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 June 30, 1998.
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 July 31, 1998: 9,284,930 Shares Class A
7,510,000 Shares Class B
<PAGE>
EXPRESS SCRIPTS, INC.
INDEX
Part I Financial Information
Item 1. Financial Statements (unaudited)
a) Consolidated Balance Sheet
b) Consolidated Statement of Operations
c) Consolidated Statement of Changes
in Stockholders' Equity
d) Consolidated Statement of Cash Flows
e) Notes to Consolidated Financial Statements
Item 2. Management's Discussion and Analysis of Financial
Condition and Results of Operations
Item 3. Quantitative and Qualitative Disclosures About
Market Risks - (Not Applicable)
Part II Other Information
Item 1. Legal Proceedings
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
Item 5. Other Information
Item 6. Exhibits and Reports on Form 8-K
Signatures
Index to Exhibits
<PAGE>
PART I. FINANCIAL INFORMATION
ITEM 1. FINANCIAL STATEMENTS
<TABLE>
<CAPTION>
EXPRESS SCRIPTS, INC.
CONSOLIDATED BALANCE SHEET
(UNAUDITED)
JUNE 30, DECEMBER 31,
(IN THOUSANDS, EXCEPT SHARE DATA) 1998 1997
<S> <C> <C>
- --------------------------------- ------------------- --------------------
Assets
Current assets:
Cash and cash equivalents $ 81,944 $ 64,155
Short term investments 57,938
Receivables, less allowance for doubtful
accounts of $26,837 and $4,802 respectively
Unrelated parties 346,655 194,061
Related parties 17,948 16,230
Inventories 41,567 28,935
Deferred taxes and prepaid expenses 50,401 2,649
------------------- --------------------
Total current assets 538,515 363,968
Property and equipment, net 69,794 26,821
Goodwill, net 310,487
251
Other assets 92,289 11,468
------------------- --------------------
Total assets $ 1,011,085 $ 402,508
=================== ====================
Liabilities and Stockholders' Equity
Current liabilities:
Current portion of long term debt $ 27,000 $ -
Claims payable 222,312 153,051
Accounts payable 55,913 17,979
Accrued expenses 146,707 26,876
------------------- --------------------
Total current liabilities 451,932 197,906
Long term debt 333,000 -
Other liabilities 827 901
------------------- --------------------
Total liabilities 785,759 198,807
------------------- --------------------
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, 75,000,000
shares authorized, 9,285,000 and 9,238,000
shares issued and outstanding, respectively 93 93
Class B Common Stock, $.01 par value, 22,000,000
shares authorized, 7,510,000 shares issued
and outstanding 75 75
Additional paid-in capital 109,098 106,901
Foreign currency translation adjustments (46) (27)
Retained earnings 123,095 103,648
------------------- --------------------
232,315 210,690
Class A Common Stock in treasury at cost,
237,500 shares (6,989) (6,989)
------------------- --------------------
Total stockholders' equity 225,326 203,701
------------------- --------------------
Total liabilities and stockholders' equity $ 1,011,085 $ 402,508
=================== ====================
</TABLE>
See accompanying notes to consolidated financial statements
<PAGE>
<TABLE>
<CAPTION>
EXPRESS SCRIPTS, INC.
Consolidated Statement of Operations
(Unaudited)
THREE MONTHS ENDED SIX MONTHS ENDED
JUNE 30, JUNE 30,
-------------------------- ---------------------------
(IN THOUSANDS, EXCEPT SHARE AND 1998 1997 1998 1997
PER SHARE DATA)
<S> <C> <C> <C> <C>
- -------------------------------- ------------ ----------- ------------ ------------
Net revenues $ 807,406 $ 300,515 $ 1,178,768 $ 562,505
------------ ----------- ------------ ------------
Cost and expenses:
Cost of revenues 743,557 274,906 1,082,049 512,204
Selling, general & administrative 39,266 13,733 58,092 27,031
Corporate restructuring expenses 1,651 - 1,651 -
------------ ----------- ------------ ------------
784,474 288,639 1,141,792 539,235
------------ ----------- ------------ ------------
Operating income 22,932 11,876 36,976 23,270
------------ ----------- ------------ ------------
Other income (expense):
Interest income 1,751 1,303 3,889 2,562
Interest expense (6,867) (18) (6,881) (36)
------------ ----------- ------------ ------------
(5,116) 1,285 (2,992) 2,526
------------ ----------- ------------ ------------
Income before income taxes 17,816 13,161 33,984 25,796
Provision for income taxes 8,248 5,030 14,537 10,024
------------ ----------- ------------ ------------
Net income $ 9,568 $ 8,131 $ 19,447 $ 15,772
============ =========== ============ ============
Basic earnings per $ 0.58 $ 0.50 $ 1.18 $ 0.97
============ =========== ============ ============
Weighted average number of common
shares out-standing during the period -
Basic EPS 16,550 16,264 16,538 16,266
============ =========== ============ ============
Diluted earnings per share $ 0.57 $ 0.50 $ 1.16 $ 0.96
============ =========== ============ ============
Weighted average number of common
shares out-standing during the period -
Diluted EPS 16,821 16,476 16,805 16,456
============ =========== ============ ============
</TABLE>
See accompanying notes to consolidated financial statements
<PAGE>
<TABLE>
<CAPTION>
EXPRESS SCRIPTS, INC.
Consolidated Statement of Changes in Stockholders' Equity
(Unaudited)
Number of Shares Amount
---------------- --------------------------------------------------------------------------
Foreign
Class A Class B Class A Class B Additional currency
Common Common Common Common paid-in translation Retained Treasury
(IN THOUSANDS) Stock Stock Stock Stock capital adjustments Earnings Stock Total
<S> <C> <C> <C> <C> <C> <C> <C> <C> <C>
- -------------- ------- ------- ------- ------- --------- ----------- --------- ----------- ---------
Balance at December 31, 1997 9,238 7,510 $ 93 $ 75 $106,901 $ (27) $103,648 $ (6,989) $203,701
Net income for six months
ended June 30, 1998 19,447 19,447
Foreign currency translation
adjustments (19) (19)
Exercise of stock options 47 1,256 1,256
Tax benefit relating to
employee stock options - - - - 941 - - - 941
------- ------- ------- ------- --------- ----------- ---------- ----------- --------
Balance at June 30, 1998 $ 9,285 $ 7,510 $ 93 $ 75 $109,098 $ (46) $ 123,095 $ (6,989) $225,326
======= ======= ======= ======= ========= ============ ========== =========== =========
</TABLE>
See accompanying notes to consolidated financial statements
<PAGE>
<TABLE>
<CAPTION>
EXPRESS SCRIPTS, INC.
CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
SIX MONTHS ENDED
JUNE 30,
-----------------------------------------
(IN THOUSANDS) 1998 1997
<S> <C> <C>
- -------------- ------------------- -------------------
Cash flows from operating activities:
Net income $ 19,447 $ 15,772
Adjustments to reconcile net income to net cash provided by operating
activities:
Depreciation and amortization 10,135 4,496
Tax benefit relating to employee stock options 941 211
Net changes in operating assets and liabilities, net of changes
resulting from acquisition 41,534 (6,223)
------------------- -------------------
Net cash provided by operating activities 72,057 14,256
------------------- -------------------
Cash flows from investing activities:
Purchases of property and equipment (9,244) (8,916)
Acquisition of ValueRx (460,137)
Short term investments 57,938 (2,193)
------------------- -------------------
Net cash (used in) investing activities (411,443) (11,109)
------------------- -------------------
Cash flows from financing activities:
Net proceeds on long term debt 360,000
Deferred financing fees (4,062)
Other, net 1,237 (1,230)
------------------- -------------------
Net cash provided by (used in) financing activities 357,175 (1,230)
------------------- -------------------
Net increase in cash and cash equivalents 17,789 1,917
Cash and cash equivalents at beginning of period 64,155 25,211
------------------- -------------------
Cash and cash equivalents at end of period
$ 81,944 $ 27,128
=================== ===================
</TABLE>
See accompanying notes to consolidated financial statements
<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 included in the Company's Annual Report on Form 10-K for
the Year Ended December 31, 1997, as filed with the Securities and Exchange
Commission on March 26, 1998.
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 June 30, 1998, the Consolidated Statement of Operations for the three
and six months ended June 30, 1998 and 1997, the Consolidated Statement of
Changes in Stockholders' Equity for the six months ended June 30, 1998, and the
Consolidated Statement of Cash Flows for the six months ended June 30, 1998 and
1997.
NOTE 2 - EARNINGS PER SHARE
Statement of Financial Accounting Standards No. 128, "Earnings Per Share"
requires a presentation of both "Basic" earnings per share and "Diluted"
earnings per share. Basic earnings per share represents per share earnings using
the weighted average number of common shares outstanding during the period,
while diluted earnings per share represents per share earnings determined in the
same manner as basic earnings per share but taking into account the number of
additional common shares that would have been outstanding for the period if the
potentially dilutive common shares had been issued. The only difference between
the number of weighted average shares used in the basic and diluted calculation
is stock options granted by the Company using the "treasury stock" method.
NOTE 3 - ACQUISITION
On April 1, 1998 the Company acquired all of the outstanding capital stock
of Value Health, Inc. and Managed Prescriptions Network, Inc. (collectively, the
"Acquired Entities") from Columbia/HCA Healthcare Corporation ("Columbia") for
approximately $460 million in cash (which includes transactions costs of
approximately $15 million), approximately $360 million of which was obtained
through a five-year bank credit facility and the remainder from the Company's
cash balances and short term investments. At closing, the Acquired Entities
owned various subsidiaries that now or formerly conducted a pharmacy benefit
management ("PBM") business, commonly known as "ValueRx".
The acquisition has been accounted for using the purchase method of
accounting and the results of operations of the Acquired Entities have been
included in the consolidated financial statements since April 1, 1998. The
purchase price has been preliminarily allocated based on the estimated fair
values of net assets acquired at the date of the acquisition. The excess of
purchase price over net assets acquired was allocated to other intangible assets
consisting of customer contracts and non-compete agreements in the amount of
$57,653,000 which are being amortized using the straight-line method over the
estimated useful lives of 2 to 20 years and are included in other assets, and
goodwill in the amount of $312,863,000 which is being amortized using the
straight-line method over the estimated useful life of 30 years. In conjunction
with the acquisition, the Acquired Entities and their subsidiaries retained the
following liabilities (amounts in thousands):
Fair value of assets acquired $ 669,898
Cash paid for the capitol stock (460,137)
------------
Liabilities retained $ 209,761
============
The following unaudited pro forma information presents a summary of
combined results of operations of the Company and the Acquired Entities as if
the acquisition had occurred at the beginning of the period presented, along
with certain pro forma adjustments to give effect to amortization of goodwill,
other intangible assets, interest expense on acquisition debt and other
adjustments. The pro forma financial information is not necessarily indicative
of the results of operations as they would have been had the transaction been
effected on the assumed dates. (Amounts in thousands, except per share data)
<TABLE>
<CAPTION>
Six Months Ended
June 30,
1998 1997
<S> <C> <C>
--------------- -------------
Net revenues $1,588,697 $1,379,749
Net income 19,596 16,132
Basic earnings per share 1.18 0.99
Diluted earnings per share 1.17 0.98
</TABLE>
NOTE 4 - FINANCING
On April 1, 1998, the Company executed a $440 million credit facility with
a bank syndicate led by Bankers Trust Company, consisting of a $360 million term
loan facility and an $80 million revolving loan facility. The agreement is for a
period of five years and is guaranteed by the Company's domestic subsidiaries
other than Practice Patterns Science, Inc. ("PPS"), and Great Plains Reinsurance
Company ("Great Plains"), and secured by a pledge of 100% (or, in the case of
its foreign subsidiaries, 65%) of the capital stock of its subsidiaries other
than PPS and Great Plains. The provisions of this loan require quarterly
interest payments and, beginning in April 1999, semi-annual principal payments.
The interest rate is based on a spread over several London Interbank Offered
Rates or base rate options, depending upon the Company's ratio of earnings
before interest, taxes, depreciation and amortization to debt. However, the
initial spread is fixed at 125 basis points for the first two quarters. The
credit agreement contains customary financial covenants, such as interest
coverage, leverage, and consolidated net worth requirements. In addition, the
Company is required to pay an annual fee of 30 basis points, payable in
quarterly installments, on the unused portion of the revolving loan. There were
no borrowings at June 30, 1998 under the revolving loan facility.
The following represents the schedule of current maturities for the term
loan facility (amounts in thousands):
Year Ended
December 31,
1999 $ 54,000
2000 72,000
2001 90,000
2002 96,000
2003 48,000
======================
$ 360,000
======================
In conjunction with the credit facility, the Company entered into an
interest rate swap with The First National Bank of Chicago on April 3, 1998.
Under the terms of the interest rate swap, the Company agrees to receive a
floating rate of interest on the amount of the term loan facility based on a
three month LIBOR rate in exchange for payment of a fixed rate of interest of
5.88% per annum. The notional amount of the swap amortizes in equal amounts with
the principal balance of the term loan. As a result, the Company has, in effect,
converted its variable rate term debt to fixed rate debt at 5.88% per annum for
the entire term of the term loan, plus the Credit Rate Spread.
NOTE 5 - RESTRUCTURING
During the quarter ended June 30, 1998, the Company recorded a pre-tax
restructuring charge of $1,651,000 ($1,002,000 after taxes) associated with the
Company closing the operations of its wholly-owned subsidiary, PhyNet, Inc., and
transferring certain functions of its Express Scripts Vision Corporation to
another vision care provider. The restructuring charge includes $1,235,000 in
impairment write-downs of assets and $416,000 in employee transition costs. As
of June 30, 1998, the Company had not applied any cash or non-cash adjustments
against the restructuring charge.
NOTE 6 - CONTINGENCIES
The Acquired Entities and their subsidiaries were party to various legal
proceedings, investigations or claims at the time of the Company's acquisition.
The effect of these actions on the Company's future financial results is not
subject to reasonable estimation because considerable uncertainty exists about
the outcomes. Nevertheless, in the opinion of management, the ultimate
liabilities resulting from any such lawsuits, investigations or claims now
pending will not materially affect the consolidated financial position, results
of operations or cash flows of the Company. A brief description of the most
notable of these proceedings follows:
BASH, ET AL. V. VALUE HEALTH, INC., ET AL., No. 3:97cv2711 (JCH)(D.Conn.)
("BASH"). On December 15, 1995, a purported shareholder class action lawsuit was
filed by Irwin Bash and Leykin, Hyman & Bash Associates in the United States
District Court for the District of New Mexico against Diagnostek, Inc.
("Diagnostek"), Nunzio P. DeSantis, William Baron, and Courtland Miller (all
former Diagnostek officers). Also named as defendants in BASH are Value Health,
Inc. ("Value Health"), Robert E. Patricelli, William J. McBride and Steven J.
Shulman (certain of Value Health's former officers). The BASH Complaint asserts
that Value Health and certain other defendants made false or misleading
statements to the public in connection with Value Health's acquisition of
Diagnostek in 1995. The BASH Complaint asserts claims under the Securities Act
of 1933 and the Securities Exchange Act of 1934, as well as common law claims,
and seeks certification of a class consisting of all persons (with certain
exclusions) who purchased or otherwise acquired (a) Diagnostek common stock from
March 27, 1994 through July 28, 1995; (b) Value Health common stock pursuant to
a Proxy and Prospectus and merger in which their Diagnostek shares were
converted into Value Health shares; and (c) Value Health common stock from March
27, 1995 through November 7, 1995. The BASH Complaint does not specify the
amount of damages sought. On March 26, 1996, the former Diagnostek officers
filed a motion seeking either dismissal of the case or a transfer to the
District of Connecticut, where the earlier-filed FREEDMAN action (discussed
below) is pending. On May 23, 1996, the court entered an order staying all
discovery in the case until further order of the court. In the late summer of
1997, the BASH plaintiffs filed an Amended Complaint that deleted those
allegations that overlapped with the allegations contained in an earlier lawsuit
filed by the plaintiffs against Diagnostek and certain of its former officers. A
formal order approving the settlement of this earlier lawsuit was entered by the
United States District Court for the District of New Mexico on November 21,
1997. In addition, plaintiffs filed a motion to lift the discovery stay, and
defendants filed a renewed motion to transfer the action to Connecticut. On
October 24, 1997, an answer was filed on behalf of Value Health, Diagnostek, and
the former directors and officers of Value Health who had been named as
defendants. Plaintiffs' motion to lift the discovery stay was denied on October
27, 1997. On November 28, 1997, the New Mexico court entered an order
transferring the action to Connecticut.
On February 4, 1998, the court ordered that plaintiffs in the FREEDMAN
action, discussed below, share all discovery obtained from the defendants and
third parties in their lawsuit with the plaintiffs in the BASH lawsuit, and the
court has requested and received submissions from all parties on the need for
any additional discovery. On April 24, 1998, the court ordered that the
plaintiffs be permitted to take certain limited additional fact discovery, to be
completed by June 22, 1998. The Court has since extended the deadline for
completing this limited additional discovery to August 31, 1998.
On March 17, 1998, the defendants filed a motion to consolidate this
lawsuit with the FREEDMAN lawsuit discussed below, and the court granted the
motion on April 24, 1998.
FREEDMAN, ET AL. V. VALUE HEALTH, INC., ET AL., No. 3:95 CV 2038
(JCH)(D.Conn). On September 22 and 25, 1995, two related lawsuits were filed
against Value Health and certain other defendants in the United States District
Court for the District of Connecticut. On February 16, 1996, a single,
consolidated class action complaint was filed covering both suits (the "FREEDMAN
Complaint"), naming as defendants Value Health, Robert E. Patricelli, William J.
McBride, Steven J. Shulman, David M. Wurzer, David J. McDonnell, Walter J.
McNerny, Rodman W. Moorhead, III, Constance P. Newman, and John L. Vogelstein,
all former Value Health directors and officers, and Nunzio P. DeSantis, the
former president of Diagnostek. The FREEDMAN Complaint alleges that Value Health
and certain other defendants made false or misleading statements to the public
in connection with Value Health's acquisition of Diagnostek in 1995. The
FREEDMAN Complaint asserts claims under the Securities Act of 1933 and the
Securities Exchange Act of 1934, and seeks certification of a class consisting
of all persons (with certain exceptions) who purchased shares of Value Health
common stock during the period March 27, 1995 (the date the Value
Health/Diagnostek merger was announced) through September 19, 1995 (the date
certain adverse developments were disclosed by Value Health). The FREEDMAN
Complaint does not specify the amount of damages sought. On April 8, 1996,
defendants filed motions to dismiss the FREEDMAN Complaint. On March 6, 1997,
the court entered into an order granting in part and denying in part defendants'
motions to dismiss. An answer on behalf of Value Health and the other individual
defendants was filed on March 20, 1997. On July 31, 1998, the plaintiffs filed a
motion for leave to file an amended complaint and a proposed amended complaint
containing additional factual allegations. Oppositions are due to be filed by
August 21, 1998.
Discovery in this action had been stayed while the defendants' motions to
dismiss were pending. The stay was lifted following the court's March 6, 1997
ruling on the motions to dismiss. Pursuant to the court's scheduling order,
non-expert discovery concluded on December 12, 1997, with the exception of the
deposition of Value Health's financial advisor in connection with the merger
with Diagnostek, and the resolution of several discovery motions. All fact
discovery has now been concluded.
On March 17, 1998, the defendants filed a motion to consolidate this
lawsuit with the BASH lawsuit, discussed above, and the motion was granted on
April 24, 1998.
The FREEDMAN plaintiffs originally filed their motion for class
certification on May 8, 1997, and defendants filed their oppositions on August
27, 1997. Thereafter, plaintiffs withdrew their motion, and, under a schedule
approved by the Court, any motions for class certification are to be filed by
August 18, 1998. Expert discovery is to be completed within 115 days of the
Court's decision on plaintiffs' motion for class certification, and any
dispositive motions must be filed within 30 days of the completion of expert
discovery.
In connection with the Company's acquisition, Columbia has agreed to defend
and hold the Company and its affiliates (including Value Health) harmless from
and against any liability that may arise in connection with either of the
foregoing proceedings. Consequently, the Company does not believe it will incur
any material liability in connection with the foregoing matters.
IN THE MATTER OF TRADING IN THE SECURITIES OF VALUE HEALTH, INC. On or
about September 27, 1995, the SEC began an investigation into trading in the
securities of Value Health occurring around the time of the acquisition of
Diagnostek. The SEC has requested information and documentation from Value
Health periodically (most recently in August 1997), but has given no indication
as to its disposition of this matter. As with the BASH and FREEDMAN matters
above, Columbia has agreed to defend and hold the Company and its affiliates
(including Value Health) harmless from and against any liability that may arise
in connection with this matter. Consequently, the Company does not believe it
will incur any material liability in connection herewith.
NOTE 7 - NEW ACCOUNTING PRONOUNCEMENTS
Effective with the first quarter of 1998, the Company adopted Statement of
Financial Accounting Standards Statement 130, "Reporting Comprehensive Income".
The Statement requires noncash changes in stockholders' equity be combined with
net income and reported in a new financial statement category entitled
"comprehensive income." Other than net income, the only component of
comprehensive income for the Company is the change in the foreign currency
translation account.
In June 1997, the FASB issued Statement of Financial Accounting Standards
Statement 131, "Disclosures about Segments of an Enterprise and Related
Information" ("FAS 131"). The Statement requires that the Company report certain
information if specific requirements are met about operating segments of the
Company including information about services, geographic areas of operation and
major customers. FAS 131 is effective for years beginning after December 15,
1997. In most cases, the Company provides integrated PBM services to its
customers under a single contract. These services account for substantially all
of the Company's net revenues on an annual basis. As a result, the Company
believes that the majority of its operations will be in one reportable segment
in 1998.
In June 1998, the FASB issued Statement of Financial Accounting Standards
Statement 133, "Accounting for Derivative Instruments and Hedging Activities"
("FAS 133"). The Statement requires all derivatives be recognized as either
assets or liabilities in the statement of financial position and measure those
instruments at fair value. In addition, the Statement specifies the accounting
for changes in the fair value of a derivative based on the intended use of the
derivative and the resulting designation. FAS 133 is effective for all fiscal
quarters of fiscal years beginning after June 15, 1999 and will be applicable to
the Company's first quarter of fiscal year 2000. The Company's present interest
rate swap (see Note 4 above) would be considered a cash flow hedge. Accordingly,
the change in the fair value of the swap would be reported on the balance sheet
as an asset or liability. The corresponding unrealized gain or loss representing
the effective portion of the hedge will be initially recognized in stockholders'
equity and other comprehensive income, and subsequently any changes in
unrealized gain or loss from the initial measurement date will be recognized in
earnings concurrent with the interest expense on the Company's underlying
variable rate debt. At the present time, it is indeterminable how application of
this Statement will impact the Company's statement of operations.
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, AND INCLUDING STATEMENTS RELATING TO "YEAR 2000" ISSUES. SUCH
FORWARD-LOOKING STATEMENTS NECESSARILY INVOLVE RISKS AND UNCERTAINTIES. THE
COMPANY'S ACTUAL RESULTS MAY DIFFER SIGNIFICANTLY FROM THOSE PROJECTED OR
SUGGESTED IN ANY FORWARD-LOOKING STATEMENTS. FACTORS THAT MIGHT CAUSE SUCH A
DIFFERENCE TO OCCUR INCLUDE, BUT ARE NOT LIMITED TO: RISKS ASSOCIATED WITH THE
CONSUMMATION OF ACQUISITIONS, INCLUDING THE ABILITY TO SUCCESSFULLY INTEGRATE
THE OPERATIONS OF ACQUIRED BUSINESSES WITH THE EXISTING OPERATIONS OF THE
COMPANY AND RISKS INHERENT IN THE ACQUIRED ENTITIES OPERATIONS; HEIGHTENED
COMPETITION, INCLUDING INCREASED PRICE COMPETITION IN THE PHARMACY BENEFIT
MANAGEMENT BUSINESS; THE POSSIBLE TERMINATION OF THE COMPANY'S CONTRACTS WITH
CERTAIN KEY CLIENTS OR PROVIDERS; CHANGES IN PRICING OR DISCOUNT PRACTICES OF
PHARMACEUTICAL MANUFACTURERS; THE ABILITY OF THE COMPANY TO CONSUMMATE CONTRACT
NEGOTIATIONS WITH PROSPECTIVE CLIENTS; COMPETITION IN THE BIDDING AND PROPOSAL
PROCESS; ADVERSE RESULTS IN CERTAIN LITIGATION AND REGULATORY MATTERS; THE
ADOPTION OF ADVERSE LEGISLATION OR REGULATIONS OR A CHANGE IN THE INTERPRETATION
OF EXISTING LEGISLATION OR REGULATIONS; THE IMPACT OF INCREASES IN HEALTH CARE
COSTS AND UTILIZATION PATTERNS; RISKS ASSOCIATED WITH THE DEVELOPMENT OF NEW
PRODUCTS; RISKS ASSOCIATED WITH THE "YEAR 2000" ISSUE, INCLUDING THE ABILITY OF
THE COMPANY TO SUCCESSFULLY CONVERT ITS INFORMATION SYSTEMS AND ITS
NON-INFORMATION SYSTEMS, AND THE ABILITY OF ITS VENDORS/TRADING PARTNERS TO
SUCCESSFULLY CONVERT THEIR SYSTEMS, TO ACCOMMODATE DATES BEYOND DECEMBER 31,
1999; AND OTHER RISKS DESCRIBED FROM TIME TO TIME IN THE COMPANY'S FILINGS WITH
THE COMMISSION. THE COMPANY DOES NOT UNDERTAKE ANY OBLIGATION TO RELEASE
PUBLICLY ANY REVISIONS TO SUCH FORWARD-LOOKING STATEMENTS TO REFLECT EVENTS OR
CIRCUMSTANCES AFTER THE DATE HEREOF OR TO REFLECT THE OCCURRENCE OF
UNANTICIPATED EVENTS.
COMPANY OVERVIEW
The Company is a leading specialty managed care company and believes it is
the largest full-service pharmacy benefit management ("PBM") company independent
of pharmaceutical manufacturer ownership in North America. The Company provides
healthcare management and administration services on behalf of thousands of
clients that include health maintenance organizations ("HMO's"), health
insurers, third-party administrators, employers and union-sponsored benefit
plans. The Company's PBM services are provided to 22.7 million members in the
United States and Canada enrolled in health plans sponsored by the Company's
clients through a network of more than 50,000 retail pharmacies, which
represents more than 99% percent of all retail pharmacies in the United States
and five mail-order pharmacy service centers owned and operated by the Company.
The Company's PBM services include network claims processing, mail-order
pharmacy services, benefit design consultation, drug utilization review,
formulary management, disease management and medical and drug data analysis
services. The Company also provides medical information management services,
which include provider profiling and outcome assessments, through its Practice
Patterns Science, Inc. ("PPS") subsidiary, infusion therapy services through its
IVTx division ("IVTx"), and informed decision counseling services through its
Express Health Linesm division.
Prior to 1998, the Company's growth had primarily been through the
generation of sales to new clients, internal growth of the membership base of
existing clients, and development and sale of new products and services to
existing clients. Future growth will be affected by the Company's continued
focus on the above factors, along with acquisitions and alliance opportunities.
On April 1, 1998, the Company consummated its first major acquisition by
acquiring the PBM operations of Columbia/HCA Healthcare Corporation
("Columbia"), commonly known as ValueRx. Specifically, the Company acquired all
of the outstanding capital stock of Value Health, Inc. and Managed Prescription
Network, Inc., the sole assets of which at closing were various subsidiaries
each now or formerly conducting business as a PBM, including ValueRx Pharmacy
Program, Inc., for approximately $460 million in cash, which includes
transaction costs of approximately $15 million. The acquisition is being
accounted for under the purchase method of accounting. As such, the Company's
operating results include those of ValueRx from April 1, 1998. The net assets
acquired have been recorded at their estimated fair value, resulting in $313
million of goodwill which is being amortized over 30 years.
The acquisition provides the Company with additional resources and
expertise, which will allow the Company to better serve its clients and
competitively pursue new business in all segments of the market. Historically,
while both the Company and ValueRx have served all segments of the market for
PBM services, the Company primarily focused on managed care and smaller
self-funded plan sponsors and ValueRx concentrated on health insurance carriers
and large employer and union groups. As a result of the acquisition, the Company
now has a strong presence in all market segments.
As of July 1, 1998, the Company serves approximately 22.7 million members
compared to 11.6 million members at June 30, 1997, which represents an increase
of 95.7%. The growth in membership is due to the ValueRx acquisition and the
Company's ability to attract an additional net 0.7 million members during the
second quarter of 1998.
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 June 30,
1998 compared to 1997 and the six months ended June 30, 1998 compared to 1997.
<TABLE>
<CAPTION>
Percentage of Net Revenue Percentage Increase (Decrease)
------------------------------------------- -----------------------------------------
Three Months Ended Six Months Ended Three Months Ended Six Months Ended
June 30, June 30, June 30, 1998 Over June 30, 1998 Over
------------------- -------------------
1998 1997 1998 1997 1997 1997
<S> <C> <C> <C> <C> <C> <C>
--------- -------- -------- --------- ------------------ -------------------
Net revenues:
Unrelated clients 91.5% 83.7% 88.6% 83.2% 193.6% 123.1%
Related clients (1) 8.5% 16.3% 11.4% 16.8% 40.7% 42.2%
=================== ===================
Total net revenues 100.0% 100.0% 100.0% 100.0% 168.7% 109.6%
=================== ===================
Cost and expenses:
Cost of revenues 92.1% 91.4% 91.8% 91.1% 170.5% 111.3%
Selling, general and 4.9% 4.6% 4.9% 4.8% 185.9% 114.9%
administrative
Corporate restructuring 0.2% - 0.2% - nm nm
expense
------------------- -------------------
97.2% 96.0% 96.9% 95.9% 171.8% 111.7%
------------------- -------------------
Operating income 2.8% 4.0% 3.1% 4.1% 93.1% 58.9%
Other income (expense), net (0.6%) 0.4% (0.2%) 0.5% (498.1%) (218.4%)
------------------- -------------------
Income before income taxes 2.2% 4.4% 2.9% 4.6% 35.4% 31.7%
Provision for income taxes 1.0% 1.7% 1.2% 1.8% 64.0% 45.0%
=================== ===================
Net income 1.2% 2.7% 1.7% 2.8% 17.7% 23.3%
=================== ===================
nm = not meaningful
<FN>
(1) Related clients consist of NYLCare Health Plans, Inc., and its
subsidiaries ("NYLCare"), wholly-owned subsidiaries of New York Life Insurance
Company ("NYL"), which were sold to Aetna U.S. Healthcare, Inc. ("Aetna"), an
unrelated party, on or about July 15, 1998. See "Other Matters" below.
</FN>
</TABLE>
SECOND QUARTER ENDED JUNE 30, 1998 COMPARED TO 1997 (AMOUNTS IN THOUSANDS,
EXCEPT SHARE AND PER SHARE DATA)
NET REVENUES
Net revenues for PBM services increased $502,418, or 173.6%, compared to
the second quarter of 1997 due primarily to increased membership resulting from
the acquisition of ValueRx and to a lesser extent due to the Company's ability
to retain existing clients and attract new clients. The increased membership
base resulted in the number of pharmacy claims processed (which includes network
pharmacy claims and mail order pharmacy claims at their network pharmacy claim
equivalent of one mail order pharmacy claim to three network pharmacy claims)
increasing 80.9% from the second quarter of 1997.
The average net revenue per pharmacy claim (which includes network pharmacy
claims and mail order pharmacy claims at their network pharmacy claim equivalent
as calculated and described above) increased 50.9% from the second quarter of
1997. This increase is primarily due to the following factors: (1) a larger
number of customers using retail pharmacy networks established by the Company
rather than retail pharmacy networks established by the Company's customers; (2)
higher drug ingredient costs resulting from changes in therapeutic mix and
dosage, increases in product acquisition costs for existing drugs, and new drugs
introduced into the marketplace; and (3) the termination of a mail order
"inventory replacement program" maintained for a large client during the second
quarter of 1997. Increases in revenue from these factors were partially offset
by lower pricing offered by the Company in response to continued competitive
pressures.
When customers use one of the Company's retail pharmacy networks, the drug
ingredient cost, the dispensing fee and the Company's administrative fee are
recorded as revenue, and the resulting cost is recorded in cost of revenue. For
customers that contract their own retail pharmacy network, the Company only
records its administrative fees as revenue. The number of customers using retail
pharmacy networks established by the Company was significantly enhanced this
quarter due to the acquisition of ValueRx, as substantially all ValueRx
customers use the retail pharmacy networks established by ValueRx. As a result
of this shift, gross margin percentages are reduced but the amount of the gross
margin is not materially affected.
Under the inventory replacement program offered in 1997, the customer
provided drug inventory to replenish drugs used by the Company to fill mail
service prescriptions for members of the customer's plan and the Company
included only its dispensing fee as net revenue. In the second quarter of 1998,
all mail pharmacy clients utilized the Company's standard program in which the
Company purchases the inventory used to fill the prescriptions and, therefore,
includes the ingredient cost as well as the dispensing fee in net revenue. This
change had the effect of increasing both revenue and cost of revenue in the
second quarter of 1998 compared to 1997, but there was no significant effect on
the Company's reported gross margin for the second quarter of 1998 from the
conversion to the standard program.
Of the Company's net revenues from PBM services, 7.8% was for services
provided to members of HMO's owned or managed by NYLCare or insurance policies
administered by NYLCare. As of July 15, 1998, NYLCare was sold to Aetna and is
no longer a related party to the Company.
Net revenues for non-PBM services increased $4,473, or 40.3%, compared to
the second quarter of 1997 primarily due to the continued growth in the number
of members and/or clients who receive these services and the Company's ability
to develop new products and services. Of the Company's net revenues for non-PBM
services, 45.1% was for services provided to members of HMO's owned or managed
by NYLCare or insurance policies administered by NYLCare.
COST OF REVENUES
Cost of revenues for PBM services increased $465,073, or 174.2%, compared
to the second quarter of 1997. As a percentage of PBM services net revenue, cost
of revenues increased only 0.2 percentage points over the second quarter of
1997. The increase in PBM services cost of revenues is primarily due to (1) the
shift towards pharmacy networks established by the Company, as opposed to those
established by its clients, (2) higher drug ingredient costs, and (3)
termination of an inventory replacement program, as discussed above for "Net
Revenues," along with the lower gross margins realized from the large employer
market segment, due to the competitive nature of that segment.
Cost of revenues for non-PBM services increased $3,578, or 45.0%, compared
to the second quarter of 1997 primarily due to costs related to the continued
expansion of these operations and a change in the product mix sold during the
second quarter of 1998.
SELLING, GENERAL AND ADMINISTRATIVE
Selling, general and administrative expenses increased $25,533, or 185.9%,
compared to the second quarter of 1997. As a percentage of total net revenues,
selling, general and administrative expenses increased only 0.3 percentage
points for the second quarter of 1998 over the second quarter of 1997. The
increase is primarily attributable to the ValueRx acquisition (including
amortization of goodwill and other intangible assets associated with the ValueRx
acquisition, and expenses associated with the integration of ValueRx) and the
additional expenditures required to expand the operational and administrative
support functions to enhance management of the pharmacy benefit.
During the second quarter, the Company undertook the integration of ValueRx
in an effort to reduce operating costs as a percentage of sales, excluding
depreciation and amortization expense. The Company has combined the executive,
legal, and other administrative functions, and is coordinating the sales,
marketing and customer service strategies. In addition, a computer systems
integration plan for finance, billing and remittances, receivables, clinical
functions, and client reporting has been developed and is in the process of
being implemented. Integration goals for the third and fourth quarters of fiscal
1998 include the combination of existing contracts and contracting procedures
related to both suppliers and providers; initial integration of computer
platforms and systems; and the consolidation of financial operations. Except for
systems development costs, the Company is expensing integration costs as
incurred.
Excluding depreciation and amortization of $5,304 and $1,159 for the second
quarter of 1998 and 1997, respectively, selling, general and administrative
expenses, as a percentage of total net revenues, remained constant.
CORPORATE RESTRUCTURING EXPENSES
On June 17, 1998, the Company announced that it had reached an agreement
with Cole Managed Vision ("Cole"), a subsidiary of Cole National Corporation,
pursuant to which Cole will provide certain vision care services for the
Company's clients and their members. The agreement enables the Company to focus
on its PBM business while still offering a vision care service to its members by
transferring certain functions performed by its Express Scripts Vision
Corporation to Cole, effective September 1, 1998. In conjunction with the
agreement, the Company also announced plans to close the operations of its
wholly-owned subsidiary, PhyNet, Inc. As a result, the Company recorded a
one-time restructuring charge of $1,651, comprised of asset write-downs of
$1,235 and expected employee transition cash payments of $416.
OTHER INCOME (EXPENSE)
For the second quarter of 1998, the Company recorded net other expenses of
$5,116, compared to net other income of $1,285, for the second quarter of 1997.
The movement to other expense from other income is due to interest expense of
$6,867 in the second quarter of 1998 related to the acquisition debt.
PROVISION FOR INCOME TAXES
The provision for income taxes for the second quarter of 1998 was $8,248
compared to $5,030 for the second quarter of 1997. The effective tax rate
increased to 46.3% for the second quarter of 1998 compared to 38.2% for the
second quarter of 1997, primarily due to the addition of non-deductible goodwill
and other intangible assets amortization expense derived from the ValueRx
acquisition.
NET INCOME
As a result of the foregoing, net income for the second quarter ended June
30, 1998, increased $1,437, or 17.7%, compared to 1997. Excluding the after-tax
one-time restructuring charge for the managed vision business, net income for
the second quarter ended June 30, 1998 increased $2,439, or 30.0%, compared to
1997.
EARNINGS PER SHARE
The Company reported basic earnings per share of $0.58 in the second
quarter of 1998 compared to $0.50 in 1997, a 16.0% increase. The weighted
average number of shares used in the calculation was 16,550,000 in 1998 and
16,264,000 in 1997. Diluted earnings per share was $0.57 in the second quarter
of 1998 compared to $0.50 in 1997, a 14.0% increase. The weighted average number
of shares used in the calculation was 16,821,000 in 1998 and 16,476,000 in 1997.
Excluding the after-tax one-time restructuring charge for the managed
vision business, basic earnings per share and diluted earnings per share would
have been $0.64 and $0.63, or an increase of 28.0% and 26.0%, respectively.
SIX MONTHS ENDED JUNE 30, 1998, COMPARED TO 1997
NET REVENUES
Net revenues for PBM services increased $607,518, or 112.1%, compared to
the first six months of 1997 due primarily to increased membership resulting
from the acquisition of ValueRx and to a lesser extent due to the Company's
ability to retain existing clients and attract new clients. The increased
membership resulted in the number of pharmacy claims processed (which includes
network pharmacy claims and mail order pharmacy claims at their network pharmacy
claim equivalent, as calculated and described above) increasing 46.8% over 1997.
The average net revenue per pharmacy claim (which includes network pharmacy
claims and mail order pharmacy claims at their network pharmacy claim
equivalent, as calculated and described above) increased 44.2% from the first
six months of 1997. This increase is primarily due to the same factors discussed
in the "Net Revenues" section of the SECOND QUARTER ENDED JUNE 30, 1998 COMPARED
TO 1997, with the exception of the termination of an additional "inventory
replacement program" maintained for a large client during the first quarter of
1997.
Of the Company's net revenues for PBM services, 10.5% was for services
provided to members of HMO's owned or managed by NYLCare or insurance policies
administered by NYLCare.
Net revenues for non-PBM services increased $8,745, or 42.5%, compared to
the first six months of 1997 primarily due to the continued growth in the number
of members and/or clients who receive these services and the Company's ability
to develop new products and services. Of the Company's net revenues for non-PBM
services, 46.0% was for services provided to members of HMO's owned or managed
by NYLCare or insurance policies administered by NYLCare.
COST OF REVENUES
Cost of revenues for PBM services increased $563,012, or 113.2%, compared
to the first six months of 1997. As a percentage of PBM services net revenue,
cost of revenues increased 0.5 percentage points over the first six months of
1997. The increase in PBM services cost of revenues is primarily due to the same
factors discussed in the "Cost of Revenues" section of the SECOND QUARTER ENDED
JUNE 30, 1998 COMPARED TO 1997.
Cost of revenues for non-PBM services increased $6,833, or 46.1%, compared
to the first six months of 1997 primarily due to costs related to the continued
expansion of these operations and a change in the product mix sold during the
first six months of 1998.
SELLING, GENERAL AND ADMINISTRATIVE
Selling, general and administrative expenses increased $31,061, or 114.9%,
compared to the first six months of 1997. As a percentage of total net revenues,
selling, general and administrative expenses increased only 0.1 percentage point
for the first six months of 1998 over the same period in 1997. The increase is
primarily attributable to the ValueRx acquisition (including amortization of
goodwill and other intangible assets associated with the ValueRx acquisition,
and expenses associated with the integration of ValueRx) and the additional
expenditures required to expand the operational and administrative support
functions to enhance management of the pharmacy benefit.
Excluding depreciation and amortization of $6,287 and $2,061 for the first
six months of 1998 and 1997, respectively, selling, general and administrative
expenses, as a percentage of total net revenues, remained constant.
CORPORATE RESTRUCTURING EXPENSES
On June 17, 1998, the Company announced that it had reached an agreement
with Cole Managed Vision ("Cole"), a subsidiary of Cole National Corporation,
pursuant to which Cole will provide certain vision care services for the
Company's clients and their members. The agreement enables the Company to focus
on its PBM business while still offering a vision care service to its members by
transferring certain functions performed by its Express Scripts Vision
Corporation to Cole, effective September 1, 1998. In conjunction with the
agreement, the Company also announced plans to close the operations of its
wholly-owned subsidiary, PhyNet, Inc. As a result, the Company recorded a
one-time restructuring charge of $1,651, comprised of asset write-downs of
$1,235 and expected employee transition cash payments of $416.
OTHER INCOME (EXPENSE)
For the first six months of 1998, the Company recorded net other expenses
of $2,992, compared to net other income of $2,526, for the same period in 1997.
The movement to other expense from other income is due to interest expense of
$6,867 incurred during the first six months of 1998 relating to the acquisition
debt.
PROVISION FOR INCOME TAXES
The provision for income taxes for the first six months of 1998 was $14,537
compared to $10,024 for the same period in 1997. The effective tax rate has
increased to 42.8% for the first six months of 1998 compared to 38.9% for the
same period in 1997, primarily due to the addition of non-deductible goodwill
and other intangible assets amortization expense derived from the ValueRx
acquisition.
NET INCOME
As a result of the foregoing, net income for the six months ended June 30,
1998, increased $3,675, or 23.3%, compared to 1997. Excluding the after-tax
one-time restructuring charge for the managed vision business, net income for
the six months ended June 30, 1998 increased $4,677, or 29.7%, compared to 1997.
EARNINGS PER SHARE
The Company reported basic earnings per share of $1.18 for the first six
months of 1998 compared to $0.97 in 1997, a 21.6% increase. The weighted average
number of shares used in the calculation was 16,538,000 in 1998 and 16,266,000
in 1997. Diluted earnings per share was $1.16 for the first six months of 1998
compared to $0.96 in 1997, a 20.8% increase. The weighted average number of
shares used in the calculation was 16,805,000 in 1998 and 16,456,000 in 1997.
Excluding the after-tax one-time restructuring charge for the managed
vision business, basic earnings per share and diluted earnings per share would
have been $1.24 and $1.22, or an increase of 27.8% and 27.1%, respectively.
LIQUIDITY AND CAPITAL RESOURCES (AMOUNTS IN THOUSANDS, EXCEPT SHARE DATA)
During the first six months of 1998 the Company generated $72,100 of cash
flow from operations compared to $14,300 for the same period in 1997. This cash
generation includes the operations of ValueRx after April 1, 1998 and is the
result of management's continued emphasis on the collection of accounts
receivable balances, the management of inventories, and the management of
payables to vendors and retail pharmacy providers. Management expects to fund
its future anticipated capital expenditures, debt service, integration costs,
"Year 2000" costs, and other normal operating cash needs primarily with
operating cash flow.
During the first quarter of 1998, the Company negotiated a $440,000 credit
facility with a bank syndicate led by Bankers Trust Company. The five-year
agreement became effective April 1, 1998, and includes a $360,000 term loan
facility and an $80,000 revolving loan facility; the term loan proceeds were
utilized to consummate the acquisition of ValueRx from Columbia on April 1,
1998. The Company's obligations are guaranteed by the Company's domestic
subsidiaries other than PPS, and Great Plains Reinsurance Company ("Great
Plains"), and secured by a pledge of 100% (or, in the case of its foreign
subsidiaries, 65%) of the capital stock of its subsidiaries other than PPS and
Great Plains. The provisions of this credit facility require quarterly interest
payments and, beginning in April 1999, semi-annual principal payments of $27,000
increasing to $36,000 in April 2000, to $45,000 in April 2001, and to $48,000 in
April 2002. The interest rate is based on a spread (the "Credit Rate Spread")
over several London Interbank Offered Rates or base rate options, depending upon
the Company's ratio of earnings before interest, taxes, depreciation and
amortization to debt. However, the initial spread is fixed at 125 basis points
for the first two quarters. The credit agreement also contains customary
financial covenants, such as interest coverage, leverage, and consolidated net
worth requirements. In addition, the Company is required to pay an annual fee of
30 basis points, payable in quarterly installments, on the unused portion of the
revolving loan. Contemporaneously with the execution of the new credit
agreement, the Company canceled its $25,000 line of credit with Mercantile Bank
of St. Louis on March 31, 1998.
To alleviate interest rate volatility in connection with the
above-described credit facility, the Company entered into an interest rate swap
arrangement, effective April 3, 1998, with The First National Bank of Chicago
agreeing to receive a floating rate of interest on the amount of the term loan
facility based on a three month LIBOR rate in exchange for payment of a fixed
rate of interest of 5.88% per annum. The notional amount of the swap amortizes
in equal amounts with the principal balance of the term loan. As a result, the
Company has, in effect, converted its variable rate term debt to fixed rate debt
at 5.88% per annum for the entire term of the term loan, plus the Credit Rate
Spread.
As of June 30, 1998, the Company had repurchased a total of 237,500 shares
of its Class A Common Stock under the open-market stock repurchase program
announced by the Company on October 25, 1996, although no repurchases occurred
during the first six months of 1998. The Company's Board of Directors approved
the repurchase of up to 850,000 shares, and placed no limit on the duration of
the program. Future purchases, if any, will be in such amounts and at such times
as the Company deems appropriate based upon prevailing market and business
conditions, subject to certain restrictions in the credit agreement described
above.
The Company has reviewed and currently intends to continue to review
potential acquisitions and affiliation opportunities. The Company believes that
available cash resources, bank financing or the issuance of additional common
stock could be used to finance such acquisitions or affiliations. The Company
consummated the acquisition of ValueRx on April 1, 1998; however, there can be
no assurance the Company will make other acquisitions or affiliations in 1998.
OTHER MATTERS
The Company previously announced that ESI Canada, Inc., the Company's
Canadian subsidiary, will provide PBM services to First Canada Health Management
Corporation, Inc., a subsidiary of Aetna Life Insurance Company of Canada for
640,000 registered Indians and Inuit of Canada. These services are now expected
to commence on December 1, 1998 and run through November 30, 2003; the change
has been caused by delays in the implementation of the dental and medical
benefits by parties unrelated to the Company.
On March 16, 1998, the Company announced that, in connection with the
consummation of the sale by NYL of NYLCare to Aetna (which occurred on July 15,
1998), the Company and Aetna had reached an agreement to extend the Company's
HMO PBM services and infusion therapy services agreements through December 31,
2003. The existing PBM contract pricing is effective through December 31, 1999,
and thereafter certain pricing adjustments (which the Company believes reflect
an appropriate market price) will be instituted for the year 2000 and subsequent
periods. The Company will continue providing PBM services to 1.4 million HMO
members after the acquisition is consummated, which is comparable to the NYLCare
HMO membership base currently served by the Company. The infusion therapy
agreements are extended under their current terms until December 31, 2000, and
thereafter limited price adjustments may take effect under certain
circumstances. The existing agreements for managed vision care and informed
decision counseling will continue until December 31, 1999. The Company will also
continue to provide PBM services to members of the NYLCare Indemnity programs
until such members are converted to new health insurance policies. In connection
with the Aetna arrangement, the Company and NYL have reached an agreement in
principle whereby NYL may make certain transition-related payments to the
Company in 1999. This agreement is subject to the approval of the Audit
Committee of the Company's Board of Directors. The overall impact of this
arrangement on earnings per share is not expected to be material in 1998 or
1999.
Effective with the first quarter of 1998, the Company adopted Statement of
Financial Accounting Standards Statement 130, "Reporting Comprehensive Income".
The Statement requires noncash changes in stockholders' equity be combined with
net income and reported in a new financial statement category entitled
"comprehensive income." Other than net income, the only component of
comprehensive income for the Company is the change in the foreign currency
translation account.
In June 1997, the FASB issued Statement of Financial Accounting Standards
Statement 131, "Disclosures about Segments of an Enterprise and Related
Information" ("FAS 131"). The Statement requires that the Company report certain
information if specific requirements are met about operating segments of the
Company including information about services, geographic areas of operation and
major customers. FAS 131 is effective for years beginning after December 15,
1997. The Company provides integrated PBM services to its customers under a
single contract. These services account for substantially all of the Company's
net revenues on an annual basis. As a result, the Company believes that the
majority of its operations will be in one reportable segment in 1998.
In June 1998, the FASB issued Statement of Financial Accounting Standards
Statement 133, "Accounting for Derivative Instruments and Hedging Activities"
("FAS 133"). The Statement requires all derivatives be recognized as either
assets or liabilities in the statement of financial position and measure those
instruments at fair value. In addition, the Statement specifies the accounting
for changes in the fair value of a derivative based on the intended use of the
derivative and the resulting designation. FAS 133 is effective for all fiscal
quarters of fiscal years beginning after June 15, 1999 and will be applicable to
the Company's first quarter of fiscal year 2000. The Company's present interest
rate swap (see "Liquidity and Capital Resources") would be considered a cash
flow hedge. Accordingly, the change in the fair value of the swap would be
reported on the balance sheet as an asset or liability. The corresponding
unrealized gain or loss representing the effective portion of the hedge will be
initially recognized in stockholders' equity and other comprehensive income and
subsequently any changes in unrealized gain or loss from the initial measurement
date will be recognized in earnings concurrent with the interest expense on the
Company's underlying variable rate debt. At the present time, it is
indeterminable how application of this Statement will impact the Company's
statement of operations.
YEAR 2000 INFORMATION SYSTEMS ISSUES
The Company's operations rely heavily on information systems technology. In
1995, the Company began addressing the "Year 2000" issue which, in short, refers
to the inability of certain computer systems to properly recognize calendar
dates beyond December 31, 1999. This arises as a result of systems having been
programmed with two-digits rather than four-digits to define the applicable year
in order to conserve computer storage space, reduce the complexity of
calculations and produce better performance. The two-digit system may cause
computers to interpret the years "00" as "1900" rather than as "2000", which may
cause system failures or produce incorrect results when dealing with
date-sensitive information beyond the year 1999.
The Company has performed a self-assessment and has developed a compliance
plan that addresses (i) internally developed application software, (ii) vendor
developed application software, (iii) operating system software, (iv) utility
software, (v) vendor/trading partner-supplied files, (vi) externally provided
data or transactions, (vii) non-information technology devices that are material
to the Company's business, and (viii) adherence to applicable industry
standards. Progress in each area is monitored and management reports are given
periodically. In addition, all new internally developed software is being
created to be "Year 2000" compliant. Management expects all critical systems to
be "Year 2000" tested and compliant by mid-1999.
In addressing the Year 2000 issue, the Company will incur internal staff
costs as well as external consulting and other expenses related to
infrastructure enhancements necessary to prepare its systems for the new
century. The Company does not believe the costs associated with addressing the
"Year 2000" issue, which are being expensed as incurred, will be material to the
Company's results of operations or financial condition. In addition, the Company
believes that, with appropriate modifications to existing computer systems,
updates by vendors and trading partners, and conversion to new software in the
ordinary course of its business, the "Year 2000" problem will not pose
significant operational problems for the Company. However, if such conversions
are not completed in a proper and timely manner by all affected parties, the
"Year 2000" issue could result in material adverse operational and financial
consequences to the Company, and there can be no assurance that the Company's
efforts, or those of vendors and trading partners, to address the "Year 2000"
issue will be successful. The Company is in the process of formalizing its
contingency plans to address potential risks, including risks of vendor/trading
partners noncompliance, as well as noncompliance of any of the Company's
material operations.
IMPACT OF INFLATION
Changes in prices charged by manufacturers and wholesalers for
pharmaceuticals affect the Company's net revenues 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
had a significant adverse affect on the Company.
<PAGE>
PART II. OTHER INFORMATION
Item 1. LEGAL PROCEEDINGS.
The Company acquired all of the outstanding capital stock of Value Health,
Inc., a Delaware corporation Value Health, and Managed Prescription Network,
Inc., a Delaware corporation ("MPN") from Columbia HCA/HealthCare Corporation
("Columbia") and its affiliates on April 1, 1998 (the "Acquisition"). Value
Health, MPN and/or their subsidiaries (collectively, the "Acquired Entities"),
were party to various legal proceedings, investigations or claims at the time of
the Acquisition. The effect of these actions on the Company's future financial
results is not subject to reasonable estimation because considerable uncertainty
exists about the outcomes. Nevertheless, in the opinion of management, the
ultimate liabilities resulting from any such lawsuits, investigations or claims
now pending will not materially affect the consolidated financial position,
results of operations or cash flows of the Company. A brief description of the
most notable of these proceedings follows:
BASH, ET AL. V. VALUE HEALTH, INC., ET AL., No. 3:97cv2711 (JCH)(D.Conn.)
("BASH"). On December 15, 1995, a purported shareholder class action lawsuit was
filed by Irwin Bash and Leykin, Hyman & Bash Associates in the United States
District Court for the District of New Mexico against Diagnostek, Inc.
("Diagnostek"), Nunzio P. DeSantis, William Baron, and Courtland Miller (all
former Diagnostek officers). Also named as defendants in BASH are Value Health,
Robert E. Patricelli, William J. McBride and Steven J. Shulman (certain of Value
Health's former officers). The BASH Complaint asserts that Value Health and
certain other defendants made false or misleading statements to the public in
connection with Value Health's acquisition of Diagnostek in 1995. The Bash
Complaint asserts claims under the Securities Act of 1933 and the Securities
Exchange Act of 1934, as well as common law claims, and seeks certification of a
class consisting of all persons (with certain exclusions) who purchased or
otherwise acquired (a) Diagnostek common stock from March 27, 1994 through July
28, 1995; (b) Value Health common stock pursuant to a Proxy and Prospectus and
merger in which their Diagnostek shares were converted into Value Health shares;
and (c) Value Health common stock from March 27, 1995 through November 7, 1995.
The BASH Complaint does not specify the amount of damages sought. On March 26,
1996, the former Diagnostek officers filed a motion seeking either dismissal of
the case or a transfer to the District of Connecticut, where the earlier-filed
FREEDMAN action (discussed below) is pending. On May 23, 1996, the court entered
an order staying all discovery in the case until further order of the court. In
the late summer of 1997, the BASH plaintiffs filed an Amended Complaint that
deleted those allegations that overlapped with the allegations contained in an
earlier lawsuit filed by the plaintiffs against Diagnostek and certain of its
former officers. A formal order approving the settlement of this earlier lawsuit
was entered by the United States District Court for the District of New Mexico
on November 21, 1997. In addition, plaintiffs filed a motion to lift the
discovery stay, and defendants filed a renewed motion to transfer the action to
Connecticut. On October 24, 1997, an answer was filed on behalf of Value Health,
Diagnostek, and the former directors and officers of Value Health who had been
named as defendants. Plaintiffs' motion to lift the discovery stay was denied on
October 27, 1997. On November 28, 1997, the New Mexico court entered an order
transferring the action to Connecticut.
On February 4, 1998, the court ordered that plaintiffs in the FREEDMAN
action, discussed below, share all discovery obtained from the defendants and
third parties in their lawsuit with the plaintiffs in the BASH lawsuit, and the
court has requested and received submissions from all parties on the need for
any additional discovery. On April 24, 1998, the court ordered that the
plaintiffs be permitted to take certain limited additional fact discovery, to be
completed by June 22, 1998. The Court has since extended the deadline for
completing this limited additional discovery to August 31, 1998.
On March 17, 1998, the defendants filed a motion to consolidate this
lawsuit with the FREEDMAN lawsuit discussed below, and the court granted the
motion on April 24, 1998.
FREEDMAN, ET AL. V. VALUE HEALTH, INC., ET AL., No. 3:95 CV 2038
(JCH)(D.Conn). On September 22 and 25, 1995, two related lawsuits were filed
against Value Health and certain other defendants in the United States District
Court for the District of Connecticut. On February 16, 1996, a single,
consolidated class action complaint was filed covering both suits (the "FREEDMAN
Complaint"), naming as defendants Value Health, Robert E. Patricelli, William J.
McBride, Steven J. Shulman, David M. Wurzer, David J. McDonnell, Walter J.
McNerny, Rodman W. Moorhead, III, Constance P. Newman, and John L. Vogelstein,
all former Value Health directors and officers, and Nunzio P. DeSantis, the
former president of Diagnostek. The FREEDMAN Complaint alleges that Value Health
and certain other defendants made false or misleading statements to the public
in connection with Value Health's acquisition of Diagnostek in 1995. The
FREEDMAN Complaint asserts claims under the Securities Act of 1933 and the
Securities Exchange Act of 1934, and seeks certification of a class consisting
of all persons (with certain exceptions) who purchased shares of Value Health
common stock during the period March 27, 1995 (the date the Value
Health/Diagnostek merger was announced) through September 19, 1995 (the date
certain adverse developments were disclosed by Value Health). The FREEDMAN
Complaint does not specify the amount of damages sought. On April 8, 1996,
defendants filed motions to dismiss the FREEDMAN Complaint. On March 6, 1997,
the court entered into an order granting in part and denying in part defendants'
motions to dismiss. An answer on behalf of Value Health and the other individual
defendants was filed on March 20, 1997. On July 31, 1998, the plaintiffs filed a
motion for leave to file an amended complaint and a proposed amended complaint
containing additional factual allegations. Oppositions are due to be filed by
August 21, 1998.
Discovery in this action had been stayed while the defendants' motions to
dismiss were pending. The stay was lifted following the court's March 6, 1997
ruling on the motions to dismiss. Pursuant to the court's scheduling order,
non-expert discovery concluded on December 12, 1997, with the exception of the
deposition of Value Health's financial advisor in connection with the merger
with Diagnostek, and the resolution of several discovery motions. All fact
discovery has now been concluded.
On March 17, 1998, the defendants filed a motion to consolidate this
lawsuit with the BASH lawsuit, discussed above, and the motion was granted on
April 24, 1998.
The FREEDMAN plaintiffs originally filed their motion for class
certification on May 8, 1997, and defendants filed their oppositions on August
27, 1997. Thereafter, plaintiffs withdrew their motion, and, under a schedule
approved by the Court, any motions for class certification are to be filed by
August 18, 1998. Expert discovery is to be completed within 115 days of the
Court's decision on plaintiffs' motion for class certification, and any
dispositive motions must be filed within 30 days of the completion of expert
discovery.
In connection with the Acquisition, Columbia has agreed to defend and hold
the Company and its affiliates (including Value Health) harmless from and
against any liability that may arise in connection with either of the foregoing
proceedings. Consequently, the Company does not believe it will incur any
material liability in connection with the foregoing matters.
IN THE MATTER OF TRADING IN THE SECURITIES OF VALUE HEALTH, INC. On or
about September 27, 1995, the SEC began an investigation into trading in the
securities of Value Health occurring around the time of the acquisition of
Diagnostek. The SEC has requested information and documentation from Value
Health periodically (most recently in August 1997), but has given no indication
as to its disposition of this matter. As with the BASH and FREEDMAN matters
above, Columbia has agreed to defend and hold the Company and its affiliates
(including Value Health) harmless from and against any liability that may arise
in connection with this matter. Consequently, the Company does not believe it
will incur any material liability in connection herewith.
Item 4. SUBMISSION OF MATTERS TO A VOTE OF SECURITY HOLDERS
(a) The annual meeting of stockholders was held on May 27, 1998.
(b) The following persons were elected directors of the Company to serve
until the next Annual Meeting of Stockholders and until their respective
successors are elected and qualified:
Howard Atkins
Judith E. Campbell
Richard M. Kernan, Jr.
Richard A. Norling
Frederick J. Sievert
Stephen N. Steinig
Seymour Sternberg
Barrett A. Toan
Howard L. Waltman
Norman Zachary
(c) The stockholder vote for each director was as follows:
<TABLE>
<CAPTION>
Votes Votes
Cast For Withheld
<S> <C> <C>
-------------- --------------
Howard Atkins 82,995,603 135,146
Judith E. Campbell 82,996,973 133,776
Richard M. Kernan, Jr. 82,996,973 133,776
Richard A. Norling 82,996,973 133,776
Frederick J. Sievert 82,996,973 133,776
Stephen N. Steinig 82,996,973 133,776
Seymour Sternberg 82,996,973 133,776
Barrett A. Toan 82,996,973 133,776
Howard L. Waltman 82,996,973 133,776
Norman Zachary 82,996,973 133,776
</TABLE>
The stockholders also voted to:
(1) Approve the Second Amendment to the Company's Amended and Restated 1994
Stock Option Plan (81,254,246 affirmative votes; 354,117 negative votes; 24,625
abstention votes);
(2) Approve an Amendment to the Company's Certificate of Incorporation to
increase the number of authorized shares of Class A Common Stock to 75,000,000
(Class A Votes: 7,154,417 affirmative votes; 854,364 negative votes; 21,968
abstention votes; Class B Votes: 75,100,000 affirmative votes; 0 negative votes;
0 abstention votes; Total Votes: 82,254,417 affirmative votes; 854,364 negative
votes; 21,968 abstention votes); and
(3) Ratify the appointment of Price Waterhouse as the Company's independent
accountants for the Company's current fiscal year (83,112,658 affirmative votes;
7,265 negative votes; 10,826 abstention votes).
Item 5. OTHER INFORMATION.
In accordance with the Bylaws of the Company, a stockholder who at any
annual meeting of stockholders of the Company intends to nominate a person for
election as a director or present a proposal must so notify the Secretary of the
Company, in writing, describing such nominee(s) or proposal and providing
information concerning such stockholder and the reasons for and interest of such
stockholder in the proposal. Generally, to be timely, such notice must be
received by the Secretary during the 30 day period that ends 60 days before the
anniversary of the prior years' annual meeting. The Company's last annual
meeting was held May 27, 1998, so any such notice must be received between
February 26, 1999, and March 28, 1999, to be considered timely for purposes of
the 1999 Annual Meeting. Any person interested in making such a nomination or
proposal should request a copy of the relevant Bylaw provisions from the
Secretary of the Company. These time periods also apply in determining whether
notice is timely for purposes of rules adopted by the Securities and Exchange
Commission relating to exercise of discretionary voting authority, and are
separate from and in addition to the Securities and Exchange Commission's
requirements that a stockholder must meet to have a proposal included in the
Company's proxy statement. Stockholder proposals intended to be presented at the
1999 Annual Meeting must be received by the Company no later than December 24,
1998, in order to be eligible for inclusion in the Company's proxy statement and
proxy relating to that meeting. Upon receipt of any proposal, the Company will
determine whether to include such proposal in accordance with regulations
governing the solicitation of proxies.
Item 6. EXHIBITS AND REPORTS ON FORM 8-K.
(a) EXHIBITS. See Index to Exhibits on page 18.
(b) REPORTS ON FORM 8-K.
(i) On April 14, 1998, the Company filed a Current Report on Form 8-K
regarding its acquisition of ValueRx, the pharmacy benefit management business
of Columbia/HCA Healthcare Corporation.
(ii) On May 5, 1998, the Company filed a Current Report on Form 8-K
regarding a press release issued on behalf of the Company concerning its first
quarter 1998 financial performance.
(iii) On June 12, 1998, the Company filed an amendment to the Current
Report on Form 8-K filed on April 14, 1998, regarding its acquisition of
ValueRx, the pharmacy benefit management business of Columbia/HCA Healthcare
Corporation, to include the following financial statements required therein:
(A) The following financial statements of Value Health Pharmacy Benefit
Management (as defined in the 8-K/A):
(1) Report of Independent Auditors - Ernst & Young LLP
(2) Combined Balance Sheet as of December 31, 1997
(3) Combined Statements of Operations Predecessor Basis - January 1, 1997
to July 31, 1997; Successor Basis - August 1, 1997 to December 31, 1997
(4) Combined Statements of Changes in Stockholder's Equity Predecessor
Basis - January 1, 1997 to July 31, 1997; Successor Basis - August 1, 1997 to
December 31, 1997
(5) Combined Statements of Cash Flows Predecessor Basis - January 1, 1997
to July 31, 1997; Successor Basis - August 1, 1997 to December 31, 1997
(6) Notes to Combined Financial Statements
(B) The following financial statements of Value Health Pharmacy Benefit
Management (as defined in the 8-K/A):
(7) Report of Independent Accountants - Coopers & Lybrand L.L.P.
(8) Combined Balance Sheet as of December 31, 1996
(9) Combined Statements of Operations for the Years Ended December 31, 1996
and 1995
(10) Combined Statements of Cash Flows for the Years Ended December 31,
1996 and 1995
(11) Notes to Combined Financial Statements
(C) The following financial statements of Managed Prescription Network,
Inc. d/b/a Columbia Pharmacy Solutions:
(1) Report of Independent Auditors - Ernst & Young LLP
(2) Balance Sheets as of December 31, 1997 and 1996
(3) Statements of Operations and Retained Earnings (Deficit) for the Years
Ended December 31, 1997, 1996, and 1995
(4) Statements of Cash Flows for the Years Ended December 31, 1997, 1996,
and 1995
(5) Notes to Financial Statements
(D) The following unaudited consolidated condensed pro forma financial
statements:
(1) Unaudited Consolidated Condensed Pro Forma Statement of Operations for
the Year Ended December 31, 1997
(2) Notes to the Unaudited Consolidated Condensed Pro Forma Statement of
Operations
(3) Unaudited Consolidated Condensed Pro Forma Balance Sheet as of December
31, 1997
(4) Notes to the Unaudited Consolidated Condensed Pro Forma Balance Sheet
<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: August 10, 1998 By: /s/ Barrett A. Toan
Barrett A. Toan, President and
Chief Executive Officer
Date: August 10, 1998 By: /s/ George Paz
George Paz, Senior Vice
President and Chief
Financial Officer
<PAGE>
INDEX TO EXHIBITS
(Express Scripts, Inc. - Commission File Number 0-20199)
Exhibit
NUMBER EXHIBIT
2.1 Stock Purchase Agreement by and among Columbia/HCA Healthcare
Corporation, VH Holdings, Inc., Galen Holdings, Inc. and Express
Scripts, Inc., dated as of February 19, 1998, and
certain related Schedules, incorporated by reference to Exhibit No. 2.1
to the Company's Current Report on Form 8-K filed March 2, 1998.
2.2 First Amendment to Stock Purchase Agreement by and among Columbia/HCA
Healthcare Corporation, VH Holdings, Inc., Galen Holdings, Inc. and
Express Scripts, Inc., dated as of March 31, 1998, and related Exhibits
incorporated by reference to Exhibit No. 2.1 to the
Company's Current Report on Form 8-K filed April 14, 1998.
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. 3.3 to the Company's Quarterly Report on Form 10-Q for the quarter
ending September 30, 1997.
4.1 Form of Certificate for Class A Common Stock, incorporated by reference
to Exhibit No. 4.1 to the Registration Statement.
10.1* Credit Agreement dated as of April 1, 1998 among the Company, the
Lenders listed therein and Bankers Trust Company, as Agent (the "Credit
Agreement").
10.2* Company Pledge Agreement dated as of April 1, 1998 by the Company in
favor of the Lenders listed in the Credit Agreement and Bankers Trust
Company, as Agent.
10.3* Form of Subsidiary Guaranty dated as of April 1, 1998 in favor of
the Lenders listed in the Credit Agreement and Bankers Trust
Company, as Agent, by the following parties: Express Scripts
Vision Corporation, PhyNet, Inc., IVTx, Inc., IVTx of Dallas,
Inc., IVTx of Houston, Inc., ESI Canada Holdings, Inc., ESI
Canada, Inc., Value Health, Inc., Managed Prescription Network,
Inc., Prescription Drug Service, Inc., RxNet, Inc. of California,
Denali Associates, Inc., ValueRx Northeast, Inc., MedCounter,
Inc., Health Care Services, Inc., ValueRx, Inc., Cost Containment
Corp. of America, Diagnostek, Inc., MedIntell Systems
Corporation, ValueRx Pharmacy Program, Inc., ValueRx of Michigan,
Inc., Diagnostek Pharmacy Services, Inc., Diagnostek Pharmacy,
Inc., Diagnostek of Springfield, Inc., IPH, Inc., and MHI, Inc.
10.4* Form of Subsidiary Pledge Agreement dated as of April 1, 1998 in
favor of the Lenders listed in the Credit Agreement and Bankers
Trust Company, as Agent, by the following parties: ESI Canada
Holdings, Inc., Value Health, Inc., ValueRx, Inc., Diagnostek,
Inc., ValueRx Pharmacy Program, Inc., Diagnostek Pharmacy
Services, Inc., and IPH, Inc.
10.5* First Amendment to Company Pledge Agreement dated as of April 24, 1998,
by the Company by the Company in favor of the Lenders listed in the
Credit Agreement and Bankers Trust Company, as Agent.
10.6* International Swap Dealers Association, Inc. Master Agreement dated as
of April 3, 1998, between the Company and The First National Bank of
Chicago.
10.7* Lease Agreement dated as of June 12, 1989, between Michael D. Brockelman
and James S. Gratton, as Trustees under agreement dated April 17, 1980,
and Health Care Services, Inc., an indirect subsidiary of the Company.
10.8* Lease Agreement dated as of March 22, 1996, between Ryan
Construction Company of Minnesota, Inc., and ValueRx Pharmacy
Program, Inc., an indirect subsidiary of the Company.
10.9+ Form of Severance Agreement, between the Company and each of the
following individuals: Patrick J. Byrne (agreement dated as of
May 29, 1998), Michael S. Flagstad (agreement dated as of April
1, 1998), and Jean-Marc Quach (agreement dated as of May 18,
1998); the form is incorporated by reference to Exhibit No. 10.70
to the Company's Annual Report on Form 10-K for the year ending
December 31, 1997.
27.1* Financial Data Schedule (provided for the information of the U.S.
Securities and Exchange Commission only).
* Filed herein.
+ Management contract or compensatory plan or arrangement.
<TABLE> <S> <C>
<ARTICLE> 5
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1998
<PERIOD-END> JUN-30-1998
<CASH> 81,944
<SECURITIES> 0
<RECEIVABLES> 391,440
<ALLOWANCES> 26,837
<INVENTORY> 41,567
<CURRENT-ASSETS> 538,515
<PP&E> 97,739
<DEPRECIATION> 27,945
<TOTAL-ASSETS> 1,011,085
<CURRENT-LIABILITIES> 451,932
<BONDS> 0
0
0
<COMMON> 168
<OTHER-SE> 225,158
<TOTAL-LIABILITY-AND-EQUITY> 1,011,085
<SALES> 807,406
<TOTAL-REVENUES> 807,406
<CGS> 743,557
<TOTAL-COSTS> 743,557
<OTHER-EXPENSES> 39,266
<LOSS-PROVISION> 1,651
<INTEREST-EXPENSE> 6,867
<INCOME-PRETAX> 17,816
<INCOME-TAX> 8,248
<INCOME-CONTINUING> 9,568
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 9,568
<EPS-PRIMARY> .58
<EPS-DILUTED> .57
</TABLE>
EXHIBIT 10.1
CREDIT AGREEMENT
DATED AS OF APRIL 1, 1998
AMONG
EXPRESS SCRIPTS, INC.,
A DELAWARE CORPORATION,
AS BORROWER,
THE LENDERS LISTED HEREIN,
AS LENDERS,
AND
BANKERS TRUST COMPANY,
AS AGENT
<PAGE>
EXPRESS SCRIPTS, INC.
CREDIT AGREEMENT
TABLE OF CONTENTS
SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS
UNDER AGREEMENT;FISCAL PERIODS FOR DETERMINING COMPLIANCE AND
PRICING
1.3 OTHER DEFINITIONAL PROVISIONS AND RULES OF CONSTRUCTION
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; MAKING OF LOANS; THE REGISTER; NOTES
2.2 INTEREST ON THE LOANS
2.3 FEES 35
2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN
COMMITMENTS; GENERAL PROVISIONS REGARDING PAYMENTS
2.5 USE OF PROCEEDS
2.6 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY
2.8 OBLIGATION OF LENDERS AND ISSUING LENDERS TO MITIGATE; REPLACEMENT
SECTION 3. LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF
PARTICIPATIONS THEREIN
3.2 LETTER OF CREDIT FEES
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS PAID UNDER LETTERS OF CREDIT
3.4 OBLIGATIONS ABSOLUTE
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDERS' DUTIES
3.6 INCREASED COSTS AND TAXES RELATING TO LETTERS OF CREDIT
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
4.1 CONDITIONS TO TERM LOANS AND INITIAL REVOLVING LOANS AND SWING
LINE LOANS
4.2 CONDITIONS TO ALL LOANS
4.3 CONDITIONS TO LETTERS OF CREDIT
SECTION 5. COMPANY'S REPRESENTATIONS AND WARRANTIES
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES
5.2 AUTHORIZATION OF BORROWING, ETC.
5.3 FINANCIAL CONDITION
5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR PAYMENTS
5.5 TITLE TO PROPERTIES; LIENS
5.6 LITIGATION; ADVERSE FACTS
5.7 PAYMENT OF TAXES
5.8 PERFORMANCE OF AGREEMENTS; MATERIALLY ADVERSE AGREEMENTS; MATERIAL
CONTRACTS
5.9 GOVERNMENTAL REGULATION; ACCREDITATION
5.10 SECURITIES ACTIVITIES
5.11 EMPLOYEE BENEFIT PLANS
5.12 CERTAIN FEES
5.13 ENVIRONMENTAL PROTECTION
5.14 EMPLOYEE MATTERS
5.15 SOLVENCY
5.16 MATTERS RELATING TO COLLATERAL
5.17 DISCLOSURE
5.18 ACCURACY OF REPRESENTATIONS AND WARRANTIES IN THE DEFINITIVE
ACQUISITION DOCUMENTS
5.19 YEAR 2000 COMPLIANCE
SECTION 6. COMPANY'S AFFIRMATIVE COVENANTS
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS
6.2 CORPORATE EXISTENCE, ETC.
6.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION
6.4 MAINTENANCE OF PROPERTIES; INSURANCE
6.5 INSPECTION RIGHTS; LENDER MEETING
6.6 COMPLIANCE WITH LAWS, ETC.
6.7 ENVIRONMENTAL CLAIMS AND VIOLATIONS OF ENVIRONMENTAL LAWS
6.8 EXECUTION OF SUBSIDIARY GUARANTY AND COLLATERAL DOCUMENTS BY
CERTAIN SUBSIDIARIES AND FUTURE SUBSIDIARIES
6.9 YEAR 2000 COMPLIANCE
SECTION 7. COMPANY'S NEGATIVE COVENANTS
7.1 INDEBTEDNESS
7.2 LIENS AND RELATED MATTERS
7.3 INVESTMENTS; JOINT VENTURES
7.4 CONTINGENT OBLIGATIONS
7.5 RESTRICTED JUNIOR PAYMENTS
7.6 FINANCIAL COVENANTS
7.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS
7.8 CONSOLIDATED CAPITAL EXPENDITURES
7.9 FISCAL YEAR
7.10 SALES AND LEASE-BACKS
7.11 SALE OR DISCOUNT OF RECEIVABLES
7.12 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES
7.13 DISPOSAL OF SUBSIDIARY STOCK
7.14 CONDUCT OF BUSINESS
SECTION 8. EVENTS OF DEFAULT
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE
8.2 DEFAULT IN OTHER AGREEMENTS
8.3 BREACH OF CERTAIN COVENANTS
8.4 BREACH OF WARRANTY
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
8.8 JUDGMENTS AND ATTACHMENTS
8.9 DISSOLUTION
8.10 EMPLOYEE BENEFIT PLANS
8.11 CHANGE IN CONTROL
8.12 INVALIDITY OF SUBSIDIARY GUARANTY; FAILURE OF SECURITY;
REPUDIATION OF OBLIGATIONS
8.13 FAILURE TO CONSUMMATE THE ACQUISITION
Section 9. AGENT
9.1 Appointment
9.2 Powers and Duties; General Immunity
9.3 Representations and Warranties; No Responsibility For Appraisal of
Creditworthiness
9.4 Right to Indemnity
9.5 Successor Agent and Swing Line Lender
9.6 Collateral Documents and Guaranties
SECTION 10. MISCELLANEOUS
10.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND LETTERS OF CREDIT
10.2 EXPENSES
10.3 INDEMNITY
10.4 SET-OFF
10.5 RATABLE SHARING
10.6 AMENDMENTS AND WAIVERS
10.7 INDEPENDENCE OF COVENANTS
10.8 NOTICES
10.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS
10.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE
10.11 MARSHALLING; PAYMENTS SET ASIDE
10.12 SEVERABILITY
10.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS
10.14 HEADINGS
10.15 APPLICABLE LAW
10.16 SUCCESSORS AND ASSIGNS
10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS
10.18 WAIVER OF JURY TRIAL
10.19 CONFIDENTIALITY
10.20 COUNTERPARTS; EFFECTIVENESS
<PAGE>
EXPRESS SCRIPTS, INC.
CREDIT AGREEMENT
This CREDIT AGREEMENT is dated as of April 1, 1998 and entered into by and
among EXPRESS SCRIPTS, INC., a Delaware corporation ("COMPANY"), THE FINANCIAL
INSTITUTIONS LISTED ON THE SIGNATURE PAGES HEREOF (each individually referred to
herein as a "LENDER" and collectively as "LENDERS"), and BANKERS TRUST COMPANY
("BTCO"), as administrative agent for Lenders (in such capacity, "AGENT").
R E C I T A L S
WHEREAS, Company intends to acquire (the "ACQUISITION") all of the
outstanding capital stock of (i) Value Health, Inc., the sole assets and
liabilities of which at the time of the Acquisition are those relating to the
outpatient pharmacy benefit management businesses operated under the name
ValueRx, and (ii) Managed Prescription Network, Inc., the sole assets and
liabilities of which at the time of the Acquisition are those relating to the
outpatient pharmacy benefit management business now or formerly operated under
the name of "Columbia Pharmacy Solutions" (collectively with Value Health, Inc.,
"VALUERX") from direct and indirect wholly-owned Subsidiaries of Columbia/HCA
Healthcare Corporation ("SELLER");
WHEREAS, Company desires that Lenders extend certain credit facilities to
Company to finance a portion of the purchase price of ValueRx in connection with
the Acquisition and for working capital and other general corporate purposes;
WHEREAS, the proceeds of the Term Loans, together with approximately $105
million in cash on hand at Company, will be used (i) to pay the purchase price
of $445 million (subject to adjustment) to Seller and (ii) to pay fees and
expenses of approximately $20 million in connection with the Acquisition;
WHEREAS, Company desires to secure all of the Obligations hereunder and
under the other Loan Documents by granting to Agent, on behalf of Lenders, a
pledge of all of the capital stock of each of its domestic Subsidiaries,
excluding Practice Patterns Science, Inc., Great Plains Reinsurance Company and
other Subsidiaries consented to by the Requisite Lenders from time to time (the
"EXEMPT SUBSIDIARIES"), and 65% of the stock of its foreign Subsidiaries; and
WHEREAS, all of the domestic Subsidiaries of Company, excluding the Exempt
Subsidiaries, have agreed to guarantee the Obligations hereunder and under the
other Loan Documents and to secure their guaranties by granting to Agent, on
behalf of Lenders, a pledge of all of the capital stock of each of their
domestic Subsidiaries, excluding the Exempt Subsidiaries, and 65% of the stock
of all foreign Subsidiaries.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Company, Lenders and Agent agree as
follows:
SECTION 1.........DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the following
meanings:
"ACQUIRED ENTITIES" has the meaning assigned to that term in the Stock
Purchase Agreement dated as of February 19, 1998 by and among Company,
Columbia/HCA Healthcare Corporation, VH Holding, Inc. and Galen Holdings, Inc.
"ACQUISITION" has the meaning assigned to that term in the recitals to this
Agreement.
"ADJUSTED EURODOLLAR RATE" means, for any Interest Rate Determination Date
with respect to an Interest Period for a Eurodollar Rate Loan, the rate per
annum obtained by dividing (i) (A) the rate appearing on Page 3750 of the Dow
Jones Market Screen (or on any successor or substitute page of such service, or
any successor to or substitute for such service, providing rate quotations
comparable to those currently provided on such page of such service, as
determined by Agent from time to time for purposes of providing quotations of
interest rates applicable to dollar deposits in the interbank market) at
approximately 11:00 a.m., London time, on the Interest Rate Determination Date,
as the rate for dollar deposits with a maturity comparable to such Interest
Period or (B) if such rate is not available at such time for any reason, the
offered quotation to first class banks in the interbank Eurodollar market by
BTCo for U.S. dollar deposits of amounts in same day funds comparable to the
principal amounts of the Eurodollar Rate Loans of BTCo for which the Adjusted
Eurodollar Rate is then being determined with maturities comparable to such
Interest Period as of approximately 10:00 A.M. (New York time) on such Interest
Rate Determination Date BY (ii) a percentage equal to 100% MINUS the stated
maximum rate of all reserve requirements (including, without limitation, any
marginal, emergency, supplemental, special or other reserves) applicable on such
Interest Rate Determination Date to any member bank of the Federal Reserve
System in respect of "Eurocurrency liabilities" as defined in Regulation D (or
any successor category of liabilities under Regulation D).
"AFFECTED LENDER" has the meaning assigned to that term in subsection 2.6C.
"AFFILIATE", as applied to any Person, means any other Person directly or
indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise.
"AGENT" has the meaning assigned to that term in the introduction to this
Agreement and also means and includes any successor Agent appointed pursuant to
subsection 9.5A.
"AGREEMENT" means this Credit Agreement dated as of April 1, 1998, as it
may be amended, supplemented or otherwise modified from time to time.
"ASSET SALE" means the sale by Company or any of its Subsidiaries to any
Person other than Company or any of its wholly-owned Subsidiaries of (i) any of
the stock of any of Company's Subsidiaries, (ii) substantially all of the assets
of any division or line of business of Company or any of its Subsidiaries, or
(iii) any other assets (whether tangible or intangible) of Company or any of its
Subsidiaries (other than (a) inventory sold in the ordinary course of business
and (b) any such other assets to the extent that the aggregate value of such
assets sold in any single transaction or related series of transactions is equal
to $300,000 or less); PROVIDED, THAT, with respect to any sale that would be
otherwise deemed an Asset Sale pursuant to the foregoing, if Company shall
deliver an Officers' Certificate to Agent at or prior to receipt of proceeds of
such sale setting forth Company's intent to use such proceeds to replace assets
that would be included in "property, plant and equipment" reflected in the
consolidated balance sheet of Company and its Subsidiaries ("PLANT ASSETS") that
are the subject of such sale with other plant assets necessary or desirable for
the conduct of its business, or to exchange plant assets for other plant assets
used in the conduct of its business within 180 days of such receipt and no Event
of Default or Potential Event of Default shall have occurred and shall be
continuing at such time, such sale shall not be deemed to constitute an Asset
Sale, except to the extent not so used within such 180 day period, after which
time such sale, to such extent, shall be deemed an Asset Sale.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement in substantially the
form of EXHIBIT X annexed hereto.
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"BASE RATE" means, at any time, the higher of (i) the Prime Rate or (ii)
the rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate.
"BASE RATE LOANS" means Loans bearing interest at rates determined by
reference to the Base Rate as provided in subsection 2.2A.
"BTCO" has the meaning assigned to that term in the introduction to this
Agreement.
"BUSINESS DAY" means any day excluding Saturday, Sunday and any day which
is a legal holiday under the laws of the State of New York or the State of
Missouri or is a day on which banking institutions located in either such State
are authorized or required by law or other governmental action to close.
"CAPITAL LEASE", as applied to any Person, means any lease of any property
(whether real, personal or mixed) by that Person as lessee that, in conformity
with GAAP, is accounted for as a capital lease on the balance sheet of that
Person.
"CASH" means money, currency or a credit balance in a demand, time,
savings, passbook or like account, other than an account evidenced by a
negotiable certificate of deposit.
"CASH EQUIVALENTS" means, as at any date of determination, (i) marketable
securities (a) issued or directly and unconditionally guaranteed as to interest
and principal by the United States Government or (b) issued by any agency of the
United States the obligations of which are backed by the full faith and credit
of the United States, in each case maturing within one year after such date;
(ii) marketable direct obligations issued by any state of the United States of
America or any political subdivision of any such state or any public
instrumentality thereof, in each case maturing within one year after such date
and having, at the time of the acquisition thereof, the highest rating
obtainable from either Standard & Poor's Ratings Group ("S&P") or Moody's
Investors Service, Inc. ("MOODY'S"); (iii) commercial paper maturing no more
than one year from the date of creation thereof and having, at the time of the
acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
Moody's; (iv) certificates of deposit or bankers' acceptances maturing within
one year after such date and issued or accepted by any Lender or by any
commercial bank organized under the laws of the United States of America or any
state thereof or the District of Columbia that (a) is at least "adequately
capitalized" (as defined in the regulations of its primary Federal banking
regulator) and (b) has Tier 1 capital (as defined in such regulations) of not
less than $100,000,000; and (v) shares of any money market mutual fund that (a)
has at least 95% of its assets invested continuously in the types of investments
referred to in clauses (i) and (ii) above, (b) has net assets of not less than
$500,000,000, and (c) has the highest rating obtainable from either S&P or
Moody's.
"CERTIFICATE RE NON-BANK STATUS" means a certificate substantially in the
form of Exhibit XI annexed hereto delivered by a Lender to Agent pursuant to
subsection 2.7B(iii).
"CLOSING DATE" means the date on which the initial Loans are made.
"COLLATERAL" means, collectively, all of the property (including capital
stock) in which Liens are purported to be granted pursuant to the Collateral
Documents as security for the Obligations.
"COLLATERAL DOCUMENTS" means the Company Pledge Agreement, the Subsidiary
Pledge Agreements, and all other instruments or documents delivered by any Loan
Party pursuant to this Agreement or any of the other Loan Documents in order to
grant to Agent, on behalf of Lenders, a Lien on property of that Loan Party as
security for the Obligations.
"COMMITMENTS" means the commitments of Lenders to make Loans as set forth
in subsection 2.1A.
"COMPANY" has the meaning assigned to that term in the introduction to this
Agreement.
"COMPANY PLEDGE AGREEMENT" means the Company Pledge Agreement executed and
delivered by Company on the Closing Date, substantially in the form of EXHIBIT
XII annexed hereto, as such Company Pledge Agreement may thereafter be amended,
supplemented or otherwise modified from time to time.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form of
EXHIBIT VII annexed hereto delivered to Agent and Lenders by Company pursuant to
subsection 6.1(iii).
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the aggregate of
all expenditures (whether paid in cash or other consideration or accrued as a
liability and including that portion of Capital Leases which is capitalized on
the consolidated balance sheet of Company and its Subsidiaries) by Company and
its Subsidiaries during that period that, in conformity with GAAP, are included
in "additions to property, plant or equipment" or comparable items reflected in
the consolidated statement of cash flows of Company and its Subsidiaries MINUS
(i) the aggregate of all trade-in allowances and proceeds received by Company
and its Subsidiaries during that period for the exchange of plant assets owned
by Company, as described in the definition of the term "Asset Sale" and (ii) up
to $15,000,000 for the cost of integrating the computer systems of ValueRx and
Company to the extent capitalized in the first 18 months after the Closing Date.
"CONSOLIDATED EBITDA" means, for any period, the sum of the amounts for
such period of (i) Consolidated Net Income, (ii) Consolidated Interest Expense,
(iii) provisions for taxes based on income, (iv) total depreciation expense, (v)
total amortization expense, (vi) other non-cash items incurred in the ordinary
course of business reducing Consolidated Net Income and (vii), for any period
that includes Fiscal Quarters ending on or prior to March 31, 1999, retention
bonuses in an aggregate amount up to $8,000,000 to the extent actually paid to
key employees of ValueRx LESS other non-cash items increasing Consolidated Net
Income, all of the foregoing as determined on a consolidated basis for Company
and its Subsidiaries in conformity with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP and capitalized interest) of Company and its Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness of Company and
its Subsidiaries, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance financing
and net costs under Interest Rate Agreements, but excluding, however, any
amounts referred to in subsection 2.3 payable to Agent and Lenders on or before
the Closing Date.
"CONSOLIDATED LEVERAGE RATIO" means the ratio of (i) Consolidated Total
Debt as of the last day of any period to (ii) Consolidated EBITDA for the
four-Fiscal Quarter period ending as of such day, subject to subsection 1.2B.
"CONSOLIDATED NET INCOME" means, for any period, the net income (or loss)
of Company and its Subsidiaries on a consolidated basis for such period taken as
a single accounting period determined in conformity with GAAP; PROVIDED that
there shall be excluded (i) the income (or loss) of any Person (other than a
Subsidiary of Company) in which any other Person (other than Company or any of
its Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Company or any of its
Subsidiaries by such Person during such period, (ii) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of Company or is merged
into or consolidated with Company or any of its Subsidiaries or that Person's
assets are acquired by Company or any of its Subsidiaries, (iii) the income of
any Subsidiary of Company to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary, (iv) any after-tax gains or losses attributable
to Asset Sales or returned surplus assets of any Pension Plan, and (v) (to the
extent not included in clauses (i) through (iv) above) any net extraordinary
gains, net non-cash extraordinary losses or up to $1,000,000 of cash
extraordinary losses relating to restructuring charges in connection with
Vision.
"CONSOLIDATED NET WORTH" means, as at any date of determination, the sum of
the capital stock and additional paid-in capital plus retained earnings (or
minus accumulated deficits) of Company and its Subsidiaries on a consolidated
basis determined in conformity with GAAP.
"CONSOLIDATED TOTAL DEBT" means, as at any date of determination, the
aggregate stated balance sheet amount of all Indebtedness of Company and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"CONTINGENT OBLIGATION", as applied to any Person, means any direct or
indirect liability, contingent or otherwise, of that Person (i) with respect to
any Indebtedness, lease, dividend or other obligation of another if the primary
purpose or intent thereof by the Person incurring the Contingent Obligation is
to provide assurance to the obligee of such obligation of another that such
obligation of another will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect thereof, (ii)
with respect to any letter of credit issued for the account of that Person or as
to which that Person is otherwise liable for reimbursement of drawings, or (iii)
under Hedge Agreements. Contingent Obligations shall include (a) the direct or
indirect guaranty, endorsement (otherwise than for collection or deposit in the
ordinary course of business), co-making, discounting with recourse or sale with
recourse by such Person of the obligation of another, (b) the obligation to make
take-or-pay or similar payments if required regardless of non-performance by any
other party or parties to an agreement, and (c) any liability of such Person for
the obligation of another through any agreement (contingent or otherwise) (X) to
purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise) or (Y) to maintain the solvency or any balance sheet item, level
of income or financial condition of another if, in the case of any agreement
described under subclauses (X) or (Y) of this sentence, the primary purpose or
intent thereof is as described in the preceding sentence. The amount of any
Contingent Obligation shall be equal to the amount of the obligation so
guaranteed or otherwise supported or, if less, the amount to which such
Contingent Obligation is specifically limited.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any Security
issued by that Person or any material indenture, mortgage, deed of trust,
contract, undertaking, agreement or other instrument to which that Person is a
party or by which it or any of its properties is bound or to which it or any of
its properties is subject.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency swap
agreement, futures contract, option contract, synthetic cap or other similar
agreement or arrangement to which Company or any of its Subsidiaries is a party.
"DEFINITIVE ACQUISITION DOCUMENTS" has the meaning assigned to that term in
subsection 4.1L of this Agreement.
"DOLLARS" and the sign "$" mean the lawful money of the United States of
America.
"ELIGIBLE ASSIGNEE" means (A) (i) a commercial bank organized under the
laws of the United States or any state thereof; (ii) a savings and loan
association or savings bank organized under the laws of the United States or any
state thereof; (iii) a commercial bank organized under the laws of any other
country or a political subdivision thereof; PROVIDED that (x) such bank is
acting through a branch or agency located in the United States or (y) such bank
is organized under the laws of a country that is a member of the Organization
for Economic Cooperation and Development or a political subdivision of such
country; and (iv) any other entity which is an "accredited investor" (as defined
in Regulation D under the Securities Act) which extends credit or buys loans as
one of its businesses including insurance companies, mutual funds and lease
financing companies; and (B) any Lender and any Affiliate of any Lender;
PROVIDED that no Affiliate of Company shall be an Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as defined in
Section 3(3) of ERISA which is or was maintained or contributed to by Company,
any of its Subsidiaries or any of their respective ERISA Affiliates.
"ENVIRONMENTAL CLAIM" means any investigation, notice, notice of violation,
claim, action, suit, proceeding, demand, abatement order or other order or
directive (conditional or otherwise), in each case in writing, by any
governmental authority or any other Person, arising (i) pursuant to or in
connection with any actual or alleged violation of any Environmental Law, (ii)
in connection with any Hazardous Materials, or (iii) in connection with any
actual or alleged damage, injury, threat or harm to health or safety, as
relating to the environment, natural resources or the environment.
"ENVIRONMENTAL LAWS" means any and all current or future statutes,
ordinances, orders, rules, regulations, judgments, Governmental Authorizations,
or any other binding requirements of governmental authorities relating to (i)
environmental matters, (ii) any activity, event or occurrence involving
Hazardous Materials, or (iii) occupational safety and health, industrial
hygiene, land use or, as relating to the environment, the protection of human,
plant or animal health or welfare, in any manner applicable to Company or any of
its Subsidiaries or any Facility, including the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. ss. 9601 ET SEQ.), the
Hazardous Materials Transportation Act (49 U.S.C. ss. 1801 ET SEQ.), the
Resource Conservation and Recovery Act (42 U.S.C. ss. 6901 ET SEQ.), the Federal
Water Pollution Control Act (33 U.S.C. ss. 1251 ET SEQ.), the Clean Air Act (42
U.S.C. ss. 7401 ET SEQ.), the Toxic Substances Control Act (15 U.S.C. ss. 2601
ET SEQ.), the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C.
ss.136 ET SEQ.), the Occupational Safety and Health Act (29 U.S.C. ss. 651 ET
SEQ.), the Oil Pollution Act (33 U.S.C. ss. 2701 ET SEQ) and the Emergency
Planning and Community Right-to-Know Act (42 U.S.C. ss. 11001 ET SEQ.), each As
amended or supplemented, any analogous present or future state or local statutes
or laws, and any regulations promulgated pursuant to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto.
"ERISA AFFILIATE" means, as applied to any Person, (i) any corporation
which is a member of a controlled group of corporations within the meaning of
Section 414(b) of the Internal Revenue Code of which that Person is a member;
(ii) any trade or business (whether or not incorporated) which is a member of a
group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii)
any member of an affiliated service group within the meaning of Section 414(m)
or (o) of the Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described in clause (ii)
above is a member. Any former ERISA Affiliate of Company or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate of Company or
such Subsidiary within the meaning of this definition with respect to the period
such entity was an ERISA Affiliate of Company or such Subsidiary and with
respect to liabilities arising after such period for which Company or such
Subsidiary could be liable under the Internal Revenue Code or ERISA.
"ERISA EVENT" means (i) a "reportable event" within the meaning of Section
4043 of ERISA and the regulations issued thereunder with respect to any Pension
Plan (excluding those for which the provision for 30-day notice to the PBGC has
been waived by regulation); (ii) the failure to meet the minimum funding
standard of Section 412 of the Internal Revenue Code with respect to any Pension
Plan (whether or not waived in accordance with Section 412(d) of the Internal
Revenue Code) or the failure to make by its due date a required installment
under Section 412(m) of the Internal Revenue Code with respect to any Pension
Plan or the failure to make any required contribution to a Multiemployer Plan;
(iii) the provision by the administrator of any Pension Plan pursuant to Section
4041(a)(2) of ERISA of a notice of intent to terminate such plan in a distress
termination described in Section 4041(c) of ERISA; (iv) the withdrawal by
Company, any of its Subsidiaries or any of their respective ERISA Affiliates
from any Pension Plan with two or more contributing sponsors or the termination
of any such Pension Plan resulting in liability pursuant to Section 4063 or 4064
of ERISA; (v) the institution by the PBGC of proceedings to terminate any
Pension Plan, or the occurrence of any event or condition which would constitute
grounds under ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan; (vi) the imposition of liability on Company, any
of its Subsidiaries or any of their respective ERISA Affiliates pursuant to
Section 4062(e) or 4069 of ERISA or by reason of the application of Section
4212(c) of ERISA; (vii) the withdrawal of Company, any of its Subsidiaries or
any of their respective ERISA Affiliates in a complete or partial withdrawal
(within the meaning of Sections 4203 and 4205 of ERISA) from any Multiemployer
Plan that results in liability therefor, or the receipt by Company, any of its
Subsidiaries or any of their respective ERISA Affiliates of notice from any
Multiemployer Plan that it is in reorganization or insolvency pursuant to
Section 4241 or 4245 of ERISA, or that it intends to terminate or has terminated
under Section 4041A or 4042 of ERISA; (viii) receipt from the Internal Revenue
Service of notice of the failure of any Pension Plan (or any other Employee
Benefit Plan intended to be qualified under Section 401(a) of the Internal
Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or
the failure of any trust forming part of any Pension Plan to qualify for
exemption from taxation under Section 501(a) of the Internal Revenue Code; or
(xi) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan,
PROVIDED that such imposition is not otherwise a "reportable event."
"EURODOLLAR BUSINESS DAY" means any day (i) excluding Saturday, Sunday and
any day that is a legal holiday under the laws of the State of New York or is a
day on which banking institutions located in such State are authorized or
required by law, or other governmental action to close and (ii) on which
commercial banks are open for international business (including dealings in
dollar deposits) in London.
"EURODOLLAR RATE LOANS" means Loans bearing interest at rates determined by
reference to the Adjusted Eurodollar Rate as provided in subsection 2.2A.
"EURODOLLAR RATE MARGIN" has the meaning specified in subsection 2.2A.
"EVENT OF DEFAULT" means each of the events set forth in Section 8.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended from
time to time, and any successor statute.
"EXEMPT SUBSIDIARIES" has the meaning assigned to that term in the recitals
to this Agreement.
"EXISTING CREDIT AGREEMENT" means that certain Revolving Loan Agreement
dated as of May 21, 1993 between Company and Mercantile Bank National
Association as amended from time to time prior to the Closing Date.
"FACILITIES" means any and all real property (including all buildings,
fixtures or other improvements located thereon) now, hereafter or heretofore
owned, leased, operated or used by Company or any of its Subsidiaries or any of
their respective predecessors or Affiliates.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a fluctuating
interest rate equal for each day during such period to the weighted average of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of New York, or, if such rate is not so published for any
day which is a Business Day, the average of the quotations for such day on such
transactions received by Agent from three Federal funds brokers of recognized
standing selected by Agent.
"FINANCIAL PLAN" has the meaning assigned to that term in subsection
6.1(xii).
"FIRST PRIORITY" means, with respect to any Lien purported to be created in
any Collateral pursuant to any Collateral Document, that, other than Permitted
Encumbrances and Liens permitted pursuant to subsection 7.2, (i) such Lien has
priority over any other Lien on such Collateral and (ii) such Lien is the only
Lien to which such Collateral is subject.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal Year.
"FISCAL YEAR" means the fiscal year of Company and its Subsidiaries ending
on December 31 of each calendar year.
"FUNDING AND PAYMENT OFFICE" means (i) the office of Agent and Swing Line
Lender located at One Bankers Trust Plaza, 130 Liberty Street, New York, New
York 10006 or (ii) such other office of Agent and Swing Line Lender as may from
time to time hereafter be designated as such in a written notice delivered by
Agent and Swing Line Lender to Company and each Lender.
"FUNDING DATE" means the date of the funding of a Loan.
"GAAP" means, subject to the limitations on the application thereof set
forth in subsection 1.2, generally accepted accounting principles set forth in
opinions and pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and pronouncements of
the Financial Accounting Standards Board or in such other statements by such
other entity as may be approved by a significant segment of the accounting
profession, in each case as the same are applicable to the circumstances as of
the date of determination, PROVIDED that, if Company notifies Agent that Company
requests an amendment to any provision hereof to eliminate the effect of any
change occurring after the date hereof in GAAP or in the application thereof on
the operation of such provision (or if Agent requests an amendment to any
provision hereof for such purpose), regardless of whether any such notice is
given before or after such change in GAAP or in the application thereof, then
such provision shall be interpreted on the basis of GAAP as in effect and
applied immediately before such change shall have become effective until the
earliest of (i) the withdrawal of such notice, (ii) the amendment of such
provision in accordance herewith, or (iii) 180 days after such notice has been
given.
"GOVERNMENTAL AUTHORIZATION" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any federal, state
or local governmental authority, agency or court.
"HAZARDOUS MATERIALS" means (i) any chemical, material or substance at any
time defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous waste", acutely
hazardous waste", "radioactive waste", "biohazardous waste", "pollutant", "toxic
pollutant", "contaminant", "restricted hazardous waste", "infectious waste",
"toxic substances", or any other term or expression intended to define, list or
classify substances by reason of properties harmful to health, safety or the
indoor or outdoor environment (including harmful properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive
toxicity, "TCLP toxicity" or "EP toxicity" or words of similar import under any
applicable Environmental Laws); (ii) any oil, petroleum, petroleum fraction or
petroleum derived substance; (iii) any drilling fluids, produced waters and
other wastes associated with the exploration, development or production of crude
oil, natural gas or geothermal resources; (iv) any flammable substances or
explosives; (v) any radioactive materials; (vi) any friable asbestos-containing
materials; (vii) urea formaldehyde foam insulation; (viii) electrical equipment
which contains any oil or dielectric fluid containing polychlorinated biphenyls;
(ix) pesticides; and (x) any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any governmental authority pursuant
to Environmental Laws.
"HEDGE AGREEMENT" means an Interest Rate Agreement or a Currency Agreement
designed to hedge against fluctuations in interest rates or currency values,
respectively.
"INDEBTEDNESS", as applied to any Person, means (i) all indebtedness for
borrowed money, (ii) that portion of obligations with respect to Capital Leases
that is properly classified as a liability on a balance sheet in conformity with
GAAP, (iii) notes payable and drafts accepted representing extensions of credit
whether or not representing obligations for borrowed money, (iv) any obligation
owed for all or any part of the deferred purchase price of property or services
(excluding any such obligations incurred under ERISA), which purchase price is
(a) due more than six months from the date of incurrence of the obligation in
respect thereof or (b) evidenced by a note or similar written instrument, and
(v) all indebtedness secured by any Lien on any property or asset owned or held
by that Person regardless of whether the indebtedness secured thereby shall have
been assumed by that Person or is nonrecourse to the credit of that Person.
Obligations under Interest Rate Agreements and Currency Agreements constitute
(X) in the case of Hedge Agreements, Contingent Obligations, and (Y) in all
other cases, Investments, and in neither case constitute Indebtedness.
"INDEMNITEE" has the meaning assigned to that term in subsection 10.3.
"INTEREST PAYMENT DATE" means (i) with respect to any Base Rate Loan, each
January 15, April 15, July 15 and October 15 of each year, commencing on the
first such date to occur after the Closing Date, and (ii) with respect to any
Eurodollar Rate Loan, the last day of each Interest Period applicable to such
Loan; PROVIDED that in the case of each Interest Period of longer than three
months "Interest Payment Date" shall also include each date that is three
months, or an integral multiple thereof, after the commencement of such Interest
Period.
"INTEREST PERIOD" has the meaning assigned to that term in subsection 2.2B.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement, interest
rate cap agreement, interest rate collar agreement or other similar agreement or
arrangement to which Company or any of its Subsidiaries is a party.
"INTEREST RATE DETERMINATION DATE" means, with respect to any Interest
Period, the second Eurodollar Business Day prior to the first day of such
Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as amended
to the date hereof and from time to time hereafter, and any successor statute.
"INVESTMENT" means (i) any direct or indirect purchase or other acquisition
by Company or any of its Subsidiaries of, or of a beneficial interest in, any
Securities of any other Person (other than a Person that prior to such purchase
or acquisition was Subsidiary of Company), (ii) any direct or indirect loan,
advance (other than advances to employees for moving, entertainment and travel
expenses, drawing accounts and similar expenditures in the ordinary course of
business) or capital contribution by Company or any of its Subsidiaries to any
other Person (other than a Subsidiary of Company), including all indebtedness
and accounts receivable from that other Person that are not current assets or
did not arise from sales to that other Person in the ordinary course of
business, or (iii) Interest Rate Agreements or Currency Agreements not
constituting Hedge Agreements. The amount of any Investment shall be the
original cost of such Investment PLUS the cost of all additions thereto, without
any adjustments for increases or decreases in value, or write-ups, write-downs
or write-offs with respect to such Investment.
"ISSUING LENDER" means, with respect to any Letter of Credit, the Lender
which agrees or is otherwise obligated to issue such Letter of Credit,
determined as provided in subsection 3.1B(ii).
"JOINT VENTURE" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; PROVIDED
that in no event shall any corporate Subsidiary of any Person be considered to
be a Joint Venture to which such Person is a party.
"LEASEHOLD PROPERTY" means any leasehold interest of any Loan Party as
lessee under any lease of real property.
"LENDER" and "LENDERS" means the persons identified as "Lenders" and listed
on the signature pages of this Agreement, together with their successors and
permitted assigns pursuant to subsection 10.1, and the term "Lenders" shall
include Swing Line Lender unless the context otherwise requires; PROVIDED that
the term "Lenders", when used in the context of a particular Commitment, shall
mean Lenders having that Commitment.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means Standby Letters of Credit
issued or to be issued by Issuing Lenders for the account of Company pursuant to
subsection 3.1.
"LETTER OF CREDIT USAGE" means, as at any date of determination, the sum of
(i) the maximum aggregate amount which is or at any time thereafter may become
available for drawing under all Letters of Credit then outstanding PLUS (ii) the
aggregate amount of all drawings under Letters of Credit honored by Issuing
Lenders and not theretofore reimbursed by Company (including, without
duplication, any such reimbursement out of the proceeds of Revolving Loans
pursuant to subsection 3.3B).
"LIEN" means any lien, mortgage, pledge, assignment, security interest,
charge or encumbrance of any kind (including any conditional sale or other title
retention agreement, any lease in the nature thereof, and any agreement to give
any security interest) and any option, trust or other preferential arrangement
having the practical effect of any of the foregoing.
"LOAN" or "LOANS" means one or more of the Term Loans, Revolving Loans or
Swing Line Loans or any combination thereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Letters of Credit
(and any applications for, or reimbursement agreements or other documents or
certificates executed by Company in favor of an Issuing Lender relating to, the
Letters of Credit), the Subsidiary Guaranty and the Collateral Documents.
"LOAN PARTY" means each of Company and any of Company's Subsidiaries from
time to time executing a Loan Document, and "LOAN PARTIES" means all such
Persons, collectively.
"MARGIN STOCK" has the meaning assigned to that term in Regulation U of the
Board of Governors of the Federal Reserve System as in effect from time to time.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect upon the
business, assets, financial position, operations, or results of operations of
Company and its Subsidiaries taken as a whole or (ii) the material impairment of
the ability of any Loan Party to perform, or of Agent or Lenders to enforce, the
Obligations.
"MATERIAL CONTRACT" means any contract or other arrangement to which
Company or any of its Subsidiaries is a party (other than the Loan Documents)
which is (i) listed on SCHEDULE 5.8 as of the date hereof or (ii) is filed by
Company or any of its Subsidiaries with the Securities and Exchange Commission.
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset Sale, Cash
payments (including any Cash received by way of deferred payment pursuant to, or
by monetization of, a note receivable or otherwise, but only as and when so
received) received from such Asset Sale, net of any bona fide direct costs
incurred in connection with such Asset Sale, including (i) income taxes
reasonably estimated to be actually payable within two years of the date of such
Asset Sale as a result of any gain recognized in connection with such Asset
Sale, (ii) payment of the outstanding principal amount of, premium or penalty,
if any, and interest on any Indebtedness (other than the Loans) that is secured
by a Lien on the stock or assets in question and that is required to be repaid
under the terms thereof as a result of such Asset Sale and (iii) payment of fees
and reasonable out of pocket expenses in connection with such sale.
"NEW YORK LIFE" means NYLIFE HealthCare Management, Inc., an indirect
subsidiary of New York Life Insurance Co., a mutual life insurance company
organized and existing under the laws of the State of New York.
"NON-US LENDER" has the meaning assigned to that term in subsection
2.7B(iii)(a).
"NOTES" means one or more of the Term Notes, Revolving Notes or Swing Line
Note or any combination thereof.
"NOTICE OF BORROWING" means a notice substantially in the form of EXHIBIT I
annexed hereto delivered by Company to Agent pursuant to subsection 2.1B with
respect to a proposed borrowing.
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially in the
form of EXHIBIT II annexed hereto delivered by Company to Agent pursuant to
subsection 2.2D with respect to a proposed conversion or continuation of the
applicable basis for determining the interest rate with respect to the Loans
specified therein.
"NOTICE OF REQUEST TO ISSUE LETTER OF CREDIT" means a notice substantially
in the form of EXHIBIT III annexed hereto delivered by Company to Agent pursuant
to subsection 3.1B(i) with respect to the proposed issuance of a Letter of
Credit.
"OBLIGATIONS" means all obligations, including obligations under Hedge
Agreements, of every nature of each Loan Party from time to time owed to Agent,
Lenders or any of them under the Loan Documents, whether for principal,
interest, reimbursement of amounts drawn under Letters of Credit, fees,
expenses, indemnification or otherwise.
"OFFICERS' CERTIFICATE" means, as applied to any corporation, a certificate
executed on behalf of such corporation by its chairman of the board (if an
officer) or its president or one of its vice presidents and by its chief
financial officer or its treasurer.
"OPERATING LEASE" means, as applied to any Person, any lease (including
leases that may be terminated by the lessee at any time) of any property
(whether real, personal or mixed) that is not a Capital Lease other than any
such lease under which that Person is the lessor.
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
thereto.
"PENSION PLAN" means any Employee Benefit Plan, other than a Multiemployer
Plan, which is subject to Section 412 of the Internal Revenue Code or Section
302 of ERISA.
"PERMITTED ACQUISITIONS" means the acquisition of stock or other assets for
consideration (with non-cash consideration being valued at fair market value)
not exceeding $25,000,000 in any Fiscal Year, that results with acquired assets
being owned by Company or a wholly-owned Subsidiary of Company and, if such
assets are equity interests in a Person, such Person being a wholly-owned
Subsidiary of Company or its wholly-owned Subsidiary.
"PERMITTED ENCUMBRANCES" means the following types of Liens (excluding any
such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or by ERISA):
(i) Liens for taxes, assessments or governmental charges or claims the
payment of which is not, at the time, required by subsection 6.3;
(ii) statutory Liens of landlords, statutory Liens of banks and rights of
set-off, statutory Liens of carriers, warehousemen, mechanics, repairmen,
workmen and materialmen, and other Liens imposed by law, in each case incurred
in the ordinary course of business (a) for amounts not yet overdue or (b) for
amounts that are overdue and that (in the case of any such amounts overdue for a
period in excess of 30 days) are being contested in good faith by appropriate
proceedings, so long as (1) such reserves or other appropriate provisions, if
any, as shall be required by GAAP shall have been made for any such contested
amounts, and (2) in the case of a Lien with respect to any portion of the
Collateral, such contest proceedings conclusively operate to stay the sale of
any material portion of the Collateral on account of such Lien;
(iii) Liens incurred or deposits made in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other types of
social security, or to secure the performance of tenders, statutory obligations,
surety and appeal bonds, bids, leases, government contracts, trade contracts,
performance and return-of-money bonds and other similar obligations (exclusive
of obligations for the payment of borrowed money), so long as no foreclosure,
sale or similar proceedings have been commenced with respect to any material
portion of the Collateral on account thereof;
(iv) any attachment or judgment Lien not constituting an Event of Default
under subsection 8.8;
(v) leases or subleases granted to third parties in accordance with any
applicable terms of the Collateral Documents and not interfering in any material
respect with the ordinary conduct of the business of Company or any of its
Subsidiaries or resulting in a material diminution in the value of any
Collateral as security for the Obligations;
(vi) easements, rights-of-way, restrictions, encroachments, and other minor
defects or irregularities in title, in each case which do not and will not
interfere in any material respect with the ordinary conduct of the business of
Company or any of its Subsidiaries or result in a material diminution in the
value of any Collateral as security for the Obligations;
(vii) any (a) interest or title of a lessor or sublessor under any lease
permitted by subsection 7.9, (b) restriction or encumbrance that the interest or
title of such lessor or sublessor may be subject to, or (c) subordination of the
interest of the lessee or sublessee under such lease to any restriction or
encumbrance referred to in the preceding clause (b), so long as the holder of
such restriction or encumbrance agrees to recognize the rights of such lessee or
sublessee under such lease;
(viii) Liens arising from filing UCC financing statements relating solely
to leases permitted by this Agreement;
(ix) Liens in favor of customs and revenue authorities arising as a matter
of law to secure payment of customs duties in connection with the importation of
goods;
(x) any zoning or similar law or right reserved to or vested in any
governmental office or agency to control or regulate the use of any real
property;
(xi) Liens securing obligations (other than obligations representing
Indebtedness for borrowed money) under operating, reciprocal easement or similar
agreements entered into in the ordinary course of business of Company and its
Subsidiaries;
(xii) licenses of patents, trademarks and other intellectual property
rights granted by Company or any of its Subsidiaries in the ordinary course of
business and not interfering in any material respect with the ordinary conduct
of the business of Company or such Subsidiary;
(xiii) Liens securing Hedge Agreements to the extent such Liens are limited
to the property that is the subject of the Hedge Agreements: and
(xiv) Liens imposed by Environmental Laws to the extent not in violation of
any of the representations, warranties or covenants in respect of Environmental
Laws made by Company in this Agreement.
"PERSON" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"PLEDGED COLLATERAL" means, collectively, the "Pledged Collateral" as
defined in the Company Pledge Agreement and the Subsidiary Pledge Agreements.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that, after notice
or lapse of time or both, would constitute an Event of Default.
"PRIME RATE" means the rate that BTCo announces from time to time as its
prime lending rate, as in effect from time to time. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. BTCo or any other Lender may make commercial
loans or other loans at rates of interest at, above or below the Prime Rate.
"PRO RATA SHARE" means (i) with respect to all payments, computations and
other matters relating to the Term Loan Commitment or the Term Loan of any
Lender, the percentage obtained by DIVIDING (x) the Term Loan Exposure of that
Lender BY (y) the aggregate Term Loan Exposure of all Lenders, (ii) with respect
to all payments, computations and other matters relating to the Revolving Loan
Commitment or the Revolving Loans of any Lender or any Letters of Credit issued
or participations therein purchased by any Lender or any participations in any
Swing Line Loans purchased by any Lender, the percentage obtained by DIVIDING
(x) the Revolving Loan Exposure of that Lender BY (y) the aggregate Revolving
Loan Exposure of all Lenders, and (iii) for all other purposes with respect to
each Lender, the percentage obtained by DIVIDING (x) the sum of the Term Loan
Exposure of that Lender PLUS the Revolving Loan Exposure of that Lender BY (y)
the sum of the aggregate Term Loan Exposure of all Lenders PLUS the aggregate
Revolving Loan Exposure of all Lenders, in any such case as the applicable
percentage may be adjusted by assignments permitted pursuant to subsection 10.1.
The initial Pro Rata Share of each Lender for purposes of each of clauses (i),
(ii) and (iii) of the preceding sentence is set forth opposite the name of that
Lender in SCHEDULE 2.1 annexed hereto.
"REFUNDED SWING LINE LOANS" has the meaning assigned to that term in
subsection 2.1A(iii).
"REGISTER" has the meaning assigned to that term in subsection 2.1D.
"REGULATION D" means Regulation D of the Board of Governors of the Federal
Reserve System, as in effect from time to time.
"REIMBURSEMENT DATE" has the meaning assigned to that term in subsection
3.3B.
"REPLACED LENDER" and "REPLACEMENT LENDER" have the meanings assigned to
those terms in subsection 2.8.
"REQUISITE LENDERS" means Lenders having or holding more than 50% of the
sum of the aggregate Term Loan Exposure of all Lenders PLUS the aggregate
Revolving Loan Exposure of all Lenders.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other distribution,
direct or indirect, on account of any shares of any class of stock of Company
now or hereafter outstanding, except a dividend payable solely in shares of that
class of stock to the holders of that class, (ii) any redemption, retirement,
sinking fund or similar payment, purchase or other acquisition for value, direct
or indirect, of any shares of any class of stock of Company now or hereafter
outstanding, (iii) any payment made to retire, or to obtain the surrender of,
any outstanding warrants, options or other rights to acquire shares of any class
of stock of Company now or hereafter outstanding, and (iv) any payment or
prepayment of principal of, premium, if any, or interest on, or redemption,
purchase, retirement, defeasance (including in-substance or legal defeasance),
sinking fund or similar payment with respect to, any Subordinated Indebtedness.
"REVOLVING LENDERS" means a Lender having a Revolving Loan Commitment.
"REVOLVING LOAN COMMITMENT" means the commitment of a Lender to make
Revolving Loans to Company pursuant to subsection 2.1A(ii), and "REVOLVING LOAN
COMMITMENTS" means such commitments of all Lenders in the aggregate.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means April 15, 2003.
"REVOLVING LOAN EXPOSURE" means, with respect to any Lender as of any date
of determination (i) prior to the termination of the Revolving Loan Commitments,
that Lender's Revolving Loan Commitment and (ii) after the termination of the
Revolving Loan Commitments, the sum of (a) the aggregate outstanding principal
amount of the Revolving Loans of that Lender PLUS (b) in the event that Lender
is an Issuing Lender and without duplication from amounts counted under (a)
above, the aggregate Letter of Credit Usage in respect of all Letters of Credit
issued by that Lender (in each case net of any participations purchased by other
Lenders in such Letters of Credit or any unreimbursed drawings thereunder) PLUS
(c) the aggregate amount of all participations purchased by that Lender in any
outstanding Letters of Credit or any unreimbursed drawings under any Letters of
Credit PLUS (d) in the case of Swing Line Lender, the aggregate outstanding
principal amount of all Swing Line Loans (net of any participations therein
purchased by other Lenders) PLUS (e) the aggregate amount of all participations
purchased by that Lender in any outstanding Swing Line Loans.
"REVOLVING LOANS" means the Loans made by Lenders to Company pursuant to
subsection 2.1A(ii).
"REVOLVING NOTES" means (i) the promissory notes of Company issued pursuant
to subsection 2.1E(ii) on the Closing Date and (ii) any promissory notes issued
by Company pursuant to the last sentence of subsection 10.1B(i) in connection
with assignments of the Revolving Loan Commitments and Revolving Loans of any
Lenders, in each case substantially in the form of EXHIBIT V annexed hereto, as
they may be amended, supplemented or otherwise modified from time to time.
"SECURITIES" means any stock, shares, partnership interests, voting trust
certificates, certificates of interest or participation in any profit-sharing
agreement or arrangement, options, warrants, bonds, debentures, notes, or other
evidences of indebtedness, secured or unsecured, convertible, subordinated or
otherwise, or in general any instruments commonly known as "securities" or any
certificates of interest, shares or participations in temporary or interim
certificates for the purchase or acquisition of, or any right to subscribe to,
purchase or acquire, any of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended from time to
time, and any successor statute.
"SELLER" has the meaning assigned to that term in the recitals to the
Agreement.
"SOLVENT" means, with respect to any Person, that as of the date of
determination both (i) the then fair saleable value of the property of such
Person is (y) greater than the total amount of liabilities (including contingent
liabilities) of such Person and (z) not less than the amount that will be
required to pay the probable liabilities on such Person's then existing debts as
they become absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (ii) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (iii) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"STANDBY LETTER OF CREDIT" means any standby letter of credit or similar
instrument issued for the purpose of supporting (i) Indebtedness of Company or
any of its Subsidiaries in respect of industrial revenue or development bonds or
financings, (ii) workers' compensation liabilities of Company or any of its
Subsidiaries, (iii) the obligations of third party insurers of Company or any of
its Subsidiaries arising by virtue of the laws of any jurisdiction requiring
third party insurers, (iv) obligations with respect to Capital Leases or
Operating Leases of Company or any of its Subsidiaries, and (v) performance,
payment, deposit or surety obligations of Company or any of its Subsidiaries, in
any case if required by law or governmental rule or regulation or in accordance
with custom and practice in the industry; PROVIDED that Standby Letters of
Credit may not be issued for the purpose of supporting (a) trade payables or (b)
any Indebtedness constituting "antecedent debt" (as that term is used in Section
547 of the Bankruptcy Code).
"SUBORDINATED INDEBTEDNESS" means Indebtedness of Company subordinated in
right of payment to the Obligations pursuant to documentation containing
maturities, amortization schedules, covenants, defaults, remedies, subordination
provisions and other material terms in form and substance reasonably
satisfactory to Agent and Requisite Lenders.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof.
"SUBSIDIARY GUARANTOR" means any Subsidiary of Company that executes and
delivers a counterpart of the Subsidiary Guaranty on the Closing Date or from
time to time thereafter pursuant to subsection 6.8, but in any event excluding
the Exempt Subsidiaries.
"SUBSIDIARY GUARANTY" means the Subsidiary Guaranty executed and delivered
by existing Subsidiaries of Company on the Closing Date and to be executed and
delivered by additional Subsidiaries of Company from time to time thereafter in
accordance with subsection 6.8, substantially in the form of EXHIBIT XIII
annexed hereto, as such Subsidiary Guaranty may hereafter be amended,
supplemented or otherwise modified from time to time.
"SUBSIDIARY PLEDGE AGREEMENT" means each Subsidiary Pledge Agreement
executed and delivered by an existing Subsidiary Guarantor on the Closing Date
or executed and delivered by any additional Subsidiary Guarantor from time to
time thereafter in accordance with subsection 6.8, in each case substantially in
the form of EXHIBIT XIV annexed hereto, as such Subsidiary Pledge Agreement may
be amended, supplemented or otherwise modified from time to time, and
"SUBSIDIARY PLEDGE AGREEMENTS" means all such Subsidiary Pledge Agreements,
collectively.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning assigned to that term in
subsection 9.1B.
"SWING LINE LENDER" means BTCo or any Person serving as a successor Agent
hereunder, in its capacity as Swing Line Lender hereunder.
"SWING LINE LOAN COMMITMENT" means the commitment of Swing Line Lender to
make Swing Line Loans to Company pursuant to subsection 2.1A(iii).
"SWING LINE LOANS" means the Loans made by Swing Line Lender to Company
pursuant to subsection 2.1A(iii).
"SWING LINE NOTE" means (i) the promissory note of Company issued pursuant
to subsection 2.1E(iii) on the Closing Date and (ii) any promissory note issued
by Company to any successor Agent and Swing Line Lender pursuant to the last
sentence of subsection 9.5B, in each case substantially in the form of EXHIBIT
VI annexed hereto, as it may be amended, supplemented or otherwise modified from
time to time.
"TAX" or "TAXES" means any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or
assessed; PROVIDED that "TAX ON THE OVERALL NET INCOME" of a Person shall be
construed as a reference to a tax imposed by the jurisdiction in which that
Person is organized or in which that Person's principal office (and/or, in the
case of a Lender, its lending office) is located or in which that Person
(and/or, in the case of a Lender, its lending office) is deemed to be doing
business on all or part of the net income, profits or gains (whether worldwide,
or only insofar as such income, profits or gains are considered to arise in or
to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in
the case of a Lender, its lending office).
"TERM LENDER" means a Lender having a Term Loan Commitment, or who has made
a Term Loan, and any assignee of such Lender pursuant to subsection 10.1.
"TERM LOAN COMMITMENT" means the commitment of a Lender to make a Term Loan
to Company pursuant to subsection 2.1A(i), and "TERM LOAN COMMITMENTS" means
such commitments of all Lenders in the aggregate.
"TERM LOAN EXPOSURE" means, with respect to any Lender as of any date of
determination (i) prior to the funding of the Term Loans, that Lender's Term
Loan Commitment and (ii) after the funding of the Term Loans, the outstanding
principal amount of the Term Loan of that Lender.
"TERM LOANS" means the Loans made by Lenders to Company pursuant to
subsection 2.1A(i).
"TERM NOTES" means (i) the promissory notes of Company issued pursuant to
subsection 2.1E(i) on the Closing Date and (ii) any promissory notes issued by
Company pursuant to the last sentence of subsection 10.1B(i) in connection with
assignments of the Term Loan Commitments or Term Loans of any Lenders, in each
case substantially in the form of EXHIBIT IV annexed hereto, as they may be
amended, supplemented or otherwise modified from time to time.
"TOTAL UTILIZATION OF REVOLVING LOAN COMMITMENTS" means, as at any date of
determination, the sum of (i) the aggregate principal amount of all outstanding
Revolving Loans PLUS (ii) the aggregate principal amount of all outstanding
Swing Line Loans PLUS (iii) the Letter of Credit Usage.
"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction.
"VALUERX" has the meaning assigned to that term in the recitals to this
Agreement.
"VISION" means Express Scripts Vision Corporation, a Delaware corporation
and wholly-owned Subsidiary of Company.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF CALCULATIONS
UNDER AGREEMENT; FISCAL PERIODS FOR DETERMINING COMPLIANCE AND PRICING
A. Except as otherwise expressly provided in this Agreement, all accounting
terms not otherwise defined herein shall have the meanings assigned to them in
conformity with GAAP. Financial statements and other information required to be
delivered by Company to Lenders pursuant to clauses (i), (ii) and (xii) of
subsection 6.1 shall be prepared in accordance with GAAP as in effect at the
time of such preparation (and delivered together with the reconciliation
statements provided for in subsection 6.1(iv)). Calculations in connection with
the definitions, covenants and other provisions of this Agreement shall utilize
accounting principles and policies in conformity with those used to prepare the
financial statements referred to in subsection 5.3.
B. For purposes of determining Consolidated EBITDA, Consolidated Interest
Expense, and the Consolidated Leverage Ratio for purposes of subsections 2.2A
and 2.3A and determining compliance with the financial covenants in subsections
7.6A and 7.6B for any period including Fiscal Quarters ending on or prior to
March 31, 1999, if such calculation requires using the four prior Fiscal
Quarters, such calculation shall be annualized based upon the Fiscal Quarters
ending after the Closing Date.
1.3 OTHER DEFINITIONAL PROVISIONS AND RULES OF CONSTRUCTION
A. Any of the terms defined herein may, unless the context otherwise
requires, be used in the singular or the plural, depending on the reference.
B. References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Agreement unless otherwise specifically
provided.
C. The use in any of the Loan Documents of the word "include" or
"including", when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; MAKING OF LOANS; THE REGISTER; NOTES
A. COMMITMENTS. Subject to the terms and conditions of this Agreement and
in reliance upon the representations and warranties of Company herein set forth,
each Term Lender hereby severally agrees to make the Term Loans described in
subsection 2.1A(i), each Revolving Lender hereby severally agrees to make the
Revolving Loans described in subsection 2.1A(ii), and Swing Line Lender hereby
agrees to make the Loans described in subsection 2.1A(iii).
(i) TERM LOANS. Each Term Lender severally agrees to lend to Company on the
Closing Date an amount not exceeding its Pro Rata Share of the aggregate amount
of the Term Loan Commitments to be used for the purposes identified in
subsection 2.5A. The amount of each Term Lender's Term Loan Commitment is set
forth opposite its name on SCHEDULE 2.1 annexed hereto and the aggregate amount
of the Term Loan Commitments is $360,000,000; PROVIDED that the Term Loan
Commitments of Term Lenders shall be adjusted to give effect to any assignments
of the Term Loan Commitments pursuant to subsection 10.1B. Each Term Lender's
Term Loan Commitment shall expire immediately and without further action on
April 1, 1998 if the Term Loans are not made on or before that date. Company may
make only one borrowing under the Term Loan Commitments. Amounts borrowed under
this subsection 2.1A(i) and subsequently repaid or prepaid may not be
reborrowed.
(ii) REVOLVING LOANS. Each Revolving Lender severally agrees, subject to
the limitations set forth below with respect to the maximum amount of Revolving
Loans permitted to be outstanding from time to time, to lend to Company from
time to time during the period from the Closing Date to but excluding the
Revolving Loan Commitment Termination Date an aggregate amount not exceeding its
Pro Rata Share of the aggregate amount of the Revolving Loan Commitments to be
used for the purposes identified in subsection 2.5B. The original amount of each
Revolving Lender's Revolving Loan Commitment is set forth opposite its name on
SCHEDULE 2.1 annexed hereto and the aggregate original amount of the Revolving
Loan Commitments is $80,000,000; PROVIDED that the Revolving Loan Commitments of
Revolving Lenders shall be adjusted to give effect to any assignments of the
Revolving Loan Commitments pursuant to subsection 10.1B; and PROVIDED, FURTHER
that the amount of the Revolving Loan Commitments shall be reduced from time to
time by the amount of any reductions thereto made pursuant to subsections
2.4B(ii) and 2.4B(iii). Each Revolving Lender's Revolving Loan Commitment shall
expire on the Revolving Loan Commitment Termination Date and all Revolving Loans
and all other amounts owed hereunder with respect to the Revolving Loans and the
Revolving Loan Commitments shall be paid in full no later than that date;
PROVIDED that each Revolving Lender's Revolving Loan Commitment shall expire
immediately and without further action on April 1, 1998 if the Term Loans are
not made on or before that date. Amounts borrowed under this subsection 2.1A(ii)
may be repaid and reborrowed to but excluding the Revolving Loan Commitment
Termination Date.
Anything contained in this Agreement to the contrary notwithstanding, the
Revolving Loans and the Revolving Loan Commitments shall be subject to the
limitation that in no event shall the Total Utilization of Revolving Loan
Commitments at any time exceed the Revolving Loan Commitments then in effect.
(iii) SWING LINE LOANS. Swing Line Lender hereby agrees, subject to the
limitations set forth below with respect to the maximum amount of Swing Line
Loans permitted to be outstanding from time to time, to make a portion of the
Revolving Loan Commitments available to Company from time to time during the
period from the Closing Date to but excluding the Revolving Loan Commitment
Termination Date by making Swing Line Loans to Company in an aggregate amount
not exceeding the amount of the Swing Line Loan Commitment to be used for the
purposes identified in subsection 2.5B, notwithstanding the fact that such Swing
Line Loans, when aggregated with Swing Line Lender's outstanding Revolving Loans
and Swing Line Lender's Pro Rata Share of the Letter of Credit Usage then in
effect, may exceed Swing Line Lender's Revolving Loan Commitment. The original
amount of the Swing Line Loan Commitment is $15,000,000; PROVIDED that any
reduction of the Revolving Loan Commitments made pursuant to subsection 2.4B(ii)
or 2.4B(iii) which reduces the aggregate Revolving Loan Commitments to an amount
less than the then current amount of the Swing Line Loan Commitment shall result
in an automatic corresponding reduction of the Swing Line Loan Commitment to the
amount of the Revolving Loan Commitments, as so reduced, without any further
action on the part of Company, Agent or Swing Line Lender. The Swing Line Loan
Commitment shall expire on the Revolving Loan Commitment Termination Date and
all Swing Line Loans and all other amounts owed hereunder with respect to the
Swing Line Loans shall be paid in full no later than that date; PROVIDED that
the Swing Line Loan Commitment shall expire immediately and without further
action on April 1, 1998 if the Term Loans are not made on or before that date.
Amounts borrowed under this subsection 2.1A(iii) may be repaid and reborrowed to
but excluding the Revolving Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary notwithstanding, the
Swing Line Loans and the Swing Line Loan Commitment shall be subject to the
limitation that in no event shall the Total Utilization of Revolving Loan
Commitments at any time exceed the Revolving Loan Commitments then in effect.
With respect to any Swing Line Loans which have not been voluntarily
prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may, at any
time in its sole and absolute discretion, deliver to Agent (with a copy to
Company), no later than 10:00 A.M. (New York City time) at least one Business
Day prior to the proposed Funding Date, a notice (which shall be deemed to be a
Notice of Borrowing given by Company) requesting Revolving Lenders to make
Revolving Loans that are Base Rate Loans on such Funding Date in an amount equal
to the amount of such Swing Line Loans (the "REFUNDED SWING LINE LOANS")
outstanding on the date such notice is given which Swing Line Lender requests
Revolving Lenders to prepay. Anything contained in this Agreement to the
contrary notwithstanding, (i) the proceeds of such Revolving Loans made by
Revolving Lenders other than Swing Line Lender shall be immediately delivered by
Agent to Swing Line Lender (and not to Company) and applied to repay a
corresponding portion of the Refunded Swing Line Loans and (ii) on the day such
Revolving Loans are made, Swing Line Lender's Pro Rata Share of the Refunded
Swing Line Loans shall be deemed to be paid with the proceeds of a Revolving
Loan made by Swing Line Lender, and such portion of the Swing Line Loans deemed
to be so paid shall no longer be outstanding as Swing Line Loans and shall no
longer be due under the Swing Line Note of Swing Line Lender but shall instead
constitute part of Swing Line Lender's outstanding Revolving Loans and shall be
due under the Revolving Note of Swing Line Lender. Company hereby authorizes
Agent and Swing Line Lender to charge Company's accounts with Agent and Swing
Line Lender (up to the amount available in each such account) in order to
immediately pay Swing Line Lender the amount of the Refunded Swing Line Loans to
the extent the proceeds of such Revolving Loans made by Revolving Lenders,
including the Revolving Loan deemed to be made by Swing Line Lender, are not
sufficient to repay in full the Refunded Swing Line Loans. If any portion of any
such amount paid (or deemed to be paid) to Swing Line Lender should be recovered
by or on behalf of Company from Swing Line Lender in bankruptcy, by assignment
for the benefit of creditors or otherwise, the loss of the amount so recovered
shall be ratably shared among all Revolving Lenders in the manner contemplated
by subsection 10.5.
If for any reason (a) Revolving Loans are not made upon the request of
Swing Line Lender as provided in the immediately preceding paragraph in an
amount sufficient to repay any amounts owed to Swing Line Lender in respect of
any outstanding Swing Line Loans or (b) the Revolving Loan Commitments are
terminated at a time when any Swing Line Loans are outstanding, each Revolving
Lender shall be deemed to, and hereby agrees to, have purchased a participation
in such outstanding Swing Line Loans in an amount equal to its Pro Rata Share
(calculated, in the case of the foregoing clause (b), immediately prior to such
termination of the Revolving Loan Commitments) of the unpaid amount of such
Swing Line Loans together with accrued interest thereon. Upon one Business Day's
notice from Swing Line Lender, each Revolving Lender shall deliver to Swing Line
Lender an amount equal to its respective participation in same day funds at the
Funding and Payment Office. In order to further evidence such participation (and
without prejudice to the effectiveness of the participation provisions set forth
above), each Lender agrees to enter into a separate participation agreement at
the request of Swing Line Lender in form and substance reasonably satisfactory
to Swing Line Lender. In the event any Revolving Lender fails to make available
to Swing Line Lender the amount of such Revolving Lender's participation as
provided in this paragraph, Swing Line Lender shall be entitled to recover such
amount on demand from such Revolving Lender together with interest thereon at
the rate customarily used by Swing Line Lender for the correction of errors
among banks for three Business Days and thereafter at the Base Rate. In the
event Swing Line Lender receives a payment of any amount in which other
Revolving Lenders have purchased participations as provided in this paragraph,
Swing Line Lender shall promptly distribute to each such other Revolving Lender
its Pro Rata Share of such payment.
Anything contained herein to the contrary notwithstanding, each Revolving
Lender's obligation to make Revolving Loans for the purpose of repaying any
Refunded Swing Line Loans pursuant to the second preceding paragraph and each
Revolving Lender's obligation to purchase a participation in any unpaid Swing
Line Loans pursuant to the immediately preceding paragraph shall be absolute and
unconditional and shall not be affected by any circumstance, including (a) any
set-off, counterclaim, recoupment, defense or other right which such Revolving
Lender may have against Swing Line Lender, Company or any other Person for any
reason whatsoever; (b) the occurrence or continuation of an Event of Default or
a Potential Event of Default; (c) any adverse change in the business,
operations, properties, assets, condition (financial or otherwise) or prospects
of Company or any of its Subsidiaries; (d) any breach of this Agreement or any
other Loan Document by any party thereto; or (e) any other circumstance,
happening or event whatsoever, whether or not similar to any of the foregoing;
PROVIDED that such obligations of each Revolving Lender are subject to the
condition that (X) Swing Line Lender believed in good faith that all conditions
under Section 4 to the making of the applicable Refunded Swing Line Loans or
other unpaid Swing Line Loans, as the case may be, were satisfied at the time
such Refunded Swing Line Loans or unpaid Swing Line Loans were made or (Y) the
satisfaction of any such condition not satisfied had been waived in accordance
with subsection 10.6 prior to or at the time such Refunded Swing Line Loans or
other unpaid Swing Line Loans were made.
B. BORROWING MECHANICS. Term Loans or Revolving Loans made on any Funding
Date (other than Revolving Loans made pursuant to a request by Swing Line Lender
pursuant to subsection 2.1A(iii) for the purpose of repaying any Refunded Swing
Line Loans or Revolving Loans made pursuant to subsection 3.3B for the purpose
of reimbursing any Issuing Lender for the amount of a drawing under a Letter of
Credit issued by it) shall be in an aggregate minimum amount of $5,000,000 and
integral multiples of $1,000,000 in excess of that amount. Swing Line Loans made
on any Funding Date shall be in an aggregate minimum amount of $500,000 and
integral multiples of $100,000 in excess of that amount. Whenever Company
desires that Lenders make Term Loans or Revolving Loans it shall deliver to
Agent a Notice of Borrowing no later than 10:00 A.M. (New York City time) at
least three Eurodollar Business Days in advance of the proposed Funding Date (in
the case of a Eurodollar Rate Loan) or at least one Business Day in advance of
the proposed Funding Date (in the case of a Base Rate Loan). Whenever Company
desires that Swing Line Lender make a Swing Line Loan, it shall deliver to Agent
a Notice of Borrowing no later than 12:00 Noon (New York City time) on the
proposed Funding Date. The Notice of Borrowing shall specify (i) the proposed
Funding Date (which shall be a Business Day), (ii) the amount and type of Loans
requested, (iii) in the case of Swing Line Loans, that such Loans shall be Base
Rate Loans, (iv) in the case of Term Loans and Revolving Loans, whether such
Loans shall be Base Rate Loans or Eurodollar Rate Loans, and (v) in the case of
any Loans requested to be made as Eurodollar Rate Loans, the initial Interest
Period requested therefor. Term Loans and Revolving Loans may be continued as or
converted into Base Rate Loans and Eurodollar Rate Loans in the manner provided
in subsection 2.2D. In lieu of delivering the above-described Notice of
Borrowing, Company may give Agent telephonic notice by the required time of any
proposed borrowing under this subsection 2.1B; PROVIDED that such notice shall
be promptly confirmed in writing by delivery of a Notice of Borrowing to Agent
on or before the applicable Funding Date.
Neither Agent nor any Lender shall incur any liability to Company in acting
upon any telephonic notice referred to above that Agent believes in good faith
to have been given by a duly authorized officer or other person authorized to
borrow on behalf of Company or for otherwise acting in good faith under this
subsection 2.1B, and upon funding of Loans by Lenders in accordance with this
Agreement pursuant to any such telephonic notice Company shall have effected
Loans hereunder.
Company shall notify Agent prior to the funding of any Loans in the event
that any of the matters to which Company is required to certify in the
applicable Notice of Borrowing is no longer true and correct as of the
applicable Funding Date, and the acceptance by Company of the proceeds of any
Loans shall constitute a re-certification by Company, as of the applicable
Funding Date, as to the matters to which Company is required to certify in the
applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice
of Borrowing for a Eurodollar Rate Loan (or telephonic notice in lieu thereof)
shall be irrevocable on and after the related Interest Rate Determination Date,
and Company shall be bound to make a borrowing in accordance therewith.
C. DISBURSEMENT OF FUNDS. All Term Loans and Revolving Loans under this
Agreement shall be made by Lenders simultaneously and proportionately to their
respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any default by any other Lender in that other Lender's
obligation to make a Loan requested hereunder nor shall the Commitment of any
Lender to make the particular type of Loan requested be increased or decreased
as a result of a default by any other Lender in that other Lender's obligation
to make a Loan requested hereunder. Promptly after receipt by Agent of a Notice
of Borrowing pursuant to subsection 2.1B (or telephonic notice in lieu thereof),
Agent shall notify each Lender or Swing Line Lender, as the case may be, of the
proposed borrowing. Each Lender shall make the amount of its Loan available to
Agent not later than 12:00 Noon (New York City time) on the applicable Funding
Date, and Swing Line Lender shall make the amount of its Swing Line Loan
available to Agent not later than 2:00 P.M.(New York City time) on the
applicable Funding Date, in each case in same day funds in Dollars, at the
Funding and Payment Office. Except as provided in subsection 2.1A(iii) or
subsection 3.3B with respect to Revolving Loans used to repay Refunded Swing
Line Loans or to reimburse any Issuing Lender for the amount of a drawing under
a Letter of Credit issued by it, upon satisfaction or waiver of the conditions
precedent specified in subsections 4.1 (in the case of Loans made on the Closing
Date) and 4.2 (in the case of all Loans), Agent shall make the proceeds of such
Loans available to Company on the applicable Funding Date by causing an amount
of same day funds in Dollars equal to the proceeds of all such Loans received by
Agent from Lenders or Swing Line Lender, as the case may be, to be credited to
the account of Company at the Funding and Payment Office.
Unless Agent shall have been notified by any Lender prior to the Funding
Date for any Loans that such Lender does not intend to make available to Agent
the amount of such Lender's Loan requested on such Funding Date, Agent may
assume that such Lender has made such amount available to Agent on such Funding
Date and Agent may, in its sole discretion, but shall not be obligated to, make
available to Company a corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to Agent by such Lender,
Agent shall be entitled to recover such corresponding amount on demand from such
Lender together with interest thereon, for each day from such Funding Date until
the date such amount is paid to Agent, at the customary rate set by Agent for
the correction of errors among banks for three Business Days and thereafter at
the Base Rate. If such Lender does not pay such corresponding amount within
three Business Days after such amount should have been made available, Agent
shall promptly notify Company and Company shall immediately pay such
corresponding amount to Agent together with interest thereon, for each day from
such Funding Date until the date such amount is paid to Agent, at the rate
payable under this Agreement for Base Rate Loans. Nothing in this subsection
2.1C shall be deemed to relieve any Lender from its obligation to fulfill its
Commitments hereunder or to prejudice any rights that Company may have against
any Lender as a result of any default by such Lender hereunder.
D. THE REGISTER.
(i) Agent shall maintain, at its address referred to in subsection 10.8, a
register for the recordation of the names and addresses of Lenders and the
Commitments and Loans of each Lender from time to time (the "REGISTER"). The
Register shall be available for inspection by Company or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(ii) Agent shall record in the Register the Term Loan Commitment and the
Term Loan of each Term Lender, the Revolving Loan Commitment and the Revolving
Loans from time to time of each Revolving Lender, the Swing Line Loan Commitment
and the Swing Line Loans from time to time of Swing Line Lender, and each
repayment or prepayment in respect of the principal amount of the Term Loan of
each Term Lender, the Revolving Loans of each Revolving Lender or the Swing Line
Loans of Swing Line Lender. Any such recordation shall be conclusive and binding
on Company and each Lender, absent manifest error; PROVIDED that failure to make
any such recordation, or any error in such recordation, shall not affect any
Lender's Commitments or Company's Obligations in respect of any applicable
Loans.
(iii) Each Lender shall record on its internal records (including any Notes
held by such Lender) the amount of the Term Loan and each Revolving Loan made by
it and each payment in respect thereof. Any such recordation shall be conclusive
and binding on Company, absent manifest error; PROVIDED that failure to make any
such recordation, or any error in such recordation, shall not affect any
Lender's Commitments or Company's Obligations in respect of any applicable
Loans; and PROVIDED, FURTHER that in the event of any inconsistency between the
Register and any Lender's records, the recordations in the Register shall
govern.
(iv) Company, Agent and Lenders shall deem and treat the Persons listed as
Lenders in the Register as the holders and owners of the corresponding
Commitments and Loans listed therein for all purposes hereof, and no assignment
or transfer of any such Commitment or Loan shall be effective, in each case
unless and until an Assignment Agreement effecting the assignment or transfer
thereof shall have been accepted by Agent and recorded in the Register as
provided in subsection 10.1B(ii). Prior to such recordation, all amounts owed
with respect to the applicable Commitment or Loan shall be owed to the Lender
listed in the Register as the owner thereof, and any request, authority or
consent of any Person who, at the time of making such request or giving such
authority or consent, is listed in the Register as a Lender shall be conclusive
and binding on any subsequent holder, assignee or transferee of the
corresponding Commitments or Loans.
(v) Company hereby designates BTCo to serve as Company's agent solely for
purposes of maintaining the Register as provided in this subsection 2.1D, and
Company hereby agrees that, to the extent BTCo serves in such capacity, BTCo and
its officers, directors, employees, agents and affiliates shall constitute
Indemnitees for all purposes under subsection 10.3.
E. NOTES. At the request of any Lender, Company shall execute and deliver
to that Lender (or to Agent for that Lender) each of the following, as
appropriate: (i) a Term Note substantially in the form of EXHIBIT IV annexed
hereto to evidence that Lender's Term Loan, in the principal amount of that
Lender's Term Loan and with other appropriate insertions, (ii) a Revolving Note
substantially in the form of EXHIBIT V annexed hereto to evidence that Lender's
Revolving Loans, in the principal amount of that Lender's Revolving Loan
Commitment and with other appropriate insertions, and (iii) a Swing Line Note
substantially in the form of EXHIBIT VI annexed hereto to evidence that Lender's
Swing Line Loans, in the principal amount of the Swing Line Loan Commitment and
with other appropriate insertions. In the event a Lender requests such Notes
prior to the Closing Date, Company shall execute and deliver the Notes on the
Closing Date.
2.2 INTEREST ON THE LOANS
A. RATE OF INTEREST. Subject to the provisions of subsections 2.6 and 2.7,
each Term Loan and each Revolving Loan shall bear interest on the unpaid
principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Base Rate or
the Adjusted Eurodollar Rate. Subject to the provisions of subsection 2.7, each
Swing Line Loan shall bear interest on the unpaid principal amount thereof from
the date made through maturity (whether by acceleration or otherwise) at a rate
determined by reference to the Base Rate. The applicable basis for determining
the rate of interest with respect to any Term Loan or any Revolving Loan shall
be selected by Company initially at the time a Notice of Borrowing is given with
respect to such Loan pursuant to subsection 2.1B, and the basis for determining
the interest rate with respect to any Term Loan or any Revolving Loan may be
changed from time to time pursuant to subsection 2.2D. If on any day a Term Loan
or Revolving Loan is outstanding with respect to which notice has not been
delivered to Agent in accordance with the terms of this Agreement specifying the
applicable basis for determining the rate of interest, then for that day that
Loan shall bear interest determined by reference to the Base Rate. Subject to
the provisions of subsections 2.2E and 2.7, the Term Loans and the Revolving
Loans shall bear interest through maturity as follows:
(i) if a Base Rate Loan, then at the Base Rate; PROVIDED, however, if and
so long as the Eurodollar Rate Margin is 1.50% pursuant to clause (ii) below,
interest on a Base Rate Loan shall be Base Rate PLUS .25% per annum; or
(ii) if a Eurodollar Rate Loan, then at the SUM of the Adjusted Eurodollar
Rate AND the Eurodollar Rate Margin set forth in the table below, opposite the
Consolidated Leverage Ratio for the four-Fiscal Quarter period ending on the
date for which the applicable Compliance Certificate has been delivered pursuant
to subsection 6.1(iii):
Eurodollar Rate
CONSOLIDATED LEVERAGE RATIO MARGIN (PER ANNUM)
Greater than 3.25x 1.50%
Greater than 3.00x but equal to or less than 3.25x 1.25%
Greater than 2.50x but equal to or less than 3.00x 1.00%
Greater than 2.00x but equal to or less than 2.50x 0.75%
Greater than 1.50x but equal to or less than 2.00x 0.625%
Greater than 1.00x but equal to or less than 1.50x 0.50%
Equal to or less than 1.00x 0.40%
PROVIDED, that until the earlier of November 15, 1998 or the date on which
the first Compliance Certificate is delivered pursuant to subsection 6.1(iii)
for the Fiscal Quarter ended September 30, 1998, the Eurodollar Rate Margin
shall be 1.25% per annum.
Upon delivery of the Compliance Certificate by Company to Agent pursuant to
subsection 6.1(iii), the applicable Eurodollar Rate Margin shall automatically
be adjusted in accordance with such Compliance Certificate, such adjustment to
become effective on the next succeeding Business Day following receipt by Agent
of such Compliance Certificate; PROVIDED, that if at any time a Compliance
Certificate is not delivered at the time required pursuant to subsection
6.1(iii), from the time such Compliance Certificate was required to be delivered
until delivery of such Compliance Certificate, such applicable Eurodollar Rate
Margin shall be the maximum percentage amount until such Compliance Certificate
is delivered.
Subject to the provisions of subsections 2.2E and 2.7, the Swing Line Loans
shall bear interest through maturity at the Base Rate.
B. INTEREST PERIODS. In connection with each Eurodollar Rate Loan, Company
may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"INTEREST PERIOD") to be applicable to such Loan, which Interest Period shall
be, at Company's option, either a one, two, three or six month period or, if
deposits in the interbank Eurodollar market are available to all Lenders for
such period (as determined by each Lender), a nine or twelve month period;
PROVIDED that:
(i) the initial Interest Period for any Eurodollar Rate Loan shall commence
on the Funding Date in respect of such Loan, in the case of a Loan initially
made as a Eurodollar Rate Loan, or on the date specified in the applicable
Notice of Conversion/Continuation, in the case of a Loan converted to a
Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods applicable to a
Eurodollar Rate Loan continued as such pursuant to a Notice of
Conversion/Continuation, each successive Interest Period shall commence on the
day on which the next preceding Interest Period expires;
(iii) if an Interest Period would otherwise expire on a day that is not a
Business Day, such Interest Period shall expire on the next succeeding Business
Day; PROVIDED that, if any Interest Period would otherwise expire on a day that
is not a Business Day but is a day of the month after which no further Business
Day occurs in such month, such Interest Period shall expire on the next
preceding Business Day;
(iv) any Interest Period that begins on the last Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period) shall, subject to clause (v)
of this subsection 2.2B, end on the last Business Day of a calendar month;
(v) no Interest Period with respect to any portion of the Term Loans shall
extend beyond April 15, 2003 and no Interest Period with respect to any portion
of the Revolving Loans shall extend beyond the Revolving Loan Commitment
Termination Date;
(vi) no Interest Period with respect to any portion of the Term Loans shall
extend beyond a date on which Company is required to make a scheduled payment of
principal of the Term Loans unless the sum of (a) the aggregate principal amount
of Term Loans that are Base Rate Loans PLUS (b) the aggregate principal amount
of Term Loans that are Eurodollar Rate Loans with Interest Periods expiring on
or before such date equals or exceeds the principal amount required to be paid
on the Term Loans on such date;
(vii) there shall be no more than 10 Interest Periods outstanding at any
time; and
(viii) in the event Company fails to specify an Interest Period for any
Eurodollar Rate Loan in the applicable Notice of Borrowing or Notice of
Conversion/Continuation, Company shall be deemed to have selected an Interest
Period of one month.
C. INTEREST PAYMENTS. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity); PROVIDED that in the event any Swing Line Loans or any Revolving
Loans that are Base Rate Loans are prepaid pursuant to subsection 2.4B(i),
interest accrued on such Swing Line Loans or Revolving Loans through the date of
such prepayment shall be payable on the next succeeding Interest Payment Date
applicable to Base Rate Loans (or, if earlier, at final maturity).
D. CONVERSION OR CONTINUATION. Subject to the provisions of subsection 2.6,
Company shall have the option (i) to convert at any time all or any part of its
outstanding Term Loans or Revolving Loans equal to $5,000,000 and integral
multiples of $1,000,000 in excess of that amount from Loans bearing interest at
a rate determined by reference to one basis to Loans bearing interest at a rate
determined by reference to an alternative basis or (ii) upon the expiration of
any Interest Period applicable to a Eurodollar Rate Loan, to continue all or any
portion of such Loan equal to $5,000,000 and integral multiples of $1,000,000 in
excess of that amount as a Eurodollar Rate Loan; PROVIDED, HOWEVER, that a
Eurodollar Rate Loan may only be converted into a Base Rate Loan on the
expiration date of an Interest Period applicable thereto.
Company shall deliver a Notice of Conversion/Continuation to Agent no later
than 10:00 A.M. (New York City time) at least one Business Day in advance of the
proposed conversion date (in the case of a conversion to a Base Rate Loan) and
at least three Eurodollar Business Days in advance of the proposed
conversion/continuation date (in the case of a conversion to, or a continuation
of, a Eurodollar Rate Loan). A Notice of Conversion/Continuation shall specify
(i) the proposed conversion/continuation date (which shall be a Business Day),
(ii) the amount and type of the Loan to be converted/continued, (iii) the nature
of the proposed conversion/continuation, (iv) in the case of a conversion to, or
a continuation of, a Eurodollar Rate Loan, the requested Interest Period, and
(v) in the case of a conversion to, or a continuation of, a Eurodollar Rate
Loan, that no Potential Event of Default or Event of Default has occurred and is
continuing. In lieu of delivering the above-described Notice of
Conversion/Continuation, Company may give Agent telephonic notice by the
required time of any proposed conversion/continuation under this subsection
2.2D; PROVIDED that such notice shall be promptly confirmed in writing by
delivery of a Notice of Conversion/Continuation to Agent on or before the
proposed conversion/continuation date. Upon receipt of written or telephonic
notice of any proposed conversion/continuation under this subsection 2.2D, Agent
shall promptly transmit such notice by telefacsimile or telephone to each
Lender.
Neither Agent nor any Lender shall incur any liability to Company in acting
upon any telephonic notice referred to above that Agent believes in good faith
to have been given by a duly authorized officer or other person authorized to
act on behalf of Company or for otherwise acting in good faith under this
subsection 2.2D, and upon conversion or continuation of the applicable basis for
determining the interest rate with respect to any Loans in accordance with this
Agreement pursuant to any such telephonic notice Company shall have effected a
conversion or continuation, as the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a Notice
of Conversion/Continuation for conversion to, or continuation of, a Eurodollar
Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable on and
after the related Interest Rate Determination Date, and Company shall be bound
to effect a conversion or continuation in accordance therewith.
E. DEFAULT RATE. Upon the occurrence and during the continuation of any
Event of Default, the outstanding principal amount of all Loans and, to the
extent permitted by applicable law, any interest payments thereon not paid when
due and any fees and other amounts then due and payable hereunder, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable upon
demand at a rate that is 2% per annum in excess of the interest rate otherwise
payable under this Agreement with respect to the applicable Loans (or, in the
case of any such fees and other amounts, at a rate which is 2% per annum in
excess of the interest rate otherwise payable under this Agreement for Base Rate
Loans); PROVIDED that, in the case of Eurodollar Rate Loans, upon the expiration
of the Interest Period in effect at the time any such increase in interest rate
is effective such Eurodollar Rate Loans shall thereupon become Base Rate Loans
and shall thereafter bear interest payable upon demand at a rate which is 2% per
annum in excess of the interest rate otherwise payable under this Agreement for
Base Rate Loans. Payment or acceptance of the increased rates of interest
provided for in this subsection 2.2E is not a permitted alternative to timely
payment and shall not constitute a waiver of any Event of Default or otherwise
prejudice or limit any rights or remedies of Agent or any Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans shall be computed on the
basis of a 360-day year or, in the case of Base Rate Loans, a 365 or 366 day
year, in each case for the actual number of days elapsed in the period during
which it accrues. In computing interest on any Loan, the date of the making of
such Loan or the first day of an Interest Period applicable to such Loan or,
with respect to a Base Rate Loan being converted from a Eurodollar Rate Loan,
the date of conversion of such Eurodollar Rate Loan to such Base Rate Loan, as
the case may be, shall be included, and the date of payment of such Loan or the
expiration date of an Interest Period applicable to such Loan or, with respect
to a Base Rate Loan being converted to a Eurodollar Rate Loan, the date of
conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the case may
be, shall be excluded; PROVIDED that if a Loan is repaid on the same day on
which it is made, one day's interest shall be paid on that Loan.
2.3 FEES
A. COMMITMENT FEES. Company agrees to pay to Agent, for distribution to
each Revolving Lender in proportion to that Revolving Lender's Pro Rata Share,
commitment fees for the period from and including the Closing Date to and
excluding the Revolving Loan Commitment Termination Date equal to the average of
the daily excess of the Revolving Loan Commitments over the sum of the aggregate
principal amount of outstanding Revolving Loans (but not any outstanding Swing
Line Loans) and the Letter of Credit Usage MULTIPLIED BY the percentage per
annum determined by reference to the applicable percentage set forth in the
table below opposite the Consolidated Leverage Ratio for the four-Fiscal Quarter
period ending on the date for which the applicable Compliance Certificate has
been delivered pursuant to subsection 6.1(iii), such commitment fees to be
calculated on the basis of a 365 or 366-day year and the actual number of days
elapsed and to be payable quarterly in arrears on January 15, April 15, July 15
and October 15 of each year, commencing on the first such date to occur after
the Closing Date, and on the Revolving Loan Commitment Termination Date:
Commitment fee
CONSOLIDATED LEVERAGE RATIO PERCENTAGE (PER ANNUM)
Greater than 3.25x 0.35%
Greater than 3.00x but equal to or less than 3.25x 0.30%
Greater than 2.50x but equal to or less than 3.00x 0.25%
Greater than 2.00x but equal to or less than 2.50x 0.225%
Greater than 1.50x but equal to or less than 2.00x 0.20%
Greater than 1.00x but equal to or less than 1.50x 0.175%
Equal to or less than 1.00x 0.15%
PROVIDED, that until the earlier of November 15, 1998 or the date on which
the first Compliance Certificate is delivered pursuant to subsection 6.1(iii)
for the Fiscal Quarter ending September 30, 1998, the commitment fee percentage
shall equal 0.30% per annum. Upon delivery of the Compliance Certificate by
Company to Agent pursuant to subsection 6.1(iii), the applicable commitment fee
percentage shall automatically be adjusted in accordance with such Compliance
Certificate, such adjustment to become effective on the next succeeding Business
Day following receipt by Agent of such Compliance Certificate; PROVIDED, that if
at any time a Compliance Certificate is not delivered at the time required
pursuant to subsection 6.1(iii), from the time such Compliance Certificate was
required to be delivered until delivery of such Compliance Certificate, such
applicable commitment fee percentage shall be the maximum percentage amount
until such Compliance Certificate is delivered.
B. OTHER FEES. Company agrees to pay to Agent such other fees in the
amounts and at the times separately agreed upon between Company and Agent.
2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN COMMITMENTS;
GENERAL PROVISIONS REGARDING PAYMENTS
A. SCHEDULED PAYMENTS OF TERM LOANS. Company shall make principal payments
on the Term Loans in installments on the dates and in the amounts set forth
below:
Scheduled Repayment
Date of Term Loans
April 15, 1999 $27,000,000
October 15, 1999 27,000,000
April 15, 2000 36,000,000
October 15, 2000 36,000,000
April 15, 2001 45,000,000
October 15, 2001 45,000,000
April 15, 2002 48,000,000
October 15, 2002 48,000,000
April 15, 2003 48,000,000
; PROVIDED that the scheduled installments of principal of the Term Loans
set forth above shall be reduced in connection with any voluntary or mandatory
prepayments of the Term Loans in accordance with subsection 2.4B(iv); and
PROVIDED, FURTHER that the Term Loans and all other amounts owed hereunder with
respect to the Term Loans shall be paid in full no later than April 15, 2003,
and the final installment payable by Company in respect of the Term Loans on
such date shall be in an amount, if such amount is different from that specified
above, sufficient to repay all amounts owing by Company under this Agreement
with respect to the Term Loans.
B. PREPAYMENTS AND UNSCHEDULED REDUCTIONS IN REVOLVING LOAN COMMITMENTS.
(i) VOLUNTARY PREPAYMENTS. Company may, upon written or telephonic notice
to Agent on or prior to 12:00 Noon (New York City time) on the date of
prepayment, which notice, if telephonic, shall be promptly confirmed in writing,
at any time and from time to time prepay any Swing Line Loan on any Business Day
in whole or in part in an aggregate minimum amount of $500,000 and integral
multiples of $100,000 in excess of that amount. Company may, upon not less than
one Business Day's prior written or telephonic notice, in the case of Base Rate
Loans, and three Business Days' prior written or telephonic notice, in the case
of Eurodollar Rate Loans, in each case given to Agent by 12:00 Noon (New York
City time) on the date required and, if given by telephone, promptly confirmed
in writing to Agent (which original written or telephonic notice Agent will
promptly transmit by telefacsimile or telephone to each Lender), at any time and
from time to time prepay any Term Loans or Revolving Loans on any Business Day
in whole or in part in an aggregate minimum amount of $1,000,000 and integral
multiples of $500,000 in excess of that amount; PROVIDED, HOWEVER, that a
Eurodollar Rate Loan may only be prepaid on the expiration of the Interest
Period applicable thereto. Notice of prepayment having been given as aforesaid,
the principal amount of the Loans specified in such notice shall become due and
payable on the prepayment date specified therein. Any such voluntary prepayment
shall be applied as specified in subsection 2.4B(iv).
(ii) VOLUNTARY REDUCTIONS OF REVOLVING LOAN COMMITMENTS. Company may, upon
not less than one Business Day's prior written or telephonic notice confirmed in
writing to Agent (which original written or telephonic notice Agent will
promptly transmit by telefacsimile or telephone to each Lender), at any time and
from time to time terminate in whole or permanently reduce in part, without
premium or penalty, the Revolving Loan Commitments in an amount up to the amount
by which the Revolving Loan Commitments exceed the Total Utilization of
Revolving Loan Commitments at the time of such proposed termination or
reduction; PROVIDED that any such partial reduction of the Revolving Loan
Commitments shall be in an aggregate minimum amount of $1,000,000 and integral
multiples of $500,000 in excess of that amount. Company's notice to Agent shall
designate the date (which shall be a Business Day) of such termination or
reduction and the amount of any partial reduction, and such termination or
reduction of the Revolving Loan Commitments shall be effective on the date
specified in Company's notice and shall reduce the Revolving Loan Commitment of
each Lender proportionately to its Pro Rata Share.
(iii) MANDATORY PREPAYMENTS AND MANDATORY REDUCTIONS OF REVOLVING LOAN
COMMITMENTS. The Loans shall be prepaid and/or the Revolving Loan Commitments
shall be permanently reduced in the amounts and under the circumstances set
forth below, all such prepayments and/or reductions to be applied as set forth
below or as more specifically provided in subsection 2.4B(iv):
(a) PREPAYMENTS AND REDUCTIONS FROM NET ASSET SALE PROCEEDS. No later than
the first Business Day following the date of receipt by Company or any of its
Subsidiaries of any Net Asset Sale Proceeds in respect of (i) the sale or other
disposition of assets or stock of Vision which results in proceeds in excess of
$5,000,000 and (ii) any other Asset Sale in excess of $5,000,000 in the
aggregate in any Fiscal Year, Company shall prepay the Loans and/or the
Revolving Loan Commitments shall be permanently reduced in an aggregate amount
equal to such Net Asset Sale Proceeds; provided, however, that, to avoid
imposition of any costs pursuant to subsection 2.6D, in lieu of prepaying the
Loans on such first Business Day after receipt, Company may elect not to prepay
the Loans by (i) so notifying Agent in writing of such election and (ii) paying
such Net Asset Sale Proceeds to Agent for application to such prepayment at the
end of the Interest Period or Interest Periods with the shortest remaining
duration for Eurodollar Loans that exceed in aggregate amount such Net Asset
Sale Proceeds. Company may also elect, by notifying Agent in writing, to cause
the Loans to be prepaid prior to the end of such Interest Period or Interest
Periods (subject to subsection 2.6D). Any amounts held by Agent pursuant to such
election shall be invested in investments agreed upon by Agent and Company for
the account of Company, which investments shall mature no later than the end of
the appropriate Interest Period.
(b) PREPAYMENTS AND REDUCTIONS DUE TO ISSUANCE OF DEBT SECURITIES. On first
Business Day following receipt by Company or a Subsidiary of the Cash proceeds
(any such proceeds, net of underwriting discounts and commissions and other
reasonable costs and expenses associated therewith, including reasonable legal
fees and expenses, being "NET SECURITIES PROCEEDS") from the issuance of debt
Securities of Company or such Subsidiary after the Closing Date other than
Indebtedness permitted under subsection 7.1, Company shall prepay the Loans
and/or the Revolving Loan Commitments shall be permanently reduced in an
aggregate amount equal to such Net Securities Proceeds.
(c) CALCULATIONS OF NET PROCEEDS AMOUNTS; ADDITIONAL PREPAYMENTS AND
REDUCTIONS BASED ON SUBSEQUENT CALCULATIONS. Concurrently with any prepayment of
the Loans and/or reduction of the Revolving Loan Commitments pursuant to
subsections 2.4B(iii)(a)-(b), Company shall deliver to Agent an Officers'
Certificate demonstrating the calculation of the amount (the "NET PROCEEDS
AMOUNT") of the applicable Net Asset Sale Proceeds or Net Securities Proceeds
(as such term is defined in subsection 2.4B(iii)(b)) that gave rise to such
prepayment and/or reduction. In the event that Company shall subsequently
determine that the actual Net Proceeds Amount was greater than the amount set
forth in such Officers' Certificate, Company shall promptly make an additional
prepayment of the Loans (and/or, if applicable, the Revolving Loan Commitments
shall be permanently reduced) in an amount equal to the amount of such excess,
and Company shall concurrently therewith deliver to Agent an Officers'
Certificate demonstrating the derivation of the additional Net Proceeds Amount
resulting in such excess.
(d) PREPAYMENTS DUE TO REDUCTIONS OR RESTRICTIONS OF REVOLVING LOAN
Commitments. Company shall from time to time prepay FIRST the Swing Line Loans
and SECOND the Revolving Loans to the extent necessary so that the Total
Utilization of Revolving Loan Commitments shall not at any time exceed the
Revolving Loan Commitments then in effect.
(iv) APPLICATION OF PREPAYMENTS AND UNSCHEDULED REDUCTIONS OF REVOLVING
LOAN COMMITMENTS.
(a) APPLICATION OF VOLUNTARY PREPAYMENTS BY TYPE OF LOANS AND ORDER OF
Maturity. Any voluntary prepayments pursuant to subsection 2.4B(i) shall be
applied as specified by Company in the applicable notice of prepayment; PROVIDED
that in the event Company fails to specify the Loans to which any such
prepayment shall be applied, such prepayment shall be applied FIRST to repay
outstanding Swing Line Loans to the full extent thereof, SECOND to repay
outstanding Revolving Loans to the full extent thereof, and THIRD to repay
outstanding Term Loans to the full extent thereof. Any voluntary prepayments of
the Term Loans pursuant to subsection 2.4B(i) shall be applied to reduce the
scheduled installments of principal of the Term Loans set forth in subsection
2.4A as specified by Company.
(b) APPLICATION OF MANDATORY PREPAYMENTS BY TYPE OF LOANS. Any amount (the
"APPLIED AMOUNT") required to be applied as a mandatory prepayment of the Loans
and/or a reduction of the Revolving Loan Commitments pursuant to subsections
2.4B(iii)(a)-(b) shall be applied FIRST to prepay the Term Loans to the full
extent thereof, SECOND, to the extent of any remaining portion of the Applied
Amount, to prepay the Swing Line Loans to the full extent thereof and to
permanently reduce the Revolving Loan Commitments by the amount of such
prepayment, THIRD, to the extent of any remaining portion of the Applied Amount,
to prepay the Revolving Loans to the full extent thereof and to further
permanently reduce the Revolving Loan Commitments by the amount of such
prepayment, and FOURTH, to the extent of any remaining portion of the Applied
Amount, to further permanently reduce the Revolving Loan Commitments to the full
extent thereof.
(c) APPLICATION OF MANDATORY PREPAYMENTS OF TERM LOANS BY ORDER OF
MATURITY. Any mandatory prepayments of the Term Loans pursuant to subsection
2.4B(iii) shall be applied to reduce the scheduled installments of principal of
the Term Loans set forth in subsection 2.4A as follows:
(1) NET ASSET SALE PROCEEDS. Any such mandatory prepayments pursuant to
subsections 2.4B(iii)(a) (and any related such mandatory prepayments pursuant to
subsection 2.4B(iii)(d)) shall be applied on a pro rata basis (in accordance
with the respective outstanding principal amounts thereof) to each such
scheduled installment that is unpaid at the time of such prepayment.
(2) NET SECURITIES PROCEEDS. Any such mandatory prepayments pursuant to
subsections 2.4B(iii)(b) (and any related such mandatory prepayments pursuant to
subsection 2.4B(iii)(d)) shall be applied to reduce such scheduled installments
in inverse order of maturity.
(d) APPLICATION OF PREPAYMENTS TO BASE RATE LOANS AND EURODOLLAR RATE
LOANS. Considering Term Loans and Revolving Loans being prepaid separately, any
prepayment thereof shall be applied first to Base Rate Loans to the full extent
thereof before application to Eurodollar Rate Loans, in each case in a manner
which minimizes the amount of any payments required to be made by Company
pursuant to subsection 2.6D.
C. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) MANNER AND TIME OF PAYMENT. All payments by Company of principal,
interest, fees and other Obligations hereunder and under the Notes shall be made
in Dollars in same day funds, without defense, setoff or counterclaim, free of
any restriction or condition, and delivered to Agent not later than 12:00 Noon
(New York City time) on the date due at the Funding and Payment Office for the
account of Lenders; funds received by Agent after that time on such due date
shall be deemed to have been paid by Company on the next succeeding Business
Day. Company hereby authorizes Agent to charge its accounts with Agent in order
to cause timely payment to be made to Agent of all principal, interest, fees and
expenses due hereunder (subject to sufficient funds being available in its
accounts for that purpose).
(ii) APPLICATION OF PAYMENTS TO PRINCIPAL AND INTEREST. Except as provided
in subsection 2.2C, all payments in respect of the principal amount of any Loan
shall include payment of accrued interest on the principal amount being repaid
or prepaid, and all such payments (and, in any event, any payments in respect of
any Loan on a date when interest is due and payable with respect to such Loan)
shall be applied to the payment of interest before application to principal.
(iii) APPORTIONMENT OF PAYMENTS. Aggregate principal and interest payments
in respect of Term Loans and Revolving Loans shall be apportioned among all
outstanding Loans to which such payments relate, in each case proportionately to
Lenders' respective Pro Rata Shares. Agent shall promptly distribute to each
Lender, at its primary address set forth below its name on the appropriate
signature page hereof or at such other address as such Lender may request, its
Pro Rata Share of all such payments received by Agent and the commitment fees of
such Lender when received by Agent pursuant to subsection 2.3. Notwithstanding
the foregoing provisions of this subsection 2.4C(iii), if, pursuant to the
provisions of subsection 2.6C, any Notice of Conversion/Continuation is
withdrawn as to any Affected Lender or if any Affected Lender makes Base Rate
Loans in lieu of its Pro Rata Share of any Eurodollar Rate Loans, Agent shall
give effect thereto in apportioning payments received thereafter.
(iv) PAYMENTS ON BUSINESS DAYS. Whenever any payment to be made hereunder
shall be stated to be due on a day that is not a Business Day, such payment
shall be made on the next succeeding Business Day and such extension of time
shall be included in the computation of the payment of interest hereunder or of
the commitment fees hereunder, as the case may be.
(v) NOTATION OF PAYMENT. Each Lender agrees that before disposing of any
Note held by it, or any part thereof (other than by granting participations
therein), that Lender will make a notation thereon of all Loans evidenced by
that Note and all principal payments previously made thereon and of the date to
which interest thereon has been paid; PROVIDED that the failure to make (or any
error in the making of) a notation of any Loan made under such Note shall not
limit or otherwise affect the obligations of Company hereunder or under such
Note with respect to any Loan or any payments of principal or interest on such
Note.
D. APPLICATION OF PROCEEDS OF COLLATERAL AND PAYMENTS UNDER SUBSIDIARY
GUARANTY.
(i) APPLICATION OF PROCEEDS OF COLLATERAL. Except as provided in subsection
2.4B(iii)(a) with respect to prepayments from Net Asset Sale Proceeds, all
proceeds received by Agent in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral under any Collateral Document
may, in the discretion of Agent, be held by Agent as Collateral for, and/or
(then or at any time thereafter) applied in full or in part by Agent against,
the applicable Secured Obligations (as defined in such Collateral Document) in
the following order of priority:
(a) To the payment of all costs and expenses of such sale, collection or
other realization, including reasonable compensation to Agent and its agents and
counsel, and all other expenses, liabilities and advances made or incurred by
Agent in connection therewith, and all amounts for which Agent is entitled to
indemnification under such Collateral Document and all advances made by Agent
thereunder for the account of the applicable Loan Party, and to the payment of
all costs and expenses paid or incurred by Agent in connection with the exercise
of any right or remedy under such Collateral Document, all in accordance with
the terms of this Agreement and such Collateral Document;
(b) thereafter, to the extent of any excess such proceeds, to the payment
of all other such Secured Obligations for the ratable benefit of the holders
thereof;
(c) thereafter, to the extent of any excess such proceeds, to the payment
of cash collateral for Letters of Credit for the ratable benefit of the Issuing
Lenders thereof and holders of participations therein; and
(d) thereafter, to the extent of any excess such proceeds, to the payment
to or upon the order of such Loan Party or to whosoever may be lawfully entitled
to receive the same or as a court of competent jurisdiction may direct.
(ii) APPLICATION OF PAYMENTS UNDER SUBSIDIARY GUARANTY. All payments
received by Agent under the Subsidiary Guaranty shall be applied promptly from
time to time by Agent in the following order of priority:
(a) To the payment of the costs and expenses of any collection or other
realization under the Subsidiary Guaranty, including reasonable compensation to
Agent and its agents and counsel, and all expenses, liabilities and advances
made or incurred by Agent in connection therewith, all in accordance with the
terms of this Agreement and the Subsidiary Guaranty;
(b) thereafter, to the extent of any excess such payments, to the payment
of all other Guarantied Obligations (as defined in the Subsidiary Guaranty) for
the ratable benefit of the holders thereof; and
(c) thereafter, to the extent of any excess such payments, to the payment
of cash collateral for Letters of Credit for the ratable benefit of the Issuing
Lenders thereof and holders of participations therein; and
(d) thereafter, to the extent of any excess such payments, to the payment
to the applicable Subsidiary Guarantor or to whosoever may be lawfully entitled
to receive the same or as a court of competent jurisdiction may direct.
2.5 USE OF PROCEEDS
A. TERM LOANS. The proceeds of the Term Loans, together with approximately
$100 million in cash on hand at Company, shall be applied by Company to:
(i) to pay the consideration for the acquisition of ValueRx in an aggregate
maximum amount of $445 million (subject to adjustment); and
(ii) to pay fees and expenses in connection with the Acquisition in an
aggregate amount of approximately $20 million.
B. REVOLVING LOANS; SWING LINE LOANS. The proceeds of any Revolving Loans
and any Swing Line Loans shall be applied by Company for working capital
requirements and general corporate purposes, which may include the making of
intercompany loans to any of Company's wholly-owned Subsidiaries, in accordance
with subsection 7.1(iv), for their own general corporate purposes and subject to
a sublimit of $20,000,000 to issue Standby Letters of Credit.
C. MARGIN REGULATIONS. No portion of the proceeds of any borrowing under
this Agreement shall be used by Company or any of its Subsidiaries in any manner
that might cause the borrowing or the application of such proceeds to violate
Regulation U, Regulation T or Regulation X of the Board of Governors of the
Federal Reserve System or any other regulation of such Board or to violate the
Exchange Act, in each case as in effect on the date or dates of such borrowing
and such use of proceeds.
2.6 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS
Notwithstanding any other provision of this Agreement to the contrary, the
following provisions shall govern with respect to Eurodollar Rate Loans as to
the matters covered:
A. DETERMINATION OF APPLICABLE INTEREST RATE. As soon as practicable after
10:00 A.M. (New York City time) on each Interest Rate Determination Date, Agent
shall determine (which determination shall, absent manifest error, be final,
conclusive and binding upon all parties) the interest rate that shall apply to
the Eurodollar Rate Loans for which an interest rate is then being determined
for the applicable Interest Period and shall promptly give notice thereof (in
writing or by telephone confirmed in writing) to Company and each Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event that Agent
shall have determined (which determination shall be final and conclusive and
binding upon all parties hereto), on any Interest Rate Determination Date with
respect to any Eurodollar Rate Loans, that by reason of circumstances affecting
the interbank Eurodollar market adequate and fair means do not exist for
ascertaining the interest rate applicable to such Loans on the basis provided
for in the definition of Adjusted Eurodollar Rate, Agent shall on such date give
notice (by telefacsimile or by telephone confirmed in writing) to Company and
each Lender of such determination, whereupon (i) no Loans may be made as, or
converted to, Eurodollar Rate Loans until such time as Agent notifies Company
and Lenders that the circumstances giving rise to such notice no longer exist
and (ii) any Notice of Borrowing or Notice of Conversion/Continuation given by
Company with respect to the Loans in respect of which such determination was
made shall be deemed to be rescinded by Company.
C. ILLEGALITY OR IMPRACTICABILITY OF EURODOLLAR RATE LOANS. In the event
that on any date any Lender shall have determined (which determination shall be
final and conclusive and binding upon all parties hereto but shall be made only
after consultation with Company and Agent) that the making, maintaining or
continuation of its Eurodollar Rate Loans (i) has become unlawful as a result of
compliance by such Lender in good faith with any law, treaty, governmental rule,
regulation, guideline or order (or would conflict with any such treaty,
governmental rule, regulation, guideline or order not having the force of law
even though the failure to comply therewith would not be unlawful) or (ii) has
become impracticable, or would cause such Lender material hardship, as a result
of contingencies occurring after the date of this Agreement which materially and
adversely affect the interbank Eurodollar market or the position of such Lender
in that market, then, and in any such event, such Lender shall be an "AFFECTED
LENDER" and it shall on that day give notice (by telefacsimile or by telephone
confirmed in writing) to Company and Agent of such determination (which notice
Agent shall promptly transmit to each other Lender). Thereafter (a) the
obligation of the Affected Lender to make Loans as, or to convert Loans to,
Eurodollar Rate Loans shall be suspended until such notice shall be withdrawn by
the Affected Lender, (b) to the extent such determination by the Affected Lender
relates to a Eurodollar Rate Loan then being requested by Company pursuant to a
Notice of Borrowing or a Notice of Conversion/Continuation, the Affected Lender
shall make such Loan as (or convert such Loan to, as the case may be) a Base
Rate Loan, (c) the Affected Lender's obligation to maintain its outstanding
Eurodollar Rate Loans (the "AFFECTED LOANS") shall be terminated at the earlier
to occur of the expiration of the Interest Period then in effect with respect to
the Affected Loans or when required by law, and (d) the Affected Loans shall
automatically convert into Base Rate Loans on the date of such termination.
Notwithstanding the foregoing, to the extent a determination by an Affected
Lender as described above relates to a Eurodollar Rate Loan then being requested
by Company pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, Company shall have the option, subject to the
provisions of subsection 2.6D, to rescind such Notice of Borrowing or Notice of
Conversion/Continuation as to all Lenders by giving notice (by telefacsimile or
by telephone confirmed in writing) to Agent of such rescission on the date on
which the Affected Lender gives notice of its determination as described above
(which notice of rescission Agent shall promptly transmit to each other Lender).
Except as provided in the immediately preceding sentence, nothing in this
subsection 2.6C shall affect the obligation of any Lender other than an Affected
Lender to make or maintain Loans as, or to convert Loans to, Eurodollar Rate
Loans in accordance with the terms of this Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST PERIODS.
Company shall compensate each Lender, upon written request by that Lender (which
request shall set forth in reasonable detail the basis for requesting such
amounts), for all reasonable losses, expenses and liabilities (including any
interest paid by that Lender to lenders of funds borrowed by it to make or carry
its Eurodollar Rate Loans and any loss, expense or liability sustained by that
Lender in connection with the liquidation or re-employment of such funds) which
that Lender may sustain: (i) if for any reason (other than a default by that
Lender) a borrowing of any Eurodollar Rate Loan does not occur on a date
specified therefor in a Notice of Borrowing or a telephonic request for
borrowing, or a conversion to or continuation of any Eurodollar Rate Loan does
not occur on a date specified therefor in a Notice of Conversion/Continuation or
a telephonic request for conversion or continuation, (ii) if any prepayment
(including any prepayment pursuant to subsection 2.4B(i)) or other principal
payment or any conversion of any of its Eurodollar Rate Loans occurs on a date
prior to the last day of an Interest Period applicable to that Loan, (iii) if
any prepayment of any of its Eurodollar Rate Loans is not made on any date
specified in a notice of prepayment given by Company, or (iv) as a consequence
of any other default by Company in the repayment of its Eurodollar Rate Loans
when required by the terms of this Agreement.
E. BOOKING OF EURODOLLAR RATE LOANS. Any Lender may make, carry or transfer
Eurodollar Rate Loans at, to, or for the account of any of its branch offices or
the office of an Affiliate of that Lender; PROVIDED, that such making, carrying
or transferring Eurodollar Rate Loans does not result in any costs or taxes to
Company pursuant to subsection 2.7.
F. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR RATE LOANS. Calculation of
all amounts payable to a Lender under this subsection 2.6 and under subsection
2.7A shall be made as though that Lender had actually funded each of its
relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar
Rate Loan and having a maturity comparable to the relevant Interest Period and
through the transfer of such Eurodollar deposit from an offshore office of that
Lender to a domestic office of that Lender in the United States of America;
PROVIDED, HOWEVER, that each Lender may fund each of its Eurodollar Rate Loans
in any manner it sees fit and the foregoing assumptions shall be utilized only
for the purposes of calculating amounts payable under this subsection 2.6 and
under subsection 2.7A.
G. EURODOLLAR RATE LOANS AFTER DEFAULT. After the occurrence of and during
the continuation of a Potential Event of Default or an Event of Default, (i)
Company may not elect to have a Loan be made or maintained as, or converted to,
a Eurodollar Rate Loan after the expiration of any Interest Period then in
effect for that Loan and (ii) subject to the provisions of Subsection 2.6D, any
Notice of Borrowing or Notice of Conversion/Continuation given by Company with
respect to a requested borrowing or conversion/continuation that has not yet
occurred shall be deemed to be rescinded by Company.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY
A. COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the provisions of
subsection 2.7B (which shall be controlling with respect to the matters covered
thereby), in the event that any Lender shall determine (which determination
shall, absent manifest error, be final and conclusive and binding upon all
parties hereto) that any law, treaty or governmental rule, regulation or order,
or any change therein or in the interpretation, administration or application
thereof (including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or governmental authority,
in each case that becomes effective after the date hereof, or compliance by such
Lender with any guideline, request or directive issued or made after the date
hereof by any central bank or other governmental or quasi-governmental authority
(whether or not having the force of law):
(i) subjects such Lender (or its applicable lending office) to any
additional Tax (other than any Tax on the overall net income of such Lender)
with respect to this Agreement or any of its obligations hereunder or any
payments to such Lender (or its applicable lending office) of principal,
interest, fees or any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve (including any
marginal, emergency, supplemental, special or other reserve), special deposit,
compulsory loan, FDIC insurance or similar requirement against assets held by,
or deposits or other liabilities in or for the account of, or advances or loans
by, or other credit extended by, or any other acquisition of funds by, any
office of such Lender (other than any such reserve or other requirements with
respect to Eurodollar Rate Loans that are reflected in the definition of
Adjusted Eurodollar Rate); or
(iii) imposes any other condition (other than with respect to a Tax matter)
on or affecting such Lender (or its applicable lending office) or its
obligations hereunder or the interbank Eurodollar market; and the result of any
of the foregoing is to increase the cost to such Lender of agreeing to make,
making or maintaining Loans hereunder or to reduce any amount received or
receivable by such Lender (or its applicable lending office) with respect
thereto; then, in any such case, Company shall promptly pay to such Lender, upon
receipt of the statement referred to in the next sentence, such additional
amount or amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Lender in its sole discretion shall
determine) as may be necessary to compensate such Lender for any such increased
cost or reduction in amounts received or receivable hereunder; PROVIDED that
Company shall not be required to compensate a Lender pursuant to this subsection
for any increased cost or reduction incurred more than one year prior to the
date that such Lender notifies Company of such change giving rise to such
increased cost or reduction and of such Lender's intention to claim compensation
therefor; PROVIDED further that, if such change giving rise to such increased
cost or reduction is retroactive, then the one year period referred to above
shall be extended to include the period of retroactive effect thereof. Such
Lender shall deliver to Company (with a copy to Agent) a written statement,
setting forth in reasonable detail the basis for calculating the additional
amounts owed to such Lender under this subsection 2.7A, which statement shall be
conclusive and binding upon all parties hereto absent manifest error.
B. WITHHOLDING OF TAXES.
(i) PAYMENTS TO BE FREE AND CLEAR. All sums payable by Company under this
Agreement and the other Loan Documents shall (except to the extent required by
law) be paid free and clear of, and without any deduction or withholding on
account of, any Tax (other than a Tax on the overall net income of any Lender)
imposed, levied, collected, withheld or assessed by or within the United States
of America or any political subdivision in or of the United States of America or
any other jurisdiction from or to which a payment is made by or on behalf of
Company or by any federation or organization of which the United States of
America or any such jurisdiction is a member at the time of payment.
(ii) GROSSING-UP OF PAYMENTS. If Company or any other Person is required by
law to make any deduction or withholding on account of any such Tax from any sum
paid or payable by Company to Agent or any Lender under any of the Loan
Documents:
(a) Company shall notify Agent of any such requirement or any change in any
such requirement as soon as Company becomes aware of it;
(b) Company shall pay any such Tax before the date on which penalties
attach thereto, such payment to be made (if the liability to pay is imposed on
Company) for its own account or (if that liability is imposed on Agent or such
Lender, as the case may be) on behalf of and in the name of Agent or such
Lender;
(c) the sum payable by Company in respect of which the relevant deduction,
withholding or payment is required shall be increased to the extent necessary to
ensure that, after the making of that deduction, withholding or payment, Agent
or such Lender, as the case may be, receives on the due date a net sum equal to
what it would have received had no such deduction, withholding or payment been
required or made; and
(d) within 30 days after paying any sum from which it is required by law to
make any deduction or withholding, and within 30 days after the due date of
payment of any Tax which it is required by clause (b) above to pay, Company
shall deliver to Agent evidence satisfactory to the other affected parties of
such deduction, withholding or payment and of the remittance thereof to the
relevant taxing or other authority;
PROVIDED that no such additional amount shall be required to be paid to any
Lender under clause (c) above except to the extent that any change in any law,
treaty or governmental rule, regulation or order, or any change therein or in
the interpretation, administration or application thereof (including the
introduction of any new law, treaty or governmental rule, regulation or order),
or any determination of a court or governmental authority, in each case that
becomes effective after the date hereof (in the case of each Lender listed on
the signature pages hereof) or after the date of the Assignment Agreement
pursuant to which such Lender became a Lender (in the case of each other Lender)
affecting any such requirement for a deduction, withholding or payment as is
mentioned therein shall result in an increase in the rate of such deduction,
withholding or payment from that in effect at the date of this Agreement or at
the date of such Assignment Agreement, as the case may be, in respect of
payments to such Lender.
(iii) EVIDENCE OF EXEMPTION FROM U.S. WITHHOLDING TAX.
(a) Each Lender that is not a United States person as defined in Section
7701(a)(30) of the Internal Revenue Code (for purposes of this subsection
2.7B(iii), a "NON-US LENDER") shall deliver to Agent for transmission to
Company, on or prior to the Closing Date (in the case of each Lender listed on
the signature pages hereof) or on or prior to the date of the Assignment
Agreement pursuant to which it becomes a Lender (in the case of each other
Lender), and at such other times as may be necessary in the determination of
Company or Agent (each in the reasonable exercise of its discretion), (1) two
original copies of Internal Revenue Service Form 1001 or 4224 (or any successor
forms), properly completed and duly executed by such Lender, together with any
other certificate or statement of exemption required under the Internal Revenue
Code or the regulations issued thereunder to establish that such Lender is not
subject to deduction or withholding of United States federal income tax with
respect to any payments to such Lender of principal, interest, fees or other
amounts payable under any of the Loan Documents or (2) if such Lender is not a
"bank" or other Person described in Section 881(c)(3) of the Internal Revenue
Code and cannot deliver either Internal Revenue Service Form 1001 or 4224
pursuant to clause (1) above, a Certificate re Non-Bank Status together with two
original copies of Internal Revenue Service Form W-8 (or any successor form),
properly completed and duly executed by such Lender, together with any other
certificate or statement of exemption required under the Internal Revenue Code
or the regulations issued thereunder to establish that such Lender is not
subject to deduction or withholding of United States federal income tax with
respect to any payments to such Lender of interest payable under any of the Loan
Documents.
(b) Each Lender required to deliver any forms, certificates or other
evidence with respect to United States federal income tax withholding matters
pursuant to subsection 2.7B(iii)(a) hereby agrees, from time to time after the
initial delivery by such Lender of such forms, certificates or other evidence,
whenever a lapse in time or change in circumstances renders such forms,
certificates or other evidence obsolete or inaccurate in any material respect,
that such Lender shall promptly (1) deliver to Agent for transmission to Company
two new original copies of Internal Revenue Service Form 1001 or 4224, or a
Certificate re Non-Bank Status and two original copies of Internal Revenue
Service Form W-8, as the case may be, properly completed and duly executed by
such Lender, together with any other certificate or statement of exemption
required in order to confirm or establish that such Lender is not subject to
deduction or withholding of United States federal income tax with respect to
payments to such Lender under the Loan Documents or (2) notify Agent and Company
of its inability to deliver any such forms, certificates or other evidence.
(c) Company shall not be required to pay any additional amount to any
Non-US Lender under clause (c) of subsection 2.7B(ii) if such Lender shall have
failed to satisfy the requirements of clause (a) or (b)(1) of this subsection
2.7B(iii); PROVIDED that if such Lender shall have satisfied the requirements of
subsection 2.7B(iii)(a) on the Closing Date (in the case of each Lender listed
on the signature pages hereof) or on the date of the Assignment Agreement
pursuant to which it became a Lender (in the case of each other Lender), nothing
in this subsection 2.7B(iii)(c) shall relieve Company of its obligation to pay
any additional amounts pursuant to clause (c) of subsection 2.7B(ii) in the
event that, as a result of any change in any applicable law, treaty or
governmental rule, regulation or order, or any change in the interpretation,
administration or application thereof, such Lender is no longer properly
entitled to deliver forms, certificates or other evidence at a subsequent date
establishing the fact that such Lender is not subject to withholding as
described in subsection 2.7B(iii)(a).
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have determined that
the adoption, effectiveness, phase-in or applicability after the date hereof of
any law, rule or regulation (or any provision thereof) regarding capital
adequacy, or any change therein or in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
(or its applicable lending office) with any guideline, request or directive
regarding capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to,
such Lender's Loans or Commitments or Letters of Credit or participations
therein or other obligations hereunder with respect to the Loans or the Letters
of Credit to a level below that which such Lender or such controlling
corporation could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy),
then from time to time, within five Business Days after receipt by Company from
such Lender of the statement referred to in the next sentence, Company shall pay
to such Lender such additional amount or amounts as will compensate such Lender
or such controlling corporation on an after-tax basis for such reduction;
PROVIDED that Company shall not be required to compensate a Lender pursuant to
this subsection for any reduction incurred more than one year prior to the date
that such Lender notifies Company of such change giving rise to such reduction
and of such Lender's intention to claim compensation therefor; PROVIDED further
that, if such change giving rise to such reduction is retroactive, then the one
year period referred to above shall be extended to include the period of
retroactive effect thereof. Such Lender shall deliver to Company (with a copy to
Agent) a written statement, setting forth in reasonable detail the basis of the
calculation of such additional amounts, which statement shall be conclusive and
binding upon all parties hereto absent manifest error.
D. REFUND AND CONTEST. If Agent or any Lender receives a refund with
respect to Tax deducted, withheld or paid by Company and with respect to which
Company has been required to and has paid an additional amount under this
subsection 2.7, which in the good faith judgment of such Lender is allocable to
such deduction, withholding or payment, it shall promptly pay such refund,
together with any other amount paid by Company in connection with such refunded
Tax, to Company, net of all out-of-pocket expenses of such Lender incurred in
obtaining such refund, PROVIDED, HOWEVER, that Company agrees to promptly return
such refund to Agent or the applicable Lender, as the case may be, if it
receives notice from Agent or applicable Lender that such Agent or Lender is
required to repay such refund. Each of Agent and such Lender agrees that it will
contest such Tax or liabilities paid by Company if Agent or such Lender
determines, in good faith and in its sole discretion, that it would not be
materially disadvantaged or prejudiced as a result of such contest.
2.8 OBLIGATION OF LENDERS AND ISSUING LENDERS TO MITIGATE; REPLACEMENT
A. MITIGATION. Each Lender and Issuing Lender agrees that, as promptly as
practicable after the officer of such Lender or Issuing Lender responsible for
administering the Loans or Letters of Credit of such Lender or Issuing Lender,
as the case may be, becomes aware of the occurrence of an event or the existence
of a condition that would cause such Lender to become an Affected Lender or that
would entitle such Lender or Issuing Lender to receive payments under subsection
2.7 or subsection 3.6, it will, to the extent not inconsistent with the internal
policies of such Lender or Issuing Lender and any applicable legal or regulatory
restrictions, use reasonable efforts (i) to make, issue, fund or maintain the
Commitments of such Lender or the affected Loans or Letters of Credit of such
Lender or Issuing Lender through another lending or letter of credit office of
such Lender or Issuing Lender, or (ii) take such other measures as such Lender
or Issuing Lender may deem reasonable, if as a result thereof the circumstances
which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such
Lender or Issuing Lender pursuant to subsection 2.7 or subsection 3.6 would be
materially reduced and if, as determined by such Lender or Issuing Lender in its
sole discretion, the making, issuing, funding or maintaining of such Commitments
or Loans or Letters of Credit through such other lending or letter of credit
office or in accordance with such other measures, as the case may be, would not
otherwise materially adversely affect such Commitments or Loans or Letters of
Credit or the interests of such Lender or Issuing Lender; PROVIDED that such
Lender or Issuing Lender will not be obligated to utilize such other lending or
letter of credit office pursuant to this subsection 2.8 unless Company agrees to
pay all reasonable incremental expenses incurred by such Lender or Issuing
Lender as a result of utilizing such other lending or letter of credit office as
described in clause (i) above. A certificate as to the amount of any such
expenses payable by Company pursuant to this subsection 2.8 (setting forth in
reasonable detail the basis for requesting such amount) submitted by such Lender
or Issuing Lender to Company (with a copy to Agent) shall be conclusive absent
manifest error.
B. REPLACEMENT. In the event of (a) a refusal by a Lender to consent to a
proposed change, waiver, discharge or termination with respect to this Agreement
which has been approved by Requisite Lenders (but requires consent of all
Lenders) as provided in subsection 10.6, (b) any Lender requests compensation
under subsections 2.7A or 2.7C, (c) Company is required to pay any additional
amount to any Lender or any governmental authority for the account of any Lender
pursuant to subsection 2.7B, or (d) any Lender defaults in its obligation to
fund Loans hereunder, then Company may, at its sole expense and effort, if no
Potential Event of Default or Event of Default then exists, to replace such
Lender (a "REPLACED LENDER") with one or more Eligible Assignees (collectively,
the "REPLACEMENT LENDER") acceptable to Agent, PROVIDED that (i) at the time of
any replacement pursuant to this subsection 2.8 the Replacement Lender shall
enter into one or more Assignment Agreements pursuant to subsection 10.1B (and
with all fees payable pursuant to such subsection 10.1B to be paid by the
Replacement Lender) pursuant to which the Replacement Lender shall acquire all
of the outstanding Loans and Commitments of, and in each case participations in
Letters of Credit and Swing Line Loans by, the Replaced Lender and, in
connection therewith, shall pay to (x) the Replaced Lender in respect thereof an
amount equal to the sum of (A) an amount equal to the principal of, and all
accrued interest on, all outstanding Loans of the Replaced Lender, (B) an amount
equal to all unpaid drawings with respect to Letters of Credit that have been
funded by (and not reimbursed to) such Replaced Lender, together with all then
unpaid interest with respect thereto at such time and (C) an amount equal to all
accrued, but theretofore unpaid, fees owing to the Replaced Lender with respect
thereto, (y) the appropriate Issuing Lender an amount equal to such Replaced
Lender's Pro Rata Share of any unpaid drawings with respect to Letters of Credit
(which at such time remains an unpaid drawing) issued by it to the extent such
amount was not theretofore funded by such Replaced Lender, and (z) Swing Line
Lender an amount equal to such Replaced Lender's Pro Rata Share of any Refunded
Swing Line Loans to the extent such amount was not theretofore funded by such
Replaced Lender, and (ii) all obligations (including without limitation all such
amounts, if any, owing under subsection 2.6D) of Company owing to the Replaced
Lender (other than those specifically described in clause (i) above in respect
of which the assignment purchase price has been, or is concurrently being,
paid), shall be paid in full to such Replaced Lender concurrently with such
replacement. Upon the execution of the respective Assignment Agreements and the
acceptance thereof by Agent pursuant to subsection 10.1B, the payment of amounts
referred to in clauses (i) and (ii) above and, if so requested by the
Replacement Lender, delivery to the Replacement Lender of the appropriate Note
or Notes executed by Company, the Replacement Lender shall become a Lender
hereunder and the Replaced Lender shall cease to constitute a Lender hereunder
except with respect to indemnification provisions under this Agreement which by
the terms of this Agreement survive the termination of this Agreement, which
indemnification provisions shall survive as to such Replaced Lender.
Notwithstanding anything to the contrary contained above, no Issuing Lender may
be replaced hereunder at any time while it has Letters of Credit outstanding
hereunder unless arrangements satisfactory to such Issuing Lender (including the
furnishing of a Standby Letter of Credit in form and substance, and issued by an
issuer satisfactory to such Issuing Lender or the furnishing of cash collateral
in amounts and pursuant to arrangements satisfactory to such Issuing Lender)
have been made with respect to such outstanding Letters of Credit. A Lender
shall not be required to make any such assignment and delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances
entitling Company to require such assignment and delegation cease to apply.
SECTION 3. LETTERS OF CREDITSECTION
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF PARTICIPATIONS
THEREIN
A. LETTERS OF CREDIT. In addition to Company requesting that Revolving
Lenders make Revolving Loans pursuant to subsection 2.1A(ii) and that Swing Line
Lender make Swing Line Loans pursuant to subsection 2.1A(iii), Company may
request, in accordance with the provisions of this subsection 3.1, from time to
time during the period from the Closing Date to but excluding the date that is
30 days prior to the Revolving Loan Commitment Termination Date, that one or
more Revolving Lenders issue Letters of Credit for the account of Company for
the purposes specified in the definition of Standby Letters of Credit. Subject
to the terms and conditions of this Agreement and in reliance upon the
representations and warranties of Company herein set forth, any one or more
Revolving Lenders may, but (except as provided in subsection 3.1B(ii)) shall not
be obligated to, issue such Letters of Credit in accordance with the provisions
of this subsection 3.1; PROVIDED that such Letters of Credit shall be issued on
a sight basis only and Company shall not request that any Revolving Lender issue
(and no Revolving Lender shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the
Total Utilization of Revolving Loan Commitments would exceed the Revolving Loan
Commitments then in effect;
(ii) any Letter of Credit if, after giving effect to such issuance, the
Letter of Credit Usage would exceed $20,000,000;
(iii) any Letter of Credit denominated in a currency other than Dollars; or
(iv) any Letter of Credit having an expiration date later than the earlier
of (a) the date that is ten Business Days prior to the Revolving Loan Commitment
Termination Date and (b) the date which is one year from the date of issuance of
such Letter of Credit; PROVIDED that the immediately preceding clause (b) shall
not prevent any Issuing Lender from agreeing that a Letter of Credit will
automatically be extended for one or more successive periods not to exceed one
year each unless such Issuing Lender elects not to extend for any such
additional period; and PROVIDED, FURTHER that such Issuing Lender shall elect
not to extend such Letter of Credit if it has knowledge that an Event of Default
has occurred and is continuing (and has not been waived in accordance with
subsection 10.6) at the time such Issuing Lender must elect whether or not to
allow such extension.
B. MECHANICS OF ISSUANCE.
(i) NOTICE OF ISSUANCE. Whenever Company desires the issuance of a Letter
of Credit, it shall deliver to Agent a Notice of Request to Issue Letter of
Credit substantially in the form of EXHIBIT III annexed hereto no later than
12:00 Noon (New York City time) at least three Business Days or in each case
such shorter period as may be agreed to by the Issuing Lender in any particular
instance, in advance of the proposed date of issuance. The Notice of Request to
Issue Letter of Credit shall specify (a) the proposed date of issuance (which
shall be a Business Day), (b) the face amount of the Letter of Credit, (c) the
expiration date of the Letter of Credit, (d) the name and address of the
beneficiary, and (e) either the verbatim text of the proposed Letter of Credit
or the proposed terms and conditions thereof, including a precise description of
any documents to be presented by the beneficiary which, if presented by the
beneficiary prior to the expiration date of the Letter of Credit, would require
the Issuing Lender to make payment under the Letter of Credit; PROVIDED that the
Issuing Lender, in its reasonable discretion, may require changes in the text of
the proposed Letter of Credit or any such documents.
Company shall notify the applicable Issuing Lender (and Agent, if Agent is
not such Issuing Lender) prior to the issuance of any Letter of Credit in the
event that any of the matters to which Company is required to certify in the
applicable Notice of Request to Issue Letter of Credit is no longer true and
correct as of the proposed date of issuance of such Letter of Credit, and upon
the issuance of any Letter of Credit Company shall be deemed to have
re-certified, as of the date of such issuance, as to the matters to which
Company is required to certify in the applicable Notice of Request to Issue
Letter of Credit.
(ii) DETERMINATION OF ISSUING LENDER. Upon receipt by Agent of a Notice of
Request to Issue Letter of Credit pursuant to subsection 3.1B(i) requesting the
issuance of a Letter of Credit, in the event Agent elects to issue such Letter
of Credit, Agent shall promptly so notify Company, and Agent shall be the
Issuing Lender with respect thereto. In the event that Agent, in its sole
discretion, elects not to issue such Letter of Credit, Agent shall promptly so
notify Company, whereupon Company may request any other Revolving Lender to
issue such Letter of Credit by delivering to such Revolving Lender a copy of the
applicable Notice of Request to Issue Letter of Credit. Any Revolving Lender so
requested to issue such Letter of Credit shall promptly notify Company and Agent
whether or not, in its sole discretion, it has elected to issue such Letter of
Credit, and any such Revolving Lender which so elects to issue such Letter of
Credit shall be the Issuing Lender with respect thereto. In the event that all
other Revolving Lenders shall have declined to issue such Letter of Credit,
notwithstanding the prior election of Agent not to issue such Letter of Credit,
Agent shall be obligated to issue such Letter of Credit and shall be the Issuing
Lender with respect thereto, notwithstanding the fact that the Letter of Credit
Usage with respect to such Letter of Credit and with respect to all other
Letters of Credit issued by Agent, when aggregated with Agent's outstanding
Revolving Loans and Swing Line Loans, may exceed Agent's Revolving Loan
Commitment then in effect.
(iii) ISSUANCE OF LETTER OF CREDIT. Upon satisfaction or waiver (in
accordance with subsection 10.6) of the conditions set forth in subsection 4.3,
the Issuing Lender shall issue the requested Letter of Credit in accordance with
the Issuing Lender's standard operating procedures.
(iv) NOTIFICATION TO REVOLVING LENDERS. Upon the issuance of any Letter of
Credit the applicable Issuing Lender shall promptly notify Agent and each other
Revolving Lender of such issuance, which notice shall be accompanied by a copy
of such Letter of Credit. Promptly after receipt of such notice (or, if Agent is
the Issuing Lender, together with such notice), Agent shall notify each
Revolving Lender of the amount of such Revolving Lender's respective
participation in such Letter of Credit, determined in accordance with subsection
3.1C.
(v) REPORTS TO REVOLVING LENDERS. Within 15 days after the end of each
calendar quarter ending after the Closing Date, so long as any Letter of Credit
shall have been outstanding during such calendar quarter, each Issuing Lender
shall deliver to each other Revolving Lender a report setting forth for such
calendar quarter the daily aggregate amount available to be drawn under the
Letters of Credit issued by such Issuing Lender that were outstanding during
such calendar quarter.
C. REVOLVING LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF CREDIT.
Immediately upon the issuance of each Letter of Credit, each Revolving Lender
shall be deemed to, and hereby agrees to, have irrevocably purchased from the
Issuing Lender a participation in such Letter of Credit and any drawings honored
thereunder in an amount equal to such Revolving Lender's Pro Rata Share of the
maximum amount which is or at any time may become available to be drawn
thereunder.
3.2 LETTER OF CREDIT FEES
Company agrees to pay the following amounts with respect to Letters of
Credit issued hereunder:
(i) with respect to each Letter of Credit, (a) a fronting fee, payable
directly to the applicable Issuing Lender for its own account, equal to the
greater of $500 or 0.1875% per annum of the daily amount available to be drawn
under such Letter of Credit and (b) a letter of credit fee, payable to Agent for
the account of Revolving Lenders, equal to the applicable Eurodollar Rate Margin
MINUS 0.1875% per annum of the daily amount available to be drawn under such
Letter of Credit, each such fronting fee or letter of credit fee to be payable
in arrears on and to (but excluding) each January 15, April 15, July 15 and
October 15 of each year and computed on the basis of a 365 or 366 day year for
the actual number of days elapsed;
(ii) with respect to the issuance, amendment or transfer of each Letter of
Credit and each payment of a drawing made thereunder (without duplication of the
fees payable under clauses (i) and (ii) above), documentary and processing
charges payable directly to the applicable Issuing Lender for its own account in
accordance with such Issuing Lender's standard schedule for such charges in
effect at the time of such issuance, amendment, transfer or payment, as the case
may be.
For purposes of calculating any fees payable under clause (i) of this
subsection 3.2, the daily amount available to be drawn under any Letter of
Credit shall be determined as of the close of business on any date of
determination. Promptly upon receipt by Agent of any amount described in clause
(i)(b) of this subsection 3.2, Agent shall distribute to each Revolving Lender
its Pro Rata Share of such amount.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS PAID UNDER LETTERS OF CREDIT
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO DRAWINGS. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care so as to
ascertain whether they appear on their face to be in accordance with the terms
and conditions of such Letter of Credit.
B. REIMBURSEMENT BY COMPANY OF AMOUNTS PAID UNDER LETTERS OF CREDIT. In the
event an Issuing Lender has determined to honor a drawing under a Letter of
Credit issued by it, such Issuing Lender shall immediately notify Company and
Agent, and Company shall reimburse such Issuing Lender on or before the Business
Day immediately following the date on which such drawing is honored (the
"REIMBURSEMENT DATE") in an amount in Dollars and in same day funds equal to the
amount of such honored drawing; PROVIDED that, anything contained in this
Agreement to the contrary notwithstanding, (i) unless Company shall have
notified Agent and such Issuing Lender prior to 10:00 A.M. (New York City time)
on the date such drawing is honored that Company intends to reimburse such
Issuing Lender for the amount of such honored drawing with funds other than the
proceeds of Revolving Loans, Company shall be deemed to have given a timely
Notice of Borrowing to Agent requesting Revolving Lenders to make Revolving
Loans that are Base Rate Loans on the Reimbursement Date in an amount in Dollars
equal to the amount of such honored drawing and (ii) subject to satisfaction or
waiver of the conditions specified in subsection 4.2B, Revolving Lenders shall,
on the Reimbursement Date, make Revolving Loans that are Base Rate Loans in the
amount of such honored drawing, the proceeds of which shall be applied directly
by Agent to reimburse such Issuing Lender for the amount of such honored
drawing; and PROVIDED, FURTHER that if for any reason proceeds of Revolving
Loans are not received by such Issuing Lender on the Reimbursement Date in an
amount equal to the amount of such honored drawing, Company shall reimburse such
Issuing Lender, on demand, in an amount in same day funds equal to the excess of
the amount of such honored drawing over the aggregate amount of such Revolving
Loans, if any, which are so received. Nothing in this subsection 3.3B shall be
deemed to relieve any Revolving Lender from its obligation to make Revolving
Loans on the terms and conditions set forth in this Agreement, and Company shall
retain any and all rights it may have against any Revolving Lender resulting
from the failure of such Revolving Lender to make such Revolving Loans under
this subsection 3.3B.
C. PAYMENT BY REVOLVING LENDERS OF UNREIMBURSED AMOUNTS PAID UNDER LETTERS
OF CREDIT.
(i) PAYMENT BY REVOLVING LENDERS. In the event that Company shall fail for
any reason to reimburse any Issuing Lender as provided in subsection 3.3B in an
amount equal to the amount of any drawing honored by such Issuing Lender under a
Letter of Credit issued by it, such Issuing Lender shall promptly notify each
other Revolving Lender of the unreimbursed amount of such honored drawing and of
such other Revolving Lender's respective participation therein based on such
Revolving Lender's Pro Rata Share. Each Revolving Lender shall make available to
such Issuing Lender an amount equal to its respective participation, in Dollars
and in same day funds, at the office of such Issuing Lender specified in such
notice, not later than 12:00 Noon (New York City time) on the first business day
(under the laws of the jurisdiction in which such office of such Issuing Lender
is located) after the date notified by such Issuing Lender. In the event that
any Revolving Lender fails to make available to such Issuing Lender on such
business day the amount of such Revolving Lender's participation in such Letter
of Credit as provided in this subsection 3.3C, such Issuing Lender shall be
entitled to recover such amount on demand from such Revolving Lender together
with interest thereon at the rate customarily used by such Issuing Lender for
the correction of errors among banks for three Business Days and thereafter at
the Base Rate. Nothing in this subsection 3.3C shall be deemed to prejudice the
right of any Revolving Lender to recover from any Issuing Lender any amounts
made available by such Revolving Lender to such Issuing Lender pursuant to this
subsection 3.3C in the event that it is determined by the final judgment of a
court of competent jurisdiction that the payment with respect to a Letter of
Credit by such Issuing Lender in respect of which payment was made by such
Revolving Lender constituted gross negligence or willful misconduct on the part
of such Issuing Lender.
(ii) DISTRIBUTION TO REVOLVING LENDERS OF REIMBURSEMENTS RECEIVED FROM
COMPANY. In the event any Issuing Lender shall have been reimbursed by other
Revolving Lenders pursuant to subsection 3.3C(i) for all or any portion of any
drawing honored by such Issuing Lender under a Letter of Credit issued by it,
such Issuing Lender shall distribute to each other Revolving Lender which has
paid all amounts payable by it under subsection 3.3C(i) with respect to such
honored drawing such other Revolving Lender's Pro Rata Share of all payments
subsequently received by such Issuing Lender from Company in reimbursement of
such honored drawing when such payments are received. Any such distribution
shall be made to a Revolving Lender at its primary address set forth below its
name on the appropriate signature page hereof or at such other address as such
Revolving Lender may request.
D. INTEREST ON AMOUNTS PAID UNDER LETTERS OF CREDIT.
(i) PAYMENT OF INTEREST BY COMPANY. Company agrees to pay to each Issuing
Lender, with respect to drawings honored under any Letters of Credit issued by
it, interest on the amount paid by such Issuing Lender in respect of each such
honored drawing from the date such drawing is honored to but excluding the date
such amount is reimbursed by Company (including any such reimbursement out of
the proceeds of Revolving Loans pursuant to subsection 3.3B) at a rate equal to
(a) for the period from the date such drawing is honored to but excluding the
Reimbursement Date, the rate then in effect under this Agreement with respect to
Revolving Loans that are Base Rate Loans and (b) thereafter, a rate which is 2%
per annum in excess of the rate of interest otherwise payable under this
Agreement with respect to Revolving Loans that are Base Rate Loans. Interest
payable pursuant to this subsection 3.3D(i) shall be computed on the basis of a
365 or 366 day year for the actual number of days elapsed in the period during
which it accrues and shall be payable on demand or, if no demand is made, on the
date on which the related drawing under a Letter of Credit is reimbursed in
full.
(ii) DISTRIBUTION OF INTEREST PAYMENTS BY ISSUING LENDER. Promptly upon
receipt by any Issuing Lender of any payment of interest pursuant to subsection
3.3D(i) with respect to a drawing honored under a Letter of Credit issued by it,
(a) such Issuing Lender shall distribute to each other Revolving Lender, out of
the interest received by such Issuing Lender in respect of the period from the
date such drawing is honored to but excluding the date on which such Issuing
Lender is reimbursed for the amount of such drawing (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to subsection
3.3B), the amount that such other Revolving Lender would have been entitled to
receive in respect of the letter of credit fee that would have been payable in
respect of such Letter of Credit for such period pursuant to subsection 3.2 if
no drawing had been honored under such Letter of Credit, and (b) in the event
such Issuing Lender shall have been reimbursed by other Revolving Lenders
pursuant to subsection 3.3C(i) for all or any portion of such honored drawing,
such Issuing Lender shall distribute to each other Revolving Lender which has
paid all amounts payable by it under subsection 3.3C(i) with respect to such
honored drawing such other Revolving Lender's Pro Rata Share of any interest
received by such Issuing Lender in respect of that portion of such honored
drawing so reimbursed by other Revolving Lenders for the period from the date on
which such Issuing Lender was so reimbursed by other Revolving Lenders to but
excluding the date on which such portion of such honored drawing is reimbursed
by Company. Any such distribution shall be made to a Revolving Lender at its
primary address set forth below its name on the appropriate signature page
hereof or at such other address as such Revolving Lender may request.
3.4 OBLIGATIONS ABSOLUTE
The obligation of Company to reimburse each Issuing Lender for drawings
honored under the Letters of Credit issued by it and to repay any Revolving
Loans made by Revolving Lenders pursuant to subsection 3.3B and the obligations
of Revolving Lenders under subsection 3.3C(i) shall be unconditional and
irrevocable and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances including any of the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right which
Company or any Revolving Lender may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), any Issuing Lender or other Revolving Lender or any
other Person or, in the case of a Revolving Lender, against Company, whether in
connection with this Agreement, the transactions contemplated herein or any
unrelated transaction (including any underlying transaction between Company or
one of its Subsidiaries and the beneficiary for which any Letter of Credit was
procured);
(iii) any draft or other document presented under any Letter of Credit
proving to be forged, fraudulent, invalid or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect;
(iv) payment by the applicable Issuing Lender under any Letter of Credit
against presentation of a draft or other document which does not substantially
comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations, properties, assets,
condition (financial or otherwise) or prospects of Company or any of its
Subsidiaries;
(vi) any breach of this Agreement or any other Loan Document by any party
thereto;
(vii) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing; or
(viii) the fact that an Event of Default or a Potential Event of Default
shall have occurred and be continuing;
PROVIDED, in each case, that payment by the applicable Issuing Lender under
the applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question
(as determined by a final judgment of a court of competent jurisdiction).
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDERS' DUTIES
A. INDEMNIFICATION. In addition to amounts payable as provided in
subsection 3.6, Company hereby agrees to protect, indemnify, pay and save
harmless each Issuing Lender from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated costs of internal
counsel) which such Issuing Lender may incur or be subject to as a consequence,
direct or indirect, of (i) the issuance of any Letter of Credit by such Issuing
Lender, other than as a result of (a) the gross negligence or willful misconduct
of such Issuing Lender as determined by a final judgment of a court of competent
jurisdiction or (b) subject to the following clause (ii), the wrongful dishonor
by such Issuing Lender of a proper demand for payment made under any Letter of
Credit issued by it or (ii) the failure of such Issuing Lender to honor a
drawing under any such Letter of Credit as a result of any act or omission,
whether rightful or wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or omissions herein called
"GOVERNMENTAL ACTS").
B. NATURE OF ISSUING LENDERS' DUTIES. As between Company and any Issuing
Lender, Company assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by such Issuing Lender by, the respective beneficiaries
of such Letters of Credit. In furtherance and not in limitation of the
foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond the
control of such Issuing Lender, including any Governmental Acts, and none of the
above shall affect or impair, or prevent the vesting of, any of such Issuing
Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to Company.
Notwithstanding anything to the contrary contained in this subsection 3.5,
Company shall retain any and all rights it may have against any Issuing Lender
for any liability arising solely out of the gross negligence or willful
misconduct of such Issuing Lender, as determined by a final judgment of a court
of competent jurisdiction.
3.6 INCREASED COSTS AND TAXES RELATING TO LETTERS OF CREDIT
Subject to the provisions of subsection 2.7B (which shall be controlling
with respect to the matters covered thereby), in the event that any Issuing
Lender or Revolving Lender shall determine (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto)
that any law, treaty or governmental rule, regulation or order, or any change
therein or in the interpretation, administration or application thereof
(including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or governmental authority,
in each case that becomes effective after the date hereof, or compliance by any
Issuing Lender or Revolving Lender with any guideline, request or directive
issued or made after the date hereof by any central bank or other governmental
or quasi-governmental authority (whether or not having the force of law):
(i) subjects such Issuing Lender or Revolving Lender (or its applicable
lending or letter of credit office) to any additional Tax (other than any Tax on
the overall net income of such Issuing Lender or Revolving Lender) with respect
to the issuing or maintaining of any Letters of Credit or the purchasing or
maintaining of any participations therein or any other obligations under this
Section 3, whether directly or by such being imposed on or suffered by any
particular Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve (including any
marginal, emergency, supplemental, special or other reserve), special deposit,
compulsory loan, FDIC insurance or similar requirement in respect of any Letters
of Credit issued by any Issuing Lender or participations therein purchased by
any Revolving Lender; or
(iii) imposes any other condition (other than with respect to a Tax matter)
on or affecting such Issuing Lender or Revolving Lender (or its applicable
lending or letter of credit office) regarding this Section 3 or any Letter of
Credit or any participation therein; and the result of any of the foregoing is
to increase the cost to such Issuing Lender or Revolving Lender of agreeing to
issue, issuing or maintaining any Letter of Credit or agreeing to purchase,
purchasing or maintaining any participation therein or to reduce any amount
received or receivable by such Issuing Lender or Revolving Lender (or its
applicable lending or letter of credit office) with respect thereto; then, in
any case, Company shall promptly pay to such Issuing Lender or Revolving Lender,
upon receipt of the statement referred to in the next sentence, such additional
amount or amounts as may be necessary to compensate such Issuing Lender or
Revolving Lender for any such increased cost or reduction in amounts received or
receivable hereunder; PROVIDED that Company shall not be required to compensate
a Lender pursuant to this subsection for any increased cost or reduction
incurred more than one year prior to the date that such Lender notifies Company
of such change giving rise to such increased cost or reduction and of such
Lender's intention to claim compensation therefor; PROVIDED further that, if
such change giving rise to such increased cost or reduction is retroactive, then
the one year period referred to above shall be extended to include the period of
retroactive effect thereof. Such Issuing Lender or Revolving Lender shall
deliver to Company a written statement, setting forth in reasonable detail the
basis for calculating the additional amounts owed to such Issuing Lender or
Revolving Lender under this subsection 3.6, which statement shall be conclusive
and binding upon all parties hereto absent manifest error.
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDITSECTION
The obligations of Lenders to make Loans and the issuance of Letters of
Credit hereunder are subject to the satisfaction of the following conditions.
4.1 CONDITIONS TO TERM LOANS AND INITIAL REVOLVING LOANS AND SWING LINE
LOANS
The obligations of Lenders to make the Term Loans and any Revolving Loans
and Swing Line Loans to be made on the Closing Date are, in addition to the
conditions precedent specified in subsection 4.2, subject to prior or concurrent
satisfaction of the following conditions:
A. LOAN PARTY DOCUMENTS. On or before the Closing Date, Company shall, and
shall cause each other Loan Party to, deliver to Lenders (or to Agent for
Lenders with sufficient originally executed copies, where appropriate, for each
Lender and its counsel) the following with respect to Company or such Loan
Party, as the case may be, each, unless otherwise noted, dated the Closing Date:
(i) Certified copies of the Certificate or Articles of Incorporation of
such Person, together with a good standing certificate from the Secretary of
State of its jurisdiction of incorporation (except for ValueRx of Iowa, Inc. and
MHI, Inc.) and, to the extent generally available (except for Medintell Systems
Corporation, MedCounter, Inc., ValueRx Pharmacy Program, Inc., ValueRx of
Michigan, Inc., ValueRx of Iowa, Inc., Denali Associates, Inc., Cost Containment
Corporation of America, Diagnostek of Springfield, Inc., Health Care Services,
Inc., Prescription Drug Service West, Inc. and MHI, Inc.), a certificate or
other evidence of good standing as to payment of any applicable franchise or
similar taxes from the appropriate taxing authority of such jurisdiction, each
dated a recent date prior to the Closing Date;
(ii) Copies of the Bylaws of such Person, certified as of the Closing Date
by such Person's corporate secretary or an assistant secretary;
(iii) Resolutions of the Board of Directors of such Person approving and
authorizing the execution, delivery and performance of the Loan Documents to
which it is a party, certified as of the Closing Date by the corporate secretary
or an assistant secretary of such Person as being in full force and effect
without modification or amendment;
(iv) Signature and incumbency certificates of the officers of such Person
executing the Loan Documents to which it is a party;
(v) Executed originals of the Loan Documents to which such Person is a
party; and
(vi) Such other documents as Agent may reasonably request.
B. NO MATERIAL ADVERSE EFFECT. Since December 31, 1997, no Material Adverse
Effect shall have occurred.
C. TERMINATION OF EXISTING CREDIT AGREEMENT AND RELATED LIENS; EXISTING
LETTERS OF CREDIT. On the Closing Date, Company and its Subsidiaries shall have
(i) repaid in full all Indebtedness outstanding under the Existing Credit
Agreement, (ii) terminated any commitments to lend or make other extensions of
credit thereunder, (iii) delivered to Agent all documents or instruments
necessary to release all Liens securing Indebtedness or other obligations of
Company and its Subsidiaries thereunder, and (iv) made arrangements satisfactory
to Agent with respect to the cancellation of any letters of credit outstanding
thereunder or the issuance of Letters of Credit to support the obligations of
Company and its Subsidiaries with respect thereto.
D. SECURITY INTERESTS IN INVESTMENT SECURITIES. Agent shall have received
evidence satisfactory to it that Company and Subsidiary Guarantors shall have
taken or caused to be taken all such actions, executed and delivered or caused
to be executed and delivered all such agreements, documents and instruments, and
made or caused to be made all such filings, if any, that may be necessary or, in
the reasonable opinion of Agent, desirable in order to create in favor of Agent,
for the benefit of Lenders, a valid and perfected First Priority security
interest in the entire Collateral. Such actions shall include the following:
(i) SCHEDULES TO COLLATERAL DOCUMENTS. Delivery to Agent of accurate and
complete schedules to all of the applicable Collateral Documents.
(ii) STOCK CERTIFICATES. Delivery to Agent of certificates (which
certificates shall be accompanied by irrevocable undated stock powers, duly
endorsed in blank and otherwise satisfactory in form and substance to Agent)
representing all capital stock pledged pursuant to the Company Pledge Agreement
and the Subsidiary Pledge Agreements.
E. SOLVENCY CERTIFICATE. Agent shall have received a certificate of the
chief financial officer of Company, in his capacity as such, substantially in
the form of EXHIBIT XV and in form and substance satisfactory to Agent,
supporting the conclusions that, after giving effect to the Acquisition, this
Agreement and related transactions, Company will be Solvent and not be rendered
insolvent by the indebtedness incurred in connection therewith.
F. EVIDENCE OF INSURANCE. Agent shall have received a certificate from
Company's insurance broker or other evidence satisfactory to it that all
insurance required to be maintained pursuant to subsection 6.4 is in full force
and effect.
G. OPINIONS OF COUNSEL TO LOAN PARTIES. Lenders and their respective
counsel shall have received (i) originally executed copies of one or more
favorable written opinions of (A) Thomas M. Boudreau, general counsel of
Company, and (B) Simpson, Thacher & Bartlett, special New York counsel for Loan
Parties, each in form and substance reasonably satisfactory to Agent and its
counsel, dated as of the Closing Date and setting forth substantially the
matters in the opinions designated in EXHIBITS VIII-A AND VIII-B annexed hereto
and as to such other matters as Agent acting on behalf of Lenders may reasonably
request and (ii) evidence satisfactory to Agent that Company has requested such
counsel to deliver such opinions to Lenders.
H. OPINIONS OF AGENT'S COUNSEL. Lenders shall have received originally
executed copies of one or more favorable written opinions of O'Melveny & Myers
LLP, counsel to Agent, dated as of the Closing Date, substantially in the form
of EXHIBIT IX annexed hereto and as to such other matters as Agent acting on
behalf of Lenders may reasonably request.
I. FEES. Company shall have paid to Agent, for distribution (as
appropriate) to Agent and Lenders, the fees payable on the Closing Date referred
to in subsection 2.3.
J. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS. Company shall
have delivered to Agent an Officers' Certificate, in form and substance
satisfactory to Agent, to the effect that the representations and warranties in
Section 5 hereof are true, correct and complete in all material respects on and
as of the Closing Date to the same extent as though made on and as of that date
(or, to the extent such representations and warranties specifically relate to an
earlier date, that such representations and warranties were true, correct and
complete in all material respects on and as of such earlier date) and that
Company shall have performed in all material respects all agreements and
satisfied all conditions which this Agreement provides shall be performed or
satisfied by it on or before the Closing Date except as otherwise disclosed to
and agreed to in writing by Agent.
K. COMPLETION OF PROCEEDINGS. All corporate and other proceedings taken or
to be taken in connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by Agent, acting on
behalf of Lenders, and its counsel shall be satisfactory in form and substance
to Agent and such counsel, and Agent and such counsel shall have received all
such counterpart originals or certified copies of such documents as Agent may
reasonably request.
L. APPROVAL OF ACQUISITION STRUCTURE AND DOCUMENTATION. The structure
utilized to consummate the Acquisition and the definitive documentation relating
thereto (the "DEFINITIVE ACQUISITION DOCUMENTS") shall be in form and substance
reasonably satisfactory to Agent, and the Definitive Acquisition Documents shall
be in full force and effect, no provision of which shall have been amended,
supplemented, waived or otherwise modified in any material respect without the
prior written consent of Agent.
M. CERTAIN APPROVALS AND AGREEMENTS RELATING TO THE ACQUISITION. All
governmental and third party approvals necessary or advisable in connection with
the Acquisition, the financings contemplated thereby and the continuing
operations of the business of Company and its subsidiaries shall have been
obtained and be in full force and effect, and all applicable waiting periods
shall have expired without any action being taken or threatened by any competent
authority which would restrain, prevent or otherwise impose material adverse
conditions on the Acquisition or the financing thereof.
N. FINANCIAL INFORMATION. Company shall have delivered the following
financial information to Lenders: (i) audited financial statements of ValueRx
and its subsidiaries (excluding Managed Prescription Network, Inc. and including
Med Management LLC) for the fiscal years ended December 31, 1994, 1995 and 1996,
(ii) audited financial statements of Company and its subsidiaries for the fiscal
year ended December 31, 1997, (iii) an estimated PRO FORMA balance sheet of
Company and its subsidiaries as of March 31, 1998 giving effect to the
Acquisition and the financings contemplated hereby, and (iv) final projected
financial statements (including balance sheets and statements of operations,
changes in stockholders' equity and cash flows) of Company and its subsidiaries
for the five-year period after the Closing Date, all of the foregoing to be (x)
substantially consistent with any financial statements for the same periods
delivered to Agent prior to February 19, 1998 and, in the case of any such
financial statements for subsequent periods, substantially consistent with any
projected financial results for such periods delivered to Agent prior to the
date of such letter and (y) otherwise in form and substance reasonably
satisfactory to Agent.
4.2 CONDITIONS TO ALL LOANS
The obligations of Lenders to make Loans on each Funding Date are subject
to the following further conditions precedent:
A. Agent shall have received before that Funding Date, in accordance with
the provisions of subsection 2.1B, an originally executed Notice of Borrowing,
in each case signed by the chief executive officer, the chief financial officer
or the treasurer of Company or by any executive officer of Company designated by
any of the above-described officers on behalf of Company in a writing delivered
to Agent.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in the other
Loan Documents shall be true, correct and complete in all material respects on
and as of that Funding Date to the same extent as though made on and as of that
date, except to the extent such representations and warranties specifically
relate to an earlier date, in which case such representations and warranties
shall have been true, correct and complete in all material respects on and as of
such earlier date;
(ii) No event shall have occurred and be continuing or would result from
the consummation of the borrowing contemplated by such Notice of Borrowing that
would constitute an Event of Default or a Potential Event of Default;
(iii) Each Loan Party shall have performed in all material respects all
agreements and satisfied all conditions which this Agreement provides shall be
performed or satisfied by it on or before that Funding Date; and
(iv) No order, judgment or decree of any court, arbitrator or governmental
authority shall purport to enjoin or restrain any Lender from making the Loans
to be made by it on that Funding Date.
4.3 CONDITIONS TO LETTERS OF CREDIT
The issuance of any Letter of Credit hereunder (whether or not the
applicable Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
A. On or before the date of issuance of the initial Letter of Credit
pursuant to this Agreement, the initial Loans shall have been made.
B. On or before the date of issuance of such Letter of Credit, Agent shall
have received, in accordance with the provisions of subsection 3.1B(i), an
originally executed Notice of Issuance of Letter of Credit, in each case signed
by the chief executive officer, the chief financial officer or the treasurer of
Company or by any executive officer of Company designated by any of the
above-described officers on behalf of Company in a writing delivered to Agent,
together with all other information specified in subsection 3.1B(i) and such
other documents or information as the applicable Issuing Lender may reasonably
require in connection with the issuance of such Letter of Credit.
C. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.2B shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Loan and the date
of issuance of such Letter of Credit were a Funding Date.
SECTION 5. COMPANY'S REPRESENTATIONS AND WARRANTIESSECTION
In order to induce Lenders to enter into this Agreement and to make the
Loans, to induce Issuing Lenders to issue Letters of Credit and to induce other
Lenders to purchase participations therein, Company represents and warrants to
each Lender, on the date of this Agreement, on each Funding Date and on the date
of issuance of each Letter of Credit, that the following statements are true,
correct and complete:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING, BUSINESS AND
SUBSIDIARIES
A. ORGANIZATION AND POWERS. Each Loan Party is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation as specified in SCHEDULE 5.1 annexed hereto
(except ValueRx of Iowa, Inc. and MHI, Inc.). Each Loan Party has all requisite
corporate power and authority to own and operate its properties, to carry on its
business as now conducted and as proposed to be conducted, to enter into the
Loan Documents to which it is a party and to carry out the transactions
contemplated thereby.
B. QUALIFICATION AND GOOD STANDING. Each Loan Party is qualified to do
business and in good standing in every jurisdiction where its assets are located
and wherever necessary to carry out its business and operations, except in
jurisdictions where the failure to be so qualified or in good standing has not
had and could not reasonably be expected to have a Material Adverse Effect.
C. CONDUCT OF BUSINESS. Company and its Subsidiaries are engaged only in
the businesses permitted to be engaged in pursuant to subsection 7.14.
D. SUBSIDIARIES. All of the Subsidiaries of Company are identified in
SCHEDULE 5.1 annexed hereto, as said SCHEDULE 5.1 may be supplemented from time
to time pursuant to the provisions of subsection 6.1(xv). The capital stock of
each of the Subsidiaries of Company identified in SCHEDULE 5.1 annexed hereto
(as so supplemented) is duly authorized, validly issued, fully paid and
nonassessable and none of such capital stock constitutes Margin Stock. Each of
the Subsidiaries of Company identified in SCHEDULE 5.1 annexed hereto (as so
supplemented) is a corporation duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation set
forth therein (except ValueRx of Iowa, Inc. and MHI, Inc.), has all requisite
corporate power and authority to own and operate its properties and to carry on
its business as now conducted and as proposed to be conducted, and is qualified
to do business and in good standing in every jurisdiction where its assets are
located and wherever necessary to carry out its business and operations, in each
case except where failure to be so qualified or in good standing or a lack of
such corporate power and authority has not had and is not reasonably expected to
have a Material Adverse Effect. SCHEDULE 5.1 annexed hereto (as so supplemented)
correctly sets forth the ownership interest of Company and each of its
Subsidiaries in each of the Subsidiaries of Company identified therein.
5.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery and performance of
the Loan Documents have been duly authorized by all necessary corporate action
on the part of each Loan Party that is a party thereto.
B. NO CONFLICT. The execution, delivery and performance by Loan Parties of
the Loan Documents and the consummation of the transactions contemplated by the
Loan Documents do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to Company or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws of Company
or any of its Subsidiaries or any order, judgment or decree of any court or
other agency of government binding on Company or any of its Subsidiaries, (ii)
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any Contractual Obligation of Company or any of
its Subsidiaries, (iii) result in or require the creation or imposition of any
Lien upon any of the properties or assets of Company or any of its Subsidiaries
(other than any Liens created under any of the Loan Documents in favor of Agent
on behalf of Lenders), or (iv) require any approval of stockholders or any
approval or consent of any Person under any Contractual Obligation of Company or
any of its Subsidiaries, except for such approvals or consents which will be
obtained on or before the Closing Date and disclosed in writing to Lenders.
C. GOVERNMENTAL CONSENTS. The execution, delivery and performance by Loan
Parties of the Loan Documents and the consummation of the transactions
contemplated by the Loan Documents do not and will not require any registration
with, consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body.
D. BINDING OBLIGATION. Each of the Loan Documents has been duly executed
and delivered by each Loan Party that is a party thereto and is the legally
valid and binding obligation of such Loan Party, enforceable against such Loan
Party in accordance with its respective terms, subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
other similar laws relating to or affecting creditors' rights generally or (ii)
general equitable principles (whether considered in a proceeding in equity or at
law) and (iii) an implied covenant of good faith and fair dealing.
5.3 FINANCIAL CONDITION
Company has heretofore delivered to Lenders, at Lenders' request, the
audited financial statements (including balance sheets and statements of
operations, stockholders' equity and cash flows) of Company and its subsidiaries
for the fiscal year ended December 31, 1997. All such statements were prepared
in conformity with GAAP and fairly present, in all material respects, the
financial position (on a consolidated basis) of the entities described in such
financial statements as at the date thereof and the results of operations and
cash flows (on a consolidated basis) of the entities described therein for the
period then ended. Company does not (and will not following the funding of the
initial Loans) have any Contingent Obligation, contingent liability or liability
for taxes, long-term lease or unusual forward or long-term commitment that is
not reflected in the foregoing financial statements or the notes thereto and
which in any such case is material in relation to the business, operations,
properties, assets or financial condition of Company and its Subsidiaries taken
as a whole.
5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR PAYMENTS
Since December 31, 1997, no event or change has occurred that has caused or
evidences, either in any case or in the aggregate, a Material Adverse Effect.
Neither Company nor any of its Subsidiaries has directly or indirectly declared,
ordered, paid or made, or set apart any sum or property for, any Restricted
Junior Payment or agreed to do so except as permitted by subsection 7.5.
5.5 TITLE TO PROPERTIES; LIENS
Company and its Subsidiaries have (i) good title to (in the case of fee
interests in real property), (ii) valid leasehold interests in (in the case of
leasehold interests in real or personal property), or (iii) good title to (in
the case of all other personal property), all of their respective properties and
assets necessary or useful for the conduct of their business, in each case
except for assets disposed of since the date of the most recent financial
statements received by Agent in the ordinary course of business or as otherwise
permitted under subsection 7.7 and except where failure to have such title would
not, individually or in the aggregate, have a Material Adverse Effect. Except as
permitted by this Agreement, all such properties and assets are free and clear
of Liens.
5.6 LITIGATION; ADVERSE FACTS
There are no actions, suits, proceedings, arbitrations or governmental
investigations (whether or not purportedly on behalf of Company or any of its
Subsidiaries) at law or in equity, or before or by any federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign (including any Environmental Claims) that
are pending or, to the knowledge of Company, threatened against or affecting
Company or any of its Subsidiaries or any property, license or registration of
Company or any of its Subsidiaries and that, individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect. Neither
Company nor any of its Subsidiaries (i) is in violation of any applicable laws
(including those involving the licensing or registration relating to the
pharmaceutical and healthcare services provided by Company and its Subsidiaries
and Environmental Laws) that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect, or (ii) is subject to or in
default with respect to any final judgments, writs, injunctions, decrees, rules
or regulations of any court or any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect.
5.7 PAYMENT OF TAXES
Except to the extent permitted by subsection 6.3, all tax returns and
reports of Company and its Subsidiaries required to be filed by any of them have
been timely filed, and all taxes shown on such tax returns to be due and payable
and all assessments, fees and other governmental charges upon Company and its
Subsidiaries and upon their respective properties, assets, income, businesses
and franchises which are due and payable have been paid when due and payable,
except (a) for taxes that are being contested in good faith by appropriate
proceedings for which Company or relevant Subsidiary, as applicable, has set
aside on its books adequate reserves in accordance with GAAP or (b) to the
extent that the failure to do so would not reasonably be expected to result in a
Material Adverse Effect. Company knows of no proposed tax assessment against
Company or any of its Subsidiaries which is not being actively contested by
Company or such Subsidiary in good faith and by appropriate proceedings;
PROVIDED that such reserves or other appropriate provisions, if any, as shall be
required in conformity with GAAP shall have been made or provided therefor.
5.8 PERFORMANCE OF AGREEMENTS; MATERIALLY ADVERSE AGREEMENTS; MATERIAL
CONTRACTS
A. Neither Company nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any of its Contractual Obligations, and no condition
exists that, with the giving of notice or the lapse of time or both, would
constitute such a default, except where the consequences, direct or indirect, of
such default or defaults, if any, could not reasonably be expected to have a
Material Adverse Effect.
B. Neither Company nor any of its Subsidiaries is a party to or is
otherwise subject to any agreements or instruments or any charter or other
internal restrictions which, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect.
C. SCHEDULE 5.8 contains a true, correct and complete list of all the
Material Contracts in effect on the Closing Date. Except as described on
SCHEDULE 5.8, all such Material Contracts are in full force and effect and no
material defaults currently exist thereunder.
5.9 GOVERNMENTAL REGULATION; ACCREDITATION
A. Neither Company nor any of its Subsidiaries is subject to regulation as
a "holding company" under the Public Utility Holding Company Act of 1935 or as
an "investment company" under the Investment Company Act of 1940.
B. Company's facilities that provide infusion therapy services are
accredited by the Joint Commission on Accreditation of Healthcare Organizations.
5.10 SECURITIES ACTIVITIES
Neither Company nor any of its Subsidiaries is engaged principally, or as
one of its important activities, in the business of extending credit for the
purpose of purchasing or carrying any Margin Stock.
5.11 EMPLOYEE BENEFIT PLANS
A. Except as would not reasonably be expected to result in a Material
Adverse Effect: (i) Company, each of its Subsidiaries and each of their
respective ERISA Affiliates are in compliance with all applicable provisions and
requirements of ERISA and the regulations and published interpretations
thereunder with respect to each Employee Benefit Plan and have performed all
their obligations under each Employee Benefit Plan and (ii) each Pension Plan
which is intended to qualify under Section 401(a) of the Internal Revenue Code
is so qualified.
B. No ERISA Event that would reasonably be expected to result in a Material
Adverse Effect has occurred or is reasonably expected to occur.
C. As of the most recent valuation date for any Pension Plan, the amount of
unfunded benefit liabilities (as defined in Section 4001(a)(18) of ERISA),
individually or in the aggregate for all Pension Plans (excluding for purposes
of such computation any Pension Plans with respect to which assets exceed
benefit liabilities), which if amortized over ten years, would not reasonably be
expected, after considering the financial condition of all of the more closely
related ERISA Affiliates, to result in a Material Adverse Effect.
D. For each Multiemployer Plan as of the most recent valuation date for
which an actuarial report has been received, the potential liability of Company,
its Subsidiaries and their respective ERISA Affiliates for a complete withdrawal
from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when
aggregated with such potential liability for a complete withdrawal from all
Multiemployer Plans, based on information available pursuant to Section 4221(e)
of ERISA, would not reasonably be expected, after considering the financial
condition of all of the more closely related ERISA Affiliates, to result in a
Material Adverse Effect.
5.12 CERTAIN FEES
Other than certain fees payable to BT Alex. Brown, no broker's or finder's
fee or commission will be payable with respect to this Agreement or any of the
transactions contemplated hereby, and Company hereby indemnifies Lenders
against, and agrees that it will hold Lenders harmless from, any claim, demand
or liability for any such broker's or finder's fees alleged to have been
incurred in connection herewith or therewith and any expenses (including
reasonable fees, expenses and disbursements of counsel) arising in connection
with any such claim, demand or liability.
5.13 ENVIRONMENTAL PROTECTION
No event or condition has occurred or is occurring with respect to Company
or any of its Subsidiaries relating to any Environmental Law, that individually
or in the aggregate has had or could reasonably be expected to have a Material
Adverse Effect.
5.14 EMPLOYEE MATTERS
There is no strike or work stoppage in existence or threatened involving
Company or any of its Subsidiaries that could reasonably be expected to have a
Material Adverse Effect.
5.15 SOLVENCY
Each Loan Party is and, upon the incurrence of any Obligations by such Loan
Party on any date on which this representation is made, will be, Solvent.
5.16 MATTERS RELATING TO COLLATERAL
A. CREATION, PERFECTION AND PRIORITY OF LIENS. The execution and delivery
of the Collateral Documents by Loan Parties, together with (i) the actions taken
on or prior to the date hereof pursuant to subsections 4.1D and 6.8 and (ii) the
delivery to Agent of any Pledged Collateral not delivered to Agent at the time
of execution and delivery of the applicable Collateral Document (all of which
Pledged Collateral has been so delivered) are effective to create in favor of
Agent for the benefit of Lenders, as security for the respective Secured
Obligations (as defined in the applicable Collateral Document in respect of any
Collateral), a valid and perfected First Priority Lien on all of the Collateral,
and other actions necessary or desirable to perfect and maintain the perfection
and First Priority status of such Liens have been duly made or taken and remain
in full force and effect.
B. GOVERNMENTAL AUTHORIZATIONS. No authorization, approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body is required for either (i) the pledge or grant by any Loan Party of the
Liens purported to be created in favor of Agent pursuant to any of the
Collateral Documents or (ii) the exercise by Agent of any rights or remedies in
respect of any Collateral (whether specifically granted or created pursuant to
any of the Collateral Documents or created or provided for by applicable law),
except for filings or recordings contemplated by subsection 5.16A and except as
may be required, in connection with the disposition of any Pledged Collateral,
by laws generally affecting the offering and sale of securities.
C. ABSENCE OF THIRD-PARTY FILINGS. Except such as may have been filed in
favor of Agent, Company has not filed any UCC financing statement or other
instrument similar in effect covering all or any part of the Collateral in any
filing or recording office.
D. MARGIN REGULATIONS. The pledge of the Pledged Collateral pursuant to the
Collateral Documents does not violate Regulation T, U or X of the Board of
Governors of the Federal Reserve System.
E. INFORMATION REGARDING COLLATERAL. All information supplied to Agent by
or on behalf of any Loan Party with respect to any of the Collateral (in each
case taken as a whole with respect to any particular Collateral) is accurate and
complete in all material respects.
5.17 DISCLOSURE
A. No representation or warranty of Company or any of its Subsidiaries
contained in any Loan Document or in any other document, certificate or written
statement furnished to Lenders by or on behalf of Company or any of its
Subsidiaries for use in connection with the transactions contemplated by this
Agreement contains any untrue statement of a material fact or omits to state a
material fact (known to Company, in the case of any document not furnished by
it) necessary in order to make the statements contained herein or therein, taken
as a whole, not misleading in light of the circumstances in which the same were
made; PROVIDED, that no representation is made as to projections or pro forma
financial information except as set forth in the next sentence. Any projections
and pro forma financial information contained in such materials are based upon
good faith estimates and assumptions believed by Company to be reasonable at the
time made, it being recognized by Lenders that such projections as to future
events are not to be viewed as facts and that actual results during the period
or periods covered by any such projections may differ from the projected
results. There are no facts known to Company (other than matters of a general
economic nature) that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect and that have not been disclosed
herein or in such other documents, certificates and statements furnished to
Lenders for use in connection with the transactions contemplated hereby.
B. No information submitted to Agent in its due diligence investigation is
known to Company to contain any untrue statements of material fact, or omit
material facts, which untrue statements or material omissions could reasonably
be determined, when taken as a whole, to be material and adverse to the
business, assets, financial position, operations or results of operations of
ValueRx and the Acquired Entities (as defined in the Definitive Acquisition
Documents), taken as a whole.
5.18 ACCURACY OF REPRESENTATIONS AND WARRANTIES IN THE DEFINITIVE
ACQUISITION DOCUMENTS
Subject to the qualifications set forth therein, each of the
representations and warranties given by Company to Seller in the Definitive
Acquisition Documents is true and correct in all material respects as of the
date hereof and as of the Closing Date.
5.19 YEAR 2000 COMPLIANCE
Company has (i) initiated a review and assessment of its and its
Subsidiaries' business and operations (including those affected by suppliers and
vendors) that Company believes could be adversely affected by the "Year 2000
Problem" (that is, the risk that computer applications used by Company or
Subsidiaries (or suppliers and vendors) may be unable to recognize and perform
properly date-sensitive functions involving certain dates prior to and any date
after December 31, 1999), (ii) developed a plan and timeline for addressing the
Year 2000 Problem on a timely basis, and (iii) to date, implemented that plan
substantially in accordance with that timetable. Company believes that its own
computer applications that are material to its or its Subsidiaries' business and
operations will on a timely basis be able to perform properly date-sensitive
functions for all dates before and after January 1, 2000 (that is, be "Year 2000
compliant") except to the extent that a failure to do so could not reasonably be
expected to have Material Adverse Effect.
SECTION 6. COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 6.
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS
Company will maintain, and cause each of its Subsidiaries to maintain, a
system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in conformity
with GAAP. Company will deliver to Agent and Lenders:
(i) QUARTERLY FINANCIAL: as soon as available and in any event within 45
days after the end of each Fiscal Quarter, (a) the consolidated balance sheets
of Company and its Subsidiaries as at the end of such Fiscal Quarter and the
related consolidated and consolidating statements of operations, changes in
stockholders' equity and cash flows of Company and its Subsidiaries for such
Fiscal Quarter and for the period from the beginning of the then current Fiscal
Year to the end of such Fiscal Quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding periods of the
previous Fiscal Year and the corresponding figures from the Financial Plan for
the current Fiscal Year, all in reasonable detail and certified by the chief
financial officer of Company that they fairly present, in all material respects,
the financial condition of Company and its Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for the
periods indicated, subject to changes resulting from audit and normal year-end
adjustments, and (b) beginning with the Fiscal Quarter ending September 30,
1998, a statement of operations and any narrative report for each line of
business of Company and its Subsidiaries as provided to the Board of Directors
of Company and the corresponding figures from the Financial Plan for the current
Fiscal Year, setting forth in comparative form the corresponding figures for the
corresponding periods of the previous Fiscal Year, certified by the chief
financial officer of Company as aforesaid;
(ii) YEAR-END FINANCIAL: as soon as available and in any event within 90
days after the end of each Fiscal Year, (a) the consolidated balance sheets of
Company and its Subsidiaries as at the end of such Fiscal Year and the related
consolidated and consolidating statements of operations, changes stockholders'
equity and cash flows of Company and its Subsidiaries for such Fiscal Year,
setting forth in each case in comparative form the corresponding figures for the
previous Fiscal Year and the corresponding figures from the Financial Plan for
the Fiscal Year covered by such financial statements, all in reasonable detail
and certified by the chief financial officer of Company that they fairly
present, in all material respects, the financial condition of Company and its
Subsidiaries as at the dates indicated and the results of their operations and
their cash flows for the periods indicated, (b) a statement of operations and
any narrative report for each line of business of Company and its Subsidiaries
as provided to the Board of Directors of Company, setting forth in comparative
form the corresponding figures for the previous Fiscal Year and the
corresponding figures from the Financial Plan for the Fiscal Year, certified by
the chief financial officer of Company as aforesaid, and (c) in the case of such
consolidated financial statements, a report thereon of Price Waterhouse LLP or
other independent certified public accountants of recognized national standing
selected by Company and satisfactory to Agent, which report shall be
unqualified, shall express no doubts about the ability of Company and its
Subsidiaries to continue as a going concern, and shall state that such
consolidated financial statements fairly present, in all material respects, the
consolidated financial position of Company and its Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for the
periods indicated in conformity with GAAP applied on a basis consistent with
prior years (except as otherwise disclosed in such financial statements) and
that the examination by such accountants in connection with such consolidated
financial statements has been made in accordance with generally accepted
auditing standards;
(iii) OFFICERS' AND COMPLIANCE CERTIFICATES: together with each delivery of
financial statements of Company and its Subsidiaries pursuant to subdivisions
(i) and (ii) above, (a) an Officers' Certificate of Company stating that the
signers have reviewed the terms of this Agreement and have made, or caused to be
made under their supervision, a review in reasonable detail of the transactions
and condition of Company and its Subsidiaries during the accounting period
covered by such financial statements and that such review has not disclosed the
existence during or at the end of such accounting period, and that the signers
do not have knowledge of the existence as at the date of such Officers'
Certificate, of any condition or event that constitutes an Event of Default or
Potential Event of Default, or, if any such condition or event existed or
exists, specifying the nature and period of existence thereof and what action
Company has taken, is taking and proposes to take with respect thereto; and (b)
a Compliance Certificate demonstrating in reasonable detail compliance during
and at the end of the applicable accounting periods with the restrictions
contained in Section 7;
(iv) RECONCILIATION STATEMENTS: if, as a result of any change in accounting
principles and policies from those used in the preparation of the audited
financial statements most recently delivered pursuant to subsection 5.3 or this
subsection 6.1, the consolidated financial statements of Company and its
Subsidiaries delivered pursuant to subdivisions (i), (ii) or (xii) of this
subsection 6.1 will differ in any material respect from the consolidated
financial statements that would have been delivered pursuant to such
subdivisions had no such change in accounting principles and policies been made,
then together with the first delivery of financial statements pursuant to
subdivision (i), (ii) or (xii) of this subsection 6.1 following such change, a
written statement of the chief accounting officer or chief financial officer of
Company setting forth the differences (including any differences that would
affect any calculations relating to the financial covenants set forth in
subsection 7.6) which would have resulted if such financial statements had been
prepared without giving effect to such change;
(v) ACCOUNTANTS' CERTIFICATION: together with each delivery of consolidated
financial statements of Company and its Subsidiaries pursuant to subdivision
(ii) above, a written statement by the independent certified public accountants
giving the report thereon (a) stating that their audit examination has included
a review of the terms of this Agreement and the other Loan Documents as they
relate to accounting matters, (b) stating whether, in connection with their
audit examination, any condition or event that constitutes an Event of Default
or Potential Event of Default has come to their attention and, if such a
condition or event has come to their attention, specifying the nature and period
of existence thereof; PROVIDED that such accountants shall not be liable by
reason of any failure to obtain knowledge of any such Event of Default or
Potential Event of Default that would not be disclosed in the course of their
audit examination, and (c) stating that based on their audit examination nothing
has come to their attention that causes them to believe either or both that the
information contained in the certificates delivered therewith pursuant to
subdivision (iii) above is not correct or that the matters set forth in the
Compliance Certificates delivered therewith pursuant to clause (b) of
subdivision (iii) above for the applicable Fiscal Year are not stated in
accordance with the terms of this Agreement;
(vi) ACCOUNTANTS' REPORTS: promptly upon receipt thereof (unless restricted
by applicable professional standards), copies of the annual letter to management
prepared by Company's independent certified public accountants;
(vii) SEC FILINGS AND PRESS RELEASES; VALUERX FINANCIAL STATEMENTS:
promptly upon their becoming available, copies of (a) all financial statements,
reports, notices and proxy statements sent or made available generally by
Company to its security holders or by any Subsidiary of Company to its security
holders other than Company or another Subsidiary of Company, (b) all regular and
periodic reports and all registration statements (other than on Form S-8 or a
similar form) and prospectuses, if any, filed by Company or any of its
Subsidiaries with any securities exchange or with the Securities and Exchange
Commission ("SEC") or any governmental or private regulatory authority, and (c)
all press releases and other statements made available generally by Company or
any of its Subsidiaries to the public concerning material developments in the
business of Company or any of its Subsidiaries; PROVIDED that within 60 days of
the Closing Date, if not provided earlier to the Lenders in connection with a
Company filing with the SEC on Form 8-K, Company will provide audited financial
statements of ValueRx for its 1997 fiscal year and a PRO FORMA combined
consolidated balance sheet for Company and ValueRx after giving effect to the
Acquisition and financings contemplated hereby; PROVIDED, further within 90 days
of the Closing Date, Company will provide (i) statements reconciling the
statement of operations of ValueRx for its 1997 fiscal year to the financial
information regarding the 1997 fiscal year of ValueRx provided to the Lenders as
part of the syndication materials distributed by Agent and also (ii) statements
reconciling the PRO FORMA combined consolidated balance sheet for Company and
ValueRx after giving effect to the Acquisition and financings contemplated
hereby to the information previously provided to the Lenders pursuant to
subsection 4.1N.
(viii) EVENTS OF DEFAULT, ETC.: promptly upon any officer of Company
obtaining knowledge (a) of any condition or event that constitutes an Event of
Default or Potential Event of Default, or becoming aware that any Lender has
given any notice (other than to Agent) or taken any other action with respect to
a claimed Event of Default or Potential Event of Default, (b) that any Person
has given any notice to Company or any of its Subsidiaries or taken any other
action with respect to a claimed default or event or condition of the type
referred to in subsection 8.2, (c) of any condition or event that would be
required to be disclosed in a current report filed by Company with the
Securities and Exchange Commission on Form 8-K (Items 1, 2, 4, 5 and 6 of such
Form as in effect on the date hereof) if Company were required to file such
reports under the Exchange Act, or (d) of the occurrence of any event or change
that has caused or evidences, either in any case or in the aggregate, a Material
Adverse Effect (including, without limitation, termination or modification of
customer contracts), an Officers' Certificate specifying the nature and period
of existence of such condition, event or change, or specifying the notice given
or action taken by any such Person and the nature of such claimed Event of
Default, Potential Event of Default, default, event or condition, and what
action Company has taken, is taking and proposes to take with respect thereto;
(ix) LITIGATION OR OTHER PROCEEDINGS: promptly upon any officer of Company
obtaining knowledge of (X) the institution of any action, suit, proceeding
(whether administrative, judicial or otherwise), governmental investigation or
arbitration against or affecting Company or any of its Subsidiaries or any
property, license or registration of Company or any of its Subsidiaries
(collectively, "PROCEEDINGS") not previously disclosed in writing by Company to
Lenders or (Y) any material development in any Proceeding that, in any case:
(1) if adversely determined, has a reasonable possibility of giving rise to
a Material Adverse Effect; or
(2) seeks to enjoin or otherwise prevent the consummation of, or to recover
any damages or obtain relief as a result of, the transactions contemplated
hereby; written notice thereof together with such other information as may be
reasonably available to Company to enable Lenders and their counsel to evaluate
such matters;
(x) ERISA EVENTS: promptly upon becoming aware of the occurrence of or
forthcoming occurrence of any ERISA Event that would reasonably be expected to
result in a Material Adverse Effect, a written notice specifying the nature
thereof, what action Company, any of its Subsidiaries or any of their respective
ERISA Affiliates has taken, is taking or proposes to take with respect thereto
and, when known, any action taken or threatened by the Internal Revenue Service,
the Department of Labor or the PBGC with respect thereto;
(xi) ERISA NOTICES: with reasonable promptness, copies of (a) all notices
received by Company, any of its Subsidiaries or any of their respective ERISA
Affiliates from a Multiemployer Plan sponsor concerning an ERISA Event that
would reasonably be expected to result in a Material Adverse Effect; and (b)
copies of such other documents or governmental reports or filings relating to
any Pension Plan as Agent shall reasonably request;
(xii) FINANCIAL PLANS: as soon as practicable and in any event no later
than 60 days after the end of each Fiscal Year, a consolidated plan and
financial forecast for such Fiscal Year (the "FINANCIAL PLAN"), including (a)
forecasted consolidated balance sheet and forecasted consolidated statement of
operations showing forecasted statements of operations for each line of business
and a forecasted consolidated statement of cash flows of Company and its
Subsidiaries for such Fiscal Year, together with an explanation of the
assumptions on which such forecasts are based, (b) forecasted consolidated
statements of operations and cash flows of Company and its Subsidiaries for each
quarter of such Fiscal Year, together with an explanation of the assumptions on
which such forecasts are based, and (c) such other information and projections
as any Lender may reasonably request;
(xiii) INSURANCE: as soon as practicable and in any event by the last day
of each Fiscal Year, a report in form and substance satisfactory to Agent
outlining all material insurance coverage maintained as of the date of such
report by Company and its Subsidiaries and all material insurance coverage
planned to be maintained by Company and its Subsidiaries in the immediately
succeeding Fiscal Year;
(xiv) BOARD OF DIRECTORS: with reasonable promptness, written notice of any
change in the Board of Directors of Company;
(xv) NEW SUBSIDIARIES: promptly upon any Person becoming a Subsidiary of
Company, a written notice setting forth with respect to such Person (a) the date
on which such Person became a Subsidiary of Company and (b) all of the data
required to be set forth in SCHEDULE 5.1 annexed hereto with respect to all
Subsidiaries of Company (it being understood that such written notice shall be
deemed to supplement SCHEDULE 5.1 annexed hereto for all purposes of this
Agreement);
(xvi) LICENSING, REGISTRATION AND ACCREDITATION: with reasonable
promptness, information regarding proceedings regarding any licensure,
registration or accreditation of Company or a Subsidiary by or with any
governmental body or the Joint Commission Accreditation of Healthcare
Organizations, if failure to obtain or maintain such license, registration or
accreditation has a reasonable possibility of giving rise to a Material Adverse
Effect; and
(xvii) OTHER INFORMATION: with reasonable promptness, such other
information and data with respect to Company or any of its Subsidiaries as from
time to time may be reasonably requested by any Lender.
6.2 CORPORATE EXISTENCE, ETC.
Except as permitted under subsection 7.7, Company will, and will cause each
of its Subsidiaries to, at all times preserve and keep in full force and effect
its corporate existence and all rights and franchises material to its business;
PROVIDED, HOWEVER that neither Company nor any of its Subsidiaries shall be
required to preserve any such right or franchise if the Board of Directors of
Company or such Subsidiary shall determine that the preservation thereof is no
longer desirable in the conduct of the business of Company or such Subsidiary,
as the case may be, and that the loss thereof would not have a Material Adverse
Effect.
6.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION
A. Company will, and will cause each of its Subsidiaries to, pay all taxes,
assessments and other governmental charges imposed upon it or any of its
properties or assets or in respect of any of its income, businesses or
franchises before any penalty accrues thereon, and all claims (including claims
for labor, services, materials and supplies) for sums that have become due and
payable and that by law have or may become a Lien upon any of its properties or
assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; PROVIDED that no such charge or claim need be paid if it is
being contested in good faith by appropriate proceedings promptly instituted and
diligently conducted, so long as (1) such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made therefor and (2) in the case of a charge or claim which has or may become a
Lien against any of the Collateral, such contest proceedings conclusively
operate to stay the sale of any portion of the Collateral to satisfy such charge
or claim.
B. Company will not, nor will it permit any of its Subsidiaries to, file or
consent to the filing of any consolidated income tax return with any Person
(other than Company or any of its Subsidiaries).
6.4 MAINTENANCE OF PROPERTIES; INSURANCE
A. MAINTENANCE OF PROPERTIES. Company will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good repair, working
order and condition, ordinary wear and tear excepted, all material properties
used or useful in the business of Company and its Subsidiaries and from time to
time will make or cause to be made all appropriate repairs, renewals and
replacements thereof.
B. INSURANCE. Company will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third
party property damage insurance, business interruption insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by corporations
of established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for
corporations similarly situated in the industry.
6.5 INSPECTION RIGHTS; LENDER MEETING
A. INSPECTION RIGHTS. Company shall, and shall cause each of its
Subsidiaries to, permit any authorized representatives designated by the Agent
(on its behalf or on behalf of any Lender) to visit and inspect any of the
properties of Company or of any of its Subsidiaries, to inspect, copy and take
extracts from its and their financial and accounting records, and to discuss its
and their affairs, finances and accounts with its and their officers and
independent public accountants (provided that Company may, if it so chooses, be
present at or participate in any such discussion), all upon reasonable notice
and at such reasonable times during normal business hours and as often as may
reasonably be requested.
B. LENDER MEETING. Company will, upon the request of Agent or Requisite
Lenders, participate in a meeting of Agent and Lenders once during each Fiscal
Year to be held at Company's corporate offices (or at such other location as may
be agreed to by Company and Agent) at such time as may be agreed to by Company
and Agent to discuss topics including, but not limited to, the current Fiscal
Year's Financial Plan and the outlook and projections for the Company's lines of
business for the next two Fiscal Years.
6.6 COMPLIANCE WITH LAWS, ETC.
A. COMPLIANCE. Company shall comply and operate in compliance, and shall
cause each of its Subsidiaries to comply and to operate in compliance, with the
requirements of all applicable laws, rules, regulations and orders of any
governmental authority (including those involving licensing or registration
relating to the pharmaceutical and healthcare services provided by Company and
its Subsidiaries and Environmental Laws) at all times, noncompliance with which
could reasonably be expected to cause, individually or in the aggregate, a
Material Adverse Effect.
B. LICENSES. To the extent not obtained prior to the Closing Date, Company
will obtain all licenses required to conduct the businesses conducted by ValueRx
at the times required by applicable law, except those that the failure to obtain
which, individually or in the aggregate, could not reasonably be expected to
result in a Material Adverse Effect.
6.7 ENVIRONMENTAL CLAIMS AND VIOLATIONS OF ENVIRONMENTAL LAWS
Except as could not reasonably be expected to cause, individually or in the
aggregate, a Material Adverse Effect, Company shall promptly take, and shall use
best efforts to cause each of its Subsidiaries promptly to take, any and all
actions necessary to (i) cure any violation of applicable Environmental Laws by
Company or its Subsidiaries and (ii) make an appropriate response to any
Environmental Claim against Company or any of its Subsidiaries and discharge any
obligations it may have to any Person thereunder.
6.8 EXECUTION OF SUBSIDIARY GUARANTY AND COLLATERAL DOCUMENTS BY CERTAIN
SUBSIDIARIES AND FUTURE SUBSIDIARIES
A. EXECUTION OF SUBSIDIARY GUARANTY AND COLLATERAL DOCUMENTS. In the event
that any Person becomes a Subsidiary of Company after the date hereof, Company
will promptly notify Agent of that fact and cause such Subsidiary to execute and
deliver to Agent a counterpart of the Subsidiary Guaranty and a Subsidiary
Pledge Agreement, and to take all such further actions and execute all such
further documents and instruments (including actions, documents and instruments
comparable to those described in subsection 4.1E) as may be necessary or, in the
opinion of Agent, desirable to create in favor of Agent, for the benefit of
Lenders, a valid and perfected First Priority Lien on all of the property of
such Subsidiary described in the applicable forms of Collateral Documents.
B. SUBSIDIARY CHARTER DOCUMENTS, LEGAL OPINIONS, ETC. Substantially
concurrent with the execution and delivery by a Subsidiary of the Loan Documents
and subsection 6.8A, Company shall deliver to Agent, together with such Loan
Documents, (i) certified copies of such Subsidiary's Certificate or Articles of
Incorporation, together with a good standing certificate from the Secretary of
State of the jurisdiction of its incorporation and, to the extent generally
available, a certificate or other evidence of good standing as to payment of any
applicable franchise or similar taxes from the appropriate taxing authority of
such jurisdiction, each to be dated a recent date prior to their delivery to
Agent, (ii) a copy of such Subsidiary's Bylaws, certified by its corporate
secretary or an assistant secretary as of a recent date prior to their delivery
to Agent, (iii) a certificate executed by the secretary or an assistant
secretary of such Subsidiary as to (a) the fact that the attached resolutions of
the Board of Directors of such Subsidiary approving and authorizing the
execution, delivery and performance of such Loan Documents are in full force and
effect and have not been modified or amended and (b) the incumbency and
signatures of the officers of such Subsidiary executing such Loan Documents, and
(iv) a favorable opinion of counsel to such Subsidiary, in form and substance
satisfactory to Agent and its counsel, as to (a) the due organization and good
standing of such Subsidiary, (b) the due authorization, execution and delivery
by such Subsidiary of such Loan Documents, (c) the enforceability of such Loan
Documents against such Subsidiary, (d) such other matters (including matters
relating to the creation and perfection of Liens in any Collateral pursuant to
such Loan Documents) as Agent may reasonably request, all of the foregoing to be
reasonably satisfactory in form and substance to Agent and its counsel.
6.9 YEAR 2000 COMPLIANCE
Company will promptly notify Agent in the event Company discovers or
determines that any computer application (including those of its suppliers and
vendors) that is material to its or its Subsidiaries' business and operations
will not be Year 2000 compliant as of January 1, 2000, except to the extent that
such failure could not reasonably be expected to have a Material Adverse Effect.
SECTION 7. COMPANY'S NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 7.
7.1 INDEBTEDNESS
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become
or remain directly or indirectly liable with respect to, any Indebtedness,
except:
(i) Company may become and remain liable with respect to the Obligations;
(ii) Company and its Subsidiaries may become and remain liable with respect
to Contingent Obligations permitted by subsection 7.4 and, upon any matured
obligations actually arising pursuant thereto, the Indebtedness corresponding to
the Contingent Obligations so extinguished;
(iii) Company and its Subsidiaries may become and remain liable with
respect to Indebtedness in respect of Capital Leases; PROVIDED that such Capital
Leases are permitted if the aggregate amount of such Capital Leases that
constitutes Indebtedness does not exceed $15,000,000 at any time outstanding.
(iv) Company may become and remain liable with respect to Indebtedness to
any of its Subsidiaries, and any Subsidiary of Company may become and remain
liable with respect to Indebtedness to Company or any other Subsidiary of
Company; PROVIDED that (a) all such intercompany Indebtedness owed by Company to
any of its Subsidiaries shall be subordinated in right of payment to the payment
in full of the Obligations pursuant to the terms of the applicable promissory
notes or an intercompany subordination agreement, and (b) any payment by any
Subsidiary of Company under any guaranty of the Obligations shall result in a
PRO TANTO reduction of the amount of any intercompany Indebtedness owed by such
Subsidiary to Company or to any of its Subsidiaries for whose benefit such
payment is made;
(v) Company and its Subsidiaries, as applicable, may remain liable with
respect to Indebtedness described in SCHEDULE 7.1 annexed hereto and extensions,
renewals, and replacement of any such Indebtedness that do not increase the
outstanding principal amount thereof or result in an earlier maturity date or
decreased weighted average life thereof;
(vi) Indebtedness of Company or any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets, other
than Capital Leases and any Indebtedness assumed in connection with the
acquisition of any such assets or secured by a Lien on any such assets prior to
the acquisition thereof, PROVIDED that such Indebtedness is incurred prior to or
within 90 days after such acquisition or the completion of such construction or
improvement, and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal thereof or result in an earlier
maturity date or decreased weighted average life thereof, and PROVIDED further
that the aggregate principal amount of Indebtedness permitted by this clause
(vi) that is incurred following the Closing Date shall not exceed $10,000,000 at
any time outstanding;
(vii) Indebtedness of any Person that becomes a Subsidiary after the date
hereof, PROVIDED that (A) such Indebtedness exists at the time such Person
becomes a Subsidiary and is not created in contemplation of or in connection
with such Person becoming a Subsidiary and (B) the aggregate principal amount of
Indebtedness permitted by this clause (vii) shall not exceed $10,000,000 at any
time outstanding;
(viii) Company may become and remain liable with respect to other
Indebtedness in an aggregate principal amount not to exceed $10,000,000 at any
time outstanding.
7.2 LIENS AND RELATED MATTERS
A. PROHIBITION ON LIENS. Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, create, incur, assume or permit to
exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the Uniform Commercial Code of any State or under any similar
recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral Documents;
(iii) Liens described in SCHEDULE 7.2 annexed hereto; PROVIDED, THAT such
Liens shall secure only those obligations it secures on the date hereof and
extensions, renewals, and replacement thereof that do not increase the
outstanding principal amount thereof;
(iv) Any Lien existing on any property or asset prior to the acquisition
thereof by Company or any Subsidiary or existing on any property or asset of any
Person that becomes a Subsidiary after the date hereof prior to the time such
Person becomes a Subsidiary, PROVIDED that (A) such Lien is not created in
contemplation of or in connection with such acquisition or such Person becoming
a Subsidiary, (B) such Lien shall not apply to any other property or assets of
Company or any Subsidiary and (C) such Lien shall secure only those obligations
that it secures on the date of such acquisition or the date such Person becomes
a Subsidiary, as the case may be, and extensions, renewals and replacements
thereof that do not increase the outstanding principal amount thereof;
(v) Liens on fixed or capital assets acquired, constructed or improved by
Company or any Subsidiary, PROVIDED that (A) such security interests secure
Indebtedness permitted by clauses (iii) and (vi) of Section 7.1, (B) such
security interests and the Indebtedness secured thereby are incurred prior to or
within 90 days after such acquisition or the completion of such construction or
improvement, (C) the Indebtedness secured thereby does not exceed 75% (100% of
the Indebtedness if in the form of a Capital Lease) of the cost of acquiring,
constructing or improving such fixed or capital assets and (D) such security
interests shall not apply to any other property or assets of Company or any
Subsidiary; and
(vi) Other Liens securing Indebtedness in an aggregate amount not to exceed
$10,000,000 at any time outstanding.
B. NO FURTHER NEGATIVE PLEDGES. Except with respect to specific property
encumbered to secure payment of particular Indebtedness to be sold pursuant to
an executed agreement with respect to an Asset Sale or subject to a lease that
contains customers provisions restricting assignment, neither Company nor any of
its Subsidiaries shall enter into any agreement (other than an agreement
prohibiting only the creation of Liens securing Subordinated Indebtedness)
prohibiting the creation or assumption of any Lien upon any of its properties or
assets, whether now owned or hereafter acquired.
C. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO COMPANY OR OTHER
SUBSIDIARIES. Except as provided herein and except with respect to specific
property encumbered to secure payment of particular Indebtedness to be sold
pursuant to an executed agreement with respect to an Asset Sale or subject to a
lease that contains customers provisions restricting assignment, Company will
not, and will not permit any of its Subsidiaries to, create or otherwise cause
or suffer to exist or become effective any consensual encumbrance or restriction
of any kind on the ability of any such Subsidiary to (i) pay dividends or make
any other distributions on any of such Subsidiary's capital stock owned by
Company or any other Subsidiary of Company, (ii) repay or prepay any
Indebtedness owed by such Subsidiary to Company or any other Subsidiary of
Company, (iii) make loans or advances to Company or any other Subsidiary of
Company, or (iv) transfer any of its property or assets to Company or any other
Subsidiary of Company.
7.3 INVESTMENTS; JOINT VENTURES
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, make or own any Investment in any Person, including any
Joint Venture, except:
(i) Company and its Subsidiaries may make and own Investments in Cash
Equivalents;
(ii) Company and its Subsidiaries may make Consolidated Capital
Expenditures permitted by subsection 7.8;
(iii) Company and its Subsidiaries may continue to own the Investments
owned by them and described in SCHEDULE 7.3 annexed hereto and extensions,
renewals and replacements of any such Contingent Obligations that do not
increase the amount thereof;
(iv) Company and its Subsidiaries may own promissory notes given in payment
of the purchase price of assets purchased from Company and its Subsidiaries as
permitted by subsection 7.7;
(v) Company and its Subsidiaries may make Permitted Acquisitions; and
(vi) Company and its Subsidiaries may make and own other Investments in an
aggregate amount not to exceed at any time $25,000,000.
7.4 CONTINGENT OBLIGATIONS
Company shall not, and shall not (with respect to Restricted Junior
Payments under clause (iv) of such definition) permit any of its Subsidiaries
to, directly or indirectly, create or become or remain liable with respect to
any Contingent Obligation, except:
(i) Subsidiaries of Company may become and remain liable with respect to
Contingent Obligations in respect of the Subsidiary Guaranty;
(ii) Company may become and remain liable with respect to Contingent
Obligations in respect of Letters of Credit and Company and its Subsidiaries may
become and remain liable with respect to Contingent Obligations in respect of
other letters of credit in an aggregate amount not to exceed at any time
$20,000,000;
(iii) Company may become and remain liable with respect to Contingent
Obligations under Hedge Agreements;
(iv) Company and its Subsidiaries may become and remain liable with respect
to Contingent Obligations in respect of customary indemnification and purchase
price adjustment obligations incurred in connection with Asset Sales or other
sales of assets;
(v) Company and its Subsidiaries may become and remain liable with respect
to Contingent Obligations under guarantees in the ordinary course of business of
the obligations of suppliers, customers, franchisees and licensees of Company
and its Subsidiaries;
(vi) Company and its Subsidiaries may become and remain liable with respect
to Contingent Obligations in respect of any Indebtedness of Company or any of
its Subsidiaries permitted by subsection 7.1;
(vii) Company and its Subsidiaries, as applicable, may remain liable with
respect to Contingent Obligations described in SCHEDULE 7.4 annexed hereto and
extension, renewals and replacements of any such Contingent Obligations that do
not increase the amount thereof; and
(viii) Company and its Subsidiaries may become and remain liable with
respect to other Contingent Obligations; PROVIDED that the maximum aggregate
liability, contingent or otherwise, of Company and its Subsidiaries in respect
of all such Contingent Obligations shall at no time exceed $8,000,000.
7.5 RESTRICTED JUNIOR PAYMENTS
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, declare, order, pay, make or set apart any sum for any
Restricted Junior Payment; PROVIDED that, so long as no Event of Default or
Potential Event of Default has occurred and is continuing, Company may
cumulatively make Restricted Junior Payments in an aggregate amount of
$25,000,000 plus 25% of Consolidated Net Income for the period commencing on the
Closing Date and ending with the Fiscal Quarter most recently ended prior to the
date of payment.
7.6 FINANCIAL COVENANTS
A. MINIMUM INTEREST COVERAGE RATIO. Company shall not permit the ratio of
(i) Consolidated EBITDA to (ii) Consolidated Interest Expense at the end of the
four Fiscal Quarter period ending on the date set forth below, subject to
subsection 1.2B, to be less than the correlative ratio indicated:
<TABLE>
<CAPTION>
MINIMUM
PERIOD INTEREST COVERAGE RATIO
<S> <C>
September 30, 1998 3.75
December 31, 1998 3.75
March 31, 1999 4.00
June 30, 1999 4.00
September 30, 1999 4.50
December 31, 1999 and thereafter 5.00
</TABLE>
B. MAXIMUM LEVERAGE RATIO. Company shall not permit the Consolidated
Leverage Ratio as of the last day of any Fiscal Quarter ending during any of the
periods set forth below to exceed the correlative ratio indicated:
<TABLE>
<CAPTION>
PERIOD MAXIMUM LEVERAGE RATIO
<S> <C>
September 30, 1998 3.50
December 31, 1998 3.25
March 31, 1999 3.00
June 30, 1999 3.00
September 30, 1999 2.75
December 31, 1999 and thereafter 2.50
</TABLE>
C. MINIMUM CONSOLIDATED NET WORTH. Company shall not permit Consolidated
Net Worth at any time to be less than the sum of (i) $170,000,000, (ii) any
increase in stockholders's equity resulting from an issuance or sale of equity
Securities of Company (including equity issued upon the conversion of any
convertible Securities) and (iii) 75% of adjusted Consolidated Net Income for
each Fiscal Quarter ending during the period commencing with the Closing Date
and ending on the last day of the most recent Fiscal Quarter for which a
Compliance Certificate has been delivered pursuant to subsection 6.1(iii). For
purposes of this subsection 7.6C, adjusted Consolidated Net Income means the
greater of (a) Consolidated Net Income for a Fiscal Quarter and (b) zero.
7.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS
Company shall not, and shall not permit any of its Subsidiaries to enter
into any transaction of merger or consolidation, or liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution), or convey, sell,
lease or sub-lease (as lessor or sublessor), transfer or otherwise dispose of,
in one transaction or a series of transactions, all or any part of its business,
property or assets, whether now owned or hereafter acquired, or acquire by
purchase or otherwise all or substantially all the business, property or fixed
assets of, or stock or other evidence of beneficial ownership of, any Person or
any division or line of business of any Person, except:
(i) any Subsidiary of Company may be merged with or into Company or any
wholly-owned Subsidiary Guarantor, or be liquidated, wound up or dissolved, or
all or any part of its business, property or assets may be conveyed, sold,
leased, transferred or otherwise disposed of, in one transaction or a series of
transactions, to Company or any wholly-owned Subsidiary Guarantor; PROVIDED
that, in the case of such a merger, Company or such wholly-owned Subsidiary
Guarantor shall be the continuing or surviving corporation;
(ii) Company and its Subsidiaries may make Consolidated Capital
Expenditures permitted under subsection 7.8;
(iii) Company and its Subsidiaries may dispose of obsolete, worn out or
surplus property in the ordinary course of business;
(iv) Company and its Subsidiaries may sell or otherwise dispose of assets
in transactions that do not constitute Asset Sales; PROVIDED that the
consideration received for such assets shall be in an amount at least equal to
the fair market value thereof;
(v) Company and its Subsidiaries may make Permitted Acquisitions; and
(vi) subject to subsection 7.13, Company and its Subsidiaries may make
Asset Sales, the aggregate value of all such sales having a book value not
exceeding 15% of the consolidated total assets of the Company on the date of
such sale PROVIDED that (x) the consideration received for such assets shall be
in an amount at least equal to the fair market value thereof; (y) no more than
$20,000,000 of the consideration received in the aggregate for all such sales
shall be non-cash; and (z) the Net Asset Sale Proceeds of such Asset Sales shall
be applied as required by subsection 2.4B(iii)(a).
7.8 CONSOLIDATED CAPITAL EXPENDITURES
Company shall not, and shall not permit its Subsidiaries to, make or incur
Consolidated Capital Expenditures, in any Fiscal Year indicated below, in an
aggregate amount in excess of the corresponding amount (the "MAXIMUM
CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth below opposite such Fiscal
Year; PROVIDED that the Maximum Consolidated Capital Expenditures Amount for any
Fiscal Year shall be increased by an amount equal to the excess, if any, of the
Maximum Consolidated Capital Expenditures Amount for the previous Fiscal Year
(as adjusted in accordance with this proviso) over the actual amount of
Consolidated Capital Expenditures for such previous Fiscal Year; PROVIDED,
FURTHER that in no event shall the amount of such increase exceed 25% of the
Maximum Consolidated Capital Expenditures Amount for such previous Fiscal Year
(prior to any adjustment in accordance with this proviso):
<TABLE>
<CAPTION>
MAXIMUM CONSOLIDATED
FISCAL YEAR CAPITAL EXPENDITURES
<C> <C>
1998 (from Closing Date to end of Fiscal Year) $15,000,000
1999 and 2000 $20,000,000
2001 and thereafter $25,000,000
</TABLE>
7.9 FISCAL YEAR
Company shall not change its Fiscal Year-end from December 31.
7.10 SALES AND LEASE-BACKS
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, become or remain liable as lessee or as a guarantor or
other surety with respect to any lease, whether an Operating Lease or a Capital
Lease, of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, (i) which Company or any of its Subsidiaries has sold or
transferred or is to sell or transfer to any other Person (other than Company or
any of its Subsidiaries) or (ii) which Company or any of its Subsidiaries
intends to use for substantially the same purpose as any other property which
has been or is to be sold or transferred by Company or any of its Subsidiaries
to any Person (other than Company or any of its Subsidiaries) in connection with
such lease.
7.11 SALE OR DISCOUNT OF RECEIVABLES
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, sell with recourse, or discount or otherwise sell for
less than the face value thereof, any of its notes or accounts receivable,
except in connection with the sale of all or substantially all of any line of
business of the Company or its Subsidiaries, including Vision.
7.12 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, enter into or permit to exist any transaction (including
the purchase, sale, lease or exchange of any property or the rendering of any
service) with any holder of 5% or more of any class of equity Securities of
Company or with any Affiliate of Company or of any such holder, on terms that
are less favorable to Company or that Subsidiary, as the case may be, than those
that might be obtained at the time from Persons who are not such a holder or
Affiliate; PROVIDED that the foregoing restriction shall not apply to (i) any
transaction between Company and any of its wholly-owned Subsidiaries or between
any of its wholly-owned Subsidiaries or (ii) reasonable and customary fees paid
to members of the Boards of Directors of Company and its Subsidiaries.
7.13 DISPOSAL OF SUBSIDIARY STOCK
Except for any sale in compliance with the provisions of subsection 7.7(vi)
of (i) 100% of the capital stock or other equity Securities of any of its
Subsidiaries or (ii) the disposition of up to 50% of Company's interest in
Practice Patterns Science, Inc., Company shall not:
(i) directly or indirectly sell, assign, pledge or otherwise encumber or
dispose of any shares of capital stock or other equity Securities of any of its
Subsidiaries, except to qualify directors if required by applicable law; or
(ii) permit any of its Subsidiaries directly or indirectly to sell, assign,
pledge or otherwise encumber or dispose of any shares of capital stock or other
equity Securities of any of its Subsidiaries (including such Subsidiary), except
to Company, another Subsidiary of Company, or to qualify directors if required
by applicable law.
7.14 CONDUCT OF BUSINESS
From and after the Closing Date, Company shall not, and shall not permit
any of its Subsidiaries to, engage in any business other than (i) the businesses
engaged in by Company and its Subsidiaries on the Closing Date and similar or
related businesses and (ii) such other lines of business as may be consented to
by Requisite Lenders.
SECTION 8. EVENTS OF DEFAULT
If any of the following conditions or events ("EVENTS OF DEFAULT") shall
occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE
Failure by Company to pay any installment of principal of any Loan when
due, whether at stated maturity, by acceleration, by notice of voluntary
prepayment, by mandatory prepayment or otherwise; failure by Company to pay when
due any amount payable to an Issuing Lender in reimbursement of any drawing
under a Letter of Credit; or failure by Company to pay any interest on any Loan
or any fee or any other amount due under this Agreement within five days after
the date due; or
8.2 DEFAULT IN OTHER AGREEMENTS
(i) Failure of Company or any of its Subsidiaries to pay when due any
principal of or interest on or any other amount payable in respect of one or
more items of Indebtedness (other than Indebtedness referred to in subsection
8.1) or Contingent Obligations in an individual principal amount of $10,000,000
or more or with an aggregate principal amount of $10,000,000 or more, in each
case beyond the end of any grace period provided therefor; or (ii) breach or
default by Company or any of its Subsidiaries with respect to any other material
term of (a) one or more items of Indebtedness or Contingent Obligations in the
individual or aggregate principal amounts referred to in clause (i) above or (b)
any loan agreement, mortgage, indenture or other agreement relating to such
item(s) of Indebtedness or Contingent Obligation(s), if the effect of such
breach or default is to cause, or to permit the holder or holders of that
Indebtedness or Contingent Obligation(s) (or a trustee on behalf of such holder
or holders) to cause, that Indebtedness or Contingent Obligation(s) to become or
be declared due and payable prior to its stated maturity or the stated maturity
of any underlying obligation, as the case may be (upon the giving or receiving
of notice, lapse of time, both, or otherwise); or
8.3 BREACH OF CERTAIN COVENANTS
Failure of Company to perform or comply with any term or condition
contained in subsections 2.5 or 6.2 (with respect to corporate existence) or
Section 7 of this Agreement; or
8.4 BREACH OF WARRANTY
Any representation, warranty, certification or other statement made by
Company or any of its Subsidiaries in any Loan Document or in any statement or
certificate at any time given by Company or any of its Subsidiaries in writing
pursuant hereto or thereto or in connection herewith or therewith shall be false
in any material respect on the date as of which made; or
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS
Any Loan Party shall default in the performance of or compliance with any
term contained in this Agreement or any of the other Loan Documents, other than
any such term referred to in any other subsection of this Section 8, and such
default shall not have been remedied or waived within 30 days after the earlier
of (i) an officer of Company or such Loan Party becoming aware of such default
or (ii) receipt by Company and such Loan Party of notice from Agent or any
Lender of such default; or
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a decree or
order for relief in respect of Company or any of its Subsidiaries in an
involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed within 60 days of the entry thereof; or any other similar
relief shall be granted under any applicable federal or state law; or (ii) an
involuntary case shall be commenced against Company or any of its Subsidiaries
under the Bankruptcy Code or under any other applicable bankruptcy, insolvency
or similar law now or hereafter in effect; or a decree or order of a court
having jurisdiction in the premises for the appointment of a receiver,
liquidator, sequestrator, trustee, custodian or other officer having similar
powers over Company or any of its Subsidiaries, or over all or a substantial
part of its property, shall have been entered; or there shall have occurred the
involuntary appointment of an interim receiver, trustee or other custodian of
Company or any of its Subsidiaries for all or a substantial part of its
property; or a warrant of attachment, execution or similar process shall have
been issued against any substantial part of the property of Company or any of
its Subsidiaries, and any such event described in this clause (ii) shall
continue for 60 days unless dismissed, bonded or discharged; or
8.7 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Company or any of its Subsidiaries shall have an order for relief
entered with respect to it or commence a voluntary case under the Bankruptcy
Code or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; or Company or any of its Subsidiaries shall make any
assignment for the benefit of creditors; or (ii) Company or any of its
Subsidiaries shall be unable, or shall fail generally, or shall admit in writing
its inability, to pay its debts as such debts become due; or the Board of
Directors of Company or any of its Subsidiaries (or any committee thereof) shall
adopt any resolution or otherwise authorize any action to approve any of the
actions referred to in clause (i) above or this clause (ii); or
8.8 JUDGMENTS AND ATTACHMENTS
Any money judgment, writ or warrant of attachment or similar process
involving (i) in any individual case an amount in excess of $10,000,000 or (ii)
in the aggregate at any time an amount in excess of $10,000,000 (in either case
not adequately covered by insurance as to which a solvent and unaffiliated
insurance company has acknowledged coverage) shall be entered or filed against
Company or any of its Subsidiaries or any of their respective assets and shall
remain undischarged, unvacated, unbonded or unstayed for a period of 60 days (or
in any event later than five days prior to the date of any proposed sale
thereunder); or
8.9 DISSOLUTION
Any order, judgment or decree shall be entered against Company or any of
its Subsidiaries decreeing the dissolution or split up of Company or that
Subsidiary and such order shall remain undischarged or unstayed for a period in
excess of 60 days; or
8.10 EMPLOYEE BENEFIT PLANS
There shall occur one or more ERISA Events which individually or in the
aggregate results in or might reasonably be expected to result in liability of
Company, any of its Subsidiaries or any of their respective ERISA Affiliates; or
there shall exist an amount of unfunded benefit liabilities (as defined in
Section 4001(a)(18) of ERISA), individually or in the aggregate for all Pension
Plans (excluding for purposes of such computation any Pension Plans with respect
to which assets exceed benefit liabilities), which if amortized over twenty
years; in either case, that would reasonably be expected, after considering the
financial condition of all of the more closely related ERISA Affiliates, to
result in a Material Adverse Effect.
8.11 CHANGE IN CONTROL
Any Person or any two or more Persons acting in concert (other than New
York Life and its Affiliates) shall have acquired beneficial ownership (within
the meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Exchange Act), directly or indirectly, of Securities of Company (or other
Securities convertible into such Securities) representing 20% or more of the
combined voting power of all Securities of Company entitled to vote in the
election of directors, other than Securities having such power only by reason of
the happening of a contingency; PROVIDED, that the acquisition of shares of
Common Stock of Company owned by New York Life and its Affiliates by one or more
Persons from time to time shall not be an Event of Default pursuant to this
subsection 8.11.
8.12 INVALIDITY OF SUBSIDIARY GUARANTY; FAILURE OF SECURITY; REPUDIATION OF
OBLIGATIONS
At any time after the execution and delivery thereof, (i) the Subsidiary
Guaranty for any reason, other than the satisfaction in full of all Obligations,
shall cease to be in full force and effect (other than in accordance with its
terms) or shall be declared to be null and void, (ii) any Collateral Document
shall cease to be in full force and effect (other than by reason of a release of
Collateral thereunder in accordance with the terms hereof or thereof, the
satisfaction in full of the Obligations or any other termination of such
Collateral Document in accordance with the terms hereof or thereof) or shall be
declared null and void, or Agent shall not have or shall cease to have a valid
and perfected First Priority Lien in any Collateral purported to be covered
thereby, in each case for any reason other than the failure of Agent or any
Lender to take any action within its control, or (iii) any Loan Party shall
contest the validity or enforceability of any Loan Document in writing or deny
in writing that it has any further liability, including with respect to future
advances by Lenders, under any Loan Document to which it is a party.
8.13 FAILURE TO CONSUMMATE THE ACQUISITION
Failure by Company to consummate the Acquisition from Seller by the close
of business on the Closing Date, regardless of fault on the part of Company
pursuant to the Definitive Acquisition Documents.THEN (i) upon the occurrence of
any Event of Default described in subsection 8.6 or 8.7, each of (a) the unpaid
principal amount of and accrued interest on the Loans, (b) an amount equal to
the maximum amount that may at any time be drawn under all Letters of Credit
then outstanding (whether or not any beneficiary under any such Letter of Credit
shall have presented, or shall be entitled at such time to present, the drafts
or other documents or certificates required to draw under such Letter of
Credit), and (c) all other Obligations shall automatically become immediately
due and payable, without presentment, demand, protest or other requirements of
any kind, all of which are hereby expressly waived by Company, and the
obligation of each Lender to make any Loan, the obligation of Agent to issue any
Letter of Credit and the right of any Lender to issue any Letter of Credit
hereunder shall thereupon terminate, and (ii) upon the occurrence and during the
continuation of any other Event of Default, Agent shall, upon the written
request or with the written consent of Requisite Lenders, by written notice to
Company, declare all or any portion of the amounts described in clauses (a)
through (c) above to be, and the same shall forthwith become, immediately due
and payable, and the obligation of each Lender to make any Loan, the obligation
of Agent to issue any Letter of Credit and the right of any Lender to issue any
Letter of Credit hereunder shall thereupon terminate; PROVIDED that the
foregoing shall not affect in any way the obligations of Lenders under
subsection 3.3C(i) or the obligations of Lenders to purchase participations in
any unpaid Swing Ling Loans as provided in subsection 2.1A(iii).
Notwithstanding anything contained in the second preceding paragraph, if at
any time within 60 days after an acceleration of the Loans pursuant to clause
(ii) of such paragraph Company shall pay all arrears of interest and all
payments on account of principal which shall have become due otherwise than as a
result of such acceleration (with interest on principal and, to the extent
permitted by law, on overdue interest, at the rates specified in this Agreement)
and all Events of Default and Potential Events of Default (other than
non-payment of the principal of and accrued interest on the Loans, in each case
which is due and payable solely by virtue of acceleration) shall be remedied or
waived pursuant to subsection 10.6, then Requisite Lenders, by written notice to
Company, may at their option rescind and annul such acceleration and its
consequences; but such action shall not affect any subsequent Event of Default
or Potential Event of Default or impair any right consequent thereon. The
provisions of this paragraph are intended merely to bind Lenders to a decision
which may be made at the election of Requisite Lenders and are not intended,
directly or indirectly, to benefit Company, and such provisions shall not at any
time be construed so as to grant Company the right to require Lenders to rescind
or annul any acceleration hereunder or to preclude Agent or Lenders from
exercising any of the rights or remedies available to them under any of the Loan
Documents, even if the conditions set forth in this paragraph are met.
SECTION 9. AGENT
9.1 APPOINTMENT
A. APPOINTMENT OF AGENT. BTCo is hereby appointed Agent hereunder and under
the other Loan Documents and each Lender hereby authorizes Agent to act as its
agent in accordance with the terms of this Agreement and the other Loan
Documents. Agent agrees to act upon the express conditions contained in this
Agreement and the other Loan Documents, as applicable. The provisions of this
Section 9 are solely for the benefit of Agent and Lenders and Company shall have
no rights as a third party beneficiary of any of the provisions thereof. In
performing its functions and duties under this Agreement, Agent shall act solely
as an agent of Lenders and does not assume and shall not be deemed to have
assumed any obligation towards or relationship of agency or trust with or for
Company or any of its Subsidiaries.
B. APPOINTMENT OF SUPPLEMENTAL COLLATERAL AGENTS. It is the purpose of this
Agreement and the other Loan Documents that there shall be no violation of any
law of any jurisdiction denying or restricting the right of banking corporations
or associations to transact business as agent or trustee in such jurisdiction.
It is recognized that in case of litigation under this Agreement or any of the
other Loan Documents, and in particular in case of the enforcement of any of the
Loan Documents, or in case Agent deems that by reason of any present or future
law of any jurisdiction it may not exercise any of the rights, powers or
remedies granted herein or in any of the other Loan Documents or take any other
action which may be desirable or necessary in connection therewith, it may be
necessary that Agent appoint an additional individual or institution as a
separate trustee, co-trustee, collateral agent or collateral co-agent (any such
additional individual or institution being referred to herein individually as a
"SUPPLEMENTAL COLLATERAL AGENT" and collectively as "SUPPLEMENTAL COLLATERAL
AGENTS").
In the event that Agent appoints a Supplemental Collateral Agent with
respect to any Collateral, (i) each and every right, power, privilege or duty
expressed or intended by this Agreement or any of the other Loan Documents to be
exercised by or vested in or conveyed to Agent with respect to such Collateral
shall be exercisable by and vest in such Supplemental Collateral Agent to the
extent, and only to the extent, necessary to enable such Supplemental Collateral
Agent to exercise such rights, powers and privileges with respect to such
Collateral and to perform such duties with respect to such Collateral, and every
covenant and obligation contained in the Loan Documents and necessary to the
exercise or performance thereof by such Supplemental Collateral Agent shall run
to and be enforceable by either Agent or such Supplemental Collateral Agent, and
(ii) the provisions of this Section 9 and of subsections 10.2 and 10.3 that
refer to Agent shall inure to the benefit of such Supplemental Collateral Agent
and all references therein to Agent shall be deemed to be references to Agent
and/or such Supplemental Collateral Agent, as the context may require.
Should any instrument in writing from Company or any other Loan Party be
required by any Supplemental Collateral Agent so appointed by Agent for more
fully and certainly vesting in and confirming to him or it such rights, powers,
privileges and duties, Company shall, or shall cause such Loan Party to,
execute, acknowledge and deliver any and all such instruments promptly upon
request by Agent. In case any Supplemental Collateral Agent, or a successor
thereto, shall die, become incapable of acting, resign or be removed, all the
rights, powers, privileges and duties of such Supplemental Collateral Agent, to
the extent permitted by law, shall vest in and be exercised by Agent until the
appointment of a new Supplemental Collateral Agent.
9.2 POWERS AND DUTIES; GENERAL IMMUNITY
A. POWERS; DUTIES SPECIFIED. Each Lender irrevocably authorizes Agent to
take such action on such Lender's behalf and to exercise such powers, rights and
remedies hereunder and under the other Loan Documents as are specifically
delegated or granted to Agent by the terms hereof and thereof, together with
such powers, rights and remedies as are reasonably incidental thereto. Agent
shall have only those duties and responsibilities that are expressly specified
in this Agreement and the other Loan Documents. Agent may exercise such powers,
rights and remedies and perform such duties by or through its agents or
employees. Agent shall not have, by reason of this Agreement or any of the other
Loan Documents, a fiduciary relationship in respect of any Lender; and nothing
in this Agreement or any of the other Loan Documents, expressed or implied, is
intended to or shall be so construed as to impose upon Agent any obligations in
respect of this Agreement or any of the other Loan Documents except as expressly
set forth herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. Agent shall not be responsible to
any Lender for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement or any other
Loan Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statements or in any
financial or other statements, instruments, reports or certificates or any other
documents furnished or made by Agent to Lenders or by or on behalf of Company to
Agent or any Lender in connection with the Loan Documents and the transactions
contemplated thereby or for the financial condition or business affairs of
Company or any other Person liable for the payment of any Obligations, nor shall
Agent be required to ascertain or inquire as to the performance or observance of
any of the terms, conditions, provisions, covenants or agreements contained in
any of the Loan Documents or as to the use of the proceeds of the Loans or the
use of the Letters of Credit or as to the existence or possible existence of any
Event of Default or Potential Event of Default. Anything contained in this
Agreement to the contrary notwithstanding, Agent shall not have any liability
arising from confirmations of the amount of outstanding Loans or the Letter of
Credit Usage or the component amounts thereof.
C. EXCULPATORY PROVISIONS. Neither Agent nor any of its officers,
directors, employees or agents shall be liable to Lenders for any action taken
or omitted by Agent under or in connection with any of the Loan Documents except
to the extent caused by Agent's gross negligence or willful misconduct. Agent
shall be entitled to refrain from any act or the taking of any action (including
the failure to take an action) in connection with this Agreement or any of the
other Loan Documents or from the exercise of any power, discretion or authority
vested in it hereunder or thereunder unless and until Agent shall have received
instructions in respect thereof from Requisite Lenders (or such other Lenders as
may be required to give such instructions under subsection 10.6) and, upon
receipt of such instructions from Requisite Lenders (or such other Lenders, as
the case may be), Agent shall be entitled to act or (where so instructed)
refrain from acting, or to exercise such power, discretion or authority, in
accordance with such instructions. Without prejudice to the generality of the
foregoing, (i) Agent shall be entitled to rely, and shall be fully protected in
relying, upon any communication, instrument or document believed by it to be
genuine and correct and to have been signed or sent by the proper person or
persons, and shall be entitled to rely and shall be protected in relying on
opinions and judgments of attorneys (who may be attorneys for Company and its
Subsidiaries), accountants, experts and other professional advisors selected by
it; and (ii) no Lender shall have any right of action whatsoever against Agent
as a result of Agent acting or (where so instructed) refraining from acting
under this Agreement or any of the other Loan Documents in accordance with the
instructions of Requisite Lenders (or such other Lenders as may be required to
give such instructions under subsection 10.6).
D. AGENT ENTITLED TO ACT AS LENDER. The agency hereby created shall in no
way impair or affect any of the rights and powers of, or impose any duties or
obligations upon, Agent in its individual capacity as a Lender hereunder. With
respect to its participation in the Loans and the Letters of Credit, Agent shall
have the same rights and powers hereunder as any other Lender and may exercise
the same as though it were not performing the duties and functions delegated to
it hereunder, and the term "Lender" or "Lenders" or any similar term shall,
unless the context clearly otherwise indicates, include Agent in its individual
capacity. Agent and its Affiliates may accept deposits from, lend money to and
generally engage in any kind of banking, trust, financial advisory or other
business with Company or any of its Affiliates as if it were not performing the
duties specified herein, and may accept fees and other consideration from
Company for services in connection with this Agreement and otherwise without
having to account for the same to Lenders.
9.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR APPRAISAL OF
CREDITWORTHINESS
Each Lender represents and warrants that it has made its own independent
investigation of the financial condition and affairs of Company and its
Subsidiaries in connection with the making of the Loans and the issuance of
Letters of Credit hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Company and its Subsidiaries. Agent
shall not have any duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of Lenders
or to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter, and Agent shall not have any responsibility with
respect to the accuracy of or the completeness of any information provided to
Lenders.
9.4 RIGHT TO INDEMNITY
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify Agent, to the extent that Agent shall not have been reimbursed by
Company, for and against any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses (including counsel fees
and disbursements) or disbursements of any kind or nature whatsoever which may
be imposed on, incurred by or asserted against Agent in exercising its powers,
rights and remedies or performing its duties hereunder or under the other Loan
Documents or otherwise in its capacity as Agent in any way relating to or
arising out of this Agreement or the other Loan Documents; PROVIDED that no
Lender shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from Agent's gross negligence or willful misconduct. If any indemnity
furnished to Agent for any purpose shall, in the opinion of Agent, be
insufficient or become impaired, Agent may call for additional indemnity and
cease, or not commence, to do the acts indemnified against until such additional
indemnity is furnished.
9.5 SUCCESSOR AGENT AND SWING LINE LENDER
A. SUCCESSOR AGENT. Agent may resign at any time by giving 30 days' prior
written notice thereof to Lenders and Company. Upon any such notice of
resignation, Requisite Lenders shall have the right, upon five Business Days'
notice to Company, to appoint a successor Agent. Upon the acceptance of any
appointment as Agent hereunder by a successor Agent, that successor Agent shall
thereupon succeed to and become vested with all the rights, powers, privileges
and duties of the retiring Agent and the retiring Agent shall be discharged from
its duties and obligations under this Agreement. After any retiring Agent's
resignation hereunder as Agent, the provisions of this Section 9 shall inure to
its benefit as to any actions taken or omitted to be taken by it while it was
Agent under this Agreement.
B. SUCCESSOR SWING LINE LENDER. Any resignation of Agent pursuant to
subsection 9.5A shall also constitute the resignation of BTCo or its successor
as Swing Line Lender, and any successor Agent appointed pursuant to subsection
9.5A shall, upon its acceptance of such appointment, become the successor Swing
Line Lender for all purposes hereunder. In such event (i) Company shall prepay
any outstanding Swing Line Loans made by the retiring Agent in its capacity as
Swing Line Lender, (ii) upon such prepayment, the retiring Agent and Swing Line
Lender shall surrender the Swing Line Note held by it to Company for
cancellation, and (iii) Company shall issue a new Swing Line Note to the
successor Agent and Swing Line Lender substantially in the form of EXHIBIT VI
annexed hereto, in the principal amount of the Swing Line Loan Commitment then
in effect and with other appropriate insertions.
9.6 COLLATERAL DOCUMENTS AND GUARANTIES
Each Lender hereby further authorizes Agent, on behalf of and for the
benefit of Lenders, to enter into each Collateral Document as secured party and
to be the agent for and representative of Lenders under the Subsidiary Guaranty,
and each Lender agrees to be bound by the terms of each Collateral Document and
the Subsidiary Guaranty; PROVIDED that Agent shall not (i) enter into or consent
to any material amendment, modification, termination or waiver of any provision
contained in any Collateral Document or the Subsidiary Guaranty or (ii) release
any Collateral (except as otherwise expressly permitted or required pursuant to
the terms of this Agreement or the applicable Collateral Document), in each case
without the prior consent of Requisite Lenders (or, if required pursuant to
subsection 10.6, all Lenders); PROVIDED FURTHER, HOWEVER, that, without further
written consent or authorization from Lenders, Agent may execute any documents
or instruments necessary to (a) release any Lien encumbering any item of
Collateral that is the subject of a sale or other disposition of assets
permitted by this Agreement or to which Requisite Lenders have otherwise
consented or (b) release any Subsidiary Guarantor from the Subsidiary Guaranty
if all of the capital stock of such Subsidiary Guarantor is sold to any Person
(other than an Affiliate of Company) pursuant to a sale or other disposition
permitted hereunder or to which Requisite Lenders have otherwise consented.
Anything contained in any of the Loan Documents to the contrary notwithstanding,
Company, Agent and each Lender hereby agree that (X) no Lender shall have any
right individually to realize upon any of the Collateral under any Collateral
Document or to enforce the Subsidiary Guaranty, it being understood and agreed
that all rights and remedies under the Collateral Documents and the Subsidiary
Guaranty may be exercised solely by Agent for the benefit of Lenders in
accordance with the terms thereof, and (Y) in the event of a foreclosure by
Agent on any of the Collateral pursuant to a public or private sale, Agent or
any Lender may be the purchaser of any or all of such Collateral at any such
sale and Agent, as agent for and representative of Lenders (but not any Lender
or Lenders in its or their respective individual capacities unless Requisite
Lenders shall otherwise agree in writing) shall be entitled, for the purpose of
bidding and making settlement or payment of the purchase price for all or any
portion of the Collateral sold at any such public sale, to use and apply any of
the Obligations as a credit on account of the purchase price for any collateral
payable by Agent at such sale.
SECTION 10. MISCELLANEOUS
10.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND LETTERS OF CREDIT
A. GENERAL. Subject to subsection 10.1B, each Lender shall have the right
at any time to (i) sell, assign or transfer to any Eligible Assignee, or (ii)
sell participations to any Person in, all or any part of its Commitments or any
Loan or Loans made by it or its Letters of Credit or in any case its rights or
obligations with respect thereto or participations therein or any other interest
herein or in any other Obligations owed to it; PROVIDED that no such sale,
assignment, transfer or participation shall, without the consent of Company,
require Company to file a registration statement with the Securities and
Exchange Commission or apply to qualify such sale, assignment, transfer or
participation under the securities laws of any state; PROVIDED, FURTHER that no
such sale, assignment or transfer described in clause (i) above shall be
effective unless and until an Assignment Agreement effecting such sale,
assignment or transfer shall have been accepted by Agent and recorded in the
Register as provided in subsection 10.1B(ii); PROVIDED, FURTHER that no such
sale, assignment, transfer or participation of any Letter of Credit or any
participation therein may be made separately from a sale, assignment, transfer
or participation of a corresponding interest in the Revolving Loan Commitment
and the Revolving Loans of the Lender effecting such sale, assignment, transfer
or participation; and PROVIDED, FURTHER that, anything contained herein to the
contrary notwithstanding, the Swing Line Loan Commitment and the Swing Line
Loans of Swing Line Lender may not be sold, assigned or transferred as described
in clause (i) above to any Person other than a successor Agent and Swing Line
Lender to the extent contemplated by subsection 9.5. Except as otherwise
provided in this subsection 10.1, no Lender shall, as between Company and such
Lender, be relieved of any of its obligations hereunder as a result of any sale,
assignment or transfer of, or any granting of participations in, all or any part
of its Commitments or the Loans, the Letters of Credit or participations
therein, or the other Obligations owed to such Lender.
B. ASSIGNMENTS.
(i) AMOUNTS AND TERMS OF ASSIGNMENTS. Each Commitment, Loan, Letter of
Credit or participation therein, or other Obligation may (a) be assigned in any
amount to another Lender, or to an Affiliate of the assigning Lender or another
Lender, with the giving of notice to Company and Agent or (b) be assigned in an
aggregate amount of not less than $5,000,000 (or such lesser amount as shall
constitute the aggregate amount of the Commitments, Loans, Letters of Credit and
participations therein, and other Obligations of the assigning Lender) to any
other Eligible Assignee with the consent of Company and Agent (which consent of
Company and Agent shall not be unreasonably withheld or delayed); provided that
assignment to an Affiliate of the assigning Lender that would result in
increased costs to Company shall also require the prior written consent of
Company; provided FURTHER that after an Event of Default occurs and is
continuing, the consent of Company shall not be required for assignment to an
Eligible Assignee. To the extent of any such assignment in accordance with
either clause (a) or (b) above, the assigning Lender shall be relieved of its
obligations with respect to its Commitments, Loans, Letters of Credit or
participations therein, or other Obligations or the portion thereof so assigned.
The parties to each such assignment shall execute and deliver to Agent, for its
acceptance and recording in the Register, an Assignment Agreement, together with
a processing and recordation fee of $3,500 and such forms, certificates or other
evidence, if any, with respect to United States federal income tax withholding
matters as the assignee under such Assignment Agreement may be required to
deliver to Agent pursuant to subsection 2.7B(iii)(a). Upon such execution,
delivery, acceptance and recordation, from and after the effective date
specified in such Assignment Agreement, (y) the assignee thereunder shall be a
party hereto and, to the extent that rights and obligations hereunder have been
assigned to it pursuant to such Assignment Agreement, shall have the rights and
obligations of a Lender hereunder and (z) the assigning Lender thereunder shall,
to the extent that rights and obligations hereunder have been assigned by it
pursuant to such Assignment Agreement, relinquish its rights (other than any
rights which survive the termination of this Agreement under subsection 10.9B)
and be released from its obligations under this Agreement (and, in the case of
an Assignment Agreement covering all or the remaining portion of an assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto; PROVIDED that, anything contained in any of the Loan
Documents to the contrary notwithstanding, if such Lender is the Issuing Lender
with respect to any outstanding Letters of Credit such Lender shall continue to
have all rights and obligations of an Issuing Lender with respect to such
Letters of Credit until the cancellation or expiration of such Letters of Credit
and the reimbursement of any amounts drawn thereunder). The Commitments
hereunder shall be modified to reflect the Commitment of such assignee and any
remaining Commitment of such assigning Lender and, if any such assignment occurs
after the issuance of the Notes hereunder, the assigning Lender shall, upon the
effectiveness of such assignment or as promptly thereafter as practicable,
surrender its applicable Notes to Agent for cancellation, and thereupon new
Notes shall be issued to the assignee and/or to the assigning Lender,
substantially in the form of EXHIBIT IV or EXHIBIT V annexed hereto, as the case
may be, with appropriate insertions, to reflect the new Commitments and/or
outstanding Term Loans, as the case may be, of the assignee and/or the assigning
Lender.
(ii) ACCEPTANCE BY AGENT; RECORDATION IN REGISTER. Upon its receipt of an
Assignment Agreement executed by an assigning Lender and an assignee
representing that it is an Eligible Assignee, together with the processing and
recordation fee referred to in subsection 10.1B(i) and any forms, certificates
or other evidence with respect to United States federal income tax withholding
matters that such assignee may be required to deliver to Agent pursuant to
subsection 2.7B(iii)(a), Agent shall, if Agent and Company have consented to the
assignment evidenced thereby (in each case to the extent such consent is
required pursuant to subsection 10.1B(i)), (a) accept such Assignment Agreement
by executing a counterpart thereof as provided therein (which acceptance shall
evidence any required consent of Agent to such assignment), (b) record the
information contained therein in the Register, and (c) give prompt notice
thereof to Company. Agent shall maintain a copy of each Assignment Agreement
delivered to and accepted by it as provided in this subsection 10.1B(ii).
C. PARTICIPATIONS. The holder of any participation, other than an Affiliate
of the Lender granting such participation, shall not be entitled to require such
Lender to take or omit to take any action hereunder except action directly
affecting (i) the extension of the scheduled final maturity date of any Loan
allocated to such participation or (ii) a reduction of the principal amount of
or the rate of interest payable on any Loan allocated to such participation, and
all amounts payable by Company hereunder (including amounts payable to such
Lender pursuant to subsections 2.6D, 2.7 and 3.6) shall be determined as if such
Lender had not sold such participation. Company and each Lender hereby
acknowledge and agree that, solely for purposes of subsections 10.4 and 10.5,
(a) any participation will give rise to a direct obligation of Company to the
participant and (b) the participant shall be considered to be a "Lender".
D. ASSIGNMENTS TO FEDERAL RESERVE BANKS. In addition to the assignments and
participations permitted under the foregoing provisions of this subsection 10.1,
any Lender may assign and pledge all or any portion of its Loans, the other
Obligations owed to such Lender, and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any operating circular issued by such Federal Reserve
Bank; PROVIDED that (i) no Lender shall, as between Company and such Lender, be
relieved of any of its obligations hereunder as a result of any such assignment
and pledge and (ii) in no event shall such Federal Reserve Bank be considered to
be a "Lender" or be entitled to require the assigning Lender to take or omit to
take any action hereunder.
E. INFORMATION. Each Lender may furnish any information concerning Company
and its Subsidiaries in the possession of that Lender from time to time to
assignees and participants (including prospective assignees and participants),
subject to subsection 10.19.
F. REPRESENTATIONS OF LENDERS. Each Lender listed on the signature pages
hereof hereby represents and warrants (i) that it is an Eligible Assignee
described in clause (A) of the definition thereof; (ii) that it has experience
and expertise in the making of loans such as the Loans; and (iii) that it will
make its Loans for its own account in the ordinary course of its business and
without a view to distribution of such Loans within the meaning of the
Securities Act or the Exchange Act or other federal securities laws (it being
understood that, subject to the provisions of this subsection 10.1, the
disposition of such Loans or any interests therein shall at all times remain
within its exclusive control). Each Lender that becomes a party hereto pursuant
to an Assignment Agreement shall be deemed to agree that the representations and
warranties of such Lender contained in Section 2(c) of such Assignment Agreement
are incorporated herein by this reference.
10.2 EXPENSES
Whether or not the transactions contemplated hereby shall be consummated,
Company agrees to pay promptly (i) all the actual and reasonable costs and
expenses of Agent in connection with the preparation of the Loan Documents and
any consents, amendments, waivers or other modifications thereto; (ii) all the
costs of furnishing all opinions by counsel for Company (including any opinions
requested by Lenders as to any legal matters arising hereunder) and of Company's
performance of and compliance with all agreements and conditions on its part to
be performed or complied with under this Agreement and the other Loan Documents
including with respect to confirming compliance with environmental, insurance
and solvency requirements; (iii) the reasonable fees, expenses and disbursements
of counsel to Agent (including allocated costs of internal counsel) in
connection with the negotiation, preparation, execution and administration of
the Loan Documents and any consents, amendments, waivers or other modifications
thereto and any other documents or matters requested by Company; (iv) all the
actual costs and reasonable expenses of creating and perfecting Liens in favor
of Agent on behalf of Lenders pursuant to any Collateral Document, including
filing and recording fees, expenses and taxes, stamp or documentary taxes,
search fees, title insurance premiums, and reasonable fees, expenses and
disbursements of counsel to Agent and of counsel providing any opinions that
Agent or Requisite Lenders may request in respect of the Collateral Documents or
the Liens created pursuant thereto; (v) the custody or preservation of any of
the Collateral; (vi) all other actual and reasonable costs and expenses incurred
by Agent in connection with the syndication of the Commitments and the
negotiation, preparation and execution of the Loan Documents and any consents,
amendments, waivers or other modifications thereto and the transactions
contemplated thereby; and (vii) after the occurrence of an Event of Default, all
costs and expenses, including reasonable attorneys' fees (including allocated
costs of internal counsel) and costs of settlement, incurred by Agent and
Lenders in enforcing any Obligations of or in collecting any payments due from
any Loan Party hereunder or under the other Loan Documents by reason of such
Event of Default (including in connection with the sale of, collection from, or
other realization upon any of the Collateral or the enforcement of the
Subsidiary Guaranty) or in connection with any refinancing or restructuring of
the credit arrangements provided under this Agreement in the nature of a
"work-out" or pursuant to any insolvency or bankruptcy proceedings.
10.3 INDEMNITY
In addition to the payment of expenses pursuant to subsection 10.2, whether
or not the transactions contemplated hereby shall be consummated, Company agrees
to defend (subject to Indemnitees' selection of counsel), indemnify, pay and
hold harmless Agent and Lenders, and the officers, directors, employees, agents
and affiliates of Agent and Lenders (collectively called the "INDEMNITEES"),
from and against any and all Indemnified Liabilities (as hereinafter defined);
PROVIDED that Company shall not have any obligation to any Indemnitee hereunder
with respect to any Indemnified Liabilities to the extent such Indemnified
Liabilities arise solely from the gross negligence or willful misconduct of that
Indemnitee as determined by a final judgment of a court of competent
jurisdiction.
As used herein, "INDEMNIFIED LIABILITIES" means, collectively, any and all
liabilities, obligations, losses, damages (including natural resource damages),
penalties, actions, judgments, suits, claims (including Environmental Claims),
costs, expenses and disbursements of any kind or nature whatsoever (including
the reasonable fees and disbursements of counsel for Indemnitees in connection
with any investigative, administrative or judicial proceeding commenced or
threatened by any Person, whether or not any such Indemnitee shall be designated
as a party or a potential party thereto, and any fees or expenses incurred by
Indemnitees in enforcing this indemnity), whether direct, indirect or
consequential and whether based on any federal, state or foreign laws, statutes,
rules or regulations (including securities and commercial laws, statutes, rules
or regulations and Environmental Laws), on common law or equitable cause or on
contract or otherwise, that may be imposed on, incurred by, or asserted against
any such Indemnitee, in any manner relating to or arising out of (i) this
Agreement or the other Loan Documents or the transactions contemplated hereby or
thereby (including Lenders' agreement to make the Loans hereunder or the use or
intended use of the proceeds thereof or the issuance of Letters of Credit
hereunder or the use or intended use of any thereof, or any enforcement of any
of the Loan Documents (including any sale of, collection from, or other
realization upon any of the Collateral or the enforcement of the Subsidiary
Guaranty) or (ii) the statements contained in the commitment letter delivered by
any Lender to Company with respect thereto.
To the extent that the undertakings to defend, indemnify, pay and hold
harmless set forth in this subsection 10.3 may be unenforceable in whole or in
part because they are violative of any law or public policy, Company shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.
10.4 SET-OFF
In addition to any rights now or hereafter granted under applicable law and
not by way of limitation of any such rights, upon the occurrence of any Event of
Default each Lender is hereby authorized by Company at any time or from time to
time, without notice to Company or to any other Person, any such notice being
hereby expressly waived, to set off and to appropriate and to apply any and all
deposits (general or special, including Indebtedness evidenced by certificates
of deposit, whether matured or unmatured, but not including trust accounts) and
any other Indebtedness at any time held or owing by that Lender to or for the
credit or the account of Company against and on account of the obligations and
liabilities of Company to that Lender under this Agreement, the Letters of
Credit and participations therein and the other Loan Documents, including all
claims of any nature or description arising out of or connected with this
Agreement, the Letters of Credit and participations therein or any other Loan
Document, irrespective of whether or not (i) that Lender shall have made any
demand hereunder or (ii) the principal of or the interest on the Loans or any
amounts in respect of the Letters of Credit or any other amounts due hereunder
shall have become due and payable pursuant to Section 8 and although said
obligations and liabilities, or any of them, may be contingent or unmatured.
10.5 RATABLE SHARING
Lenders hereby agree among themselves that if any of them shall, whether by
voluntary payment (other than a voluntary prepayment of Loans made and applied
in accordance with the terms of this Agreement), by realization upon security,
through the exercise of any right of set-off or banker's lien, by counterclaim
or cross action or by the enforcement of any right under the Loan Documents or
otherwise, or as adequate protection of a deposit treated as cash collateral
under the Bankruptcy Code, receive payment or reduction of a proportion of the
aggregate amount of principal, interest, amounts payable in respect of Letters
of Credit, fees and other amounts then due and owing to that Lender hereunder or
under the other Loan Documents (collectively, the "AGGREGATE AMOUNTS DUE" to
such Lender) which is greater than the proportion received by any other Lender
in respect of the Aggregate Amounts Due to such other Lender, then the Lender
receiving such proportionately greater payment shall (i) notify Agent and each
other Lender of the receipt of such payment and (ii) apply a portion of such
payment to purchase participations (which it shall be deemed to have purchased
from each seller of a participation simultaneously upon the receipt by such
seller of its portion of such payment) in the Aggregate Amounts Due to the other
Lenders so that all such recoveries of Aggregate Amounts Due shall be shared by
all Lenders in proportion to the Aggregate Amounts Due to them; PROVIDED that if
all or part of such proportionately greater payment received by such purchasing
Lender is thereafter recovered from such Lender upon the bankruptcy or
reorganization of Company or otherwise, those purchases shall be rescinded and
the purchase prices paid for such participations shall be returned to such
purchasing Lender ratably to the extent of such recovery, but without interest.
Company expressly consents to the foregoing arrangement and agrees that any
holder of a participation so purchased may exercise any and all rights of
banker's lien, set-off or counterclaim with respect to any and all monies owing
by Company to that holder with respect thereto as fully as if that holder were
owed the amount of the participation held by that holder.
10.6 AMENDMENTS AND WAIVERS
A. No amendment, modification, termination or waiver of any provision of
this Agreement or of the Notes, and no consent to any departure by Company
therefrom, shall in any event be effective without the written concurrence of
Requisite Lenders; PROVIDED that any such amendment, modification, termination,
waiver or consent which: reduces the principal amount of any of the Loans;
changes in any manner the definition of "Pro Rata Share" or the definition of
"Requisite Lenders"; changes in any manner any provision of this Agreement
which, by its terms, expressly requires the approval or concurrence of all
Lenders; postpones the scheduled final maturity date of any of the Loans (but
not the date of any scheduled installment of principal); postpones the date on
which any interest or any fees are payable; decreases the interest rate borne by
any of the Loans (other than any waiver of any increase in the interest rate
applicable to any of the Loans pursuant to subsection 2.2E) or the amount of any
fees payable hereunder; increases the maximum duration of Interest Periods
permitted hereunder; reduces the amount or postpones the due date of any amount
payable in respect of any Letter of Credit; extends the required expiration date
of any Letter of Credit beyond the Revolving Commitment Termination Date;
changes in any manner the obligations of Lenders relating to the purchase of
participations in Letters of Credit; releases any Lien granted in favor of Agent
with respect to all or substantially all of the Collateral; releases any
Subsidiary Guarantor from its obligations under the Subsidiary Guaranty, in each
case other than in accordance with the terms of the Loan Documents; or changes
in any manner the provisions contained in subsection 8.1 or this subsection 10.6
shall be effective only if evidenced by a writing signed by or on behalf of all
Lenders; PROVIDED, FURTHER, that no such amendment, modification, termination,
waiver or consent shall increase the Commitments of a Lender over the amount
hereof in effect then in effect without the consent of such Lender; PROVIDED,
FURTHER, that if any matter described in the foregoing proviso relates only to a
Term Loan, the approval of all Term Lenders shall be sufficient; and if any
matter described in the foregoing proviso relates only to a Revolving Loan or
Revolving Loan Commitment, the approval of all Revolving Lenders shall be
sufficient. In addition, (i) any amendment, modification, termination or waiver
of any of the provisions contained in Section 4 shall be effective only if
evidenced by a writing signed by or on behalf of Agent and Requisite Lenders,
(ii) no amendment, modification, termination or waiver of any provision of any
Note shall be effective without the written concurrence of the Lender which is
the holder of that Note, (iii) no amendment, modification, termination or waiver
of any provision of subsection 2.1A(iii) or of any other provision of this
Agreement relating to the Swing Line Loan Commitment or the Swing Line Loans
shall be effective without the written concurrence of Swing Line Lender, (iv) no
amendment, modification, termination or waiver of any Letter of Credit and no
amendment, modification, termination or waiver of Section 3 that changes in any
manner the rights and obligations of an Issuing Lender with respect to an
outstanding Letter of Credit shall be effective without the written concurrence
of the Issuing Lender of such Letter of Credit, and (v) no amendment,
modification, termination or waiver of any provision of Section 9 or of any
other provision of this Agreement which, by its terms, expressly requires the
approval or concurrence of Agent shall be effective without the written
concurrence of Agent. Agent may, but shall have no obligation to, with the
concurrence of any Lender, execute amendments, modifications, waivers or
consents on behalf of that Lender. Any waiver or consent shall be effective only
in the specific instance and for the specific purpose for which it was given. No
notice to or demand on Company in any case shall entitle Company to any other or
further notice or demand in similar or other circumstances. Any amendment,
modification, termination, waiver or consent effected in accordance with this
subsection 10.6 shall be binding upon each Lender at the time outstanding, each
future Lender and, if signed by Company, on Company.
B. REPLACEMENT OF LENDER. If, in connection with any proposed change,
waiver, discharge or termination to any of the provisions of this Agreement as
contemplated by the first proviso contained in the first sentence of subsection
10.6A, the consent of the Requisite Lenders is obtained but the consent of one
or more of such other Lenders whose consent is required is not obtained, then
Agent shall have the right, so long as all non-consenting Lenders whose
individual consent is required are treated as described in either clauses (A) or
(B) below, to either (A) replace each such non-consenting Lender or Lenders with
one or more Replacement Lenders pursuant to subsection 2.9 so long as at the
time of such replacement each outstanding Loan of each such Lender being
replaced is repaid in full and so long as each such Replacement Lender consents
to the proposed change, waiver, discharge or termination or (B) terminate such
non-consenting Lender's Commitments and/or repay in full each outstanding Loan
of such Lender, PROVIDED that, unless the Commitments that are terminated, and
Loans repaid, pursuant to preceding clause (B) are immediately replaced in full
at such time through the addition of new Lenders or the increase of the
Commitments and/or outstanding Loans of existing Lenders (who in each case must
specifically consent thereto), then in the case of any action pursuant to
preceding clause (B) the Requisite Lenders (determined after giving effect to
the proposed action) shall specifically consent thereto; PROVIDED, FURTHER that
Company shall not have the right to terminate such non-consenting Lender's
Commitments and repay in full its outstanding Loans pursuant to clause (B) if,
immediately after the termination of such Lender's Revolving Loan Commitment,
the Revolving Loan Exposure of all Lenders would exceed the Revolving Loan
Commitments of all Lenders; and PROVIDED FURTHER, that in any event Agent shall
not have the right to replace a Lender, terminate its Commitments or repay its
Loans solely as a result of the exercise of such Lender's rights (and the
withholding of any required consent by such Lender) pursuant to the second
proviso contained in the first sentence of subsection 10.6A.
10.7 INDEPENDENCE OF COVENANTS
All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or would otherwise be within
the limitations of, another covenant shall not avoid the occurrence of an Event
of Default or Potential Event of Default if such action is taken or condition
exists.
10.8 NOTICES
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telefacsimile or telex, or three
Business Days after depositing it in the United States mail with postage prepaid
and properly addressed; PROVIDED that notices to Agent shall not be effective
until received. For the purposes hereof, the address of each party hereto shall
be as set forth under such party's name on the signature pages hereof or (i) as
to Company and Agent, such other address as shall be designated by such Person
in a written notice delivered to the other parties hereto and (ii) as to each
other party, such other address as shall be designated by such party in a
written notice delivered to Agent.
10.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS
A. All representations, warranties and agreements made herein shall survive
the execution and delivery of this Agreement and the making of the Loans and the
issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Company set forth in subsections 2.6D, 2.7, 3.5A,
3.6, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in subsections
9.2C, 9.4 and 10.5 shall to the extent set forth therein survive the payment of
the Loans, the cancellation or expiration of the Letters of Credit and the
reimbursement of any amounts drawn thereunder, and the termination of this
Agreement.
10.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE
No failure or delay on the part of Agent or any Lender in the exercise of
any power, right or privilege hereunder or under any other Loan Document shall
impair such power, right or privilege or be construed to be a waiver of any
default or acquiescence therein, nor shall any single or partial exercise of any
such power, right or privilege preclude other or further exercise thereof or of
any other power, right or privilege. All rights and remedies existing under this
Agreement and the other Loan Documents are cumulative to, and not exclusive of,
any rights or remedies otherwise available.
10.11 MARSHALLING; PAYMENTS SET ASIDE
Neither Agent nor any Lender shall be under any obligation to marshal any
assets in favor of Company or any other party or against or in payment of any or
all of the Obligations. To the extent that Company makes a payment or payments
to Agent or Lenders (or to Agent for the benefit of Lenders), or Agent or
Lenders enforce any security interests or exercise their rights of setoff, and
such payment or payments or the proceeds of such enforcement or setoff or any
part thereof are subsequently invalidated, declared to be fraudulent or
preferential, set aside and/or required to be repaid to a trustee, receiver or
any other party under any bankruptcy law, any other state or federal law, common
law or any equitable cause, then, to the extent of such recovery, the obligation
or part thereof originally intended to be satisfied, and all Liens, rights and
remedies therefor or related thereto, shall be revived and continued in full
force and effect as if such payment or payments had not been made or such
enforcement or setoff had not occurred.
10.12 SEVERABILITY
In case any provision in or obligation under this Agreement or the Notes
shall be invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions or obligations, or of
such provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
10.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS' RIGHTS
The obligations of Lenders hereunder are several and no Lender shall be
responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and it shall not be necessary for any other
Lender to be joined as an additional party in any proceeding for such purpose.
10.14 HEADINGS
Section and subsection headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
10.15 APPLICABLE LAW
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES.
10.16 SUCCESSORS AND ASSIGNS
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 10.1). Neither Company's
rights or obligations hereunder nor any interest therein may be assigned or
delegated by Company without the prior written consent of all Lenders.
10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF OR RELATING
TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS THEREUNDER, MAY
BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE,
COUNTY AND CITY OF NEW YORK. BY EXECUTING AND DELIVERING THIS AGREEMENT,
COMPANY, FOR ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS WITH RESPECT TO ANY STATE
OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW
YORK;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO
COMPANY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION 10.8;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO
CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY SUCH PROCEEDING IN ANY SUCH
COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE PROCESS IN ANY OTHER
MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST COMPANY IN THE COURTS OF
ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.17 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT
PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
10.18 WAIVER OF JURY TRIAL
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS BETWEEN
THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this transaction, including
contract claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a material
inducement to enter into a business relationship, that each has already relied
on this waiver in entering into this Agreement, and that each will continue to
rely on this waiver in their related future dealings. Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 10.18 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
10.19 CONFIDENTIALITY
Each Lender shall hold all non-public information obtained pursuant to the
requirements of this Agreement which has been identified as confidential by
Company in accordance with such Lender's customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices, it being understood and agreed by Company that in any event a
Lender may make disclosures to the accountants, auditors, attorneys, and
Affiliates of such Lender or disclosures reasonably required by any bona fide
assignee, transferee or participant in connection with the contemplated
assignment or transfer by such Lender of any Loans or any participations therein
or disclosures required or requested by any governmental agency or
representative thereof or pursuant to legal process; PROVIDED that, unless
specifically prohibited by applicable law or court order, each Lender shall
notify Company of any request by any governmental agency or representative
thereof (other than any such request in connection with any examination of the
financial condition of such Lender by such governmental agency) for disclosure
of any such non-public information prior to disclosure of such information; and
PROVIDED, FURTHER that in no event shall any Lender be obligated or required to
return any materials furnished by Company or any of its Subsidiaries.
10.20 COUNTERPARTS; EFFECTIVENESS
This Agreement and any amendments, waivers, consents or supplements hereto
or in connection herewith may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Company and
Agent of written or telephonic notification of such execution and authorization
of delivery thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY:
EXPRESS SCRIPTS, INC.
By: /s/ George Paz
Title: Sr. Vice President and
Chief Financial Officer
Notice Address:
14000 Riverport Drive
Maryland Heights, Missouri 63047
LENDERS:
BANKERS TRUST COMPANY
individually and as Agent
By: /s/ Keven McCann
Title: Principal
Notice Address:
Mail Stop 2252
25th Floor
130 Liberty Street
One Bankers Trust Plaza
New York, New York 10006
Attention: Amy Sinensky
THE ROYAL BANK OF SCOTLAND, plc
By: /s/ D. Dougan
Title: Vice President
COOPERATIVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK NEDERLAND", NEW YORK
BRANCH
By: /s/ W. Jeffrey Vollack
Title: Senior Credit Officer
Senior Vice President
By: /s/ Hans F. Breuzhoven
Title: Vice President
FLEET NATIONAL BANK
By: /s/ Carol Paije
Title: Senior Vice President
SUMITOMO BANK, LTD.
By: /s/ Ken Davenport
Title: Joint General Manager
MERCANTILE BANK NATIONAL
ASSOCIATION
By: /s/ Michell Whitaker
Title: Vice President
THE LONG-TERM CREDIT BANK OF
JAPAN, LTD.
By: /s/ Armund J. Schoen, Jr.
Title: Senior Vice President
BAYERICHE VEREINSBANK, AG
New York Branch
By: /s/ Hans Dick
Title: Vice President
By: /s/ Sylvia K. Cheng
Title: Vice President
MELON BANK
By: /s/ Martin J. Randal
Title: Assistant Vice President
BANQUE PARIBAS
By: /s/ Darell Pomertz
Title: Vice President
By: /s/ Steven M. Heinen
Title: Director
THE FUJI BANK, LIMITED
By: /s/ Tetsuo Kamatsu
Title: Joint General Manager
CREDIT AGRICOLE INDOSUEZ
By: /s/ David Bouhl, F.V.P.
Title: Head of Corporate Banking
Chicago
By: /s/ Katherine L. Abbott
Title: First Vice President
CITY NATIONAL BANK
By: /s/ Scott J. Kelley
Title: Vice President
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Nathan L. Bloch
Title: First Vice President
ABN AMRO BANK, N.V.
By: /s/ Denis J. Campbell IV
Title: Vice Preseident
By: /s/ Joann L. Holman
Title: Vice President
BANQUE NATIONALE DE PARIS
By: /s/ Arnaud Collin du Bocage
Title: Executive Vice President
and Branch Manager
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Justin J. Ingram
Title: Assistant Vice President
NATIONSBANK, N.A.
By: /s/ Larry J. Gordon
Title: Vice President
UNION BANK OF CALIFORNIA, N.A.
By: /s/ Jennifer L. Banks
Title: Vice President
<PAGE>
EXHIBIT I
[FORM OF NOTICE OF BORROWING]
NOTICE OF BORROWING
Pursuant to that certain Credit Agreement dated as of April 1, 1998 as so
amended, supplemented or otherwise modified to the date hereof, the "CREDIT
AGREEMENT," the terms defined therein and not otherwise defined herein being
used herein as therein defined), among Express Scripts, Inc., a Delaware
corporation ("COMPANY"), the financial institutions listed therein as Lenders
("LENDERS"), and Bankers Trust Company, as Agent ("AGENT"), this represents
Company's request to borrow as follows:
1. DATE OF BORROWING: ___________________, _________
2. AMOUNT OF BORROWING: $___________________
3. LENDER(S): ~ a.Lenders, in accordance with their
applicable Pro Rata Shares
~ b.Swing Line Lender
4. TYPE OF LOANS: ~ a. Term Loans
~ b. Revolving Loans
~ c. Swing Line Loan
5. INTEREST RATE OPTION: ~ a. Base Rate Loan(s)
~ b. Eurodollar Rate Loans with an initial
Interest
Period of_______ month(s)for $_______
Period of ______ month(s) for $______
Period of ______ month(s) for $______
The proceeds of such Loans are to be deposited in Company's account at Agent.
The undersigned officer, to the best of his or her knowledge, and Company
certify that:
(i) The representations and warranties contained in the Credit Agreement
and the other Loan Documents are true, correct and complete in all material
respects on and as of the date hereof to the same extent as though made on and
as of the date hereof, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and
warranties were true, correct and complete in all material respects on and as of
such earlier date;
(ii) No event has occurred and is continuing or would result from the
consummation of the borrowing contemplated hereby that would constitute an Event
of Default or a Potential Event of Default;
(iii) Company has performed in all material respects all agreements and
satisfied all conditions which the Credit Agreement provides shall be performed
or satisfied by it on or before the date hereof; and
(iv) All other conditions precedent described in subsection 4.2 of the
Credit Agreement have been satisfied.
DATED: ____________________ EXPRESS SCRIPTS, INC.
By: __________________________
Title: _______________________
<PAGE>
EXHIBIT II
[FORM OF NOTICE OF CONVERSION/CONTINUATION]
NOTICE OF CONVERSION/CONTINUATION
Pursuant to that certain Credit Agreement dated as of April 1, 1998 as so
amended, supplemented or otherwise modified to the date hereof the "CREDIT
AGREEMENT," the terms defined therein and not otherwise defined herein being
used herein as therein defined), among Express Scripts, Inc., a Delaware
corporation ("COMPANY"), the financial institutions listed therein as Lenders,
and Bankers Trust Company, as Agent, this represents Company's request to
convert or continue Loans as follows:
1. DATE OF CONVERSION/CONTINUATION: __________________, _______
2. AMOUNT OF LOANS BEING CONVERTED/CONTINUED: $___________________
3. Type of Loans being ~ a. Term Loans
CONVERTED/CONTINUED: ~ b. Revolving Loans
4. NATURE OF CONVERSION/CONTINUATION:
~ a. Conversion of Base Rate Loans to Eurodollar Rate Loans
~ b. Conversion of Eurodollar Rate Loans to Base Rate Loans
~ c. Continuation of Eurodollar Rate Loans as such
5. If Loans are being continued as or converted to Eurodollar Rate Loans,
the duration of the new Interest Period that commences on the
conversion/ continuation date:|_______________ month(s) for $_________
|_______________ month(s) for $_________
|_______________ month(s) for $_________
In the case of a conversion to or continuation of Eurodollar Rate Loans,
the undersigned officer, to the best of his or her knowledge, and Company
certify that no Event of Default or Potential Event of Default has occurred and
is continuing under the Credit Agreement.
DATED: _____________________ EXPRESS SCRIPTS, INC.
By: __________________________
Title: ________________________
<PAGE>
EXHIBIT III
[FORM OF NOTICE OF REQUEST TO ISSUE LETTER OF CREDIT]
NOTICE OF REQUEST TO ISSUE LETTER OF CREDIT
Pursuant to that certain Credit Agreement dated as of April 1, 1998, as so
amended, supplemented or otherwise modified to the date hereof, the "CREDIT
AGREEMENT", the terms defined therein and not otherwise defined herein being
used herein as therein defined), among Express Scripts, Inc., a Delaware
corporation ("COMPANY"), the financial institutions listed therein as Lenders,
and Bankers Trust Company, as Agent ("AGENT"), this represents Company's request
for the issuance of a Letter of Credit by __________ as follows:
1. ISSUING LENDER: ~ a. Agent
~ b. _________________________________
2. DATE OF ISSUANCE OF LETTER OF CREDIT: ________________, ________
3. FACE AMOUNT OF LETTER OF CREDIT: $________________________
4. EXPIRATION DATE OF LETTER OF CREDIT: ________________, ________
5. NAME AND ADDRESS OF BENEFICIARY:
6. ATTACHED HERETO IS:
~ a. the verbatim text of such proposed Letter of Credit
~ b. a description of the proposed terms and conditions of
such Letter of Credit, including a precise description
of any documents to be presented by the beneficiary
which, if presented by the beneficiary prior to the
expiration date of such Letter of Credit, would require
the Issuing Lender to make payment under such Letter of
Credit.
The undersigned officer, to the best of his or her knowledge, and Company
certify that:
(i) The representations and warranties contained in the Credit Agreement
and the other Loan Documents are true, correct and complete in all material
respects on and as of the date hereof to the same extent as though made on and
as of the date hereof, except to the extent such representations and warranties
specifically relate to an earlier date, in which case such representations and
warranties were true, correct and complete in all material respects on and as of
such earlier date;
(ii) No event has occurred and is continuing or would result from the
issuance of the Letter of Credit contemplated hereby that would constitute an
Event of Default or a Potential Event of Default;
(iii) Company has performed in all material respects all agreements and
satisfied all conditions which the Credit Agreement provides shall be performed
or satisfied by it on or before the date hereof; and
(iv) All other conditions precedent described in subsection 4.3 of the
Credit Agreement have been satisfied.
DATED: ____________________ EXPRESS SCRIPTS, INC.
By: __________________________
Title: ________________________
<PAGE>
EXHIBIT IV
[FORM OF TERM NOTE]
EXPRESS SCRIPTS, INC.
PROMISSORY NOTE DUE APRIL 1, 2003
$________ New York, New York
April 1, 1998
FOR VALUE RECEIVED, Express Scripts, Inc., a Delaware corporation
("COMPANY"), promises to pay to _______________ ("PAYEE") the principal amount
of ______________ ($___________) in the installments referred to below.
Company also promises to pay interest on the unpaid principal amount
hereof, from the date hereof until paid in full, at the rates and at the times
which shall be determined in accordance with the provisions of that certain
Credit Agreement dated as of April 1, 1998 among Company, the financial
institutions listed therein as Lenders, and Bankers Trust Company, as Agent (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT," the terms defined therein and not otherwise defined herein being
used herein as therein defined).
Company shall make principal payments on this Note in consecutive
semi-annual installments, commencing on April __, 1999 and ending on April __,
2003. Each such installment shall be due on the date specified in the Credit
Agreement and in an amount determined in accordance with the provisions thereof;
PROVIDED that the last such installment shall be in an amount sufficient to
repay the entire unpaid principal balance of this Note, together with all
accrued and unpaid interest thereon.
This Note is one of Company's "Term Notes" in the aggregate principal
amount of $360,000,000 and is issued pursuant to and entitled to the benefits of
the Credit Agreement, to which reference is hereby made for a more complete
statement of the terms and conditions under which the Term Loan evidenced hereby
was made and is to be repaid.
All payments of principal and interest in respect of this Note shall be
made in lawful money of the United States of America in same day funds at the
Funding and Payment Office or at such other place as shall be designated in
writing for such purpose in accordance with the terms of the Credit Agreement.
Unless and until an Assignment Agreement effecting the assignment or transfer of
this Note shall have been accepted by Agent and recorded in the Register as
provided in subsection 10.1B(ii) of the Credit Agreement, Company and Agent
shall be entitled to deem and treat Payee as the owner and holder of this Note
and the Loan evidenced hereby. Payee hereby agrees, by its acceptance hereof,
that before disposing of this Note or any part hereof it will make a notation
hereon of all principal payments previously made hereunder and of the date to
which interest hereon has been paid; PROVIDED, HOWEVER, that the failure to make
a notation of any payment made on this Note shall not limit or otherwise affect
the obligations of Company hereunder with respect to payments of principal of or
interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day which
is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in subsection
2.4B(iii) of the Credit Agreement and to prepayment at the option of Company as
provided in subsection 2.4B(i) of the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner provided
in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment as provided
in subsections 10.1 and 10.16 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this Note
or the Credit Agreement shall alter or impair the obligations of Company, which
are absolute and unconditional, to pay the principal of and interest on this
Note at the place, at the respective times, and in the currency herein
prescribed.
Company promises to pay all costs and expenses, including reasonable
attorneys' fees, all as provided in subsection 10.2 of the Credit Agreement,
incurred in the collection and enforcement of this Note. Company and any
endorsers of this Note hereby consent to renewals and extensions of time at or
after the maturity hereof, without notice, and hereby waive diligence,
presentment, protest, demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense to
any demand hereunder.
IN WITNESS WHEREOF, Company has caused this Note to be duly executed and
delivered by its officer thereunto duly authorized as of the date and at the
place first written above.
EXPRESS SCRIPTS, INC.
By: __________________________
Title: ________________________
<PAGE>
EXHIBIT V
[FORM OF REVOLVING NOTE]
EXPRESS SCRIPTS, INC.
PROMISSORY NOTE DUE APRIL 1, 2003
$_____________ New York, New York
April 1, 1998
FOR VALUE RECEIVED, Express Scripts, Inc., a Delaware corporation
("COMPANY"), promises to pay to __________________ ("PAYEE") on or before April
__, 2003, the lesser of (x) __________________ ($_____________) and (y) the
unpaid principal amount of all advances made by Payee to Company as Revolving
Loans under the Credit Agreement referred to below.
Company also promises to pay interest on the unpaid principal amount
hereof, from the date hereof until paid in full, at the rates and at the times
which shall be determined in accordance with the provisions of that certain
Credit Agreement dated as of April 1, 1998 among Company, the financial
institutions listed therein as Lenders, and Bankers Trust Company, as Agent (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT," the terms defined therein and not otherwise defined herein being
used herein as therein defined).
This Note is one of Company's "Revolving Notes" in the aggregate principal
amount of $80,000,000 and is issued pursuant to and entitled to the benefits of
the Credit Agreement, to which reference is hereby made for a more complete
statement of the terms and conditions under which the Revolving Loans evidenced
hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note shall be
made in lawful money of the United States of America in same day funds at the
Funding and Payment Office or at such other place as shall be designated in
writing for such purpose in accordance with the terms of the Credit Agreement.
Unless and until an Assignment Agreement effecting the assignment or transfer of
this Note shall have been accepted by Agent and recorded in the Register as
provided in subsection 10.1B(ii) of the Credit Agreement, Company and Agent
shall be entitled to deem and treat Payee as the owner and holder of this Note
and the Loans evidenced hereby. Payee hereby agrees, by its acceptance hereof,
that before disposing of this Note or any part hereof it will make a notation
hereon of all principal payments previously made hereunder and of the date to
which interest hereon has been paid; PROVIDED, HOWEVER, that the failure to make
a notation of any payment made on this Note shall not limit or otherwise affect
the obligations of Company hereunder with respect to payments of principal of or
interest on this Note.
Whenever any payment on this Note shall be stated to be due on a day which
is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in subsection
2.4B(iii) of the Credit Agreement and to prepayment at the option of Company as
provided in subsection 2.4B(i) of the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner provided
in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment as provided
in subsections 10.1 and 10.16 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this Note
or the Credit Agreement shall alter or impair the obligations of Company, which
are absolute and unconditional, to pay the principal of and interest on this
Note at the place, at the respective times, and in the currency herein
prescribed.
Company promises to pay all costs and expenses, including reasonable
attorneys' fees, all as provided in subsection 10.2 of the Credit Agreement,
incurred in the collection and enforcement of this Note. Company and any
endorsers of this Note hereby consent to renewals and extensions of time at or
after the maturity hereof, without notice, and hereby waive diligence,
presentment, protest, demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense to
any demand hereunder.
IN WITNESS WHEREOF, Company has caused this Note to be duly executed and
delivered by its officer thereunto duly authorized as of the date and at the
place first written above.
EXPRESS SCRIPTS, INC.
By: __________________________
Title: ________________________
<PAGE>
<TABLE>
<CAPTION>
TRANSACTIONS
ON
REVOLVING NOTE
Outstanding
Type of Amount of Amount of Principal
Loan Made Loan Made Principal Paid Balance Notation
DATE THIS DATE THIS DATE THIS DATE THIS DATE MADE BY
<S> <C> <C> <C> <C>
---- ---------- ------------- --------------- --------------- -------
</TABLE>
<PAGE>
EXHIBIT VI
[FORM OF SWING LINE NOTE]
EXPRESS SCRIPTS, INC.
PROMISSORY NOTE DUE APRIL 1, 2003
$___________ New York, New York
April 1, 1998
FOR VALUE RECEIVED, Express Scripts, Inc., a Delaware corporation
("COMPANY"), promises to pay to _______________________ ("PAYEE"), on or before
April __, 2003, the lesser of (x) ___________________ and no/100 Dollars
($__________.00) and (y) the unpaid principal amount of all advances made by
Payee to Company as Swing Line Loans under the Credit Agreement referred to
below.
Company also promises to pay interest on the unpaid principal amount
hereof, from the date hereof until paid in full, at the rates and at the times
which shall be determined in accordance with the provisions of that certain
Credit Agreement dated as of April 1, 1998 among Company, the financial
institutions listed therein as Lenders, and Bankers Trust Company, as Agent (as
amended, supplemented or otherwise modified from time to time, the "CREDIT
AGREEMENT," the terms defined therein and not otherwise defined herein being
used herein as therein defined).
This Note is Company's "Swing Line Note" and is issued pursuant to and
entitled to the benefits of the Credit Agreement, to which reference is hereby
made for a more complete statement of the terms and conditions under which the
Swing Line Loans evidenced hereby were made and are to be repaid.
All payments of principal and interest in respect of this Note shall be
made in lawful money of the United States of America in same day funds at the
Funding and Payment Office or at such other place as shall be designated in
writing for such purpose in accordance with the terms of the Credit Agreement.
Whenever any payment on this Note shall be stated to be due on a day which
is not a Business Day, such payment shall be made on the next succeeding
Business Day and such extension of time shall be included in the computation of
the payment of interest on this Note.
This Note is subject to mandatory prepayment as provided in subsection
2.4B(iii) of the Credit Agreement and to prepayment at the option of Company as
provided in subsection 2.4B(i) of the Credit Agreement.
THIS NOTE AND THE RIGHTS AND OBLIGATIONS OF COMPANY AND PAYEE HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
Upon the occurrence of an Event of Default, the unpaid balance of the
principal amount of this Note, together with all accrued and unpaid interest
thereon, may become, or may be declared to be, due and payable in the manner,
upon the conditions and with the effect provided in the Credit Agreement.
The terms of this Note are subject to amendment only in the manner provided
in the Credit Agreement.
This Note is subject to restrictions on transfer or assignment as provided
in subsections 10.1 and 10.16 of the Credit Agreement.
No reference herein to the Credit Agreement and no provision of this Note
or the Credit Agreement shall alter or impair the obligations of Company, which
are absolute and unconditional, to pay the principal of and interest on this
Note at the place, at the respective times, and in the currency herein
prescribed.
Company promises to pay all costs and expenses, including reasonable
attorneys' fees, all as provided in subsection 10.2 of the Credit Agreement,
incurred in the collection and enforcement of this Note. Company and any
endorsers of this Note hereby consent to renewals and extensions of time at or
after the maturity hereof, without notice, and hereby waive diligence,
presentment, protest, demand and notice of every kind and, to the full extent
permitted by law, the right to plead any statute of limitations as a defense to
any demand hereunder.
IN WITNESS WHEREOF, Company has caused this Note to be duly executed and
delivered by its officer thereunto duly authorized as of the date and at the
place first written above.
EXPRESS SCRIPTS, INC.
By: __________________________
Title: ________________________
<PAGE>
<TABLE>
<CAPTION>
TRANSACTIONS
ON
SWING LINE NOTE
Outstanding
Amount of Amount of Principal
Loan Made Principal Paid Balance Notation
DATE THIS DATE THIS DATE THIS DATE MADE BY
<S> <C> <C> <C> <C>
</TABLE>
<PAGE>
EXHIBIT VII
[FORM OF COMPLIANCE CERTIFICATE]
COMPLIANCE CERTIFICATE
THE UNDERSIGNED HEREBY CERTIFY THAT:
(1) We are the duly elected ___________________ and ___________________ of
Express Scripts, Inc., a Delaware corporation ("COMPANY");
(2) We have reviewed the terms of that certain Credit Agreement dated as of
April 1, 1998 as so amended, supplemented or otherwise modified, the "CREDIT
AGREEMENT," the terms defined therein and not otherwise defined in this
Certificate (including Attachment No. 1) being used in this Certificate as
therein defined, among Company, the financial institutions listed therein as
Lenders, and Bankers Trust Company, as Agent, and the terms of the other Loan
Documents, and we have made, or have caused to be made under our supervision, a
review in reasonable detail of the transactions and condition of Company and its
Subsidiaries during the accounting period covered by the attached financial
statements; and
(3) The examination described in paragraph (2) above did not disclose, and
we have no knowledge of, the existence of any condition or event which
constitutes an Event of Default or Potential Event of Default during or at the
end of the accounting period covered by the attached financial statements or as
of the date of this Certificate.
(4) In a separate attachment to this Certificate are all exceptions to
paragraph (3) above, if any, listing, in detail, the nature of the condition or
event, the period during which it has existed and the action which Company has
taken, is taking, or proposes to take with respect to each such condition or
event.
The foregoing certifications, together with the computations set forth in
Attachment No. 1 annexed hereto and made a part hereof and the financial
statements delivered with this Certificate in support hereof, are made and
delivered this __________ day of _____________, ____ pursuant to subsection
6.1(iv) of the Credit Agreement.
EXPRESS SCRIPTS, INC.
By: __________________________
Title: ________________________
By: __________________________
Title: ________________________
<PAGE>
ATTACHMENT NO. 1
TO COMPLIANCE CERTIFICATE
This Attachment No. 1 is attached to and made a part of a Compliance
Certificate dated as of ____________, ____ and pertains to the period from
____________, ____ to ____________, ____. Subsection references herein relate to
subsections of the Credit Agreement.
A. INDEBTEDNESS
1. Indebtedness with respect to Capital Leases permitted
under subsection 7.1(iii): $_____________
2. Maximum permitted under subsection 7.1(iii): $15,000,000
3. Indebtedness of Company or a Subsidiary permitted to
finance the acquisition or improvement of fixed or
capital assets permitted under subsection 7.1(vi): $_____________
4. Maximum permitted under subsection 7.1(vi): $10,000,000
5. Indebtedness of Subsidiaries acquired subsequent to
close of the Credit Agreement permitted under
subsection 7.1 (vii): $_____________
6. Maximum permitted under subsection 7.1(vii): $10,000,000
7. Indebtedness of Company with respect to other
Indebtedness permitted under subsection 7.1(viii) $_____________
8. Maximum permitted under subsection 7.1(viii) $10,000,000
B. LIENS
1. Indebtedness secured by Liens permitted under
subsection 7.2A(iii): $_____________
2. Indebtedness permitted under subsection 7.2A(iv): $_____________
3. Liens on fixed or capital assets
acquired, constructed or improved by Company or
any Subsidiary permitted under subsection 7.2(v): $_____________
4. Indebtedness of Liens permitted under subsection
7.2(vi): $_____________
5. Maximum permitted under subsection 7.2(vi): $ 10,000,000
C. INVESTMENTS
1. Investments permitted under subsection 7.3(vi): $_____________
2. Maximum permitted under subsection 7.3(vi): $ 25,000,000
D. CONTINGENT OBLIGATIONS
1. Contingent Obligations in respect of
Letters of Credit permitted under
subsection 7.4(ii): $_____________
2. Maximum permitted under subsection 7.4(ii): $20,000,000
3. Contingent Obligations permitted under
subsection 7.4(viii) $_____________
4. Maximum permitted under subsection 7.4(viii) $ 8,000,000
E. RESTRICTED JUNIOR PAYMENTS
1. Restricted Junior payments permitted under
subsection 7.5 $_____________
2. Maximum permitted under subsection 7.5: ($25,000,000
plus 25% of Consolidated Net Income for period
commencing on the Closing Date, ending with the
Fiscal Quarter most recently ended prior to the
date of payment) $_____________
F. MINIMUM INTEREST COVERAGE RATIO (annualized calculation
for the four-Fiscal Quarter period ending __________, 199_,
based upon Fiscal Quarters ending after the Closing Date)
1. Consolidated Net Income: $_____________
2. Consolidated Interest Expense: $_____________
3. Provisions for taxes based on income: $_____________
4. Total depreciation expense: $_____________
5. Total amortization expense: $_____________
6. Other non-cash items reducing Consolidated
Net Income: $_____________
7. Other non-cash items increasing Consolidated
Net Income: $_____________
8. Consolidated Adjusted EBITDA (1+2+3+4+5+6-7): $_____________
9. Total interest expense: $_____________
10. Retention of employees costs (through March 31, 1999): $_____________
11. Interest Coverage Ratio (8):(2): ___:1.00
12. Minimum ratio required under subsection 7.6A: ___:1.00
F. MAXIMUM LEVERAGE RATIO (as of _____________, 199_)
1. Consolidated Total Debt: $_____________
2. Consolidated Adjusted EBITDA $_____________
3. Leverage Ratio (1):(2): ___:1.00
4. Maximum ratio permitted under subsection 7.6B: ___:1.00
G. MINIMUM CONSOLIDATED NET WORTH (as of ____________, 199_)
1. Consolidated Net Worth: $_____________
2. Consolidated Net Income for period from $_____________
Closing Date to end of applicable Fiscal
Quarter period.
3. Minimum required under subsection 7.6C: $_____________
($_____ plus 75% of consolidated Net Income
for applicable Fiscal Quarter period, plus any
issuances of equity Securities
or conversions of Securities)
H. FUNDAMENTAL CHANGES; ASSET SALES AND ACQUISITIONS
1. Aggregate book value of assets sold in any
one or more Asset Sales after Closing Date in one
or more transactions permitted under subsection
7.7(vi): $_____________
2. Maximum permitted under subsection 7.7(vi):
(aggregate value of such Asset Sales not
to exceed 15% of the total assets of the Company
as of date of sale) $_____________
3. Aggregate Net Asset Sales Proceeds in Fiscal
Year to date: (Aggregate Net Asset Sales Proceeds
in any Fiscal Year in excess of $5,000,000 subject
to mandatory prepayment under subsection
2.4B(iii)(a)(ii)) $_____________
4. Aggregate non-cash consideration received from Asset
Sales post Closing Date: $ ____________
5. Maximum aggregate non-cash consideration received from
Asset Sales permitted under subsection 7.7(vi): $ 20,000,000
I. CONSOLIDATED CAPITAL EXPENDITURES
1. Consolidated Capital Expenditures for Fiscal
Year-to-date: $_____________
2. Maximum amount of Consolidated Capital
Expenditures permitted under subsection 7.8 for
Fiscal Year: $_____________
J. ACQUISITIONS
1. Aggregate value of Permitted Acquisitions made
for applicable Fiscal Quarter permitted under
subsection 7.7(v): $_____________
2. Maximum Permitted Acquisitions per Fiscal Year: $ 25,000,000
<PAGE>
EXHIBIT VIII-A
[FORM OF OPINION OF THOMAS M. BOUDREAU, ESQ.]
April 1, 1998
Bankers Trust Company, as Agent
One Bankers Trust Plaza
New York, New York 10006
and
The Lenders Listed on
Schedule A Hereto
Re: Credit Agreement dated as of April 1, 1998 among Express Scripts, Inc.,
the financial institutions listed therein as Lenders, and Bankers TRUST COMPANY,
AS AGENT
Ladies and Gentlemen:
I have acted as Company counsel to Express Scripts, Inc., a Delaware
corporation ("COMPANY"), in connection with that certain Credit Agreement dated
as of April 1, 1998 (the "CREDIT AGREEMENT") among Company, the financial
institutions listed therein as Lenders ("LENDERS"), and Bankers Trust Company,
as Agent ("AGENT"). This opinion is rendered to you in compliance with
subsection 4.1G of the Credit Agreement. Capitalized terms used herein without
definition have the same meanings as in the Credit Agreement.
In my capacity as Company counsel, I have examined originals, or copies
identified to my satisfaction as being true copies, of such records, documents
or other instruments as in my judgment are necessary or appropriate to enable
myself to render the opinions expressed below. These records, documents and
instruments included the following:
(a) The Certificate or Articles of Incorporation of Company and its
Subsidiaries, as amended to date;
(b) The Bylaws of Company and its Subsidiaries, as amended to date;
(c) All records of proceedings and actions of the Board of Directors of
Company relating to the Credit Agreement and the transactions contemplated
thereby;
(d) The Credit Agreement;
(e) The Term Notes, Revolving Notes and Swing Line Note delivered today
(the "Notes");
(f) The Company Pledge Agreement;
(g) The Subsidiary Pledge Agreement; and
(h) The Subsidiary Guaranty.
I have been involved in the preparation of certificates of officers of
Company with respect to certain factual matters, copies of which have been
delivered to Lenders. In addition, I have obtained and relied upon such
certificates and assurances from public officials as I have deemed necessary,
copies of which have been delivered to Lenders. In all such examinations, I have
assumed the genuineness of all signatures on original and certified documents,
and the conformity to original or certified documents of all documents submitted
to me as conformed or photostatic copies.
I have investigated such questions of law for the purpose of rendering this
opinion as I have deemed necessary. I am opining herein as to the effect on the
subject transactions of only United States Federal law, the General Corporation
Law of the State of Delaware, and the laws of the State of New York.
On the basis of the foregoing, and in reliance thereon, and subject to the
limitations, qualifications and exceptions set forth below, I am of the opinion
that:
1. Company is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation. Company is duly
qualified to do business as a foreign corporation, and is in good standing in
each jurisdiction as listed on SCHEDULE 5.1.
2. Each Subsidiary of the Company has been duly organized and is validly
existing in good standing under the laws of its state of incorporation and in
each jurisdiction as listed on SCHEDULE 5.1 and has all requisite corporate
power and authority to own and operate its properties and to carry on its
business as now conducted, and to execute, deliver and perform the Subsidiary
Pledge Agreement and Subsidiary Guaranty.
3. Company has all requisite corporate power and authority to carry on
business as now conducted; to execute, deliver and perform the Credit Agreement
and the Company Pledge Agreement, to issue the Notes and cause the execution of
the Company Pledge Agreement, the Subsidiary Pledge Agreement and the Subsidiary
Guaranty and any other Loan Document and to carry out the transactions
contemplated thereby.
4. The execution, delivery and performance of the Loan Documents to which
it is a party and the issuance and payment of the Notes have been duly
authorized by all necessary corporate action on the part of Company. The Credit
Agreement, the Notes and the other Loan Documents to which the Company is a
party have been duly executed and delivered by Company and constitute the
legally valid and binding obligations of Company, enforceable against Company in
accordance with their respective terms. The execution, delivery and performance
of the Loan Documents to which each Subsidiary is a party have been duly
authorized by all necessary corporate action on the part of such Subsidiary. The
Loan Documents to which each Subsidiary is a party have been duly executed and
delivered by each such Subsidiary and constitute the legally valid and binding
obligations of such Subsidiary, enforceable against such Subsidiary in
accordance with their respective terms.
5. Neither the execution and delivery of the Loan Documents to which a Loan
party is a party nor the issuance and payment of the Notes by Company nor the
consummation of the transactions contemplated by such Loan Documents nor the
compliance with the terms and conditions thereof by Company and its subsidiaries
(A) conflicts with, results in a breach or violation of, or constitutes a
default under, any of the terms, conditions or provisions of (x) the Certificate
or Articles of Incorporation or Bylaws of Company or any of its Subsidiaries,
(y) any term of any material agreement, instrument, order, writ, judgment or
decree known to me after due inquiry to which Company or any of its Subsidiaries
is a party or by which any of its respective properties or assets are bound, or
(z) any present federal, Delaware corporation or New York statute, rule or
regulation binding on Company or any of its Subsidiaries, or (B) results in the
creation of any Lien upon any of the properties or assets of Company or any of
its Subsidiaries under any agreement or order referred to in clause (y) above
(other than Liens created pursuant to the Loan Documents).
6. The outstanding shares of the capital stock of each corporation named on
SCHEDULE I of the Company Pledge Agreement and SCHEDULE 1 of the Subsidiary
Pledge Agreement as a Subsidiary of the Company or a Subsidiary of a Subsidiary
of Company, respectively, have been duly authorized by all necessary corporate
action on the part of such corporation, are validly issued, fully-paid and
nonassessable and are owned of record by the Company, or such Subsidiary, as the
case may be.
7. No consents or approvals of, authorizations by, or registrations,
declarations or filings with any Delaware governmental authority are required by
Company or any Subsidiary of Company in connection with the execution and
delivery by Company or any Subsidiary of Company of the Loan Documents to which
it is a party or the extensions of credit under the Credit Agreement or the
payment by Company of the Obligations thereunder or the issuance and payment of
the Notes.
8. To the best of my knowledge after due inquiry, there are no actions,
suits or proceedings pending or threatened against Company or any of its
Subsidiaries which have a significant likelihood of materially and adversely
affecting either the ability of Company or any such Subsidiary to perform its
obligations under any Loan Document or the financial condition or operations of
Company and its Subsidiaries, taken as a whole.
9. It is not necessary in connection with the execution and delivery of the
Notes and the Credit Agreement to Lenders to register the Notes, the Credit
Agreement or the Loans under the Securities Act of 1933, as amended, or to
qualify any indenture in respect thereof under the Trust Indenture Act of 1939,
as amended.
10. Company is not an "investment company" or a company "controlled" by an
"investment company" as such terms are defined in the Investment Company Act of
1940, as amended.
11. Neither Company nor any of its Subsidiaries, or any Subsidiary of a
Subsidiary as the case may be, is a "holding company" or a "subsidiary company"
of a "holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
This opinion is rendered only to Agent and Lenders and is solely for their
benefit in connection with the above transactions. This opinion may not be
relied upon by Agent or Lenders for any other purpose, or quoted to or relied
upon by any other person, firm or corporation for any purpose without my prior
written consent. Notwithstanding the foregoing, persons who subsequently become
Lenders (or participants in accordance with the terms of the Credit Agreement)
may rely on this opinion as if it were addressed to them.
Very truly yours,
<PAGE>
EXHIBIT VIII-B
[FORM OF OPINION OF SIMPSON, THACHER & BARTLETT]
April 1, 1998
Bankers Trust Company, as Agent
One Bankers Trust Plaza
New York, New York 10006
and
The Lenders Listed on
Schedule A Hereto
Re: Credit Agreement dated as of April 1, 1998 among Express Scripts, Inc.,
the financial institutions listed therein as Lenders, and Bankers TRUST COMPANY,
AS AGENT
Ladies and Gentlemen:
We have acted as counsel to Express Scripts, Inc., a Delaware corporation
("COMPANY"), in connection with that certain Credit Agreement dated as of April
1, 1998 (the "CREDIT AGREEMENT") among Company, the financial institutions
listed therein as Lenders ("LENDERS"), and Bankers Trust Company, as Agent
("AGENT"). This opinion is rendered to you in compliance with subsection 4.1G of
the Credit Agreement. Capitalized terms used herein without definition have the
same meanings as in the Credit Agreement.
In our capacity as such counsel, we have examined originals, or copies
identified to our satisfaction as being true copies, of such records, documents
or other instruments as in our judgment are necessary or appropriate to enable
us to render the opinions expressed below. These records, documents and
instruments included the following:
(a) The Certificate or Articles of Incorporation of Company and its
Subsidiaries, as amended to date;
(b) The Bylaws of Company and its Subsidiaries, as amended to date;
(c) All records of proceedings and actions of the Board of Directors of
Company relating to the Credit Agreement and the transactions contemplated
thereby;
(d) The Credit Agreement;
(e) The Term Notes, Revolving Notes and Swing Line Note delivered today
(the "Notes");
(f) The Company Pledge Agreement;
(g) The Subsidiary Pledge Agreement; and
(h) The Subsidiary Guaranty.
We have been furnished with, and with Lenders' consent have relied upon,
certificates of officers of Company with respect to certain factual matters,
copies of which have been delivered to Lenders. In addition, we have obtained
and relied upon such certificates and assurances from public officials as we
have deemed necessary, copies of which have been delivered to Lenders. In all
such examinations, we have assumed the genuineness of all signatures on original
and certified documents, and the conformity to original or certified documents
of all documents submitted to us as conformed or photostatic copies.
We have investigated such questions of law for the purpose of rendering
this opinion as we have deemed necessary. We are opining herein as to the effect
on the subject transactions of only United States Federal law, the General
Corporation Law of the State of Delaware, and the laws of the State of New York.
On the basis of the foregoing, and in reliance thereon, and subject to the
limitations, qualifications and exceptions set forth below, we are of the
opinion that:
1. Company is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation. Company is duly
qualified to do business as a foreign corporation, and is in good standing in
each jurisdiction as listed on SCHEDULE 5.1.
2. Each Subsidiary of the Company has been duly organized and is validly
existing in good standing under the laws of its state of incorporation and has
all requisite corporate power and authority to own and operate its properties
and to carry on its business as now conducted, and to execute, deliver and
perform the Subsidiary Pledge Agreement and Subsidiary Guaranty.
3. Company has all requisite corporate power and authority to carry on
business as now conducted; to execute, deliver and perform the Credit Agreement
and the Company Pledge Agreement, to issue the Notes [and cause the execution of
the Subsidiary Pledge Agreement and the Subsidiary Guaranty and any other Loan
Document] and to carry out the transactions contemplated thereby.
4. The execution, delivery and performance of the Loan Documents to which
it is a party and the issuance and payment of the Notes have been duly
authorized by all necessary corporate action on the part of Company. The Credit
Agreement, the Notes and the other Loan Documents to which the Company is a
party have been duly executed and delivered by Company and constitute the
legally valid and binding obligations of Company, enforceable against Company in
accordance with their respective terms. The execution, delivery and performance
of the Loan Documents to which each Subsidiary is a party have been duly
authorized by all necessary corporate action on the part of such Subsidiary. The
Loan Documents to which each Subsidiary is a party have been duly executed and
delivered by each such Subsidiary and constitute the legally valid and binding
obligations of such Subsidiary, enforceable against such Subsidiary in
accordance with their respective terms.
5. Neither the execution and delivery of the Loan Documents to which a Loan
party is a party nor the issuance and payment of the Notes by Company nor the
consummation of the transactions contemplated by such Loan Documents nor the
compliance with the terms and conditions thereof by Company and its subsidiaries
(A) conflicts with, results in a breach or violation of, or constitutes a
default under, any of the terms, conditions or provisions of (x) the Certificate
or Articles of Incorporation or Bylaws of Company or any of its Subsidiaries,
(y) any term of any material agreement, instrument, order, writ, judgment or
decree known to us after due inquiry to which Company or any of its Subsidiaries
is a party or by which any of its respective properties or assets are bound, or
(z) any present federal or New York statute, or (B) results in the creation of
any Lien upon any of the properties or assets of Company or any of its
Subsidiaries under any agreement or order referred to in clause (y) above (other
than Liens created pursuant to the Loan Documents).
6. No consents or approvals of, authorizations by, or registrations,
declarations or filings with, any federal, Delaware or New York governmental
authority are required by Company or any Subsidiary of Company in connection
with the execution and delivery by Company or any Subsidiary of Company of the
Loan Documents to which it is a party or the extensions of credit under the
Credit Agreement or the payment by Company of the Obligations thereunder or the
issuance and payment of the Notes.
7. The making of the Loans and the application of the proceeds thereof as
provided in the Credit Agreement do not violate Regulation G, T, U or X of the
Board of Governors of the Federal Reserve System.
8. Execution of the Company Pledge Agreement and the Subsidiary Pledge
Agreement and delivery to the Collateral Agent in the State of New York of the
stock certificates representing the shares of stock as pledged on Schedule I,
respectively, to the Company Pledge Agreement and the Subsidiary Pledge
Agreement (all total, the "Pledged Shares") endorsed to the Collateral Agent or
in blank, create in favor of the Collateral Agent a perfected security interest
under the Uniform Commercial Code as in effect in the State of New York (the
"Code") in the Pledged Securities [free of all adverse claims].
9. It is not necessary in connection with the execution and delivery of the
Notes and the Credit Agreement to Lenders to register the Notes, the Credit
Agreement or the Loans under the Securities Act of 1933, as amended, or to
qualify any indenture in respect thereof under the Trust Indenture Act of 1939,
as amended.
10. Company is not an "investment company" or a company "controlled" by an
"investment company" as such terms are defined in the Investment Company Act of
1940, as amended.
11. Neither Company nor any of its Subsidiaries, or any Subsidiary of a
Subsidiary as the case may be, is a "holding company" or a "subsidiary company"
of a "holding company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the meaning of the Public
Utility Holding Company Act of 1935, as amended.
This opinion is rendered only to Agent and Lenders and is solely for their
benefit in connection with the above transactions. This opinion may not be
relied upon by Agent or Lenders for any other purpose, or quoted to or relied
upon by any other person, firm or corporation for any purpose without our prior
written consent. Notwithstanding the foregoing, persons who subsequently become
Lenders (or participants in accordance with the terms of the Credit Agreement)
may rely on this opinion as if it were addressed to them.
Very truly yours,
<PAGE>
SCHEDULE A
[Lenders' Names]
<PAGE>
EXHIBIT IX
[FORM OF OPINION OF O'MELVENY & MYERS]
April 1st, 1 9 9 8
Bankers Trust Company, as Agent
One Bankers Trust Plaza
New York, New York 10006
and
The Lenders Party to the Credit
Agreement Referenced Below
Re: LOANS TO EXPRESS SCRIPTS, INC.
Ladies and Gentlemen:
We have acted as counsel to Bankers Trust Company, as
Agent (in such capacity, "AGENT"), in connection with the preparation and
delivery of a Credit Agreement dated as of April 1, 1998 (the "CREDIT
AGREEMENT") among Express Scripts, Inc., a Delaware corporation
("COMPANY"), the financial institutions listed therein as Lenders, and
Agent and in connection with the preparation and delivery of certain
related documents.
We have participated in various conferences with
representatives of Company and Agent and conferences and telephone calls
with Simpson, Thacher & Bartlett, counsel to Company, during which the
Credit Agreement and related matters have been discussed, and we have also
participated in the meeting held on the date hereof (the "Closing")
incident to the funding of the initial loans made under the Credit
Agreement. We have reviewed the forms of the Credit Agreement and the
exhibits thereto, including the forms of the promissory notes annexed
thereto (the "Notes"), and the opinions of Simpson, Thacher & Boudreau and
Thomas M. Boudreau (collectively, the "Opinions") and the officers'
certificates and other documents delivered at the Closing. We have assumed
the genuineness of all signatures, the authenticity of all documents
submitted to us as originals or copies and the due authority of all persons
executing the same, and we have relied as to factual matters on the
documents that we have reviewed.
Although we have not independently considered all of the
matters covered by the Opinions to the extent necessary to enable us to
express the conclusions therein stated, we believe that the Credit
Agreement and the exhibits thereto are in substantially acceptable legal
form and that the Opinions and the officers' certificates and other
documents delivered in connection with the execution and delivery of, and
as conditions to the making of the initial loans under, the Credit
Agreement and the Notes are substantially responsive to the requirements of
the Credit Agreement.
Respectfully submitted,
<PAGE>
EXHIBIT X
[FORM OF ASSIGNMENT AGREEMENT]
ASSIGNMENT AGREEMENT
This ASSIGNMENT AGREEMENT (this "AGREEMENT") is entered into by and between
the parties designated as Assignor ("ASSIGNOR") and Assignee ("ASSIGNEE") above
the signatures of such parties on the Schedule of Terms attached hereto and
hereby made an integral part hereof (the "SCHEDULE OF TERMS") and relates to
that certain Credit Agreement described in the Schedule of Terms (said Credit
Agreement, as amended, supplemented or otherwise modified from time to time, the
"CREDIT AGREEMENT," the terms defined therein and not otherwise defined herein
being used herein as therein defined).
IN CONSIDERATION of the agreements, provisions and covenants herein
contained, the parties hereto hereby agree as follows:
SECTION 1. ASSIGNMENT AND ASSUMPTION.
(a) Effective upon the Settlement Date specified in Item 4 of the Schedule
of Terms (the "SETTLEMENT DATE"), Assignor hereby sells and assigns to Assignee,
without recourse, representation or warranty (except as expressly set forth
herein), and Assignee hereby purchases and assumes from Assignor, that
percentage interest in all of Assignor's rights and obligations as a Lender
arising under the Credit Agreement and the other Loan Documents with respect to
Assignor's Commitments and outstanding Loans, if any, which represents, as of
the Settlement Date, the percentage interest specified in Item 3 of the Schedule
of Terms of all rights and obligations of Lenders arising under the Credit
Agreement and the other Loan Documents with respect to the Commitments and any
outstanding Loans (the "ASSIGNED SHARE"). Without limiting the generality of the
foregoing, the parties hereto hereby expressly acknowledge and agree that any
assignment of all or any portion of Assignor's rights and obligations relating
to Assignor's Revolving Loan Commitment shall include (i) in the event Assignor
is an Issuing Lender with respect to any outstanding Letters of Credit (any such
Letters of Credit being "ASSIGNOR LETTERS OF CREDIT"), the sale to Assignee of a
participation in the Assignor Letters of Credit and any drawings thereunder as
contemplated by subsection 3.1C of the Credit Agreement and (ii) the sale to
Assignee of a ratable portion of any participations previously purchased by
Assignor pursuant to said subsection 3.1C with respect to any Letters of Credit
other than the Assignor Letters of Credit.
(b) In consideration of the assignment described above, Assignee hereby
agrees to pay to Assignor, on the Settlement Date, the principal amount of any
outstanding Loans included within the Assigned Share, such payment to be made by
wire transfer of immediately available funds in accordance with the applicable
payment instructions set forth in Item 5 of the Schedule of Terms.
(c) Assignor hereby represents and warrants that Item 3 of the Schedule of
Terms correctly sets forth the amount of the Commitments, the outstanding Term
Loan and the Pro Rata Share corresponding to the Assigned Share.
(d) Assignor and Assignee hereby agree that, upon giving effect to the
assignment and assumption described above, (i) Assignee shall be a party to the
Credit Agreement and shall have all of the rights and obligations under the Loan
Documents, and shall be deemed to have made all of the covenants and agreements
contained in the Loan Documents, arising out of or otherwise related to the
Assigned Share, and (ii) Assignor shall be absolutely released from any of such
obligations, covenants and agreements assumed or made by Assignee in respect of
the Assigned Share. Assignee hereby acknowledges and agrees that the agreement
set forth in this Section 1(d) is expressly made for the benefit of Company,
Agent, Assignor and the other Lenders and their respective successors and
permitted assigns.
(e) Assignor and Assignee hereby acknowledge and confirm their
understanding and intent that (i) this Agreement shall effect the assignment by
Assignor and the assumption by Assignee of Assignor's rights and obligations
with respect to the Assigned Share, (ii) any other assignments by Assignor of a
portion of its rights and obligations with respect to the Commitments and any
outstanding Loans shall have no effect on the Commitments, the outstanding Term
Loan and the Pro Rata Share corresponding to the Assigned Share as set forth in
Item 3 of the Schedule of Terms or on the interest of Assignee in any
outstanding Revolving Loans corresponding thereto, and (iii) from and after the
Settlement Date, Agent shall make all payments under the Credit Agreement in
respect of the Assigned Share (including all payments of principal and accrued
but unpaid interest, commitment fees and letter of credit fees with respect
thereto) (A) in the case of any such interest and fees that shall have accrued
prior to the Settlement Date, to Assignor, and (B) in all other cases, to
Assignee; PROVIDED that Assignor and Assignee shall make payments directly to
each other to the extent necessary to effect any appropriate adjustments in any
amounts distributed to Assignor and/or Assignee by Agent under the Loan
Documents in respect of the Assigned Share in the event that, for any reason
whatsoever, the payment of consideration contemplated by Section 1(b) occurs on
a date other than the Settlement Date.
SECTION 2. CERTAIN REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
(a) Assignor represents and warrants that it is the legal and beneficial
owner of the Assigned Share, free and clear of any adverse claim.
(b) Assignor shall not be responsible to Assignee for the execution,
effectiveness, genuineness, validity, enforceability, collectibility or
sufficiency of any of the Loan Documents or for any representations, warranties,
recitals or statements made therein or made in any written or oral statements or
in any financial or other statements, instruments, reports or certificates or
any other documents furnished or made by Assignor to Assignee or by or on behalf
of Company or any of its Subsidiaries to Assignor or Assignee in connection with
the Loan Documents and the transactions contemplated thereby or for the
financial condition or business affairs of Company or any other Person liable
for the payment of any Obligations, nor shall Assignor be required to ascertain
or inquire as to the performance or observance of any of the terms, conditions,
provisions, covenants or agreements contained in any of the Loan Documents or as
to the use of the proceeds of the Loans or the use of the Letters of Credit or
as to the existence or possible existence of any Event of Default or Potential
Event of Default.
(c) Assignee represents and warrants that it is an Eligible Assignee; that
it has experience and expertise in the making of loans such as the Loans; that
it has acquired the Assigned Share for its own account in the ordinary course of
its business and without a view to distribution of the Loans within the meaning
of the Securities Act or the Exchange Act or other federal securities laws (it
being understood that, subject to the provisions of subsection 10.1 of the
Credit Agreement, the disposition of the Assigned Share or any interests therein
shall at all times remain within its exclusive control); and that it has
received, reviewed and approved a copy of the Credit Agreement (including all
Exhibits and Schedules thereto).
(d) Assignee represents and warrants that it has received from Assignor
such financial information regarding Company and its Subsidiaries as is
available to Assignor and as Assignee has requested, that it has made its own
independent investigation of the financial condition and affairs of Company and
its Subsidiaries in connection with the assignment evidenced by this Agreement,
and that it has made and shall continue to make its own appraisal of the
creditworthiness of Company and its Subsidiaries. Assignor shall have no duty or
responsibility, either initially or on a continuing basis, to make any such
investigation or any such appraisal on behalf of Assignee or to provide Assignee
with any other credit or other information with respect thereto, whether coming
into its possession before the making of the initial Loans or at any time or
times thereafter, and Assignor shall not have any responsibility with respect to
the accuracy of or the completeness of any information provided to Assignee.
(e) Each party to this Agreement represents and warrants to the other party
hereto that it has full power and authority to enter into this Agreement and to
perform its obligations hereunder in accordance with the provisions hereof, that
this Agreement has been duly authorized, executed and delivered by such party
and that this Agreement constitutes a legal, valid and binding obligation of
such party, enforceable against such party in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting creditors' rights
generally and by general principles of equity.
SECTION 3. MISCELLANEOUS.
(a) Each of Assignor and Assignee hereby agrees from time to time, upon
request of the other such party hereto, to take such additional actions and to
execute and deliver such additional documents and instruments as such other
party may reasonably request to effect the transactions contemplated by, and to
carry out the intent of, this Agreement.
(b) Neither this Agreement nor any term hereof may be changed, waived,
discharged or terminated, except by an instrument in writing signed by the party
(including, if applicable, any party required to evidence its consent to or
acceptance of this Agreement) against whom enforcement of such change, waiver,
discharge or termination is sought.
(c) Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telefacsimile or telex, or three
Business Days after depositing it in the United States mail with postage prepaid
and properly addressed. For the purposes hereof, the notice address of each of
Assignor and Assignee shall be as set forth on the Schedule of Terms or, as to
either such party, such other address as shall be designated by such party in a
written notice delivered to the other such party. In addition, the notice
address of Assignee set forth on the Schedule of Terms shall serve as the
initial notice address of Assignee for purposes of subsection 10.8 of the Credit
Agreement.
(d) In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
(e) THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES.
(f) This Agreement shall be binding upon, and shall inure to the benefit
of, the parties hereto and their respective successors and assigns.
(g) This Agreement may be executed in one or more counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
(h) This Agreement shall become effective upon the date (the "EFFECTIVE
DATE") upon which all of the following conditions are satisfied: (i) the
execution of a counterpart hereof by each of Assignor and Assignee, (ii) the
execution of a counterpart hereof by Company as evidence of its consent hereto
to the extent required under subsection 10.1B(i) of the Credit Agreement, (iii)
the receipt by Agent of the processing and recordation fee referred to in
subsection 10.1B(i) of the Credit Agreement, (iv) in the event Assignee is a
Non-US Lender (as defined in subsection 2.7B(iii)(a) of the Credit Agreement),
the delivery by Assignee to Agent of such forms, certificates or other evidence
with respect to United States federal income tax withholding matters as Assignee
may be required to deliver to Agent pursuant to said subsection 2.7B(iii)(a),
(v) the execution of a counterpart hereof by Agent as evidence of its acceptance
hereof in accordance with subsection 10.1B(ii) of the Credit Agreement, (vi) the
receipt by Agent of originals or telefacsimiles of the counterparts described
above and authorization of delivery thereof, and (vii) the recordation by Agent
in the Register of the pertinent information regarding the assignment effected
hereby in accordance with subsection 10.1B(ii) of the Credit Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed and delivered by their respective officers thereunto duly
authorized, such execution being made as of the Effective Date in the applicable
spaces provided on the Schedule of Terms.
<PAGE>
SCHEDULE OF TERMS
1. BORROWER: Express Scripts, Inc.
2. NAME AND DATE OF CREDIT AGREEMENT: Credit Agreement dated as of April 1,
1998, among Express Scripts, Inc., the financial institutions listed therein as
Lenders, and Bankers Trust Company, as Agent.
3. AMOUNTS:
Re: Term Loans Re: Revolving Loans
(a) Aggregate Commitments of all Lenders: $________ $_________
(b) Assigned Share/Pro Rata Share: _____% ______%
(c) Amount of Assigned Share of Commitments $________ $_________
(d) Amount of Assigned Share of Term Loans: $________
4. SETTLEMENT DATE: ____________, ____
5. PAYMENT INSTRUCTIONS:
ASSIGNOR: ASSIGNEE:
_____________________________ ________________________
_____________________________ ________________________
Attention: __________________ Attention: _____________
Reference: __________________ Reference: _____________
6. NOTICE ADDRESSES:
ASSIGNOR: ASSIGNEE:
________________________ ________________________
________________________ ________________________
________________________ ________________________
7. SIGNATURES:
_____________________________ ________________________
as Assignor as Assignee
By: By:
Title: Title:
Consented to in accordance with Accepted in accordance with
subsection 10.1B(i) of the Credit subsection 10.1B(ii) of the
Agremeent Credit Agreement
EXPRESS SCRIPTS, INC. BANKERS TRUST COMPANY,
AS AGENT
By: By:
Title: Title:
<PAGE>
EXHIBIT XI
[FORM OF CERTIFICATE RE NON-BANK STATUS]
CERTIFICATE RE NON-BANK STATUS
Reference is hereby made to that certain Credit Agreement dated as of April
1, 1998 (said Credit Agreement, as amended, supplemented or otherwise modified
to the date hereof, being the "CREDIT AGREEMENT") by and among Express Scripts,
Inc., a Delaware corporation, the financial institutions listed therein as
Lenders, and Bankers Trust Company, as Agent. Pursuant to subsection 2.7B(iii)
of the Credit Agreement, the undersigned hereby certifies that it is not a
"bank" or other Person described in Section 881(c)(3) of the Internal Revenue
Code of 1986, as amended (the "Code").
In this regard, the Non-U.S. Lender further represents and warrants that,
for purposes of Section 881(c)(3)(A) of the Code:
(i) the Non-U.S. Lender is not subject to regulatory or other legal
requirements a s a bank in any jurisdiction; and
(ii) the Non-U.S. Lender has not been treated as bank for purposes of any
tax, securities law or other filing or submission made to any Governmental
Authority, any application made to a rating agency or qualification for any
exemption from tax, securities law or other legal requirements.
The Non-U.S. Lender further represents that it is not a 10-percent
shareholder of the Borrower within the meaning of Section 881(c)(3)(B) of the
Code; and that the Non-U.S Lender is not a controlled foreign corporation
receiving interest from a related person within the meaning of Section
881(c)(3)(C) of the Code.
[NAME OF LENDER]
By: ____________________
Title: __________________
<PAGE>
EXHIBIT XII
[FORM OF COMPANY PLEDGE AGREEMENT]
COMPANY PLEDGE AGREEMENT
This COMPANY PLEDGE AGREEMENT (this "AGREEMENT") is dated as of April 1,
1998 and entered into by and between Express Scripts, Inc., a Delaware
corporation ("PLEDGOR"), and Bankers Trust Company, as agent for and
representative of (in such capacity herein called "SECURED PARTY") the financial
institutions ("LENDERS") party to the Credit Agreement referred to below.
PRELIMINARY STATEMENTS
A. Pledgor is the legal and beneficial owner of the shares of stock (the
"PLEDGED SHARES") described in Part A of SCHEDULE I annexed hereto and issued by
the corporations named therein.
B. Secured Party and Lenders have entered into a Credit Agreement dated as
of April 1, 1998 (as amended, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT," the terms defined therein and not otherwise
defined herein being used herein as therein defined) with Pledgor pursuant to
which Lenders have made certain commitments, subject to the terms and conditions
set forth in the Credit Agreement, to extend certain credit facilities to
Pledgor.
C. It is a condition precedent to the initial extensions of credit by
Lenders under the Credit Agreement that Pledgor shall have granted the security
interests and undertaken the obligations contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
Lenders to make Loans and other extensions of credit under the Credit Agreement
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, Pledgor hereby agrees with Secured Party as follows:
SECTION 1. PLEDGE OF SECURITY. Pledgor hereby pledges and assigns to
Secured Party, and hereby grants to Secured Party a security interest in, all of
Pledgor's right, title and interest in and to the following (the "PLEDGED
COLLATERAL"):
(a) the Pledged Shares and the certificates representing the Pledged Shares
and any interest of Pledgor in the entries on the books of any financial
intermediary pertaining to the Pledged Shares, and all dividends, cash,
warrants, rights, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the Pledged Shares;
(b) all additional shares of, and all securities convertible into and
warrants, options and other rights to purchase or otherwise acquire, stock of
any issuer of the Pledged Shares from time to time acquired by Pledgor in any
manner (which shares shall be deemed to be part of the Pledged Shares), the
certificates or other instruments representing such additional shares,
securities, warrants, options or other rights and any interest of Pledgor in the
entries on the books of any financial intermediary pertaining to such additional
shares, and all dividends, cash, warrants, rights, instruments and other
property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such additional
shares, securities, warrants, options or other rights;
(c) all shares of, and all securities convertible into and warrants,
options and other rights to purchase or otherwise acquire, stock of any Person
that, after the date of this Agreement, becomes, as a result of any occurrence,
a direct Subsidiary of Pledgor (which shares shall be deemed to be part of the
Pledged Shares), the certificates or other instruments representing such shares,
securities, warrants, options or other rights and any interest of Pledgor in the
entries on the books of any financial intermediary pertaining to such shares,
and all dividends, cash, warrants, rights, instruments and other property or
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such shares, securities, warrants,
options or other rights;
(d) to the extent not covered by clauses (a) through (c) above, all
proceeds of any or all of the foregoing Pledged Collateral. For purposes of this
Agreement, the term "PROCEEDS" includes whatever is receivable or received when
Pledged Collateral or proceeds are sold, exchanged, collected or otherwise
disposed of, whether such disposition is voluntary or involuntary, and includes
proceeds of any indemnity or guaranty payable to Pledgor or Secured Party from
time to time with respect to any of the Pledged Collateral.
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement secures, and the
Pledged Collateral is collateral security for, the prompt payment or performance
in full when due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including the payment of amounts
that would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. ss.362(a)), of all obligations and
liabilities of every nature of Pledgor now or hereafter existing under or
arising out of or in connection with the Credit Agreement and the other Loan
Documents and all extensions or renewals thereof, whether for principal,
interest (including interest that, but for the filing of a petition in
bankruptcy with respect to Pledgor, would accrue on such obligations),
reimbursement of amounts drawn under Letters of Credit, fees, expenses,
indemnities or otherwise, whether voluntary or involuntary, direct or indirect,
absolute or contingent, liquidated or unliquidated, whether or not jointly owed
with others, and whether or not from time to time decreased or extinguished and
later increased, created or incurred, and all or any portion of such obligations
or liabilities that are paid, to the extent all or any part of such payment is
avoided or recovered directly or indirectly from Secured Party or any Lender as
a preference, fraudulent transfer or otherwise, and all obligations of every
nature of Pledgor now or hereafter existing under this Agreement (all such
obligations of Pledgor being the "SECURED OBLIGATIONS").
SECTION 3. DELIVERY OF PLEDGED COLLATERAL. All certificates or instruments
representing or evidencing the Pledged Collateral shall be delivered to and held
by or on behalf of Secured Party pursuant hereto and shall be in suitable form
for transfer by delivery or, as applicable, shall be accompanied by Pledgor's
endorsement, where necessary, or duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to Secured Party.
Upon the occurrence and during the continuance of an Event of Default (as
defined in the Credit Agreement), Secured Party shall have the right, without
notice to Pledgor, to transfer to or to register in the name of Secured Party or
any of its nominees any or all of the Pledged Collateral, subject only to the
revocable rights specified in Section 7(a); PROVIDED that, except in the case of
a bankruptcy default or an acceleration of the Loans, no such transfer or
registration shall be made without notice to Pledgor. In addition, Secured Party
shall have the right at any time to exchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or instruments of
smaller or larger denominations.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Pledgor represents and warrants
as follows:
(a) DUE AUTHORIZATION, ETC. OF PLEDGED COLLATERAL. All of the Pledged
Shares have been duly authorized and validly issued and are fully paid and
non-assessable.
(b) DESCRIPTION OF PLEDGED COLLATERAL. The Pledged Shares constitute all of
the issued and outstanding shares of stock of each issuer thereof organized
under the laws of a state of the United States (each a "U.S. ISSUER") and 65% of
the issued and outstanding shares of stock of each other issuer thereof (each a
"NON-U.S. ISSUER") and there are no outstanding warrants, options or other
rights to purchase, or other agreements outstanding with respect to, or property
that is now or hereafter convertible into, or that requires the issuance or sale
of, any Pledged Shares.
(c) OWNERSHIP OF PLEDGED COLLATERAL. Pledgor is the legal, record and
beneficial owner of the Pledged Collateral free and clear of any Lien except for
the security interest created by this Agreement.
SECTION 5. TRANSFERS AND OTHER LIENS; ADDITIONAL PLEDGED COLLATERAL; ETC.
Pledgor shall:
(a) not, except as expressly permitted by the Credit Agreement, (i) sell,
assign (by operation of law or otherwise) or otherwise dispose of, or grant any
option with respect to, any of the Pledged Collateral, (ii) create or suffer to
exist any Lien upon or with respect to any of the Pledged Collateral, except for
the security interest under this Agreement, or (iii) permit any issuer of
Pledged Shares to merge or consolidate unless all the outstanding capital stock
of the surviving or resulting corporation is, upon such merger or consolidation,
pledged hereunder and no cash, securities or other property is distributed in
respect of the outstanding shares of any other constituent corporation; PROVIDED
that in the event Pledgor makes an Asset Sale permitted by the Credit Agreement
and the assets subject to such Asset Sale are Pledged Shares, Secured Party
shall release the Pledged Shares that are the subject of such Asset Sale to
Pledgor free and clear of the lien and security interest under this Agreement
concurrently with the consummation of such Asset Sale; PROVIDED, FURTHER that,
as a condition precedent to such release, Secured Party shall have received
evidence satisfactory to it that arrangements satisfactory to it have been made
for delivery to Secured Party of the Net Asset Sale Proceeds of such Asset Sale;
if required by, and in accordance with the provisions of the Credit Agreement.
(b) (i) cause each issuer of Pledged Shares not to issue any stock or other
securities in addition to or in substitution for the Pledged Shares issued by
such issuer, except to Pledgor, (ii) pledge hereunder, immediately upon its
acquisition (directly or indirectly) thereof, any and all additional shares of
stock or other securities of each issuer of Pledged Shares except to the extent
that such pledge would result in the pledge of more than 65% of the stock of a
Non-U.S. Issuer, and (iii) pledge hereunder, immediately upon its acquisition
(directly or indirectly) thereof, any and all shares of stock of any Person
that, after the date of this Agreement, becomes, as a result of any occurrence,
a direct Subsidiary of Pledgor, unless such Subsidiary is a Non-U.S. Issuer, in
which case, no more than 65% of such shares of stock shall be pledged hereunder;
(c) promptly deliver to Secured Party all written notices received by it
with respect to the Pledged Collateral; and
(d) pay promptly when due all taxes, assessments and governmental charges
or levies imposed upon, and all claims against, the Pledged Collateral, except
to the extent the validity thereof is being contested in good faith; PROVIDED
that Pledgor shall in any event pay such taxes, assessments, charges, levies or
claims not later than five days prior to the date of any proposed sale of the
Pledged Collateral under any judgment, writ or warrant of attachment entered or
filed against Pledgor or any of the Pledged Collateral as a result of the
failure to make such payment.
SECTION 6. FURTHER ASSURANCES; PLEDGE AMENDMENTS.
(a) Pledgor agrees that from time to time, at the expense of Pledgor,
Pledgor will promptly execute and deliver all further instruments and documents,
and take all further action, that may be necessary or desirable, or that Secured
Party may request, in order to perfect and protect any security interest granted
or purported to be granted hereby or to enable Secured Party to exercise and
enforce its rights and remedies hereunder with respect to any Pledged
Collateral. Without limiting the generality of the foregoing, Pledgor will: (i)
execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as Secured Party may reasonably request, in order to perfect and
preserve the security interests granted or purported to be granted hereby and
(ii) at Secured Party's reasonable request, appear in and defend any action or
proceeding that may affect Pledgor's title to or Secured Party's security
interest in all or any part of the Pledged Collateral.
(b) Pledgor further agrees that it will, upon obtaining any additional
shares of stock or other securities required to be pledged hereunder as provided
in Section 5(b) or (c), promptly (and in any event within 30 days) deliver to
Secured Party a Pledge Amendment, duly executed by Pledgor, in substantially the
form of SCHEDULE II annexed hereto (a "PLEDGE AMENDMENT"), in respect of the
additional Pledged Shares to be pledged pursuant to this Agreement. Pledgor
hereby authorizes Secured Party to attach each Pledge Amendment to this
Agreement and agrees that all Pledged Shares listed on any Pledge Amendment
delivered to Secured Party shall for all purposes hereunder be considered
Pledged Collateral; PROVIDED that the failure of Pledgor to execute a Pledge
Amendment with respect to any additional Pledged Shares pledged pursuant to this
Agreement shall not impair the security interest of Secured Party therein or
otherwise adversely affect the rights and remedies of Secured Party hereunder
with respect thereto.
SECTION 7. VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Event of Default shall have occurred and be continuing:
(i) Pledgor shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Pledged Collateral or any part thereof for
any purpose not inconsistent with the terms of this Agreement or the Credit
Agreement in a manner which would not have a material adverse effect on the
value of the Pledged Collateral or any part thereof. It is understood, however,
that neither (A) the voting by Pledgor of any Pledged Shares for or Pledgor's
consent to the election of directors at a regularly scheduled annual or other
meeting of stockholders or with respect to incidental matters at any such
meeting nor (B) Pledgor's consent to or approval of any action otherwise
permitted under this Agreement and the Credit Agreement shall be deemed
inconsistent with the terms of this Agreement or the Credit Agreement within the
meaning of this Section 7(a)(i).
(ii) Pledgor shall be entitled to receive and retain, and to utilize free
and clear of the lien of this Agreement, any and all dividends paid in respect
of the Pledged Collateral; provided, HOWEVER, that any and all
(A) dividends paid or payable other than in cash in respect of, and
instruments and other property received, receivable or otherwise distributed in
respect of, or in exchange for, any Pledged Collateral,
(B) dividends and other distributions paid or payable in cash in respect of
any Pledged Collateral in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital surplus or
paid-in-surplus, and
(C) cash paid, payable or otherwise distributed in exchange for any Pledged
Collateral, shall be, and shall forthwith be delivered to Secured Party to hold
as, Pledged Collateral and shall, if received by Pledgor, be received in trust
for the benefit of Secured Party, be segregated from the other property or funds
of Pledgor and be forthwith delivered to Secured Party as Pledged Collateral in
the same form as so received (with all necessary endorsements); and
(iii) Secured Party shall promptly execute and deliver (or cause to be
executed and delivered) to Pledgor all such dividend payment orders and other
instruments as Pledgor may from time to time reasonably request for the purpose
of enabling Pledgor to receive the dividends payments which it is authorized to
receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuation of an Event of Default:
(i) upon written notice from Secured Party to Pledgor, all rights of
Pledgor to exercise the voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to Section 7(a)(i) shall cease, and
all such rights shall thereupon become vested in Secured Party who shall
thereupon have the sole right to exercise such voting and other consensual
rights;
(ii) all rights of Pledgor to receive the dividends which it would
otherwise be authorized to receive and retain pursuant to Section 7(a)(ii) shall
cease, and all such rights shall thereupon become vested in Secured Party who
shall thereupon have the sole right to receive and hold as Pledged Collateral
such dividends; and
(iii) all dividends which are received by Pledgor contrary to the
provisions of paragraph (ii) of this Section 7(b) shall be received in trust for
the benefit of Secured Party, shall be segregated from other funds of Pledgor
and shall forthwith be paid over to Secured Party as Pledged Collateral in the
same form as so received (with any necessary endorsements).
(c) In order to permit Secured Party to exercise the voting and other
consensual rights which it may be entitled to exercise pursuant to Section
7(b)(i) and to receive all dividends and other distributions which it may be
entitled to receive under Section 7(a)(ii) or Section 7(b)(ii), (i) Pledgor
shall promptly execute and deliver (or cause to be executed and delivered) to
Secured Party all such proxies, dividend payment orders and other instruments as
Secured Party may from time to time reasonably request and (ii) without limiting
the effect of the immediately preceding clause (i), Pledgor hereby grants to
Secured Party an irrevocable proxy to vote the Pledged Shares and to exercise
all other rights, powers, privileges and remedies to which a holder of the
Pledged Shares would be entitled (including giving or withholding written
consents of shareholders, calling special meetings of shareholders and voting at
such meetings), which proxy shall be effective, automatically and without the
necessity of any action (including any transfer of any Pledged Shares on the
record books of the issuer thereof) by any other Person (including the issuer of
the Pledged Shares or any officer or agent thereof), upon the occurrence of an
Event of Default and the continuance thereof and which proxy shall only
terminate upon the payment in full of the Secured Obligations.
SECTION 8. SECURED PARTY APPOINTED ATTORNEY-IN-FACT. Pledgor hereby
irrevocably appoints Secured Party as Pledgor's attorney-in-fact, with full
authority in the place and stead of Pledgor and in the name of Pledgor, Secured
Party or otherwise, from time to time in Secured Party's discretion to take any
action and to execute any instrument that Secured Party may deem necessary or
advisable to accomplish the purposes of this Agreement, including filing one or
more financing or continuation statements, or amendments thereto, relative to
all or any part of the Pledged Collateral without the signature of Pledgor;
PROVIDED, that unless an Event of Default has occurred and is continuing,
Secured Party may not (i) receive, endorse and collect any instruments made
payable to Pledgor representing any dividend or other distribution in respect of
the Pledged Collateral or any part thereof; or (ii) file any claims or take any
action or institute any proceedings that Secured Party may deem necessary or
desirable for the collection of any of the Pledged Collateral or otherwise to
enforce the rights of Secured Party with respect to any of the Pledged
Collateral.
SECTION 9. SECURED PARTY MAY PERFORM. If Pledgor fails to perform any
agreement contained herein, Secured Party may itself perform, or cause
performance of, such agreement, and the expenses of Secured Party incurred in
connection therewith shall be payable by Pledgor under Section 14(b).
SECTION 10. STANDARD OF CARE. The powers conferred on Secured Party
hereunder are solely to protect its interest in the Pledged Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the exercise
of reasonable care in the custody of any Pledged Collateral in its possession
and the accounting for moneys actually received by it hereunder, Secured Party
shall have no duty as to any Pledged Collateral, it being understood that
Secured Party shall have no responsibility for (a) ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relating to any Pledged Collateral, whether or not Secured Party has or
is deemed to have knowledge of such matters, (b) taking any necessary steps
(other than steps taken in accordance with the standard of care set forth above
to maintain possession of the Pledged Collateral) to preserve rights against any
parties with respect to any Pledged Collateral, (c) taking any necessary steps
to collect or realize upon the Secured Obligations or any guarantee therefor, or
any part thereof, or any of the Pledged Collateral, or (d) initiating any action
to protect the Pledged Collateral against the possibility of a decline in market
value. Secured Party shall be deemed to have exercised reasonable care in the
custody and preservation of Pledged Collateral in its possession if such Pledged
Collateral is accorded treatment substantially equal to that which Secured Party
accords its own property consisting of negotiable securities.
SECTION 11. REMEDIES.
(a) If any Event of Default shall have occurred and be continuing, Secured
Party may exercise in respect of the Pledged Collateral, in addition to all
other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party on default under the Uniform
Commercial Code as in effect in any relevant jurisdiction (the "CODE") (whether
or not the Code applies to the affected Pledged Collateral), and Secured Party
may also in its sole discretion, without notice except as specified below, sell
the Pledged Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange or broker's board or at any of Secured Party's
offices or elsewhere, for cash, on credit or for future delivery, at such time
or times and at such price or prices and upon such other terms as Secured Party
may deem commercially reasonable, irrespective of the impact of any such sales
on the market price of the Pledged Collateral. Secured Party or any Lender may
be the purchaser of any or all of the Pledged Collateral at any such sale and
Secured Party, as agent for and representative of Lenders (but not any Lender or
Lenders in its or their respective individual capacities unless Requisite
Lenders shall otherwise agree in writing), shall be entitled, for the purpose of
bidding and making settlement or payment of the purchase price for all or any
portion of the Pledged Collateral sold at any such public sale, to use and apply
any of the Secured Obligations as a credit on account of the purchase price for
any Pledged Collateral payable by Secured Party at such sale. Each purchaser at
any such sale shall hold the property sold absolutely free from any claim or
right on the part of Pledgor, and Pledgor hereby waives (to the extent permitted
by applicable law) all rights of redemption, stay and/or appraisal which it now
has or may at any time in the future have under any rule of law or statute now
existing or hereafter enacted. Pledgor agrees that, to the extent notice of sale
shall be required by law, at least ten days' notice to Pledgor of the time and
place of any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. Secured Party shall not be obligated
to make any sale of Pledged Collateral regardless of notice of sale having been
given. Secured Party may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
Pledgor hereby waives any claims against Secured Party arising by reason of the
fact that the price at which any Pledged Collateral may have been sold at such a
private sale was less than the price which might have been obtained at a public
sale, even if Secured Party accepts the first offer received and does not offer
such Pledged Collateral to more than one offeree. If the proceeds of any sale or
other disposition of the Pledged Collateral are insufficient to pay all the
Secured Obligations, Pledgor shall be liable for the deficiency and the fees of
any attorneys employed by Secured Party to collect such deficiency.
(b) Pledgor recognizes that, by reason of certain prohibitions contained in
the Securities Act and applicable state securities laws, Secured Party may be
compelled, with respect to any sale of all or any part of the Pledged Collateral
conducted without prior registration or qualification of such Pledged Collateral
under the Securities Act and/or such state securities laws, to limit purchasers
to those who will agree, among other things, to acquire the Pledged Collateral
for their own account, for investment and not with a view to the distribution or
resale thereof. Pledgor acknowledges that any such private sales may be at
prices and on terms less favorable than those obtainable through a public sale
without such restrictions (including a public offering made pursuant to a
registration statement under the Securities Act) and, notwithstanding such
circumstances, Pledgor agrees that any such private sale shall be deemed to have
been made in a commercially reasonable manner and that Secured Party shall have
no obligation to engage in public sales and no obligation to delay the sale of
any Pledged Collateral for the period of time necessary to permit the issuer
thereof to register it for a form of public sale requiring registration under
the Securities Act or under applicable state securities laws, even if such
issuer would, or should, agree to so register it.
(c) If Secured Party determines to exercise its right to sell any or all of
the Pledged Collateral, upon written request, Pledgor shall and shall cause each
issuer of any Pledged Shares to be sold hereunder from time to time to furnish
to Secured Party all such information as Secured Party may request in order to
determine the number of shares and other instruments included in the Pledged
Collateral which may be sold by Secured Party in exempt transactions under the
Securities Act and the rules and regulations of the Securities and Exchange
Commission thereunder, as the same are from time to time in effect.
SECTION 12. APPLICATION OF PROCEEDS. All proceeds received by Secured Party
in respect of any sale of, collection from, or other realization upon all or any
part of the Pledged Collateral shall be applied as provided in subsection 2.4D
of the Credit Agreement.
SECTION 13. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS. This Agreement
shall create a continuing security interest in the Pledged Collateral and shall
(a) remain in full force and effect until the payment in full of all Secured
Obligations, the cancellation or termination of the Commitments and the
cancellation or expiration of all outstanding Letters of Credit, (b) be binding
upon Pledgor, its successors and assigns, and (c) inure, together with the
rights and remedies of Secured Party hereunder, to the benefit of Secured Party
and its successors, transferees and assigns. Without limiting the generality of
the foregoing clause (c), but subject to the provisions of subsection 10.1 of
the Credit Agreement, any Lender may assign or otherwise transfer any Loans held
by it to any other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted to Lenders herein or otherwise.
Upon the payment in full of all Secured Obligations, the cancellation or
termination of the Commitments and the cancellation or expiration of all
outstanding Letters of Credit, the security interest granted hereby shall
terminate and all rights to the Pledged Collateral shall revert to Pledgor. Upon
any such termination Secured Party will, at Pledgor's expense, execute and
deliver to Pledgor such documents as Pledgor shall reasonably request to
evidence such termination and Pledgor shall be entitled to the return, upon its
request and at its expense, against receipt and without recourse to Secured
Party, of such of the Pledged Collateral as shall not have been sold or
otherwise applied pursuant to the terms hereof.
SECTION 14. SECURED PARTY AS AGENT.
(a) Secured Party has been appointed to act as Secured Party hereunder by
Lenders. Secured Party shall be obligated, and shall have the right hereunder,
to make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking any action (including the release or
substitution of Pledged Collateral), solely in accordance with this Agreement
and the Credit Agreement; PROVIDED that Secured Party shall exercise, or refrain
from exercising, any remedies provided for in Section 11 in accordance with the
instructions of the Requisite Lenders.
(b) Secured Party shall at all times be the same Person that is Agent under
the Credit Agreement. Written notice of resignation by Agent pursuant to
subsection 9.5 of the Credit Agreement shall also constitute notice of
resignation as Secured Party under this Agreement; removal of Agent pursuant to
subsection 9.5 of the Credit Agreement shall also constitute removal as Secured
Party under this Agreement; and appointment of a successor Agent pursuant to
subsection 9.5 of the Credit Agreement shall also constitute appointment of a
successor Secured Party under this Agreement. Upon the acceptance of any
appointment as Agent under subsection 9.5 of the Credit Agreement by a successor
Agent, that successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring or removed Secured
Party under this Agreement, and the retiring or removed Secured Party under this
Agreement shall promptly (i) transfer to such successor Secured Party all sums,
securities and other items of Collateral held hereunder, together with all
records and other documents necessary or appropriate in connection with the
performance of the duties of the successor Secured Party under this Agreement,
and (ii) execute and deliver to such successor Secured Party such amendments to
financing statements, and take such other actions, as may be necessary or
appropriate in connection with the assignment to such successor Secured Party of
the security interests created hereunder, whereupon such retiring or removed
Secured Party shall be discharged from its duties and obligations under this
Agreement. After any retiring or removed Agent's resignation or removal
hereunder as Secured Party, the provisions of this Agreement shall inure to its
benefit as to any actions taken or omitted to be taken by it under this
Agreement while it was Secured Party hereunder.
SECTION 15. AMENDMENTS; ETC. No amendment, modification, termination or
waiver of any provision of this Agreement, and no consent to any departure by
Pledgor therefrom, shall in any event be effective unless the same shall be in
writing and signed by Secured Party and, in the case of any such amendment or
modification, by Pledgor. Any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given.
SECTION 16. NOTICES. Any notice or other communication herein required or
permitted to be given shall be in writing and may be personally served, telexed
or sent by telefacsimile or United States mail or courier service and shall be
deemed to have been given when delivered in person or by courier service, upon
receipt of telefacsimile or telex, or three Business Days after depositing it in
the United States mail with postage prepaid and properly addressed. For the
purposes hereof, the address of each party hereto shall be as provided in
subsection 10.8 of the Credit Agreement.
SECTION 17. SEVERABILITY. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
SECTION 18. HEADINGS. Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
SECTION 19. GOVERNING LAW; TERMS. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT
THAT THE CODE PROVIDES THAT THE PERFECTION OF THE SECURITY INTEREST HEREUNDER,
OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PLEDGED COLLATERAL ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. Unless
otherwise defined herein or in the Credit Agreement, terms used in Articles 8
and 9 of the Uniform Commercial Code in the State of New York are used herein as
therein defined.
SECTION 20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
IN WITNESS WHEREOF, Pledgor and Secured Party have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
EXPRESS SCRIPTS, INC.
By: __________________________
Title:
BANKERS TRUST COMPANY
By: __________________________
Title:
<PAGE>
SCHEDULE I
Attached to and forming a part of the Pledge Agreement dated as of April 1,
1998 between Express Scripts, Inc., as Pledgor, and Bankers Trust Company, as
Secured Party.
Part A
Class of Stock Certi- Par Number of
STOCK ISSUER STOCK FICATE NOS. VALUE SHARES
<PAGE>
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated __________, ____, is delivered pursuant to
Section 6(b) of the Pledge Agreement referred to below. The undersigned hereby
agrees that this Pledge Amendment may be attached to the Pledge Agreement dated
April 1, 1998, between the undersigned and Bankers Trust Company as Secured
Party (the "PLEDGE AGREEMENT," capitalized terms defined therein being used
herein as therein defined), and that the Pledged Shares listed on this Pledge
Amendment shall be deemed to be part of the Pledged Shares and shall become part
of the Pledged Collateral and shall secure all Secured Obligations.
EXPRESS SCRIPTS, INC.
By: ___________________________
Title:
Class of Stock Certi- Par Number of
STOCK ISSUER STOCK FICATE NOS. VALUE SHARES
<PAGE>
EXHIBIT XIII
[FORM OF SUBSIDIARY GUARANTY]
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY is entered into as of April 1, 1998 by THE
UNDERSIGNED (each a "GUARANTOR" and collectively, "GUARANTORS") in favor of and
for the benefit of Bankers Trust Company as agent for and representative of (in
such capacity herein called "GUARANTIED PARTY") the financial institutions party
to the Credit Agreement ("LENDERS") referred to below, and, subject to
subsection 3.12, for the benefit of the other Beneficiaries (as hereinafter
defined).
RECITALS
A. Express Scripts, Inc., a Delaware corporation ("COMPANY"), has entered
into that certain Credit Agreement dated as of April 1, 1998 with Guarantied
Party and Lenders (as amended, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT"; capitalized terms defined therein and not
otherwise defined herein being used herein as therein defined).
B. A portion of the proceeds of the Loans may be advanced to Guarantors and
thus the Guarantied Obligations (as hereinafter defined) are being incurred for
and will inure to the benefit of Guarantors (which benefits are hereby
acknowledged).
C. It is a condition precedent to the making of the initial Loans under the
Credit Agreement that Company's obligations thereunder be guarantied by
Guarantors.
D. Guarantors are willing irrevocably and unconditionally to guaranty such
obligations of Company.
NOW, THEREFORE, based upon the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to induce Lenders and Guarantied Party to enter into the Credit
Agreement and to make Loans and other extensions of credit thereunder,
Guarantors hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS. As used in this Guaranty, the following terms
shall have the following meanings unless the context otherwise requires:
"BENEFICIARIES" means Guarantied Party and Lenders.
"GUARANTIED OBLIGATIONS" has the meaning assigned to that term in
subsection 2.1.
"GUARANTY" means this Subsidiary Guaranty dated as of April 1, 1998, as it
may be amended, supplemented or otherwise modified from time to time.
"PAYMENT IN FULL", "PAID IN FULL" or any similar term means payment in full
of the Guarantied Obligations, including all principal, interest, costs, fees
and expenses (including reasonable legal fees and expenses) of Beneficiaries as
required under the Loan Documents.
1.2 INTERPRETATION.
(a) References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Guaranty unless otherwise specifically
provided.
(b) In the event of any conflict or inconsistency between the terms,
conditions and provisions of this Guaranty and the terms, conditions and
provisions of the Credit Agreement, the terms, conditions and provisions of this
Guaranty shall prevail.
SECTION 2. THE GUARANTY
2.1 GUARANTY OF THE GUARANTIED OBLIGATIONS. Subject to the provisions of
subsection 2.2(a), Guarantors jointly and severally hereby irrevocably and
unconditionally guaranty the due and punctual payment in full of all Guarantied
Obligations when the same shall become due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise (including
amounts that would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss. 362(a)). The term
"GUARANTIED OBLIGATIONS" is used herein in its most comprehensive sense and
includes:
(a) any and all Obligations of Company, in each case now or hereafter made,
incurred or created, whether absolute or contingent, liquidated or unliquidated,
whether due or not due, and however arising under or in connection with the
Credit Agreement and the other Loan Documents, including those arising under
successive borrowing transactions under the Credit Agreement which shall either
continue the Obligations of Company or from time to time renew them after they
have been satisfied and including interest which, but for the filing of a
petition in bankruptcy with respect to Company, would have accrued on any
Guarantied Obligations, whether or not a claim is allowed against Company for
such interest in the related bankruptcy proceeding; and
(b) those expenses set forth in subsection 2.9 hereof.
2.2 LIMITATION ON AMOUNT GUARANTIED; CONTRIBUTION BY GUARANTORS. (a)
Anything contained in this Guaranty to the contrary notwithstanding, if any
Fraudulent Transfer Law (as hereinafter defined) is determined by a court of
competent jurisdiction to be applicable to the obligations of any Guarantor
under this Guaranty, such obligations of such Guarantor hereunder shall be
limited to a maximum aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of Title 11 of the United States Code or any
applicable provisions of comparable state law (collectively, the "FRAUDULENT
TRANSFER LAWS"), in each case after giving effect to all other liabilities of
such Guarantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
Guarantor (x) in respect of intercompany indebtedness to Company or other
affiliates of Company to the extent that such indebtedness would be discharged
in an amount equal to the amount paid by such Guarantor hereunder and (y) under
any guaranty of Subordinated Indebtedness which guaranty contains a limitation
as to maximum amount similar to that set forth in this subsection 2.2(a),
pursuant to which the liability of such Guarantor hereunder is included in the
liabilities taken into account in determining such maximum amount) and after
giving effect as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to subrogation,
reimbursement, indemnification or contribution of such Guarantor pursuant to
applicable law or pursuant to the terms of any agreement (including any such
right of contribution under subsection 2.2(b).
(b) Guarantors under this Guaranty together desire to allocate among
themselves in a fair and equitable manner, their obligations arising under this
Guaranty. Accordingly, in the event any payment or distribution is made on any
date by any Guarantor under this Guaranty (a "FUNDING GUARANTOR") that exceeds
its Fair Share (as defined below) as of such date, that Funding Guarantor shall
be entitled to a contribution from each of the other Guarantors in the amount of
such other Guarantor's Fair Share Shortfall (as defined below) as of such date,
with the result that all such contributions will cause each Guarantor's
Aggregate Payments (as defined below) to equal its Fair Share as of such date.
"FAIR SHARE" means, with respect to a Guarantor as of any date of determination,
an amount equal to (i) the ratio of (x) the Adjusted Maximum Amount (as defined
below) with respect to such Guarantor to (y) the aggregate of the Adjusted
Maximum Amounts with respect to all Guarantors MULTIPLIED BY (ii) the aggregate
amount paid or distributed on or before such date by all Funding Guarantors
under this Guaranty in respect of the obligations guarantied. "FAIR SHARE
SHORTFALL" means, with respect to a Guarantor as of any date of determination,
the excess, if any, of the Fair Share of such Guarantor over the Aggregate
Payments of such Guarantor. "ADJUSTED MAXIMUM AMOUNT" means, with respect to a
Guarantor as of any date of determination, the maximum aggregate amount of the
obligations of such Guarantor under this Guaranty determined as of such date, in
the case of any Guarantor, in accordance with subsection 2.2(a); PROVIDED that,
solely for purposes of calculating the "Adjusted Maximum Amount" with respect to
any Guarantor for purposes of this subsection 2.2(b), any assets or liabilities
of such Guarantor arising by virtue of any rights to subrogation, reimbursement
or indemnification or any rights to or obligations of contribution hereunder
shall not be considered as assets or liabilities of such Guarantor. "AGGREGATE
PAYMENTS" means, with respect to a Guarantor as of any date of determination, an
amount equal to (i) the aggregate amount of all payments and distributions made
on or before such date by such Guarantor in respect of this Guaranty (including
in respect of this subsection 2.2(b) MINUS (ii) the aggregate amount of all
payments received on or before such date by such Guarantor from the other
Guarantors as contributions under this subsection 2.2(b). The amounts payable as
contributions hereunder shall be determined as of the date on which the related
payment or distribution is made by the applicable Funding Guarantor. The
allocation among Guarantors of their obligations as set forth in this subsection
2.2(b) shall not be construed in any way to limit the liability of any Guarantor
hereunder.
2.3 PAYMENT BY GUARANTORS; APPLICATION OF PAYMENTS. Subject to the
provisions of subsection 2.2(a), Guarantors hereby jointly and severally agree,
in furtherance of the foregoing and not in limitation of any other right which
any Beneficiary may have at law or in equity against any Guarantor by virtue
hereof, that upon the failure of Company to pay any of the Guarantied
Obligations when and as the same shall become due, whether at stated maturity,
by required prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss. 362(a)),
Guarantors will upon demand pay, or cause to be paid, in cash, to Guarantied
Party for the ratable benefit of Beneficiaries, an amount equal to the sum of
the unpaid principal amount of all Guarantied Obligations then due as aforesaid,
accrued and unpaid interest on such Guarantied Obligations (including interest
which, but for the filing of a petition in bankruptcy with respect to Company,
would have accrued on such Guarantied Obligations, whether or not a claim is
allowed against Company for such interest in the related bankruptcy proceeding)
and all other Guarantied Obligations then owed to Beneficiaries as aforesaid.
All such payments shall be applied promptly from time to time by Guarantied
Party as provided in subsection 2.4D of the Credit Agreement.
2.4 LIABILITY OF GUARANTORS ABSOLUTE. Each Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than payment in full of the
Guarantied Obligations. In furtherance of the foregoing and without limiting the
generality thereof, each Guarantor agrees as follows:
(a) This Guaranty is a guaranty of payment when due and not of
collectibility.
(b) Guarantied Party may enforce this Guaranty upon the occurrence of an
Event of Default under the Credit Agreement notwithstanding the existence of any
dispute between Company and any Beneficiary with respect to the existence of
such Event of Default.
(c) The obligations of each Guarantor hereunder are independent of the
obligations of Company under the Loan Documents and the obligations of any other
guarantor (including any other Guarantor) of the obligations of Company under
the Loan Documents, and a separate action or actions may be brought and
prosecuted against such Guarantor whether or not any action is brought against
Company or any of such other guarantors and whether or not Company is joined in
any such action or actions.
(d) Payment by any Guarantor of a portion, but not all, of the Guarantied
Obligations shall in no way limit, affect, modify or abridge any Guarantor's
liability for any portion of the Guarantied Obligations which has not been paid.
Without limiting the generality of the foregoing, if Guarantied Party is awarded
a judgment in any suit brought to enforce any Guarantor's covenant to pay a
portion of the Guarantied Obligations, such judgment shall not be deemed to
release such Guarantor from its covenant to pay the portion of the Guarantied
Obligations that is not the subject of such suit, and such judgment shall not,
except to the extent satisfied by such Guarantor, limit, affect, modify or
abridge any other Guarantor's liability hereunder in respect of the Guarantied
Obligations.
(e) Any Beneficiary, upon such terms as it deems appropriate, without
notice or demand and without affecting the validity or enforceability of this
Guaranty or giving rise to any reduction, limitation, impairment, discharge or
termination of any Guarantor's liability hereunder, from time to time may (i)
renew, extend, accelerate, increase the rate of interest on, or otherwise change
the time, place, manner or terms of payment of the Guarantied Obligations, (ii)
settle, compromise, release or discharge, or accept or refuse any offer of
performance with respect to, or substitutions for, the Guarantied Obligations or
any agreement relating thereto and/or subordinate the payment of the same to the
payment of any other obligations; (iii) request and accept other guaranties of
the Guarantied Obligations and take and hold security for the payment of this
Guaranty or the Guarantied Obligations; (iv) release, surrender, exchange,
substitute, compromise, settle, rescind, waive, alter, subordinate or modify,
with or without consideration, any security for payment of the Guarantied
Obligations, any other guaranties of the Guarantied Obligations, or any other
obligation of any Person (including any other Guarantor) with respect to the
Guarantied Obligations; (v) enforce and apply any security now or hereafter held
by or for the benefit of such Beneficiary in respect of this Guaranty or the
Guarantied Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that such Beneficiary may have against any
such security, in each case as such Beneficiary in its discretion may determine
consistent with the Credit Agreement and any applicable security agreement,
including foreclosure on any such security pursuant to one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable, and even though such action operates to impair or extinguish any
right of reimbursement or subrogation or other right or remedy of any Guarantor
against Company or any security for the Guarantied Obligations; and (vi)
exercise any other rights available to it under the Loan Documents.
(f) This Guaranty and the obligations of Guarantors hereunder shall be
valid and enforceable and shall not be subject to any reduction, limitation,
impairment, discharge or termination for any reason (other than payment in full
of the Guarantied Obligations), including the occurrence of any of the
following, whether or not any Guarantor shall have had notice or knowledge of
any of them: (i) any failure or omission to assert or enforce or agreement or
election not to assert or enforce, or the stay or enjoining, by order of court,
by operation of law or otherwise, of the exercise or enforcement of, any claim
or demand or any right, power or remedy (whether arising under the Loan
Documents, at law, in equity or otherwise) with respect to the Guarantied
Obligations or any agreement relating thereto, or with respect to any other
guaranty of or security for the payment of the Guarantied Obligations; (ii) any
rescission, waiver, amendment or modification of, or any consent to departure
from, any of the terms or provisions (including provisions relating to events of
default) of the Credit Agreement, any of the other Loan Documents or any
agreement or instrument executed pursuant thereto, or of any other guaranty or
security for the Guarantied Obligations, in each case whether or not in
accordance with the terms of the Credit Agreement or such Loan Document or any
agreement relating to such other guaranty or security; (iii) the Guarantied
Obligations, or any agreement relating thereto, at any time being found to be
illegal, invalid or unenforceable in any respect; (iv) the application of
payments received from any source (other than payments received pursuant to the
other Loan Documents or from the proceeds of any security for the Guarantied
Obligations to the payment of indebtedness other than the Guarantied
Obligations, even though any Beneficiary might have elected to apply such
payment to any part or all of the Guarantied Obligations; (v) any Beneficiary's
consent to the change, reorganization or termination of the corporate structure
or existence of Company or any of its Subsidiaries and to any corresponding
restructuring of the Guarantied Obligations; (vi) any failure to perfect or
continue perfection of a security interest in any collateral which secures any
of the Guarantied Obligations; (vii) any defenses, set-offs or counterclaims
which Company may allege or assert against any Beneficiary in respect of the
Guarantied Obligations, including failure of consideration, breach of warranty,
payment, statute of frauds, statute of limitations, accord and satisfaction and
usury; and (viii) any other act or thing or omission, or delay to do any other
act or thing, which may or might in any manner or to any extent vary the risk of
any Guarantor as an obligor in respect of the Guarantied Obligations.
2.5 WAIVERS BY GUARANTORS. Each Guarantor hereby waives, for the benefit of
Beneficiaries:
(a) any right to require any Beneficiary, as a condition of payment or
performance by such Guarantor, to (i) proceed against Company, any other
guarantor (including any other Guarantor) of the Guarantied Obligations or any
other Person, (ii) proceed against or exhaust any security held from Company,
any such other guarantor or any other Person, (iii) proceed against or have
resort to any balance of any deposit account or credit on the books of any
Beneficiary in favor of Company or any other Person, or (iv) pursue any other
remedy in the power of any Beneficiary whatsoever;
(b) any defense arising by reason of the incapacity, lack of authority or
any disability or other defense of Company including any defense based on or
arising out of the lack of validity or the unenforceability of the Guarantied
Obligations or any agreement or instrument relating thereto or by reason of the
cessation of the liability of Company from any cause other than payment in full
of the Guarantied Obligations;
(c) any defense based upon any statute or rule of law which provides that
the obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal;
(d) any defense based upon any Beneficiary's errors or omissions in the
administration of the Guarantied Obligations, except behavior which amounts to
bad faith;
(e) (i) any principles or provisions of law, statutory or otherwise, which
are or might be in conflict with the terms of this Guaranty and any legal or
equitable discharge of such Guarantor's obligations hereunder, (ii) the benefit
of any statute of limitations affecting such Guarantor's liability hereunder or
the enforcement hereof, (iii) any rights to set-offs, recoupments and
counterclaims, and (iv) promptness, diligence and any requirement that any
Beneficiary protect, secure, perfect or insure any security interest or lien or
any property subject thereto;
(f) notices, demands, presentments, protests, notices of protest, notices
of dishonor and notices of any action or inaction, including acceptance of this
Guaranty, notices of default under the Credit Agreement or any agreement or
instrument related thereto, notices of any renewal, extension or modification of
the Guarantied Obligations or any agreement related thereto, notices of any
extension of credit to Company and notices of any of the matters referred to in
subsection 2.4 and any right to consent to any thereof; and
(g) any defenses or benefits that may be derived from or afforded by law
which limit the liability of or exonerate guarantors or sureties, or which may
conflict with the terms of this Guaranty.
2.6 GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC. Each Guarantor
hereby waives, until the Guarantied Obligations shall have been indefeasibly
paid in full and the Commitments shall have terminated and all Letters of Credit
shall have expired or been cancelled, any claim, right or remedy, direct or
indirect, that such Guarantor now has or may hereafter have against Company or
any of its assets in connection with this Guaranty or the performance by such
Guarantor of its obligations hereunder, in each case whether such claim, right
or remedy arises in equity, under contract, by statute under common law or
otherwise and including (a) any right of subrogation, reimbursement or
indemnification that such Guarantor now has or may hereafter have against
Company, (b) any right to enforce, or to participate in, any claim, right or
remedy that any Beneficiary now has or may hereafter have against Company, and
(c) any benefit of, and any right to participate in, any collateral or security
now or hereafter held by any Beneficiary. In addition, until the Guarantied
Obligations shall have been indefeasibly paid in full and the Commitments shall
have terminated and all Letters of Credit shall have expired or been cancelled,
each Guarantor shall withhold exercise of any right of contribution such
Guarantor may have against any other guarantor (including any other Guarantor)
of the Guarantied Obligations (including any such right of contribution under
subsection 2.2(b). Each Guarantor further agrees that, to the extent the waiver
or agreement to withhold the exercise of its rights of subrogation,
reimbursement, indemnification and contribution as set forth herein is found by
a court of competent jurisdiction to be void or voidable for any reason, any
rights of subrogation, reimbursement or indemnification such Guarantor may have
against Company or against any collateral or security, and any rights of
contribution such Guarantor may have against any such other guarantor, shall be
junior and subordinate to any rights any Beneficiary may have against Company,
to all right, title and interest any Beneficiary may have in any such collateral
or security, and to any right any Beneficiary may have against such other
guarantor. If any amount shall be paid to any Guarantor on account of any such
subrogation, reimbursement, indemnification or contribution rights at any time
when all Guarantied Obligations shall not have been paid in full, such amount
shall be held in trust for Guarantied Party on behalf of Beneficiaries and shall
forthwith be paid over to Guarantied Party for the benefit of Beneficiaries to
be credited and applied against the Guarantied Obligations, whether matured or
unmatured, in accordance with the terms hereof.
2.7 SUBORDINATION OF OTHER OBLIGATIONS. Any indebtedness of Company or any
Guarantor now or hereafter held by any Guarantor (the "OBLIGEE GUARANTOR") is
hereby subordinated in right of payment to the Guarantied Obligations, and any
such indebtedness collected or received by the Obligee Guarantor after an Event
of Default has occurred and is continuing shall be held in trust for Guarantied
Party on behalf of Beneficiaries and shall forthwith be paid over to Guarantied
Party for the benefit of Beneficiaries to be credited and applied against the
Guarantied Obligations but without affecting, impairing or limiting in any
manner the liability of the Obligee Guarantor under any other provision of this
Guaranty.
2.8 EXPENSES. Guarantors jointly and severally agree to pay, or cause to be
paid, on demand, and to save Beneficiaries harmless against liability for, any
and all costs and expenses (including fees and disbursements of counsel and
allocated costs of internal counsel) incurred or expended by any Beneficiary in
connection with the enforcement of or preservation of any rights under this
Guaranty.
2.9 CONTINUING GUARANTY. This Guaranty is a continuing guaranty and shall
remain in effect until all of the Guarantied Obligations shall have been paid in
full and the Commitments shall have terminated and all Letters of Credit shall
have expired or been cancelled. Each Guarantor hereby irrevocably waives any
right to revoke this Guaranty as to future transactions giving rise to any
Guarantied Obligations.
2.10 RIGHTS CUMULATIVE. The rights, powers and remedies given to
Beneficiaries by this Guaranty are cumulative and shall be in addition to and
independent of all rights, powers and remedies given to Beneficiaries by virtue
of any statute or rule of law or in any of the other Loan Documents or any
agreement between any Guarantor and any Beneficiary or Beneficiaries or between
Company and any Beneficiary or Beneficiaries. Any forbearance or failure to
exercise, and any delay by any Beneficiary in exercising, any right, power or
remedy hereunder shall not impair any such right, power or remedy or be
construed to be a waiver thereof, nor shall it preclude the further exercise of
any such right, power or remedy.
2.11 BANKRUPTCY; POST-PETITION INTEREST; REINSTATEMENT OF GUARANTY. (a) So
long as any Guarantied Obligations remain outstanding, no Guarantor shall,
without the prior written consent of Guarantied Party acting pursuant to the
instructions of Requisite Lenders, commence or join with any other Person in
commencing any bankruptcy, reorganization or insolvency proceedings of or
against Company. The obligations of Guarantors under this Guaranty shall not be
reduced, limited, impaired, discharged, deferred, suspended or terminated by any
proceeding, voluntary or involuntary, involving the bankruptcy, insolvency,
receivership, reorganization, liquidation or arrangement of Company or by any
defense which Company may have by reason of the order, decree or decision of any
court or administrative body resulting from any such proceeding.
(b) Each Guarantor acknowledges and agrees that any interest on any portion
of the Guarantied Obligations which accrues after the commencement of any
proceeding referred to in clause (a) above (or, if interest on any portion of
the Guarantied Obligations ceases to accrue by operation of law by reason of the
commencement of said proceeding, such interest as would have accrued on such
portion of the Guarantied Obligations if said proceedings had not been
commenced) shall be included in the Guarantied Obligations because it is the
intention of Guarantors and Beneficiaries that the Guarantied Obligations which
are guarantied by Guarantors pursuant to this Guaranty should be determined
without regard to any rule of law or order which may relieve Company of any
portion of such Guarantied Obligations. Guarantors will permit any trustee in
bankruptcy, receiver, debtor in possession, assignee for the benefit of
creditors or similar person to pay Guarantied Party, or allow the claim of
Guarantied Party in respect of, any such interest accruing after the date on
which such proceeding is commenced.
(c) In the event that all or any portion of the Guarantied Obligations are
paid by Company, the obligations of Guarantors hereunder shall continue and
remain in full force and effect or be reinstated, as the case may be, in the
event that all or any part of such payment(s) are rescinded or recovered
directly or indirectly from any Beneficiary as a preference, fraudulent transfer
or otherwise, and any such payments which are so rescinded or recovered shall
constitute Guarantied Obligations for all purposes under this Guaranty.
2.12 NOTICE OF EVENTS. As soon as Guarantor obtains knowledge thereof,
Guarantor shall give Guarantied Party written notice of any condition or event
which has resulted in (a) a material adverse change in the financial condition
of Guarantor or Company or (b) any Event of Default or Potential Event of
Default.
2.13 SET OFF. In addition to any other rights any Beneficiary may have
under law or under this Guaranty, such Beneficiary is authorized at any time or
from time to time while an Event of Default has occurred and is continuing,
without notice (any such notice being hereby expressly waived), to set off and
to appropriate and to apply any and all deposits (general or special, including
indebtedness evidenced by certificates of deposit, whether matured or unmatured)
and any other indebtedness of such Beneficiary owing to Guarantor and any other
property of Guarantor held by any Beneficiary to or for the credit or the
account of Guarantor against and on account of the Guarantied Obligations and
liabilities of Guarantor to any Beneficiary under this Guaranty.
SECTION 3. MISCELLANEOUS
3.1 SURVIVAL OF WARRANTIES. All agreements, representations and warranties
made herein shall survive the execution and delivery of this Guaranty and the
other Loan Documents and any increase in the Commitments under the Credit
Agreement.
3.2 NOTICES. Any communications between Guarantied Party and any Guarantor
and any notices or requests provided herein to be given may be given by mailing
the same, postage prepaid, or by telex, facsimile transmission or cable to each
such party at its address set forth in the Credit Agreement, on the signature
pages hereof or to such other addresses as each such party may in writing
hereafter indicate. Any notice, request or demand to or upon Guarantied Party or
any Guarantor shall not be effective until received.
3.3 SEVERABILITY. In case any provision in or obligation under this
Guaranty shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
3.4 AMENDMENTS AND WAIVERS. No amendment, modification, termination or
waiver of any provision of this Guaranty, and no consent to any departure by any
Guarantor therefrom, shall in any event be effective without the written
concurrence of Guarantied Party and, in the case of any such amendment or
modification, each Guarantor against whom enforcement of such amendment or
modification is sought. Any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given.
3.5 HEADINGS. Section and subsection headings in this Guaranty are included
herein for convenience of reference only and shall not constitute a part of this
Guaranty for any other purpose or be given any substantive effect.
3.6 APPLICABLE LAW; RULES OF CONSTRUCTION. THIS GUARANTY AND THE RIGHTS AND
OBLIGATIONS OF GUARANTORS AND BENEFICIARIES HEREUNDER SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. The
rules of construction set forth in subsection 1.3 of the Credit Agreement shall
be applicable to this Guaranty MUTATIS MUTANDIS.
3.7 SUCCESSORS AND ASSIGNS. This Guaranty is a continuing guaranty and
shall be binding upon each Guarantor and its respective successors and assigns.
This Guaranty shall inure to the benefit of Beneficiaries and their respective
successors and assigns. No Guarantor shall assign this Guaranty or any of the
rights or obligations of such Guarantor hereunder without the prior written
consent of all Lenders. Any Beneficiary may, without notice or consent, assign
its interest in this Guaranty in whole or in part. The terms and provisions of
this Guaranty shall inure to the benefit of any transferee or assignee of any
Loan, and in the event of such transfer or assignment the rights and privileges
herein conferred upon such Beneficiary shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and conditions
hereof.
3.8 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST ANY GUARANTOR ARISING OUT OF OR RELATING TO THIS
GUARANTY, OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH GUARANTOR, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO
SUCH GUARANTOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION 3.2;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO
CONFER PERSONAL JURISDICTION OVER SUCH GUARANTOR IN ANY SUCH PROCEEDING IN ANY
SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT;
(V) AGREES THAT BENEFICIARIES RETAIN THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH GUARANTOR IN
THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 3.8 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT
PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
3.9 WAIVER OF TRIAL BY JURY. EACH GUARANTOR AND, BY ITS ACCEPTANCE OF THE
BENEFITS HEREOF, EACH BENEFICIARY EACH HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS GUARANTY. The scope of this waiver is intended to be all encompassing of
any and all disputes that may be filed in any court and that relate to the
subject matter of this transaction, including contract claims, tort claims,
breach of duty claims and all other common law and statutory claims. Each
Guarantor and, by its acceptance of the benefits hereof, each Beneficiary, each
(i) acknowledges that this waiver is a material inducement for such Guarantor
and Beneficiaries to enter into a business relationship, that such Guarantor and
Beneficiaries have already relied on this waiver in entering into this Guaranty
or accepting the benefits thereof, as the case may be, and that each will
continue to rely on this waiver in their related future dealings and (ii)
further warrants and represents that each has reviewed this waiver with its
legal counsel, and that each knowingly and voluntarily waives its jury trial
rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A
MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 3.9 AND EXECUTED
BY GUARANTIED PARTY AND EACH GUARANTOR), AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY.
In the event of litigation, this Guaranty may be filed as a written consent to a
trial by the court.
3.10 NO OTHER WRITING. This writing is intended by Guarantors and
Beneficiaries as the final expression of this Guaranty and is also intended as a
complete and exclusive statement of the terms of their agreement with respect to
the matters covered hereby. No course of dealing, course of performance or trade
usage, and no parol evidence of any nature, shall be used to supplement or
modify any terms of this Guaranty. There are no conditions to the full
effectiveness of this Guaranty.
3.11 FURTHER ASSURANCES. At any time or from time to time, upon the request
of Guarantied Party, Guarantors shall execute and deliver such further documents
and do such other acts and things as Guarantied Party may reasonably request in
order to effect fully the purposes of this Guaranty.
3.12 ADDITIONAL GUARANTORS. The initial Guarantors hereunder shall be such
of the Subsidiaries of Company as are signatories hereto on the date hereof.
From time to time subsequent to the date hereof, additional Subsidiaries of
Company may become parties hereto, as additional Guarantors (each an "ADDITIONAL
GUARANTOR"), by executing a counterpart of this Guaranty. Upon delivery of any
such counterpart to Agent, notice of which is hereby waived by Guarantors, each
such Additional Guarantor shall be a Guarantor and shall be as fully a party
hereto as if such Additional Guarantor were an original signatory hereof. Each
Guarantor expressly agrees that its obligations arising hereunder shall not be
affected or diminished by the addition or release of any other Guarantor
hereunder, nor by any election of Agent not to cause any Subsidiary of Company
to become an Additional Guarantor hereunder. This Guaranty shall be fully
effective as to any Guarantor that is or becomes a party hereto regardless of
whether any other Person becomes or fails to become or ceases to be a Guarantor
hereunder.
3.13 COUNTERPARTS; EFFECTIVENESS. This Guaranty may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original for all purposes; but all such counterparts together shall
constitute but one and the same instrument. This Guaranty shall become effective
as to each Guarantor upon the execution of a counterpart hereof by such
Guarantor (whether or not a counterpart hereof shall have been executed by any
other Guarantor) and receipt by Guarantied Party of written or telephonic
notification of such execution and authorization of delivery thereof.
3.14 GUARANTIED PARTY AS AGENT.
(a) Guarantied Party has been appointed to act as Guarantied Party
hereunder by Lenders. Guarantied Party shall be obligated, and shall have the
right hereunder, to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking any action, solely in
accordance with this Guaranty and the Credit Agreement; PROVIDED that Guarantied
Party shall exercise, or refrain from exercising, any remedies hereunder in
accordance with the instructions of Requisite Lenders.
(b) Guarantied Party shall at all times be the same Person that is Agent
under the Credit Agreement. Written notice of resignation by Agent pursuant to
subsection 9.5 of the Credit Agreement shall also constitute notice of
resignation as Guarantied Party under this Guaranty; removal of Agent pursuant
to subsection 9.5 of the Credit Agreement shall also constitute removal as
Guarantied Party under this Guaranty; and appointment of a successor Agent
pursuant to subsection 9.5 of the Credit Agreement shall also constitute
appointment of a successor Guarantied Party under this Guaranty. Upon the
acceptance of any appointment as Agent under subsection 9.5 of the Credit
Agreement by a successor Agent, that successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring or removed Guarantied Party under this Guaranty, and the retiring or
removed Guarantied Party under this Guaranty shall promptly (i) transfer to such
successor Guarantied Party all sums held hereunder, together with all records
and other documents necessary or appropriate in connection with the performance
of the duties of the successor Guarantied Party under this Guaranty, and (ii)
take such other actions as may be necessary or appropriate in connection with
the assignment to such successor Guarantied Party of the rights created
hereunder, whereupon such retiring or removed Guarantied Party shall be
discharged from its duties and obligations under this Guaranty. After any
retiring or removed Guarantied Party's resignation or removal hereunder as
Guarantied Party, the provisions of this Guaranty shall inure to its benefit as
to any actions taken or omitted to be taken by it under this Guaranty while it
was Guarantied Party hereunder.
IN WITNESS WHEREOF, each of the undersigned Guarantors has caused this
Guaranty to be duly executed and delivered by its officer thereunto duly
authorized as of the date first written above.
[NAME OF GUARANTOR]
By
Title
Address:
[NAME OF GUARANTOR]
By
Title
Address:
IN WITNESS WHEREOF, the undersigned Additional Guarantor has caused this
Guaranty to be duly executed and delivered by its officer thereunto duly
authorized as of ______________, ____.
----------------------------------------
(Name of Additional Guarantor)
By
Title
Address:
<PAGE>
EXHIBIT XIV
[FORM OF SUBSIDIARY PLEDGE AGREEMENT]
SUBSIDIARY PLEDGE AGREEMENT
This SUBSIDIARY PLEDGE AGREEMENT (this "AGREEMENT") is dated as of April 1,
1998 and entered into by and between all Subsidiaries of the Company as
signatories hereto (each as a "PLEDGOR" and collectively all "PLEDGORS") and
Bankers Trust Company as agent for and representative of (in such capacity
herein called "SECURED PARTY") the financial institutions ("LENDERS") party to
the Credit Agreement referred to below.
PRELIMINARY STATEMENTS
A. Each Pledgor is the legal and beneficial owner of the shares of stock
(the "PLEDGED SHARES") described in Part A of SCHEDULE I annexed hereto and
issued by the corporations named therein.
B. Secured Party and Lenders have entered into a Credit Agreement dated as
of April 1, 1998 (as amended, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT," the terms defined therein and not otherwise
defined herein being used herein as therein defined) with Express Scripts, Inc.,
a Delaware corporation ("COMPANY"), pursuant to which Lenders have made certain
commitments, subject to the terms and conditions set forth in the Credit
Agreement, to extend certain credit facilities to Company.
C. Pledgor has executed and delivered that certain Subsidiary Guaranty
dated as of April 1, 1998 (as amended, supplemented or otherwise modified from
time to time, the "GUARANTY") in favor of Secured Party for the benefit of
Lenders pursuant to which Pledgor has guarantied the prompt payment and
performance when due of all obligations of Company under the Credit Agreement.
D. It is a condition precedent to the initial extensions of credit by
Lenders under the Credit Agreement that Pledgor shall have granted the security
interests and undertaken the obligations contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
Lenders to make Loans and other extensions of credit under the Credit Agreement,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, Pledgor hereby agrees with Secured Party as follows:
SECTION 1. PLEDGE OF SECURITY. Pledgor hereby pledges and assigns to
Secured Party, and hereby grants to Secured Party a security interest in, all of
Pledgor's right, title and interest in and to the following (the "PLEDGED
COLLATERAL"):
(a) the Pledged Shares and the certificates representing the Pledged Shares
and any interest of Pledgor in the entries on the books of any financial
intermediary pertaining to the Pledged Shares, and all dividends, cash,
warrants, rights, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the Pledged Shares;
(b) all additional shares of, and all securities convertible into and
warrants, options and other rights to purchase or otherwise acquire, stock of
any issuer of the Pledged Shares from time to time acquired by Pledgor in any
manner (which shares shall be deemed to be part of the Pledged Shares), the
certificates or other instruments representing such additional shares,
securities, warrants, options or other rights and any interest of Pledgor in the
entries on the books of any financial intermediary pertaining to such additional
shares, and all dividends, cash, warrants, rights, instruments and other
property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such additional
shares, securities, warrants, options or other rights;
(c) all shares of, and all securities convertible into and warrants,
options and other rights to purchase or otherwise acquire, stock of any Person
that, after the date of this Agreement, becomes, as a result of any occurrence,
a direct Subsidiary of Pledgor (which shares shall be deemed to be part of the
Pledged Shares), the certificates or other instruments representing such shares,
securities, warrants, options or other rights and any interest of Pledgor in the
entries on the books of any financial intermediary pertaining to such shares,
and all dividends, cash, warrants, rights, instruments and other property or
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such shares, securities, warrants,
options or other rights;
(d) to the extent not covered by clauses (a) through (d) above, all
proceeds of any or all of the foregoing Pledged Collateral. For purposes of this
Agreement, the term "PROCEEDS" includes whatever is receivable or received when
Pledged Collateral or proceeds are sold, exchanged, collected or otherwise
disposed of, whether such disposition is voluntary or involuntary, and includes
proceeds of any indemnity or guaranty payable to Pledgor or Secured Party from
time to time with respect to any of the Pledged Collateral.
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement secures, and the
Pledged Collateral is collateral security for, the prompt payment or performance
in full when due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including the payment of amounts
that would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. ss.362(a)), of all obligations and
liabilities of every nature of Pledgor now or hereafter existing under or
arising out of or in connection with the Guaranty and all extensions or renewals
thereof, whether for principal, interest (including interest that, but for the
filing of a petition in bankruptcy with respect to Company, would accrue on such
obligations, whether or not a claim is allowed against Company for such interest
in the related bankruptcy proceeding), reimbursement of amounts drawn under
Letters of Credit, fees, expenses, indemnities or otherwise, whether voluntary
or involuntary, direct or indirect, absolute or contingent, liquidated or
unliquidated, whether or not jointly owed with others, and whether or not from
time to time decreased or extinguished and later increased, created or incurred,
and all or any portion of such obligations or liabilities that are paid, to the
extent all or any part of such payment is avoided or recovered directly or
indirectly from Secured Party or any Lender as a preference, fraudulent transfer
or otherwise, and all obligations of every nature of Pledgor now or hereafter
existing under this Agreement (all such obligations of Pledgor being the
"SECURED OBLIGATIONS").
SECTION 3. DELIVERY OF PLEDGED COLLATERAL. All certificates or instruments
representing or evidencing the Pledged Collateral shall be delivered to and held
by or on behalf of Secured Party pursuant hereto and shall be in suitable form
for transfer by delivery or, as applicable, shall be accompanied by Pledgor's
endorsement, where necessary, or duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to Secured Party.
Upon the occurrence and during the continuation of an Event of Default (as
defined in the Credit Agreement), Secured Party shall have the right, without
notice to Pledgor, to transfer to or to register in the name of Secured Party or
any of its nominees any or all of the Pledged Collateral, subject only to the
revocable rights specified in Section 7(a); PROVIDED that, except in the case of
a bankruptcy default or an acceleration of the Loan, no such transfer or
registration shall be made without notice to Pledgor. In addition, Secured Party
shall have the right at any time to exchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or instruments of
smaller or larger denominations.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Pledgor represents and warrants
as follows:
(a) DUE AUTHORIZATION, ETC. OF PLEDGED COLLATERAL. All of the Pledged
Shares have been duly authorized and validly issued and are fully paid and
non-assessable.
(b) DESCRIPTION OF PLEDGED COLLATERAL. The Pledged Shares constitute all of
the issued and outstanding shares of stock of each issuer thereof organized
under the laws of a state of the United States (each a "U.S. ISSUER") and 65% of
the issued and outstanding shares of stock of each other issuer thereof (each a
"NON-U.S. ISSUER"), and there are no outstanding warrants, options or other
rights to purchase, or other agreements outstanding with respect to, or property
that is now or hereafter convertible into, or that requires the issuance or sale
of, any Pledged Shares.
(c) OWNERSHIP OF PLEDGED COLLATERAL. Pledgor is the legal, record and
beneficial owner of the Pledged Collateral free and clear of any Lien except for
the security interest created by this Agreement.
SECTION 5. TRANSFERS AND OTHER LIENS; ADDITIONAL PLEDGED COLLATERAL; ETC.
Pledgor shall:
(a) not, except as expressly permitted by the Credit Agreement, (i) sell,
assign (by operation of law or otherwise) or otherwise dispose of, or grant any
option with respect to, any of the Pledged Collateral, (ii) create or suffer to
exist any Lien upon or with respect to any of the Pledged Collateral, except for
the security interest under this Agreement, or (iii) permit any issuer of
Pledged Shares to merge or consolidate unless all the outstanding capital stock
of the surviving or resulting corporation is, upon such merger or consolidation,
pledged hereunder and no cash, securities or other property is distributed in
respect of the outstanding shares of any other constituent corporation; PROVIDED
that in the event Pledgor makes an Asset Sale permitted by the Credit Agreement
and the assets subject to such Asset Sale are Pledged Shares, Secured Party
shall release the Pledged Shares that are the subject of such Asset Sale to
Pledgor free and clear of the lien and security interest under this Agreement
concurrently with the consummation of such Asset Sale; PROVIDED, FURTHER that,
as a condition precedent to such release, Secured Party shall have received
evidence satisfactory to it that arrangements satisfactory to it have been made
for delivery to Secured Party of the Net Asset Sale Proceeds of such Asset Sale;
(b) (i) cause each issuer of Pledged Shares not to issue any stock or other
securities in addition to or in substitution for the Pledged Shares issued by
such issuer, except to Pledgor, (ii) pledge hereunder, immediately upon its
acquisition (directly or indirectly) thereof, any and all additional shares of
stock or other securities of each issuer of Pledged Shares except to the extent
that such pledge would result in the pledge of more than 65% of the stock of a
Non-U.S. Issuer, and (iii) pledge hereunder, immediately upon its acquisition
(directly or indirectly) thereof, any and all shares of stock of any Person
that, after the date of this Agreement, becomes, as a result of any occurrence,
a direct Subsidiary of Pledgor unless such subsidiary is a Non-U.S. Issuer, in
which case no more than 65% of such shares of stock shall be pledged hereunder;
(c) promptly deliver to Secured Party all written notices received by it
with respect to the Pledged Collateral; and
(d) pay promptly when due all taxes, assessments and governmental charges
or levies imposed upon, and all claims against, the Pledged Collateral, except
to the extent the validity thereof is being contested in good faith; PROVIDED
that Pledgor shall in any event pay such taxes, assessments, charges, levies or
claims not later than five days prior to the date of any proposed sale of the
Pledged Collateral under any judgment, writ or warrant of attachment entered or
filed against Pledgor or any of the Pledged Collateral as a result of the
failure to make such payment.
SECTION 6. FURTHER ASSURANCES; PLEDGE AMENDMENTS.
(a) Pledgor agrees that from time to time, at the expense of Pledgor,
Pledgor will promptly execute and deliver all further instruments and documents,
and take all further action, that may be necessary or desirable, or that Secured
Party may request, in order to perfect and protect any security interest granted
or purported to be granted hereby or to enable Secured Party to exercise and
enforce its rights and remedies hereunder with respect to any Pledged
Collateral. Without limiting the generality of the foregoing, Pledgor will: (i)
execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as Secured Party may reasonably request, in order to perfect and
preserve the security interests granted or purported to be granted hereby and
(ii) at Secured Party's reasonable request, appear in and defend any action or
proceeding that may affect Pledgor's title to or Secured Party's security
interest in all or any part of the Pledged Collateral.
(b) Pledgor further agrees that it will, upon obtaining any additional
shares of stock or other securities required to be pledged hereunder as provided
in Section 5(b) or (c), promptly (and in any event within 30 days) deliver to
Secured Party a Pledge Amendment, duly executed by Pledgor, in substantially the
form of SCHEDULE II annexed hereto (a "PLEDGE AMENDMENT"), in respect of the
additional Pledged Shares to be pledged pursuant to this Agreement. Pledgor
hereby authorizes Secured Party to attach each Pledge Amendment to this
Agreement and agrees that all Pledged Shares listed on any Pledge Amendment
delivered to Secured Party shall for all purposes hereunder be considered
Pledged Collateral; PROVIDED that the failure of Pledgor to execute a Pledge
Amendment with respect to any additional Pledged Shares pledged pursuant to this
Agreement shall not impair the security interest of Secured Party therein or
otherwise adversely affect the rights and remedies of Secured Party hereunder
with respect thereto.
SECTION 7. VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Event of Default shall have occurred and be continuing:
(i) Pledgor shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Pledged Collateral or any part thereof for
any purpose not inconsistent with the terms of this Agreement or the Credit
Agreement in a manner which would not have a material adverse effect on the
value of the Pledged Collateral or any part thereof. It is understood, however,
that neither (A) the voting by Pledgor of any Pledged Shares for or Pledgor's
consent to the election of directors at a regularly scheduled annual or other
meeting of stockholders or with respect to incidental matters at any such
meeting nor (B) Pledgor's consent to or approval of any action otherwise
permitted under this Agreement and the Credit Agreement shall be deemed
inconsistent with the terms of this Agreement or the Credit Agreement within the
meaning of this Section 7(a)(i).
(ii) Pledgor shall be entitled to receive and retain, and to utilize free
and clear of the lien of this Agreement, any and all dividends paid in respect
of the Pledged Collateral; provided, HOWEVER, that any and all
(A) dividends paid or payable other than in cash in respect of, and
instruments and other property received, receivable or otherwise distributed in
respect of, or in exchange for, any Pledged Collateral,
(B) dividends and other distributions paid or payable in cash in respect of
any Pledged Collateral in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital surplus or
paid-in-surplus, and
(C) cash paid, payable or otherwise distributed in exchange for any Pledged
Collateral, shall be, and shall forthwith be delivered to Secured Party to hold
as, Pledged Collateral and shall, if received by Pledgor, be received in trust
for the benefit of Secured Party, be segregated from the other property or funds
of Pledgor and be forthwith delivered to Secured Party as Pledged Collateral in
the same form as so received (with all necessary endorsements); and
(iii) Secured Party shall promptly execute and deliver (or cause to be
executed and delivered) to Pledgor all such dividend payment orders and other
instruments as Pledgor may from time to time reasonably request for the purpose
of enabling Pledgor to receive the dividends which it is authorized to receive
and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuation of an Event of Default:
(i) upon written notice from Secured Party to Pledgor, all rights of
Pledgor to exercise the voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to Section 7(a)(i) shall cease, and
all such rights shall thereupon become vested in Secured Party who shall
thereupon have the sole right to exercise such voting and other consensual
rights;
(ii) all rights of Pledgor to receive the dividends which it would
otherwise be authorized to receive and retain pursuant to Section 7(a)(ii) shall
cease, and all such rights shall thereupon become vested in Secured Party who
shall thereupon have the sole right to receive and hold as Pledged Collateral
such dividends; and
(iii) all dividends which are received by Pledgor contrary to the
provisions of paragraph (ii) of this Section 7(b) shall be received in trust for
the benefit of Secured Party, shall be segregated from other funds of Pledgor
and shall forthwith be paid over to Secured Party as Pledged Collateral in the
same form as so received (with any necessary endorsements).
(c) In order to permit Secured Party to exercise the voting and other
consensual rights which it may be entitled to exercise pursuant to Section
7(b)(i) and to receive all dividends and other distributions which it may be
entitled to receive under Section 7(a)(ii) or Section 7(b)(ii), (i) Pledgor
shall promptly execute and deliver (or cause to be executed and delivered) to
Secured Party all such proxies, dividend payment orders and other instruments as
Secured Party may from time to time reasonably request and (ii) without limiting
the effect of the immediately preceding clause (i), Pledgor hereby grants to
Secured Party an irrevocable proxy to vote the Pledged Shares and to exercise
all other rights, powers, privileges and remedies to which a holder of the
Pledged Shares would be entitled (including giving or withholding written
consents of shareholders, calling special meetings of shareholders and voting at
such meetings), which proxy shall be effective, automatically and without the
necessity of any action (including any transfer of any Pledged Shares on the
record books of the issuer thereof) by any other Person (including the issuer of
the Pledged Shares or any officer or agent thereof), upon the occurrence of an
Event of Default and during the continuance thereof and which proxy shall only
terminate upon the payment in full of the Secured Obligations.
SECTION 8. SECURED PARTY APPOINTED ATTORNEY-IN-FACT. Pledgor hereby
irrevocably appoints Secured Party as Pledgor's attorney-in-fact, with full
authority in the place and stead of Pledgor and in the name of Pledgor, Secured
Party or otherwise, from time to time in Secured Party's discretion to take any
action and to execute any instrument that Secured Party may deem necessary or
advisable to accomplish the purposes of this Agreement, including filing one or
more financing or continuation statements, or amendments thereto, relative to
all or any part of the Pledged Collateral without the signature of Pledgor;
PROVIDED, that unless an Event of Default has occurred and is continuing,
Secured Party may not (i) receive, endorse and collect any instruments made
payable to Pledgor representing any dividend or other distribution in respect of
the Pledged Collateral or any part thereof; or (ii) file any claims or take any
action or institute any proceedings that Secured Party may deem necessary or
desirable for the collection of any of the Pledged Collateral or otherwise to
enforce the rights of Secured Party with respect to any of the Pledged
Collateral.
SECTION 9. SECURED PARTY MAY PERFORM. If Pledgor fails to perform any
agreement contained herein, Secured Party may itself perform, or cause
performance of, such agreement, and the expenses of Secured Party incurred in
connection therewith shall be payable by Pledgor under Section 14(b).
SECTION 10. STANDARD OF CARE. The powers conferred on Secured Party
hereunder are solely to protect its interest in the Pledged Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the exercise
of reasonable care in the custody of any Pledged Collateral in its possession
and the accounting for moneys actually received by it hereunder, Secured Party
shall have no duty as to any Pledged Collateral, it being understood that
Secured Party shall have no responsibility for (a) ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relating to any Pledged Collateral, whether or not Secured Party has or
is deemed to have knowledge of such matters, (b) taking any necessary steps
(other than steps taken in accordance with the standard of care set forth above
to maintain possession of the Pledged Collateral) to preserve rights against any
parties with respect to any Pledged Collateral, (c) taking any necessary steps
to collect or realize upon the Secured Obligations or any guarantee therefor, or
any part thereof, or any of the Pledged Collateral, or (d) initiating any action
to protect the Pledged Collateral against the possibility of a decline in market
value. Secured Party shall be deemed to have exercised reasonable care in the
custody and preservation of Pledged Collateral in its possession if such Pledged
Collateral is accorded treatment substantially equal to that which Secured Party
accords its own property consisting of negotiable securities.
SECTION 11. REMEDIES.
(a) If any Event of Default shall have occurred and be continuing, Secured
Party may exercise in respect of the Pledged Collateral, in addition to all
other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party on default under the Uniform
Commercial Code as in effect in any relevant jurisdiction (the "CODE") (whether
or not the Code applies to the affected Pledged Collateral), and Secured Party
may also in its sole discretion, without notice except as specified below, sell
the Pledged Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange or broker's board or at any of Secured Party's
offices or elsewhere, for cash, on credit or for future delivery, at such time
or times and at such price or prices and upon such other terms as Secured Party
may deem commercially reasonable, irrespective of the impact of any such sales
on the market price of the Pledged Collateral. Secured Party or any Lender may
be the purchaser of any or all of the Pledged Collateral at any such sale and
Secured Party, as agent for and representative of Lenders (but not any Lender or
Lenders in its or their respective individual capacities unless Requisite
Lenders shall otherwise agree in writing), shall be entitled, for the purpose of
bidding and making settlement or payment of the purchase price for all or any
portion of the Pledged Collateral sold at any such public sale, to use and apply
any of the Secured Obligations as a credit on account of the purchase price for
any Pledged Collateral payable by Secured Party at such sale. Each purchaser at
any such sale shall hold the property sold absolutely free from any claim or
right on the part of Pledgor, and Pledgor hereby waives (to the extent permitted
by applicable law) all rights of redemption, stay and/or appraisal which it now
has or may at any time in the future have under any rule of law or statute now
existing or hereafter enacted. Pledgor agrees that, to the extent notice of sale
shall be required by law, at least ten days' notice to Pledgor of the time and
place of any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. Secured Party shall not be obligated
to make any sale of Pledged Collateral regardless of notice of sale having been
given. Secured Party may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
Pledgor hereby waives any claims against Secured Party arising by reason of the
fact that the price at which any Pledged Collateral may have been sold at such a
private sale was less than the price which might have been obtained at a public
sale, even if Secured Party accepts the first offer received and does not offer
such Pledged Collateral to more than one offeree. If the proceeds of any sale or
other disposition of the Pledged Collateral are insufficient to pay all the
Secured Obligations, Pledgor shall be liable for the deficiency and the fees of
any attorneys employed by Secured Party to collect such deficiency.
(b) Pledgor recognizes that, by reason of certain prohibitions contained in
the Securities Act and applicable state securities laws, Secured Party may be
compelled, with respect to any sale of all or any part of the Pledged Collateral
conducted without prior registration or qualification of such Pledged Collateral
under the Securities Act and/or such state securities laws, to limit purchasers
to those who will agree, among other things, to acquire the Pledged Collateral
for their own account, for investment and not with a view to the distribution or
resale thereof. Pledgor acknowledges that any such private sales may be at
prices and on terms less favorable than those obtainable through a public sale
without such restrictions (including a public offering made pursuant to a
registration statement under the Securities Act) and, notwithstanding such
circumstances, Pledgor agrees that any such private sale shall be deemed to have
been made in a commercially reasonable manner and that Secured Party shall have
no obligation to engage in public sales and no obligation to delay the sale of
any Pledged Collateral for the period of time necessary to permit the issuer
thereof to register it for a form of public sale requiring registration under
the Securities Act or under applicable state securities laws, even if such
issuer would, or should, agree to so register it.
(c) If Secured Party determines to exercise its right to sell any or all of
the Pledged Collateral, upon written request, Pledgor shall and shall cause each
issuer of any Pledged Shares to be sold hereunder from time to time to furnish
to Secured Party all such information as Secured Party may request in order to
determine the number of shares and other instruments included in the Pledged
Collateral which may be sold by Secured Party in exempt transactions under the
Securities Act and the rules and regulations of the Securities and Exchange
Commission thereunder, as the same are from time to time in effect.
SECTION 12. APPLICATION OF PROCEEDS. All proceeds received by Secured Party
in respect of any sale of, collection from, or other realization upon all or any
part of the Pledged Collateral shall be applied as provided in subsection 2.4D
of the Credit Agreement.
SECTION 13. INDEMNITY AND EXPENSES.
(a) Pledgor agrees to indemnify Secured Party and each Lender from and
against any and all claims, losses and liabilities in any way relating to,
growing out of or resulting from this Agreement and the transactions
contemplated hereby (including enforcement of this Agreement), except to the
extent such claims, losses or liabilities result solely from Secured Party's or
such Lender's gross negligence or willful misconduct as finally determined by a
court of competent jurisdiction.
(b) Pledgor shall pay to Secured Party upon demand the amount of any and
all costs and expenses, including the reasonable fees and expenses of its
counsel and of any experts and agents, that Secured Party may incur in
connection with (i) the administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Pledged Collateral, (iii) the exercise or enforcement of any of the
rights of Secured Party hereunder, or (iv) the failure by Pledgor to perform or
observe any of the provisions hereof.
SECTION 14. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS. This Agreement
shall create a continuing security interest in the Pledged Collateral and shall
(a) remain in full force and effect until the payment in full of all Secured
Obligations, the cancellation or termination of the Commitments and the
cancellation or expiration of all outstanding Letters of Credit, (b) be binding
upon Pledgor, its successors and assigns, and (c) inure, together with the
rights and remedies of Secured Party hereunder, to the benefit of Secured Party
and its successors, transferees and assigns. Without limiting the generality of
the foregoing clause (c), but subject to the provisions of subsection 10.1 of
the Credit Agreement, any Lender may assign or otherwise transfer any Loans held
by it to any other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted to Lenders herein or otherwise.
Upon the payment in full of all Secured Obligations, the cancellation or
termination of the Commitments and the cancellation or expiration of all
outstanding Letters of Credit, the security interest granted hereby shall
terminate and all rights to the Pledged Collateral shall revert to Pledgor. Upon
any such termination Secured Party will, at Pledgor's expense, execute and
deliver to Pledgor such documents as Pledgor shall reasonably request to
evidence such termination and Pledgor shall be entitled to the return, upon its
request and at its expense, against receipt and without recourse to Secured
Party, of such of the Pledged Collateral as shall not have been sold or
otherwise applied pursuant to the terms hereof.
SECTION 15. SECURED PARTY AS AGENT.
(a) Secured Party has been appointed to act as Secured Party hereunder by
Lenders. Secured Party shall be obligated, and shall have the right hereunder,
to make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking any action (including the release or
substitution of Pledged Collateral), solely in accordance with this Agreement
and the Credit Agreement; PROVIDED that Secured Party shall exercise, or refrain
from exercising, any remedies provided for in Section 11 in accordance with the
instructions of Requisite Lenders.
(b) Secured Party shall at all times be the same Person that is Agent under
the Credit Agreement. Written notice of resignation by Agent pursuant to
subsection 9.5 of the Credit Agreement shall also constitute notice of
resignation as Secured Party under this Agreement; removal of Agent pursuant to
subsection 9.5 of the Credit Agreement shall also constitute removal as Secured
Party under this Agreement; and appointment of a successor Agent pursuant to
subsection 9.5 of the Credit Agreement shall also constitute appointment of a
successor Secured Party under this Agreement. Upon the acceptance of any
appointment as Agent under subsection 9.5 of the Credit Agreement by a successor
Agent, that successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring or removed Secured
Party under this Agreement, and the retiring or removed Secured Party under this
Agreement shall promptly (i) transfer to such successor Secured Party all sums,
securities and other items of Collateral held hereunder, together with all
records and other documents necessary or appropriate in connection with the
performance of the duties of the successor Secured Party under this Agreement,
and (ii) execute and deliver to such successor Secured Party such amendments to
financing statements, and take such other actions, as may be necessary or
appropriate in connection with the assignment to such successor Secured Party of
the security interests created hereunder, whereupon such retiring or removed
Secured Party shall be discharged from its duties and obligations under this
Agreement. After any retiring or removed Agent's resignation or removal
hereunder as Secured Party, the provisions of this Agreement shall inure to its
benefit as to any actions taken or omitted to be taken by it under this
Agreement while it was Secured Party hereunder.
SECTION 16. AMENDMENTS; ETC. No amendment, modification, termination or
waiver of any provision of this Agreement, and no consent to any departure by
Pledgor therefrom, shall in any event be effective unless the same shall be in
writing and signed by Secured Party and, in the case of any such amendment or
modification, by Pledgor. Any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given.
SECTION 17. NOTICES. Any notice or other communication herein required or
permitted to be given shall be in writing and may be personally served, telexed
or sent by telefacsimile or United States mail or courier service and shall be
deemed to have been given when delivered in person or by courier service, upon
receipt of telefacsimile or telex, or three Business Days after depositing it in
the United States mail with postage prepaid and properly addressed. For the
purposes hereof, the address of each party hereto shall be as set forth under
such party's name on the signature pages hereof or, as to either party, such
other address as shall be designated by such party in a written notice delivered
to the other party hereto.
SECTION 18. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No
failure or delay on the part of Secured Party in the exercise of any power,
right or privilege hereunder shall impair such power, right or privilege or be
construed to be a waiver of any default or acquiescence therein, nor shall any
single or partial exercise of any such power, right or privilege preclude any
other or further exercise thereof or of any other power, right or privilege. All
rights and remedies existing under this Agreement are cumulative to, and not
exclusive of, any rights or remedies otherwise available.
SECTION 19. SEVERABILITY. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
SECTION 20. HEADINGS. Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
SECTION 21. GOVERNING LAW; TERMS; RULES OF CONSTRUCTION. THIS AGREEMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT
TO THE EXTENT THAT THE CODE PROVIDES THAT THE PERFECTION OF THE SECURITY
INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PLEDGED
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
NEW YORK. Unless otherwise defined herein or in the Credit Agreement, terms used
in Articles 8 and 9 of the Uniform Commercial Code in the State of New York are
used herein as therein defined. The rules of construction set forth in
subsection 1.3 of the Credit Agreement shall be applicable to this Agreement
MUTATIS MUTANDIS.
SECTION 22. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST PLEDGOR ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY
EXECUTING AND DELIVERING THIS AGREEMENT, PLEDGOR, FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO
PLEDGOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 18;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO
CONFER PERSONAL JURISDICTION OVER PLEDGOR IN ANY SUCH PROCEEDING IN ANY SUCH
COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT SECURED PARTY RETAINS THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST PLEDGOR IN THE
COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SECTION 23 RELATING TO JURISDICTION
AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE
UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
SECTION 23. WAIVER OF JURY TRIAL. PLEDGOR AND SECURED PARTY HEREBY AGREE TO
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver is
intended to be all-encompassing of any and all disputes that may be filed in any
court and that relate to the subject matter of this transaction, including
contract claims, tort claims, breach of duty claims, and all other common law
and statutory claims. Pledgor and Secured Party each acknowledge that this
waiver is a material inducement for Pledgor and Secured Party to enter into a
business relationship, that Pledgor and Secured Party have already relied on
this waiver in entering into this Agreement and that each will continue to rely
on this waiver in their related future dealings. Pledgor and Secured Party
further warrant and represent that each has reviewed this waiver with its legal
counsel, and that each knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL
WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 24 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. In the event of
litigation, this Agreement may be filed as a written consent to a trial by the
court.
SECTION 24. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
IN WITNESS WHEREOF, Pledgor and Secured Party have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
[NAME OF PLEDGOR]
By: __________________________
Title:
Notice Address: ___________________
BANKERS TRUST COMPANY
By: __________________________
Title:
Notice Address: __________________
<PAGE>
SCHEDULE I
Attached to and forming a part of the Pledge Agreement dated as of April 1,
1998 between _______________, as Pledgor, and Bankers Trust Company, as Secured
Party.
Part A
Class of Stock Certi- Par Number of
STOCK ISSUER STOCK FICATE NOS. VALUE SHARES
<PAGE>
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated ____________, 199__, is delivered pursuant to
Section 6(b) of the Pledge Agreement referred to below. The undersigned hereby
agrees that this Pledge Amendment may be attached to the Pledge Agreement dated
April 1, 1998, between the undersigned and Bankers Trust Company, as Secured
Party (the "PLEDGE AGREEMENT," capitalized terms defined therein being used
herein as therein defined), and that the Pledged Shares listed on this Pledge
Amendment shall be deemed to be part of the Pledged Shares and shall become part
of the Pledged Collateral and shall secure all Secured Obligations.
[NAME OF PLEDGOR]
By: ___________________________
Title:
Class of Stock Certi- Par Number of
STOCK ISSUER STOCK FICATE NOS. VALUE SHARES
<PAGE>
EXHIBIT XV
[FORM OF SOLVENCY CERTIFICATE]
This SOLVENCY CERTIFICATE (this "CERTIFICATE") is delivered in connection
with the Credit Agreement dated as of April 1, 1998 (the "CREDIT AGREEMENT")
among Express Scripts, Inc., a Delaware corporation (the "COMPANY"), the
financial institutions party thereto ("LENDERS") and Bankers Trust Company, as
administrative agent for Lenders ("AGENT"). Capitalized terms used herein
without definition have the same meanings as in the Credit Agreement.
A. I am, and since January 5, 1998, have been, the duly qualified and
acting chief financial officer of the Company. In such capacity I am the senior
financial officer of the Company and I have participated actively in the
management of the financial affairs of the Company and am familiar with its
financial statements. I have, together with other officers of Company, acted on
behalf of Company in connection with the negotiation of the Credit Agreement and
I am familiar with the terms and conditions thereof.
B. I have carefully reviewed the contents of this Certificate, and I have
conferred with counsel for Company for the purpose of discussing the meaning of
its contents.
C. In connection with preparing for the consummation of the transactions
and financing contemplated by the Credit Agreement (the "PROPOSED
TRANSACTIONS"), I have participated in the preparation of, and I have reviewed,
pro forma projections of net income for Company and its Subsidiaries for the
fiscal years of Company ending December 31, 1998 through December 31, 2002,
inclusive (the "PROJECTED FINANCIAL STATEMENTS"). The Projected Financial
Statements, attached hereto as EXHIBIT A, give effect to the consummation of the
Proposed Transactions and assume that the debt obligations of Company will be
paid from the cash flow generated by the operations of Company and other cash
resources. The Projected Financial Statements were prepared on the basis of
information available at December 31, 1997. I know of no facts that have
occurred since such date that would lead me to believe that the Projected
Financial Statements are inaccurate in any material respect. The Projected
Financial Statements do not reflect any potential material, adverse changes in
general business conditions, or any potential changes in income tax laws.
D. I have also participated in the preparation of, and I have reviewed, the
estimated pro forma summary balance sheet of Company and its Subsidiaries (the
"ESTIMATED PRO FORMA BALANCE SHEET") as of March 31, 1998, giving effect to the
Proposed Transactions. The Estimated Pro Forma Balance Sheet is attached hereto
as EXHIBIT B.
E. In connection with the preparation of the Projected Financial
Statements, I have made such investigations and inquiries as I have deemed
necessary and prudent therefor and, specifically, have relied on historical
information with respect to revenues, expenses and other relevant items supplied
by the supervisory personnel of Company directly responsible for the various
operations involved. The material assumptions upon which the Projected Financial
Statements are based are stated therein. Although any assumptions and any
projections by necessity involve uncertainties and approximations, I believe,
based on my discussions with other members of management, that the assumptions
on which the Project Financial Statements are based are reasonable. Based
thereon, I believe that the projections for Company, taken as a whole, reflected
in the Projected Financial Statements provide reasonable estimations of future
performance, subject, as stated above, to the uncertainties and approximations
inherent in any projections. I do not, however, represent that the future
performance of the Company will in fact equal or exceed that shown in the
Projected Financial Statements.
F. Based on the foregoing I have reached the following conclusions:
1. The Company is not now, nor will the incurrence of the Obligations under
the Credit Agreement and the incurrence of the other obligations contemplated by
the Proposed Transactions render the Company "insolvent", defined as having a
present fair value of assets which is less than the amount that will be required
to pay the probable liability on existing debts and those obligations incurred
upon consummation of the Proposed Transactions, as they become absolute and
matured or the incurrence of debts and other obligations the effect of which
would be to leave the Company with unreasonably small capital with which to
engage in its businesses. "Debts" is defined as including any legal liability,
whether matured or unmatured, liquidated or unliquidated, absolute, fixed or
contingent.
2. By the incurrence of the Obligations under the Credit Agreement and the
incurrence of the other obligations contemplated by the Proposed Transactions,
Company will not incur debts beyond its ability to pay as such debts mature.
This conclusion is based in part on the Projected Financial Statements, which
demonstrate that Company will have positive cash flow after paying all of its
scheduled anticipated indebtedness (including scheduled payments under the
Credit Agreement, the other obligations contemplated by the Proposed
Transactions and other permitted indebtedness). I have concluded that the
realization of current assets in the ordinary course of business will be
sufficient to pay recurring current debt and short-term and long-term debt
service as such debts mature, and that the cash flow (including earnings plus
non-cash charges to earnings) will be sufficient to provide cash necessary to
repay the Loans and other Obligations under the Credit Agreement, the other
obligations contemplated by the Proposed Transactions and other long-term
indebtedness as such debt matures.
3. The incurrence of the Obligations under the Credit Agreement and the
incurrence of the other obligations contemplated by the Proposed Transactions
will not leave Company with property remaining in its hands constituting
"unreasonably small capital." In reaching this conclusion I understand that
"unreasonably small capital" depends upon the nature of the particular business
or businesses conducted or to be conducted and I have reached my conclusion
based on the needs and anticipated needs for capital of the businesses conducted
or anticipated to be conducted by Company in light of the Projected Financial
Statements and available credit capacity.
4. The Company has not executed the Credit Agreement or any documents
mentioned therein, or made any transfer or incurred any obligations thereunder,
with actual intent to hinder, delay or defraud either present or future
creditors.
5. The conclusions expressed above reflect my current best judgment
regarding the matters stated. Such conclusions shall not, however, be deemed to
constitute representations or warranties that such matters are, or will be, true
in fact.
I understand that Agent and Lenders are relying on the truth and accuracy
of the foregoing in connection with the extension of credit to Company pursuant
to the Credit Agreement.
I represent the foregoing information to be, to the best of my knowledge
and belief, true and correct and execute this Certificate this _____ day of
April, 1998.
EXPRESS SCRIPTS, INC.
By: _______________________________
Name:
Chief Financial Officer
<PAGE>
SCHEDULE 2.01
<TABLE>
<CAPTION>
LENDER TERM LOAN REVOLVING LOAN PERCENTAGE OF
COMMITMENT COMMITMENT TOTAL
<S> <C> <C> <C>
- --------------------------------------------------------------------------------
ABN AMRO $ 12,272,727.27 $ 2,727,272.73 .03409090909091
Bankers Trust Company $ 29,454,545.45 $ 6,545,454.55 .08181818181818
Banque National Paris $ 12,272,727.27 $ 2,727,272.73 .03409090909091
Banque Paribas $ 12,272,727.27 $ 2,727,272.73 .03409090909091
Bayer Verein $ 23,727,272.73 $ 5,272,727.27 .06590909090909
City National Bank $ 12,272,727.27 $ 2,727,272.73 .03409090909091
Credit Agricole Indosuez $ 23,727,272.73 $ 5,272,727.27 .06590909090909
Fleet National Bank $ 12,272,727.27 $ 2,727,272.73 .03409090909091
FNB Chicago $ 24,545,454.56 $ 5,454,545.45 .06818181818182
Fuji Bank $ 23,727,272.73 $ 5,272,727.27 .06590909090909
LTCB Japan, Ltd. $ 12,272,727.27 $ 2,727,272.73 .03409090909091
Mellon Bank $ 12,272,727.27 $ 2,727,272.73 .03409090909091
Mercantile Bank $ 29,454,545.45 $ 6,545,454.55 .08181818181818
NationsBank $ 23,727,272.73 $ 5,272,727.27 .06590909090909
PNC Bank, National Bank $ 12,272,727.27 $ 2,727,272.73 .03409090909091
Rabobank $ 23,727,272.73 $ 5,272,727.27 .06590909090909
Royal Bank of Scotland $ 12,272,727.27 $ 2,727,272.73 .03409090909091
Sumitomo Bank, Ltd. $ 23,727,272.73 $ 5,272,727.27 .06590909090909
Union Bank of California,
N.A. $ 23,727,272.73 $ 5,272,727.27 .06590909090909
================================================================================
TOTAL $ 360,000,000.00 $80,000,000.00 1.0
</TABLE>
<PAGE>
SCHEDULE 5.1
SUBSIDIARIES
<TABLE>
<CAPTION>
JURISDICTION OF
NAME INCORPORATION OWNERSHIP INTEREST
<S> <C> <C>
_______________________________________________________________________________
IVTx, Inc. Delaware ESI - 100%
IVTx of Dallas, Inc. Texas ESI - 100%
IVTx of Houston, Inc. Texas ESI - 100%
PhyNet, Inc. Delaware ESI - 100%
Express Scripts Vision
Corporation Delaware ESI - 100%
ESI Canada Holdings, Inc. New Brunswick ESI - 100%
ESI Canada, Inc. New Brunswick ESI Canada
Holdings, Inc. - 100%
Value Health, Inc. ("VHI") Delaware ESI - 100%
Managed Prescription
Network, Inc. Delaware ESI - 100%
Great Plains Reinsurance
Company Arizona ESI - 100%
Practice Patterns Science, Inc. Delaware ESI - 80%
(fully-diluted basis)
Cost Containment Corporation
of America Pennsylvania VHI - 100%
ValueRx, Inc. ("VRx") Delaware VHI - 100%
Prescription Drug Service
West, Inc. Arizona VHI - 100%
ValueRx of Iowa, Inc. Illinois VHI - 100%
RxNet, Inc. of California California VHI - 100%
Prescription Drug Service, Inc. New York VHI - 100%
Diagnostek, Inc. ("DI") Delaware VHI - 100%
Medintell Systems Corporation Minnesota VHI - 100%
ValueRx Pharmacy Program,
Inc. ("Program") Michigan VRx - 100%
ValueRx of Michigan, Inc. Michigan VRx - 100%
Diagnostek Pharmacy Services,
Inc. ("DPS") Delaware DI - 100%
Diagnostek Pharmacy, Inc. Delaware DI - 100%
Denali Associates, Inc. Ohio Program - 100%
ValueRx Northeast, Inc. Delaware Program - 100%
MedCounter, Inc. Minnesota Program - 100%
Health Care Services, Inc. Pennsylvania DPS - 100%
Diagnostek of Springfield, Inc. Pennsylvania DPS - 100%
IPH, Inc. Delaware DPS - 100%
MHI, Inc. Nevada IPH, Inc. - 100%
</TABLE>
<PAGE>
SCHEDULE 5.8
MATERIAL CONTRACTS
1. Stock Purchase Agreement by and among Columbia/HCA Healthcare
Corporation, VH Holdings, Inc., Galen Holdings, Inc. and Company, dated as of
February 19, 1998 (the "Stock Purchase Agreement").
2. Stock Agreement (Initial Shares) entered into as of December 31, 1995,
between Company and American Healthcare Purchasing Partners, L.P.
3. Stock Agreement (Membership Shares) entered into as of December 31,
1995, between Company and American Healthcare Purchasing Partners, L.P.
4. Amended and Restated Agreement entered into as of March 29, 1995,
between Company and Sanus Corp. Health Systems.
5. Amended and Restated Managed Prescription Drug Program Agreements
entered into as of March 29, 1995, between Company and each of the following
parties: Health Plus, Inc., Sanus Health Plan of New Jersey, Inc., Sanus Texas
Health Plan, Inc., Sanus/New York Life Health Plan, Inc., Sanus Health Plan of
Illinois, Inc. and Sanus Health Plan of Greater New York, Inc.
6. Managed Prescription Drug Program Agreement dated as of May 1, 1996 by
and between Company and NYLCare Health Plans of Maine, Inc.
7. Managed Prescription Drug Program Agreement dated as of December 31,
1995 by and between Company and WellPath Community Health Plan, Inc.
8. Amended and Restated Vision Program Sponsor Agreements entered into as
of March 29, 1995, between Company and each of the following parties: Health
Plus, Inc., Sanus Health Plan of New Jersey, Inc., Sanus Texas Health Plan,
Inc., Sanus/New York Life Health Plan, Inc., Sanus Health Plan of Illinois, Inc.
and Sanus Health Plan of Greater New York, Inc.
9. Amended and Restated Infusion Therapy Agreements entered into as of
March 29, 1995, between Company and each of the following parties: Health Plus,
Inc., Sanus Texas Health Plan, Inc., Sanus/New York Life Health Plan, Inc., and
Sanus Health Plan of Illinois, Inc.
10. Infusion Therapy Agreements entered into as of March 29, 1995, between
Company and each of the following parties: Sanus Health Plan of New Jersey, Inc.
and Sanus Health Plan of Greater New York, Inc.
11. First Amendment to Vision Program Sponsor Agreement entered into as of
September 1, 1995, between Company and Sanus Health Plan of New Jersey, Inc.
12. First Amendment to the Amended and Restated Vision Program Sponsor
agreement entered into as of November 1, 1995, between Company and Sanus Texas
Health Plan, Inc.
13. Agreement dated January 1, 1989, as amended May 31, 1989, and January
1, 1991, between Company and New York Life Insurance Company.
14. Third Amendment dated as of July 30, 1993, to the Agreement dated as of
January 1, 1989, by and between Company and New York Life Insurance Company.
15. Amended and Restated Managed Prescription Drug Program Agreement
entered into as of September 1, 1995, between Company and New York Life
Insurance Company.
16. First Amendment to Amended and Restated Managed Prescription Drug
Program Agreement and Consent to Assignment dated as of January 1, 1997, by and
between Company, New York Life Insurance Company and NYLCare Health Plans, Inc.
17. Quota-Share Reinsurance Agreement executed as of August 15, 1994,
between New York Life Insurance Company and Great Plains Reinsurance Company.
18. Amendment No. 1 to Quota-Share Reinsurance Agreement dated as of
September 13, 1994, between New York Life Insurance Company and Great Plains
Reinsurance Company.
19. Joint Research Agreement dated June 28, 1994, by and between Company,
Sanus Corp. Health Systems and Schering Corporation.
20. Amendment Number Four to the Home Infusion Therapy Services Agreement
made and entered into as of November 15, 1993, by and between IVTx of Houston,
Inc. and Sanus Preferred Physicians, Inc.
21. Letter Agreement dated April 1, 1992, between IVTx of Houston, Inc. and
Sanus Preferred Physicians, Inc.
22. Affiliate Provider Participation Agreement dated April 1, 1992, as
amended November 25, 1992, between IVTx of Dallas, Inc. and Sanus Preferred
Physicians, Inc.
23. Amendment Two to the Sanus Preferred Physicians, Inc. Home Infusion
Therapy Services Agreement entered into as of May 1, 1993, between IVTx of
Dallas, Inc. and Sanus Preferred Physicians, Inc.
24. Amendment Three to the Home Infusion Therapy Services Agreement entered
into as of June 1, 1993, between IVTx of Dallas, Inc. and Sanus Preferred
Physicians, Inc.
25. Amendment Four to the Home Infusion Therapy Services Agreement entered
into as of July 1, 1993, by and between IVTx of Dallas, Inc. and Sanus Preferred
Physicians, Inc.
26. Home Infusion Therapy Services Agreement dated May 1, 1991, between
Sanus/Passport Preferred Services, Inc. and Company.
27. Amendment One to the Home Infusion Therapy Services Agreement entered
into as of July 1, 1993, by and between Company and Sanus/Passport Preferred
Services, Inc.
28. Amendment Two to the Home Infusion Therapy Services Agreement entered
into as of July 1, 1993, by and between Company and Sanus/Passport Preferred
Services, Inc.
29. Amendment Four to the Home Infusion Therapy Services Agreement entered
into as of July 1, 1993, by and between Company and Sanus/Passport Preferred
Services, Inc.
30. Agreement dated May 7, 1992, between Company and New York Life
Insurance Company.
31. Affiliate Provider Participation Agreement dated September 1, 1991,
between IVTx, Inc. and Sanus Preferred Physicians, Inc.
32. Amendment dated January 1993, to the Affiliate Provider Participation
Agreement dated September 1, 1991, between IVTx and Sanus Preferred Physicians,
Inc.
33. Amendment Three to the Sanus Preferred Physicians, Inc. Home Infusion
Therapy Services Agreement entered into as of May 1, 1993, between IVTx of
Dallas, Inc. and Sanus Preferred Physicians, Inc.
34. Lease Agreement dated March 3, 1992, between Riverport, Inc. and
Douglas Development Company--Irvine Partnership in commendam and Company.
35. First Amendment to Lease dated as of December 29, 1992, between
Sverdrup/MDRC Joint Venture and Company.
36. Second Amendment to Lease dated as of May 28, 1993, between
Sverdrup/MDRC Joint Venture and Company.
37. Third Amendment to Lease entered into as of October 15, 1993, by and
between Sverdrup/MDRC Joint Venture and Company.
38. Fourth Amendment to Lease dated as of March 24, 1994, by and between
Sverdrup/MDRC Joint Venture and Company.
39. Fifth Amendment to Lease made and entered into June 30, 1994, between
Sverdrup/MDRC Joint Venture and Company.
40. Sixth Amendment to Lease made and entered into January 31, 1995,
between Sverdrup/MDRC Joint Venture and Company.
41. Single-Tenant Lease-Net entered into as of June 30, 1993, between James
M. Chamberlain, Trustee of Chamberlain Family Trust dated September 21, 1979,
and Company.
42. First Amendment to Single-Tenant Lease-Net entered into as of November
12, 1993, by and between James M. Chamberlain, Trustee of Chamberlain Family
Trust, and Company.
43. Earth City Industrial Office/Warehouse Lease Agreement dated as of
August 19, 1996, by and between Company and Louis Siegfri.
44. Revolving Loan Agreement dated as of May 21, 1993, between Mercantile
Bank of St. Louis N. A. and Company.
45. Amendment to Revolving Loan Agreement made as of May 31, 1994, between
Company and Mercantile Bank of St. Louis N.A.
46. Second Amendment to Revolving Loan Agreement made as of May 30, 1995,
between Company and Mercantile Bank of St. Louis N.A.
47. Third Amendment to Revolving Loan Agreement made as of May 29, 1996, by
and between Company and Mercantile Bank of St. Louis Nation.
48. Fourth Amendment to Revolving Loan Agreement made as of May 29, 1997,
by and between Company and Mercantile Bank National Association, formerly known
as Mercantile Bank of St. Louis National Association.
49. Employment Agreement dated April 30, 1992, between Company and Barrett
A. Toan.
50. Letter Agreement amending Employment Agreement dated February 28, 1996,
from Company to Barrett A. Toan.
51. Form of Severance Agreement dated as of January 27, 1998, between
Company and each of the following individuals: Stuart L. Bascomb, Thomas M.
Boudreau, Robert W. Davis, Linda L. Logsdon, David A. Lowenberg, and George Paz.
52. Agreement for License of Software Products and Maintenance Services
dated December 18, 1992 between Company and ComCoTec, Inc. 53. Software Schedule
Agreement dated August 15, 1990 between Company and General Computer
Corporation. 54. Data Management Services Agreement dated December 19, 1996
between ValueRx Pharmacy Programs, Inc. and Astra USA, Inc.
55. Agreement between Health Care Services, inc. (Pharmacists) and Service
Employees International, Local No. 36, March 1, 1995 to February 28, 1998 and
related trust agreements of the SEIU Local 36 Health and Welfare Plan and the
Local 36 pension fund. Negotiations with the union representing pharmacists and
pharmacist technicians relating to the renewal or extension of this agreement
are underway.
56. Agreement between Health Care Services, Inc. (Pharmacy Technicians,
Production Clerks and Data Entry Employees) and Service Employees International
Union, Local No. 36, March 1, 1995 to February 28, 1998 and related trust
agreements of the SEIU Local 36 Health and Welfare Plan and the Local 36 pension
fund.
57. Agreement between ValueRx Pharmacy Program, Inc. and United Food and
Commercial Workers Union, Local No. 1564, July 2, 1996 to July 1, 1999.
58. Agreement between Health Care Services, Inc. and United Food and
Commercial Workers Union, Local No. 1564, October 1, 1997 to September 30, 2000,
and related participation agreement between ValueRx PPI and the Trustees of the
New Mexico UFCW Unions and Employers Health and Welfare Trust.
59. Agreement between ValueRx Pharmacy Program, Inc. and United Automobile,
Aerospace and Agricultural Implement Workers of America, Local No. 600, December
16, 1995 to December 15, 1998.
60. Agreement between ValueRx Pharmacy Program, Inc. (Pharmacists) and
United Food and Commercial Workers Union Local 1564 effective September 1, 1997
and related participation agreement with the New Mexico UFCW Unions and
Employers Health and Welfare Trust.
61. Maintenance Service Agreement between ValueRx, Inc. and Pyramid
Technology Corporation (Agreement No. MYA-95-007 dated, at the bottom,
10/01/94).
62. Product Services Agreement between ValueRx and Tandem Computers
Incorporated (dated, at the bottom, 11/14/95).
63. Information Technology Services Agreement dated November 15, 1996
between ValueRx, Inc. and Perot Systems Corporation.
64. Network MCE One Special Customer Arrangement between ValueRx, Inc. and
MCI Telecommunications Corporation.
65. System Purchase and/or Maintenance Agreement between ValueRx, Inc. and
Health Business Systems, Inc.
66. The Americas Standard Support Agreement with Informix Software, Inc.
(dated, at the bottom, 07/08/93).
67. Addendum to Lawson Software Non-Exclusive License Agreement between
ValueRx Pharmacy, Inc. and Lawson Software dated August 30, 1996.
68. Service Agreement between ValueRx and Digital Equipment Corp dated
04/01/97 (AdminCC: 774; 2140/198).
69. End-User License Agreement between Health Care Services and Transcomm
Data Systems Incorporated, dated October 17, 1986.
<PAGE>
SCHEDULE 7.1
INDEBTEDNESS
1. Agreement for Loan of Minnesota Investment Fund dated December 5, 1997
by and between the City of Plymouth and ValueRx Pharmacy Program, Inc. in the
original principal amount of $500,000.
<PAGE>
SCHEDULE 7.2
PERMITTED LIENS
1. UCC Liens:
<TABLE>
<CAPTION>
ENTITY FILING INFO SECURED PARTY COLLATERAL
<S> <C> <C> <C>
Express Scripts, Inc. AZ Sec/State Leasetec Corporation Leased Equipment
#866921 Leasetec Systems Credit Div.
2/20/96 75 Second Avenue
Needham Heights, MA 02194
MO Sec/State Mirex Corporation Leased Equipment
#2271993 5317 Mirex Drive
6/4/93 St. Louis, MO 63119
MO Sec/State Pitney Bowes Credit Corp. Leased Equipment
#2331596 201 Merritt Seven
11/15/93 Norwalk, CT 06856
MO Sec/State Mirex Corporation Leased Equipment
#2362339 5317 Mirex Drive
St. Louis, MO 63119
MO Sec/State Mirex Corporation Leased Equipment
#2362340 5317 Mirex Drive
1/31/94 St. Louis, MO 63119
MO Sec/State Mirex Corporation Leased Equipment
#2362346 5317 Mirex Drive
1/31/94 St. Louis, MO 63119
MO Sec/State Eaton Financial Corporation Leased Equipment
#2442806 550 Cochituate Road
8/17/94 P. O. Box 9104
Farmingham, MA 01701
MO Sec/State Leasetec Systems Credit Corp. Leased Equipment
#2443462 75 Second Avenue, 2nd Floor
8/18/94 Needham Heights, MA 02194
MO Sec/State Mirex Corporation Leased Equipment
#2473657 5317 Mirex Drive
11/14/94 St. Louis, MO 63119
MO Sec/State Mirex Corporation Leased Equipment
#2547441 5317 Mirex Drive
6/2/95 St. Louis, MO 63119
MO Sec/State Leasetec Systems Credit Corp. Leased Equipment
#2557875 75 Second Avenue, 2nd Floor
7/5/95 Needham Heights, MA 02194
MO Sec/State Sumner Group, Inc. Leased Equipment
#2575363 P. O. Box 2222
8/24/95 2121 Hampton
St. Louis, MO 63139
MO Sec/State Leasetec Corporation Leased Equipment
#2604282 Leasetec Systems Credit Corp.
11/17/95 75 Second Avenue
Needham Heights, MA 02194
MO Sec/State Mirex Corporation Leased Equipment
#2615820 5317 Mirex Drive
12/28/95 St. Louis, MO 63119
MO Sec/State Mirex Corporation Leased Equipment
#2622429 5317 Mirex Drive
1/16/96 St. Louis, MO 63119
MO Sec/State Leasetec Corporation Leased Equipment
#2629519 Leasetec Systems Credit Div.
2/5/96 75 Second Avenue
Needham Heights, MA 02194
MO Sec/State Inter-Tel Leasing, Inc. Leased Equipment, all
#2645904 6955 Portwest Drive, Suite 109 proceeds.
3/22/96 Houston, Texas 77024
MO Sec/State Leasetec Corporation Leased Equipment, all proceeds
#2692938 Leasetec Systems Credit Div.
8/6/96 75 Second Avenue
Needham Heights, MA 02194
MO Sec/State Leasetec Corporation Leased Equipment, all proceeds
#2717830 Leasetec Systems Credit Div.
10/21/96 75 Second Avenue
Needham Heights, MA 02194
MO Sec/State Pitney Bowes Credit Corp. Leased Equipment, all proceeds
#2840201 27 Waterview Drive
10/14/97 Shelton, CT 06484-4361
MO Sec/State Advance Acceptance Corp. Leased Equipment
#2859304 13755 First Avenue North
12/8/97 Plymouth, MN 55441
Denali Associates, Inc. OH Sec/State GE Capital Leased Business Machinery,
#AL61761 P. O. Box 601 Equipment, Proceeds
2/7/95 Moberly, MO 65270
Diagnostek, Inc. NM Sec/State Finova Capital Corporation Leased Computer Equipment
#950403086 (Assignee of Avnet Computer,
4/3/95 a Division of Avnet, Inc.)
95N Route 17 South
Paramus, NJ 07653
NM Sec/State Finova Capital Corporation Leased Computer Equipment
#950612023 (Assignee of Avnet Computer,
6/12/95 a Division of Avnet, Inc.)
95N Route 17 South
Paramus, NJ 07653
NM Sec/State Newcourt Credit Group, Inc. Computer Equipment and
#941004043 (Assignee of Tandem Computers Proceeds
10/4/94 Credit Corporation)
10435 N. Tantau Ave.
Cupertino, CA 95014
NM Sec/State Newcourt Credit Group, Inc. Computer Equipment and
#950622030 (Assignee of Tandem Proceeds
6/22/95 Computers Credit
Corporation)
Ten Almaden Blvd., Suite 500
San Jose, 95113
Health Care Services, Inc. FL Sec/State Ecolab Incorporated Dishmachine
#970000266442 370 Wabasha St. N.
11/26/97 St. Paul, MN 55102
ValueRx Pharmacy Program, MI Sec/State G/S Leasing, Inc. Leased Computer Equipment
Inc. #C996608 3290 W. Big Beaver, Suite 200
7/27/95 Troy, MI 48084
NM Sec/State ATT Corp. Communications Equipment
#960708074 1001 Menaul NE
7/8/96 Albuquerque, NM 87107
Rx-Net, Inc. of California CA Sec/State Vanguard Financial Service Leased Business Machinery/
#9607561090 Corp. Equipment
3/13/96 1110 N. Main Street
Lombard, IL 60148
CA Sec/State AT T Credit Corp. Leased Communications
#93119181 2 Gatehall Drive Equipment, including Proceeds
6/17/93 Parsippany, NJ
CA Sec/State Bankers Leasing Association Computer Equipment
#94127384 Inc.
6/23/94 4201 Lake Cook Road
Northbrook, Illinois
CA Sec/State Bankers Leasing Association Fixtures and Proceeds,
#94127385 Inc. Equipment and Proceeds,
6/23/94 4201 Lake Cook Road Assets and Proceeds, Accounts
Northbrook, Illinois Receivable and Proceeds,
Contract Rights and Proceeds,
General Intangibles and
Proceeds
CA Sec/State Data General Corp. Leased Computer Equipment
#94120545 4400 Computer Drive
6/14/94 Westboro, MA
CA Sec/State Data General Corp. Leased Equipment and
#93118068 4400 Computer Drive Proceeds, Computer Equipment
6/16/93 Westboro, MA and Proceeds
US Leasing International Inc.
73 Front Street
San Francisco, CA
CA Sec/State Data General Corp. Leased Computer Equipment
93124726 4400 Computer Drive
6/23/93 Westboro, MA
MO Sec/State Bank of Alton
#23413900A (Assignee of Richlund
12/19/93 Associates, Inc.)
1520 Washington Avenue
Alton, IL 62002
CA Sec/State Center Capital Corp. Leased Computer Equipment
#9617760803 43 E. Main Street
6/25/96 Meriden, CT 06450
CA Sec/State Center Capital Corporation Leased Computer Equipment and
#950690346 20 Tower LN Proceeds
3/7/95 Avon, CT 06001
CA Sec/State Data General Corporation Leased Computer Equipment and
#9614260671 4400 Computer Drive Proceeds
5/21/96 Westboro, MA 01580
CA Sec/State Data General Corporation Leased Computer Equipment
#9627561019 4400 Computer Drive
10/1/96 Westboro, MA 01580
Managed Prescription OH Sec/State Copelco Leasing Corp. Unspecified and Products
Network, Inc. #AK98221 1700 Suckle Plaza
5/9/94 Pennsauken, NJ 08110
PA Sec/State Copelco Leasing Corp.
#23110303 1700 Suckle Plaza
5/10/94 Pennsauken, NJ 08110
PA Sec/State Copelco Leasing Corporation Leased Fixtures and Products,
#23131279 1700 Suckle Plaza Leased Computer Equipment and
5/17/94 Pennsauken, NJ 08110 Products, Leased Equipment
and Products
IVTx of Dallas, Inc. TX Sec/State Orix Credit Alliance All goods, chattels,
#93-000780031 9400 SW Barnes Road #200 machinery, equipment,
4/22/93 Portland, Oregon 97225-6655 inventory, accounts, chattel
paper, notes, contract
rights, receivables, account
receivables, general
intangibles, furniture,
fixtures and any property,
all proceeds
ESI Canada, Inc. Province of Ontario Toronto Dominion Leasing Ltd. Inventory, Equipment,
#810640593 The Toronto Dominion Bank Accounts, Other.
11/17/94 470 Don Mills Road
Don Mills, Ontario M3B 2X9
Province of Ontario Gardner Investments Inc. Inventory, Equipment,
#066696174 in Trust Accounts, Other.
11/12/93 2089 Oxford Avenue
Oakville, Ontario L6H 4K8
</TABLE>
2. California Employment Development Department tax lien in the amount of
$8,622.88 (includes penalty and interest through 9/10/97) against RxNet, Inc. of
California, #9726760498 filed with the California Secretary of State on
September 22, 1997.
3. Security Agreement dated December 5, 1997 between ValueRx Pharmacy
Program, Inc. and the City of Plymouth securing the Agreement for Loan of
Minnesota Investment Fund in the original principal amount of $500,000.
<PAGE>
SCHEDULE 7.3
INVESTMENTS
NONE
<PAGE>
SCHEDULE 7.4
CONTINGENT OBLIGATIONS
1. Guaranty by Borrower of Lease for IVTx of Dallas, Inc. dated October 14,
1997.
2. Continuing Lease Guaranty dated March 12, 1993 of Lease between PPBC,
Ltd. and IVTX of Houston, Inc.
3. Value Health, Inc. has entered into the following guaranty agreements
with respect to obligations of Excluded Subsidiaries (as such term is defined in
that certain Stock Purchase Agreement by and among Columbia/HCA HealthCare
Corporation, VH Holdings, Inc., Galen Holdings, Inc. and Company (the "Stock
Purchase Agreement")):
A. Guaranty under the Alliance Agreement dated August 28, 1996 by and
between Value Behavioral Health, Inc. and The Prudential Insurance Company of
America.
B. Guaranty dated July 1, 1996 by Value Health, Inc. for Contract dated as
of July 1, 1996 between The Commonwealth of Massachusetts, Division of Medical
Assistance and the Massachusetts Behavioral Health Partnership.
C. Guaranty of Lease dated February 4, 1997 by Value Health, Inc. for
Standard Office Lease between Arden Realty Limited Partnership and Value
Oncology Sciences, Inc.
D. Guaranty of Lease, dated February 16, 1993, between Connecticut General
Life Insurance Company and Value Behavioral Health, Inc. (as successor in
interest to American PsychManagement, Inc.), as amended.
E. Guarantee of Lease dated February 28, 1996 by Value Health, Inc. for the
benefit of John Hancock Mutual Life Insurance Company, relating to that certain
Standard Office Lease (Catalina Landing) by and between John Hancock Mutual Life
Insurance Company and Value Behavioral Health of California, Inc. dated February
28, 1996.
F. Guaranty dated April 2, 1993 by Value Health, Inc. in favor of Marina
Airport Buildings, Ltd., relating to that certain Lease by and between Marina
Airport Buildings, Ltd. and American PsychManagement of California, Inc. dated
April 2, 1993.
G. Guaranty dated May 18, 1994 by Value Health, Inc. in favor of Allied
Phase One Venture, relating to that certain Lease dated March 21, 1994 by and
between Value Behavioral Health, Inc. and Allied Phase One Venture, as amended
by that certain First Lease Modification dated September 13, 1994 and that
certain Lease dated March 21, 1994 by and between Value Behavioral Health, Inc.
and Allied Phase One Venture, as amended by that certain First Lease
Modification dated October 13, 1994, and that certain Second Lease Modification
dated October 31, 1994.
4. The potential liabilities of ValueRx with respect to the bonus and
severance arrangements described in SCHEDULE 2.2(IV) of the Stock Purchase
Agreement.
5. The potential liabilities of ValueRx with respect to the ValueRx current
PTO plan's limited carry-over provision.
6. Potential liabilities of the Acquired Entities (as such term is defined
in the Stock Purchase Agreement) with respect to the litigation described in
SCHEDULE 3.9 of the Stock Purchase Agreement and the audits described in
SCHEDULE 3.14 of the Stock Purchase Agreement.
7. Contingent liabilities arising in connection with Section 280G of the
Code with respect to agreements with the following persons: Steve Shulman,
William Goss, James Buncher, Paul Finigan, David Wurzer and Kevin Roberg.
8. Remaining obligations pursuant to the Consulting Agreement dated August
5, 1997 among Value Health, Inc., Value Oncology Sciences, Inc., CVH Acquisition
Corporation and John F. Randazzo, Inc.
9. Remaining obligations pursuant to the Consulting Agreement dated March
27, 1995 between Diagnostek Inc., Value Health, Inc. and Nunzio P. DeSantis.
10. Continuing obligations under the ValueRx Plans and Multiemployer Plans
as described in SCHEDULE 2.2(IV), SCHEDULE 3.12(B), and SCHEDULE 3.12(D) of the
Stock Purchase Agreement.
11. Contingent liabilities arising in connection with the Practice Patterns
Science, Inc. Key Employee Stock Option Plan with respect to the following
former employees: Susan Anderson, Trish Baker, and Jay Baumohl.
EXHIBIT 10.2
COMPANY PLEDGE AGREEMENT
This COMPANY PLEDGE AGREEMENT (this "AGREEMENT") is dated as of April 1,
1998 and entered into by and between Express Scripts, Inc., a Delaware
corporation ("PLEDGOR"), and Bankers Trust Company, as agent for and
representative of (in such capacity herein called "SECURED PARTY") the financial
institutions ("LENDERS") party to the Credit Agreement referred to below.
PRELIMINARY STATEMENTS
A. Pledgor is the legal and beneficial owner of the shares of stock (the
"PLEDGED SHARES") described in Part A of SCHEDULE I annexed hereto and issued by
the corporations named therein.
B. Secured Party and Lenders have entered into a Credit Agreement dated as
of April 1, 1998 (as amended, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT," the terms defined therein and not otherwise
defined herein being used herein as therein defined) with Pledgor pursuant to
which Lenders have made certain commitments, subject to the terms and conditions
set forth in the Credit Agreement, to extend certain credit facilities to
Pledgor.
C. It is a condition precedent to the initial extensions of credit by
Lenders under the Credit Agreement that Pledgor shall have granted the security
interests and undertaken the obligations contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
Lenders to make Loans and other extensions of credit under the Credit Agreement
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, Pledgor hereby agrees with Secured Party as follows:
SECTION 1. PLEDGE OF SECURITY. Pledgor hereby pledges and assigns to
Secured Party, and hereby grants to Secured Party a security interest in, all of
Pledgor's right, title and interest in and to the following (the "PLEDGED
COLLATERAL"):
(a) the Pledged Shares and the certificates representing the Pledged Shares
and any interest of Pledgor in the entries on the books of any financial
intermediary pertaining to the Pledged Shares, and all dividends, cash,
warrants, rights, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the Pledged Shares;
(b) all additional shares of, and all securities convertible into and
warrants, options and other rights to purchase or otherwise acquire, stock of
any issuer of the Pledged Shares from time to time acquired by Pledgor in any
manner (which shares shall be deemed to be part of the Pledged Shares), the
certificates or other instruments representing such additional shares,
securities, warrants, options or other rights and any interest of Pledgor in the
entries on the books of any financial intermediary pertaining to such additional
shares, and all dividends, cash, warrants, rights, instruments and other
property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such additional
shares, securities, warrants, options or other rights;
(c) all shares of, and all securities convertible into and warrants,
options and other rights to purchase or otherwise acquire, stock of any Person
that, after the date of this Agreement, becomes, as a result of any occurrence,
a direct Subsidiary of Pledgor (which shares shall be deemed to be part of the
Pledged Shares), the certificates or other instruments representing such shares,
securities, warrants, options or other rights and any interest of Pledgor in the
entries on the books of any financial intermediary pertaining to such shares,
and all dividends, cash, warrants, rights, instruments and other property or
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such shares, securities, warrants,
options or other rights;
(d) to the extent not covered by clauses (a) through (c) above, all
proceeds of any or all of the foregoing Pledged Collateral. For purposes of this
Agreement, the term "PROCEEDS" includes whatever is receivable or received when
Pledged Collateral or proceeds are sold, exchanged, collected or otherwise
disposed of, whether such disposition is voluntary or involuntary, and includes
proceeds of any indemnity or guaranty payable to Pledgor or Secured Party from
time to time with respect to any of the Pledged Collateral.
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement secures, and the
Pledged Collateral is collateral security for, the prompt payment or performance
in full when due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including the payment of amounts
that would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. ss.362(a)), of all obligations and
liabilities of every nature of Pledgor now or hereafter existing under or
arising out of or in connection with the Credit Agreement and the other Loan
Documents and all extensions or renewals thereof, whether for principal,
interest (including interest that, but for the filing of a petition in
bankruptcy with respect to Pledgor, would accrue on such obligations),
reimbursement of amounts drawn under Letters of Credit, fees, expenses,
indemnities or otherwise, whether voluntary or involuntary, direct or indirect,
absolute or contingent, liquidated or unliquidated, whether or not jointly owed
with others, and whether or not from time to time decreased or extinguished and
later increased, created or incurred, and all or any portion of such obligations
or liabilities that are paid, to the extent all or any part of such payment is
avoided or recovered directly or indirectly from Secured Party or any Lender as
a preference, fraudulent transfer or otherwise, and all obligations of every
nature of Pledgor now or hereafter existing under this Agreement (all such
obligations of Pledgor being the "SECURED OBLIGATIONS").
SECTION 3. DELIVERY OF PLEDGED COLLATERAL. All certificates or instruments
representing or evidencing the Pledged Collateral shall be delivered to and held
by or on behalf of Secured Party pursuant hereto and shall be in suitable form
for transfer by delivery or, as applicable, shall be accompanied by Pledgor's
endorsement, where necessary, or duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to Secured Party.
Upon the occurrence and during the continuance of an Event of Default (as
defined in the Credit Agreement), Secured Party shall have the right, without
notice to Pledgor, to transfer to or to register in the name of Secured Party or
any of its nominees any or all of the Pledged Collateral, subject only to the
revocable rights specified in Section 7(a); PROVIDED that, except in the case of
a bankruptcy default or an acceleration of the Loans, no such transfer or
registration shall be made without notice to Pledgor. In addition, Secured Party
shall have the right at any time to exchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or instruments of
smaller or larger denominations.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Pledgor represents and warrants
as follows:
(a) DUE AUTHORIZATION, ETC. OF PLEDGED COLLATERAL. All of the Pledged
Shares have been duly authorized and validly issued and are fully paid and
non-assessable.
(b) DESCRIPTION OF PLEDGED COLLATERAL. The Pledged Shares constitute all of
the issued and outstanding shares of stock of each issuer thereof organized
under the laws of a state of the United States (each a "U.S. ISSUER") and 65% of
the issued and outstanding shares of stock of each other issuer thereof (each a
"NON-U.S. ISSUER") and there are no outstanding warrants, options or other
rights to purchase, or other agreements outstanding with respect to, or property
that is now or hereafter convertible into, or that requires the issuance or sale
of, any Pledged Shares.
(c) OWNERSHIP OF PLEDGED COLLATERAL. Pledgor is the legal, record and
beneficial owner of the Pledged Collateral free and clear of any Lien except for
the security interest created by this Agreement.
SECTION 5. TRANSFERS AND OTHER LIENS; ADDITIONAL PLEDGED COLLATERAL; ETC.
Pledgor shall:
(a) not, except as expressly permitted by the Credit Agreement, (i) sell,
assign (by operation of law or otherwise) or otherwise dispose of, or grant any
option with respect to, any of the Pledged Collateral, (ii) create or suffer to
exist any Lien upon or with respect to any of the Pledged Collateral, except for
the security interest under this Agreement, or (iii) permit any issuer of
Pledged Shares to merge or consolidate unless all the outstanding capital stock
of the surviving or resulting corporation is, upon such merger or consolidation,
pledged hereunder and no cash, securities or other property is distributed in
respect of the outstanding shares of any other constituent corporation; PROVIDED
that in the event Pledgor makes an Asset Sale permitted by the Credit Agreement
and the assets subject to such Asset Sale are Pledged Shares, Secured Party
shall release the Pledged Shares that are the subject of such Asset Sale to
Pledgor free and clear of the lien and security interest under this Agreement
concurrently with the consummation of such Asset Sale; PROVIDED, FURTHER that,
as a condition precedent to such release, Secured Party shall have received
evidence satisfactory to it that arrangements satisfactory to it have been made
for delivery to Secured Party of the Net Asset Sale Proceeds of such Asset Sale;
if required by, and in accordance with the provisions of the Credit Agreement.
(b) (i) cause each issuer of Pledged Shares not to issue any stock or other
securities in addition to or in substitution for the Pledged Shares issued by
such issuer, except to Pledgor, (ii) pledge hereunder, immediately upon its
acquisition (directly or indirectly) thereof, any and all additional shares of
stock or other securities of each issuer of Pledged Shares except to the extent
that such pledge would result in the pledge of more than 65% of the stock of a
Non-U.S. Issuer, and (iii) pledge hereunder, immediately upon its acquisition
(directly or indirectly) thereof, any and all shares of stock of any Person
that, after the date of this Agreement, becomes, as a result of any occurrence,
a direct Subsidiary of Pledgor, unless such Subsidiary is a Non-U.S. Issuer, in
which case, no more than 65% of such shares of stock shall be pledged hereunder;
(c) promptly deliver to Secured Party all written notices received by it
with respect to the Pledged Collateral; and
(d) pay promptly when due all taxes, assessments and governmental charges
or levies imposed upon, and all claims against, the Pledged Collateral, except
to the extent the validity thereof is being contested in good faith; PROVIDED
that Pledgor shall in any event pay such taxes, assessments, charges, levies or
claims not later than five days prior to the date of any proposed sale of the
Pledged Collateral under any judgment, writ or warrant of attachment entered or
filed against Pledgor or any of the Pledged Collateral as a result of the
failure to make such payment.
SECTION 6. FURTHER ASSURANCES; PLEDGE AMENDMENTS.
(a) Pledgor agrees that from time to time, at the expense of Pledgor,
Pledgor will promptly execute and deliver all further instruments and documents,
and take all further action, that may be necessary or desirable, or that Secured
Party may request, in order to perfect and protect any security interest granted
or purported to be granted hereby or to enable Secured Party to exercise and
enforce its rights and remedies hereunder with respect to any Pledged
Collateral. Without limiting the generality of the foregoing, Pledgor will: (i)
execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as Secured Party may reasonably request, in order to perfect and
preserve the security interests granted or purported to be granted hereby and
(ii) at Secured Party's reasonable request, appear in and defend any action or
proceeding that may affect Pledgor's title to or Secured Party's security
interest in all or any part of the Pledged Collateral.
(b) Pledgor further agrees that it will, upon obtaining any additional
shares of stock or other securities required to be pledged hereunder as provided
in Section 5(b) or (c), promptly (and in any event within 30 days) deliver to
Secured Party a Pledge Amendment, duly executed by Pledgor, in substantially the
form of SCHEDULE II annexed hereto (a "PLEDGE AMENDMENT"), in respect of the
additional Pledged Shares to be pledged pursuant to this Agreement. Pledgor
hereby authorizes Secured Party to attach each Pledge Amendment to this
Agreement and agrees that all Pledged Shares listed on any Pledge Amendment
delivered to Secured Party shall for all purposes hereunder be considered
Pledged Collateral; PROVIDED that the failure of Pledgor to execute a Pledge
Amendment with respect to any additional Pledged Shares pledged pursuant to this
Agreement shall not impair the security interest of Secured Party therein or
otherwise adversely affect the rights and remedies of Secured Party hereunder
with respect thereto.
SECTION 7. VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Event of Default shall have occurred and be continuing:
(i) Pledgor shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Pledged Collateral or any part thereof for
any purpose not inconsistent with the terms of this Agreement or the Credit
Agreement in a manner which would not have a material adverse effect on the
value of the Pledged Collateral or any part thereof. It is understood, however,
that neither (A) the voting by Pledgor of any Pledged Shares for or Pledgor's
consent to the election of directors at a regularly scheduled annual or other
meeting of stockholders or with respect to incidental matters at any such
meeting nor (B) Pledgor's consent to or approval of any action otherwise
permitted under this Agreement and the Credit Agreement shall be deemed
inconsistent with the terms of this Agreement or the Credit Agreement within the
meaning of this Section 7(a)(i).
(ii) Pledgor shall be entitled to receive and retain, and to utilize free
and clear of the lien of this Agreement, any and all dividends paid in respect
of the Pledged Collateral; provided, HOWEVER, that any and all
(A) dividends paid or payable other than in cash in respect of, and
instruments and other property received, receivable or otherwise distributed in
respect of, or in exchange for, any Pledged Collateral,
(B) dividends and other distributions paid or payable in cash in respect of
any Pledged Collateral in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital surplus or
paid-in-surplus, and
(C) cash paid, payable or otherwise distributed in exchange for any Pledged
Collateral, shall be, and shall forthwith be delivered to Secured Party to hold
as, Pledged Collateral and shall, if received by Pledgor, be received in trust
for the benefit of Secured Party, be segregated from the other property or funds
of Pledgor and be forthwith delivered to Secured Party as Pledged Collateral in
the same form as so received (with all necessary endorsements); and
(iii) Secured Party shall promptly execute and deliver (or cause to be
executed and delivered) to Pledgor all such dividend payment orders and other
instruments as Pledgor may from time to time reasonably request for the purpose
of enabling Pledgor to receive the dividends payments which it is authorized to
receive and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuation of an Event of Default:
(i) upon written notice from Secured Party to Pledgor, all rights of
Pledgor to exercise the voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to Section 7(a)(i) shall cease, and
all such rights shall thereupon become vested in Secured Party who shall
thereupon have the sole right to exercise such voting and other consensual
rights;
(ii) all rights of Pledgor to receive the dividends which it would
otherwise be authorized to receive and retain pursuant to Section 7(a)(ii) shall
cease, and all such rights shall thereupon become vested in Secured Party who
shall thereupon have the sole right to receive and hold as Pledged Collateral
such dividends; and
(iii) all dividends which are received by Pledgor contrary to the
provisions of paragraph (ii) of this Section 7(b) shall be received in trust for
the benefit of Secured Party, shall be segregated from other funds of Pledgor
and shall forthwith be paid over to Secured Party as Pledged Collateral in the
same form as so received (with any necessary endorsements).
(c) In order to permit Secured Party to exercise the voting and other
consensual rights which it may be entitled to exercise pursuant to Section
7(b)(i) and to receive all dividends and other distributions which it may be
entitled to receive under Section 7(a)(ii) or Section 7(b)(ii), (i) Pledgor
shall promptly execute and deliver (or cause to be executed and delivered) to
Secured Party all such proxies, dividend payment orders and other instruments as
Secured Party may from time to time reasonably request and (ii) without limiting
the effect of the immediately preceding clause (i), Pledgor hereby grants to
Secured Party an irrevocable proxy to vote the Pledged Shares and to exercise
all other rights, powers, privileges and remedies to which a holder of the
Pledged Shares would be entitled (including giving or withholding written
consents of shareholders, calling special meetings of shareholders and voting at
such meetings), which proxy shall be effective, automatically and without the
necessity of any action (including any transfer of any Pledged Shares on the
record books of the issuer thereof) by any other Person (including the issuer of
the Pledged Shares or any officer or agent thereof), upon the occurrence of an
Event of Default and the continuance thereof and which proxy shall only
terminate upon the payment in full of the Secured Obligations.
SECTION 8. SECURED PARTY APPOINTED ATTORNEY-IN-FACT. Pledgor hereby
irrevocably appoints Secured Party as Pledgor's attorney-in-fact, with full
authority in the place and stead of Pledgor and in the name of Pledgor, Secured
Party or otherwise, from time to time in Secured Party's discretion to take any
action and to execute any instrument that Secured Party may deem necessary or
advisable to accomplish the purposes of this Agreement, including filing one or
more financing or continuation statements, or amendments thereto, relative to
all or any part of the Pledged Collateral without the signature of Pledgor;
PROVIDED, that unless an Event of Default has occurred and is continuing,
Secured Party may not (i) receive, endorse and collect any instruments made
payable to Pledgor representing any dividend or other distribution in respect of
the Pledged Collateral or any part thereof; or (ii) file any claims or take any
action or institute any proceedings that Secured Party may deem necessary or
desirable for the collection of any of the Pledged Collateral or otherwise to
enforce the rights of Secured Party with respect to any of the Pledged
Collateral.
SECTION 9. SECURED PARTY MAY PERFORM. If Pledgor fails to perform any
agreement contained herein, Secured Party may itself perform, or cause
performance of, such agreement, and the expenses of Secured Party incurred in
connection therewith shall be payable by Pledgor under Section 14(b).
SECTION 10. STANDARD OF CARE. The powers conferred on Secured Party
hereunder are solely to protect its interest in the Pledged Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the exercise
of reasonable care in the custody of any Pledged Collateral in its possession
and the accounting for moneys actually received by it hereunder, Secured Party
shall have no duty as to any Pledged Collateral, it being understood that
Secured Party shall have no responsibility for (a) ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relating to any Pledged Collateral, whether or not Secured Party has or
is deemed to have knowledge of such matters, (b) taking any necessary steps
(other than steps taken in accordance with the standard of care set forth above
to maintain possession of the Pledged Collateral) to preserve rights against any
parties with respect to any Pledged Collateral, (c) taking any necessary steps
to collect or realize upon the Secured Obligations or any guarantee therefor, or
any part thereof, or any of the Pledged Collateral, or (d) initiating any action
to protect the Pledged Collateral against the possibility of a decline in market
value. Secured Party shall be deemed to have exercised reasonable care in the
custody and preservation of Pledged Collateral in its possession if such Pledged
Collateral is accorded treatment substantially equal to that which Secured Party
accords its own property consisting of negotiable securities.
SECTION 11. REMEDIES.
(a) If any Event of Default shall have occurred and be continuing, Secured
Party may exercise in respect of the Pledged Collateral, in addition to all
other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party on default under the Uniform
Commercial Code as in effect in any relevant jurisdiction (the "CODE") (whether
or not the Code applies to the affected Pledged Collateral), and Secured Party
may also in its sole discretion, without notice except as specified below, sell
the Pledged Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange or broker's board or at any of Secured Party's
offices or elsewhere, for cash, on credit or for future delivery, at such time
or times and at such price or prices and upon such other terms as Secured Party
may deem commercially reasonable, irrespective of the impact of any such sales
on the market price of the Pledged Collateral. Secured Party or any Lender may
be the purchaser of any or all of the Pledged Collateral at any such sale and
Secured Party, as agent for and representative of Lenders (but not any Lender or
Lenders in its or their respective individual capacities unless Requisite
Lenders shall otherwise agree in writing), shall be entitled, for the purpose of
bidding and making settlement or payment of the purchase price for all or any
portion of the Pledged Collateral sold at any such public sale, to use and apply
any of the Secured Obligations as a credit on account of the purchase price for
any Pledged Collateral payable by Secured Party at such sale. Each purchaser at
any such sale shall hold the property sold absolutely free from any claim or
right on the part of Pledgor, and Pledgor hereby waives (to the extent permitted
by applicable law) all rights of redemption, stay and/or appraisal which it now
has or may at any time in the future have under any rule of law or statute now
existing or hereafter enacted. Pledgor agrees that, to the extent notice of sale
shall be required by law, at least ten days' notice to Pledgor of the time and
place of any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. Secured Party shall not be obligated
to make any sale of Pledged Collateral regardless of notice of sale having been
given. Secured Party may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
Pledgor hereby waives any claims against Secured Party arising by reason of the
fact that the price at which any Pledged Collateral may have been sold at such a
private sale was less than the price which might have been obtained at a public
sale, even if Secured Party accepts the first offer received and does not offer
such Pledged Collateral to more than one offeree. If the proceeds of any sale or
other disposition of the Pledged Collateral are insufficient to pay all the
Secured Obligations, Pledgor shall be liable for the deficiency and the fees of
any attorneys employed by Secured Party to collect such deficiency.
(b) Pledgor recognizes that, by reason of certain prohibitions contained in
the Securities Act and applicable state securities laws, Secured Party may be
compelled, with respect to any sale of all or any part of the Pledged Collateral
conducted without prior registration or qualification of such Pledged Collateral
under the Securities Act and/or such state securities laws, to limit purchasers
to those who will agree, among other things, to acquire the Pledged Collateral
for their own account, for investment and not with a view to the distribution or
resale thereof. Pledgor acknowledges that any such private sales may be at
prices and on terms less favorable than those obtainable through a public sale
without such restrictions (including a public offering made pursuant to a
registration statement under the Securities Act) and, notwithstanding such
circumstances, Pledgor agrees that any such private sale shall be deemed to have
been made in a commercially reasonable manner and that Secured Party shall have
no obligation to engage in public sales and no obligation to delay the sale of
any Pledged Collateral for the period of time necessary to permit the issuer
thereof to register it for a form of public sale requiring registration under
the Securities Act or under applicable state securities laws, even if such
issuer would, or should, agree to so register it.
(c) If Secured Party determines to exercise its right to sell any or all of
the Pledged Collateral, upon written request, Pledgor shall and shall cause each
issuer of any Pledged Shares to be sold hereunder from time to time to furnish
to Secured Party all such information as Secured Party may request in order to
determine the number of shares and other instruments included in the Pledged
Collateral which may be sold by Secured Party in exempt transactions under the
Securities Act and the rules and regulations of the Securities and Exchange
Commission thereunder, as the same are from time to time in effect.
SECTION 12. APPLICATION OF PROCEEDS. All proceeds received by Secured Party
in respect of any sale of, collection from, or other realization upon all or any
part of the Pledged Collateral shall be applied as provided in subsection 2.4D
of the Credit Agreement.
SECTION 13. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS. This Agreement
shall create a continuing security interest in the Pledged Collateral and shall
(a) remain in full force and effect until the payment in full of all Secured
Obligations, the cancellation or termination of the Commitments and the
cancellation or expiration of all outstanding Letters of Credit, (b) be binding
upon Pledgor, its successors and assigns, and (c) inure, together with the
rights and remedies of Secured Party hereunder, to the benefit of Secured Party
and its successors, transferees and assigns. Without limiting the generality of
the foregoing clause (c), but subject to the provisions of subsection 10.1 of
the Credit Agreement, any Lender may assign or otherwise transfer any Loans held
by it to any other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted to Lenders herein or otherwise.
Upon the payment in full of all Secured Obligations, the cancellation or
termination of the Commitments and the cancellation or expiration of all
outstanding Letters of Credit, the security interest granted hereby shall
terminate and all rights to the Pledged Collateral shall revert to Pledgor. Upon
any such termination Secured Party will, at Pledgor's expense, execute and
deliver to Pledgor such documents as Pledgor shall reasonably request to
evidence such termination and Pledgor shall be entitled to the return, upon its
request and at its expense, against receipt and without recourse to Secured
Party, of such of the Pledged Collateral as shall not have been sold or
otherwise applied pursuant to the terms hereof.
SECTION 14. SECURED PARTY AS AGENT.
(a) Secured Party has been appointed to act as Secured Party hereunder by
Lenders. Secured Party shall be obligated, and shall have the right hereunder,
to make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking any action (including the release or
substitution of Pledged Collateral), solely in accordance with this Agreement
and the Credit Agreement; PROVIDED that Secured Party shall exercise, or refrain
from exercising, any remedies provided for in Section 11 in accordance with the
instructions of the Requisite Lenders.
(b) Secured Party shall at all times be the same Person that is Agent under
the Credit Agreement. Written notice of resignation by Agent pursuant to
subsection 9.5 of the Credit Agreement shall also constitute notice of
resignation as Secured Party under this Agreement; removal of Agent pursuant to
subsection 9.5 of the Credit Agreement shall also constitute removal as Secured
Party under this Agreement; and appointment of a successor Agent pursuant to
subsection 9.5 of the Credit Agreement shall also constitute appointment of a
successor Secured Party under this Agreement. Upon the acceptance of any
appointment as Agent under subsection 9.5 of the Credit Agreement by a successor
Agent, that successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring or removed Secured
Party under this Agreement, and the retiring or removed Secured Party under this
Agreement shall promptly (i) transfer to such successor Secured Party all sums,
securities and other items of Collateral held hereunder, together with all
records and other documents necessary or appropriate in connection with the
performance of the duties of the successor Secured Party under this Agreement,
and (ii) execute and deliver to such successor Secured Party such amendments to
financing statements, and take such other actions, as may be necessary or
appropriate in connection with the assignment to such successor Secured Party of
the security interests created hereunder, whereupon such retiring or removed
Secured Party shall be discharged from its duties and obligations under this
Agreement. After any retiring or removed Agent's resignation or removal
hereunder as Secured Party, the provisions of this Agreement shall inure to its
benefit as to any actions taken or omitted to be taken by it under this
Agreement while it was Secured Party hereunder.
SECTION 15. AMENDMENTS; ETC. No amendment, modification, termination or
waiver of any provision of this Agreement, and no consent to any departure by
Pledgor therefrom, shall in any event be effective unless the same shall be in
writing and signed by Secured Party and, in the case of any such amendment or
modification, by Pledgor. Any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given.
SECTION 16. NOTICES. Any notice or other communication herein required or
permitted to be given shall be in writing and may be personally served, telexed
or sent by telefacsimile or United States mail or courier service and shall be
deemed to have been given when delivered in person or by courier service, upon
receipt of telefacsimile or telex, or three Business Days after depositing it in
the United States mail with postage prepaid and properly addressed. For the
purposes hereof, the address of each party hereto shall be as provided in
subsection 10.8 of the Credit Agreement.
SECTION 17. SEVERABILITY. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
SECTION 18. HEADINGS. Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
SECTION 19. GOVERNING LAW; TERMS. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW
YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF
NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT
THAT THE CODE PROVIDES THAT THE PERFECTION OF THE SECURITY INTEREST HEREUNDER,
OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PLEDGED COLLATERAL ARE
GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. Unless
otherwise defined herein or in the Credit Agreement, terms used in Articles 8
and 9 of the Uniform Commercial Code in the State of New York are used herein as
therein defined.
SECTION 20. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
IN WITNESS WHEREOF, Pledgor and Secured Party have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
EXPRESS SCRIPTS, INC.
By: /s/ George Paz
Title: Sr. Vice Presdient and
Chief Financial Officer
BANKERS TRUST COMPANY
By: /s/ Keven McCann
Title: Principal
<PAGE>
SCHEDULE I
Attached to and forming a part of the Pledge Agreement dated as of April 1,
1998 between Express Scripts, Inc., as Pledgor, and Bankers Trust Company, as
Secured Party.
<TABLE>
<CAPTION>
Part A
Class of Stock Certi- Par Number of
STOCK ISSUER STOCK FICATE NOS. VALUE SHARES
<S> <C> <C> <C> <C>
Express Scripts
Vision Corporation Common 001 $0.01 100%
Phynet, Inc. Common 001 $0.01 100%
IVTx, Inc. Common 1 $0.01 100%
IVTx of
Houston, Inc. Common 001 No Par 100%
IVTx of Dallas,
Inc. Common 001 No Par 100%
ESI Canada
Holdings, Inc. Common C-3 No Par 65%
</TABLE>
<PAGE>
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated April 1, 1998, is delivered pursuant to
Section 6(b) of the Pledge Agreement referred to below. The undersigned hereby
agrees that this Pledge Amendment may be attached to the Pledge Agreement dated
April 1, 1998, between the undersigned and Bankers Trust Company as Secured
Party (the "PLEDGE AGREEMENT," capitalized terms defined therein being used
herein as therein defined), and that the Pledged Shares listed on this Pledge
Amendment shall be deemed to be part of the Pledged Shares and shall become part
of the Pledged Collateral and shall secure all Secured Obligations.
EXPRESS SCRIPTS, INC.
By: /s/ George Paz
Title:Sr. Vice President and
Chief Financial Officer
<TABLE>
<CAPTION>
Class of Stock Certi- Par Number of
STOCK ISSUER STOCK FICATE NOS. VALUE SHARES
<S> <C> <C> <C> <C>
Value Health, Inc. Common A-3 $0.01 100%
Managed Prescription
Network, Inc. Common 3 $1.00 100%
</TABLE>
EXHIBIT 10.3
SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY is entered into as of April 1, 1998 by THE
UNDERSIGNED (each a "GUARANTOR" and collectively, "GUARANTORS") in favor of and
for the benefit of Bankers Trust Company as agent for and representative of (in
such capacity herein called "GUARANTIED PARTY") the financial institutions party
to the Credit Agreement ("LENDERS") referred to below, and, subject to
subsection 3.12, for the benefit of the other Beneficiaries (as hereinafter
defined).
RECITALS
A. Express Scripts, Inc., a Delaware corporation ("COMPANY"), has entered
into that certain Credit Agreement dated as of April 1, 1998 with Guarantied
Party and Lenders (as amended, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT"; capitalized terms defined therein and not
otherwise defined herein being used herein as therein defined).
B. A portion of the proceeds of the Loans may be advanced to Guarantors and
thus the Guarantied Obligations (as hereinafter defined) are being incurred for
and will inure to the benefit of Guarantors (which benefits are hereby
acknowledged).
C. It is a condition precedent to the making of the initial Loans under the
Credit Agreement that Company's obligations thereunder be guarantied by
Guarantors.
D. Guarantors are willing irrevocably and unconditionally to guaranty such
obligations of Company.
NOW, THEREFORE, based upon the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, and
in order to induce Lenders and Guarantied Party to enter into the Credit
Agreement and to make Loans and other extensions of credit thereunder,
Guarantors hereby agree as follows:
SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS. As used in this Guaranty, the following terms
shall have the following meanings unless the context otherwise requires:
"BENEFICIARIES" means Guarantied Party and Lenders.
"GUARANTIED OBLIGATIONS" has the meaning assigned to that term in
subsection 2.1.
"GUARANTY" means this Subsidiary Guaranty dated as of April 1, 1998, as it
may be amended, supplemented or otherwise modified from time to time.
"PAYMENT IN FULL", "PAID IN FULL" or any similar term means payment in full
of the Guarantied Obligations, including all principal, interest, costs, fees
and expenses (including reasonable legal fees and expenses) of Beneficiaries as
required under the Loan Documents.
1.2 INTERPRETATION.
(a) References to "Sections" and "subsections" shall be to Sections and
subsections, respectively, of this Guaranty unless otherwise specifically
provided.
(b) In the event of any conflict or inconsistency between the terms,
conditions and provisions of this Guaranty and the terms, conditions and
provisions of the Credit Agreement, the terms, conditions and provisions of this
Guaranty shall prevail.
SECTION 2. THE GUARANTY
2.1 GUARANTY OF THE GUARANTIED OBLIGATIONS. Subject to the provisions of
subsection 2.2(a), Guarantors jointly and severally hereby irrevocably and
unconditionally guaranty the due and punctual payment in full of all Guarantied
Obligations when the same shall become due, whether at stated maturity, by
required prepayment, declaration, acceleration, demand or otherwise (including
amounts that would become due but for the operation of the automatic stay under
Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss. 362(a)). The term
"GUARANTIED OBLIGATIONS" is used herein in its most comprehensive sense and
includes:
(a) any and all Obligations of Company, in each case now or hereafter made,
incurred or created, whether absolute or contingent, liquidated or unliquidated,
whether due or not due, and however arising under or in connection with the
Credit Agreement and the other Loan Documents, including those arising under
successive borrowing transactions under the Credit Agreement which shall either
continue the Obligations of Company or from time to time renew them after they
have been satisfied and including interest which, but for the filing of a
petition in bankruptcy with respect to Company, would have accrued on any
Guarantied Obligations, whether or not a claim is allowed against Company for
such interest in the related bankruptcy proceeding; and
(b) those expenses set forth in subsection 2.9 hereof.
2.2 LIMITATION ON AMOUNT GUARANTIED; CONTRIBUTION BY GUARANTORS. (a)
Anything contained in this Guaranty to the contrary notwithstanding, if any
Fraudulent Transfer Law (as hereinafter defined) is determined by a court of
competent jurisdiction to be applicable to the obligations of any Guarantor
under this Guaranty, such obligations of such Guarantor hereunder shall be
limited to a maximum aggregate amount equal to the largest amount that would not
render its obligations hereunder subject to avoidance as a fraudulent transfer
or conveyance under Section 548 of Title 11 of the United States Code or any
applicable provisions of comparable state law (collectively, the "FRAUDULENT
TRANSFER LAWS"), in each case after giving effect to all other liabilities of
such Guarantor, contingent or otherwise, that are relevant under the Fraudulent
Transfer Laws (specifically excluding, however, any liabilities of such
Guarantor (x) in respect of intercompany indebtedness to Company or other
affiliates of Company to the extent that such indebtedness would be discharged
in an amount equal to the amount paid by such Guarantor hereunder and (y) under
any guaranty of Subordinated Indebtedness which guaranty contains a limitation
as to maximum amount similar to that set forth in this subsection 2.2(a),
pursuant to which the liability of such Guarantor hereunder is included in the
liabilities taken into account in determining such maximum amount) and after
giving effect as assets to the value (as determined under the applicable
provisions of the Fraudulent Transfer Laws) of any rights to subrogation,
reimbursement, indemnification or contribution of such Guarantor pursuant to
applicable law or pursuant to the terms of any agreement (including any such
right of contribution under subsection 2.2(b).
(b) Guarantors under this Guaranty together desire to allocate among
themselves in a fair and equitable manner, their obligations arising under this
Guaranty. Accordingly, in the event any payment or distribution is made on any
date by any Guarantor under this Guaranty (a "FUNDING GUARANTOR") that exceeds
its Fair Share (as defined below) as of such date, that Funding Guarantor shall
be entitled to a contribution from each of the other Guarantors in the amount of
such other Guarantor's Fair Share Shortfall (as defined below) as of such date,
with the result that all such contributions will cause each Guarantor's
Aggregate Payments (as defined below) to equal its Fair Share as of such date.
"FAIR SHARE" means, with respect to a Guarantor as of any date of determination,
an amount equal to (i) the ratio of (x) the Adjusted Maximum Amount (as defined
below) with respect to such Guarantor to (y) the aggregate of the Adjusted
Maximum Amounts with respect to all Guarantors MULTIPLIED BY (ii) the aggregate
amount paid or distributed on or before such date by all Funding Guarantors
under this Guaranty in respect of the obligations guarantied. "FAIR SHARE
SHORTFALL" means, with respect to a Guarantor as of any date of determination,
the excess, if any, of the Fair Share of such Guarantor over the Aggregate
Payments of such Guarantor. "ADJUSTED MAXIMUM AMOUNT" means, with respect to a
Guarantor as of any date of determination, the maximum aggregate amount of the
obligations of such Guarantor under this Guaranty determined as of such date, in
the case of any Guarantor, in accordance with subsection 2.2(a); PROVIDED that,
solely for purposes of calculating the "Adjusted Maximum Amount" with respect to
any Guarantor for purposes of this subsection 2.2(b), any assets or liabilities
of such Guarantor arising by virtue of any rights to subrogation, reimbursement
or indemnification or any rights to or obligations of contribution hereunder
shall not be considered as assets or liabilities of such Guarantor. "AGGREGATE
PAYMENTS" means, with respect to a Guarantor as of any date of determination, an
amount equal to (i) the aggregate amount of all payments and distributions made
on or before such date by such Guarantor in respect of this Guaranty (including
in respect of this subsection 2.2(b) MINUS (ii) the aggregate amount of all
payments received on or before such date by such Guarantor from the other
Guarantors as contributions under this subsection 2.2(b). The amounts payable as
contributions hereunder shall be determined as of the date on which the related
payment or distribution is made by the applicable Funding Guarantor. The
allocation among Guarantors of their obligations as set forth in this subsection
2.2(b) shall not be construed in any way to limit the liability of any Guarantor
hereunder.
2.3 PAYMENT BY GUARANTORS; APPLICATION OF PAYMENTS. Subject to the
provisions of subsection 2.2(a), Guarantors hereby jointly and severally agree,
in furtherance of the foregoing and not in limitation of any other right which
any Beneficiary may have at law or in equity against any Guarantor by virtue
hereof, that upon the failure of Company to pay any of the Guarantied
Obligations when and as the same shall become due, whether at stated maturity,
by required prepayment, declaration, acceleration, demand or otherwise
(including amounts that would become due but for the operation of the automatic
stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. ss. 362(a)),
Guarantors will upon demand pay, or cause to be paid, in cash, to Guarantied
Party for the ratable benefit of Beneficiaries, an amount equal to the sum of
the unpaid principal amount of all Guarantied Obligations then due as aforesaid,
accrued and unpaid interest on such Guarantied Obligations (including interest
which, but for the filing of a petition in bankruptcy with respect to Company,
would have accrued on such Guarantied Obligations, whether or not a claim is
allowed against Company for such interest in the related bankruptcy proceeding)
and all other Guarantied Obligations then owed to Beneficiaries as aforesaid.
All such payments shall be applied promptly from time to time by Guarantied
Party as provided in subsection 2.4D of the Credit Agreement.
2.4 LIABILITY OF GUARANTORS ABSOLUTE. Each Guarantor agrees that its
obligations hereunder are irrevocable, absolute, independent and unconditional
and shall not be affected by any circumstance which constitutes a legal or
equitable discharge of a guarantor or surety other than payment in full of the
Guarantied Obligations. In furtherance of the foregoing and without limiting the
generality thereof, each Guarantor agrees as follows:
(a) This Guaranty is a guaranty of payment when due and not of
collectibility.
(b) Guarantied Party may enforce this Guaranty upon the occurrence of an
Event of Default under the Credit Agreement notwithstanding the existence of any
dispute between Company and any Beneficiary with respect to the existence of
such Event of Default.
(c) The obligations of each Guarantor hereunder are independent of the
obligations of Company under the Loan Documents and the obligations of any other
guarantor (including any other Guarantor) of the obligations of Company under
the Loan Documents, and a separate action or actions may be brought and
prosecuted against such Guarantor whether or not any action is brought against
Company or any of such other guarantors and whether or not Company is joined in
any such action or actions.
(d) Payment by any Guarantor of a portion, but not all, of the Guarantied
Obligations shall in no way limit, affect, modify or abridge any Guarantor's
liability for any portion of the Guarantied Obligations which has not been paid.
Without limiting the generality of the foregoing, if Guarantied Party is awarded
a judgment in any suit brought to enforce any Guarantor's covenant to pay a
portion of the Guarantied Obligations, such judgment shall not be deemed to
release such Guarantor from its covenant to pay the portion of the Guarantied
Obligations that is not the subject of such suit, and such judgment shall not,
except to the extent satisfied by such Guarantor, limit, affect, modify or
abridge any other Guarantor's liability hereunder in respect of the Guarantied
Obligations.
(e) Any Beneficiary, upon such terms as it deems appropriate, without
notice or demand and without affecting the validity or enforceability of this
Guaranty or giving rise to any reduction, limitation, impairment, discharge or
termination of any Guarantor's liability hereunder, from time to time may (i)
renew, extend, accelerate, increase the rate of interest on, or otherwise change
the time, place, manner or terms of payment of the Guarantied Obligations, (ii)
settle, compromise, release or discharge, or accept or refuse any offer of
performance with respect to, or substitutions for, the Guarantied Obligations or
any agreement relating thereto and/or subordinate the payment of the same to the
payment of any other obligations; (iii) request and accept other guaranties of
the Guarantied Obligations and take and hold security for the payment of this
Guaranty or the Guarantied Obligations; (iv) release, surrender, exchange,
substitute, compromise, settle, rescind, waive, alter, subordinate or modify,
with or without consideration, any security for payment of the Guarantied
Obligations, any other guaranties of the Guarantied Obligations, or any other
obligation of any Person (including any other Guarantor) with respect to the
Guarantied Obligations; (v) enforce and apply any security now or hereafter held
by or for the benefit of such Beneficiary in respect of this Guaranty or the
Guarantied Obligations and direct the order or manner of sale thereof, or
exercise any other right or remedy that such Beneficiary may have against any
such security, in each case as such Beneficiary in its discretion may determine
consistent with the Credit Agreement and any applicable security agreement,
including foreclosure on any such security pursuant to one or more judicial or
nonjudicial sales, whether or not every aspect of any such sale is commercially
reasonable, and even though such action operates to impair or extinguish any
right of reimbursement or subrogation or other right or remedy of any Guarantor
against Company or any security for the Guarantied Obligations; and (vi)
exercise any other rights available to it under the Loan Documents.
(f) This Guaranty and the obligations of Guarantors hereunder shall be
valid and enforceable and shall not be subject to any reduction, limitation,
impairment, discharge or termination for any reason (other than payment in full
of the Guarantied Obligations), including the occurrence of any of the
following, whether or not any Guarantor shall have had notice or knowledge of
any of them: (i) any failure or omission to assert or enforce or agreement or
election not to assert or enforce, or the stay or enjoining, by order of court,
by operation of law or otherwise, of the exercise or enforcement of, any claim
or demand or any right, power or remedy (whether arising under the Loan
Documents, at law, in equity or otherwise) with respect to the Guarantied
Obligations or any agreement relating thereto, or with respect to any other
guaranty of or security for the payment of the Guarantied Obligations; (ii) any
rescission, waiver, amendment or modification of, or any consent to departure
from, any of the terms or provisions (including provisions relating to events of
default) of the Credit Agreement, any of the other Loan Documents or any
agreement or instrument executed pursuant thereto, or of any other guaranty or
security for the Guarantied Obligations, in each case whether or not in
accordance with the terms of the Credit Agreement or such Loan Document or any
agreement relating to such other guaranty or security; (iii) the Guarantied
Obligations, or any agreement relating thereto, at any time being found to be
illegal, invalid or unenforceable in any respect; (iv) the application of
payments received from any source (other than payments received pursuant to the
other Loan Documents or from the proceeds of any security for the Guarantied
Obligations to the payment of indebtedness other than the Guarantied
Obligations, even though any Beneficiary might have elected to apply such
payment to any part or all of the Guarantied Obligations; (v) any Beneficiary's
consent to the change, reorganization or termination of the corporate structure
or existence of Company or any of its Subsidiaries and to any corresponding
restructuring of the Guarantied Obligations; (vi) any failure to perfect or
continue perfection of a security interest in any collateral which secures any
of the Guarantied Obligations; (vii) any defenses, set-offs or counterclaims
which Company may allege or assert against any Beneficiary in respect of the
Guarantied Obligations, including failure of consideration, breach of warranty,
payment, statute of frauds, statute of limitations, accord and satisfaction and
usury; and (viii) any other act or thing or omission, or delay to do any other
act or thing, which may or might in any manner or to any extent vary the risk of
any Guarantor as an obligor in respect of the Guarantied Obligations.
2.5 WAIVERS BY GUARANTORS. Each Guarantor hereby waives, for the benefit of
Beneficiaries:
(a) any right to require any Beneficiary, as a condition of payment or
performance by such Guarantor, to (i) proceed against Company, any other
guarantor (including any other Guarantor) of the Guarantied Obligations or any
other Person, (ii) proceed against or exhaust any security held from Company,
any such other guarantor or any other Person, (iii) proceed against or have
resort to any balance of any deposit account or credit on the books of any
Beneficiary in favor of Company or any other Person, or (iv) pursue any other
remedy in the power of any Beneficiary whatsoever;
(b) any defense arising by reason of the incapacity, lack of authority or
any disability or other defense of Company including any defense based on or
arising out of the lack of validity or the unenforceability of the Guarantied
Obligations or any agreement or instrument relating thereto or by reason of the
cessation of the liability of Company from any cause other than payment in full
of the Guarantied Obligations;
(c) any defense based upon any statute or rule of law which provides that
the obligation of a surety must be neither larger in amount nor in other
respects more burdensome than that of the principal;
(d) any defense based upon any Beneficiary's errors or omissions in the
administration of the Guarantied Obligations, except behavior which amounts to
bad faith;
(e) (i) any principles or provisions of law, statutory or otherwise, which
are or might be in conflict with the terms of this Guaranty and any legal or
equitable discharge of such Guarantor's obligations hereunder, (ii) the benefit
of any statute of limitations affecting such Guarantor's liability hereunder or
the enforcement hereof, (iii) any rights to set-offs, recoupments and
counterclaims, and (iv) promptness, diligence and any requirement that any
Beneficiary protect, secure, perfect or insure any security interest or lien or
any property subject thereto;
(f) notices, demands, presentments, protests, notices of protest, notices
of dishonor and notices of any action or inaction, including acceptance of this
Guaranty, notices of default under the Credit Agreement or any agreement or
instrument related thereto, notices of any renewal, extension or modification of
the Guarantied Obligations or any agreement related thereto, notices of any
extension of credit to Company and notices of any of the matters referred to in
subsection 2.4 and any right to consent to any thereof; and
(g) any defenses or benefits that may be derived from or afforded by law
which limit the liability of or exonerate guarantors or sureties, or which may
conflict with the terms of this Guaranty.
2.6 GUARANTORS' RIGHTS OF SUBROGATION, CONTRIBUTION, ETC. Each Guarantor
hereby waives, until the Guarantied Obligations shall have been indefeasibly
paid in full and the Commitments shall have terminated and all Letters of Credit
shall have expired or been cancelled, any claim, right or remedy, direct or
indirect, that such Guarantor now has or may hereafter have against Company or
any of its assets in connection with this Guaranty or the performance by such
Guarantor of its obligations hereunder, in each case whether such claim, right
or remedy arises in equity, under contract, by statute under common law or
otherwise and including (a) any right of subrogation, reimbursement or
indemnification that such Guarantor now has or may hereafter have against
Company, (b) any right to enforce, or to participate in, any claim, right or
remedy that any Beneficiary now has or may hereafter have against Company, and
(c) any benefit of, and any right to participate in, any collateral or security
now or hereafter held by any Beneficiary. In addition, until the Guarantied
Obligations shall have been indefeasibly paid in full and the Commitments shall
have terminated and all Letters of Credit shall have expired or been cancelled,
each Guarantor shall withhold exercise of any right of contribution such
Guarantor may have against any other guarantor (including any other Guarantor)
of the Guarantied Obligations (including any such right of contribution under
subsection 2.2(b). Each Guarantor further agrees that, to the extent the waiver
or agreement to withhold the exercise of its rights of subrogation,
reimbursement, indemnification and contribution as set forth herein is found by
a court of competent jurisdiction to be void or voidable for any reason, any
rights of subrogation, reimbursement or indemnification such Guarantor may have
against Company or against any collateral or security, and any rights of
contribution such Guarantor may have against any such other guarantor, shall be
junior and subordinate to any rights any Beneficiary may have against Company,
to all right, title and interest any Beneficiary may have in any such collateral
or security, and to any right any Beneficiary may have against such other
guarantor. If any amount shall be paid to any Guarantor on account of any such
subrogation, reimbursement, indemnification or contribution rights at any time
when all Guarantied Obligations shall not have been paid in full, such amount
shall be held in trust for Guarantied Party on behalf of Beneficiaries and shall
forthwith be paid over to Guarantied Party for the benefit of Beneficiaries to
be credited and applied against the Guarantied Obligations, whether matured or
unmatured, in accordance with the terms hereof.
2.7 SUBORDINATION OF OTHER OBLIGATIONS. Any indebtedness of Company or any
Guarantor now or hereafter held by any Guarantor (the "OBLIGEE GUARANTOR") is
hereby subordinated in right of payment to the Guarantied Obligations, and any
such indebtedness collected or received by the Obligee Guarantor after an Event
of Default has occurred and is continuing shall be held in trust for Guarantied
Party on behalf of Beneficiaries and shall forthwith be paid over to Guarantied
Party for the benefit of Beneficiaries to be credited and applied against the
Guarantied Obligations but without affecting, impairing or limiting in any
manner the liability of the Obligee Guarantor under any other provision of this
Guaranty.
2.8 EXPENSES. Guarantors jointly and severally agree to pay, or cause to be
paid, on demand, and to save Beneficiaries harmless against liability for, any
and all costs and expenses (including fees and disbursements of counsel and
allocated costs of internal counsel) incurred or expended by any Beneficiary in
connection with the enforcement of or preservation of any rights under this
Guaranty.
2.9 CONTINUING GUARANTY. This Guaranty is a continuing guaranty and shall
remain in effect until all of the Guarantied Obligations shall have been paid in
full and the Commitments shall have terminated and all Letters of Credit shall
have expired or been cancelled. Each Guarantor hereby irrevocably waives any
right to revoke this Guaranty as to future transactions giving rise to any
Guarantied Obligations.
2.10 RIGHTS CUMULATIVE. The rights, powers and remedies given to
Beneficiaries by this Guaranty are cumulative and shall be in addition to and
independent of all rights, powers and remedies given to Beneficiaries by virtue
of any statute or rule of law or in any of the other Loan Documents or any
agreement between any Guarantor and any Beneficiary or Beneficiaries or between
Company and any Beneficiary or Beneficiaries. Any forbearance or failure to
exercise, and any delay by any Beneficiary in exercising, any right, power or
remedy hereunder shall not impair any such right, power or remedy or be
construed to be a waiver thereof, nor shall it preclude the further exercise of
any such right, power or remedy.
2.11 BANKRUPTCY; POST-PETITION INTEREST; REINSTATEMENT OF GUARANTY. (a) So
long as any Guarantied Obligations remain outstanding, no Guarantor shall,
without the prior written consent of Guarantied Party acting pursuant to the
instructions of Requisite Lenders, commence or join with any other Person in
commencing any bankruptcy, reorganization or insolvency proceedings of or
against Company. The obligations of Guarantors under this Guaranty shall not be
reduced, limited, impaired, discharged, deferred, suspended or terminated by any
proceeding, voluntary or involuntary, involving the bankruptcy, insolvency,
receivership, reorganization, liquidation or arrangement of Company or by any
defense which Company may have by reason of the order, decree or decision of any
court or administrative body resulting from any such proceeding.
(b) Each Guarantor acknowledges and agrees that any interest on any portion
of the Guarantied Obligations which accrues after the commencement of any
proceeding referred to in clause (a) above (or, if interest on any portion of
the Guarantied Obligations ceases to accrue by operation of law by reason of the
commencement of said proceeding, such interest as would have accrued on such
portion of the Guarantied Obligations if said proceedings had not been
commenced) shall be included in the Guarantied Obligations because it is the
intention of Guarantors and Beneficiaries that the Guarantied Obligations which
are guarantied by Guarantors pursuant to this Guaranty should be determined
without regard to any rule of law or order which may relieve Company of any
portion of such Guarantied Obligations. Guarantors will permit any trustee in
bankruptcy, receiver, debtor in possession, assignee for the benefit of
creditors or similar person to pay Guarantied Party, or allow the claim of
Guarantied Party in respect of, any such interest accruing after the date on
which such proceeding is commenced.
(c) In the event that all or any portion of the Guarantied Obligations are
paid by Company, the obligations of Guarantors hereunder shall continue and
remain in full force and effect or be reinstated, as the case may be, in the
event that all or any part of such payment(s) are rescinded or recovered
directly or indirectly from any Beneficiary as a preference, fraudulent transfer
or otherwise, and any such payments which are so rescinded or recovered shall
constitute Guarantied Obligations for all purposes under this Guaranty.
2.12 NOTICE OF EVENTS. As soon as Guarantor obtains knowledge thereof,
Guarantor shall give Guarantied Party written notice of any condition or event
which has resulted in (a) a material adverse change in the financial condition
of Guarantor or Company or (b) any Event of Default or Potential Event of
Default.
2.13 SET OFF. In addition to any other rights any Beneficiary may have
under law or under this Guaranty, such Beneficiary is authorized at any time or
from time to time while an Event of Default has occurred and is continuing,
without notice (any such notice being hereby expressly waived), to set off and
to appropriate and to apply any and all deposits (general or special, including
indebtedness evidenced by certificates of deposit, whether matured or unmatured)
and any other indebtedness of such Beneficiary owing to Guarantor and any other
property of Guarantor held by any Beneficiary to or for the credit or the
account of Guarantor against and on account of the Guarantied Obligations and
liabilities of Guarantor to any Beneficiary under this Guaranty.
SECTION 3. MISCELLANEOUS
3.1 SURVIVAL OF WARRANTIES. All agreements, representations and warranties
made herein shall survive the execution and delivery of this Guaranty and the
other Loan Documents and any increase in the Commitments under the Credit
Agreement.
3.2 NOTICES. Any communications between Guarantied Party and any Guarantor
and any notices or requests provided herein to be given may be given by mailing
the same, postage prepaid, or by telex, facsimile transmission or cable to each
such party at its address set forth in the Credit Agreement, on the signature
pages hereof or to such other addresses as each such party may in writing
hereafter indicate. Any notice, request or demand to or upon Guarantied Party or
any Guarantor shall not be effective until received.
3.3 SEVERABILITY. In case any provision in or obligation under this
Guaranty shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
3.4 AMENDMENTS AND WAIVERS. No amendment, modification, termination or
waiver of any provision of this Guaranty, and no consent to any departure by any
Guarantor therefrom, shall in any event be effective without the written
concurrence of Guarantied Party and, in the case of any such amendment or
modification, each Guarantor against whom enforcement of such amendment or
modification is sought. Any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given.
3.5 HEADINGS. Section and subsection headings in this Guaranty are included
herein for convenience of reference only and shall not constitute a part of this
Guaranty for any other purpose or be given any substantive effect.
3.6 APPLICABLE LAW; RULES OF CONSTRUCTION. THIS GUARANTY AND THE RIGHTS AND
OBLIGATIONS OF GUARANTORS AND BENEFICIARIES HEREUNDER SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. The
rules of construction set forth in subsection 1.3 of the Credit Agreement shall
be applicable to this Guaranty MUTATIS MUTANDIS.
3.7 SUCCESSORS AND ASSIGNS. This Guaranty is a continuing guaranty and
shall be binding upon each Guarantor and its respective successors and assigns.
This Guaranty shall inure to the benefit of Beneficiaries and their respective
successors and assigns. No Guarantor shall assign this Guaranty or any of the
rights or obligations of such Guarantor hereunder without the prior written
consent of all Lenders. Any Beneficiary may, without notice or consent, assign
its interest in this Guaranty in whole or in part. The terms and provisions of
this Guaranty shall inure to the benefit of any transferee or assignee of any
Loan, and in the event of such transfer or assignment the rights and privileges
herein conferred upon such Beneficiary shall automatically extend to and be
vested in such transferee or assignee, all subject to the terms and conditions
hereof.
3.8 CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST ANY GUARANTOR ARISING OUT OF OR RELATING TO THIS
GUARANTY, OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY
EXECUTING AND DELIVERING THIS AGREEMENT, EACH GUARANTOR, FOR ITSELF AND IN
CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO
SUCH GUARANTOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION 3.2;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO
CONFER PERSONAL JURISDICTION OVER SUCH GUARANTOR IN ANY SUCH PROCEEDING IN ANY
SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY
RESPECT;
(V) AGREES THAT BENEFICIARIES RETAIN THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST SUCH GUARANTOR IN
THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 3.8 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT
PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
3.9 WAIVER OF TRIAL BY JURY. EACH GUARANTOR AND, BY ITS ACCEPTANCE OF THE
BENEFITS HEREOF, EACH BENEFICIARY EACH HEREBY AGREES TO WAIVE ITS RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT
OF THIS GUARANTY. The scope of this waiver is intended to be all encompassing of
any and all disputes that may be filed in any court and that relate to the
subject matter of this transaction, including contract claims, tort claims,
breach of duty claims and all other common law and statutory claims. Each
Guarantor and, by its acceptance of the benefits hereof, each Beneficiary, each
(i) acknowledges that this waiver is a material inducement for such Guarantor
and Beneficiaries to enter into a business relationship, that such Guarantor and
Beneficiaries have already relied on this waiver in entering into this Guaranty
or accepting the benefits thereof, as the case may be, and that each will
continue to rely on this waiver in their related future dealings and (ii)
further warrants and represents that each has reviewed this waiver with its
legal counsel, and that each knowingly and voluntarily waives its jury trial
rights following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE,
MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A
MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 3.9 AND EXECUTED
BY GUARANTIED PARTY AND EACH GUARANTOR), AND THIS WAIVER SHALL APPLY TO ANY
SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS GUARANTY.
In the event of litigation, this Guaranty may be filed as a written consent to a
trial by the court.
3.10 NO OTHER WRITING. This writing is intended by Guarantors and
Beneficiaries as the final expression of this Guaranty and is also intended as a
complete and exclusive statement of the terms of their agreement with respect to
the matters covered hereby. No course of dealing, course of performance or trade
usage, and no parol evidence of any nature, shall be used to supplement or
modify any terms of this Guaranty. There are no conditions to the full
effectiveness of this Guaranty.
3.11 FURTHER ASSURANCES. At any time or from time to time, upon the request
of Guarantied Party, Guarantors shall execute and deliver such further documents
and do such other acts and things as Guarantied Party may reasonably request in
order to effect fully the purposes of this Guaranty.
3.12 ADDITIONAL GUARANTORS. The initial Guarantors hereunder shall be such
of the Subsidiaries of Company as are signatories hereto on the date hereof.
From time to time subsequent to the date hereof, additional Subsidiaries of
Company may become parties hereto, as additional Guarantors (each an "ADDITIONAL
GUARANTOR"), by executing a counterpart of this Guaranty. Upon delivery of any
such counterpart to Agent, notice of which is hereby waived by Guarantors, each
such Additional Guarantor shall be a Guarantor and shall be as fully a party
hereto as if such Additional Guarantor were an original signatory hereof. Each
Guarantor expressly agrees that its obligations arising hereunder shall not be
affected or diminished by the addition or release of any other Guarantor
hereunder, nor by any election of Agent not to cause any Subsidiary of Company
to become an Additional Guarantor hereunder. This Guaranty shall be fully
effective as to any Guarantor that is or becomes a party hereto regardless of
whether any other Person becomes or fails to become or ceases to be a Guarantor
hereunder.
3.13 COUNTERPARTS; EFFECTIVENESS. This Guaranty may be executed in any
number of counterparts and by the different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed to be
an original for all purposes; but all such counterparts together shall
constitute but one and the same instrument. This Guaranty shall become effective
as to each Guarantor upon the execution of a counterpart hereof by such
Guarantor (whether or not a counterpart hereof shall have been executed by any
other Guarantor) and receipt by Guarantied Party of written or telephonic
notification of such execution and authorization of delivery thereof.
3.14 GUARANTIED PARTY AS AGENT.
(a) Guarantied Party has been appointed to act as Guarantied Party
hereunder by Lenders. Guarantied Party shall be obligated, and shall have the
right hereunder, to make demands, to give notices, to exercise or refrain from
exercising any rights, and to take or refrain from taking any action, solely in
accordance with this Guaranty and the Credit Agreement; PROVIDED that Guarantied
Party shall exercise, or refrain from exercising, any remedies hereunder in
accordance with the instructions of Requisite Lenders.
(b) Guarantied Party shall at all times be the same Person that is Agent
under the Credit Agreement. Written notice of resignation by Agent pursuant to
subsection 9.5 of the Credit Agreement shall also constitute notice of
resignation as Guarantied Party under this Guaranty; removal of Agent pursuant
to subsection 9.5 of the Credit Agreement shall also constitute removal as
Guarantied Party under this Guaranty; and appointment of a successor Agent
pursuant to subsection 9.5 of the Credit Agreement shall also constitute
appointment of a successor Guarantied Party under this Guaranty. Upon the
acceptance of any appointment as Agent under subsection 9.5 of the Credit
Agreement by a successor Agent, that successor Agent shall thereupon succeed to
and become vested with all the rights, powers, privileges and duties of the
retiring or removed Guarantied Party under this Guaranty, and the retiring or
removed Guarantied Party under this Guaranty shall promptly (i) transfer to such
successor Guarantied Party all sums held hereunder, together with all records
and other documents necessary or appropriate in connection with the performance
of the duties of the successor Guarantied Party under this Guaranty, and (ii)
take such other actions as may be necessary or appropriate in connection with
the assignment to such successor Guarantied Party of the rights created
hereunder, whereupon such retiring or removed Guarantied Party shall be
discharged from its duties and obligations under this Guaranty. After any
retiring or removed Guarantied Party's resignation or removal hereunder as
Guarantied Party, the provisions of this Guaranty shall inure to its benefit as
to any actions taken or omitted to be taken by it under this Guaranty while it
was Guarantied Party hereunder.
IN WITNESS WHEREOF, each of the undersigned Guarantors has caused this
Guaranty to be duly executed and delivered by its officer thereunto duly
authorized as of the date first written above.
EXPRESS SCRIPTS VISION CORPORATION
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
PHYNET, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
IVTX, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
IVTX OF DALLAS, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
IVTX OF HOUSTON, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
ESI CANADA HOLDINGS, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
ESI CANADA, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
VALUE HEALTH, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
MANAGED PRESCRIPTIONS NETWORK, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
PRESCRIPTION DRUG SERVICE, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
RXNET, INC. OF CALIFORNIA
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
DENALI ASSOCIATES, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
VALUERX NORTHEAST, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
MEDCOUNTER, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
HEALTH CARE SERVICES, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
VALUERX, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
COST CONTAINMENT CORP. OF AMERICA
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
DIAGNOSTEK, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
MEDINTELL SYSTEMS CORPORATION
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
VALUERX PHARMACY PROGRAM, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
VALUERX OF MICHIGAN, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
DIAGNOSTEK PHARMACY SERVICES, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
DIAGNOSTEK PHARMACY, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
DIAGNOSTEK OF SPRINGFIELD, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
IPH, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
MHI, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
EXHIBIT 10.4
SUBSIDIARY PLEDGE AGREEMENT
This SUBSIDIARY PLEDGE AGREEMENT (this "AGREEMENT") is dated as of April 1,
1998 and entered into by and between all Subsidiaries of the Company as
signatories hereto (each as a "PLEDGOR" and collectively all "PLEDGORS") and
Bankers Trust Company as agent for and representative of (in such capacity
herein called "SECURED PARTY") the financial institutions ("LENDERS") party to
the Credit Agreement referred to below.
PRELIMINARY STATEMENTS
A. Each Pledgor is the legal and beneficial owner of the shares of stock
(the "PLEDGED SHARES") described in Part A of SCHEDULE I annexed hereto and
issued by the corporations named therein.
B. Secured Party and Lenders have entered into a Credit Agreement dated as
of April 1, 1998 (as amended, supplemented or otherwise modified from time to
time, the "CREDIT AGREEMENT," the terms defined therein and not otherwise
defined herein being used herein as therein defined) with Express Scripts, Inc.,
a Delaware corporation ("COMPANY"), pursuant to which Lenders have made certain
commitments, subject to the terms and conditions set forth in the Credit
Agreement, to extend certain credit facilities to Company.
C. Pledgor has executed and delivered that certain Subsidiary Guaranty
dated as of April 1, 1998 (as amended, supplemented or otherwise modified from
time to time, the "GUARANTY") in favor of Secured Party for the benefit of
Lenders pursuant to which Pledgor has guarantied the prompt payment and
performance when due of all obligations of Company under the Credit Agreement.
D. It is a condition precedent to the initial extensions of credit by
Lenders under the Credit Agreement that Pledgor shall have granted the security
interests and undertaken the obligations contemplated by this Agreement.
NOW, THEREFORE, in consideration of the premises and in order to induce
Lenders to make Loans and other extensions of credit under the Credit Agreement,
and for other good and valuable consideration, the receipt and adequacy of which
are hereby acknowledged, Pledgor hereby agrees with Secured Party as follows:
SECTION 1. PLEDGE OF SECURITY. Pledgor hereby pledges and assigns to
Secured Party, and hereby grants to Secured Party a security interest in, all of
Pledgor's right, title and interest in and to the following (the "PLEDGED
COLLATERAL"):
(a) the Pledged Shares and the certificates representing the Pledged Shares
and any interest of Pledgor in the entries on the books of any financial
intermediary pertaining to the Pledged Shares, and all dividends, cash,
warrants, rights, instruments and other property or proceeds from time to time
received, receivable or otherwise distributed in respect of or in exchange for
any or all of the Pledged Shares;
(b) all additional shares of, and all securities convertible into and
warrants, options and other rights to purchase or otherwise acquire, stock of
any issuer of the Pledged Shares from time to time acquired by Pledgor in any
manner (which shares shall be deemed to be part of the Pledged Shares), the
certificates or other instruments representing such additional shares,
securities, warrants, options or other rights and any interest of Pledgor in the
entries on the books of any financial intermediary pertaining to such additional
shares, and all dividends, cash, warrants, rights, instruments and other
property or proceeds from time to time received, receivable or otherwise
distributed in respect of or in exchange for any or all of such additional
shares, securities, warrants, options or other rights;
(c) all shares of, and all securities convertible into and warrants,
options and other rights to purchase or otherwise acquire, stock of any Person
that, after the date of this Agreement, becomes, as a result of any occurrence,
a direct Subsidiary of Pledgor (which shares shall be deemed to be part of the
Pledged Shares), the certificates or other instruments representing such shares,
securities, warrants, options or other rights and any interest of Pledgor in the
entries on the books of any financial intermediary pertaining to such shares,
and all dividends, cash, warrants, rights, instruments and other property or
proceeds from time to time received, receivable or otherwise distributed in
respect of or in exchange for any or all of such shares, securities, warrants,
options or other rights;
(d) to the extent not covered by clauses (a) through (d) above, all
proceeds of any or all of the foregoing Pledged Collateral. For purposes of this
Agreement, the term "PROCEEDS" includes whatever is receivable or received when
Pledged Collateral or proceeds are sold, exchanged, collected or otherwise
disposed of, whether such disposition is voluntary or involuntary, and includes
proceeds of any indemnity or guaranty payable to Pledgor or Secured Party from
time to time with respect to any of the Pledged Collateral.
SECTION 2. SECURITY FOR OBLIGATIONS. This Agreement secures, and the
Pledged Collateral is collateral security for, the prompt payment or performance
in full when due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise (including the payment of amounts
that would become due but for the operation of the automatic stay under Section
362(a) of the Bankruptcy Code, 11 U.S.C. ss.362(a)), of all obligations and
liabilities of every nature of Pledgor now or hereafter existing under or
arising out of or in connection with the Guaranty and all extensions or renewals
thereof, whether for principal, interest (including interest that, but for the
filing of a petition in bankruptcy with respect to Company, would accrue on such
obligations, whether or not a claim is allowed against Company for such interest
in the related bankruptcy proceeding), reimbursement of amounts drawn under
Letters of Credit, fees, expenses, indemnities or otherwise, whether voluntary
or involuntary, direct or indirect, absolute or contingent, liquidated or
unliquidated, whether or not jointly owed with others, and whether or not from
time to time decreased or extinguished and later increased, created or incurred,
and all or any portion of such obligations or liabilities that are paid, to the
extent all or any part of such payment is avoided or recovered directly or
indirectly from Secured Party or any Lender as a preference, fraudulent transfer
or otherwise, and all obligations of every nature of Pledgor now or hereafter
existing under this Agreement (all such obligations of Pledgor being the
"SECURED OBLIGATIONS").
SECTION 3. DELIVERY OF PLEDGED COLLATERAL. All certificates or instruments
representing or evidencing the Pledged Collateral shall be delivered to and held
by or on behalf of Secured Party pursuant hereto and shall be in suitable form
for transfer by delivery or, as applicable, shall be accompanied by Pledgor's
endorsement, where necessary, or duly executed instruments of transfer or
assignment in blank, all in form and substance satisfactory to Secured Party.
Upon the occurrence and during the continuation of an Event of Default (as
defined in the Credit Agreement), Secured Party shall have the right, without
notice to Pledgor, to transfer to or to register in the name of Secured Party or
any of its nominees any or all of the Pledged Collateral, subject only to the
revocable rights specified in Section 7(a); PROVIDED that, except in the case of
a bankruptcy default or an acceleration of the Loan, no such transfer or
registration shall be made without notice to Pledgor. In addition, Secured Party
shall have the right at any time to exchange certificates or instruments
representing or evidencing Pledged Collateral for certificates or instruments of
smaller or larger denominations.
SECTION 4. REPRESENTATIONS AND WARRANTIES. Pledgor represents and warrants
as follows:
(a) DUE AUTHORIZATION, ETC. OF PLEDGED COLLATERAL. All of the Pledged
Shares have been duly authorized and validly issued and are fully paid and
non-assessable.
(b) DESCRIPTION OF PLEDGED COLLATERAL. The Pledged Shares constitute all of
the issued and outstanding shares of stock of each issuer thereof organized
under the laws of a state of the United States (each a "U.S. ISSUER") and 65% of
the issued and outstanding shares of stock of each other issuer thereof (each a
"NON-U.S. ISSUER"), and there are no outstanding warrants, options or other
rights to purchase, or other agreements outstanding with respect to, or property
that is now or hereafter convertible into, or that requires the issuance or sale
of, any Pledged Shares.
(c) OWNERSHIP OF PLEDGED COLLATERAL. Pledgor is the legal, record and
beneficial owner of the Pledged Collateral free and clear of any Lien except for
the security interest created by this Agreement.
SECTION 5. TRANSFERS AND OTHER LIENS; ADDITIONAL PLEDGED COLLATERAL; ETC.
Pledgor shall:
(a) not, except as expressly permitted by the Credit Agreement, (i) sell,
assign (by operation of law or otherwise) or otherwise dispose of, or grant any
option with respect to, any of the Pledged Collateral, (ii) create or suffer to
exist any Lien upon or with respect to any of the Pledged Collateral, except for
the security interest under this Agreement, or (iii) permit any issuer of
Pledged Shares to merge or consolidate unless all the outstanding capital stock
of the surviving or resulting corporation is, upon such merger or consolidation,
pledged hereunder and no cash, securities or other property is distributed in
respect of the outstanding shares of any other constituent corporation; PROVIDED
that in the event Pledgor makes an Asset Sale permitted by the Credit Agreement
and the assets subject to such Asset Sale are Pledged Shares, Secured Party
shall release the Pledged Shares that are the subject of such Asset Sale to
Pledgor free and clear of the lien and security interest under this Agreement
concurrently with the consummation of such Asset Sale; PROVIDED, FURTHER that,
as a condition precedent to such release, Secured Party shall have received
evidence satisfactory to it that arrangements satisfactory to it have been made
for delivery to Secured Party of the Net Asset Sale Proceeds of such Asset Sale;
(b) (i) cause each issuer of Pledged Shares not to issue any stock or other
securities in addition to or in substitution for the Pledged Shares issued by
such issuer, except to Pledgor, (ii) pledge hereunder, immediately upon its
acquisition (directly or indirectly) thereof, any and all additional shares of
stock or other securities of each issuer of Pledged Shares except to the extent
that such pledge would result in the pledge of more than 65% of the stock of a
Non-U.S. Issuer, and (iii) pledge hereunder, immediately upon its acquisition
(directly or indirectly) thereof, any and all shares of stock of any Person
that, after the date of this Agreement, becomes, as a result of any occurrence,
a direct Subsidiary of Pledgor unless such subsidiary is a Non-U.S. Issuer, in
which case no more than 65% of such shares of stock shall be pledged hereunder;
(c) promptly deliver to Secured Party all written notices received by it
with respect to the Pledged Collateral; and
(d) pay promptly when due all taxes, assessments and governmental charges
or levies imposed upon, and all claims against, the Pledged Collateral, except
to the extent the validity thereof is being contested in good faith; PROVIDED
that Pledgor shall in any event pay such taxes, assessments, charges, levies or
claims not later than five days prior to the date of any proposed sale of the
Pledged Collateral under any judgment, writ or warrant of attachment entered or
filed against Pledgor or any of the Pledged Collateral as a result of the
failure to make such payment.
SECTION 6. FURTHER ASSURANCES; PLEDGE AMENDMENTS.
(a) Pledgor agrees that from time to time, at the expense of Pledgor,
Pledgor will promptly execute and deliver all further instruments and documents,
and take all further action, that may be necessary or desirable, or that Secured
Party may request, in order to perfect and protect any security interest granted
or purported to be granted hereby or to enable Secured Party to exercise and
enforce its rights and remedies hereunder with respect to any Pledged
Collateral. Without limiting the generality of the foregoing, Pledgor will: (i)
execute and file such financing or continuation statements, or amendments
thereto, and such other instruments or notices, as may be necessary or
desirable, or as Secured Party may reasonably request, in order to perfect and
preserve the security interests granted or purported to be granted hereby and
(ii) at Secured Party's reasonable request, appear in and defend any action or
proceeding that may affect Pledgor's title to or Secured Party's security
interest in all or any part of the Pledged Collateral.
(b) Pledgor further agrees that it will, upon obtaining any additional
shares of stock or other securities required to be pledged hereunder as provided
in Section 5(b) or (c), promptly (and in any event within 30 days) deliver to
Secured Party a Pledge Amendment, duly executed by Pledgor, in substantially the
form of SCHEDULE II annexed hereto (a "PLEDGE AMENDMENT"), in respect of the
additional Pledged Shares to be pledged pursuant to this Agreement. Pledgor
hereby authorizes Secured Party to attach each Pledge Amendment to this
Agreement and agrees that all Pledged Shares listed on any Pledge Amendment
delivered to Secured Party shall for all purposes hereunder be considered
Pledged Collateral; PROVIDED that the failure of Pledgor to execute a Pledge
Amendment with respect to any additional Pledged Shares pledged pursuant to this
Agreement shall not impair the security interest of Secured Party therein or
otherwise adversely affect the rights and remedies of Secured Party hereunder
with respect thereto.
SECTION 7. VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Event of Default shall have occurred and be continuing:
(i) Pledgor shall be entitled to exercise any and all voting and other
consensual rights pertaining to the Pledged Collateral or any part thereof for
any purpose not inconsistent with the terms of this Agreement or the Credit
Agreement in a manner which would not have a material adverse effect on the
value of the Pledged Collateral or any part thereof. It is understood, however,
that neither (A) the voting by Pledgor of any Pledged Shares for or Pledgor's
consent to the election of directors at a regularly scheduled annual or other
meeting of stockholders or with respect to incidental matters at any such
meeting nor (B) Pledgor's consent to or approval of any action otherwise
permitted under this Agreement and the Credit Agreement shall be deemed
inconsistent with the terms of this Agreement or the Credit Agreement within the
meaning of this Section 7(a)(i).
(ii) Pledgor shall be entitled to receive and retain, and to utilize free
and clear of the lien of this Agreement, any and all dividends paid in respect
of the Pledged Collateral; provided, HOWEVER, that any and all
(A) dividends paid or payable other than in cash in respect of, and
instruments and other property received, receivable or otherwise distributed in
respect of, or in exchange for, any Pledged Collateral,
(B) dividends and other distributions paid or payable in cash in respect of
any Pledged Collateral in connection with a partial or total liquidation or
dissolution or in connection with a reduction of capital, capital surplus or
paid-in-surplus, and
(C) cash paid, payable or otherwise distributed in exchange for any Pledged
Collateral, shall be, and shall forthwith be delivered to Secured Party to hold
as, Pledged Collateral and shall, if received by Pledgor, be received in trust
for the benefit of Secured Party, be segregated from the other property or funds
of Pledgor and be forthwith delivered to Secured Party as Pledged Collateral in
the same form as so received (with all necessary endorsements); and
(iii) Secured Party shall promptly execute and deliver (or cause to be
executed and delivered) to Pledgor all such dividend payment orders and other
instruments as Pledgor may from time to time reasonably request for the purpose
of enabling Pledgor to receive the dividends which it is authorized to receive
and retain pursuant to paragraph (ii) above.
(b) Upon the occurrence and during the continuation of an Event of Default:
(i) upon written notice from Secured Party to Pledgor, all rights of
Pledgor to exercise the voting and other consensual rights which it would
otherwise be entitled to exercise pursuant to Section 7(a)(i) shall cease, and
all such rights shall thereupon become vested in Secured Party who shall
thereupon have the sole right to exercise such voting and other consensual
rights;
(ii) all rights of Pledgor to receive the dividends which it would
otherwise be authorized to receive and retain pursuant to Section 7(a)(ii) shall
cease, and all such rights shall thereupon become vested in Secured Party who
shall thereupon have the sole right to receive and hold as Pledged Collateral
such dividends; and
(iii) all dividends which are received by Pledgor contrary to the
provisions of paragraph (ii) of this Section 7(b) shall be received in trust for
the benefit of Secured Party, shall be segregated from other funds of Pledgor
and shall forthwith be paid over to Secured Party as Pledged Collateral in the
same form as so received (with any necessary endorsements).
(c) In order to permit Secured Party to exercise the voting and other
consensual rights which it may be entitled to exercise pursuant to Section
7(b)(i) and to receive all dividends and other distributions which it may be
entitled to receive under Section 7(a)(ii) or Section 7(b)(ii), (i) Pledgor
shall promptly execute and deliver (or cause to be executed and delivered) to
Secured Party all such proxies, dividend payment orders and other instruments as
Secured Party may from time to time reasonably request and (ii) without limiting
the effect of the immediately preceding clause (i), Pledgor hereby grants to
Secured Party an irrevocable proxy to vote the Pledged Shares and to exercise
all other rights, powers, privileges and remedies to which a holder of the
Pledged Shares would be entitled (including giving or withholding written
consents of shareholders, calling special meetings of shareholders and voting at
such meetings), which proxy shall be effective, automatically and without the
necessity of any action (including any transfer of any Pledged Shares on the
record books of the issuer thereof) by any other Person (including the issuer of
the Pledged Shares or any officer or agent thereof), upon the occurrence of an
Event of Default and during the continuance thereof and which proxy shall only
terminate upon the payment in full of the Secured Obligations.
SECTION 8. SECURED PARTY APPOINTED ATTORNEY-IN-FACT. Pledgor hereby
irrevocably appoints Secured Party as Pledgor's attorney-in-fact, with full
authority in the place and stead of Pledgor and in the name of Pledgor, Secured
Party or otherwise, from time to time in Secured Party's discretion to take any
action and to execute any instrument that Secured Party may deem necessary or
advisable to accomplish the purposes of this Agreement, including filing one or
more financing or continuation statements, or amendments thereto, relative to
all or any part of the Pledged Collateral without the signature of Pledgor;
PROVIDED, that unless an Event of Default has occurred and is continuing,
Secured Party may not (i) receive, endorse and collect any instruments made
payable to Pledgor representing any dividend or other distribution in respect of
the Pledged Collateral or any part thereof; or (ii) file any claims or take any
action or institute any proceedings that Secured Party may deem necessary or
desirable for the collection of any of the Pledged Collateral or otherwise to
enforce the rights of Secured Party with respect to any of the Pledged
Collateral.
SECTION 9. SECURED PARTY MAY PERFORM. If Pledgor fails to perform any
agreement contained herein, Secured Party may itself perform, or cause
performance of, such agreement, and the expenses of Secured Party incurred in
connection therewith shall be payable by Pledgor under Section 14(b).
SECTION 10. STANDARD OF CARE. The powers conferred on Secured Party
hereunder are solely to protect its interest in the Pledged Collateral and shall
not impose any duty upon it to exercise any such powers. Except for the exercise
of reasonable care in the custody of any Pledged Collateral in its possession
and the accounting for moneys actually received by it hereunder, Secured Party
shall have no duty as to any Pledged Collateral, it being understood that
Secured Party shall have no responsibility for (a) ascertaining or taking action
with respect to calls, conversions, exchanges, maturities, tenders or other
matters relating to any Pledged Collateral, whether or not Secured Party has or
is deemed to have knowledge of such matters, (b) taking any necessary steps
(other than steps taken in accordance with the standard of care set forth above
to maintain possession of the Pledged Collateral) to preserve rights against any
parties with respect to any Pledged Collateral, (c) taking any necessary steps
to collect or realize upon the Secured Obligations or any guarantee therefor, or
any part thereof, or any of the Pledged Collateral, or (d) initiating any action
to protect the Pledged Collateral against the possibility of a decline in market
value. Secured Party shall be deemed to have exercised reasonable care in the
custody and preservation of Pledged Collateral in its possession if such Pledged
Collateral is accorded treatment substantially equal to that which Secured Party
accords its own property consisting of negotiable securities.
SECTION 11. REMEDIES.
(a) If any Event of Default shall have occurred and be continuing, Secured
Party may exercise in respect of the Pledged Collateral, in addition to all
other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party on default under the Uniform
Commercial Code as in effect in any relevant jurisdiction (the "CODE") (whether
or not the Code applies to the affected Pledged Collateral), and Secured Party
may also in its sole discretion, without notice except as specified below, sell
the Pledged Collateral or any part thereof in one or more parcels at public or
private sale, at any exchange or broker's board or at any of Secured Party's
offices or elsewhere, for cash, on credit or for future delivery, at such time
or times and at such price or prices and upon such other terms as Secured Party
may deem commercially reasonable, irrespective of the impact of any such sales
on the market price of the Pledged Collateral. Secured Party or any Lender may
be the purchaser of any or all of the Pledged Collateral at any such sale and
Secured Party, as agent for and representative of Lenders (but not any Lender or
Lenders in its or their respective individual capacities unless Requisite
Lenders shall otherwise agree in writing), shall be entitled, for the purpose of
bidding and making settlement or payment of the purchase price for all or any
portion of the Pledged Collateral sold at any such public sale, to use and apply
any of the Secured Obligations as a credit on account of the purchase price for
any Pledged Collateral payable by Secured Party at such sale. Each purchaser at
any such sale shall hold the property sold absolutely free from any claim or
right on the part of Pledgor, and Pledgor hereby waives (to the extent permitted
by applicable law) all rights of redemption, stay and/or appraisal which it now
has or may at any time in the future have under any rule of law or statute now
existing or hereafter enacted. Pledgor agrees that, to the extent notice of sale
shall be required by law, at least ten days' notice to Pledgor of the time and
place of any public sale or the time after which any private sale is to be made
shall constitute reasonable notification. Secured Party shall not be obligated
to make any sale of Pledged Collateral regardless of notice of sale having been
given. Secured Party may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may, without
further notice, be made at the time and place to which it was so adjourned.
Pledgor hereby waives any claims against Secured Party arising by reason of the
fact that the price at which any Pledged Collateral may have been sold at such a
private sale was less than the price which might have been obtained at a public
sale, even if Secured Party accepts the first offer received and does not offer
such Pledged Collateral to more than one offeree. If the proceeds of any sale or
other disposition of the Pledged Collateral are insufficient to pay all the
Secured Obligations, Pledgor shall be liable for the deficiency and the fees of
any attorneys employed by Secured Party to collect such deficiency.
(b) Pledgor recognizes that, by reason of certain prohibitions contained in
the Securities Act and applicable state securities laws, Secured Party may be
compelled, with respect to any sale of all or any part of the Pledged Collateral
conducted without prior registration or qualification of such Pledged Collateral
under the Securities Act and/or such state securities laws, to limit purchasers
to those who will agree, among other things, to acquire the Pledged Collateral
for their own account, for investment and not with a view to the distribution or
resale thereof. Pledgor acknowledges that any such private sales may be at
prices and on terms less favorable than those obtainable through a public sale
without such restrictions (including a public offering made pursuant to a
registration statement under the Securities Act) and, notwithstanding such
circumstances, Pledgor agrees that any such private sale shall be deemed to have
been made in a commercially reasonable manner and that Secured Party shall have
no obligation to engage in public sales and no obligation to delay the sale of
any Pledged Collateral for the period of time necessary to permit the issuer
thereof to register it for a form of public sale requiring registration under
the Securities Act or under applicable state securities laws, even if such
issuer would, or should, agree to so register it.
(c) If Secured Party determines to exercise its right to sell any or all of
the Pledged Collateral, upon written request, Pledgor shall and shall cause each
issuer of any Pledged Shares to be sold hereunder from time to time to furnish
to Secured Party all such information as Secured Party may request in order to
determine the number of shares and other instruments included in the Pledged
Collateral which may be sold by Secured Party in exempt transactions under the
Securities Act and the rules and regulations of the Securities and Exchange
Commission thereunder, as the same are from time to time in effect.
SECTION 12. APPLICATION OF PROCEEDS. All proceeds received by Secured Party
in respect of any sale of, collection from, or other realization upon all or any
part of the Pledged Collateral shall be applied as provided in subsection 2.4D
of the Credit Agreement.
SECTION 13. INDEMNITY AND EXPENSES.
(a) Pledgor agrees to indemnify Secured Party and each Lender from and
against any and all claims, losses and liabilities in any way relating to,
growing out of or resulting from this Agreement and the transactions
contemplated hereby (including enforcement of this Agreement), except to the
extent such claims, losses or liabilities result solely from Secured Party's or
such Lender's gross negligence or willful misconduct as finally determined by a
court of competent jurisdiction.
(b) Pledgor shall pay to Secured Party upon demand the amount of any and
all costs and expenses, including the reasonable fees and expenses of its
counsel and of any experts and agents, that Secured Party may incur in
connection with (i) the administration of this Agreement, (ii) the custody or
preservation of, or the sale of, collection from, or other realization upon, any
of the Pledged Collateral, (iii) the exercise or enforcement of any of the
rights of Secured Party hereunder, or (iv) the failure by Pledgor to perform or
observe any of the provisions hereof.
SECTION 14. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS. This Agreement
shall create a continuing security interest in the Pledged Collateral and shall
(a) remain in full force and effect until the payment in full of all Secured
Obligations, the cancellation or termination of the Commitments and the
cancellation or expiration of all outstanding Letters of Credit, (b) be binding
upon Pledgor, its successors and assigns, and (c) inure, together with the
rights and remedies of Secured Party hereunder, to the benefit of Secured Party
and its successors, transferees and assigns. Without limiting the generality of
the foregoing clause (c), but subject to the provisions of subsection 10.1 of
the Credit Agreement, any Lender may assign or otherwise transfer any Loans held
by it to any other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted to Lenders herein or otherwise.
Upon the payment in full of all Secured Obligations, the cancellation or
termination of the Commitments and the cancellation or expiration of all
outstanding Letters of Credit, the security interest granted hereby shall
terminate and all rights to the Pledged Collateral shall revert to Pledgor. Upon
any such termination Secured Party will, at Pledgor's expense, execute and
deliver to Pledgor such documents as Pledgor shall reasonably request to
evidence such termination and Pledgor shall be entitled to the return, upon its
request and at its expense, against receipt and without recourse to Secured
Party, of such of the Pledged Collateral as shall not have been sold or
otherwise applied pursuant to the terms hereof.
SECTION 15. SECURED PARTY AS AGENT.
(a) Secured Party has been appointed to act as Secured Party hereunder by
Lenders. Secured Party shall be obligated, and shall have the right hereunder,
to make demands, to give notices, to exercise or refrain from exercising any
rights, and to take or refrain from taking any action (including the release or
substitution of Pledged Collateral), solely in accordance with this Agreement
and the Credit Agreement; PROVIDED that Secured Party shall exercise, or refrain
from exercising, any remedies provided for in Section 11 in accordance with the
instructions of Requisite Lenders.
(b) Secured Party shall at all times be the same Person that is Agent under
the Credit Agreement. Written notice of resignation by Agent pursuant to
subsection 9.5 of the Credit Agreement shall also constitute notice of
resignation as Secured Party under this Agreement; removal of Agent pursuant to
subsection 9.5 of the Credit Agreement shall also constitute removal as Secured
Party under this Agreement; and appointment of a successor Agent pursuant to
subsection 9.5 of the Credit Agreement shall also constitute appointment of a
successor Secured Party under this Agreement. Upon the acceptance of any
appointment as Agent under subsection 9.5 of the Credit Agreement by a successor
Agent, that successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring or removed Secured
Party under this Agreement, and the retiring or removed Secured Party under this
Agreement shall promptly (i) transfer to such successor Secured Party all sums,
securities and other items of Collateral held hereunder, together with all
records and other documents necessary or appropriate in connection with the
performance of the duties of the successor Secured Party under this Agreement,
and (ii) execute and deliver to such successor Secured Party such amendments to
financing statements, and take such other actions, as may be necessary or
appropriate in connection with the assignment to such successor Secured Party of
the security interests created hereunder, whereupon such retiring or removed
Secured Party shall be discharged from its duties and obligations under this
Agreement. After any retiring or removed Agent's resignation or removal
hereunder as Secured Party, the provisions of this Agreement shall inure to its
benefit as to any actions taken or omitted to be taken by it under this
Agreement while it was Secured Party hereunder.
SECTION 16. AMENDMENTS; ETC. No amendment, modification, termination or
waiver of any provision of this Agreement, and no consent to any departure by
Pledgor therefrom, shall in any event be effective unless the same shall be in
writing and signed by Secured Party and, in the case of any such amendment or
modification, by Pledgor. Any such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which it was given.
SECTION 17. NOTICES. Any notice or other communication herein required or
permitted to be given shall be in writing and may be personally served, telexed
or sent by telefacsimile or United States mail or courier service and shall be
deemed to have been given when delivered in person or by courier service, upon
receipt of telefacsimile or telex, or three Business Days after depositing it in
the United States mail with postage prepaid and properly addressed. For the
purposes hereof, the address of each party hereto shall be as set forth under
such party's name on the signature pages hereof or, as to either party, such
other address as shall be designated by such party in a written notice delivered
to the other party hereto.
SECTION 18. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No
failure or delay on the part of Secured Party in the exercise of any power,
right or privilege hereunder shall impair such power, right or privilege or be
construed to be a waiver of any default or acquiescence therein, nor shall any
single or partial exercise of any such power, right or privilege preclude any
other or further exercise thereof or of any other power, right or privilege. All
rights and remedies existing under this Agreement are cumulative to, and not
exclusive of, any rights or remedies otherwise available.
SECTION 19. SEVERABILITY. In case any provision in or obligation under this
Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
SECTION 20. HEADINGS. Section and subsection headings in this Agreement are
included herein for convenience of reference only and shall not constitute a
part of this Agreement for any other purpose or be given any substantive effect.
SECTION 21. GOVERNING LAW; TERMS; RULES OF CONSTRUCTION. THIS AGREEMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT
TO THE EXTENT THAT THE CODE PROVIDES THAT THE PERFECTION OF THE SECURITY
INTEREST HEREUNDER, OR REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR PLEDGED
COLLATERAL ARE GOVERNED BY THE LAWS OF A JURISDICTION OTHER THAN THE STATE OF
NEW YORK. Unless otherwise defined herein or in the Credit Agreement, terms used
in Articles 8 and 9 of the Uniform Commercial Code in the State of New York are
used herein as therein defined. The rules of construction set forth in
subsection 1.3 of the Credit Agreement shall be applicable to this Agreement
MUTATIS MUTANDIS.
SECTION 22. CONSENT TO JURISDICTION AND SERVICE OF PROCESS. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST PLEDGOR ARISING OUT OF OR RELATING TO THIS
AGREEMENT, OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY
EXECUTING AND DELIVERING THIS AGREEMENT, PLEDGOR, FOR ITSELF AND IN CONNECTION
WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE JURISDICTION AND
VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY SUCH
COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, TO
PLEDGOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SECTION 18;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS SUFFICIENT TO
CONFER PERSONAL JURISDICTION OVER PLEDGOR IN ANY SUCH PROCEEDING IN ANY SUCH
COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT SECURED PARTY RETAINS THE RIGHT TO SERVE PROCESS IN ANY
OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST PLEDGOR IN THE
COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SECTION 23 RELATING TO JURISDICTION
AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT PERMISSIBLE
UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR OTHERWISE.
SECTION 23. WAIVER OF JURY TRIAL. PLEDGOR AND SECURED PARTY HEREBY AGREE TO
WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS AGREEMENT. The scope of this waiver is
intended to be all-encompassing of any and all disputes that may be filed in any
court and that relate to the subject matter of this transaction, including
contract claims, tort claims, breach of duty claims, and all other common law
and statutory claims. Pledgor and Secured Party each acknowledge that this
waiver is a material inducement for Pledgor and Secured Party to enter into a
business relationship, that Pledgor and Secured Party have already relied on
this waiver in entering into this Agreement and that each will continue to rely
on this waiver in their related future dealings. Pledgor and Secured Party
further warrant and represent that each has reviewed this waiver with its legal
counsel, and that each knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL
WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 24 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. In the event of
litigation, this Agreement may be filed as a written consent to a trial by the
court.
SECTION 24. COUNTERPARTS. This Agreement may be executed in one or more
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document.
IN WITNESS WHEREOF, Pledgor and Secured Party have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
ESI CANADA HOLDINGS, INC.
By: /s/ George Paz
Title: Vice President
Address: 14000 Riverport Drive
Maryland Heights, MO 63043
BANKERS TRUST COMPANY
By: /s/ Ken McCann
Title: Principal
Notice Address: Mail Stop 2252
25th Floor
130 Liberty Plaza
New York, NY 10006
Attn: Amy Sinensky
<PAGE>
SCHEDULE I
Attached to and forming a part of the Pledge Agreement dated as of April 1,
1998 between , as Pledgor, and Bankers Trust Company, as Secured
Party.
<TABLE>
<CAPTION>
Part A
Class of Stock Certi- Par Number of
STOCK ISSUER STOCK FICATE NOS. VALUE SHARES
<S> <C> <C> <C> <C>
ESI Canada, Inc. Common C-4 No Par 65%
</TABLE>
<PAGE>
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated April 1, 1998, is delivered pursuant to
Section 6(b) of the Pledge Agreement referred to below. The undersigned hereby
agrees that this Pledge Amendment may be attached to the Pledge Agreement dated
April 1, 1998, between the undersigned and Bankers Trust Company, as Secured
Party (the "PLEDGE AGREEMENT," capitalized terms defined therein being used
herein as therein defined), and that the Pledged Shares listed on this Pledge
Amendment shall be deemed to be part of the Pledged Shares and shall become part
of the Pledged Collateral and shall secure all Secured Obligations.
VALUE HEALTH, INC.
By: George Paz
Title: Vice President
<TABLE>
<CAPTION>
Class of Stock Certi- Par Number of
STOCK ISSUER STOCK FICATE NOS. VALUE SHARES
<S> <C> <C> <C> <C>
Cost Containment
Corporation of
America Common 8 $1.00 100%
ValueRx, Inc.
("VRx") Common 1 & 3 $0.01 100%
Prescription Drug
Service West, Inc. Common 5 No Par 100%
ValueRx of Iowa,
Inc. Common A1 $1.00 100%
RxNet, Inc. of
California Common A1 No Par 100%
Prescription Drug
Service, Inc. Common 5 No Par 100%
Diagnostek, Inc.
("DI") Common un-numbered $0.01 100%
Medintell Systems
Corporation Common A1 $0.001 100%
</TABLE>
<PAGE>
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated April 1, 1998, is delivered pursuant to
Section 6(b) of the Pledge Agreement referred to below. The undersigned hereby
agrees that this Pledge Amendment may be attached to the Pledge Agreement dated
April 1, 1998, between the undersigned and Bankers Trust Company, as Secured
Party (the "PLEDGE AGREEMENT," capitalized terms defined therein being used
herein as therein defined), and that the Pledged Shares listed on this Pledge
Amendment shall be deemed to be part of the Pledged Shares and shall become part
of the Pledged Collateral and shall secure all Secured Obligations.
VALUE RX, Inc.
By: George Paz
Title: Vice President
<TABLE>
<CAPTION>
Class of Stock Certi- Par Number of
STOCK ISSUER STOCK FICATE NOS. VALUE SHARES
<S> <C> <C> <C> <C>
ValueRx Pharmacy
Program, Inc.
("Program") Common 21 $1.00 100%
ValueRx of
Michigan, Inc. Common 1 $0.01 100%
</TABLE>
<PAGE>
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated April 1, 1998, is delivered pursuant to
Section 6(b) of the Pledge Agreement referred to below. The undersigned hereby
agrees that this Pledge Amendment may be attached to the Pledge Agreement dated
April 1, 1998, between the undersigned and Bankers Trust Company, as Secured
Party (the "PLEDGE AGREEMENT," capitalized terms defined therein being used
herein as therein defined), and that the Pledged Shares listed on this Pledge
Amendment shall be deemed to be part of the Pledged Shares and shall become part
of the Pledged Collateral and shall secure all Secured Obligations.
DIAGNOSTEK, INC.
By: George Paz
Title: Vice President
<TABLE>
<CAPTION>
Class of Stock Certi- Par Number of
STOCK ISSUER STOCK FICATE NOS. VALUE SHARES
<S> <C> <C> <C> <C>
Diagnostek
Pharmacy
Services, Inc.
("DPS") Common 1 $0.01 100%
Diagnostek
Pharmacy, Inc. Common 2 No Par 100%
</TABLE>
<PAGE>
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated April 1, 1998, is delivered pursuant to
Section 6(b) of the Pledge Agreement referred to below. The undersigned hereby
agrees that this Pledge Amendment may be attached to the Pledge Agreement dated
April 1, 1998, between the undersigned and Bankers Trust Company, as Secured
Party (the "PLEDGE AGREEMENT," capitalized terms defined therein being used
herein as therein defined), and that the Pledged Shares listed on this Pledge
Amendment shall be deemed to be part of the Pledged Shares and shall become part
of the Pledged Collateral and shall secure all Secured Obligations.
VALUERX PHARMACY PROGRAM, INC.
By: George Paz
Title: Vice President
<TABLE>
<CAPTION>
Class of Stock Certi- Par Number of
STOCK ISSUER STOCK FICATE NOS. VALUE SHARES
<S> <C> <C> <C> <C>
Denali Associates,
Inc. Common A-1 No Par 100%
ValueRx Northeast,
Inc. Common A-1 No Par 100%
MedCounter, Inc. Common 1 $0.01 100%
</TABLE>
<PAGE>
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated April 1, 1998, is delivered pursuant to
Section 6(b) of the Pledge Agreement referred to below. The undersigned hereby
agrees that this Pledge Amendment may be attached to the Pledge Agreement dated
April 1, 1998, between the undersigned and Bankers Trust Company, as Secured
Party (the "PLEDGE AGREEMENT," capitalized terms defined therein being used
herein as therein defined), and that the Pledged Shares listed on this Pledge
Amendment shall be deemed to be part of the Pledged Shares and shall become part
of the Pledged Collateral and shall secure all Secured Obligations.
DIAGNOSTEK PHARMACY SERVICES, INC.
By: George Paz
Title: Vice President
<TABLE>
<CAPTION>
Class of Stock Certi- Par Number of
STOCK ISSUER STOCK FICATE NOS. VALUE SHARES
<S> <C> <C> <C> <C>
Health Care
Services, Inc. Common C105 No Par 100%
Diagnostek of
Springfield, Inc. Common 5 $0.10 100%
IPH, Inc. Common 1 $0.01 100%
</TABLE>
<PAGE>
SCHEDULE II
PLEDGE AMENDMENT
This Pledge Amendment, dated April 1, 1998, is delivered pursuant to
Section 6(b) of the Pledge Agreement referred to below. The undersigned hereby
agrees that this Pledge Amendment may be attached to the Pledge Agreement dated
April 1, 1998, between the undersigned and Bankers Trust Company, as Secured
Party (the "PLEDGE AGREEMENT," capitalized terms defined therein being used
herein as therein defined), and that the Pledged Shares listed on this Pledge
Amendment shall be deemed to be part of the Pledged Shares and shall become part
of the Pledged Collateral and shall secure all Secured Obligations.
IPH, INC.
By: George Paz
Title: Vice President
<TABLE>
<CAPTION>
Class of Stock Certi- Par Number of
STOCK ISSUER STOCK FICATE NOS. VALUE SHARES
<S> <C> <C> <C> <C>
MHI, Inc. Common 1 $1.00 100%
</TABLE>
EXHIBIT 10.5
EXPRESS SCRIPTS, INC.
FIRST AMENDMENT
TO COMPANY PLEDGE AGREEMENT
This FIRST AMENDMENT TO COMPANY PLEDGE AGREEMENT (this "AMENDMENT") is
dated as of April 24, 1998 and entered into by and between Express Scripts,
Inc., a Delaware corporation (the "PLEDGOR"), and Bankers Trust Company, as
agent for and representative of (in such capacity herein called "SECURED PARTY")
the financial institutions (the "LENDERS") party to the Credit Agreement
referred to below. Capitalized terms used herein without definition shall have
the same meanings herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, Secured Party and Lenders have entered into a Credit Agreement
dated as of April 1, 1998 (as amended, supplemented or otherwise modified from
time to time, the "CREDIT AGREEMENT") with Pledgor pursuant to which Lenders
have, subject to the terms and conditions set forth in the Credit Agreement,
extended certain credit facilities to Pledgor;
WHEREAS, in connection with the execution and delivery of the Company
Pledge Agreement, Pledgor and Secured Party entered into the Company Pledge
Agreement for the purposes of securing the Obligations, including obligations
under Hedge Agreements, of Pledgor under the Loan Documents;
WHEREAS, Pledgor and Secured Party desire to clarify that the Company
Pledge Agreement secures Obligations, including obligations under any Hedge
Agreement arising under the Loan Documents; and
WHEREAS, Secured Party and Pledgor are entering into this Amendment
pursuant to subsection 9.6 of the Credit Agreement and section 15 of the Company
Pledge Agreement.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENT
Section 2 of the Company Pledge Agreement is hereby amended by deleting the
existing text in its entirety and substituting the following language therefor:
This Agreement secures, and the Pledged Collateral is collateral security
for, the prompt payment or performance in full when due, whether at stated
maturity, by required prepayment, declaration, acceleration, demand or otherwise
(including the payment of amounts that would become due but for the operation of
the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.
ss.362(a)), of any and all Obligations of Pledgor now or hereafter existing
under or arising out of or in connection with the Credit Agreement and the other
Loan Documents and all extensions or renewals thereof, whether for principal,
interest (including interest that, but for the filing of a petition in
bankruptcy with respect to Pledgor, would accrue on such obligations),
reimbursement of amounts drawn under Letters of Credit, fees, expenses,
indemnities or otherwise, whether voluntary or involuntary, direct or indirect,
absolute or contingent, liquidated or unliquidated, whether or not jointly owed
with others, and whether or not from time to time decreased or extinguished and
later increased, created or incurred, and all or any portion of such obligations
or liabilities that are paid, to the extent all or any part of such payment is
avoided or recovered directly or indirectly from Secured Party or any Lender as
a preference, fraudulent transfer or otherwise, and all obligations of every
nature of Pledgor now or hereafter existing under this Agreement (all such
obligations of Pledgor being the "SECURED OBLIGATIONS").
SECTION 2. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE COMPANY PLEDGE AGREEMENT AND OTHER LOAN
DOCUMENTS.
(i) Upon effectiveness, each reference in the Company Pledge Agreement to
"this Agreement", "hereunder", "hereof", "herein" or words of like import
referring to the Company Pledge Agreement, and each reference in the other Loan
Documents to the "Company Pledge Agreement", "thereunder", "thereof" or words of
like import referring to the Company Pledge Agreement shall mean and be a
reference to the Company Pledge Agreement as amended by this Amendment.
(ii) Except as specifically amended by this Amendment, the Company
Agreement and the other Loan Documents shall remain in full force and effect and
are hereby ratified and confirmed.
B. HEADINGS. Section and subsection headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose or be given any substantive effect.
C. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT
LIMITATION SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW
YORK), WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
D. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed and delivered shall be deemed an original, but
all such counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment shall become effective upon the execution of a
counterpart hereof by Pledgor and Agent and receipt by Agent of written or
telephonic notification of such execution and authorization of delivery thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
EXPRESS SCRIPTS, INC.
By: /s/ George Paz
Title: Senior Vice President
BANKERS TRUST COMPANY, as Agent
By: /s/ Kevin McCann
Title: Principal
EXHIBIT 10.6
(Multicurrency - Cross Border)
ISDA
International Swap Dealers Association, Inc.
MASTER AGREEMENT
DATED AS OF APRIL 3, 1998
EXPRESS SCRIPTS, INC. and THE FIRST NATIONAL BANK OF CHICAGO have entered
and/or anticipate entering into one or more transactions (each a "Transaction")
that are or will be governed by this Master Agreement, which includes the
schedule (the "Schedule"), and the documents and other confirming evidence (each
a "Confirmation") exchanged between the parties confirming those Transactions.
Accordingly, the parties agree as follows:-
1. INTERPRETATION
(a) Definitions. The terms defined in Section 14 and in the Schedule will
have the meanings therein specified for the purpose of this Master Agreement.
(b) Inconsistency. In the event of any inconsistency between the provisions
of the Schedule and the other provisions of this Master Agreement, the Schedule
will prevail. In the event of any inconsistency between the provisions of any
Confirmation and this Master Agreement (including the Schedule), such
Confirmation will prevail for the purpose of the relevant Transaction.
(c) Single Agreement. All Transactions are entered into in reliance on the
fact that this Master Agreement and all Confirmations form a single agreement
between the parties (collectively referred to as this "Agreement"), and the
parties would not otherwise enter into any Transactions.
2. OBLIGATIONS
(a) General Conditions.
(i) Each party will make each payment or delivery specified in each
Confirmation to be made by it subject to the other provisions of this Agreement.
(ii) Payments under this Agreement will be made on the due date for value
on that date in the place of the account specified in the relevant Confirmation
or otherwise pursuant to this Agreement, in freely transferable funds and in the
manner customary for payments in the required currency. Where settlement is by
delivery (that is, other than by payment), such delivery will be made for
receipt on the due date in the manner customary for the relevant obligation
unless otherwise specified in the relevant Confirmation or elsewhere in this
Agreement.
(iii) Each obligation of each party under Section 2(a)(i) is subject to (1)
the condition precedent that no Event of Default or Potential Event of Default
with respect to the other party has occurred and is continuing, (2) the
condition precedent that no Early Termination Date in respect of the relevant
transaction has occurred or been effectively designated and (3) each other
applicable condition precedent specified in this Agreement.
Copyright (C) 1992 by International Swap Dealers Association. Inc.
<PAGE>
(b) CHANGE OF ACCOUNT. Either party may change its account for receiving a
payment or delivery by giving notice to the other party at least five Local
Business Days prior to the scheduled date for the payment or delivery to which
such change applies unless such other party gives timely notice of a reasonable
objection to such change.
(c) NETTING: If on any date amounts would otherwise be payable:-
(i) in the same currency; and
(ii) in respect of the same Transaction,
by each party to the other, then, on such date, each party'5 obligation to
make payment of any such amount will be automatically satisfied and discharged
and, if the aggregate amount that would otherwise have been payable by one party
exceeds the aggregate amount that would otherwise have been payable by the other
party, replaced by an obligation upon the party by whom the larger aggregate
amount would have been payable to pay to the other party the excess of the
larger aggregate amount over the smaller aggregate amount.
The parties may elect in respect of two or more Transactions that a net
amount will be determined in respect of all amounts payable on the same date in
the same currency in respect of such Transactions, regardless of whether such
amounts are payable in respect of the same Transaction. The election may be made
in the Schedule or a Confirmation by specifying that subparagraph (iii) above
will not apply to the Transactions identified as being subject to the election,
together with the starting date (in which case subparagraph (iii) above will not
or will cease to, apply to such Transactions from such date). This election may
be made separately for different groups of Transactions and will apply
separately to each pairing of Offices through which the parties make and receive
payments or deliveries.
(d) DEDUCTION OR WITHHOLDING FOR TAX.
(i) GROSS-UP. All payments under this Agreement will be made without any
deduction or withholding for or on account of any Tax unless such deduction or
withholding is required by any applicable law, as modified by the practice of
any relevant governmental revenue authority, then in effect. If a party is so
required to deduct or withhold, then that party ("X") will:-
(1) promptly notify the other party ("Y") of such requirement;
(2) pay to the relevant authorities the full amount required to be deducted
or withheld (including the full amount required to be deducted or withheld from
any additional amount paid by X to Y under this Section 2(d)) promptly upon the
earlier of determining that such deduction or withholding is required or
receiving notice that such amount has been assessed against Y;
(3) promptly forward to Y an official receipt (or a certified copy), or
other documentation reasonably acceptable to Y, evidencing such payment to such
authorities; and
(4) if such Tax is an Indemnifiable Tax, pay to Y, in addition to the
payment to which Y is otherwise entitled under this Agreement. Such additional
amount as is necessary to ensure that the net amount actually received by Y
(free and clear of Indemnifiable Taxes, whether assessed against X or Y) will
equal the full amount Y would have received had no such deduction or withholding
been required. However, X will not be required to pay any additional amount to Y
to the extent that it would not be required to be paid but for:
(A) the failure by Y to comply with or perform any agreement contained in
Section 4(a)(i), 4(a)(iii) or 4(d); or
(B) the failure of a representation made by Y pursuant to Section 3 (to be
accurate and true unless such failure would not have occurred but for (I) any
action taken by a taxing authority, or brought in a court of competent
jurisdiction, on or after the date on which a Transaction is entered into
(regardless of whether such action is taken or brought with respect to a party
to this Agreement) or (II) a Change in Tax Law.
(ii) LIABILITY. IF:-
(1) X is required by any applicable law, as modified by the practice of any
relevant governmental revenue authority, to make any deduction or withholding in
respect of which X would not be required to pay an additional amount to Y under
Section 2(d)(i)(4);
(2) X does not so deduct or withhold; and
(3) a liability resulting from such Tax is assessed directly against X,
then, except to the extent Y has satisfied or then satisfies the liability
resulting from such Tax, Y will promptly pay to X the amount of such liability
(including any related liability for interest, but including any related
liability for penalties only if Y has failed to comply with or perform any
agreement contained in Section 4(a)(i), 4(a)(iii) or 4(d)).
(e) DEFAULT INTEREST; OTHER AMOUNTS. Prior to the occurrence or effective
designation of an Early Termination Date in respect of the relevant Transaction,
a party that defaults in the performance of any payment obligation will, to the
extent permitted by law and subject to Section 6(c), be required to pay interest
(before as well as after judgment) on the overdue amount to the other party on
demand in the same currency as such overdue amount, for the period from (and
including) the original due date for payment to (but excluding) the date of
actual payment, at the Default Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed. If, prior co
the occurrence or effective designation of an Early Termination Date in respect
of the relevant Transaction, a party defaults in the performance of any
obligation required to be settled by delivery, it will compensate the other
party on demand if and to the extent provided for in the relevant Confirmation
or elsewhere in this Agreement.
3. Representations
Each party represents to the other party (which representations will be
deemed to be repeated by each party on each date on which a Transaction is
entered into and, in the case of the representations in Section 3(f), at all
times until the termination of this Agreement) that:-
(a) BASIC REPRESENTATIONS.
(i) STATUS. It is duly organized and validly existing under the laws of the
jurisdiction of its organization or incorporation and, if relevant under such
laws. in good standing;
(ii) POWERS. It has the power to execute this Agreement and any other
documentation relating to this Agreement to which it is a party, to deliver this
Agreement and any other documentation relating to this Agreement that it is
required by this Agreement to deliver and to perform its obligations under this
Agreement and any obligations it has under any Credit Support Document to which
it is a party and has taken all necessary action to authorize such execution,
delivery and performance;
(iii) NO VIOLATION OR CONFLICT. Such execution, delivery and performance do
not violate or conflict with any law applicable to it any provision of its
constitutional documents, any order or judgment of any court or other agency of
government applicable to it or any of its assets or any contractual restriction
binding on or affecting it or any of its assets;
(iv) CONSENTS. All governmental and other consents that are required to
have been obtained by it with respect to this Agreement or any Credit Support
Document to which it is a party have been obtained and are in full force and
effect and all conditions of any such consents have been complied with; and
(v) OBLIGATIONS BINDING. Its obligations under this Agreement and any
Credit Support Document to which it is a party constitute its legal, valid and
binding obligations enforceable in accordance with their respective terms
(subject to applicable bankruptcy, reorganization, insolvency, moratorium or
similar laws affecting creditors' rights generally and subject, as to
enforceability, to equitable principles of general application (regardless of
whether enforcement is sought in a proceeding in equity or at law)).
(b) ABSENCE OF CERTAIN EVENTS. No Event of Default or Potential Event of
Default or, to its knowledge, Termination Event with respect to it has occurred
and is continuing and no such event or circumstance would occur as a result of
its entering into or performing its obligations under this Agreement or any
Credit Support Document to which it is a party.
(c) ABSENCE OF LITIGATION. There is not pending or, to its knowledge,
threatened against it or any of its Affiliates any action, suit or proceeding at
law or in equity or before any court, tribunal, governmental body, agency or
official or any arbitrator that is likely to affect the legality, validity or
enforceability against it of this Agreement or any Credit Support Document to
which it is a party or its ability to perform its obligations under this
Agreement or such Credit Support Document.
(d) ACCURACY OF SPECIFIED INFORMATION. All applicable information that is
furnished in writing by or on behalf of it to the other party and is identified
for the purpose of this Section 3(d) in the Schedule is, as of the date of the
information, true, accurate and complete in every material respect.
(e) Payer Tax Representation. Each representation specified in the Schedule
as being made by it for the purpose of this Section 3(e) is accurate and true.
(f) PAYEE TAX REPRESENTATIONS. Each representation specified in the
Schedule as being made by it for the purpose of this Section 3(f) is accurate
and true.
4. AGREEMENTS
Each party agrees with the other that, so long as either party has or may
have any obligation under this Agreement or under any Credit Support Document to
which it is a party:-
(a) FURNISH SPECIFIED INFORMATION. It will deliver to the other party or,
in certain cases under subparagraph (iii) below, to such government or taxing
authority as the other party reasonably directs:-
(i) any forms, documents or certificates relating to taxation specified in
the Schedule or any Confirmation;
(ii) any other documents specified in the Schedule or any Confirmation; and
(iii) upon reasonable demand by such other party, any form or document that
may be required or reasonably requested in writing in order to allow such other
party or its Credit Support Provider to make a payment under this Agreement or
any applicable Credit Support Document without any deduction or withholding for
or on account of any Tax or with such deduction or withholding at a reduced rate
(so long as the completion, execution or submission of such form or document
would not materially prejudice the legal or commercial position of the party in
receipt of such demand), which any such form or document to be accurate and
completed in a manner reasonably satisfactory to such other party and to be
executed and to be delivered which any reasonably required certification, in
each case by the date specified in the Schedule or such Confirmation or, if none
is specified, as soon as reasonably practicable.
(b) MAINTAIN AUTHORIZATIONS. It will use all reasonable efforts to maintain
in full force and effect all consents of any governmental or other authority
that are required to be obtained by it with respect to this Agreement or any
Credit Support Document to which it is a party and will use all reasonable
efforts to obtain any that may become necessary in the future.
(c) COMPLY WITH LAWS. It will comply in all material respects with all
applicable laws and orders to which it may be subject if failure so to comply
would materially impair its ability to perform its obligations under this
Agreement or any Credit Support Document to which it is a party.
(d) TAX AGREEMENT. It will give notice of any failure of a representation
made by it under Section 3(f) to be accurate and we promptly upon learning of
such failure.
(e) PAYMENT OF STAMP TAX. Subject to Section 11, it will pay any Stamp Tax
levied or imposed upon it or in respect of its execution or performance of this
Agreement by a jurisdiction in which it is incorporated, organized, managed and
controlled, or considered to have its seat, or in which a branch or office
through which it is acting for the purpose of this Agreement is located ("Stamp
Tax Jurisdiction") and will indemnify the other party against any Stamp Tax
levied or imposed upon the other party or in respect of the other party's
execution or performance of this Agreement by any such Stamp Tax jurisdiction
which is not also a Stamp Tax Jurisdiction with respect to the other party.
5. EVENTS OF DEFAULT AND TERMINATION EVENTS
(a) EVENTS OF DEFAULT. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any of the following events constitutes an event of
default (an "Event of Default") with respect to such party:-
(i) FAILURE TO PAY OR DELIVER. Failure by the party to make, when due, any
payment under this Agreement or delivery under Section 2(a)(i) or 2(e) required
to be made by it if such failure is not remedied on or before the third Local
Business Day after notice of such failure is given to the party;
(ii) BREACH OF AGREEMENT. Failure by the party to comply with or perform
any agreement or obligation (other than an obligation to make any payment under
this Agreement or delivery under Section 2(a)(i) or 2(e) or to give notice of a
Termination Event or any agreement or obligation under Section 4(a)(i),
4(a)(iii) or 4(d)) to be complied with or performed by the party in accordance
with this Agreement if such failure is not remedied on or before the thirtieth
day after notice of such failure is given to the party;
(iii) CREDIT SUPPORT DEFAULT.
(1) Failure by the party or any Credit Support Provider of such party to
comply with or perform any agreement or obligation to be complied with or
performed by it in accordance with any Credit Support Document if such failure
is continuing after any applicable grace period has elapsed;
(2) the expiration or termination of such Credit Support Document or the
failing or ceasing of such Credit Support Document to be in full force and
effect for the purpose of this Agreement (in either case other than in
accordance with its terms) prior to the satisfaction of all obligations of such
party under each Transaction to which such Credit Support Document relates
without the written consent of the other party; or
(3) the party or such Credit Support Provider disaffirms, disclaims,
repudiates or rejects, in whole or in part, or challenges the validity of, such
Credit Support Document;
(iv) MISREPRESENTATION. A representation (other than a representation under
Section 3(e) or (f)) made or repeated or deemed to have been made or repeated by
the party or any Credit Support Provider of such party in this Agreement or any
Credit Support Document proves to have been incorrect or misleading in any
material respect when made or repeated or deemed to have been made or repeated;
(v) DEFAULT UNDER SPECIFIED TRANSACTION. The party, any Credit Support
Provider of such party or any applicable Specified Entity of such party ( 1)
defaults under a Specified Transaction and, after giving effect to any
applicable notice requirement or grace period, there occurs a liquidation of, an
acceleration of obligations under, or an early termination of, that Specified
Transaction, (2) defaults, after giving effect to any applicable notice
requirement or grace period, in making any payment or delivery due on the last
payment, delivery or exchange date of. or any payment on early termination of, a
Specified Transaction (or such default continues for at least three Local
Business Days if there is no applicable notice requirement or grace period) or
(3) disaffirms, disclaims, repudiates or rejects, in whole or in part, a
Specified transaction (or such action is taken by any person or entity appointed
or empowered to operate it or act on its behalf);
(vi) CROSS DEFAULT. If "Cross Default"" is specified in the Schedule as
applying to the party, the occurrence or existence of (I) a default, event of
default or other similar condition or event (however described) in respect of
such party, any Credit Support Provider of such party or any applicable
Specified Entity of such party under one or more agreements or instruments
relating to Specified Indebtedness of any of them (individually or collectively)
in an aggregate amount of not less than the applicable Threshold Amount (as
specified in the Schedule) which has resulted in such Specified Indebtedness
becoming, or becoming capable at such time of being declared, due and payable
under such agreements or instruments, before it would otherwise have been due
and payable or (2) a default by such party, such Credit Support Provider or such
Specified Entity (individually or collectively) in making one or more payments
on the due date thereof in an aggregate amount of not less than the applicable
Threshold Amount under such agreements or instruments (after giving effect to
any applicable notice requirement or grace period);
(vii) BANKRUPTCY. The party, any Credit Support Provider of such party or
any applicable Specified Entity of such party:
(1) is dissolved (other than pursuant to a consolidation, amalgamation or
merger); (2) becomes insolvent or is unable to pay its debts or fails or admits
in writing its inability generally to pay its debts as they become due; (3)
makes a general assignment, arrangement or composition with or for the benefit
of its creditors; (4) institutes or has instituted against it a proceeding
seeking a judgment of insolvency or bankruptcy or any other relief under any
bankruptcy or insolvency law or other similar law affecting creditors' rights,
or a petition is presented for its winding-up or liquidation, and, in the case
of any such proceeding or petition instituted or presented against it, such"
proceeding or petition (A) results in a judgment of insolvency or bankruptcy or
the entry of an order for relief or the making of an order for its winding-up or
liquidation or (B) is not dismissed, discharged, stayed or restrained in each
case within 30 days of the institution or presentation thereof; (5) has a
resolution passed for its winding-up, official management or liquidation (other
than pursuant to a consolidation, amalgamation or merger); (6) seeks or becomes
subject to the appointment of an administrator, provisional liquidator,
conservator, receiver, trustee, custodian or other similar official for it or
for all or substantially all its assets; (7) has a secured party take possession
of all or substantially all its assets or has a distress, execution, attachment,
sequestration or other legal process levied, enforced or sued on or against all
or substantially all its assets and such secured party maintains possession, or
any such process is not dismissed, discharged, stayed or restrained, in each
case within 30 days thereafter; (8) causes or is subject to any event with
respect to it which, under the applicable laws of any jurisdiction, has an
analogous effect to any of the events specified in clauses (1) to (7)
(inclusive); or (9) takes any action in furtherance of, or indicating its
consent to, approval of, or acquiescence in, any of the foregoing acts; or
(viii) MERGER WITHOUT ASSUMPTION. The party or any Credit Support Provider
of such party consolidates or amalgamates with, or merges with or into, or
transfers all or substantially all its assets to, another entity and, at the
time of such consolidation, ama1gamfiation, merger or transfer:-
(1) the resulting, surviving or transferee entity fails to assume all the
obligations of such party or such Credit Support Provider under this Agreement
or any Credit Support Document to which it or its predecessor was a party by
operation of law or pursuant to an agreement reasonably satisfactory to the
other party to this Agreement; or
(2) the benefits of any Credit Support Document fail to extend (without the
consent of the other party) to the performance by such resulting, surviving or
transferee entity of its obligations under this Agreement.
(b) TERMINATION EVENTS. The occurrence at any time with respect to a party
or, if applicable, any Credit Support Provider of such party or any Specified
Entity of such party of any event specified below constitutes an Illegality if
the event is specified in (i) below, a Tax Event if the event is specified in
(ii) below or a Tax Event Upon Merger if the event is specified in (ii) below,
and, if specified to be applicable, a Credit Event Upon Merger if the event is
specified pursuant to (iv) below or an Additional Termination Event if the event
is specified pursuant to (v) below:
(i) ILLEGALITY. Due to the adoption of, or any change in, any applicable
law after the date on which a Transaction is entered into, or due to the
promulgation of, or any change in, the interpretation by any court, tribunal or
regulatory authority with competent jurisdiction of any applicable law after
such date, it becomes (other than as a result of a breach by the party of
Section 4 (b)) for such party (which will be the Affected Party):-
(1) perform any absolute or contingent obligation to make a payment or
delivery or to receive a payment or delivery in respect of such Transaction or
to comply with any other material provision of this Agreement relating to such
Transaction; or
(2) to perform, or for any Credit Support Provider of such party to
perform, any contingent or other obligation which the party (or such Credit
Support Provider) has under any Credit Support Document relating to such
Transaction;
(ii) TAX EVENT. Due to (x) any action taken by a taxing authority, or
brought in a court of competent jurisdiction on or after the date on which a
Transaction is entered into (regardless of whether action is taken or brought
with respect to a party to this Agreement) or (y) a Change in Tax Law the party
(which will be the Affected Party) will, or there is a substantial likelihood
that it will, on the next succeeding Scheduled Payment Date (1) be required Co
pay to the other party an additional amount in respect of an Indemnifiable Tax
under Section 2(d)(i)(4) (except in respect of interest under Section 2(e),
6(d)(ii) or 6(e)) or (2) receive a payment from which an amount is required to
be deducted or withheld for or on account of a Tax (except in respect of
interest under Section 2(e), 6(d)(ii) or 6(e)) and no additional amount is
required to be paid in respect of such Tax under Section 2(d)(i)(4) (other than
by reason of Section 2(d)(i)(4)(A) or (B));
(iii) TAX EVENT UPON MERGER. The party (the "Burdened Party"") on the next
succeeding Scheduled Payment Date will either (1) be required to pay an
additional amount in respect of an Indemnifiable Tax under Section 2(d)(i)(4)
(except in respect of interest under Section 2(e), 6(d)(ii) or 6(e)) or (2)
receive a payment from which an amount has been deduced or withheld for or on
account of any Indemnifiable Tax in respect of which the other party is not
required to pay an additional amount (other than by reason of Section
2(d)(i)(4)(A) or (B)), in either case as a result of a party consolidating or
amalgamating with, or merging with or into, or transferring all or substantially
all its assets to, another entity (which will be the Affected Party) where such
action does not constitute an event described in Section 5(a)(viii);
(iv) CREDIT EVENT UPON MERGER. If "Credit Event Upon Merger" is specified
in the Schedule as applying to the party, such party ("X"), any Credit Support
Provider of X or any applicable Specified Entity of X consolidates or
amalgamates with, or merges with or into, or transfers all or substantially all
its assets to, another entity and such action does not constitute an event
described in Section 5(a)(viii) but the creditworthiness of the resulting,
surviving or transferee entity is materially weaker than that of X, such Credit
Support Provider or such Specified Entity, as the case may be immediately prior
to such action (and, in such event, X or its successor or transferee, as
appropriate, will be the Affected Party); or
(v) ADDITIONAL TERMINATION EVENT. If any "Additional Termination Event" is
specified in the Schedule or any Confirmation as applying, the occurrence of
such event (and, in such event, the Affected Party or Affected Parties shall be
as specified for such Additional Termination Event in the Schedule or such
Confirmation).
(c) EVENT OF DEFAULT AND ILLEGALITY. If an event or circumstance which
would otherwise constitute or give rise to an Event of Default also constitutes
an Illegality, it will be treated as an Illegality and will not constitute an
Event of Default.
6. EARLY TERMINATION
(a) Right to Terminate Following Event of Default. If at any time an Event
of Default with respect to a party (the "Defaulting Party") has occurred and is
then continuing, the other party (the "Non-defaulting Party") may, by not more
than 20 days notice to the Defaulting Party specifying the relevant Event of
Default, designate a day not earlier than the day such notice is effective as an
Early Termination Date in respect of all outstanding Transactions. If, however,
"Automatic Early Termination" is specified in the Schedule as applying to a
party, then an Early Termination Date in respect of all outstanding Transactions
will occur immediately upon the occurrence with respect to such party of an
Event of Default specified in Section 5(a)(vii)(1), (3), (5),(6) or, to the
extent analogous thereto, (8), and as of the time immediately preceding the
institution of the relevant proceeding or the presentation of the relevant
petition upon the occurrence with respect to such party of an Event of Default
specified in Section 5(a)(vii)(4) or, to the extent analogous thereto, (8).
(b) Right to Terminate Following Termination Event.
(i) Notice. If a Termination Event occurs, an Affected Party will, promptly
upon becoming aware of it, notify the other party, specifying the nature of that
Termination Event and each Affected Transaction and will also give such other
information about that Termination Event as the other party may reasonably
require.
(ii) Transfer to Avoid Termination Event. If either an Illegality under
Section 5(b)(i)(1) or a Tax Event occurs and there is only one Affected Party,
or if a Tax Event Upon Merger occurs and the Burdened Party is the Affected
Party, the Affected Party will, as a condition to its right to designate an
Early Termination Date under Section 6(b)(iv), use all reasonable efforts (which
will not require such party to incur a loss, excluding immaterial, incidental
expenses) to transfer within 20 days after it gives notice under Section 6(b)(i)
all its rights and obligations under this Agreement in respect of the Affected
Transactions to another of its Offices or Affiliates so that such Termination
Event ceases to exist.
If the Affected Party is not able to make such a transfer it will give
notice to the other party to that effect within such 20 day period, whereupon
the other party may effect such a transfer within 30 days after the notice is
given under Section 6(b)(i).
Any such transfer by a party under this Section 6(b)(ii) will be subject to
and conditional upon the prior written consent of the other party, which consent
will not be withheld if such other party's policies in effect at such time would
permit it to enter into transactions with the transferee on the terms proposed.
(iii) Two Affected Parties. If an Illegality under Section 5(b)(i)(1) or
a Tax Event occurs and there are two Affected Parties, each party will use all
reasonable efforts to reach agreement within 30 days after notice thereof is
given under Section 6(b)(i) on action to avoid that Termination Event.
(iv) Right to Terminate. If:
(1) a transfer under Section 6(b)(ii) or an agreement under Section
6(b)(iii), as the case may be, has not been effected with respect to all
Affected Transactions within 30 days after an Affected Party gives notice under
Section 6(b)(i); or
(2) an illegality under Section 5(b)(i)(2), a Credit Event Upon Merger or
an Additional Termination Event occurs, or a Tax Event Upon Merger occurs and
the Burdened Party is not the Affected Party,
either party in the case of an Illegality, the Burdened Party in the case
of a Tax Event Upon Merger, any Affected Party in the case of a Tax Event or an
Additional Termination Event if there is more than one Affected Party, or the
party which is not the Affected Party in the case of a Credit Event Upon
Merger or an Additional Termination Event if there is only one Affected Party
may, by not more than 20 days notice to the other party and provided that the
relevant Termination Event is then continuing, designate a day not earlier than
the day such notice is effective as an Early Termination Date in respect of all
Affected Transactions.
(c) Effect of Designation.
(i) If notice designating an Early Termination Date is given under Section
6(a) or (b), the Early Termination Date will occur on the date so designated,
whether or not the relevant Event of Default or Termination Event is then
continuing.
(ii) Upon the occurrence or effective designation of an Early Termination
Date, no further payments or deliveries under Section 2(a)(i) or 2(e) in respect
of the Terminated Transactions will be required to be made, but without
prejudice to the other provisions of this Agreement. The amount, if any, payable
in respect of an Early Termination Date shall be determined pursuant to Section
6(e).
(d) Calculations.
(i) Statement. On or as soon as reasonably practicable following the
occurrence of an Early Termination Date, each party will make the calculations
on its part, if any, contemplated by Section 6(e) and will provide to the other
party a statement (1) showing, in reasonable detail, such calculations
(including all relevant quotations and specifying any amount payable under
Section 6(e)) and (2) giving details of the relevant account to which any amount
payable to it is to be paid. In the absence of written confirmation from the
source of a Quotation obtained in determining a Market Quotation, the records of
the party obtaining such quotation will be conclusive evidence of the
existence and accuracy of such quotation.
(ii) Payment Date. An amount calculated as being due in respect of any
Early Termination Date under Section 6(e) will be payable on the day that notice
of the amount payable is effective (in the case of an Early Termination Date
which is designated or occurs as a result of an Event of Default) and on the day
which is two Local Business Days after the day on which notice of the amount
payable is effective (in the case of an Early Termination Date which is
designated as a result of a Termination Event). Such amount will be paid
together with (to the extent permitted under applicable law) interest thereon
(before as well as after judgment) in the Termination Currency, from (and
including) the relevant Early Termination Date to (but excluding) the date such
amount is paid, at the Applicable Rate. Such interest will be calculated on the
basis of daily compounding and the actual number of days elapsed.
(e) PAYMENTS ON EARLY TERMINATION. If an Early Termination Date occurs, the
following provisions shall apply based on the parties' election in the Schedule
of a payment measure, either "Market Quotation" or "Loss", and a payment method,
either the "First Method" or the "Second Method". If the parties fail to
designate a payment measure or payment method in the Schedule, it will be deemed
that "Market Quotation" or the "Second Method", as the case may be, shall apply.
The amount, if any, payable in respect of an Early Termination Date and
determined pursuant to this Section will be subject to any Set-off.
(i) Events of Default. If the Early Termination Date results from an Event
of Default:
(1) First Method and Market Quotation. If the First Method and Market
Quotation apply, the Defaulting Party will pay to the Non-defaulting Party the
excess, if a positive number, of (A) the sum of the Settlement Amount
(determined by the Non Defaulting Party) in respect of the Terminated
Transactions and the Termination Currency Equivalent of the Unpaid Amounts owing
to the Non-defaulting party over (B) the Termination Currency Equivalent of the
Unpaid Amounts owing to the Defaulting Party.
(2) First Method and Loss. If the First Method and Loss apply, the
Defaulting Party will pay to the Non-defaulting Party, if a positive number, the
Non-defaulting Party's Loss in respect of this Agreement.
(3) Second Method and Market Quotation. If the Second Method and Market
Quotation apply, an amount will be payable equal to (A) the sum of the
Settlement Amount (determined by the Non-defaulting Party) in respect of the
Terminated Transactions and the Termination Currency Equivalent of the Unpaid
Amounts owing to the Non-defaulting Party less (B) the Termination Currency
Equivalent of the Unpaid Amounts owing to the Defaulting Party. If that amount
is a positive number, the Defaulting Party will pay it to the Non-defaultino
Party; if it is a negative number, the Non-defaulting Party will pay the
absolute value of that amount to the Defaulting Party
(4) Second Method and Loss. If the Second Method and Loss apply, an amount
will be payable equal to the Non-defaulting Party's Loss in respect of this
Agreement. If that amount is a positive number, the Defaulting Party will pay it
to the Non-defaulting Party; if it is a negative number, the Non-defaulting
Party will pay the absolute value of that amount to the Defaulting Party.
(ii) Termination Events. If the Early Termination Date results from a
Termination Event:
(1) One Affected Party. If there is one Affected Party, the amount payable
Will be determined in accordance with Section 6(e)(i)(3), if Market Quotation
applies, or Section 6(e)(i)(4), if Loss applies, except that, in either case,
references to the Defaulting Party and to the Non-defaulting Party will be
deemed to be references to the Affected Party and the party which is not the
Affected Party, respectively, and, if Loss applies and fewer than all the
Transactions are being terminated, Loss shall be calculated in respect of all
Terminated Transactions.
(2) Two Affected Parties. If there are two Affected Parties:
(A) if Market Quotation applies, each party will determine a Settlement
Amount in respect of the Terminated Transactions, and an amount will be payable
equal to (I) the sum of (a) one-half of the difference between the Settlement
Amount of the party with the higher Settlement Amount ("X") and the Settlement
Amount of the party with the lower Settlement Amount ("Y") and (b) the
Termination Currency Equivalent of the Unpaid Amounts owing to X less (II) the
Termination Currency Equivalent of the Unpaid Amounts owing to Y; and
(B) if Loss applies, each party will determine its Loss in respect of this
Agreement (or, if fewer than all the Transactions are being terminated, in
respect of all Terminated Transactions) and an amount will be payable equal to
one-half of the difference between the Loss of the party with the higher Loss
("X") and the Loss of the party with the tower Loss ("Y").
If the amount payable is a positive number, Y will pay it to X; if it is a
negative number, X will pay the absolute value of that amount to Y.
(iii) Adjustment for Bankruptcy. In circumstances where an Early
Termination Date occurs because "Automatic Early Termination" applies in respect
of a party, the amount determined under this Section 6(e) will be subject to
such adjustments as are appropriate and permitted by law to reflect any payments
or deliveries made by one party to the other under this Agreement (and retained
by such other party) during the period from the relevant Early Termination Date
to the date for payment determined under Section 6(d)(ii).
(iv) Pre-Estimate. The parties agree that if Market Quotation applies an
amount recoverable under this Section 6(e) is a reasonable pre-estimate of loss
and not a penalty. Such amount is payable for the loss of bargaining and the
loss of protection against future risks and except as otherwise provided in this
Agreement neither party will be entitled to recover any additional damages as a
consequence of such losses.
7. TRANSFER
Subject to Section 6(b)(ii), neither this Agreement nor any interest or
obligation in or under this Agreement may be transferred (whether by way of
security or otherwise) by either party without the prior written consent of the
other party, except that:-
(a) a party may make such a transfer of this Agreement pursuant to a
consolidation or amalgamation with, or merger with or into, or transfer of all
or substantially all its assets to, another entity (but without prejudice to
any other right or remedy under this Agreement); and
(b) a party may make such a transfer of all or any part of its interest in
any amount payable to it from a Defaulting Party under Section 6(e).
Any purported transfer that is not in compliance with this Section will be
void.
8. CONTRACTUAL CURRENCY
(a) Payment in the Contractual Currency. Each payment under this Agreement
will be made in the relevant currency specified in this Agreement for that
payment (the "Contractual Currency'"). To the extent permitted by applicable
law, any obligation to make payments under this Agreement in the Contractual
Currency will not be discharged or satisfied by any tender in any currency other
than the Contractual Currency, except to the extent such tender results in the
actual receipt by the party to which payment is owed, acting in a reasonable
manner and in good faith in converting the currency so tendered into the
Contractual Currency, of the full amount in the Contractual Currency of all
amounts payable in respect of this Agreement. If for any reason the amount in
the Contractual Currency so received falls short of the amount in the
Contractual Currency payable in respect of this Agreement, the party required to
make the payment will, to the extent permitted by applicable law, immediately
pay such additional amount in the Contractual Currency as may be necessary to
compensate for the shortfall. If for any reason the amount in the Contractual
Currency so received exceeds the amount in the Contractual Currency payable in
respect of this Agreement, the party receiving the payment will refund promptly
the amount of such excess.
(b) Judgments. To the extent permitted by applicable law, if any judgment
or order expressed in a currency other than the Contractual Currency is rendered
(i) for the payment of any amount owing in respect of this Agreement, (ii) for
the payment of any amount relating to any early termination in respect of this
Agreement or (iii) in respect of a judgment or order of another court for the
payment of any amount described in (i) or (ii) above, the party seeking
recovery, after recovery in full of the aggregate amount to which such party "is
entitled pursuant to the judgment or order, will be entitled to receive
immediately from the other party the amount of any shortfall of the Contractual
Currency received by such party as a conseQuence of sum paid in such other
currency and will refund promptly to the other party any excess of the
Contractual Currency received by such party as a consequence of sums paid in
such other currency if such shortfall or such excess arises or results from any
variation between the rate of exchange at which the Contractual Currency is
converted into the currency of the judgment or order for the purposes of such
judgment or order and the rate of exchange at which such party is able, acting
in a reasonable manner and in good faith in converting the currency received
into the Contractual Currency, to purchase the Contractual Currency with the
amount of the currency of the judgment or order actually received by such party.
The term ""rate of exchange" includes, without limitation, any premiums and
costs of exchange payable in connection with the Purchase of or conversion into
the Contractual Currency.
(c) Separate Indemnities: To the extent permitted by applicable law, these
indemnities constitute separate and independent obligations from the other
obligations in this Agreement, will be enforceable as separate and independent
causes of action, will apply notwithstanding any indulgence granted by the party
to which any payment is owed and will not be affected by judgment being obtained
or claim or proof being made for any other sums payable in respect of this
Agreement.
(d) Evidence of Loss. For the purpose of this Section 8, it will be
sufficient for a party to demonstrate that it would have suffered a loss had an
actual exchange or purchase been made.
9. MISCELLANEOUS
(a) Entire Agreement. This Agreement constitutes the entire agreement and
understanding of the parties with respect to this subject matter and supercedes
all oral communication and prior writings with respect thereto.
(b) Amendments. No amendment, modification or waiver in respect of this
Agreement will be effective unless in writing (including a writing evidenced by
a facsimile transmission) and executed by each of the parties or confirmed by an
exchange of telexes or electronic messages on an electronic messaging system.
(c) Survival of Obligations. Without prejudice to Sections 2(s)(iii) and
6(c)(ii), the obligations of the parties under this Agreement will survive the
termination of any Transaction.
(d) Remedies Cumulative. Except as provided in this Agreement, the rights,
powers, remedies and privileges provided in this Agreement are cumulative and
not exclusive of any rights, powers, remedies and privileges provided by law.
(e) Counterparts and Confirmations.
(i) This Agreement (and each amendment, modification and waiver in respect
of it) may be executed and delivered in counterparts (including by facsimile
transmission), each of which will be deemed an original.
(ii) The parties intend that they are legally bound by the terms of each
Transaction from the moment they agree to those terms (whether orally or
otherwise). A Confirmation shall be entered into as soon as practicable and may
be executed and delivered in counterparts (including by facsimile transmission)
or be created by an exchange of telexes or by an exchange of electronic messages
on an electronic messaging system, which in each case will be sufficient for all
purposes to evidence a binding supplement to this Agreement. The parties will
specify therein or through another effective means that any such counterpart,
telex or electronic message constitutes a Confirmation.
(f) No Waiver of Rights. A failure or delay in exercising any right, power
or privilege in respect of this Agreement will not be presumed to operate as a
waiver, and a single or partial exercise of any right, power or privilege will
not be presumed to preclude any subsequent or further exercise, of that right,
power or privilege or the exercise of any other right, power or privilege.
(g) Headings. The headings used in this Agreement are for convenience of
reference only and are not to affect the construction of or to be taken into
consideration interpreting this Agreement.
10. OFFICES; MULTIBRANCH PARTIES
(a) If Section 10(a) is specified in the Schedule as applying, each party
that enters into a Transaction through an Office other than its head or home
office represents to the other party that, notwithstanding the place of booking
office or jurisdiction of incorporation or organization of such party, the
obligations of such party are the same as if it had entered into the Transaction
through its head or home office. This representation will be deemed to be
repeated by such party on each date on which a Transaction is entered into.
(b) Neither party may change the Office through which it makes and receives
payments or deliveries for the purpose of a Transaction without the prior
written consent of the other party.
(c) If a party specified as a Multibranch Party in the Schedule, such
Multibranch Party may make and receive payments or deliveries under any
Transaction through any Office listed in the Schedule, and the Office through
which it makes and receives payments or deliveries with respect to a Transaction
will be specified in the relevant Confirmation.
11. EXPENSES
A Defaulting Party will, on demand, indemnify and hold harmless the other
party for an against all reasonable out-of-pocket expenses, including legal fees
and Stamp Tax, incurred by such other party by reason of the enforcement and
protection of its rights under this Agreement or any Credit Support Document to
which the Defaulting Party is a party or by reason of the early termination of
any Transaction, including, but not limited to, costs of collection.
12. NOTICES
(a) Effectiveness. Any notice or other communication in respect of this
Agreement may be given in any manner set forth below (except that a notice or
other communication under Section 5 or 6 may not be given by facsimile
transmission or electronic messaging system) to the address or number or in
accordance with the electronic messaging system details provided (see the
Schedule) and will be deemed effective as indicated:
(i) if in writing and delivered in person by courier, on the date it is
delivered;
(ii) if sent by telex, on the date the recipient's answerback is received;
(iii) if sent by facsimile transmission, on the date that transmission is
received by a responsible employee of the recipient in legible form (it being
agreed that the burden of proving receipt will be on the sender and will not be
met by a transmission report generated by the sender's facsimile machine);
(iv) if sent by certified or registered mail (airmail. if overseas) or the
equivalent (return receipt requested), on the date that mail is delivered or its
delivery is attempted; or
(v) if sent by electronic messaging system, on the date that electronic
message is received,
unless the date of that delivery (or attempted delivery) or that receipt,
as applicable, is not a Local Business Day or that communication is delivered
(or attempted) or received, as applicable, after the close of business on a
Local Business Day. in which case that communication shall be deemed given and
effective on the first following day that is a Local Business Day.
(b) Change of Addresses. Either party may by notice to the other change the
address, telex or facsimile number or electronic messaging system details at
which notices or other communications are to be given to it.
13. GOVERNING LAW AND JURISDICTION
(a) Governing Law. This Agreement will be governed by and construed in
accordance with the law specified in the Schedule.
(b) Jurisdiction. With respect to any suit, action or proceedings relating
to this Agreement ("Proceedings"), each party irrevocably:
(i) submits to the jurisdiction of the English courts, if this Agreement is
expressed to be governed by English law, or to the non-exclusive jurisdiction of
the courts of the State of New York and the United States District Court located
in the Borough of Manhattan in New York City, if this Agreement is expressed to
be governed by the laws of the State of New York; and
(ii) waives any objection which it may have at any time to the laying of
venue of any Proceedings brought in any such court, waives any claim that such
Proceedings have been brought in an inconvenient forum and further waives the
right to object, with respect to such Proceedings, that such court does not have
any jurisdiction over such party.
Nothing in this Agreement precludes either party from bringing Proceedings
in any other jurisdiction (outside, if this Agreement is expressed to be
governed by English law, the Contracting States, as defined in Section 1 (3) of
the Civil Jurisdiction and Judgments Act 1982 or any modification, extension
or re-enactment thereof for the time being in force) nor will the bringing of
Proceedings in any one or more jurisdictions preclude the bringing of
Proceedings in any other jurisdiction.
(c) Service of process. Each party irrevocably appoints the Process Agent
(if any) specified opposite its name in the Schedule to receive, for it and on
its behalf. service of process in any Proceedings. If for any reason any party's
Process Agent is unable to act as such, such party will promptly notify the
other party and within 30 days appoint a substitute process agent acceptable to
the other party. The parties irrevocably consent to service of process given in
the manner provided for notices in Section 12. Nothing in this Agreement will
affect the right of either party to serve process in any other manner permitted
by law.
(d) Waiver of Immunities. Each party irrevocably waives, to the fullest
extent permitted by applicable law, with respect to itself and its revenues and
assets (irrespective of their use or intended use), all immunity on the grounds
of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any
court, (iii) relief by way of injunction, order for specific performance or for
recovery of property , (iv) attachment of its assets (whether before or after
judgment) and (v) execution or enforcement of any judgment to which it or its
revenues or assets might otherwise be entitled in any Proceedings in the courts
of any jurisdiction and irrevocably agrees, to the extent permitted by
applicable law, that it will not claim any such immunity in any Proceedings.
14. DEFINITIONS
As used in this Agreement:
"Additional Termination Event" has the meaning specified in Section 5(b).
"Affected Party" has the meaning specified in Section 5(b).
"Affected Transactions" means (a) with respect to any Termination Event
consisting of an Illegality, Tax Event or Tax Event Upon Merger, all
Transactions affected by the occurrence of such Termination Event and (b)
with respect to any other Termination Event, all Transactions.
"Affiliate" means, subject to the Schedule, in relation to any person, any
entity controlled, directly or indirectly, the person or any entity directly
or indirectly under common control with the person. For this purpose, "control"
of any entity or person means ownership of a majority of the voting power
of the entity or person.
"Applicable Rate: means:
(a) in respect of obligations payable or deliverable (or which would have
been but for Section 2(a)(iii) by a Defaulting Party, the Default Rate;
(b) in respect of an obligation to pay an amount under Section 6(e) of
either party from and after the date (determined in accordance with Section
6(d)(ii) on which that amount is payable, the Default Rate;
(c) in respect of all other obligations payable or deliverable (or which
would have been but for Section 2(a)(iii) by a Non-defaulting Party, the
Non-default Rate; and
(d) in all other cases, the Termination Rate.
"Burdened Party" has the meaning specified in Section 5(b).
"Change in Law" means the enactment, promulgation, execution or ratification of,
or any change in or amendment to, any law (or in the application or official
interpretation of any law) that occurs on or after the date on which the
relevant Transaction is entered into.
"Consent" includes a consent, approval, action, authorization, exemption,
notice, filing, registration or exchange control consent.
"Credit Event Upon Merger" has the meaning specified in Section 5(b).
"Credit Support Document" means any agreement or instrument that is specified as
such in this Agreement.
"Credit Support Provider" has the meaning specified in the Schedule.
"Default Rate" means a rate per annum equal to the cost without proof or
evidence of any actual cost) to the relevant payee (as certified by it) if it
were to fund or of funding the relevant amount plus 1% per annum.
"Defaulting Party" has the meaning specified in Section 6(a).
"Early Termination Date" means the date determined in accordance with
Section 6(a) or 6(b)(iv).
"Event of Default" has the meaning specified in Section 5(a) and, if
applicable, in the Schedule.
"Illegality" has the meaning specified in Section 5(b).
"Indemnifiable Tax" means any Tax other than a Tax that would not be
imposed in respect of a payment under this Agreement but for a present or former
connection between the jurisdiction of the government or taxation authority
imposing such Tax and the recipient of such payment or a person related to such
recipient (including, without limitation, a connection arising from such
recipient or related person being or having been a citizen or resident of such
jurisdiction, or being or having been organized, present or engaged in a trade
or business in such jurisdiction, or having or having had a permanent
establishment or fixed please of business in such jurisdiction, but excluding a
connection arising solely from such recipient or related person having executed,
delivered performed its obligations or received a payment under, or enforced,
this , Agreement or a Credit Support Document).
"Law" includes any treaty, law, rule or regulation (as modified, in the
case of tax matters, by the practice of any relevant governmental revenue
authority) and "lawful" and "unlawful" will be construed accordingly.
"Loca1 Business Day" means, subject to the Schedule, a day on which
commercial banks are open for business (including dealings in foreign exchange
and foreign currency deposits) (a) in relation to any obligation under Section
2(a)(i), in the place(s)) specified in the relevant Confirmation or, if not so
specified, as otherwise agreed by the parties in writing or determined pursuant
to provisions contained, or incorporated by reference, in this Agreement, (b) in
relation to any other payment, in the place where the relevant account is
located and, if different, in the principal financial center, if any, of the
currency of such payment, (c) in relation to any notice or other communication,
including notice contemplated under Section 5(a)(i), in the city specified in
the address for notice provided by the recipient and, in the case of a notice
contemplated by Section 2(b), in the place where the "relevant new account is to
be located and (d) in relation to Section 5(a)(v)(2), in the relevant locations
for performance with respect to such Specified Transaction.
"Loss" means, with respect to this Agreement or one or more Terminated
Transactions, as the case may be, and a party, the Termination Currency
Equivalent of an amount that party reasonably determines in good faith to be its
total losses and costs (or gain in which case expressed as a negative number) in
connection with this Agreement or that Terminated Transaction or group of
Terminated Transactions, as the case may be, including any loss of bargain, cost
of funding or, at the election of such party but without duplication, loss or
cost incurred as a result hedge or related trading position (or any gain of its
terminating, liquidating, obtaining or reestablishing any resulting from any of
them). Loss includes losses and costs (or gains) in respect of any payment or
delivery required to have been made (assuming satisfaction of each applicable
condition precedent) on or before the relevant Early Termination Date and not
made, except, so as to avoid duplication, if Section 6(e)(i)(1) or (3) or
6(e)(ii)(2)(A) applies. Loss does not include a party's legal fees and
out-of-pocket expenses referred to under Section 11. A party will determine its
Loss as of the relevant Early Termination Date, or, if that is not reasonably
practicable. A party may (but need not) determine its Loss by reference to
quotations of relevant rates or prices from one or more leading dealers in the
relevant markets.
"Market Quotation" means, with respect to one or more Terminated
Transactions and a party making the determination, an amount determined on the
basis of quotations from Reference Market-makers. Each quotation will be for an
amount, if any, that would be paid to such party (expressed as a negative
number) or by such party (expressed as a positive number) in consideration of an
agreement between such party (taking into account any existing Credit Support
Document with respect to the obligations of such party) and the quoting
Reference Market-maker to enter into a transaction (the "Replacement
Transaction") that would have the effect of preserving for such party the
economic equivalent of any payment or delivery (whether the underlying
obligation was absolute or contingent and assuming the satisfaction of each
applicable condition precedent) by the parties under Section 2(a)(i) in respect
of such Terminated Transaction or group of Terminated Transactions that would,
but for the occurrence of the relevant Early Termination Date, have been
required after that date. For this purpose, Unpaid Amounts in respect of the
Terminated Transaction or group of Terminated Transactions are to be excluded
but, without limitation, any payment or delivery that would, but for the
relevant Early Termination Date, have been required (assuming satisfaction of
each applicable condition precedent) after that Early Termination Date is to be
included. The Replacement Transaction would be subject to such documentation as
such party and the Reference Market-maker may, in good faith, agree. The party
making the determination (or its agent) will request each Reference Market-maker
to provide its quotation to the extent reasonably practicable as of the same day
and time (without regard to different time zones) on or as soon as reasonably
practicable after the relevant Early Termination Date. The day and time as of
which those quotations are to be obtained will be selected in good faith by the
party obliged to make a determination under Section 6(e), and, if each party is
so obliged, after consultation with the other. If more than three quotations are
provided, the Market Quotation will be the arithmetic mean of the quotations,
without regard to the quotations having the highest and lowest values. If
exactly three such quotations are provided, the Market Quotation will be the
quotation remaining after disregarding the highest and lowest quotations. For
this purpose, if more than one quotation has the same highest value or lowest
value, then one of such quotations shall be disregarded. If fewer than three
quotations are provided, it will be deemed that the Market Quotation in respect
of such Terminated Transaction or group of Terminated Transactions cannot be
determined.
"Non-default Rate" means a rate per annum equal to the cost
(without proof or evidence of any actual cost) to the Non-defaulting Party (
certified by it) if it were to fund the relevant amount.
"Non-defaulting Party" has the meaning specified in Section 6(a).
"Office" means a branch or office of a party, which may be such party's head
or home office.
"Potential Event of Default" means any event which, with the giving of
notice or the lapse of time or both would constitute an Event of Default.
"Reference Market-makers" means four leading dealers in the relevant market
selected by the party determining a Market Quotation in good faith (a) from
among dealers of the highest credit standing which satisfy all the criteria that
such party applies generally at the time in deciding whether to offer or to make
an extension of credit and (b) to the extent practicable, from among such
dealers having an office in the same city.
"Relevant Jurisdiction" means, with respect to a party, the jurisdictions
(a) in which the party is incorporated, organized, managed and controlled or
considered to have its seat, (b) where an Office through which the party is
acting for purposes of this Agreement is located, (c) in which the party
executes this Agreement and (d) in relation to any payment, from or through
which such payment is made.
"Scheduled Payment Date" means a date on which a payment or delivery is to
be made under Section 2(a)(i) with respect to a Transaction.
"Set-off" means set-off, offset, combination of accounts, right of
retention or withholding or similar right or requirement to which the payer of
an amount under Section 6 is entitled or subject (whether arising under this
Agreement, another contract, applicable law or otherwise) that is exercised by,
or imposed on, such payer.
"Settlement Amount" means, with respect to a party and any Early
Termination Date, the sum of:
(a) the Termination Currency Equivalent of the Market Quotations (whether
positive or negative) for each Terminated Transaction or group of Terminated
Transactions for which a Market Quotation is determined" and ,
(b) such party's Loss (whether positive or negative and without reference
to any Unpaid Amounts) for each Terminated Transaction or group of
Terminated Transactions for which a Market Quotation cannot be determined or
would not (in the reasonable belief of the party making the determination)
produce a commercially reasonable result.
"Specified Entity" has the meaning specified in the Schedule.
"Specified Indebtedness" means, subject to the Schedule, any obligation
(whether present or future, contingent or otherwise, as principal or surety or
otherwise) in respect of borrowed money.
"Specified Transaction" means, subject to the Schedule, (a) any transaction
(including an agreement with respect thereto) now existing or hereafter entered
into between one party to this Agreement (or any Credit Support Provider of such
party or any applicable Specified Entity of such party) and the other party to
this Agreement (or any Credit Support Provider of such other party or any
applicable Specified Entity of such other party) which is a rate swap
transaction, basis swap, forward rate transaction, commodity swap, commodity
option, equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, currency swap transaction, cross-currency race
swap transaction, currency option or any other similar transaction (including
any option with respect to any of these transactions), (b) any combination of
these transactions and (c) any other transaction identified as a Specified
Transaction in this Agreement or the relevant confirmation.
"Stamp Tax" means any stamp, registration, documentation or similar tax.
"Tax" means any present or future tax, levy, impost, duty, charge,
assessment or fee of any nature (including interest, penalties and additions
thereto) that is imposed by any government or other taxing authority in respect
of any payment under this Agreement other than a stamp, registration,
documentation or similar tax. "Tax Event" has the meaning specified in Section
5(b).
"Tax Event Upon Merger" has the meaning specified in Section 5(b).
"Terminated Transactions" means with respect to any Early Termination Date
(a) if resulting from a Termination Event, all Affected Transactions and (b) if
resulting from an Event of Default, all Transactions (in either case) in effect
immediately before the effectiveness of the notice designating that Early
Termination Date (or, if "Automatic Early Termination" applies, immediately
before that Early Termination Date).
"Termination Currency" has the meaning specified in the Schedule.
"Termination Currency Equivalent" means, in respect of any amount
denominated in the Termination Currency, such Termination Currency amount and,
in respect of any amount denominated in a currency other than the Termination
Currency (the "Other Currency"), the amount in the Termination Currency
determined by the party making the relevant determination as being required to
purchase such amount of such Other Currency as at the relevant Early Termination
Date, or, if the relevant Market Quotation or Loss (as the case may be), is
determined as of a later date, that later date, with the Termination Currency at
the rate equal to the spot exchange rate of the foreign exchange agent (selected
as provided below) for the purchase of such Other Currency with the Termination
Currency at or about 11:00 a.m. (in the city in which such foreign exchange
agent is located) on such date as would be customary for the determination of
such a rate for the purchase of such Other Currency for value on the relevant
Early Termination Date or that later date. The foreign exchange agent will, if
only one party is obliged to make a determination under Section 6(e), be
selected in good faith by that party and otherwise will be agreed by the
parties.
"Termination Event" means an Illegality, a Tax Event or a Tax Event Upon
Merger or, if specified to be applicable, a Credit Event Upon Merger or an
Additional Termination Event.
"Termination Rate" means a rate per annum equal to the arithmetic mean of
the cost (without proof or evidence of any actual cost) to each party (as
certified by such party) if it were to fund or of funding such amounts.
"Unpaid Amounts" owing to any party means, with respect to an Early
Termination Date, the aggregate of (a) in respect of all Terminated
Transactions, the amounts that became payable (or that would have become payable
but for Section 2(a)(iii) to such party under Section 2(a)(i) on or prior to
such Early Termination Date and which remain unpaid as at such Early Termination
Date and (b) in respect of each Terminated Transaction, for each obligation
under Section 2(a)(i) which was (or would have been but for Section 2(a)(iii)
required to be settled by delivery to such party on or prior to such Early
Termination Date and which has not been so settled as at such Early Termination
Date, an amount equal to the fair market value of that which was (or would have
been) required to be delivered as of the originally scheduled date for delivery,
in each case together with (to the extent permitted under applicable law)
interest, in the currency of such amounts, from (and including) the date such
amounts or obligations were or would have been required to have been paid or
performed to (but excluding) such Early Termination Date, at the Applicable
Rate. Such amounts of interest will be calculated on the basis of daily
compounding and the actual number of days elapsed. The fair market value of any
obligation referred to in clause (b) above shall be reasonably determined by the
party obliged to make the determination under Section 6(e) or, if each party is
so obliged, it shall be the average of the Termination Currency Equivalents of
the fair market values reasonably determined by both parties.
IN WITNESS WHEREOF the parties have executed this document on the
respective dates specified below with effect from the date specified on the
first page of this document.
EXPRESS SCRIPTS, INC. THE FIRST NATIONAL BANK OF CHICAGO
(Name of Party) (Name of Party)
By: /s/ Kurt D. Blumenthal By: /s/ Janet D. Newell
Name: Kurt D. Blumenthal Name: Janet D. Newell
Title: Vice President of Finance Title: Assistant Vice President
Date: June 22, 1998 Date: June 24, 1998
<PAGE>
SCHEDULE
to the
MASTER AGREEMENT
dated as of April 3,1998 between
EXPRESS SCRIPTS, INC. ("Party A")
and THE FIRST NATIONAL BANK OF CHICAGO ("Party B")
I. Termination Provisions
(a) "Specified Entity" means, in relation to either party, none specified.
(b) "Default under Specified Transaction" excludes any default under a
Specified Transaction if caused solely by the general unavailability of the
currency in which payments under such Specified Transaction are denominated due
to exchange controls or other governmental action.
(c) "Cross Default" will apply to Party A and shall not have its meaning as
defined in Section 5(a)(vi) of this Agreement but shall instead mean any default
(however described) under the Credit Agreement (hereinafter defined).
(d) "Credit Event Upon Merger" will apply to Party A.
(e) "Automatic Early Termination" shall not apply to either party;
provided, however, that Automatic Early Termination will apply to a party ("X")
from and including the date, if any (i) on which X is or becomes organized in a
jurisdiction other than that which it represents as its jurisdiction of
organization (in this Agreement or otherwise) as of the date of this Agreement
(the "Original Jurisdiction") or (ii) as of which, due to a change in, or
current interpretation of, the insolvency laws (statutory, common or other) of
the Original Jurisdiction applicable to X, a substantial likelihood exists that
the designation by the other party of an Early Termination Date following the
occurrence of an Event of Default with respect to X under Section 5(a)(vu) would
not be recognized or upheld by the relevant courts.
(f) "Market Quotation" and the "Second Method" apply if the Early
Termination Date results from a Termination Event.
(g) "Loss" and the "Second Method" apply if the Early Termination Date
results from an Event of Default.
(h) "Termination Currency" means United States Dollars.
(i) "Market Quotation" in respect of any Terminated Transaction that is, or
is subject to, an unexercised option shall be determined such that the quotation
obtained from Reference Market-makers for a Replacement Transaction takes into
account, or is made in respect of, the economic equivalent of the right or
rights granted pursuant to such option.
II. Tax Representations
(a) Party A is a corporation organized under the laws of the State of
Delaware.
(b) Party B is a national banking association organized under the laws of
the United States of America.
(c) Payer Tax Representations. None specified.
(d) Payee Tax Representations. None specified.
III. Documents
Documents to be delivered by each party (the "Provider"):
(i) upon execution of this Agreement:
(A) evidence reasonably satisfactory to the other party of the Provider's
authority to execute, deliver and perform under this Agreement; and
(B) evidence reasonably satisfactory to the other party of the authority
and genuine signature of the individual(s) executing this Agreement on behalf of
the Provider;
(ii) within thirty days after written demand:
(A) evidence reasonably satisfactory to the other party of the authority
and genuine signature of the individual(s) executing any Confirmations entered
into from time to time hereunder on behalf of the Provider; and
(B) copies of audited, publicly available financial statements or call
reports of the Provider (or, as appropriate, in which the Provider's financial
position is consolidated and reported together with that of certain of its
Affiliates).
The Provider hereby makes the representation set forth in Section 3(d) of the
Agreement with respect to each document delivered under Part III of this
Schedule.
IV. Miscellaneous
(a) Addresses for Notices.
To Party A: To Party B:
EXPRESS SCRIPTS, INC. THE FIRST NATIONAL BANK OF CHICAGO
14000 Riverport Drive One First National Plaza
Maryland Heights, Missouri 63043 Chicago, Illinois 60670
Attention: Mr. George Paz Attention: Risk Insurance Division
Chief Financial Officer Suite 0045
Facsimile Number: (314) 770-0369 Facsimile Number: (312) 732-5645
Section 12(a) is amended by changing the words "may not be given"
appearing in the second line to "shall not be effective if given."
(b) Process Agent. If a party becomes organized outside of the United
States of America , then such party shall, promptly upon written demand by the
other party, irrevocably appoint an agent for service of process in the United
States of America reasonably satisfactory to the other party and provide the
other party with a copy of such agents written acceptance of such appointment.
(c) Offices. Section 10(a) applies. Without limiting the effect of such
designation, the obligations of a party under any Transaction shall be the same
as if the party had entered into such Transaction through its home or head
office.
(d) Multibranch Party.
(i) Party A is not a Multibranch Party.
(ii) Party B is not a Multibranch Party and may make or receive payments
through its Chicago office only.
(e) "Calculation Agent" means Party B.
(f) "Credit Support Document" means:
(i) in relation to Party A, each of the following documents and any other
document which by its terms secures, guarantees or otherwise supports Party A s
obligations hereunder from time to time: the Subsidiary Guaranty and the
Collateral Documents, as defined in the Credit Agreement; and
(ii) in relation to Party B, each of the following documents and any other
document which by its terms secures, guarantees or otherwise supports Party B's
obligations hereunder from time to time: none applicable.
Party A represents to Party B at all times hereunder that its obligations
under this Agreement remain guaranteed and secured under the Credit Support
Document(s).
(g) "Credit Support Provider" means:
(i) in relation to Party A, any party to a Credit Support Document other
than secured parties or beneficiaries thereunder; and
(ii) in relation to Party B, none specified.
(h) Governing Law.
THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REFERENCE TO THE CHOICE OF LAW DOCTRINE.
(i) Waiver of Jury Trial.
EACH PARTY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL PROCEEDING IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION.
(j) Netting of Payments. Section 2(c)(ii) shall apply; provided that either
party may cause payments due on the same day in the same currency (between the
same Offices) but under different Transactions to be discharged and replaced
with a single, netted payment obligation by providing the other party with a
written statement detailing the calculation of such net amount payable not later
than two Business Days prior to the relevant due date.
(k) Set-Off.
(i) Any amount (the "Early Termination Amount") payable to one party (the
"Payee") by the other party (the "Payer") under Section 6(e), in circumstances
where there is a Defaulting Party or one Affected Party in the case where a
Termination Event under Section 5(b)(iv) has occurred, will, at the option of
the party ("X") other than the Defaulting Party or the Affected Party (and
without prior notice to the Defaulting Party or the Affected Party), be reduced
by its set- off against any amount(s) (the "Other Agreement Amount") payable
(whether at such time or in the future or upon the occurrence of a contingency)
by the Payee to the Payer or any of the Payer's Affiliates (irrespective of the
currency, place of payment or booking office of the obligation, the "Other
Payee") under any other agreement(s) between the Payee and the Other Payee or
instrument(s) or undertaking(s) issued or executed by one such entity to, or in
favor of, the other (and the Other Agreement Amount will be discharged promptly
and in all respects to the extent it is so set-off. X will give notice to the
other party of any set-off effected under this Part IV(k).
(ii For this purpose, either the Early Termination Amount or the Other
Agreement Amount (or the relevant portion of such amounts) may be converted by X
into the currency in which the other is denominated at the rate of exchange at
which such party would be able, acting in a reasonable manner and in good faith,
to purchase the relevant amount of such currency.
(iii) If an obligation is unascertained, X may in good faith estimate that
obligation and set-off in respect of an estimate, subject to the relevant party
accounting to the other when the obligation is ascertained.
(iv) Nothing in this Part IV(k) shall be effective to create a charge or
other security interest. This Part IV (k) shall be without prejudice and in
addition to any right of set-off, combination of accounts, lien or other right
to which any party is at any time otherwise entitled (whether by operation of
law, contract or otherwise).
(v) If the Payer is a Non-defaulting Party and the Payee is a Defaulting
Party, then it shall be a condition precedent to the Payer's obligation to pay
the Early Termination Amount to the Payee that all Other Agreement Amounts have
been paid in full or satisfied by offset as set forth above.
(1) Escrow. If payments denominated in different currencies are due
hereunder by both parties on the same day, then a party may make its payment in
escrow (through reasonable arrangements) if it has reasonable cause to believe
that the other party will not meet its payment obligation. The party electing
escrow shall provide notice thereof to the other party prior to the time that
the latter of the two payments is due and shall bear the cost of such
arrangements. .
(m) Recorded Conversations. Each party may electronically record any and
all telephone conversations between itself and the other party in connection
with this Agreement (including any Transaction) and agrees that any such
recordings may be submitted in evidence to any court or in any proceeding for
the purpose of establishing any matters pertinent thereto.
(n) Section References. "Section" means, unless otherwise indicated, a
section of this Agreement appearing in the ISDA printed form.
V. ISDA Definitions
(a) Incorporation. Each Transaction entered into under this Agreement will
be subject to, and governed by the provisions of, the 1991 ISDA Definitions (as
published by the International Swaps and Derivatives Association, Inc., in the
"1991 Definitions"), without regard to any amendments to the 1991 Definitions
subsequent to the date hereof.
(b) Inconsistency. In the event of any inconsistency between the provisions
of this Schedule and the 1991 Definitions, this Schedule shall prevail. In the
event of any inconsistency between the provisions of a Confirmation and the 1991
Definitions, the Confirmation shall prevail for purposes of the Transaction
evidenced thereby.
VI. Additional Terms
Credit Agreement. Until all of Party A's obligations (whether absolute or
contingent) under this Agreement have been satisfied in full, Party A will at
all times perform, comply with and observe all covenants and agreements of the
Credit Agreement applicable to it, which covenants and agreements, together with
related definitions and ancillary provisions, are hereby incorporated by
reference and, for the avoidance of doubt, shall be construed to apply hereunder
for the benefit of Party B as though (i) all references therein to the party or
parties making loans, extensions of credit or financial accommodations
thereunder or commitments therefor ("Financings") were to Party B and (ii) to
the extent that such covenants and agreements are conditioned on or relate to
the existence of such Financings or Party A having any obligations arising out
of or in connection therewith, all references to such Financings or obligations
were to Party A's obligations under this Agreement. '
"Credit Agreement" means that certain Credit Agreement dated as of April l,
1998 by and among Party A, as the Company, the financial institutions listed
therein, as the Lenders (including Party B), and Bankers Trust Company, as
Agent, as the same exists on the date of execution of this Agreement and without
regard to (i) any termination cancellation thereof, whether by reason of payment
of all indebtedness incurred thereunder or otherwise, or (ii) unless consented
to in writing by Party B, any amendment, modification, addition, waiver or
consent thereto or thereof.
IN WITNESS WHEREOF, the parties have executed this Schedule by their duly
authorized officers as of the date hereof.
EXPRESS SCRIPTS, INC.
By: /s/ Kurt D. Blumenthal
Name: Kurt D. Blumenthal
Title: Vice President of Finance
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/ Janet D. Newell
Name: Janet D. Newell
Title: Assistant Vice President
EXHIBIT 10.7
LEASE AGREEMENT
This Lease Agreement, made as of this 12th day of June, 1989, between
MICHAEL D. BROCKELMAN and JAMES S. GRATTON as Trustees under agreement dated
April 17, 1980, c/o R.V.M. & G, Inc., #1 Alewife Center, Cambridge,
Massachusetts 02140 (hereinafter referred to as "Lessor"), and HEALTH CARE
SERVICES, INC. 3684 Meadow Lane, Bensalem, Pennsylvania 19020, (hereinafter
referred to as "Lessee").
W I T N E S S E T H:
For and in consideration of the rental herein reserved, and of the
covenants, conditions, agreements, and stipulations of the Lessee hereinafter
expressed, the parties agree as follows:
1. PREMISES.
The Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor,
the following described premises:
(a) ALL THAT CERTAIN space identified on Exhibit "A" attached hereto and
made a part hereof, consisting of approximately 37,420 square feet of that
approximately 64,500 square foot building located at 3684 Meadow Lane, Bensalem,
Pennsylvania 19020 (the "Premises").
(b) Together with the right to use in common with Lessor, its employees,
invitees and customers, and Lessor's other tenants and their employees invitees,
and customers, the parking areas provided by the lessor, its successors, or
assigns, in the designated areas for the parking of automobiles, which are
contiguous to the building in which the leased premises are located, and, also
identified on Exhibit "A"; provided that the Lessor retains the right to make
reasonable rules and regulations with reference to the use of said parking area,
including the right to provide for certain reserved parking as, from time to
time, determined by the Lessor, and particularly provided that employees,
agents, and principals of Lessee shall park in designated areas so as to assure
Lessor's other tenants and Lessor's customers and visitors convenient and
proximate parking contiguous to the building or buildings in which its tenants
are located.
(c) Lessee acknowledges that: (1) except for the work to be performed on
the attached Exhibit "B", (if any), Lessee has inspected the leased premises and
hereby accepts same in "as is" condition, and (2)Lessor has made no warranties
and/or representations regarding the condition of the leased premises.
2. TERM.
(a) The initial term of this Lease (the "Initial Term") shall commence on
July 1, 1989 and shall expire on midnight, June 30, 1999, (the "Expiration
Date"). If Lessee shall elect to extend the Initial Term for the Renewal Period
pursuant to Paragraph 3 below, the term of this Lease (the "Term") shall mean
the Initial Term together with the Renewal Period and the Expiration Date shall
be June 30, 2004.
(b) If, for any reason whatsoever, Lessor fails to deliver the Leased
Premises to Lessee by August 15, 1989, Lessee shall have the right to terminate
this Lease. If Lessor's failure to deliver the Leased Premises by August 1, 1989
is for any reason within Lessor's reasonable control, Lessor shall be liable to
Lessee for Lessee's actual rent caused thereby including any rent Lessee incurs
by reason of Lessee holding over under its Lease for the space which Lessee now
occupies.
3. OPTIONS TO EXTEND.
The Term of this Lease may be extended by Lessee, at Lessee's sole option
(the "Renewal Option"), for one period of five (5) years (the "Renewal Period"),
from and after the expiration of the Initial Term,, by giving Lessor prior
written notice of the exercise of the Renewal option not less than nine (9)
months before the expiration of the Initial Term.
4. BASE RENT.
(a) FIRST FIVE LEASE YEARS. Lessee agrees to pay to Lessor as base rent
("Base Rent"), commencing on the Rent Commencement Date and continuing through
the first five Lease Years, Four Dollars and Twenty-Five Cents ($4.25) per
square foot of floor area in the Leased Premises per year.
(b) SECOND FIVE LEASE YEARS. Lessee agrees to pay to Lessor as Base Rent,
commencing on the first day of the sixth Lease Year and continuing through the
remainder of the Initial Term, Five Dollars and Thirty-Five ($5.35) per square
foot of floor area in the Leased Premises per year. 2
(c) BASE RENT DURING RENEWAL PERIOD. In the event Lessee exercises the
Renewal option, the Base Rent for the Renewal Period shall be as follows: The
minimum annual rental during each year of the Renewal Period shall be an amount
equal to the greater of (a)the Base Rent in effect during the year preceding the
commencement of the Renewal Period, or (b)the sum of the Base Rent in effect
during the last year of the Initial Term hereof multiplied by a fraction (the
"fraction")the numerator of which shall be the Index (as hereinafter defined)
for the month preceding the commencement of the Renewal Period, and the
denominator of which shall be the Index for the month preceding the commencement
date of the Initial Term of this Lease. The "Index" shall mean: (1) the Consumer
Price Index for All Urban Consumers (CPI-U)- U.S. Average, All Items (1967-100),
published by the Bureau of Labor Statistics of the U.S. Department of Labor, or
(c)if the index does not exist at that time the fair market value at the time,
whichever is higher.
(d) PAYMENT OF BASE Rent. Base Rent shall be paid in monthly installments
equal to one-twelfth (1/12th) of the annual Base Rent payable during the
applicable Lease Year, in advance, on the first day of each calendar month,
commencing on the date on which Lessor delivers the Premises to Lessee ("Rent
Commencement Date"). If the Rent Commencement Date does not occur on the first
day of the month, the Base Rent for the partial month shall be pro-rated and
shall be paid by Lessee when the Rent Commencement Date occurs.
5. ADDITIONAL RENT: OPERATING EXPENSES; REAL ESTATE TAXES.
Lessee shall pay, as Additional Rent, Lessee's Share (as hereinafter
defined) of the Operating Expenses (as hereinafter defined) and Real Estate
Taxes (as herein defined). Additional Rent shall be paid together with Base
Rent, in advance, in monthly installments equal to one-twelfth (1/12th) of the
annual Additional Rent payable during the applicable Lease Year as reasonably
estimated by Lessor.
(a) OPERATING EXPENSES DEFINED. The term "Operating Expenses" shall mean
those reasonable expenses paid by the Lessor in respect to the Building for
those repairs set forth herein, charges for electricity, water, gas, sanitary
sewer and other public utilities, snow removal, landscaping expenses, Building
Common Area utilities, premiums for casualty insurance on the Building, and the
cost, as reasonably amortized by the Lessor, of any capital improvement made
after the first Lease Year which reduces other Operating Expenses, but in an
amount not to exceed such reduction for the relevant year. Operating Expenses
shall not include: (i) the cost and expense to Lessor for Major Repairs as
defined herein), (ii) the cost to the Lessor of any work or service performed in
any instance for any tenant (including the Lessee)at the cost of such tenant,
(iii) the amortization of any capital improvement without Lessee's consent, (iv)
Lessor's depreciation of the Building, debt service, capital expenditures other
than included above, taxes on income, franchise taxes, payments to affiliates of
Lessor not expressly approved by Lessee, management salaries or fees, tenant
allowances and other expenditures in connection with the preparation of space
for use by a tenant or a prospective tenant and casualty loss or damage and
repairs and other expenses related thereto.
(b) REAL ESTATE TAXES. "Real Estate Taxes" shall be defined as including
the following items: (i) real estate taxes; (ii) assessments levied, assessed,
or imposed against such land and/or buildings or the rents or profits therefrom
to the extent that the same shall be in lieu of all or any portion of any items
hereinabove set forth, and (iii) all water and sewer rents, charges, taxes, and
frontage assessed or imposed. If due to a change in the method of taxation, any
franchise, income, profit, or other tax, however designated, shall be levied
against Lessor's interest in the property in whole or in part for or in lieu of
any tax which would otherwise constitute Real Estate Taxes, such taxes shall be
included in the term "Real Estate Taxes" for purposes hereof. All such payments
shall be approximately prorated for any partial calendar years in which the term
of this Lease shall commence or expire. A copy of the tax bill shall be
sufficient evidence of the amount of Real Estate Taxes.
Only Lessor shall be eligible to institute tax reduction or other
proceedings to reduce the assessed valuation of the land and buildings. Should
Lessor be successful in any such reduction proceedings and obtain a rebate for
periods during which Lessee has paid its share of increases, and provided that
Lessee is not in default in payment of rent or additional rent due under this
Lease, Lessor shall, after deducting its expenses, including, without
limitation, attorneys' fees and disbursements in connection therewith, promptly
return Lessee's pro rata share of such rebate after Lessor has received such
proceeds. Lessee may not obtain any portion of the benefits which may accrue to
Lessor from any reduction in Real Estate Taxes for any year below those imposed
in the Basic Tax Year.
Along with notification of any increases in Real Estate Taxes for which the
Lessor requests payment from Lessee, Lessor shall also furnish (i) a copy of the
current tax bill,
(ii) a copy of the tax bill for the base year, (iii) a statement showing
calculation of Lessee's proportionate share of the increase in Real Estate Taxes
for which payment is requested in sufficient detail to enable Lessee to verify
the accuracy of the amount it is being requested to pay.
(c) TENANT'S SHARE DEFINED. "Tenant's Share" shall mean the product derived
by multiplying the sum of operating Expenses and Real Estate Taxes for the
applicable Lease Year by a fraction, the numerator of which shall be 37,240 (the
total square footage of floor area of the Leased Premises) and the denominator
of which shall be 64,500 (the total square footage of the floor area of the
Building); provided, however, that if any other tenant of the Building is a
disproportionate user of any utilities not separately metered, or if any other
tenant of the Building uses its premises in a manner which presents a casualty
insurance risk significantly greater than Tenant, Tenant's Share shall be
adjusted so as to equitably apportion the costs and expenses related thereto.
(d) ADJUSTMENT OF PAYMENT. Within sixty (60) days after the end of each
lease year, Landlord shall submit to Tenant an accurate statement certified by
Landlord showing the actual Additional Rent for the year payable by Tenant. In
the event that such statement or any audit by Lessee reveals that the amount of
additional Rent due from Lessee is less than the amount actually paid by Lessee,
then such excess shall be credited to the installment(s) of monthly rental
payment next due, or if for the last year of the lease term be paid by Lessor to
Lessee upon termination of the Lease Agreement and vacation of the leased
premises.
7. SECURITY DEPOSIT.
The Lessee shall deposit with the Lessor on or before the _____day of
_______, 19 , the a sum equivalent to two (2) months rent in cash as security
for the payment of the rent provided herein and for the observance and
performance by the Lessee of all of the terms, provisions, and conditions of
this Lease on its part to be kept and performed; and further to indemnify the
Lessor for any loss, costs, fees, and expenses which the Lessor may incur by
reason of any default by the Lessee. The Lessor shall repay an amount equal to
one month's rent upon the expiration of one year from the date of the
commencement of rental payments provided, all such payments were made on a
timely basis and Lessee is not otherwise in default of any of the terms or
conditions of this Lease Agreement, and, the Lessor shall repay to the Lessee
the security deposit or any balance thereof upon the termination or expiration
of the term of this Lease or any extension thereof. In the event of any failure
in the payment of rent or other sum, or of any default by the Lessee in the
performance of the terms, provisions and conditions of this Lease, the Lessor
shall have the right to apply the security deposit against any loss, costs,
fees, and expenses caused thereby. The security deposit shall bear no interest.
8. USE OF PREMISES.
The Lessee shall use said premises for general office purposes, for
manufacturing, packaging, warehousing and distributing pharmaceutical and other
related products, and for retail sales of pharmaceutical and other related
products, and/or for any other lawful purpose.
Lessee shall comply with all present and future laws or ordinances
applicable to the leased premises and shall not commit or suffer waste on the
premises, or use or permit anything on the premises which may be illegal, or
constitute a private or public nuisance or conflict with or invalidate or
increase the cost of any of Lessor's fire and extended coverage insurance, or
which may be dangerous to persons or the property of the Lessor or other tenants
of Lessor's building, their agents, servants, employees, and customers.
Notwithstanding the foregoing, Lessee's effecting an increase in the cost of any
of Lessor's fire and extended insurance is curable by Lessee's payment of such
increase in cost.
Lessor shall deliver prior to occupancy a valid certificate of occupancy
for the building indicating the uses of the building permitted by the local
municipality, and Lessor warrants and represents that Lessor has not and will
not make any physical changes to the Property subsequent to the issuance of the
certificate of occupancy.
9. ENVIRONMENTAL MATTERS.
a) Lessee shall, at its sole cost and expense, obtain any and all necessary
governmental approvals necessary for its use of the building and property, INTER
ALIA, as a retail pharmacy.
Lessee further understands and agrees that it shall cause all activities at
the Property during the term of this Lease Agreement, or any extension hereof to
be conducted in compliance with all Environmental Statutes. Lessee shall cause
all permits, licenses, or approvals to be obtained and shall cause all
notifications to be made, as required by Environmental Statutes. Lessee shall,
at all times, cause compliance with the terms and conditions of any such
approvals or notifications.
(b) During the term of this Lease Agreement, Lessee shall provide to Lessor
copies of:
(i) applications or other materials submitted to any governmental agency in
compliance with Environmental Statutes;
(ii) any notifications submitted to any person pursuant to Environmental
Statutes;
(iii) any permit, license, approval, amendment or modification thereto
granted pursuant to Environmental Statutes;
(iv) any record or manifest required maintained pursuant to Environmental
Statutes; and
(v) any correspondence, notice of violation, summons, order, complaint or
other document received by Lessee, its sublessees or assigns, pertaining to
compliance with any Environmental Statutes.
(c) Site Contamination.
(1) Lessee shall not permit contamination of the Property by hazardous
substances during the term of this Agreement. Lessee shall, at all times during
the term of this Agreement, cause hazardous substances to be handled on the
Property in a manner which will not cause an undue risk of contamination of the
Property.
(2) For purposes of this section, the term "contamination" shall mean the
uncontained presence of hazardous substances at the Property, or arising from
the Property, which may require remediation under any applicable law.
(3) For purposes of this section, "hazardous substances" shall mean
"hazardous substances" as defined pursuant to the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. section 9601-9657, AS
AMENDED BY the Superfund Amendments and Reauthorization Act of 1986, Pub. L. No.
99-499, 100 Stat. 1613 (Oct. 17, 1986), "regulated substances" within the
meaning of subtitle I of the Resource Conservation and Recovery Act, 42 U.S.C.
Section 6991-6991li, AS AMENDED BY the Superfund Amendments and Reauthorization
Act of 1986, Pub. L. No 99-499, 100 Stat. 1613 (Oct. 17, 1986), and "hazardous
wastes" as defined pursuant to the Pennsylvania Solid Waste Management Act, Pa.
Stat. Ann. Tit. 35, Section 6018-101 to .1003 (Purdon Supp. 1987), or any other
substances which may be the subject of liability pursuant to Sections 316 or 401
of 7. The Pennsylvania Clean Streams Law, Pa. Stat. Ann. Tit. 35, Section 691.1
to .1001 (Purdon 1977 and Supp. 1987).
(c) INDEMNIFICATION. Lessee hereby agrees to indemnify and to hold harmless
Lessor of, from and against any and all expenses, loss or liability suffered by
Lessor by reason of Lessee's breach of any, of the provisions of this Section,
including, but not limited to: (i) any and all expenses that Lessee may incur in
complying with any Environmental Statutes; (ii) any and all costs that Lessor
may incur studying or remedying any contamination of the Property; (iii) any and
all fines, penalties or other sanctions (including a voiding of any transfer of
the Property) assessed upon Lessor by reason of a failure of Lessee to have
complied with Environmental Statutes; (iv) any and all loss of value of the
Property by reason of (A) failure to comply with Environmental Statutes; (B) the
presence on Property of any hazardous substances; and (v) any and all legal and
professional fees and costs incurred by Lessor in connection with the foregoing.
This indemnification shall survive the term of this Lease Agreement and any
extension thereof.
10. REPAIR AND MAINTENANCE OBLIGATIONS.
(A) LESSOR'S REPAIRS. Lessor shall maintain and repair, at its own cost and
expense, which costs and expenses shall not be included in Operating Expenses
determined herein, the structural integrity of the building, including, but not
limited to the roof and roof cover, the foundation, the exterior walls, floors
and the water, gas, electricity and telephone service connections into the
Property (collectively, the "Major Repairs"); provided, however, that any
structural or other damage caused by the negligence Lessee, its agents,
employees or contractors shall repaired at Lessee's cost and expense.
(B) LESSEE'S REPAIRS AND MAINTENANCE OBLIGATIONS. Lessee shall repair and
maintain, at its sole cost and expense, (i) the Leased Premises, including all
internal walls, glass windows, doors, non-structural floor coverage, plumbing,
heating and air conditioning systems, all floors (except that Lessor shall
maintain and repair the structural integrity of all floors), all exterior walls
(except that Lessor shall maintain and repair the structural integrity of all
exterior walls) and (ii) those parking areas, landscaped areas and entranceways
and exits to and from the Building under control of Lessee all as shown on
Exhibit A thereto. Lessee shall surrender the Leased Premises, at the
termination of this Lease "broom clean", in good order and repair, reasonable
wear and tear excepted.
No property shall be left on the premises after the expiration or other
termination of this Lease by Lessee without the prior written consent of the
Lessor.
11. LESSEE'S WORK.
(a) Lessee accepts the Premises in "as is" condition without any obligation
for the performance of improvements or other work by Lessor. Lessee desires to
perform certain improvements thereto (the "Work"), such Work to be in accordance
with the specifications on Exhibit C hereto. Performance of the Work shall not
serve to abate or extend the Rent Commencement Date.
Lessee shall pay all costs associated with the Work whatsoever, including
without limitation, all permits, inspection fees, fees of space planners,
architects, engineers and contractors, the cost of all labor and materials,
bonds (to be obtained at Lessee's option), insurance, and any structural or
mechanical work, additional HVAC equipment or sprinkler heads, or modifications
to any building mechanical, electrical, plumbing or other systems and equipment
or relocation of any existing sprinkler heads, required as a result of the
layout, design or construction of the Work.
(b) Notwithstanding any other provision of this Lease, Lessor shall provide
and maintain, at its sole cost and expense, water, gas, electricity and
telephone service connections into the Premises, except, however if additional
utility service is required due to Lessee's Work, all costs shall be borne
solely by Lessee.
12. SIGNS.
Lessee shall have the right upon the prior written consent of Lessor, which
consent shall not be unreasonably withheld, at its sole cost and expense, to
post, paint, construct, attach and maintain signs on the exterior of the
Building identifying Lessee, provided however, that all local code compliance
shall be the sole responsibility, cost, and expense of Lessee.
13. DAMAGE TO LESSEE'S PROPERTY OR PREMISES.
(a) The Lessor and its agents shall not be liable in damages, by abatement
in rent or otherwise, for any damage either to the person or the property of the
Lessee, or for the loss of or damage to any property of the Lessee by theft or
from any other cause whatsoever, whether similar or dissimilar to the foregoing.
The Lessor or its agents shall not be liable for any injury or damage to persons
or property, or loss or interruption to business resulting from fire, explosion,
falling plaster, steam, gas, electricity, water, rain, snow, or leaks from any
part of the building, or from the pipes, appliances, or plumbing works, or from
the roof, street, or subsurface, or from any other place, or by dampness, or by
any cause of whatsoever nature; nor shall the Lessor or its agents be liable for
any damage caused by other tenants or persons in said building, or caused by
operations in construction of any private or public or quasi-public work. None
of the limitations of the liability of Lessor or its agents provided for in this
subsection (a) shall apply if such loss, injury, or damages are proximately
caused by the negligence or breach by the Lessor, its agents, employees, or
independent contractor.
(b) The Lessee shall be liable for any damage to the building or property
therein which may be caused by its act or negligence, or the acts of its agent,
employees, or customers, and the Lessor may, at its option, repair such damage,
and the said Lessee shall thereupon reimburse and compensate the Lessor as
additional rent, within five (5) days after rendition of a statement by the
Lessor, for the total cost of such repair and damage. None of the limitations of
the liability of Lessor or its agents provided for in this subsection (a) shall
apply if such loss, injury, or damages are proximately caused by the negligence
or breach by the Lessor, its agents, employees, or independent contractor.
14. INDEMNITY, LIABILITY INSURANCE, BUILDING INSURANCE, WAIVER OF
SUBROGATION.
(a) The Lessee hereby indemnifies and agrees to hold the Lessor harmless
and free from damages sustained by person or property, and against all claims of
third persons for damages arising out of the Lessee's use of the leased
premises, and for all damages and monies paid out by Lessor in settlement of any
claim or judgments, as well as for all expenses and attorneys' fees incurred in
connection therewith.
(b) Lessee shall, during the entire term of this Lease and any renewal
hereof, keep in full force and effect a policy of public liability and property
damage insurance with respect to the leased premises, and the business operated
by Lessee. (i) Lessee shall, at all times from and after the date on which
Lessor delivers the Premises to Lessee, at its sole cost and expense, maintain
public liability insurance ("Tenant's Liability Insurance") covering any and all
claims for injuries or death to persons or property arising in or upon the
Leased Premises with a single limit of not less than One Million Dollars
($1,000,000.00).
(ii) The policy for Lessee's Liability Insurance shall contain a provision
granting thirty (30) days notice of cancellation of insurance to Lessor. (iii)
Lessee, if it so elects, may carry Lessee's Liability Insurance under a primary
public liability insurance policy or under a combination public liability and
umbrella liability insurance policy.
(c) PROVISIONS OF FIRE INSURANCE POLICY. (i) The amount of Lessor's Fire
Insurance shall be not less than 90% of the Full Replacement Cost (as defined in
this subparagraph (c) of the Building, including all Alterations thereof, and
shall be an amount sufficient to prevent Lessor from becoming a co-insurer
within the terms of the applicable policies of Lessor's Fire Insurance.
The term "Full Replacement Cost" means the cost of replacing the Building.
(ii) All policies of Lessor's Fire Insurance shall provide that the
proceeds of any loss shall be payable to Lessor and to the holder (as its
interest may appear) of any mortgage(s) , if any, to which this Lease is
subordinate so long as such holder and future holders of such mortgage(s) are
obligated to apply proceeds of insurance in the manner provided for in this
Lease.
15. DAMAGE OR DESTRUCTION TO PREMISES.
(a) If the leased premises, or any portion thereof, shall be damaged during
the term by fire or any casualty insurable under the standard fire and extended
coverage insurance policies, but are not wholly untenantable, the Lessor shall
repair and/or rebuild the same as promptly as possible, provided that the
proceeds from Lessor's insurance policies are available to Lessor. The Lessor
shall not be required to repair or rebuild any fixtures, installations,
improvements, or leasehold improvements made to the interior of the leased
premises by Lessee, nor Lessee's exterior signs. Such repairs and/or
replacements are to be made by Lessee. In such event, the Lease shall not
terminate, but shall remain in full force and effect, and a proportionate
reduction in the fixed minimum monthly rental shall be made from the time of
such fire or casualty until said premises are repaired or restored, except (i)
if the Lessee can use and occupy the leased premises without substantial
inconvenience; or (ii) if said repairs are delayed at the request or by reason
of any act on the part of the Lessee which prevents or delays the repair of said
premises by Lessor, there shall be no reduction in rental while said premises
are being repaired, nor for any period of delay caused by or requested by
Lessee. Lessors obligation to repair shall be subject to any delays from labor
troubles, material shortages, insurance claim negotiations, or any other causes,
whether similar or dissimilar to the foregoing, beyond Lessor's control.
(b) If the leased premises are rendered wholly untenantable by fire or
other cause, or if the leased premises or the building in which they are located
should be damaged or destroyed by fire or other casualty, to the extent of fifty
percent (50%) or more of the monetary value of either thereof, whether the
leased premises themselves be damaged or not, or so that fifty percent (50%) or
more of the floor space contained in either thereof shall be rendered
untenantable, then, and in that event, Lessor may, at its option, terminate this
Lease or elect to repair or rebuild the same. If, as a result of any damage
either to the leased premises or to the building of which they are a part, the
Lessor determines to demolish or rebuild the premises, or the building of which
they are a part, then, and in any such event, the Lessor may also terminate this
Lease. In any of the foregoing instances, the Lessor shall notify the Lessee as
to its election within sixty (60) days after the casualty in question. If the
Lessor elects to terminate this Lease, then the same shall terminate three (3)
days after such notice is given, and the Lessee shall immediately vacate the
leased premises and surrender the same to the Lessor, provided, however, Lessee
shall be granted a reasonable time to remove its personal property, paying the
rent to the time of such vacation and surrender, subject to an equitable
abatement from the time of said damage. If the Lessor does not elect to
terminate this Lease, the Lessor shall repair and/or rebuild the leased premises
as promptly as possible, subject to any delay from causes beyond its reasonable
control, and the term shall continue in full force and effect, subject to
equitable abatement in the fixed minimum monthly rental from the time of said
damage or destruction until said premises are repaired or restored.
(c) Notwithstanding anything else in subparagraphs (a) and (b) above, if
Lessor is required or elects to repair or replace the Leased Premises following
any damage or destruction, Lessor shall within thirty (30) days of such damage
or destruction give Lessee written notice of the amount of time Lessor shall
reasonably need to repair or replace the Leased Premises. If the Leased Premises
cannot be repaired or replaced within one-hundred eighty (180) days after the
date of the damage or destruction, Lessee shall have the right to terminate the
Lease within thirty (30) days after receipt of Lessor's notice, and the Base
Rent and Additional Rent Due hereunder shall be prorated to the date of the
damage or destruction.
16. EMINENT DOMAIN.
If the premises, or any part thereof, shall be taken under eminent domain
proceedings, or transferred to a public authority in lieu of such proceedings,
Lessor may terminate this Lease as of the date when possession is taken. All
damages awarded for such taking shall belong to and be the property of Lessor.
Lessee shall have no claim against Lessor by reason of such taking or
termination and shall not have any claim or right to any portion of the amount
that may be awarded or paid to Lessor as a result of any such taking, except
that Lessee shall have the right to make a claim against such public authority
for its loss of business and for any other relief available to Lessee by law in
the event such taking involves the physical taking of all or a portion of the
leased premises, arid, in such event, Lessee shall also have the right to
terminate this Lease as of the date when possession is taken by the public
authority.
17. ESTOPPEL CERTIFICATE STATEMENT, ATTORNMENT, SUBORDINATION, AND
EXECUTION OF DOCUMENTS.
(a) Lessee agrees that at any time and from time to time at reasonable
intervals, within ten (10) business days after written request by lessor, Lessee
will execute, acknowledge, and deliver to Lessor, Lessor's mortgagee, or others
designated by lessor, a certificate in such form as may from time to time be
provided, ratifying this Lease and certifying:
(i) that this Lease is in full force and effect, and has not been assigned,
modified, supplemented, or amended in any way (or if there has been any
assignment, modification, supplement, or amendment, identifying the same) ;
(ii) that this Lease represents the entire agreement between Lessor and
Lessee as to the subject matter hereof (or if there has been any assignment,
modification, supplement, or amendment, identifying the same);
(iii) the Commencement Date and Termination Date;
(iv) that all conditions under this Lease to be performed by Lessor have
been satisfied (and if not what conditions remain unperformed);
(V) that to the knowledge of the signer of such writing, no default exists
in the enforcement of this Lease by lessor or specifying each default, defense,
or offset of which the signer may have knowledge;
(vi) that no rental has been paid in advance other than for the month in
which such certificate is signed by Lessee;
(vii) the amount of the security deposited with Lessor pursuant to Item 7
hereof; and
(viii) the date to, which all rentals due hereunder have been paid under
this Lease.
(b) Lessee shall, in the event any proceedings are brought for the
foreclosure of, or in the event of exercise of the power of sale under any
mortgage covering the leased premises, attorn to the purchaser upon any such
foreclosure or sale and recognize such purchasers as the Lessor, subject to all
of Lessee's duties obligations, rights, and options under this Lease.
(c) upon request by the Lessor, Lessee shall subordinate its rights
hereunder to the lien of any mortgage or mortgages, or the lien resulting from
any other method of financing or refinancing, now or hereafter in force against
the land and/or the buildings of which the leased premises are a part, or
against any buildings hereafter placed upon the land of which the leased
premises are a part, and to all advances made or hereafter to be made upon the
security thereof; provided, however, that a condition precedent to Lessee's
requirement to subordinate hereunder shall be that Lessee, upon any default in
the terms of such financing by Lessor, shall have the right to pay the rental
due hereunder directly to the mortgagee or other persons to whom Lessor may be
obligated under such financing and, so long as Lessee does so pay the rentals as
herein provided, this Lease and all Lessee's rights and options hereunder shall
remain in full force and effect as to such mortgagee or other financing obligee
of Lessor.
(d) The Lessee, upon request of any party in interest, shall execute,
within ten days of lessee's receipt, such instruments or certificates to carry
out the intent off these paragraphs above as shall be requested by the Lessor.
Provided, however, that nothing contained in such instruments or certificates
required by lessor shall be in derogation of any rights granted to Lessee
hereunder, nor expand Lessee's obligations hereunder, and if any such
instruments or certificates would have the effect of accomplishing one or both
of the foregoing, either explicitly or implicitly, then Lessee shall not be
obligated to execute the same.
18. DEFAULT.
(a) If the Lessee shall, at any time, be in default of the payment of
either rent or any payments required of Lessee hereunder or any part thereof,
Lessor shall provide written notice of such default and Lessee shall have three
days subsequent to the issuance of said notice to cure the monetary default
before Lessor may invoke any other remedies available under the terms of this
Lease, or if Lessee shall be in default of any of the other covenants and
conditions of this Lease to be kept, observed, and performed by Lessee for more
than thirty (30) days after the giving of written notice by the Lessor to the
Lessee of such default, provided, however, that if the nature of the specified
obligation(s) is such that more than thirty (30) days are required for
performance, then lessee shall not be in default if it commences performance
within such 30 day period and thereafter diligently prosecutes the same to
completion, or if Lessee shall vacate or abandon the premises, or fail to take
possession of the premises and actively operate its business therein, or if
Lessee shall be adjudged a bankrupt, or if a receiver or trustee shall be
appointed and shall not be discharged within thirty (30) days from the date of
such appointment, then and in any such events the Lessor may re-enter the leased
premises by summary proceedings or otherwise, and thereupon may expel all
persons and remove all property therefrom, without becoming liable to
prosecution therefor, and may, among other remedies elect:
(i) to relet said premises as the agent of the Lessee, and reserve the rent
therefrom, applying the same first to the payment of the reasonable expense of
such reentry, and then to the payment of the rent accruing hereunder; but
whether or not the leased premises are relet, the Lessee shall remain liable for
the equivalent of all rent and other charges provided for under this Lease, plus
the cost of reletting, if any, which said amount shall be due and payable to the
Lessor as damages, or rent, as the case may be, on the successive monthly rent
days hereinabove provided; or (ii) To terminate this Lease and immediately
resume possession of the leased premises, wholly discharged from any obligations
under the term of this Lease, and may re-enter and repossess said premises, free
form any and all claims on the part of the Lessee. Termination of the Lease does
not discharge or in any way affect Lessee's obligation to pay Lessor all the
rents or other charges or payments accruing under the Lease up to the date of
termination.
(b) Lessor shall not be in default unless it fails to perform the
obligations required of Lessor by this Lease Agreement within thirty (30) days
after written notice by Lessee to Lessor specifying which obligation(s) Lessor
has failed to perform. Provided, however, that if the nature of the specified
obligation(s) is such that more than thirty (30) days are required for
performance, then Lessor shall not be in default if it commences performance
within such 30-day period and thereafter diligently prosecutes the same to
completion. If Lessor has not cured or commenced to cure the default set forth
in said notice within said 30-day period, Lessee may at his option either (i)
cure such default and deduct the reasonable costs and expenses incurred from the
next and succeeding rent payment(s) or (ii) cancel this Lease and, in such
event, this Lease shall thereupon cease, terminate, and come to an end with the
same force and effect as though the original demised term had expired at that
time.
19. SUBLETTING AND ASSIGNING.
The Lessee shall not sublet any portion of the leased premises nor assign
this Lease in whole or in part without the written consent of the Lessor as to
both the terms of such assignment or sublease, and the identity of such assignee
or sublessee, which consent shall not unreasonably be withheld, and in the event
of a subletting so approved by Lessor, all rent in excess of Base Rent and all
additional rent shall be due and payable at that time to Lessor. Lessee shall
nevertheless remain obligated to Lessor under the terms of this Lease Agreement.
Notwithstanding any of the foregoing, Lessee may assign this Lease or
sublet the Premises to any subsidiary, parent corporation or affiliate of
Lessee, or any entity controlled by or controlled with Lessee, without Lessor's
consent, provided that Lessee shall remain obligated by the terms and conditions
of this Lease.
20. QUIET ENJOYMENT.
The Lessor covenants and agrees with the Lessee that upon the Lessee paying
the said rent and performing all the covenants and conditions aforesaid on the
Lessee's part to be observed and performed, the Lessee shall and may peaceably
and quietly have, hold and enjoy the premises hereby leased, for the term
aforesaid on the Lessee's part to be observed and performed, the Lessee shall
and may peaceably and quietly have, hold, and enjoy the premises hereby leased,
for the term aforesaid subject, however, to the terms of this Lease, any
mortgage, or other instruments now or hereafter created by the Lessor.
21. MEMORANDUM OF LEASE.
Lessee agrees that it will not record this Lease or otherwise make it a
matter of public record unless required in any litigation involving Lessee, or
as otherwise required by law. If the Lessee or Lessor request, the parties will
enter into a short form lease, describing the premises and the term of this
Lease, and including any other terms necessary to permit the recording of such
short form lease. Such recording, if requested by Lessee, shall be at its cost
and expense.
22. NOTICES.
All notices to be given under this Lease shall be in writing and shall
either be served personally or sent by certified mail, return receipt requested.
All notices mailed as herein provided shall be deemed received two (2) days
after mailing. Notices to Lessor shall be sent to the address set forth in the
preamble hereof or such other address as the Lessor may specify in written
notice to Lessee. Notices to Lessee shall be sent to Health Care Services, Inc.,
3684 Meadow Lane, Bensalem, Pennsylvania 19020, with COPY to Dennis Evans, Chief
Financial Officer, 3722 Eubank N.E., Albuquerque, NM 87111.
Any amount due from Lessee to Lessor under this Lease which is not paid
when due shall bear interest at the lesser of the highest legal rate allowed in
the State of Pennsylvania or five (5) points above the prime rate of interest
charged by the Provident Bank (or its successor) from the date due until paid;
provided, however, the payment of such interest shall not excuse or cure the
default upon which such interest is accrued.
23. INTEREST.
Any amount due from Lessee to Lessor under this Lease which is not paid
when due shall bear interest at the lesser of the highest legal rate allowed in
the State of Pennsylvania or five (5) points above the prime rate of interest
charged by the Provident Bank (or its successor) from the date due until paid;
provided, however, the payment of such interest shall not excuse or cure the
default upon which such interest is accrued.
24. INSPECTION.
Lessor will permit Lessor, its agents, employees, and contractors to enter
all parts of the Premises to inspect the same and to enforce or carry out any
provisions of this Lease upon 24 hours notice of such inspection to Lessee.
25. NON-WAIVER.
Lessor's or Lessee's failure to insist upon strict performance of any
covenant of this Lease or to exercise any option or right herein contained shall
not be a waiver or relinquishment for the future of such covenant, right, or
option, but the same shall remain in full force and effect.
26. CAPTIONS.
The captions and headings herein are for convenience and reference only and
should not be used in interpreting any provision of this Lease.
27. APPLICABLE LAW.
This Lease shall be governed by and construed under the laws of the State
of Pennsylvania. If any provision of this Lease, or portion thereof, or the
application thereof to any person or circumstance shall, to any extent, be
invalid or unenforceable, the remainder of this Lease shall not be affected
thereby, and each provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law. Time is of the essence in this Lease.
28. SUCCESSORS.
This Lease and the covenants and conditions herein contained shall inure to
the benefit of and be binding upon Lessor, its successors, and assigns; and
shall be binding upon Lessee, its heirs, executors, administrators, successors,
and assigns; and shall inure to the benefit of Lessee and only such assigns of
Lessee to whom the assignment by lessee has been consented to by Lessor.
29. FORCE MAJEURE.
The time within which any of the parties hereto shall be required to
perform any act or acts under this Lease, including the performance of Lessor's
and Lessee's Work, shall be extended to the extent that the performance of such
act or acts shall be delayed by acts of God, fire, windstorm, flood, explosion,
collapse of structures, riot, war, labor disputes, delays or restrictions by
governmental bodies, inability to obtain or use necessary materials, or any
cause beyond the reasonable control of such party, other than lack of monies or
inability to procure monies to fulfill its commitment or obligation under this
Lease; provided, however, that the party entitled to such extension hereunder
shall give prompt notice to the other party of the occurrence causing such
delay. The provisions of this Item 29 shall not operate to excuse Lessee from
prompt payment of rent, additional rent or any other payments required by the
terms of this Lease.
30. BROKER.
Lessor and Lessee each represents and warrants that it has dealt with no
broker or brokers in connection with this Lease other than B. Kevin Hart
Corporation whose commission will be paid by Lessor. Lessee and Lessor shall
indemnify, defend and hold each other harmless from any breaches by the
indemnifying party of the warranties and representations in the preceding
sentence.
31. AMENDMENTS IN WRITING.
This Lease and the Exhibits attached hereto and forming a part hereof set
forth all the covenants, promises, agreements, conditions, and understandings
between Lessor and Lessee concerning the Premises, and there are no covenants,
promises, agreements, conditions, or understandings, oral or written, between
them other than are herein set forth. Except as herein otherwise provided, no
subsequent alteration, amendment, change or addition to this Lease shall be
binding upon Lessor and Lessee unless reduced in writing and signed by both
parties.
32. AUTHORITY.
Lessee, if a corporation, warrants and represents to Lessor that Lessee's
execution of this Lease has been duly authorized by the Lessee's Board of
Directors.
33. COPIES.
This Lease shall be executed in multiple copies, any one of which may be
considered and used as an original.
IN WITNESS WHEREOF, the parties have hereto executed this instrument on
the day and year first above written.
Witness: Lessor: Michael D. Brockelman and
James S. Gratton, as Trustees,
under agreement dated April 17,
1980, c/o R.V.M. & G, Inc.
/s/ Ernest Miller BY: /s/ Michael D. Brockelman
Michael D. Brockelman, Trustee
/s/ Ernest Miller BY: /s/ James S. Gratton
James S. Gratton, Trustee
Lessee: Health Care Services, Inc.
BY: /s/ Steven Dessel
Steven Dessel,
Executive Vice President
Attest:
/s/ Benny Crescenzi, Title: Vice President of CC.
<PAGE>
VALUERX Value RX
A VALUE HEALTH COMPANY 3684 Marshall Lane
Bensalem, PA 19020
Tel: (215)638-7855
Fax: (215)638-8572
August 2, 1996
Mr. Darrell Carnegie
Manager, After Market Sales
Bombardier Transit Corp.
P.O. Box 250, Station A
Kingston, Ontario K7M 2R2
Dear Mr. Carnegie,
This letter serves as a preliminary, binding agreement between Bombardier
Transit Corp., located at 3684 Marshall Lane, Bensalem, PA and ValueRx, located
at 3684 Marshall Lane, Bensalem, PA for the subletting of 3,700 square feet of
Bombardier Transit Corp.'s current warehouse space to ValueRx for the remainder
of the 1996 year. This space is identified as Store Room 'B' on the building
plan provided to ValueRx by Bombardier Transit Corp. This preliminary binding
agreement will be replaced by a formal sublease agreement by September 30, 1996
at which time any further agreements regarding transfer of space can be
incorporated.
ValueRx shall take ownership of said space on August 1, 1996, and will bear
all expenses of necessary renovations, including electrical panel upgrades to
segregate Bombardier Transit Corp. and ValueRx electrical usage. The monthly
lease rate payable by ValueRx to Bombardier Transit Corp. shall be the cost of
the space currently remitted to the building owner by Bombardier Transit Corp.
detailed as follows:
Base Rate $5.72/sq ft
Operating Expenses $0.36/sq ft
Real Estate Taxes $1.03/sq ft
Total $7.11/sq ft/12 months
Monthly Rate $0.59/sq ft per month
Square footage 3,700
Monthly Rate $2,183.00
The monthly payment shall be remitted to Bombardier Transit Corp. by the
last business day of each month of occupancy, payments to begin September 30,
1996.
All alterations to the building shall be agreed with the building owner
prior to effecting any change to the building.
Bombardier Transit Corp. shall not be liable and ValueRx hereby waives all
claims against Bombardier Transit Corp. for any damage to any property or any
injury to any person in or about the 3,700 square feet identified as Store Room
'B' or any other of Bombardier Transit Corp. leased space at 3684 Marshall Lane
by or from any cause whatsoever. ValueRx shall hold Bombardier Transit Corp.
harmless from and defend Bombardier Transit Corp. against any and all claims,
liability or costs for any damage to any property and injury to any person
occurring in, or about the 3,700 square feet identified as Store Room 'B' or any
other of Bombardier Transit Corp. leased space at 3684 Marshall Lane.
ValueRx agrees to extend insurance coverage detailed in the current lease
between ValueRx and the building owner for the 3,700 square feet identified as
Store Room 'B' from August 1, 1996 to December 31, 1996.
Signed,
/s/ Joseph C. Sanginiti
Joseph C. Sanginiti
ValueRx Inc.
/s/ Darryl Carnegie
Darryl Carnegie
Bombardier Inc.
EXHIBIT 10.8
LEASE AGREEMENT
This LEASE AGREEMENT, made as of this 22nd day of March, 1996, between Ryan
Construction Company of Minnesota, Inc. ("Landlord"), and Value RX Pharmacy
Program, Inc. ("Tenant");
WITNESSETH, THAT
1. PREMISES: Landlord, subject to the terms and conditions hereof, hereby
leases to Tenant certain premises ("Premises") consisting of the building
situated at 4700 Nathan Lane, Plymouth, Minnesota ("Building"), the land
underlying and contiguous thereto and all improvements thereon (Project). The
legal description of the land is attached hereto as Exhibit A-1. A schematic
depiction of the Project is attached hereto as Exhibit A-2.
Tenant acknowledges that as of the commencement of this Lease certain
portions of the Premises may be occupied by Miles Homes Services, Inc.
("Miles"). Miles has agreed to vacate the Premises according to the following
schedule: Top Floor - February 8, 1996 Middle Floor - October 1, 1996 Lower
Floor - May 5, 1996
The portion of the Premises occupied by Miles and the date by which Miles
has agreed to vacate are depicted on Exhibit A-3 and A-4.
During such period that Miles is in possession of all or any part of the
Premises, Landlord shall defend, indemnify and hold Tenant harmless from and
against all liability, damages and claims which may be imposed upon or incurred
or paid by or asserted against Tenant by reason of or in connection with any
use, possession or operation of any part of the Premises or Project by Miles;
provided, however, that nothing contained in this sentence shall be deemed to
require Landlord to indemnify Tenant with respect to any negligent or tortious
act committed by Tenant or any of its agents, contractors, employees or
invitees. Landlord agrees to cooperate with Tenant in securing that part of the
Premises occupied solely by Tenant from intrusion by employees, agents,
contractors or invitees of Miles.
OPTION TO EXPAND INTO ADDITIONAL SPACE. Tenant has elected to expand the
Building (such expansion referred to as the "Expansion Space") by approximately
60,000 square feet. Tenant shall have the right to control the design of the
Expansion Space, subject to the consent of Landlord, which consent shall not be
unreasonably withheld. Tenant shall have the right to approve, in its sole
discretion, the project costs for the Expansion Space. The developer's fee,
equivalent to the Development Fee included in the Project Cost Schedule included
on Exhibit B-2, shall be $150,000.
The Project Schedule, attached hereto as Exhibit D, sets forth milestone
dates requiring Tenant's input and approval. Subject to Tenant's strict
adherence to the Project Schedule and further subject to the force majeure
provisions of Section 32 of this Lease, Landlord warrants that it will complete
the Expansion Space according to the Project Schedule.
2. TERM: Tenant takes the Premises from Landlord, upon the terms and
conditions herein contained for the term ("Term") of Fifteen (15) years and Four
(4) months commencing on March 1, 1996 and terminating on June 30, 2011, unless
sooner terminated as herein provided.
Tenant shall have the option to extend the term of this Lease with respect
to the entire Property for two (2) additional terms of five (5) years, each,
(collectively, the "Extended Terms", and individually, an "Extended Term"),
provided, however, that no default by Tenant shall have occurred and be
continuing at the time of any such exercise. Each Extended Term shall be upon
the same terms as provided in this Lease for the Fixed Term, except for the
Basic Rent which shall be as set forth on Exhibit B for each Extended Term. The
Tenant shall exercise its option by giving written notice of such exercise to
Landlord not less than 270 days prior to the expiration of the Fixed Term or the
then current Extended Term, as the case may be. Should Tenant fail to exercise
any option to extend the term of this Lease within the time provided in this
Section, all of Tenant's rights to further extend the term hereof shall expire.
3. MONTHLY BASE RENT: Tenant agrees to pay to Landlord during the Term a
monthly Base Rent ("Base Rent") as specified on Exhibit B hereto payable on the
first day of each month in advance, without deduction or setoff of any kind,
except as specifically authorized herein, to Landlord and delivered to
Landlord's managing agent, Ryan Properties, Inc., 700 International Centre, 900
Second Avenue South, Minneapolis, Minnesota 55402, or at such other place as may
from time to time be designated by Landlord.
Tenant shall pay monthly, as an item of additional rent, the sum of Five
Hundred and 00/100 Dollars ($500.00). Such sums shall be held by Landlord in an
interest bearing account, to be used by Landlord for structural repairs to the
roof, foundation and load-bearing walls of the Building. The balance of this
account shall be paid by Landlord to Tenant at the termination of this Lease.
4. USE: Tenant shall use the Premises only as business offices and shall
not use the Premises for any other use or purpose without the prior written
consent of Landlord.
5. OPERATING COSTS: Tenant shall, for the entire Term, pay to Landlord as
an item of additional rent, without any setoff or deduction therefrom, except as
provided herein, 100% of Operating Costs incurred by Landlord in owning,
maintaining and operating the Project during each calendar year of the Term.
"Operating Costs" are defined to include all necessary and prudent expenses and
costs (but not specific costs which are separately billed to and paid by
individual tenants) of every kind and nature which the Landlord shall pay or
become obligated to pay because of or in connection with the ownership and
operation of the Project and supporting facilities of the Project, including but
not limited to all real estate taxes and annual installments of special or other
assessments payable with respect to the Project; costs of any contest of such
taxes, including attorney's fees; management fees (determined annually by mutual
agreement of Landlord and Tenant, but never less than 2 1/2 percent nor more
than 4 percent of gross rent), insurance premiums, utility costs, security
costs, costs of wages allocated to the Premises based upon time spent on site,
maintenance costs (relating to the Project including sidewalks, landscaping and
parking or service areas, common areas, service contracts, equipment and
supplies) and all other costs of any nature whatsoever which for federal tax
purposes may be expensed rather than capitalized, but exclusive only of:
a. Leasing commissions, depreciation, costs of tenant improvements and
payments of principal and interest on any mortgages, deeds of trusts, or other
security devices covering the Project;
b. All costs incurred in or in connection or directly relating to defects
in the original construction of the Building and Leased Premises;
c. The costs of renting or leasing fixtures, leasehold improvements, or
components of the Building systems and equipment not used in the servicing or
maintenance of the Building;
d. All costs relating to the removal of substances and materials from the
real estate which are presently deemed hazardous;
e. The cost of changes in the Building to comply with laws, statutes,
ordinances, rules or directives in effect at the commencement of this Lease;
f. Any item of cost paid to an affiliate of Landlord or an affiliate of any
partner or shareholder of Landlord to the extent the same is in excess of the
reasonable cost of said item or service in an arms length transaction;
g. All costs and expenses resulting from the delivery to other Tenants of
services, utilities or the use of Building facilities or other benefits which
are significantly greater in quantity or cost than those delivered to the
average general office Tenant;
h. All interest or penalties incurred as a result of Landlord's failure to
pay any costs when due and payable;
i. INTENTIONALLY DELETED;
j. All costs and expenses associated with accounting services for the
Building including, but not limited to, costs for preparation and handling of
accounts receivable and accounts payable, payment of any rent, allocating
expenses or taxes for onsite management office;
k. Legal fees and costs of lawsuits associated with the operation of the
business or the entity which constitutes the Landlord, the management agent of
the Landlord or preservation of the Landlord's interest in the Building; this
includes, but is not limited to, formation of ownership entities, internal
accounting, legal matters, preparation of tax returns and financial statements,
gathering of data therefore, costs of defending any lawsuits with the lender,
costs of syndicating, selling, financing, mortgaging or hypothecating any of the
owner's interest in the project, cost of any disputes between the owner and
managers of the project, costs of collecting rent or other charges and costs of
disputes between owner and tenants within the real estate.
l. Any assessments which relate to capital improvements made in conjunction
with the construction of the Building.
In the event there is a contest of taxes which results in the reduction of
taxes which is paid to the Landlord, the Landlord shall reimburse such reduction
of taxes to the Tenant whether such refund is received during or after the
Tenant's lease term.
As soon as reasonably practicable prior to the commencement of each
calendar year during the Term, Landlord shall furnish to Tenant a detailed
estimate of Operating Costs for the ensuing calendar year. Tenant shall pay, as
additional rent hereunder together with each installment of Base Rent,
one-twelfth (1/12th) of the estimated annual Operating Costs. As soon as
reasonably practicable after the end of each calendar year during the Term,
Landlord shall furnish to Tenant a statement of the actual Operating Costs for
the previous calendar year, together with a variance from budget report and an
explanation of any significant variances from budget, and within thirty (30)
days thereafter Tenant shall pay to Landlord, or Landlord shall credit to the
next rent payments due Landlord from Tenant (or if Term shall have ended,
Landlord shall pay to Tenant), as the case may be, any difference between the
actual Operating Costs and the estimated Operating Costs paid by Tenant.
Operating Costs for the years in which this Lease commences and terminates shall
be prorated by multiplying the actual Operating Costs by a fraction the
numerator of which is the number of days of that year of the Term and the
denominator of which is 365. Notwithstanding any other provision herein to the
contrary, it is agreed that in the event that the Project is not fully occupied
at any time during the Term, an adjustment shall be made in computing the
Operating Costs for such year so that the Operating Costs shall be computed for
such year as though the Project had been fully occupied during such year
(including, for real estate tax purposes, as if fully occupied and assessed as a
completed Project during such year).
For a period of three years following Tenant's receipt of Landlord's
statement of actual Operating Costs, Landlord shall keep available for Tenant's
inspection copies of all supporting statements relating to Operating Costs.
During this period Tenant may audit Landlord's Operating Costs records upon
reasonable notice to Landlord. The audit must be performed during regular
business hours in the offices where Landlord maintains its accounting records.
Within ten (10) business days after the date of the audit, Tenant will provide
Landlord a copy of the audit. No subtenant will have the right to audit under
this provision. An assignee, approved by Landlord, may have the right to audit
as provided herein, however, such right shall only apply to the assignee's term
of occupancy in the Premises pursuant to the Lease. In the event a discrepancy
of five percent (5%) or more is found in favor of Tenant, Landlord shall pay the
cost of such audit.
6. ADDITIONAL TAXES: Tenant shall pay as additional rent to Landlord,
together with each installment of Base Rent, the amount of any gross receipts
tax, sales tax or similar tax, or any tax imposed in lieu of real property taxes
(but excluding therefrom any income tax), or arising out of ownership, payable
or which will be payable by Landlord, by reason of the receipt of the Base Rent
and adjustments thereto.
7. OBLIGATIONS OF LANDLORD: So long as Tenant shall perform each and every
covenant to be performed by Tenant hereunder, Landlord agrees that Tenant shall
quietly enjoy the Premises in accord with the provisions hereof and that
Landlord shall:
A. Furnish heat and air conditioning, subject to any applicable
regulations, to provide an environment that is;
1. Not more than 78(degree) FDB when the outside temperature does not
exceed 95(degree) FDB and 75(degree) FWB;
2. Not less than a minimum temperature of 68(degree) F when the outside
temperature is not less than 10(degree) F.
B. Provide passenger elevator service at all times.
C. Provide janitorial service in and about the Premises as specified by the
Tenant.
D. Keep the fountains, the exterior walls and the roof of the Building in
good repair, ordinary wear and tear excepted; provided, however, if the need for
such repairs is directly or indirectly attributable to or results from any
activity being conducted within the Premises, Tenant agrees to reimburse
Landlord for all costs and expenses incurred by Landlord with respect to such
repairs. Landlord shall commence any repairs it is required to do hereunder as
soon as reasonably practicable after receiving written notice from Tenant of the
necessity for such repairs, but in no event shall Landlord be required to make
any other repairs. Landlord's obligations hereunder shall be subject to the
provisions of Sections 10 and 11.
E. Provide water for drinking, lavatory and toilet purposes drawn through
fixtures installed by Landlord.
F. Provide electricity to the Premises for normal lighting and operation of
small business office equipment. In the event that additional power is required
by Tenant, all costs of additional conduits, separate meters and service shall
be paid by Tenant. Tenant shall use its best efforts to conserve electricity.
G. Make and install or provide for the installation of Tenant's leasehold
improvements in accordance with the plans and specifications, terms and
conditions set forth in Exhibit C. Landlord will use its best efforts, subject
to the terms and conditions of attached Exhibit C, to substantially complete the
Premises and such leasehold improvements, subject to punchlist items, on or
before July 1, 1996, subject however to any delays due to strikes or other labor
disturbances, civil disturbances, orders of any government, court or regulatory
body claiming jurisdiction, unavailability or materials or labor, fire or any
other cause beyond the reasonable control or Landlord, provided that Landlord
gives written notice to Tenant of the existence of such matters within ten days
of their first occurrence.
H. Maintain all grounds and parking areas of the Project. The parking area
shall contain no less than 228 parking spaces.
I. Permit the installation by Tenant, at Tenant's sole expense, of a
satellite antenna on the Building, provided, however, that such installation
shall comply with applicable ordinances and shall comply with the requirements
of any roofing warranty.
It is understood that Landlord does not warrant that any of the services
and utilities referred to above will be free from interruption from causes
beyond the reasonable control of Landlord. Any interruption of service or
utilities shall never be deemed an eviction or disturbance of Tenant's use and
possession of the Premises or any part thereof or render Landlord liable to
Tenant for damages by abatement of rent or otherwise or relieve Tenant from
performance of Tenant's obligations under this Lease, unless such interruption
shall render the Premises uninhabitable for normal commercial operations and
continue for a period of Seventy - Two (72) consecutive hours, in which event
Tenant shall be entitled to an abatement of Base Rent and Operating Costs from
the date of the interruption through the date on which such service or utilities
are again being provided to the Premises.
In the event such interruption continues for a period of thirty (30)
consecutive days, Tenant shall have the option of terminating this Lease upon
written notice to Landlord. Tenant's option to so terminate shall end at such
time as the Premises are restored to a habitable condition.
8. COVENANTS OF TENANT: Tenant agrees that it shall:
A. Observe and comply with all governmental ordinances, laws and
regulations, except that Tenant shall not be responsible for capital investments
in the Premises except to the extent required by Tenant's specific use of the
Premises. Observe and comply with all such reasonable rules and regulations as
from time to time may be put in effect by Landlord for the general safety,
comfort and convenience of Landlord and Tenant. Such rules and regulations shall
not act to deprive Tenant of the benefits of this Lease.
B. Upon reasonable notice and at any time during emergencies, give Landlord
access to the Premises, at any time during emergencies and at all reasonable
times, without charge or diminution of rent, to enable Landlord to examine or
exhibit the same and to make such inspections, repairs, additions and
alterations as Landlord deems necessary or may be required to make hereunder. In
the event of emergency conditions which require Landlord's entry without notice,
Landlord will provide notice subsequent to entry within 24 hours of entry.
C. Keep the Premises in good order and condition and be responsible for
payment of all costs incurred by Landlord in replacing all broken glass with
glass of the same quality, save only glass broken by fire or other casualty
covered by standard all risk insurance risks; and Tenant shall commit no waste
on the Premises.
D. Pay for all replacement electric lamps and ballasts in the Premises.
E. Upon the termination of this Lease in any manner whatsoever, remove
Tenant's goods and effects and those of any other person claiming under Tenant,
and quit and deliver up the Premises to Landlord peaceably and quietly in as
good order and condition as the same are in at the commencement of the Term or
thereafter were put in by Landlord or Tenant, reasonable use and wear excepted.
Goods and effects not removed by Tenant at the termination of this Lease,
however terminated, shall be considered abandoned and Landlord may dispose of
the same as it deems expedient at Tenant's expense. Tenant shall be responsible
for payment of all costs incurred by Landlord for any restoration of the
Premises, to the standards set forth above, needed by virtue of the removal of
Tenant's goods and effects whether removed by Tenant or Landlord.
F. Not assign this Lease or sublet all or any part of the Premises
voluntarily, involuntarily or by operation of law, or through change in the
ownership of Tenant if Tenant is a corporation or a partnership, without first
obtaining Landlord's written consent thereto. Landlord's consent will not be
withheld provided that (i) the occupancy of any such assignee or sublessee is
not inconsistent with the character of the Building; (ii) such assignee or
sublessee shall assume in writing the performance of the covenants and
obligations of Tenant hereunder; and (iii) a fully executed copy of any such
assignment or sublease shall be immediately delivered to Landlord but the making
of such assignment or sublease shall not be deemed to release Tenant from the
payment and performance of any of its obligations under this Lease.
G. Not place signs on or about the Building or the Project without first
obtaining Landlord's written consent thereto, not to be unreasonably withheld,
except that Tenant may, at its sole expense, erect a monument sign and/or attach
a sign to the exterior of the Building, in compliance with applicable
ordinances.
H. Not overload, damage or deface the Premises or the Building or do any
act which may make void or voidable any insurance on the Premises or the
Building, or which may render an increased or extra premium payable for
insurance.
I. Not make any alterations or additions to the Premises without the prior
written consent of the Landlord and until Tenant has established its ability to
pay the estimated costs of such alterations or additions; and all alterations,
additions or improvements (including carpeting or other floor covering) which
may be made by either of the parties hereto upon the Premises, except movable
office furniture, equipment and removable fixtures, shall at Landlord's
election, be the property of Landlord and shall remain upon and be surrendered
with the Premises, as a part thereof, at the termination of this Lease.
J. Keep the Premises and the Project free from any mechanics',
materialmen's, contractors' or other liens arising from, or any claims for
damages growing out of, any work performed, materials furnished or obligations
incurred by or on behalf of Tenant. Provided, however, that Tenant shall have
the right to contest any such lien, in which event such lien shall not be
considered a default under this Lease until the existence of the lien has been
finally adjudicated and all appeal periods have expired. Tenant shall indemnify
and hold harmless Landlord from and against any such lien, or claim or action
thereon, reimburse Landlord promptly upon demand therefor by Landlord for costs
of suit and reasonable attorneys' fees incurred by Landlord in connection with
any such lien, claim or action, and, upon written request of Landlord, provide
Landlord with a bond in an amount and under circumstances necessary to obtain a
release of the Premises or the Project from such lien.
K. Not carry any stock of goods or do anything in or about said Premises
which will increase insurance rates on said Premises or the Building in which
the same are located without the Landlord's written consent, not to be
unreasonably withheld. If Landlord shall consent to such use, Tenant agrees to
pay as additional rental any increase in premiums for insurance resulting from
the business carried on in the Premises by Tenant. Tenant shall, at its own
expense, comply with the requirements of insurance underwriters and insurance
rating bureaus and governmental authorities having jurisdiction.
L. Maintain in full force and effect during the term hereof, a policy of
public liability insurance under which Landlord and Tenant are named insured.
The minimum limits of liability of such insurance shall be $5,000,000.00
combined single limit as to bodily injury and property damage. Tenant agrees to
deliver a certificate of insurance evidencing such coverage to Landlord. Such
policy shall contain a provision requiring thirty (30) days written notice to
Landlord before cancellation of the policy can be effected.
9. AMERICANS WITH DISABILITIES ACT: The parties agree that the liabilities
and obligations of Landlord and Tenant under that certain federal statute
commonly known as the Americans With Disabilities Act as well as the regulations
and accessibility guidelines promulgated thereunder as each of the foregoing is
supplemented or amended from time to time (collectively, the "ADA", in its
present form) shall be apportioned as follows:
A. Landlord shall cause its manager of the Building and the Project
("Manager") to comply with the ADA in its operation of the Building and the
Project. B. From and after the commencement date of the Lease, Tenant covenants
and agrees to conduct its operations within the Premises in compliance with the
ADA. If any part of the Project, the Building or the Premises, including, but
not limited to, exterior and interior routes of ingress and egress and
off-street parking fails to comply with the ADA, such nonconformity shall be
promptly made to comply by Tenant.
10. CASUALTY LOSS: In case of damage to the Premises or the Building by
fire or other casualty, Tenant shall give immediate written notice thereof to
Landlord, who shall cause the damage to be repaired with reasonable speed, at
the expense of the Landlord, subject to delays which may arise by reason of
adjustment of loss under insurance policies and for delays beyond the reasonable
control of Landlord, but Landlord shall have no obligation to restore or replace
any property owned by Tenant; and to the extent that the Premises are rendered
untenantable, the rent shall proportionately abate. If the damage shall be so
extensive as to render 50% of the Premises uninhabitable, this Lease shall, at
the option of Landlord, be terminated as of the date of such damage by written
notice from Landlord to Tenant, and the rent shall be adjusted to the date of
such damage and Tenant shall thereupon promptly vacate the Premises.
If the damage shall be so extensive that the damage cannot be repaired
within 180 days or if more than 50% of the Premises is rendered uninhabitable
during the last two years of the Term, this Lease shall, at the option of
Landlord or Tenant, be terminated as of the date of such damage by written
notice from one party to the other, and the rent shall be adjusted to the date
of such damage and Tenant shall thereupon promptly vacate the Premises.
11. CONDEMNATION: If the entire Premises are taken under power of eminent
domain (which shall include the exercise of any similar governmental power or
any purchase or other acquisition in lieu thereof), this Lease shall
automatically terminate as of the date of taking, which shall be the date Tenant
is required to yield possession thereof to the condemning authority. If a
portion of the Premises is taken under power by eminent domain, Landlord shall
have the right to terminate this Lease as of the date of taking by giving notice
thereof to Tenant equal to the lesser of 180 days or the notice period provided
to Landlord. If Landlord does not elect to terminate this Lease, it shall, at
its expense, restore or cause to be restored the Premises, exclusive of any
improvements or other changes made therein by Tenant, to as near the condition
which existed immediately prior to the date of taking as reasonably possible,
and to the extent that the Premises are rendered untenantable, and rental shall
apportionately abate. All damages awarded for the taking under the power of
eminent domain shall belong to and be the exclusive property of Landlord,
whether such damages be awarded as compensation for diminution in value of the
leasehold estate hereby created or to the fee of the Premises; provided,
however, that Landlord shall not be entitled to any separate award made to
Tenant for the value and cost of removal of its personal property and fixtures
or any relocation payment or allowance made to Tenant.
12. DELAY IN POSSESSION: If the Premises shall, on the scheduled date of
commencement of the Term, not be ready for occupancy by the Tenant due to the
possession or occupancy thereof by any person not lawfully entitled thereto, or
because construction has not yet been completed, or by reason of any building
operations, repair or remodeling to be done by Landlord, Landlord shall use due
diligence to complete such construction, building operations, repair or
remodeling and to deliver possession of the Premises to Tenant. Provided such
delay does not extend for more than sixty days as to Tenant's initial occupancy
or more than 120 days as to the vacation of all portions of the Premises
occupied by Miles, the Landlord, using such due diligence, shall not in any way
be liable for failure to obtain possession of the Premises for Tenant or to
timely complete such construction, building operations, repair or remodeling,
but the Base Rent and Additional Rent (as defined in Section 29 below) payable
by Tenant hereunder shall be abated until the Premises shall, on Landlord's
part, be ready for occupancy by Tenant, this Lease remaining in all other
respects in full force and effect and the Term not thereby extended.
13. LIABILITY AND INDEMNITY: Save for its gross negligence, Landlord shall
not be responsible or liable to Tenant for any loss or damage (i) that may be
occasioned by or through the acts or omissions of persons occupying any part of
the Building or any persons transacting any business in or about the Building or
persons present in or about the Building for any other purpose or (ii) for any
loss or damage resulting to Tenant or its property from burst, stopping or
leaking water, sewer, sprinkler or steam pipes or plumbing fixtures or from any
failure of or defect in any electric line, circuit or facility. Tenant shall
defend, indemnify and save Landlord harmless from and against all liabilities,
damages, claims, costs, charges, judgments and expenses, including, but not
limited to, reasonable attorneys' fees, which may be imposed upon or incurred or
paid by or asserted against Landlord, the Project or any interest therein by
reason of or in connection with any use, non-use, possession or operation of the
Project, or any part thereof, any negligent or tortious act on the part of
Tenant or any of its agents, contractors, servants, employees, licensees or
invitees, any accident, injury, death or damage to any person or property
occurring in, on or about the Premises or any part thereof, and any failure on
the part of Tenant to perform any of the terms or conditions of this Lease
provided, however, that nothing contained in this paragraph shall be deemed to
require Tenant to indemnify Landlord with respect to any gross negligence or
tortious act committed by Landlord or to any extent prohibited by law or from
any failure on the part of the Landlord to perform its obligations under the
terms of this Lease.
14. MUTUAL RELEASE/WAIVER OF SUBROGATION: Each of Landlord and Tenant
hereby releases the other from any and all liability or responsibility to the
other or anyone claiming through or under them by way of subrogation or
otherwise for any loss or damage to property caused by the fault or negligence
of the other party, or anyone for whom such party may be responsible.
15. DEFAULT: Tenant hereby agrees that in case Tenant shall default in
making any payment hereunder and such default continues for a period of five (5)
days as to regularly scheduled rent payments and thirty (30) days as to
non-scheduled rent payments or in performing any of the other agreements, terms
and conditions of this Lease and such default continues for a period of thirty
(30) days following written notice by Landlord, or if any proceeding is
commenced by or against Tenant in bankruptcy or for appointment of a receiver,
or if Tenant becomes insolvent or makes a general assignment for the benefit of
creditors and Tenant does not cause such proceeding, insolvency or general
assignment to be nullified within ninety (90) days, then, in any such event,
Landlord, in addition to all other rights and remedies available to Landlord by
law or by other provisions hereof, may re-enter immediately into the Premises
and remove all persons and property therefrom, and, at Landlord's option, annul
and cancel this Lease as to all future rights of Tenant and Tenant hereby
expressly waives the service of any notice in writing of intention to re-enter
as aforesaid, except as may be required by statute. Tenant further agrees that
in case of any such termination or re-entry the obligations of Landlord
hereunder shall cease but the obligation of Tenant to pay Base Rent, Additional
Rent (as defined in Section 29 below) and other sums which may become due
hereunder shall continue for the then unexpired portion of the Term, and that
Tenant will indemnify the Landlord against all loss of rents and other damage
which Landlord incurs by reason of such termination, including, but not being
limited to, costs of restoring and repairing the Premises and putting the same
in rentable condition, costs of renting the Premises to another tenant, loss or
diminution of rents and other damage which Landlord may incur by reason of such
termination or re-entry, and all reasonable attorney's fees and expenses
incurred in enforcing any of the terms of the Lease. Neither acceptance of rent
by Landlord, with or without knowledge of breach, nor failure of Landlord to
take action on account of any breach hereof or to enforce its rights hereunder
shall be deemed a waiver of any breach, and absent written notice or consent,
said breach shall be a continuing one.
16. NOTICES: All bills, statements, notices or communications which
Landlord may desire or be required to give to Tenant shall be deemed
sufficiently given or rendered if in writing and either delivered to Tenant
personally or sent by registered or certified mail addressed to Tenant at the
Building and the time of rendition thereof of the giving of such notice or
communication shall be deemed to be the time when the same is personally
delivered to Tenant or deposited in the mail as herein provided. Any notice or
the return of any access cards, keys or otherwise to be given from Tenant to
Landlord must be similarly delivered in writing to Landlord's managing agent
personally or sent by registered or certified mail, return receipt requested,
addressed to Landlord at the address where the last previous rental hereunder
was payable, or in case of subsequent change upon notice given, to the latest
address furnished.
17. HOLDING OVER: Should Tenant continue to occupy the Premises after
expiration or termination for any reason of the Term or any renewal or renewals
thereof such tenancy shall be from month to month and in no event from year to
year or for any longer term, and shall be on all the terms and conditions hereof
applicable to a month to month tenancy except that Base Rent shall equal one
hundred twenty five percent (125%) of the Base Rent plus Tenant's Proportionate
Share of Operating Costs payable at the time of such expiration or termination.
Nothing herein, however, shall prevent Landlord from removing Tenant forthwhile
and seeking all remedies available to Landlord in law or equity.
18. SUBORDINATION: The rights of Tenant shall be and are subject and
subordinate at all times to the lien of any mortgage now or hereafter in force
against the Premises; provided, however, that such subordination is subject to
Tenant's rights hereunder not being terminated or disturbed so long as Tenant is
not in default hereunder beyond any applicable notice and cure periods
hereunder, and Tenant shall execute such further instruments subordinating this
Lease to the lien of any such mortgage as shall be requested by Landlord,
including upon request an agreement by Tenant to attorn to the holder of such
mortgage in return for a covenant of nondisturbance of Tenant's occupancy by
such holder in the event that such holder, its successors or assigns, succeeds
to the interest of Landlord. Such subordination shall not require the Tenant to
amend the terms of this Lease. Landlord shall supply a non-disturbance agreement
to Tenant from any lender whose mortgage may be prior in right to Tenant's under
the Lease.
19. ESTOPPEL CERTIFICATE: Tenant shall at any time and from time to time,
within ten (10) days after written request by Landlord, execute, acknowledge and
deliver to Landlord and any other parties designated by Landlord, a certificate
in such form as may from time to time be provided, ratifying this Lease and
certifying (a) that this Lease is in full force and effect and has not been
assigned, modified or amended in and way (or, if there has been any assignment,
modification or amendment, identifying the same); (b) the dates of commencement
and expiration of the Lease Term, the date to which the Base Rent and additional
rent payable hereunder have been paid in advance, if any; and (c) that there
are, to Tenant's knowledge, no incurred defaults on the part of Landlord or any
defenses or offsets against the enforcement of this Lease by Landlord (or
specifying each default, defense or offset if any are claimed). Any such
statement may be furnished to and relied upon by any prospective purchaser,
lessee or encumbrancer of all or any portion of the Building. No estoppel
certificate shall require Tenant to amend the terms of the Lease.
20. SERVICE CHARGE: Any amount due from Tenant to Landlord (including
Additional Rent as defined in Section 28 below, which is not paid when due shall
bear interest at the lesser of (i) the highest legal rate or (ii) twelve percent
(12%) per annum from the date due until paid, provided, however, the payment of
such interest shall not excuse or cure the default upon which such interest
accrued.
21. BINDING EFFECT: The work "Tenant", wherever used in this Lease, shall
be construed to mean tenants in all cases where there is more than one tenant,
and the necessary grammatical changes required to make the provisions hereof
apply to corporations, partnerships or individuals, men or women, shall in all
cases be assumed as though in each case fully expressed. Each provision hereof
shall extend to and shall, as the case may require, bind and inure to the
benefit of Landlord and Tenant and their respective heirs, legal
representatives, successors and assigns, provided that this Lease shall not
inure to the benefit of any heir, legal representative, transferee or successor
of Tenant except upon the express written consent or election of Landlord.
22. TRANSFER OF LANDLORD'S INTEREST: In the event of any transfer or
transfers of Landlord's interest in the Premises or the Project, other than a
transfer for security purposes only, the transferor shall be automatically
relieved of any and all obligations and liabilities on the part of Landlord
accruing from and after the date of such transfer.
23. LIMITATION OF LIABILITY: In the event that Landlord is ever adjudged by
any court to be liable to Tenant in damages, Tenant specifically agrees to look
solely to Landlord's assets for the recovery of any judgment from Landlord, it
being agreed that Landlord, or if Landlord is a partnership, its partners
whether general or limited, or if Landlord is a corporation, its directors,
officers, or shareholders, shall never be personally liable for any judgment.
The provision contained in the foregoing sentence is not intended to, and shall
not, limit any right that Tenant might otherwise have to obtain injunctive
relief against Landlord or Landlord's successor in interest, or to maintain any
other action not involving the personal liability of Landlord (or if Landlord is
a partnership, its partners whether general or limited, or if Landlord is a
corporation, requiring its directors, officers or shareholders to respond in
monetary damages from assets other than Landlord's interest in the Building), or
to maintain any suit or action in connection with enforcement or collection of
amounts which may become owing or payable under or on account of insurance
maintained by Landlord.
24. EXPENSE OF ENFORCEMENT: If either party hereto be made or become a
party to any litigation commenced by or against the other party involving the
enforcement of any of the rights and remedies of such party, or arising on
account of the default of the other party in the performance of such party's
obligations hereunder, then the prevailing party in any such litigation (or the
party becoming involved in such litigation because of a claim against such other
party, as the case may be) shall receive from the other party all costs and
reasonable attorney's fees incurred by it in relation to such litigation.
25. ACCESS: All portions of the Building except the inside surfaces of all
walls and doors bounding the Premises, and any space in or adjacent to the
Premises used for shafts, stacks, pipes, conduits, fan rooms, ducts, electric or
other utilities, sinks or other Building facilities, and the use thereof, as
well as access thereto through the Premises for the purposes of operation,
maintenance, decoration and repair, are reserved to Landlord. Landlord reserves
the right, at any time, without incurring any liability to Tenant therefor, to
make such changes in or to the Building and the fixtures and equipment thereof,
as well as in or to the street entrances, halls, passages, concourse, elevators,
escalators, stairways and other improvements thereof, as it may deem necessary
or desirable.
26. RIGHT OF LANDLORD TO PERFORM: If Tenant shall fail to pay any sum of
money, other than rent, required to be paid by it hereunder or shall fail to
perform any other act on its part to be performed hereunder, Landlord may, upon
thirty (30) days written notice to Tenant, but shall not be obligated, and
without waiving or releasing Tenant from any obligations of Tenant, make any
such payment or perform any such other act on Tenant's part to be made or
performed hereunder. Tenant shall, promptly and upon demand therefore by
Landlord, reimburse Landlord for all sums so paid by Landlord and all necessary
incidental costs, together with interest thereon at the rate specified in
Section 20 hereof from the date of such payment by Landlord, and Landlord shall
have the same rights and remedies in the event of the failure by tenant to pay
such amounts as Landlord would have in the event of a default by Tenant in the
payment of rent.
27. BROKERS: Unless otherwise agreed in writing, if Tenant has dealt with
any person or real estate broker in respect to leasing or renting space in the
Building, Tenant shall be solely responsible for the payment of any fee due said
person or firm and Tenant shall hold Landlord free and harmless from and against
any liability in respect thereto.
28. MODIFICATIONS FOR LENDER: If, in connection with obtaining financing
for the Building or the Premises, any lender shall request modifications in this
Lease as a condition to such financing, tenant shall promptly execute any
instrument submitted to Tenant by Landlord containing such modifications;
provided, however, that such modifications do not increase the obligations of
Tenant hereunder or materially adversely affect the leasehold interest hereby
created.
29. ADDITIONAL RENT AMOUNTS: Any amounts in addition to Base Rent payable
to Landlord by Tenant hereunder, including without limitation amounts payable
pursuant to Sections 5, 6, 7, 8, 13, 15, 20, 24, 27, and EXHIBIT C, and any such
costs set forth in EXHIBIT D, hereof ("Additional Rent") shall be an obligation
of Tenant hereunder and all such Additional Rent shall be due and payable upon
demand.
30. HAZARDOUS SUBSTANCES: Landlord and Tenant shall, promptly upon
obtaining actual knowledge of the existence of hazardous substances or materials
on the Premises, notify the other party. Unless such hazardous substances or
materials were brought onto the Premises by Tenant or persons acting under
Tenant, Landlord shall diligently cure any situation in which the existence of
such hazardous substances or materials present a danger to Tenant's employees.
If Landlord fails to cure such situation within 180 days, Tenant shall have the
option to terminate this Lease. Tenant's option to so terminate shall end at
such time as the hazardous substances or materials cease to present a danger to
Tenant's employees. Tenant shall not (either with or without negligence) cause
or permit the escape, disposal or release of any biologically or chemically
active or other hazardous substances or materials. Tenant shall not allow the
storage or use of such substances or materials in any manner not sanctioned by
law or by the highest standards prevailing in the industry for the storage and
use of such substances or materials, nor allow to be brought into the Project
any such materials or substances except to use in the ordinary course of
Tenant's business, and then only after written notice is given to Landlord of
the identity of such substances or materials. Without limitation, hazardous
substances and materials shall include those described in the Comprehensive
Environmental Response Compensation and Liability Act of 1980, as amended, 42
U.S.C. Section 9601 et. seq., and applicable state or local laws and the
regulations adopted under these acts. If any lender or governmental agency shall
ever require testing to ascertain whether or not there has been any release of
hazardous materials, then the reasonable costs thereof shall be reimbursed by
Tenant to Landlord upon demand as additional charges if such requirement applies
to the Premises. In addition, Tenant shall execute affidavits, representations
and the like from time to time at Landlord's request concerning Tenant's best
knowledge and belief regarding the presence of hazardous substances or materials
on the Premises. In all events, Tenant shall indemnify Landlord in the manner
elsewhere provided in this Lease from any release of hazardous materials on the
Premises occurring while Tenant is in possession, or elsewhere if caused by
Tenant or persons acting under Tenant. The within covenants shall survive the
expiration or earlier termination of the Term.
31. INCORPORATION OF EXHIBITS: The following exhibits to this Lease are
hereby incorporated by reference for all purposes as fully set forth at length
herein:
Exhibit A Legal Description
Exhibit B Base Rent
Exhibit C Leasehold Improvements Plans and Specifications
Guarantee
32. FORCE MAJEURE: All of the obligations of Landlord and of Tenant under
this Lease are subject to and shall be postponed for a period equal to any delay
or suspension resulting from fire, strikes, acts of God, and other causes beyond
the control of the party delayed in its performance hereunder, this Lease
remaining in all other respects in full force and effect and the Term not
thereby extended. Provided nevertheless, the unavailability of funds for payment
or performance of Tenant's obligations hereunder shall not give rise to any
postponement or delay in such payment or performance of Tenant's obligations
hereunder. Occurrence of a force majeure shall not affect the ability of the
Tenant to abate rent under the provisions of this Lease providing for rent
abatement.
33. GENERAL: The submission of this Lease for examination does not
constitute the reservation of or an option for the Premises, and this Lease
becomes effective only upon execution and delivery hereof by Landlord and
Tenant. This Lease does not create the relationship of principal and agent or of
partnership, joint venture or any association between Landlord and Tenant, the
sole relationship between Landlord and Tenant being that of lessor and lessee.
No waiver of any default of Tenant hereunder shall be implied from any omission
by Landlord to take any action on account of such default if such default
persists or is repeated, and no express waiver shall affect any default other
than the default specified in the express waiver and that only for the time and
to the extent therein stated. Each term and each provision of this Lease
performable by Tenant shall be construed to be both a covenant and a condition.
The topical headings of the several paragraphs and clauses are for convenience
only and do not define, limit or construe the contents of such paragraphs or
clauses. All preliminary negotiations are merged into and incorporated in this
Lease. This Lease can only be modified or amended by an agreement in writing
signed by the parties hereto, their successors or assigns. All provisions hereof
shall be binding upon the heirs, successors and assigns of each party hereto.
34. SEVERABILITY: The invalidity of any provision, clause or phrase herein
contained shall not serve to render the balance of this Lease ineffective or
void and the same shall be construed as if such had not been herein set forth.
35. RIGHT OF FIRST OFFER TO PURCHASE PROJECT: If Landlord desires to
solicit offers to purchase the Project from any party that is not a party that
controls, is controlled by or is under common control with, Landlord must give
written notice of such intent to Tenant prior to the date Landlord commences its
marketing of the Project. Such notice will state the terms upon which Landlord
is prepared to sell the Project. Tenant will have 30 days after receipt of such
notice in which to give written notice to Landlord that Tenant exercises its
option to purchase the Project upon the terms contained in Landlord's notice to
Tenant.
If Tenant fails to give such notice to Landlord within such 30 day period
or if Tenant gives Landlord written notice that Tenant does not desire to
purchase the Project upon the terms contained in Landlord's notice, Landlord may
sell the Project to another party, provided that:
a. the closing of such sales does not occur later than the date 180 days
after the date that is the earlier of (1) the date that such 30 day period
expires, or (2) the date that Tenant notifies Landlord that Tenant does not
desire to purchase the Project upon the terms contained in Landlord's notice;
and
b. such sale is upon financial terms that collectively constitute a value
equal to 95% or more of the value of the collective financial terms contained in
Landlord's notice to Tenant.
If either of the above criteria is not satisfied, Landlord must offer the
Project to Tenant again pursuant to this Section before Landlord may sell the
Project to another party.
IN WITNESS WHEREOF, the respective parties hereto have caused this Lease to
be executed the day and year first above written.
LANDLORD:
RYAN CONSTRUCTION COMPANY OF MINNESOTA, INC.
BY: /s/ Kent Carlson
Its: Vice President
TENANT:
VALUE RX PHARMACY PROGRAM, INC.
BY: /s/ Gary D. Blackford
Its: Chief Operating Officer
<PAGE>
EXHIBIT A
LEGAL DESCRIPTION
That part of Lot 1, Block 1, DRAKELAND BUSINESS AND TECHNICAL CENTER,
according to the recorded plat thereof, Hennepin County, Minnesota, lying
northerly, northeasterly and northwesterly of the following described line and
its westerly extension:
Commencing at the most easterly southeast corner of said Lot 1; thence on
an assumed bearing of North 00 degrees 59 minutes 09 seconds East, along the
east line of said Lot 1, a distance of 129.00 feet to the point beginning of
said line; thence North 68 degrees 34 minutes 54 seconds West 405.40 feet;
thence North 45 degrees 43 minutes 18 seconds West 786.63 feet; thence South 69
degrees 17 minutes 27 seconds West 63.62 feet to the intersection with the west
line of said Lot 1 and said line there terminating.
<PAGE>
EXHIBIT B
BASE RENT
Monthly Base Rent for months one through four shall be zero ($0.00).
Monthly Base Rent for months five through sixty-four shall be one-twelfth
of the product of Project Cost multiplied by 11.164 percent.
"Project Cost" is:Landlord's cost to purchase the Project and complete
the leasehold improvements, as called for in EXHIBIT C to the Lease.
Landlord's best estimate of Project Cost, as of the date of this Lease,
is attached as EXHIBIT C-2.
PLUS
One-twelfth of the product of the cost of completing the Expansion Space
multiplied by 11.164 percent. Base Rent for the Expansion Space shall commence
upon substantial completion of the Expansion Space, as evidenced by a
Certificate of Occupancy issued by the City of Plymouth.
Monthly Base Rent for months sixty-five through one hundred twenty four
shall be equal to 115% of the Monthly Base Rent for months five through
sixty-four.
Monthly Base Rent for months one hundred twenty five through one hundred
eighty four shall be equal to 115% of the monthly Base Rent for months
sixty-five through one hundred twenty four.
<PAGE>
EXHIBIT C
LEASEHOLD IMPROVEMENTS PLANS AND SPECIFICATIONS
(Exhibit contains a detailed listing of
leasehold and improvements)
