Hearing Date: July 13, 2009, at 9:45 a.m. (Eastern Time) Objection Deadline: July 8, 2009, at 4:00 p.m. (Eastern Time) UNITED STATES BANKRUPTCY COURT SOUTHERN DISTRICT OF NEW YORK ---------------------------------------------------------------x : In re : Chapter 11 Case No. : MOTORS LIQUIDATION COMPANY, et al., : 09-50026 (REG) f/k/a General Motors Corp., et al. : : Debtors. : (Jointly Administered) : ---------------------------------------------------------------x ORDER APPROVING (I) MASTER DISPOSITION AGREEMENT FOR PURCHASE OF CERTAIN ASSETS OF DELPHI CORPORATION, (II) RELATED AGREEMENTS, (III) ASSUMPTION AND ASSIGNMENT OF EXECUTORY CONTRACTS, (IV) AGREEMENT WITH PENSION BENEFIT GUARANTY CORPORATION, AND (V) ENTRY INTO ALTERNATIVE TRANSACTION IN LIEU THEREOF Upon the motion, dated June 20, 2009 (the Motion ), as orally modified at the Hearing (as defined below), of Motors Liquidation Company (f/k/a General Motors Corporation) ( GM ) and certain of its subsidiaries, as debtors and debtors in possession in the abovecaptioned chapter 11 cases (collectively, the Debtors ), pursuant to sections 105, 363, and 365 of the Bankruptcy Code, 1 for entry of an order authorizing and approving GM s (i) purchase, and guarantee of purchase, of certain assets of Delphi pursuant to the MDA, (ii) entry into the SPA, the Loan Agreement, and the Commercial Agreements with Parnassus in connection with Parnassus purchase of substantially all of the remaining assets of Delphi, (iii) assumption of certain executory contracts in connection with the sale of certain of Delphi s assets and assignment of such contracts and leases to Vehicle Holdings, (iv) entry into an agreement with 1 Capitalized terms used herein and not otherwise defined herein shall have the meanings ascribed to such terms in the Motion. US_ACTIVE:\43069745\05\43069745_5.DOC\72240.5726
the PBGC in connection with such transaction, and (v) entry into an alternate transaction with the successful bidder at the Delphi Auction, all as more fully described in the Motion; it is FOUND AND DETERMINED THAT: 2 A. The Court has jurisdiction to consider the Motion and the relief requested therein in accordance with 28 U.S.C. 157 and 1334 and the Standing Order M-61 Referring to Bankruptcy Judges for the Southern District of New York of Any and All Proceedings Under Title 11, dated July 10, 1984 (Ward, Acting C.J.). B. Consideration of the Motion and the relief requested therein is a core proceeding pursuant to 28 U.S.C. 157(b). C. Venue is proper before this Court pursuant to 28 U.S.C. 1408 and 1409. D. Due and proper notice of the Motion was provided to (i) the Office of the United States Trustee for the Southern District of New York, (ii) the attorneys for the United States Treasury, (iii) the attorneys for Delphi, (iv) the attorneys for Parnassus and Platinum, (v) the attorneys for Export Development Canada, (vi) the attorneys for the agent under GM s prepetition secured term loan agreement, (vii) the attorneys for the agent under GM s prepetition amended and restated secured revolving credit agreement, (viii) the attorneys for the statutory committee of unsecured creditors appointed in these chapter 11 cases, (ix) the attorneys for the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (x) the attorneys for the International Union of Electronic, Electrical, Salaried, Machine and Furniture Workers Communications Workers of America, (xi) the United States Department of Labor, (xii) the attorneys for the National Automobile Dealers Association, 2 Findings of fact shall be construed as conclusions of law and conclusions of law shall be construed as findings of fact when appropriate. See Fed. R. Bankr. P. 7052. US_ACTIVE:\43069745\05\43069745_5.DOC\72240.5726 2
(xiii) the attorneys for the ad hoc bondholders committee, (xiv) the U.S. Attorney s Office, S.D.N.Y., (xv) the attorneys for the PBGC, and (xvi) all entities that requested notice in these chapter 11 cases under Fed. R. Bankr. P. 2002, and no other or further notice need be provided. E. GM has provided adequate assurance that it will promptly cure any defaults under the GM Assumed Contracts. F. GM has provided adequate assurance of future performance by General Motors Company ( GMC ) of the GM Assumed Contracts, and no further showing of adequate assurance is necessary. G. Based upon the record of the hearing to consider the relief requested in the Motion (the Hearing ) and all of the proceedings had before the Court, the relief sought in the Motion is in the best interests of the Debtors, their estates, and their creditors. H. The legal and factual bases set forth in the Motion establish just cause for the relief granted herein. NOW THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED THAT: 1. The Motion is granted as provided herein and all objections thereto are overruled to the extent not already resolved or dismissed. 2. GM s entry into the Assignment Agreement annexed as Exhibit A hereto (the Assignment Agreement ) is hereby approved, and GM is authorized and directed to perform obligations thereunder. 3. GM s entry into the Agreements (as defined in the Assignment Agreement) is hereby authorized solely with respect to provisions of the Agreements relating to the obligations that GM is not released from pursuant to section 1.3 of the Assignment Agreement (such US_ACTIVE:\43069745\05\43069745_5.DOC\72240.5726 3
unreleased obligations, the GM Retained Obligations ), and GM is authorized to perform the GM Retained Obligations (as may be modified so as not to materially increase in the aggregate any payments to be made or liabilities to be assumed by GM). 4. GM is authorized to incur, and perform obligations in respect of, any alternative transaction that GMC may enter into with another bidder for the purchase by GMC or any other party of some or all assets of Delphi and/or any of its affiliates, so long as such alternative transaction (i) has terms that, taken as a whole, are, in GM s judgment, equally or more advantageous to GM than the Proposed Transaction, as modified by the terms of the Assignment Agreement (the Modified Proposed Transaction ), and (ii) does not require GM to expend funds or assume liabilities that would be materially more in the aggregate than it would expend or assume, as applicable, in respect of the Modified Proposed Transaction (such alternative transaction is herein referred to as an Acceptable Alternative Transaction ). 5. Upon the consummation of the Modified Proposed Transaction, GM shall automatically be authorized and directed to assume and simultaneously assign the GM Assumed Contracts to GMC (or any designee of GMC permitted under the terms of the Modified Proposed Transaction). 6. Upon the consummation of any Acceptable Alternative Transaction approved by the Court in the Delphi Cases, GM shall automatically be authorized to assume and simultaneously assign the GM Assumed Contracts to GMC (or any designee of GMC permitted under the terms of such Acceptable Alternative Transaction). 7. For the avoidance of doubt, unless and until the Modified Proposed Transaction or an Acceptable Alternative Transaction is approved by the Court in the Delphi Cases and is consummated (the Consummation Date ), GM shall continue to be a party to and shall retain US_ACTIVE:\43069745\05\43069745_5.DOC\72240.5726 4
all obligations under all existing agreements with Delphi, including all purchase orders, the MRA (as defined in the MDA), and commercial agreements (but excluding the Agreements (as defined in the Assignment Agreement)). The findings in this Order shall not be binding upon Delphi until the Consummation Date occurs. If the Consummation Date does occur, the agreements set forth in section 9.19 of the MDA shall be terminated in accordance with and to the extent provided by section 9.19 of the MDA. The rights of all parties with respect to such agreements shall be preserved. 8. Nothing in this Order shall preclude or otherwise prejudice any party, including the New York State Workers Compensation Board, the New York State Department of Environmental Conservation, and the Michigan Department of Environmental Quality (collectively, the Objectors ), from objecting to the approval of the MDA in the Delphi Cases on any ground, including the grounds set forth in the objections to the Motion filed by the Objectors in these chapter 11 cases (the Objections ), and nothing in this Order shall be a determination as to any of the issues raised by the Objectors in the Objections. 9. This Court shall retain jurisdiction to hear and determine all matters arising from or related to this Order. Dated: July 14, 2009 New York, New York s/ Robert E. Gerber United States Bankruptcy Judge US_ACTIVE:\43069745\05\43069745_5.DOC\72240.5726 5
US_ACTIVE:\43069745\05\43069745_5.DOC\72240.5726 EXHIBIT A
Execution Version ASSIGNMENT AGREEMENT This Assignment Agreement (this Assignment Agreement ) is made and entered into as of July 10, 2009 (the Effective Time ), among Motors Liquidation Company (f/k/a General Motors Corporation), a Delaware corporation ( Old GM ), GM Components Holdings, LLC, a Delaware limited liability company ( GM Purchaser ), Parnassus Holdings II, LLC, a Delaware limited liability company ( Parnassus ), Parnassus Holdings I, LLC, a Delaware limited liability company ( Parnassus Parent ), Delphi Corporation, a Delaware corporation ( Delphi ), and General Motors Company, a Delaware corporation ( New GM ) (each a Party, and collectively the Parties ). WHEREAS, Old GM has entered into or has rights under the agreements listed on Exhibit A (the Agreements ) with certain of the other Parties hereto; WHEREAS, on the date hereof, the equity interests of GM Purchaser have been transferred from Old GM to New GM pursuant to the consummation of the transactions contemplated by that certain Amended and Restated Master Sale and Purchase Agreement (the MSPA ), dated June 26, 2009, as amended, by and among Old GM, New GM and the other parties thereto; WHEREAS, New GM wishes to accept by assignment all of Old GM s right, title and interest in, to and under the Agreements and to become liable for, and to pay, perform, discharge and satisfy when due, all of the duties, liabilities and obligations of, and all claims against, Old GM under the Agreements; WHEREAS, the Parties wish to release and discharge Old GM from all of its obligations under the Agreements, except as provided herein, and to substitute New GM for Old GM as a party thereto; NOW, THEREFORE, in consideration of the premises and the mutual promises and covenants contained herein and in the Agreements, and for other good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, the Parties, intending to be legally bound, hereby agree as follows: 1.0. Assignment of Agreements and Related Matters. 1.1. Effective upon the Effective Time and notwithstanding Section 6.31 of the MSPA, Old GM hereby (a) bargains, assigns, transfers, sets over and conveys unto New GM and its successors and assigns forever, to have and to hold, all of Old GM s right, title and interest in, to and under the Agreements; and (b) transfers and assigns all of its duties, liabilities and obligations under the Agreements to New GM. 1.2. Effective upon the Effective Time and notwithstanding Section 6.31 of the MSPA, New GM agrees to assume, be bound by and perform the duties, liabilities and
obligations of Old GM under the Agreements in accordance with the terms and conditions contained herein and therein. New GM accepts all of Old GM s right, title and interest in, to and under the Agreements and assumes and shall be liable for, and agrees to pay, perform, discharge and satisfy when due, all of the duties, liabilities and obligations of, and all claims against, Old GM under the Agreements as if New GM were the original party to the Agreements. 1.3. Each of Delphi, Parnassus, Parnassus Parent and GM Purchaser agrees that, as of the Effective Time: (a) except as provided in Section 3.1 below with respect to Section 12.1.6 of the Master Disposition Agreement ( MDA ), dated June 1, 2009 as revised and amended, by and among Delphi, GM Purchaser, Old GM, Parnassus and the other parties thereto and Section 9(iii) of the Securities Purchase Agreement, dated June 1, 2009 as revised and amended, by and among Parnassus, Parnassus Parent and Old GM (the SPA ) and Section 3.4, Old GM is released and discharged from any and all claims, demands, obligations, liabilities, duties, rights of action and further performance of all duties, liabilities and obligations, which Old GM owes, or may owe, to such Party, howsoever arising under the Agreements and whether arising prior to, on or after the consummation of the Agreements, and, to the extent that any such claims, demands, liabilities, duties, rights of action or further performance of duties, liabilities and obligations do arise, or may arise, these are hereby waived for all purposes insofar as Old GM is concerned, but are not waived insofar as New GM is concerned; and (b) New GM shall become entitled to all right, title and interest of Old GM in, to and under the Agreements as if New GM were the original party to the Agreements. Notwithstanding the foregoing, Old GM shall not be released and discharged and New GM shall not assume any obligations under the Agreements that specifically relate to agreements between Old GM and Delphi or its Affiliates that have not been assigned or are not hereafter assigned to New GM pursuant to the transactions contemplated by the MSPA, this Assignment Agreement or otherwise, and the Parties agree that Old GM (not New GM) shall remain responsible for all such obligations under the Agreements. It is further agreed that if for any reason, New GM is unable to perform any of the obligations assigned to it hereunder without the cooperation, consent or other action of Old GM (excluding any assumption of liabilities or payment of monies), then New GM will provide written instructions to Old GM outlining in all reasonable respects the act or acts being requested and the estimated costs associated with such action and Old GM will use its commercially reasonable efforts to comply with such written request to provide such cooperation, consent or other action and shall not be deemed released by Delphi from and will remain responsible to Delphi for all such obligations under the Agreements, and New GM shall pay any documented costs and expenses incurred by Old GM in using commercially reasonable efforts to comply with this sentence. Except as it relates to Delphi under the previous sentence, Old GM will not be liable for taking any such actions requested pursuant to the previous sentence. 1.4. As of the Effective Time, the term GM or other like term, as used in the Old Agreements, shall refer to New GM. 2
1.5. Effective upon the Effective Time, Old GM acknowledges and agrees that any and all rights of Old GM and any and all obligations of Parnassus and Parnassus Parent owing to Old GM under the Agreements are hereinafter rights solely of New GM and obligations owed solely to New GM and no further rights, obligations or performance thereof shall be for the benefit of or be owed to Old GM thereunder. 2.0. Successors and Assigns. 2.1. The terms of this Assignment Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. 3.0. Effect and Further Assurances. 3.1. Subject to Section 3.4, upon the execution, delivery and effectiveness of this Assignment Agreement, the provisions with respect to Old GM in Section 12.1.6 of the MDA and Section 9(iii) of the SPA shall no longer be applicable, other than with respect to the purchase orders and commercial agreements between Sellers and Old GM, and such latter provisions shall remain in effect with respect to Old GM as they are written. 3.2. The Parties agree to execute and deliver, or cause to be executed and delivered, all such instruments and take all such action as the other party may reasonably request in order to effectuate the intent and purposes of this Assignment Agreement. 3.3. The Parties hereto agree that the rights and protections provided to Old GM in numbered paragraph 46 of the Modification Procedures Order are hereby provided solely to New GM as of the Effective Time. 3.4. To the extent that the Bankruptcy Court for Old GM grants any relief in connection with the Motion of Debtors for Entry of Order Approving (I) Master Disposition Agreement for Purchase of Certain Assets of Delphi Corporation, (II) Related Agreements, (III) Assumption and Assignment of Executory Contracts, (IV) Agreement with Pension Benefit Guaranty Corporation, and (V) Entry Into Alternative Transaction in Lieu Thereof (the GM Motion ) that authorizes the assumption and assignment of purchase orders and commercial agreements between Sellers and Old GM, and either (i) the effectiveness of such relief is not explicitly conditioned upon the consummation of the MDA or an alternative transaction approved by the Bankruptcy Court for Delphi (the MDA/AT Condition ) or (ii) the form of order granting such relief is not in form and substance satisfactory to Delphi, Parnassus and New GM, this Assignment Agreement shall automatically terminate and be of no further force and effect, the assignment of agreements set forth in Section 1 shall be deemed not to have occurred at the Effective Time (and the Parties shall take such steps as may be required to document such result) and Section 6.31 of the MSPA shall thereafter govern the assignment of the Agreements. Old GM shall use its best efforts to cause any relief granted by the Bankruptcy Court for Old GM in connection with the GM Motion to satisfy the MDA/AT Condition. For the avoidance of doubt, unless and until the occurrence of 3
4.0. Miscellaneous. the consummation of the transaction in the MDA or an alternative transaction approved by the Bankruptcy Court for Delphi (the "Consummation Date"), Old GM shall continue to be a party to, and shall retain all obligations under, all existing agreements with Delphi and its affiliates, including the MRA (as defined in the MDA), but excluding the Agreements. The findings in the order approving this Assignment Agreement shall not be binding upon Delphi and its affiliates until the Consummation Date occurs. If the Consummation Date does occur, the agreements set forth in Section 9.19 of the MDA shall be terminated in accordance with and to the extent provided by Section 9.19 of the MDA. The rights of all parties with respect to such agreements shall be preserved. 4.1. Capitalized terms used and not defined herein shall have the meanings ascribed to them in the MDA. 4.2. This Assignment Agreement may be executed in two or more counterparts, each of which will be deemed an original, and all of which will constitute one and the same Assignment Agreement. Facsimile signatures will be treated as originals. 4.3. The headings contained in this Assignment Agreement are for convenience only, do not constitute a part of this Assignment Agreement and will not be deemed to limit or affect any of the provisions hereof. 4.4. Each Party hereby irrevocably and unconditionally agrees that the Bankruptcy Court shall retain exclusive jurisdiction over all matters related to the construction, interpretation or enforcement of this Agreement; provided, however, that after the second (2nd) anniversary of the date of this Agreement, the Bankruptcy Court and the New York Courts shall have non-exclusive jurisdiction over all matters related to the construction, interpretation or enforcement of this Agreement; and, provided, further, that the jurisdiction of the Bankruptcy Court over all matters related to this Assignment Agreement shall terminate upon the fourth (4th) anniversary of the date of this Assignment Agreement and the New York Courts shall have exclusive jurisdiction after the fourth (4th) anniversary of the date of this Assignment Agreement. Each Party further agrees to waive any objection based on forum non conveniens. 4.5. This Assignment Agreement shall be governed and construed in accordance with the internal laws of the State of New York, the forum state in which the Bankruptcy Court sits, without regard to any conflict of law provision that could require the application of the law of any other jurisdiction. 4.6. This Assignment Agreement can be amended, supplemented or changed, and any provision thereof can be waived, only by written instrument making specific reference to this Assignment Agreement signed by the Party against whom enforcement of any such amendment, supplement or modification or waiver is sought. The waiver by any Party hereto of a breach of any provision of this 4
Assignment Agreement shall not operate or be construed as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any right, power or remedy. [Signature page follows] 5
Exhibit A Agreements Master Disposition Agreement, dated as of June 1, 2009 as revised and amended, by and among Delphi Corporation, GM Components Holdings, LLC, General Motors Corporation, Parnassus Holdings II, LLC and the other Sellers and Buyers party thereto; provided, however, for purposes of this Assignment Agreement, the Master Disposition Agreement shall not include any other agreement or other documents relating to Delphi and its affiliates even if referred to, or otherwise referenced in, the Master Disposition Agreement. Securities Purchase Agreement, dated as of June 1, 2009 as revised and amended, by and among Parnassus Holdings I, LLC, Parnassus Holdings II, LLC and General Motors Corporation. Commercial Agreement, dated as of June 1, 2009, by and between General Motors Corporation (on behalf of itself and its subsidiaries) and Parnassus Holdings II, LLC. Access Agreement, dated as of June 1, 2009, by and between General Motors Corporation (on behalf of itself and its subsidiaries) and Parnassus Holdings II, LLC. Supply Agreement, dated as of June 1, 2009, by and between General Motors Corporation (on behalf of itself and its subsidiaries) and Parnassus Holdings II, LLC. Commitment Letter, dated as of June 1, 2009, from Platinum Equity Capital Partners II, L.P., Platinum Equity Capital Partners-A II, L.P. and Platinum Equity Capital Partners-PF II, L.P. for the benefit of Parnassus Holdings II, LLC. Commitment Letter, dated as of June 1, 2009, from Platinum Equity Capital Partners II, L.P., Platinum Equity Capital Partners-A II, L.P. and Platinum Equity Capital Partners-PF II, L.P. for the benefit of Parnassus Funding LLC.