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Document Preview Asset Purchase Agreement |
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Title: |
Asset Purchase Agreement |
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Date: |
2004 |
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Size: |
Preview shows 7KB of 24KB total |
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Price: |
$42 |
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ID: |
#330002 |
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Exhibit 10.1
AMENDMENT AND WAIVER NO. 1
TO ASSET PURCHASE AGREEMENT
AMENDMENT AND WAIVER NO. 1 dated as of July 30, 2004 (this ?Agreement?) among CVS Pharmacy, Inc., a Rhode Island corporation (the ?Purchaser?), CVS Corporation, a Delaware corporation (?CVS?), J.C. Penney Company, Inc., a Delaware corporation (the ?Parent?), and the Sellers listed on Exhibit A attached hereto (including, Eckerd Corporation, a Delaware corporation (?Eckerd?), collectively, the ?Sellers?), to the Asset Purchase Agreement dated as of April 4, 2004 (the ?Asset Purchase Agreement?) among Purchaser, CVS, Parent and the Sellers.
W I T N E S S E T H:
WHEREAS, the Purchaser, CVS, the Parent and the Sellers desire to amend certain provisions of the Asset Purchase Agreement, clarify certain of their respective rights and obligations under the Asset Purchase Agreement and make provisions relating to the Closing, upon the terms and subject to the conditions hereinafter set forth;
NOW, THEREFORE, the Purchaser, CVS, the Parent and the Sellers hereby agree as follows:
Section 1. Defined Terms. Capitalized terms not otherwise defined herein shall have the meaning set forth in the Asset Purchase Agreement.
Section 2. Delivery of Estimated Purchase Price. The Sellers hereby direct the Purchaser to deliver the Estimated Purchase Price on their behalf as follows: $1,353,093,211.94 (the ?JCP Capital Amount?) to JCP Capital Corporation (?JCP Capital?) and the remainder (the ?TDI Amount?) to TDI Consolidated Corporation (?TDI?).
Section 3. Escrow Closing. Section 1.14 of the Asset Purchase Agreement is renumbered as Section 1.14(a) and a new subsection (b) and a new subsection (c) are added thereto to read in their entirety as follows:
| (b) | If Bank of America, N.A. (the ?Escrow Agent?), Purchaser, CVS, Parent, Sellers and the Stock Purchaser (together with other appropriate parties) enter into an agreement (the ?Escrow Agreement?) in form and substance satisfactory to them, then notwithstanding the provisions of Section 1.14(a), the Closing shall occur in the following manner and the Closing Date shall be as specified below: |
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(i) Upon execution and delivery of the Escrow Agreement by the parties thereto (which will only occur if (i) the conditions set forth in Section 5.01 and Section 5.03(b) of this Agreement have been satisfied or waived in writing, and (ii) this Agreement has not been terminated or abandoned as provided in Article 6 hereof), (x) the Purchaser shall deliver the Estimated Purchase Price by depositing the JCP Capital Amount into an account (the ?JCP Capital Account?) maintained by it for such purpose at the Escrow Agent and depositing the TDI Amount into one or more accounts (the ?TDI Accounts?) maintained by it for such purpose at the Escrow Agent and assigning, effective as of the Closing, all of its rights, title and interest, including any liabilities and obligations, with respect to, and all monies and funds deposited in, the JCP Account to JCP Capital and the TDI Accounts to TDI, in each case, free and clear of Liens and Encumbrances, (y) except as provided in Section 1.14(b)(vi), the Purchaser shall make all of the other Closing deliveries specified in Section 1.15(a) of this Agreement to the Escrow Agent as provided in the Escrow Agreement; and (z) except as provided in Section 1.14(b)(vi), Parent and Sellers shall deliver the items specified in Sections 1.15(b) of this Agreement to the Escrow Agent as provided in the Escrow Agreement. The foregoing deliveries are referred to as ?Transfers-in-Escrow.? The documents to be delivered as provided in subclause (y) shall be placed in a box (the ?Sellers Box?) that is sealed in the presence of a representative of (or counsel to) Parent and labeled for delivery to Parent. The documents to be delivered as provided in subclause (z) shall be placed in a box (the ?Purchaser Box?) that is sealed in the presence of a representative of (or counsel to) Purchaser and labeled for delivery to Purchaser. |
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