Exhibit 10.5
EXECUTION COPY
LOCK UP
AGREEMENT
This Lock Up Agreement (this “
Agreement ”), dated as of June 1, 2009, is
entered into by and among General Motors Nova Scotia Finance
Company, a Nova Scotia unlimited company (the “
Company ”), General Motors of Canada Limited, a
Canadian federal corporation (“ GM Canada ” or
“ GMCL ”), GM Nova Scotia Investments Ltd., a
Nova Scotia company (“ GM Investments ” and,
collectively with the Company and GM Canada, the “
Canadian Entities ”), General Motors Corporation, a
Delaware corporation (the “ Guarantor ”), and
each of the undersigned beneficial owners (each a “
Holder ” and collectively, the “ Holders
”) of the Company’s 8.375% Guaranteed Notes due
December 7, 2015 (the “ 2015 Notes ”) or
the Company’s 8.875% Guaranteed Notes due July 10, 2023
(the “ 2023 Notes ” and together with the 2015
Notes, the “ Notes ”). The Holders, the Canadian
Entities, the Guarantor and any subsequent person that becomes a
party hereto in accordance with the terms hereof are referred to
herein as the “ Parties. ” Each of the terms
used herein not defined herein shall have the meaning given such
term in the Fiscal and Paying Agency Agreement, dated as of
July 10, 2003 (the “ Fiscal and Paying Agency
Agreement ”), among the Company, the Guarantor, Deutsche
Bank Luxembourg S.A., as fiscal agent (the “ Fiscal
Agent ”) and Banque Générale du Luxembourg
S.A. governing each series of Notes.
RECITALS
WHEREAS, the Guarantor and certain
of its subsidiaries and affiliates who shall be debtors in the
Chapter 11 Cases (as defined below) intend to commence on or about
June 1, 2009 jointly administered chapter 11 cases (the
“ Chapter 11 Cases ”) by filing voluntary
petitions for relief under chapter 11, title 11 of the United
States Code (the “ Bankruptcy Code ”), in the
United States Bankruptcy Court for the Southern District of New
York (the “ Bankruptcy Court ”);
WHEREAS, the Holders, the Canadian
Entities and the Guarantor desire to, among other things, take
certain actions and consummate certain transactions contemplated
hereby to facilitate the resolution and settlement of various
direct, indirect or derivative claims and causes of action of the
Holders against one or more of the Canadian Entities and the
Guarantor and to facilitate the business and financial
restructuring of the Guarantor, the other debtors in the Chapter 11
Cases and certain of the Canadian Entities;
WHEREAS, the Company has requested
and the Holders have agreed to vote to amend the Fiscal and Paying
Agency Agreement and the global securities representing the Notes
as contemplated by this Agreement, in exchange for certain cash
payments and the preservation in the Chapter 11 Cases of certain
direct, indirect or derivative claims and causes of action of the
Holders and the Company against the Guarantor;
WHEREAS, in furtherance of the
foregoing, the Company shall, in accordance with the terms of the
Fiscal and Paying Agency Agreement, convene a meeting (the “
Meeting ”) of holders of the Notes for the purpose of
passing an extraordinary resolution to amend the Fiscal and Paying
Agency Agreement and the global securities representing the Notes
to provide for the waiver of certain rights of the holders of the
Notes, the release and discharge of certain claims and demands by
such holders and the payment of certain amounts by the Company to
the holders of the Notes upon the terms set forth in the form of
extraordinary resolution attached hereto as Exhibit A (the
“ Extraordinary Resolution ”).
WHEREAS, in connection with the
transactions contemplated by this Agreement and in accordance with
the terms and subject to the conditions hereof, Holders
beneficially owning at least two-thirds of the aggregate principal
amount of the 2015 Notes and Holders beneficially owning at least
two-thirds of the aggregate principal amount of the 2023 Notes
intend to vote such Notes in favor of the Extraordinary
Resolution;
NOW, THEREFORE, in consideration of
the premises and the mutual covenants and agreements set forth
herein, and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the Parties agree
as follows:
1. Support of the Extraordinary
Resolution; Additional Covenants .
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(a)
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Each Holder
agrees (i) that the Extraordinary Resolution, when duly passed
at a Meeting, shall be binding on such Holder; (ii) to deliver
or cause to be delivered irrevocably within three Business Days
after the date of this Agreement voting instructions, in such form
as specified by the Company, in favor of the Extraordinary
Resolution at the Meeting at which the Extraordinary Resolution is
to be submitted in respect of the principal amount of each series
of Notes held by such Holder as set forth on the signature page of
such Holder or over which such Holder has voting power; provided
such instruction shall cease to be irrevocable and shall become
void and of no further force and effect automatically upon
termination of this Agreement; (iii) to the extent permitted
under the terms of the Fiscal and Paying Agency Agreement, to waive
compliance with all covenants contained in the Fiscal and Paying
Agency Agreement (other than those applicable to the
Company’s or the Guarantor’s obligations hereunder) and
to forebear from exercising their rights thereunder resulting from
any default or event of default so long as this Agreement is in
effect; and (iv) to cooperate in good faith in satisfying any
other conditions required for the passage of the Extraordinary
Resolution and the consummation of the transactions contemplated
thereby (the “ Transactions ”), including
effecting the voting commitments hereunder and the negotiation of
any documents or agreements to be executed or implemented in
connection therewith, or otherwise contemplated thereby, each of
which documents and agreements shall be consistent in all material
respects with this Agreement and the Extraordinary Resolution (all
such proxies, instructions, documents and agreements, collectively,
the “ Transaction Documents ”).
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(b)
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Each Holder agrees that it shall
not (i) take any action that would cause the acceleration of
the payment of principal of or interest on the Notes other than in
connection with the liquidation referred to in section 6(b) and
except as a result of the Chapter 11 Case of the Guarantor;
(ii) propose, vote for, consent to, support or participate in
the formulation of any plan or resolution other than Transactions,
the Extraordinary Resolution and the Transaction Documents;
(iii) other than as provided in Section 6(b) below,
directly or indirectly seek, solicit, support or encourage any plan
or resolution, including
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but not limited to any decree or
order for relief in respect of any of the Company, the Guarantor or
GM Canada in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or
appointing a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of the Company, the Guarantor or
GM Canada or for any substantial part of its property, or ordering
the winding-up or liquidation of its affairs, other than the
Transactions, the Extraordinary Resolution and the Transaction
Documents, or any plan or resolution that reasonably could be
expected to prevent, delay or impede the successful passage of the
Extraordinary Resolution or implementation of the Transactions; or
(iv) directly or indirectly sell, assign, pledge, hypothecate,
grant an option on, or otherwise dispose of (each, a “
Transfer ”) or permit to subsist any pledge or
security interest (save in the normal course of prime brokerage
activity) over any of the Notes held by such Holder on the date
hereof; provided , however , that any Holder may
Transfer any of such Notes to any entity that executes and delivers
to the Company a duly executed counterpart of this Agreement. This
Agreement shall in no way be construed to preclude any Holder from
acquiring additional Notes; provided , however , that
any such additional Notes shall automatically be deemed to be
subject to all of the terms of this Agreement.
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(c)
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The Company
agrees (i) following the giving of the notice in accordance
with clause (ii) of this Section 1(c), to convene the
Meeting at the earliest time practicable under the terms of the
Fiscal and Paying Agency Agreement for the purpose of passing the
Extraordinary Resolution in accordance with the requirements of the
Fiscal and Paying Agency Agreement, including, without limitation,
the requirements of Schedule 4 (Provisions for Meetings of
Noteholders) to the Fiscal and Paying Agency Agreement;
(ii) within three Business Days after the date of this
Agreement to give a notice in respect of the Meeting to holders of
the Notes for the purpose of passing the Extraordinary Resolution,
which notice shall specify the place, day and hour of the Meeting
in accordance with the requirements of the Fiscal and Paying Agency
Agreement; (iii) to take, or cause to be taken, all actions,
and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to facilitate the
compliance by the Holders with their obligations in
Section 1(a) of this Agreement; (iv) to otherwise take,
or cause to be taken, all actions, and to do, or cause to be done,
all things necessary, proper or advisable under applicable laws and
regulations to satisfy all conditions required to be satisfied by
the Company and the Paying Agent under the Fiscal and Paying Agency
Agreement (including the schedules thereto) for the passage of the
Extraordinary Resolution and the consummation of the Transactions,
(v) to provide written confirmation to the Holders in the
event that the Company elects not to move forward with the
Transactions, and (vi) to cooperate in good faith in
satisfying any other conditions required for the passage of the
Extraordinary Resolution and the consummation of the Transactions,
including the negotiation of the Transaction Documents, all of
which shall be consistent in all material respects with this
Agreement and the Extraordinary Resolution.
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(d)
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The Company,
GMCL and the Holders agree within three Business Days after the
date of this Agreement to establish an escrow account and enter
into an escrow agreement with an escrow agent mutually satisfactory
to the Parties, which agreement shall incorporate the terms of
Exhibit B hereto (“Escrow
Agreement”).
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(e)
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The Holders
agree not to object to the treatment of unsecured creditors
previously disclosed in the Current Report on Form 8-K filed by the
Guarantor on May 28, 2009.
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2. Amounts Payable . The
Company agrees that upon approval of the Extraordinary Resolution,
it shall pay the amounts specified therein in accordance therewith
(the “ Consent Fee ”). The Company further
agrees that within three business days after the approval of the
Extraordinary Resolution, the Canadian Entities shall reimburse
affiliates of Aurelius Capital Management, LP, Appaloosa Management
L.P. and Fortress Investment Group LLC for legal fees and costs in
the amount of US$2,000,000.
3. Termination of Agreement .
This Agreement shall terminate or be terminable, as follows (such
date of termination, the “ Termination Date ”):
(i) by any Holder upon written notice to the Company on or
after July 9, 2009, unless on or prior to such date the
Meeting has been convened, the Extraordinary Resolution has been
approved and the Company and the Paying Agent have paid of all
amounts specified in the Extraordinary Resolution to the holders of
the Notes in accordance therewith; (ii) by a Party not then in
material breach of this Agreement upon written notice to the other
Parties, upon the material breach by any nonterminating Party of
any of the representations, warranties or covenants contained in
this Agreement or the taking of any action by any non-terminating
Party that is otherwise materially inconsistent with this
Agreement; (iii) automatically upon the commencement prior to
the date on which the Extraordinary Resolution is passed of any
voluntary or involuntary case commenced under the Bankruptcy Code
(or any proceedings therein), under any Canadian insolvency
statutes, the Companies’ Creditors Arrangement Act (Canada),
the Bankruptcy and Insolvency Act (Canada), or any statute, law,
legislation, rule or regulation in respect of corporate
reorganization or which provides for the appointment of an interim
receiver, receiver, receiver and manager or liquidator, against or
involving GM Canada or the Company or any of their assets or
properties; or (iv) by any Holder upon written notice to the
Company on or after the Transactions contemplated in this Agreement
shall have been enjoined or otherwise prohibited by law and such
injunction or prohibition is not vacated or otherwise terminated on
or before the 10th day after the effectiveness of such injunction
or prohibition. Upon termination of this Agreement, all obligations
under this Agreement shall terminate and shall be of no further
force and effect; provided, however, that (a) any claim for
breach of this Agreement shall survive termination and all rights
and remedies with respect to such claims shall not be prejudiced in
any way; (b) all claims of the Holders with respect to the
Consent Fee or any funds held in escrow under the terms of the
Escrow Agreement as provided therein shall survive termination and
all rights and remedies with respect to such claims shall not be
prejudiced in any way, and (c) all rights and remedies set
forth in Section 8 shall survive termination and shall not be
prejudiced in any way. (i) Upon termination of this Agreement
other than as a result of a material breach by the Holders prior to
the date of payment of the Consent Fee to the Holders, or
(ii) if after the date on which the Extraordinary Resolution
is passed the Holders are required to turnover the Consent Fee by
reason of any legal proceeding or by reason of any order or
judgment of any court or governmental authority requiring such
amounts be returned to the Company, all direct, indirect
or
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derivative claims, causes of action, remedies,
defenses, setoffs, rights or other benefits of the Holders against
or from one or more of the Canadian Entities and the Guarantor
except in the case of clause (ii) of this sentence the
individual defendants in the Nova Scotia Proceeding shall be fully
preserved without any estoppel, evidentiary or other effect of any
kind or nature whatsoever, including, without limitation, all
claims and causes of action referred to in Section 5 of this
Agreement and the full amount owing under the Loan Agreements as of
the date hereof shall be immediately due and payable according to
their terms as they exist as of the date hereof.
4. Representations and
Warranties . Each of the Parties represents and warrants to
each of the other Parties that the following statements are true,
correct and complete as of the date hereof:
(a) Power and Authority . It
has all requisite power and authority to enter into this Agreement
and to carry out the transactions contemplated by, and perform its
respective obligations under, this Agreement.
(b) Authorization . The
execution and delivery of this Agreement by it and the performance
of its obligations hereunder have been duly authorized by all
necessary action on its part.
(c) Binding Obligation . Upon
execution as set forth in Section 10, this Agreement is the
legally valid and binding obligation of it, enforceable against it
in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, reorganization, moratorium or other
similar laws relating to or limiting creditors’ rights
generally or by equitable principles relating to
enforceability.
(d) No Conflicts . The
execution, delivery and performance by it of this Agreement do not
and shall not (i) violate any provision of law, rule or
regulation applicable to it or its certificate of incorporation,
by-laws, unlimited company agreement or other organizational
document or (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default
under, or give rise to a right of, or result in any termination,
cancellation or acceleration of any obligation or to loss of a
material benefit under, any material contractual obligation,
covenant or condition to which it is a party or under its
certificate of incorporation or by-laws (or other organizational
documents).
(e) Governmental Consents .
The execution, delivery and performance by it of this Agreement do
not and shall not require it to obtain or make any registration or
filing with, consent or approval of, or notice to, or other action
to, with or by, any supranational, national, Federal, state, local,
municipal, foreign or provincial government or any court of
competent jurisdiction, tribunal, judicial or arbitral body,
administrative or regulatory agency (including any stock exchange),
public authority, commission or board or other governmental
department, bureau, branch, agency, or any instrumentality of any
of the foregoing, including, without limitation, the United States
Treasury, the Bankruptcy Court or any other United States or
Canadian court of competent jurisdiction, or any other third party,
which has not already been obtained.
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(f) No Proceedings . There is
no civil, criminal, administrative or arbitral action, suit, claim,
hearing, investigation or proceeding pending or, to the knowledge
of such Party, threatened, against such Party or any of its
affiliates or subsidiaries that questions the validity of this
Agreement or any action taken or to be taken by such Party in
connection with the performance or consummation of any transactions
contemplated by this Agreement.
(g) Signing Holders . If the
undersigned is a Holder, (i) the undersigned is either
(A) a “qualified institutional buyer” as defined
in Rule 144A promulgated under the Securities Act of 1933, as
amended or (B) if resident in Canada, an “accredited
investor” as defined in National Instrument 45-106 –
Prospectus and Registration Exemptions ; (ii) the
undersigned has such knowledge and experience in financial and
business affairs that the undersigned is capable of evaluating the
merits and risks of the Transactions; (iii) the undersigned
represents and warrants that the principal amount of each series of
Notes held by such Holder as set forth on the signature page of
such Holder is an accurate amount and that it is the beneficial
owner of such Notes free and clear of all liens or other
encumbrances, including any encumbrances on the right to vote such
Notes under the Fiscal and Paying Agency Agreement; and
(iv) the undersigned has the requisite power and authority to
vote and grant proxies to vote the aggregate principal amount of
the Notes represented as beneficially owned by it.
(h) No Other Creditors of the
Company . The Company represents and warrants to the Holders
that other than the indebtedness evidenced by the Notes and the
Swap Liability (as defined below), the Company has no outstanding
direct or indirect liability, indebtedness, obligation, commitment,
expense, claim, deficiency, guaranty or endorsement of or by any
person or entity of any type, whether accrued, absolute,
contingent, matured, unmatured or otherwise in excess of an
aggregate of US$2,000,000.
5. Certain Claims
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(a) Nova Scotia Proceeding .
Upon the execution of this agreement by the Parties all proceedings
in the proceeding in the Supreme Court of Nova Scotia titled
Aurelius Capital Partners, LP et al. v. General Motors Corporation
et al., Court File No. HFX No. 308066 (the “ Nova
Scotia Proceeding ”) shall be held in abeyance pending
the approval of the Extraordinary Resolution by the Holders of the
Notes at the Meeting. Upon the approval of the Extraordinary
Resolution at the Meeting and the payment by the Company and the
Paying Agent of the Consent Fee to each of the Holders in
accordance therewith, each Holder hereby releases and discharges
the defendants in the Nova Scotia Proceeding (and the past and/or
present directors, officers, employees, partners, insurers,
co-insurers, controlling shareholders, attorneys, advisers,
consultants, accountants or auditors, personal or legal
representatives, predecessors, successors, parents, subsidiaries,
divisions, joint ventures, assigns, spouses, heirs, related and/or
affiliated entities of each of them) from all claims and demands
that are raised in the Nova Scotia Proceeding, and agrees to
discontinue the Nova Scotia Proceeding on a without costs basis.
Nothing contained in this Agreement shall preclude any Holder from
pursuing any of the claims raised in the Nova Scotia Proceeding
against any of the Canadian Entities or the Guarantor or any of the
other debtors in the Chapter 11 Cases in the event that the payment
of the Consent Fee is
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successfully challenged by any
person in a future proceeding and, as a result, an amount equal to
the Consent Fee has been repaid provided , that, this
Agreement precludes each Noteholder from pursuing any of the claims
raised in the Nova Scotia Proceeding against any of Neil Macdonald,
John Stapleton, Mercedes Michel and Maurita Sutedja (and their
respective heirs, administrators and assigns) in the event that the
payment of the Consent Fee is successfully challenged by any person
in a future proceeding.
(b) Intercompany Loan . Upon
the approval of the Extraordinary Resolution at the Meeting and the
payment by the Company and the Paying Agent of the Consent Fee to
each of the Holders in accordance therewith, each Holder waives all
(and shall cease to have any) rights and claims against the Company
in respect of the Loan Agreements (as defined below), including
with respect to any compromise or settlement of the loans
thereunder, and such Holder’s rights in the Loan Agreements,
and each Holder hereby releases and discharges GM Canada (and its
past and present officers, directors and employees), Neil
Macdonald, John Stapleton, Mercedes Michel and Maurita Sutedja (and
their respective heirs, administrators and assigns) from all claims
and demands whatsoever, presently known or unknown, which the
Holders ever had, now have or may hereafter have against them by
reason of claims and demands arising from or in connection with
those certain loan agreements between the Company and GM Canada
each dated as of July 10, 2003 and pursuant to which GM Canada
borrowed from the Company the sum of five hundred fifty-five
million, eight hundred sixty thousand Canadian dollars
(C$555,860,000), and the sum of seven hundred seventy-eight
million, two hundred four thousand Canadian dollars
(C$778,204,000), respectively (collectively, the “ Loan
Agreements ”), provided that nothing contained in this
Agreement shall preclude the Holders from pursuing any claim in
respect of the parties and claims otherwise released in this
paragraph in the event that the payment of the Consent Fee is
successfully challenged by any person in a future proceeding.
Furthermore, in the event that the payment of the Consent Fee is
successfully challenged by any person in a future proceeding and,
as a result, an amount equal to the Consent Fee has been repaid,
the settlement between the Company and GM Canada of the amount
owing under the Loan Agreements as contemplated by this Transaction
shall be null and void and the full amount owing under the Loan
Agreements as of the date hereof shall be immediately due and
payable according to their terms as they exist as of the date
hereof.
(c) Other Claims . Upon the
approval of the Extraordinary Resolution at the Meeting and the
payment by the Company and the Paying Agent of the Consent Fee to
each of the Holders in accordance therewith, with respect to any
other claim it may have against the Canadian Entities or the
Guarantor in its capacity as a holder of the Notes, each Holder
covenants and agrees not to pursue any claim it may have other than
in connection with the advancement of its claim under the
Guarantee, the advancement of its claim against GM Nova Scotia in
respect of the Notes and the Deficiency Claim (each as defined
below). Nothing contained in this Agreement shall preclude the
Holder from pursuing any other claim it may have against the
Canadian Entities or the Guarantor or any of the other debtors in
the Chapter 11 Cases in the event that the payment of the Consent
Fee is successfully challenged by any person in a future
proceeding. For purposes of this Agreement, the “
Guarantee ” shall mean that certain guarantee of the
Notes by the Guarantor included in the Fiscal and Paying Agency
Agreement and the Notes.
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(d) For purposes of clarity, it is
understood and agreed that nothing contained in this Agreement
shall: (i) release in any respect whatsoever any claim against
the Company on the Notes or any claim against the Guarantor on the
Guarantee, or (ii) preclude a Holder from pursuing any claim
it may have against the Guarantor or any of the other debtors in
the Chapter 11 Cases or any other Party that is not based on such
Holder’s ownership of Notes.
(e) Legal Costs . The
defendants in the Nova Scotia Proceeding release and waive any
claim against the Holders for fees and costs related to that
proceeding.
6. Stipulations and
Acknowledgements .
(a) Acknowledgement of Deficiency
Claim and Guarantee Claim . Each of the Parties hereto hereby
expressly acknowledges, agrees and confirms that nothing contained
in this Agreement is in any way intended to, nor shall it in any
way operate to, directly or indirectly, limit, waive, impair or
restrict, any rights, interests, remedies or claims (whether at law
or in equity, and whether now or hereafter existing) which any
Holder may have against, or to which any Holder is due or owed
from, the Company in respect of the Notes or the Guarantor in
respect of the Guarantee Claim or the Deficiency Claim (as defined
below). Each of the Company and the Guarantor hereby expressly
acknowledges, agrees and confirms that (i) the Deficiency
Claim is a valid and enforceable claim of the Company and shall be
enforceable against the Guarantor as allowed pre-petition general
unsecured claims (the “ Allowed Claims ”) to the
fullest extent permitted under applicable laws, (ii) the Notes
are valid and enforceable claims of the Holders and shall be
enforceable against the Company in their full amount, and
(iii) the Guarantee Claim is a valid and enforceable claim of
the Holders and shall be enforceable against the Guarantor in the
Chapter 11 Cases as Allowed Claims to the fullest extent permitted
under applicable laws.
(b) Guarantor Insolvency
Claims . The Company and Guarantor stipulate and acknowledge as
follows:
(i) forthwith after execution of
this Agreement, the Company shall provide the Holders with a
consent to a bankruptcy order pursuant to the Bankruptcy and
Insolvency Act (Canada), which shall be executed by the duly
authorized officers and directors of the Company in form
satisfactory to the Holders. The Holders are hereby authorized for
and on behalf of the Company to add to the executed consent the
court file number for the application for the bankruptcy order once
issued by the relevant court, and proceed to obtain the bankruptcy
order. GMCL agrees to provide all necessary funding to the trustee
in bankruptcy of the Company as may be required for it to
administer the estate and to fully advance the Deficiency Claim
(defined below) in the bankruptcy or insolvency proceedings of the
Guarantor, including the payment of a retainer in the amount not to
exceed $100,000, on the date that the Extraordinary Resolution is
passed;
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(ii) holders of the 2015 Notes and
the 2023 Notes would and shall be entitled to a general unsecured
claim in the bankruptcy or insolvency proceedings of the Guarantor
for the full amount of the outstanding principal, interest and
costs due on such Notes by virtue of the Guarantor’s
Guarantee (the “ Guarantee Claim ”);
(iii) the trustee in bankruptcy of
the Company would and shall be entitled to a general unsecured
claim for contribution for any amounts unpaid to the
Company’s creditors, namely the amount outstanding under the
Notes, the Swap Liability (defined below) and any other liabilities
(collectively, a “ Deficiency Claim ”), in the
bankruptcy and insolvency proceedings of the Guarantor;
(iv) for greater certainty, the
Consent Fee payment does not reduce, limit or impair the Notes, the
Guarantee Claim or the Deficiency Claim;
(v) the Guarantor confirms that its
only claim against the Company is the Swap Liability. If for any
reason any portion of the Deficiency Claim is disallowed, the
Guarantor agrees that the Swap Liability is subordinated to the
prior, indefeasible payment in full of the Notes. In any event, any
and all other undisclosed indebtedness, claims, liabilities or
obligations of the Company to the Guarantor other than the Swap
Liability are subordinated to the prior, indefeasible payment in
full of the Notes. To the extent of the subordination provided for
herein, the Guarantor agrees that should it receive any payments
from the Company or a trustee in bankruptcy of the Company, it will
hold such payment in trust and immediately pay over such amounts to
the paying agent for the Notes;
(vi) the Guarantor shall not assert
any right of set-off in respect of the Deficiency Claim;
and
(vii) the Guarantor agrees and
covenants that it will not take any action or assert any position
inconsistent with this Section 6 and, if called upon by the
Holders, will confirm its agreement with the positions confirmed
herein in writing or at a court hearing as reasonably requested by
the Holders.
For purposes of this Agreement,
“ Swap Liability ” shall mean the obligations of
the Company to the Guarantor, under currency swap arrangements
between the Guarantor and the Company.
7. Non-Public Information .
The Holders hereby acknowledge that: (i) each of the Company
and the Guarantor may be, and each Holder is proceeding on the
assumption that the Company and the Guarantor are, in possession of
material, non-public information concerning themselves and their
respective direct and indirect subsidiaries (the “
Information ”) which is not or may not be known to the
Holders and that neither the Company nor the Guarantor has
disclosed to the Holders; (ii) each Holder is voluntarily
assuming all risks associated with the Transactions and expressly
warrants and represents that (x) neither the Company nor the
Guarantor has
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made, and except as expressly provided in this
Agreement, each Holder disclaims the existence of or its reliance
on, any representation by the Company or the Guarantor concerning
the Company, the Guarantor or the Notes and (y) except as
expressly provided in this Agreement, it is not relying on any
disclosure or non-disclosure made or not made, or the
completene
