AMENDMENT XX. 0
XXXXXXXXX XX. 0 ("Xxxxxxxxx Xx. 0") dated as of August 16, 1999 to the
Credit Agreement dated as of April 1, 1999 (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. 2 have the same meaning assigned to such
terms in the Credit Agreement).
W I T N E S S E T H :
WHEREAS, pursuant to Section 10.6 of the Credit Agreement, all of the
Lenders hereby agree to amend certain provisions of 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 - Amendment. Section 10.6A of the Credit Agreement shall be
amended by deleting the first sentence thereof and replacing it with the
following:
"No amendment, modification, termination or waiver of any provision of this
Agreement or of the Notes, and no consent to any departure by Company therefrom,
shall in any event be effective without the written concurrence of Requisite
Lenders; provided that any such amendment, modification, termination, waiver or
consent which: reduces the principal amount of any of the Loans; changes in any
manner the definition of "Pro Rata Share" or the definition of "Requisite
Lenders"; changes in any manner any provision of this Agreement which, by its
terms, expressly requires the approval or concurrence of all Lenders; postpones
the scheduled final maturity date of any of the Loans (but not the date of any
scheduled installment of principal); postpones the date on which any interest or
any fees are payable; decreases the interest rate borne by any of the Loans
(other than any waiver of any increase in the interest rate applicable to any of
the Loans pursuant to subsection 2.2E) or the amount of any fees payable
hereunder; increases the maximum duration of Interest Periods permitted
hereunder; reduces the amount or postpones the due date of any amount payable in
respect of any Letter of Credit; extends the required expiration date of any
Letter of Credit beyond the Revolving Commitment Termination Date; changes in
any manner the obligations of Lenders relating to the purchase of participations
in Letters of Credit; releases any Lien granted in favor of Administrative Agent
with respect to all or substantially all of the Collateral; releases any
Subsidiary Guarantor from its obligations under the Subsidiary Guaranty, in each
case other than in accordance with the terms of the Loan Documents (provided,
Express Online Inc. (Xxxx.Xxxxxxxx.xxx) shall be released from the Subsidiary
Guaranty executed by it on the Closing Date on such date as the Company shall
sell any or all of the capital stock of such Subsidiary Guarantor); or changes
in any manner the provisions contained in subsection 8.1 or this subsection 10.6
shall be effective only if evidenced by a writing signed by or on behalf of all
Lenders; provided, further, that no such amendment, modification, termination,
waiver or consent shall increase the Commitments of a Lender over the amount
hereof then in effect without the consent of such Lender; provided, further,
that if any matter described in the first proviso of this subsection 10.6A
relates only to (a) all Term Loans, the approval of all Term Lenders shall be
sufficient, (b) Tranche A Term Loans or Tranche B Term Loans, as the case may
be, the approval of all of the Lenders of the affected Term Loan shall be
sufficient; and (c) a Revolving Loan or Revolving Loan Commitment, the approval
of all Revolving Lenders shall be sufficient." SECTION TWO - Conditions to
Effectiveness. This Amendment No. 2 shall become effective as of the date first
above written when, and only when, the Administrative Agent shall have received
counterparts of this Amendment No. 2 executed by the Company, the Subsidiary
Guarantors and all of the Lenders or, as to any of the Lenders, advice
satisfactory to the Administrative Agent that such Lender has executed this
Amendment No. 2. The effectiveness of this Amendment No. 2 (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 the
Lenders and the Agents to enter into this Amendment No. 2, the Company
represents and warrants to each of the Lenders and the Agents that after giving
effect to this Amendment No. 2, (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. 2, 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. 2, 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. 2. The Credit Agreement,
the Notes and each of the other Credit Documents, as specifically amended by
this Amendment No. 2, 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. The Company agrees to pay all
reasonable costs and expenses of the Agents in connection with the preparation,
execution and delivery of this Amendment No. 2 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, the 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. 2
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. 2 may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment No. 2 by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment No. 2.
SECTION SEVEN - Governing Law. This Amendment No. 2 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.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
EXPRESS SCRIPTS, INC.
By: /s/ Xxxxxx Xxx
By: Xxxxxx Xxx
Title: Senior Vice President and
Chief Financial Officer
SUBSIDIARY GUARANTORS:
DIVERSIFIED PHARMACEUTICAL SERVICES, INC.
XXXXXXXXXXXX.XXX, INC.
ESI/VRX SALES DEVELOPMENT CO.
EXPRESS SCRIPTS VISION CORP.
HEALTH CARE SERVICES, INC.
IVTX, INC.
MANAGED PRESCRIPTION NETWORK, INC.
MHI, INC. VALUE HEALTH, INC.
VALUERX, INC.
VALUERX PHARMACY PROGRAM, INC.
By: /s/ Xxxxxx Xxx
Name: Xxxxxx Xxx
Title: Senior Vice President and Chief
Financial Officer
as one of the Requisite Lenders
(please type)
ABN Amro Bank, N.V.
By: /s/ Xxxxxx X. Comfort
Name: Xxxxxx X. Comfort
Title: Vice President
By: /s/ Xxxx X. Honda
Name: Xxxx X. Honda
Title: Vice President
Bankboston, N.A.
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Vice President
Bankers Trust Company
By: /s/ Xxxx Xx Xxxxx
Name: Xxxx Xx Xxxxx
Title: Assistant Vice President
Bank Leumi USA
By: /s/ Xxxxx Xxx Hong
Name: Xxxxx Xxx Hong
Title: Vice President
Bank of America, N.A. (formerly known as NationsBank, N.A.)
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
Bank of Hawaii
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
Bank of Monteal
By: /s/ Xxxxxxx X. XxXxxxxx
Name: Xxxxxxx X. XxXxxxxx
Title: Director
The Bank of New York
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
Banque Nationale de Paris
By: /s/ Xxxxxx Xxxxxx du Xxxxxx
Name: Xxxxxx Xxxxxx du Bocage
Title: Executive Vice President and General Manager
Chicago Branch
Bayerische Hypo-Und Vereinsbank AG, New York Branch
By: /s/ Xxxxx Xxxxx xxx Xxxxxxxxxx
Name: Xxxxx Xxxxx xxx Xxxxxxxxxx
Title: Managing Director
By: /s/ Xxxxxx Xxxxxx
Name: Xxxxxx Xxxxxx
Title: Associate Director
City National Bank
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Vice President
Credit Agricole Indosuez
By: /s/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Vice President, Manager
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Senior Relationship Manager
Credit Suisse First Boston
by: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Director
By: /s/ Xxxxxxx Xxxxx
Name: Xxxxxxx Xxxxx
Title: Associate
Erste Bank Der Oesterreichischen Sparkassen AG
By: /s/ Xxxx Xxxxxxxxxx
Name: Xxxx Xxxxxxxxxx
Title: Vice President
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Assistant Vice President
The First National Bank of Chicago
By: /s/ Xxxxxxxxxxx X. Xxxxxxxx
Name: Xxxxxxxxxxx x. Xxxxxxxx
Title: Vice President
Fleet National Bank
By: /s/ Xxxx X. Xxx
Name: Xxxx X. Xxx
Title: Assistant Vice President
The Fuji Bank, Limited
By: /s/ Xxxxx X. Xxxxxxxx
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President and Group Head
Xxxxxx Financial, Inc.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Vice President
Mellon Bank, N.A.
By: /s/ Xxxxx X. Xxxxx
Name: Xxxxx X. Xxxxx
Title: Vice President
Mercantile Bank N.A.
By: /s/ Xxxx Xxx Xxxxxxx
Name: Xxxx Xxx Xxxxxxx
Title: Vice President
Michigan National Bank
By: /s/ Xxxxx Xxxxxxxx
Name: Xxxxx Xxxxxxxx
Title: Commercial Relationship Manager
National City Bank
By: /s/ Xxxxxx X. Xxxxxxx
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Paribas
By: /s/ Xxxxxxx Xxxxxxxxx
Name: Xxxxxxx Xxxxxxxxx
Title: Director
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Director
Senior Debt Portfolio
By: Boston Management and Research as Investment Advisor
By: /s/ Payson X. Xxxxxxxxx
Name: Payson X. Xxxxxxxxx
Title: Vice President
Textron Financial Corporation
By: /s/ R. Xxxxxx Xxxxxx
Name: R. Xxxxxx Xxxxxx
Title: Vice President
UBS AG, Stamford Branch
By: /s/ Xxxxxxx Xxxx
Name: Xxxxxxx Xxxx
Title: Director
By: /s/ Xxxxxx X. Xxxxx III
Name: Xxxxxx X. Xxxxx III
Title: Executive Director
Union Bank of California
By: /s/ Xxxxxxxx Xxxx
Name: Xxxxxxxx Xxxx
Title: Vice President
