This
EQUITY PLEDGE AGREEMENT, dated as of December 31, 2008 (as
amended, modified or supplemented from time to time, this “
Agreement ”), made by the undersigned, each of which
is further identified on Annex A hereto (each, a “
Pledgor ” and together with their respective
successors and assigns, collectively, the “ Pledgors
”), in favor of the United States Department of the Treasury
in its capacity as the lender under the Loan Agreement referred to
below (the “ Pledgee ”). Except as otherwise
defined herein, terms used herein and defined in the Loan Agreement
referred to below shall be used herein as therein
defined.
WHEREAS,
General Motors Corporation (the “ Borrower ”)
and the Pledgee are parties to that certain Loan and Security
Agreement, dated as of the date hereof (as amended, modified or
supplemented from time to time, the “ Loan Agreement
”), providing for the making of Advances as contemplated
therein;
WHEREAS,
each of the Pledgors will derive a substantial direct and/or
indirect benefit from the Pledgee’s making Advances to the
Borrower pursuant to the Loan Agreement. To induce the Pledgee to
enter into the Loan Agreement and make such Advances, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, each Pledgor has agreed to pledge
and grant a security interest in the Collateral (as defined herein)
in which such Pledgor has rights, title and interests in and to, as
security for such Advances;
WHEREAS,
it is a condition precedent to the obligation of the Lender to make
Advances to the Borrower under the Loan Agreement that each Pledgor
shall have executed and delivered this Agreement to the Lender;
and
WHEREAS,
each Pledgor desires to execute this Agreement to satisfy the
conditions described in the preceding paragraph;
NOW,
THEREFORE, in consideration of the benefits accruing to each
Pledgor, the receipt and sufficiency of which are hereby
acknowledged, each Pledgor hereby makes the following
representations and warranties to the Pledgee and hereby covenants
and agrees with the Pledgee as follows:
1. DEFINITIONS . All capitalized terms used but not
defined herein shall have the respective meanings set forth in the
Loan Agreement, including Appendix A thereto.
(a) As
used herein, the term “ Equity Interests ” shall
mean all of the equity interests in an issuing entity (“
Issuing Entity ”), acquired by, issued to or held by
the relevant Pledgor as set forth on Annex A under the heading
“Percentage Pledged”. Each Pledgor represents and
warrants that on the date hereof, the Equity Interests held by such
Pledgor (i) consists of the number and type of Equity
Interests of the related Issuing Entities as described in Annex A
hereto and (ii) all options, warrants, calls or commitments of
any character whatsoever relating to Equity Interests of such
Issuing Entities, in each case listed in Annex A hereto. Each
Pledgor represents and warrants on the date hereof: (x) such
Equity Interests constitute that percentage of the issued and
outstanding Equity Interests of the related Issuing Entities as set
forth in Annex A hereto, and (y) such Pledgor is the owner of
such Equity Interests so held by it and there exist no options or
preemption rights in respect of any of such Equity
Interests.
(b) All
Equity Interests at any time pledged or required (and permitted) to
be pledged hereunder are hereinafter called the “Pledged
Equity Interests,” which together with: (i) all Chattel
Paper, Documents, Instruments and General Intangibles attributable
solely to the Pledged Equity Interests; (ii) all rights of any
Pledgor to receive moneys (including dividends) due but unpaid or
to become due with respect to the Pledged Equity Interests and all
property received in substitution or exchange therefor;
(iii) all of Pledgors’ rights and privileges with
respect to the Pledged Equity Interests; (iv) all rights of
Pledgors to property of the related Issuing Entities; (v) all
Proceeds with respect to the foregoing clauses (i) through
(iv); and (vi) to the extent not included in the foregoing,
all proceeds, products, offspring, rents, revenues, issues,
profits, royalties, income, benefits, accessions, additions,
substitutions and replacements of and to any and all of the
foregoing, are hereinafter called the “Collateral”;
provided that, notwithstanding anything to the contrary contained
herein or in any other Loan Document, the term Collateral and each
other term used in the definition thereof shall not include, and
the Pledgee shall not have a pledge or any other Lien pursuant to
this Agreement on, any of the Excluded Collateral of any
Pledgor.
1.2.
Obligations . As used herein, the term “
Obligations ” shall mean the obligations and
liabilities of the Borrower and each Pledgor to the Lender, whether
direct or indirect, absolute or contingent, due or to become due,
or now existing or hereafter incurred, which may arise under, or
out of or in connection with the Loan Agreement, any other Loan
Documents and any other document made, delivered or given in
connection therewith or herewith, whether on account of covenants,
reimbursement obligations, fees, indemnities, costs, expenses
(including, without limitation, all reasonable fees and
disbursements of counsel to Lender that are required to be paid by
Borrower pursuant to the terms of the Loan Agreement) or
otherwise.
1.3.
Chattel Paper, Documents, Instruments, General Intangibles and
Proceeds . The terms “Chattel Paper,”
“Documents,” “Instruments,” “General
Intangibles,” and “Proceeds” have the meanings
specified in the Uniform Commercial Code.
2. PLEDGE OF EQUITY INTERESTS .
2.1.
Pledge . As collateral security for the prompt satisfaction
and performance of the Obligations, each Pledgor hereby:
(i) pledges, collaterally assigns and hypothecates to Pledgee
and hereby grants to the Pledgee for the benefit of the Pledgee and
its assigns a first priority security interest in all of the
Collateral now or from time to time owned by such Pledgor; (ii)
pledges and deposits as security with the Pledgee the Pledged
Equity Interests of the related Issuing Entities owned by such
Pledgor on the date hereof and delivers to the Pledgee, any
certificates therefor or instruments thereof, accompanied by such
other instruments of transfer as are reasonably acceptable to the
Pledgee; and (iii) collaterally assigns, transfers,
hypothecates, mortgages, charges and sets over to the Pledgee all
of such Pledgor’s right, title and interest in and to the
Pledged Equity Interests of the related Issuing Entities (and in
and to the certificates or instruments evidencing such Pledged
Equity Interests of the related Issuing Entities) to be held by the
Pledgee, upon the terms and conditions set forth in this
Agreement.
2.2.
Subsequently Acquired Equity Interests . If, at any time or
from time to time after the date hereof, a Pledgor acquires (by
purchase, stock dividend or otherwise) any additional Equity
Interests (other than any such Equity Interests constituting
Excluded Collateral) of the related Issuing Entities or, if any
Equity Interests constituting Excluded Collateral ceases to be
Excluded Collateral, such Pledgor hereby automatically pledges and
shall forthwith deposit such Equity Interests of the related
Issuing Entities (including any certificates or instruments
representing such Equity Interests of the related Issuing Entities)
as security with the Pledgee and deliver to the Pledgee
certificates or instruments thereof, accompanied by such other
instruments of transfer as are reasonably acceptable to the
Pledgee, and will promptly thereafter deliver to the Pledgee a
certificate executed by a Responsible Person of such
Pledgor
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describing such
Equity Interests and certifying that the same have been duly
pledged to the Pledgee hereunder as Collateral.
2.3.
Delivery of Share Certificates and Powers of Attorney .
Except as may otherwise be set forth in the Post Closing Letter,
simultaneously with the delivery of this Agreement, each Pledgor is
delivering to the Pledgee, all certificated securities (including,
without limitation, stock certificates) representing the Pledged
Equity Interests, together with related stock powers duly executed
in blank by the relevant Pledgor authorizing Pledgee to transfer
ownership of such Pledged Equity Interests to a third party in
accordance with the terms of this Agreement. Each Pledgor shall
promptly deliver to the Pledgee, or cause the Borrower or any
Issuing Entity to deliver directly to the Pledgee, (i) share
certificates or other instruments representing any Pledged Equity
Interests acquired or received by such Pledgor after the date of
this Agreement and (ii) related stock powers duly executed in
blank by such Pledgor authorizing Pledgee to transfer ownership of
any Pledged Equity Interests acquired or received by such Pledgor
after the date of this Agreement to a third party in accordance
with the terms of this Agreement.
2.4.
Uncertificated Securities . Other than as may be set forth
in the Post Closing Letter, notwithstanding anything to the
contrary contained in Sections 2.1 and 2.2, if any Pledged
Equity Interests are uncertificated securities, the respective
Pledgor hereby notifies the Pledgee thereof in Annex A hereof, and
hereby represents that it has taken all actions required to perfect
the security interest of the Pledgee in such uncertificated Pledged
Equity Interests under applicable law. Each Pledgor further agrees
to take such actions as the Pledgee deems reasonably necessary to
effect the foregoing and to permit the Pledgee to exercise any of
its rights and remedies hereunder and under applicable
law.
3. APPOINTMENT OF SUB-AGENTS; ENDORSEMENTS, ETC . The
Pledgee shall have the right to appoint one or more sub-agents for
the purpose of retaining physical possession of any certificated
Pledged Equity Interests, which may be held (in the discretion of
the Pledgee) in the name of the relevant Pledgor, endorsed or
assigned in blank or, if an Event of Default shall have occurred
and be continuing, in the name of the Pledgee or any nominee or
nominees of the Pledgee or a sub-agent appointed by the Pledgee;
provided that the Pledgee shall remain primarily liable for any and
all actions and inactions of any such sub-agent or nominee of the
Pledgee.
4. VOTING, ETC. WHILE NO EVENT OF DEFAULT . Unless
and until an Event of Default shall have occurred and be
continuing, each Pledgor shall be entitled to exercise all voting
rights attaching to any and all Pledged Equity Interests owned by
it, and to give consents, waivers or ratifications in respect
thereof, provided that no vote shall be cast or any consent, waiver
or ratification given or any action taken which would violate,
result in a breach of any covenant contained in, or be materially
inconsistent with, any of the terms of this Agreement, the Loan
Agreement or any other Loan Document or which would have the effect
of materially impairing the value of the Collateral or any part
thereof or the position or interests of the Pledgee therein. All
such rights of a Pledgor to vote and to give consents, waivers and
ratifications shall cease in case an Event of Default shall occur
and be continuing and Section 9 hereof shall become
applicable; provided that, the Pledgee shall have the right
from time to time during the continuance of an Event of Default to
permit such Pledgor to exercise such rights. After all Event of
Defaults have been cured or waived, the Pledgors will have the
right to exercise the voting and consensual rights and powers that
it would otherwise be entitled to exercise pursuant to the terms of
this Section 4.
5. DIVIDENDS AND OTHER DISTRIBUTIONS . Unless and
until an Event of Default shall have occurred and be continuing,
all cash dividends, interest and principal or other amounts payable
in respect of the Pledged Equity Interests shall be paid to the
Pledgors in accordance with the related certificate of
incorporation, by-laws, certificate of formation, or operating
agreement (or
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equivalent
thereof), as the case may be. On and after the date on which an
Event of Default shall have occurred and be continuing, all such
amounts shall be paid to and shall be the collateral of the Pledgee
under the Loan Documents. All dividends, distributions or other
payments which are received by a Pledgor contrary to the provisions
of this Section 5 or Section 9 shall be received in trust
for the benefit of the Pledgee, shall be segregated from other
property or funds of such Pledgor and shall be forthwith paid over
to the Pledgee as collateral for the obligations of the Pledgor
under the Loan Documents in the same form as so received (with any
necessary endorsement).
6. REPRESENTATION AND WARRANTIES OF THE PLEDGOR
.
6.1.
Representations and Warranties .
(a) Each
Pledgor represents, warrants and covenants that:
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(i)
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it
is the sole owner of the Pledged Equity Interests pledged by it
hereunder, free and clear of all claims, mortgages, pledges, Liens,
security interests and other encumbrances of any nature whatsoever
(and no right or option to acquire the same exists in favor of any
other person or entity), except for the assignment, pledge and
security interest in favor of the Pledgee created or provided for
herein or under any other Loan Document and Permitted Liens, and
(except to the Pledgee hereunder) such Pledgor agrees that, except
as permitted by the Loan Agreement, it will not encumber or grant
any security interest in or with respect to the Pledged Equity
Interest or permit any of the foregoing;
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(ii)
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no
options, warrants or other agreements with respect to the
Collateral owned by such Pledgor are outstanding;
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(iii)
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except for Excluded Collateral, the
Pledged Equity Interests pledged by such Pledgor hereunder,
represent all of the shares of capital stock and equity interests
of the Issuing Entities owned by such Pledgor;
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(iv)
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to
the knowledge of such Pledgor, all of the Pledged Equity Interests
owned by it have been duly and validly issued, are fully paid and
non-assessable; and
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(v)
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the
pledge and collateral assignment to the Pledgee of the Pledged
Equity Interests by such Pledgor pursuant to this Agreement,
together with the delivery in the State of New York by such Pledgor
to the Pledgee of all certificated Pledged Equity Interests
together with related stock powers with respect thereto in blank,
and the filing of Uniform Commercial Code financing statements in
the applicable filing jurisdiction set forth on Annex A, will
create a valid and perfected first priority Lien in the Collateral,
and the proceeds thereof, subject to no other Lien or to any
agreement purporting to grant to any third party a Lien on the
property or assets of such Pledgor which would include the
Collateral other than a Permitted Lien allowable under the Loan
Agreement.
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7. FURTHER ASSURANCES; POWER-OF-ATTORNEY .
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7.1.
Each Pledgor agrees that it will cooperate with the Pledgee in
filing and refiling under the Uniform Commercial Code such
financing statements, continuation statements and other documents
in such filing offices in any Uniform Commercial Code jurisdiction
as may reasonably be necessary or advisable and wherever required
or advisable by law in order to perfect and preserve the
Pledgee’s first priority security interest in the Collateral
hereunder and hereby authorizes the Pledgee to file financing
statements and amendments thereto relative to all or any part of
the Collateral, and agrees to do such further acts and things and
to execute and deliver to the Pledgee such additional conveyances,
assignments, agreements and instruments as the Pledgee may
reasonably require or reasonably deem advisable to carry into
effect the purposes of this Agreement or to further assure and
confirm unto the Pledgee their rights, powers and remedies
hereunder or thereunder.
7.2.
Each Pledgor hereby constitutes and irrevocably appoints the
Pledgee as its true and lawful attorney-in-fact, with full
authority in the place and stead of such Pledgor and in the name of
such Pledgor
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