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Sample Business Contracts

Asset Purchase Agreement [Amendment No. 2] - General Motors Corp. and Allison Transmission Inc.

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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

 


 
due arising from sales to GM's China Entities or GM Brazil by any other Seller shall be Excluded Assets), (C) any accounts and notes receivable and other such claims for money due to any of GM's China Entities or GM Brazil from any third party or any other Seller arising from the rendering of services or the sale of goods or materials by the Business or other conduct of the Business prior to the Closing and (D) the Special Excluded Accounts Receivable;
          (d) The first sentence of Section 3.3(a) of the Purchase Agreement is hereby amended and restated in its entirety to read as follows:
"On or prior to October 5, 2007 (such period to be extended by one (1) Business Day for each day that the Buyer fails to respond in full to any reasonable information request from GM concerning any of the matters covered by the Preliminary Statement, Final Statement, Closing Date Debt or Closing Date Net Working Capital), GM shall deliver to the Buyer a preliminary statement (the Preliminary Statement") of (i) the Closing Date Debt and (ii) the sum, without duplication, of (A) the aggregate amount of payments actually made by GM to the Buyer pursuant to Section 3.2(b) and (B) the Net Working Capital of the Business, determined as of the close of business on the day immediately preceding the Closing Date and in accordance with the Agreed Accounting Conventions and exclusive of the Apportioned Obligations (such sum, the "Closing Date Net Working Capital").
          (e) The Schedules of the Purchase Agreement are hereby amended to add a new Schedule 1.1J, in the form attached hereto.
     Section 2. Effectiveness of Amendment. Upon the execution and delivery hereof, the Purchase Agreement shall thereupon be deemed to be amended and/or restated as hereinabove set forth as fully and with the same effect as if the amendments and/or restatements made hereby were originally set forth in the Purchase Agreement, and this Amendment and the Purchase Agreement shall henceforth respectively be read, taken and construed as one and the same instrument, but such amendments and/or restatements shall not operate so as to render invalid or improper any action heretofore taken under the Purchase Agreement.
     Section 3. General Provisions.
          (a) Miscellaneous. This Amendment may be executed in one or more counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties hereto and delivered to the other parties hereto. This Amendment may be executed by facsimile signature. The terms of Article XI of the Purchase Agreement shall apply to this Amendment, as applicable.
          (b) Purchase Agreement in Effect. Except as specifically provided for in this Amendment, the Purchase Agreement shall remain unmodified and in full force and effect.
[Remainder of page intentionally left blank.]

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     IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be executed as of the date first written above.
             
 
           
    GENERAL MOTORS CORPORATION    
 
           
 
  By:        
 
           
 
      Name: Walter G. Borst    
 
      Title: Treasurer    
             
 
           
    ALLISON TRANSMISSION, INC.    
 
           
 
  By:        
 
           
 
      Name: Lawrence E. Dewey    
 
      Title: Chief Executive Officer and President    

 


 
Schedule 1.1J
SPECIAL EXCLUDED ACCOUNTS RECEIVABLE
Allison Transmission Indianapolis Plants(Org Code # 00139)
8/06/07 ETBR Trial Balance
             
ETBR A/C #
   
     
G/L
  Subaccount
   
A/C#
  #
   
 
Accounts Receivable Third Party/Outside
           
             
1510
    00000     Notes rec outside-other
1810
    00000     ACCTS REC FINISHED PRODUCT DRAFT
1845
    00000     ACCTS REC ADV TO EMPLOYES ON EXP ACCTS
1870
    00000     ACCTS REC- U.S. GOVT- OTHER TRADE
1880
    00000     ACCTS REC SUNDRY RECEIVABLES
1890
    00000     Accts rec outside
1895
    00000     ACCTS REC OUTSIDE PAYABLES W/DEBIT BAL
2210
    00000     ACCRUED REC OTHER INTEREST
2300
    12140     ALLOW FOR DOUBT ACCTS WRITE-OFF
2300
    12150     ALLOW FOR DOUBT ACCTS ADJ TO OTHER ACC
2300
    12120     ALLOW FOR DOUBT ACCTS PROVISION
2300
    12110     ALLOW FOR DOUBT ACCTS OPENING BALANCE
Accounts Receivable Intracompany (Allison)
           
             
1601
    00701     GM DO BRASIL, LTDA
1601
    005F1     ALLISON TRANSMISSION EUROPE
1601
    00496     GM WAREHOUSING & TRADING CO. LTD
1601
    00414     GM ALLISON JAPAN LTD
1601
    00139     A/R ALLISON TRANSMISSION DIVISION .
2001
    00139     ACCRUED REC ALLISON TRANSMISSION
Accounts Receivable Intercompany (GM)
           
             
1601
    005J3     OPEL POWERTRAIN GMBH
1601
    00935     ISUZU MOTORS LTD. (JAPAN)
1601
    00119     A/R SERVICE PARTS OPERATIONS
1601
    00181     AR Manufacturing headquarters US
1601
    00429     AR GMODC Singapore Intl Automotive
1601
    00431     GMODC-SINGAPORE NORTH AMERICAN RESPONSE
1601
    00475     GM China Investment Co LTD
1601
    00708     GM De Mexico, S. de R.L de C.V
1601
    005F4     OPEL NETHERLANDS
1601
    005J0     GM Powertrain Europe S.r.l. (Italy)
1601
    00305     GM OF CANADA NAO AUTOMOTIVE
1601
    00183     U.S. MANUFACTURING OPERATIONS
1601
    005J4     OPEL HUNGARY POWERTRAIN LTD
1601
    00133     A/R STAFF ACCOUNTING SERVICES
2001
    005J7     GM EUROPE TREASURY COMPANY AB
1401
    005J7     GM EUROPE TREASURY COMPANY AB
Accounts Receivable Other
           
4497
    00000     Outside Accounts Receivable with Credit Balances