(a) Sellers agree that, until the earlier of the Executory Contract Designation

Deadline and the termination of this Agreement, Purchaser shall be entitled, through its

Representatives or otherwise, to have reasonable access to the executive officers and

Representatives of Sellers and the properties and other facilities, businesses, books,

Contracts, personnel, records and operations (including the Purchased Assets and

Assumed Liabilities) of Sellers and their Subsidiaries, including access to systems, data,

databases for benefit plan administration; provided however, that no such investigation or

examination shall be permitted to the extent that it would, in Sellers’ reasonable

determination, reqmre any Seller, any S-fibsidiary of any Seller or any of their respective

Representatives to disclose information subject to attorney-client privilege or in conflict

with any confidentiality agreement to which any Seller, any Subsidiary of any Seller or

any of their respective Representatives are bound (in which case, to the extent requested

by Purchaser, Sellers will use reasonable best efforts to seek an amendment or

appropriate waiver, or necessary consents, as may be required to avoid such conflict, or

restructure the form of access, so as to permit the access requested); provided further, that

notwithstanding the notice provisions in Section 9.2 hereof, all such requests for access

to the executive officers of Sellers shall be directed, prior to the Closing, to the Chief

Financial Officer of Parent or his designee, and following the Closing, to the Chief

Restructuring Officer of Parent or his or her designee. If any material is withheld

pursuant to this Section 6.1(a), Seller shall inform Purchaser in writing as to the general

nature of what is being withheld and the reason for withholding such material.

(b) Any investigation and examination contemplated by this Section 6.1 shall

be subject to restrictions set forth in Section 6.24 and under applicable Law. Sellers shall

cooperate, and shall cause their Subsidiaries and each of their respective Representatives

to cooperate, with Purchaser and its Representatives in connection with such

investigation and examination, and each of Purchaser and its Representatives shall use

their reasonable best efforts to not materially interfere with the business of Sellers and

their Subsidiaries. Without limiting the generality of the foregoing, subject to Section

6.1(a), such investigation and examination shall include reasonable access to Sellers’

executive officers (and employees of Sellers and their respective Subsidiaries identified

by such executive officers), offices, properties and other facilities, and books, Contracts

and records (including any document retention policies of Sellers) and access to

accountants of Sellers and each of their respective Subsidiaries (provided that Sellers and

each of their respective Subsidiaries, as applicable, shall have the right to be present at

any meeting between any such accountant and Purchaser or Representative of Purchaser,

whether such meeting is in person, telephonic or otherwise) and Sellers and each of their

respective Subsidiaries and their Representatives shall prepare and furnish to Purchaser’s

Representatives such additional financial and operating data and other information as

Purchaser may from time to time reasonably request, subject, in each case, to the

confidentiality restrictions outlined in this Section 6.1. Notwithstanding anything

contained herein to the contrary, Purchaser shall consult with Sellers prior to conducting

any environmental investigations or examinations of any nature, including Phase I and

Phase I! site assessments and any environmental sampling in respect of the Transferred

Real Property.

Section 6. 2 Conduct of Business.

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(a) Except as (i) otherwise expressly contemplated by or permitted under this

Agreement, including the DIP Facility; (ii) disclosed on Section 6.2 of the Sellers’

Disclosure Schedule; (iii) approved by the Bankruptcy Court (or any other court or other

Governmental Authority in connection with any other bankruptcy, insolvency or similar

proceeding filed by or in respect of any Subsidiary of Parent); or (iv) required by or

resulting from any changes to applicable Laws, from and after the date of this Agreement

and until the earlier of the Closing and the termination of this Agreement, Sellers shall

and shall cause each Purchased Subsidiary to (A) conduct their operations in the Ordinary

Course of-Business, ~) not take any action inconsistent with this Agreement or with-the

consummation of the Closing, (C) use reasonable best efforts to preserve in the Ordinary

Course of Business and in all material respects the present relationships of Sellers and

each of their Subsidiaries with their respective customers, suppliers and others having

significant business dealings with them, (D) not take any action to cause any of Sellers’

representations and warranties set forth in ARTICLE IV to be untrue in any material

respect as of any such date when such representation or warranty is made or deemed to be

made and (E) not take any action that would reasonably be expected to materially prevent

or delay the Closing.

(b) Subject to the exceptions contained in clauses (i) through (iv) of Section

6.2(a), each Seller agrees that, from and after the date of this Agreement and until the

earlier of the Closing and the termination of this Agreement, without the prior written

consent of Purchaser (which consent shall not be unreasonably withheld, conditioned or

delayed), such Seller shall not, and shall not permit any of the Key Subsidiaries (and in

the case of clauses (i), (ix), (xiii) or (xvi), shall not permit any Purchased Subsidiary) to:

(i) take any action with respect to which any Seller has granted

approval rights to Sponsor under any Contract, including under the UST Credit

Facilities, without obtaining the prior approval of such action from Sponsor;

(ii) issue, sell, pledge, create an Encumbrance or otherwise dispose of

or authorize the issuance, sale, pledge, Encumbrance or disposition of any Equity

Interests of the Transferred Entities, or grant any options, warrants or other rights

to purchase or obtain (including upon conversion, exchange or exercise) any such

Equity Interests;

(iii) declare, set aside or pay any dividend or make any distribution

(whether in cash, securities or other property or by allocation of additional

Indebtedness to any Seller or any Key Subsidiary without receipt of fair value

with respect to any Equity Interest of Seller or any Key Subsidiary), except for

dividends and distributions among the Purchased Subsidiaries;

(iv) directly or indirectly, purchase, redeem or otherwise acquire any

Equity Interests or any rights to acquire any Equity Interests of any Seller or Key

Subsidiary;

(v) materially change any of its financial accounting policies or

procedures or any of its methods of reporting income, deductions or other

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material items for financial accounting purposes, except as permitted by GAAP, a

SEC rule, regulation or policy or applicable Law, or as modified by Parent as a

result of the filing of the Bankruptcy Cases;

(vi) adopt any amendments to its Organizational Documents or permit

the adoption of any amendment of the Organizational Documents of any Key

Subsidiary or effect a split, combination or reclassification or other adjustment of

Equity Interests of any Purchased Subsidiary or a recapitalization thereof;

(vii) sell, pledge, lease, transfer, assign or dispose of any Purchased

Asset or permit any Purchased Asset to become subject to any Encumbrance,

other than a Permitted Encumbrance, in each case, except in the Ordinary Course

of Business or pursuant to a Contract in existence as of the date hereof (or entered

into in compliance with this Section 6.2);

(viii) (A) incur or assume any Indebtedness for borrowed money or issue

any debt securities, except for Indebtedness for borrowed money incurred by

Purchased Subsidiaries under existing lines of credit (including through the

incurrence of Intercompany Obligations) to fund operations of Purchased

Subsidiaries and Indebtedness for borrowed money incurred by Sellers under the

DIP Facility or (B) assume, guarantee, endorse or otherwise become liable or

responsible (whether directly, contingently or otherwise) for the obligations of

any other Person, except for Indebtedness for borrowed money among any Seller

and Subsidiary or among the Subsidiaries;

(ix) discharge or satisfy any Indebtedness in excess of $100,000,000

other than the discharge or satisfaction of any Indebtedness when due in

accordance with its originally scheduled terms;

(x) other than as is required by the terms of a Parent Employee Benefit

Plan and Policy (in effect on the date hereof and set forth on Section 4.10 of the

Sellers’ Disclosure Schedule), any Assumed Plan (in effect on the date hereof) the

UAW Collective Bargaining Agreement or consistent with the expiration of a

Collective Bargaining Agreement, the Settlement Agreement, the UAW Retiree

Settlement Agreement or as may be required by applicable Law or TARP or

under any enhanced restrictions on executive compensation agreed to by Sellers

and Sponsor, (A) increase the compensation or benefits of any Employee of

Sellers or any Purchased Subsidiary (except for increases in salary or wages in the

Ordinary Course of Business with respect to Employees who are not current or

former directors or officers of Sellers or Seller Key Personnel), (B) grant any

severance or termination pay to any Employee of Sellers or any Purchased

Subsidiary except for severance or termination pay provided under any Parent

Employee Benefit Plan and Policy or as the result of a settlement of any pending

Claim or charge involving a Governmental Authority or litigation with respect to

Employees who are not current or former officers or directors of Sellers or Seller

Key Personnel), (C) establish, adopt, enter into, amend or terminate any Benefit

Plan (including any change to any actuarial or other assumption used to calculate

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 3 of 46
funding obligations with respect to any Benefit Plan or any change to the manner

in which contributions to any Benefit Plan are made or the basis on which such

contributions are determined), except where any such action would reduce

Sellers’ costs or Liabilities pursuant to such plan, (D) grant any awards under any

Benefit Plan (including any equity or equity-based awards), (E) increase or

promise to increase or provide for the funding under any Benefit Plan, (F) forgive

any loans to Employees of Sellers or any Purchased Subsidiary (other than as part

of a settlement of any pending Claim or charge involving a Governmental

Authority or litigation in the O-~-dinary Course of Business or with respect to

obligations of Employees whose employment is terminated by Sellers or a

Purchased Subsidiary in the Ordinary Course of Business, other than Employees

who are current or former officers or directors of Sellers or Seller Key Personnel

or directors of Sellers or a Purchased Subsidiary) or (G) exercise any discretion to

accelerate the time of payment or vesting of any compensation or benefits under

any Benefit Plan;

(xi) modify, amend, terminate or waive any rights under any Affiliate

Contract or Seller Material Contract (except for any dealer sales and service

Contracts or as contemplated by Section 6.7) in any material respect in a manner

that is adverse to any Seller that is a party thereto, other than in the Ordinary

Course of Business;

(xii) enter into any Seller Material Contract other than as contemplated

by Section 6.7;

(xiii) acquire (including by merger, consolidation, combination or

acquisition of Equity Interests or assets) any Person or business or division

thereof(other than acquisitions of portfolio assets and acquisitions in the Ordinary

Course of Business) in a transaction (or series of related transactions) where the

aggregate consideration paid orreceived (including non-cash equity

consideration) exceeds $100,000,000;

(xiv) alter, whether through a complete or partial liquidation,

dissolution, merger, consolidation, restructuring, reorganization or in any other

manner, the legal structure or ownership of any Key Subsidiary, or adopt or

approve a plan with respect to any of the foregoing;

(xv) enter into any Contract that limits or otherwise restricts or that

would reasonably be expected to, after the Closing, restrict or limit in any

material respect (A) Purchaser or any of its Subsidiaries or any successor thereto

or (B) any Affiliates of Purchaser or any successor thereto, in the case of each of

clause (A) or (B), from engaging or competing in any line of business or in any

geographic area;

(xvi) enter into any Contracts for capital expenditures, exceeding

$100,000,000 in the aggregate in connection with any single project or group of

related projects;

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 4 of 46
(xvii) open or reopen any major production facility; and

(xviii) agree, in writing or otherwise, to take any of the foregoing actions.

Section 6. 3 Notices and Consents.

(a) Sellers shall and shall cause each of their Subsidiaries to, and Purchaser

shall use reasonable best efforts to, promptly give all notices to, obtain all material

c~r~g~a-I~/a!s or authorizat~ns from, a r  ̄ ’ ated materials

with, any third parties (including any Governmental Authority) that may be or become

necessary to be given or obtained by Sellers or their Affiliates, or Purchaser, respectively,

in connection with the transactions contemplated by this Agreement.

(b) Each of Purchaser and Parent shall, to the extent permitted by Law,

promptly notify the other Party of any communication it or any of its Affiliates receives

from any Governmental Authority relating to the transactions contemplated by this

Agreement and permit the other Party to review in advance any proposed substantive

communication by such Party to any Governmental Authority. Neither Purchaser nor

Parent shall agree to participate in any material meeting with any Governmental

Authority in respect of any significant filings, investigation (including any settlement of

the investigation), litigation or other inquiry unless it consults with the other Party in

advance and, to the extent permitted by such Governmental Authority, gives the other

Party the opportunity to attend and participate at such meeting; provided, however, in the

event either Party is prohibited by applicable Law or such Governmental Authority from

participating in or attending any such meeting, then the Party who participates in such

meeting shall keep the other Party apprised with respect thereto to the extent permitted by

Law. To the extent permitted by Law, Purchaser and Parent shall coordinate and

cooperate fully with each other in exchanging such information and providing such

assistance as the other Party may reasonably request in connection with the foregoing,

including, to the extent reasonably practicable, providing to the other Party in advance of

submission, drafts of all material filings, submissions, correspondences or other written

communications, providing the other Party with an opportunity to comment on the drafts,

and, where practicable, incorporating such comments, if any, into the final documents.

To the extent permitted by applicable Law, Purchaser and Parent shall provide each other

with copies of all material correspondences, filings or written communications between

them or any of their Representatives, on the one hand, and any Governmental Authority

or members of its staff, on the other hand, with respect to this Agreement or the

transactions contemplated by this Agreement.

(c) None of Purchaser, Parent or their respective Affiliates shall be required to

pay any fees or other payments to any Governmental Authorities in order to obtain any

authorization, consent, Order or approval (other than normal filing fees and

administrative fees that are imposed by Law on Purchaser), and in the event that any fees

in addition to normal filing fees imposed by Law may be required to obtain any such

authorization, consent, Order or approval, such fees shall be for the account of Purchaser.

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 5 of 46
(d) Notwithstanding anything to the contrary contained herein, no Seller shall

be required to make any expenditure or incur any Liability in connection with the

requirements set forth in this Section 6.3.

Section 6. 4 Sale Procedures; Ban~uptcy Court Approval.

(a) This Agreement is subject to approval by the Bankruptcy Court and the

consideration by Sellers and the Bankruptcy Court of higher or better competing Bids

w

to prohibit Sellers and their respective Affiliates and Representatives from soliciting,

considering, negotiating, agreeing to, or otherwise taking action in furtherance of, any

Alternative Transaction but only to the extent that Sellers determine in good faith that

such actions are permitted or required by the Sale Procedures Order.

(b) On or before the first Business Day after the date hereof, Sellers shall file

with the Bankruptcy Court the Bankruptcy Cases under the Bankruptcy Code. As soon

as practicable after the date hereof, but in any event no later than two (2) Business Days

hereafter, Sellers shall file with the Bankruptcy Court a motion (and related notices and

proposed Orders) (the "Sale Procedures and Sale Motion"), in form and substance

reasonably satisfactory to Purchaser and the UAW, seeking entry of (i) the sale

procedures order, in the form attached hereto as Exhibit H (or in such other form that is

reasonably satisfactory to Purchaser and the UAW, the "Sale Procedures Order"), and (ii)

the sale approval order, in the form attached hereto as Exhibit I (or in such other form

that is reasonably satisfactory to Purchaser and the UAW, the "Sale Approval Order").

Sellers shall use reasonable best efforts to obtain entry by the Bankruptcy Court of the

Sale Procedures Order as soon as practicable following the filing of the Sale Procedures

and Sale Motion. The Sale Approval Order shall declare that if there is an Agreed G

Transaction, (A) this Agreement constitutes a "plan" of Parent and Purchaser solely for

purposes of Sections 368 and 354 of the Tax Code and (B) the transactions with respect

to Parent described herein, in combination with the subsequent liquidation of Sellers, are

intended to constitute a reorganization of Parent pursuant to Section 368(a)(1)(G) of the

Tax Code. To the extent reasonably practicable, Sellers shall consult with and provide

Purchaser and the UAW a reasonable opportunity to review and comment on material

motions, applications and supporting papers prepared by Sellers in connection with this

Agreement prior to the filing or delivery thereof in the Bankruptcy Cases.

(c) Purchaser acknowledges that Sellers may receive bids ("Bids") from

prospective purchasers (such prospective purchasers, the "Bidders") with respect to an

Alternative Transaction, as provided in the Sale Procedures Order. All Bids (other than

Bids submitted by Purchaser) shall be submitted with two copies of this Agreement

marked to show changes requested by the Bidder.

(d) If Sellers receive any Bids, Sellers shall have the right to select, and seek

final approval of the Bankruptcy Court for, the highest or otherwise best Bid or Bids from

the Bidders (the "Superior Bid"), which will be determined in accordance with the Sale

Procedure Order.

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 6 of 46
(e) Sellers shall use their reasonable best efforts to (i) cause the Bankruptcy

Court to hold the Sale Hearing as soon as practicable, and in no event later than June 30,

2009; and (ii) obtain entry of the Sale Approval Order on the Bankruptcy Court’s docket

as soon as practicable, and in no event no later than July 10, 2009.

(f) Sellers shall use reasonable best efforts to comply (or obtain an Order

from the Bankruptcy Court waiving compliance) with all requirements under the

Bankruptcy Code and the Federal Rules of Bankruptcy Procedure in connection with

on all required Persons in the Bankruptcy Cases (including all holders of Encumbrances

and parties to the Purchased Contracts), a notice of the Sale Procedures and Sale Motion,

the Sale Hearing and the objection deadline in accordance with Rules 2002, 6004, 6006

and 9014 of the Federal Rules of Bankruptcy Procedure (as modified by Orders of the

Bankruptcy Court), the Sale Procedures Order or other Orders of the Bankruptcy Court,

including General Order M-331 issued by the Bankruptcy Court, and any applicable local

rules of the Bankruptcy Court.

(g) Sellers shall provide Purchaser with a reasonable opportunity to review

and comment on all motions, applications and supporting papers prepared by Sellers in

connection with this Agreement (including forms of Orders and of notices to interested

parties) prior to the filing or delivery thereof in the Bankruptcy Cases. All motions,

applications and supporting papers prepared by Sellers and relating to the approval of this

Agreement (including forms of Orders and of notices to interested parties) to be filed or

delivered on behalf of Sellers shall be reasonably acceptable in form and substance to

Purchaser. Sellers shall provide written notice to Purchaser of all matters that are

required to be served on Sellers’ creditors pursuant to the Bankruptcy Code and the

Federal Rules of Bankruptcy Procedure. In the event the Sale Procedures Order and the

Sale Approval Order is appealed, Sellers shall use their reasonable best efforts to defend

such appeal.

(h) Purchaser agrees, to the extent reasonably requested by Sellers, to

cooperate with and assist Sellers in seeking entry of the Sale Procedures Order and the

Sale Approval Order by the Bankruptcy Court, including attending all hearings on the

Sale Procedures and Sale Motion.

Section 6. 5

Liabilities.

Supplements to Excluded Assets, Assumed Liabilities and Retained

(a) Subject to Section 6.6, Purchaser shall, until the date that is two (2)

Business Days prior to the Sale Hearing, have the right to designate in writing

(i) additional assets it wishes to designate as "Excluded Assets" on Exhibit F or any

subsection of Section 2.2(b) of the Sellers’ Disclosure Schedule, as applicable (and may

remove any asset identified on Section 2.2(a)(vii) of the Sellers’ Disclosure Schedule)

and (ii) additional Liabilities it wishes to designate as "Assumed Liabilities" on any

subsection of Section 2.3(a) of the Sellers’ Disclosure Schedule. Promptly upon

Purchaser’s designation of an additional asset as an "Excluded Asset" or an additional

Liability as an "Assumed Liability," Exhibit F or the appropriate subsection of Section

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2.2(a), Section 2.2(b) or Section 2.3(a) of the Sellers’ Disclosure Schedule, as applicable,

shall be updated to reflect such designation and such additional asset or additional

Liability shall thereafter be deemed to be an Excluded Asset or Assumed Liability, as

applicable, for all purposes under this Agreement.

(b) Until the date that is two (2) Business Days prior to the Sale Hearing,

Purchaser and Sellers may mutually agree and jointly designate in writing any workers’

compensation Claims against any Seller they wish to designate or remove as an

)(xii) of the-Set-ler~’

Disclosure Schedule.

Section 6. 6 Assumption or Rejection of Contracts.

(a) The Assumable Executory Contract Schedule sets forth a list of Executory

Contracts entered into by Sellers that Sellers may assume and assign to Purchaser in

accordance with this Section 6.6(a) (each, an "Assumable Executory Contract"). Any

Contract identified on Section 6.6(a) of the Sellers’ Disclosure Schedule shall

automatically be designated as an Assumed Executory Contract and deemed to be set

forth on the Assumed Executory Contract Schedule. Purchaser may, from the date hereof

until the Executory Contract Designation Deadline, designate in writing any additional

Executory Contract it wishes to designate as an Assumable Executory Contract and

include on the Assumable Executory Contract Schedule, or any Assumable Executory

Contract it no longer wishes to designate as an Assumable Executory Contract and

remove from the Assumable Executory Contract Schedule; provided, however, that (i)

Purchaser may not designate as an Assumable Executory Contract any (A) Rejectable

Executory Contract, unless Sellers have consented to such designation in writing or (B)

Contract that has previously been rejected by Sellers pursuant to Section 365 of the

Bankruptcy Code, and (ii) Purchaser may not remove from the Assumable Executory

Contract Schedule (v) the UAW Collective Bargaining Agreement, (w) any Contract

identified on Section 6.6(a) of the Sellers’ Disclosure Schedule, (x) any Contract that has

been previously assumed by Sellers pursuant to Section 365 of the Bankruptcy Code, (y)

any Deferred Termination Agreement (or the related Discontinued Brand Dealer

Agreement or Continuing Brand Dealer Agreement) or (z) any Participation Agreement

(or the related Continuing Brand Dealer Agreement), in the case of clauses (y) and (z)

above, unless Sellers have consented to such removal in writing (such consent not to be

unreasonably withheld, conditioned or delayed). For each Assumable Executory

Contract, the Purchaser must determine, prior to the Executory Contract Designation

Deadline, the date on which it seeks to have the assumption and assignment become

effective, which date may be the Closing Date or a later date (but not an earlier date).

The term "Executory Contract Designation Deadline" shall mean the date that is thirty

(30) calendar days following the Closing Date, or if such date is not a Business Day, the

next Business Day, or if mutually agreed upon by the Parties, any later date up to and

including the Business Day immediately prior to the date of the confirmation hearing for

Sellers’ plan of liquidation or reorganization.

(b) Sellers may, from the date hereof until the Executory Contract

Designation Deadline, provide written notice (a "Notice of Intent to Reject") to Purchaser

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of Sellers’ intent to designate any Executory Contract (that has not been designated as an

Assumable Executory Contract or a Deferred Executory Contract) as a Rejectable

Executory Contract (each a "Proposed Rejectable Executory Contract"). Following

receipt of a Notice of Intent to Reject, Purchaser shall as soon as reasonably practicable,

but in no event later than fifteen (15) calendar days following receipt of a Notice of Intent

to Reject (the "_Qption Period"), provide Sellers written notice of Purchaser’s designation

of one or more Proposed Rejectable Executory Contracts identified in such Notice of

Intent to Reject as an Assumable Executory Contract; ~, however, if the Notice of

Intent to Reject is received-by Purchaser at or after Closing and prior to the Executory

Contract Designation Deadline, Purchaser may, in lieu of designating such Proposed

Rejectable Executory Contract as an Assumable Executory Contract, designate such

Proposed Rejectable Executory Contract as a Contract subject to subsequent designation

by Purchaser as an Assumable Executory Contract pursuant to Section 6.6(a) (each a

"Deferred Executory Contract"). Each Proposed Rejectable Executory Contract that has

not been designated by Purchaser as an Assumable Executory Contract or Deferred

Executory Contract during the applicable Option Period shall automatically, without

further action by Sellers, be designated as an Executory Contract that Sellers may, but are

not obligated to, reject pursuant Section 365 of the Bankruptcy Code (a "R__~jectable

Executory Contract").

(c) All Assumable Executory Contracts shall be assumed and assigned to

Purchaser on the date (the "Assumption Effective Date") that is the later of (i) the date

designated by the Purchaser and (ii) the date following expiration of the objection

deadline if no objection, other than to the Cure Amount, has been timely filed or the date

of resolution of any objection unrelated to Cure Amount, as provided in the Sale

Procedures Order; ~, however, that in the case of all Assumable Executory

Contracts identified on Section 6.6(a) of the Sellers’ Disclosure Schedule, the

Assumption Effective Date shall be the Closing Date. On the Assumption Effective Date

for any Assumable Executory Contract, such Assumable Executory Contract shall be

deemed to be a Purchased Contract hereunder. If it is determined under the procedures

set forth in the Sale Procedures Order that Sellers may not assume and assign to

Purchaser any Assumable Executory Contract, such Executory Contract shall cease to be

an Assumable Executory Contract and shall be an Excluded Contract and a Rejectable

Executory Contract. Notwithstanding anything else to the contrary herein, any Executory

Contract that has not been specifically designated as an Assumable Executory Contract as

of the Executory Contract Designation Deadline, including any Deferred Executory

Contract, shall automatically be deemed to be a Rejectable Executory Contract and an

Excluded Contract hereunder. Sellers shall have the right, but not the obligation, to

reject, at any time following the date hereof, any Rejectable Executory Contract;

~, .however, that Sellers shall not reject any Contract that affects both Owned Real

Property and Excluded Real Property (whether designated on Exhibit F or now or

hereafter designated on Section 2.2(b)(v) of the Sellers’ Disclosure Schedule), including

any such Executory Contract that involves the provision of water, water treatment,

electric, fuel, gas, telephone and other utilities to any facilities located at the Excluded

Real Property, whether designated on ExhiM~ F or now or hereafter designated on

Section 2.2(b)(v) of the Sellers’ Disclosure Schedule (the "Shared Executor5,

Contracts"), without the prior written consent of Purchaser.

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(d) At and after Closing and until the Executory Contract Designation

Deadline, Purchaser shall be obligated to pay or cause to be paid all amounts due in

respect of Sellers’ performance (i) under each Deferred Executory Contract for so long as

such Contract remains a Deferred Executory Contract and (ii) under each Assumable

Executory Contract as long as such Contract remains an Assumable Executory Contract.

At and after the Closing and until such time as any Shared Executory Contract is either

(y) rejected by Sellers pursuant to the provision set forth in this Section 6,6 or (z)

assumed by Sellers and subsequently modified with Purchaser’s consent so as to no

longer be applicable to the aff~-Ud-Owned Real Property, ~1 reimburse

Sellers as and when requested by Sellers for Purchasers’ and its Affiliates’ allocable

share of all costs and expenses incurred under such Shared Executory Contract.

(e) Sellers and Purchaser shall comply with the procedures set forth in the

Sale Procedures Order with respect to the assumption and assignment or rejection of any

Executory Contract pursuant to, and in accordance with, this Section 6.6.

(f) No designation of any Executory Contract for assumption and assignment

or rejection in accordance with this Section 6.6 shall give rise to any right to any

adjustment to the Purchase Price.

(g) Without limiting the foregoing, if, following the Executory Contract

Designation Deadline, Sellers or Purchaser identify an Executory Contract that has not

previously been identified as a Contract for assumption and assignment, and such

Contract is important to Purchaser’s ability to use or hold the Purchased Assets or operate

its businesses in connection therewith, Sellers will assume and assign such Contract and

assign it to Purchaser without any adjustment to the Purchase Price; provided that

Purchaser consents and agrees at such time to (i) assume such Executory Contract and (ii)

and discharge all Cure Amounts in respect hereof.

Section 6. 7 Deferred Termination Agreements; Participation Agreements.

(a) Sellers shall, and shall cause their Affiliates to, use reasonable best efforts

to enter into short-term deferred voluntary termination agreements in substantially the

form attached hereto as Exhibit J-1 (in respect of all Saturn Discontinued Brand Dealer

Agreements), Exhibit 3-2 (in respect of all Hummer Discontinued Brand Dealer

Agreements) and Exhibit &3 (in respect of all non-Saturn and Hummer Discontinued

Brand Dealer Agreements and all Excluded Continuing Brand Dealer Agreements) that

will, when executed by the relevant dealer counterparty thereto, modify the respective

Discontinued Brand Dealer Agreements and selected Continuing Brand Dealer

Agreements (collectively, the "Deferred Termination Agreements"). For the avoidance

of doubt, (i) each Deferred Termination Agreement, and the related Discontinued Brand

Dealer Agreement or Continuing Brand Dealer Agreement modified thereby, will

automatically be an Assumable Executory Contract hereunder upon valid execution of

such Deferred Termination Agreement by the parties thereto and (ii) all Discontinued

Brand Dealer Agreements that are not modified by a Deferred Termination Agreement,

and all Continuing Brand Dealer Agreements that are not modified by either a Deferred

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Termination Agreement or a Participation Agreement, will automatically be a Rejectable

Executory Contract hereunder.

(b) Sellers shall, and shall cause their Affiliates to, use reasonable best efforts

to enter into agreements, substantially in the form attached hereto as Exhibit K that will

modify all Continuing Brand Dealer Agreements (other than the Continuing Brand

Dealer Agreements that are proposed to be’modified by Deferred Termination

Agreements) (the "Participation Agreements"). For the avoidance of doubt, (i) all

automatically be Assumable Executory Contracts hereunder upon valid execution of such

Participation Agreement and (ii) all Continuing Brand Dealer Agreements that are

proposed to be modified by a Participation Agreement and are not modified by a

Participation Agreement will be offered Deferred Termination Agreements pursuant to

Section 6.7(a).

Section 6. 8 [Reserved]

Section 6. 9 Purchaser Assumed Debt; Wind Down Facility.

(a) Purchaser shall use reasonable best efforts to agree with Sponsor on the

terms of a restructuring of the Purchaser Assumed Debt so as to be assumed by Purchaser

immediately prior to the Closing. Purchaser shall use reasonable best efforts to enter into

definitive financing agreements with respect to the Purchaser Assumed Debt so that such

agreements are in effect as promptly as practicable but in any event no later than the

Closing.

(b) Sellers shall use reasonable best efforts to agree with Sponsor on the terms

of a restructuring of $950,000,000 of Indebtedness accrued under the DIP Facility (as

restructured, the "Wind Down Facilit,d") to provide for such Wind Down Facility to be

non-recourse, to accrue payment-in-kind interest at LIBOR plus 300 basis points, to be

secured by all assets of Sellers (other than the Parent Shares, Parent Warrants and any

securities received in respect thereof), and to be subject to mandatory repayment from the

proceeds of asset sales (other than the sale of Parent Shares, Parent Warrants and any

securities received in respect thereof). Sellers shall use reasonable best efforts to enter

into definitive financing agreements with respect to the Wind Down Facility so that such

agreements are in effect as promptly as practicable but in any event no later than the

Closing.

Section 6.10 Litigation and Other Assistance. In the event and for so long as

any Party is actively contesting or defending against any action, investigation, charge, Claim or

demand by a third party in connection with any transaction contemplated by this Agreement, the

other Parties shall reasonably cooperate with the contesting or defending Party and its counsel in

such contest or defense, make available its personnel and provide such testimony and access to

its books, records and other materials as shall be reasonably necessary in connection with the

contest or defense, all at the sole cost and expense of the contesting or defending Party; ~,

however, that no Party shall be required to provide the contesting or defending party with any

access to its books, records or materials if such access would violate the attorney-client privilege

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or conflict with any confidentiality obligations to which the non-contesting or defending Party is

subject. In addition, the Parties agree to cooperate in connection with the making or filing of

claims, requests for information, document retrieval and other activities in connection with any

and all Claims made under insurance policies specified on Section 2.2(b)(xiii) of the Sellers’

Disclosure Schedule to the extent any such Claim relates to any Purchased Asset or Assumed

Liability. For the avoidance of doubt, this Section 6.10 shall not apply to any action,

investigation, charge, Claim or demand by any of Sellers or their Affiliates, on the one hand, or

Purchaser or any of its Affiliates, on the other hand.

Section 6.11 Further Assurances.

(a) Upon the terms and subject to the conditions set forth in this Agreement,

each of the Parties shall use their reasonable best efforts to take, or cause to be taken, all

actions, and to do, or cause to be done, all actions necessary, proper or advisable to

consummate and make effective as promptly as practicable, the transactions

contemplated by this Agreement in accordance with the terms hereof and to bring about

the satisfaction of all other conditions to the other Parties’ obligations hereunder;

provided, however, that nothing in this Agreement shall obligate Sellers or Purchaser, or

any of their respective Affiliates, to waive or modify any of the terms and conditions of

this Agreement or any documents contemplated hereby, except as expressly set forth

herein. The Parties acknowledge that Sponsor’s acquisition of interest is a sovereign act

and that no filings should be made by Sponsor or Purchaser in non-United States

jurisdictions.

(b) The Parties shall negotiate the forms, terms and conditions of the

Ancillary Agreements, to the extent the forms thereof are not attached to this Agreement,

on the basis of the respective term sheets attached to this Agreement, in good faith, with

such Ancillary Agreements to set forth terms on an Arms-Length Basis and incorporate

usual and customary provisions for similar agreements.

(c) Promptly following the date hereof, and umil the Closing, Sellers shall

designate a team of appropriate personnel (each such team, a "Transition Team") to assist

Purchaser and its Representatives in connection with Purchaser’s efforts to complete

prior to the Closing the activities described below. Sellers shall use their reasonable best

efforts to cause the Transition Team to (A) meet with Purchaser and its Representatives

on a regular basis at such times as Purchaser may reasonably request and (B) take such

action and provide such information, including background and summary information, as

Purchaser and its Representatives may reasonably request in connection with the

following activities:

(i) evaluation and identification of all Contracts that Purchaser may

elect to designate as Purchased Contracts or Excluded Contracts, consistent with

its rights under this Agreement;

(ii) evaluation and identification of all assets and entities that

Purchaser may elect to designate as Purchased Assets or Excluded Assets,

consistent with its rights under this Agreement;

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(iii) maintaining and obtaining necessary governmental consents,

permits, authorizations, licenses and financial assurance for operation of the

business by Purchaser following the Closing;

(iv) obtaining necessary third party consents for operation of the

business by Purchaser following the Closing;

(v) implementing the optimal structure for Purchaser and its

following the Closing;

(vi) implementing the assumption of all Assumed Plans and otherwise

satisfying the obligations of Purchaser as provided in Section 6.17 with respect to

Employment Related Obligations; and

(vii) such other transition matters as Purchaser may reasonably

determine are necessary for Purchaser to fulfill its obligations and exercise its

rights under this Agreement.

Section 6.12 Notifications.

(a) Sellers shall give written notice to Purchaser as soon as practicable upon

becoming aware of any event, circumstance, condition, fact, effect or other matter that

resulted in, or that would reasonably be likely to result in (i) any representation or

warranty set forth in ARTICLE IV being or becoming untrue or inaccurate in any

material respect as of any date on or after the date hereof (as if then made, except to the

extent such representation or warranty is expressly made only as of a specific date, in

which case, as of such date), (ii) the failure by Sellers to comply with or satisfy in any

material respect any covenant, condition or agreement to be complied with or satisfied by

Sellers under this Agreement or (iii) a condition to the Closing set forth in Section 7.1 or

Section 7.2 becoming incapable of being satisfied; provided, however, that no such

notification shall affect or cure a breach of any of Sellers’ representations or warranties, a

failure to perform any of the covenants or agreements of Sellers or a failure to have

satisfied the conditions to the obligations of Sellers under this Agreement. Such notice

shall be in form of a certificate signed by an executive officer of Parent setting forth the

details of such event and the action which Parent proposes to take with respect thereto.

(b) Purchaser shall give written notice to Sellers as soon as practicable upon

becoming aware of any event, circumstance, condition, fact, effect or other matter that

resulted in, or that would reasonably be likely to result in (i) any representation or

warranty set forth in ARTICLE V being or becoming untrue or inaccurate in any

material respect with respect to Purchaser as of any date on or after the date hereof (as if

then made, except to the extent such representation or warranty is expressly made only as

of a specific date, in which case as of such date), (ii) the failure by Purchaser to comply

with or satisfy in any material respect any covenant, condition or agreement to be

complied with or satisfied by Purchaser under this Agreement or (iii) a condition to the

Closing set forth in Section 7.1 or S;ecfion 7.3 becoming incapable of being satisfied;

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~, however, that no such notification shall affect or cure a breach of any of

Purchaser’s representations or warranties, a failure to perform any of the covenants or

agreements of Purchaser or a failure to have satisfied the conditions to the obligations of

Purchaser under this Agreement. Such notice shall be in a form of a certificate signed by

an executive officer of Purchaser setting forth the details of such event and the action

which Purchaser proposes to take with respect thereto.

Section 6.13 Actions by Affiliates. Each of Purchaser and Sellers shall cause

th~i~

each of their respective other Affiliates (other than Sponsor in the case of Purchaser) takes all

actions reasonably necessary to be taken by such Affiliate in order to fulfill the obligations of

Purchaser or Sellers, as the case may be, under this Agreement.

Section 6.14 Compliance Remediation. Except with respect to the Excluded

Assets or Retained Liabilities, prior to the Closing, Sellers shall use reasonable best efforts to,

and shall use reasonable best efforts to cause their Subsidiaries to use their reasonable best

efforts to, cure in all material respects any instances of non-compliance with Laws or Orders,

failures to possess or maintain Permits or defaults under Permits.

Section 6.15 Product Certification, Recall and Warranty Claims.

(a) From and after the Closing, Purchaser shall comply with the certification,

reporting and recall requirements of the National Traffic and Motor Vehicle Safety Act,

the Transportation Recall Enhancement, Accountability and Documentation Act, the

Clean Air Act, the California Health and Safety Code and similar Laws, in each case, to

the extent applicable in respect of vehicles and vehicle parts manufactured or distributed

by Seller.

(b) From and after the Closing, Purchaser shall be responsible for the

administration, management and payment of all Liabilities arising under (i) express

written emission and limited new vehicle warranties, certified used vehicle warranties

and pre-owned vehicle warranties delivered in connection with the sale of new, certified

used or pre-owned vehicles manufactured or sold by Sellers or Purchaser prior to or after

the Closing and (ii) express written emission and limited warranties with respect to new

or remanufactured motor vehicle parts and equipment (including service parts,

accessories, engines and transmissions), manufactured or sold by Sellers or Purchaser.

(c) For the avoidance of doubt, Liabilities of the Transferred Entities arising

from or in connection with products manufactured or sold by the Transferred Entities

remain the responsibility of the Transferred Entities and shall be neither Assumed

Liabilities nor Retained Liabilities for the purposes of this Agreement.

Section 6.16 Tax Matters; Cooperation.

(a) Prior to the Closing Date, Sellers shall prepare and timely file (or cause to

be prepared and timely filed) all Tax Returns required to be filed prior to such date

(taking into account any extension of time to file granted or obtained) that relate to

Sellers, the Purchased Subsidiaries and the Purchased Assets in a manner consistent with

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past practices (except as otherwise required by Law), and shall provide Purchaser prompt

opportunity for review and comment and shall obtain Purchaser’s written approval prior

to filing any such Tax Returns. After the Closing Date, at Purchaser’s election, Purchaser

shall prepare, and the applicable Seller, Seller Subsidiary or Seller Group member shall

timely file, any Tax Return relating to any Seller, Seller Subsidiary or Seller Group

member for any Pre-Closing Tax Period or Straddle Period due after the Closing Date or

other taxable period of any entity that includes the Closing Date, subject to the right of

the applicable Seller to review any such material Tax Return. Purchaser shall prepare

and file all other Tax Returns required to l~e filed after the Closing Date m respect of the

Purchased Assets. Sellers shall prepare and file all other Tax Returns relating to the PostClosing Tax Period of Sellers, subject to the prior review and approval of Purchaser,

which approval may be withheld, conditioned or delayed with good reason. No Seller or

Seller Group member shall be entitled to any payment or other consideration in addition

to the Purchase Price with respect to the acquisition or use of any Tax items or attributes

by Purchaser, any Purchased Subsidiary or Affiliates thereof. At Purchaser’s request, any

Seller or Seller Group member shall designate Purchaser or any of its Affiliates as a

substitute agent for the Seller Group for Tax purposes. Purchaser shall be entitled to

make all determinations, including the right to make or cause to be made any elections

with respect to Taxes and Tax Returns of Sellers, Seller Subsidiaries, Seller Groups and

Seller Group members with respect to Pre-Closing Tax Periods and Straddle Periods and

with respect to the Tax consequences of the Relevant Transactions (including the

treatment of such transactions as an Agreed G Transaction) and the other transactions

contemplated by this Agreement, including (i) the "date of distribution or transfer" for

purposes of Section 381(b) of the Tax Code, if applicable; (ii) the relevant Tax periods

and members of the Seller Group and the Purchaser and its Affiliates; (iii) whether the

Purchaser and/or any of its Affiliates shall be treated as a continuation of Seller Group;

and (iv) any other determinations required under Section 381 of the Tax Code. Purchaser

shall have the sole right to represent the interests, as applicable, of any Seller, Seller

Group member or Purchased Subsidiary in any Tax proceeding in connection with any

Tax Liability or any Tax item for any Pre-Closing Tax Period, Straddle Period or other

Tax period affecting any such earlier Tax period.

(b) All Taxes required to be paid by any Seller or Seller Group member for

any Pre-Closing Tax Period or any Straddle Period shall be timely paid. To the extent a

Party hereto is liable for a Tax pursuant to this Agreement and such Tax is paid or

payable by another Party or such other Party’s Affiliates, the Party liable for such Tax

shall make payment in the amount of such Tax to the other Party no later than three (3)

days prior to the due date for payment of such Tax, unless a later time for payment is

agreed to in writing by such other Party. To the extent that any Seller or Seller Group

member receives or realizes the benefit of any Tax refund, abatement or credit that is a

Purchased Asset, such Seller or Seller Group member receiving the benefit shall transfer

an amount equal to such refund, abatement or credit to Purchaser within fourteen (14)

days of receipt or realization of the benefit.

(c) Purchaser and Sellers shall provide each other with such assistance and

non-privileged information relating to the Purchased Assets as may reasonably be

requested in connection with any Tax matter, including the matters contemplated by this

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Section 6.16, the preparation of any Tax Return or the performance of any audit,

examination or other proceeding by any Taxing Authority, whether conducted in a

judicial or administrative forum. Purchaser and Sellers shall retain and provide to each

other all non-privileged records and other information reasonably requested by the other

and that may be relevant to any such Tax Return, audit, examination or other proceeding.

(d) After the Closing, at Purchaser’s election, Purchaser shall exercise

exclusive control over the handling, disposition and settlement of any inquiry,

(oi- that

portion of any inquiry, examination or proceeding by a Governmental Authority) with

respect to Sellers, any Subsidiary of Sellers or any Seller Group, provided that to the

extent any such inquiry, examination or proceeding by a Governmental Authority could

materially affect the Taxes due or payable by Sellers, Purchaser shall control the

handling, disposition and settlement thereof, subject to reasonable consultation rights of

Sellers. Each Party shall notify the other Party (or Parties) in writing promptly upon

learning of any such inquiry, examination or proceeding. The Parties and their Affiliates

shall cooperate with each other in any such inquiry, examination or proceeding as a Party

may reasonably request. Neither Parent nor any of its Affiliates shall extend, without

Purchaser’s prior written consent, the statute of limitations for any Tax for which

Purchaser or any of its Affiliates may be liable.

(e) Notwithstanding anything contained herein, Purchaser shall prepare and

Sellers shall timely file all Tax Returns required to be filed in connection with the

payment of Transfer Taxes.

(f) From the date of this Agreement to and including the Closing Date, except

to the extent relating solely to an Excluded Asset or Retained Liability, no Seller, Seller

Group member or Purchased Subsidiary shall, without the prior written consent of

Purchaser (which consent shall not be unreasonably withheld, conditioned or delayed,

and shall not be withheld if not resulting in any Tax impact on Purchaser or any

Purchased Asset), (i) make, change, or terminate any material election with respect to

Taxes (including elections with respect to the use of Tax accounting methods) of any

Seller, Seller Group member or Purchased Subsidiary or any material joint venture to

which any Seller or Purchased Subsidiary is a party, (ii) settle or compromise any Claim

or assessment for Taxes (including refunds) that could be reasonably expected to result in

any adverse consequence on Purchaser or any Purchased Asset following the Closing

Date, (iii) agree to an extension of the statute of limitations with respect to the assessment

or collection of the Taxes of any Seller, Seller Group member or Purchased Subsidiary or

any material joint venture of which any Seller or Purchased Subsidiary is a party or (iv)

make or surrender any Claim for a refund of a material amount of the Taxes of any of

Sellers or Purchased Subsidiaries or file an amended Tax Return with respect to a

material amount of Taxes.

(g)

(i) Purchaser shall treat the transactions with respect to Parent

described herein, in combination with the subsequent liquidation of Sellers (such

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 16 of 46
transactions, collectively, the "Relevant Transactions"), as a reorganization

pursuant to Section 368(a)(1)(G) of the Tax Code with any actual or deemed

distribution by Parent qualifying solely under Sections 354 and 356 of the Tax

Code but not under Section 355 of the Tax Code (a "G Transaction") if (x) the

IRS issues a private letter ruling ("PLR") or executes a closing agreement ("CA"),

in each case reasonably acceptable to Purchaser, confirming that the Relevant

Transactions shall qualify as a G Transaction for U.S. federal income Tax

purposes, or (y) Purchaser determines to treat the Relevant Transactions as so

qualifying (clause (x) or (y), an "A_greed G Transaction"). In connection with the

foregoing, Sellers shall use their reasonable best efforts to obtain a PLR or

execute a CA with respect to the Relevant Transactions at least seven (7) days

prior to the Closing Date. At least three (3) days prior to the Closing Date,

Purchaser shall advise Parent in writing as to whether Purchaser has made a

determination regarding the treatment of the Relevant Transactions for U.S.

federal income Tax purposes and, if applicable, the outcome of any such

determination.

(ii) On or prior to the Closing Date, Sellers shall deliver to Purchaser

all information in the possession of Sellers and their Affiliates that is reasonably

related to the determination of whether the Relevant Transactions constitute an

Agreed G Transaction ("Relevant Information"), and, after the Closing, Sellers

shall promptly provide to Purchaser any newly produced or obtained Relevant

Information. For the avoidance of doubt, the Parties shall cooperate in taking any

actions and providing any information that Purchaser determines is necessary or

appropriate in furtherance of the intended U.S. federal income Tax treatment of

the Relevant Transactions and the other transactions contemplated by this

Agreement.

(iii) If Purchaser has not determined as of the Closing Date whether to

treat the Relevant Transactions as an Agreed G Transaction, Purchaser shall make

such determination in accordance with this Section 6.16 prior to the due date

(including validly obtained extensions) for filing the corporate income Tax Return

for Parent’s U.S. affiliated group (as defined in Section 1504 of the Tax Code) for

the taxable year in which the Closing Date occurs, and shall convey such decision

in writing to Parent, which decision shall be binding on Parent.

(iv) If the Relevant Transactions constitute an Agreed G Transaction

under this Section 6.16: (A) Sellers shall use their reasonable best efforts, and

Purchaser shall use reasonable best efforts to assist Sellers, to effectuate such

treatment and the Parties shall not take any action or position inconsistent with, or

fail to take any necessary action in furtherance of, such treatment (subject to

Section 6.16(g)(vi)); (B) the Parties agree that this Agreement shall constitute a

"plan" of Parent and Purchaser for purposes of Sections 368 and 354 of the Tax

Code; (C) the board of directors of Parent and Purchaser shall, by resolution,

approve the execution of this Agreement and expressly recognize its treatment as

a "plan" of Parent and Purchaser for purposes of Sections 368 and 354 of the Tax

Code, and the treatment of the Relevant Transactions as a G Transaction for

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 17 of 46
federal income Tax purposes; (D) Sellers shall provide Purchaser with a statement

setting forth the adjusted Tax basis of the Purchased Assets and the amount of net

operating losses and other material Tax attributes of Sellers and any Purchased

Subsidiary that are available as of the Closing Date and after the close of any

taxable year of any Seller or Seller Group member that impacts the numbers

previously provided, all based on the best information available, but with no

Liability for any errors or omissions in information; and (E) Sellers shall provide

Purchaser with an estimate of the cancellation of Indebtedness income that Sellers

and any Seller Group member anticipate realizing for the taxable year tlaat

includes the Closing Date, and shall provide revised numbers after the close of

any taxable year of any Seller or Seller Group member that impacts this number.

(v) If the Relevant Transactions do not constitute an Agreed G

Transaction under this Section 6.16, the Parties hereby agree, and Sellers hereby

consent, to treat the sale of the Purchased Assets by Parent as a taxable asset sale

for all Tax purposes, to make any elections pursuant to Section 338 of the Tax

Code requested by Purchaser, and to report consistently herewith for purposes of

Section 3.3. In addition, the Parties hereby agree, and Sellers hereby consent, to

treat the sales of the Purchased Assets by S Distribution and Harlem as taxable

asset sales for all Tax purposes, to make any elections pursuant to Section 338 of

the Tax Code requested by Purchaser, and to report consistently herewith for

purposes of Section 3.3.

(vi) No Party shall take any position with respect to the Relevant

Transactions that is inconsistent with the position determined in accordance with

this Section 6.16, unless, and then only to the extent, otherwise required to do so

by a Final Determination.

(vii) Each Seller shall liquidate, as determined for U.S. federal income

Tax purposes and to the satisfaction of Purchaser, no later than December 31,

2011, and each such liquidation may include a distribution of assets to a

"liquidating trust" within the meaning of Treas. Reg. § 301.7701-4, the terms of

which shall be satisfactory to Purchaser.

(viii) Effective no later than the Closing Date, Purchaser shall be treated

as a corporation for federal income Tax purposes.

Section 6.17 Employees," Benefit Plans; Labor Matters.

(a) Transferred Employees. Effective as of the Closing Date, Purchaser or

one of its Affiliates shall make an offer of employment to each Applicable Employee.

Notwithstanding anything, herein to the contrary and except as provided in an individual

employment Contract with any Applicable Employee or as required by the terms of an

Assumed Plan, offers of employment to Applicable Employees whose employment rights

are subject to the UAW Collective Bargaining Agreement as of the Closing Date, shall be

made in accordance with the applicable terms and conditions of the UAW Collective

Bargaining Agreement and Purchaser’s obligations under the Labor Management

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Relations Act of 1974, as amended. Each offer of employment to an Applicable

Employee who is not covered by the UAW Collective Bargaining Agreement shall

provide, until at least the first anniversary of the Closing Date, for (i) base salary or

hourly wage rates initially at least equal to such Applicable Employee’s base salary or

hourly wage rate in effect as of immediately prior to the Closing Date and (ii) employee

pension and welfare benefits, Contracts and arrangements that are not less favorable in

the aggregate than those listed on Section 4.10 of the Sellers’ Disclosure Schedule, but

not including any Retained Plan, equity or equity-based compensation plans or any

Benefir-Plgg-t-h-gt-does not comply in all respects wit]~-RP. For the avoidance of doubt,

each Applicable Employee on layoff status, leave status or with recall rights as of the

Closing Date, shall continue in such status and/or retain such rights after Closing in the

Ordinary Course of Business. Each Applicable Employee who accepts employment with

Purchaser or one of its Affiliates and commences working for Purchaser or one of its

Affiliates shall become a "Transferred Employee." To the extent such offer of

employment by Purchaser or its Affiliates is not accepted, Sellers shall, as soon as

practicable following the Closing Date, terminate the employment of all such Applicable

Employees. Nothing in this Section 6.17(a) shall prohibit Purchaser or any of its

Affiliates from terminating the employment of any Transferred Employee after the

Closing Date, subject to the terms and conditions of the UAW Collective Bargaining

Agreement. It is understood that the intent of this Section 6.17(a) is to provide a

seamless transition from Sellers to Purchaser of any Applicable Employee subject to the

UAW Collective Bargaining Agreement. Except for Applicable Employees with nonstandard individual agreements providing for severance benefits, until at least the first

anniversary of the Closing Date, Purchaser further agrees and acknowledges that it shall

provide to each Transferred Employee who is not covered by the UAW Collective

Bargaining Agreement and whose employment is involuntarily terminated by Purchaser

or its Affiliates on or prior to the first anniversary of the Closing Date, severance benefits

that are not less favorable than the severance benefits such Transferred Employee would

have received under the applicable Benefit Plans listed on Section 4.10 of the Sellers’

Disclosure Schedule. Purchaser or one of its Affiliates shall take all actions necessary

such that Transferred Employees shall be credited for their actual and credited service

with Sellers and each of their respective Affiliates, for purposes of eligibility, vesting and

benefit accrual (except in the case of a defined benefit pension plan sponsored by

Purchaser or any of its Affiliates in which Transferred Employees may commence

participation after the Closing that is not an Assumed Plan), in any employee benefit

plans (excluding equity compensation plans or programs) covering Transferred

Employees after the Closing to the same extent as such Transferred Employee was

entitled as of immediately prior to the Closing Date to credit for such service under any

similar employee benefit plans, programs or arrangements of any of Sellers or any

Affiliate of Sellers; ~, however, that such crediting of service shall not operate to

duplicate any benefit to any such Transferred Employee or the funding for any such

benefit. Such benefits shall not be subject to any exclusion for any pre-existing conditions

to the extent such conditions were satisfied by such Transferred Employees under a

Parent Employee Benefit Plan as of the Closing Date, and credit shall be provided for any

deductible or out-of-pocket amounts paid by such Transferred Employee during the plan

year in which the Closing Date occurs.

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 19 of 46
(b) Employees of Purchased Subsidiaries. As of the Closing Date, those

employees of Purchased Subsidiaries who participate in the Assumed Plans, may, subject

to the applicable Collective Bargaining Agreement, for all purposes continue to

participate in such Assumed Plans, in accordance with their terms in effect from time to

time. For the avoidance of any doubt, Purchaser shall continue the employment of any

current Employee of any Purchased Subsidiary covered by the UAW Collective

Bargaining Agreement on the terms and conditions of the UAW Collective Bargaining

Agreement in effect immediately prior to the Closing Date, subject to its terms; ~,

however, that nothing in this Agreement sha--Wbe construed to terminate the coverage of

any UAW-represented Employee in an Assumed Plan if such Employee was a participant

in the Assumed Plan immediately prior to the Closing Date. Further provided, that

nothing in this Agreement shall create a direct employment relationship between Parent

or Purchaser and an Employee of a Purchased Subsidiary or an Affiliate of Parent.

(c) No Third Party Beneficiaries. Nothing contained herein, express or

implied, (i) is intended to confer or shall confer upon any Employee or Transferred

Employee any right to employment or continued employment for any period of time by

reason of this Agreement, or any right to a particular term or condition of employment,

(ii) except as set forth in Section 9.11, is intended to confer or shall confer upon any

individual or any legal Representative of any individual (including employees, retirees, or

dependents or beneficiaries of employees or retirees and including collective bargaining

agents or representatives) any right as a third-party beneficiary of this Agreement or (iii)

shall be deemed to confer upon any such individual or legal Representative any rights

under or with respect to any plan, program or arrangement described in or contemplated

by this Agreement, and each such individual or legal Representative shall be entitled to

look only to the express terms of any such plans, program or arrangement for his or her

rights thereunder. Nothing herein is intended to override the terms and conditions of the

UAW Collective Bargaining Agreement.

(d) Plan Authority. Nothing contained herein, express or implied, shall

prohibit Purchaser or its Affiliates, as applicable, from, subject to applicable Law and the

terms of the UAW Collective Bargaining Agreement, adding, deleting or changing

providers of benefits, changing, increasing or decreasing co-payments, deductibles or

other requirements for coverage or benefits (e.g., utilization review or pre-certification

requirements), and/or making other changes in the administration or in the design,

coverage and benefits provided to such Transferred Employees. Without reducing the

obligations of Purchaser as set forth in Section 6.17(a), no provision of this Agreement

shall be construed as a limitation on the right of Purchaser or its Affiliates, as applicable,

to suspend, amend, modify or terminate any employee benefit plan, subject to the terms

of the UAW Collective Bargaining Agreement. Further, (i) no provision of this

Agreement shall be construed as an amendment to any employee benefit plan, and (ii) no

provision of this Agreement shall be construed as limiting Purchaser’s or its Affiliate’s,

as applicable, discretion and authority to interpret the respective employee benefit and

compensation plans, agreements arrangements, and programs, in accordance with their

terms and applicable Law.

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(e) Assumption of Certain Parent Employee Benefit Plans and Policies. As of

the Closing Date, Purchaser or one of its Affiliates shall assume (i) the Parent Employee

Benefit Plans and Policies set forth on Section 6.17(e) of the Sellers’ Disclosure Schedule

as modified thereon, and all assets, trusts, insurance policies and other Contracts relating

thereto, except for any that do not comply in all respects with TARP or as otherwise

provided in Section 6.17(h) and (ii) all employee benefit plans, programs, policies,

agreements or arrangements (whether written or oral) in which Employees who are

covered by the UAW Collective Bargaining Agreement participate and all assets, trusts,

~nsurance and other Contracts relating thereto (the "’Assumed Plans’), for the benefit of

the Transferred Employees and Sellers and Purchaser shall cooperate with each other to

take all actions and execute and deliver all documents and furnish all notices necessary to

establish Purchaser or one of its Affiliates as the sponsor of such Assumed Plans

including all assets, trusts, insurance policies and other Contracts relating thereto. Other

than with respect to any Employee who was or is covered by the UAW Collective

Bargaining Agreement, Purchaser shall have no Liability with respect to any

modifications or changes to Benefit Plans contemplated by Section 6.17(e) of the Sellers’

Disclosure Schedule, or changes made by Parent prior to the Closing Date, and Purchaser

shall not assume any Liability with respect to any such decisions or actions related

thereto, and Purchaser shall only assume the Liabilities for benefits provided pursuant to

the written terms and conditions of the Assumed Plan as of the Closing Date.

Notwithstanding the foregoing, the assumption of the Assumed Plans is subject to

Purchaser taking all necessary action, including reduction of benefits, to ensure that the

Assumed Plans comply in all respects with TARP. Notwithstanding the foregoing, but

subject to the terms of any Collective Bargaining Agreement to which Purchaser or one

of its Affiliates is a party, Purchaser and its Affiliates may, in its sole discretion, amend,

suspend or terminate any such Assumed Plan at any time in accordance with its terms.

(f) UA W Collective Bargaining Agreement. Parent shall assume and assign to

Purchaser, as of the Closing, each of the Collective Bargaining Agreements identified on

the Assumable Executory Contracts Schedule (including the UAW Collective Bargaining

Agreement) and all rights and Liabilities of Parent relating thereto (including, without

limitation, Liabilities for wages, benefits and other compensation, unfair labor practices,

grievances, arbitrations and contractual obligations). With respect to the UAW

Collective Bargaining Agreement, Purchaser agrees to (i) recognize the UAW as the

exclusive collective bargaining representative for the Transferred Employees covered by

the terms of the UAW Collective Bargaining Agreement, (ii) offer employment to all

Applicable Employees covered by the UAW Collective Bargaining Agreement with full

recognition of all seniority rights, (iii) negotiate with the UAW over the terms of any

successor collective bargaining agreement upon the expiration of the UAW Collective

Bargaining Agreement and upon timely demand by the UAW, (iv) with the agreement of

the UAW or otherwise as provided by Law and to the extent necessary, adopt or assume

or replace, effective as of the Closing Date, employee benefit plans, policies, programs,

agreements and arrangements specified in or covered by the UAW Collective Bargaining

Agreement as required to be provided to the Transferred Employees covered by the

UAW Collective Bargaining Agreement, and (v) otherwise abide by all terms and

conditions of the UAW Collective Bargaining Agreement. For the avoidance of doubt,

the provisions of this Section 6A7(f) are not intended to (A) give, and shall not be

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 21 of 46
construed as giving, the UAW or any Transferred Employee any enhanced or additional

rights or (B) otherwise restrict the rights that Purchaser and its Affiliates have, under the

terms of the UAW Collective Bargaining Agreement.

(g) UA W Retiree Settlement Agreement. Prior to the Closing, Purchaser and

the UAW shall have entered into the UAW Retiree Settlement Agreement.

(h) Assumption of Existing Internal VEBA. Purchaser or one of its Affiliates

of the

voluntary employees’ beneficiary association trust between Sellers and State Street Bank

and Trust Company dated as of December 17, 1997, that is funded and maintained by

Sellers ("~ Internal VEBA") and, in connection therewith, Purchaser shall, or shall

cause one of its Affiliates to, (i) succeed to all of the rights, title and interest (including

the rights of Sellers, if any) as plan sponsor, plan administrator or employer) under the

Existing Internal VEBA, (ii) assume any responsibility or Liability relating to the

Existing Internal VEBA and each Contract established thereunder or relating thereto, and

(iii) to operate the Existing Internal VEBA in accordance with, and to otherwise comply

with the Purchaser’s obligations under, the New UAW Retiree Settlement Agreement

between Purchaser and the UAW, effective as of the Closing and subject to approval by a

court having jurisdiction over this matter, including the obligation to direct the trustee of

the Existing Internal VEBA to transfer the UAW’s share of assets in the Existing Internal

VEBA to the New VEBA. The Parties shall cooperate in the execution of any

documents, the adoption of any corporate resolutions or the taking of any other

reasonable actions to effectuate such succession of the settlor rights, title, and interest

with respect to the Existing Internal VEBA. For avoidance of doubt, Purchaser shall not

assume any Liabilities relating to the Existing Internal VEBA except with respect to such

Contracts set forth in Section 6.17(h) of the Sellers’ Disclosure Schedule.

(i) Wage and Tax Reporting. Sellers and Purchaser agree to apply, and cause

their Affiliates to apply, the standard procedure for successor employers set forth in

Revenue Procedure 2004-53 for wage and employment Tax reporting.

(j) Non-solicitation. Sellers shall not, for a period of two (2) years from the

Closing Date, without Purchaser’s written consent, solicit, offer employment to or hire

any Transferred Employee.

(k) Cooperation. Purchaser and Sellers shall provide each other with such

records and information as may be reasonably necessary, appropriate and permitted under

applicable Law to carry out their obligations under this Section 6.17; provided, that all

records, information systems data bases, computer programs, data rooms and data related

to any Assumed Plan or Liabilities of such, assumed by Purchaser, shall be transferred to

Purchaser.

(1) Union Notifications. Purchaser and Sellers shall reasonably cooperate

with each other in connection with any notification required by Law to, or any required

consultation with, or the provision of documents and information to, the employees,

employee representatives, the UAW and relevant Governmental Authorities and

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 22 of 46
governmental officials concerning the transactions contemplated by this Agreement,

including any notice to any of Sellers’ retired Employees represented by the UAW,

describing the transactions contemplated herein.

Section 6.18 TARP. From and after the date hereof and until such time as all

amounts under the UST Credit Facilities have been paid in full, forgiven or otherwise

extinguished or such longer period as may be required by Law, subject to any applicable Order

of the Bankruptcy Court, each of Sellers and Purchaser shall, and shall cause each of their

re " -- ’ ~ , i’y acti~i~ ~e~ensure that it cereal

respects with TARP or any enhanced restrictions on executive compensation agreed to by Sellers

and Sponsor prior to the Closing.

Section 6.19 Guarantees," Letters of Credit. Purchaser shall use its reasonable

best efforts to cause Purchaser or one or more of its Subsidiaries to be substituted in all respects

for each Seller and Excluded Entity, effective as of the Closing Date, in respect of all Liabilities

of each Seller and Excluded Entity under each of the guarantees, letters of credit, letters of

comfort, bid bonds and performance bonds (a) obtained by any Seller or Excluded Entity for the

benefit of the business of Sellers and their Subsidiaries and (b) which is assumed by Purchaser as

an Assumed Liability. As a result of such substitution, each Seller and Excluded Entity shall be

released of its obligations of, and shall have no Liability following the Closing from, or in

connection with any such guarantees, letters of credit, letters of comfort, bid bonds and

performance bonds.

Section 6.20 Customs Duties. Purchaser shall reimburse Sellers for all customsrelated duties, fees and associated costs incurred by Sellers on behalf of Purchaser with respect to

periods following the Closing, including all such duties, fees and costs incurred in connection

with co-loaded containers that clear customs intentionally or unintentionally under any Seller’s

importer or exporter identification numbers and bonds or guarantees with respect to periods

following the Closing.

Section 6.21 Termination of Intellectual Property Rights. Each Seller agrees

that any rights of any Seller, including any rights arising under Contracts, if any, to any and all of

the Intellectual Property transferred to Purchaser pursuant to this Agreement (including indirect

transfers resulting from the transfer of the Transferred Equity Interests and including transfers

resulting from this Section 6.21), whether owned or licensed, shall terminate as of the Closing.

Before and after the Closing, each Seller agrees to use its reasonable best efforts to cause the

Retained Subsidiaries to do the following, but only to the extent that such Seller can do so

without incurring any Liabilities to such Retained Subsidiaries or their equity owners or creditors

as a result thereof: (a) enter into a written Contract with Purchaser that expressly terminates any

rights of such Retained Subsidiaries, including any rights arising under Contracts, if any, to any

and all of the Intellectual Property transferred to Purchaser pursuant to this Agreement (including

indirect transfers resulting from the transfer of the Transferred Equity Interests), whether owned

or licensed; and (b) assign to Purchaser or its designee(s): (i) all domestic and foreign

trademarks, service marks, collective marks, certification marks, trade dress, trade names,

business names, d/b/a’s, Internet domain names, designs, logos and other source or business

identifiers and all general intangibles of like nature, now or hereafter owned, adopted, used,

acquired, or licensed by any Seller, all applications, registrations and recordings thereof

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 23 of 46
(including applications, registrations and recordings in the United States Patent and Trademark

Office or in any similar office or agency of the United States, any state thereof or any other

country or any political subdivision thereof), and all reissues, extensions or renewals thereof,

together with all goodwill of the business symbolized by or associated with such marks, in each

case, that are owned by such Retained Subsidiaries and that contain or are confusingly similar

with (whether in whole or in part) any of the Trademarks; and (ii) all other intellectual property

owned by such Retained Subsidiaries. Nothing in this Section 6.21 shall preserve any rights of

Sellers or the Retained Subsidiaries, or any third parties, that are otherwise terminated or

extinguished pursuant to this Agreement or applicable Law, and nothing in this

shall create any rights of Sellers or the Retained Subsidiaries, or any third parties, that do not

already exist as of the date hereof. Notwithstanding anything to the contrary in this Section

6.21, Sellers may enter into (and may cause or permit any of the Purchased Subsidiaries to enter

into) any of the transactions contemplated by Section 6.2 of the Sellers’ Disclosure Schedule.

Section 6. 22 Trademarks.

(a) At or before the Closing (i) Parent shall take any and all actions that are

reasonably necessary to change the corporate name of Parent to a new name that bears no

resemblance tO Parent’s present corporate name and that does not contain, and is not

confusingly similar with, any of the Trademarks; and (ii) to the extent that the corporate

name of any Seller (other than Parent) or any Retained Subsidiary resembles Parent’s

present corporate name or contains or is confusingly similar with any of the Trademarks,

Sellers (including Parent) shall take any and all actions that are reasonably necessary to

change such corporate names to new names that bear no resemblance to Parent’s present

corporate name, and that do not contain and are not confusingly similar with any of the

Trademarks.

(b) As promptly as practicable following the Closing, but in no event later

than ninety (90) days after the Closing (except as set forth in this Section 6.22(b)),

Sellers shall cease, and shall cause the Retained Subsidiaries to cease, using the

Trademarks in any form, whether by removing, permanently obliterating, covering, or

otherwise eliminating all Trademarks that appear on any of their assets, including all

signs, promotional or advertising literature, labels, stationery, business cards, office

forms and packaging materials. During such time period, Sellers and the Retained

Subsidiaries may continue to use Trademarks in a manner consistent with their usage of

the Trademarks as of immediately prior to the Closing, but only to the extent reasonably

necessary for them to continue their operations as contemplated by the Parties as of the

Closing. If requested by Purchaser within a reasonable time after the Closing, Sellers and

Retained Subsidiaries shall enter into a written agreement that specifies quality control of

such Trademarks and their underlying goods and services. For signs and the like that

exist as of the Closing on the Excluded Real Property, if it is not reasonably practicable

for Sellers or the Retained Subsidiaries to remove, permanently obliterate, cover or

otherwise eliminate the Trademarks from such signs and the like within the time period

specified above, then Sellers and the Retained Subsidiaries shall do so as soon as

practicable following such time period, but in no event later than one-hundred eighty

(180) days following the Closing.

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 24 of 46
(c) From and after the date of this Agreement and, until the earlier of the

Closing or termination of this Agreement, each Seller shall use its reasonable best efforts

to protect and maintain the Intellectual Property owned by Sellers that is material to the

conduct of its business in a manner that is consistent with the value of such Intellectual

Property.

(d) At or prior to the Closing,, Sellers shall provide a true, correct and

complete list setting forth all worldwide patents, patent applications, trademark

Intellectual Property owned by Sellers.

Section 6.23 Preservation of Records. The Parties shall preserve and keep all

books and records that they own immediately after the Closing relating to the Purchased Assets,

the Assumed Liabilities and Sellers’ operation of the business related thereto prior to the Closing

for a period of six (6) years following the Closing Date or for such longer period as may be

required by applicable Law, unless disposed of in good faith pursuant to a document retention

policy. During such retention period, duly authorized Representatives of a Party shall, upon

reasonable notice, have reasonable access during normal business hours to examine, inspect and

copy such books and records held by the other Parties for any proper purpose, except as may be

prohibited by Law or by the terms of any Contract (including any confidentiality agreement);

provided that to the extent that disclosing any such information would reasonably be expected to

constitute a waiver of attorney-client, work product or other legal privilege with respect thereto,

the Parties shall take all reasonable best efforts to permit such disclosure without the waiver of

any such privilege, including entering into an appropriate joint defense agreement in connection

with affording access to such information. The access provided pursuant to this Section 6,23

shall be subject to such additional confidentiality provisions as the disclosing Party may

reasonably deem necessary.

Section 6.24 Confidentiality. During the Confidentiality Period, Sellers and

their Affiliates shall treat all trade secrets and all other proprietary, legally privileged or sensitive

information related to the Transferred Entities, the Purchased Assets and/or the Assumed

Liabilities (collectively, the "Confidential Information"), whether furnished before or after the

Closing, whether documentary, electronic or oral, labeled or otherwise identified as confidential,

and regardless of the form of communication or the manner in which it is or was furnished, as

confidential, preserve the confidentiality thereof, not use or disclose to any Person such

Confidential Information and instruct their Representatives who have had access to such

information to keep confidential such Confidential Information. The "Confidentiality Period"

shall be a period commencing on the date hereof and (a) with respect to a trade secret, continuing

for as long as it remains a trade secret and (b) for all other Confidential Information, ending four

(4) years from the Closing Date. Confidential Information shall be deemed not to include any

information that (i) is now available to or is hereafter disclosed in a manner making it available

to the general public, in each case, through no act or omission of Sellers, any of their Affiliates

or any of their Representatives, or (ii) is required by Law to be disclosed, including any

applicable requirements of the SEC or any other Governmental Authority responsible for

securities Law regulation and compliance or any stock market or stock exchange on which any

Seller’s securities are listed.

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 25 of 46
Section 6.25 Privacy Policies. At or prior to the Closing, Purchaser shall, or

shall cause its Subsidiaries to, establish Privacy Policies that are substantially similar to the

Privacy Policies of Parent and the Purchased Subsidiaries as of immediately prior to the Closing,

and Purchaser or its Affiliates, as applicable, shall honor all "opt-out" requests or preferences

made by individuals in accordance with the Privacy Policies of Parent and the Purchased

Subsidiaries and applicable Law; provided that such Privacy Policies and any related "opt-out"

requests or preferences are delivered or otherwise made available to Purchaser prior to the

Closing, to the extent not publicly available.

Section 6.26 Supplements to Sellers’ Disclosure Schedule. At any time and

from time to time prior to the Closing, Sellers shall have the right to supplement, modify or

update Section 4.1 through Section 4.22 of the Sellers’ Disclosure Schedule (a) to reflect changes

and developments that have arisen after the date hereof and that, if they existed prior to the date

hereof, would have been required to be set forth on such Sellers’ Disclosure Schedule or (b) as

may be necessary to correct any disclosures contained in such Sellers’ Disclosure Schedule or in

any representation and warranty of Sellers that has been rendered inaccurate by such changes or

developments. No supplement, modification or amendment to Section 4.1 through Section 4.22

of the Sellers’ Disclosure Schedule shall without the prior written consent of Purchaser, (i) cure

any inaccuracy of any representation and warranty made in this Agreement by Sellers or (ii) give

rise to Purchaser’s right to terminate this Agreement unless and until this Agreement shall be

terminable by Purchaser in accordance with Section 8,1(t).

Section 6.27 Real Property Matters.

(a) Sellers and Purchaser acknowledge that certain real properties (the

"Subdivision Properties") may need to be subdivided or otherwise legally partitioned in

accordance with applicable Law (a "Required Subdivision") so as to permit the affected

Owned Real Property to be conveyed to Purchaser separate and apart from adjacent

Excluded Real Property. Section 6.27 of the Sellers’ Disclosure Schedule contains a list

of the Subdivision Properties that was determined based on the current list of Excluded

Real Property. Section 6.27 of the Sellers’ Disclosure Schedule may be updated at any

time prior to the Closing to either (i) add additional Subdivision Properties or (ii) remove

any Subdivision Properties, which have been determined to not require a Required

Subdivision or for which a Required Subdivision has been obtained. Purchaser shall pay

for all costs incurred to complete all Required Subdivisions. Sellers shall cooperate in

good faith with Purchaser in connection with the completion with all Required

Subdivisions, including executing all required applications or other similar documents

with Governmental Authorities. To the extent that any Required Subdivision for a

Subdivision Property is not completed prior to Closing, then at Closing, Sellers shall

lease to Purchaser only that portion of such Subdivision Property that constitutes Owned

Real Property pursuant to a mutually acceptable lease (the "Subdivision Master Lease"),

which is consistent with the terms contained in the Subdivision Master Lease Term Sheet

attached hereto as Exhibit L (the "Subdivision Master Lease Term Sheet"). Upon

completion of a Required Subdivision affecting an Owned Real Property that is subject to

the Subdivision Master Lease, the Subdivision Master Lease shall be terminated as to

such Owned Real Property and such Owned Real Property shall be conveyed to

Purchaser by Quitclaim Deed for One Dollar ($1.00) in stated consideration.

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 26 of 46
(b) Sellers and Purchaser acknowledge that the Saginaw Nodular Iron facility

in Saginaw, Michigan (the "S_gginaw Nodular Iron Land") contains a wastewater

treatment facility (the "Existing Saginaw Wastewater Facili~") that currently services the

adjacent Owned Real Property commonly known as the GMPT - Saginaw Metal Casting

facility (the "~inaw Metal Casting Land"). In the event that Purchaser designates the

Saginaw Nodular Iron Land as an Excluded Real Property, between the date of this

Agreement and the Closing, Purchaser shall investigate and inform Sellers as to whether

Purchaser intends to construct a new wastewater treatment facility on the Saginaw Metal

Casting Land. In the event that Purchaser in~brms Sellers of its intent to build a new

wastewater treatment facility, then at Closing Sellers shall use reasonable best efforts to

enter into a service agreement with a third party contractor (the "Saginaw Service

Contract") to operate the Existing Saginaw Wastewater Facility for the benefit of the

Saginaw Metal Casting Land until such time as the new wastewater treatment facility is

completed. The Saginaw Service Contract shall be on terms mutually acceptable to

Sellers and Purchaser, provided that the term shall not extend beyond December 31,

2012. Purchaser shall pay all costs and fees under the Saginaw Service Contract. In the

event that Purchaser elects not to build a new wastewater treatment facility, then upon

completion of any Required Subdivision necessary to effectuate the terms of this 0(b),

Sellers shall (i) convey title to the Existing Saginaw Wastewater Facility and such portion

of the Saginaw Nodular Iron Land as is required by Purchaser to operate the Existing

Saginaw Wastewater Facility, including lagoons, but not any other portion of the

Saginaw Nodular Iron Land, to Purchaser by quitclaim deed and (ii) grant Purchaser such

easements for utilities over the portion of the Saginaw Nodular Iron Land retained by

Sellers as may be required to operate the Existing Saginaw Wastewater Facility.

(c) Sellers and Purchaser acknowledge that access to certain Excluded Real

Property owned by Sellers or other real properties owned by Excluded Entities and

certain Owned Real Property that may hereafter be designated as Excluded Real Property

on Section 2.2(b)(v) of the Sellers’ Disclosure Schedule (a "Landlocked Parcel") is

provided over land that is part of the Owned Real Property. To the extent that direct

access to a public right-of-way is not obtained for any Landlocked Parcel by the Closing,

then at Closing, Purchaser, in its sole election, shall for each such Landlocked Parcel

either (i) grant an access easement over a mutually agreeable portion of the adjacent

Owned Real Property for the benefit of the Landlocked Parcel until such time as the

Landlocked Parcel obtains direct access to the public right-of-way, pursuant to the terms

of a mutually acceptable easement agreement, or (ii) convey to the owner of the affected

Landlocked Parcel by quitclaim deed such portion of the adjacent Owned Real Property

as is required to provide the Landlocked Parcel with direct access to a public right-ofway.

(d) At and after Closing, Sellers and Purchasers shall cooperate in good faith

to investigate and resolve all issues reasonably related to or arising in connection with

Shared Executory Contracts that involve the provision of water, water treatment,

electricity, fuel, gas, telephone and other utilities to both Owned Real Property and

Excluded Real Property.

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 27 of 46
Section 6.28 Equity Incentive Plans. Within a reasonable period of time

following the Closing, Purchaser, through its board of directors, will adopt equity incentive plans

to be maintained by Purchaser for the benefit of officers, directors, and employees of Purchaser

that will provide the opportunity for equity incentive benefits for such persons ("Equity Incentive

Plans").

ARTICLE VII

CONDITIONS TO CLOSING

Section 7.1 Conditions to Obligations of Purchaser and Sellers. The

respective obligations of Purchaser and Sellers to consummate the transactions contemplated by

this Agreement are subject to the fulfillment or written waiver (to the extent permitted by

applicable Law), prior to or at the Closing, of each of the following conditions:

(a) The Bankruptcy Court shall have entered the Sale Approval Order and the

Sale Procedures Order on terms acceptable to the Parties and reasonably acceptable to the

UAW, and each shall be a Final Order and shall not have been vacated, stayed or

reversed; provided, however, that the conditions contained in this Section 7.1(a) shall be

satisfied notwithstanding the pendency of an appeal if the effectiveness of the Sale

Approval Order has not been stayed.

(b) No Order or Law of a United States Governmental Authority shall be in

effect that declares this Agreement invalid or unenforceable or that restrains, enjoins or

otherwise prohibits the consummation of the transactions contemplated by this

Agreement.

(c) Sponsor shall have delivered, or caused to be delivered to Sellers and

Purchaser an equity registration rights agreement, substantially in the form attached

hereto as Exhibit M (the "~istration Rights Agreement"), duly executed by

Sponsor.

(d) Canada shall have delivered, or caused to be delivered to Sellers and

Purchaser the Equity Registration Rights Agreement, duly executed by Canada.

(e) The Canadian Debt Contribution shall have been consummated.

(f) The New VEBA shall have delivered, or caused to be delivered to Sellers

and Purchaser, the Equity Registration Rights Agreement, duly executed by the New

VEBA.

(g) Purchaser shall have received (i) consents from Governmental Authorities,

(ii) Permits and (iii) consents from non-Governmental Authorities, in each case with

respect to the transactions contemplated by this Agreement and the ownership and

operation of the Purchased Assets and Assumed Liabilities by Purchaser from and after

the Closing, sufficient in the aggregate to permit Purchaser to own and operate the

Purchased Assets and Assumed Liabilities from and after the Closing in substantially the

same manner as owned and operated by Sellers immediately prior to the Closing (after

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 28 of 46
giving effect to (A) the implementation of the Viability Plans; (B) Parent’s announced

shutdown, which began in May 2009; and (C) the Bankruptcy Cases (or any other

bankruptcy, insolvency or similar proceeding filed by or in respect of any Subsidiary of

Parent).

(h) Sellers shall have executed and delivered definitive financing agreements

restructuring the Wind Down Facility in accordance with the provisions of Section

6.9(b).

Section 7.2 Conditions to Obligations of Purchaser. The obligations of

Purchaser to consummate the transactions contemplated by this Agreement are subject to the

fulfilhnent or written waiver, prior to or at the Closing, of each of the following conditions;

~, however, that in no event may Purchaser waive the conditions contained in Section

7.2(d) or Section 7.2(e):

(a) Each of the representations and warranties of Sellers contained in

ARTICLE IV of this Agreement shall be true and correct (disregarding for the purposes

of such determination any qualification as to materiality or Material Adverse Effect) as of

the Closing Date as if made on the Closing Date (except for representations and

warranties that speak as of a specific date or time, which representations and warranties

shall be true and correct only as of such date or time), except to the extent that any

breaches of such representations and warranties, individually or in the aggregate, have

not had, or would not reasonably be expected to have, a Material Adverse Effect.

(b) Sellers shall have performed or complied in all material respects with all

agreements and obligations required by this Agreement to be performed or complied with

by Sellers prior to or at the Closing.

(c) Sellers shall have delivered, or caused to be delivered, to Purchaser:

(i) a certificate executed as of the Closing Date by a duly authorized

representative of Sellers, on behalf of Sellers and not in such authorized

representative’s individual capacity, certifying that the conditions set forth in

Section 7.2(a) and Section 7.2(b) have been satisfied;

(it) the Equity Registration Rights Agreement, duly executed by

Parent;

(iii) stock certificates or membership interest certificates, if any,

evidencing the Transferred Equity Interests, duly endorsed in blank or

accompanied by stock powers (or similar documentation) duly endorsed in blank,

in proper form for transfer to Purchaser, including any required stamps affixed

thereto;

(iv) an omnibus bill of sale, substantially in the form attached hereto as

Exhibit O (the "Bill of Sale"), together with transfer tax declarations and all other

instruments of conveyance that are necessary to effect transfer to Purchaser of

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 29 of 46
title to the Purchased Assets, each in a form reasonably satisfactory to the Parties

and duly executed by the appropriate Seller;

(v) an omnibus assignment and assumption agreement, substantially in

the form attached hereto as Exhibit P (the "Assignment and Assumption

A~reement"), together with all other instruments of assignment and assumption

that are necessary to transfer the Purchased Contracts and Assumed Liabilities to

Purchaser, each in a form reasonably satisfactory to the Parties and duly executed

(vi) a novation agreement, substantially in the form attached hereto as

Exhibit Q (the "Novation Agreement"), duly executed by Sellers and the

appropriate United States Governmental Authorities;

(vii) a government related subcontract agreement, substantially in the

form attached hereto as Exhibit R (the "Government Related Subcontract

Agreement"), duly executed by Sellers;

(viii) an omnibus intellectual property assignment agreement,

substantially in the form attached hereto as Exhibit S (the "Intellectual Property

Assignment Agreement"), duly executed by Sellers;

(ix) a transition services agreement, substantially in the form attached

hereto as Exhibit T (the "Transition Services Agreement"), duly executed by

Sellers;

(x) all quitclaim deeds or deeds without warranty (or equivalents for

those parcels of Owned Real Property located in jurisdictions outside of the

United States), in customary form, subject only to Permitted Encumbrances,

conveying the Owned Real Property to Purchaser (the "Ouitclaim Deeds"), duly

executed by the appropriate Seller;

(xi) all required Transfer Tax or sales disclosure forms relating to the

Transferred Real Property (the "Transfer Tax Forms"), duly executed by the

appropriate Seller;

(xii) an assignment and assumption of the leases and subleases

underlying the Leased Real Property, in substantially the form attached hereto as

Exhibit U (the "Assignment and Assumption of Real Property Leases"), together

with such other instruments of assignment and assumption that are necessary to

transfer the leases and subleases underlying the Leased Real Property located in

jurisdictions outside of the United States, each duly executed by Sellers; ~,

however, that if it is required for the assumption and assignment of any lease or

sublease underlying a Leased Real Property that a separate assignment and

assumption for such lease or sublease be executed, then a separate assignment and

assumption of such lease or sublease shall be executed in a form substantially

similar to Exhibit U or as otherwise required to assume or assign such Leased

Real Property;

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(xiii) an omnibus lease agreement in respect of the lease of certain

portions of the Excluded Real Property that is owned real property, substantially

in the form attached hereto as Exhibit___y_V (the "Master Lease Agreement"), duly

executed by Parent;

(xiv) in the event the premises located at 6200 Grand Pointe Drive,

Grand Blanc, Michigan is designated by Purchaser as an Excluded Real Property,

a lease agreement for premises located in Grand Blanc, Michigan, substantially in

,’ f~ ’’ I.l 1~, y

Parent;

(xv) the Saginaw Service Contract, if required, duly executed by the

appropriate Seller;

(xvi) any easement agreements required under Section 6.27(c), duly

executed by the appropriate Seller;

(xvii) the Subdivision Master Lease, if required, duly executed by the

appropriate Sellers;

(xviii) a certificate of an officer of each Seller (A) certifying that attached

to such certificate are true and complete copies of (1) such Seller’s Organizational

Documents, each as amended through and in effect on the Closing Date and (2)

resolutions of the board of directors of such Seller, authorizing the execution,

delivery and performance of this Agreement and the Ancillary Agreements to

which such Seller is a party, the consummation of the transactions contemplated

by this Agreement and such Ancillary Agreements and the matters set forth in

Section 6.16(e), and (B) certifying as to the incumbency of the officer(s) of such

Seller executing this Agreement and the Ancillary Agreements to which such

Seller is a party;

(xix) a certificate in compliance with Treas. Reg. §1.1445-2(b)(2) that

each Seller is not a foreign person as defined under Section 897 of the Tax Code;

(xx) a certificate of good standing for each Seller from the Secretary of

State of the State of Delaware;

(xxi) their written agreement to treat the Relevant Transactions and the

other transactions contemplated by this Agreement in accordance with

Purchaser’s determination in Section 6.16;

(xxii) payoff letters and related Encumbrance-release documentation

(including, if applicable, UCC-3 termination statements), each in a form

reasonably satisfactory to the Parties and duly executed by the holders of the

secured Indebtedness; and

(xxiii) all books and records of Sellers described in Section 2.2(a)(xiv).

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(d) The UAW Collective Bargaining Agreement shall have been ratified by

the membership, shall have been assumed by the applicable Sellers and assigned to

Purchaser, and shall be in full force and effect.

(e) The UAW Retiree Settlement Agreement shall have been executed and

delivered by the UAW and shall have been approved by the Bankruptcy Court as part of

the Sale Approval Order.

executed and delivered by the parties thereto in the form previously distributed among

them.

Section 7.3 Conditions to Obligations of Sellers. The obligations of Sellers to

consummate the transactions contemplated by this Agreement are subject to the fulfillment or

written waiver, prior to or at the Closing, of each of the following conditions; provided, however,

that in no event may Sellers waive the conditions contained in Section 7,3(h) or Section 7.30):

(a) Each of the representations and warranties of Purchaser contained in

ARTICLE ¥ of this Agreement shall be true and correct (disregarding for the purpose of

such determination any qualification as to materiality or Purchaser Material Adverse

Effect) as of the Closing Date as if made on such date (except for representations and

warranties that speak as of a specific date or time, which representations and warranties

shall be true and correct only as of such date or time), except to the extent that any

breaches of such representations and warranties, individually or in the aggregate, have

not had, or would not reasonably be expected to have, a Purchaser Material Adverse

Effect.

(b) Purchaser shall have performed or complied in all material respects with

all agreements and obligations required by this Agreement to be performed or complied

with by it prior to or at the Closing.

(c) Purchaser shall have delivered, or caused to be delivered, to Sellers:

(i) Parent Warrant A (including the related warrant agreement), duly

executed by Purchaser;

(ii) Parent Warrant B (including the related warrant agreement), duly

executed by Purchaser;

(iii) a certificate executed as of the Closing Date by a duly authorized

representative of Purchaser, on behalf of Purchaser and not in such authorized

representative’s individual capacity, certifying that the conditions set forth in

Section 7.3(a) and Section 7.3(b) are satisfied;

(iv) stock certificates evidencing the Parent Shares, duly endorsed in

blank or accompanied by stock powers duly endorsed in blank, in proper form for

transfer, including any required stamps affixed thereto;

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(v) the Equity Registration Rights Agreement, duly executed by

Purchaser;

(vi) the Bill of Sale, together with all other documents described in

Section 7.2(e)0v), each duly executed by Purchaser or its designated Subsidiaries;

(vii) the Assignment and Assumption Agreement, together with all

other documents described in Section 7.2(e)(v), each duly executed by Purchaser

(viii) the Novation Agreement, duly executed by Purchaser or its

designated Subsidiaries;

(ix) the Government Related Subcontract Agreement, duly executed by

Purchaser or its designated Subsidiary;

(x) the Intellectual Property Assignment Agreement, duly executed by

Purchaser or its designated Subsidiaries;

(xi) the Transition Services Agreement, duly executed by Purchaser or

its designated Subsidiaries;

(xii) the Transfer Tax Forms, duly executed by Purchaser or its

designated Subsidiaries, to the extent required;

(xiii) the Assignment and Assumption of Real Property Leases, together

with all other documents described in Section 7.2(e)(xii), each duly executed by

Purchaser or its designated Subsidiaries;

(xiv) the Master Lease Agreement, duly executed by Purchaser or its

designated Subsidiaries;

(xv) the SPO Lease (if required), duly executed by Purchaser or its

designated Subsidiaries;

(xvi) the Subdivision Master Lease, if required, duly executed by

Purchaser or its designated Subsidiaries;

(xvii) any easement agreements required under Section 6.27(e), duly

executed by Purchaser or its designated Subsidiaries;

(xviii) a certificate of a duly authorized representative of Purchaser (A)

certifying that attached to such certificate are true and complete copies of (1)

Purchaser’s Organizational Documents, each as amended through and in effect on

the Closing Date and (2) resolutions of the board of directors of Purchaser,

authorizing the execution, delivery and performance of this Agreement and the

Ancillary Agreements to which Purchaser is a party, the consummation of the

transactions contemplated by this Agreement and such Ancillary Agreements and

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the matters set forth in Section 6.16(e), and (B) certifying as to the incumbency of

the officer(s) of Purchaser executing this Agreement and the Ancillary

Agreements to which Purchaser is a party; and

(xix) a certificate of good standing for Purchaser from the Secretary of

State of the State of Delaware.

(d) Purchaser shall have converted to a Delaware corporation and shall have

amended and restated bylaws.

(e) Purchaser shall have filed a certificate of designation for the Preferred

Stock, substantially in the form attached hereto as Exhibit x_X_, with the Secretary of State

of the State of Delaware.

(f) Purchaser shall have offset the UST Credit Bid Amount against the

amount of Indebtedness of Parent and its Subsidiaries owed to Purchaser as of the

Closing under the UST Credit Facilities pursuant to a Bankruptcy Code Section 363(k)

credit bid and delivered releases and waivers and related Encumbrance-release

documentation (including, if applicable, UCC-3 termination statements) with respect to

the UST Credit Bid Amount, in a form reasonably satisfactolT to the Parties and duly

executed by Purchaser in accordance with the applicable requirements in effect on the

date hereof, (iii) transferred to Sellers the UST Warrant and (iv) issued to Parent, in

accordance with instructions provided by Parent, the Purchaser Shares and the Parent

Warrants (duly executed by Purchaser).

(g) Purchaser shall have delivered, or caused to be delivered, to Canada,

Sponsor and/or the New VEBA, as applicable:

(i) certificates representing the Canada Shares, the Sponsor Shares

and the VEBA Shares in accordance with the applicable equity subscription

agreements in effect on the date hereof;

(it) the Equity Registration Rights Agreement, duly executed by

Purchaser;

(iii) the VEBA Warrant (including the related warrant agreement), duly

executed by Purchaser; and

(iv) a note, in form and substance consistent with the terms set forth on

Exhibit Y attached hereto, to the New VEBA (the "VEBA Note").

(h) The UAW Collective Bargaining Agreement shall have been ratified by

the membership, shall have been assumed by Purchaser, and shall be in full force and

effect.

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(i) The UAW Retiree Settlement Agreement shall have been executed and

delivered, shall be in full force and effect, and shall have been approved by the

Bankruptcy Court as part of the Sale Approval Order.

ARTICLE VIII

TERIVIINATION

Section8.1 Termination. This Agreement may be terminated, and the

transactions contemplated hereby may be abandoned, at any time prior to the Closing Date as

follows:

(a) by the mutual written consent of Sellers and Purchaser;

(b) by either Sellers or Purchaser, if (i) the Closing shall not have occurred on

or before August 15, 2009, or such later date as the Parties may agree in writing, such

date not to be later than September 15, 2009 (as extended, the "End Date"), and (ii) the

Party seeking to terminate this Agreement pursuant to this Section 8.1(b) shall not have

breached in any material respect its obligations under this Agreement in any manner that

shall have proximately caused the failure of the transactions contemplated hereby to close

on or before such date;

(c) by either Sellers or Purchaser, if the Bankruptcy Court shall not have

entered the Sale Approval Order by July 10, 2009;

(d) by either Sellers or Purchaser, if any court of competent jurisdiction in the

United States or other United States Governmental Authority shall have issued a Final

Order permanently restraining, enjoining or otherwise prohibiting the transactions

contemplated by this Agreement or the sale ofa m~terial portion of the Purchased Assets;

(e) by Sellers, if Purchaser shall have breached or failed to perform in any

material respect any of its representations, warranties, covenants or other agreements

contained in this Agreement, and such breach or failure to perform has not been cured by

the End Date, provided that (i) Sellers shall have given Purchaser written notice,

delivered at least thirty (30) days prior to such termination, stating Sellers’ intention to

terminate this Agreement pursuant to this Section 8.1(e) and the basis for such

termination and (ii) Sellers shall not have the right to terminate this Agreement pursuant

to this Section 8.1(e) if Sellers are then in material breach of any its representations,

warranties, covenants or other agreements set forth herein;

(f) by Purchaser, if Sellers shall have breached or failed to perform in any

material respect any of its representations, warranties, covenants or other agreements

contained in this Agreement, which breach or failure to perform (i) would (if it occurred

or was continuing as of the Closing Date) give rise to the failure of a condition set forth

in Section 7.2(a) or Section 7.2(b) to be fulfilled, (ii) cannot be cured by the End Date,

provided that (i) Purchaser shall have given Sellers written notice, delivered at least thirty

(30) days prior to such termination, stating Purchaser’s intention to terminate this

Agreement pursuant to this Section 8.1(f) and the basis for such termination and (iii)

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Purchaser shall not have the right to terminate this Agreement pursuant to this Section

8.1(t) if Purchaser is then in material breach of any its representations, warranties,

covenants or other agreements set forth herein;

(g) by either Sellers or Purchaser, if the Bankruptcy Court shall have entered

an Order approving an Alternative Transaction; or

(h) by Purchaser, if Sellers do not file the Bankruptcy Cases and the Sale

Pm,~ a " -" ~ ,2009.

Section 8.2 Procedure and Effect of Termination.

(a) If this Agreement is terminated pursuant to Section 8.1, this Agreement

shall become null and void and have no effect, and all obligations of the Parties

hereunder shall terminate, except for those obligations of the Parties set forth this Section

8.2 and ARTICLE IX, which shall remain in full force and effect; provided that nothing

herein shall relieve any Party from Liability for any material breach of any of its

representations, warranties, covenants or other agreements set forth herein. If this

Agreement is terminated as provided herein, all filings, applications and other

submissions made pursuant to this Agreement shall, to the extent practicable, be

withdrawn from the agency or other Person to which they were made.

(b) If this Agreement is terminated by Sellers or Purchaser pursuant to

Section 8.1(a) through Section 8.1(d) or Section 8.1(g) or by Purchaser pursuant to

Section 8.1(f), Sellers, severally and not jointly, shall reimburse Purchaser for its

reasonable, out-of-pocket costs and expenses (including reasonable attorneys’ fees)

incurred by Purchaser in connection with this Agreement and the transactions

contemplated hereby (the "Purchaser Expense Reimbursement"). The Purchaser Expense

Reimbursement shall be paid as an administrative expense Claim of Sellers pursuant to

Section 503(b)(1) of the Bankruptcy Code.

(c) Except as expressly provided for in this Section 8.2, any termination of

this Agreement pursuant to Section 8.1 shall be without Liability to Purchaser or Sellers,

including any Liability by Sellers to Purchaser for any break-up fee, termination fee,

expense reimbursement or other compensation as a result of a termination of this

Agreement.

(d) If this Agreement is terminated for any reason, Purchaser shall, and shall

cause each of its Affiliates and Representatives to, treat and hold as confidential all

Confidential information, whether documentary, electronic or oral, labeled or otherwise

identified as confidential, and regardless of the form of communication or the manner in

which it was furnished. For purposes of this Section 8.2(d), Confidential Information

shall be deemed not to include any information that (i) is now available to or is hereafter

disclosed in a manner making it available to the general public, in each case, through no

act or omission of Purchaser, any of its Affiliates or any of their Representatives, or (ii) is

required by Law to be disclosed.

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ARTICLE IX

MISCELLANEOUS

Section 9.1 Survival of Representations, Warranties, Covenants and

Agreements and Consequences of Certain Breaches.

(a) Except as set forth in Section 9.1(b), the representations and warranties of

the Parties contained in this Agreement shall be extinguished by and shall not survive the

Y

Liability for any breach of, the representations and warranties. All covenants and

agreements contained in this Agreement, including those covenants and agreements set

forth in ARTICLE II and ARTICLE VI, shall survive the Closing indefinitely.

(b) The representations and warranties contained in Section 4.1, Section 4.2,

Section 4.4, Section 4.7(a), Section 4.22, Section 5.1, Section 5.2, Section 5.4, Section

5.5 and Section 5.9 (the "Surviving Representations and Warranties") shall survive until

the third anniversary of the Closing and Purchaser, on the one hand, and any Seller, on

the other hand, shall be entitled to make a Claim for Damages against the other Party

with respect to the Surviving Representations and Warranties, subject to such survival

period.

Section 9.2 Notices. Any notice, request, instruction, consent, document or

other communication required or permitted to be given under this Agreement shall be in writing

and shall be deemed to have been sufficiently given or served for all purposes (a) upon delivery

when personally delivered; (b) on the delivery date after having been sent by a nationally or

internationally recognized overnight courier service (charges prepaid); (c) at the time received

when sent by registered or certified mail, return receipt requested, postage prepaid; or (d) at the

time when confirmation of successful transmission is received (or the first Business Day

following such receipt if the date of such receipt is not a Business Day) if sent by facsimile, in

each case, to the recipient at the address or facsimile number, as applicable, indicated below:

If to any Seller:

With copies to:

General Motors Corporation

300 Renaissance Center

Tower 300, 25th Floor, Room D55

M/C 482-C25-D81

Detroit, Michigan 48265-3000

Attn: General Counsel

Tel.: 313-667-3450

Facsimile: 248-267-4584

Jenner & Block LLP

330 North Wabash Avenue

Chicago, Illinois 60611-7603

Attn: Joseph P. Gromacki

Michael T. Wolf

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 37 of 46
Tel.: 312-222-9350

Facsimile: 312-527-0484

and

Well Gotshal & Manges LLP

767 Fifth Avenue

New York, New York 10153

Arm: Harvey R.~ler

Stephen Karotkin

Raymond Gietz

Tel.: 212-310-8000

Facsimile: 212-310-8007

If to Purchaser: Vehicle Acquisition Holdings LLC

c/o The United States Department of the Treasury

1500 Pennsylvania Avenue, NW

Washington D.C. 20220

Attn: Chief Counsel Office of Financial Stability

Facsimile: 202-927-9225

With a copy to: Cadwalader, Wickersham & Taft LLP

One World Financial Center

New York, New York 10281

Attn: John J. Rapisardi

R. Ronald Hopkinson

Tel.: 212-504-6000

Facsimile: 212-504-6666

~, however, if any Party shall have designated a different addressee and/or contact

information by notice in accordance with this Section 9.2, then to the last addressee as so

designated.

Section 9.3 Fees and Expenses; No Right of Setoff Except as otherwise

provided in this Agreement, including Section 8.2(b), Purchaser, on the one hand, and each

Seller, on the other hand, shall bear its own fees, costs and expenses, including fees and

disbursements of counsel, financial advisors, investment bankers, accountants and other agents

and representatives, incurred in connection with the negotiation and execution of this Agreement

and each Ancillary Agreement and the consummation of the transactions contemplated hereby

and thereby. In furtherance of the foregoing, Purchaser shall be solely responsible for (a) all

expenses incurred by it in connection with its due diligence review of Sellers and their respective

businesses, including surveys, title work, title inspections, title searches, environmental testing or

inspections, building inspections, Uniform Commercial Code lien and other searches and (b) any

cost (including any filing fees) incurred by it in connection with notarization, registration or

recording of this Agreement or an Ancillary Agreement required by applicable Law. No Party

nor any of its Affiliates shall have any right of holdback or setoff or assert any Claim or defense

with respect to any amounts that may be owed by such Party or its Affiliates to any other Party

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(or Parties) hereto or its or their Affiliates as a result of and with respect to any amount that may

be owing to such Party or its Affiliates under this Agreement, any Ancillary Agreement or any

other commercial arrangement entered into in between or among such Parties and/or their

respective Affiliates.

Section 9.4 Bulk Sales Laws. Each Party hereto waives compliance by the

other Parties with any applicable bulk sales Law.

...... rig--s

or obligations provided by this Agreement may be assigned or delegated by any Party (whether

by operation of law or otherwise) without the prior written consent of the other Parties, and any

such assignment or delegation without such prior written consent shall be null and void;

provided, however, that, without the consent of Sellers, Purchaser may (i) assign or (ii) direct the

transfer on its behalf on or prior to the Closing of all, or any portion, of its right to acquire the

Purchased Assets, and its obligation to assume the Assumed Liabilities, under this Agreement to

one or more Affiliates of Purchaser; provided, further, that no such assignment or delegation

shall relieve Purchaser of any of its obligations under this Agreement. Subject to the preceding

sentence and except as otherwise expressly provided herein, this Agreement shall be binding

upon and inure to the benefit of the Parties hereto and their respective successors and permitted

assigns.

Section 9.6 Amendment. This Agreement may not be amended, modified or

supplemented except upon the execution and delivery of a written agreement executed by a duly

authorized representative or officer of each of the Parties.

Section 9. 7 Waiver. At any time prior to the Closing, each Party may (a)

extend the time for the performance of any of the obligations or other acts of the other Parties;

(b) waive any inaccuracies in the representations and warranties contained in this Agreement or

in any document delivered pursuant hereto; or (c) waive compliance with any of the agreements

or conditions contained herein (to the extent permitted by Law). Any such waiver or extension

by a Party (i) shall be valid only if, and to the extent, set forth in a written instrument signed by a

duly authorized representative or officer of the Party to be bound and (ii) shall not constitute, or

be construed as, a continuing waiver of such provision, or a waiver of any other breach of, or

failure to comply with, any other provision of this Agreement. The failure in any one or more

instances of a Party to insist upon performance of any of the terms, covenants or conditions of

this Agreement, to exercise any right or privilege in this Agreement conferred, or the waiver by

said Party of any breach of any of the terms, covenants or conditions of this Agreement shall not

be construed as a subsequent waiver of, or estoppel with respect to, any other terms, covenants,

conditions, rights or privileges, but the same will continue and remain in full force and effect as

if no such forbearance or waiver had occurred.

Section 9.8 Severability. Whenever possible, each term and provision of this

Agreement will be interpreted in such manner as to be effective and valid under applicable Law.

If any term or provision of this Agreement, or the application thereof to any Person or any

circumstance, is held to be illegal, invalid or unenforceable, (a) a suitable and equitable provision

shall be substituted therefore in order to carry out, so far as may be legal, valid and enforceable,

the intent and purpose of such illegal, invalid or unenforceable provision and (b) the remainder

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of this Agreement or such term or provision and the application of such term or provision to

other Persons or circumstances shall remain in full force and effect and shall not be affected by

such illegality, invalidity or unenforceability, nor shall such invalidity or unenforceability affect

the legality, validity or enforceability of such term or provision, or the application thereof, in any

jurisdiction.

Section 9.9 Counterparts; Facsimiles. This Agreement may be executed in

one or more counterparts, each of which shall be deemed an original, and all of which taken

transmitted by facsimile or electronic delivery, and each such facsimile signature or electronic

delivery signature (including a pdf signature) will, for all purposes, be deemed to be the original

signature of the Party whose signature it reproduces and be binding upon such Party.

Section 9.10 Headings. The descriptive headings of the Articles, Sections and

paragraphs of, and Schedules and Exhibits to, this Agreement, and the table of contents, table of

Exhibits and table of Schedules contained in this Agreement, are included for convenience only,

do not constitute a part of this Agreement and shall not be deemed to limit, modify or affect any

of the provisions hereof.

Section 9.11 Parties in Interest. This Agreement shall be binding upon and

inure solely to the benefit of each Party hereto and their respective permitted successors and

assigns; ~, that (a) for all purposes each of Sponsor, the New VEBA, and Canada shall be

express third-party beneficiaries of this Agreement and (b) for purposes of Section 2.2(a)(x) and

(xvi), Section 2.2(b)(vii), Section 2.3(a)(x), (xii), (xiii) and (xiv), Section 2.3(b)(xv), Section

4.6(b), Section 4.10, Section 5.4(c), Section 6.2(b)(x), (xv) and (xvii), Section 6.4(a), Section

6.4(b), Section 6.6(a), (c), (e) and (f), Section 6.1|(c)(i) and (vi), Section 6.|7, Section 7.1(a)

and (f), Section 7.2(d) and (e) and Section 7.3(g), (h) and (i), the UAW shall be an express

third-party beneficiary of this Agreement. Subject to the preceding sentence, nothing express or

implied in this Agreement is intended or shall be construed to confer upon or give to any Person,

other than the Parties, their Affiliates and their respective permitted successors or assigns, any

legal or equitable Claims, benefits, rights or remedies of any nature whatsoever under or by

reason of this Agreement.

Section 9.12 Governing Law. The construction, interpretation and other matters

arising out of or in connection with this Agreement (whether arising in contract, tort, equity or

otherwise) shall in all respects be governed by and construed (a) to the extent applicable, in

accordance with the Bankruptcy Code, and (b) to the extent the Bankruptcy Code is not

applicable, in accordance with the Laws of the State of New York, without giving effect to rules

governing the conflict of laws.

Section. 9.13 Venue and Retention of Jurisdiction. Each Party irrevocably and

unconditionally submits to the exclusive jurisdiction of the Bankruptcy Cou~t for any litigation

arising out of or in connection with this Agreement and the transactions contemplated hereby

(and agrees not to commence any litigation relating thereto except in the Bankruptcy Court, other

than actions in any court of competent jurisdiction to enforce any judgment, decree or award

rendered by any such court as described herein); provided, however, that this Section 9,13 shall

not be applicable in the event the Bankruptcy Cases have closed, in which case the Parties

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irrevocably and unconditionally submit to the exclusive jurisdiction of the federal courts in the

Southern District of New York and state courts of the State of New York located in the Borough

of Manhattan in the City of New York for any litigation arising out of or in connection with this

Agreement and the transactions contemplated hereby (and agree not to commence any litigation

relating thereto except in the federal courts in the Southern District of New York and state courts

of the State of New York located in the Borough of Manhattan in the City of New York, other

than actions in any court of competent jurisdiction to enforce any judgment, decree or award

rendered by any such court as described herein).

Section 9.14 Waiver of Jury Trial. EACH PARTY WAIVES THE RIGHT TO

A TRIAL BY JURY IN ANY DISPUTE IN CONNECTION WITH OR RELATING TO THIS

AGREEMENT OR ANY MATTERS DESCRIBED OR CONTEMPLATED HEREIN, AND

AGREES TO TAKE ANY AND ALL ACTION NECESSARY OR APPROPRIATE TO

EFFECT SUCH WA1VER.

Section 9.15 Risk of Loss. Prior to the Closing, all risk of loss, damage or

destruction to all or any part of the Purchased Assets shall be borne exclusively by Sellers.

Section 9.16 Enforcement of Agreement. The Parties agree that irreparable

damage would occur in the event that any provision of this Agreement were not performed in

accordance with its specific terms or were otherwise breached. It is accordingly agreed that the

Parties shall, without the posting of a bond, be entitled, subject to a determination by a court of

competent jurisdiction, to an injunction or injunctions to prevent any such failure of performance

under, or breaches of, this Agreement, and to enforce specifically the terms and provisions

hereof and thereof, this being in addition to all other remedies available at law or in equity, and

each Party agrees that it will not oppose the granting of such relief on the basis that the

requesting Party has an adequate remedy at law.

Section 9.17 Entire Agreement. This Agreement (together with the Ancillary

Agreements, the Sellers’ Disclosure Schedule and the Exhibits) contains the final, exclusive and

entire agreement and understanding of the Parties with respect to the subject matter hereof and

thereof and supersedes all prior and contemporaneous agreements and understandings, whether

written or oral, among the Parties with respect to the subject matter hereof and thereof. Neither

this Agreement nor any Ancillary Agreement shall be deemed to contain or imply any restriction,

covenant, representation, warranty, agreement or undertaking of any Party with respect to the

transactions contemplated hereby or thereby other than those expressly set forth herein or

therein, and none shall be deemed to exist or be inferred with respect to the subject matter

hereof.

Section9.18 Publicity. Prior to the first public announcement of this

Agreement and the transactions contemplated hereby, Sellers, on the one hand, and Purchaser,on

the other hand, shall consult with each other regarding, and share with each other copies of, their

respective communications plans, including draft press releases and related materials, with

regard to such announcement. Neither Sellers nor Purchaser shall issue any press release or

public announcement concerning this Agreement or the transactions contemplated hereby

without obtaining the prior written approval of the other Party or Parties, as applicable, which

approval shall not be unreasonably withheld, conditioned or delayed, unless, in the sole judgment

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 41 of 46
of the Party intending to make such release, disclosure is otherwise required by applicable Law,

or by the Bankruptcy Court with respect to filings to be made with the Bankruptcy Court in

connection with this Agreement or by the applicable rules of any stock exchange on which

Purchaser or Sellers list securities; ~, that the Party intending to make such release shall

use reasonable best efforts consistent with such applicable Law or Bankruptcy Court requirement

to consult with the other Party or Parties, as applicable, with respect to the text thereof; ~,

further, that, notwithstanding anything to the contrary contained in this section, no Party shall be

prohibited from publishing, disseminating or otherwise making public, without the prior written

approvai of the other Party or Parties, as appiicabie, any materiais that are derived from or

consistent with the materials included in the communications plan referred to above. In an effort

to coordinate consistent communications, the Parties shall agree upon procedures relating to all

press releases and public announcements concerning this Agreement and the transactions

contemplated hereby.

Section 9.19 No Successor or Transferee Liability. Except where expressly

prohibited under applicable Law or otherwise expressly ordered by the Bankruptcy Court, upon

the Closing, neither Purchaser nor any of its Affiliates or stockholders shall be deemed to (a) be

the successor of Sellers; (b) have, de facto, or otherwise, merged with or into Sellers; (c) be a

mere continuation or substantial continuation of Sellers or the enterprise(s) of Sellers; or (d)

other than as set forth in this Agreement, be liable for any acts or omissions of Sellers in the

conduct of Sellers’ business or arising under or related to the Purchased Assets. Without limiting

the generality of the foregoing, and except as othel~vise provided in this Agreement, neither

Purchaser nor any of its Affiliates or stockholders shall be liable for any Claims against Sellers

or any of their predecessors or Affiliates, and neither Purchaser nor any of its Affiliates or

stockholders shall have any successor, transferee or vicarious Liability of any kind or character

whether known or unknown as of the Closing, whether now existing or hereafter arising, or

whether fixed or contingent, with respect to Sellers’ business or any obligations of Sellers arising

prior to the Closing, except as provided in this Agreement, including Liabilities on account of

any Taxes arising, accruing, or payable under, out of, in connection with, or in any way relating

to the operation of Sellers’ business prior to the Closing.

Section 9.20 Time Periods. Unless otherwise specified in this Agreement, an

action required under this Agreement to be taken within a certain number of days or any other

time period specified herein shall be taken within the applicable number of calendar days (and

not Business Days); provided, however, that if the last day for taking such action falls on a day

that is not a Business Day, the period during which such action may be taken shall be

automatically extended to the next Business Day.

Section 9.21 Sellers’ Disclosure Schedule. The representations and warranties

of Sellers set forth in this Agreement are made and given subject to the disclosures contained in

the Sellers’ Disclosure Schedule. Inclusion of information in the Sellers’ Disclosure Schedule

shall not be construed as an admission that such information is material to the business,

operations or condition of the business of Sellers, the Purchased Assets or the Assumed

Liabilities, taken in part or as a whole, or as an admission of Liability of any Seller to any third

party. The specific disclosures set forth in the Sellers’ Disclosure Schedule have been organized

to correspond to Section references in this Agreement to which the disclosure may be most likely

to relate; ~, however, that any disclosure in the Sellers’ Disclosure Schedule shall apply

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 42 of 46
to, and shall be deemed to be disclosed for, any other Section of this Agreement to the extent the

relevance of such disclosure to such other Section is reasonably apparent on its face.

Section 9.22 No Binding Effect. Notwithstanding anything in this Agreement to

the contrary, no provision of this Agreement shall (i) be binding on or create any obligation on

the part of Sponsor, the United States Government or any branch, agency or political subdivision

thereof (a "fiponsor Affiliate") or the Government of Canada, or any crown corporation, agency

or department thereof (a "Canada Affiliate") or (ii) require Purchaser to initiate any Claim or

, . . .

y

Sponsor Affiliate, Government of Canada or any Canada Affiliate to comply with or abide by the

terms of this Agreement. No facts, materials or other information received or action taken by

any Person who is an officer, director or agent of Purchaser by virtue of such Person’s affiliation

with or employment by Sponsor, any Sponsor Affiliate, Government of Canada or any Canada

Affiliate shall be attributed to Purchaser for purposes of this Agreement or shall form the basis of

any claim against such Person in their individual capacity.

[Remainder of the page left intentionally blank]

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Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 43 of 46
IN WITNESS WHEREOF, each of the Parties hereto has caused this Agreement to be

executed by its duly authorized officer, in each case as of the date first written above.

GENERAL MOTORS CORPORATION

Name: Frederick A. Henderson

Title: President and Chief Executive

Officer

SATURN LLC

By:

Name: Jill Lajdziak

Title: President

SATURN DISTRIBUTION CORPORATION

By:

Name: Jill Lajdziak

Title: President

CHEVROLET-SATURN OF HARLEM, INC.

By:

Name: Michael Garrick

Title: President

VEHICLE ACQUISITION HOLDINGS LLC

BY: THE UNITED STATES DEPARTMENT OF

THE TREASURY, ITS SOLE MEMBER

By:,

Name: Duane Morse

Title: Chief Risk and Compliance Officer

SIGNATURE PAGE TO THE MASTER SALE AND PURCHASE AGREEMENT

Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 44 of 46
EXHIBIT F

CERTAIN EXCLUDED OWNED REAL PROPERTY

Site Name Property Address City State Zip

- ilmington Assembly Box 1512- 19899

2. Stamping -

Indianapolis

3. GMPT - Flint North

#5/# 10/#81

4. GMPT - Livonia

5. GMVM - Pontiac

Assembly

6. Stamping - Pontiac

North Campus1

7. Stamping - Grand

Rapids

8.

9. GMPT - Massena

340 White River Parkway

West Drive South 50

902 E Hamilton Avenue

12200 Middlebelt

2100 S Opdyke Road

220 East Columbia

300 36th Street SW

19804

2041

Indianapolis 1N 46206

Flint MI 48550

Livonia MI 48150

Pontiac MI 48341

Pontiac MI 48340

Wyoming MI 49548-

2107

48197- Ypsilanti MI 0935

13662- Massena NY 0460

44906- Mansfield OH 1269

Moraine OH 45439

Parma OH 44130

West Mifflin PA 15122

Fredericksburg VA 22408

GMPT - Willow Run 2930 Ecorse Road

Route 37 East

10.

11.

12.

13.

14.

Stamping - Mansfield

GMVM - Moraine

Assembly2

GMPT - Parma

Complex3

Stamping - Pittsburgh

GMPT -

Fredericksburg

2525 West Fourth Street

PO Box 2567 - 44906

2601 West Stroop Road

5400 Chevrolet Boulevard

PO Box 30098

1451 Lebanon School

Road

11032 Tidewater Trail

1Does not include Plant #14 and the real property underlying Plant #14 and associated utilities for stamping

and Powertrain facilities, which is part of the Transferred Real Property. 2 Does not include the GMPT - Moraine (DMAX) improvements and associated real property, which is part of

the Transferred Real Property.

3 Does not include the GMVM - Parma Stamping improvements and associated real property, which is part of

the Transferred Real Property.

1766792

Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 45 of 46
EXHIBIT G

CERTAIN RETAINED WORKERS’ COMPENSATION CLAIMS

Alabama

Georgia

New Jersey

()klahama

1766839

Case 2:09-cv-13616-AJT-MKM Document 164-12 Filed 12/20/10 Page 46 of 46