2019年資產(chǎn)購買合同及協(xié)議.doc

1、2019 年資產(chǎn)購買合同及協(xié)議FIRST AMENDMENT TO AMENDED AND RESTATED MASTER SALE AND PURCHASE AGREEMENTTHIS FIRST AMENDMENT TO AMENDED AND RESTATED MASTER SALE AND PURCHASEAGREEMENT， dated as of June 30， 2019 （this “Amendment”）， is made by andamong General Motors Corporation， a Delaware corporation（“ Parent ”），Sa

2、turn LLC ， a Delaware limited liability company（“ S LLC”）， SaturnDistribution Corporation， a Delaware corporation（“ S Distribution ”），Chevrolet-Saturn of Harlem， Inc. ， a Delaware corporation（“ Harlem，” andcollectively with Parent， S LLC and S Distribution， “Sellers ，” and each a“Seller ”）， and NGMC

3、O， Inc. ， a Delaware corporation and successor-in-interest to Vehicle Acquisition Holdings LLC， a Delaware limited liabilitycompany （“ Purchaser ”）。WHEREAS， Sellers and Purchaser have entered into that certain Amended andRestated Master Sale and Purchase Agreement， dated as of June 26， 2019（the“Purc

4、hase Agreement ”）； and WHEREAS， the Parties desire to amend thePurchase Agreement as set forth herein. NOW， THEREFORE， in consideration ofthe foregoing and the mutual agreements contained in this Agreement， and forother good and valuable consideration， the value， receipt and sufficiency ofwhich are

5、acknowledged， the Parties hereby agree as follows：Section 1. Capitalized Terms. All capitalized terms used but not definedherein shall have the meanings specified in the Purchase Agreement. Section 2.Amendments to Purchase Agreement. （a） Section 2.3（ a）（ v） of the PurchaseAgreement is hereby amended

6、 and restated in its entirety to read as follows：（v） all Liabilities of Sellers（A） arising in the Ordinary Course ofBusiness during the Bankruptcy Cases through and including the Closing Date，to the extent such Liabilities are administrative expenses ofSellers “ estates pursuant to Section 503（b） of

7、 the Bankruptcy Code and（ B）arising prior to the commencement of the Bankruptcy Cases， to the extentapproved by the Bankruptcy Court for payment by Sellers pursuant to a FinalOrder （ and for the avoidance of doubt， Sellers” Liabilities in clauses（A）and （B） above include all of Sellers“ Liabilities f

8、or personalpropertyTaxes， real estate and/or other ad valorem Taxes， use Taxes ， sales Taxes，franchise Taxes ， income Taxes ， gross receipt Taxes， excise Taxes， MichiganBusiness Taxes and Michigan Single Business Taxes and other Liabilitiesmentioned in the Bankruptcy Court ”s Order- Docket No. 174），

9、 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 anyContract related thereto， to the extent such Contract has been de

10、signated asa Rejectable Executory Contract， and（ 3） Liabilities otherwise assumed inthis Section 2.3（a）；（ b） Section 2.3 （a）（ ix ） of the Purchase Agreement is hereby amendedand restated in its entirety to read as follows：（ix ） all Liabilities to third parties for death， personal injury， orother inj

11、ury to Persons or damage to property caused by motor vehiclesdesigned for operation on public roadways or by the component parts of suchmotor vehicles and， in each case， manufactured， sold or delivered bySellers （collectively， “Product Liabilities”）， which arise directly outof death ， personal injur

12、y or other injury to Persons or damage to propertycaused by accidents or incidents first occurring on or after the Closing Dateand arising from such motor vehicles“ operation or performance（ foravoidance of doubt， Purchaser shall not assume， or become liable to pay，perform or discharge， any Liabilit

13、y arising or contended to arise by reasonof exposure to materials utilized in the assembly or fabrication of motorvehicles manufactured by Sellers and delivered prior to the Closing Date，including asbestos， silicates or fluids， regardless of when such allegedexposure occurs ）；（c） Section 2.3（b）（ xii

14、） of the Purchase Agreement is hereby amendedand restated in its entirety to read as follows：（ xii ） all workers “ compensation Claims with respect to Employeesresiding 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 Mi

15、chiganfails to authorize Purchaser and its Affiliates operating within the State ofMichigan to be a self-insurer for purposes of administering workers”compensation Claims or（ 2） requires Purchaser and its Affiliates operatingwithin the State of Michigan to post collateral， bonds or other forms ofsec

16、urity to secure workers“ compensation Claims，the State of Michigan，（1）（ collectively， ”Retained Workers “ Compensation Claims ”）；（ d） Section 6.6 （d） of the Purchase Agreement is hereby amended andrestated in its entirety to read as follows：（ d） All Assumable Executory Contracts shall be assumed and

17、 assigned toPurchaser on the date（the“Assumption Effective Date”） that is the laterof （ i ） the date designated by the Purchaser and（ ii） the date followingexpiration of the objection deadline if no objection， other than to the CureAmount， has been timely filed or the date of resolution of any objec

18、tionunrelated to Cure Amount， as provided in the Sale Procedures Order； provided，however， that in the case of each（ A） Assumable Executory Contractidentified on Section 6.6（ a）（ i ） of the Sellers“ Disclosure Schedule，（2）Deferred Termination Agreement（ and the related Discontinued Brand DealerAgreem

19、ent or Continuing Brand Dealer Agreement） designated as an AssumableExecutory Contract and（ 3） Participation Agreement（and the relatedContinuing Brand Dealer Agreement） designated as an Assumable ExecutoryContract ， the Assumption Effective Date shall be the Closing Date and（ B）Assumable Executory C

20、ontract identified on Section 6.6（ a）（ ii） of theSellers ” Disclosure Schedule， the Assumption Effective Date shall be a datethat is no later than the date set forth with respect to such ExecutoryContract on Section 6.6（ a）（ ii） of the Sellers“ Disclosure Schedule. Assoon as reasonably practicable f

21、ollowing a determination that an ExecutoryContract shall be designated as an Assumable Executory Contract hereunder，Sellers shall use reasonable best efforts to notify each third party to suchExecutory Contract of their intention to assume and assign such ExecutoryContract in accordance with the ter

22、ms of this Agreement and the SaleProcedures Order. On the Assumption Effective Date for any Assumable ExecutoryContract ， such Assumable Executory Contract shall be deemed to be a PurchasedContract hereunder. If it is determined under the procedures set forth in theSale Procedures Order that Sellers

23、 may not assume and assign to Purchaser anyAssumable Executory Contract， such Executory Contract shall cease to be anAssumable Executory Contract and shall be an Excluded Contract and aRejectable Executory Contract. Except as provided in Section 6.31，notwithstanding anything else to the contrary her

24、ein， any Executory Contractthat has not been specifically designated as an Assumable Executory Contractas of the Executory Contract Designation Deadline applicable to such ExecutoryContract ， including any Deferred Executory Contract， shall automatically bedeemed to be a Rejectable Executory Contrac

25、t and an Excluded Contracthereunder. Sellers shall have the right， but not the obligation， to reject，at any time ， any Rejectable Executory Contract； provided， however ， thatSellers shall not reject any Contract that affects both Owned Real Propertyand Excluded Real Property（ whether designated on E

26、xhibit F or now orhereafter designated on Section 2.2（ b）（ v） of the Sellers？ DisclosureSchedule ）， including any such Executory Contract that involves the provisionof water， water treatment， electric， fuel， gas ， telephone and otherutilities to any facilities located at the Excluded Real Property，

27、whetherdesignated on Exhibit F or now or hereafter designated on Section 2.2（ b）（ v ）of the Sellers？ Disclosure Schedule（the”Shared Executory Contracts “），without the prior written consent of Purchaser. Section 3. Effectiveness ofAmendment. Upon the execution and delivery hereof， the Purchase Agreem

28、entshall thereupon be deemed to be amended and restated as set forth in Section 2，as fully and with the same effect as if such amendments and restatements wereoriginally set forth in the Purchase Agreement. Section 4. Ratification ofPurchase Agreement ； Incorporation by Reference. Except as specific

29、allyprovided for in this Amendment， the Purchase Agreement is hereby confirmedand ratified in all respects and shall be and remain in full force and effectin accordance with its terms. This Amendment is subject to all of the terms，conditions and limitations set forth in the Purchase Agreement， includingArticle IX thereof， which sections are hereby incorporated into thisAmendment， mutatis mutandis， as if they were set forth in their entiretyherein. Section 5. Counterparts. This Amendment may be executed in one or morecounterparts ， each of which shall be deemed an origina