Exhibit 10.1
EXECUTION COPY
SECOND POST-CLOSING MATTERS
LETTER
February 19, 2009
United States Department of the
Treasury
1500 Pennsylvania Avenue, NW
Washington, D.C. 20220
Attention: Chief Counsel Office of Financial
Stability
Facsimile (202) 927-9219
Re: Second Post-Closing Matters
Letter (this “Letter”) to the Loan and Security
Agreement:
Reference is made to the Loan and
Security Agreement, dated as of December 31, 2008, by and
among General Motors Corporation, as borrower (the “
Borrower ”), certain Subsidiaries of the Borrower and
the United States Department of the Treasury as lender (the “
Lender ”), 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 (the “ Post-Closing Letter
Agreement ”), (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 and (iv) that certain Waiver,
between the Borrower and the Lender, dated as of February 17,
2009 (as may further be amended, supplemented or otherwise
modified, the “ Loan Agreement ”). Capitalized
terms used but not otherwise defined herein shall have the meaning
given them in the Loan Agreement.
1.
MODIFICATIONS
The Borrower and the Lender hereby
agree:
1.1 Effective as of
February 17, to amend Section 7 of the Loan Agreement by
deleting Section 7.21 thereof in its entirety and substituting
the following therefor:
7.21 [RESERVED].
1.2 Effective as of the Effective
Date, to amend Section 8.07 of the Loan Agreement by deleting
the words “Senior Loans” therein and substituting the
words “Senior Lien Loans” therefor.
1.3 Effective as of
February 18, 2009, to postpone the requirements of Section II
3. of the Post-Closing Letter Agreement with respect to each
property listed on Schedule A hereto (the “
Designated Real Property ”) to not later than
March 1, 2009; provided in each case that required consents to
the applicable mortgage have been obtained by Borrower, as
indicated on Schedule A.
1.4 Effective as of
February 18, 2009, to release each property listed on Schedule
B hereto from the requirements of Section II 3. of the Post-Closing
Letter Agreement and to delete each such property from Schedule
5(b) of the Post-Closing Letter Agreement.
1.5 Effective as of
February 18, 2009, to subject each property listed on Schedule
C hereto to the requirements of Section II 3. of the Post-Closing
Letter Agreement; provided that the date for satisfaction of such
requirements with respect to each such property shall be by
March 27, 2009.
1.6 Effective as of the Effective
Date, to include in the definition of Excluded Collateral each
property listed on Schedule B hereto, including all Property
or other assets (other than inventory) located at such
property.
1.7 Effective as of
February 18, 2009, to postpone the requirements of Section II
3. of the Post-Closing Letter Agreement with respect to the
property known as One General Motors Circle Building, located in
Onondaga County, Michigan, to not later than March 16,
2009.
1.8 Effective as of
February 18, 2009, to release the property known as Delphi
Site Vacant Land, located in Genessee County, Michigan, from the
requirements of Section II 3. of the Post-Closing Letter Agreement
and to remove such property from Schedule 5(b) of the Post-Closing
Letter Agreement; provided that the Borrower shall satisfy or cause
to be satisfied all of the requirements of Section II 3. with
respect to such property within five (5) Business Days after
receipt of a written request from the Lender do so.
2. LIMITATION OF
MODIFICATIONS
2.1 This Letter is limited precisely
as written and shall not be deemed to be a consent to a waiver,
amendment or modification of any other term or condition of the
Loan Agreement, the other Loan Documents, or any of the documents
referred to therein or executed in connection therewith except as
provided in Section 1 hereof and this Letter shall not be
considered a novation.
2.2 This Letter shall not prejudice
any right or rights the Lender may now have or may have in the
future under or in connection with the Loan Agreement, the other
Loan Documents or any documents referred to therein or executed in
connection therewith.
2.3 This Letter shall be deemed to
be a Loan Document for all purposes of the Loan
Agreement.
3. REPRESENTATIONS AND
WARRANTIES
After giving effect to this Letter,
the representations and warranties of the Borrower set forth in the
Loan Agreement are true and correct in all material respects, and
no Default or Event of Default has occurred and is continuing on
and as of the date of this Letter.
4. FEES AND
EXPENSES
The Borrower agrees to pay or
reimburse the Lender for all reasonable fees and out of pocket
expenses incurred by the Lender in connection with the
documentation of this Letter (including all reasonable fees and out
of pocket costs and expenses of the Lender’s legal counsel
incurred in connection with this Letter), in accorda
