Exhibit 10.4
EXECUTION VERSION
AMENDMENT NUMBER
FOUR
to
LOAN AND SECURITY
AGREEMENT
dated as of December 31,
2008
between
GENERAL MOTORS
CORPORATION
and
THE UNITED STATES DEPARTMENT OF
THE TREASURY
This AMENDMENT NUMBER FOUR (this
“ Amendment Number Four ”) to the Loan and
Security Agreement referenced below is entered into as of
May 27, 2009, between GENERAL MOTORS CORPORATION, a Delaware
corporation (the “ Borrower ”), and THE UNITED
STATES DEPARTMENT OF THE TREASURY (the “ Lender
”).
R E C I T A L S:
WHEREAS, the parties hereto have
entered into that certain Loan and Security Agreement dated as of
December 31, 2008, as supplemented by Appendix A dated as of
December 31, 2008 (“ Appendix A ”), and as
amended and modified by (i) that certain Post-Closing Letter
Agreement, by and among the Borrower, certain Subsidiaries of the
Borrower and the Lender, dated as of December 31, 2008,
(ii) that certain Notice of Borrowing and Post-Closing Matters
Letter, from the Borrower to the Lender, dated as of
January 21, 2009, (iii) that certain Consent and Waiver
Number One, between the Borrower and the Lender, dated as of
January 29, 2009, (iv) that certain Waiver, between the
Borrower and the Lender, dated as of February 17, 2009,
(v) that certain Second Post-Closing Matters Letter, between
the Borrower and the Lender, dated as of February 19, 2009,
(vi) that certain Third Post-Closing Matters Letter, between
the Borrower and the Lender, dated as of March 13, 2009,
(vii) that certain Omnibus Joinder Number One, by and among
the Borrower, certain Subsidiaries of the Borrower and the Lender,
dated as of March 13, 2009, (viii) that certain Fourth
Post-Closing Matters Letter, between the Borrower and the Lender,
dated as of March 27, 2009, (ix) that certain Consent and
Waiver Number Two, by and among the Borrower, Saturn Corporation
and the Lender, dated as of March 30, 2009, (x) that
certain Amendment to the Loan and Security Agreement, between the
Borrower and the Lender, dated as of March 31, 2009,
(xi) that certain Amendment Number Two to the Loan and
Security Agreement, between the Borrower and the Lender, dated as
of April 22, 2009, (xii) that certain Consent and Waiver
Number Three, by and among the Borrower and the Lender, dated as of
April 29, 2009, (xiii) that certain Fifth Post-Closing
Matters Letter, between the Borrower and the Lender, dated as of
April 30, 2009, (xiv) that certain Consent under Loan and
Security Agreement, between the Borrower and the Lender, dated as
of May 15, 2009 and (xv) that certain Third Amendment to
the Loan and Security Agreement, between the Borrower and the
Lender, dated as of May 20, 2009 (including as amended hereby,
collectively, the “ Loan Agreement ”).
Capitalized terms used but not defined herein have the meanings
assigned to them in the Loan Agreement or the Administration
Agreement, as applicable; and
WHEREAS, the Borrower and the Lender
desire to amend certain terms and provisions of the Loan Agreement,
including to provide an extension of credit to the Borrower under
the Loan Agreement, the proceeds of which are to be used solely to
capitalize GM Warranty LLC, as provided herein;
NOW, THEREFORE, in consideration of
the mutual covenants and undertakings herein contained, and for
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto, intending to
be legally bound, hereby agree as follows:
1.
AMENDMENTS
1.1. The following definitions are
hereby added to Section 1.01 of Appendix A in their respective
appropriate alphabetical order:
“ Administration
Agreement ” shall mean the Administration Agreement,
dated as of May 27, 2009, by and among GM Warranty , the
Borrower, General Motors Product Services, Inc., a Delaware
corporation, General Motors Overseas Distribution Corporation, a
Delaware corporation, Saturn, LLC, a Delaware limited liability
company, Controladora General Motors, S.A. de C.V., a Mexican
corporation, and GM Global Technologies Operations, Inc., a
Delaware corporation, as the same shall be amended, restated,
supplemented or otherwise modified from time to time.
“ Business Failure
” shall have the meaning set forth in the Administration
Agreement.
“ General Advance
” shall mean each of the Advances other than the Warranty
Advance.
“ General Advance
Collateral ” shall mean all of the Facility Collateral
other than the Warranty Advance Collateral.
“ General Advance Maturity
Date ” shall mean the earliest of (i) the Expiration
Date, (ii) the date specified in Section 2.05(a), or
(iii) the occurrence of an Event of Default, at the option of
the Lender.
“ General Advance Notes
” shall have the meaning set forth in
Section 2.02(a).
“ General Advance
Obligations ” shall mean all Obligations other than the
Warranty Advance Obligations.
“ GM Warranty ”
shall mean GM Warranty LLC, a Delaware limited liability company,
or any successor entity thereof.
“ GM Warranty Commitment
Program ” or “ Program ” shall have
the meaning set forth in the Administration Agreement.
“ Program Period
” shall have the meaning set forth in the Administration
Agreement.
“ Sixth Draw Date
” shall mean the date specified in the Notice of Borrowing
delivered to the Lender with respect to the Warranty
Advance.
“ Warranty Advance
” shall mean the Advance of $360,624,198 to be made on the
Sixth Draw Date for the purpose of capitalizing GM Warranty and
evidenced by the Warranty Advance Note.
“ Warranty Advance
Collateral ” shall mean (i) the Guaranty Collateral
(as defined in the Guaranty), a security interest in and with
respect to which is granted to the Lender by GM Warranty under the
Guaranty and (ii) the Equity Interests in GM Warranty pledged
to the Lender by the Borrower under the Equity Pledge
Agreement.
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“ Warranty Advance Maturity
Date ” shall mean 5:00 p.m. on the last day of the
thirty-sixth (36th) month following the expiration of the
Program Period (including any extensions thereof), or if such day
is not a Business Day, the immediately preceding Business
Day.
“ Warranty Advance Note
” shall have the meaning set forth in
Section 2.02(a).
“ Warranty Advance
Obligations ” shall mean (a) all of the
Borrower’s obligations to repay the Warranty Advance on the
Warranty Advance 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 Warranty Advance or in connection with the
Warranty Commitment Program 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 Warranty
Advance 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 Warranty Advance
Collateral, or of any exercise by the Lender of its rights under
the Loan Documents with respect to the Warranty Advance Collateral
or the Warranty Commitment Program 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 with
respect to the Warranty Advance.
“ Warranty Commitment
Program Documents ” shall mean the Administration
Agreement, the Warranty Program Funds Account Control Agreement,
the Warranty Advance Note, the Additional Note related to the
Warranty Advance and each other document entered into by the
Borrower, GM Warranty or the Lender in connection with the GM
Warranty Commitment Program, as the same shall be amended,
restated, supplemented or otherwise modified from time to
time.
“ Warranty Program Funds
Account ” shall mean the “Account” as defined
in the Administration Agreement.
“ Warranty Program Funds
Account Control Agreement ” shall mean the “Account
Control Agreement” as defined in the Administration
Agreement.
1.2. The definition of
“Additional Note” in Section 1.01 of the Loan
Agreement is hereby amended and restated in its entirety to read as
follows:
“ Additional Note
” shall mean any additional promissory notes issued to the
Lender pursuant to Sections 2.02(c), 2.02(d) or 2.02(e) hereof,
which notes shall be substantially in the form of Exhibit B
to the Warrant Agreement and subject to all terms and provisions of
the Warrant Agreement that are applicable to the Additional Note
(as defined therein), except as otherwise expressly set forth in
such additional promissory notes.
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1.3. The definition of
“Advance” in Section 1.01 of the Loan Agreement is
hereby amended and restated in its entirety to read as
follows:
“ Advance ” or
“ Advances ” shall have the meaning specified in
Section 2.01(a), and shall include each General Advance and
the Warranty Advance, unless the context otherwise requires, and
each such Advance shall be treated as an Advance in all respects
under this Agreement except as expressly noted herein.
1.4. The definition of
“Facility Collateral” in Section 1.01 of Appendix
A is hereby amended and restated in its entirety to read as
follows:
“ Facility Collateral
” shall mean (A) with respect to the Warranty Advance
Obligations, the Warranty Advance Collateral and (B) with
respect to all General Advance Obligations 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 but excluding the
Warranty Advance Collateral), 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 each reference to “Facility
Collateral” in the Loan Documents shall mean both
(A) and (B) unless otherwise provided in any such Loan
Document or the context requires otherwise; and further provided
that Facility Collateral shall exclude any Property constituting
Excluded Collateral.
1.5. The definition of
“Funding Date” in Section 1.01 of Appendix A is
hereby amended and restated in its entirety to read as
follows:
“ Funding Date ”
shall mean the date on which the Lender funds an Advance in
accordance with the terms hereof, which shall be any or all of the
following, as the context may require, (i) the Effective Date,
(ii) the Second Draw Date, (iii) the Third Draw Date,
(iv) the Fourth Draw Date, (v) the Fifth Draw Date and
(vi) the Sixth Draw Date.
1.6. The definition of
“Interest Period” in Section 1.01 of the Loan
Agreement is hereby amended by inserting “the
applicable” immediately prior to “Maturity
Date”.
1.7. The definition of “Loan
Documents” in Section 1.01 of Appendix A is hereby
amended and restated in its entirety to read as follows:
“ Loan Documents
” shall mean this Loan Agreement, the Note, the Warrant Note,
each Additional 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, the Environmental Indemnity, the Warranty
Commitment Program Documents, each post-closing matters letter
related hereto, each joinder to any Loan Document and all
amendments, modifications, supplements, consents and waivers to any
of the foregoing.
1.8. The definition of
“Maturity Date” in Section 1.01 of the Loan
Agreement is hereby amended and restated in its entirety to read as
follows:
“ Maturity Date ”
shall mean the General Advance Maturity Date and/or the Warranty
Advance Maturity Date, as the context may require.
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1.9. The definition of
“Maximum Loan Amount” in Section 1.01 of Appendix
A is hereby amended and restated in its entirety to read as
follows:
“ Maximum Loan Amount
” shall mean $19,760,624,198.
1.10. The definition of
“Note” in Section 1.01 of Appendix A is hereby
amended and restated in its entirety to read as follows:
“ Note ” or
“ Notes ” shall mean any or each of the
promissory notes provided for in Section 2.02(a) as the
context may require 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.
1.11. The definition of
“Obligations” in Section 1.01 of the Loan
Agreement is hereby amended by amending and restating clause
(a) thereof in its entirety to read as follows:
(a) all of the Borrower’s
obligations to repay the Advances on the applicable 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;
1.12. The definition of
“Permitted Investments” in Section 1.01 of
Appendix A is hereby amended by (a) deleting the word
“and” at the end of clause (xxii) thereof,
(b) deleting the period at the end of clause
(xxiii) thereof and replacing it with “; and”, and
(c) adding the following new clause (xxiv) at the end
thereof:
(xxiv) Investments in GM Warranty as
required by the Lender pursuant to the GM Warranty Commitment
Program.
1.13. The definition of
“Spread Amount” in Section 1.01 of Appendix A to
the Loan Agreement is hereby amended and restated in its entirety
to read as follows:
“ Spread Amount ”
shall mean (a) with respect to the Warranty Advance, 3.50% and
(b) with respect to all General Advances, 3.00%.
1.14. Section 2.01(b) of
Appendix A is hereby amended by adding the following new clause
(vi) at the end thereof:
(vi) The Warranty Advance shall be
made in its entirety on the Sixth Draw Date in an amount equal to
$360,624,198.
1.15. Section 2.02(a) of the
Loan Agreement is hereby amended and restated in its entirety to
read as follows:
(a) The Advances made by the Lender
shall be evidenced by (x) a duly completed secured promissory
note of the Borrower, substantially in the form of
Exhibit A , dated December 31, 2008 and payable to
the Lender in the original principal amount equal to
$13,400,000,000 (the “ Initial Note ”),
(y) (i) a duly completed secured promissory note of the
Borrower, substantially in the form of Exhibit A , dated
April 22, 2009, payable to the Lender in a principal amount
equal to $2,000,000,000 and (ii) a duly completed secured
promissory note of the Borrower, substantially in the form of
Exhibit A , dated
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May 20, 2009, payable to the
Lender in a principal amount equal to $4,000,000,000, and
(z) a duly completed secured promissory note of the Borrower,
substantially in the form of Exhibit A-1 , dated
May 27, 2009, payable to the Lender in a principal amount
equal to $360,624,198, which in the case of clause (y) shall
evidence the principal amount of the Working Capital Advances (each
such note, a “ Working Capital Note ”), in the
case of clause (z) shall evidence the principal amount of the
Warranty Advance (the “ Warranty Advance Note ”
and, together with the Initial Note and the Working Capital Notes,
each a “ Note ” and, collectively, the “
Notes ”) and in the case of clauses (x) and
(y) shall evidence the aggregate principal amount of the
General Advances (the “ General Advance Notes
”). Each General Advance Note shall be payable pro rata and
pari passu with all other General Advance Notes issued hereunder. A
Note shall be deemed to include any promissory note delivered in
substitution or exchange therefor and any modifications or
supplements thereto.
1.16. Section 2.02 of the Loan
Agreement is hereby amended by adding the following new clause
(e) at the end thereof:
(e) As additional consideration to
the Lender for making the Warranty Advance, in accordance with the
terms of the Warrant Agreement, the Borrower shall, on the Sixth
Draw Date, deliver to the Lender a duly completed Additional Note
dated May 27, 2009 and payable to the Lender in a principal
amount equal to $24,053,634. The terms of the Additional Note
delivered pursuant to this Section 2.02(e) shall be governed
in all respects by the terms and provisions of Section 1.3 of
the Warrant Agreement.
1.17. Sections 2.05(a) and 2.05(b)
of the Loan Agreement are hereby amended and restated in their
entirety to read as follows:
(a)(i) On the General Advance
Maturity Date, the Borrower shall repay to the Lender the aggregate
principal amount of all General Advances then outstanding under
this Loan Agreement, together with all interest thereon, related
fees and out-of-pocket expenses of the Lender accruing under this
Loan Agreement with respect thereto and all other General Advance
Obligations; provided that , if a Termination Event
shall have occurred, all such amounts with respect to all General
Advances shall become due and payable on the thirtieth
(30th) day after the Certification Deadline without any
further action on the part of the Lender.
(ii) On the Warranty Advance
Maturity Date, the Borrower shall repay to the Lender the aggregate
principal amount of the Warranty Advance then outstanding under
this Loan Agreement, together with all interest thereon and fees
and out-of-pocket expenses of the Lender accruing under this Loan
Agreement with respect thereto and all other Warranty Advance
Obligations.
(b) Each Advance shall bear interest
on the unpaid principal amount thereof at a rate per annum equal to
LIBOR plus the applicable Spread Amount, payable in arrears
(i) on each Interest Payment Date in respect of the previous
Interest Period, (ii) on the applicable Maturity Date, and
(iii) on the date of payment or prepayment of such 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.
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1.18. The first sentence of
Section 2.06(a) of the Loan Agreement is hereby amended and
restated in its entirety to read as follows:
(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;
provided ,
