Exhibit 10.1
EXECUTION COPY
AMENDMENT NUMBER
TWO
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 TWO (this
“ Amendment Number Two ”) to the Loan and
Security Agreement referenced below is entered into as of
April 22, 2009, between GENERAL MOTORS CORPORATION, a Delaware
corporation (the “ Borrower ”), and THE UNITED
STATES DEPARTMENT OF THE TREASURY (the “ Lender
”).
RECITALS:
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, and (x) that
certain Amendment to the Loan and Security Agreement, between the
Borrower and the Lender, dated as of March 31, 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:
“ Additional Note
” shall mean any additional promissory notes issued to the
Lender pursuant to Section 2.02(c) 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.
“ Auto Supplier Support
Program ” shall mean the Credit Agreement dated as of
April 3, 2009, between GM Supplier Receivables LLC and the
Lender, as amended, restated, supplemented or otherwise modified
from time to time.
“ EAWA ” shall
mean the Employ American Workers Act (Section 1611 of Division A,
Title XVI of the American Recovery and Reinvestment Act of 2009),
Public Law No. 111-5, effective as of February 17, 2009,
as may be amended and in effect from time to time.
“ Fourth Draw Date
” shall mean a Business Day prior to May 1, 2009 as
shall be provided in the Notice of Borrowing delivered to the
Lender with respect to the Working Capital Advance.
“ Use of Proceeds
Statement ” shall have the meaning set forth in
Section 2.03(c).
“ Working Capital
Advance ” shall mean a loan made by the Lender to the
Borrower under this Loan Agreement in an aggregate principal amount
of up to $2,000,000,000 for the purpose of providing the Borrower
with working capital.
“ Working Capital Note
” shall have the meaning set forth in
Section 2.02(a).
1.2. 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 the Working Capital
Advance, unless the context otherwise requires.
1.3. The definition of
“EESA” in Section 1.01 of the Loan Agreement is
hereby amended and restated in its entirety to read as
follows:
“ EESA ” shall
mean the Emergency Economic Stabilization Act of 2008, Public Law
No: 110-343, effective as of October 3, 2008, as amended by
Section 7000 et al. of Division A, Title VII of the
American Recovery and Reinvestment Act of 2009, Public Law
No. 111-5, effective as of February 17, 2009, as may be
further amended and in effect from time to time.
1.4. 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 and
(iv) the Fourth Draw Date.
1.5. 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 include 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, and the Environmental
Indemnity.
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1.6. 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 $15,400,000,000.
1.7. The definition of
“Note” in Section 1.01 of the Loan Agreement is
hereby amended and restated in its entirety to read as
follows:
“ Note ” or
“ Notes ” shall have the meaning set forth in
Section 2.02(a).
1.8. Clause (xviii) of the
definition of “Permitted Indebtedness” in
Section 1.01 of Appendix A is hereby amended and restated in
its entirety to read as follows:
(xviii) the Warrant Note and any
Additional Notes; and
1.9. The definition of
“SEO” in Section 1.01 of the Loan Agreement is
hereby amended and restated in its entirety to read as
follows:
“ SEO ” shall
mean a Senior Executive Officer as defined in the EESA and any
interpretation of such term by the United States Department of the
Treasury thereunder, including the rules set forth in 31 C.F.R.
Part 30.
1.10. Section 2.01(b) of
Appendix A is hereby amended to add the following new clause
(iv) at the end thereof, to read as follows:
(iv) The Advance made on the Fourth
Draw Date shall be in an amount equal to $2,000,000,000.
1.11. 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 ”), and (y) a duly completed secured
promissory note of the Borrower, substantially in the form of
Exhibit A-1 , dated April 22, 2009, payable to the
Lender in a principal amount equal to $2,000,000,000, which in the
case of this clause (y) shall evidence the principal amount of
the Working Capital Advance (the “ Working Capital
Note ” and, together with the Initial Note, each a
“ Note ” and, collectively, the “
Notes ”). Each Note shall be payable pro rata and pari
passu with all other 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.
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1.12. Section 2.02 of the Loan
Agreement is hereby amended to add the following new clause
(c) at the end thereof, to read as follows:
(c) As additional consideration to
the Lender for making the Working Capital Advance, in accordance
with the terms of the Warrant Agreement, the Borrower shall, on the
Fourth Draw Date, deliver to the Lender a duly completed Additional
Note dated April 22, 2009 and payable to the Lender in a
principal amount equal to $133,400,000. The terms of the Additional
Note delivered pursuant to this Section 2.02(c) shall be
governed in all respects by the terms and provisions of
Section 1.3 of the Warrant Agreement.
1.13. Section 2.03 of the Loan
Agreement is hereby amended to add the following new clause
(c) at the end thereof, to read as follows:
(c) Any Notice of Borrowing
delivered in connection with the Working Capital Advance shall be
accompanied by an officer’s certificate signed by a
Responsible Person of the Borrower that sets forth in reasonable
detail the intended use of proceeds of the requested Advance (the
“ Use of Proceeds Statement ”). For the
avoidance of doubt, it shall be a condition precedent to the Lender
making the Working Capital Advance that the related Use of Proceeds
Statement be in form and substance acceptable to the Lender in its
sole discretion.
1.14. Section 2.09 of Appendix
A is hereby amended and restated in its entirety to read as
follows:
The Borrower shall utilize the
proceeds from the Advances (i) in the case of all Advances
other than the Working Capital Advance, for general corporate and
working capital purposes and (ii) in the case of the Working
Capital Advance, only in accordance with the Use of Proceeds
Statement delivered to the Lender with respect thereto; provided
that, for all Advances, the proceeds thereof shall not be used to
prepay Indebtedness without the prior written consent of the
Lender. The Advances made hereunder are not and shall not be
construed as an extension of United States Government Federal
funding associated with any specific project.
1.15. Section 7.02(l) of the
Loan Agreement is hereby amended by deleting the term “TARP
Compliance Office” in the second sentence thereof and
replacing such term with the term “Lender”.
1.16. Section 7.05 of the Loan
Agreement is hereby amended by inserting the following sentence at
the end thereof:
Promptly upon the Lender’s
request, the Borrower shall furnish to the Lender an
officer’s certificate signed by a Responsible Person of the
Borrower certifying that the Borrower has used the proceeds of the
Working Capital Advance in accordance with the Use of Proceeds
Statement provided to the Lender with respect thereto. At the
Lender’s request, the Borrower shall furnish to the Lender
documentation reasonably acceptable to the Lender supporting the
certifications in such officer’s certificate.
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1.17. Section 7.17(a)(i) of the
Loan Agreement is hereby amended and restated in its entirety to
read as follows:
(i) Each Relevant Company shall take
all necessary action to ensure that its Benefit Plans comply in all
respects with the EESA, including, without limitation, the
provisions for the Capital Purchase Program, as implemented by any
guidance or regulation thereunder, including the rules set forth in
31 CFR Part 30, or any other guidance or regulations under the
EESA, as the same shall be in effect from time to time
(collectively, the “ Compensation Regulations
”), and shall not adopt any new Benefit Plan (x) that
does not comply therewith or (y) that does not expressly state
and require that such Benefit Plan and any compensation thereunder
shall be subject to all relevant Compensation Regulations adopted,
issued or released on or after the date any such Benefit Plan is
adopted. To the extent that the Compensation Regulations change
during the period when any Obligations remain outstanding in a
manner that requires changes to then-existing Benefit Plans, the
Relevant Company shall effect such changes to its Benefit Plans as
promptly as practicable after it has actual knowledge of such
changes in order to be in compliance with this
Section 7.17(a)(i) (and shall be deemed to be in compliance
for a reasonable period within which to effect such
changes).
1.18. The Loan Agreement is hereby
amended by adding the following new Section 7.27,
Section 7.28 and Section 7.29 immediately following the
end of Section 7.26:
7.27 Employ American Workers
Act . The Borrower
shall comply, and the Borrower shall take all necessary action to
ensure that its Subsidiaries comply, in all respects with the
provisions of the EAWA.
7.28 Internal Controls;
Recordkeeping; Additional Reporting .
(a) The Borrower shall promptly
establish internal controls to provide reasonable assurance of
compliance in all material respects with each of the
Borrower’s covenants and agreements set forth in Sections
7.17, 7.18, 7.19, 7.27 and 7.28(b) hereof and shall collect,
maintain and preserve reasonable records evidencing such internal
controls and compliance therewith, a copy of which records shall be
provided to the Lender promptly upon request. On the fifteenth day
after the last day of each calendar quarter (or, if such day is not
a Business Day, on the first Business Day after such day)
commencing with June 30, 2009, the Borrower shall deliver to
the Lender (at its address set forth in Section 11.02 of the
Loan Agreement) a report setting forth in reasonable detail
(x) the status of implementing such internal controls and
(y) the Borrower’s compliance (including any instances
of material non-compliance) with such covenants and agreements;
provided that if the information to be provided pursuant to clause
(y) is duplicative of the information set forth in the
certifications delivered by the Borrower pursuant to Sections
7.02(k) and 7.02(l), the Borrower will be deemed to be in
compliance with this reporting requirement if such report
incorporates the duplicative information by reference. Such report
shall be accompanied by a certification duly executed by an SEO of
the Borrower stating that such quarterly report is accurate in all
material respects to the best of such SEO’s knowledge, which
certification shall be made subject to the requirements and
penalties set forth in Title 18, United States Code,
Section 1001.
(b) The Borrower shall use its
reasonable best efforts to account for the use of the proceeds from
the Working Capital Advance. On the fifteenth day after the last
day of each calendar quarter (or, if such day is not a Business
Day, on the first Business Day after such day) commencing with
June 30, 2009, the Borrower shall deliver to the Lender (at
its address set forth in Section 11.02 of the Loan Agreement)
a report setting forth in reasonable detail the actual use of the
proceeds from the
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Working Capital Advance (to the
extent not previously reported on to the Lender pursuant to
Section 7.05). Such report shall be accompanied by a
certification duly executed by an SEO of the Borrower that such
quarterly report is accurate in all material respects to the best
of such SEO’s knowledge, which certification shall be made
subject to the requirements and penalties set forth in Title 18,
United States Code, Section 1001.
(c) The Borrower shall collect,
maintain and preserve reasonable records relating to the
implementation of the Auto Supplier Support Program and all other
Federal support programs provided to the Borrower or any of its
Subsidiaries pursuant to EESA, the use of the proceeds thereunder
and the compliance with the terms and provisions of such programs;
provided that the Borrower shall have no obligation to comply with
the foregoing in connection with any such program to the extent
that such program independently requires, by its express terms, the
Borrower to collect, maintain and preserve any records in
connection therewith. The Borrower shall provide the Lender with
copy of all such reasonable records promptly upon
request.
7.29 Waivers
.
(a) For any Person who is not a Loan
Party as of the Fourth Draw Date, but subsequently becomes a Loan
Party, the Borrower shall cause a waiver, in substantially the form
attached hereto as Exhibit H-1 , to be duly executed by such
Loan Party and promptly delivered to the Lender.
(b) For any Person who is not an SEO
as of the Fourth Draw Date, but subsequently becomes an SEO, the
Borrower shall cause a waiver, in substantially the form attached
hereto as Exhibit H-2 , to be duly executed by such SEO, and
promptly delivered to the Lender.
(c) For any Person who is not an SEO
as of the Fourth Draw Date, but subsequently becomes an SEO, the
Borrower shall cause a consent and waiver, in substantially the
form attached hereto as Exhibit H-3 , to be duly executed by
such SEO, and promptly delivered to the Borrower (with a copy to
the Lender).
(d) For any Person who is not a
Senior Employee as of the Fourth Draw Date, but subsequently
becomes an Senior Employee, the Borrower shall cause a waiver, in
substantially the form attached hereto as Exhibit H-4 to
this Loan Agreement, to be duly executed by such Senior Employee,
and promptly delive
