Exhibit 10.3
EXECUTION VERSION
AMENDMENT NUMBER
THREE
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 THREE (this
“ Amendment Number Three ”) to the Loan and
Security Agreement referenced below is entered into as of
May 20, 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, (xi) that certain Consent and Waiver
Number Three, by and among the Borrower and the Lender, dated as of
April 29, 2009, (xii) that certain Fifth Post-Closing
Matters Letter, between the Borrower and the Lender, dated as of
April 30, 2009 and (xiii) that certain Consent under Loan
and Security Agreement, between the Borrower and the Lender, dated
as of May 15, 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; and
WHEREAS, the Borrower and the Lender
desire to amend certain terms and provisions of the Loan Agreement,
including to provide an additional Advance to the Borrower for
working capital purposes, 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:
“ Fifth Draw Date
” shall mean the date specified in the Notice of Borrowing
delivered to the Lender with respect to the Working Capital Advance
made on such date.
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) or 2.02(d) 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.
1.3. 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 and (v) the Fifth Draw
Date.
1.4. 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 $19,400,000,000.
1.5. The definition of
“Working Capital Advance” in Section 1.01 of
Appendix A is hereby amended and restated in its entirety to read
as follows:
“ Working Capital
Advance ” shall mean each of (i) that certain loan
made by the Lender to the Borrower on April 24, 2009 in an
aggregate principal amount of $2,000,000,000 and (ii) that
certain loan to be made by the Lender to the Borrower on the Fifth
Draw Date in an aggregate principal amount of $4,000,000,000;
provided that, in each case, such loan is made under this Loan
Agreement and for the purpose of providing the Borrower with
working capital. Each reference to “Working Capital
Advance” in the Loan Documents shall be deemed to refer to
both clauses (i) and (ii) above or either clause
(i) or (ii) above, as the context may require.
1.6. Section 2.01(b)
of
