EXHIBIT 10.41
EXECUTION COPY
PURCHASE AGREEMENT
THIS PURCHASE AGREEMENT ("Agreement"), dated as of December
31, 2002 is entered into between McKESSON CAPITAL CORP., a corporation duly
organized and existing under the laws of Delaware, with its principal office at
One Post Street, San Francisco, California 94104 ("Seller") and GENERAL ELECTRIC
CAPITAL CORPORATION, a Delaware corporation ("Purchaser"), having an office at
20225 Watertower Blvd., Suite 300 Brookfield, Wisconsin 53045.
W I T N E S S E T H:
WHEREAS, Seller is, among other things, in the business of
leasing and financing the acquisition of various types of equipment, and in
connection therewith, has originated or otherwise acquired interests in certain
equipment financing transactions; and
WHEREAS, Seller desires to sell to Purchaser, and Purchaser
desires to purchase from Seller, all of Seller's right to receive certain
payments due to Seller pursuant to such financing transactions;
WHEREAS, McKesson Corporation, a Delaware corporation and the
parent company of Seller ("Parent"), will execute and deliver simultaneous
herewith a guaranty of the obligations of Seller hereunder and under any
ancillary documents executed in connection with the transactions contemplated
herein in the form of Exhibit C hereto (the "Guaranty"); and
WHEREAS, this Agreement is intended to state each party's
agreement with respect to such sale and purchase.
NOW, THEREFORE, in consideration of these premises and the
mutual promises and covenants contained herein, the parties hereto, intending to
be legally bound, agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Account shall mean any financing transaction listed on Exhibit
A attached hereto and made a part hereof.
Account Documents shall mean, with reference to each
individual Account, the rental or lease agreements (whichever is applicable),
any schedules, collateral security agreements, letters of credit, certificates
of deposit, guaranties, bills of sale, assignments, cross-default and/or cross
collateral agreements, or any other agreements, documents or instruments
evidencing a payment obligation under, providing security for, or otherwise
executed and delivered by any Account Party in connection with an Account,
including any document evidencing any Credit Enhancement, but excluding any
Ancillary Agreement.
Account Party shall mean any renter, lessee, buyer, borrower,
guarantor or other party named in any Account Document (other than any McKesson
Affiliate) or otherwise obligated to make payments on any Account.
Affiliate shall mean with respect to any Person, any other
Person that directly or indirectly controls, is controlled by or is under common
control with such Person.
Ancillary Agreements shall mean any maintenance agreement,
services agreement, license or license agreement, software agreement,
manufacturing or supply agreement, however designated, and any other agreements
not relating to the payment of rental or lease amounts in respect of any
Equipment, from time to time existing between any McKesson Affiliate and any
Account Party or any Affiliate of any Account Party.
Assignment shall mean the Bill of Sale and Assignment
substantially in the form of Exhibit B to this Agreement.
Business Day shall mean any day other than a day on which
banking institutions in New York City are authorized or required by law to
close.
Closing Date Servicer Advances shall have the meaning
specified in Section 3.2(a).
Closing Payment Amount shall mean $117,931,996.67 (being the
Preliminary Purchase Price less the Closing Date Servicer Advances).
Confidential Information shall mean all trade secrets or
confidential or proprietary information disclosed orally, visually or in writing
by one party to this Agreement to the other party. Confidential Information
shall include, without limitation, all information disclosed to Purchaser by
Seller identifying, or with respect to, any customer of Seller. Confidential
Information does not include information that: (i) is approved for release by
the written authorization of Seller; (ii) Purchaser can show was already in its
possession at the time of disclosure; (iii) is or becomes publicly available by
other than unauthorized disclosure by Purchaser; (iv) is received by Purchaser
from a third party who Purchaser reasonably believes is rightfully in possession
of such information free of any obligation to maintain its confidentiality; or
(v) is independently developed by Purchaser without access to the Confidential
Information.
Contract Rights shall mean the rights of Seller under the
Account Documents to the extent related to the Payment Rights.
Credit Enhancement shall mean any (i) security deposit,
unapplied advance or rental or lease payment, (ii) investment certificate,
certificate of deposit, hypothecation of investment or deposit account or like
instrument, (iii) letter of credit, repurchase agreement, agreement of indemnity
or guarantee, or (iv) recourse agreement, in each case, pledged, assigned, or
transferred as security for the performance of any obligation to make a Payment.
Equipment shall mean the equipment related to the Accounts.
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Event of Bankruptcy shall be deemed to have occurred with
respect to a Person when:
(a) Such Person shall consent to the appointment of a
custodian, receiver, trustee or liquidator (or other similar official) of
itself, or of a substantial part of its property, or shall admit in writing its
inability to pay its debts generally as they come due, a court of competent
jurisdiction shall determine that such Person is generally not paying its debts
as they come due or such Person shall make a general assignment for the benefit
of creditors;
(b) Such Person shall file a voluntary petition in
bankruptcy or a voluntary petition or an answer seeking reorganization in a
proceeding under any bankruptcy laws (as now or hereafter in effect) or an
answer admitting the material allegation of a petition filed against such Person
in any such proceeding, or such Person shall, by voluntary petition, answer or
consent, seek relief under the provisions of any now existing or future
bankruptcy or other similar law providing for the reorganization or winding up
of debtors, or providing for an agreement, composition, extension or adjustment
with its creditors;
(c) any assignment of rights or delegations of duties by
such Person with respect to its duties or rights under this Agreement, except as
specifically permitted under this Agreement, or any attempt to make such an
assignment or delegation; and
(d) a petition against such Person in a proceeding under
applicable bankruptcy laws or other insolvency laws, as now or hereafter in
effect, shall be filed and shall not be stayed, withdrawn or dismissed within 60
days thereafter, or if, under the provisions or any law providing for
reorganization or winding up of debtors which may apply to such Person, any
court of competent jurisdiction shall assume jurisdiction, custody or control of
such Person, or any substantial part of its property, and such jurisdiction,
custody or control shall remain in force unrelinquished, unstayed or
unterminated for a period of 60 days.
Financial Institution shall mean any commercial bank, finance
company or any other Person primarily engaged in the business of providing
financial services or financial products, organized under the laws of the United
States or any state thereof.
Governmental Entity shall mean a federal, state, provincial,
local, county, municipality or other governmental, regulatory or administrative
agency, department, commission, board, bureau, or other authority or
instrumentality, domestic or foreign.
Lockbox Account shall have the meaning given to such term in
the Services Agreement.
Lockbox Account Documents shall have the meaning specified in
Section 4.1(f).
Loss shall mean any loss, cost, damage, liability, deficiency,
fine, penalty or expense (including, without limitation, reasonable attorneys'
fees and other professional or expert fees), and damages to, loss of use of or
decrease in value.
Lien shall mean any lien, security interest, claim or
encumbrance.
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MAH shall mean McKesson Automation Inc., a Pennsylvania
corporation (successor in interest to McKesson Automated Healthcare Inc.).
MAS shall mean McKesson Automation Systems Inc., a Louisiana
corporation (successor in interest to McKesson Automated Prescription Systems
Inc.).
McKesson Affiliate shall mean McKesson Corporation, together
with each of its Subsidiaries.
Payment Rights shall mean the rights to receive the Payments.
Payments shall mean all lease or rental payments due or to
become due on an Account as of the date hereof, and shall include without
limitation late charges and all amounts due for Taxes to the extent that the
Account Documents require that an Account Party is responsible therefor, but
excluding (a) any payments required to be made to Seller in respect of any
indemnity claim on account of Tax or third party obligations incurred by Seller
in connection with any Equipment, Account or Account Document, (b) any payment
owing upon any default, termination event or casualty event under any Account
Document, to the extent relating to or providing compensation in respect of any
residual interest in the Equipment, or (c) without duplication, any payments in
respect of any Retained Payment Rights.
Permitted Assignee shall mean any Person that (a) is a
Financial Institution, (b) does not, either directly or through any of its
Subsidiaries, engage in the Restricted Activities and (c) has agreed to be bound
by Section 7.15 of this Agreement. For purposes of determining whether an
Affiliate of Purchaser is a Permitted Assignee, such Affiliate shall satisfy
clause (b) above so long as such Affiliate does not control directly or with
Purchaser or any Subsidiary of Purchaser or such Affiliate a business engaged in
the business described in such clause (b).
Person shall mean any natural person, trust, corporation,
limited liability company, estate, joint stock association, partnership, firm or
Governmental Entity.
Preliminary Purchase Price shall have the meaning specified in
Section 3.2(a).
Purchase Date shall mean the date on which Purchaser purchases
the Purchased Assets and delivers the Closing Payment Amount to Seller.
Purchase Price shall have the meaning specified in Section
3.2(a).
Purchased Assets shall mean the Contract Rights and the
Payment Rights.
Restricted Activities shall mean providing information
technology or software, or providing information technology support or services,
to healthcare organizations and providers (including, without limitation,
integrated delivery networks, hospitals, extended care facilities, physician
group practices, home health providers, managed care providers and payors)
relating directly or indirectly to the management of healthcare related
resources, inventory, records, data, workflow, quality control systems or
revenues, and other similar services engaged in by McKesson Information
Solutions Inc. from time to time.
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Retained Payment Rights shall mean (i) all Ancillary Payments
(as defined in the Services Agreement), (ii) all payments due or to become due
in respect of rentals or leases of equipment other than the Equipment, (iii)
payments due or to become due in respect of the Residual Interest (as defined in
the Services Agreement), (iv) all payments due or to become due in respect of
any sales, use or property tax or similar charge by any Governmental Authority
with respect to any Equipment, and (v) any and all amounts payable to Seller
pursuant to Section 7.17 of this Agreement.
Software shall mean any proprietary software, in object code,
licensed to an Account Party in connection with or in relation to any Equipment.
Subsidiary shall mean, with respect to any Person, any entity
of which more than 50% of the voting stock or other equity interest is owned
directly or indirectly by such Person, or which is controlled by such Person,
pursuant to any management agreement or otherwise.
Taxes shall mean any and all federal, state, local or foreign
taxes, fees, charges or assessments of any nature upon or in regard to the
Purchased Assets, Accounts, the Account Documents or the related Equipment,
levied or assessed at any time, including, but not limited to, any sales, use,
transfer or similar taxes, transactions, intangibles, ad valorem, value-added,
registration, title, license, stamp, personal property, Federal highway use,
custom, duty or other tax, governmental fee or other like assessment or charge
of any kind whatsoever (other than and not including income or franchise taxes),
together with any interest, penalties or additions thereto.
UCC shall mean the Uniform Commercial Code as in effect in the
applicable jurisdiction.
Upgrade shall mean, in respect of any Equipment, any new
release or any new version of such Equipment, or additional enhancements,
functionality or features, for which the McKesson Affiliates charge their
customers.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Seller. Seller,
as of the date hereof, hereby makes the following representations and warranties
to Purchaser, each of which is true and correct on the date hereof:
(a) Organization, Power and Qualification.
(i) Seller is a corporation duly organized,
validly existing and in good standing under the laws of the
State of Delaware and is duly qualified and in good standing
to do business in each jurisdiction in which the character of
its properties or the nature of its activities requires such
qualifications;
(ii) Seller has full corporate power and
authority to enter into this Agreement and to take any action
and execute any documents required by the terms hereof;
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(iii) This Agreement and all related transactions
(including, without limitation, the ability to transfer and
convey the Purchased Assets) have been duly authorized by all
necessary corporate proceedings, and this Agreement has been
duly and validly executed and delivered by Seller, and,
assuming due authorization, execution and delivery by
Purchaser, is a legal, valid and binding obligation of Seller,
enforceable in accordance with the terms hereof;
(iv) No consent, approval, authorization, order,
registration or qualification of, or with, any court or
regulatory authority or other governmental body having
jurisdiction over Seller, the absence of which would adversely
affect the legal and valid execution, delivery and performance
by Seller of this Agreement or the documents and instruments
contemplated hereby or the taking by Seller of any actions
contemplated herein, is required;
(v) None of Seller's execution and delivery of
this Agreement, Seller's consummation of the transactions
contemplated hereby or Seller's fulfillment of or compliance
with the terms and conditions of this Agreement conflicts with
or results in a breach of or a default under any of the terms,
conditions or provisions of any legal restriction by which
Seller is a party or is now bound (including, without
limitation, any judgment, order, injunction, decree or ruling
of any court or governmental authority, or any federal, state,
local or other law, statute, rule or regulation) or any
covenant or agreement or instrument to which Seller is now a
party, or by which Seller or any of Seller's property is now
bound, and none of such execution, delivery, consummation or
compliance by Seller will violate or result in a violation of
the Certificate of Incorporation or By-Laws of Seller;
(vi) Seller has valid title to the Purchased
Assets, free and clear of any Lien, and Seller has not
previously assigned, sold or hypothecated any interest that it
has in any Purchased Asset, and upon consummation of the
transactions contemplated hereby, Seller will convey to
Purchaser the Purchased Assets and will be entitled to all of
the benefits due and owing to Seller under the Account
Documents relating to the Purchased Assets;
(vii) There is no action, suit or proceeding
pending, or, to the knowledge of Seller, threatened, against
Seller in any court or by or before any Governmental Entity
which would materially affect the ability of Seller to carry
out the transactions contemplated by this Agreement; and
(viii) The chief executive office of Seller is the
address stated in the recitals above.
(b) Account Representations. The parties acknowledge that
Seller is a party to the Master Lease Receivables Purchase Agreement dated as of
January 1, 2000 between Seller and McKesson Automated Healthcare, Inc., a
Pennsylvania corporation ("MAH"), and the Lease Receivables Purchase and Service
Agreement dated as of October 1, 2001 between Seller and McKesson Automation
Systems Inc., a Louisiana corporation ("MAS"), pursuant to which Seller has
acquired its interest in the Purchased Assets and the Equipment. For each
Account:
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(i) Each Account and Account Document is genuine
and, in reliance, in part, on Purchaser's representation in
Section 2.2(c)(vi) herein, all of the Purchased Assets are
assignable by Seller to Purchaser without the prior written
consent of, or prior notice to, any Account Party;
(ii) Each Account was originated in connection
with the sale, financing or refinancing of one or more units
of Equipment for commercial or other business use, and all
costs, fees and expenses of Seller, MAH or MAS, as the case
may be, incurred in connection with the closing or
commencement of each such Account and any Account Document
have been paid;
(iii) Each Account was originated by MAH or MAS,
as the case may be, and interests therein acquired by Seller,
in each case, in the ordinary course of business of MAH, MAS
or Seller, as the case may be;
(iv) The terms and conditions contained in the
Account Documents reflect the entire agreement between parties
thereto in relation to the Payment Rights and there are no
other oral or written agreements or representations to which
Seller is a party in connection therewith;
(v) None of Seller, MAH nor MAS, as the case may
be, has directly or indirectly, in any way, extended or
otherwise restructured the payment terms or any other material
term or condition of any Account Document affecting or
relating to any Payment Right, or made any extension or other
accommodation to any Account Party for purposes of changing or
beneficially affecting the delinquency status of any Account;
(vi) Purchaser has been provided with a copy of
each form of lease agreement and rental agreement affecting or
relating to any Payment Rights and there has been no material
deviations therefrom in any provisions that could reasonably
be expected to have a material adverse effect on the
enforceability of the Payment Rights;
(vii) All names, addresses, amounts, dates,
signatures and other statements of facts contained in the
Account Documents are genuine, true and correct in all
material respects, to the extent that any inaccuracy or lack
of correctness would reasonably be expected to have an adverse
effect upon any Payment Right;
(viii) Exhibit A correctly reflects Seller's best
estimate of the total amount of Payments to be made on each
Account that will be payable to Purchaser after the date
hereof (net of any sales, use or similar taxes thereon);
(ix) No Payment on an Account to which Seller is
entitled that has a due date after the date hereof has been
prepaid;
(x) Each Account Document complies in all
material respects with all applicable federal, state, local
and other laws, rules, regulations and requirements
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promulgated by any Governmental Entity with respect to the
creation of such obligation, the billing or collection of
discounts, fees or similar charges, the amount of interest or
other charges which may be collected and the disclosure of
discounts, fees, interest or other charges, including without
limitation, laws pertaining to usury, truth-in-lending,
installment or conditional sales and sales financing; each
Account Document represents the legal, valid and binding
obligation of such Account Party, enforceable under all
applicable laws against such Account Party in accordance with
its terms, except to the extent that enforcement of remedies
may be limited by applicable bankruptcy, insolvency or similar
laws; to the Seller's knowledge, neither the billing and
collection nor the enforcement of any Account Document in
accordance with express contractual terms thereof will result
in the violation of any laws heretofore enacted by or
regulations promulgated or heretofore issued by any
Governmental Entity;
(xi) Except as set forth at Schedule 2.1(b)(xi),
no Account is delinquent in the payment of any amount due
thereunder, no Event of Bankruptcy has occurred and is
continuing with respect to any Account Party, each Account is
without default as to payment thereunder or under any Account
Document and no Account or Account Document is subject to any
legally valid defense, setoff, claim, recoupment, deduction,
right of rescission or counterclaim (other than any existing
under a contract, instrument or agreement between any Account
Party and Purchaser);
(xii) Except as set forth at Schedule 2.1(b)(xii),
there are no claims, suits, actions, administrative,
arbitration or other proceedings or governmental
investigations, including, without limitation, any
counterclaims or claims by any Account Party, pending or, to
the knowledge of Seller, threatened against Seller, MAH or MAS
relating to the Accounts or the acquisition, collection or
administration of the Accounts; none of MAH, MAS or Seller has
received any notice of, and, to the knowledge of Seller, there
is no valid basis for, any claim or assertion of liability
against MAH, MAS or Seller relating to the Accounts or the
acquisition, collection or administration thereof; none of
MAH, MAS or Seller has been party to any proceeding, and, to
the knowledge of Seller, there has not been any investigation
by or before any regulatory authority in connection with the
business practices of MAH, MAS or Seller with respect to the
Accounts, or the acquisition, collection or administration
thereof;
(xiii) Any down payment or advance rental or lease
payment that may be required to be paid by an Account Party
pursuant to the Account Documents on the Equipment related to
each Account has been fully paid in cash and no part thereof
has been loaned, directly or indirectly, by MAH, MAS or Seller
(or by any predecessor-in-interest to MAH, MAS or Seller), as
the case may be;
(xiv) All Equipment has been delivered to, and
unconditionally and irrevocably accepted under and for
purposes of the applicable Account Document, by the Account
Party;
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(xv) Seller has no knowledge of noncompliance of
any Equipment with any applicable federal, state, local or
other law, rule or regulation and, to the best of Seller's
knowledge, all Equipment is in good and working condition;
(xvi) MAH or MAS, as the case may be, has valid
title to or a perfected security interest in, with respect to
Account Documents constituting "leases intended as security"
(as such term is interpreted under applicable provisions of
the UCC) only, the Equipment, free and clear of any Lien;
Seller has valid title to or a perfected security interest in
the Purchased Assets and, with respect to Purchased Assets
relating to Account Documents constituting "leases intended as
security" (as such term is interpreted under applicable
provisions of the UCC) only, the Equipment, free and clear of
any Lien; and none of MAH, MAS or Seller, as the case may be,
has previously assigned, sold or hypothecated any interest
that it has in any Purchased Asset or Equipment;
(xvii) Attached hereto as Schedule 2.1(b)(xvii) is
a list, by item or type, of Credit Enhancements that have been
issued for the benefit of Seller to secure any Payment;
(xviii) No part of any property in which a security
interest has been created to secure any obligation to make a
Payment has been released from such security interest except
for releases in cases of repairs and replacements;
(xix) None of MAH, MAS or Seller, as the case may
be, has collected and is not holding any Credit Enhancement
that constitutes a security deposit or prepaid amount relating
to any Payment;
(xx) Except as provided at Schedule 2.1(b)(xx),
the Equipment is properly insured as required by the Account
Documents, and, to Seller's knowledge, none of MAH, MAS or
Seller, as the case may be, has been informed of nor received
any notice of any pending claims by or through any Account
Party against the manufacturer or supplier of any of the
Equipment based on express or implied warranties, product
liability or otherwise;
(xxi) Except as set forth in Schedule 2.1(b)(xi),
each Account Party is in full compliance with the Account
Documents, except to the extent any noncompliance would not
reasonably be expected to have an adverse effect upon any
Payment Right;
(xxii) Each Account Document constituting a
promissory note, certificated security (as defined in the
UCC), bond, warrant or chattel paper (as defined in the UCC)
obtained as collateral, is the original and only original of
such document and is in the possession of Seller;
(xxiii) Except as provided at Schedule
2.1(b)(xxiii), all outstanding Taxes levied or assessed
against each respective Account or the related Equipment have
been fully paid by Seller or by the Account Party, as the case
may be;
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(xxiv) Except as set forth at Schedule
2.1(b)(xxiv), MAH or MAS, as the case may be, has filed UCC
financing statements in respect of each Account, naming the
applicable lessee as debtor and specifying the Equipment as
collateral or subject to a lease; and Seller has filed UCC
financing statements in respect of the Purchased Assets and
the Equipment;
(xxv) No Credit Enhancement that constitutes a
broker fee or reserve or any other commission or similar fee
directly, or indirectly, is due or owing now or in the future
with respect to any Account; and
(xxvi) There are no civil, criminal or
administrative actions, suits, claims, hearings, injunctive
proceedings, investigations or proceedings (including, but not
limited to, any counterclaims) pending or threatened against
Seller or any Affiliate of Seller with respect to any Account
or Account Document, and none of MAH, MAS or Seller has
received any notice in respect thereof.
(c) Brokers. No person acting on behalf of Seller or
under the authority of Seller, is or will be entitled to any brokers' or
finders' fee or any other commission or similar fee, directly or indirectly,
from any of the parties hereto in connection with any of the transactions
contemplated hereby.
Section 2.2 Representations and Warranties of Purchaser.
Purchaser hereby represents and warrants to Seller as of the date hereof as
follows:
(a) Organization, Power and Qualification.
(i) Purchaser is a corporation duly organized,
validly existing and in good standing under the laws of the
state of its incorporation and is duly qualified and in good
standing to do business in each jurisdiction in which the
character of its properties or the nature of its activities
requires such qualification;
(ii) Purchaser has full corporate power and
authority to enter into this Agreement and to take any action
and execute any documents required by the terms hereof;
(iii) This Agreement has been duly authorized by
all necessary corporate proceedings, has been duly and validly
executed and delivered by Purchaser, and, assuming due
authorization, execution and delivery by Seller, is a legal,
valid and binding obligation of Purchaser, enforceable in
accordance with the terms hereof;
(iv) No consent, approval, authorization, order,
registration or qualification of, or with, any court of law or
regulatory authority or other governmental body having
jurisdiction over Purchaser, the absence of which would
adversely affect the legal and valid execution, delivery and
performance by Purchaser of this Agreement or the purchase
contemplated hereunder, is required;
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(v) None of the execution and delivery of this
Agreement, the consummation of the transactions contemplated
hereby or the fulfillment of or compliance with the terms and
conditions of this Agreement conflict with or result in a
breach of or a default under any of the terms, conditions or
provisions of any legal restriction (including, without
limitation, any judgment, order, injunction, decree or ruling
or any court or governmental authority, or any federal, state,
local or other law, statute, rule or regulation) or any
covenant or agreement or instrument to which Purchaser is now
a party, or by which Purchaser or any of Purchaser's property
is bound, nor does such execution, delivery, consummation or
compliance violate or result in the violation of the
Certificate of Incorporation or By-Laws of Purchaser;
(b) Brokers. No person acting on behalf of the Purchaser
or under the authority of Purchaser is or will be entitled to any broker's or
finder's fee or any other commission or similar fee, directly or indirectly,
from any of the parties hereto in connection with any of the transactions
contemplated hereby.
(c) Purchaser's Business; Diligence; Non-Reliance.
(i) Purchaser is entering into this Agreement in
the ordinary course of its business;
(ii) Purchaser has obtained and is in good
standing under all licenses, consents and approvals of any and
all Governmental Entities as necessary in order to undertake
the transactions contemplated by this Agreement, including,
without limitation, in respect of usury laws;
(iii) Purchaser does not engage in the Restricted
Activities;
(iv) Purchaser is acquiring the Purchased Assets
for its own account for investment and not with a view or
intent to resell or distribute the Purchased Assets. Purchaser
understands that, accordingly, the Purchased Assets and the
transaction contemplated hereby are not registered under the
Securities Act of 1933, as amended, or state securities or
"blue sky" laws, and that the Purchased Assets are being sold
to it in a transaction that is exempt from securities
registration requirements under such laws. If in the future
Purchaser decides to dispose of the Purchased Assets, it
agrees that it will do so only in a transaction exempt from
the Securities Act of 1933, as amended, and exempt under state
securities or "blue sky" laws;
(v) Purchaser (A) has reviewed the Account
Documents and other due diligence materials requested by or
made available to it as it deems appropriate and has consulted
with its own legal, accounting, equipment and tax advisors
with respect thereto; (B) has made an independent credit
investigation and evaluation of Seller and the financing terms
that are the subject of the Account Documents on the basis of
such information as it has deemed appropriate; (C) has entered
into this Agreement on the basis of its own independent
evaluation; (C) will continue
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to make its own credit decisions, based on such information as
it deems appropriate, in connection with the Purchased Assets;
and (E) has sufficient knowledge and experience in financial
and business matters to enable it to evaluate the merits and
risks of acquiring the Purchased Assets. Purchaser
acknowledges that it has relied on no representations or
warranties of Seller other than those set forth expressly in
this Agreement and the Services Agreement; and
(vi) Purchaser is a Financial Institution.
ARTICLE III
CERTAIN AGREEMENTS OF THE PARTIES
Section 3.1 Agreement to Purchase and Sell. In reliance
upon the representations and warranties set forth above and subject to the
fulfillment of all the terms and conditions of this Agreement, Seller hereby
agrees to sell, assign, transfer and set over to Purchaser, and Purchaser hereby
agrees to purchase, and without recourse to Seller or any other McKesson
Affiliate, except as provided in Section 6.1 and Section 6.2 hereof, the
Purchased Assets. Said sale and assignment of the Purchased Assets shall be
effective as of the date hereof, subject to satisfaction of the conditions
specified in Section 4.1 and Section 4.2 hereof. Contemporaneously with the
Closing, Seller shall execute and deliver the Bill of Sale and Assignment in the
form of Exhibit B hereto and in accordance with Section 4.1 hereof. THIS
AGREEMENT IS INTENDED TO REFLECT A SALE OF 100% OF SELLER'S RIGHT, TITLE AND
INTEREST IN AND TO THE PURCHASED ASSETS AND SHALL IN NO WAY BE CONSTRUED AS AN
EXTENSION OF CREDIT BY PURCHASER TO SELLER.
Section 3.2 Purchase Price.
(a) The aggregate purchase price is $120,166,811.44 (the
"Preliminary Purchase Price"), subject to adjustment pursuant to Section 3.3
herein (as so adjusted, the "Purchase Price"), which amount includes Servicer
Advances (as defined in the Services Agreement and as described in Schedule
2.1(b)(xi)) in the amount of $2,234,814.77, subject to adjustment pursuant to
Section 3.3 herein (the "Closing Date Servicer Advances"). The portion of the
total Purchase Price allocable to the fees for Management Services (as defined
in the Services Agreement) to be performed by Seller under the Services
Agreement equals $500,000. Purchaser shall pay (i) the Closing Payment Amount,
and (ii) if the Purchase Price less the Closing Date Servicer Advances is
greater than the Closing Payment Amount, the amount by which the Purchase Price
less the Closing Date Servicer Advances exceeds the Closing Payment Amount, to
Seller, in any case without deduction, setoff, claim or counterclaim, by wire
transfer of immediately available funds, to Seller's account in accordance with
Schedule 3.2(a). The Seller shall, if the Closing Payment Amount is greater than
the Purchase Price less the Closing Date Servicer Advances, pay the amount by
which the Closing Payment Amount exceeds the Purchase Price less the Closing
Date Servicer Advances to Purchaser, without deduction, setoff, claim or
counterclaim, by wire transfer of immediately available funds, to Purchaser's
account in accordance with Schedule 3.2(a).
12
(b) The sale and assignment made in this Section shall
not diminish, alter or affect in any way any Account Party's obligations under
any Account or the related Account Documents, which are and shall be in full
force and effect.
Section 3.3 Post-Closing Procedures.
(a) During the period of sixty (60) days following the
date hereof, each of Seller and Purchaser shall be entitled to perform all
procedures and take any other steps that it deems appropriate to confirm that
the information set forth on Exhibit A is true, complete and correct and
conforms with the terms and conditions of the Account Documents. Within such
60-day period, each of Seller and Purchaser may, by delivery of a writing to the
other party, propose changes to the information set forth in such specified
columns of Exhibit A ("Proposed Changes") and suggested adjustments to the
Purchase Price using a discount rate of 6.21% applied to scheduled future
Payments as of the date hereof ("Proposed Adjustments"), each calculated as the
increase or decrease in the Payment balance resulting from the Proposed Change,
such change to be calculated in accordance with generally accepted accounting
principles in the United States consistent with Seller's past practices.
(b) If Seller shall fail to respond to any of Purchaser's
Proposed Changes or Proposed Adjustments within thirty (30) days after receipt
by Seller thereof, Seller shall be deemed to have accepted such Proposed Change
or Proposed Adjustment. If Purchaser shall fail to respond to any of Seller's
Proposed Changes or Proposed Adjustments within thirty (30) days after receipt
by Purchaser thereof, Purchaser shall be deemed to have accepted such Proposed
Change or Proposed Adjustment.
(c) In the event of any dispute between Seller and
Purchaser regarding any Proposed Change or Proposed Adjustment that cannot be
resolved within thirty (30) days after receipt thereof by Seller or Purchaser,
as applicable, each of Seller and Purchaser shall have the right, upon delivery
of written notice to the other party, to require that such dispute be resolved
by a public accounting firm with nationally recognized auditing expertise, which
shall be jointly selected by Purchaser and Seller and, if Seller and Purchaser
cannot so agree, shall be selected by lot from two or more public accounting
firms with nationally recognized auditing expertise, each of whom shall not have
been selected by Parent or General Electric Company to audit its consolidated
financial statements for the then-current fiscal year or any of the three
immediately preceding fiscal years (the "Selected Accounting Firm"). The
Selected Accounting Firm shall resolve only issues upon which Purchaser and
Seller have been unable to agree. Seller and Purchaser shall use commercially
reasonable efforts to enable the decision of the Selected Accounting Firm to be
rendered within thirty (30) Business Days after the appointment of the Selected
Accounting Firm. Each of Seller and Purchaser reserves all legal and other
equitable rights and remedies to enforce or challenge the decision rendered by
the Selected Accounting Firm.
(d) Each of Seller and Purchaser shall pay its own fees
and expenses in connection with the tasks outlined in this Section 3.3. All fees
and expenses of the Selected Accounting Firm shall be borne pro rata by Seller
and Purchaser in proportion to the allocation of the disputed amount between
Seller and Purchaser by the Selected Accounting Firm, such that the prevailing
party pays a lesser portion, or none, of such fees and expenses.
13
ARTICLE IV
CONDITIONS TO PURCHASE
Section 4.1 Purchaser's Conditions Precedent to
Purchase. The obligation of Purchaser to purchase the Purchased Assets is
subject to the fulfillment (or waiver by Purchaser) of each of the following
conditions precedent:
(a) Purchaser shall receive an Assignment and Bill of
Sale in the form of Exhibit B attached hereto, executed by Seller;
(b) Seller shall not be in default in the performance of
any obligation hereunder or under the Services Agreement in any material
respect, and all representations and warranties of Seller contained herein or in
the Services Agreement shall be true and correct in all material respects;
(c) No MCC Event of Default (as defined in the Services
Agreement) shall have occurred and be continuing;
(d) Seller shall have executed and delivered to Seller
the Services Agreement in the form attached hereto as Exhibit D (the "Services
Agreement"); and
(e) Seller shall cause to be delivered to Purchaser, in
form and substance satisfactory to Purchaser, such opinions of counsel as
Purchaser may reasonably request regarding certain issues related to the
transactions contemplated herein, including, without limitation, (1) the status
of Seller, (2) the perfection of a security interest in the Purchased Assets in
favor of Purchaser, and (3) the enforceability of the Assignment and Bill of
Sale in favor of Purchaser.
Section 4.2 Seller's Conditions Precedent to Purchase.
The obligation of Seller to sell to Purchaser the Purchased Assets is subject to
the fulfillment (or waiver by Seller) of each of the following conditions
precedent;
(a) Purchaser shall deliver to Seller the Closing Payment
Amount in accordance with Section 3.2(a) hereof;
(b) Purchaser shall have executed and delivered to Seller
the Services Agreement; and
(c) The Purchaser shall not be in default in the
performance of any obligation hereunder or under the Services Agreement in any
material respect, and all representations and warranties of Purchaser contained
herein or in the Services Agreement shall be true and correct in all material
respects.
14
ARTICLE V
PROTECTION OF PURCHASER
Section 5.1 UCC-1 Financing Statements; Turnover of
Documents to Purchaser.
(a) Where applicable, Seller at its own expense will
execute and deliver to Purchaser, within five (5) Business Days following the
date hereof, financing statements on Form UCC-1 prepared by Purchaser necessary
to perfect Purchaser's first priority security interest in the Purchased Assets.
(b) If requested by Purchaser, Seller, at its own cost
and expense, will promptly deliver to Purchaser copies of any or all Account
Documents to the extent relating to the Purchased Assets. Notwithstanding the
foregoing, upon the termination by Purchaser of the Services Agreement pursuant
to Section 11 of the Services Agreement, Seller shall, at its own cost and
expense, deliver to Purchaser promptly following such default: (i) originals of
any or all Account Documents constituting chattel paper (as defined in the UCC);
(ii) originals of all Account Documents relating solely to the Purchased Assets;
(iii) copies of all other Account Documents; and (iv) such other memorialized
data, documents and records related to the documents referenced in clauses (i),
(ii) and (iii) above (including without limitation true copies of any computer
tapes and data in computer memories) as Purchaser may reasonably deem necessary
to enable it to enforce its rights thereunder or protect its position as owner
or holder of the Purchased Assets. In addition, in the event that Purchaser
assumes servicing responsibilities for any Account pursuant to Section 2 of
Exhibit A to the Services Agreement, the Seller shall deliver the documents
described in clauses (i) through (iv) above that relate to such Account. After
any delivery under this Section 5.1(b), Seller will not keep or retain any
executed counterpart or other copy of any such documents referenced in clauses
(i) and (ii) above, or related material, without clearly marking the same to
indicate conspicuously that the same is not the original and that transfer
thereof does not transfer any rights against any Account Party or any other
Person. Notwithstanding any provision to the contrary contained herein, Seller
shall have no obligation to deliver to Purchaser any documents relating to
Exempt Materials (as defined in the Services Agreement).
Section 5.2 Protection of Ownership Interest of
Purchaser.
(a) Seller will from time to time do and perform any and
all acts (other than the payment of money) and execute any and all documents
(including, without limitation, the execution, amendment or supplementation of
any financing statements or continuation statements relating to the Purchased
Assets, the Accounts and/or the interests purchased pursuant hereto) for filing
under the provisions of the UCC or other applicable statute of any applicable
jurisdiction, the execution, amendment or supplementation of any instrument of
transfer as may be reasonably requested by Purchaser in order to effect the
purposes of this Agreement and the sale contemplated hereunder and to perfect
and protect the interest of Purchaser in the Purchased Assets against all
Persons whomsoever to the maximum extent necessary to protect Purchaser's
interest; provided, however, that, notwithstanding the foregoing, so long as no
MCC Event of Default or MCC Change of Control (each as defined in the Services
Agreement) has occurred and is continuing, Seller shall be under no obligation
(i) to obtain any estoppel, waiver or consent
15
from any Person relating to or in respect of any Equipment, (ii) to deliver
original counterparts of any or all Account Documents to Purchaser, or (iii) to
notify any Account Party of Purchasers' interest in the Purchased Assets.
Notwithstanding the foregoing, in the event that Purchaser assumes servicing
responsibilities for any Account pursuant to Section 2 of Exhibit A to the
Services Agreement, Purchaser shall have the right to cause Seller to take the
actions described in clauses (i) through (iii) above with respect to such
Account.
(b) As of the date hereof, Purchaser is hereby designated
Seller's attorney-in-fact to sign and file, on behalf of Seller, financing and
continuation statements and amendments thereto and any other documentation
pertaining to the Purchased Assets and any other interests purchased pursuant
hereto, to the extent consistent with the proviso contained in Section 5.2(a).
Section 5.3 Administration of Taxes.
(a) Payment of Taxes. After the date hereof, Seller shall
pay all Taxes as levied by any taxing authority in any jurisdiction (i) with
respect to the Payments and Purchased Assets on or prior to the date hereof and
(ii) with respect to the Equipment and the Retained Payment Rights, and
Purchaser or its Affiliates shall pay all Taxes as levied by any taxing
authority in any jurisdiction with respect to the ownership of the Payments and
Purchased Assets after the date hereof. Notwithstanding the foregoing, in the
case of Taxes that are not the direct responsibility of Seller, MAH or MAS or
Purchaser (including Taxes for which Seller, MAH or MAS or Purchaser is
secondarily liable as collection agent), Seller or Purchaser, as the case may
be, shall only be liable hereunder to the extent payment is received on account
of such Taxes from the applicable Account Party. For purposes of this Section
5.3(b), (i) personal property taxes in respect of which the assessment (lien)
date occurs on or before the date hereof shall be deemed to be Taxes levied by a
taxing authority with respect to the ownership of the Purchased Assets on or
prior to the date hereof and (ii) personal property taxes in respect of which
the assessment (lien) date occurs after the date hereof shall be deemed to be
Taxes levied by a taxing authority with respect to the ownership of the
Purchased Assets after the date hereof.
(b) Cooperation with Respect to Tax Returns. Purchaser
and Seller agree to furnish or cause to be furnished to each other, and each at
their own expense, as promptly as practicable, such information and assistance
as is reasonably necessary for the filing of any Tax return, for the preparation
for any audit, and for the prosecution or defense of any claim, suit or
proceeding relating to any adjustment or proposed adjustment with respect to
Taxes or any appraisal of the Purchased Assets. Seller shall retain in its
possession all Tax returns and tax records relating to the Payments and the
Purchased Assets that might be relevant to any taxable period ending on or prior
to the date hereof until the relevant statute of limitations has expired. After
such time, Seller may dispose of such materials, provided that prior to such
disposition Seller shall give Purchaser a reasonable opportunity to take
possession of such materials.
(c) Transfer Taxes. Seller shall be liable for and shall
pay (and shall indemnify and hold harmless Purchaser against) all sales, use,
stamp, documentary, filing, recording, transfer or similar fees or taxes or
governmental charges (including, without limitation, UCC filing fees, title
recording or filing fees and other amounts payable in respect of transfer
filings) as levied by any Governmental Entity in connection with the
transactions
16
contemplated by this Agreement (other than taxes measured by or with respect to
income imposed on Purchaser or its Affiliates).
(d) Income Tax. Notwithstanding anything set forth in
this Agreement, or in the Services Agreement or the Assignment, Seller shall not
be responsible to Purchaser, and Purchaser shall not be responsible to Seller,
for any federal, state or local taxes based upon or measured by net income or
gains from the sale, transfer and assignment of the Purchased Assets from Seller
to Purchaser.
ARTICLE VI
REPURCHASE AND INDEMNITY
Section 6.1 Mandatory Repurchase. In the event of a Loss
related to a Purchased Asset, solely to the extent arising from or directly
related to a breach by Seller of any of its representations or warranties set
forth in Article II of this Agreement, Seller will, within ten (10) Business
Days after receipt of notice of such Loss (such notice to be delivered by
Purchaser within 30 days after first becoming aware of the incurrence of such
Loss and to contain in reasonable detail a description of such Loss and the
relationship to such underlying breach), without first requiring Purchaser to
proceed against any Account Party or any other Person for any security,
repurchase the Purchased Asset directly affected thereby and pay Purchaser in
cash an amount equal to (a) the portion of the Purchase Price allocable to such
Purchased Asset (such allocation to be undertaken on a ratable basis, in
accordance with the relative discounted Payments as of the Purchase Date), less
(b) the amount of all Payments previously paid to Purchaser and allocable to
such Purchased Asset, discounted to the Purchase Date at a per annum rate of
6.21%, plus (c) interest on the difference of (a) minus (b) calculated from the
Purchase Date to the date of payment at 6.21% per annum. Upon receipt of such
payment by Seller, Purchaser shall reassign the Purchased Asset, without
recourse against or warranty by Purchaser, and shall promptly deliver a release
regarding such Purchased Asset to Seller. Such payment shall constitute
liquidated damages, and shall be the sole and exclusive remedy available to
Purchaser in connection with or in respect of any such breach of representation
and warranty.
Section 6.2 Indemnification. Seller shall indemnify and
save harmless Purchaser, its successors and Permitted Assigns from and against
any and all suits, claims, counterclaims, Losses or liabilities of any kind
Purchaser shall suffer as a result of: (a) any negligence of Seller, or of any
agent or employee of Seller, or any warranty given by Seller in respect of the
purchase, installation, delivery, maintenance and condition of any Equipment;
(b) any breach by Seller of any warranty, representation, covenant or agreement
contained herein or in the Services Agreement, or in any Account Document not
fully covered under Section 6.1 above; (c) any Loss, liability, demand or cause
of action and any expense incidental to the defense thereof by Purchaser from
the use, possession, operation or installation of any Equipment; and (d) any
Taxes (including, without limitation, any sales tax, use tax, excise tax,
personal property tax, assessments and ad valorem tax) and any governmental
charges, fees, fines or penalties whatsoever, levied against any Payment for any
periods prior to the date hereof and not paid by the respective Account Party or
Seller and including any Taxes arising on the purchase and sale contemplated
hereunder; provided, however, that, except for any indemnity sought pursuant to
Section 6.2(b) above as to which this proviso shall not apply, notwithstanding
any term or provision hereof to the contrary, Seller shall be under no
obligation to indemnify or
17
save harmless Purchaser, its successors or assigns, from or against any suits,
claims, counterclaims, Losses or liabilities of any kind that Purchaser shall
suffer (i) solely to the extent arising from or directly related to any such
indemnified Person's negligence or willful misconduct, (ii) to the extent the
same constitutes directly or indirectly recourse for uncollectible or
uncollected Payments, or (iii) to the extent resulting from any Event of
Bankruptcy of any Account Party, or the unexcused failure of any Account Party
to perform in accordance with the terms of the applicable Account Documents.
Section 6.3 Survival. The rights and obligations of
Seller under this Article 6 shall survive the execution of this Agreement,
consummation of the purchase and sale contemplated hereunder, any Payment or any
repurchase by Seller of any Purchased Asset.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Recording and Other Fees. Seller agrees to
pay all recording fees, assessments or other statutory fees necessary to perfect
Purchaser's interests in the Purchased Assets purchased hereunder or in
consummating the transactions contemplated hereby.
Section 7.2 Successors and Assigns. Seller may not
assign all or any of its rights or delegate all or any of its duties hereunder,
other than to a McKesson Affiliate. Subject to Section 16 of the Services
Agreement, Purchaser may assign its rights hereunder to a Permitted Assignee
without affecting Seller's duties and obligations hereunder, including, without
limitation, any indemnification and recourse obligations of Seller hereunder,
provided, however, that no such assignment shall have the effect of increasing
the recourse obligations of Seller.
Section 7.3 Payments; Calculations.
(a) Each payment to be made hereunder by Seller (not
including payments from Account Parties being forwarded by Seller in its
capacity as servicer under the Services Agreement) shall be made on the required
payment date in lawful money of the United States and in immediately available
or same day funds.
(b) Any calculation of interest made under this Agreement
shall be determined on the basis of a year of 365 days, actual days elapsed.
(c) If Seller fails to pay any amount that may become due
to Purchaser hereunder on its due date, then (i) interest shall accrue thereon
from the due date until paid in full at a rate equal to 4% per annum, and (ii)
Seller shall reimburse Purchaser upon demand for any and all collection costs
(including, without limitation, reasonable attorneys' fees) incurred by
Purchaser.
Section 7.4 Waivers. Except to the extent specific time
periods are specified for exercising any power, right or remedy, no failure or
delay on the part of Seller or Purchaser in exercising any power, right or
remedy under this Agreement or, in the case of Purchaser, any assignment shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such
18
power, right or remedy preclude any other or further exercise thereof or
the exercise of any other power, right or remedy.
Section 7.5 Notices; Publicity.
(a) All communications and notices pursuant hereto, to
any party shall be in writing and addressed or delivered to it at its address
shown in the opening portion of this Agreement, or at such other address as may
be designated by it by notice to the other party and shall be effective when
received.
(b) There shall be no press release or public
announcement with respect to this Agreement or the transactions contemplated
hereby without both Seller's and Purchaser's prior written consent.
Section 7.6 Deliveries to Purchaser. All terms and
amounts to be delivered, remitted or otherwise furnished by Seller to Purchaser
pursuant hereto or in connection herewith shall, except as otherwise provided
for herein, be delivered, remitted or furnished to Purchaser at its office at
20225 Watertower Blvd., Suite 300 Brookfield, Wisconsin 53045, or at such other
place as may be agreed upon.
Section 7.7 Merger and Integration; Amendments, Etc.
This Agreement, the Services Agreement and the other agreements and instruments
delivered hereunder set forth the entire understanding of the parties relating
to the subject matter hereof, and all other and/or prior understandings, written
or oral, are hereby superseded. This Agreement may not be modified, amended,
waived, terminated or supplemented except in accordance with its express terms
and in writing executed by Seller and Purchaser.
Section 7.8 Headings and Cross-References. The various
headings in this Agreement are included for convenience only and shall not
affect the meaning or interpretation of any provision of this Agreement.
References to any Section are to such Section of this Agreement.
Section 7.9 Governing Law. This Agreement shall be
governed by the internal substantive laws of the State of New York
(excluding its choice of law provisions).
Section 7.10 Counterparts. This Agreement may be signed
in two or more counterparts (and by different parties on separate counterparts),
each of which shall be an original and all of which shall be taken together as
one and the same agreement.
Section 7.11 Severability. If any provision hereby is
void or unenforceable in any jurisdiction, such voidness or unenforceability
shall not affect the validity or enforceability of (i) such provision in any
other jurisdiction or (ii) any other provision herein in such or any other
jurisdiction.
Section 7.12 Survival of Duties, Warranties and
Representations. Each party hereto covenants that its respective duties,
warranties and representations set forth in this Agreement, and in any document
delivered or to be delivered in connection herewith, shall
19
survive the execution of this Agreement and the closing of the transactions
contemplated hereunder.
Section 7.13 Jury Trial Waivers. SELLER AND PURCHASER
EACH HEREBY UNCONDITIONALLY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF, DIRECTLY OR INDIRECTLY, THIS
AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY, ANY OF THE RELATED
DOCUMENTS, ANY DEALINGS BETWEEN THE PARTIES HERETO RELATING TO THE SUBJECT
MATTER HEREOF OR THEREOF, AND/OR THE RELATIONSHIP THAT IS BEING ESTABLISHED
BETWEEN SELLER AND PURCHASER. The scope of this waiver is intended to be all
encompassing of any and all disputes that may be filed in any court (including,
without limitation, contract claims, tort claims, breach of duty claims, and all
other common law statutory claims). THIS WAIVER IS IRREVOCABLE, MEANING THAT IT
MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THE WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THE
AGREEMENT OR ANY RELATED DOCUMENTS. In the event of litigation, this Agreement
may be filed as a written consent to a trial by the court.
Section 7.14 Security Interest. The parties hereto intend
that the transactions contemplated herein shall constitute a purchase and sale
of the Purchased Assets. If, notwithstanding the foregoing, a court of competent
jurisdiction were to hold that the purchase of the Purchased Assets hereunder
does not constitute a valid sale or transfer of the Purchased Assets as set
forth above, but instead constitutes a loan in the amount of the Purchase Price
or otherwise, then this Agreement shall be deemed a present grant of a security
interest (within the meaning of the UCC) in favor of the Purchaser and all of
the Seller's right, title and interest in and to the Purchased Assets, the
Equipment and the Lockbox Account to secure such loan in the initial amount of
the Purchase Price. Seller hereby grants a first priority security interest to
the Purchaser in all of the Seller's right, title and interest in and to the
Purchased Assets, the Equipment and the Lockbox Account, and this Agreement
shall constitute a security agreement within the meaning of the UCC.
Section 7.15 Confidentiality.
(a) Purchaser agrees that, except as required by judicial
order or governmental laws or regulations, Purchaser shall use the Confidential
Information solely for the purpose of administering and enforcing the
transactions contemplated herein and in the Services Agreement and any document
or instrument related thereto. Purchaser agrees to hold the Confidential
Information in confidence by security measures, devices and procedures equal to
those used by it in securing its own confidential documents, but in any event,
by no less than a reasonable degree of care. Purchaser further agrees that the
Confidential Information shall be disclosed by it only to those of its
Affiliates, and those directors, officers, employees and representatives,
including attorneys, accountants and auditors, of Purchaser who need to know
such Confidential Information for the purpose of administering and enforcing the
transactions contemplated herein and in the Services Agreement and any document
or instrument related thereto, and, in the case of officers, directors and
employees, who are engaged solely in the affairs of Purchaser (and not of any
Affiliate of Purchaser that now or hereafter engages in the Restricted
Activities).
20
(b) Seller agrees that it will not, and will instruct its
representatives not to, disclose to any other Person any deal structuring or
pricing information or strategies provided to it by Purchaser.
Section 7.16 Regulation. Seller and Purchaser acknowledge
and agree that the sale and purchase of the Purchased Assets contemplated by
this Agreement and the transactions contemplated herein do not constitute a
transaction for which a filing under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976 is necessary or required.
Section 7.17 Upgrades; Extension; Lessee Purchase
Options.
(a) Upgrades. Notwithstanding any provision to the
contrary contained herein, in the event that any Account Party elects to rent,
lease or purchase any Upgrade pursuant to the terms of any Account Document,
that requires the execution and delivery of a new Account Document in
replacement of or supplement to the then existing Account Documents ("Upgrade
Account Document"), Purchaser agrees that any resulting increase in the lease,
rental or other payments to be paid under the Existing Account Document and
Upgrade Account Document on account of any such Upgrade shall be for the account
of and paid to, Seller (and the remaining original portion of such lease, rental
or other payment shall continue to be paid to Purchaser).
(b) Lease Renewals and Extensions. Notwithstanding any
provision to the contrary contained herein, in the event that any Account Party
exercises any renewal or extension of any Account Document, Purchaser agrees
that any rental or other payments due in connection with such extension or
renewal shall be for the account of, and paid to, Seller.
(c) Payments Held in Trust. Any amount payable to Seller
pursuant to this Section 7.17 that is inadvertently paid to Purchaser shall be
held in trust by Purchaser for the benefit of, and promptly paid following
notice thereof, to Seller.
Section 7.18 Attorneys' Fees. Each party shall be
responsible for the payment of its own attorneys' fees, expenses and any other
costs incurred in connection with the negotiation and closing of the
transactions contemplated by this Agreement and any other documents executed in
connection herewith.
Section 7.19 Post-Closing Guaranty. Seller shall deliver
to Purchaser the Guaranty in the form of Exhibit E hereto, duly executed by
Parent, no later than January 10, 2003, which shall supercede the Guaranty of
Parent delivered on the date hereof.
Section 7.20 Assignment of Lockbox Account. No later than
January 10, 2003, Purchaser shall have received such documents as may be
reasonably required to assign and transfer to Purchaser the Lockbox Account
(collectively, the "Lockbox Account Documents"), duly executed by Seller and the
bank at which the Lockbox Account is maintained. From the date hereof through
the effective date of the Lockbox Account Documents, Seller shall cause all
amounts paid into the Lockbox Account in respect of any Payment or Account
Documents to remain in such account, shall not, and shall not permit any of its
Affiliates to, sweep or otherwise withdraw any funds from such account and
shall, and shall cause its Affiliates to, deposit to the
21
Lockbox Account any amounts so swept or otherwise withdrawn between the date
hereof and the effective date of the Lockbox Account Documents.
[Remainder of page intentionally left blank.]
22
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunder duly authorized
as of the day and year first above written.
McKESSON CAPITAL CORP. GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Nicholas Loiacono By: /s/ James J. Ambrose
--------------------- ----------------------------------------
Title: Vice President and Title: General Manager, Healthcare Financial
Treasurer Services Equipment Finance
Signature Page to the Purchase Agreement
SCHEDULE 2.1(b)(xi)
DELINQUENT OR DEFAULTED ACCOUNTS
[See attached]
SCHEDULE 2.1(b)(xii)
CLAIMS, ACTIONS, PROCEEDINGS, ETC.
None.
SCHEDULE 2.1(b)(xvii)
CREDIT ENHANCEMENTS
None.
SCHEDULE 2.1(b)(xx)
INSURANCE COVERAGE EXCEPTIONS; MANUFACTURER CLAIMS
None.
SCHEDULE 2.1(b)(xxiii)
TAX MATTERS
None.
SCHEDULE 2.1(b)(xxiv)
UCC FINANCING STATEMENTS
None.
EXHIBIT A
ACCOUNTS
[See attached]
EXHIBIT B
BILL OF SALE AND ASSIGNMENT
McKesson Capital Corp. ("Seller") issues this Bill of Sale and
Assignment ("Bill of Sale") to General Electric Capital Corporation
("Purchaser").
Background
Sellers and Purchaser are parties to that certain Purchase
Agreement dated as of December 31, 2002 (the "Purchase Agreement") pursuant to
which Seller is delivering this Bill of Sale to Purchaser. Unless the context
hereof specifically indicates otherwise, each of the capitalized terms used
herein shall have the meaning ascribed to it in the Purchase Agreement.
1. Assignment of Purchased Assets.
Seller hereby sells and assigns without recourse to Seller or any of
the McKesson Affiliates, except to the extent set forth in Sections 6.1 and 6.2
of the Purchase Agreement, to Purchaser all of Seller's right, title and
interest, legal or equitable, in and to the Purchased Assets, and Purchaser
hereby purchases and accepts assignment of the aforedescribed right, title and
interest.
2. Miscellaneous.
(a) Survival. The representations, warranties and agreements made
herein shall survive the execution and delivery hereof.
(b) Successors and Assigns. This Bill of Sale shall be binding
upon, and inure to the benefit of, Seller and Purchaser and their respective
successors and assigns.
(c) Governing Law. This Bill of Sale shall be governed by and
interpreted under the laws of the State of New York applicable to contracts made
and to be performed therein, without giving effect to the principles of conflict
of laws thereof.
(d) Captions. Captions used herein are inserted for reference
purposes only and shall not affect the interpretation or construction of this
Bill of Sale.
(e) Course of Dealing. No course of dealing between Purchaser and
Seller, nor any delay in exercising any rights or remedies hereunder or
otherwise, shall operate as a waiver of any of the rights and remedies of
Purchaser or Seller.
(f) Severability. The invalidity or unenforceability of any
provision of this Bill of Sale shall not affect the validity or enforceability
of any other provision.
(g) Further Assurances, Seller agrees to execute and deliver to
Purchaser, or its successors and assigns, as the case may be, all such further
instruments and documents as may reasonably be requested by Purchaser, or its
successors and assigns, as the case may be, for the better assuring and
confirming to Purchaser, or its successors and assigns, as the case may be, all
rights to and interests in the Payments.
(h) Conflict. This Bill of Sale and Assignment is delivered under
and pursuant to the provisions of the Purchase Agreement described hereinabove.
In the event of a conflict between the terms hereof and the terms of the
Purchase Agreement, the terms of the Purchase Agreement shall govern and
control.
(i) Disclaimer of Warranties. EXCEPT AS SET FORTH IN THE PURCHASE
AGREEMENT, SELLER MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATION OR
WARRANTY, EXPRESS OR IMPLIED, OF ANY NATURE OR KIND CONCERNING THE EQUIPMENT OR
THE PURCHASED ASSETS, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY, FITNESS FOR INTENDED PURPOSE OR OTHERWISE.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale and
Assignment as of December 31, 2002.
McKESSON CAPITAL CORP.
By: _______________________
Title:_____________________
Accepted and Agreed to:
GENERAL ELECTRIC CAPITAL CORPORATION
By: _____________________________
Title: __________________________
B-2
EXHIBIT C
GUARANTY
[See attached]
EXHIBIT D
SERVICES AGREEMENT
[See attached]
EXHIBIT E
POST-CLOSING PARENT GUARANTY