AMENDMENT XX. 0
XXXXXXXXX XX. 0 ("XXXXXXXXX XX. 0") dated as of July 31, 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. 5 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 identified certain Wholly Owned Subsidiaries that are
to be transferred (or the assets of which are to be transferred), merged,
amalgamated, or dissolved in one transaction or a series of transactions to or
into one or more existing or to be formed Wholly Owned Subsidiaries of Company
(collectively, the "Transaction"); 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 - AMENDMENTS. Section 6.8 of the Credit Agreement is hereby
amended by deleting the last period of Section 6.8A and replacing the deleted
period with the following proviso: "; provided however, to the extent this
Section 6.8 relates to the pledge of 65% of the capital stock of Centre
d'autorisation et de paiement des services de sante Inc. and 000000 Xxxxxxx
Ltd., such pledge of stock shall not be required, so long as Company, prior to
December 31, 2001 and pursuant to a plan duly approved by senior management of
the Company, either (i) transfers such Subsidiaries or their assets to, (ii)
merges, amalgamates or otherwise combines such Subsidiaries with, and/or (iii)
dissolves and/or liquidates such Subsidiaries into, one or more Wholly Owned
Subsidiaries of Company the shares of which are now pledged or shall be in
accordance with the terms hereof."
SECTION TWO- CONDITIONS TO EFFECTIVENESS. This Amendment No. 5 shall become
effective as of July 31, 2001 when, and only when Administrative Agent shall
have received counterparts of this Amendment No. 5 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. 5.
(a) The effectiveness of this Amendment No. 5 (other than Sections Five and
Seven hereof) is conditioned upon the accuracy of the representations and
warranties set forth in Section Three hereof.
SECTION THREE - REPRESENTATIONS AND WARRANTIES. In order to induce Lenders
and Agents to enter into this Amendment No. 5, Company represents and warrants
to each of Lenders and Agents that after giving effect to this Amendment No. 5,
(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. 5, 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 FOUR - REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE
NOTES. On and after the effectiveness of this Amendment No. 5, 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. 5. The Credit Agreement,
the Notes and each of the other Credit Documents, as specifically amended by
this Amendment No. 5, are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed.
SECTION FIVE- 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. 5 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. 5 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 SIX- EXECUTION IN COUNTERPARTS. This Amendment No. 5 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
2
executed counterpart of a signature page to this Amendment No. 5 by telecopier
shall be effective as delivery of a manually executed counterpart of this
Amendment No. 5.
SECTION SEVEN- GOVERNING LAW. This Amendment No. 5 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]
3
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment No. 5 to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
EXPRESS SCRIPTS, INC.
By: /s/ Xxxxxx Xxx
---------------------------------
Name: Xxxxxx Xxx
Title: Senior Vice President and
Chief Financial Officer
4
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.
EXPRESS SCRIPTS SPECIALTY DISTRIBUTION SERVICES, INC.
ESI CLAIMS, INC.
ESI-GP HOLDINGS, INC.
ESI PARTNERSHIP
EXPRESS ACCESS PHARMACY, INC.
By:/s/ Xxxxxx Xxx
----------------------------------
Name: Xxxxxx Xxx
Title: Vice President
ESI RESOURCES, INC.
By:/s/ Xxxxxxxx Xxxxx Xxxxx
----------------------------------
Name: Xxxxxxxx Xxxxx Xxxxx
Title: Vice President and Secretary
as one of the Requisite Lenders
(please type)
CREDIT SUISSE FIRST BOSTON
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
THE BANK OF NEW YORK
By: /s/ Xxxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxxx Xxxxxxx
Title: Vice President
THE FUJI BANK, LIMITED
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
& Group Head
BAYERISCHE HYPO-UND VEREINSBANK AG
NEW YORK BRANCH
By: /s/ Xxxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
By: /s/ Xxxxxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxxxxx Xxxxxxxxx
Title: Managing Director
ERSTE BANK
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
Title: Vice President
U.S. BANK N.A. (F/K/A MERCANTILE BANK)
By: /s/ Xxxxxxxxx X. Xxxxx III
----------------------------------
Name: Xxxxxxxxx X. Xxxxx III
Title: Vice President
BNP PARIBAS
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
Title: Director
By: /s/ Xxxxx Xxxxxxx
----------------------------------
Name: Xxxxx Xxxxxxx
Title: Director
BANKERS TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
MICHIGAN NATIONAL BANK
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: First Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Hegop Jazmadarian
----------------------------------
Name: Hegop Jazmadarian
Title: Vice President
BANK OF MONTREAL
By: /s/ Xxxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Managing Director
BANK LEUMI USA
By: /s/ Xxxxx Xxx Hong
----------------------------------
Name: Xxxxx Xxx Hong
Title: Vice President
FLEET BOSTON FINANCIAL
By: /s/ Xxxxxxxx Xxxxxx, Jr.
----------------------------------
Name: Xxxxxxxx Xxxxxx, Jr.
Title: Vice President
MELLON BANK, N.A.
By: /s/ Xxxxx X. Xxxxx
----------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
XXXXXX FINANCIAL, INC. By: Xxxxxx Financial Asset Management
LLC, Authorized Agent
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
BANK ONE, NA (CHICAGO)
By: /s/ Xxxxxxx Xxxxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Vice President
BANK OF AMERICA, N.A.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Principal
