Exhibit 10.17a


 


AMENDMENT AGREEMENT


 


This Amendment Agreement (“Amendment”) is made as of this 22nd day of
October, 2003, by and between Omnicell, Inc., a
Delaware corporation, as successor to Omnicell Technologies, Inc., a California
corporation (“Seller”), and General Electric Capital
Corporation, a Delaware corporation, as successor to General
Electric Company, a New York corporation (“Purchaser”).


 


Recitals
of Fact


 


A.  The parties hereto have
entered into a Program Agreement, executed on June 4, 1999, and June 7, 1999
(the “Program
Agreement”), by Seller and Purchaser, respectively; and


 


B.  It was the original intent
of the parties to the Program Agreement that the sales from the Seller to the
Purchaser under the Program Agreement constitute nonrecourse true sales of
equipment, leases, and receivables under such leases, and in particular that
the sale of equipment lease receivables constitute a true sale of receivables
for purposes of FAS 140 (or its predecessor FAS 125).  Each of the parties now wishes to rectify and amend, effective as
of June 7, 1999, the terms and conditions of the Program Agreement which are
inconsistent with this original intent of the parties, so as to clarify the
nonrecourse true sale nature of the sales from the Seller to the Purchaser.  This recital as to intent does not, however,
override the express terms of the Program Agreement as amended by this
Amendment.


 


NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Seller and Purchaser agree to
amend the Purchase Agreement as follows:


 


1.             Definitions.  Unless otherwise defined herein, the defined
terms used herein shall have the same meanings set forth in the Program
Agreement.  All references in the
Program Agreement to “GE” shall be deemed to refer to “Purchaser.”


 


2.             Amendments.


 


(a)           Exhibit A to the Program
Agreement is hereby deleted in its entirety.


 


(b)           Each of Section 1(e),
1(h), 1(m), 1(r), 2, 4, 6, 7, 9, 10, 14(g), 14(i), 14(j), 14(k), 14(l), 14(o),
14(s), 16, 19, and 20 of the Program Agreement is hereby deleted in its
entirety and replaced by the new Section 1(e), 1(h), 1(m), 1(r), 2, 4, 6, 7, 9,
10, 14(g), 14(i), 14(j), 14(k), 14(l), 14(o), 14(s), 16, 19, and 20,
respectively, set forth below:


 


Section
1.e:


“e.           ‘Default
by OMNICELL’ means (i) a material breach by OMNICELL of any representation or
warranty in this Agreement as of the date such representation or warranty was
made or reaffirmed; or (ii) a material breach by OMNICELL of any covenant of
this Agreement, which breach is not cured within 30 days after written notice
to OMNICELL; or (iii) a material default of any agreement by which OMNICELL is
bound in connection with a Transaction or Service Agreement which leads to a


 


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Customer’s failure to pay GE, and such failure to pay has a reasonable
opportunity of being adjudicated as a justifiable non-payment because of
OMNICELL’s breach.”


 


Section
1.h:


“h.           ‘Lease’
means a Schedule and, to the extent incorporated therein, the related Master
Rental Agreement, between OMNICELL and a Customer, which have subsequently been
assigned to GE, for a specified term during which GE shall be the owner of the
relevant Equipment (not the Software) and the Customer shall be allowed the use
of such Equipment and related Software; provided, however, that in the event that
the Customer enters into a combined “Master Rental and Service Agreement,” or
any similar document in which there are obligations to make payments for both
(a) the lease of a System and (b) the provision of related services, the term
“Lease” shall refer to such combined agreement only insofar as it relates to
the lease of equipment and software, and not the provision of service,
maintenance and updated versions of existing Software capabilities.”


 


Section
1.m:


“m.          “Purchase
Price” means the amount funded by GE to OMNICELL based on the discounted rental
payments of the Lease.”


 


Section
1.r:


“r.            “Transaction”
means the lease of a System by OMNICELL in the form of a Lease or other product
offered under the Program, but does not include any servicing.”


 


Section
2:


“2.           ORIGINATING
TRANSACTIONS.  OMNICELL agrees that
during the term of this Agreement, OMNICELL will refer GE to its Customers as
the entity that will finance the Customer’s acquisition of the System; provided
that nothing contained herein shall (a) require OMNICELL to offer financing
options through GE to any prospective customer who has requested that another
company finance such customer’s acquisition of a System or who has not
requested financing or (b) impair OMNICELL’s ability to seek third party
financing for any prospective customer whose Application has been declined by
GE, nor will it require OMNICELL to propose GE as a funding source in
Transactions where the Customer is not a hospital.  GE will be given first right of refusal on all new Transactions
where the Customer is a hospital and has a Customer Credit Rating Category of
“A”.  In cases where the hospital is
adding to an existing Lease, OMNICELL reserves the right to place that Schedule
with the original financing company.”


 


Section
4:


“4.           REVIEW.  OMNICELL will, prior to document
preparation, provide the name, address and Taxpayer Identification Number of
the prospective Customer to GE.  GE will
attempt to complete its review based upon publicly available information.  If insufficient information is publicly
available, in the reasonable determination of GE, then GE may request that
OMNICELL obtain additional reasonable credit information directly from the
Customer and will notify OMNICELL within two (2) business days of its receipt
of the name, address and Taxpayer ID number of the prospective Customer if such


 


2

















 


additional information is needed. 
To the extent they may legally do so, OMNICELL representatives will
assist in providing any credit information regarding a prospective Customer
which is reasonably requested by GE. 
Upon receipt thereof, GE will review and either approve or reject the
Customer, at GE’s sole discretion, and will notify OMNICELL of its
determination and of the customer credit rating category (as shown on Exhibit
“E”), if applicable, to which it has assigned the prospective Customer.  It is anticipated that seventy-five percent (75%)
of Customer Credit Rating Category, as a proportion of total dollar volume,
will be classified as “A” or “B”. 
Should the actual percentage fall below this percentage, then the
Relationship Managers will meet to discuss changes to this Agreement they deem
necessary to achieve this target.  GE
will complete its review (i) within three (3) business days after receipt of
all information required to complete such review where the Transaction size is
under $250,000; within five (5) business days in the case of any Transaction
where the Transaction size is between $250,000 and $2,000,000 and within ten
(10) business days in the case of any Transaction where the Transaction size is
over $2,000,000 and (ii) as soon as practicable and in no event later than ten
(10) business days after receipt of all information required to complete such
review in the case of any Transaction where the prospective Customer is a
non-hospital healthcare provider.  If GE
fails to meet these time frames on a Transaction, then OMNICELL may take that
specific Transaction to another financing source.  GE may suggest alternative financing structures which enable it
to approve an Application. OMNICELL will advise the Customer of the approval or
rejection of the proposed Transaction, and will deliver to GE the Final
Document Package for each approved Transaction.  GE will provide any notice required to be sent to a prospective
Customer under the Equal Credit Opportunity Act and/or Regulation “B” or other
applicable statute or regulation in the event of a rejected Application.”


 


Section
6:


“6.           FUNDING.  Provided that GE has not revoked its
approval of a Transaction pursuant to Section 5, GE will pay OMNICELL the
Purchase Price of the Transaction, within five (5) business days (or such other
period as the parties mutually agree in writing) following GE’s receipt of the
Final Document Package.”


 


Section
7:


“7.           EQUIPMENT
TITLES AND WARRANTIES.  (a) OMNICELL
hereby (i) consents to the assignment to GE of and all warranty rights in
connection with, the Equipment related to such Transaction, (ii) agrees that,
upon the acceptance of the related System by the applicable Customer, it will
deliver to GE a properly executed Bill of Sale in the form of Exhibit F,
and (iii) agrees that GE will not be liable for any obligations of such
Customer.  (b) OMNICELL will bear all
risk of loss to the System until the date of its acceptance by the
Customer.  (c) In the event any Customer
returns or fails to accept any part of the System for any reason whatsoever
prior to the date on which GE pays the Purchase Price to OMNICELL, GE may
assign its rights to OMNICELL and thereafter will have no further liability to
OMNICELL or to such Customer.”


 


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Section
9:


“9.  SERVICE CONTRACTS.  (a) OMNICELL will offer service contracts to
prospective Customers which provide for Systems service and maintenance and
updated versions of existing Software capabilities (“Service Agreements”); provided,
however, that in the event that the Customer enters into a combined
“Master Rental and Service Agreement,” or any similar document in which there
are obligations to make payments for both (A) the lease of a System and (B) the
provision of related services, the term “Service Agreement” shall refer to such
combined agreement only insofar as it relates to the provision such service,
maintenance and updated versions of existing Software capabilities, and not the
lease of equipment and software.  In the
event that a prospective Customer agrees to enter into a Service Agreement, in
conjunction with a Transaction, which OMNICELL would like GE to finance or bill
and collect on OMNICELL’s behalf, then OMNICELL shall notify GE of such event
and shall provide GE with a copy of the applicable Service Agreement.  Following consultation with OMNICELL, and
provided OMNICELL has requested that GE do the following, and in any event
within five (5) business days, GE shall, at its option, elect (i) to bill and
collect the Service Agreement on behalf of OMNICELL at no charge to OMNICELL or
(ii) fund OMNICELL an amount equal to payments due under the Service Agreement
over its initial term discounted from the due date thereof to the date of
payment at the Standard Rate.


 


(b) If GE elects to bill and collect the
Service Agreement on behalf of OMNICELL, then GE shall provide its customary
billing and collections services in connection with such Service Agreement and
shall remit to OMNICELL all payments actually collected by GE with respect to
such Service Agreement on or before the tenth day of each month following the
month the money is collected.  In the
event that any Customer makes a single payment to GE for amounts owed under the
Transaction and amounts owed to OMNICELL under the Service Agreement and such
payment is insufficient to pay in full the amounts then due to GE and OMNICELL,
then GE shall either (A) apply such payment as directed by the applicable
Customer (which direction may be solicited by GE within a reasonable time after
receipt of such payment) or (B) deduct from the single payment its pro rata
share of such payment based upon the amounts then due to GE and OMNICELL by
such Customer, and remit the remaining amount to OMNICELL.  GE shall have no liability or responsibility
to OMNICELL for any default by the applicable Customer under the applicable
Service Agreement or for any monies related to Service Agreements which are not
actually received by GE.


 


(c) In the event that (i) the Customer
enters into a combined “Master Rental and Service Agreement,” or any similar
document in which there are obligations to make payments for both (A) the lease
of a System and (B) the provision of related services (a “Combined Lease”), and (ii)
under such Combined Lease the Customer is obligated to make payments that are
not broken down between rental payments and service payments, then for purposes
of this Agreement, and specifically the definitions of “Lease” and “Service
Agreement,” seventy-five percent (75%) of each such payment shall be deemed to
relate to the lease of the System and twenty-five percent (25%) shall be deemed
to relate to the provision of services.”


 


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Section
10:


“10.         SYSTEM
UPGRADES AND EARLY TERMINATIONS. 
Notwithstanding anything to the contrary, OMNICELL reserves the right to
enter into additional Leases with a Customer for whom GE has purchased other
Leases.  (a) If any Customer notifies GE
that it wishes to have GE finance the replacement of Equipment originally
subject to a Transaction (the “Original Equipment”) with new Equipment (the
“Upgrade Equipment”), or the original Software (“Original Software”) with
Software which offers new capabilities (as opposed to an updated version of
existing capabilities) (the “New Software”), GE will notify OMNICELL of the
Customer’s request.  Following such
notification, unless an Event of Cancellation has occurred and subject to
credit approval, at GE’s sole discretion, GE will finance, pursuant to paragraph
(c) below, the acquisition by such Customer of Upgrade Equipment and
New Software (if applicable) which will replace, in whole or in part, the
Original Equipment and Original Software (if applicable).


 


(b) [intentionally omitted]


 


(c) If the Upgrade Equipment and New Software
(if applicable) replaces all or in part the Equipment and Software originally
subject to the Transaction, that portion of the Net Book Value of the original
Transaction pertaining to Equipment and Software which has not been replaced
will be added to the Purchase Price of the Upgrade Equipment and New Software
(if applicable) to determine the payments due during the remainder of the term
of the new Transaction.  OMNICELL shall
have no payment obligation to GE.


 


(d) If any Customer notifies GE that it
wishes GE to finance its acquisition of Upgrade Equipment and New Software, GE
will notify OMNICELL of the Customer’s request.  If (i) GE declines to finance the Customer’s acquisition of such
Upgrade Equipment and New Software or (ii) Customer will no longer be using
some or all of the Original Equipment and Original Software and GE will not
allow the entire Net Book Value of the old Transaction to be refinanced under
the new Transaction, GE will: (A) if GE declines to finance the Upgrade, permit
the Customer to terminate the original Transaction without penalty upon the
payment to GE of an amount equal to the Net Book Value of the applicable
Transaction, or (B) in the case of the Customer not using some or all of the
Original Equipment and Original Software, require, as a condition to the credit
approval of the new Transaction, that the Customer terminate the original
Transaction without penalty upon the payment to GE of an amount equal to the
Net Book Value of the applicable Transaction or portion thereof that is not
refinanced.  Upon receipt of the Net
Book Value, GE will pass title to the Original Equipment to OMNICELL (if
applicable) for one dollar ($1.00) free and clear of all liens attributable to
GE, and reassign any financing statements related thereto.


 


(e) If any Customer notifies GE that it
wishes to terminate any Transaction prior to its scheduled expiration date for
any reason other than an upgrade, GE will notify OMNICELL of the Customer’s
request.  Following such notification,
GE will permit the Customer to terminate the applicable Transaction upon (i)
the expiration of a thirty (30) day notice period and (ii) the payment to GE of
an amount equal to the Net Book Value


 


5

















 


of the applicable Transaction, plus a fee for early termination of 5%
of the amount funded if such termination occurs in the first year, 4% of the
amount funded if such termination occurs in the second year, 3% of the amount
funded if such termination occurs in the third year, 2% of the amount funded if
such termination occurs in the fourth year and 1 % of the amount funded if such
termination occurs in the fifth year. 
Upon early termination, OMNICELL may purchase the related Equipment back
from GE for one dollar ($1.00) free and clear of all liens attributable to GE.”


 


Section
14(g), (i), (j),(k), (l), (o) and (s):


“(g) OMNICELL will honor any agreements made or warranties given by
OMNICELL under the Lease to any Customer in connection with such Transaction,
provided they are in writing and duly executed.


 


(i) GE will have good title to the Equipment free and clear of all
liens, claims, and encumbrances on the date it is accepted by a Customer,
subject only to (a) the interest of the Customer under the Lease and (b) the
interest of OMNICELL under this Agreement.


 


(j) Neither OMNICELL nor its agents have participated in or have any
knowledge of any fraudulent act in connection with such Transaction.


 


(k) The System will be delivered to and accepted by the named Customer,
properly installed and will be in good working order, condition and repair,
conforming to specifications, reasonable wear and tear excepted, on the date
title to said specific Equipment is transferred to GE.


 


(l) All credit or other information, reasonably relevant to a credit
decision concerning the Customer, known to OMNICELL and which can be lawfully
provided by OMNICELL to GE was disclosed to GE.


 


(o) The financial statements of OMNICELL delivered to GE from time to
time fairly present the financial position of OMNICELL as of the dates thereof
and the results of operations of OMNICELL for the periods covered thereby, all
in conformity with generally accepted accounting principles applied on a
consistent basis.


 


(s) If OMNICELL is a private company, OMNICELL will provide written
notice of a material change in a material portion of its stock or asset
ownership.”


 


Section
16:


“16.         REMARKETING
ASSISTANCE.  (a) Upon the occurrence of
a failure of a Customer to pay GE any amounts owed GE within sixty (60) days
after the applicable due date, upon GE’s request and provided that GE has made
the applicable Equipment legally available, OMNICELL will use commercially
reasonable efforts to obtain physical possession of the System; provided
further, that OMNICELL shall not be required to take any legal
action or to commence any legal proceeding against the Customer to obtain
possession.  GE shall promptly reimburse
OMNICELL for all costs related to taking possession, including but not limited
to deinstallation and transportation.


 


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OMNICELL will then have a first right of refusal to purchase the
Equipment at GE’s Net Book Value. 
Should OMNICELL choose not to purchase the Equipment, OMNICELL will
promptly provide GE with a written estimate of its costs of repair,
refurbishment, insurance and remarketing (“Out-Of-Pocket Costs”).  If GE approves such Out-Of-Pocket Costs,
OMNICELL will repair and refurbish the System, including replacing the existing
Software configuration with its most recent available Software upgrades (if
necessary), and attempt to remarket the System to a third party on a ninety
(90) day basis during the Remarketing Period. 
If the Equipment has not been remarketed by OMNICELL within the ninety
(90) day period, GE and OMNICELL may agree to continue to have OMNICELL
remarket the equipment for additional period(s) or GE shall be able to remarket
the equipment itself.  GE will pay
OMNICELL its previously approved Out-Of-Pocket Costs, but will not be obligated
to pay Out-Of-Pocket Costs which exceed the estimated Out-Of-Pocket Costs by
more than five percent (5%).  If GE does
not approve such Out-Of-Pocket Costs, (i) OMNICELL shall have a right of first
refusal to purchase the Equipment for an amount equal to GE’s Net Book Value,
and (ii) if OMNICELL does not exercise such right of first refusal within ten
(10) days after written notice from GE of such failure to approve the
Out-Of-Pocket Costs, OMNICELL will promptly cause the System to be crated and
safely delivered to a location selected by GE and GE will use commercially
reasonable efforts to remarket the System and distribute the proceeds pursuant
to this Agreement.


 


(b)           In performing its remarketing
responsibilities hereunder: (i) OMNICELL will remarket the System on a
non-discriminatory and non-priority basis, as compared to substantially similar
used equipment and software owned by OMNICELL or another party to whom OMNICELL
may be bound to provide remarketing assistance; (ii) OMNICELL will refurbish
and upgrade the System and make available maintenance service to any subsequent
purchaser or lessee of the Equipment and licensee of the Software at OMNICELL’s
then current market rates; (iii) OMNICELL will grant a valid license to the
Software to any subsequent purchaser or lessee of the Equipment upon such
purchaser’s or lessee’s acceptance of OMNICELL’s standard software license
agreement; (iv) OMNICELL will not permit any lien or encumbrance to attach to
the System by or through OMNICELL, and will waive any right or claim to the
Equipment which may arise in connection with its remarketing services; (v)
OMNICELL will warrant that the System that is delivered to customers will be in
good working order, condition and repair, conforming to specifications
according to OMNICELL’s current warranty policy for used equipment and will
meet all applicable governmental standards; and (vi) OMNICELL will not agree to
any sales price or lease terms without GE’s prior approval.


 


(c)           If OMNICELL, GE, or any other party is able
to remarket the System to a third party, subject to the terms of the applicable
Lease and the UCC, if applicable, the Remarketing Proceeds will be distributed
in the following manner: (i) first, to OMNICELL, to the extent not already paid
or reimbursed by GE, an amount equal to the sum of (A) its approved Out-Of-Pocket
Costs, and (B) any other costs of taking possession, including but not limited
to deinstallation and transportation; (ii) second, to GE, an amount equal to
the applicable Net Book Value; (iii) third, to OMNICELL, any excess Remarketing
Proceeds.”


 


7

















 


Section
19:


“19.         TERM AND TERMINATION.  This Agreement shall be effective upon
execution by GE and OMNICELL and shall continue from such effective date for a
period of five (5) years, unless sooner terminated by either party upon the
occurrence of a Termination Event or without cause with ninety (90) days prior
written notice.  Upon the expiration or
termination of this Agreement, the obligations of the parties with respect to
Transactions not funded by GE shall cease, but all obligations with respect to
Transactions which have been funded by GE shall survive.  If this Agreement is terminated upon the
occurrence of a Default by OMNICELL, GE’s sole remedy will be, as to Service
Agreement payments purchased by GE, (i) to require OMNICELL to repurchase all
remaining service fee payments owed to GE by a Customer under all Service
Agreements materially adversely affected by said Termination Event discounted
to the present value using the Standard Rate used when the applicable Service
Agreement was purchased by GE or (ii) to exercise its rights under Section 14B.  Notwithstanding anything in this Agreement
to the contrary, OMNICELL shall not be required to repurchase any rental
payments under any Lease, which rental payments GE is unable to collect due to
the insolvency, bankruptcy, or financial inability to pay of any Customer.”


 


Section 20:


“20.         ASSIGNMENT OF RIGHTS.  The rights and obligations of GE and
OMNICELL under this Agreement may not be assigned without the prior written
consent of the other party; provided that GE may without prior written consent
assign any of its rights hereunder or under any Transaction to an affiliate or
other entity in which a majority of the common stock is owned directly or indirectly
by GE, and OMNICELL may without prior written consent assign any of its rights
to payment hereunder to any party.  GE
may, in its sole discretion, securitize or syndicate its rights under any
Transaction.”


 


(c)           A new Section 14A shall
be added to read as follows:


 


Section
14A:


 


“14A.      REPRESENTATIONS AND WARRANTIES OF OMNICELL
REGARDING SERVICE AGREEMENTS.  OMNICELL
hereby represents, warrants and covenants to GE, its permitted successors and
assigns, as of the date hereof, of the Application and on each date that
payments under a particular Service Agreement (an “Assigned Service Agreement”)
are purchased by GE, that:


 


(a) OMNICELL is a duly organized and validly
existing corporation in its state of incorporation and has full power to enter
into this Agreement and to carry out the transactions contemplated hereby.


 


(b) The execution and delivery of this
Agreement and the performance by OMNICELL of the transactions contemplated
hereby have been duly authorized by all necessary corporate action.


 


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(c) This Agreement constitutes a legal, valid
and binding obligation of OMNICELL enforceable in accordance with its terms.


 


(d) Neither the execution of this Agreement
nor the consummation of the transactions contemplated hereby will constitute
(i) a violation or default of any material statute, rule, or decree of any
court, administrative agency or governmental body to which OMNICELL is subject,
or (ii) a material default with respect to any material indenture, loan
agreement or other agreement to which OMNICELL is bound.


 


(e) All documents relating to the Assigned
Service Agreement, to which OMNICELL is a party or by which it is bound will be
genuine, legal, valid, and binding obligations of OMNICELL.


 


(f) In all documents where OMNICELL is
responsible for obtaining the Customer’s signature, the signature of the named
Customer is, to the best of OMNICELL’s knowledge, genuine, and the individual
signing on behalf of the Customer holds the office set forth below his signature.


 


(g) OMNICELL will (i) honor any agreements
made or warranties given by OMNICELL under the Assigned Service Agreement to
any Customer in connection with such Assigned Service Agreement, and (ii) will
service and maintain the System in accordance with any agreements made or
warranties given by OMNICELL in connection with any Transaction (including,
without limitation, any applicable downtime protection agreements), if the
failure to so service and maintain will give the Customer the right to terminate
the applicable Lease, return the System or avoid liability for any obligations
otherwise owing to GE under such Lease; provided that, in all cases, such
agreements or warranties are in writing and duly executed.  GE’s remedies under applicable law for any
breach by OMNICELL under this Section 14A(g) shall be in addition to any
remedy that might be available under Section 16 or Section 19 hereof.  In the event a Lease is terminated and the
System is returned as described in subpart (ii) above, such System may be
remarketed pursuant to Section 16 and any avoided liabilities
shall be deemed defaulted lease payments in the calculation of Net Book Value
under Section
16.


 


(h) OMNICELL has not received and kept any
rent or other monies from any Customer in respect of any Assigned Service
Agreement (other than any required down payments) which is owed to GE and
OMNICELL will immediately remit any funds owed to GE which it may receive.


 


(i) Neither OMNICELL nor its agents have
participated in or have any knowledge of any fraudulent act in connection with
such Assigned Service Agreement.


 


(j) All credit or other information,
reasonably relevant to a credit decision concerning the Customer, known to
OMNICELL and which can be lawfully provided by OMNICELL to GE was disclosed to
GE.


 


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(k) As of the date hereof, there are no suits
or proceedings pending or, to the knowledge of OMNICELL, threatened in any
court or before any regulatory commission, or other administrative or
governmental agency against or affecting OMNICELL which is reasonably likely to
materially impair OMNICELL’s ability to perform its obligations hereunder or in
connection with any Assigned Service Agreement.


 


(l) All sales, use, or property taxes applicable
to the services assessed or imposed prior to the time GE pays the applicable
purchase price for payments under an Assigned Service Agreement, will have been
paid or will be timely remitted by OMNICELL to the appropriate taxing
authority, and OMNICELL will on request provide GE with proof of such payment
as promptly as possible.


 


(m) The financial statements of OMNICELL
delivered to GE from time to time fairly present the financial position of
OMNICELL as of the dates thereof and the results of operations of OMNICELL for
the periods covered thereby, all in conformity with generally accepted
accounting principles applied on a consistent basis.


 


(n) If OMNICELL is a private company,
OMNICELL will provide written notice of a material change in a material portion
of its stock or asset ownership.”


 


(d)           A new Section 14B shall
be added to read as follows:


 


Section
14B:


 


“14B.      COVENANT OF OMNICELL REGARDING SERVICE
AGREEMENTS.  In the event that an
Assigned Service Agreement is terminated prior to expiration of the stated term
of such Assigned Service Agreement, as a result of a Service Agreement
Termination Event (defined below), then OMNICELL shall, not more than 30 days
after written notice from GE, repurchase the Remaining Unearned Payments
(defined below) from GE for a purchase price equal to the Remaining Unearned
Payments originally purchased by Purchaser with each such payment discounted to
its present value from the date thereof to the date of the repurchase by
OMNICELL at the applicable Standard Rate (the “Repurchase Price”).  Upon receipt of the Repurchase Price, GE
will pass title to such Remaining Unearned Payments to OMNICELL free and clear
of all liens attributable to GE, and reassign any financing statements related
thereto. “Remaining
Unearned Payments” means payments under Assigned Service Agreements
to the extent that: (i) such payments would have come due if not for the early
termination of the applicable Assigned Service Agreement, (ii) such payments
have not been paid by Customer as of the date of such repurchase by OMNICELL,
and (iii) OMNICELL is no longer obligated to perform the obligations relating
to such payments.  “Service Agreement Termination Event”
means the early termination of a Lease as a result of:  (A) an upgrade or early termination as
contemplated by Section 10 or (B) the failure of a Customer to pay GE any
amounts owed GE within sixty (60) days after the applicable due date.”


 


(e)           The following sentence
shall be added at the end of Section 18 of the Program Agreement:  “Notwithstanding anything in this Agreement
to the contrary, OMNICELL shall not


 


10

















 


be required to indemnify GE for any failure to collect
rental payments under any Lease due to the insolvency, bankruptcy, or financial
inability to pay of any Customer.”


 


(f)            The following sentence
shall be added at the end of Section 5 of the Program Agreement:  “Upon payment of the Purchase Price by GE,
GE shall be deemed to have received the Final Document Package in form and substance
satisfactory to GE.”


 


(g)           The following sections
of the Program Agreement are deleted in their entirety: Section 14(q) and (r).


 


(h)           Exhibit F to the Program
Agreement is amended and restated in its entirety as set forth in the new Exhibit F attached
hereto.


 


3.             True Sale and Not a Loan.  Each party further covenants and
agrees that it shall treat the sale from the Seller to the Purchaser of the
Lease receivables as a true sale for all purposes, and not as a loan.


 


4.             No Prior Assignment.  By signing below, each party
further represents and warrants to each other party that it has not assigned
any of its rights or obligations under the Program Agreement and that it has
the power and authority to execute this Amendment.


 


5.             Effect of Amendment.   This Amendment shall become effective
retroactively as of June 4, 1999.  The
Program Agreement shall terminate on June 3, 2004, unless otherwise agreed by
the parties in writing.


 


6.             Miscellaneous.  Except as expressly amended pursuant hereto,
the Purchase Agreement shall remain unchanged and in full force and effect and
is hereby ratified and confirmed in all respects.  The parties’ execution and delivery of, or acceptance of, this
Amendment and any other documents and instruments in connection herewith shall
not be deemed to create a course of dealing or otherwise create any express or
implied duty by the parties to provide any other or further amendments,
consents or waivers in the future.


 


11

















 


IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their duly authorized representatives as of the day and year first
above written.


 


	
  OMNICELL, INC.

  	
   

  	
  GENERAL ELECTRIC CAPITAL

  COPORATION

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  By:

  	
  /s/ Dennis Wolf

  	
   

  	
  By:

  	
  /s/ Daniel Morse

  	
   

  
	
  Name:

  	
  Dennis Wolf

  	
   

  	
  Name:

  	
  Daniel Morse

  	
   

  
	
  Title:

  	
  Executive Vice President of Operations, Finance and Administration
  & CFO

  	
   

  	
  Title:

  	
  Senior VP SVP-Global Risk Manager

  	
   

  
	
   

  



 


S-1

















 


EXHIBIT “F”


 


BILL OF SALE


 


Omnicell, Inc. (“Seller”) in consideration of:


 


 


paid by General Electric Company (“Buyer”), receipt of which is
acknowledged, hereby grants, sells, transfers and delivers to the Buyer: (i)
Supplement to Rental Agreement No.
                 ,
(the “Supplement”), between Seller and the customer named below (“Lessee”),
(ii) the related Master Rental Agreement No.     , between
Seller and Lessee, to the extent incorporated into the Supplement, and (iii)
the OmniCell System or Sure-Med System equipment (“Equipment”), as described
below:


 


Master Rental Agreement Number:


 


Master Rental Agreement Date:


 


Supplement to Rental Agreement:


 


Customer Name:


 


Buyer shall have all rights and title to the Equipment, but shall have
no rights in any related software.


 


Seller warrants and represents to Buyer that the title to be conveyed
is good, its transfer is rightful and the Equipment is, has been, or shall be
delivered free from any interest or other lien or encumbrance, other than (a)
the interest of Lessee under the Supplement to Rental Agreement and (b) the
interest of Seller under that certain Program Agreement, executed as of June 4,
1999, and June 7, 1999, by Seller and Buyer, respectively, as amended from time
to time.


 


IN WITNESS WHEREOF, Buyer and Seller have executed this Bill of Sale
this
               
day of
                  .


 


	
  Seller:

  	
  Buyer:

  
	
   

  	
   

  
	
  OMNICELL, INC.

  	
  GENERAL ELECTRIC
  CAPITAL

  CORPORATION

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
  Title:

  	
   

  	
   

  
									



 


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