Exhibit 2.2
SECOND AMENDMENT TO AMENDED
AND RESTATED MASTER SALE AND
PURCHASE
AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND
RESTATED MASTER SALE AND PURCHASE AGREEMENT, dated as of
July 5, 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 (as amended, the
“ Purchase Agreement ”);
WHEREAS, Sellers and Purchaser have
entered into that certain First Amendment to Amended and Restated
Master and 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) The following new definition of
“Advanced Technology Credits” is hereby included in
Section 1.1 of the Purchase Agreement:
“ Advanced Technology
Credits ” has the meaning set forth in
Section 6.36 .
(b) The following new definition of
“Advanced Technology Projects” is hereby included in
Section 1.1 of the Purchase Agreement:
“ Advanced Technology
Projects ” means development, design, engineering and
production of advanced technology vehicles and components,
including the vehicles known as “the Volt”, “the
Cruze” and components, transmissions and systems for vehicles
employing hybrid technologies.
(c) The definition of
“Ancillary Agreements” is hereby amended and restated
in its entirety to read as follows:
“ Ancillary Agreements
” means the Parent Warrants, the UAW Active Labor
Modifications, the UAW Retiree Settlement Agreement, the VEBA
Warrant, the Equity Registration Rights Agreement, the Bill of
Sale, the Assignment and Assumption Agreement, the Intellectual
Property Assignment Agreement, the Transition Services Agreement,
the Quitclaim Deeds, the Assignment and Assumption of Real Property
Leases, the Assignment and Assumption of Harlem Lease, the Master
Lease Agreement, the Subdivision Master Lease (if required), the
Saginaw Service Contracts (if required), the Assignment and
Assumption of Willow Run Lease, the Ren Cen Lease, the VEBA Note
and each other agreement or document executed by the Parties
pursuant to this Agreement or any of the foregoing and each
certificate and other document to be delivered by the Parties
pursuant to ARTICLE VII .
(d) The following new definition of
“Excess Estimated Unsecured Claim Amount” is hereby
included in Section 1.1 of the Purchase
Agreement:
“ Excess Estimated
Unsecured Claim Amount ” has the meaning set forth in
Section 3.2(c)(i) .
(e) The definition of
“Permitted Encumbrances” is hereby amended and restated
in its entirety to read as follows:
“ Permitted
Encumbrances ” means all (i) purchase money security
interests arising in the Ordinary Course of Business;
(ii) security interests relating to progress payments created
or arising pursuant to government Contracts in the Ordinary Course
of Business; (iii) security interests relating to vendor
tooling arising in the Ordinary Course of Business;
(iv) Encumbrances that have been or may be created by or with
the written consent of Purchaser; (v) mechanic’s,
materialmen’s, laborer’s, workmen’s,
repairmen’s, carrier’s liens and other similar
Encumbrances arising by operation of law or statute in the Ordinary
Course of Business for amounts that are not delinquent or that are
being contested in good faith by appropriate proceedings;
(vi) liens for Taxes, the validity or amount of which is being
contested in good faith by appropriate proceedings, and statutory
liens for current Taxes not yet due, payable or delinquent (or
which may be paid without interest or penalties); (vii) with
respect to the Transferred Real Property that is Owned Real
Property, other than Secured Real Property Encumbrances at and
following the Closing: (a) matters that a current ALTA/ACSM
survey, or a similar cadastral survey in any country other than the
United States, would disclose, the existence of which, individually
or in the aggregate, would not materially and adversely interfere
with the present use of the affected property; (b) rights of
the public, any Governmental Authority and adjoining property
owners in streets and highways abutting or adjacent to the
applicable Owned Real Property; (c) easements, licenses,
rights-of-way, covenants, servitudes, restrictions, encroachments,
site plans, subdivision plans and other Encumbrances of public
record or that would be disclosed by a current title commitment of
the applicable Owned Real Property, which, individually or in the
aggregate, would not materially and adversely interfere with the
present use of the applicable Owned Real Property; and
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(d) such other Encumbrances,
the existence of which, individually or in the aggregate, would not
materially and adversely interfere with or affect the present use
or occupancy of the applicable Owned Real Property;
(viii) with respect to the Transferred Real Property that is
Leased Real Property: (1) matters that a current ALTA/ACSM
survey, or a similar cadastral survey in any country other than the
United States, would disclose; (2) rights of the public, any
Governmental Authority and adjoining property owners in streets and
highways abutting or adjacent to the applicable Leased Real
Property; (3) easements, licenses, rights-of-way, covenants,
servitudes, restrictions, encroachments, site plans, subdivision
plans and other Encumbrances of public record or that would be
disclosed by a current title commitment of the applicable Leased
Real Property or which have otherwise been imposed on such property
by landlords; (ix) in the case of the Transferred Equity
Interests, all restrictions and obligations contained in any
Organizational Document, joint venture agreement, shareholders
agreement, voting agreement and related documents and agreements,
in each case, affecting the Transferred Equity Interests;
(x) except to the extent otherwise agreed to in the
Ratification Agreement entered into by Sellers and GMAC on
June 1, 2009 and approved by the Bankruptcy Court on the date
thereof or any other written agreement between GMAC or any of its
Subsidiaries and any Seller, all Claims (in each case solely to the
extent such Claims constitute Encumbrances) and Encumbrances in
favor of GMAC or any of its Subsidiaries in, upon or with respect
to any property of Sellers or in which Sellers have an interest,
including any of the following: (1) cash, deposits,
certificates of deposit, deposit accounts, escrow funds, surety
bonds, letters of credit and similar agreements and instruments;
(2) owned or leased equipment; (3) owned or leased real
property; (4) motor vehicles, inventory, equipment, statements
of origin, certificates of title, accounts, chattel paper, general
intangibles, documents and instruments of dealers, including
property of dealers in-transit to, surrendered or returned by or
repossessed from dealers or otherwise in any Seller’s
possession or under its control; (5) property securing
obligations of Sellers under derivatives Contracts; (6) rights
or property with respect to which a Claim or Encumbrance in favor
of GMAC or any of its Subsidiaries is disclosed in any filing made
by Parent with the SEC (including any filed exhibit); and
(7) supporting obligations, insurance rights and Claims
against third parties relating to the foregoing; and (xi) all
rights of setoff and/or recoupment that are Encumbrances in favor
of GMAC and/or its Subsidiaries against amounts owed to Sellers
and/or any of their Subsidiaries with respect to any property of
Sellers or in which Sellers have an interest as more fully
described in clause (x) above; it being understood that
nothing in this clause (xi) or preceding clause (x) shall
be deemed to modify, amend or otherwise change any agreement as
between GMAC or any of its Subsidiaries and any Seller.
(f) The following new definition of
“Purchaser Escrow Funds” is hereby included in
Section 1.1 of the Purchase Agreement:
“ Purchaser Escrow
Funds ” has the meaning set forth in
Section 2.2(a)(xx) .
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(g) Section 2.2(a)(xii)
of the Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
(xii) all credits, Advanced
Technology Credits, deferred charges, prepaid expenses, deposits,
advances, warranties, rights, guarantees, surety bonds, letters of
credit, trust arrangements and other similar financial
arrangements, in each case, relating to the Purchased Assets or
Assumed Liabilities, including all warranties, rights and
guarantees (whether express or implied) made by suppliers,
manufacturers, contractors and other third parties under or in
connection with the Purchased Contracts;
(h)
Section 2.2(a)(xviii) of the Purchase Agreement is
hereby amended and restated in its entirety to read as
follows:
(xviii) any rights of any Seller,
Subsidiary of any Seller or Seller Group member to any Tax refunds,
credits or abatements that relate to any Pre-Closing Tax Period or
Straddle Period;
(i) Section 2.2(a)(xix)
of the Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
(xix) any interest in Excluded
Insurance Policies, only to the extent such interest relates to any
Purchased Asset or Assumed Liability; and
(j) A new
Section 2.2(a)(xx) is hereby added to the Purchase
Agreement to read as follows:
(xx) all cash and cash equivalents,
including all marketable securities, held in (1) escrow
pursuant to, or as contemplated by that certain letter agreement
dated as of June 30, 2009, by and between Parent, Citicorp
USA, Inc., as Bank Representative, and Citibank, N.A., as Escrow
Agent or (2) any escrow established in contemplation or for
the purpose of the Closing, that would otherwise constitute a
Purchased Asset pursuant to Section 2.2(a)(i)
(collectively, “ Purchaser Escrow Funds
”);
(k) Section 2.2(b)(i) of
the Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
(i) cash or cash equivalents in an
amount equal to $1,175,000,000 (the “ Excluded Cash
”);
(l) Section 2.2(b)(ii)
of the Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
(ii) all Restricted Cash
exclusively relating to the Excluded Assets or Retained
Liabilities, which for the avoidance of doubt, shall not be deemed
to include Purchaser Escrow Funds;
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(m) Section 2.3(a)(viii)
of the Purchase Agreement is hereby amended and restated in its
entirety to read as follows:
(viii) all Liabilities arising under
any Environmental Law (A) relating to the Transferred Real
Property, other than those Liabilities described in
Section 2.3(b)(iv) , (B) resulting from
Purchaser’s ownership or operation of the Transfe
