
shall permit the filing of a UCC-1 financing statement (together with such other agreements,
instrument or documents reasonably requested by Lender in order to create, establish and perfect
and a first priority Lien upon the After Acquired Real Property subject to requirements of Senior
Lien Loan Agreements) for the benefit of the Lender simultaneously with the acquisition of such
After Acquired Real Property or simultaneously with the giving of notice in accordance with the
first sentence of this section. Furthermore, each Loan Party shall deliver such information with
respect to such After Acquired Real Property as is reasonably required by the Lender in connection
with the foregoing (including, without limitation, an environmental report prepared by a party
reasonably acceptable to the Lender). All costs incurred by the Borrower and Lender under this
Section 7.16(b) shall be at Borrower’s sole cost and expense. For purposes of clarification, the
terms of this Section 7.16(b) shall not confer any additional rights upon the Loan





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Parties including, without limitation, the right to incur any Indebtedness or acquire any
real property where such action is otherwise not permitted pursuant to the terms of the Loan
Documents.




       7.17 Executive Privileges and Compensation.




          (a) The Borrower shall cause each Relevant Company to comply with the following restrictions
on executive privileges and compensation:





     (i) The Company shall take all necessary action to ensure that its Benefit
Plans with respect to the SEOs comply in all respects with Section 111(b) of the
EESA, including the provisions for the Capital Purchase Program, as implemented by
any guidance or regulation thereunder that has been issued and is in effect as of
the Effective Date, including the rules set forth in 31 CFR Part 30 and the
provisions prohibiting severance payments to SEOs, and shall not adopt any new
Benefit Plan with respect to its SEOs that does not comply therewith. For purposes
of applying section 111(b) of the EESA with respect to this Section 4.8(a), a
“golden parachute payment” means any payment in the nature of compensation to (or
for the benefit of) an SEO made on account of an applicable severance from
employment (except that the vesting of equity denominated awards granted prior to
the Effective Date and settled solely in equity shall not be included in such limit
on “golden parachute payments” to SEOs);




     (ii) Each Relevant Company shall be subject to the limits on annual executive
compensation deductibles imposed by Section 162(m)(5) of the Code, as applicable;




     (iii) No Relevant Company shall pay or accrue any bonus or incentive
compensation to the Senior Employees unless otherwise approved in writing by the
President’s Designee;




     (iv) No Relevant Company shall adopt or maintain any compensation plan that
would encourage manipulation of its reported earnings to enhance the compensation of
any of its employees; and




     (v) Each Relevant Company shall maintain all suspensions and other restrictions
of contributions to Benefit Plans that are in place or initiated as of the Effective
Date.



          At all times throughout the term of this Loan Agreement, the Lender shall have the right to
require any Relevant Company to claw back any bonuses or other compensation, including golden
parachutes, paid to any Senior Employees in violation of any of the foregoing.




          (b) Within 120 days after the Effective Date, the Borrower shall cause the principal
executive officer (or person acting in a similar capacity) of each Relevant Company to certify in
writing to the Lender’s Chief Compliance Officer that such Relevant Company’s compensation
committee has reviewed the compensation arrangements of the SEOs with its senior risk officers and
determined that the compensation arrangements do not encourage the SEOs to take unnecessary and
excessive risks that threaten the value of such Relevant Company. The Borrower shall cause each
Relevant Company to preserve appropriate documentation and records to substantiate such
certification in an easily accessible place for a period not less than three (3) years following
the Maturity Date.




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       7.18 Asset Divestiture. With respect to any private passenger aircraft or interest in
such aircraft that is owned or held by any Loan Party or any of its respective Subsidiaries
immediately prior to the Effective Date, such party shall demonstrate to the satisfaction of the
President’s Designee that it is taking all reasonable steps to divest itself of such aircraft or
interest. In addition, no Loan Party shall acquire or lease any private passenger aircraft or
interest in private passenger aircraft after the Effective Date.




       7.19 Restrictions on Expenses.




          (a) Other than as set forth in Appendix A, at all times throughout the term of this Loan
Agreement, the Loan Parties and the Relevant Companies shall maintain and implement an Expense
Policy and distribute the Expense Policy to all employees covered under the Expense Policy. Any
material amendments to the Expense Policy shall require the prior written consent of the
President’s Designee, and any material deviations from the Expense Policy, whether in
contravention thereof or pursuant to waivers provided for thereunder, shall promptly be reported
to the President’s Designee.




          (b) The Expense Policy shall, at a minimum: (i) require compliance with all Applicable Law,
(ii) apply to the Borrower and all of its Subsidiaries, (iii) govern (A) the hosting, sponsorship
or other payment for conferences and events, (B) travel accommodations and expenditures, (C)
consulting arrangements with outside service providers, (D) any new lease or acquisition of real
estate, (E) expenses relating to office or facility renovations or relocations, and (F) expenses
relating to entertainment or holiday parties; and (iv) provide for (A) internal reporting and
oversight, and (B) mechanisms for addressing non-compliance with the Expense Policy.




       7.20 Restructuring Plan; Restructuring Targets.




          (a) On or before February 17, 2009, the Borrower shall submit the Restructuring Plan to the
President’s Designee, which Restructuring Plan shall include specific actions intended to result
in the following:





     (i) Repayment of all Advances, together with all interest thereon and
reasonable fees and out-of-pocket expenses of the Lender accruing under the Loan
Documents, and any other financing extended by the United States Government under
all applicable terms and conditions;




     (ii) Ability of the Borrower and its Subsidiaries to (x) comply with applicable
federal fuel efficiency and emissions requirements, and (y) commence domestic
manufacturing of advanced technology vehicles, as described in section 136 of the
Energy Independence and Security Act of 2007 (Public Law 110-140; 42 U.S.C. 17013);




     (iii) Achievement by the Borrower and its Subsidiaries of a positive net
present value, using reasonable assumptions and taking into account all existing and
projected future costs, including repayment of all Advances, together with all
interest thereon and reasonable fees and out-of-pocket expenses of the Lender
accruing under this Loan Agreement, and any other financing extended by the United
States Government;




     (iv) Rationalization of costs, capitalization, and capacity with respect to the
manufacturing workforce, suppliers and dealerships of the Borrower and its
Subsidiaries; and



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     (v) A product mix and cost structure that is competitive in the United States
marketplace.



          (b) The Restructuring Plan shall set forth actions to be taken and milestones to be met on a
monthly basis through 2010 and on an annual basis from 2011 through 2014, and shall include
detailed historical and projected financial statements with supporting schedules and additional
information as may be requested by the President’s Designee.




          (c) In developing and implementing the Restructuring Plan, the Borrower and its Subsidiaries
shall use their best efforts to achieve the following restructuring targets:





     (i) Reduction of the outstanding unsecured public indebtedness (other than with
respect to pension and employee benefits obligations) of the Borrower and its
Consolidated Subsidiaries by not less than two-thirds through a Bond Exchange and
other appropriate means;




     (ii) Implementation of the Labor Modifications; and




     (iii) Implementation of the VEBA Modifications.



       7.21 Term Sheet Requirements. On or before February 17, 2009, the Borrower shall
submit to the President’s Designee: (a) a term sheet signed on behalf of the Borrower and the
leadership of each Union providing for the Labor Modifications; (b) a term sheet signed on behalf
of the Borrower and representatives of the VEBA providing for the VEBA Modifications; and (c) a
term sheet signed on behalf of the Borrower and representatives of holders of the public debt of
the Borrower and its Consolidated Subsidiaries providing for the Bond Exchange.




       7.22 Restructuring Plan Report. On or before March 31, 2009, the Borrower shall
submit to the President’s Designee a written certification and report detailing the progress made
by the Borrower and its Subsidiaries in implementing the Restructuring Plan. The report shall
identify any deviations from the restructuring targets set forth in Section 7.20(b), and explain
the rationale for these deviations, including an explanation of why such deviations do not
jeopardize the Borrower’s long-term viability. The report shall also include evidence satisfactory
to the President’s Designee that the following events have occurred:




          (a) Approval of the Labor Modifications by the members of the Unions;




          (b) Receipt of all necessary approvals of the VEBA Modifications other than regulatory and
judicial approvals; provided, that the Borrower must have filed and be diligently prosecuting
applications for any necessary regulatory and judicial approvals; and




          (c) The commencement of an exchange offer to implement a Bond Exchange.




       7.23 President’s Designee Review/Certification. The President’s Designee will review
the Restructuring Plan Report and other materials submitted by the Borrower to determine whether
the Borrower and its Subsidiaries have taken all steps necessary to achieve and sustain the
long-term viability, international competitiveness and energy efficiency of the Borrower and its
Subsidiaries in accordance with its Restructuring Plan. If the President’s Designee determines
that these standards have been met, the President’s Designee will deliver a Plan Completion
Certification to the Lender.




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          7.24 Required Distributions. Except as otherwise permitted in Appendix A, each Loan
Party (other than the Borrower) shall, and shall cause each of its Subsidiaries to, distribute all
amounts received from its respective Subsidiaries to the Borrower within five (5) Business Days of
receipt of such amounts, provided, however, the Loan Parties or their Subsidiaries
may reserve funds in amounts they deem reasonably necessary for the ordinary operation of the
business and capital needs of such Person consistent with the terms of any applicable limited
liability company agreement, limited partnership agreement, operating agreement or other
appropriate organizational document.




          7.25 Provide Additional Information. Each Loan Party shall, promptly, from time to
time and upon request of the Lender, furnish to the Lender such information, documents, records or
reports with respect to the Facility Collateral, the Indebtedness of the Loan Parties or any
Subsidiary thereof or the corporate affairs, conditions or operations, financial or otherwise, of
such Loan Party as the Lender may reasonably request, including without limitation, providing to
the Lender reasonably detailed information with respect to each inquiry of the Lender raised with
the Loan Parties prior to the Effective Date.




          7.26 Material Transaction. Each Loan Party shall provide at least twenty (20) days’
prior notice to the President’s Designee (or such shorter time as the President’s Designee shall
agree) of any proposed sale of Property, investment, contract, commitment, or other transaction
that (x) is not in the ordinary course of business, and (y) is proposed to be entered into with a
value in excess of $100,000,000 (a “Material Transaction”). The President’s Designee shall
have the right to review and prohibit any such Material Transaction if the President’s Designee
determines that it would be inconsistent with or detrimental to the long-term viability of such
Loan Party.




          SECTION 8. NEGATIVE COVENANTS OF THE LOAN PARTIES.




     Subject to the amendments, restatements, supplements or other modifications in Section 8 of
Appendix A, each Loan Party covenants and agrees that, so long as any amounts are owing with
respect to the Note or otherwise pursuant to this Loan Agreement are outstanding, each Loan Party
will abide by the following negative covenants:



          8.01 Prohibition of Fundamental Changes. No Loan Party shall at any time, directly or
indirectly, (i) enter into any transaction of merger, consolidation or amalgamation, or liquidate,
wind up or dissolve itself (or suffer any liquidation, winding up or dissolution) or Dispose of all
or substantially all of its Property without the Lender’s prior consent, provided, any Guarantor
may merge, consolidate, amalgamate into, or Dispose of all or substantially all of its Property to
another Loan Party; or (ii) form or enter into any partnership, syndicate or other combination
(other than Joint Ventures permitted by Section 8.16) which could reasonably be expected to have a
Material Adverse Effect.




          8.02 Lines of Business. No Loan Party will engage to any substantial extent in any
line or lines of business activity other than the businesses generally carried on by the Loan
Parties as of the Effective Date or businesses reasonably related thereto.




          8.03 Transactions with Affiliates. No Loan Party will (a) enter into any transaction,
including, without limitation, any purchase, sale, lease or exchange of Property (including
Facility Collateral) or the rendering of any service, with any Affiliate unless such transaction is
(i)in the ordinary course of such Loan Party’s business, or (ii) upon fair and reasonable terms no
less favorable to such Loan Party than it would obtain in an arm’s length transaction with a Person
which is not an Affiliate, and in either case, is otherwise permitted under this Loan Agreement or
Appendix A, or (b) make a payment that is not otherwise permitted by this Section 8.03 to any
Affiliate.




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          8.04 Limitation on Liens. No Loan Party will create, incur or permit to exist any
Lien on or to any of its Property (including the Facility Collateral), except for Permitted Liens.
Notwithstanding that a Lien is a Permitted Lien, if any Loan Party shall create or incur, or permit
to exist (other than such as may be in existence on the Effective Date), any Lien on, or to, any of
its Property not in the ordinary course of business and such Lien shall secure obligations in an
amount greater than $100,000,000, such Loan Party shall comply with the provisions set forth in
Section 7.26.




          8.05 Limitation on Distributions. Without the Lender’s consent, no Loan Party shall
make any Restricted Payment or payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of
subordinate debt of any Loan Party, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash or property or in
obligations of any Loan Party, other than dividends, distributions, or payments that (i) are owed
to a Person that is not an Affiliate of any Loan Party pursuant to a contract or Applicable Law as
of December 2, 2008, (ii) with respect to any Loan Party which is a Subsidiary, are paid pro rata
to holders of Equity Interests, (iii) are required to be made pursuant to the terms of any Equity
Interests or Indebtedness as in effect on the Effective Date (including Permitted Indebtedness and
any other Indebtedness set forth on Appendix A) (iv) constitute dividends on or repurchases of
Equity Interests issued to employees (to the extent not prohibited by Section 7.17) of the Borrower
and its Subsidiaries after the Effective Date consistent with past practices, (v) repurchases of
Equity Interests deemed to occur upon any exercise of stock options or warrants if such Equity
Interests represent a portion of the exercise price of such options or warrants, or (vi) are
permitted under Section 8.05 of Appendix A; provided, further that, no such payment
may be made if, in each case of clauses (i) through (vi) above, an Event of Default is continuing
or would result from the making of any such payment. Notwithstanding that a payment may otherwise
be permitted pursuant to this Section 8.05, if any Loan Party shall make any Restricted Payment or
other dividend, distribution, or payment under this Section 8.05 not in the ordinary course of
business in an amount greater than $100,000,000, such Loan Party shall comply with the provisions
set forth in Section 7.26.




          8.06 No Amendment or Waiver. No Loan Party will amend, modify, terminate or waive any
provision of any contract to which such Loan Party is a party or its organizational documents in
any manner which could reasonably be expected to have a Material Adverse Effect on the rights and
remedies of the Lender under any Loan Document or the value of the Facility Collateral without the
prior written consent of the Lender




          8.07 Prohibition of Certain Prepayments. No Loan Party shall make any payment of
principal of any Senior Loans, other than required payments of principal, without the consent of
Lender.




          8.08 Change of Fiscal Year. No Loan Party will at any time, directly or indirectly,
except upon ninety (90) days’ prior written notice to the Lender, change the date on which such
Loan Party’s fiscal year begins from such Loan Party’s current fiscal year beginning date.




          8.09 Limitation on Negative Pledge Clauses. No Loan Party will enter into or suffer
to exist or become effective any agreement that prohibits or limits the ability of any Loan Party
to create, incur, assume or permit to exist any Lien upon any of its Property, whether now owned or
hereafter acquired, other than this Loan Agreement, the other Loan Documents, any Existing
Agreement, any agreements providing for a Lien permitted under this Loan Agreement, or any other
agreement identified on Appendix A.




          8.10 Limitations on Indebtedness. No Loan Party will, create, incur, assume or permit
to exist any Indebtedness of such Loan Party other than Permitted Indebtedness. Notwithstanding






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that the incurrence of Indebtedness is Permitted Indebtedness, if any Loan Party shall create,
incur, assume or permit to exist (other than in connection with any Existing Agreement) any
Indebtedness not in the ordinary course of business having an original principal balance greater
than $100,000,000, such Loan Party shall comply with the provisions set forth in Section 7.26.




          8.11 Limitations on Investments. No Loan Party intends to make any Investment, except
Permitted Investments. If any Loan Party shall make a Permitted Investment not in the ordinary
course of business in an amount greater than $100,000,000, such Loan Party shall comply with the
provisions set forth in Section 7.26.




          8.12 ERISA. No Loan Party will permit any Plan maintained by it to (a) engage in any
“prohibited transaction” (as defined in Section 4975 of the Code) which could reasonably be
expected to result in material liability of any Loan Party for excise taxes or fiduciary liability
under Section 406 of ERISA, (b) fail to meet the minimum funding standards of Section 302 of ERISA
whether or not waived, or (c) terminate any Plan in a manner that could result in the imposition of
a Lien or encumbrance on the assets of any Loan Party or any of its Subsidiaries pursuant to
Section 4068 of ERISA. No Loan Party shall permit any of their assets to become subject to Title I
of ERISA because they constitute “plan assets” within the meaning of the DOL Regulation
Section 2510.3-101 as amended by section 3(42) of ERISA.




          8.13 Action Adverse to the Facility Collateral. Except as otherwise permitted under
any other provision of this Loan Agreement, no Loan Party shall or shall permit any Pledged Entity
that is a Subsidiary to take any action that would directly or indirectly materially impair or
materially adversely affect such Loan Party’s title to, or the value of, the Facility Collateral,
or materially increase the duties, responsibilities or obligations of any Loan Party.




          8.14 Limitation on Sale of Assets. Subject to the restrictions and provisions of
Sections 2.07, 4.11, 4.12 and 7.26, and any other applicable provisions of the Loan Agreement and
the other Loan Documents, the Loan Parties shall have the right to freely Dispose of any of its
Property (including, without limitation, receivables and leasehold interests) whether now owned or
hereafter acquired.




          8.15 Restrictions on Pension Plans. Until such time as the Advances are repaid in
full, this Agreement is terminated and the Lender ceases to own any Equity Interests of the
Borrower acquired under any Loan Documents (including any Warrants and underlying Equity Interests
acquired by the Lender upon exercise thereof), and except by operation of law, no Loan Party or
ERISA Affiliate shall increase any pecuniary or other benefits obligated or incurred by any Plan
nor shall any Loan Party or ERISA Affiliate provide for other ancillary benefits or lump sum
benefits that would be funded by the assets held by any Plan other than benefits due in accordance
with Plan terms as of the Effective Date.




     The prohibitions on benefit increases under this covenant include, but are not limited to, a
prohibition on the creation or, in the case of a benefit not in effect under the terms of a Plan on
December 31, 2008, payment of any obligations associated with any plant shutdowns, permanent
layoffs, attrition programs, or other workforce reduction programs after the Effective Date,
except that the prohibitions under this covenant 8.15 shall not apply to a benefit that was not in
effect under the terms of a Plan on December 31, 2008 if the President’s Designee approves such
benefit increase and, at the time of such benefit increase and taking into account such benefit
increase, each Plan of the Borrower and each Plan of each of its ERISA Affiliates is fully funded.
In addition, until such time as the Advances are repaid in full, this Agreement is terminated and
the Lender ceases to own any Equity Interests of the Borrower acquired under any Loan Documents
(including any Warrants and underlying Equity Interests acquired by



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the Lender upon exercise thereof), the Borrower agrees that no contribution under section
206(g)(1)(B), 206(g)(2)(B), or 206(g)(4)(B) of ERISA shall be made to any Plan.



          8.16 JV Agreements. None of any Loan Party or any Pledged Entity shall allow any
modification or amendment to any JV Agreement which could reasonably be expected to have a Material
Adverse Effect. The Borrower shall notify the Lender within five (5) Business Days of the Borrower
or any of its Subsidiaries entering into a new Joint Venture, provided that,
neither the Borrower nor any of its Subsidiaries shall be permitted to enter into a new Joint
Venture if such action otherwise violates Section 8.11 or any other provision of any Loan Document.




          SECTION 9. EVENTS OF DEFAULT; TERMINATION EVENTS.




          9.01 Events of Default. Subject to the amendments, restatements, supplements or other
modifications in Section 9 of Appendix A, each of the following events shall constitute an event of
default (an “Event of Default”) hereunder:




             (a) the Borrower shall default in the payment of any principal of or interest on any Advance
when due (whether at stated maturity, upon acceleration or upon Mandatory Prepayment),
provided however, that the Borrower shall have two (2) Business Days grace period
for the payment of interest hereunder; or




             (b) any Guarantor shall default in its payment obligations under the Guaranty; or




             (c) any Loan Party shall default in the payment of any other amount payable by it hereunder
or under any other Loan Document after notification by the Lender of such default, and such
default shall have continued unremedied for three (3) Business Days; or




             (d) any Loan Party shall breach any covenant contained in Section 7.03, Section 7.17 or
Section 8 hereof; or




             (e) any Loan Party shall default in performance of or otherwise breach non-payment
obligations or covenants under any of the Loan Documents not covered by another clause in this
Section 9, and such default has not been remedied within the applicable grace period provided
therein, or if no grace period, within ten (10) Business Days; or




             (f) any representation, warranty or certification made or deemed made herein or in any other
Loan Document by any Loan Party or any certificate furnished to the Lender pursuant to the
provisions hereof or thereof, shall prove to have been false or misleading in any material respect
as of the time made or furnished; or




             (g) a judgment or judgments for the payment of money in excess of $500,000,000 in the
aggregate (to the extent that it is, in the reasonable determination of the Lender, uninsured and
provided that any insurance or other credit posted in connection with an appeal shall not be
deemed insurance for these purposes) shall be rendered against any Loan Party or any of its
Subsidiaries by one or more courts, administrative tribunals or other bodies having jurisdiction
over them and the same shall not be discharged (or provision shall not be made for such discharge)
or bonded, or a stay of execution thereof shall not be procured, within sixty (60) days from the
date of entry thereof and such Loan Party or any such Subsidiary shall not, within said period of
sixty (60) days, or such longer period during which execution of the same shall have been stayed
or bonded, appeal therefrom and cause the execution thereof to be stayed during such appeal; or




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          (h) any Loan Party shall admit its inability to, or intention not to, perform any of such
Loan Party’s material Obligations hereunder; or




          (i) any Loan Party shall (i) apply for or consent to the appointment of, or the taking of
possession by, a receiver, custodian, trustee, examiner or liquidator of itself or of all or a
substantial part of its property, (ii) make a general assignment for the benefit of its creditors,
(iii) commence a voluntary case under the Bankruptcy Code, (iv) file a petition seeking to take
advantage of any other law relating to bankruptcy, insolvency, reorganization, liquidation,
dissolution, arrangement or winding-up, or composition or readjustment of debts, (v) fail to
controvert in a timely and appropriate manner, or acquiesce in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code, (vi) take any corporate or other
action for the purpose of effecting any of the foregoing, or (vii) generally fail to pay such Loan
Party’s debts as they become due; or




          (j) a custodian, receiver, conservator, liquidator, trustee, sequestrator or similar official
for any Loan Party, or of any of its Property (as a debtor or creditor protection procedure), is
appointed or takes possession of such Property; or any Loan Party or generally fails to pay any of
its debts as they become due; or any Loan Party is adjudicated bankrupt or insolvent; or an order
for relief is entered under the Bankruptcy Code, or any successor or similar applicable statute,
or any administrative insolvency scheme, against any Loan Party; or any of its Property is
sequestered by court or administrative order; or a petition is filed against any Loan Party under
any bankruptcy, reorganization, arrangement, insolvency, readjustment of debt, dissolution,
moratorium, delinquency or liquidation law of any jurisdiction, whether now or subsequently in
effect, and such petition is not dismissed within 60 days; or




          (k) any Loan Document shall for whatever reason be terminated, any default or event of
default shall have occurred under any Loan Document, the Loan Documents shall for any reason cease
to create a valid, security interest in any of the Facility Collateral purported to be covered
hereby, or any Loan Party’s material obligations (including the Borrower’s Obligations hereunder)
shall cease to be in full force and effect, or the enforceability thereof shall be contested by
any Loan Party; or




          (l) (i) any Person shall engage in any “prohibited transaction” (as defined in Section 406 of
ERISA or Section 4975 of the Code) involving any Plan, or any other ERISA Event shall occur, (ii)
any material failure to meet the minimum funding standards of Section 302 of ERISA, whether or not
waived, shall exist with respect to any Plan or any Lien in favor of the PBGC or a Plan shall
arise on the assets of any Loan Party or any ERISA Affiliate, (iii) a Reportable Event shall occur
with respect to, or proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Plan, which Reportable Event or commencement of
proceedings or appointment of a trustee is, in the reasonable opinion of the Lender, likely to
result in the termination of such Plan for purposes of Title IV of ERISA, (iv) any Plan shall
terminate for purposes of Title IV of ERISA, (v) any Loan Party or any ERISA Affiliate shall, or
in the reasonable opinion of the Lender is likely to, incur any liability in connection with a
withdrawal from, or the insolvency or reorganization of, a Multiemployer Plan, (vi) any labor
union or collective bargaining unit shall engage in a strike or other work stoppage, (vii) the
assets of any Loan Party shall be treated as plan assets under 29 C.F.R. 2510.3-101 as amended by
section 3(42) of ERISA, or (viii) any other event or condition shall occur or exist with respect
to a Plan; and in each case in clauses (i) through (vii) above, such event or condition, together
with all other such events or conditions, if any, could reasonably be expected to have a Material
Adverse Effect; or




          (m) any Change of Control shall have occurred without the prior consent of the Lender; or




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          (n) any Loan Party shall grant, or suffer to exist, any Lien on any Facility Collateral other
than Permitted Liens; or the Liens contemplated under the Loan Documents shall cease to be first
priority perfected Liens on the Facility Collateral in favor of the Lender (subject to the
interests, if any, of the Senior Lien Lenders and any Permitted Liens); or




          (o) the Lender shall reasonably request, specifying the reasons for such request,
information, and/or written responses to such requests, regarding the financial well-being of any
Loan Party and such information and/or responses shall not have been provided within ten (10)
Business Days of such request; or




          (p) any Loan Party shall default under, or fail to perform as required under, or shall
otherwise materially breach the terms of any instrument, agreement or contract for Indebtedness
between any Loan Party, on the one hand, and the Lender or any of the Lender’s Affiliates on the
other; or any Loan Party shall default under, or fail to perform as requested under, the terms of
any instrument, agreement or contract for Indebtedness entered into by such Loan Party and any
third party, if, in either case, the effect of any such default or failure is to cause, or to
permit the holder or holders of such Indebtedness or a trustee or other representative on its or
their behalf (with or without the giving of notice, the lapse of time or both) to cause, such
Indebtedness to become due prior to its stated maturity; provided that it shall
not constitute an Event of Default pursuant to this paragraph (p) unless the aggregate amount of
all such Indebtedness exceeds $100,000,000; or




          (q) any Governmental Authority or any person, agency or entity acting or purporting to act
under governmental authority shall have taken any action to condemn, seize or appropriate, or to
assume custody or control of, all or any substantial part of the Property of any Loan Party, or
shall have taken any action to displace the management of any Loan Party or to curtail its
authority in the conduct of the business of any Loan Party, and such action provided for in this
subsection (q) shall not have been discontinued or stayed within thirty (30) days; or




          (r) subject to the right to self-insure under Section 7.06(b), any third-party insurance
required hereunder is terminated, ceases to be valid or is amended so as to have a Material
Adverse Effect on the Facility Collateral unless similar coverage replaces such insurance within
thirty (30) days; or




          (s) any Loan Party shall fail to comply with any Applicable Laws, when such failure will
result in a Material Adverse Effect on any Loan Party or the Facility Collateral;




          (t) any Loan Party shall enter into any Material Transaction after the President’s Designee
has prohibited such Material Transaction; or




          (u) any other Event of Default set forth in Section 9.01 of Appendix A.




       SECTION 10. REMEDIES.




          (a) Upon the occurrence and during the continuance of one or more Events of Default, other
than those referred to in Section 9.01(i) or (j), the Lender may immediately declare the principal
amount of all Advances then outstanding under the Note to be immediately due and payable, together
with all interest thereon and fees and out-of-pocket expenses accruing under this Loan Agreement;
provided that upon the occurrence of an Event of Default referred to in Sections 9(i) or (j), such
amounts shall immediately and automatically become due and payable without any further action by
the Lender. Upon such declaration or such automatic acceleration, the balance then outstanding on
the Note shall become immediately due and payable, without presentment, demand, protest or other





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formalities of any kind, all of which are hereby expressly waived by the Borrower and each
other Loan Party and may thereupon exercise any remedies available to it at law and pursuant to
the Loan Documents, including, but not limited to, the liquidation of the Facility Collateral.
Notwithstanding anything to the contrary contained in this Section 10(a), subject to the
requirements of the Bankruptcy Code, upon the occurrence of an Event of Default referred to in
Sections 9(i) or (j), the Lender shall have the exclusive right, exercisable at its option, to
convert this Loan Agreement into a debtor-in-possession facility in form and substance acceptable
to the Lender. The Lender may exercise at any time after the occurrence of an Event of Default
one or more remedies, as they so desire, and may thereafter at any time and from time to time
exercise any other remedy or remedies.




          (b) Upon the occurrence and during the continuance of one or more Events of Default, the
Lender shall have the right to obtain physical possession of the files of each Loan Party relating
to the Facility Collateral and all documents relating to the Facility Collateral which are then or
may thereafter come in to the possession of any Loan Party or any third party acting for any Loan
Party and each Loan Party shall deliver to the Lender such assignments as the Lender shall
request. In addition, the Lender shall be entitled to specific performance of all agreements of
each Loan Party contained in this Loan Agreement and under any other Loan Document.




          (c) In addition to all the rights and remedies specifically provided herein, the Lender shall
have all other rights and remedies provided by applicable federal, state, foreign, and local laws,
whether existing at law, in equity or by statute, including, without limitation, all rights and
remedies available to a purchaser or a secured party, as applicable, under the Uniform Commercial
Code.




          (d) Except as otherwise expressly provided in this Loan Agreement, the Lender shall have the
right to exercise any of its rights and/or remedies without presentment, demand, protest or
further notice of any kind other than as expressly set forth herein, all of which are hereby
expressly waived by each Loan Party.




          (e) The Lender may enforce its rights and remedies hereunder without prior judicial process
or hearing, and each Loan Party hereby expressly waives, to the extent permitted by law, any right
such Loan Party might otherwise have to require the Lender to enforce its rights by judicial
process. Each Loan Party also waives to the extent permitted by law, any defense such Loan Party
might otherwise have to the Obligations, arising from use of nonjudicial process, enforcement and
sale of all or any portion of the Facility Collateral or from any other election of remedies.
Each Loan Party recognizes that nonjudicial remedies are consistent with the usages of the trade,
are responsive to commercial necessity and are the result of a bargain at arm’s length.




          (f) Each Loan Party shall be liable to the Lender for the amount of all expenses (plus
interest thereon at a rate equal to the Post-Default Rate), and breakage costs including, without
limitation, all costs and expenses incurred within thirty (30) days of the Event of Default in
connection with hedging or covering transactions related to the Facility Collateral.




          (g) The Lender shall also be entitled to all rights and remedies set forth in Section 4
hereof.




          (h) Notwithstanding any exercise of the Lender’s rights with respect to Trademarks or other
Intellectual Property contained in the Facility Collateral, each Loan Party and any holder of a
security interest in inventory of a Loan Party shall have the right to sell such inventory free
and clear of any Lender interest in the Trademarks or other Intellectual Property regardless of
whether it bears any such Trademark or other Intellectual Property but subject to the Lender’s
security interest in such inventory, if any.




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          SECTION 11. MISCELLANEOUS.




          11.01 Waiver. No failure or delay on the part of the Lender to exercise, and no
course of dealing with respect to, any right, power, privilege or remedy under any Loan Document
shall operate as a waiver thereof, nor shall any single or partial exercise by the Lender of any
right, power, privilege or remedy under any Loan Document preclude any other or further exercise
thereof or the exercise of any other right, power, privilege or remedy. All rights, powers,
privileges and remedies of the Lender provided for herein are cumulative and in addition to any and
all other rights, powers, privileges and remedies provided by law, the Loan Documents and the other
instruments and agreements contemplated hereby and thereby, and are not conditional or contingent
on any attempt by the Lender to exercise any of its rights under any other related document. The
Lender may exercise at any time after the occurrence of an Event of Default one or more remedies,
as it so desires, and may thereafter at any time and from time to time exercise any other remedy or
remedies.




          11.02 Notices. Except as otherwise expressly permitted by this Loan Agreement, all
notices, requests and other communications provided for herein and under the other Loan Documents
(including, without limitation, any modifications of, or waivers, requests or consents under, this
Loan Agreement) shall be given or made in writing (including, without limitation, by telecopy or
Electronic Transmission) delivered to the intended recipient at the “Address for Notices” specified
on the signatures pages hereof, beneath each party’s name or in Section 11.02 of Appendix A; or, as
to any party, at such other address as shall be designated by such party in a written notice to
each other party. Except as otherwise provided in this Loan Agreement and except for notices given
under Section 2 (which shall be effective only on receipt), all such communications shall be deemed
to have been duly given when transmitted by telecopier or Electronic Transmission or personally
delivered or, in the case of a mailed notice, upon receipt, in each case given or addressed as
aforesaid.




          11.03 Indemnification and Expenses.




             (a) Each Loan Party agrees to hold the Lender, and its Affiliates and their officers,
directors, employees, agents and advisors (each an “Indemnified Party”) harmless from and
indemnify any Indemnified Party against any and all claims, suits, actions, proceedings,
obligations, liabilities (including, without limitation, strict liabilities) and debts, and all
losses, actual damages, judgments, awards, amounts paid in settlement of whatever kind or nature,
fines, penalties, charges, costs and expenses of any kind (including, but not limited to,
reasonable attorneys’ fees and other costs of defense), which may be imposed on, incurred by or
asserted against such Indemnified Party (collectively, the “Costs”) relating to or arising
out of this Loan Agreement, the Note, any other Loan Document or any transaction contemplated
hereby or thereby, or any amendment, supplement or modification of, or any waiver or consent under
or in respect of, this Loan Agreement, the Note, any other Loan Document or any transaction
contemplated hereby or thereby, that, in each case, results from anything other than any
Indemnified Party’s gross negligence or willful misconduct. Without limiting the generality of
the foregoing, each Loan Party agrees to hold any Indemnified Party harmless from and indemnify
such Indemnified Party against all Costs with respect to or arising out of any violation or
alleged violation of any rule or regulation or any other laws, that, in each case, results from
anything other than such Indemnified Party’s gross negligence or willful misconduct. In any suit,
proceeding or action brought by an Indemnified Party in connection with any Facility Collateral
for any sum owing thereunder, or to enforce any provisions of any Loan Document, each Loan Party
will save, indemnify and hold such Indemnified Party harmless from and against all expense, loss
or damage suffered by reason of any defense, set-off, counterclaim, recoupment or reduction or
liability whatsoever of the account debtor or obligor thereunder, arising out of a breach by any
Loan Party of any obligation thereunder or arising out of any other agreement, indebtedness or
liability at any time owing to or in favor of such account debtor or obligor or its successors
from any Loan Party. Each Loan Party also





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agrees to reimburse an Indemnified Party as and when billed by such Indemnified Party for all
such Indemnified Party’s reasonable costs and expenses incurred in connection with the enforcement
or the preservation of such Indemnified Party’s rights under this Loan Agreement, the Note, any
other Loan Document or any transaction contemplated hereby or thereby, including without
limitation the reasonable fees and disbursements of its counsel. The Borrower hereby acknowledges
that, notwithstanding the fact that the Obligations are secured by the Facility Collateral, the
Obligation are recourse obligations of the Borrower.




          (b) Each Loan Party agrees to pay as and when billed by the Lender all of the reasonable
out-of pocket costs and expenses incurred by the Lender in connection with the development,
preparation and execution of, and any amendment, supplement or modification to, this Loan
Agreement, the Note, any other Loan Document or any other documents prepared in connection
herewith or therewith. Each Loan Party agrees to pay as and when billed by the Lender all of the
out-of-pocket costs and expenses incurred in connection with the consummation and administration
of the transactions contemplated hereby and thereby including, without limitation, (i) all the
reasonable fees, disbursements and expenses of counsel to the Lender and (ii) all the due
diligence, inspection, testing and review costs and expenses incurred by the Lender with respect
to Facility Collateral under this Loan Agreement, including, but not limited to, those costs and
expenses incurred by the Lender pursuant to Sections 11.03(a), 11.15 and 11.16 hereof. Each Loan
Party also agrees not to assert any claim against the Lender or any of its Affiliates, or any of
their respective officers, directors, employees, attorneys and agents, on any theory of liability,
for special, indirect, consequential or punitive damages arising out of or otherwise relating to
the Loan Documents, the actual or proposed use of the proceeds of the Advances, this Loan
Agreement or any of the transactions contemplated hereby or thereby.




          (c) Each Loan Party agrees to pay as and when billed by the Lender all of the reasonable
out-of pocket costs and expenses incurred by the Lender in connection with the exercise of the
Lender’s rights and remedies upon the occurrence of an Event of Default, including without
limitation all the reasonable fees, disbursements and expenses of counsel to the Lender.




          (d) If any Loan Party fails to pay when due any costs, expenses or other amounts payable by
it under this Loan Agreement, including, without limitation, reasonable fees and expenses of
counsel and indemnities, such amount may be paid on behalf of the Borrower by the Lender, in its
sole discretion and the Borrower shall remain liable for any such payments by the Lender and such
amounts shall accrue interest at the Post-Default Rate. No such payment by the Lender shall be
deemed a waiver of any of its rights under the Loan Documents.




          (e) Without prejudice to the survival of any other agreement of a Loan Party hereunder, the
covenants and obligations of each Loan Party contained in this Section 11.03 shall survive the
payment in full of the Loan and all other amounts payable hereunder and delivery of the Facility
Collateral by the Lender against full payment therefor.




       11.04 Amendments. Except as otherwise expressly provided in this Loan Agreement, any
provision of this Loan Agreement may be modified or supplemented only by an instrument in writing
signed by the Lender and the Borrower and any provision of this Loan Agreement may be waived by the
Lender.




       11.05 Successors and Assigns. This Loan Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted assigns.




       11.06 Survival. The obligations of the Borrower under Sections 2.05, 3.03, and 11.03
hereof shall survive the repayment of the Advances and the termination of this Loan Agreement. In





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addition, each representation and warranty made, or deemed to be made by a request for a
borrowing herein or pursuant hereto shall survive the making of such representation and warranty,
and the Lender shall not be deemed to have waived, by reason of making any Advance, any Default
that may arise by reason of such representation or warranty proving to have been false or
misleading, notwithstanding that the Lender may have had notice or knowledge or reason to believe
that such representation or warranty was false or misleading at the time such Advance was made.




          11.07 Captions. The table of contents and captions and section headings appearing
herein are included solely for convenience of reference and are not intended to affect the
interpretation of any provision of this Loan Agreement.




          11.08 Counterparts and Facsimile. This Loan Agreement may be executed simultaneously
in any number of counterparts. Each counterpart shall be deemed to be an original, and all such
counterparts shall constitute one and the same instrument. The parties agree that this Loan
Agreement, any documents to be delivered pursuant to this Loan Agreement and any notices hereunder
may be transmitted between them by email and/or by facsimile. The parties intend that faxed
signatures and electronically imaged signatures such as .pdf files shall constitute original
signatures and are binding on all parties. The original documents shall be promptly delivered, if
requested.




          11.09 Loan Agreement Constitutes Security Agreement. This Loan Agreement shall
constitute a security agreement within the meaning of the Uniform Commercial Code




          11.10 Governing Law. Insofar as there may be no applicable Federal law, this Loan
Agreement shall be construed in accordance with the laws of the State of New York, without regard
to any rule of conflicts of law (other than Section 5-1401 of the New York General Obligations Law)
that would result in the application of the substantive law of any jurisdiction other than the
State of New York. Nothing in this Loan Agreement shall require any unlawful action or inaction by
either party.




          11.11 SUBMISSION TO JURISDICTION; WAIVERS. EACH PARTY HERETO HEREBY IRREVOCABLY AND
UNCONDITIONALLY:





     (A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO
THIS LOAN AGREEMENT, THE NOTE AND THE OTHER LOAN DOCUMENTS, OR FOR RECOGNITION AND
ENFORCEMENT OF ANY JUDGMENT IN RESPECT THEREOF, TO THE EXCLUSIVE GENERAL JURISDICTION OF ANY
COURT OF THE STATE AND COUNTY OF NEW YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF NEW YORK;




     (B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO
THE EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING
WAS BROUGHT IN AN INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;




     (C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY
MAILING A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF
MAIL), POSTAGE PREPAID, TO ITS ADDRESS SET FORTH IN SECTION 11.02 OR AT SUCH OTHER ADDRESS
OF WHICH THE LENDER SHALL HAVE BEEN NOTIFIED; AND



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     (D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN
ANY OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.



          11.12 WAIVER OF JURY TRIAL. EACH LOAN PARTY AND THE LENDER HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS LOAN AGREEMENT, ANY OTHER LOAN DOCUMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.




          11.13 Acknowledgments. Each Loan Party hereby acknowledges that:




             (a) it has been advised by counsel in the negotiation, execution and delivery of this Loan
Agreement, the Note and the other Loan Documents to which it is a party;




             (b) the Lender has no fiduciary relationship to any Loan Party, and the relationship between
the Borrower and the Lender is solely that of debtor and creditor; and




             (c) no joint venture exists among or between the Lender and any Loan Party.




          11.14 Hypothecation or Pledge of Facility Collateral. Nothing in this Loan Agreement
shall preclude the Lender from engaging in repurchase transactions with the Facility Collateral or
otherwise pledging, repledging, transferring, hypothecating, or rehypothecating the Facility
Collateral (subject to the interest of the relevant Senior Lien Lender). Nothing contained in this
Loan Agreement shall obligate the Lender to segregate any Facility Collateral delivered to the
Lender by any Loan Party.




          11.15 Assignments; Participations.




             (a) The Borrower and the other Loan Parties may assign, sell, transfer, participate, pledge,
or hypothecate any or all of their rights or obligations hereunder or under the other Loan
Documents only with the prior written consent of the Lender, which consent may be withheld at the
sole discretion of the Lender. The Lender may assign, sell, transfer, participate, pledge, or
hypothecate to any Person all or any of its rights under this Loan Agreement and the other Loan
Documents.




             (b) The Lender may, in accordance with Applicable Law, at any time sell to one or more
lenders or other entities (“Participants”) participation interests in any Advance, the
Note, its right to make Advances, or any other interest of the Lender hereunder and under the
other Loan Documents. In the event of any such sale by the Lender of participating interests to a
Participant, the Lender’s obligations under this Loan Agreement to the Borrower shall remain
unchanged, the Lender shall remain solely responsible for the performance thereof, the Lender
shall remain the holder of the Note for all purposes under this Loan Agreement and the other Loan
Documents, and the Borrower shall continue to deal solely and directly with the Lender in
connection with the Lender’s rights and obligations under this Loan Agreement and the other Loan
Documents. The Borrower agrees that if amounts outstanding under this Loan Agreement and the Note
are due or unpaid, or shall have been declared or shall have become due and payable upon the
occurrence of an Event of Default, each Participant shall be deemed to have the right of set-off
in respect of its participating interest in amounts owing under this Loan Agreement and the Note
to the same extent as if the amount of its participating interest were owing directly to it as a
Lender under this Loan Agreement or the Note; provided, that such Participant shall only be
entitled to such right of set-off if it shall have agreed in the agreement pursuant to which it
shall have acquired its participating interest to share with the Lender the proceeds thereof. The
Lender also agrees that each





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Participant shall be entitled to the benefits of Sections 2.04, 2.08, 3.03 and 11.03 with
respect to its participation in the Advances outstanding from time to time; provided, that the
Lender and all Participants shall be entitled to receive no greater amount in the aggregate
pursuant to such Sections than the Lender would have been entitled to receive had no such transfer
occurred.




          (c) The Lender may furnish any information concerning any Loan Party or any of its
Subsidiaries in the possession of the Lender from time to time to assignees and Participants
(including prospective assignees and Participants) only after notifying such Loan Party in writing
and securing signed confidentiality statements (a form of which is attached hereto as Exhibit D)
and only for the sole purpose of evaluating participations and for no other purpose unless
disclosure is required pursuant to the Freedom of Information Act.




          (d) Each Loan Party agrees to cooperate with the Lender in connection with any such
assignment and/or participation, to execute and deliver such replacement notes, and to enter into
such restatements of, and amendments, supplements and other modifications to, this Loan Agreement
and the other Loan Documents in order to give effect to such assignment and/or participation.
Each Loan Party further agrees to furnish to any Participant identified by the Lender to such Loan
Party copies of all reports and certificates to be delivered by such Loan Party to such
Participant or lender’s assignee hereunder, as and when delivered to the Lender.




       11.16 Periodic Due Diligence Review.




          (a) At all times while any Advances are outstanding or until such later time as may be
specified in Appendix A, each Loan Party and each of its direct and indirect Subsidiaries shall
permit the (i) Lender and its agents, consultants, contractors and advisors, (ii) the Special
Inspector General of the Troubled Asset Relief Program, and (iii) the Comptroller General of the
United States access to personnel and any books, papers, records or other data, in each case to
the extent relevant to ascertaining compliance with the financing terms and conditions;
provided that prior to disclosing any information pursuant to clause (y) or (z),
the Special Inspector General of the Troubled Asset Relief Program shall have agreed, with respect
to documents obtained under this agreement in furtherance of its function, to follow applicable
law and regulation (and the customary policies and procedures for inspector generals) regarding
the dissemination of confidential materials, including redacting confidential information from the
public version of its reports, as appropriate, and soliciting the input from the Borrower as to
information that should be afforded confidentiality. Each of the Lender and the Loan Parties
represents that it has been informed by the Special Inspector General of the Troubled Asset Relief
Program and the Comptroller General of the United States that they, before making any request for
access or information relating to an audit, will establish a protocol to avoid, to the extent
reasonably possible, duplicative requests. Nothing in this Section 11.16 shall be construed to
limit the authority that the Special Inspector General of the Troubled Asset Relief Program or the
Comptroller General of the United States have under law.




          (b) Each Loan Party acknowledges that the Lender has the right to perform continuing due
diligence reviews with respect to the business and operations of the Loan Parties and the Facility
Collateral. Each Loan Party also shall make available to the Lender a knowledgeable financial or
accounting officer for the purpose of answering questions respecting the business and operations
of such Loan Party and the Facility Collateral. Without limiting the generality of the foregoing,
each Loan Party acknowledges that the Lenders shall make the Advances to the Borrower based upon
the information concerning the Loan Parties and the Facility Collateral provided by the Loan
Parties to the Lender, and the representations, warranties and covenants contained herein, and
that the Lender, at its option, have the right, at any time to conduct a due diligence review on
the business and operations of any Loan Party and some or all of the Facility Collateral securing
the Advances. In addition, the Lender





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has the right to perform continuing Due Diligence Reviews of each Loan Party and its
Affiliates, directors, officers, employees and significant shareholders, if any. The Borrower and
the Lender further agree that all out-of-pocket costs and expenses incurred by the Lender in
connection with the Lender’s or Special Inspector General of the Troubled Asset Relief Program’s
activities pursuant to this Section 11.16 shall be paid by the Borrower.




             (c) The Lender will use reasonable best efforts to hold, and will use reasonable best efforts
to cause its agents, consultants, contractors, advisors, and United States executive branch
officials and employees, to hold, in confidence all non-public records, books, contracts,
instruments, computer data and other data and information (collectively, “Information”)
concerning the Loan Parties furnished or made available to them by the Borrower or its
representatives pursuant to this Loan Parties (except to the extent that such information can be
shown to have been (i) previously known by such party on a non-confidential basis, (ii) in the
public domain through no fault of such party or (iii) later lawfully acquired from other sources
by the party to which it was furnished (and without violation of any other confidentiality
obligation)); provided that nothing herein shall prevent the Lender from
disclosing any Information to the extent required by Applicable Law or regulations or by any
subpoena or similar legal process. The Lender understands that the Information may contain
commercially sensitive confidential information entitled to an exception from a Freedom of
Information Act request.




          11.17 Set-Off. The Borrower hereby irrevocably authorizes the Lender at any time and
from time to time without notice to the Borrower, any such notice being expressly waived by the
Borrower, to set-off and appropriate and apply any and all deposits (general or special, time or
demand, provisional or final), credits, indebtedness or claims, in any currency, in each case
whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing
by the Lender or any Affiliate thereof to or for the credit or the account of the Borrower, or any
part thereof in such amounts as Lender may elect, against and on account of the obligations and
liabilities of the Borrower to Lender hereunder and claims of every nature and description of
Lender against Borrower, in any currency, whether arising hereunder, under the Loan Agreement, or
under any other Loan Document, as Lender may elect, whether or not Lender has made any demand for
payment and although such obligations, liabilities and claims may be contingent or unmatured.
Lender may set-off cash, the proceeds of the liquidation of any Facility Collateral and all other
sums or obligations owed by the Lender or its Affiliates to Borrower against all of Borrower’s
obligations to the Lender or its Affiliates, whether under this Loan Agreement or under any other
agreement with the Borrower, or otherwise, whether or not such obligations are then due, without
prejudice to the Lender’s or its Affiliate’s right to recover any deficiency. The rights of Lender
under this Section are in addition to other rights and remedies (including without limitation,
other rights of set-off) which Lender may have. Upon the occurrence of an Event of Default, the
Lender shall have the right to cause liquidation, termination or acceleration to the extent of any
assets pledged by the Borrower to secure its Obligations hereunder or under any other agreement to
which this Section 11.17 applies.




          11.18 Reliance. With respect to each Advance, the Lender may conclusively rely upon,
and shall incur no liability to any Loan Party in acting upon, any request or other communication
that the Lender reasonably believes to have been given or made by a person authorized to enter into
any Advance on the Borrower’s behalf.




          11.19 Reimbursement. All sums reasonably expended by the Lender in connection with
the exercise of any right or remedy provided for herein shall be and remain the obligation of each
Loan Party (unless and to the extent that the Loan Parties are the prevailing party in any dispute,
claim or action relating thereto). Each Loan Party agrees to pay, with interest at the
Post-Default Rate to the extent that an Event of Default has occurred, the reasonable out of pocket
expenses and reasonable attorneys’ fees incurred by the Lender in connection with the preparation,
negotiation, enforcement (including any





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waivers), administration and amendment of the Loan Documents (regardless of whether the Loan
is entered into hereunder), the taking of any action, including legal action, required or permitted
to be taken by the Lender pursuant thereto, any “due diligence” or loan agent reviews conducted by
the Lender or on their behalf or by refinancing or restructuring in the nature of a “workout.”




          11.20 Waiver Of Redemption And Deficiency Rights. Each Loan Party hereby expressly
waives, to the fullest extent permitted by law, every statute of limitation on a deficiency
judgment, any reduction in the proceeds of any Facility Collateral as a result of restrictions upon
the Lender contained in the Loan Documents or any other instrument delivered in connection
therewith, and any right that they may have to direct the order in which any of the Facility
Collateral shall be disposed of in the event of any Disposition pursuant hereto.




          11.21 Single Agreement. The Borrower and the Lender acknowledge that, and have
entered hereinto and will enter into each Advance hereunder in consideration of and in reliance
upon the fact that, all Advances hereunder constitute a single business and contractual
relationship and have been made in consideration of each other. Accordingly, the Borrower and the
Lender each agree (i) to perform all of their obligations in respect of each Advance hereunder, and
that a default in the performance of any such obligations shall constitute a default by it in
respect of all Advances hereunder, and (ii) that payments, deliveries and other transfers made by
any of them in respect of any Advance shall be deemed to have been made in consideration of
payments, deliveries and other transfers in respect of any other Advance hereunder, and the
obligations to make any such payments, deliveries and other transfers may be applied against each
other and netted.




          11.22 Severability. Any provision of any Loan Document held to be invalid, illegal or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions thereof; and the invalidity of a particular provision in
a particular jurisdiction shall not invalidate such provision in any other jurisdiction. If any
provision of any Loan Document shall be held invalid or unenforceable (in whole or in part) as
against any one or more Loan Parties, then such Loan Document shall continue to be enforceable
against all other Loan Parties without regard to any such invalidity or unenforceability.




          11.23 Entire Agreement. This Loan Agreement and the other Loan Documents embody the
entire agreement and understanding of the parties hereto and supersede any and all prior
agreements, arrangements and understandings relating to the matters provided for herein and
therein. No alteration, waiver, amendments, or change or supplement hereto shall be binding or
effective unless the same is set forth in writing by a duly authorized representative of the
Lender.




          11.24 Appendix A. Each provision of this Loan Agreement is subject to the amendments,
restatements, supplements or other modifications contained in Appendix A.




[SIGNATURE PAGE FOLLOWS]




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          IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement to be duly executed and
delivered as of the day and year first above written.




	 	 	 	 	 
	 	GENERAL MOTORS CORPORATION

as Borrower

 	 
	 	By:  	/x/ Ray Young
 	 
	 	 	Name:  	Ray G. Young 	 
	 	 	Title:  Executive Vice President and Chief


Financial Officer 	 
	 
	 	THE UNITED STATES DEPARTMENT OF THE TREASURY

as Lender

 	 
	 	By:  	/x/ Neel Kashkari
 	 
	 	 	Name:  	Neel Kashkari 	 
	 	 	Title:  Interim Assistant Secretary of the Treasury
for Financial Stability 
	 



Signature Page to Loan and Security Agreement





 









 





	 	 	 	 	 	 	 
	 	 	ANNUNCIATA CORPORATION,	 	 
	 	 	ARGONAUT HOLDINGS, INC.,	 	 
	 	 	GENERAL MOTORS ASIA, INC.,	 	 
	 	 	GENERAL MOTORS ASIA PACIFIC HOLDINGS, LLC,	 	 
	 	 	GENERAL MOTORS OVERSEAS CORPORATION,	 	 
	 	 	GENERAL MOTORS OVERSEAS DISTRIBUTION CORPORATION,	 	 
	 	 	GENERAL MOTORS PRODUCT SERVICES, INC.,	 	 
	 	 	GENERAL MOTORS RESEARCH CORPORATION,	 	 
	 	 	GM APO HOLDINGS, LLC,	 	 
	 	 	GM EUROMETALS, INC.,	 	 
	 	 	GM FINANCE CO. HOLDINGS LLC,	 	 
	 	 	GM GEFS L.P.,	 	 
	 	 	GM GLOBAL TECHNOLOGY OPERATIONS, INC.,	 	 
	 	 	GM GLOBAL TOOLING COMPANY, INC.,	 	 
	 	 	GM LAAM HOLDINGS, LLC,	 	 
	 	 	GM PREFERRED FINANCE CO. HOLDINGS LLC,	 	 
	 	 	GM TECHNOLOGIES, LLC,	 	 
	 	 	GM-DI LEASING CORPORATION,	 	 
	 	 	GMOC ADMINISTRATIVE SERVICES CORPORATION,	 	 
	 	 	ONSTAR, LLC,	 	 
	 	 	RIVERFRONT HOLDINGS, INC.,	 	 
	 	 	SATURN CORPORATION, and	 	 
	 	 	SATURN DISTRIBUTION CORPORATION,	 	 
	 	 	     each, as a Guarantor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/x/ Adil Mistry	 	 
	 

	 	 	 	 	 	 
	 

	 	Name
	 	Adil Mistry	 	 
	 

	 	Title:
	 	Vice President	 	 






Signature Page to Loan and Security Agreement




 









 





	 	 	 	 	 	 	 
	 	 	GENERAL MOTORS INTERNATIONAL HOLDINGS, INC.,	 	 
	 	 	as Guarantor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/x/ Adil Mistry	 	 
	 

	 	 	 	 	 	 
	 

	 	Name
	 	Adil Mistry	 	 
	 

	 	Title:
	 	Vice President	 	 






Address for Notices:




767 Fifth Avenue, 14th Floor

New York, NY 10153




Attention: Adil Mistry

Telephone: (212) 418-3507

Facsimile: (212) 418-3695




Signature Page to Loan and Security Agreement




 









 





EXHIBIT A




FORM OF NOTE




			
	 	 	 
	[MAXIMUM LOAN AMOUNT]	 	 
	December 31, 2008
	 	Washington, District of Columbia






          FOR VALUE RECEIVED, [BORROWER], a [BORROWER ENTITY TYPE AND JURISDICTION] (the “Borrower”),
hereby promises to pay to the order of the UNITED STATES DEPARTMENT OF THE TREASURY (the “Lender”),
at the principal office of the Lender in Washington, D.C. in lawful money of the United States, and
in immediately available funds, the principal sum of [MAXIMUM LOAN AMOUNT] (or such lesser amount
as shall equal the aggregate unpaid principal amount of the Advances made by the Lender to the
Borrower under the Loan Agreement), on the dates and in the principal amounts provided in the Loan
Agreement, and to pay interest on the unpaid principal amount of each such Advance, at such office,
in like money and funds, for the period commencing on the date of the such Advance until such
Advances shall be paid in full, at the rates per annum and on the dates provided in the Loan
Agreement.




          The date, amount and interest rate of each Advance made by the Lender to the Borrower, and
each payment made on account of the principal thereof, shall be recorded by the Lender on its books
and, prior to any transfer of this Note, endorsed by the Lender on the schedule attached hereto or
any continuation thereof; provided, that the failure of the Lender to make any such recordation or
endorsement shall not affect the obligations of the Borrower to make a payment when due of any
amount owing under the Loan Agreement or hereunder in respect of the Advances made by the Lender.




          This Note is the Note referred to in the Loan and Security Agreement dated as of December 31,
2008 (as amended, supplemented or otherwise modified and in effect from time to time, the “Loan
Agreement”), between the Borrower and the United States Department of the Treasury, as Lender, and
evidences the Advances made by the Lender thereunder. Terms used but not defined in this Note have
the respective meanings assigned to them in the Loan Agreement.




          The Borrower agrees to pay all the Lender’s costs of collection and enforcement (including
reasonable attorneys’ fees and disbursements of Lender’s counsel) in respect of this Note when
incurred, including, without limitation, reasonable attorneys’ fees through appellate proceedings.




          Notwithstanding the pledge of the Facility Collateral, the Borrower hereby acknowledges,
admits and agrees that the Borrower’s obligations under this Note are recourse obligations of the
Borrower to which the Borrower pledges its full faith and credit.




          The Borrower, and any indorsers or guarantors hereof, (a) severally waive diligence,
presentment, protest and demand and also notice of protest, demand, dishonor and nonpayment of this
Note, (b) expressly agree that this Note, or any payment hereunder, may be extended from time to
time, and consent to the acceptance of further Facility Collateral, the release of any Facility
Collateral for this Note, the release of any party primarily or secondarily liable hereon, and (c)
expressly agree that it will not be necessary for the Lender, in order to enforce payment of this
Note, to first institute or exhaust the Lender’s remedies against the Borrower or any other party
liable hereon or against any Facility Collateral for this Note. No extension of time for the
payment of this Note, or any installment hereof, made by agreement by the Lender with any person
now or hereafter liable for the payment of this Note, shall affect the liability under this Note of
the Borrower, even if the Borrower is not a party to such agreement; provided, however, that the
Lender and the Borrower, by written agreement between them, may affect the liability of the
Borrower.




A-1









 








          Any reference herein to the Lender shall be deemed to include and apply to every subsequent
holder of this Note. Reference is made to the Loan Agreement for provisions concerning optional
and mandatory prepayments, Facility Collateral, acceleration and other material terms affecting
this Note.




          Any enforcement action relating to this Note may be brought by motion for summary judgment in
lieu of a complaint pursuant to Section 3213 of the New York Civil Practice Law and Rules. The
Borrower hereby irrevocably and unconditionally submits for itself and its property in any legal
action or proceeding relating to this Note or the Loan Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the exclusive general jurisdiction of any court
of the State and county of New York, or in the United States District Court for the Southern
District of New York. The Borrower consents that any such action or proceeding may be brought in
such courts and, to the extent permitted by law, waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim the same. The
Borrower agrees that service of process in any such action or proceeding may be effected by mailing
a copy thereof by registered or certified mail (or any substantially similar form of mail), postage
prepaid, to its address set forth in the Loan Agreement or at such other address of which the
Lender shall have been notified. The Borrower agrees that nothing in this Note shall affect the
right to effect service of process in any other manner permitted by law or shall limit the right to
sue in any other jurisdiction.




          Insofar as there may be no applicable Federal law, this Note shall be construed in accordance
with the laws of the State of New York, without regard to any rule of conflicts of law (other than
Section 5-1401 of the New York General Obligations Law) that would result in the application of the
substantive law of any jurisdiction other than the State of New York. Nothing in this Note shall
require any unlawful action or inaction by the Borrower.




	 	 	 	 	 
	 

	 	 

By:
	 	 
	 

	 	Name:	 	 
	 

	 	Title:	 	 





THIS NOTE HAS BEEN ISSUED WITH AN ORIGINAL ISSUE DISCOUNT (“OID”) FOR UNITED STATES FEDERAL INCOME
TAX PURPOSES. THE ISSUE PRICE, AMOUNT OF OID, ISSUE DATE AND YIELD TO MATURITY OF THIS NOTE MAY BE
OBTAINED BY WRITING TO THE BORROWER AT [___].




A-2









 





SCHEDULE OF LOANS




          This Note evidences the Advances made under the within-described Loan Agreement to the
Borrower, on the dates, in the principal amounts and bearing interest at the rates set forth below,
and subject to the payments and prepayments of principal set forth below:




A-3









 








LOAN GRID




	 	 	 	 	 	 	 	 	 
	Date of	 	 	 	 	 	 	 	 
	Borrowing	 	Principal Amount	 	Amount of	 	Unpaid	 	 
	and	 	of	 	Principal Paid	 	Principal	 	Notation
	Rate	 	Advance	 	or Prepaid	 	Balance	 	Made By
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 





A-4









 





EXHIBIT B




ACKNOWLEDGMENT AND CONSENT




     The undersigned hereby acknowledges receipt of a copy of the Loan and Security Agreement,
dated as of December 31, 2008 (as amended, supplemented or modified from time to time, the
“Loan Agreement”), among [BORROWER], a [BORROWER ENTITY TYPE AND JURISDICTION] (the
“Borrower”) and the United States Department of the Treasury (the “Lender”) and a
copy of the Equity Pledge Agreement, dated as of December 31, 2008 (as amended, supplemented or
modified from time to time, the “Equity Pledge Agreement”), among the Borrower and the
other parties thereto as pledgors, (the “Pledgors”) and the Lender which such Loan
Agreement and/or Equity Pledge Agreement contains the pledge of Equity Interests of the undersigned
Pledged Entity. Capitalized terms used herein, but not herein defined, shall have the meanings
ascribed thereto in the Loan Agreement or Equity Pledge Agreement, as applicable. The undersigned
agrees for the benefit of the Lender as follows:




	 	1.	 	The undersigned will be bound by the terms of the Loan Agreement and the Equity
Pledge Agreement and will comply with such terms insofar as such terms are applicable
to the undersigned.





	 	 	 	 	 	 	 
	 	 	[PLEDGED ENTITY]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notices:	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 

	 	Fax:	 	 	 	 






B-1









 





EXHIBIT C




FORM OF NOTICE OF BORROWING




[insert date]




United States Department of the Treasury

[ADDRESS]

Attention:                                         




Ladies/Gentlemen:




          Reference is made to the Loan and Security Agreement, dated as of December 31, 2008 (the “Loan
Agreement”; capitalized terms used but not otherwise defined herein shall have the meaning given
them in the Loan Agreement), between [BORROWER] (the “Borrower”) and the United States Department
of the Treasury as Lender (the “Lender”).




          In accordance with Section 2.03(a) of the Loan Agreement, the undersigned Borrower hereby
requests that you, the Lender, make an Advance to us on the Effective Date.




          The Borrower hereby certifies, as of such Funding Date, that:




             (a) no Default or Event of Default has occurred and is continuing on the date hereof nor will
occur after giving effect to such Advance as a result of such Advance;




             (b) each of the representations and warranties made by the Borrower in or pursuant to the
Loan Documents is true and correct in all material respects on and as of such date as if made on
and as of the date hereof (or, if any such representation or warranty is expressly stated to have
been made as of a specific date, as of such specific date);




             (c) the Borrower is in compliance with all governmental licenses and authorizations, except
where the lack of such licenses and authorizations would not be reasonably likely to have a
Material Adverse Effect, and is qualified to do business and is in good standing in all required
jurisdictions, except where the failure to so qualify would not be reasonably likely to have a
Material Adverse Effect; and




             (d) the Borrower has satisfied all conditions precedent in Section 5.02 of the Loan Agreement
and all other requirements of the Loan Agreement.




	 	 	 	 	 	 	 
	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 






C-1









 





EXHIBIT D




FORM OF CONFIDENTIALITY AGREEMENT




       In connection with your consideration of a possible or actual acquisition of a participating
interest (the “Transaction”) in a loan, note or commitment of the United States Department
of the Treasury (“Lender”) pursuant to a Loan and Security Agreement between the Lender and
[BORROWER], a [BORROWER ENTITY TYPE AND JURISDICTION] (the “Borrower”), dated December 31,
2008, you have requested the right to review certain non-public information regarding the Loan
Parties that is in the possession of the Lender. In consideration of, and as a condition to,
furnishing you with such information and any other information (whether communicated in writing or
communicated orally) delivered to you by the Lender or its affiliates, directors, officers,
employees, advisors, agents or “controlling persons” (within the meaning of the Securities Exchange
Act of 1934, as amended (the “1934 Act”)) (such affiliates and other persons being herein
referred to collectively as the Lender “Representatives”), in connection with the
consideration of a Transaction (such information being herein referred to as “Evaluation
Material”), the Lender hereby requests your agreement as follows:




          (a) The Evaluation Material will be used solely for the purpose of evaluating a possible
Transaction with Lender involving you or your affiliates, and unless and until you have completed
such Transaction pursuant to a definitive agreement between you or any such affiliate and Lender,
such Evaluation Material will be kept strictly confidential by you and your affiliates, directors,
officers, employees, advisors, agents or controlling persons (such affiliates and other persons
being herein referred to collectively as “your Representatives”), except that the
Evaluation Material or portions thereof may be disclosed to those of your Representatives who need
to know such information for the purpose of evaluating a possible Transaction with Lender (it
being understood that prior to such disclosure your Representatives will be informed of the
confidential nature of the Evaluation Material and shall agree to be bound by this Confidentiality
Agreement) or if disclosure is required pursuant to the Freedom of Information Act. You agree to
be responsible for any breach of this Confidentiality Agreement by your Representatives.




          (b) The term “Evaluation Material” does not include any information which (i) at the time of
disclosure or thereafter is generally known by the public (other than as a result of its
disclosure by you or your Representatives) or (ii) was or becomes available to you on a
nonconfidential basis from a person not otherwise bound by a confidential agreement with Lender or
its Representatives or is not otherwise prohibited from transmitting the information to you. As
used in this Confidentiality Agreement, the term “person” shall be broadly interpreted to include,
without limitation, any corporation, company, joint venture, partnership or individual.




          (c) In the event that you receive a request to disclose all or any part of the information
contained in the Evaluation Material under the terms of a valid and effective subpoena or order
issued by a court of competent jurisdiction or other regulatory body, you agree to (i) immediately
notify the Lender and the Borrower of the existence, terms and circumstances surrounding such a
request, (ii) consult with the Borrower on the advisability of taking legally available steps to
resist or narrow such request, and (iii) if disclosure of such information is required, exercise
your best efforts to obtain an order or other reliable assurance that confidential treatment will
be accorded to such information.




          (d) Unless otherwise required by law in the opinion of your counsel, neither you nor your
Representative will, without our prior written consent, disclose to any person the fact that the
Evaluation Material has been made available to you.




D-1









 








             (e) You agree not to initiate or maintain contact (except for those contacts made in the
ordinary course of business) with any officer, director or employee of any Loan Party regarding
the business, operations, prospects or finances of any Loan Party or the employment of such
officer, director or employee, except with the express written permission of the Borrower.




             (f) You understand and acknowledge that no Loan Party is making any representation or
warranty, express or implied, as to the accuracy or completeness of the Evaluation Material or any
other information provided to you by the Lender. Neither the Loan Parties, their affiliates or
Representatives, nor any of their respective officers, directors, employees, agents or controlling
persons (within the meaning of the 1934 Act) shall have any liability to you or any other person
(including, without limitation, any of your Representatives) resulting from your use of the
Evaluation Material.




             (g) You agree that neither Lender nor any Loan Party has granted you any license, copyright,
or similar right with respect to any of the Evaluation Material or any other information provided
to you by the Lender.




             (h) If you determine that you do not wish to proceed with the Transaction, you will promptly
deliver to the Lender all of the Evaluation Material, including all copies and reproductions
thereof in your possession or in the possession of any of your Representatives.




             (i) Without prejudice to the rights and remedies otherwise available to the Loan Parties, the
Loan Parties shall be entitled to equitable relief by way of injunction if you or any of your
Representatives breach or threaten to breach any of the provisions of this Confidentiality
Agreement. You agree to waive, and to cause your Representatives to waive, any requirement for the
securing or posting of any bond in connection with such remedy.




          The validity and interpretation of this Confidentiality Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York applicable to
agreements made and to be fully performed therein (excluding the conflicts of law rules) insofar as
there is no applicable Federal law. You submit to the jurisdiction of the United States District
Court for the District Of Columbia and the United States Court of Federal Claims for the purpose of
any suit, action, or other proceeding arising out of this Confidentiality Agreement.




          The benefits of this Confidentiality Agreement shall inure to the respective successors and
assigns of the parties hereto, and the obligations and liabilities assumed in this Confidentiality
Agreement by the parties hereto shall be binding upon the respective successors and assigns.




          If it is found in a final judgment by a court of competent jurisdiction (not subject to
further appeal) that any term or provision hereof is invalid or unenforceable, (i) the remaining
terms and provisions hereof shall be unimpaired and shall remain in full force and effect and (ii)
the invalid or unenforceable provision or term shall be replaced by a term or provision that is
valid and enforceable and that comes closest to expressing the intention of such invalid or
unenforceable term or provision.




          This Agreement embodies the entire agreement and understanding of the parties hereto and
supersedes any and all prior agreements, arrangements and understandings relating to the matters
provided for herein. No alteration, waiver, amendments, or change or supplement hereto shall be
binding or effective unless the same is set forth in writing by a duly authorized representative of
each party and may be modified or waived only by a separate letter executed by the Borrower and you
expressly so modifying or waiving such Agreement.




D-2









 








          For the convenience of the parties, any number of counterparts of this Confidentiality
Agreement may be executed by the parties hereto. Each such counterpart shall be, and shall be
deemed to be, an original instrument, but all such counterparts taken together shall constitute one
and the same Agreement.




D-3









 





          Kindly execute and return one copy of this letter which will constitute our Agreement with
respect to the subject matter of this letter.




	 	 	 	 	 	 	 
	 	 	UNITED STATES DEPARTMENT OF THE TREASURY	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 





Confirmed and agreed to

this ___day of                     , 200_.




	 	 	 	 	 
	By:
	 	 	 	 
	Name

	 	 

	 	 
	Title:]
	 	 	 	 






D-4









 





EXHIBIT E




FORM OF COMPLIANCE CERTIFICATE




     This Compliance Certificate (“Certificate”) is delivered pursuant to Section 7.01 of
the Loan and Security Agreement, dated as of December 31, 2008 (as amended, supplemented or
modified from time to time, the “Loan Agreement”), among [BORROWER], a [BORROWER ENTITY
TYPE AND JURISDICTION] (the “Borrower”) and the United States Department of the Treasury
(the “Lender”). Capitalized terms used herein, but not herein defined, shall have the
meanings ascribed thereto in the Loan Agreement.



     The undersigned, in its capacity as a Responsible Person and without assuming personal
liability, hereby certifies to the Lender as follows:




	 	1.	 	I am the duly elected, qualified and acting Responsible Person of the Borrower.
	 
	 	2.	 	I have reviewed and am familiar with the contents of this Certificate.
	 
	 	3.	 	I have reviewed the terms of the Loan Agreement and the Loan Documents and have
made or caused to be made under my supervision, a review in reasonable detail of the
transactions and condition of the Borrower during the accounting period covered by the
financial statements attached hereto as Attachment 1 (the “Financial
Statements”). To my knowledge, such financial statements have been prepared in
accordance with generally accepted accounting principles and present fairly, in all
material respects, the financial position of the Borrower and its Consolidated
Subsidiaries covered thereby at the date thereof and the results of its operations for
the period covered thereby, subject in the case of interim statements only to normal
year-end audit adjustments and the addition of footnotes. Such review did not disclose
the existence during or at the end of the accounting period covered by the Financial
Statements, and I have no knowledge of the existence, as of the date of this
Certificate, of any condition or event which constitutes a Default or Event of Default.
	 
	 	4.	 	Attached hereto as Attachment 2 are the computations showing compliance with
the covenants set forth in Section 7.03 of the Loan Agreement.1
	 
	 	5.	 	Since the Closing Date:






	 	(a)	 	Neither the Borrower nor any Loan Party has changed its name or
identity or organizational structure;
	 
	 	(b)	 	Neither the Borrower nor any Loan Party has changed its
jurisdiction of organization or the location of its chief executive office or
its sole place of business;
	 
	 	(c)	 	Except, in each case, (i) any of the foregoing that has been
previously disclosed in writing to the Lender and in respect of which the
Borrower or a Loan Party, as applicable, has delivered to the Lender all
required Uniform Commercial Code financing statements and other filings
required to maintain the perfection and priority of the Lender’s security
interest in the Facility Collateral after giving effect to such







 




			
	1	 	This certification is only required with quarterly and
annual financial statements and at such time as financial covenants are agreed
with the President’s Designee




E-1









 











event, in each case as required by Section 7.09 of the Loan Agreement and (ii)
any of the foregoing described in Attachment 3 hereto in respect of which the
Borrower or a Loan Party, as applicable, are delivering to the Lender herewith
all required Uniform Commercial Code financing statements and other filings
required to maintain the perfection and priority of the Lender’s security
interest in the Facility Collateral after giving effect to such event, in each
case as required by Section 7.09 of the Loan Agreement.




	 	6.	 	Since the Effective Date, neither the Borrower nor any Loan Party, as
applicable, has created or acquired any Subsidiary.
	 
	 	7.	 	To the best of my knowledge, during the last fiscal [month][quarter][year], the
Borrower and the Loan Parties have observed and performed all of its covenants and
other agreements, and satisfied every material condition, contained in the Loan
Documents to be observed, performed or satisfied by it.
	 
	 	8.	 	No Loan Party has (a) incurred, assumed or permitted to exist any Indebtedness
of such Loan Party that is not Permitted Indebtedness, (b) made any Investment that is
not a Permitted Investment or (c) created, incurred or permitted to exist any Lien on
any of its Property that is not a Permitted Lien.





          IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the date set forth
below.




	 	 	 	 	 	 	 
	 	 	[BORROWER]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





Dated:                      ____, 200___




E-2









 





EXHIBIT F




FORM OF EXEMPTION CERTIFICATE




     Reference is made to the Loan and Security Agreement, dated as of December 31, 2008 (as
amended, supplemented or modified from time to time, the “Loan Agreement”), among
[BORROWER], a [BORROWER ENTITY TYPE AND JURISDICTION] (the “Borrower”) and the United
States Department of the Treasury, as Lender (the “Lender”). Capitalized terms used herein,
but not herein defined, shall have the meanings ascribed thereto in the Loan Agreement.


                                         (the “Non-U.S. Lender”) is providing this certificate pursuant to
Section 3.03(d) of the Loan Agreement. The Non-U.S. Lender hereby represents and warrants that:





	 	1.	 	The Non-U.S. Lender is the sole record and beneficial owner of the Loans or the
obligations evidenced by Note(s) in respect of which it is providing this certificate.
	 
	 	2.	 	The Non-U.S. Lender is not a “bank” for purposes of Section 881(c)(3)(A) of the
Internal Revenue Code of 1986, as amended (the “Code”). In this regard, the
Non-U.S. Lender further represents and warrants that:






(a) the Non-U.S. Lender is not subject to regulatory or other legal requirements as
a bank in any jurisdiction; and




(b) the Non-U.S. Lender has not been treated as a bank for purposes of any tax,
securities law or other filing or submission made to any Governmental Authority, any
application made to a rating agency or qualification for any exemption from tax,
securities law or other legal requirements.




	 	3.	 	The Non-U.S. Lender is not a 10-percent shareholder of the Borrower within the meaning
of Section 881(c)(3)(B) of the Code.
	 
	 	4.	 	The Non-U.S. Lender is not a controlled foreign corporation receiving interest from a
related person within the meaning of Section 881(c)(3)(C) of the Code.




IN WITNESS WHEREOF, the undersigned has executed this certificate as of the date set forth below.




	 	 	 	 	 	 	 
	 	 	[NAME OF NON-U.S. LENDER]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	 	 	 	 	 
	 

	 	Title:	 	 	 	 
	 

	 	 	 	 	 	 





Dated:                                         




F-1









 





EXHIBIT G-1




FORM OF WAIVER FOR THE LOAN PARTIES




     In consideration for the benefits that it will receive as a result of its or its Affiliate’s
participation in the United States Department of the Treasury’s Program for Systemically
Significant Failing Institutions (as set forth in Notice 2008-PSSFI) and any other economic
stabilization program implemented by the Department of the Treasury under the Emergency Economic
Stabilization Act of 2008 (the “EESA”) either prior to or subsequent to the date of this letter
(any such program, including the Program for Systemically Significant Failing Institutions, an
“EESA Program”), [LOAN PARTY] (together with its subsidiaries and affiliates, the “Company”) hereby
voluntarily waives any claim against the United States for any changes to compensation or benefits
of the Company’s employees that are required to comply with the regulations issued by the
Department of the Treasury in connection with an EESA Program, including without limitation the
guidelines set forth in Notice 2008-PSSFI and the requirements of the Loan and Security Agreement
dated as of December 31, 2008 between [BORROWER] and the United States Department of the Treasury
(the “Limitations”).



     The Company acknowledges that the aforementioned regulations and Limitations may require
modification of the compensation, bonus, incentive and other benefit plans, arrangements, policies
and agreements (including so-called “golden parachute” agreements), whether or not in writing, that
the Company may have with its employees or in which such employees may participate as the
regulations and Limitations relate to the period the United States holds any equity or debt
securities of the Company acquired through an EESA Program, including without limitation the
Program for Systemically Significant Failing Institutions, or for any other period applicable under
such EESA Program or Limitations, as the case may be.



     This waiver includes all claims the Company may have under the laws of the United States or
any state related to the requirements imposed by the aforementioned regulations and Limitations,
including without limitation a claim for any compensation or other payments or benefits the
Company’s employees would otherwise receive, any challenge to the process by which the
aforementioned regulations or Limitations are or were adopted and any tort or constitutional claim
about the effect of these regulations or Limitations on the Company’s employment relationship with
its employees.



	 	 	 	 	 
	 	[LOAN PARTY]

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Intending to be legally bound, I have executed this Waiver

as of this ___th day of December, 2008.





G-1-1









 





EXHIBIT G-2




FORM OF WAIVER OF SEO TO LENDER




     In consideration for the benefits I will receive as a result of the participation of
[BORROWER] (together with its subsidiaries and affiliates, the “Company”) in the United States
Department of the Treasury’s Program for Systemically Significant Failing Institutions (as set
forth in Notice 2008-PSSFI) and any other economic stabilization program implemented by the
Department of the Treasury under the Emergency Economic Stabilization Act of 2008 (the “EESA”)
either prior to or subsequent to the date of this letter from me (any such program, including the
Program for Systemically Significant Failing Institutions, an “EESA Program”), I hereby voluntarily
waive any claim against the United States or my employer for any changes to my compensation or
benefits that are required to comply with the regulations issued by the Department of the Treasury
in connection with an EESA Program, including without limitation the guidelines set forth in Notice
2008-PSSFI and the requirements of the Loan and Security Agreement dated as of December 31, 2008
between the Company and the United States Department of the Treasury (the “Limitations”).



     I acknowledge that the aforementioned regulations and Limitations may require modification of
the compensation, bonus, incentive and other benefit plans, arrangements, policies and agreements
(including so-called “golden parachute” agreements), whether or not in writing, that I may have
with the Company or in which I may participate as they relate to the period the United States holds
any equity or debt securities of the Company acquired through an EESA Program, including without
limitation the Program for Systemically Significant Failing Institutions, or for any other period
applicable under such EESA Program or Limitations, as the case may be.



     This waiver includes all claims I may have under the laws of the United States or any state
related to the requirements imposed by the aforementioned regulations and Limitations, including
without limitation a claim for any compensation or other payments or benefits I would otherwise
receive, any challenge to the process by which the aforementioned regulations or Limitations are or
were adopted and any tort or constitutional claim about the effect of these regulations or
Limitations on my employment relationship.


Intending to be legally bound, I have executed this Waiver

as of this ___th day of December, 2008.




	 	 	 
	 
	 	 
	 

Name:

	 	 






G-2-1









 





EXHIBIT G-3




FORM OF CONSENT AND WAIVER OF SEO TO LOAN PARTIES




     In consideration for the benefits I will receive as a result of the participation of
[BORROWER] (together with its subsidiaries and affiliates, the “Company”) in the United States
Department of the Treasury’s Program for Systemically Significant Failing Institutions (as set
forth in Notice 2008-PSSFI) and any other economic stabilization program implemented by the
Department of the Treasury under the Emergency Economic Stabilization Act of 2008 (the “EESA”)
either prior to or subsequent to the date of this letter from me (any such program, including the
Program for Systemically Significant Failing Institutions, an “EESA Program”), I hereby voluntarily
consent to and waive any claim against any of the Company, the Company’s Board of Directors, any
individual member of the Company’s Board of Directors and the Company’s officers, employees,
representatives and agents for any changes to my compensation or benefits that are required to
comply with the regulations issued by the Department of the Treasury in connection with an EESA
Program, including without limitation the guidelines set forth in Notice 2008-PSSFI and the
requirements of the Loan and Security Agreement dated as of December 31, 2008 between the Company
and the United States Department of the Treasury (the “Limitations”).



     I acknowledge that the aforementioned regulations and Limitations may require modification of
the compensation, bonus, incentive and other benefit plans, arrangements, policies and agreements
(including so-called “golden parachute” agreements), whether or not in writing, that I may have
with the Company or in which I may participate as they relate to the period the United States holds
any equity or debt securities of the Company acquired through an EESA Program, including without
limitation the Program for Systemically Significant Failing Institutions, or for any other period
applicable under such EESA Program or Limitations, as the case may be.



     This waiver includes all claims I may have under the laws of the United States or any state
related to the requirements imposed by the aforementioned regulations and Limitations, including
without limitation a claim for any compensation or other payments or benefits I would otherwise
receive, any challenge to the process by which the aforementioned regulations or Limitations are or
were adopted and any tort or constitutional claim about the effect of these regulations or
Limitations on my employment relationship.



     I agree that, in the event and to the extent that the Executive Compensation Committee of the
Board of Directors of the Company (the “Committee”) reasonably determines that any compensatory
payment and benefit provided to me, including any bonus or incentive compensation based on
materially inaccurate financial statements or performance criteria, would cause the Company to fail
to be in compliance with the terms and conditions of any regulations or the Limitations (such
payment or benefit, an “Excess Payment”), upon notification from the Company, I shall promptly
repay such Excess Payment to the Company. In addition, I agree that the Company shall have the
right to postpone any such payment or benefit for a reasonable period of time to enable the
Committee to determine whether such payment or benefit would constitute an Excess Payment.



     I understand that any determination by the Committee as to whether or not, including the
manner in which, a payment or benefit needs to be modified, terminated or repaid in order for the
Company to be in compliance with Section 111 of the EESA and/or the aforementioned regulations or
Limitations shall be final, conclusive and binding. I further understand that the Company is
relying on this letter from me in connection with its participation in an EESA Program.



G-3-1









 




Intending to be legally bound, I have executed this Consent and Waiver

as of this ___th day of December, 2008.




	 	 	 
	 
	 	 
	 

Name:

	 	 






G-3-2









 





EXHIBIT G-4




FORM OF WAIVER OF SENIOR EMPLOYEES TO LENDER




     In consideration for the benefits I will receive as a result of the participation of
[BORROWER] (together with its subsidiaries and affiliates, the “Company”) in the United States
Department of the Treasury’s Program for Systemically Significant Failing Institutions (as set
forth in Notice 2008-PSSFI) and any other economic stabilization program implemented by the
Department of the Treasury under the Emergency Economic Stabilization Act of 2008 (the “EESA”)
either prior to or subsequent to the date of this letter from me (any such program, including the
Program for Systemically Significant Failing Institutions, an “EESA Program”), I hereby voluntarily
waive any claim against the United States or my employer for any failure to pay or accrue any bonus
or incentive compensation as a result of compliance with the regulations issued by the Department
of the Treasury in connection with an EESA Program, including without limitation the guidelines set
forth in Notice 2008-PSSFI and the requirements of the Loan and Security Agreement dated as of
December 31, 2008 between the Company and the United States Department of the Treasury (the
“Limitations”).



     I acknowledge that the aforementioned regulations and Limitations may require modification of
the compensation, bonus, incentive and other benefit plans, arrangements, policies and agreements
(including so-called “golden parachute” agreements), whether or not in writing, that I may have
with the Company or in which I may participate as they relate to the period the United States holds
any equity or debt securities of the Company acquired through an EESA Program, including without
limitation the Program for Systemically Significant Failing Institutions, or for any other period
applicable under such EESA Program or Limitations, as the case may be.



     This waiver includes all claims I may have under the laws of the United States or any state
related to the requirements imposed by the aforementioned regulations and Limitations, including
without limitation a claim for any compensation or other payments or benefits I would otherwise
receive, any challenge to the process by which the aforementioned regulations or Limitations are or
were adopted and any tort or constitutional claim about the effect of these regulations or
Limitations on my employment relationship.


Intending to be legally bound, I have executed this Waiver

as of this ___th day of December, 2008.




	 	 	 
	 
	 	 
	 

Name:

	 	 






G-4-1









 





EXHIBIT G-5




FORM OF CONSENT AND WAIVER OF SENIOR EMPLOYEES TO LOAN PARTIES




     In consideration for the benefits I will receive as a result of the participation of
[BORROWER] (together with its subsidiaries and affiliates, the “Company”) in the United States
Department of the Treasury’s Program for Systemically Significant Failing Institutions (as set
forth in Notice 2008-PSSFI) and any other economic stabilization program implemented by the
Department of the Treasury under the Emergency Economic Stabilization Act of 2008 (the “EESA”)
either prior to or subsequent to the date of this letter from me (any such program, including the
Program for Systemically Significant Failing Institutions, an “EESA Program”), I hereby voluntarily
consent to and waive any claim against any of the Company, the Company’s Board of Directors, any
individual member of the Company’s Board of Directors and the Company’s officers, employees,
representatives and agents for any failure to pay or accrue any bonus or incentive compensation as
a result of compliance with the regulations issued by the Department of the Treasury in connection
with an EESA Program, including without limitation the guidelines set forth in Notice 2008-PSSFI
and the requirements of the Loan and Security Agreement dated as of December 31, 2008 between the
Company and the United States Department of the Treasury (the “Limitations”).



     I acknowledge that the aforementioned regulations and Limitations may require modification of
the compensation, bonus, incentive and other benefit plans, arrangements, policies and agreements
(including so-called “golden parachute” agreements), whether or not in writing, that I may have
with the Company or in which I may participate as they relate to the period the United States holds
any equity or debt securities of the Company acquired through an EESA Program, including without
limitation the Program for Systemically Significant Failing Institutions, or for any other period
applicable under such EESA Program or Limitations, as the case may be.



     This waiver includes all claims I may have under the laws of the United States or any state
related to the requirements imposed by the aforementioned regulations and Limitations, including
without limitation a claim for any compensation or other payments or benefits I would otherwise
receive, any challenge to the process by which the aforementioned regulations or Limitations are or
were adopted and any tort or constitutional claim about the effect of these regulations or
Limitations on my employment relationship.



     I agree that, in the event and to the extent that the Executive Compensation Committee of the
Board of Directors of the Company (the “Committee”) reasonably determines that any compensatory
payment and benefit provided to me would cause the Company to fail to be in compliance with the
terms and conditions of any regulations or the Limitations (such payment or benefit, an “Excess
Payment”), upon notification from the Company, I shall promptly repay such Excess Payment to the
Company. In addition, I agree that the Company shall have the right to postpone any such payment or
benefit for a reasonable period of time to enable the Committee to determine whether such payment
or benefit would constitute an Excess Payment.



     I understand that any determination by the Committee as to whether or not, including the
manner in which, a payment or benefit needs to be modified, terminated or repaid in order for the
Company to be in compliance with Section 111 of the EESA and/or the aforementioned regulations or
Limitations shall be final, conclusive and binding. I further understand that the Company is
relying on this letter from me in connection with its participation in an EESA Program.



G-5-1









 




Intending to be legally bound, I have executed this Consent and Waiver

as of this ___th day of December, 2008.




	 	 	 
	 
	 	 
	 

Name:

	 	 







G-5-2











 



*** Portions
of this exhibit have been omitted under a request for confidential
treatment pursuant to Rule 24b-2 of the Securities and Exchange Act of
1934 and filed separately with the United States Securities and
Exchange Commission.


EXECUTION VERSION




APPENDIX A




SUPPLEMENT TO LOAN AND SECURITY AGREEMENT




     This Appendix A forms a part of the Loan and Security Agreement dated as of December 31, 2008
(the “Loan Agreement”) among BORROWER (as defined below) and the UNITED STATES DEPARTMENT
OF THE TREASURY, as lender (“Lender”). This Appendix A sets forth certain terms and
conditions governing the transactions described in the Loan Agreement. Capitalized terms used but
not defined in this Appendix A shall have the meanings ascribed to them in the Loan Agreement.



SECTION 1. DEFINITIONS AND ACCOUNTING MATTERS.




     1.01 Certain Defined Terms.



     Terms used in this Appendix A, but not herein defined shall have the meanings ascribed thereto
in the Loan Agreement or the meanings set forth below:



          “Borrower” shall mean General Motors Corporation, a Delaware corporation.




          “Effective Date” shall mean December 31, 2008.




          “Excluded Collateral” shall include the following:




          (xii) any Property securing the GMAC Rights Facility.




          “Excluded Subsidiary” shall mean the Subsidiaries identified on Schedule 6.29 and any
of the following, to the extent they become Subsidiaries after the Effective Date, (i) any
Securitization Subsidiary; (ii) any Financing Subsidiary; (iii) any Subsidiary that owns a
manufacturing plant or facility which is located within the continental United States; (iv) any
Insurance Subsidiary; and (v) any Subsidiary (and any parent or holding company thereof) that is
primarily engaged in the investment management business or that is regulated by the Office of the
Comptroller of the Currency.




          “Expiration Date” shall mean December 30, 2011 at 5:00 p.m. (Washington, D.C. time).




          “Facility Account” shall mean the Loan Parties’ cash management accounts.




          “Financing Subsidiary” shall mean any Subsidiary that is primarily engaged in
financing activities (other than lease and purchase financing provided by such Subsidiary to
dealers and consumers), including (a) debt issuances to, or that are guaranteed by, governmental or
quasi-governmental entities (including any municipal, local, county, regional, state, provincial,
national or international organization or agency), and (b) lease transactions (including synthetic
lease transactions and sale and leaseback transactions).




          “Funding Date” shall mean the date on which the Lender funds an Advance in accordance
with the terms hereof, which shall be either the Effective Date, the Second Draw Date, or the Third
Draw Date.




          “GMAC” shall mean GMAC LLC and its Subsidiaries.




1









 





          “GMAC Reorganization” shall mean any transactions consummated for the purpose of or in
connection with the Borrower or any of its Affiliates (a) not being in control of GMAC for purposes
of the Bank Holding Company Act of 1956, (b) not being an affiliate of GMAC for purposes of
Sections 23A or 23B of the Federal Reserve Act, or (c) otherwise complying with the commitments
made by the Borrower to the Federal Reserve System with regard to GMAC, including but not limited
to, in each case, (i) the Disposition of all or any portion of the Borrower’s Equity Interests in
GMAC to one or more trusts, and (ii) the Disposition of all or any portion of such Equity Interests
by any trustee of any such trust.




          “GMAC Rights Facility” shall mean that certain loan facility under which the Lender
shall make available to the Borrower up to $1 billion for use by the Borrower to purchase equity
interests in GMAC in connection with a rights offering by GMAC, and under which the obligations
shall be secured by first-priority liens on the GMAC equity to be issued to the Borrower
in such rights offering, together with certain other GMAC equity now owned by the Borrower, and
such other collateral as may be requested by the Lender and provided by the Borrower from time to
time.




          “Insurance Subsidiary” shall mean (i) any Subsidiary that is required to be licensed
as an insurer or reinsurer or that is primarily engaged in insurance or reinsurance and (ii) any
Subsidiary of a Person described in clause (i) above.




          “Interest Payment Date” shall mean the last Business Day of each calendar quarter,
commencing with the first calendar quarter in 2009.




          “Inventory Cash Collateral Account” shall mean a cash deposit account subject to an
Account Control Agreement in which the Lender has a security interest.




          “Inventory Facility Collateral” shall mean Facility Collateral consisting of inventory
(as defined in the Uniform Commercial Code) in which the Lender has a security interest.




          “Inventory Facility Collateral Reporting Date” shall mean the first Business Day
following the 15th day of each calendar month.




          “Inventory Target Amount” shall mean, on any Inventory Test Date, $250,000,000 (which
number may be revised at any time by the President’s Designee in his/her sole discretion, based on
the Restructuring Plan Report and any other information that the President’s Designee deems
relevant), less the amount of Mandatory Prepayments made in respect of Inventory Facility
Collateral pursuant to Section 2.07(b) prior to such Inventory Test Date.




          “Inventory Test Date” shall mean the last day of each fiscal month in a fiscal year.




          “Inventory Value” shall mean, as of any date of determination, the book value of the
Inventory Facility Collateral as reflected in the Borrower’s management reports and disclosed to
the Lender.




          “Junior Lien Facility Collateral” shall mean Facility Collateral in which the Lender
has a Lien other than a first priority security interest.




2









 





          “LIBOR Floor” shall mean 2.00%.




          “Loan Documents” shall include this Loan Agreement, the Note, the Equity Pledge
Agreement, the Intellectual Property Pledge Agreement, the Guaranty, the Warrant Agreement, the
Warrant, the Post-Closing Letter Agreement, each Account Control Agreement, each Mortgage, and the
Environmental Indemnity.




          “Mandatory Prepayment” shall have the meaning set forth in Section 2.07(a) of this
Appendix A.




          “Maximum Loan Amount” shall mean $13,400,000,000.




          “New VEBA” shall mean the new trust fund to be established pursuant to the Settlement
Agreement.




          “Non-Inventory Current Asset Facility Collateral” shall mean Facility Collateral
consisting of assets which are “current assets” (as identified on the Borrower’s Consolidated
balance sheets), other than Inventory Facility Collateral, in which the Lender has a security
interest.




          “Other Asset Facility Collateral” means Facility Collateral consisting of assets other
than “current assets” (as identified on the Borrower’s Consolidated balance sheets) in which the
Lender has a security interest.




          “Permitted Indebtedness” shall include the following:




          (xvii) Settlement Agreement Debt;




          (xviii) any Warrant Notes; and




          (xix) the Indebtedness incurred in connection with the GMAC Rights Facility.




          “Permitted Investors” shall mean the New VEBA and any other trust fund established
pursuant to the Settlement Agreement (and any trustee, Affiliate or Subsidiary of the New VEBA or
such other trust fund).




          “Permitted Investments” shall include the following:




          (iv) prior to the Certification Deadline, pursuant to the schedules of such Investments that
has been preliminarily approved by the President’s Designee prior to the Effective Date (which
shall include Investments pursuant to Existing Agreements), which are scheduled to be fulfilled
prior to March 31, 2009, provided that, the President’s Designee shall have the
right to further review and, at any time revoke approval of, any such Investment if the President’s
Designee determines that it would be inconsistent with the objective of this Loan Agreement;




          (v) any Investment existing on the Effective Date (including under the Settlement Agreement)
or made pursuant to binding commitments in effect on the Effective Date or an investment consisting
of any extension, modification or renewal of any Investment existing on the Effective Date;
provided that the amount of any such Investment is not increased through such
extension, modification or renewal;




3









 






     (xxii) the Investment made in connection with the GMAC Rights Facility; and




     (xxiii) Investments in connection with the GMAC Reorganization.




     “Permitted Liens” shall include the following:




     (xxii) Liens incurred in connection with the GMAC Rights Facility; and




     (xxiii) Liens incurred pursuant to the Settlement Agreement and the Settlement
Agreement Debt.




     “Prepayment Event” shall mean the occurrence of any of the following
events:




     (i) the Disposition of any Inventory Facility Collateral; or




     (ii) the Disposition of any Non-Inventory Current Asset Facility Collateral other than
in the ordinary course of business; or




     (iii) the Disposition of any Other Asset Facility Collateral; or




     (iv) the incurrence by any Loan Party of any Indebtedness (other than the incurrence
of Indebtedness that constitutes Permitted Indebtedness) or any equity or other capital
raises (other than (x) contributions of indemnity payments received by the Borrower and
required to be applied to satisfy (or reimburse a payment made in respect of) obligations
and liabilities of the Borrower or any of its Subsidiaries or (y) the proceeds of the
Advances), either public or private, whether in connection with a primary securities
offering, a business combination of any kind, or otherwise; or




     (v) the Disposition of any unencumbered assets of the Borrower other than in the
ordinary course of business (including aircraft divestments); or




     (vi) the Disposition of Junior Lien Facility Collateral whose proceeds are used to
repay debt secured by Senior Liens on such Facility Collateral




     “Relevant Companies” shall mean the Borrower.




     “Second Draw Date” shall mean January 16, 2009.



          “Securitization Subsidiary” shall mean any Subsidiary formed for the purpose of, and
that engages in one or more receivables or securitization financing facilities and other activities
reasonably related thereto.




          “Settlement Agreement” shall mean that Settlement Agreement, dated February 21, 2008
(as amended, modified or otherwise supplemented on or prior to the Effective Date), between the
Borrower, the International Union, United Automobile, Aerospace and Agricultural Implement Workers
of America, and certain class representatives, on behalf of the class of plaintiffs in (1) the
class action of Int’l Union, UAW, et. al. v. General Motors Corp., Civil Action No. 07-14074 (E.D.
Mich. filed Sept. 9, 2007) and/or (2) the class action of UAW et al. v. General Motors Corp., No.
05-CV-73991, 2006 WL 891151 (E.D. Mich. Mar. 31, 2006, aff’d, Int’l Union, UAW v. General Motors
Corp., 497 F.3d 615 (6th Cir. 2007)) and the transactions, agreements or arrangements contemplated
thereby or by similar agreements.




4









 








          “Settlement Agreement Debt” shall mean Indebtedness of the Borrower incurred or to be
incurred pursuant to the terms of the Settlement Agreement as in effect on the Effective Date
(including the Borrower’s 6.75% Series U Convertible Senior Debentures due December 31, 2012 and
the Borrower’s $4,015,187,871 Short Term Note, dated February 21, 2008, payable to the order of
LBK, LLC) or similar debt issued pursuant to any Settlement Agreement.




          “Spread Amount” shall mean 3.00%.




          “Third Draw Date” shall mean February 17, 2009.




          “VEBA Modifications” shall mean that not less than one-half of the value of each
future payment or contribution made by the Borrower and its Subsidiaries or any of them to the VEBA
account (or similar account) pursuant to the Settlement Agreement in place as of December 31, 2008,
shall be made in the form of the stock of the Borrower or one of its Subsidiaries, and that the
total value of any such payment or contribution, shall not exceed the amount of any such payment or
contribution that was required for such time period under the Settlement Agreement in place as of
December 31, 2008.




          “Warrant” shall mean that certain Warrant to Purchase Common Stock, dated as of
December 31, 2008, issued by the Borrower in favor of the Lender.




          “Warrant Agreement” shall mean the Warrant Agreement, dated as December 31, 2008, by
and between the Borrower and the Lender.




          “Warrant Note” shall mean the Borrower’s note dated December 31 2008, delivered
pursuant to the Warrant Agreement.




     1.02 Interpretation.



     It is understood and agreed that any reference to the terms “Subsidiary” and “Affiliate” shall
not be deemed or interpreted to include GMAC; provided that, the ownership thereof
does not increase beyond the amount owned immediately following the consummation of the
transactions contemplated by the GMAC Reorganization and the GMAC Rights Facility.



SECTION 2. ADVANCES, NOTE AND PAYMENTS.




     2.01 Advances.




     (b)(i) The Advance made on the Effective Date shall be in an amount equal to
$4,000,000,000.




     (ii) The Advance made on the Second Draw Date shall be in an amount equal to
$5,400,000,000.




     (iii) The Advance made on the Third Draw Date shall be in an amount equal to
$4,000,000,000; provided, that notwithstanding anything to the contrary
herein, the Lender’s obligation to make such Advance is conditioned on either (x) the
Secretary of the Treasury’s authority to purchase additional Troubled Assets being
increased as set forth in Section 115(a)(3) of EESA or (y) the availability to the
Secretary of the Treasury of other funding for financial assistance to the automotive
industry under Applicable Law.



5









 





     2.03 Procedure for Borrowing.



          (b) Borrower’s Wire Instructions for Advances:




	 	 	 
	Bank:

	 	JP Morgan Chase
	ABA No.:

	 	021000021
	Beneficiary:

	 	General Motors Corporation
	Account No.:

	 	 910-200-2095






     Section 2.07 is hereby replaced in its entirety as follows:



     2.07 Mandatory Prepayments.



       (a) In the event and on each occasion that any Net Proceeds are received by or on behalf of
any Loan Party in respect of any Prepayment Event, the Borrower shall, within one (1) Business Day
after such Net Proceeds are received by the applicable Loan Party, prepay the Advances, in an
aggregate amount equal to 100% of such Net Proceeds (a “Mandatory Prepayment”).



       (b) Notwithstanding the foregoing provisions of paragraph (a) above:



          (i) with respect to Prepayment Events resulting from the Disposition of any Inventory
Facility Collateral, no prepayment of Advances shall be required prior to the next Inventory
Facility Collateral Reporting Date. If on such Inventory Facility Collateral Reporting Date the
aggregate of (x) the Inventory Value as of the immediately preceding Inventory Test Date, plus (y)
any amounts on deposit in the Inventory Collateral Deposit Account on the Inventory Facility
Collateral Reporting Date, is less than the then Inventory Target Amount, then (unless the
President’s Designee determines otherwise) an amount equal to such shortfall (the “Collateral
Shortfall Amount”) will either, at the Borrower’s discretion, be (i) applied by the Borrower
as a Mandatory Prepayment or (ii) deposited by the Borrower into the Inventory Cash Collateral
Account. So long as no Event of Default is continuing at the time, the Borrower will be entitled
to withdraw funds from the Inventory Collateral Deposit Account on any Inventory Facility
Collateral Reporting Date to the extent the aggregate of (x) the Inventory Value on such Inventory
Facility Collateral Reporting Date plus (y) the amount that will remain on deposit in the
Inventory Collateral Deposit Account after giving effect to such withdrawal, exceeds the then
Inventory Target Amount;




          (ii) with respect to Prepayment Events resulting from the Disposition of any Non-Inventory
Current Asset Facility Collateral other than in the ordinary course of business (and other than as
provided in clause (v) below), Mandatory Prepayment of the Net Proceeds shall be required to the
extent the aggregate Net Proceeds from all such Prepayment Events under this clause (ii) equal or
exceed $10,000,000 in any fiscal year;




          (iii) with respect to Prepayment Events resulting from the Disposition of any Other Asset
Facility Collateral, Mandatory Prepayment of the Net Proceeds shall be required to the extent the
aggregate Net Proceeds from such Prepayment Events under this clause (iii) equal or exceed
$50,000,000 in any fiscal year, provided, however, that no Mandatory Prepayment shall be required
in respect of an individual Disposition of any Other Asset Facility Collateral if the Net Proceeds
from any such individual Disposition does not exceed $1,000,000;




6









 




*** Confidential
treatment requested pursuant to Rule 24b-2 of the Securities and Exchange Act of
1934.




          (iv) with respect to Prepayment Events resulting from the incurrence by any Loan Party of any
Indebtedness or any equity or other capital raises, as provided in clause (iv) of the definition
of Prepayment Event, Mandatory Prepayment of the Net Proceeds shall be required to the extent the
aggregate Net Proceeds from such Prepayment Events under this clause (iv) equal or exceed
$50,000,000 in any fiscal year;




          (v) with respect to Prepayment Events resulting from the Borrower’s sale of any of Hummer, AC
Delco, Saab, Saturn***, or the Strasbourg, France facility, Mandatory Prepayment of the Net Proceeds
shall be required except to the extent the President’s Designee determines that such Net Proceeds
may be retained by the Borrower for the purpose of implementing its Restructuring Plan; and




          (vi) with respect to Prepayment Events resulting from the Disposition of Junior Lien Facility
Collateral, Mandatory Prepayment of the Net Proceeds shall be required.




       (c) Unless and until all Advances have been paid in full and all other Obligations have been
satisfied, the Lender shall only be required to release (and shall release) its Lien on Facility
Collateral in connection with Dispositions (x) of Facility Collateral as to which the Disposition
thereof requires a Mandatory Prepayment, and such Mandatory Prepayment is received by the Lender,
or (y) or Facility Collateral as to which the Disposition thereof does not require any Mandatory
Prepayment at the time of such Disposition.



     2.09 Use of Proceeds



          The Borrower shall utilize the proceeds from the Advances for general corporate and working
capital purposes; provided, that the Borrower shall not prepay Indebtedness without the prior
written consent of the Lender. The Advances made hereunder are not and shall not be construed as
an extension of United States Government Federal funding associated with any specific project.




SECTION 3. PAYMENTS; COMPUTATIONS; TAXES.




     3.01. Payments.



            All payments should be made to the following account maintained by the Lender:



	 	 	 
	Bank:

	 	The Bank of New York Mellon
	ABA No.:

	 	021000018
	Beneficiary:

	 	For credit to 630234
	Account No.:

	 	GLA/211705
	Account Name:

	 	Auto Program Account
	Reference:

	 	Rosemary D’Agnese 718-315-3711






SECTION 4. COLLATERAL SECURITY.




     4.12 Partial Release of Facility Collateral.



          (b) A wire transfer need not be effectuated in the event of the Disposition of Facility
Collateral in connection with the GMAC Reorganization unless and until the proceeds are remitted to
the Borrower.




7









 








SECTION 5. CONDITIONS PRECEDENT.




     5.01. Conditions Precedent to Initial Advance.



          (w) GMAC Consents. The Common Holders of the Class A Membership Interests of GMAC LLC
and holders of the Class C Membership Interests of GMAC LLC shall have consented in writing to the
pledge to Lender of the Class B Membership Interests and the Preferred Membership Interests
pursuant to the Loan Documents;




          (x) Warrant Agreement. As additional consideration for the Lender to enter into this
Loan Agreement and the GMAC Rights Facility, the Borrower and the Lender shall enter into the
Warrant Agreement and the Borrower shall issue the Warrant to the Lender in accordance with the
terms of such Warrant Agreement.




The following shall be added as a new Section 5.03 to the Loan Agreement:




     5.03. Conditions Precedent to Subsequent Advances.



     The making of any Advance to the Borrower after the Effective Date is subject to the
following further conditions precedent both immediately prior to the making of such Advance and
also after giving effect thereto and to the intended use thereof:



          (a) on or prior to the Second Draw Date, the applicable Loan Parties shall have used
commercially reasonable efforts to obtain from the Senior Lenders all necessary waivers,
amendments, approvals, and consents to the pledge of the inventory of the Loan Parties to the
Lender; and




          (b) on or prior to the Second Draw Date, the Loan Parties shall have provided to the Lender a
schedule of all existing material Indebtedness (x) of any of Subsidiary of a Loan Party that is not
itself a Loan Party, or (y) that is intercompany Indebtedness.




SECTION 6. REPRESENTATIONS AND WARRANTIES.




     6.02. Financial Condition.



     The Borrower has heretofore furnished to the Lender a copy of its audited Consolidated
balance sheets as at December 31, 2007, with the opinion thereon of an independent auditor, a copy
of which has been provided to the Lender. The Borrower has also heretofore furnished to the
Lender the related Consolidated statements of income and retained earnings and of cash flows for
the Borrower and its Consolidated Subsidiaries for its most recent fiscal year, setting forth in
comparative form the same information for the previous year. All such financial statements are
materially complete and correct and fairly present the Consolidated financial condition of the
Borrower and its Consolidated Subsidiaries and the Consolidated results of their operations for
the fiscal year ended on said date, all in accordance with GAAP applied on a consistent basis.
There are no liabilities, contingent or otherwise, as of the Effective Date, known to any Loan
Party and not disclosed in the most recently publicly filed financial statements or in the
footnotes thereto (or as otherwise disclosed to the Lender prior to the Effective Date), that
involve a material amount.



     6.04 No Breach.



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     The Loan Parties shall not be deemed to be in breach of Section 6.04, clauses (a)(iv) and (b)
to the extent that any intercompany agreements that are Existing Agreements do not satisfy the
criteria of clause (iv) of the definition of Permitted Investments.



     6.13 Existing Agreements.



     Set forth on Schedule 6.13 is a complete and accurate list as of the date hereof of all
Existing Agreements of the Loan Parties filed by, or incorporated in, the Borrower’s 2008 SEC
filings.



     6.14 ERISA.



     Any Benefit Plan which is intended to be a tax-qualified plan of any Loan Party has received a
favorable determination letter and such Loan Party does not know of any reason why such letter
should be revoked. The Loan Parties and each of their respective ERISA Affiliates are in material
compliance with the applicable provisions of ERISA and the Code and the regulations and published
interpretations thereunder. (a) As of December 31, 2007, no ERISA Event has occurred that could
reasonably be expected to result in liability to any Loan Party or any ERISA Affiliate in excess of
$2,000,000,000, (b) as of the Effective Date, no ERISA Event other than a determination that a Plan
is “at risk” (within the meaning of Section 302 of ERISA) has occurred or is reasonably likely to
occur that could reasonably be expected to result in liability to any Loan Party or ERISA Affiliate
in excess of $2,000,000,000, (c) as of December 31, 2007, the present value of all benefit
liabilities under each Plan (based on the assumptions used for purposes of Statement of Financial
Accounting Standards No. 87) did not, as of December 31, 2007, exceed the fair market value of the
assets of such Plan, and the present value of all benefit liabilities of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting Standards No. 87)
did not, as of December 31, 2007, exceed the fair market value of the assets of all such
underfunded Plans, (d) as of December 31, 2007, the Loan Parties do not have post-retirement
medical liability in excess of $60,000,000,000 based on the actuarial assumptions set forth in the
Loan Party’s financial statements under GAAP as of December 31, 2007, and (e) as of the Effective
Date, there is not, and there is not reasonably expected to be, any withdrawal liability from, or
any obligation or liability (direct or indirect) with respect to, any Multiemployer Plan. The
representations set forth in the preceding two sentences of this section 6.14 shall continue to be
true and correct on each day that an Advance is outstanding pursuant to the Loan Agreement except
to the extent that any such change or failure when aggregated with all other changes or failures in
the preceding two sentences of this section 6.14, would not be reasonably expected to result in a
Material Adverse Effect. There are no Plans or other arrangements which would result in the payment
to any employee, former employee, individual consultant or director of any amounts or benefits upon
the consummation of the transactions contemplated herein or the exercise of the Lender of any right
or remedy contemplated herein. Assets of the Loan Parties or any ERISA Affiliate are not “plan
assets” within the meaning of the DOL Regulation Section 2510.3-101 as amended by section 3(42) of
ERISA.



     6.15 Expense Policy.



     The Borrower has commenced steps necessary to ensure that (a) the Expense Policy conforms to
the requirements set forth herein and (b) the Borrower and its Subsidiaries are in compliance with
the Expense Policy.



     6.26 Intellectual Property.



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The following shall be appended to the end of Section 6.26(a):




          (a) Notwithstanding the foregoing, in lieu of the obligation to schedule all Intellectual
Property owned by each Loan Party that is material to the conduct of the business of such Loan
Party, Schedule 6.26 hereto sets forth a true and complete list as of the date hereof of all
Copyright registrations and applications, Patent applications and issued Patents, and Trademark
registrations, Trademark applications, and domain name registrations included in the Trademarks, in
each case owned by each Loan Party and material to the conduct of the business of such Loan Party,
and any of the following Licenses that have been identified by the Borrower as of the date hereof
subject to and in accordance with the Post-Closing Letter: (i) any Licenses listed on Section II of
Schedule 6.26 as of the Effective Date, (ii) any Licenses pursuant to which any Loan Party licenses
in Intellectual Property in the absence of which such Loan Party could not manufacture any of its
currently manufactured vehicle models and as to which there are no alternatives for such licensed
Intellectual Property available on commercially reasonable terms, and (iii) any Licenses pursuant
to which any Loan Party licenses Intellectual Property out to a third party where the remaining
royalties due and payable to such Loan Party thereunder are in excess of one million U.S. dollars
(US$1,000,000) annually.




The last sentence of Section 6.26(b) is hereby deleted and of no force or effect.




     6.29 Excluded Collateral.



          Notwithstanding the requirements of Section 6.29, Schedule 6.29 sets forth a complete and
accurate list of all (i) domestic Joint Ventures and Domestic Subsidiaries that comprise Excluded
Collateral and (ii) all “first tier” foreign Joint Ventures and Controlled Foreign Subsidiaries
that are owned by the Borrower or any of its Domestic Subsidiaries that comprise Excluded
Collateral.




SECTION 7. AFFIRMATIVE AND FINANCIAL COVENANTS OF THE LOAN PARTIES.




     7.01 Financial Statements.



          (a) In lieu of delivering monthly Consolidated balance sheets and statements of income and
retained earnings for the Borrower and its Consolidated Subsidiaries, the Borrower shall deliver,
within fifteen (15) days following the end of each calendar month, Consolidated monthly management
reports prepared by the Borrower with respect to the Borrower and its Consolidated Subsidiaries.
The management reports shall be certified to in the monthly certificate delivered by the Borrower
as provided in the last paragraph of Section 7.01.




     7.02 Reporting Requirements.



          (i) The 13-week rolling cash forecast for each Loan Party and its Subsidiaries referenced in
Section 7.02(i) in the Loan Agreement shall be comprised of, and shall set forth separately and
with specific detail, the cash forecast for each of the four regions of the Borrower’s and its
Subsidiaries’ operations: North America, Asia-Pacific, Europe and Middle East/Latin America.




          (j) Until such time as the Lender shall require otherwise, the liquidity status report
referenced in Section 7.02(j) in the Loan Agreement shall set forth the required information as to
the Subsidiaries on a Borrower Consolidated basis only.




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          (k) The requirement to deliver the certification referenced in Section 7.02(k) in the Loan
Agreement, shall commence with the calendar month ending January 31, 2009, and may be qualified as
to the best of such Responsible Person’s knowledge after due inquiry and investigation.




     7.17 Executive Privileges and Compensation.



     From the Effective Date until the latest to occur of (i) the termination of the Loan Agreement
and satisfaction of all Obligations thereunder, (ii) such time as the Lender ceases to own any
Equity Interests of the Borrower acquired under any Loan Documents (including any Warrants and
underlying Equity Interests acquired by the Lender upon exercise thereof), and (iii) the
termination of the Warrant Agreement, the Borrower shall comply with the provisions of Section
7.17. Section 7.17 shall survive termination of the Loan Agreement and satisfaction of all
Obligations thereunder.



     7.19 Restrictions on Expenses.



          (a) The Loan Parties and the Relevant Companies shall only be required to comply with the
provisions of Section 7.19 from and after the Second Draw Date.




     7.24 Cash Management.



     In lieu of the requirements of Section 7.24 in the Loan Agreement, by no later than the Second
Draw Date, the Borrower shall to submit to the Lender and/or its advisors a cash management plan,
in form and substance acceptable to the Lender, which shall set forth, in detail, the Borrower’s
cash collection, investment and disbursement plan on a company-wide basis.



SECTION 8. NEGATIVE COVENANTS OF THE LOAN PARTIES.




     8.03 Transactions with Affiliates.



     Irrespective of whether such transactions comply with the provisions of Section 8.03 as set
forth in the Loan Agreement, but subject to the other restrictions set forth elsewhere in the Loan
Agreement, the Loan Parties shall be permitted to transact business in the ordinary course with (a)
the Joint Ventures in which the Loan Parties or their Subsidiaries participate, and (b) Delphi
Corporation.



     8.05 Limitation on Distributions. 



          (vi)
including any Settlement Agreement Debt,




     8.09  Limitation on Negative Pledge Clauses.



     The agreements excepted from the restrictions of Section 8.09 shall include customary negative
pledge clauses in agreements providing refinancing Indebtedness or permitted unsecured
Indebtedness.



     8.11 Limitations on Investments.



     In the event the Borrower receives notification from any counterparty to a funding commitment
of the kind referenced in clause (iv) of the definition of Permitted Investments which



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has been approved on a preliminary basis requesting funding pursuant thereto, Borrower shall notify
the Lender and the President’s Designee within two (2) Business Days of the receipt thereof, and
shall not make any payment thereunder prior to the twentieth (20th) day thereafter (or such shorter
time as the President’s Designee shall approve).



8.15 Restrictions on Pension Plans.




     From the Effective Date until the latest to occur of (i) the termination of the Loan Agreement
and satisfaction of all Obligations thereunder, (ii) such time as the Lender ceases to own any
Equity Interests of the Borrower acquired under any Loan Documents (including any Warrants and
underlying Equity Interests acquired by the Lender upon exercise thereof), and (iii) the
termination of the Warrant Agreement, the Borrower shall comply with the provisions of Section
8.15. Section 8.15 shall survive termination of the Loan Agreement and satisfaction of all
Obligations thereunder.



SECTION 9. EVENTS OF DEFAULT; TERMINATION EVENTS. 




     9.01  Events of Default. 



          (u) the failure of the Borrower to comply with any of the terms and provisions of the Warrant
Agreement or the Warrant.




SECTION 11. MISCELLANEOUS. 




     11.02  Notices. 


Lender:



The United States Department of the Treasury

1500 Pennsylvania Avenue, NW, Room 2312

Washington, D.C. 20220

Attention: Assistant General Counsel (Banking and Finance)

Facsimile: (202) 622-1974



Borrower:



General Motors Corporation

300 Renaissance Center

Detroit, Michigan  48265-3000

Attention: Chief Financial Officer

Facsimile: 313-667-4605



     with copies to:



Attention: Treasurer

Facsimile: 212-418-3630



     and



Attention: General Counsel

Facsimile: 248-267-4584




     11.16 Periodic Due Diligence Review.



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     Until the later to occur of (i) the termination of the Loan Agreement and satisfaction of all
Obligations thereunder, and (ii) the date on which the Lender holds either the Warrant or Equity
Interests in the Borrower having an aggregate liquidation value of less than 10% of the Warrant
exercise price (assuming the Warrant is exercised in full), the Loan Parties shall comply with the
provisions of Section 11.16. Section 11.16 shall survive termination of the Loan Agreement and
satisfaction of all Obligations thereunder.




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