EXHIBIT 10.1
AMENDMENT NO. 5 TO
THE CREDIT AGREEMENT
AMENDMENT NO. 5 TO THE CREDIT AGREEMENT (this "Amendment")
dated as of July 17, 2002 is entered into by and among AdvancePCS, f/k/a Advance
Paradigm, Inc., a Delaware corporation (the "Borrower"), the Subsidiary
Guarantors party hereto, the Lenders party hereto, Bank One, N.A. ("Bank One"),
as Documentation Agent, Bank of America, N.A. ("Bank of America"), as Collateral
Agent and as Administrative Agent for the Lender Parties, Xxxxxxx Lynch, Pierce,
Xxxxxx & Xxxxx Incorporated, as Book-Runner, Lead Arranger and Syndication
Agent, and Banc of America Securities LLC, as Joint Book-Runner and Joint Lead
Arranger. Capitalized terms not otherwise defined in this Amendment have the
same meanings as specified in the Credit Agreement (as defined below).
PRELIMINARY STATEMENTS:
WHEREAS, the Borrower, the Subsidiary Guarantors, the Lenders
and the Agents have entered into a Credit Agreement dated as of October 2, 2000,
as amended by Amendment No. 1 to the Credit Agreement dated as of November 3,
2000, Amendment No. 2 to the Credit Agreement dated as of June 22, 2001,
Amendment No. 3 to the Credit Agreement dated as of August 24, 2001 and
Amendment No. 4 to the Credit Agreement dated as of May 29, 2002 (as so amended
and as otherwise amended, restated and modified from time to time, the "Credit
Agreement"); and
WHEREAS, the Borrower and its subsidiaries have requested that
the Required Lenders approve certain amendments to the Credit Agreement as
described herein; and
WHEREAS, the Borrower and each Subsidiary Guarantor that has
its chief executive office at the same location as the Borrower (as indicated on
Schedule IV to the Security Agreement) have each relocated their chief executive
office from the address for each such party set forth in Schedule IV to the
Security Agreement (the "North X'Xxxxxx Blvd Address") to the following address:
000 Xxxx Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 0000, Xxxxxx, XX 00000 (the "WJC Freeway
Address"); provided, however, ADVP Consolidation, L.L.C. is located at the
following address: 000 Xxxxx Xxxx, Xxxxxxxxxx, XX 00000; and
WHEREAS, in connection with such relocation, the Borrower and
each Subsidiary Guarantor located at the same address as the Borrower have each
likewise relocated any Equipment and Inventory previously maintained by each
such party at the North X'Xxxxxx Blvd Address to the WJC Freeway Address; and
WHEREAS, the Borrower and its subsidiaries have requested that
the Required Lenders agree to waive compliance by the Borrower and each
applicable Subsidiary Guarantor with the requirement to give (i) thirty (30)
days notice of such headquarters relocation as required by Section 13(a) of the
Security Agreement, and (ii) fifteen (15) days notice of such Equipment and
Inventory relocation as required by Section 11(a) of the Security Agreement.
NOW, THEREFORE, in consideration of the mutual promises and
obligations contained herein and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the Borrower, the
Subsidiary Guarantors and the Required Lenders have agreed to amend the Credit
Agreement as hereinafter set forth.
SECTION 1. Amendment. The Credit Agreement is, effective as of
the Amendment No. 5 Effective Date (as defined herein), hereby amended as
follows:
(a) Section 5.02(g)(ix)(II) of the Credit Agreement is hereby amended
by deleting such section in its entirety and replacing it with the following:
"(II) if any of the requirements set forth in the immediately
preceding clause (I) is not satisfied, the amount of any payment to
make such repurchase shall not (x) when aggregated with all other such
payments made during the same Fiscal Year, exceed $200,000,000 and (y)
when aggregated with all other such payments made during the term of
this Agreement, exceed $300,000,000."
(b) Section 9.02 if the Credit Agreement is amended by deleting the
notice address for the Borrower set forth in the first sentence thereof and
replacing it with the following: 000 Xxxx Xxxx Xxxxxxxxx Xxxxxxx, Xxxxx 0000,
Xxxxxx, XX 00000, Attn: Chief Executive Officer.
SECTION 2. Waiver Relating to Relocation of Corporate
Headquarters. The Required Lenders hereby waive compliance by the Borrower and
each Subsidiary Guarantor located at the same address as the Borrower with (i)
the requirement to give thirty (30) days notice of the relocation of its
corporate headquarters as required by Section 13(a) of the Security Agreement,
and (ii) the requirement to give fifteen (15) days notice of the relocation of
any Equipment and Inventory held at such location as required by Section 11(a)
of the Security Agreement. The foregoing waivers shall not operate as a consent
to any action or inaction by the Borrower or any other Loan Party and the
waivers set forth in this Section 2 are one-time waivers and shall not be
construed to be (i) waivers as to future compliance with any provision of the
Credit Agreement or any other Loan Document, (ii) waivers of any other Default
or Event of Default that may exist under any Loan Document or (iii) an amendment
of or modification to the Credit Agreement or any other Loan Document. The
Administrative Agent and the Lenders hereby reserve all of their rights, powers
and remedies under the Credit Agreement, after giving effect to this Amendment
and applicable law.
SECTION 3. Conditions of Effectiveness. This Amendment shall
become effective as of the date first above written (the "Amendment No. 5
Effective Date") when, and only when each of the following conditions shall have
been satisfied (it being understood that the satisfaction of one or more of the
following conditions may occur concurrently with the effectiveness of this
Amendment):
(a) the Administrative Agent shall have received
counterparts of this Amendment executed by the Borrower, the Subsidiary
Guarantors and the Required Lenders or, as to any of the Required
Lenders, advice satisfactory to the Administrative Agent that such
Required Lender has executed this Amendment;
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(b) the Borrower shall have paid any and all out-of-pocket
costs (to the extent invoiced) incurred by the Administrative Agent
(including the reasonable fees and expenses of the Administrative
Agent's legal counsel), and fees and other amounts payable to the
Administrative Agent, in each case in connection with the arrangement,
negotiation, preparation, execution and delivery of this Amendment; and
(c) the Administrative Agent shall have received (i) a
certified copy of the resolutions of the Board of Directors of the
Borrower and each other Loan Party evidencing its approval of this
Amendment and the other matters contemplated hereby, and a certified
copy of all documents evidencing other necessary corporate action and
governmental approvals, if any, with respect to this Amendment and the
other matters contemplated hereby; (ii) a certificate from a
Responsible Officer of the Borrower to the effect that, as of the date
hereof, (A) all representations and warranties made by the Borrower and
each other Loan Party in this Amendment and each other Loan Document
are true and correct in all material respects as if made as of the date
hereof, other than any such representations or warranties that, by
their terms, refer to a specific date other than the date hereof, in
which case as of such specific date, and (B) after giving effect to
this Amendment, no Default or Event of Default has occurred and is
continuing;
SECTION 4. Authority of Administrative Agent. The Required
Lenders hereby acknowledge and agree that pursuant to the authority granted to
the Administrative Agent under Article VIII of the Credit Agreement, the
Administrative Agent has the power to execute and deliver all documents and to
take all such further action on behalf of the Lender Parties as it may deem to
be reasonably necessary to effectuate this Amendment.
SECTION 5. Representations and Warranties. Each of the Loan
Parties represents and warrants as follows:
(a) the representations and warranties contained in each
Loan Document are correct in all material respects on and as of the
date hereof, before and after giving effect to this Amendment, as
though made on and as of the date hereof, other than any such
representations or warranties that by their terms, refer to a specific
date, in which case, as of such specific date;
(b) no Default or Event of Default has occurred and is
continuing under the Credit Agreement, as amended hereby, or would
result from this Amendment;
(c) it has taken all necessary action to authorize
the execution, delivery and performance of this Amendment;
(d) this Amendment has been duly executed and delivered by
such Loan Party and constitutes such Loan Party's legal, valid and
binding obligation, enforceable in accordance with its terms, except as
such enforceability may be limited (x) by general principles of equity
and conflicts of laws or (y) by bankruptcy, reorganization,
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insolvency, moratorium or other laws of general application relating to
or affecting the enforcement, of creditors' rights;
(e) no consent, approval, authorization or order of, or
filing, registration or qualification with, any court or governmental
authority or third party is required in connection with the execution,
delivery or performance by such Loan Party of this Amendment where not
completed such action would reasonably be expected to have a Material
Adverse Effect; and
(f) the execution and delivery of this Amendment does not
diminish or reduce its obligations under the Loan Documents (including,
without limitation, in the case of each Subsidiary Guarantor, such
Subsidiary Guarantor's guaranty pursuant to Section 7 of the Credit
Agreement) in any manner, except as specifically set forth herein.
(g) (i) the relocation by the Borrower of its corporate
headquarters and the Equipment and Inventory located at such location
does not and will not affect the rights of the Administrative Agent or
any Lender under any Collateral Document, nor does it affect the
validity, perfection and/or priority of any security interest granted
by any Loan Party thereunder, and (ii) in accordance with Sections 10,
11 and 13 of the Security Agreement, the Borrower and each other Loan
Party has taken any and all necessary actions to protect any pledge or
security interest granted thereunder.
SECTION 6. Reference to and Effect on the Loan Documents. (a)
On and after the effectiveness of this Amendment, 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 the Notes and each of
the other Loan 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.
(b) The Credit Agreement, the Notes and each of the other
Loan Documents, as specifically amended by this Amendment, are and
shall continue to be in full force and effect and are hereby in all
respects ratified and confirmed.
(c) Except as expressly provided herein, the execution,
delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of any Lender or the
Administrative Agent under any of the Loan Documents, nor constitute a
waiver of any provision of any of the Loan Documents.
(d) This Amendment shall constitute a Loan Document and,
as such, can only be amended in accordance with the provisions of
Section 9.01 of the Credit Agreement.
SECTION 7. Costs, Expenses. The Borrower agrees to pay on
demand all reasonable costs and expenses of the Administrative Agent in
connection with the preparation, execution, delivery and administration of this
Amendment (including, without limitation, the reasonable fees and expenses of
counsel for the Administrative Agent) in accordance with the terms of Section
9.04 of the Credit Agreement.
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SECTION 8. Execution in Counterparts. This Amendment 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 by telecopier shall be effective as delivery of a manually executed
counterpart of this Amendment.
SECTION 9. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.
BORROWER:
ADVANCEPCS
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
SUBSIDIARY GUARANTORS:
ADVANCEPCS HOLDING CORPORATION
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
ADVANCEPCS HEALTH SYSTEMS, LLC
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
ADVANCEPCS HEALTH, L.P.
By ADVANCEPCS HEALTH SYSTEMS, LLC, its
General Partner
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
ADVANCEPCS RESEARCH, L.L.C.
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
XXXXXXXXX.XXX, L.P.
By ADVANCEPCS HEALTH SYSTEMS, LLC, its
General Partner
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
ADVP CONSOLIDATION, L.L.C.
By:
-----------------------------------
Name: Xxxxx de Mars
Title: General Counsel and Secretary
ADVP MANAGEMENT, L.P.,
By ADVANCEPCS HEALTH SYSTEMS, LLC, its
General Partner
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
AMBULATORY CARE REVIEW SERVICES, INC.
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
XXXXXX-XXXXXX NEUROMEDICAL INSTITUTE,
INC.
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
FFI RX MANAGED CARE, INC.
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
FIRST FLORIDA INTERNATIONAL HOLDINGS,
INC.
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
HMN HEALTH SERVICES, INC.
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
ADVANCEPCS MAIL SERVICES OF BIRMINGHAM,
INC.
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
ADVANCEPCS PUERTO RICO, INC.
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
ADVANCEPCS SPECIALTYRX, LLC
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
AFC RECEIVABLES HOLDING CORPORATION
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
XXXXXXX-XXXXXXX, INC.
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
THERACOM, INC.
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
CONSUMER HEALTH INTERACTIVE, INC.
By:
-----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: CEO
LENDERS (AND OTHER AGENTS)
BANK OF AMERICA, N.A.,
as Initial Lender and Initial Issuing Bank and Lender Party
By:
------------------------------------
Title:
BANK ONE, N.A., as Documentation Agent and Lender Party
By:
------------------------------------
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED,
as Syndication Agent and Lender Party
By:
------------------------------------
Title:
------------------------------------------------
[LENDER]
By:
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Title:
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