EX-10.2






EXHIBIT 10.2




GUARANTY AND SECURITY AGREEMENT




          THIS GUARANTY AND SECURITY AGREEMENT, dated as of December 31, 2008 (as amended, supplemented
and otherwise modified from time to time, this “Guaranty”), is made by the undersigned
(each, a “Guarantor”, and collectively, the “Guarantors”, each of which are set
forth on Exhibit A hereto) in favor of the United States Department of the Treasury (the
“Lender”).




RECITALS




          A. Pursuant to the Loan and Security Agreement, dated as of December 31, 2008 (as amended,
supplemented or otherwise modified from time to time, the “Loan Agreement”), among the
Lender and General Motors Corporation (the “Borrower”), the Lender has agreed to make
Advances to the Borrower upon the terms and subject to the conditions set forth therein.




          B. Each of the Guarantors will derive a substantial direct and/or indirect benefit from the
Lender’s making of Advances to the Borrower pursuant to the Loan Agreement. To induce the Lender
to make such Advances and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, each Guarantor has agreed to provide the guaranty set forth herein
in favor of the Lender.




          C. It is a condition precedent to the obligation of the Lender to make Advances to the
Borrower under the Loan Agreement that each Guarantor shall have executed and delivered this
Guaranty to the Lender.




          NOW, THEREFORE, for good and valuable consideration, receipt of which by the parties hereto is
hereby acknowledged, the parties hereto hereby agree as follows:




     1. Defined Terms.



          (a) Unless otherwise defined herein, terms defined in the Loan Agreement and used herein shall
have the meanings given to them in the Loan Agreement.




          “Expiration Date” shall have the meaning set forth in Section 2(c) herein.




          “Guarantor Event of Default” shall mean an Event of Default with respect to a
Guarantor.




          “Obligations” shall mean (a) all of the Borrower’s obligations to repay the Advances
on the Maturity Date, to pay interest on an Interest Payment Date and all other obligations and
liabilities of the Borrower to the Lender or to any other Person arising under, or in connection
with, the Loan 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 Facility 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 Facility Collateral, or of any exercise by the Lender of its
rights under the Loan 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.




 









 








          (b) The words “hereof”, “herein” and “hereunder” and words of similar import when used in this
Guaranty shall refer to this Guaranty as a whole and not to any particular provision of this
Guaranty, and section and paragraph references are to this Guaranty unless otherwise specified.




          (c) The meanings given to terms defined herein shall be equally applicable to both the
singular and plural forms of such terms.




     2. Guaranty.



          (a) Each Guarantor hereby unconditionally and irrevocably guarantees to the Lender and each of
its permitted indorsees, transferees and assigns the prompt and complete payment and performance by
Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the
Obligations.




          (b) Each Guarantor further agrees to pay any and all expenses (including, without limitation,
all reasonable fees and disbursements of counsel) which may be paid or incurred by the Lender in
enforcing any rights with respect to, or collecting, any or all of the Obligations and/or enforcing
any rights with respect to, or collecting against, the Guarantors under this Guaranty. This
Guaranty shall remain in full force and effect until the Obligations are paid in full,
notwithstanding that from time to time prior thereto there may not be any outstanding Obligations.




          (c) No payment or payments made by Borrower, a Guarantor, any other guarantor or any other
Person or received or collected by the Lender from Borrower, a Guarantor, any other guarantor or
any other Person by virtue of any action or proceeding or any set-off or appropriation or
application at any time or from time to time in reduction of or in payment of the Obligations shall
be deemed to modify, reduce, release or otherwise affect the liability of the Guarantors hereunder.
Each Guarantor shall remain liable for the Obligations until (i) the Obligations are satisfied and
paid in full and (ii) the date on which any payment made to the Lender in respect of the
Obligations shall no longer be subject to avoidance under the Bankruptcy Code (such date, the
“Expiration Date”), notwithstanding any payment or payments referred to in the foregoing
sentence other than payments made by Guarantors in respect of the Obligations or payments received
or collected from Guarantors in respect of the Obligations.




          (d) Each Guarantor agrees that whenever, at any time, or from time to time, it shall make any
payment on account of its liability hereunder, it will notify the Lender in writing that such
payment is made under this Guaranty for such purpose.




     3. Security Interest; Right of Set-off.



          (a) Guaranty Collateral. As security for the prompt and complete payment when due of
the Obligations and the performance by each Guarantor of all the covenants and obligations to be
performed by it pursuant to this Guaranty and the other Loan Documents, each Guarantor hereby
mortgages, pledges and grants to the Lender a Lien on and security interest in all of its rights,
title and interest in and to all personal property and real property wherever located and whether
now or hereafter existing and whether now owned or hereafter acquired, of every kind and
description, tangible or intangible, including without limitation, the following, whether now or
hereafter existing and wherever located:





     (i) all Intellectual Property as well as royalties therefrom;




     (ii) each Individual Property;



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     (iii) all cash and Cash Equivalents, and all other property from time to time
deposited in any account or deposit account and the monies and property in the
possession or under the control of Lender or any affiliate, representative, agent or
correspondent of Lender related to the foregoing;




     (iv) all other tangible and intangible personal property of such Guarantor
(whether or not subject to the Uniform Commercial Code), including, without
limitation, all bank and other accounts and all cash and all investments therein,
all rights to receive cash and investments, including without limitation, state,
Federal or local tax refunds, intercompany debt, all proceeds, products, offspring,
accessions, rents, profits, income, benefits, substitutions and replacements of and
to any of the property of such Guarantor described in the preceding clauses (i)
through (iii) of this Section 3(a) (including, without limitation, any proceeds of
insurance thereon and all causes of action, claims and warranties now or hereafter
held by such Guarantor in respect of any of the items listed above), and all books,
correspondence, files and other Records in the possession or under the control of
such Guarantor or any other Person from time to time acting for such Guarantor that
at any time evidence or contain information relating to any of the property
described in the preceding clauses (i) through (iii) of this Section 3(a) or are
otherwise necessary or helpful in the collection or realization thereof;




     (v) all rights, title and interest of such Guarantor (but not any of the
obligations, liabilities or indemnifications of such Guarantor) in, to and under the
Loan Documents;




     (vi) all “accounts,” “chattel paper,” “commercial tort claims,” “deposit
accounts,” “documents,” “equipment,” “general intangibles” (including without
limitation, uncertificated Equity Interests), “goods,” “instruments,” “inventory,”
“investment property,” “letter of credit rights,” and “securities’ accounts,” as
each of those terms is defined in the Uniform Commercial Code; and




     (vii) all products and proceeds relating to or constituting any or all of the
foregoing (clauses (i) through (vi) collectively, the “Guaranty
Collateral”);


in each case howsoever such Guarantor’s interest therein may arise or appear (whether by ownership,
security interest, claim or otherwise), provided that, notwithstanding anything to the contrary
contained herein or in any other Loan Document, the term “Guaranty Collateral” and each other term
used in the definition thereof shall not include, and no Guarantor is pledging or granting a
security interest in, any Property to the extent that such Property constitutes Excluded
Collateral; provided further, however, that if and when, and to the extent that, any Property
ceases to be Excluded Collateral, such Guarantor hereby grants to Lender, and at all times from and
after such date, the Lender shall have a first priority or junior priority, as applicable, Lien in
and on such Property (subject to Permitted Liens), and such Guarantor shall cooperate in all
respects to ensure the prompt perfection of the Lender’s security interest therein.




          The Liens granted to Lender hereinabove shall be first priority Liens on all of the Guaranty
Collateral (subject to Permitted Liens and to the extent legally and contractually permissible);
provided that, with respect to the Guaranty Collateral which is subject to a Senior Lien, as set
forth on Schedule 6.28 of the Loan Agreement, the Lien shall be of junior priority (to the extent
legally and contractually permissible).




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          The Obligations of each Guarantor under the Loan Documents constitute recourse obligations of
such Guarantor, and therefore, their satisfaction is not limited to payments from the Guaranty
Collateral.




          With respect to each right to payment or performance included in the Guaranty Collateral from
time to time, the Lien granted therein includes a continuing security interest in (i) any
supporting obligation that supports such payment or performance and (ii) any Lien that (A) secures
such right to payment or performance or (B) secures any such supporting obligation.




          (b) Right of Set-off. Each Guarantor hereby irrevocably authorizes the Lender at any
time and from time to time without notice to any Guarantor, any such notice being expressly waived
by Guarantors, to set-off and appropriate and apply any and all deposits (general or special, time
or demand, provisional or final), credits, indebtedness or claims, in any currency, in each case
whether direct or indirect, absolute or contingent, matured or unmatured, at any time held or owing
by Lender to or for the credit or the account of Guarantors, or any part thereof in such amounts as
Lender may elect, against and on account of the obligations and liabilities of Guarantors to Lender
hereunder and claims of every nature and description of Lender against Guarantors, in any currency,
whether arising hereunder, under the Loan Agreement, or under any other Loan Document, as Lender
may elect, whether or not Lender has made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. Lender may set-off cash, the proceeds of
the liquidation of any Guaranty Collateral and all other sums or obligations owed by Lender to
Borrower or Guarantors against all of each Guarantor’s obligations to Lender, whether under this
Guaranty or under any other agreement with any Guarantor, or otherwise, whether or not such
obligations are then due, without prejudice to the Lender’s right to recover any deficiency. The
rights of Lender under this Section are in addition to other rights and remedies (including without
limitation, other rights of set-off) which Lender may have. Upon the occurrence of any Guarantor
Event of Default with respect to any Guarantor, the Lender shall have the right to cause
liquidation, termination or acceleration to the extent of any assets pledged by such Guarantors to
secure their Obligations hereunder or under any other agreement to which this Section 3 applies.




          (c) UCC Matters, Further Assurances. Each Guarantor, shall, at all times on and after
the date hereof, and at its expense, cause Uniform Commercial Code financing statements and
continuation statements to be filed in all applicable jurisdictions as required to continue the
perfection of the security interests created by this Guaranty. Each Guarantor shall, from time to
time, at its expense and in such manner and form as the Lender may reasonably require, execute,
deliver, file and record any other statement, continuation statement, specific assignment or other
instrument or document and take any other action that may be necessary, or that the Lender, may
reasonably request, to create, evidence, preserve, perfect or validate the security interests
created hereunder or to enable the Lender to exercise and enforce its rights hereunder with respect
to any of the Guaranty Collateral. Each Guarantor agrees that, if the grant of a security interest
in any Property to Lender requires a consent to such grant from any other Person (other than such
Guarantor or any of its Affiliates), such Guarantor shall use its best efforts to procure such
consent, taking into consideration the likelihood that such consent will be given. Further, each
Guarantor agrees that if any Excluded Collateral should, at any time following the Effective Date,
become Guaranty Collateral on which the Lender is permitted to take a Lien, such Guarantor shall so
notify the Lender and cooperate with and shall take all steps as may be reasonably required by the
Lender to enable and continue the perfection of the Lender’s security interests therein. Without
limiting the generality of the foregoing, such Guarantor shall, upon the request of the Lender,
execute and file such Uniform Commercial Code financing or continuation statements, or amendments
thereto or assignments thereof, Mortgages and such other instruments or notices, as may be
necessary or appropriate or as the Lender may request with respect to the Guaranty Collateral.
Each Guarantor hereby authorizes the Lender to file one or more Uniform Commercial Code financing
or continuation statements, and amendments thereto and assignments thereof, relative to all or any
of the Guaranty Collateral now



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existing or hereafter arising without the signature of such Guarantor where permitted by law.
A carbon, photographic or other reproduction of this Guaranty or any financing statement covering
the Guaranty Collateral or any part thereof shall be sufficient as a financing statement.




          (d) Changes in Locations, Names, etc. If any Guarantor shall (i) change the location
of its chief executive office/chief place of business from that specified in Section 6.10 of the
Loan Agreement, (ii) change its name, identity or corporate structure (or the equivalent) or change
the location where it maintains records with respect to the Guaranty Collateral, or (iii)
reincorporate or reorganize under the laws of another jurisdiction, it shall give the Lender
written notice thereof not later than ten (10) days after such event occurs, and shall deliver to
the Lender all Uniform Commercial Code financing statements and amendments as the Lender shall
request and taken all other actions deemed reasonably necessary by the Lender to continue its
perfected status in the Guaranty Collateral with the same or better priority.




          (e) Lender’s Appointment as Attorney-in-Fact. Each Guarantor hereby irrevocably
constitutes and appoints the Lender and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of such Guarantor and in the name of such Guarantor or in its own name, from
time to time in the Lender’s discretion, for the purpose of carrying out the terms of this Guaranty
to take any and all appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Guaranty, which such Guarantor is
required to do hereunder but has failed to do so within the time limits required, including without
limitation, to protect, preserve and realize upon the Guaranty Collateral, to file such financing
statements relating to the Guaranty Collateral as the Lender at its option deems appropriate, and,
without limiting the generality of the foregoing, such Guarantor hereby gives the Lender the power
and right, on behalf of such Guarantor, without assent by, but with notice to, such Guarantor, if a
Guarantor Event of Default shall have occurred and be continuing, to do the following:





     (i) in the name of such Guarantor or its own name, or otherwise, to take
possession of and endorse and collect any checks, drafts, notes, acceptances or
other instruments for the payment of moneys due under any insurance policies or with
respect to any of the Guaranty Collateral and to file any claim or to take any other
action or proceeding in any court of law or equity or otherwise deemed appropriate
by the Lender for the purpose of collecting any and all such moneys due with respect
to any other Guaranty Collateral whenever payable;




     (ii) to pay or discharge taxes and Liens levied or placed on or threatened
against the Guaranty Collateral; and




     (iii) (A) to direct any party liable for any payment under any Guaranty
Collateral to make payment of any and all moneys due or to become due thereunder
directly to the Lender or as the Lender shall direct; (B) to ask or demand for,
collect, receive payment of and receipt for, any and all moneys, claims and other
amounts due or to become due at any time in respect of or arising out of any
Guaranty Collateral; (C) to sign and endorse any invoices, assignments,
verifications, notices and other documents in connection with any of the Guaranty
Collateral; (D) to commence and prosecute any suits, actions or proceedings at law
or in equity in any court of competent jurisdiction to collect the Guaranty
Collateral or any part thereof and to enforce any other right in respect of any
Guaranty Collateral; (E) to defend any suit, action or proceeding brought against
such Guarantor with respect to any Guaranty Collateral; (F) to settle, compromise or
adjust any suit, action or proceeding described in clause (E) above and, in
connection



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therewith, to give such discharges or releases as the Lender may deem
appropriate; and (G) in connection with its exercise of its remedies hereunder
pursuant to this Section 3, generally, to sell, transfer, pledge and make any
agreement with respect to or otherwise deal with any of the Guaranty Collateral as
fully and completely as though the Lender were the absolute owner thereof for all
purposes, and to do, at the Lender’s option and such Guarantor’s expense, at any
time, or from time to time, all acts and things which the Lender deems necessary to
protect, preserve or realize upon the Guaranty Collateral and the Lender’s Liens
thereon and to effect the intent of this Guaranty and the other Loan Documents, all
as fully and effectively as such Guarantor might do.


Each Guarantor hereby ratifies all that said attorneys shall lawfully do or cause to be done by
virtue hereof. This power of attorney is a power coupled with an interest and shall be irrevocable.




          Each Guarantor also authorizes the Lender, at any time and from time to time, to execute, in
connection with any sale of Guaranty Collateral provided for in this Section 3, any endorsements,
assignments or other instruments of conveyance or transfer with respect to the Guaranty Collateral.




          The powers conferred on the Lender are solely to protect the Lender’s interests in the
Guaranty Collateral and, except as required under Applicable Law, shall not impose any duty upon
the Lender to exercise any such powers. The Lender shall be accountable only for amounts that it
actually receives as a result of the exercise of such powers, and neither the Lender nor any of its
officers, directors, agents or employees shall be responsible to such Guarantor for any act or
failure to act hereunder, except for its own gross negligence or willful misconduct.




          (f) Proceeds. If a Guarantor Event of Default shall occur and be continuing, (a) all
proceeds of Guaranty Collateral received by such Guarantor consisting of cash, checks and Cash
Equivalents shall be held by such Guarantor in trust for the Lender, segregated from other funds of
such Guarantor, and shall forthwith upon receipt by such Guarantor be turned over to the Lender in
the exact form received by such Guarantor (duly endorsed by such Guarantor to the Lender, if
required), and (b) any and all such proceeds received by such Guarantor will be applied by the
Lender against, the Obligations (whether matured or unmatured), such application to be in such
order as the Lender shall elect. For purposes hereof, proceeds shall include, but not be limited
to, all principal and interest payments, royalty payments, license fees, all prepayments and
payoffs, all dividends and distributions, insurance claims, condemnation awards, sale proceeds,
rents and any other income and all other amounts received with respect to the Guaranty Collateral
and upon the liquidation of any Guaranty Collateral, all such proceeds received by the Lender will
be distributed by the Lender in such order as the Lender shall elect. Any balance of such proceeds
remaining after the Obligations shall have been paid in full and this Guaranty shall have been
terminated shall be promptly paid over to such Guarantor or to whomsoever may be lawfully entitled
to receive the same.




          (g) Remedies. If a Guarantor Event of Default shall occur and be continuing, the
Lender may exercise, in addition to all other rights and remedies granted to it in this Guaranty
and in any other instrument or agreement securing, evidencing or relating to the Obligations, all
rights and remedies of a secured party under the Uniform Commercial Code, at law and in equity.
Without limiting the generality of the foregoing, the Lender, without demand of performance or
other demand, presentment, protest, advertisement or notice of any kind (except any notice required
by law referred to below) to or upon such Guarantor or any other Person (all and each of which
demands, defenses, presentments, protests, advertisements and notices are hereby waived), may in
such circumstances forthwith collect, receive, appropriate and realize upon the Guaranty
Collateral, or any part thereof, and/or may forthwith sell, lease, assign, give option or options
to purchase, or otherwise dispose of and deliver the Guaranty Collateral or any part thereof (or
contract to do any of the foregoing), in one or more parcels or as an




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entirety at public or private sale or sales, at any exchange, broker’s board or office of the
Lender or elsewhere upon such terms and conditions and at prices that are consistent with the
prevailing market for similar collateral as it may deem advisable and at such prices as it may deem
best, for cash or on credit or for future delivery without assumption of any credit risk. The
Lender shall act in good faith to obtain the best execution possible under prevailing market
conditions. The Lender shall have the right upon any such public sale or sales, and, to the extent
permitted by law, upon any such private sale or sales, to purchase the whole or any part of the
Guaranty Collateral so sold, free of any right or equity of redemption in the related Guarantor,
which right or equity is hereby waived and released. Each Guarantor further agrees, at the Lender’s
request, to assemble the Guaranty Collateral and make it available to the Lender at places which
the Lender shall reasonably select, whether at the related Guarantor’s premises or elsewhere. The
Lender shall apply the net proceeds of any such collection, recovery, receipt, appropriation,
realization or sale, after deducting all reasonable costs and expenses of every kind incurred
therein or incidental to the care or safekeeping of any of the Guaranty Collateral or in any way
relating to the Guaranty Collateral or the rights of the Lender hereunder, including, without
limitation, reasonable attorneys’ fees and disbursements, to the payment in whole or in part of the
Obligations, in such order as the Lender may elect, and only after such application and after the
payment by the Lender of any other amount required or permitted by any provision of law, including,
without limitation, Section 9-504(1)(c) of the Uniform Commercial Code, need the Lender account for
the surplus, if any, to the related Guarantor. To the extent permitted by Applicable Law, each
Guarantor waives all claims, damages and demands it may acquire against the Lender arising out of
the exercise by the Lender of any of its rights hereunder. If any notice of a proposed sale or
other Disposition of Guaranty Collateral shall be required by law, such notice shall be deemed
reasonable and proper if given at least ten (10) days before such sale or other Disposition. Each
Guarantor shall remain liable for any deficiency (plus accrued interest thereon) if the proceeds of
any sale or other disposition of the Guaranty Collateral are insufficient to pay the Obligations
and the reasonable fees and disbursements incurred by the Lender, including reasonable fees and
expenses of any attorneys employed by the Lender to collect such deficiency. Because each
Guarantor recognizes that the Lender may not be able to purchase or sell all of the Guaranty
Collateral on a particular Business Day, or in a transaction with the same purchaser, or in the
same manner because the market for such Guaranty Collateral may not be liquid, each Guarantor
agrees that liquidation of the Guaranty Collateral does not require a public purchase or sale and
that a good faith private purchase or sale shall be deemed to have been made in a commercially
reasonable manner. Accordingly, the Lender may elect, in its sole discretion, the time and manner
of liquidating any Guaranty Collateral and nothing contained herein shall (i) obligate the Lender
to liquidate any Guaranty Collateral on the occurrence of a Guarantor Event of Default or to
liquidate all Guaranty Collateral in the same manner or on the same Business Day or (ii) constitute
a waiver of any of the Lender’s rights or remedies.




          (h) Continuing Liability of each Guarantor. The security interests described above
are granted as security only and shall not subject the Lender or any of its assigns to, or transfer
or in any way affect or modify, any obligation, liability or indemnity of each Guarantor with
respect to, any of the Guaranty Collateral or any transaction relating thereto. None of the Lender
or its assigns shall be required or obligated in any manner to make any inquiry as to the nature or
sufficiency of any payment received by it or the sufficiency of any performance by any party under
any such obligation, or to make any payment or present or file any claim, or to take any action to
collect or enforce any performance or the payment of any amount thereunder to which any such Person
may be entitled at any time.




          (i) Limitation on Duties Regarding Preservation of Guaranty Collateral. The Lender’s
duty with respect to the custody, safekeeping and physical preservation of the Guaranty Collateral
in its possession, under Section 9-207 of the Uniform Commercial Code or otherwise, shall be to
deal with it in the same manner as the Lender deals with similar property for its own account.
Neither the Lender nor any of its directors, officers or employees shall be liable for failure to
demand, collect or realize upon all or any part of the Guaranty Collateral or for any delay in
doing so or shall be under any



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obligation to sell or otherwise dispose of any Guaranty Collateral upon the request of the
related Guarantor or otherwise




          (j) Powers Coupled with an Interest. All authorizations and agencies herein contained
with respect to the Guaranty Collateral are irrevocable and powers coupled with an interest.




          (k) Release of Security Interest Upon Satisfaction of all Obligations. Upon
termination of this Guaranty and repayment to the Lender of all Obligations and the performance of
all obligations under the Loan Documents, the Lender shall release its security interest in any
remaining Guaranty Collateral; provided that if any payment, or any part thereof, of any of the
Obligations is rescinded or must otherwise be restored or returned by the Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the related Guarantor, or
upon or as a result of the appointment of a receiver, intervenor or conservator of, or a trustee or
similar officer for such Guarantor or any substantial part of its Property, or otherwise, this
Guaranty, all rights hereunder and the Liens created hereby shall continue to be effective, or be
reinstated, until such payments have been made.




          (l) Partial Release of Guaranty Collateral. Provided that no Event of Default shall
then exist, the Lender shall, in connection with any Disposition of Guaranty Collateral permitted
under the Loan Agreement (other than dispositions of Guaranty Collateral between and among
Guarantors and Pledged Entities), release from the Lien of the Loan Documents the portion of the
Guaranty Collateral Disposed of, upon the related Guarantor’s satisfaction of the conditions set
forth in the Loan Agreement. For the avoidance of doubt, the Lien of the Lender on Guaranty
Collateral shall not be released in connection with the Disposition of Guaranty Collateral between
and among Guarantors and Pledged Entities.




     4. No Subrogation. Notwithstanding any payment or payments made by any Guarantor
hereunder or any set-off or application of funds of any Guarantors by the Lender, no Guarantor
shall be entitled to be subrogated to any of the rights of the Lender against Borrower or any other
guarantor or any collateral security or guarantee or right of offset held by such Lender for the
payment of the Obligations or the obligations of any Guarantor, nor shall any Guarantor seek or be
entitled to seek any contribution or reimbursement from Borrower or any other Guarantor in respect
of payments made by such Guarantor hereunder, until all amounts owing to Lender by Borrower on
account of the Obligations are indefeasibly paid and satisfied in full. If any amount shall be
paid to any Guarantor on account of such subrogation rights at any time when all of the Obligations
shall not have been paid and satisfied in full, such amount shall be held by such Guarantor in
trust for Lender, segregated from other funds of such Guarantor, and shall, forthwith upon receipt
by such Guarantor, be turned over to the Lender in the exact form received by such Guarantor (duly
indorsed by such Guarantor to the Lender, if required), to be applied against the Obligations,
whether matured or unmatured, in such order as the Lender may determine.



     5. Amendments, Etc. with Respect to the Obligations. Each Guarantor shall remain
obligated hereunder notwithstanding that, without any reservation of rights against Guarantors and
without notice to or further assent by any Guarantor, any demand for payment of any of the
Obligations made by Lender may be rescinded and any of the Obligations continued, and the
Obligations, or the liability of any other party upon or for any part thereof, or any collateral
security or guarantee therefor or right of offset with respect thereto, may, from time to time, in
whole or in part, be renewed, extended, amended, modified, accelerated, compromised, terminated,
waived, surrendered or released by Lender, and the Loan Agreement and any other documents executed
and delivered in connection therewith may be amended, modified, supplemented or terminated, in
whole or in part, as Lender may deem advisable from time to time, and any collateral security,
guarantee or right of offset at any time held by Lender for the payment of the Obligations or the
obligations of any Guarantor may be sold, exchanged, waived, surrendered or released. Lender shall
not have any obligation to protect, secure, perfect or insure any lien



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at any time held by it as security for the Obligations or for this Guaranty or any property
subject thereto. When making any demand hereunder against any Guarantor, the Lender may, but shall
be under no obligation to, make a similar demand on the Borrower or any other Guarantor, and any
failure by the Lender to make any such demand or to collect any payments from Borrower or any such
other Guarantor or any release of Borrower or such other Guarantor shall not relieve any Guarantor
of its obligations or liabilities hereunder, and shall not impair or affect the rights and
remedies, express or implied, or as a matter of law, of the Lender against such Guarantor. For the
purposes hereof “demand” shall include the commencement and continuance of any legal proceedings.



     6. Waiver of Rights. Except as otherwise expressly provided herein, each Guarantor
waives any and all notice of any kind including, without limitation, notice of the creation,
renewal, extension or accrual of any of the Obligations, and notice of or proof of reliance by the
Lender upon this Guaranty or acceptance of this Guaranty. All of the Obligations shall
conclusively be deemed to have been created, contracted or incurred, or renewed, extended, amended
or waived in reliance upon this Guaranty and all dealings between Borrower and Guarantors, on the
one hand, and the Lender, on the other hand, likewise shall be conclusively presumed to have been
had or consummated in reliance upon this Guaranty. Each Guarantor waives diligence, presentment,
protest, demand for payment and notice of default or nonpayment to or upon Borrower or Guarantors
with respect to the Obligations. In addition, each Guarantor waives any requirement that the
Lender exhaust any right, power or remedy or proceed against Borrower or any other Guarantor.



     7. Guaranty Absolute and Unconditional. Each Guarantor understands and agrees that
this Guaranty shall be construed as a continuing, absolute and unconditional guarantee of the full
and punctual payment and performance by Borrower of the Obligations and not of their collectibility
only and is in no way conditioned upon any requirement that Lender first attempt to collect any of
the Obligations from the Borrower or any other Guarantor, without regard to (a) the validity,
regularity or enforceability of the Loan Agreement or any other Loan Document, any of the
Obligations or the obligations of each Guarantor hereunder or any other collateral security
therefor or guarantee thereof or right of offset with respect thereto at any time or from time to
time held by Lender, (b) any defense, set-off, deduction, abatement, recoupment, reduction or
counterclaim (other than a defense of payment or performance) which may at any time be available to
or be asserted by Borrower against the Lender or any other Guarantor, or (c) any other circumstance
whatsoever (with or without notice to or knowledge of Borrower or any Guarantor) which constitutes,
or might be construed to constitute, an equitable or legal discharge of Borrower from the
Obligations, or of any Guarantor from this Guaranty, in bankruptcy or in any other instance. When
pursuing its rights and remedies hereunder against any Guarantor, Lender may, but shall be under no
obligation to, pursue such rights, powers, privileges and remedies as it may have against Borrower
or any other Person or against the Guaranty Collateral or any other collateral security or
guarantee for the Obligations or any right of offset with respect thereto, and any failure by
Lender to pursue such other rights or remedies or to collect any payments from Borrower or any such
other Person or to realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of Borrower or any such other Person or any such collateral
security, guarantee or right of offset, shall not relieve any Guarantor of any liability hereunder,
and shall not impair or affect the rights, powers, privileges and remedies, whether express,
implied or available as a matter of law or equity, of the Lender against Guarantors. This Guaranty
shall remain in full force and effect and be binding in accordance with and to the extent of its
terms upon Guarantors and the successors and assigns thereof, and shall inure to the benefit of
Lender, and each of its successors, indorsees, transferees and assigns, until all the Obligations
and the obligations of Guarantors under this Guaranty shall have been satisfied by performance and
payment in full and the Loan Agreement and the other Loan Documents shall have been terminated,
notwithstanding that from time to time during the term of the Loan Agreement a Borrower may be free
from any Obligations.



9









 





     8. Reinstatement. This Guaranty shall continue to be effective, or be reinstated, as
the case may be, if at any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by Lender upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of Borrower or any Guarantor, or upon or as a result of
the appointment of a receiver, intervenor or conservator of, or trustee or similar officer for,
Borrower or any Guarantor or any substantial part of its property, or otherwise, all as though such
payments had not been made.



     9. Payments. Each Guarantor hereby guarantees that payments hereunder will be paid to
the Lender, in Dollars, promptly after demand therefor and in accordance with the wiring
instructions of the Lender.



     10. Notices. Except as otherwise expressly permitted by this Guaranty, all notices,
requests and other communications provided for herein (including, without limitation, any
modifications of, or waivers, requests or consents under, this Guaranty) shall be given or made in
writing (including, without limitation, by telecopy or Electronic Transmission) delivered to the
intended recipient at the “Address for Notices” specified on the signatures pages hereof, beneath
each party’s name or in Section 11.02 of Appendix A of the Loan Agreement; or, as to any party, at
such other address as shall be designated by such party in a written notice to each other party.
Except as otherwise provided in this Guaranty, all such communications shall be deemed to have been
duly given when transmitted by telecopier or Electronic Transmission or personally delivered or, in
the case of a mailed notice, upon receipt, in each case given or addressed as aforesaid.



     11. Severability. If any of the provisions of this Guaranty shall be held invalid or
unenforceable, this Guaranty shall be construed as if not containing such provisions, and the
rights and obligations of the parties hereto shall be construed and enforced accordingly. If any
of the provisions of this Guaranty shall be held invalid or unenforceable (in whole or in part) as
against any one or more Guarantors, then this Guaranty shall continue to be enforceable against all
other Guarantors without regard to any such invalidity or unenforceability.



     12. Amendments in Writing; No Waiver; Cumulative Remedies.



          (a) None of the terms or provisions of this Guaranty may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by each Guarantor and the Lender;
provided that any provision of this Guaranty may be waived in a writing executed by the Lender.




          (b) The Lender shall not be deemed by any act (except by a written instrument pursuant to
Section 12(a)), delay, indulgence or omission to have acquiesced in any Default, Event of Default,
Guarantor Event of Default or in any breach of any of the terms and conditions hereof, and, in the
absence of a written instrument pursuant to Section 12(a), the Lender shall not be deemed to have
waived any right, power, privilege or remedy hereunder. No failure to exercise, nor any delay in
exercising, on the part of Lender, any right, power, remedy or privilege hereunder shall operate as
a waiver thereof. No single or partial exercise of any right, power, remedy or privilege hereunder
shall preclude any other or further exercise thereof or the exercise of any other right, power or
privilege. A waiver by Lender of any right, power, privilege or remedy hereunder on any one
occasion shall not be construed as a bar to any right, power, privilege or remedy which Lender
would otherwise have on any future occasion.




          (c) The rights and remedies herein provided are cumulative, may be exercised singly or
concurrently and are not exclusive of any other rights or remedies provided by law.




10









 








     13. Section Headings. The section headings used in this Guaranty are for convenience
of reference only and are not to affect the construction hereof or be taken into consideration in
the interpretation hereof.



     14. Successors and Assigns. This Guaranty shall be binding upon the successors and
permitted assigns of each Guarantor and shall inure to the benefit of the Lender and each successor
and assign thereof. No Guarantor may assign any of its rights, interests or obligations hereunder
to any Person without the express written consent of the Lender in its sole discretion and any
attempt to assign or transfer this Guaranty without such consent shall be null and void and of no
effect whatsoever.



     15. GOVERNING LAW. INSOFAR AS THERE MAY BE NO APPLICABLE FEDERAL LAW, THIS GUARANTY
SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO ANY RULE
OF CONFLICTS OF LAW (OTHER THAN SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW) THAT WOULD
RESULT IN THE APPLICATION OF THE SUBSTANTIVE LAW OF ANY JURISDICTION OTHER THAN THE STATE OF NEW
YORK. NOTHING IN THIS GUARANTY SHALL REQUIRE ANY UNLAWFUL ACTION OR INACTION BY EITHER PARTY.



     16. CONSENT TO JURISDICTION AND VENUE; SERVICE OF PROCESS; WAIVER OF JURY TRIAL. EACH
PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY:



          (A) SUBMITS FOR ITSELF AND ITS PROPERTY IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS
GUARANTY, THE NOTE AND THE OTHER LOAN DOCUMENTS, OR FOR RECOGNITION AND ENFORCEMENT OF ANY JUDGMENT
IN RESPECT THEREOF, TO THE EXCLUSIVE GENERAL JURISDICTION OF ANY COURT OF THE STATE AND COUNTY OF
NEW YORK, OR IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;




          (B) CONSENTS THAT ANY SUCH ACTION OR PROCEEDING MAY BE BROUGHT IN SUCH COURTS AND, TO THE
EXTENT PERMITTED BY LAW, WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY
SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH ACTION OR PROCEEDING WAS BROUGHT IN AN
INCONVENIENT COURT AND AGREES NOT TO PLEAD OR CLAIM THE SAME;




          (C) AGREES THAT SERVICE OF PROCESS IN ANY SUCH ACTION OR PROCEEDING MAY BE EFFECTED BY MAILING
A COPY THEREOF BY REGISTERED OR CERTIFIED MAIL (OR ANY SUBSTANTIALLY SIMILAR FORM OF MAIL), POSTAGE
PREPAID, TO ITS ADDRESS SET FORTH IN SECTION 10 OR AT SUCH OTHER ADDRESS OF WHICH THE LENDER SHALL
HAVE BEEN NOTIFIED; AND




          (D) AGREES THAT NOTHING HEREIN SHALL AFFECT THE RIGHT TO EFFECT SERVICE OF PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR SHALL LIMIT THE RIGHT TO SUE IN ANY OTHER JURISDICTION.




          EACH GUARANTOR AND THE LENDER HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO




11









 








THIS GUARANTY, ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.




     17. Counterparts. This Guaranty may be executed in any number of counterparts, all of
which when taken together shall constitute one and the same instrument and any of the parties
hereto may execute this Guaranty by signing any such counterpart.



     18. Joint and Several Liability. Each Guarantor hereby acknowledges and agrees that
the Guarantors are jointly and severally liable to the Lender for all representations, warranties,
covenants, obligations and liabilities of each Guarantor hereunder and under the Loan Documents.
Each Guarantor hereby further acknowledges and agrees that (a) any Guarantor Event of Default or
any default, or breach of a representation, warranty or covenant by any Guarantor hereunder or
under any Loan Document is hereby considered a default or breach by each Guarantor, as applicable,
and (b) the Lender shall have no obligation to proceed against one Guarantor before proceeding
against the other Guarantors. Each Guarantor hereby waives any defense to its obligations under
this Guaranty based upon or arising out of the disability or other defense or cessation of
liability of one Guarantor versus the other. A Guarantor’s subrogation claim arising from payments
to the Lender shall constitute a capital investment in the other Guarantor subordinated to any
claims of the Lender and equal to a ratable share of the equity interests in such Guarantor.



     19. Limitation of Individual Guarantor Liability. Notwithstanding any provision
herein contained to the contrary, each Guarantor’s liability for the payment of its obligations
under this Guaranty shall be limited to an amount not to exceed as of any date of determination the
amount which could be claimed by Lender from such Guarantor under this Guaranty without rendering
such claim voidable or avoidable under Section 548 of the Bankruptcy Code (Title 11, U.S.C.) or
under any applicable state fraudulent transfer or similar statute or common law after taking into
account, among other things, such Guarantor’s right of contribution and indemnification from each
other Guarantor, if any. To the end set forth above, but only to the extent that the obligations of
any Guarantor hereunder would otherwise be subject to avoidance under the avoidance provisions, if
such Guarantor is not deemed to have received valuable consideration, fair value, fair
consideration or reasonably equivalent value for the Obligations, or if the Obligations would
render such Guarantor insolvent, or leave such Guarantor with an unreasonably small capital to
conduct its business, or cause such Guarantor to have incurred debts (or to have intended to have
incurred debts) beyond its ability to pay such debts as they mature, in each case as of the time
any of the Obligations is deemed to have been incurred for the purposes of the avoidance
provisions, the maximum Obligations for which such Guarantor shall be liable hereunder shall be
reduced to that amount which, after giving effect thereto, would not cause the Obligations as so
reduced, to be subject to avoidance under the avoidance provisions.



     20. Final Agreement; Severability. Other than as referenced in the preceding
sentence, this Guaranty contains the entire and exclusive agreement of the parties hereto with
reference to the matters discussed herein. This Guaranty supersedes all prior drafts and
communications with respect thereto. The headings of paragraphs herein are inserted only for
convenience and shall in no way define, describe or limit the scope or intent of any provision of
this Guaranty. If any term or provision of this Guaranty shall be deemed prohibited by or invalid
under any applicable law, such provision shall be invalidated without affecting the remaining
provisions of this Guaranty.



[Signature page to follow]




12









 





          IN WITNESS WHEREOF, the parties hereto have caused this Guaranty to be duly executed and
delivered as of the day and year first above written.




	 	 	 	 	 
	ANNUNCIATA CORPORATION,

as a Guarantor	 	 
	 
	 	 	 	 
	By: 


Name:

	 	/x/ Adil Mistry
 

Adil Mistry
	 	 
	Title:

	 	Vice President	 	 
	 
	 	 	 	 
	Address for Notices:

767 Fifth Avenue, 14th Floor

New York, NY 10153	 	 
	 
	 	 	 	 
	Attention: Adil Mistry

Telephone: (212) 418-3507

Facsimile: (212) 418-3695	 	 






Signature Page to Guaranty and Security Agreement







 









 








ARGONAUT HOLDINGS, INC.,




GENERAL MOTORS ASIA, INC.,




GENERAL MOTORS ASIA PACIFIC HOLDINGS, LLC,




GENERAL MOTORS OVERSEAS CORPORATION,




GENERAL MOTORS OVERSEAS DISTRIBUTION CORPORATION,




GENERAL MOTORS PRODUCT SERVICES, INC.,




GENERAL MOTORS RESEARCH CORPORATION,




GM APO HOLDINGS, LLC,




GM EUROMETALS, INC.,




GM FINANCE CO. HOLDINGS LLC,




GM GEFS L.P.,




GM GLOBAL TECHNOLOGY OPERATIONS, INC.,




GM GLOBAL TOOLING COMPANY, INC.,




GM LAAM HOLDINGS, LLC,




GM PREFERRED FINANCE CO. HOLDINGS LLC,




GM TECHNOLOGIES, LLC,




GM-DI LEASING CORPORATION,




GMOC ADMINISTRATIVE SERVICES CORPORATION,




ONSTAR, LLC,




RIVERFRONT HOLDINGS, INC.,




SATURN CORPORATION, and




SATURN DISTRIBUTION CORPORATION,

             each, as a Guarantor




	 	 	 	 	 	 	 
	 

	 	By:


Name
	 	/x/ Adil Mistry
 

Adil Mistry
	 	 
	 

	 	Title:
	 	Vice President	 	 






	 	 	 
	 

	 	Address for Notices:
	 

	 	767 Fifth Avenue, 14th Floor
	 

	 	New York, NY 10153
	 
	 	 
	 

	 	Attention: Adil Mistry
	 

	 	Telephone: (212) 418-3507
	 

	 	Facsimile: (212) 418-3695






Signature Page to Guaranty and Security Agreement





 









 








	 	 	 	 	 	 	 
	 	 	GENERAL MOTORS INTERNATIONAL

      HOLDINGS, INC.,

as a Guarantor	 	 
	 
	 	 	 	 	 	 
	 

	 	By:


Name
	 	/x/ Adil Mistry
 

Adil Mistry
	 	 
	 

	 	Title:
	 	Vice President	 	 






	 	 	 
	 

	 	Address for Notices:
	 

	 	767 Fifth Avenue, 14th Floor
	 

	 	New York, NY 10153
	 
	 	 
	 

	 	Attention: Adil Mistry
	 

	 	Telephone: (212) 418-3507
	 

	 	Facsimile: (212) 418-3695






Signature Page to Guaranty and Security Agreement






 









 








EXHIBIT A




LIST OF GUARANTORS




	 	 	 	 	 
	 	 	Form of	 	Jurisdiction of
	Name	 	Organization	 	Organization
	Annunciata Corporation

	 	Corporation
	 	Delaware
	 
	 	 	 	 
	Argonaut Holdings, Inc.

	 	Corporation
	 	Delaware
	 
	 	 	 	 
	General Motors Asia Pacific
Holdings, LLC

	 	Limited Liability Company
	 	Delaware
	 
	 	 	 	 
	General Motors Asia, Inc.

	 	Corporation
	 	Delaware
	 
	 	 	 	 
	General Motors International
Holdings, Inc.

	 	Corporation
	 	Delaware
	 
	 	 	 	 
	General Motors Overseas
Corporation

	 	Corporation
	 	Delaware
	 
	 	 	 	 
	General Motors Overseas
Distribution Corporation

	 	Corporation
	 	Delaware
	 
	 	 	 	 
	General Motors Product
Services, Inc.

	 	Corporation
	 	Delaware
	 
	 	 	 	 
	General Motors Research
Corporation

	 	Corporation
	 	Delaware
	 
	 	 	 	 
	GM APO Holdings, LLC

	 	Limited Liability Company
	 	Delaware
	 
	 	 	 	 
	GM Eurometals, Inc.

	 	Corporation
	 	Delaware
	 
	 	 	 	 
	GM Finance Co. Holdings LLC

	 	Limited Liability Company
	 	Delaware
	 
	 	 	 	 
	GM GEFS L.P.

	 	Limited Partnership
	 	Nevada
	 
	 	 	 	 
	GM Global Technology
Operations, Inc.

	 	Corporation
	 	Delaware
	 
	 	 	 	 
	GM Global Tooling Company,
Inc.

	 	Corporation
	 	Delaware
	 
	 	 	 	 
	GM LAAM Holdings, LLC

	 	Limited Liability Company
	 	Delaware
	 
	 	 	 	 
	GM Preferred Finance Co.
Holdings LLC

	 	Limited LiabilityCompany
	 	Delaware
	 
	 	 	 	 
	GM Technologies, LLC

	 	Limited Liability Company
	 	Delaware
	 
	 	 	 	 
	GM-DI Leasing Corporation

	 	Corporation
	 	Delaware
	 
	 	 	 	 
	GMOC Administrative Services
Corporation

	 	Corporation
	 	Delaware
	 
	 	 	 	 
	OnStar, LLC

	 	Limited Liability Company
	 	Delaware
	 
	 	 	 	 
	Riverfront Holdings, Inc.

	 	Corporation
	 	Delaware
	 
	 	 	 	 
	Saturn Corporation

	 	Corporation
	 	Delaware
	 
	 	 	 	 
	Saturn Distribution
Corporation

	 	Corporation
	 	Delaware