NINTH SUPPLEMENTAL INDENTURE
Exhibit 4.1
The Ninth Supplemental Indenture (this “Ninth Supplemental Indenture”), dated as of May 29, 2012, among Express Scripts Holding Company (formerly Aristotle Holding, Inc.), a corporation duly organized and existing under the laws of the State of Delaware (the “Company”), the Guarantors listed as signatories hereto (each, an “Existing Guarantor” and collectively, the “Existing Guarantors”) and certain subsidiaries of Medco Health Solutions, Inc., a Delaware corporation, listed as signatories hereto (each, an “Additional Guarantor,” and, collectively, the “Additional Guarantors”) and Xxxxx Fargo Bank, National Association, as trustee under the indenture referred to below (the “Trustee”).
W I T N E S S E T H
WHEREAS, the Company, the Existing Guarantors and the Trustee are parties to the indenture, dated as of November 21, 2011 (the “Base Indenture”), as supplemented by the First Supplemental Indenture thereto, dated as of November 21, 2011 (the “First Supplemental Indenture”), relating to the Company’s 2.750% Notes due 2014 (the “2014 Notes”), the Second Supplemental Indenture thereto, dated as of November 21, 2011 (the “Second Supplemental Indenture”), relating to the Company’s 3.500% Notes due 2016 (the “2016 Notes”), the Third Supplemental Indenture thereto, dated as of November 21, 2011 (the “Third Supplemental Indenture”), relating to the Company’s 4.750% Notes due 2021 (the “2021 Notes”), the Fourth Supplemental Indenture thereto, dated as of November 21, 2011 (the “Fourth Supplemental Indenture”), relating to the Company’s 6.125% Notes due 2041 (the “2041 Notes”), the Fifth Supplemental Indenture thereto, dated as of February 9, 2012 (the “Fifth Supplemental Indenture”), relating to the Company’s 2.100% Notes due 2015 (the “2015 Notes”), the Sixth Supplemental Indenture thereto, dated as of February 9, 2012 (the “Sixth Supplemental Indenture”), relating to the Company’s 2.650% Notes due 2017 (the “2017 Notes”), the Seventh Supplemental Indenture thereto, dated as of February 9, 2012 (the “Seventh Supplemental Indenture”), relating to the 3.900% Notes due 2022 (together with the 2014 Notes, the 2016 Notes, the 2021 Notes, the 2041 Notes, the 2015 Notes and the 2017 Notes, the “Notes”) and the Eighth Supplemental Indenture thereto, dated as of April 2, 2012 (together with the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental Indenture, the Sixth Supplemental Indenture and the Seventh Supplemental Indenture, the “Supplemental Indentures” and the Base Indenture as so supplemented, the “Indenture”), to add guarantees;
WHEREAS, each Additional Guarantor desires to provide a full and unconditional guarantee (the “Guarantee”) of the obligations of the Company under the Notes, the Securities (as defined in the Indenture) and the Indenture on the terms and conditions set forth herein;
WHEREAS, the Company has complied with all conditions precedent provided for in the Indenture and each Supplemental Indenture relating to this Ninth Supplemental Indenture; and
WHEREAS, pursuant to Section 9.1 of the Base Indenture and Section 7.1 of each of the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental Indenture, the Sixth Supplemental Indenture and the Seventh Supplemental Indenture, the Company, the Trustee and the Additional Guarantors are authorized to execute and deliver this Ninth Supplemental Indenture.
NOW, THEREFORE, for good and valuable consideration, the receipt of which is acknowledged, each Additional Guarantor guarantees the Company’s obligations under the Securities as follows:
1. Capitalized Terms. Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.
2. Guarantee, Etc. Each Additional Guarantor hereby agrees that from and after the date hereof it shall be a Guarantor under the Indenture and be bound by its terms thereof applicable to Guarantors and shall be entitled to all of the rights and subject to all of the obligations of a Guarantor thereunder.
3. Ratification of Indenture; Supplemental Indenture Part of Indenture. The Indenture is in all respects ratified and confirmed, and all terms, conditions and provisions thereof shall remain in full force and effect. This Ninth Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of Securities heretofore or hereafter authenticated and delivered shall be bound hereby.
4. Representations and Warranties. Each Additional Guarantor hereby represents that (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, (b) it has full power, authority and legal rights to execute and deliver this Ninth Supplemental Indenture and to perform its obligations hereunder and under the Indenture, (c) the execution, delivery and performance by it of this Ninth Supplemental Indenture has been duly authorized by all necessary corporate action, and no other proceedings or actions on the part of such Additional Guarantor are necessary therefor and (d) this Ninth Supplemental Indenture has been duly and validly executed and delivered by such Additional Guarantor and constitutes a legal, valid and binding obligation of such Additional Guarantor, enforceable against such Additional Guarantor in accordance with its terms (subject to applicable bankruptcy, insolvency, receivership, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles).
5. No Personal Liability of Directors, Officers, Employees or Stockholders. No director, officer, employee, member or stockholder of any Additional Guarantor, as such, will have any liability for any obligations of the Company, any Existing Guarantor or any other Additional Guarantor under the Securities, the Indenture or the Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Securities, by accepting a Security, waives and releases the Company, each Existing Guarantor and each Additional Guarantor from all such liability. The waiver and release are part of the consideration for issuance of the Guarantee by the Additional Guarantors.
6. GOVERNING LAW. THIS NINTH SUPPLEMENTAL INDENTURE AND THE GUARANTEES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
7. Counterparts. This Ninth Supplemental Indenture may be executed in any number of counterparts, each of which shall be deemed an original; but all such counterparts shall together constitute but one and the same instrument.
8. Effect of Headings. The Section headings herein are for convenience only and shall not affect the construction hereof.
9. Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Ninth Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Additional Guarantors, the Existing Guarantors and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Ninth Supplemental Indenture to be duly executed, all as of the day and year first above written.
| EXPRESS SCRIPTS HOLDING COMPANY | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Executive Vice President, General Counsel, and Secretary | |
EXISTING GUARANTORS
| EXPRESS SCRIPTS, INC. | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Vice President | |
| AIRPORT HOLDINGS, LLC | ||
| ESI REALTY, LLC | ||
| By: Express Scripts, Inc., as sole Member | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: | Xxxxx X. Xxxxxx | |
| Title: | Vice President | |
[Signature Page to Express Scripts Holding Company Ninth Supplemental Indenture]
| XXXXXXX DRUG, INC. | ||||
| CARE CONTINUUM, INC. | ||||
| CFI OF NEW JERSEY, INC. | ||||
| CHESAPEAKE INFUSION, INC. | ||||
| CONNECTYOURCARE COMPANY, LLC | ||||
| CONNECTYOURCARE, LLC | ||||
| CURASCRIPT PBM SERVICES, INC. | ||||
| DIVERSIFIED PHARMACEUTICAL SERVICES, INC. | ||||
| ESI ACQUISITION, INC. | ||||
| ESI CLAIMS, INC. | ||||
| ESI ENTERPRISES, LLC | ||||
| ESI MAIL ORDER PROCESSING, INC. | ||||
| EXPRESS SCRIPTS CANADA HOLDING, CO. | ||||
| EXPRESS SCRIPTS CANADA HOLDING, LLC | ||||
| EXPRESS SCRIPTS PHARMACEUTICAL PROCUREMENT, LLC | ||||
| EXPRESS SCRIPTS SERVICES COMPANY | ||||
| FRECO, INC. | ||||
| FREEDOM SERVICE COMPANY, LLC | ||||
| HEALTHBRIDGE, INC. | ||||
| HEALTHBRIDGE REIMBURSEMENT AND PRODUCT SUPPORT, INC. | ||||
| iBIOLOGIC, INC. | ||||
| IVTX, INC. | ||||
| LYNNFIELD COMPUNDING CENTER, INC. | ||||
| LYNNFIELD DRUG, INC. | ||||
| MATRIX GPO LLC | ||||
| NATIONAL PRESCRIPTION ADMINISTRATORS, INC. | ||||
| PRIORITY HEALTHCARE CORPORATION | ||||
| PRIORITY HEALTHCARE CORPORATION WEST | ||||
| PRIORITY HEALTHCARE DISTRIBUTION, INC. | ||||
| PRIORITY HEALTHCARE PHARMACY, INC. | ||||
| XXXXXXXXXXXXXXXXXX.XXX, INC. | ||||
| SINUSPHARMACY, INC. | ||||
| SPECIALTY INFUSION PHARMACY, INC. | ||||
| SPECTRACARE, INC. | ||||
| SPECTRACARE HEALTH CARE VENTURES, INC. | ||||
| SPECTRACARE INFUSION PHARMACY, INC. | ||||
| VALUE HEALTH, INC. | ||||
| XXXXXXXXXXXX.XXX, INC. | ||||
| MEDCO HEALTH SOLUTIONS, INC. | ||||
| ACCREDO HEALTH, INCORPORATED | ||||
| ACCREDO HEALTH GROUP, INC. | ||||
| MEDCO HEALTH SERVICES, INC. | ||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| CURASCRIPT, INC. | ||||
| EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO. | ||||
| EXPRESS SCRIPTS MSA, LLC | ||||
| EXPRESS SCRIPTS SENIOR CARE, INC. | ||||
| EXPRESS SCRIPTS SENIOR CARE HOLDINGS, INC. EXPRESS SCRIPTS WC, INC. | ||||
| By: | /s/ Xxxxxx X. Xxxxx | |||
| Name: | Xxxxxx X. Xxxxx | |||
| Title: | Assistant Secretary | |||
[Signature Page to Express Scripts Holding Company Ninth Supplemental Indenture]
| ESI MAIL PHARMACY SERVICE, INC. | ||
| EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC. | ||
| MOORESVILLE ON-SITE PHARMACY, LLC | ||
| By: | /s/ Xxxxxx X. Xxxxx | |
| Name: | Xxxxxx X. Xxxxx | |
| Title: | Secretary | |
| ESI-GP HOLDINGS, INC. | ||
| ESI RESOURCES, INC. | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | |
| Title: | Vice President | |
| ESI PARTNERSHIP | ||
| By: Express Scripts, Inc., as Partner | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx X. Xxxxxx | ||
| Title: Vice President | ||
| By: ESI-GP Holdings, Inc., as Partner | ||
| By: | /s/ Xxxx Xxxxxxxx | |
| Name: | Xxxx Xxxxxxxx | |
| Title: | Vice President | |
| SPECTRACARE OF INDIANA | ||
| By: Spectracare, Inc., as Partner | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx X. Xxxxxx | ||
| Title: Vice President | ||
| By: Care Continuum, Inc., as Partner | ||
| By: | /s/ Xxxxx X. Xxxxxx | |
| Name: Xxxxx X. Xxxxxx | ||
| Title: Vice President | ||
[Signature Page to Express Scripts Holding Company Ninth Supplemental Indenture]
ADDITIONAL GUARANTORS
| ACCREDO CARE NETWORK, INC. AHG OF NEW YORK, INC. BIOPARTNERS IN CARE, INC. BRACKET GLOBAL, LLC CCS INFUSION MANAGEMENT, LLC CCSI HOLDING 3, LLC CRITICAL CARE SYSTEMS OF NEW YORK, INC. CRITICAL CARE SYSTEMS, INC. DNA DIRECT, INC. ENVISION PHARMA INC. EVIDENCE SCIENTIFIC SOLUTIONS, INC. HIDDEN RIVER, L.L.C. HOME HEALTHCARE RESOURCES, INC. INFINITY INFUSION II, LLC INFINITY INFUSION, LLC INSTITUTE FOR MEDICAL EDUCATION & RESEARCH, INC. LIBERTY HEALTHCARE GROUP, INC. LIBERTY HEALTHCARE PHARMACY OF NEVADA, LLC LIBERTY LANE DEVELOPMENT COMPANY, INC. LIBERTY MARKETPLACE, INC. LIBERTY MEDICAL SUPPLY, INC. MAH PHARMACY, L.L.C. MAH PROCESSING, INC. MEDCO AT HOME, L.L.C. MEDCO CDUR, L.L.C. MEDCO CHP, L.L.C. MEDCO CONTINUATION HEALTH, L.L.C. MEDCO EUROPE, L.L.C. MEDCO EUROPE II, L.L.C. MEDCO HEALTH, L.L.C. MEDCO HEALTH NEW YORK INDEPENDENT PRACTICE ASSOCIATION, L.L.C. MEDCO HEALTH PUERTO RICO, L.L.C. MEDCO HEALTH SOLUTIONS OF COLUMBUS NORTH, LTD. MEDCO HEALTH SOLUTIONS OF COLUMBUS WEST, LTD. MEDCO HEALTH SOLUTIONS OF FAIRFIELD, L.L.C. MEDCO HEALTH SOLUTIONS OF FRANKLIN LAKES, L.L.C. MEDCO HEALTH SOLUTIONS OF XXXXXXXXX, NEVADA, L.L.C. MEDCO HEALTH SOLUTIONS OF HIDDEN RIVER, L.C. MEDCO HEALTH SOLUTIONS OF ILLINOIS, L.L.C. MEDCO HEALTH SOLUTIONS OF INDIANA, L.L.C. MEDCO HEALTH SOLUTIONS OF IRVING, L.L.C. MEDCO HEALTH SOLUTIONS OF LAS VEGAS, L.L.C. MEDCO HEALTH SOLUTIONS OF NETPARK, L.L.C. MEDCO HEALTH SOLUTIONS OF NORTH VERSAILLES, L.L.C. MEDCO HEALTH SOLUTIONS OF RICHMOND, L.L.C. MEDCO HEALTH SOLUTIONS OF SPOKANE, L.L.C. MEDCO HEALTH SOLUTIONS OF TEXAS, L.L.C. MEDCO HEALTH SOLUTIONS OF WILLINGBORO, L.L.C. MEDCO XXXXXX.XXX, L.L.C. MEDCO OF WILLINGBORO URBAN RENEWAL, L.L.C. MEDCO RESEARCH INSTITUTE, L.L.C. NATIONAL DIABETIC MEDICAL SUPPLY, L.L.C. | ||
[Signature Page to Express Scripts Holding Company Ninth Supplemental Indenture]
| NATIONAL RX SERVICES NO. 3, INC. OF OHIO | ||||
| P-STAR ACQUISITION CO., INC. | ||||
| POLYMEDICA CORPORATION | ||||
| SYSTEMED, L.L.C. | ||||
| THE VACCINE CONSORTIUM, LLC | ||||
| THERAPEASE CUISINE, INC. | ||||
| TVC ACQUISITION CO., INC. | ||||
| UBC HEALTH CARE ANALYTICS, INC. | ||||
| UBC LATE STAGE, INC. | ||||
| UBC SCIENTIFIC SOLUTIONS, INC. | ||||
| UNITED BIOSOURCE CORPORATION | ||||
| UNITED BIOSOURCE PATIENT SOLUTIONS, INC. | ||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| INFINITY INFUSION CARE, LTD. | ||||
| By: Infinity Infusion, LLC, as Partner | ||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
| By: Infinity Infusion II, LLC, as Partner | ||||
| By: | /s/ Xxxxx X. Xxxxxx | |||
| Name: | Xxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
[Signature Page to Express Scripts Holding Company Ninth Supplemental Indenture]
| XXXXX FARGO BANK, NATIONAL ASSOCIATION, AS TRUSTEE | ||||
| By | /s/ Xxxx X. Xxxxxxx | |||
| Name: | Xxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
[Signature Page to Express Scripts Holding Company Ninth Supplemental Indenture]
