SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 10-Q
X QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 For the quarterly period ended September 30, 1996
TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934 For the transition period from ____________ to
-------------.
Commission File Number: 0-20199
EXPRESS SCRIPTS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 43-1420563
(State of Incorporation) (I.R.S. employer identification no.)
14000 RIVERPORT DR., MARYLAND HEIGHTS, MISSOURI 63043
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (314) 770-1666
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes X No ___
Common stock outstanding as of October 31, 1996: 7,510,000 Shares Class B
8,957,030 Shares Class A
1
<PAGE>
EXPRESS SCRIPTS, INC.
INDEX
PAGE NUMBER
Part I Financial Information 3
Item 1 Financial Statements
a) Consolidated Balance Sheet 3
b) Consolidated Statement of Operations 4
c) Consolidated Statement of Changes in
Stockholders' Equity 5
d) Consolidated Statement of Cash Flows 6
e) Notes to Consolidated Financial Statements 7
Item 2 Management's Discussion and Analysis of Financial
Condition and Results of Operations 9
Part II Other Information
Item 1. Legal Proceedings - (Not Applicable)
Item 2. Changes in Securities - (Not Applicable)
Item 3. Defaults Upon Senior Securities -
(Not Applicable)
Item 4. Submission of Matters to a Vote of
Security Holders (Not Applicable)
Item 5. Other Materially Important Events -
(Not Applicable)
Item 6. Exhibits and Reports on Form 8-K 16
Signatures 17
Index to Exhibits 18
2
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PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
EXPRESS SCRIPTS, INC.
Consolidated Balance Sheet
(Unaudited)
<TABLE>
<CAPTION>
September 30 December 31
1996 1995
-------- --------
(IN THOUSANDS, EXCEPT SHARE DATA)
<S> <C> <C>
Assets
Current assets:
Cash and cash equivalents ............................................................... $ 7,601 $ 11,506
Short term investments .................................................................. 53,831 --
Receivables, less allowance for doubtful
accounts of $1,853 and $2,274 respectively
Unrelated Parties ................................................................. 138,963 108,525
Related Parties ................................................................... 19,403 8,447
Inventories ............................................................................. 21,951 13,853
Deferred taxes and prepaid expenses ..................................................... 2,102 2,084
-------- --------
Total current assets ................................................................. 243,851 144,415
Property and equipment, less accumulated depreciation and amortization ..................... 20,817 16,912
Other assets ............................................................................... 13,894 2,761
-------- --------
Total assets ......................................................................... $278,562 $164,088
======== ========
Liabilities and Stockholders' Equity Current liabilities:
Claims payable .......................................................................... $ 83,558 $ 60,915
Accounts payable ........................................................................ 12,714 12,963
Accrued expenses ........................................................................ 18,962 11,884
-------- --------
Total current liabilities ............................................................ 115,234 85,762
-------- --------
Deferred rents and taxes ................................................................ 1,459 947
-------- --------
Stockholders' equity:
Preferred stock, $.01 par value, 5,000,000 shares authorized, and
no shares issued and outstanding
Class A Common Stock, $.01 par value, 30,000,000 shares authorized,
8,957,000 and 4,539,000 shares issued and outstanding, respectively .................. 90 45
Class B Common Stock, $.01 par value, 22,000,000 shares authorized,
7,510,000 and 10,500,000 shares issued and outstanding, respectively ................. 75 105
Additional paid-in capital ............................................................... 98,632 33,158
Foreign currency translation adjustments ................................................. 4 --
Retained earnings ....................................................................... 63,068 44,071
-------- --------
Total stockholders' equity ........................................................... 161,869 77,379
======== ========
Total liabilities and stockholders' equity ........................................... $278,562 $164,088
======== ========
</TABLE>
See accompanying notes to consolidated financial statements
3
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EXPRESS SCRIPTS, INC.
Consolidated Statement of Operations
(Unaudited)
<TABLE>
<CAPTION>
Three Months Ended Nine Months Ended
September 30 September 30
----------------------------------------------------------------------------
1996 1995 1996 1995
-------------- ------------- -------------- ------------------
(IN THOUSANDS, EXCEPT PER SHARE DATA)
<S> <C> <C> <C> <C>
Net revenues $194,324 $138,518 $547,437 $391,702
-------------- ------------- -------------- ------------------
Cost and expenses:
Cost of revenues 172,316 121,955 484,098 342,715
Selling, general & administrative 11,668 9,199 34,310 27,568
-------------- ------------- -------------- -----------------
183,984 131,154 518,408 370,283
-------------- ------------- -------------- -----------------
Operating income 10,340 7,364 29,029 21,419
-------------- ------------- -------------- ------------------
Other income (expense):
Interest income 1,117 230 2,256 595
Interest expense (13) (6) (38) (75)
-------------- ------------- -------------- ------------------
1,104 224 2,218 520
-------------- ------------- -------------- ------------------
Income before income taxes 11,444 7,588 31,247 21,939
Provision for income taxes 4,430 2,756 12,250 8,316
-------------- ------------- -------------- ------------------
Net income $7,014 $4,832 $18,997 $13,623
============== ============= ============== ==================
Primary earnings per share $0.42 $0.31 $1.17 $0.89
============== ============= ============== ==================
Weighted average number of common
shares outstanding during the period 16,739 15,291 16,263 15,254
============== ============= ============== ==================
</TABLE>
See accompanying notes to consolidated financial statements.
4
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EXPRESS SCRIPTS, INC.
Consolidated Statement of Changes in Stockholders' Equity
(Unaudited)
<TABLE>
<CAPTION>
Numbers of Shares Amount
----------------------- ---------------------------------------------------------------------------
Foreign
Class A Class B Class A Class B Additional currency
Common Common Common Common paid-in translation Retained
Stock Stock Stock Stock capital adjustments Earnings
----------- --------- ---------- ---------- ------------ ----------- ------------
(IN THOUSANDS)
<S> <C> <C> <C> <C> <C> <C> <C>
Balance at December 4,539 10,500 $45 $105 $33,158 $0 $44,071
31, 1995
Net income for nine ---- ---- ---- ---- ---- ---- 18,997
months ended
September 30, 1996
Foreign currency ---- ---- ---- ---- ---- 4 ----
translation
adjustments
Tax benefit relating ---- ---- ---- ---- 510 ---- ----
to employee stock
options
Exercise of stock 51 ---- 1 ---- 1,136 ---- ----
options
Conversion from 2,990 (2,990) 30 (30) ---- ---- ----
Class B
to Class A
Stock offering 1,150 ---- 12 ---- 52,580 ---- ----
Issuance of common 227 ---- 2 ---- 11,248 ---- ----
stock to Premier
----------- --------- ---------- ---------- ------------ ----------- ------------
Balance at September 8,957 7,510 $90 $75 $98,632 $4 $63,068
30, 1996
=========== ========= ========== ========== ============ =========== ============
</TABLE>
See accompanying notes to consolidated financial statements.
5
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EXPRESS SCRIPTS, INC.
Consolidated Statement of Cash Flows
(Unaudited)
<TABLE>
<CAPTION>
Nine Months Ended
September 30
--------
1996 1995
-------- --------
(IN THOUSANDS)
<S> <C> <C>
Cash flows from operating activities:
Net income ............................................................................................. $ 18,997 $ 13,623
Adjustments to reconcile net income to net cash provided by (used in)
operating activities:
Depreciation and amortization .................................................................... 4,744 3,148
Tax benefit relating to employee stock options ................................................... 510 3,083
Changes in operating assets and liabilities:
Receivables ...................................................................................... (41,394) (30,761)
Inventories ...................................................................................... (8,098) (5,800)
Prepaids expenses and other assets ............................................................... (706) 234
Claims payable ................................................................................... 22,643 22,371
Accounts payable and accrued expenses ............................................................ 7,341 (2,538)
-------- --------
Net cash provided by operating activities ................................................................. 4,037 3,360
-------- --------
Cash flows from investing activities:
Short term investments ................................................................................. (53,831) --
Purchases of property and equipment .................................................................... (7,844) (6,169)
-------- --------
Net cash used in investing activities ..................................................................... (61,675) (6,169)
-------- --------
Cash flows from financing activities:
Proceeds from stock offerings .......................................................................... 52,592 --
Exercise of stock options .............................................................................. 1,137 1,762
-------- --------
Net cash provided by financing activities ................................................................. 53,729 1,762
-------- --------
Effect of foreign currency translation adjustments ........................................................ 4 --
-------- --------
Net decrease in cash and cash equivalents ................................................................. (3,905) (1,047)
Cash and cash equivalents at beginning of period .......................................................... 11,506 5,742
-------- --------
Cash and cash equivalents at end of period ................................................................ $ 7,601 $ 4,695
======== ========
</TABLE>
See accompanying notes to consolidated financial statements.
6
<PAGE>
EXPRESS SCRIPTS, INC.
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS (UNAUDITED)
NOTE 1 - SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
Financial statement note disclosures, normally included in financial
statements prepared in conformity with generally accepted accounting principles,
have been omitted in this Form 10-Q pursuant to the Rules and Regulations of the
Securities and Exchange Commission. However, in the opinion of the Company, the
disclosures contained in this Form 10-Q are adequate to make the information
presented not misleading when read in conjunction with the notes to consolidated
financial statements as incorporated by reference in the Company's Annual Report
on Form 10-K for the year ended December 31, 1995, dated March 18, 1996, as
filed with the Securities and Exchange Commission.
In the opinion of the Company, the accompanying unaudited consolidated
financial statements reflect all adjustments (consisting of only normal
recurring adjustments) necessary to present fairly the Consolidated Balance
Sheet at September 30, 1996, the Consolidated Statement of Operations for the
three months ended September 30, 1996, and 1995, and for the nine months ended
September 30, 1996, and 1995, the Consolidated Statement of Changes in
Stockholders' Equity for the nine months ended September 30, 1996, and the
Consolidated Statement of Cash Flows for the nine months ended September 30,
1996, and 1995.
NOTE 2 - PRIMARY EARNINGS PER SHARE
Primary earnings per share are computed by dividing net income by the
weighted average number of shares of common stock outstanding and common stock
equivalents. Common stock equivalents include shares issuable upon the assumed
exercise of all stock options having an exercise price less than the average
market price of the common stock using the treasury stock method.
NOTE 3 - STOCK OFFERING
In April 1996, the Company completed the issuance of 1,150,000 shares of
Class A Common Stock and received net proceeds of $52,592,000 after deducting
expenses incurred in connection with the stock offering. The funds will be used
for general corporate purposes.
As a part of the stock offering, NYLIFE HealthCare Management, Inc.
converted 2,990,000 shares of Class B Common Stock to Class A Common Stock and
sold those shares in same stock offering. The Company did not receive any
proceeds from the sale of these shares.
NOTE 4 - CONTRACTUAL AGREEMENTS
Effective April 24, 1996 the Company issued 227,273 shares of Class A
Common Stock to a group purchasing organization affiliated with Premier, Inc.,
an alliance of integrated health care systems, in accordance with an agreement
dated December 31, 1995. These shares were valued at the fair market value at
April 24 of $11,250,000 and will be amortized over the remaining life of the
agreement. The shares are unregistered and cannot be traded until they have been
registered under the Securities Act of 1933 and any applicable state securities
laws, or unless an exemption from such registration is available.
NOTE 5 - REPURCHASE PROGRAM
On October 25, 1996, the Company announced that its Board of Directors had
approved an open-market stock repurchase program authorizing the Company to
repurchase up to 850,000 shares of its Class A Common Stock. No limit was placed
on the duration of the program.
7
<PAGE>
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
INFORMATION INCLUDED IN THIS QUARTERLY REPORT ON FORM 10-Q, AND INFORMATION
THAT MAY BE CONTAINED IN OTHER FILINGS BY THE COMPANY WITH THE SECURITIES AND
EXCHANGE COMMISSION (THE "COMMISSION") AND RELEASES ISSUED OR STATEMENTS MADE BY
THE COMPANY, CONTAIN OR MAY CONTAIN FORWARD-LOOKING STATEMENTS, INCLUDING BUT
NOT LIMITED TO STATEMENTS OF THE COMPANY'S PLANS, OBJECTIVES, EXPECTATIONS OR
INTENTIONS, THAT INVOLVE RISKS AND UNCERTAINTIES. THE COMPANY'S ACTUAL RESULTS
MAY DIFFER SIGNIFICANTLY FROM THOSE PROJECTED OR SUGGESTED IN THE
FORWARD-LOOKING STATEMENTS. FACTORS THAT MIGHT CAUSE SUCH A DIFFERENCE TO OCCUR
INCLUDE, BUT ARE NOT LIMITED TO, HEIGHTENED COMPETITION, INCLUDING INCREASED
PRICE COMPETITION IN THE PHARMACY BENEFIT MANAGEMENT MARKET; THE POSSIBLE
TERMINATION OF THE COMPANY'S CONTRACTS WITH CERTAIN KEY CLIENTS; CHANGES IN
PRICING, DISCOUNT OR REBATE PRACTICES OF PHARMACEUTICAL MANUFACTURERS; ADVERSE
RESULTS IN CERTAIN LITIGATION AND REGULATORY MATTERS; AND THE ADOPTION OF
ADVERSE LEGISLATION OR REGULATIONS OR A CHANGE IN THE INTERPRETATION OF EXISTING
LEGISLATION OR REGULATIONS, AS WELL AS OTHER RISKS DESCRIBED FROM TIME TO TIME
IN THE COMPANY'S FILINGS WITH THE COMMISSION. IN CONNECTION WITH ANY
FORWARD-LOOKING STATEMENT RELATING TO FUTURE MEMBERSHIP LEVELS, FACTORS THAT
COULD AFFECT ACTUAL RESULTS INCLUDE THE ABILITY OF THE COMPANY TO CONSUMMATE
CONTRACT NEGOTIATIONS WITH PROSPECTIVE CLIENTS; COMPETITION IN THE BIDDING AND
PROPOSAL PROCESS; AND RELATED MATTERS.
COMPANY OVERVIEW
The Company's pharmacy benefit management operation derives its revenues
from the sale of network pharmacy services through its nationwide networks of
retail pharmacies and from the sale of pharmaceuticals by its mail pharmacies
and its infusion therapy pharmacies to members of health benefit plans sponsored
by the Company's clients. Net revenue of the Company includes the ingredient
cost of pharmaceuticals dispensed by the mail pharmacies and pharmacies in the
networks, except where the Company's mail service pharmacies dispense
pharmaceuticals supplied by the Company's clients, or where the Company merely
administers contracts for the client's pharmacy network. In the case of these
exceptions, the Company records only dispensing and administrative fees as net
revenue. The Company's vision care program derives its revenues from
administrative fees and from the sale of eyeglasses and contact lenses to
members. The Company also derives revenue from nursing services in connection
with its infusion therapy business and from medical information management
services, including disease management support services and provider profiling
services.
RESULTS OF OPERATIONS
The following table sets forth certain financial data of the Company for
the periods presented as a percentage of net revenue and the percentage change
in the dollar amounts of such financial data for the three months ended
September 30, 1996 compared to 1995, and the nine months ended September 30,
1996 compared to 1995.
8
<PAGE>
<TABLE>
<CAPTION>
PERCENTAGE OF NET REVENUES PERCENTAGE INCREASE
Three Months Ended Nine Months Ended Three Months Nine Months
September 30 September 30 September 30, September 30,
1996 1996
1996 1995 1996 1995 Over 1995 Over 1995
------------- ------------ ------------- ------------ ------------- -------------
<S> <C> <C> <C> <C> <C> <C>
Net revenues:
Unrelated clients 79.6% 80.8% 79.9% 79.9% 38.3% 39.8%
Related clients* 20.4% 19.2% 20.1% 20.1% 48.7% 39.7%
------------ ------------- ------------
=============
Total net revenues 100.0% 100.0% 100.0% 100.0% 40.3% 39.8%
============= ============ ============= ============
Costs and expenses:
Cost of revenues 88.7% 88.1% 88.4% 87.5% 41.3% 41.3%
Selling, general & administrative 6.0% 6.6% 6.3% 7.0% 26.8% 24.5%
------------- ------------ ------------- -------------
94.7% 94.7% 94.7% 94.5% 40.3% 40.0%
------------- ------------ ------------- -------------
Operating income 5.3% 5.3% 5.3% 5.5% 40.4% 35.5%
Other income, net 0.6% 0.2% 0.4% 0.1% 392.9% 326.5%
Income before taxes 5.9% 5.5% 5.7% 5.6% 50.8% 42.4%
Provision for income taxes 2.3% 2.0% 2.2% 2.1% 60.7% 47.3%
------------- ------------ ------------- -------------
Net income 3.6% 3.5% 3.5% 3.5% 45.2% 39.4%
============= ============ ============= =============
</TABLE>
* Related clients consist of NYLCare Health Plans, Inc. ("NYLCare") and
New York Life Insurance Company.
9
<PAGE>
THIRD QUARTER ENDED SEPTEMBER 30, 1996, COMPARED TO 1995
NET REVENUES. Net revenues for the third quarter of 1996 increased
$55,806,000, or 40.3%, compared to the third quarter of 1995. Net revenues from
the Company's claims processing services and mail pharmacy services increased
40.2% in 1996, compared to 1995. The primary reason for this increase was a
$37,478,000, or 40.7%, increase in revenues from pharmacy claims processed,
reflecting a 31.1% increase in the number of claims processed and a 7.4%
increase in average revenue per claim compared to 1995. Revenue from the
Company's mail pharmacy services increased $15,864,000, or 39.1%, reflecting a
28.9% increase in the number of prescriptions dispensed and a 7.9% increase in
the average revenue per prescription dispensed. The increase in average revenue
per claim and per prescription dispensed is primarily due to increases in the
ingredient costs of drugs for customers utilizing the Company's pharmacy
networks and mail pharmacy services, partially offset by lower pricing offered
by the Company in response to continued competitive pressures.
The increase in the number of claims processed and the number of mail
service pharmacy prescriptions dispensed reflects a 17.5% increase in the
average number of members served, from approximately 8.0 million members served
during the third quarter of 1995 to an average of 9.4 million members served
during the third quarter of 1996. In computing current membership totals, the
Company has omitted members of non-funded plans (in which the member pays 100%
of the discounted drug price) due to generally lower levels of utilization in
such plans. The Company believes that this provides a better correlation between
membership, utilization and revenue. Of the 8.0 million members served during
the third quarter of 1995, approximately 500,000 were members of certain
non-funded plans. Membership in funded plans administered by the Company
increased 25% over the comparable quarter of 1995. The percentage increase in
claims processing revenue continues to exceed the percentage increase in mail
service revenue, as the price difference between mail pharmacy prescriptions and
network pharmacy prescriptions decreases. Net revenues from the Company's vision
and infusion therapy services increased 36.4%, compared to 1995, primarily as a
result of the growth in the number of members who receive these services.
COST OF REVENUES. Cost of revenues for the third quarter of 1996 increased
$50,361,000, or 41.3%, compared to the third quarter of 1995. The percentage
increase in cost of revenues was 1.0 percentage point greater than the increase
in revenues, thus gross profit margins decreased. The main reason for the
percentage increase in the cost of revenues was the lower gross margins in both
claims processing services and mail pharmacy services as a result of competitive
pressures. The increase in the cost of revenues for mail order and claims
processing were both partially offset by economies of scale in direct processing
costs and by an increase as a percentage of net revenues in the fees received
from drug manufacturers in connection with the Company's drug purchasing and
formulary management programs. The cost of revenues for vision and infusion
therapy services increased 40.6%, principally due to the cost of providing
services to new members.
SELLING, GENERAL AND ADMINISTRATIVE. Selling, general and administrative
expenses increased $2,469,000, or 26.8%, for the third quarter of 1996, compared
to 1995. The primary reasons for the increase were the additional expenditures
incurred to administer the increased volume of business, both in the U.S. and
Canada, and additional expenditures to market the Company's products and
services, as well as increases in expenses for additional technology development
and clinical programs (including Practice Patterns Science, "PPS") to enhance
management of the pharmacy benefit. The Company is continuing its commitment to
expand its capability to provide for future growth and enhance the level of
service for its members. However, in spite of the increase, selling, general and
administrative expenses, as a percentage of net revenues, decreased from 6.6% in
the third quarter of 1995 to 6.0% in the comparable quarter of 1996 reflecting
overall economies of scale in this area as a result of continued growth in the
Company's operations and an effort on the part of management to control
expenses.
OTHER INCOME, NET. Other income, net was $1,104,000 for the third quarter
of 1996 compared to $224,000 for 1995, partially as a result of higher interest
rates but primarily due to higher invested cash balances in 1996 which resulted
principally from the proceeds of the stock offering completed in April 1996.
PROVISION FOR INCOME TAXES. The provision for income taxes for the quarter
ended September 30, 1996, was $4,430,000, compared to $2,756,000 in the prior
year. The effective tax rate was 38.7% in 1996 compared to 36.3% for 1995.
NET INCOME. As a result of the foregoing, net income for the third quarter
ended September 30, 1996, increased $2,182,000, or 45.2%, compared to 1995.
NINE MONTHS ENDED SEPTEMBER 30, 1996, COMPARED TO 1995
NET REVENUES. Net revenues increased $155,735,000, or 39.8%, for the nine
months ended September 30, 1996 compared to the prior period. Net revenues from
the Company's claims processing services and mail pharmacy services increased
39.2% in 1996, compared to 1995. The primary reason for this increase was a
$104,774,000, or 40.7%, increase in revenues from pharmacy claims processed,
reflecting a 35.6% increase in the number of claims processed and a 3.8%
increase in average revenue per claim compared to 1995. Revenue from the
Company's mail pharmacy services increased $42,838,000, or 36.1%, reflecting a
28.3% increase in the number of prescriptions dispensed, and a 6.1% increase in
the average revenue per prescription dispensed. The increase in average revenue
per claim and per prescription dispensed is primarily due to increases in drug
costs for customers utilizing the Company's pharmacy networks and mail pharmacy
services, partially offset by lower pricing in response to continued competitive
pressures. Net revenues from the Company's vision and infusion therapy services
increased 44.8%, compared to 1995, primarily as a result of the growth in the
number of members who receive those services.
COST OF REVENUES. For the nine months ended September 30, 1996, the cost of
revenues increased $141,383,000, or 41.3%, compared to the prior period. The
percentage increase in cost of revenues was 1.5 percentage points greater than
the increase in net revenues, thus gross profit percentage decreased. As with
the third quarter of 1996, the main reason for the percentage increase in the
year to date cost of revenues was the lower mail pharmacy gross margins as a
result of competitive pressures. For claims processing services, the cost of
revenue as a percentage of net revenues increased slightly. The increase in cost
of revenues for mail pharmacy and claims processing were both partially offset
by economies of scale in direct processing costs and by an increase in the fees
received from drug manufacturers as a percentage of net revenues in connection
with the Company's drug purchasing and formulary management programs. The cost
of revenues for vision and infusion therapy services increased 50.9%,
principally due to costs related to the continued expansion of vision and
infusion therapy service operations.
SELLING, GENERAL AND ADMINISTRATIVE. Selling, general and administrative
expenses increased $6,742,000, or 24.5%, for the first nine months of 1996
compared to 1995. The primary reasons for the increase were the additional
expenditures incurred to administer the increased volume of business, both in
the U.S. and Canada, and additional expenditures to market the Company's
products and services, as well as increases in expenses for information systems
and additional clinical programs, including PPS, to enhance management of the
pharmacy benefit. The Company is continuing its commitment to expand its
capability to provide for future growth and enhance the level of service for its
members. However, in spite of these increases, selling, general and
administrative expenses, as a percentage of net revenues, decreased from 7.0% in
the first nine months of 1995 to 6.3% in the comparable period of 1996
reflecting overall economies of scale in this area as a result of continued
growth in the Company's operations and an effort on the part of management to
control expenses.
OTHER INCOME, NET. Other income, net was $2,218,000 for the first nine
months of 1996 compared to $520,000 for 1995, partially as a result of higher
interest rates but primarily due to higher invested cash balances in 1996,
principally from the proceeds of the stock offering completed in April 1996. In
addition, the Company had no borrowings in the first nine months of 1996, and
consequently, there was no interest expense related to any borrowings in 1996,
in contrast to the first nine months of 1995.
PROVISION FOR INCOME TAXES. The provision for income taxes for the nine
months ended September 30, 1996, was $12,250,000 compared to $8,316,000 in the
prior year. The effective tax rate was 39.2% in 1996 compared to 37.9% for 1995.
NET INCOME. As a result of the foregoing, net income for the nine months
ended September 30, 1996, increased $5,374,000, or 39.4%, compared to 1995.
LIQUIDITY AND CAPITAL RESOURCES. The Company added approximately 1.3
million lives during the first nine months of 1996, reaching a total of 9.5
million members utilizing the Company's services at September 30, 1996. As in
the past, the growth in new members served during the first nine months resulted
in a significant growth in receivables. In the first nine months of 1996,
receivables increased $41,394,000. This increase was primarily financed by an
increase in current liabilities of $29,472,000. Management expects to continue
to fund a substantial portion of its future anticipated capital expenditures and
net increases in non-cash working capital with operating cash flow, and will
also have available bank loans and the proceeds from the sale of shares of the
Company's Class A Common Stock by the Company in a public offering during the
second quarter of 1996.
The Company maintains a $25 million line of credit with the Mercantile Bank
of St. Louis, N.A. ("Mercantile") which the Company has extended to May 29,
1997. The Company also has a $25 million one-year line of credit with The First
National Bank of Chicago expiring October 30, 1997, with substantially the same
terms and conditions as the existing line with Mercantile. At September 30,
1996, there were no borrowings outstanding on either of these lines of credit.
The Company has reviewed and currently intends to continue to review
potential acquisitions and affiliation opportunities. The Company believes that
available cash resources, including the proceeds of the offering of the
Company's common stock referred to below, bank financings and the issuance of
additional common stock would be used to finance such acquisitions or
affiliations. There can be no assurance the Company will make an acquisition or
affiliation in 1996.
OTHER MATTERS. In April 1996, the Company issued 1,150,000 shares of Class
A Common Stock and received net proceeds of $52,592,000 after deducting expenses
of the stock offering. The funds will be used for general corporate purposes. As
part of the stock offering, NYLIFE HealthCare Management, Inc. converted
2,990,000 shares of Class B Common Stock to Class A Common Stock and sold those
shares. The Company did not receive any proceeds from the sale of the Class B
shares.
Effective April 24, 1996, the Company issued 227,273 shares of Class A
Common Stock valued at the fair market value on that date of $11,250,000 to a
group purchasing organization affiliated with Premier, Inc., an alliance of
integrated health care systems in accordance with the agreement between the
parties. The value of this stock is being amortized over the remaining term of
the agreement with Premier.
On July 2, 1996, the Company formed a new subsidiary, Express Scripts
Vision Corporation ("ESVC"), which, along with ESVC's PhyNet, Inc. subsidiary,
comprise the Company's eyecare management operations.
On August 5, 1996, PacifiCare Health Systems, Inc. ("PacifiCare") announced
that it had entered into an agreement to acquire FHP International, Inc.
("FHP"). Currently, the Company has a contract with FHP to provide pharmacy
benefit services to FHP's 1.9 million members through December 31, 1997. While
FHP is the Company's largest single client in terms of membership, its
contribution to the Company's net revenues is less than 2% due to the fact that
the Company only records the fees related to administering FHP's network
prescriptions and dispensing mail pharmacy prescriptions. While the earnings
attributable to the Company's contract with FHP are presently material to
reported financial results, its contribution to earnings is substantially less
than the relationship to membership. The Company does not provide pharmacy
benefit management services to PacifiCare.
The Company has received notice from New York Life Insurance Company ("New
York Life") that New York Life will exercise its option to renegotiate pricing
under its agreement with the Company whereby the Company provides non-exclusive
pharmacy benefit management services to certain group indemnity policyholders of
New York Life and certain contract holders whose health benefit plans provide
indemnity style benefits for which New York Life provides administrative
services only. The option to renegotiate pricing is a mutual, annual option. The
current term of the agreement expires on December 31, 1999, subject to certain
early termination rights of both parties relating to the inability of the
parties to agree in connection with the option to renegotiate pricing. In
connection with the renegotiation, New York Life and its subsidiary, NYLCare
Health Plans, Inc. ("NYLCare"), have indicated a desire to expand their
relationship with the Company on their indemnity business and health maintenance
organization ("HMO") business to include a potential expansion of the medical
information management and other services offered by the Company. The
renegotiation should not adversely affect the Company's agreement with NYLCare
relating to pricing for the HMOs owned or managed by NYLCare.
Two of the Company's HMO clients, representing approximately 500,000
members, have informed the Company that they will not be renewing their
contracts with the Company on January 1, 1997. The Company expects this loss to
be more than offset by new members anticipated to be receiving services by
January 1, 1997.
On October 25, 1996, the Company announced that its Board of Directors had
approved an open-market stock repurchase program, authorizing the Company to
repurchase up to 850,000 shares of its Class A Common Stock. No limit was placed
on the duration of the program. Purchases will be in such amounts and at such
times as the Company deems appropriate based upon prevailing market and business
conditions.
IMPACT OF INFLATION. Changes in prices charged by manufacturers and
wholesalers for pharmaceuticals affect the Company's net revenue and cost of
revenues. To date the Company has been able to recover price increases from its
clients under the terms of its agreements. As a result, changes in
pharmaceutical prices have not adversely affected the Company.
10
<PAGE>
PART II. OTHER INFORMATION
Item 6 EXHIBITS AND REPORTS ON FORM 8-K
--------------------------------
(a) EXHIBITS. See Index to Exhibits on page 18.
(b) REPORTS ON FORM 8-K. None.
11
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
EXPRESS SCRIPTS, INC.
(Registrant)
Date: November 12, 1996 By: /S/BARRETT A. TOAN
-------------------
Barrett A. Toan, President and
Chief Executive Officer
Date: November 12, 1996 By: /S/KURT D. BLUMENTHAL
----------------------
Kurt D. Blumenthal, Vice
President and Acting Chief
Financial Officer
12
<PAGE>
INDEX TO EXHIBITS
Exhibit
NUMBER EXHIBIT
3.1 Certificate of Incorporation, incorporated by reference to
Exhibit No. 3.1 to the Company's Registration Statement on
Form S-1 filed June 9, 1992 (No. 33-46974) (the
"Registration Statement").
3.2 Certificate of Amendment of the Certificate of Incorporation
of the Company, incorporated by reference to Exhibit No. 10.6
to the Company's Quarterly Report on Form 10-Q for the
quarter ending June 30, 1994.
3.3 Second Amended and Restated Bylaws, incorporated by reference
to Exhibit No. 3.2 to the Company's Annual Report on Form
10-K for the year ending 1993.
10.1 Earth City Industrial Office/Warehouse Lease Agreement dated
as of August 19, 1996, by and between the Company and Louis
Siegfried Corporation.
10.2 Amendment No. 1 to Revolving Loan Agreement dated as of
October 31, 1996, by and between the Company and The First
National Bank of Chicago.
27.1 Financial Data Schedule (provided for the information of the
U.S. Securities and Exchange Commission only)
13
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1996
<PERIOD-END> SEP-30-1996
<CASH> 7601
<SECURITIES> 53,831
<RECEIVABLES> 160,219
<ALLOWANCES> 1,853
<INVENTORY> 21,951
<CURRENT-ASSETS> 243,851
<PP&E> 34,210
<DEPRECIATION> 13,393
<TOTAL-ASSETS> 278,562
<CURRENT-LIABILITIES> 115,234
<BONDS> 0
0
0
<COMMON> 165
<OTHER-SE> 161,704
<TOTAL-LIABILITY-AND-EQUITY> 278,562
<SALES> 547,437
<TOTAL-REVENUES> 547,437
<CGS> 484,098
<TOTAL-COSTS> 484,098
<OTHER-EXPENSES> 34,310
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 38
<INCOME-PRETAX> 31,247
<INCOME-TAX> 12,250
<INCOME-CONTINUING> 18,997
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 18,997
<EPS-PRIMARY> 1.17
<EPS-DILUTED> 0
</TABLE>
EARTH CITY INDUSTRIAL
OFFICE/WAREHOUSE LEASE AGREEMENT
THIS LEASE, made this 19th day of August, 1996, by and between the Owner of
the leased premises, Louis Siegfried Corporation, (hereinafter referred to as
"Landlord") and EXPRESS SCRIPTS. INC. (hereinafter referred to as "Tenant");
WITNESSETH:
1. LEASED PREMISES. Landlord hereby demises and leases to Tenant that
certain space known and numbered as 3801 ULTRA - COMP DRIVE, Earth City,
Missouri 63045, which space contains approximately 21,216 square feet of space,
as depicted on Exhibit "A", attached hereto and made a part hereof (hereinafter
referred to as the "Premises"), plus the use of all Common Areas in and about
Landlord's building, and the real estate thereunder (hereinafter referred to as
the "Property"). Tenant shall have exclusive use during the term of this Lease
of the existing parking area in the front (west) of the building, consisting of
thirty-seven (37) parking spaces more or less, and of the existing asphalt paved
area and loading docks in the rear (east) of the building, which Tenant shall
stripe and maintain for automobile parking.
Landlord shall deliver possession of the Premises to Tenant on October
15, 1996, in clean, "broom swept condition", with all existing personal
property, furniture, equipment, debris and trash removed. All building systems,
including the mechanical, electrical, HVAC, plumbing, dock doors, dock levelers
and dock bumpers shall be in working order and free of defects known to Landlord
as that date. Except for the foregoing, Tenant has inspected the Premises and
accepts the same in its present "AS IS" condition. Tenant further acknowledges
that Landlord has made no representations to Tenant with respect to any
alterations, repairs or improvements to be constructed within the Premises.
Landlord hereby grants to Tenant, for the term of this Lease, a
non-exclusive pedestrian and vehicular access easement across the Property to
and from any and all public rights of way.
2. USE. The Premises shall be used only for the purpose of general
offices, laboratory, research, storing and shipping materials, products and
merchandise made and/or distributed by Tenant. Outside storage including,
without limitation, drop shipments, dock storage, trucks and other vehicles, is
prohibited without Landlord's prior written consent. Tenant shall obtain, at
Tenant's sole cost and expense, any and all licenses and permits necessary for
Tenant's contemplated use of the Premises. Tenant shall comply with all existing
and future governmental laws, ordinances and regulations applicable to the use
of the Premises, as well as all requirements of Landlord's insurance carrier.
Tenant shall not permit any objectionable or unpleasant odors, smoke, dust, gas,
noise or vibrations to emanate from the Premises, nor take any other action
which would constitute a nuisance or which would disturb or endanger any
third-party tenants of the Property, or unreasonably interfere with such
third-party tenants' use of their respective space. Tenant shall not receive,
store or otherwise handle any product, material or merchandise which is
explosive or highly inflammable, Tenant shall comply with all statutes,
ordinances, rules, codes, regulations and requirements of any federal, state,
municipal or other governmental or quasi-governmental authority with respect to
any hazardous materials (as such term is defined from time to time by any
governmental or regulatory authority) which are stored, produced, manufactured,
treated, or disposed of by Tenant within the Premises; and Tenant agrees to
indemnify, defend and hold Landlord harmless from and against any and all
liabilities or claims by reason of any injury to persons or damage to property
arising out of the discharge, disbursement, release, or escape of smoke, vapors,
soot, fumes, acids, alkalis, toxic chemicals, hazardous materials, liquid or
gasses, waste materials or other irritants, contaminants or pollutants into or
about the Premises or Property, which originate from any products stored,
produced, manufactured, treated, or disposed of by Tenant within the Premises.
The aforesaid indemnification and defenses shall survive the term of this Lease.
3. TERM. The term of this Lease shall be FIVE (5) years and ONE (1) month
commencing on the 15TH day of October, 1996, and expiring on the 14TH day of
NOVEMBER, 2001, both inclusive.
4. RENT. Tenant shall pay the following Base Rent and Additional Rent
(hereinafter collectively referred to as "Rent") during the term of this Lease,
in advance, on the first day of each calendar month commencing November 15,
1996, or as otherwise set forth in this Lease, without set off or deduction, at
the office of Landlord. In the event any Rent is due for a partial calendar
month or year, the Rent shall be prorated to reflect that portion of the lease
term within such month or year. All accrued Rent shall survive the lease term.
(a) BASE. Tenant shall pay to Landlord, as Base Rent, the sum of ONE
HUNDRED FORTY THOUSAND AND NO/100'S ($140,000.00) Dollars, per year, payable in
equal monthly installments of ELEVEN THOUSAND SIX HUNDRED SIXTY-SEVEN AND
NO/100'S ($11,667.00) Dollars each.
(i) TAXES. Tenant shall pay all levies, taxes, assessments, liens,
licenses, permit fees and any other governmental charges, which at any time
during the term of this Lease may be levied, assessed, imposed or charged upon
or with respect to the Property, any improvements existing or subsequently
constructed on the Property, and any trade-fixtures, furnishings, equipment or
other personal property placed or located on the Property whether or not the
same are owned by Tenant (hereinafter collectively referred to as "Taxes") and
deliver a copy of the paid tax receipt to Landlord. Taxes shall not include any
income, estate, succession, capital, levy or profits tax assessed against
Landlord on the Property, unless the same are levied in lieu of a charge which
would otherwise be a Tax, payable under this Section. Notwithstanding the
aforesaid, if any Tax shall be levied, assessed, imposed, charged or becomes a
lien during the term of this Lease, then Tenant shall only be required to pay
1
<PAGE>
that portion of said Tax which is equal to the portion of the period which falls
within the term of this Lease. If Landlord shall make any actual use of any part
of the Property during the term of the Lease, including leasing any portion
thereof to another tenant, then taxes shall be prorated between Tenant and
Landlord and/or any other tenant(s) based on the number of square feet in the
Premises and the total number of square feet of building constructed on the
Property ("Tenant's Pro Rata Share").
(ii) INSURANCE. Tenant shall maintain in full force and effect
throughout the term of this Lease policies providing "all risk" insurance
coverage protecting against physical damage (including, but not limited to, fire
lighting, extended coverage perils, vandalism, sprinkler leakage, water damage,
collapse, and other special extended peril(s) to the extend of 100% of the
replacement cost of the building and all improvements, fixtures, trade fixtures,
equipment, inventory and other personal property delivered to Tenant with the
Property. Tenant shall also secure and maintain throughout the term of this
Lease broad form comprehensive or commercial general liability insurance, in an
occurrence form, insuring Landlord and Tenant jointly against any liability
(including bodily injury, property damage and contractual liability) arising out
of Tenant's use or occupancy of the Property, with a combined single limit of
not less than $1,000,000.00, or for a greater amount as may be reasonably
required by Landlord from time to time. All such policies shall be of a form and
content satisfactory to Landlord; and Landlord shall be named as an additional
insured on all such policies or, in the case of commercial general liability
insurance, as loss payee. All policies shall be with companies licensed to do
business in the State of Missouri, and rate A+:XV in the most current issue of
Best's Key Rating Guide. Tenant shall furnish Landlord with certificates of all
policies at least ten (10) days prior to occupancy; and further, such policies
shall provide that not less than thirty (30) days written notice be given to
Landlord before any such policies are canceled or substantially changed to
reduce the insurance provided thereby. All such policies shall be primary and
non-contributing with or in excess of any insurance carried by Landlord. Tenant
shall not do any act which may make void or voidable any insurance on the
Property. In the event Tenant fails to carry the required insurance set forth in
this Section, Landlord shall have the right to either terminate this Lease
subject to the notice and rights to cure provisions contained herein, or secure
such insurance on behalf of Tenant. In the event Landlord secures such
insurance, Tenant shall reimburse Landlord as additional Rent all cost of such
insurance within thirty (30) days after receipt of Landlord's invoice. If
Landlord shall make any actual use of any part of the Property, including
leasing any portion thereof to another tenant, the Tenant shall insure only the
Premises and such other portion of the Property over which Tenant has an
exclusive right to use and shall contribute Tenant's Pro Rata Share of insurance
carried by Landlord or another tenant for areas of the Property used by Tenant
in common with Landlord and/or another Tenant(s).
5. LATE CHARGE. In the event Tenant is late in the payment of any Rent
or other charge due Landlord, Tenant shall pay a late charge for Landlord's
increased administrative expenses, which late charge shall be payable as
Additional Rent, and shall be equal to five (5%) percent of the outstanding
amounts owed Landlord.
6. UTILITIES. Landlord agrees to supply water, gas, electricity, sewer
and telephone connections to the Premises; but Tenant shall pay for the use of
all such gas, electricity, and telephone services, and any other utilities
and/or services used by Tenant within the Premises, together with any taxes,
penalties, surcharges or the like pertaining thereto. Tenant shall be liable for
all maintenance and equipment with respect to the continued operation of such
utilities including, without limitation, all electric light bulbs, tubes and
starters. In the event any such utilities are not separately metered, Tenant
shall pay to Landlord a portion of the cost of such utilities reasonably
determined by Landlord's independent engineer. Landlord shall not be liable for
any interruption or failure of any utility servicing the Property.
7. LANDLORD'S REPAIRS AND MAINTENANCE. Landlord, at Landlord's sole cost
and expense, shall maintain, repair and replace, if necessary, the structural
portions of the building located on the Premises, including but not limited to
the roof, floors, exterior walls, gutters, downspouts and to the extent required
to maintain the weather tight integrity of the same. Notwithstanding the
aforesaid, in the event any such maintenance or repairs are caused by the
negligence of Tenant or Tenant's employees, agents or invitees, Tenant shall
reimburse to Landlord, as Additional Rent, the cost of all such maintenance and
repairs within thirty (30) days after receipt of Landlord's invoice for same.
For purposes of this Section, the term "exterior walls" shall not include
windows, plate glass, office doors, dock doors, dock bumpers, office entries, or
any exterior improvement made by Tenant. Landlord reserves the right to
designate all sources of services in connection with Landlord's obligations
under this Lease. Tenant hereby grants to Landlord the right to enter upon the
Premises, at reasonable times during normal business hours, and upon reasonable
notice, except in emergencies exclusively determined by Landlord, for the
purpose of making inspections and/or repairs. Tenant shall have the duty to
periodically inspect the Premises and notify Landlord should Tenant observe a
need for repairs or maintenance of any obligation to be performed by Landlord
under this Lease. Upon receipt of Tenant's notice, Landlord shall have a
reasonable period of time to make such repairs or maintenance; however, it is
expressly understood that Landlord's liability with respect to the failure or
delay to make any such repairs or maintenance shall be limited to the cost of
such repairs or maintenance.
2
<PAGE>
8. TENANT'S REPAIRS AND MAINTENANCE. Tenant, at Tenant's sole cost and
expense, shall have the affirmative duty to periodically inspect, maintain,
service, repair and replace, if necessary, all portions of the Premises which
are not expressly the responsibility of Landlord including, but not limited to,
any windows, plate glass, office doors, dock doors, office entries, interior
walls and finish work, floors and floor coverings, water heaters, electrical
systems and fixtures, sprinkler systems, dock bumpers, branch plumbing and
fixtures, and pest extermination. In addition thereto, Tenant shall keep the
exterior of the Premises and the dock area servicing the Premises in a clean and
sanitary condition, and shall keep the common parking areas, driveways and
loading docks free of Tenant's debris. Tenant shall further be responsible for
all common area maintenance of the parking lot, lawns, shrubbery, landscaping,
sidewalks and snow removal. Tenant shall not store materials waste or pallets
outside of the Premises, and shall timely arrange for the removal and/or
disposal of all pallets, crates and refuge owned by Tenant which cannot be
disposed of in the dumpster servicing the Property. If Landlord shall make any
actual use of any part of this Property, including leasing any portion thereof
to another tenant, the responsibility for maintenance of any common areas of
parking lots, lawns, shrubbery, landscaping, sidewalks and snow removal shall
revert to Landlord, and Tenant shall pay Tenant's Pro Rata Share of such costs.
Tenant shall have the affirmative duty to periodically inspect,
maintain, service, repair and/or replace the heating, ventilating and air
conditioning (HVAC) system which exclusively services the Premises, in a manner
and as often as is reasonably required to keep said system operating properly
and efficiently. In the event said HVAC system requires repairs or replacement
during the lease term, or any extension thereto, Tenant shall make such repairs
or replacement at Tenant's sole cost and expense. Landlord represents that, as
of the commencement date of the lease, the existing HVAC system will be in good
working order.
Upon the expiration or earlier termination of this Lease, Tenant shall
return the Premises to Landlord in substantially the same condition as when
received, reasonable wear and tear accepted including but not limited to the
removal of all roof penetrations and restoration of the roof and ceiling. Tenant
shall perform all repairs and maintenance in a good and workmanlike manner,
using materials and labor of the same character, kind and quality as originally
employed within the Property; and all such repairs and maintenance shall be in
compliance with all governmental and quasi-governmental laws, ordinances and
regulations, as well as all requirements of Landlord's insurance carrier. In the
event Tenant fails to properly perform any such repairs or maintenance within a
reasonable period of time following notice by Landlord to Tenant of this need
thereof, Landlord shall have the option to perform such repairs on behalf of
Tenant, in which event Tenant shall reimburse to Landlord, as Additional Rent,
the costs thereof within thirty (30) days after receipt of Landlord's invoice
for same.
9. ALTERATIONS. Tenant shall not make any alterations, additions or
improvements to the Premises or Property without the prior written consent of
Landlord which shall not be unreasonably withheld. Notwithstanding the
aforesaid, Tenant, at Tenant's sole cost and expense, may install trade fixtures
as Tenant may deem necessary, so long as such trade fixtures do not penetrate or
disturb the structural integrity and support provided by the roof, exterior
walls or subfloors. All such trade fixtures shall be constructed and/or
installed by contractors approved by Landlord, in a good and workmanlike manner,
and in compliance with all applicable governmental and quasi-governmental laws,
ordinances and regulations, as well as all requirements of Landlord's insurance
carrier.
Upon the expiration or earlier termination of this Lease, Tenant shall
remove all alterations, additions or improvements installed by Tenant within the
Premises; and, upon such removal, Tenant shall restore the Premises to a
condition substantially similar to that condition when received by Tenant.
However, notwithstanding the aforesaid, upon Landlord's written election which
shall be made within sixty (60) days prior to the termination of this Lease,
such alterations, additions and improvements shall revert to Landlord and shall
remain within the Premises. In no event shall Landlord have any right to any of
Tenant's trade fixtures; and, except as otherwise set forth in this Lease,
Tenant may remove such trade fixtures upon the termination of this Lease,
provided Tenant repairs any damage caused by such removal.
10. DESTRUCTION. If the Premises or the Property are damaged in whole or
in part by casualty so as to render the Premises untenantable, and if the
damages cannot be repaired within one hundred eighty (180) days from the date of
said casualty, this Lease shall terminate as of the date of such casualty. If
the damages can be repaired within said one hundred eighty (180) days, and
Landlord does not elect within sixty (60) days after the date of such casualty
to repair the same, then either party may terminate this Lease by written notice
served upon the other. In the event of any such termination, the parties shall
have no further obligations to the other, except for those obligations accrued
through the effective date of such termination; and, upon such termination,
Tenant shall immediately surrender possession of the Premises to Landlord.
Should Landlord elect to make such repairs, this Lease shall remain in full
force and effect, and Landlord shall proceed with all due diligence to repair
and restore the Premises to a condition substantially similar to that condition
which existed prior to such casualty. In the event the repair and restoration of
the Premises extends beyond one hundred eighty (180) days after the date of such
casualty due to causes beyond the control of Landlord, this Lease shall remain
in full force and effect, and Landlord shall not be liable therefore; provided
that Landlord has commenced and shall continue to complete such repairs and
restoration with all due diligence. Tenant shall not be required to pay any Rent
for any period in which the Premises are untenantable. In the event only a
3
<PAGE>
portion of the Premises are untenantable, Tenant's Rent shall be equitably
abated in proportion to that portion of the Premises which are so unfit.
However, there shall be no Rent abatement if said damage is due to the fault or
negligence of Tenant or Tenant's agents, employees or invitees.
11. INSPECTION. Landlord shall have the right to enter and inspect the
Premises at any reasonable time following reasonable notice for the purpose of
ascertaining the condition of the Premises, or in order to make such repairs as
may be required or permitted to be made by Landlord under the terms of this
Lease. In addition thereto, during the last six (6) months of the lease term,
Landlord shall have the right to enter the Premises at any reasonable time
following reasonable notice for the purpose of showing the Premises to
prospective third-party tenants; and, during said six (6) months, Landlord shall
have the right to erect on the Property and/or the Premises a suitable sign
indicating that the Premises are available for lease. Landlord hereby agrees to
indemnify, hold harmless and defend Tenant from all damage, loss, cost, claims,
liability and expenses arising out of or resulting from Landlord entering the
Premises for the purpose of making inspections, performing repairs, showing the
Premises to prospective tenants or otherwise.
Tenant shall give Landlord thirty (30) days written notice prior to Tenant
vacating the Premises, for the purpose of arranging a joint inspection of the
Premises with respect to any obligation to be performed therein by Tenant
including, without limitation, the necessity of any repair or restoration of the
Premises. In the event Tenant fails to notify Landlord of such inspection,
Landlord's inspection after Tenant vacates shall be conclusively deemed correct
for purposes of determining Tenant's responsibility for repairs and restoration.
12. SIGNS. Tenant shall not install any signs upon the Premises or
Property without Landlord's prior written consent. Any such approval by Landlord
for any signs shall be subject to any applicable governmental or
quasi-governmental laws, ordinances, regulations and other requirements, Upon
the expiration or earlier termination of this Lease, Tenant shall remove all
such signs and repair the Premises and/or Property to the condition which
existed prior to the installation of such signs including, without limitation,
any discoloration caused by such installation and/or removal. Landlord hereby
consents to allow Tenant to install Tenant's signage upon the Premises or
Property and provided all such signage is first approved by the Earth City Board
of Trustees.
13. SUBLETTING AND ASSIGNING. Tenant shall not assign or sublet the
Premises, or any portion thereof, nor allow the same to be used or occupied by
any other person or for any other use than herein specified, without the prior
written consent of Landlord. For purposes of this Section, the transfer of any
majority interest in any corporation or partnership shall be deemed to be an
assignment of this Lease. In the event Landlord consents to any sublease or
assignment, the same shall not constitute a release of Tenant from the full
performance of Tenant's obligations under this Lease. Further, in the event of
any such sublease or assignment, Tenant shall reimburse Landlord for all
reasonable attorney's fees in connection with reviewing and/or drafting any
appropriate documents to effect such transfer of Tenant's interests. The
foregoing to the contrary notwithstanding, Tenant shall have the right, without
prior consent from Landlord, but upon notice to Landlord, to assign this Lease
to a majority owned subsidiary, provided that upon such assignment Tenant shall
remain liable under this Lease and shall not be released from any obligations of
Tenant.
14. DEFAULT. This Lease and Tenant's right to possession of the Premises
is made subject to and condition upon Tenant performing all of the covenants and
obligations to be performed by Tenant hereunder, at the times and pursuant to
terms and conditions set forth herein. If Tenant should fail to pay any Rent or
other charge when the same is due, or if Tenant should fail to perform any other
obligation to be performed by Tenant within the time or times set forth herein,
such failure shall be an Event of Default under this Lease. If a monetary Event
of Default shall continue for five (5) days following receipt of notice
therefore by Tenant from Landlord, or a non-monetary Event of Default shall
continue for more than thirty (30) days, or if greater, the term reasonably
required to cure said non-monetary Event of Default, or if Tenant makes an
assignment for the benefit of creditors, vacates or abandons the Premises for
more than thirty (30) days, files or has filed against it a petition in
bankruptcy, has a receiver, trustee or liquidator appointed over a substantial
portion of its property, or is adjudicated insolvent, Landlord may either (a)
terminate this Lease, or (b) terminate Tenant's right of possession to the
Premises without terminating this Lease. In either event, Landlord shall have
the right to dispossess Tenant, or any other person in occupancy, together with
their property, and re-enter the Premises. Upon such re-entry, Tenant shall be
liable for all expenses incurred by Landlord in recovering the Premises,
including, without limitation, clean-up costs, legal fees, removal, storage or
disposal of Tenant's property, and restoration costs.
In the event Landlord elects to terminate this Lease, all Rent through the
effective date of termination shall immediately become due, together with any
late fees payable to Landlord and the aforesaid expenses incurred by Landlord to
recover possession.
In the event Landlord elects not to terminate this Lease, but only to
terminate Tenant's right of possession to the Premises, Landlord may re-enter
the Premises without process of law if Tenant has vacated the Premises or, if
Tenant has not vacated the Premises by an action for ejection, unlawful
detainer, or other process of law. No such dispossession of Tenant or re-entry
by Landlord shall constitute or be construed as an election by Landlord to
4
<PAGE>
terminate this Lease, unless Landlord delivers written notice to Tenant
specifically terminating this Lease. Upon Landlord recovering possession,
Landlord shall use reasonable efforts to mitigate its damages and relet the
Premises upon terms and conditions satisfactory to Landlord; however, Landlord
shall have no duty to prioritize the reletting of the Premises over the leasing
of other vacant space within the Property. Tenant shall remain liable for all
past due Rent and late fees, plus the aforesaid expenses incurred by Landlord to
recover possession of the Premises. In addition, Tenant shall be liable for all
Rent thereafter accruing under this Lease, payable at Landlord's election: (a)
monthly as such Rent accrues, in an amount equal to the Rent payable under this
Lease less the rent (if any) collected from any reletting, or (b) in a lump sum
within thirty (30) days after Landlord repossesses the Premises, in an amount
equal to the total Rent payable under this Lease for the unexpired term,
discounted at the rate of six (6%) percent, per annum. In the event the Premises
are relet, Tenant shall also be liable for all costs of reletting, including,
without limitation, any brokers fees, legal fees, and/or tenant finish required
to be paid in connection with any reletting.
No payment of money by Tenant after the termination of this Lease, service
of any notice, commencement of any suit, or after final judgment for possession
of the Premises, shall reinstate this Lease or affect any such notice, demand or
suit, or imply consent for any action for which Landlord's consent is required.
Tenant shall pay all costs and attorney's fees incurred by Landlord from
enforcing the covenants of this Lease provided that, in the event that such
matter is fully litigated, Landlord is the prevailing party. Should Landlord
elect not to exercise its rights in the event of a Default, it shall not be
deemed a waiver of such rights as to subsequent Defaults.
15. HOLDOVER. Upon the expiration or earlier termination of this Lease,
Tenant shall surrender the Premises to Landlord, without demand, in as good
condition as when delivered to Tenant, reasonable wear and tear accepted. If
Tenant shall remain in possession of the Premises after the termination of this
Lease, and hold over for any reason, Tenant shall be deemed guilty of unlawful
detainer; or, at Landlord's election, Tenant shall be deemed a holdover tenant
and shall pay to Landlord monthly Rent equal to two hundred (200%) percent of
the total Rent payable hereunder during the last month prior to any such
holdover, as well as any other damages incurred by Landlord as a result of such
holdover. Should any of Tenant's property remain within the Premises after the
termination of this Lease, it shall be deemed abandoned, and Landlord shall have
the right to store or dispose of it at Tenant's cost and expense.
16. RIGHT TO CURE TENANT'S DEFAULT. In the event an Event of Default under
any provision of this Lease has occurred, other than for the payment of Rent,
and such Event of Default is not cured by Tenant within the cure period provided
in Section 14 hereof, Landlord may cure such Default on behalf of Tenant, at
Tenant's expense. Landlord may also perform any obligation of Tenant, without
notice to Tenant, should Landlord deem such performance to be an emergency. Any
monies expended by Landlord to cure any such Default(s), or resolve any deemed
emergency shall be payable by Tenant as Additional Rent. If Landlord incurs any
expense, including reasonable attorney's fees, in prosecuting and/or defending
any action or proceeding by reason of any emergency or Default, Tenant shall
reimburse Landlord for same, as Additional Rent, with interest thereon at
thirteen (13%) percent annually from the date such payment is due Landlord,
provided that Landlord is the prevailing party in said action or proceeding.
17. HOLD HARMLESS. Landlord shall not be liable to Tenant for any damages
to the Premises or the Property, nor for any damages to Tenant on or about the
Property, nor for any other damages arising from the action or negligence of
Landlord, Tenant, co-tenants or other occupants of the Property except for those
arising from Landlord's entry upon the Premises pursuant to Section 11 hereof;
and Tenant hereby releases, discharges and shall indemnify, hold harmless and
defend Landlord, at Tenant's sole cost and expense, from all losses, claims,
liability, damages, and expenses (including reasonable attorney's fees) due to
any damage or injury to persons or property of the parties hereto or of third
persons, caused by Tenant's use or occupancy of the Premises, Tenant's breach of
any covenant under this Lease, or Tenant's use of any equipment, facilities or
property in, on, or adjacent to the Property. In the event any suit shall be
instituted against Landlord by any third person for which Tenant is hereby
indemnifying and holding Landlord harmless, Tenant shall defend such suit at
Tenant's sole cost and expense with counsel reasonably satisfactory to Landlord;
or, in Landlord's discretion, Landlord may elect to defend such suit, in which
event Tenant shall pay Landlord, as Additional Rent, Landlord's costs of such
defense.
18. CONDEMNATION. If the whole of the Premises shall be taken in
condemnation, or transferred by agreement in lieu of condemnation, either Tenant
or Landlord may terminate this Lease by serving the other party with written
notice of same, effective as of the taking date. If a portion of the Premises
shall be taken in condemnation, or transferred by agreement in lieu of
condemnation and if Tenant determines in its reasonable judgment that the
remaining portion thereof may no longer be adequately used for the purpose set
forth in Section 2 of this Lease, Tenant may elect to terminate this Lease. If
neither Tenant nor Landlord elect to terminate this Lease as aforesaid, then
this Lease shall terminate on the taking date only as to that portion of the
Premises so taken, and the Rent and other charges payable by Tenant shall be
reduced proportionally. Landlord shall be entitled to the entire condemnation
award for all realty and improvements. Tenant shall only be entitled to an award
for Tenant's fixtures and personal property, provided Tenant independently
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petitions the condemning authority for same. Notwithstanding the aforesaid, if
any condemnation takes a portion of the Property which does not materially
affect the Premises or Tenant's use thereof, or if any condemnation takes a
portion of the parking area the result of which does not reduce the minimum
required parking spaces below that established by local code or ordinance, this
Lease shall continue in full force and effect without modification.
19. MORTGAGES. This Lease is subject and subordinated to any mortgages,
deeds of trust or underlying leases, as well as to any extensions or
modifications thereof (hereinafter collectively referred to as "Mortgages"), now
of record or hereafter placed of record. Tenant hereby agrees to execute upon
request an instrument subordinating the interest of Tenant to that of a future
lender to the Landlord, provided, however, that such instrument contains
adequate non-disturbance provisions to recognize Tenant's rights under this
Lease.
20. LIENS. Tenant shall not mortgage or otherwise encumber or allow to be
encumbered its interest herein without obtaining the prior written consent of
Landlord. Should Tenant cause any mortgage, lien or other encumbrance
(hereinafter singularly or collectively referred to as "Encumbrance") to be
filed, against the Premises or the Property, Tenant shall dismiss or bond
against the same within fifteen (15) days after the filing thereof. If Tenant
fails to remove said Encumbrance within said fifteen (15) days, Landlord shall
have the absolute right to remove said Encumbrance by whatever measures Landlord
shall deem convenient including, without limitation, payment of such
Encumbrance, in which event Tenant shall reimburse Landlord, as Additional Rent,
all costs expended by Landlord, including reasonable attorneys fees, in removing
said Encumbrance. All of the aforesaid rights of Landlord shall be in addition
to any remedies which either Landlord or Tenant may have available to them at
law or in equity.
21. GOVERNMENT REGULATIONS. Tenant, at Tenant's sole cost and expense,
shall conform with all laws and requirements of any Municipal, State, or Federal
authorities now in force, or which may hereafter be in force, pertaining to or
in connection with Tenant's occupancy of the Premises, including all
requirements of the Americans with Disabilities Act of 1991. In addition, Tenant
shall conform with any reasonable requirement of Landlord's insurance carrier
with respect to Tenant's use of the Premises. The judgment of any court, or an
admission of Tenant in any action or proceeding at law, whether Landlord be a
party thereto or not, shall be conclusive of the fact as between Landlord and
Tenant. As of the commencement of this Lease, Landlord has received no notice
that the Premises do not conform with all Municipal, State or Federal laws and
requirements, including the "American with Disabilities Act of 1991".
22. NOTICES. All Rents which are required to be paid by Tenant shall be
delivered to Landlord by the United States Mail, postage prepaid, at Landlord's
address set forth below. All notices which are required to be given hereunder
shall be in writing, and delivered by United States registered or certified
mail, return receipt requested, postage prepaid, addressed to the parties hereto
at their respective addresses below:
LANDLORD: TENANT:
Louis Siegfried Corporation Express Scripts, Inc.
8 Sunswept Drive an Delaware Corporation
St. Louis, MO 63141 14000 Riverport Drive
St. Louis, MO 63043
Attn: President
With a copy to:
R. Troy Kendrick, Esq.
Blumenfeld, Kaplan & Sandweiss, P.C.
168 N. Meramec
St. Louis, MO 63105
Either party may designate a different address by giving notice to the
other party of same at the address set forth above. Notices shall be deemed
received on the date of the return receipt. If any such notices are refused, or
if the party to whom any such notice is sent has relocated without leaving a
forwarding address, then the notice shall be deemed received on the date the
notice-receipt is returned stating that the same was refused or is undeliverable
at such address.
23. PARKING. Tenant shall be liable for all vehicles owned, rented or used
by Tenant or Tenant's agents and invitees in or about the Property. Tenant shall
not store any equipment, inventory or other property in any trucks, nor store
any trucks on the parking lot of the Property. Notwithstanding the aforesaid, in
the event the Premises have access to a loading dock which exclusively services
the Premises, and no other space, Tenant may store one or more of its vehicles
in such dock area, provided such storage does not restrict truck access or
maneuverability for any other tenant or person to or from any other loading dock
servicing the Property. In the event the Premises have access to a loading dock
which does not exclusively service the Premises, Tenant shall not park its
trucks in the dock area longer than the time it takes to reasonably load or
unload its trucks. In no event shall Tenant park any vehicle in or about a
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loading dock which exclusively services another tenant within the Property, or
in a thoroughfare, driveway, street, or other area not specifically designated
for parking. Landlord reserves the right to establish uniform rules and
regulations for the loading and unloading of trucks upon the Property, which
rules may include the right to designate specific parking spaces for tenants'
use. Upon request by Landlord, Tenant shall move its trucks and vehicles if, in
Landlord's reasonable opinion, said vehicles are in violation of any of the
above restrictions. Except as otherwise set forth above, parking shall be
provided as described in Section 1 hereof.
24. OWNERSHIP. Notwithstanding anything in this Lease to the contrary, the
term "Landlord" as used in this Lease, shall be defined as the current owner(s)
of the Property. In the event of any transfer of the Property, the party
conveying same shall thereafter be automatically released from all liability
with respect to any obligations thereafter occurring or covenants thereafter to
be performed by Landlord. It is expressly understood and agreed that none of the
covenants of Landlord under this Lease are personal in nature, and that Tenant
agrees to look solely to the Property for recovery of any damages for breach or
non-performance of any of the obligations of the Landlord hereunder.
25. SECURITY DEPOSIT. Eleven Thousand Six Hundred Sixty-seven and 00/100
($11,667.00) Dollars.
26. ESTOPPEL CERTIFICATES. Upon Landlord's written request and provided
that the following is true, Tenant shall execute and return to Landlord, within
fifteen (15) days, a statement in writing certifying that this Lease is
unmodified and in full force and effect, that Tenant has no defenses, offsets or
counterclaims against its obligations to pay any Rent or to perform any other
covenants under this Lease, that there are no uncured Defaults of Landlord or
Tenant, and setting forth the dates to which the Rent and other charges have
been paid, and any other information reasonably requested by Landlord. In the
event Tenant fails to return such statement within said fifteen (15) days,
setting forth the above or, alternatively, setting forth those lease
modifications, defenses and/or uncured Defaults, it shall be deemed that
Landlord's statement is correct with respect to the information therein
contained. Any such statement delivered pursuant to this Section may be relied
upon by any prospective purchaser, mortgagee, or assignee of any mortgagee of
the Property.
27. PERSONAL PROPERTY TAXES. Tenant shall timely pay all taxes assessed
against Tenant's personal property and all improvements to the Premises which
are in excess of Landlord's standard installations. If Tenant's personal
property and improvements are assessed with the property of Landlord, Tenant
shall pay to Landlord an amount equal to Tenant's share of such taxes as agreed
to by Tenant and Landlord, within ten (10) days after receipt of Landlord's
statement for same.
28. BROKERAGE. The parties warrant that they have dealt with no broker or
person in connection with this transaction other than NOONEY KROMBACH COMPANY ;
and Landlord agrees to be liable for the commissions payable to such brokers.
This provision shall survive the termination of this Lease. Tenant and Landlord
each hereby agree to indemnify, defend and hold harmless the other from the
claims for any other brokerage commissions made by a broker claiming to have
represented the indemnifying party.
29. SEVERABILITY. In the event any provision of this Lease is found to be
invalid or unenforceable, the same shall not affect or impair the validity or
enforceability of any other provision.
30. WAIVER OF RIGHT OF SUBROGATION. The Landlord and Tenant agree that, in
the event of loss due to any of the perils for which they have agreed or elected
to obtain insurance, that each party shall look first to such insurance for
recovery. Landlord and Tenant hereby grant to each other, on behalf of any
insurer providing insurance to either of them with respect to the Premises, a
waiver of any right of subrogation which any insurer of one party may acquire
against the other by virtue of any loss under such insurance. Furthermore,
Landlord and Tenant shall each give notice to its respective insurance carriers
to this mutual waiver of subrogation.
31. QUIET POSSESSION. Provided Tenant is not in default under this Lease,
Tenant shall have peaceful and quiet possession of the Premises for the full
Lease Term, without any encumbrance and hindrance by, from or through Landlord,
or anyone else lawfully claiming an interest in the Premises, subject to the
provisions of this Lease.
32. CORPORATE AUTHORITY. If Tenant is a corporation, each person signing
this Lease on behalf of Tenant represents and warrants that he or she his full
authority to do so and that this Lease binds the corporation. Each person
signing this Lease on behalf of Landlord represents and warrants that he or she
has full authority to do so and that this Lease binds Landlord.
33. NON-DISTURBANCE & ATTORNMENT. Landlord shall cause any party holding a
mortgage or deed of trust on any portion of the Property to execute and deliver
to Tenant a non-disturbance and attornment agreement in form and substance
reasonably satisfactory to Tenant within seven (7) days after the date of the
execution of this Lease by both Landlord and Tenant. If Landlord fails to
satisfy the foregoing condition, Tenant shall have the right to declare this
Lease null and void and of no force and effect.
34. LEGAL PROCEEDINGS. If any action for breach of or to enforce the
provisions of this Lease is commenced, the court in such action shall award to
the party in whose favor a judgment is entered, a reasonable sum as settlement,
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enforcement of rights or otherwise. Furthermore, if any action for breach of or
to enforce the provisions of this Lease is commence, the court in such action
shall award to the party in whose favor a judgment is entered, a reasonable sum
as attorney's fees and costs. The losing party in such action shall pay such
attorney's fees and costs.
35. MECHANIC'S LIEN. Tenant shall keep the Property free from any
mechanic's, materialmen's or similar liens or encumbrances, and any claims
therefore, in connection with any work done by or for Tenant on the Property.
Tenant shall remove any such claim, lien or encumbrance by bond or otherwise
within twenty (20) days after notice by Landlord. If Tenant fails to do so,
Landlord, after giving Tenant notice of its intention to do so, may pay the
amount or take such other actions as Landlord deems necessary to remove such
claim, lien or encumbrance, withing being responsible for investigating the
validity thereof. The amount so paid and costs incurred by Landlord shall be
deemed additional rent under this Lease payable upon demand, without limitation
as to other remedies available to Landlord.
36. REMOVAL OF EXISTING SIGN. Landlord agrees to remove at its expense the
existing exterior sign on the Premises on or before October 15, 1996.
37. ADDITIONAL SPACE. In the event that Landlord constructs an additional
building or buildings on the Property and determines in its sole and absolute
judgment to lease space in the said additional building or buildings to tenants
which are not affiliated with Landlord, Tenant shall have the right of first
refusal to lease the said space on the same terms and conditions as a bonafide
tenant shall offer. Landlord shall give Tenant ten (10) days notice in which
time Tenant may exercise its right or, failing to do so, shall be deemed to have
waived its right.
38. OPTION TO RENEW: With respect to Paragraph 3 of this Lease, Tenant
shall have the right and option to extend the term of this Lease for one (1)
renewal period of five (5) years, upon the following additional terms and
conditions:
(a) Tenant shall not have received a Notice of Default from Landlord
which has not been cured by Tenant or waived by Landlord at the time Tenant
exercises its option or at the time the primary term expires.
(b) Tenant shall give to Landlord written notice exercising Tenant's
option to extend the term of this Lease not less than nine (9) months prior to
the expiration of the primary term.
(c) During such option period the Base Rent shall be increased to One
Hundred Sixty-one Thousand Two Hundred Forty-two and 00/100's Dollars
($161,242.00) per year, payable in equal monthly installments of Thirteen
Thousand Four Hundred Thirty-seven and 00/100's Dollars ($13,437.00).
(d) All other terms and conditions of this Lease shall be binding upon
Landlord and Tenant and in full force and effect, as if such terms and
conditions were again fully recited herein.
(e) In the event Tenant does not exercise its option to extend this
Lease as herein provided, Landlord shall have the right, upon reasonable notice
to Tenant, during the six(6)months prior to the end of the primary term, to show
the Premises during normal business hours to other prospective tenants.
39. MISCELLANEOUS.
(a) In addition to the terms and conditions set forth herein, Landlord
and Tenant shall be bound by those certain Rules and Regulations, set forth on
Exhibit "B", attached hereto and made a part hereof.
(b) All of the covenants of Tenant hereunder shall be deemed and
construed to be "conditions" as well as "covenants" as though both words were
used in each separate instance.
(c) Landlord also reserves the right to designate from time to time one
or more successor agents, and to assign to such agent(s) such rights or
obligations as Landlord may determine. Notwithstanding the aforesaid, so long as
Landlord is the fee owner of the Property, no assignment by Landlord shall
relieve Landlord of its liability with respect to its obligations hereunder.
(d) This Lease shall not be recorded by Tenant without the prior written
consent of Landlord.
(e) The paragraph headings appearing in this Lease are inserted only as
a matter of convenience, and in no way define or limit the scope of any
paragraph.
(f) Submission of this Lease shall not be deemed to be an offer, or an
acceptance, or a reservation of the Premises; and Landlord shall not be bound
hereby until Landlord has delivered to Tenant a fully executed copy of this
Lease, signed by both of the parties on the last page of this Lease in the
spaces herein provided. Until such delivery, Landlord reserves the right to
exhibit and lease the Premises to other prospective tenants. Further, Landlord
may withhold possession of the Premises from Tenant until such time as Tenant
has paid to Landlord the security deposit required by Section 25 of this Lease,
and the first month of Base Rent as set forth in Section 4 of this Lease.
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(g) All of the terms of this Lease shall extend to and be binding upon
the parties hereto and their respective heirs, executors, administrators,
successors and assigns.
(h) This Lease and the parties' respective rights hereunder shall be
governed by the laws of the State of Missouri. In the event of litigation, suit
shall be brought in St. Louis County, Missouri. Landlord and Tenant hereby waive
any and all right to a trial by jury on any issue to enforce any term or
condition of this Lease, or with respect to Landlord's right to terminate this
Lease, or terminate Tenant's right of possession.
(i) This Lease is modified and affected by the following Exhibits which
are attached hereto and made a part hereof.
Exhibit "A": Floor Plan and Construction
Exhibit "B": Rules and Regulations
WHEREFORE, Landlord and Tenant have respectively signed and sealed this
Lease the day and year first above written.
TENANT: LANDLORD:
Express Scripts, Inc., Louis Siegfried Corporation
an Delaware corporation
By: /s/ Stuart L. Bascomb By: /s/ Louis Siegfried
Print Name: Stuart L. Bascomb Print Name: Louis Siegfried
Title:Executive Vice President Title: President
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EXHIBIT A
Exhibit A contains a depiction of the building, parking lot and loading
area which are subject to this Lease.
<PAGE>
EXHIBIT B
RULES AND REGULATIONS
Tenant agrees to comply with the following rules and regulations, and any
subsequent rules or regulations which Landlord may reasonably adopt or modify
and promulgate from time to time. Tenant shall be bound by such rules and
regulations to the same extent as if such rules and regulations were covenants
of this Lease; and any non-compliance thereof shall constitute grounds for
Default under this Lease. Landlord shall not be liable for the non-observance of
said rules and regulations by any other tenant.
(1) Tenant shall not use any picture or likeness of the Property in any
notices or advertisements, without Landlord's prior written consent,
(2) In the event Tenant requires any telegraph, telephone or satellite dish
connections, Landlord shall have the right to prescribe additional rules and
regulations regarding the same including, but not limited to, the size, manner,
location and attachment of such equipment and connections.
(3)[INTENTIONALLY OMITTED]
(4) Tenant shall not install or operate any steam or internal combustion
engine, boiler, machinery, or carry on any mechanical business within the
Premises. Tenant shall not use any fuel source within the Premises other than
the fuel source(s) provided by Landlord.
(5) Tenant shall not permit within the Premises any animals other than
service animals; not shall Tenant create or allow any foul or noxious gas,
noise, odors, sounds, and/or vibrations to emanate from the Premises, or create
any interference with the operation of any equipment or radio or television
broadcasting/reception from within or about the Property, which may obstruct or
interfere with the rights of other tenant(s) in the Property.
(6) All sidewalks, loading areas, stairways, doorways, corridors, and other
common areas shall not be obstructed by Tenant or used for any purpose other
than for ingress and egress. Landlord retains the right to control all public
and other areas not specifically designated as the Premises, provided nothing
herein shall be construed to prevent access to the Premises or the common areas
of the Property by Tenant or Tenant's invitees.
(7)[INTENTIONALLY OMITTED]
(8) After business hours, Tenant shall lock all doors and windows of the
Premises which enter upon any common areas of the Property; and Tenant shall be
liable for all damages sustained by Landlord or other tenants within the
Property resulting from Tenant's default or carelessness in this respect.
(9) Any person(s) who shall be employed by Tenant for the purpose of
cleaning the Premises shall be employed at Tenant's cost. Tenant shall indemnify
and hold Landlord harmless from all losses, claims, liability, damages, and
expenses for any injury to person or damage to property of Tenant, or third
persons, caused by Tenant's cleaning contractor.
(10) Tenant shall not canvass or solicit business, or allow any employee of
Tenant to canvass or solicit business, from other tenants in the Property,
unless the same is within the scope of Tenant's normal business.
(11)[INTENTIONALLY OMITTED]
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AMENDMENT NO. 1
DATED AS OF OCTOBER 31, 1996
to
REVOLVING LOAN AGREEMENT
DATED AS OF NOVEMBER 1, 1995
This amendment No. 1 (this "Amendment"), dated as of October 31, 1996, is
between Express Scripts, Inc. (the "Borrower") and The first National Bank of
Chicago ("the Lender").
W I T N E S S E T H:
WHEREAS, the Borrower and the Lenders are parties to that certain Revolving
Loan Agreement dated as of November 1, 1995 (as heretofore amended, the "Credit
Agreement") and the other Loan Documents referred to therein; and
WHEREAS, the Borrower and the Lenders desire to amend the Credit Agreement
in order to amend certain provisions thereof;
NOW, THEREFORE, in consideration of the premises and the undertakings set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. DEFINITIONS. Capitalized terms used herein and not otherwise defined
herein shall have the meanings attributed to them in the Credit Agreement.
2. AMENDMENT. The definition of "Termination Date" contained in Section 1.1
of the Credit Agreement is hereby amended by deleting the date "October 31,
1996" contained therein and inserting in lieu thereof the date "October 30,
1997."
3. REPRESENTATIONS AND WARRANTIES. In order to induce the Lenders to enter
into this Amendment, the Borrower hereby represents and warrants to the Lenders
as of the date of this Amendment that:
(a) There exists no Default or Unmatured Default and the execution of this
Amendment shall not create a Default or Unmatured Default.
(b) The representations and warranties contained in Section 4.1 of the
Credit Agreement are true and correct as of the date of this Agreement.
4. LEGAL EXPENSES. The Borrower agrees to reimburse the Lender for
reasonable legal fees and expenses incurred by attorneys for the Lender (who may
be employees of the Lender) in connection with the preparation, negotiation and
consummation of this Amendment and the transactions contemplated herein.
5. RATIFICATION OF CREDIT AGREEMENT. Except as specifically provided
herein, all of the terms and conditions of the Credit Agreement shall remain in
full force and effect and the Credit Agreement as amended hereby is agreed to,
ratified and confirmed by the Borrower and the Lender in all respects.
6. MISCELLANEOUS.
(a) This Amendment may be executed in counterparts and by the different
parties hereto on separate counterparts each of which, when so executed and
delivered, shall be deemed an original, and all of which taken together shall
constitute one and the same agreement.
(b) This Amendment shall be effective as of the date first above written;
PROVIDED, THAT, the Lender has received executed counterparts of this Amendment
from the Borrower and the Lender.
IN WITNESS WHEREOF, the Borrower and the Lender have executed this
Amendment as of the date first above written.
EXPRESS SCRIPTS, INC.
By:___________________________
Title:________________________
THE FIRST NATIONAL BANK OF CHICAGO
By:____________________________
Title:_________________________
