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. 1 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, the Requisite
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. (a) The definition of "Consolidated Net Income "in
the Credit Agreement shall be deleted in its entirety and replaced with the
following:
"Consolidated Net Income" means, for any period, the net income (or loss)
of Company and its Subsidiaries on a consolidated basis for such period taken as
a single accounting period determined in conformity with GAAP; provided that
there shall be excluded (i) the income (or loss) of any Person (other than a
Subsidiary of Company) in which any other Person (other than Company or any of
its Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Company or any of its
Subsidiaries by such Person during such period, (ii) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of Company or is merged
into or consolidated with Company or any of its Subsidiaries or that Person's
assets are acquired by Company or any of its Subsidiaries, (iii) the income of
any Subsidiary of Company to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary, (iv) any after-tax gains or losses attributable
to Asset Sales or returned surplus assets of any Pension Plan, (v) for any
period that includes Fiscal Quarters ending on or prior to March 31, 2000, up to
$8.0 million in cash charges directly relating to the consolidation of
facilities in connection with the Acquisition.
(b) The definition of "Consolidated Fixed Charge Coverage Ratio" in the
Credit Agreement shall be deleted in its entirety and replaced with the
following:
"Consolidated Fixed Charge Coverage Ratio" shall mean, for any period, the
ratio of (a) Consolidated EBITDA for such period to (b) the sum, without
duplication, of (i) Consolidated Interest Expense for such period, (ii) the
aggregate amount of cash taxes paid by Company and its Subsidiaries during such
period, (iii) mandatory payments (other than with respect to the Loans) and
scheduled principal payments during such period in respect of any Indebtedness
of Company and its Subsidiaries, (iv) cash dividends on capital stock declared
by Company or any of its Subsidiaries during such period (excluding dividends
payable to Company or any of its Wholly Owned Subsidiaries), (v) the principal
component of obligations with respect to Capital Leases paid during such period
and (vi) Consolidated Capital Expenditures during such period (the items
referred to in the foregoing clauses (i) through (vi) being collectively called
"Consolidated Fixed Charges").
(c) Section 2.2A of the Credit Agreement shall be amended by adding the
following proviso at the end of the penultimate paragraph thereof:
"; provided, further, that the adjustment of the applicable Base Rate
Margin and Eurodollar Rate Margin with respect to the delivery of the first
Compliance Certificate for the Fiscal Quarter ended June 30, 1999 shall
automatically be adjusted on the next succeeding Business Day following receipt
by Administrative Agent of a Compliance Certificate for such Fiscal Quarter
revised to reflect the effects of amendments approved by the Requisite Lenders."
SECTION TWO - Conditions to Effectiveness. This Amendment No. 1 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. 1
executed by the Company, the Subsidiary Guarantors and the Requisite Lenders or,
as to any of the Lenders, advice satisfactory to the Administrative Agent that
such Lender has executed this Amendment No. 1. The effectiveness of this
Amendment No. 1 (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. 1, the Company
represents and warrants to each of the Lenders and the Agents that after giving
effect to this Amendment No. 1, (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. 1, 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. 1, 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. 1. The Credit Agreement,
the Notes and each of the other Credit Documents, as specifically amended by
this Amendment No. 1, 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. 1 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. 1
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. 1 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. 1 by telecopier shall be effective as delivery of a manually
executed counterpart of this Amendment No. 1.
SECTION SEVEN - Governing Law. This Amendment No. 1 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. 1 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)
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/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
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
Senior Debt Portfolio
By: Boston Management and Research as Investment Advisor
By: /s/ Xxxxxxx Xxxxxxxx
Name: Xxxxxxx Xxxxxxxx
Title: Vice President
Textron Financial Corporation
By: /s/ R. Xxxxxx Xxxxxx
Name: R. Xxxxxx Xxxxxx
Title: Vice President
UBS AG, Stamford Branch
By: /s/ Xxxxx Xxxxxxx
Name: Xxxxx Xxxxxxx
Title: Director
By: /s/ Xxxxxxx Saint
Name: Xxxxxxx Saint
Title: Associate Director
Union Bank of California
By: /s/ Xxxxxxxx Xxxx
Name: Xxxxxxxx Xxxx
Title: Vice President
