EXHIBIT 10.5
EXPRESS SCRIPTS, INC.
FIRST AMENDMENT
TO COMPANY PLEDGE AGREEMENT
This FIRST AMENDMENT TO COMPANY PLEDGE AGREEMENT (this "AMENDMENT") is
dated as of April 24, 1998 and entered into by and between Express Scripts,
Inc., a Delaware corporation (the "PLEDGOR"), and Bankers Trust Company, as
agent for and representative of (in such capacity herein called "SECURED PARTY")
the financial institutions (the "LENDERS") party to the Credit Agreement
referred to below. Capitalized terms used herein without definition shall have
the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Secured Party and Lenders have entered into a Credit Agreement
dated as of April 1, 1998 (as amended, supplemented or otherwise modified from
time to time, the "CREDIT AGREEMENT") with Pledgor pursuant to which Lenders
have, subject to the terms and conditions set forth in the Credit Agreement,
extended certain credit facilities to Pledgor;
WHEREAS, in connection with the execution and delivery of the Company
Pledge Agreement, Pledgor and Secured Party entered into the Company Pledge
Agreement for the purposes of securing the Obligations, including obligations
under Hedge Agreements, of Pledgor under the Loan Documents;
WHEREAS, Pledgor and Secured Party desire to clarify that the Company
Pledge Agreement secures Obligations, including obligations under any Hedge
Agreement arising under the Loan Documents; and
WHEREAS, Secured Party and Pledgor are entering into this Amendment
pursuant to subsection 9.6 of the Credit Agreement and section 15 of the Company
Pledge Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENT
Section 2 of the Company Pledge Agreement is hereby amended by deleting the
existing text in its entirety and substituting the following language therefor:
This Agreement secures, and the Pledged Collateral is collateral security
for, the prompt payment or performance in full when due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or otherwise
(including the payment of amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.
ss.362(a)), of any and all Obligations of Pledgor now or hereafter existing
under or arising out of or in connection with the Credit Agreement and the other
Loan Documents and all extensions or renewals thereof, whether for principal,
interest (including interest that, but for the filing of a petition in
bankruptcy with respect to Pledgor, would accrue on such obligations),
reimbursement of amounts drawn under Letters of Credit, fees, expenses,
indemnities or otherwise, whether voluntary or involuntary, direct or indirect,
absolute or contingent, liquidated or unliquidated, whether or not jointly owed
with others, and whether or not from time to time decreased or extinguished and
later increased, created or incurred, and all or any portion of such obligations
or liabilities that are paid, to the extent all or any part of such payment is
avoided or recovered directly or indirectly from Secured Party or any Lender as
a preference, fraudulent transfer or otherwise, and all obligations of every
nature of Pledgor now or hereafter existing under this Agreement (all such
obligations of Pledgor being the "SECURED OBLIGATIONS").
SECTION 2. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE COMPANY PLEDGE AGREEMENT AND OTHER LOAN
DOCUMENTS.
(i) Upon effectiveness, each reference in the Company Pledge Agreement to
"this Agreement", "hereunder", "hereof", "herein" or words of like import
referring to the Company Pledge Agreement, and each reference in the other Loan
Documents to the "Company Pledge Agreement", "thereunder", "thereof" or words of
like import referring to the Company Pledge Agreement shall mean and be a
reference to the Company Pledge Agreement as amended by this Amendment.
(ii) Except as specifically amended by this Amendment, the Company
Agreement and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
B. HEADINGS. Section and subsection headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose or be given any substantive effect.
C. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
D. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment shall become effective upon the execution of a
counterpart hereof by Pledgor and Agent and receipt by Agent of written or
telephonic notification of such execution and authorization of delivery thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
EXPRESS SCRIPTS, INC.
By: /s/ Xxxxxx Xxx
Title: Senior Vice President
BANKERS TRUST COMPANY, as Agent
By: /s/ Xxxxx XxXxxx
Title: Principal
