GUARANTY AND SECURITY
AGREEMENT
THIS
GUARANTY AND SECURITY AGREEMENT, dated as of December 31, 2008
(as amended, supplemented and otherwise modified from time to time,
this “ Guaranty ”), is made by the undersigned
(each, a “ Guarantor ”, and collectively, the
“ Guarantors ”, each of which are set forth on
Exhibit A hereto) in favor of the United States Department of
the Treasury (the “ Lender ”).
A.
Pursuant to the Loan and Security Agreement, dated as of
December 31, 2008 (as amended, supplemented or otherwise
modified from time to time, the “ Loan Agreement
”), among the Lender and General Motors Corporation (the
“ Borrower ”), the Lender has agreed to make
Advances to the Borrower upon the terms and subject to the
conditions set forth therein.
B.
Each of the Guarantors will derive a substantial direct and/or
indirect benefit from the Lender’s making of Advances to the
Borrower pursuant to the Loan Agreement. To induce the Lender to
make such Advances and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, each
Guarantor has agreed to provide the guaranty set forth herein in
favor of the Lender.
C.
It is a condition precedent to the obligation of the Lender to make
Advances to the Borrower under the Loan Agreement that each
Guarantor shall have executed and delivered this Guaranty to the
Lender.
NOW,
THEREFORE, for good and valuable consideration, receipt of which by
the parties hereto is hereby acknowledged, the parties hereto
hereby agree as follows:
(a) Unless
otherwise defined herein, terms defined in the Loan Agreement and
used herein shall have the meanings given to them in the Loan
Agreement.
“
Expiration Date ” shall have the meaning set forth in
Section 2(c) herein.
“
Guarantor Event of Default ” shall mean an Event of
Default with respect to a Guarantor.
“
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 to 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; (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.
(b) The
words “hereof”, “herein” and
“hereunder” and words of similar import when used in
this Guaranty shall refer to this Guaranty as a whole and not to
any particular provision of this Guaranty, and section and
paragraph references are to this Guaranty unless otherwise
specified.
(c) The
meanings given to terms defined herein shall be equally applicable
to both the singular and plural forms of such terms.
(a) Each
Guarantor hereby unconditionally and irrevocably guarantees to the
Lender and each of its permitted indorsees, transferees and assigns
the prompt and complete payment and performance by Borrower when
due (whether at the stated maturity, by acceleration or otherwise)
of the Obligations.
(b) Each
Guarantor further agrees to pay any and all expenses (including,
without limitation, all reasonable fees and disbursements of
counsel) which may be paid or incurred by the Lender in enforcing
any rights with respect to, or collecting, any or all of the
Obligations and/or enforcing any rights with respect to, or
collecting against, the Guarantors under this Guaranty. This
Guaranty shall remain in full force and effect until the
Obligations are paid in full, notwithstanding that from time to
time prior thereto there may not be any outstanding
Obligations.
(c) No
payment or payments made by Borrower, a Guarantor, any other
guarantor or any other Person or received or collected by the
Lender from Borrower, a Guarantor, any other guarantor or any other
Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from time to time in
reduction of or in payment of the Obligations shall be deemed to
modify, reduce, release or otherwise affect the liability of the
Guarantors hereunder. Each Guarantor shall remain liable for the
Obligations until (i) the Obligations are satisfied and paid
in full and (ii) the date on which any payment made to the
Lender in respect of the Obligations shall no longer be subject to
avoidance under the Bankruptcy Code (such date, the “
Expiration Date ”), notwithstanding any payment or
payments referred to in the foregoing sentence other than payments
made by Guarantors in respect of the Obligations or payments
received or collected from Guarantors in respect of the
Obligations.
(d) Each
Guarantor agrees that whenever, at any time, or from time to time,
it shall make any payment on account of its liability hereunder, it
will notify the Lender in writing that such payment is made under
this Guaranty for such purpose.
3.
Security Interest; Right of Set-off .
(a)
Guaranty Collateral . As security for the prompt and
complete payment when due of the Obligations and the performance by
each Guarantor of all the covenants and obligations to be performed
by it pursuant to this Guaranty and the other Loan Documents, each
Guarantor 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;
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(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 such Guarantor
(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 such Guarantor
described in the preceding clauses (i) through (iii) of this
Section 3(a) (including, without limitation, any proceeds of
insurance thereon and all causes of action, claims and warranties
now or hereafter held by such Guarantor 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 such Guarantor or
any other Person from time to time acting for such Guarantor that
at any time evidence or contain information relating to any of the
property described in the preceding clauses (i) through
(iii) of this Section 3(a) or are otherwise necessary or
helpful in the collection or realization thereof;
(v) all rights,
title and interest of such Guarantor (but not any of the
obligations, liabilities or indemnifications of such Guarantor) 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;
and
(vii) all products
and proceeds relating to or constituting any or all of the
foregoing (clauses (i) through (vi) collectively, the
“ Guaranty Collateral ”);
in each case
howsoever such Guarantor’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
“Guaranty Collateral” and each other term used in the
definition thereof shall not include, and no Guarantor is pledging
or granting a security interest in, any Property to the extent that
such Property constitutes Excluded Collateral; provided further,
however, that if and when, and to the extent that, any Property
ceases to be Excluded Collateral, such Guarantor hereby grants to
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 such
Guarantor 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 Guaranty Collateral (subject to Permitted Liens and
to the extent legally and contractually permissible);
provided that , with respect to the Guaranty
Collateral which is subject to a Senior Lien, as set forth on
Schedule 6.28 of the Loan Agreement, the Lien shall be
of junior priority (to the extent legally and contractually
permissible).
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The
Obligations of each Guarantor under the Loan Documents constitute
recourse obligations of such Guarantor, and therefore, their
satisfaction is not limited to payments from the Guaranty
Collateral.
With
respect to each right to payment or performance included in the
Guaranty 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.
(b)
Right of Set-off . Each Guarantor hereby irrevocably
authorizes the Lender at any time and from time to time without
notice to any Guarantor, any such notice being expressly waived by
Guarantors, 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 Lender to or for the credit
or the account of Guarantors, or any part thereof in such amounts
as Lender may elect, against and on account of the obligations and
liabilities of Guarantors to Lender hereunder and claims of every
nature and description of Lender against Guarantors, 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
Guaranty Collateral and all other sums or obligations owed by
Lender to Borrower or Guarantors against all of each
Guarantor’s obligations to Lender, whether under this
Guaranty or under any other agreement with any Guarantor, or
otherwise, whether or not such obligations are then due, without
prejudice to the Lender’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 any
Guarantor Event of Default with respect to any Guarantor, the
Lender shall have the right to cause liquidation, termination or
acceleration to the extent of any assets pledged by such Guarantors
to secure their Obligations hereunder or under any other agreement
to which this Section 3 applies.
(c)
UCC Matters, Further Assurances . Each Guarantor, 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 Guaranty. Each Guarantor 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 Guaranty Collateral. Each Guarantor 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
such Guarantor or any of its Affiliates), such Guarantor shall use
its best efforts to procure such consent, taking into consideration
the likelihood that such consent will be given. Further, each
Guarantor agrees that if any Excluded Collateral should, at any
time following the Effective Date, become Guaranty Collateral on
which the Lender is permitted to take a Lien, such Guarantor 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.
Without limiting the generality of the foregoing, such Guarantor
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 with respect to the Guaranty Collateral.
Each Guarantor 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 Guaranty Collateral now
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existing or
hereafter arising without the signature of such Guarantor where
permitted by law. A carbon, photographic or other reproduction of
this Guaranty or any financing statement covering the Guaranty
Collateral or any part thereof shall be sufficient as a financing
statement.
(d)
Changes in Locations, Names, etc . If any Guarantor shall
(i) change the location of its chief executive office/chief
place of business from that specified in Section 6.10 of the
Loan Agreement, (ii) change its name, identity or corporate
structure (or the equivalent) or change the location where it
maintains records with respect to the Guaranty 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 Guaranty Collateral with the same or better
priority.
(e)
Lender’s Appointment as Attorney-in-Fact . Each
Guarantor 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 such Guarantor and in the
name of such Guarantor or in its own name, from time to time in the
Lender’s discretion, for the purpose of carrying out the
terms of this Guaranty 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 Guaranty,
which such Guarantor is required to do hereunder but has failed to
do so within the time limits required, including without
limitation, to protect, preserve and realize upon the Guaranty
Collateral, to file such financing statements relating to the
Guaranty Collateral as the Lender at its option deems appropriate,
and, without limiting the generality of the foregoing, such
Guarantor hereby gives the Lender the power and right, on behalf of
such Guarantor, without assent by, but with notice to, such
Guarantor, if a Guarantor Event of Default shall have occurred and
be continuing, to do the following:
(i) in the name of
such Guarantor 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 Guaranty 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 Guaranty Collateral whenever
payable;
(ii) to pay or
discharge taxes and Liens levied or placed on or threatened against
the Guaranty Collateral; and
(iii) (A) to
direct any party liable for any payment under any Guaranty
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
Guaranty Collateral; (C) to sign and endorse any invoices,
assignments, verifications, notices and other documents in
connection with any of the Guaranty 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
Guaranty Collateral or any part thereof and to enforce any other
right in respect of any Guaranty Collateral; (E) to defend any
suit, action or proceeding brought against such Guarantor with
respect to any Guaranty Collateral; (F) to settle, compromise
or adjust any suit, action or proceeding described in clause
(E) above and, in connection
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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 this Section 3, generally, to
sell, transfer, pledge and make any agreement with respect to or
otherwise deal with any of the Guaranty 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 such
Guarantor’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 Guaranty Collateral and the
Lender’s Liens thereon and to effect the intent of this
Guaranty and the other Loan Documents, all as fully and effectively
as such Guarantor might do.
Each Guarantor
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.
Each
Guarantor also authorizes the Lender, at any time and from time to
time, to execute, in connection with any sale of Guaranty
Collateral provided for in this Section 3, any endorsements,
assignments or other instruments of conveyance or transfer with
respect to the Guaranty Collateral.
The
powers conferred on the Lender are solely to protect the
Lender’s interests in the Guaranty Collateral
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