AMENDMENT NO. 4, WAIVER AND CONSENT
AMENDMENT NO. 4, WAIVER AND CONSENT ("Amendment No. 4") dated
as of April 27, 2001 to the Credit Agreement dated as of April 1, 1999, as
amended (the "Credit Agreement"), among Express Scripts, Inc.; each of the
Subsidiary Guarantors party thereto; each of the Lenders party thereto; Credit
Suisse First Boston, as Lead Arranger, Administrative Agent and Collateral
Agent; Bankers Trust Company, as Syndication Agent; The First National Bank of
Chicago, as Co-Documentation Agent; and Mercantile Bank, N.A., as
Co-Documentation Agent (capitalized terms not otherwise defined in this
Amendment No. 4 have the same meaning assigned to such terms in the Credit
Agreement).
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Company has informed Lenders of (a) certain projects
and initiatives for which Company wants the ability to make Consolidated Capital
Expenditures exceeding what the Credit Agreement currently permits; (b) the
anticipated pending liquidation of PlanetRx in connection with which Company
wants to obtain the release of the Lien on the Pledged PlanetRx Stock, the
pledge of which was made in connection with Amendment No.3; and (c) the
reorganization and acquisition of certain Subsidiaries as set forth on Schedule
I, attached hereto and incorporated herein by this reference (the "Subsidiary
Reorganization"); and
WHEREAS, pursuant to Section 10.6 of the Credit Agreement,
Requisite Lenders hereby agree to amend certain provisions of the Credit
Agreement and to consent to certain actions under the Credit Agreement as set
forth herein.
NOW, THEREFORE, in consideration of the foregoing, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
SECTION ONE - Amendment. Section 7.8 of the Credit Agreement
is hereby amended by deleting the table set forth at the end of the first
sentence and replacing it with the following table:
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Maximum Consolidated
Fiscal Year Capital Expenditures
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1999 (from Closing Date to end of
Fiscal Year) $50,000,000
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2000 $50,000,000
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2001 $85,000,000
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2002 $80,000,000
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2003 through 2005 $75,000,000
=============================================== =============================
SECTION TWO - Consent. Notwithstanding the provisions of the
Credit Agreement, the Lenders hereby consent to the release of the Lien granted
in favor of the Collateral Agent with respect to the Pledged PlanetRx Stock.
SECTION THREE - Waiver. Notwithstanding the provisions of the
Credit Agreement, subject to the conditions of Section 4 of this Amendment No.
4, the Lenders hereby waive (a) with respect to all periods prior to the
effectiveness of this Amendment No.4, the application of Sections 5.1D and
6.1(xv) of the Credit Agreement, and the related provisions of the other Loan
Documents solely with respect to the New Subsidiaries listed on Schedule II
hereto (the "New Subsidiaries"); (b) the application of Section 6.8 of the
Credit Agreement and related Loan Documents solely with respect to (i) the New
Domestic Subsidiaries as it relates to the pledge of 100% of the capital stock
of such Subsidiaries and the execution and delivery of counterparts of the
Subsidiary Guaranty and (ii) the New Canadian Subsidiaries as it relates to the
pledge of 65% of the capital stock of such Subsidiaries until the earlier to
occur of (x) the liquidation of the New Canadian Subsidiaries or (y) July 31,
2001; and (c) any Default or Event of Default that may have occurred under the
Credit Agreement during the period commencing June 1, 1999 and ending on the
date hereof, as a result of any failure by Company or any of its Subsidiaries to
comply with the provisions of the Credit Agreement and the related provisions of
the Loan Documents referred to in the foregoing clause (a) and (b).
SECTION FOUR - Conditions to Effectiveness. (a) This Amendment
No. 4 shall become effective as of the date first above written when, and only
when Administrative Agent shall have received counterparts of this Amendment
No. 4 executed by Company, Subsidiary Guarantors and Requisite Lenders or, as to
any of Lenders, advice satisfactory to Administrative Agent that such Lender has
executed this Amendment No. 4.
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(b) The effectiveness of this Amendment No. 4 (other than
Sections Seven and Nine hereof) is conditioned upon (i) the accuracy of the
representations and warranties set forth in Section Five hereof; and (ii)
compliance by each of Company and the relevant Subsidiary with Section 6.8 of
the Credit Agreement with respect to the New Domestic Subsidiaries.
SECTION FIVE- Representations and Warranties. In order to
induce Lenders and Agents to enter into this Amendment No. 4, Company represents
and warrants to each of Lenders and Agents that after giving effect to this
Amendment No. 4, (i) no Default or Event of Default has occurred and is
continuing; and (ii) all of the representations and warranties in the Credit
Agreement, after giving effect to this Amendment No. 4, are true and complete in
all material respects on and as of the date hereof as if made on the date hereof
(or, if any such representation or warranty is expressly stated to have been
made as of a specific date, as of such specific date);
SECTION SIX - Reference to and Effect on the Credit Agreement
and the Notes. On and after the effectiveness of this Amendment No. 4, each
reference in the Credit Agreement to "this Agreement", "hereunder", "hereof" or
words of like import referring to the Credit Agreement and each reference in
each of the other Credit Documents to the "Credit Agreement", "thereunder",
"thereof" or words of like import referring to the Credit Agreement, shall mean
and be a reference to the Credit Agreement, as amended by this Amendment No. 4.
The Credit Agreement, the Notes and each of the other Credit Documents, as
specifically amended by this Amendment No. 4, are and shall continue to be in
full force and effect and are hereby in all respects ratified and confirmed.
SECTION SEVEN - Costs, Expenses and Taxes. Company agrees to
pay all reasonable costs and expenses of the Agents in connection with the
preparation, execution and delivery of this Amendment No. 4 and the other
instruments and documents to be delivered hereunder, if any (including, without
limitation, the reasonable fees and expenses of Xxxxxx Xxxxxx & Xxxxxxx) in
accordance with the terms of Section 10.2 of the Credit Agreement. In addition,
Company shall pay or reimburse any and all stamp and other taxes payable or
determined to be payable in connection with the execution and delivery of this
Amendment No. 4 and the other instruments and documents to be delivered
hereunder, if any, and agrees to save each Agent and each Lender harmless from
and against any and all liabilities with respect to or resulting from any delay
in paying or omission to pay such taxes.
SECTION EIGHT - Execution in Counterparts. This Amendment No.
4 may be executed in any number of counterparts and by different parties hereto
in separate counterparts, each of which when so executed shall be deemed to be
an original and all of which taken together shall constitute but one and the
same agreement. Delivery of an executed counterpart of a signature page to this
Amendment No. 4 by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment No. 4.
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SECTION NINE - Governing Law. This Amendment No. 4 shall be
governed by, and construed and enforced in accordance with, the internal laws of
the State of New York (including Section 5-1401 of the General Obligations Law
of the State of New York), without giving effect to any provisions thereof
relating to conflicts of law.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 4 to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
EXPRESS SCRIPTS, INC.
By: /s/ Xxxxxx Xxx
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Name: Xxxxxx Xxx
Title: Senior Vice President and
Chief Financial Officer
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SUBSIDIARY GUARANTORS:
DIVERSIFIED PHARMACEUTICAL SERVICES, INC.
EXPRESS SCRIPTS SALES DEVELOPMENT CO.
EXPRESS SCRIPTS VISION CORP.
IVTX, INC.
VALUE HEALTH, INC.
ESI MAIL PHARMACY, INC.
EXPRESS SCRIPTS UTILIZATION MANAGEMENT CO.
EXPRES SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC.
ESI CLAIMS, INC.
By: /s/ Xxxxxx Xxx
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Name: Xxxxxx Xxx
Title: Senior Vice President and
Chief Financial Officer
as one of the Requisite Lenders
(please type)
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Principal
BANK LEUMI USA
By: /s/ Xxxxx Xxx Hong
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Name: Xxxxx Xxx Hong
Title: Vice President
BANK OF MONTREAL
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: Managing Director
THE BANK OF NEW YORK
By: /s/ Xxxxxxxx Xxxxxxx
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Name: Xxxxxxxx Xxxxxxx
Title: Vice President
BANK ONE, NA
By: /s/ Xxxxxxx Xxxxxxxxx
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Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
BANKERS TRUST COMPANY
By: /s/ Xxxx Xx Xxxxx
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Name: Xxxx Xx Xxxxx
Title: Assistant Vice President
BAYERISCHE HYPO-UND VEREINSBANK AG
NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Director
By: /s/ Xxxxxx Xxxxxx
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Name: Xxxxxx Xxxxxx
Title: Associate Director
BNP PARIBAS
By: /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Director
By: /s/ Ro Toyoshima
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Name: Ro Toyoshima
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
ERSTE BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
By: /s/ Xxxx X. Xxxxxxx
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Name: Xxxx X. Xxxxxxx
Title: Managing Director
FIRSTAR BANK N.A.
By: /s/ L. Xxxx Xxxxx III
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Name: L. Xxxx Xxxxx III
Title: Senior Vice President
FLEETBOSTON FINANCIAL, INC.
By: /s/ Xxxxxxxx Xxxxxx, Jr.
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Name: Xxxxxxxx Xxxxxx, Jr.
Title: Vice President
XXXXXX FINANCIAL, INC.
By: /s/ K. Xxxxx Xxxxxxxxx
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Name: Xxxxx Xxxxxxxxx
Title: Senior Vice President
MELLON BANK, N.A.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
MICHIGAN NATIONAL
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: First Vice President
TEXTRON FINANCIAL CORPORATION
By: /s/ Xxxxxxx Xxxxxx
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Name: Xxxxxxx Xxxxxx
Title: Director
UNION BANK OF CALIFORNIA, N.A.
By: /s/ J. Xxxxx Xxxxxx
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Name: J. Xxxxx Xxxxxx
Title: Vice President
