EXHIBIT 10.2
Execution Copy
SECOND AMENDMENT TO THE ASSET PURCHASE
AGREEMENT
This
SECOND AMENDMENT TO THE ASSET PURCHASE AGREEMENT, dated as of
October 1, 2007 (this “ Amendment ”), is
made by and between GENERAL MOTORS CORPORATION, a Delaware
corporation, and ALLISON TRANSMISSION, INC., f/k/a Clutch Operating
Company, Inc., a Delaware corporation.
W I
T N E S S E T H:
WHEREAS,
the parties hereto are parties to an Asset Purchase Agreement,
dated as of June 28, 2007, which the parties subsequently
amended on August 7, 2007 (as so amended, the “
Purchase Agreement ”); and
WHEREAS,
the parties hereto again desire to amend the Purchase Agreement, as
set forth herein.
NOW,
THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained and other good and
valuable consideration, the receipt, adequacy and sufficiency of
which are hereby acknowledged, the parties hereto hereby agree as
follows (all capitalized terms used but not defined herein shall
have the meanings specified in the Purchase Agreement):
Section 1. Amendments to the
Purchase Agreement.
(a) Section 1.1
of the Purchase Agreement is hereby amended to add or restate the
following definitions:
“ Allison Indy ”
means the entity identified by the Sellers for accounting purposes
through the use of organizational code number “00139”
in accordance with the past accounting practices of the Sellers,
consistently applied.
“ Special Excluded Accounts
Receivable ” means all accounts and notes receivable and
other such claims for money that are (i) due to Allison Indy
from any third party, or any Seller, arising from the rendering of
services or the sale of goods or materials by the Business or other
conduct of the Business (including the reserve accounts
corresponding to such excluded accounts and notes receivable) and
(ii) contained in the eTBR accounts set forth on
Schedule 1.1J , the contents of such eTBR accounts to
be determined consistent with the application of the past
accounting practices of the Sellers, consistently applied.
(c) Section 2.2(b)(ii)
of the Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
“(ii)
(A) any accounts and notes receivable contributed to GMTR
pursuant to the Receivables Agreement and any related rights to
payment therefor due to any Seller, (B) any accounts and notes
receivable and other such claims for money due to any Seller from
any other Seller or any of its Subsidiaries other than those
arising from the sale of Automatic Transmissions to the Sellers by
the Business (provided that any accounts and notes receivable and
other such claims for money
