AMENDMENT NO. 1 AND CONSENT NO. 1 TO CREDIT AGREEMENT
AMENDMENT
NO. 1 AND CONSENT NO. 1
TO
This
Amendment No. 1 and Consent No. 1 to the Credit Agreement,
dated
as
of May 7, 2007 (this “Amendment
No. 1”),
is
entered into among Express Scripts, Inc.,
a
Delaware corporation (the “Company”),
the
Lenders signatory hereto (the “Term-1
Lenders”)
and
Credit Suisse, in its capacity as administrative agent for the Lenders (in
such
capacity, the “Administrative
Agent”)
and
amends the Credit Agreement dated as of October 14, 2005 (as amended to the
date hereof and as the same may be further amended, supplemented or otherwise
modified from time to time, the “Credit
Agreement”)
entered into among the Company, the institutions from time to time party thereto
as Lenders (the “Lenders”),
the
Administrative Agent, the Syndication Agent and the other agents and arrangers
named therein. Capitalized terms used herein and not otherwise defined herein
shall have the meanings ascribed to them in the Credit Agreement.
W
I T N E
S S E T H:
WHEREAS,
the Company desires to create new Term-1 Loans under the Credit Agreement
having, except as provided herein, identical terms with, having the same rights
and obligations under the Loan Documents as, the Term Loans, as set forth in
the
Credit Agreement and Loan Documents;
WHEREAS,
each Person who executes and delivers this Amendment No. 1 as a Term-1
Lender will make Term-1 Loans to the Company, the proceeds of which will be
used
by the Company to make open-market purchases of its common stock;
WHEREAS,
the
Company has requested that a Term-1 Loan facility in an aggregate amount of
$800,000,000 be made available to the Company, on the terms and conditions
set
forth in this Amendment No. 1; and
WHEREAS,
the
Company has requested that the Lenders amend the Credit Agreement to consent
to
new term loans under the Credit Agreement and to provide the consents to effect
the changes described below;
NOW,
THEREFORE,
in
consideration of the premises and for other good and valuable consideration
(the
receipt and sufficiency of which is hereby acknowledged), the parties hereto
hereby agree as follows:
Section
1. Amendments
Relating to the
Term-1 Commitments
The
Credit Agreement is, effective as of the date specified in Section 2(a) of
this
Amendment No. 1, amended as set forth below:
(a) Amendments
to Section 1.1 of the Credit Agreement.
Section 1.1
is
hereby amended as follows:
(i) The
definition of “Funding
Date”
shall
be amended and restated in its entirety to read as follows:
“Funding
Date”
means
the date of the funding of a Loan, including Term-1 Loans and Delayed Draw
Term-1 Loans.
(ii) The
definition of “Lenders”
shall
be amended and restated in its entirety to read as follows:
“Lender”
and
“Lenders”
means
(i) the persons identified as “Lenders” and listed on the signature pages
of this Agreement and (ii) effective as of the Amendment No. 1 Effective Date,
the Persons identified as “Lenders” and listed on the signature pages of
Amendment No. 1, together with their successors and permitted assigns pursuant
to subsection 10.1, and the term “Lenders” shall include Swing Line Lender
unless the context otherwise requires; provided
that the
term “Lenders”, when used in the context of a particular Commitment, shall mean
Lenders having that Commitment.
(iii) The
definition of “Term
Loans”
shall
be amended and restated in its entirety to read as follows:
“Term
Loans”
shall
mean the term loans, including the Term-1 Loans, made by Lenders to the Company
pursuant to subsection 2.1(A)(i).
(iv) The
definition of “Term
Loan Commitment”
shall
be amended and restated in its entirety to read as follows:
“Term
Loan Commitment”
shall
mean the commitment of a Lender to make (i) a Term Loan as set forth on
Schedule
2.1,
(ii) effective as of the Amendment No. 1 Effective Date, such Lender’s
Term-1 Commitment, and such Lender’s Delayed Draw Term-1 Commitment, in each
case as the same may be (a) reduced from time to time pursuant to
subsection 2.4 and (b) reduced or increased from time to time pursuant
to assignments by or to such Lender pursuant to
subsection 10.1.
(v) The
following new definitions shall be added to Section 1.1
in
alphabetical order:
“Amendment
No. 1”
means
that certain Amendment No. 1 and Consent No. 1 to this Agreement, dated as
of May 7, 2007, among the Company, the Administrative Agent, and the Requisite
Lenders.
“Amendment
No. 1 Effective Date”
means
the date that this Amendment No. 1 becomes effective.
“Amendment
No. 1 Lender Addendum”
means
the Lender Addendum in substantially the form attached to Amendment No. 1
as Exhibit
A.
“Delayed
Draw Term-1 Commitment”
means
as to any Lender, the obligation of such Lender, if any, to make a Delayed
Draw
Term-1 Loan to the Company following the Amendment No. 1 Effective Date, in
a
principal amount not to exceed the amount set forth opposite such Lender’s name
under the heading “Delayed Draw Term-1 Commitment” on Schedule 1 to the
Amendment No. 1 Lender Addendum delivered by such Lender, or, as the case
may be, in the Assignment Agreement pursuant to which such Lender became a
party
hereto, as the same may be changed from time to time pursuant to the terms
hereof. On the Amendment No. 1 Effective Date, the aggregate amount of the
Delayed Draw Term-1 Commitments is $600,000,000.
“Delayed Draw
Term-1 Commitment Percentage”
means
as to any Lender at any time, the percentage derived by dividing (x) the undrawn
amount of such Lender’s Delayed Draw Term-1 Commitment at such time by (y) the
undrawn amount of all Lenders’ Delayed Draw Term-1 Commitments at such
time.
“Delayed
Draw Term-1 Commitment Termination Date”
means
the date which is the earliest of (y) December 31, 2007 and (z) the
first date on which all undrawn Delayed Draw Term-1 Commitments have been
terminated or reduced to zero pursuant to the terms hereof.”
“Delayed
Draw Term-1 Loans”
shall
mean the term loans made by Lenders to Company pursuant to the second sentence
of subsection 2.1A(i)(b).
“Term-1
Commitment”
means
as to any Lender, the obligation of such Lender, if any, to make a Term-1 Loan
to the Company on the Amendment No. 1 Effective Date, in a principal amount
not
to exceed the amount set forth opposite such Lender’s name under the heading
“Term-1 Commitment” on Schedule 1 to the Amendment No. 1 Lender Addendum
delivered by such Lender, or, as the case may be, in the Assignment Agreement
pursuant to which such Lender became a party hereto, as the same may be changed
from time to time pursuant to the terms hereof. On the Amendment No. 1 Effective
Date, the aggregate amount of the Term-1 Commitments is
$200,000,000.
“Term-1
Commitment Percentage”
means
as to any Lender at any time, the percentage derived by dividing (x) the undrawn
amount of such Lender’s Term-1 Commitment at such time by (y) the undrawn amount
of all Lenders’ Term-1 Commitments at such time.
“Term-1
Lender”
shall
mean each Lender having a Term-1 Commitment.
“Term-1
Loans”
shall
mean the term loans made on the Amendment No. 1 Effective Date and Delayed
Draw
Term-1 Loans made after the Amendment No. 1 Effective Date by Lenders to the
Company pursuant to subsection 2.1(A)(i)(b). For the avoidance of doubt, the
Term Loans and the Term-1 Loans (including the Delayed Draw Term-1 Loans) are
of
the same Class, will vote together as a Class, and are identical for all
purposes, except for amortization and LIBOR periods.
“Term-1
Loan Exposure”
means,
with respect to any Lender as of any date of determination (i) prior to the
funding of the Term-1 Loans, that Lender’s Term-1 Loan Commitment and (ii) after
the funding of the Term-1 Loans, the outstanding principal amount of the Term-1
Loan of that Lender.
(b) Section
2.1A(i)
is
hereby amended by (i) inserting, “(a)” at the beginning of the paragraph and
(ii) inserting the following clause (b) immediately preceding the last sentence
of such Section 2.1A(i):
“(b) Subject
to the terms and conditions hereof, each Lender with a Term-1 Commitment agrees,
on the Amendment No. 1 Effective Date, to make Term-1 Loans to the Company
in
Dollars in an aggregate principal amount equal to the lesser of (x) such
Lender’s Term-1 Commitment Percentage of the Term-1 Loans being made on any such
date and (y) the undrawn amount of such Lender’s Term-1 Commitment on such date.
Subject to the terms and conditions hereof, each Lender with a Delayed Draw
Term-1 Commitment agrees, at any time following the Amendment No. 1 Effective
Date and on or prior to the Delayed Draw Term-1 Commitment Termination Date,
to
make Delayed Draw Term-1 Loans to the Company in Dollars in an aggregate
principal amount equal to the lesser of (x) such Lender’s Term-1 Commitment
Percentage of the Delayed Draw Term-1 Loans being made on any such date and
(y)
the undrawn amount of such Lender’s Delayed Draw Term-1 Commitment on such
date.”;
(c) Section
2.1B
is
hereby amended by inserting, at the end of the first sentence, the
following:
“provided
that,
any Term-1 Loan shall be in an aggregate minimum amount of $50,000,000 and
integral multiples of $5,000,000 in excess of that amount”;
(d) Section
2.1C
is
hereby amended by deleting the following words from the last sentence of the
first paragraph:
“at
the
Funding and Payment Office”;
(e) Section
2.2A(i)
is
hereby amended by adding the following clause to the end of such
Section:
“;
provided,
further,
that on
the Amendment No. 1 Effective Date for the Term-1 Loans, such Base Rate Margin
shall be calculated using the Consolidated Leverage Ratio as of March 31, 2007,
and for purposes of calculating such Consolidated Leverage Ratio, Consolidated
Total Debt shall be calculated giving effect to an assumed pro forma borrowing
of the lesser of (a) $650.0 million of Term-1 Loans or (b) the amount of
outstanding Term-1 Loans plus available Term-1 Commitments (such assumption
of a
pro forma borrowing to apply only to the calculation of the Consolidated
Leverage Ratio for Term-1 Loans made on the Amendment No. 1 Effective Date
and
for no other Loans and on no other date)”;
(f) Section
2.2A(ii)
is
hereby amended by (i) adding the following clause immediately after the words
“Investment Grade”:
“;
provided,
further,
that on
the Amendment No. 1 Effective Date for Term-1 Loans, such Eurodollar Rate Margin
shall be calculated using the Consolidated Leverage Ratio as of March 31, 2007,
and for purposes of calculating such Consolidated Leverage Ratio, Consolidated
Total Debt shall be calculated giving effect to an assumed pro forma borrowing
of the lesser of (a) $650.0 million of Term-1 Loans or (b) the amount of
outstanding Term-1 Loans plus available Term-1 Commitments (such assumption
of a
pro forma borrowing to apply only to the calculation of the Consolidated
Leverage Ratio for Term-1 Loans made on the Amendment No. 1 Effective Date
and
for no other Loans and on no other date)”;
and
(ii)
by adding the following words to the first sentence of the next to last
paragraph immediately after the first mention of the words “subsection
6.1(iii),:
“starting
with the Fiscal Quarter ended June 29, 2007,”;
(g) Section
2.2B(vii)
is
hereby amended by adding the following immediately after the word
“time”;
“for
Loans other than Term-1 Loans and Delayed Draw Term-1 Loans, and there shall
be
no more than 10 Interest Periods outstanding at any time for Term-1 Loans and
Delayed Draw Term-1 Loans”;
(h) Section 2.3A
is
hereby amended by adding (i) “(i)” at the beginning of the first sentence and
(ii) the following clause (ii) to the end of such Section:
“(ii) The
Company agrees to pay to the Administrative Agent for the account of each Lender
with a Delayed Draw Term-1 Commitment a commitment fee for the period from
and
including the Amendment No. 1 Effective Date to and excluding the Delayed Draw
Term-1 Commitment Termination Date equal to the average of the daily excess
of
the Delayed Draw Term-1 Commitments over the sum of the aggregate principal
amount of outstanding Delayed Draw Term-1 Loans multiplied
by the
percentage per annum determined by reference to the applicable percentage set
forth in the table below opposite the Consolidated Leverage Ratio for the
four-Fiscal Quarter period ending on the date for which the applicable
Compliance Certificate has been delivered pursuant to subsection 6.1(iii),
such
commitment fees to be calculated on the basis of a 360 day year and the actual
number of days elapsed and to be payable quarterly in arrears on the last
Business Day of March, June, September and December of each year, commencing
on
June 29, 2007, and on the Delayed Draw Term-1 Commitment Termination
Date:
CONSOLIDATED
LEVERAGE RATIO
|
COMMITMENT
FEE
APPLICABLE
PERCENTAGE
(PER
ANNUM)
|
|
Level
1
|
Greater
than or equal to 3.0x
|
0.250%
|
Level
2
|
Greater
than or equal to 2.5x but less than 3.0x
|
0.200%
|
Level
3
|
Greater
than or equal to 2.0x but less than 2.5x
|
0.150%
|
Level
4
|
Greater
than or equal to 1.5x but less than 2.0x
|
0.125%
|
Xxxxx
0
|
Less
than 1.5x
|
0.100%
|
provided
that
Xxxxx 0 of the grid above will apply if and so long as the Company is rated
Investment Grade; provided,
further,
that on
the Amendment No. 1 Effective Date for the Term-1 Loans, such commitment fee
shall be calculated using the Consolidated Leverage Ratio as of March 31, 2007,
and for purposes of calculating such Consolidated Leverage Ratio, Consolidated
Total Debt shall be calculated giving effect to an assumed pro forma borrowing
of the lesser of (a) $650.0 million of Term-1 Loans or (b) the amount of
outstanding Term-1 Loans plus available Term-1 Commitments (such assumption
of a
pro forma borrowing to apply only to the calculation of the Consolidated
Leverage Ratio for Term-1 Loans made on the Amendment No. 1 Effective Date
and
for no other Loans and on no other date). Upon delivery of the Compliance
Certificate by the Company to Administrative Agent pursuant to subsection
6.1(iii), starting with the Fiscal Quarter ended June 29, 2007, the applicable
commitment fee percentage shall automatically be adjusted in accordance with
such Compliance Certificate, such adjustment to become effective on the next
succeeding Business Day following receipt by Administrative Agent of such
Compliance Certificate; provided
that
if
at any time a Compliance Certificate is not delivered at the time required
pursuant to subsection 6.1(iii), from the time such Compliance Certificate
was
required to be delivered until delivery of such Compliance Certificate, such
applicable commitment fee percentage shall be the maximum percentage amount
until such Compliance Certificate is delivered.”;
(i) Section
2.3B
is
hereby amended by adding the following words after each appearance of the word
“Agent”:
“and
the
Joint Lead Arrangers”;
(j) Section
2.4A
is
hereby amended by adding (i) the words “, other than the Term-1 Loans,”
after the word “Loans” in the first sentence of such paragraph,
(ii) immediately following the table as follows:
“provided
that the
Company shall make principal payment of the Term-1 Loans in full on the Term
Loan Maturity Date”,
and
(iii) inserting the word “further”
after
the first “provided.”
(k) Section
2.4B(i)
is
hereby amended by (i) inserting “(a)” before the first sentence of such Section
and (ii) inserting the following clause (b) to the end of such
Section:
“(b) The
Company shall have the right, upon not less than three Business Days’ notice by
delivery of a notice of commitment reduction to the Administrative Agent, to
terminate the remaining undrawn Delayed Draw Term-1 Commitments or, from time
to
time, to reduce the amount of the undrawn Delayed Draw Term-1 Commitments.
Any
such reduction shall be in an amount equal to $10,000,000 or a whole multiple
of
$1,000,000 in excess thereof (or, if less, the entire aggregate amount of the
Delayed Draw Term-1 Commitments), and shall reduce permanently the Delayed
Draw
Term-1 Commitments then in effect.”;
(l) Section 2.5A
is
hereby amended by adding (i) “(a)” before the first sentence and
(ii) the following clause (b) to the end of such Section:
“(b) The
proceeds of the Term-1 Loans shall be used to effect open-market purchases
of
the Company’s common stock and to pay related fees and expenses.”;
(m) Section
2.6A
is
hereby amended by deleting the following words “10:00 A.M. (New York City time)”
and adding the following words in place of such words:
“11:00
A.M. (London time)”;
(n) Section
4.2
is
hereby amended by adding the following words immediately after the word “Loans”
in the first line of such section:
“,
and
for the avoidance of doubt, Term-1 Loans and Delayed Draw Term-1
Loans”;
(o) Section
5.9
is
hereby amended by deleting the following words immediately after the word
“is”:
“a
“holding company” under the Public Utility Holding Company Act of 1935
or”;
(p) Section
10.1B(i)
is
hereby amended by (i) deleting the dollar amount “$5,000,000” and replacing it
with the dollar amount as follows:
“$1,000,000”;
and
(ii)
deleting the clause “The parties to each such assignment shall
(i) electronically execute and deliver to the Administrative Agent an
Assignment and Acceptance via an electronic settlement system acceptable to
the
Administrative Agent (which initially shall be ClearPar, LLC) or
(ii) manually execute and deliver to the Administrative Agent an Assignment
and Acceptance, together with a processing and recordation fee of US$3,500
and”
and replacing them with the following clause:
“The
parties to each assignment shall execute and deliver to the Administrative
Agent
an Assignment Agreement via an electronic settlement system acceptable to the
Administrative Agent (or, if previously agreed with the Agent, manually), and
shall pay to the Administrative Agent a processing and recordation fee of $3,500
(which fee may be waived or reduced in the sole discretion of the Administrative
Agent) and”;
(q) Section
10.1B(ii)
is
amended by adding the following word immediately before the words “(a) accept
such Assignment”:
“promptly”;
Section
2. Conditions
Precedent to the Effectiveness of This Amendment
No. 1
(a) Section
1
of this Amendment No. 1 shall become effective, and the obligation of any Lender
to make Term-1 Loans shall become effective, as of the date when, and only
when,
each
of
the following conditions precedent shall have been (or are or will be
substantially concurrently therewith) satisfied or waived by the Administrative
Agent (the “Amendment
No. 1 Effective Date”):
(i) The
Administrative Agent shall have received this Amendment No. 1, duly executed
by
the Company, the Administrative Agent and the Requisite Lenders, and the
Administrative Agent shall have received (a) an Amendment No. 1 Lender Addendum
from each Term-1 Lender, and (b) the Consent and Reaffirmation executed by
the
Subsidiary Guarantors;
(ii) All
corporate and other proceedings, and all documents, instruments and other legal
matters in connection with the transactions contemplated by this Amendment
No.
1, shall be reasonably satisfactory in all respects to the Administrative
Agent;
(iii) After
giving effect to Amendment No. 1, all conditions precedent in
Sections 4.1A, F, G, H and J and 4.2A of the Credit Agreement shall be
satisfied, with the understanding that for this section 2.(a)(iii) of this
Amendment No.1, each reference to Closing Date in Sections 4.1A, F, G, H
and J and 4.2A of the Credit Agreement shall refer to the Amendment No. 1
Effective Date;
(iv) Since
December 31, 2006, no event or events, adverse condition or change in or
affecting the Company that, individually or in the aggregate, could reasonably
be expected to have a Material Adverse Effect shall have occurred;
(v) The
Company shall have paid all reasonable and documented out-of-pocket costs and
expenses of the Administrative Agent in connection with the preparation,
reproduction, execution and delivery of this Amendment No. 1 (including, without
limitation, the reasonable fees and out-of-pocket expenses of counsel for the
Administrative Agent with respect thereto);
(vi) The
Company shall have paid the Lenders’ participation fees as specified in the
Engagement Letter.
(vii) The
Administrative Agent shall have received, at least five Business Days in advance
of the Amendment No. 1 Effective Date, all documentation and other information
required by bank regulatory authorities under applicable “know-your-customer”
and anti-money laundering rules and regulations, including, without limitation,
the USA Patriot Act;
(viii) The
Administrative Agent shall have received legal opinions, in form and substance
reasonably satisfactory to the Administrative Agent, from (A) Xxxxxx X.
Xxxxxxxx, general counsel of the Company, (B) Skadden, Arps, Slate, Xxxxxxx and
Xxxx LLP, special New York counsel for Loan Parties, (C) Drinker Xxxxxx &
Xxxxx LLP, special New Jersey and Pennsylvania counsel for Loan Parties, (D)
Xxxxx & Xxxxxxxxx LLP, special Florida counsel for Loan Parties and (E)
Xxxxxx & Xxxxxxxxx LLP, special Indiana counsel for Loan Parties, each in
form and substance reasonably satisfactory to the Agents and their counsel,
dated as of the Amendment No. 1 Effective Date and setting forth substantially
the matters in the opinions designated in Exhibits
I-A,
I-B,
I-C,
I-D,
and
I-E
annexed
hereto and as to such other matters as Agents acting on behalf of Lenders may
reasonably request; and
Section
3. Representations
and Warranties
On
and as
of the Amendment No. 1 Effective Date and after giving effect to this Amendment
No. 1, each Loan Party hereby represents and warrants to the Administrative
Agent and each Lender as follows:
(a) this
Amendment No. 1 has been duly authorized, executed and delivered by the Loan
Parties and constitutes the legal, valid and binding obligations of each of
the
Loan Parties enforceable against each of the Loan Parties in accordance with
its
terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar laws relating to or
affecting creditors’ rights generally and (ii) general equitable principles
(whether considered in a proceeding in equity or at law) and (iii) an implied
covenant of good faith and fair dealing, and the Credit Agreement, as amended
by
this Amendment No. 1, constitutes the legal, valid and binding obligation of
the
Loan Parties enforceable against the Loan Parties in accordance with its terms,
subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors’ rights generally and (ii) general equitable principles (whether
considered in a proceeding in equity or at law) and (iii) an implied covenant
of
good faith and fair dealing;
(b) each
of
the representations and warranties contained in Section 5 of the Credit
Agreement and each other Loan Document is true, correct and complete in all
material respects on and as of the Amendment No. 1 Effective Date to the same
extent as though made on and as of such date (both before and after giving
effect to Amendment No. 1 and the transactions in connection herewith),
except that to the extent such representations and warranties specifically
relate to an earlier date, in which case such representations and warranties
shall have been true, correct and complete in all material respects on and
as of
such earlier date; provided,
however,
that
references therein to the “Credit Agreement” shall be deemed to refer to the
Credit Agreement as amended hereby and after giving effect to the consents
set
forth herein; and
(c) no
Default or Event of Default has occurred and is continuing or would result
from
the consummation of the borrowing contemplated by a Notice of Borrowing that
would constitute an Event of Default or Potential Event of Default.
Section
4. Fees
and Expenses
The
Company and each other Loan Party agree to pay on demand in accordance with
the
terms of Section 10.2 of the Credit Agreement all reasonable documented
out-of-pocket costs and expenses of the Administrative Agent in connection
with
the preparation, reproduction, execution and delivery of this Amendment No.
1
(including, without limitation, the reasonable fees and out-of-pocket expenses
of counsel for the Administrative Agent with respect thereto).
Section
5. Reference
to and Effect on the Loan Documents
(a) As
of the
Amendment No. 1 Effective Date, each reference in the Credit Agreement to “this
Agreement,” “hereunder,” “hereof,” “herein,” or words of like import, and each
reference in the other Loan Documents to the Credit Agreement (including,
without limitation, by means of words like “thereunder,” “thereof” and words of
like import), shall mean and be a reference to the Credit Agreement as amended
hereby, and this Amendment No. 1 and the Credit Agreement shall be read together
and construed as a single instrument. Each of the table of contents and lists
of
Exhibits and Schedules of the Credit Agreement shall be amended to reflect
the
changes made in this Amendment No. 1 as of the Amendment No. 1 Effective
Date.
(b) Except
as
expressly amended hereby or specifically waived above, all of the terms and
provisions of the Credit Agreement and all other Loan Documents are and shall
remain in full force and effect and are hereby ratified and
confirmed.
(c) The
execution, delivery and effectiveness of this Amendment No. 1 shall not, except
as expressly provided herein, operate as a waiver of any right, power or remedy
of the Lenders, the Company or the Administrative Agent under any of the Loan
Documents, nor constitute a waiver or amendment of any other provision of any
of
the Loan Documents or for any purpose except as expressly set forth
herein.
(d) This
Amendment No. 1 is a Loan Document.
Section
6. Execution
in Counterparts
This
Amendment No. 1 may be executed in any number of counterparts and by different
parties 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. Signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are attached to the same document. Delivery of an executed counterpart by
telecopy (or an attached .pdf to an e-mail) shall be effective as delivery
of a
manually executed counterpart of this Amendment No. 1.
Section
7. Governing
Law
This
Amendment No. 1 shall be governed by and construed in accordance with the law
of
the State of New York.
Section
8. Section
Titles
The
section titles contained in this Amendment No. 1 are and shall be without
substantive meaning or content of any kind whatsoever and are not a part of
the
agreement between the parties hereto, except when used to reference a section.
Any reference to the number of a clause, sub-clause or subsection of any Loan
Document immediately followed by a reference in parenthesis to the title of
the
section of such Loan Document containing such clause, sub-clause or subsection
is a reference to such clause, sub-clause or subsection and not to the entire
section; provided,
however,
that,
in case of direct conflict between the reference to the title and the reference
to the number of such section, the reference to the title shall govern absent
manifest error. If any reference to the number of a section (but not to any
clause, sub-clause or subsection thereof) of any Loan Document is followed
immediately by a reference in parenthesis to the title of a section of any
Loan
Document, the title reference shall govern in case of direct conflict absent
manifest error.
Section
9. Notices
All
communications and notices hereunder shall be given as provided in the Credit
Agreement.
Section
10. Severability
The
fact
that any term or provision of this Agreement is held invalid, illegal or
unenforceable as to any person in any situation in any jurisdiction shall not
affect the validity, enforceability or legality of the remaining terms or
provisions hereof or the validity, enforceability or legality of such offending
term or provision in any other situation or jurisdiction or as applied to any
other person.
Section
11. Amendment
No. 1 Lender Addendum
Each
Lender with a Term-1 Commitment on the Amendment No. 1 Effective Date shall
deliver to the Administrative Agent an Amendment No. 1 Lender Addendum duly
executed by such Lender, the Company and the Administrative Agent. Each Lender
with a Delayed Draw Term-1 Commitment on the Amendment No. 1 Effective Date
shall deliver to the Administrative Agent an Amendment No. 1 Lender Addendum
duly executed by such Lender, the Company and the Administrative
Agent.
Section
12. Successors
The
terms
of this Amendment No. 1 shall be binding upon, and shall inure to the benefit
of, the parties hereto and their respective successors and assigns.
Section
13. Waiver
of Jury Trial
EACH
OF
THE PARTIES HERETO IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR PROCEEDING
WITH RESPECT TO THIS AMENDMENT NO. 1 OR ANY OTHER LOAN DOCUMENT.
[SIGNATURE
PAGES FOLLOW]
In
Witness Whereof,
the
parties hereto have caused this Amendment No. 1 to be executed by their
respective officers thereunto duly authorized, as of the date first written
above.
EXPRESS SCRIPTS, INC. | ||||
By: | /s/ Xxxxxx X. Xxxxxxx | |||
Name: | Xxxxxx X. Xxxxxxx | |||
Title: |
Senior Vice President and Chief
Financial
Officer
|
CREDIT SUISSE, Cayman Islands Branch as Joint Lead Arranger and Administrative Agent | ||||
By: | /s/ Xxxxxx Xxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxx | |||
Title: | Director |
By: | /s/ Xxxxxxx Xxxxx | |||
Name: | Xxxxxxx Xxxxx | |||
Title: | Director |
CREDIT SUISSE, Cayman Islands Branch as Issuing Lender | ||||
By: | /s/ Xxxxxx Xxxxxxxx | |||
Name: | Xxxxxx Xxxxxxxx | |||
Title: | Director |
By: | /s/ Xxxxxxx Xxxxx | |||
Name: | Xxxxxxx Xxxxx | |||
Title: | Director |
CITIGROUP GLOBAL MARKETS INC., as Joint Lead Arranger and Syndication Agent | ||||
By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Managing Director |
CITICORP NORTH AMERICA, INC., as Lender | ||||
By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Managing Director |
The undersigned hereby consents to the amendments set forth in Section 1 of Amendment No. | |||
[LENDER NAME], as a Lender | |||
By: | |||
AMENDMENT
NO. 1 AND CONSENT NO. 1 TO CREDIT AGREEMENT ALSO EXECUTED BY THE FOLLOWING
LENDERS (SIGNATURE PAGES OMITTED FROM FILING):
Allied
Irish Banks PLC
Bank
of
America, N.A.
Bank
Hapoalim B.M.
Bank
Leumi USA
Bank
of
China, Los Angeles Branch
Bank
of
China, New York Branch
The
Bank
of New York
The
Bank
of Nova Scotia
Scotiabank
Inc.
Bank
of
Taiwan, Los Angeles
The
Bank
of Tokyo-Mitsubishi UFJ, Ltd., Chicago Branch
Bayerische
Landesbank, Cayman Islands Branch
BCI
Miami
Branch
Calyon
New York Branch
Cathay
United Bank
Chinatrust
Bank (USA)
Commerce
Bank, NA
Commerzbank
AG, New York and Grand Cayman Branches
Deutsche
Bank AG, New York Branch
E.
Sun
Commercial Bank, Ltd., Los Angeles Branch
Erste
Bank Der Oesterreichischen Sparkassen
Fortis
Capital Corp.
Fifth
Third Bank, A Michigan Banking Corporation
Xxx
Xxx
Commercial, Los Angeles Branch
JPMorgan
Chase Bank, N.A.
Landesbank
Baden-Wuerttemberg New York Branch and/or Cayman Islands Branch
Mizuho
Corporate Bank, Ltd.
National
City
The
Royal
Bank of Scotland PLC
Sumitomo
Mitsui Banking Corporation
Suntrust
Bank
Taiwan
Cooperative Bank, Los Angeles Branch
U.S.
Bank
National Association
Wachovia
Bank, N.A.