Exhibit 2.1
FIRST AMENDMENT TO AMENDED AND
RESTATED MASTER SALE AND
PURCHASE
AGREEMENT
THIS FIRST AMENDMENT TO AMENDED AND
RESTATED MASTER SALE AND PURCHASE AGREEMENT, dated as of
June 30, 2009 (this “ Amendment ”), is made
by and among General Motors Corporation, a Delaware corporation
(“ Parent ”), Saturn LLC, a Delaware limited
liability company (“ S LLC ”), Saturn
Distribution Corporation, a Delaware corporation (“ S
Distribution ”), Chevrolet-Saturn of Harlem, Inc., a
Delaware corporation (“ Harlem ,” and
collectively with Parent, S LLC and S Distribution, “
Sellers, ” and each a “ Seller ”),
and NGMCO, Inc., a Delaware corporation and successor-in-interest
to Vehicle Acquisition Holdings LLC, a Delaware limited liability
company (“ Purchaser ”).
WHEREAS, Sellers and Purchaser have
entered into that certain Amended and Restated Master Sale and
Purchase Agreement, dated as of June 26, 2009 (the “
Purchase Agreement ”); and
WHEREAS, the Parties desire to amend
the Purchase Agreement as set forth herein.
NOW, THEREFORE, in consideration of
the foregoing and the mutual agreements contained in this
Agreement, and for other good and valuable consideration, the
value, receipt and sufficiency of which are acknowledged, the
Parties hereby agree as follows:
Section 1. Capitalized
Terms. All capitalized terms used but not defined herein shall
have the meanings specified in the Purchase Agreement.
Section 2. Amendments to
Purchase Agreement.
(a) Section 2.3(a)(v) of
the Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
(v) all Liabilities of Sellers
(A) arising in the Ordinary Course of Business during the
Bankruptcy Cases through and including the Closing Date, to the
extent such Liabilities are administrative expenses of
Sellers’ estates pursuant to Section 503(b) of the
Bankruptcy Code and (B) arising prior to the commencement of
the Bankruptcy Cases, to the extent approved by the Bankruptcy
Court for payment by Sellers pursuant to a Final Order (and for the
avoidance of doubt, Sellers’ Liabilities in clauses
(A) and (B) above include all of Sellers’
Liabilities for personal property Taxes, real estate and/or other
ad valorem Taxes, use Taxes, sales Taxes, franchise Taxes, income
Taxes, gross receipt Taxes, excise Taxes, Michigan Business Taxes
and Michigan Single Business Taxes and other Liabilities mentioned
in the Bankruptcy Court’s Order - Docket No. 174), in
each case, other than (1) Liabilities of the type described in
Section 2.3(b)(iv) , Section 2.3(b)(vi) ,
Section 2.3(b)(ix) and Section 2.3(b)(xii)
, (2) Liabilities arising under any dealer sales and service
Contract and any Contract related thereto, to the extent such
Contract has been designated as a Rejectable Executory Contract,
and (3) Liabilities otherwise assumed in this
Section 2.3(a) ;
(b) Section 2.3(a)(ix)
of the Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
(ix) all Liabilities to third
parties for death, personal injury, or other injury to Persons or
damage to property caused by motor vehicles designed for operation
on public roadways or by the component parts of such motor vehicles
and, in each case, manufactured, sold or delivered by Sellers
(collectively, “ Product Liabilities ”), which
arise directly out of death, personal injury or other injury to
Persons or damage to property caused by accidents or incidents
first occurring on or after the Closing Date and arising from such
motor vehicles’ operation or performance (for avoidance of
doubt, Purchaser shall not assume, or become liable to pay, perform
or discharge, any Liability arising or contended to arise by reason
of exposure to materials utilized in the assembly or fabrication of
motor vehicles manufactured by Sellers and delivered prior to the
Closing Date, including asbestos, silicates or fluids, regardless
of when such alleged exposure occurs);
(c) Section 2.3(b)(xii)
of the Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
(xii) all workers’
compensation Claims with respect to Employees residing or employed
in, as the case may be and as defined by applicable Law,
(A) the states set forth on Exhibit G and
(B) if the State of Michigan (1) fails to authorize
Purchaser and its Affiliates operating within the State of Michigan
to be a self-insurer for purposes of administering workers’
compensation Claims or (2) requires Purchaser and its
Affiliates
