Exhibit 10.10
EXECUTION VERSION
Confidential Treatment Requested
by General Motors Company Pursuant to the Freedom of Information
Act
In accordance with
Item 601(b)(2) of Regulation S-K the certain schedules listed
at the end of this document have been omitted. A copy of such
schedules will be provided to the Securities and Exchange
Commission upon request.
INVESTMENT COMMITMENT
AGREEMENT
This INVESTMENT COMMITMENT AGREEMENT
(this “ Agreement ”) is made as of July 26,
2009 by and among Silver Point Capital Fund, L.P., a Delaware
limited partnership, Silver Point Capital Offshore Fund, Ltd., a
Cayman Islands exempt company (together, “ Silver
Point ”), Elliott Associates, L.P., a Delaware limited
partnership (“ Elliott ” and along with Silver
Point, the “ Investors ”), DIP Holdco 3, LLC, a
Delaware limited liability company (the “ Company
”), and General Motors Company, a Delaware corporation
(“ GM ” or the “ Purchaser
”). Each of the Investors, the Company and the Purchaser is a
“ Party ” and collectively they are the “
Parties ” to this Agreement. Capitalized terms used
herein but not otherwise defined have the meaning set forth in
Section 1 .
WHEREAS, the Required Lenders
(including the Investors) under that certain Amended and Restated
Revolving Credit, Term and Guaranty Agreement, dated as of
May 9, 2008, as amended and otherwise modified through the
date hereof (the “ DIP Agreement ”), have
directed the Administrative Agent under the DIP Agreement to make a
credit bid for certain assets of Delphi pursuant to which the
Company would receive such assets;
WHEREAS, upon the terms and
conditions stated in this Agreement, (i) the Purchaser desires
to purchase from the Company the number of Class A membership
interests (the “ Class A Securities ”) set forth
beside the Purchaser’s name in Schedule I attached hereto of
the Company for the aggregate amount set forth opposite the
Purchaser’s name in Schedule I and (ii) each of the
Investors desires to purchase from the Company the number of Class
B membership interests (the “ Class B Securities
”) set forth opposite such Investor’s name in Schedule
I attached hereto of the Company for the aggregate amount set forth
opposite such Investor’s name in Schedule I;
WHEREAS, pursuant to the Assignment
Agreement, the Investors will offer to assign rights hereunder to
the Tranche C Lenders in accordance with the terms thereof and
hereof;
WHEREAS, the Purchaser, the
Investors and the Company are executing and delivering this
Agreement in reliance upon the exemption from securities
registration afforded by Section 4(2) of the Securities Act of
1933, as amended, and Rule 506 of Regulation D (“
Regulation D ”) as promulgated by the United States
Securities and Exchange Commission (the “ SEC ”)
under the Securities Act (as defined below); and
WHEREAS, the Investors and GM desire
to provide the Company with financing for general corporate and
working capital needs and to make certain payments contemplated by
the Assignment Agreement.
1. Definitions . As used
herein, the following terms shall have the following
meanings:
“ Access Agreement
” has the meaning ascribed thereto in the Master Disposition
Agreement.
“ Accommodation
Agreement ” means the Accommodation Agreement by and
among Delphi, the guarantors party thereto, the lenders thereunder
and JPMorgan Chase Bank, N.A. as administrative agent, dated as of
December 12, 2008, as amended through the date
hereof.
“ Administrative Agent
” has the meaning ascribed thereto in the DIP
Agreement.
“ Affiliate ”
means, with respect to any Person, any other Person directly or
indirectly controlling, controlled by or under common control with
such Person. For the purpose of this definition, the term
“control” (including, with correlative meanings, the
terms “controlling”, “controlled by” and
“under common control with”), as used with respect to
any Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting
securities, by contract or otherwise.
“ Ancillary Agreements
” has the meaning ascribed thereto in the Master Disposition
Agreement.
“ Ancillary Documents
” means the Master Disposition Agreement, the Senior Loan
Documents, the Note Documents, the Buyer Transition Services
Agreement, the Supply Agreement, the Commercial Agreement, the
Access Agreement, the Operating Agreement, and the Ancillary
Agreements.
“ Assignment Agreement
” means the Assignment Agreement dated as of the date hereof
by and among GM Components Holdings, LLC, the Company and JPMorgan
Chase Bank, N.A.
“ Bankruptcy Cases
” has the meaning ascribed thereto in the Master Disposition
Agreement.
“ Bankruptcy Court
” has the meaning ascribed thereto in the Master Disposition
Agreement.
“ Borrowing Base Cash
Collateral Account ” has the meaning ascribed thereto in
the Accommodation Agreement.
2
“ Business Day ”
means any day that is not a Saturday or Sunday or a legal holiday
on which banks are authorized or required by law to be closed in
New York.
“ Buyer Transition Services
Agreement ” has the meaning ascribed thereto in the
Master Disposition Agreement.
“ Class A Securities
” has the meaning ascribed to it in the recitals.
“ Class B Securities
” has the meaning ascribed to it in the recitals.
“ Commercial Agreement
” has the meaning ascribed thereto in the Master Disposition
Agreement.
“ Delphi ” means
Delphi Corporation, a Delaware corporation.
“ DIP Agreement ”
has the meaning ascribed to it in the recitals.
“ GM Business ”
has the meaning ascribed thereto in the Master Disposition
Agreement.
“ Governmental Order
” means, with respect to any Person, any judgment, order,
writ, injunction, decree, stipulation, agreement, determination or
award entered or issued by or with any Governmental Authority and
binding on such Person.
“ Governmental
Authority ” shall mean any court, administrative agency
or commission or other governmental authority or instrumentality,
domestic (federal, state or local) or foreign.
“ HSR Act ” means
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and applicable rules and regulations and any similar state
acts.
“ Incremental Borrowing
Base Cash Collateral Account ” has the meaning ascribed
thereto in the Accommodation Agreement.
“ Liquidity Support
Agreement ” means that certain Amended and Restated
GM-Delphi Agreement by and among the Purchaser, Delphi and the
guarantors party thereto, dated as of June 1, 2009, as
amended.
“ Master Disposition
Agreement ” means that certain Master Disposition
Agreement, dated as of the date hereof, by and among GM Components
Holdings, LLC, the Company, Delphi and the other sellers and buyers
party thereto.
“ Note Documents
” means that certain Note Purchase Agreement among the
Company, the Investors and the other note purchasers party thereto
to be executed at or prior to the Closing, substantially in the
form attached to this Agreement as Exhibit C .
3
“ Notes ” means
those certain subordinated unsecured notes to be issued by the
Company in accordance with the provisions of the Note
Documents.
“ Operating Agreement
” means that certain Amended and Restated Limited Liability
Company Agreement of the Company, in the form attached to this
Agreement as Exhibit A .
“ Person ” means
an individual, a partnership, a corporation, an association, a
limited liability company, a joint stock company, a trust, a joint
venture, an unincorporated organization and a governmental entity
or any department, agency or political subdivision
thereof.
“ Purchased Securities
” means the number of Class A Securities and Class B
Securities set forth on Schedule I .
“ Required Investors
” means Elliott and Silver Point and their Affiliate
assignees.
“ Required Lenders
” has the meaning ascribed thereto in the DIP
Agreement.
“ Restricted Securities
” means (i) the Purchased Securities issued hereunder,
(ii) any securities issued with respect to the Purchased
Securities referred to in clause (i) above by way of a stock
dividend or stock split or in connection with a combination of
stock, recapitalization, merger, conversion, consolidation or other
reorganization and (iii) any securities issued pursuant to an
exchange of such Purchased Securities. As to any particular
Restricted Securities, such securities shall cease to be Restricted
Securities when they have (a) been effectively registered
under the Securities Act and disposal of in accordance with the
registration statement covering them, (b) become eligible for
sale pursuant to Rule 144 (or any similar provision then in force)
under the Securities Act without any volume or manner of sale
limitations or (c) been otherwise transferred and new
certificates for them not bearing the Securities Act legend set
forth in Section 13 have been delivered by the Company.
If certificated, whenever any particular securities cease to be
Restricted Securities, the holder thereof shall be entitled to
receive from the Company, without expense, new securities of like
tenor not bearing a Securities Act legend of the character set
forth in Section 13 .
“ SEC ” has the
meaning ascribed thereto in the recitals.
“ Securities Act
” means the Securities Act of 1933, as amended, and the rules
and regulations of the SEC promulgated thereunder.
“ Senior Loan Documents
” means that certain Credit Agreement among the Company, the
Purchaser, the Investors, the other lenders party thereto and
[ ]
as administrative agent to be executed at or prior to the Closing,
substantially in the form attached to this Agreement as Exhibit
B.
4
“ Supply Agreement
” has the meaning ascribed thereto in the Master Disposition
Agreement.
“ Tranche C Lenders
” has the meaning ascribed thereto in the DIP
Agreement.
“ Transactions ”
means the transactions contemplated by this Agreement and the
Ancillary Documents.
2. Authorization and Closing
.
(a) Authorization of the
Purchased Securities . The Company has authorized the issuance
and sale to the Purchaser of the Class A Securities and to the
Investors of the Class B Securities to be sold hereunder, in each
case having the rights and preferences set forth in the Operating
Agreement.
(b) Purchase and Sale of the
Purchased Securities . Upon the terms and subject to the
conditions set forth herein, at the Closing (as defined
below):
(i) the Company shall issue and sell
to the Purchaser, and the Purchaser shall purchase from the
Company, the number of Class A Securities set forth on
Schedule I hereto across from the name of the Purchaser for
an aggregate purchase price equal to $1.75 billion, subject to
adjustment as provided in Section 12 (the “
Class A Purchase Price ”); and
(ii) the Company shall issue and
sell to each Investor and each Investor shall purchase from the
Company, severally and not jointly, (x) the number of Class B
Securities set forth on Schedule I hereto across from the
name of such Investor for an aggregate purchase price equal to
$354.5 million (the “ Class B Purchase Price
”).
(c) Loan Documents . Upon the
terms and subject to the conditions set forth herein, at the
Closing:
(i) the Purchaser hereby commits to
provide to the Company a senior secured first lien credit facility
under which the Purchaser agrees to make loans to the Company in an
aggregate principal amount of $500 million upon the terms and
conditions outlined in the Senior Loan Documents, and to enter into
such Senior Loan Documents;
(ii) the Investors hereby commit,
severally but not jointly, to provide to the Company a senior
secured first lien credit facility under which the Investors agree
to make loans to the Company in an aggregate principal amount set
forth on Schedule I hereto across from the name of such
Investor upon the terms and conditions outlined in the Senior Loan
Documents, and to enter into such Senior Loan Documents;
and
5
(iii) the Investors hereby commit,
severally but not jointly, to purchase from the Company the
aggregate principal amount of Notes set forth on Schedule I
hereto across from the name of such Investor upon the terms and
conditions outlined in the Note Documents, and to enter into such
Note Documents.
(d) The Closing . The closing
of the purchase and sale of the Purchased Securities (the “
Closing ”) shall take place at the offices of Skadden,
Arps, Slate, Meagher & Flom LLP, Four Times Square, New
York, New York, 10036 (or at such other place as the Parties may
designate in writing) concurrently with the closing of the
transactions contemplated by the Master Disposition Agreement, or
at such other place or such other time or date as the Parties may
designate (the “ Closing Date ”).
(e) Purchaser Closing
Deliveries . At or prior to the Closing, the Purchaser will
deliver:
(i) In exchange for the membership
interests representing the Purchased Securities being purchased by
the Purchaser pursuant to Section 2(b) , by wire
transfer of immediately available funds to an account designated by
the Company no later than two Business Days prior to the Closing
Date, an amount equal to the Class A Purchase
Price;
(ii) a copy of the Operating
Agreement, duly executed by the Purchaser;
(iii) an officer’s certificate
of the Purchaser to the effect that each of the conditions
specified in Sections 11(iii) and (v) has been
satisfied by the Purchaser;
(iv) a copy of the Buyer Transition
Services Agreement, duly executed by the Purchaser; and
(v) copies of the Senior Loan
Documents, duly executed by the Purchaser.
(f) Investors Closing
Deliveries . At or prior to the Closing, each of the Investors
will deliver:
(i) In exchange for the membership
interests representing the Class B Securities being purchased by
such Investor pursuant to Section 2(b) , by wire
transfer of immediately available funds to an account designated by
the Company no later than two Business Days prior to the Closing
Date, an amount equal to the portion of the Class B Purchase Price
payable with respect to the Class B Securities being purchased by
such Investor as set forth on Schedule I hereto;
6
(ii) a copy of the Operating
Agreement, duly executed by such Investor;
(iii) an officer’s certificate
from each of the Investors to the effect that each of the
conditions specified in Sections 9(iii) and (iv)
relating to such Investor have been satisfied by each
Investor; and
(iv) to the extent such Investor is
a party thereto, copies of the Senior Loan Documents and Note
Documents, duly executed by such Investor.
(g) Company Closing
Deliveries . At or prior to the Closing, the Company will
deliver to the Purchaser and the Investors:
(i) a copy of the Operating
Agreement, duly executed by the Company;
(ii) an officer’s certificate
of the Company to the effect that each of the conditions specified
in Sections 9(iii) and (iv) relating to the
Company have been satisfied by the Company;
(iii) a certificate of the secretary
of the Company and each of its subsidiaries (i) attaching the
applicable entity’s organizational documents and corporate
authorizations and certifying that such documents are true, correct
and complete and (ii) certifying as to the qualification and
election of the applicable entity’s officers and the
authenticity of officer signatures;
(iv) good standing certificates for
the Company and each of its subsidiaries;
(v) a copy of the Buyer Transition
Services Agreement, duly executed by the Company and its
subsidiaries, as applicable; and
(vi) copies of the Senior Loan
Documents and Note Documents duly executed by the Company and any
subsidiary of the Company party thereto.
3. Representations and Warranties
of the Company . The Company hereby represents and warrants to
the Purchaser and the Investors that:
(a) Organization and Corporate
Power . The Company is a limited liability company duly
organized, validly existing and in good standing under the laws of
Delaware. The Company and its subsidiaries have all requisite power
and authority to carry out the transactions contemplated by this
Agreement and the Ancillary Documents to which each is a
party.
(b) Authorization; No Breach
. The execution, delivery and performance of this Agreement and the
Ancillary Documents to which each is a
7
party by the Company and any of its
subsidiaries party thereto have been duly authorized by the Company
and its subsidiaries. Each of this Agreement and the Ancillary
Documents to which the Company and any of its subsidiaries is a
party constitute valid and binding obligations of the Company and
its subsidiaries, enforceable in accordance with its terms except
as may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar laws relating to or limiting creditors’
rights generally and subject to the availability of equitable
remedies. The execution and delivery by the Company of this
Agreement and the Ancillary Documents to which the Company or any
of its subsidiaries is a party, the offering, sale and issuance by
the Company of the Purchased Securities hereunder and the
fulfillment of and compliance with the respective terms hereof and
thereof by the Company and its subsidiaries, do not and shall not
conflict with or result in a breach of the terms, conditions or
provisions of, constitute a default under, result in a violation
of, or require any authorization, consent, approval, exemption or
other action by or notice to any court or administrative or
governmental body (other than obtaining requisite Bankruptcy Court,
HSR Act or other approvals contemplated by the Master Disposition
Agreement) pursuant to, (i) the organizational documents of
the Company or its subsidiaries, as applicable, (ii) any law,
statute, rule or regulation to which the Company or its
subsidiaries is subject, or (iii) any agreement, instrument,
order, judgment or decree to which the Company or its subsidiaries
is subject prior to the closing of the Transactions, except, in the
case of subclauses (ii) and (iii) above, for any
conflict, result, default, right or other requirement that could
not reasonably be expected to have a material adverse effect on the
transactions contemplated hereby.
(c) Capitalization and Related
Matters . (i) Schedule II sets forth the
outstanding membership interests of the Company immediately
following the Closing. Immediately following the consummation of
the transactions contemplated hereby, the Company shall have no
outstanding membership interests or securities convertible or
exchangeable for membership interests or containing any profit
participation features, nor shall it have outstanding any rights or
options to subscribe for or to purchase its membership interests or
any securities convertible into or exchangeable for its membership
interests or any equity appreciation rights or phantom equity
plans, except as set forth on Schedule II . Immediately
following the consummation of the transactions contemplated hereby
and by the Ancillary Documents, all of the outstanding Purchased
Securities of the Company shall be validly issued and fully
paid.
(ii) As of the date hereof, the
Company has no subsidiaries. Subject to the Purchaser’s
consent not to be unreasonably withheld and, if applicable, subject
to Section 8(a) , the Company may form subsidiaries on
or prior to the closing of the transactions contemplated by the
Master Disposition Agreement. Subject to Section 8 ,
all of the authorized, issued and outstanding equity securities of
each such subsidiary are and shall be owned by the
Company.
8
(iii) The Company has not conducted
any business prior to the date hereof and has no, and prior to the
Closing Date will have no, assets, liabilities or obligations of
any nature other than those incident to its formation and pursuant
to this Agreement (including any interests in any subsidiary) and
the transactions contemplated by the Ancillary
Documents.
(d) Other Matters .
(i) There are no statutory or contractual securityholders
preemptive rights or rights of refusal to which the Company is a
party other than pursuant to the Operating Agreement.
(ii) If the representations and
warranties of the Purchaser and the Investors set forth in
Section 5 are accurate, the offer, sale and issuance of
the Purchased Securities is exempt from the registration and
prospectus delivery requirements of the Securities Act and any
applicable state securities laws.
4. Covenants of the Company and
its Subsidiaries .
(a) The Company shall, and shall
cause each of its subsidiaries to, (i) execute and deliver in
accordance with Section 2(g) any Ancillary Documents to
which it is a party and such other documents, certificates,
agreements and other writings and (ii) take such other
actions, in each case, as may be necessary or reasonably requested
by the Purchaser or the Investors in order to consummate or
implement expeditiously the Transactions in accordance with the
terms of this Agreement and the Ancillary Documents.
(b) Upon the terms and subject to
the conditions of this Agreement, the Company will use its
commercially reasonable efforts to take, or cause to be taken, all
action, and to do, or cause to be done, all things necessary,
proper or advisable consistent with applicable law to consummate
and make effective in the most expeditious manner practicable the
Transactions, including using commercially reasonable efforts to
cause all conditions precedent hereunder to be
satisfied.
(c) The Company shall use its
commercially reasonable efforts to obtain all necessary consents,
waivers, authorizations and approvals of all Governmental
Authorities and of all other Persons required in connection with
the execution, delivery and performance of this Agreement and the
Ancillary Documents or the consummation of the Transactions in
accordance with its agreements under Section 9.13 of the
Master Disposition Agreement.
(d) Prior to Closing, the Company
agrees to actively assist the Investors in achieving a timely
syndication of their commitments contemplated by Section 14(f)
that is mutually satisfactory to the Investors and the Company at
the expense of the Investors. Such assistance shall include,
(i) direct contact between senior management and advisors of
the Company and the Additional Lenders (as defined in
Section 14(f) ) who the Investors wish to syndicate to,
(ii) hosting, with the Investors, of
9
one or more meetings of Additional Lenders,
(iii) providing to the Investors all financial and other
information relating to you and your subsidiaries reasonably deemed
necessary by them and (iv) assistance in the preparation of
materials to be used in connection with the syndication.
(e) In connection with all aspects
of each transaction contemplated by this Agreement, the Company
acknowledges and agrees, and with the Company’s
subsidiaries’ understanding, that (i) each transaction
contemplated by this Agreement is an arms’-length commercial
transaction, (ii) in connection with each such transaction and
the process leading thereto each of the Investors will act solely
as principal and not as agent nor as fiduciary of the Company, or
its stockholders, Affiliates, creditors, employees or any other
party, (iii) none of the Investors will assume an advisory or
fiduciary responsibility in favor of the Company or any of its
Affiliates with respect to any of the transactions contemplated
hereby or the process leading hereto and none of the Investors will
have any obligation to the Company or any of its Affiliates with
respect to the transactions contemplated in this Agreement except
the obligations expressly set forth herein or as otherwise
expressly agreed in writing, (iv) the Investors may be engaged
in a broad range of transactions that involve interests that differ
from the Company and its Affiliates, and (v) none of the
Investors has provided nor will provide any legal, accounting,
regulatory or tax advice with respect to the transactions
contemplated hereby. The Company hereby waives and releases, to the
fullest extent permitted by law, any claims that the Company may
have against the Investors with respect to any breach or alleged
breach of fiduciary duty in respect of any of the transactions
contemplated by this Agreement. Notwithstanding the foregoing,
nothing in this Section 4(e) shall be deemed to be a
waiver of any duties (including fiduciary duties) or obligations of
the Investors under the Operating Agreement when
effective.
(f)
(i) The Company agrees to indemnify
and hold harmless the Investors and their respective Affiliates,
related funds and controlling persons and the respective officers,
directors, employees, agents, attorneys, members and successors and
assigns of each of the foregoing (each, an “ Indemnified
Person ”) from and against any and all losses, damages,
liabilities and expenses, joint or several, to which any such
Indemnified Person may become subject arising out of or in
connection with any claim, litigation, investigation or proceeding
relating to the execution, delivery, negotiation or consummation of
the transactions contemplated by this Agreement, the Operating
Agreement, the Note Purchase Agreement, the Senior Loan Documents
or any related transaction (each, an “ Action
”), regardless of whether any such Indemnified Person is a
party thereto, and to reimburse each such Indemnified Person upon
demand for any reasonable legal or other expenses incurred in
connection with investigating or defending any of the foregoing;
provided that the foregoing indemnity will not, as to any
Indemnified Person, apply to losses, claims, damages, liabilities
or related expenses to the extent they are found in a final,
non-appealable judgment of a
10
court of competent jurisdiction to
have resulted from the willful misconduct or gross negligence of
such Indemnified Person, provided that the indemnification provided
in this Section 4(f)(i) shall not apply to any claim
brought by the Purchaser or the Company against the Investors for
(i) a breach by the Investors of their respective obligations
contained in this Agreement to the extent not assigned in
accordance with Section 14(f)(ii) or (ii) breaches
by the Investors following the Closing under the Operating
Agreement or the Senior Loan Documents, provided ,
however , that nothing contained herein shall limit the
indemnification rights accorded to the Indemnified Persons under
the Operating Agreement or the Senior Loan Documents.
(ii) No Party hereto shall be liable
to any other Party hereto or any of its subsidiaries, Affiliates
and related funds on any theory of liability for any special,
indirect, consequential, punitive or exemplary damages in
connection with or arising from this Agreement, the Financings (as
defined herein), the use of the proceeds therefrom or any related
transaction (provided that such limitation shall not limit a
Party’s right to recover contract damages in connection with
a Party’s failure to close in violation of or other breach of
this Agreement).
To the extent that any indemnity is
paid pursuant to Section (f)(i) above, or the Company
suffers any losses, damages, liabilities or expenses arising out of
or in connection with any claim, litigation, investigation or
proceeding relating to the syndication of the Financings
contemplated by Section 14(f)(ii) (each, a “ Company
Claim ”), such amounts shall be withheld pursuant to
Section 5.7 of the Operating Agreement from amounts
otherwise payable to the holders of Class B Securities pursuant to
Section 5.1 of the Operating Agreement.
The Investors shall have the right
to control, defend and/or settle any Action or Company Claim and
shall have the right to employ their own counsel in connection
therewith; provided that, the Investors agree that, without
the prior written consent of the Purchaser, which shall not be
unreasonably withheld, neither the Investors nor any of their
respective Affiliates or subsidiaries will settle, compromise or
consent to the entry of a judgment in any pending or threatened
claim, action or proceeding in respect of which indemnification has
been or could be sought under the indemnification provisions hereof
(whether or not any other Indemnified Person is an actual or
potential party to such claim, action or proceeding) unless such
settlement, compromise or consent includes an unconditional release
in form and substance reasonably satisfactory to the Company from
all liability arising out of such claim, action or
proceeding.
(g) At, or promptly following the
Closing, if requested by the Purchaser, the Company agrees to pay
to Parnassus Holdings II, LLC an amount equal to $15 million in
cash by wire transfer of immediately available funds.
11
5. Investment Representations
. Each of the Investors, severally and not jointly, and the
Purchaser hereby represents and warrants that:
(a) Subject to any assignment of its
rights and obligations hereunder, such Party is acquiring the
Purchased Securities purchased hereunder or acquired pursuant
hereto for its own acco
