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EXHIBIT 10.4
AMENDMENT NO. 12 TO THE LOAN DOCUMENTS
AMENDMENT dated as of September 14, 1999 to the Amended and
Restated Credit Agreement dated as of June 9, 1998 (as amended and otherwise
modified by Amendment and Waiver No. 1 to the Loan Documents dated as of
December 4, 1998, Amendment No. 2 to the Loan Documents dated as of January 13,
1999, Amendment No. 3 to the Loan Documents dated as of February 9, 1999,
Amendment and Waiver No. 4 to the Loan Documents dated as of March 18, 1999,
Amendment and Waiver No. 5 to the Loan Documents dated as of April 1, 1999,
Amendment No. 6 to the Loan Documents dated as of April 14, 1999, Amendment No.
7 to the Loan Documents dated as of June 29, 1999, Amendment No. 8 to the Loan
Documents dated as of August 2, 1999 ("Amendment No. 8"), Amendment No. 9 to the
Loan Documents dated as of August 16, 1999, Amendment No. 10 to the Loan
Documents dated as of August 23, 1999, and Amendment No. 11 to the Loan
Documents dated as of August 30, 1999, the "CREDIT AGREEMENT among Caremark Rx,
Inc. (formerly known as MedPartners, Inc.), a Delaware corporation (the
"BORROWER"), the Lenders party thereto, Bank of America, N.A. (formerly
NationsBank, N.A.; "BOFA"), as the Initial Issuing Bank and the Swing Line Bank
thereunder, Credit Lyonnais New York Branch, The First National Bank of Chicago
and Xxxxxx Guaranty Trust Company of New York, as the Syndication Agents
therefor, Banc of America Securities LLC (formerly NationsBanc Xxxxxxxxxx
Securities LLC), as the Arranger therefor, and BofA, as the Administrative Agent
for the Lender Parties thereunder. Capitalized terms not otherwise defined in
this Amendment have the same meanings as specified therefor in the Credit
Agreement.
PRELIMINARY STATEMENTS
(1) The Borrower has requested that the Lender Parties agree
to amend the Credit Agreement in order to provide (a) for the issuance of trust
convertible preferred stock by a Delaware trust which will be a wholly-owned
Subsidiary of the Borrower and to provide for the application of the proceeds of
such issuance, (b) that the latest date for approval of the California
Transition Plan be extended from September 30, 1999 to November 30, 1999, (c)
that the maximum amount of the Caremark Receivables Securitization be decreased
from $150,000,000 to $125,000,000, (d) that the amount of Net Cash Proceeds from
certain Asset Sales permitted to be retained by the Borrower be increased from
$50,000,000 to $93,000,000, (e) that the weekly reporting requirements of the
Borrower with respect to certain financial information be eliminated subject to
certain conditions, and (f) for certain other changes as set forth herein.
(2) The Lender Parties have indicated their willingness to
agree to amend the terms and conditions of the Credit Agreement described above
in Preliminary Statement (1) on the terms and subject to the satisfaction of the
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein and in the Loan Documents, the
parties hereto hereby agree as follows:
SECTION 1. Amendments of Certain Provisions of the Credit
Agreement. The Credit Agreement is, upon the occurrence of the Amendment
Effective Date (as hereinafter defined), hereby amended to read as follows:
(a) Section 1.01 is hereby amended to delete the definition of
"APPLICABLE MARGIN" in its entirety and to substitute therefor the following:
"`APPLICABLE MARGIN' means (a) in the case of the Term A
Facility, (i) at any time during the period from the date of Amendment
No. 1 to the Loan Documents to September 30, 1999, 2.250% per annum for
Base Rate Advances and 3.250% per annum for Eurodollar Rate
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Advances, (ii) at any time during the period from September 30, 1999 to
December 31, 1999, 2.500% per annum for Base Rate Advances and 3.500%
per annum for Eurodollar Rate Advances and (iii) at any time and from
time to time on and after December 31, 1999, 2.750% per annum for Base
Rate Advances and 3.750% per annum for Eurodollar Rate Advances, (b) in
the case of the Term B Facility, (i) at any time during the period from
the date of Amendment No. 1 to the Loan Documents to September 30,
1999, 2.500% per annum for Base Rate Advances and 3.500% per annum for
Eurodollar Rate Advances, (ii) at any time during the period from
September 30, 1999 to December 31, 1999, 2.750% per annum for Base Rate
Advances and 3.750% per annum for Eurodollar Rate Advances and (iii) at
any time and from time to time on and after December 31, 1999, 3.000%
per annum for Base Rate Advances and 4.000% per annum for Eurodollar
Rate Advances, and (c) in the case of the Revolving Credit Facility,
(i) at any time during the period from the date of Amendment No. 1 to
the Loan Documents through the Performance Level Determination Date,
2.250% per annum for Base Rate Advances and 3.250% per annum for
Eurodollar Rate Advances and (ii) at any time and from time to time
thereafter, a percentage per annum equal to the applicable percentage
set forth below for the Performance Level set forth below:
======================================================================================
REVOLVING CREDIT REVOLVING CREDIT
PERFORMANCE LEVEL BASE RATE ADVANCES EURODOLLAR RATE ADVANCES
I 0.375% 1.375%
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II 0.500% 1.500%
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III 0.625% 1.625%
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IV 0.875% 1.875%
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V 1.250% 2.250%
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VI 1.625% 2.625%
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VII 2.000% 3.000%
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VIII 2.250% 3.250%
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IX 2.500% 3.500%
======================================================================================
For purposes of subclause (c)(ii) of the immediately preceding
sentence, the Applicable Margin for each Base Rate Advance shall be
determined by reference to the Performance Level in effect from time to
time and the Applicable Margin for each Eurodollar Rate Advance shall
be determined by reference to the Performance Level in effect on the
first day of each Interest Period for such Eurodollar Rate Advance."
(b) The definition of "CALIFORNIA TRANSITION PLAN" in Section 1.01 is
hereby amended to delete the date "September 30, 1999" in subclause (D) thereof
and to substitute therefor the new date "November 30, 1999."
(c) Section 1.01 is hereby amended to delete the definition "CAREMARK
RECEIVABLES SECURITIZATION" in its entirety and to substitute therefor the
following:
"`CAREMARK RECEIVABLES SECURITIZATION' means limited recourse
sales and assignments from time to time by Caremark Inc. of its
accounts receivable (including, upon the
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consummation of the Incremental CTS Receivables Securitization, the
accounts receivable of the Therapeutic Services Division of Caremark
Inc.) to MP Receivables and by MP Receivables of such accounts
receivable or interests therein to one or more financial institutions;
provided, however, that (a) the aggregate principal amount paid by such
financial institutions for all such accounts receivable or interests
therein and to be recovered from all such accounts receivable or
interests therein shall not exceed $125,000,000 at any time
outstanding, (b) the price paid for any such accounts receivable shall
be as set forth in the Caremark Receivables Securitization Documents,
as in effect on the Amendment No. 1 Effective Date, or in the case of
any such accounts receivable included in the Incremental CTS
Receivables Securitization, such price as shall be set forth in the
Caremark Receivables Securitization Documents effected to permit the
Incremental CTS Receivables Securitization (but in any event not less
than 15% of the face amount of such accounts receivable), and (c) each
such sale and assignment of such accounts receivable or interests
therein shall otherwise be effected on the terms and conditions set
forth in the Caremark Receivables Securitization Documents."
(d) The definition of "CHANGE OF CONTROL" in Section 1.01 is hereby
amended (A) to delete the word "or" at the end of subsection (b) thereof, (B) to
delete the period at the end of subsection (c) thereof and to substitute
therefor the phrase "; and" and (C) to add thereto a new subsection (d) to read
as follows:
"(d) a Change of Control as defined in the Trust Agreement."
(e) Section 1.01 is hereby amended to delete the definition
"CONSTITUTIVE DOCUMENTS" in its entirety and to substitute therefor the
following:
"`CONSTITUTIVE DOCUMENTS' means, with respect to any Person,
the certificate of incorporation or registration (including, if
applicable, certificate of change of name), articles of incorporation
or association, memorandum of association, charter, bylaws, partnership
agreement, trust agreement, limited liability company operating or
members agreement, joint venture agreement or one or more similar
agreements, instruments or documents constituting the organization or
formation of such Person including, without limitation, the Convertible
Subordinated Debentures, the Preferred Securities Guarantee and the
Trust Agreement."
(f) Section 1.01 is hereby amended to delete the definition of "FIXED
CHARGE COVERAGE RATIO" in its entirety and to substitute therefor the following:
"`FIXED CHARGE COVERAGE RATIO' means, with respect to the
Borrower and its Subsidiaries for any period, the ratio of (a) the sum
of (i) Consolidated EBITDA of the Borrower and the Restricted
Subsidiaries for such period and (ii) for any such period commencing on
or after January 1, 2000, all rental expense of the Borrower and the
Restricted Subsidiaries for such period to (b) the sum (without
duplication) of (i) all Consolidated Interest Expense of the Borrower
and its Subsidiaries for such period, (ii) all Consolidated Cash Taxes
paid by or on behalf of the Borrower or any of its Subsidiaries during
such period, (iii) for any such period commencing on or after January
1, 2000, the amount of Consolidated Rental Payments made or required to
be made by the Borrower and the Restricted Subsidiaries during such
period and (iv) the aggregate amount of all outstanding Advances
scheduled to be repaid during such period pursuant to Section 2.04(a),
2.04(b) or 2.04(c), excluding the aggregate amount of all Term A
Advances scheduled to be repaid pursuant to Section 2.04(a) on November
30, 1999 in excess of $8,173,264."
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(g) Section 1.01 is hereby amended to delete the definition of
"INCREMENTAL CTS RECEIVABLES SECURITIZATION" in its entirety and to substitute
therefor the following:
"`INCREMENTAL CTS RECEIVABLES SECURITIZATION' means limited
recourse sales and assignments from time to time by the Therapeutic
Services Division of Caremark, Inc. of its account receivables to MP
Receivables and by MP Receivables of such accounts receivable or
interests therein to one or more financial institutions pursuant to the
Caremark Receivables Securitization Documents that permit such sales
and assignments on substantially the same terms and conditions as are
set forth therein on the Amendment No. 7 Effective Date (except for any
modifications to the eligibility criteria for, and the other provisions
included in, the Caremark Securitization Documents relating to accounts
receivable sold and assigned into the Caremark Receivables
Securitization that are reasonably necessary due to the ordinary course
nature of the accounts receivable of the Therapeutic Services Division
of Caremark, Inc., but solely to the extent permitted under the terms
of the Loan Documents."
(h) Section 1.01 is hereby amended to delete the definition of "MP
RECEIVABLES" in its entirety and to substitute therefor the following:
"`MP RECEIVABLES' means MP Receivables Company, a Delaware
corporation and a wholly-owned subsidiary of Caremark, or any other
Person organized under the laws of the United States or any State
thereof and a wholly-owned Subsidiary of Caremark, in each case formed
by the Borrower in connection with the Caremark Receivables
Securitization."
(i) The definition of "UNUSED REVOLVING CREDIT COMMITMENT" in Section
1.01 is hereby amended to delete the phrase "Amendment No. 8 Net Cash Proceeds
Reserve" from clause (b)(ii)(D)(2) thereof and to substitute therefor the phrase
"Term A Amortization Reserve."
(j) Section 1.01 is hereby amended to delete therefrom the following
definitions in their entirety: "AMENDMENT NO. 8 NET CASH PROCEEDS," "AMENDMENT
NO. 8 NET CASH PROCEEDS RESERVE," "REQUIRED LENDERS' PROCEEDS RESERVE
APPLICATION NOTICE," and "REQUIRED LENDERS' PROCEEDS RESERVE ELIMINATION
NOTICE."
(k) Section 1.01 is hereby amended to add in the appropriate
alphabetical order the following definitions:
"`CONVERTIBLE SUBORDINATED DEBENTURES' means those certain
Convertible Subordinated Debentures issued by the Borrower to
Wilmington Trust Company, as trustee, under the Trust Agreement,
containing provisions subordinating the obligations of the Borrower
thereunder to the obligations of the Borrower hereunder and other terms
and conditions, in each case as provided in the Offering Memorandum or
such other terms and conditions which are not adverse to the interests
of the Lender Parties."
"`DELAWARE TRUST SUBSIDIARY' means the wholly-owned Subsidiary
of the Borrower duly created and validly existing as a statutory
business trust in good standing under the Business Trust Act of the
State of Delaware."
"`LIQUIDITY AMOUNT' means, as of any date, the sum of (a) the
aggregate Unused Revolving Credit Commitment as of such date plus (b)
the aggregate amount of cash and Cash Equivalents maintained as of such
date by the Borrower and its Subsidiaries."
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"`OFFERING MEMORANDUM' means that certain Offering Memorandum
in draft form dated September 11, 1999 containing a description of the
principal terms and provisions of the Trust Convertible Preferred
Interests."
"`PREFERRED SECURITIES GUARANTEE' means that certain Guarantee
made by the Borrower to guarantee the obligations of the Delaware Trust
Subsidiary in respect of the Trust Convertible Preferred Interests,
containing provisions subordinating the obligations of the Borrower
thereunder to the obligations of the Borrower hereunder and other terms
and conditions, in each case as provided in the Offering Memorandum or
such other terms and conditions which are not adverse to the interests
of the Lender Parties."
"`TERM A AMORTIZATION RESERVE' means the amount of the
required repayment of the Term A Advances due on November 30, 1999 as
provided in Section 2.04(a)."
"`TRUST AGREEMENT' means that certain Trust Agreement between
the Borrower and Wilmington Trust Company, as trustee, entered into in
connection with the issuance of the Trust Convertible Preferred
Interests containing terms and conditions as provided in the Offering
Memorandum or such other terms and conditions which are not adverse to
the interests of the Lender Parties."
"`TRUST CONVERTIBLE PREFERRED INTERESTS' means the Preferred
Interests issued by the Delaware Trust Subsidiary pursuant to the Trust
Agreement having terms and conditions as provided in the Offering
Memorandum or such other terms and conditions which are not adverse to
the interests of the Lender Parties."
(l) Section 2.01(c) is hereby amended to delete subsection (iii)
therefrom and to substitute the following therefor:
"(iii) Term A Amortization Reserve. In the event that the amount of Net
Cash Proceeds of the issuance of the Trust Convertible Preferred
Interests equals or exceeds $200,000,000, the Revolving Credit
Commitment of each Revolving Credit Lender shall be deemed utilized at
any time and from time to time after the date of such issuance by such
Lender's Pro Rata Share of the amount of the Term A Amortization
Reserve. On November 30, 1999 the Term A Amortization Reserve shall be
eliminated in full, and, notwithstanding any other provisions of this
Agreement, the amount of the Term A Amortization Reserve at such date
shall be deemed to constitute a Revolving Credit Borrowing on such date
in such amount and the Borrower irrevocably authorizes the Agent on
such date to repay the Term A Advances outstanding at such time in
accordance with Section 2.04(a)(ii)."
(m) Section 2.04(a)(ii) is hereby amended to add thereto the
following proviso before the period at the end thereof:
"provided, further, however, that in the event that the amount of Net
Cash Proceeds of the issuance of the Trust Convertible Preferred
Interests equals or exceeds $200,000,000, the Borrower shall instead
pay on November 30, 1999 the amounts scheduled above to be paid on
November 30, 1999, February 29, 2000, May 31, 2000, and August 31,
2000."
(n) Section 2.05(b) is hereby amended to delete the date "September 30,
1999" in subclause (vii)(B) thereof and to substitute therefor the new date
"November 30, 1999."
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(o) Section 2.05(b)(vi) is hereby amended by deleting subsection (C)
therefrom and substituting the following therefor:
"(C) the issuance or sale by the Borrower or any of its
Subsidiaries of any Equity Interests therein (other than: (x) the
issuance of the Trust Convertible Preferred Interests, but solely to
the extent that the Net Cash Proceeds thereof are applied in accordance
with subsection (viii) hereof, (y) the issuance by the Borrower of
Equity Interests upon the conversion of the Trust Convertible Preferred
Interests, and (z) any such issuance or sale of Equity Interests in the
Borrower or any of its Subsidiaries pursuant to Section 5.1 of the TAPS
Indenture, but solely to the extent that the gross proceeds from the
issuance and sale of the Borrower Common Stock pursuant thereto is
applied on the date of such sale to repay the outstanding senior
subordinated notes of the Borrower comprising part of the TAPS in
accordance with Section 5.4 of the TAPS Purchase Contract); and"
(p) Section 2.05(b) is hereby amended to add thereto a new
subsection (viii) to read as follows:
"(viii) The Term Facilities shall be automatically and permanently
reduced, within two Business Days after the date of receipt of the Net
Cash Proceeds by the Borrower or any of its Subsidiaries, from the
issuance of the Trust Convertible Preferred Interests by an amount
equal to:
(A) $80,000,000 in the event that the amount of Net Cash Proceeds
from the issuance of the Trust Convertible Preferred Interests
is less than $200,000,000; and
(B) "2X," where "X" is determined by the following formula, in the
event that the amount of Net Cash Proceeds from the issuance
of the Trust Convertible Preferred Interests is equal to or
greater than $200,000,000:
(P)(.528) = 2X + (A-X)(1/3)
Where:
P = the amount of Net Cash Proceeds from the issuance
of the Trust Convertible Preferred Interests
A = the aggregate principal amount of Term A Advances
outstanding prior to such prepayment
Each reduction of the Term Facilities pursuant to this clause (viii)
shall be applied in the manner set forth in Section 2.05(c)(i)."
(q) Section 5.02(b) is amended to delete subsection (xviii)
therefrom and to substitute the following therefor:
"(xviii) Indebtedness of the Borrower in an aggregate principal amount
not in excess of $12,000,000, including within such amount Indebtedness
evidenced by Contingent Obligations, which Indebtedness will be
comprised of loans from one or more Plans (as defined in the California
Settlement Agreement) or guarantees of loans by one or more Plans, the
proceeds of which direct Indebtedness will be loaned to one or more
buyers to be used, and the proceeds of which loans guaranteed by such
Contingent Obligations will be used, to finance the working
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capital requirements of certain California Operations (as defined in
the California Settlement Agreement) purchased from the Borrower or its
Subsidiaries; provided that so long as interest thereunder at the
contract rate in effect on the date such Indebtedness is incurred is
paid when due, the Borrower shall not have any payment obligation in
respect of such Indebtedness until at least three years after the date
such Indebtedness is incurred; and provided, further, however, that the
Borrower may be obligated to make a mandatory prepayment upon receipt
by the Borrower of any amount to be remitted to the Borrower pursuant
to Section 3.5(d) of the California Settlement Agreement, in an amount
equal to the lesser of (x) the amount of all mandatory and voluntary
principal repayments made by KPC Medical Management, Inc. of the
promissory note issued by KPC Medical Management, Inc. in partial
payment of the purchase price for certain California Property and
Assets and deposited in the California Deposit Account (as defined in
the California Settlement Agreement) and (y) the amount so received by
the Borrower pursuant to Section 3.5(d) of the California Settlement
Agreement;".
(r) Section 5.02(b) is amended (A) to delete the word "and" at the end
of subsection (xvi) thereof, (B) to delete the word "and" at the end of
subsection (xvii) thereof, (C) to delete the period at the end of subsection
(xviii) thereof and to substitute therefor the phrase "; and" and (D) to add
thereto a new subsection (xix) to read as follows:
"(xix) unsecured Indebtedness of the Borrower to the Delaware Trust
Subsidiary pursuant to the Convertible Subordinated Debentures in an
aggregate principal amount not in excess of 103.1% of the gross
proceeds of the Trust Convertible Preferred Interests, and unsecured
Indebtedness of the Borrower under the Preferred Securities Guarantee."
(s) Section 5.02(d) of the Credit Agreement is hereby amended to delete
the last paragraph thereof immediately following subsection (xiii) therein and
to substitute therefor the following paragraph:
"Notwithstanding any of the provisions of this Section
5.02(d), the Borrower and its Subsidiaries may retain (A) Net Cash
Proceeds as provided in the Credit Agreement as in effect prior to the
date of Amendment No. 8 to the Loan Documents and (B) up to 100% of the
Net Cash Proceeds received from time to time on or after July 1, 1999
from one or more sales, leases, transfers or other dispositions
expressly permitted under clause (vii), (viii) or (xi) of this Section
5.02(d), in each case for use in their business and operations in the
ordinary course, so long as the aggregate amount of all such Net Cash
Proceeds referred to in subclause (B) so retained by the Borrower and
its Subsidiaries does not exceed $93,000,000, exclusive of up to
$15,000,000 of such Net Cash Proceeds which can be retained by the
Borrower and used solely for the payment of amounts owing under the
Amended Aetna Note when due and payable in accordance with the terms
thereof."
(t) Section 5.02(e) is amended (A) to delete the period at the end of
subsection (vii) thereof and to substitute therefor the phrase "; and", (B) to
delete the period at the end of subsection (viii) thereof and to substitute
therefor the phrase "; and", and (C) to add thereto a new subsection (ix) to
read as follows:
"(ix) Investments by the Borrower in an aggregate amount not in excess
of 3.1% of the gross proceeds of the Trust Convertible Preferred
Interests to capitalize the Delaware Trust Subsidiary provided that the
Borrower or any other Subsidiary does not transfer assets to, or
guarantee or otherwise become obligated in respect of the obligations
of, the Delaware Trust Subsidiary other than as provided in the
Preferred Securities Guarantee."
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(u) Section 5.02(f) is amended (A) to delete the word "and" at the
end of subsection (iv) thereof, (B) to delete the period at the end of
subsection (v) thereof and to substitute therefor the phrase "; and" and (C) to
add thereto a new subsection (vi) to read as follows:
"(vi) the Delaware Trust Subsidiary may issue the Trust Convertible
Preferred Interests, and declare and pay or make dividends in respect
thereof as provided in the Trust Agreement."
(v) Section 5.02(h)(i) is amended (A) to delete the word "and" at the
end of subsection (F) thereof, (B) to insert the word "and" after the semicolon
at the end of subsection (G) thereof, and (C) to add thereto a new subsection
(H) to read as follows:
"(H) the issuance by the Borrower of Equity Interests to the holders of
the Trust Convertible Preferred Interests upon exchange thereof for
Convertible Subordinated Debentures and immediate conversion of such
Convertible Subordinated Debentures, as provided in the Trust
Agreement;"
(w) Section 5.02(k) is amended to delete the phrase "other than a
Special Purpose Vehicle" therefrom and to substitute therefor the phrase "other
than a Special Purpose Vehicle or the Delaware Trust Subsidiary."
(x) Section 5.03 is amended to add the following new paragraph at the
end thereof:
"Notwithstanding the foregoing provisions of this Section 5.03,
commencing with the first week following the date of issuance of the
Trust Convertible Preferred Interests, the Borrower shall not be
required to comply with subsections (w), (x) and (y) of this Section
5.03; provided, however that in the event that the Liquidity Amount as
of any date thereafter is less than $50,000,000, the Borrower shall be
required to comply with subsections (w), (x) and (y) of this Section
5.03 commencing with the first week following such date."
SECTION 2. Conditions Precedent to the Effectiveness of this
Amendment. This Amendment shall become effective as of the first date (the
"AMENDMENT EFFECTIVE DATE") on which, and only if, each of the following
conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received on or before 5:00 p.m.
(Charlotte time) on September 14, 1999, (i) counterparts of this Amendment
executed by the Borrower and the Required Lenders or, as to any of the Lender
Parties, advice satisfactory to the Administrative Agent that such Lender Party
has executed this Amendment, (ii) counterparts of the Consent attached hereto
executed and delivered by each of the Loan Parties (other than the Borrower) and
(iii) for the benefit of each Lender Party that has executed this Amendment
prior to such time, a fee from the Borrower in an amount equal to 0.250% of the
aggregate Commitment of such Lender Party, in each case as of the Business Day
immediately preceding the Amendment Effective Date, which amount shall include
amounts which would have been payable pursuant to Section 3 of Amendment No. 8,
and which amount will be distributed to the respective Lender Party no later
than the Business Day immediately succeeding the Amendment Effective Date.
(b) The representations and warranties set forth in each of the Loan
Documents shall be correct in all material respects on and as of the Amendment
Effective Date, before and after giving effect to this Amendment, as though made
on and as of such date (except (i) for any such representation and warranty
that, by its terms, refers to a specific date other than the Amendment Effective
Date, in which case as of such specific date, (ii) that the Consolidated
financial statements of the Borrower and its Subsidiaries referred to in
Sections 4.01(f) and 4.01(g) of the Credit Agreement shall be deemed to refer
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to the Consolidated financial statements of the Borrower and its Subsidiaries
comprising part of the Required Financial Information most recently delivered to
the Administrative Agent and the Lender Parties pursuant to Sections 5.03(b) and
5.03(c), respectively, on or prior to the Amendment Effective Date and (iii)
that the forecasted Consolidated financial statements of the Borrower and its
Subsidiaries referred to in Section 4.01(h) of the Credit Agreement shall be
deemed to refer to the forecasted Consolidated financial statements of the
Borrower and its Subsidiaries most recently delivered to the Administrative
Agent and the Lender Parties prior to the Amendment Effective Date).
(c) No event shall have occurred and be continuing, or shall result
from the effectiveness of this Amendment, that constitutes a Default.
(d) All of the reasonable fees and expenses of the Administrative Agent
and the Arranger (including the reasonable fees and expenses of counsel for the
Administrative Agent) due and payable on the Amendment Effective Date shall have
been paid in full.
The effectiveness of this Amendment is further conditioned upon the accuracy of
all of the factual matters described herein. This Amendment is subject to the
provisions of Section 8.01 of the Credit Agreement.
SECTION 3. Reference to and Effect on the Loan Documents. (a)
On and after the Amendment Effective Date, 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 amended by the amendments specifically provided above in Section
1, are and shall continue to be in full force and effect and are hereby in all
respects ratified and confirmed. The execution, delivery and effectiveness of
this Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of any of the Guaranteed Parties or the
Administrative Agent under any of the Loan Documents, or constitute a waiver of
any provision of any of the Loan Documents.
SECTION 4. Costs and Expenses. The Borrower hereby agrees to
pay, upon demand, all of the reasonable costs and expenses of the Administrative
Agent and the Arranger (including, without limitation, the reasonable fees and
expenses of counsel for the Administrative Agent) in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Amendment and all of the agreements, instruments and other documents
delivered or to be delivered in connection herewith, all in accordance with the
terms of Section 8.04 of the Credit Agreement.
SECTION 5. 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 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 6. Governing Law. This Amendment shall be governed
by, and construed in accordance with, the laws of the State of New York.
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 written above.
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THE BORROWER
CAREMARK RX, INC.
(formerly known as MEDPARTNERS, INC.)
By
------------------------------------------
Name:
Title:
[Remainder of page intentionally left blank.]
10
11
THE ADMINISTRATIVE AGENT
BANK OF AMERICA, N.A.
By /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Principal
THE LENDER PARTIES
BANK OF AMERICA, N.A., as a Lender,
the Swing Line Bank and the Issuing Bank
By /s/ Xxxxxx X. Xxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Principal
AMSOUTH BANK
By /s/ Xxxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK
By /s/ Xxxx Xxx Xxx
---------------------------------
Name: Xxxx Xxx Xxx
Title: Vice President
CITIBANK, N.A.
By
---------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Xxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
DEBT STRATEGIES FUND, INC.
11
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By
---------------------------------
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ L. Xxxxxxx Xxxxxxxx
---------------------------------
Name: L. Xxxxxxx Xxxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By /s/ Xxxxxxx Xxxxx
---------------------------------
Name: Xxxxxxx Xxxxx
Title: Vice President
FLOATING RATE PORTFOLIO
BY: INVESCO Senior Secured Management, Inc., as
attorney in fact
By
---------------------------------
Name:
Title:
KZH HIGHLAND-2 LLC
By /s/ Xxxxx Xxxx
---------------------------------
Name: Xxxxx Xxxx
Title: Authorized Agent
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Director
12
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XXXXXXX XXXXX DEBT STRATEGIES
PORTFOLIO, INC.
BY: XXXXXXX XXXXX ASSET
MANAGEMENT L.P., as Investment Advisor
By
---------------------------------------
Name:
Title:
XXXXXXX XXXXX GLOBAL INVESTMENT
SERIES: INCOME STRATEGIES PORTFOLIO
BY: XXXXXXX XXXXX ASSET MANAGEMENT, L.P., as
Investment Advisor
By
---------------------------------------
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By
---------------------------------------
Name:
Title:
XXXXXXX XXXXX PRIME RATE PORTFOLIO
BY: XXXXXXX XXXXX ASSET
MANAGEMENT, L.P., as Investment Advisor
By
---------------------------------------
Name:
Title:
ML CBO IV (CAYMAN) LTD.
BY: HIGHLAND CAPITAL MANAGEMENT L.P.,
as Collateral Manager
By /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx, CFA, CPA
Title: President
13
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ML CLO XX PILGRIM AMERICA
(CAYMAN) LTD.
BY: PILGRIM INVESTMENTS, INC.,
as Investment Manager
By /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxx Xxxxx Xxxxxx
---------------------------------------
Name: Xxxx Xxxxx Xxxxxx
Title: Vice President
XXX CAPITAL FUNDING, LP
BY: HIGHLAND CAPITAL MANAGEMENT, L.P.,
as Collateral Manager
By /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx, CFA, CPA
Title: President
PAMCO CAYMAN, LTD.
BY: HIGHLAND CAPITAL MANAGEMENT, L.P.,
as Collateral Manager
By /s/ Xxxxx Xxxxxxx
---------------------------------------
Name: Xxxxx Xxxxxxx, CFA, CPA
Title: President
PILGRIM PRIME RATE TRUST
BY: PILGRIM INVESTMENTS, INC.,
as Investment Manager
By /s/ Xxxxx X. Xxxxx
---------------------------------------
Name: Xxxxx X. Xxxxx
Title: Assistant Vice President
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SCOTIABANC INC.
By /s/ Xxxx Xxxxxxx
---------------------------------------
Name: Xxxx Xxxxxxx
Title: Relationship Manager
SRV-HIGHLAND, INC.
By /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
XXXXX XXX & XXXXXXX INCORPORATED,
as Agent for KEYPORT LIFE INSURANCE
COMPANY
By /s/ Xxxxx X. Good
---------------------------------------
Name: Xxxxx X. Good
Title: Vice President & Portfolio Manager
TORONTO DOMINION (TEXAS), INC.
By /s/ Xxxxx X. Xxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
TRANSAMERICA LIFE INSURANCE AND
ANNUITY CO.
By /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Investment Officer
TRANSAMERICA PREMIER HIGH YIELD FUND
By /s/ Xxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Investment Officer
15
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XXX XXXXXX PRIME RATE INCOME TRUST
By /s/ Xxxxxx X. XxXxxxxxx
---------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: President
XXX XXXXXX SENIOR INCOME TRUST
By /s/ Xxxxxx X. XxXxxxxxx
---------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: President
XXX XXXXXX CLO II, LIMITED
BY: XXX XXXXXX MANAGEMENT, INC.,
as Collateral Manager
By /s/ Xxxxxx X. XxXxxxxxx
---------------------------------------
Name: Xxxxxx X. XxXxxxxxx
Title: President
WACHOVIA BANK, N.A.
By /s/ Xxxx X. Xxxxx
---------------------------------------
Name: Xxxx X. Xxxxx
Title: Assistant Vice President
16
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CONSENT TO AMENDMENT NO. 12
TO THE LOAN DOCUMENTS
As of September 14, 1999
Reference is made to Amendment No. 12 to the Loan Documents
dated as of September 14, 1999 (the "Amendment") to the Amended and Restated
Credit Agreement dated as of June 9, 1998 (as amended and otherwise modified by
Amendment No. 1 to the Loan Documents dated as of December 4, 1998, Amendment
No. 2 to the Loan Documents dated as of January 13, 1999, Amendment No. 3 to the
Loan Documents dated as of February 9, 1999, Amendment and Waiver No. 4 to the
Loan Documents dated as of March 18, 1999, Amendment and Waiver No. 5 to the
Loan Documents dated as of April 1, 1999, Amendment No. 6 to the Loan Documents
dated as of April 14, 1999, Amendment No. 7 to the Loan Documents dated as of
June 29, 1999, Amendment No. 8 to the Loan Documents dated as of August 2, 1999,
Amendment No. 9 to the Loan Documents dated as of August 16, 1999, Amendment No.
10 to the Loan Documents dated as of August 23, 1999, and Amendment No. 11 to
the Loan Documents dated as of August 30, 1999, the "CREDIT AGREEMENT") among
Caremark Rx, Inc. (formerly known as MedPartners, Inc.), a Delaware corporation,
the Lenders party thereto, Bank of America, N.A. (formerly NationsBank, N.A.),
as the Initial Issuing Bank and Swing Line Bank thereunder, Credit Lyonnais New
York Branch, The First National Bank of Chicago and Xxxxxx Guaranty Trust
Company of New York, as the Syndication Agents therefor, Banc of America
Securities LLC (formerly NationsBanc Xxxxxxxxxx Securities LLC), as Arranger
therefor, and Bank of America, N.A. (formerly NationsBank, N.A.), as the
Administrative Agent for the Lender Parties thereunder. Capitalized terms not
otherwise defined herein shall have the same meanings as specified therefor in
the Credit Agreement.
Each of the undersigned, as a guarantor under the Subsidiaries
Guarantee dated as of June 9, 1998 (as modified to the date hereof, the
"SUBSIDIARIES GUARANTEE") in favor of the Guaranteed Parties, hereby consents to
the execution and delivery of the Amendment and the performance of the Credit
Agreement, as amended thereby, and hereby confirms and agrees that,
notwithstanding the effectiveness of the Amendment, the Subsidiaries Guarantee
is, and shall continue to be, in full force and effect and is hereby in all
respects ratified and confirmed, except that each reference in the Subsidiaries
Guarantee 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 the Amendment.
This Consent 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 one and the same Consent. Delivery of an executed counterpart of a
signature page to this Consent by telecopier shall be effective as delivery of a
manually executed counterpart of this Consent.
This Consent shall be governed by, and construed in accordance
with, the laws of the State of New York.
MEDGP, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
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MEDPARTNERS ACQUISITION CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
MEDPARTNERS AVIATION, INC.
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & Secretary
MEDPARTNERS EAST, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
GEORGIA MEDPARTNERS MANAGEMENT,
INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
MEDPARTNERS INTEGRATED NETWORK-XXXXXXXX, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Treasurer
MEDPARTNERS PROFESSIONAL
MANAGEMENT CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
2
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ADS HEALTH MANAGEMENT, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & Secretary
HEALTHWAYS, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
BAY AREA PRACTICE MANAGEMENT
GROUP, INC.
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & Secretary
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Treasurer
CHS MANAGEMENT, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
CAREMARK INTERNATIONAL INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
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CAREMARK INC.
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & Secretary
By /s/ Xxxxx Xxxxx
---------------------------------------
Name: Xxxxx Xxxxx
Title: Treasurer
CAREMARK PHYSICIAN SERVICES OF TEXAS INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Treasurer
PRESCRIPTION HEALTH SERVICES, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Treasurer
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & Secretary
STRATEGIC HEALTHCARE MANAGEMENT, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Treasurer
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & Secretary
4
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CAREMARK INTERNATIONAL HOLDINGS INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Treasurer
MEDPARTNERS PHYSICIAN SERVICES INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Treasurer
CAREMARK RESOURCES CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Treasurer
FRIENDLY HILLS HEALTHCARE
NETWORK INC.
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & Secretary
MEDPARTNERS NSC LTD.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Treasurer
MEDPARTNERS ADMINISTRATIVE
SERVICES, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Treasurer
5
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MEDPARTNERS MANAGED CARE, INC.
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & Secretary
ACUTE CARE MEDICAL MANAGEMENT, INC.
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & Secretary
BGS HEALTHCARE, INC.
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & Secretary
HOME HEALTH AGENCY OF GREATER MIAMI, INC.
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & Secretary
MEDPARTNERS MANAGED CARE OF SOUTH BROWARD, INC.
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & Secretary
MEDPARTNERS MEDICAL MANAGEMENT OF OHIO, INC.
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & Secretary
6
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LFMG, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Treasurer
PACIFIC MEDICAL GROUP, INC.
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & Secretary
PACIFIC PHYSICIAN SERVICES, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
PPS EAST, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
PPS NORTH CAROLINA MEDICAL
MANAGEMENT, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
PPS RIVERSIDE DIVISION ACQUISITION
AND MANAGEMENT CORP. I
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
7
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PPS VALLEY MANAGEMENT, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & Secretary
PPS INDEMNITY, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
PACIFIC PHYSICIAN SERVICES
ARIZONA, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
PACIFIC PHYSICIAN SERVICES
NEVADA, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
PHYSICIANS' HOSPITAL MANAGEMENT
CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Treasurer
8
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RELIANT HEALTHCARE SYSTEMS, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President & Secretary
MEDPARTNERS/XXXXXXX MEDICAL
MANAGEMENT CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Treasurer
XXXXXXX MEDICAL MANAGEMENT
CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Treasurer
XXXXXXX HEALTH SERVICES
CORPORATION
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Treasurer
MEDPARTNERS ADMINISTRATION, L.P.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Executive Vice President &
Treasurer of Caremark Rx,
Inc., the General Partner
9
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MEDPARTNERS PHYSICIAN
MANAGEMENT, L.P.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Executive Vice President of
Caremark Rx, Inc., the General
Partner
MEDOHIO, L.P.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer of
MedGP, Inc., the General Partner
MED TENNESSEE, INC.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer
MEDTEX, L.P.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: President & Treasurer of
MedGP, Inc., the General
Partner
MEDPARTNERS PHYSICIAN SERVICES OF ILLINOIS L.L.C.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Treasurer of
North Suburban Clinic, Ltd.,
a Member
10
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CERRITOS INVESTMENT GROUP
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Executive Vice President &
Chief Financial Officer of
Caremark Rx, Inc., a Partner
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Corporate Secretary of
Caremark Rx, Inc., a Partner
CERRITOS INVESTMENT GROUP II
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Executive Vice President &
Chief Financial Officer of
Caremark Rx, Inc., a Partner
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Corporate Secretary of
Caremark Rx, Inc., a Partner
0000 XXXXXXX XXXXX, X.X.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Executive Vice President &
Chief Financial Officer of
Caremark Rx, Inc. the General
Partner
By /s/ Xxxx X. Xxxxxx
---------------------------------------
Name: Xxxx X. Xxxxxx
Title: Corporate Secretary of
Caremark Rx, Inc., the General
Partner
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KS-PSI OF TEXAS L.P.
By /s/ Xxxxx X. Xxxxxxxxx, Xx.
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx, Xx.
Title: Vice President & Treasurer of
MedPartners Physician Services,
Inc., the General Partner
12
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AMENDMENT NO. 13 TO THE LOAN DOCUMENTS
AMENDMENT NO. 13 TO THE LOAN DOCUMENTS dated as of November 5,
1999, to the Amended and Restated Credit Agreement dated as of June 9, 1998 (as
amended and otherwise modified by Amendment and Waiver No. 1 to the Loan
Documents dated as of December 4, 1998, Amendment No. 2 to the Loan Documents
dated as of January 13, 1999, Amendment No. 3 to the Loan Documents dated as of
February 9, 1999, Amendment and Waiver No. 4 to the Loan Documents dated as of
March 18, 1999, Amendment and Waiver No. 5 to the Loan Documents dated as of
April 1, 1999, Amendment No. 6 to the Loan Documents dated as of April 14, 1999,
Amendment No. 7 to the Loan Documents dated as of June 29, 1999, Amendment No. 8
to the Loan Documents dated as of August 2, 1999, Amendment No. 9 to the Loan
Documents dated as of August 16, 1999, Amendment No. 10 to the Loan Documents
dated as of August 23, 1999, Amendment No. 11 to the Loan Documents dated as of
August 30, 1999, and Amendment No. 12 to the Loan Documents dated as of
September 14, 1999, the "CREDIT AGREEMENT among Caremark Rx, Inc. (formerly
known as MedPartners, Inc.), a Delaware corporation (the "BORROWER"), the
Lenders party thereto, Bank of America, N.A. (formerly NationsBank, N.A.;
"BOFA"), as the Initial Issuing Bank and the Swing Line Bank thereunder, Credit
Lyonnais New York Branch, The First National Bank of Chicago and Xxxxxx Guaranty
Trust Company of New York, as the Syndication Agents therefor, Banc of America
Securities LLC (formerly NationsBanc Xxxxxxxxxx Securities LLC), as the Arranger
therefor, and BofA, as the Administrative Agent for the Lender Parties
thereunder. Capitalized terms not otherwise defined in this Amendment have the
same meanings as specified therefor in the Credit Agreement.
PRELIMINARY STATEMENTS
(1) The Borrower has requested that the Lender Parties agree
to amend the Credit Agreement in order to (a) provide for new financial
covenants, (b) amend the definition of Consolidated Rental Payments and (c) make
certain other changes as set forth herein.
(2) The Lender Parties have indicated their willingness to
agree to amend the terms and conditions of the Credit Agreement described above
in Preliminary Statement (1) on the terms and subject to the satisfaction of the
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein and in the Loan Documents, the
parties hereto hereby agree as follows:
SECTION 1. Amendments of Certain Provisions of the Credit
Agreement. The Credit Agreement is, upon the occurrence of the Amendment
Effective Date (as hereinafter defined), hereby amended to read as follows:
(a) Section 1.01 is hereby amended:
(i) to amend the definition of "California Transition
Plan" to delete the date "November 30, 1999" in subclause (D)
thereof and to substitute therefor the new date "December 31,
1999"; and
(ii) to amend the definition of "Consolidated Rental Payments"
to add at the end thereof the following proviso: "; provided,
however, that Consolidated Rental Payments shall not include
any one-time payment made to the respective lessor to
terminate an Operating Lease in a discontinued operation of
the respective lessee prior to its scheduled termination
date.".
30
(b) Section 2.05(b) is hereby amended to delete the date
"November 30, 1999" in subclause (vii)(B) thereof and to substitute
therefor the new date "December 31, 1999."
(c) Section 5.02(b)(xviii) is amended to delete in the first
proviso thereof the phrase "at least three years after the date such
Indebtedness is incurred" and to substitute therefor the phrase "after
November 1, 2001".
(d) Section 5.02(h)(i)(G) is amended to (I) delete the phrase
"within five Business Days of January 1, 2000," and to substitute
therefor the phase "not later than six months after the adoption of the
California Transition Plan," and (II) delete the phrase ", as in effect
on the Amendment No. 7 Effective Date".
(e) Section 5.04 is hereby amended to delete subsections (a),
(b) and (c) thereof in their entirety and to substitute therefor the
following subsections (a), (b) and (c), respectively:
"(a) Leverage Ratio. Maintain a Leverage Ratio at all
times of not more than the amount set forth below for the period set
forth below:
Period Ratio
------ -----
June 30, 1999 through 6.75:1
September 29, 1999
September 30, 1999 through 6.65:1
December 30, 1999
December 31, 1999 through March 6.45:1
30, 2000
March 31, 2000 through 6.15:1
June 29, 2000
June 30, 2000 through September 6.00:1
29, 2000
September 30, 2000 through 5.50:1
December 30, 2000
December 31, 2000 and thereafter 5.00:1
(b) Fixed Charge Coverage Ratio. Maintain a Fixed
Charge Coverage Ratio as of the last day of each Measurement
Period of not less than the amount set forth below for each
Measurement Period set forth below:
Measurement Period
Ending In Ratio
--------- -----
September 1999 and thereafter 1.25:1
2
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(c) Interest Coverage Ratio. Maintain an Interest
Coverage Ratio as of the last day of each Measurement Period
of not less than the amount set forth below for each
Measurement Period set forth below:
Measurement Period
Ending In Ratio
--------- -----
September 1999 1.25:1
December 1999 1.30:1
March 2000 1.40:1
June 2000 1.50:1
September 2000 1.60:1
December 2000 and thereafter 1.70:1"
SECTION 2. Conditions Precedent to the Effectiveness of this
Amendment. This Amendment shall become effective as of the first date (the
"AMENDMENT EFFECTIVE DATE") on which, and only if, each of the following
conditions precedent shall have been satisfied:
(a) The Administrative Agent shall have received on or before 5:00 p.m.
(Charlotte time) on November 5, 1999, (i) counterparts of this Amendment
executed by the Borrower and the Required Lenders or, as to any of the Lender
Parties, advice satisfactory to the Administrative Agent that such Lender Party
has executed this Amendment and (ii) counterparts of the Consent attached hereto
executed and delivered by each of the Loan Parties (other than the Borrower).
(b) The representations and warranties set forth in each of the Loan
Documents shall be correct in all material respects on and as of the Amendment
Effective Date, before and after giving effect to this Amendment, as though made
on and as of such date (except (i) for any such representation and warranty
that, by its terms, refers to a specific date other than the Amendment Effective
Date, in which case as of such specific date, (ii) that the Consolidated
financial statements of the Borrower and its Subsidiaries referred to in
Sections 4.01(f) and 4.01(g) of the Credit Agreement shall be deemed to refer to
the Consolidated financial statements of the Borrower and its Subsidiaries
comprising part of the Required Financial Information most recently delivered to
the Administrative Agent and the Lender Parties pursuant to Sections 5.03(b) and
5.03(c), respectively, on or prior to the Amendment Effective Date and (iii)
that the forecasted Consolidated financial statements of the Borrower and its
Subsidiaries referred to in Section 4.01(h) of the Credit Agreement shall be
deemed to refer to the forecasted Consolidated financial statements of the
Borrower and its Subsidiaries most recently delivered to the Administrative
Agent and the Lender Parties prior to the Amendment Effective Date).
(c) No event shall have occurred and be continuing, or shall result
from the effectiveness of this Amendment, that constitutes a Default.
3
32
(d) All of the reasonable fees and expenses of the Administrative Agent
and the Arranger (including the reasonable fees and expenses of counsel for the
Administrative Agent) due and payable on the Amendment Effective Date shall have
been paid in full.
The effectiveness of this Amendment is further conditioned
upon the accuracy of all of the factual matters described herein. This Amendment
is subject to the provisions of Section 8.01 of the Credit Agreement.
SECTION 3. Reference to and Effect on the Loan Documents. (a)
On and after the Amendment Effective Date, 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 amended by the amendments specifically provided above in Section
1, are and shall continue to be in full force and effect and are hereby in all
respects ratified and confirmed. The execution, delivery and effectiveness of
this Amendment shall not, except as expressly provided herein, operate as a
waiver of any right, power or remedy of any of the Guaranteed Parties or the
Administrative Agent under any of the Loan Documents, or constitute a waiver of
any provision of any of the Loan Documents.
SECTION 4. Costs and Expenses. The Borrower hereby agrees to
pay, upon demand, all of the reasonable costs and expenses of the Administrative
Agent and the Arranger (including, without limitation, the reasonable fees and
expenses of counsel for the Administrative Agent and of Xxxxxxxx & Company LLP)
in connection with the preparation, execution, delivery, administration,
modification and amendment of this Amendment and all of the agreements,
instruments and other documents delivered or to be delivered in connection
herewith, all in accordance with the terms of Section 8.04 of the Credit
Agreement.
SECTION 5. 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 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 6. Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of New York.
4
33
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 written above.
THE BORROWER
CAREMARK RX, INC.
(formerly known as MEDPARTNERS, INC.)
By
------------------------------
Name:
Title:
THE ADMINISTRATIVE AGENT
BANK OF AMERICA, N.A.
By
------------------------------
Name:
Title:
5
34
THE LENDER PARTIES
BANK OF AMERICA, N.A., as a Lender,
the Swing Line Bank and the Issuing Bank
By /s/ Xxxxxxx X. Xxxx
------------------------------
Name: Xxxxxxx X. Xxxx
Title: Managing Director
AMSOUTH BANK
By /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
THE CHASE MANHATTAN BANK
By /s/ Xxxx Xxx Xxx
------------------------------
Name: Xxxx Xxx Xxx
Title: Vice President
CITIBANK, N.A.
By
------------------------------
Name:
Title:
CREDIT LYONNAIS NEW YORK BRANCH
By /s/ Xxxxx Xxxxxxx
------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
DEBT STRATEGIES FUND, INC.
By
------------------------------
Name:
Title:
6
35
THE FIRST NATIONAL BANK OF CHICAGO
By /s/ L. Xxxxxxx Xxxxxxxx
------------------------------
Name: L. Xxxxxxx Xxxxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By /s/ Xxxxx X. Xxxxx
------------------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President
FLOATING RATE PORTFOLIO
BY: INVESCO Senior Secured Management, Inc.,
as attorney in fact
By
------------------------------
Name:
Title:
KZH HIGHLAND-2 LLC
By
------------------------------
Name:
Title:
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
By
------------------------------
Name:
Title:
7
36
XXXXXXX XXXXX DEBT STRATEGIES
PORTFOLIO, INC.
BY: XXXXXXX XXXXX ASSET
MANAGEMENT L.P., as Investment Advisor
By
------------------------------
Name:
Title:
XXXXXXX XXXXX GLOBAL INVESTMENT
SERIES: INCOME STRATEGIES PORTFOLIO
BY: XXXXXXX XXXXX ASSET MANAGEMENT, L.P., as
Investment Advisor
By
------------------------------
Name:
Title:
XXXXXXX XXXXX SENIOR FLOATING
RATE FUND, INC.
By
------------------------------
Name:
Title:
XXXXXXX XXXXX PRIME RATE PORTFOLIO
BY: XXXXXXX XXXXX ASSET
MANAGEMENT, L.P., as Investment Advisor
By
------------------------------
Name:
Title:
ML CBO IV (CAYMAN) LTD.
BY: HIGHLAND CAPITAL MANAGEMENT L.P.,
as Collateral Manager
By
------------------------------
Name:
Title:
8
37
ML CLO XX PILGRIM AMERICA
(CAYMAN) LTD.
BY: PILGRIM INVESTMENTS, INC.,
as Investment Manager
By
------------------------------
Name:
Title:
XXXXXX GUARANTY TRUST COMPANY
OF NEW YORK
By /s/ Xxxx Xxxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxx Xxxxxx
Title: Vice President
XXX CAPITAL FUNDING, LP
BY: HIGHLAND CAPITAL MANAGEMENT, L.P.,
as Collateral Manager
By
------------------------------
Name:
Title:
PAMCO CAYMAN, LTD.
BY: HIGHLAND CAPITAL MANAGEMENT, L.P.,
as Collateral Manager
By
------------------------------
Name:
Title:
PILGRIM PRIME RATE TRUST
BY: PILGRIM INVESTMENTS, INC.,
as Investment Manager
By
------------------------------
Name:
Title:
9
38
SCOTIABANC INC.
By /s/ Xxxx Xxxxxxx
------------------------------
Name: Xxxx Xxxxxxx
Title: Relationship Manager
SRV-HIGHLAND, INC.
By
------------------------------
Name:
Title:
XXXXX XXX & XXXXXXX INCORPORATED,
as Agent for KEYPORT LIFE INSURANCE
COMPANY
By /s/ Xxxxx X. Xxxxxxx
------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
TORONTO DOMINION (TEXAS), INC.
By /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
TRANSAMERICA LIFE INSURANCE AND
ANNUITY CO.
By /s/ Xxxx X. Xxxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Investment Officer
TRANSAMERICA PREMIER HIGH YIELD FUND
By /s/ Xxxx X. Xxxxxxxxx
------------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Investment Officer
10
39
XXX XXXXXX PRIME RATE INCOME TRUST
By
------------------------------
Name:
Title:
XXX XXXXXX SENIOR INCOME TRUST
By
------------------------------
Name:
Title:
XXX XXXXXX CLO II, LIMITED
BY: XXX XXXXXX MANAGEMENT, INC.,
as Collateral Manager
By
------------------------------
Name:
Title:
WACHOVIA BANK, N.A.
By
------------------------------
Name:
Title:
11
