EXHIBIT 10.1
AMENDMENT NO. 6
AMENDMENT NO. 6 ("AMENDMENT NO. 6") dated as of March 7, 2002 to the
Credit Agreement dated as of April 1, 1999, as amended prior to the date hereof
(the "CREDIT AGREEMENT"), among Express Scripts, Inc., each of the Subsidiary
Guarantors party thereto, each of the Lenders party thereto, Credit Suisse First
Boston, as Lead Arranger, Administrative Agent and Collateral Agent, Bankers
Trust Company, as Syndication Agent, The First National Bank of Chicago, as
Co-Documentation Agent and Mercantile Bank, N.A., as Co-Documentation Agent
(capitalized terms not otherwise defined in this Amendment No. 6 have the
meanings assigned to such terms in the Credit Agreement).
W I T N E S S E T H :
- - - - - - - - - -
WHEREAS, Company has informed Lenders that it intends to acquire all of
the equity interests of National Prescription Administrators, a New Jersey
corporation, and certain affiliated companies thereof (collectively, "NPA") and
certain assets used in NPA's business from certain other affiliates of NPA
pursuant to a Stock and Asset Purchase Agreement dated February 5, 2002;
WHEREAS, Company has prepaid entirely all of the borrowings in respect
of the Tranche B Term Loan as originally made on the Closing Date;
WHEREAS, Company desires to amend the Credit Agreement in order to (i)
provide for the New Tranche B Term Loans (as defined herein) in an aggregate
principal amount of $325,000,000, to fund, in part, the NPA Acquisition, (ii)
permit Company to (a) enter into accounts receivable financing and (b) make
certain Restricted Junior Payments and (iii) make technical changes to the terms
of the Credit Agreement; and
WHEREAS, pursuant to subsection 10.6A of the Credit Agreement, the
written concurrence of Requisite Lenders must be obtained to amend the foregoing
provisions of the Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
SECTION ONE - AMENDMENTS.
(a) The introductory paragraph to the Credit Agreement shall be amended
by adding the following sentence at the end thereof:
In addition, CSFB and Salomon Smith Barney Inc. ("SSB") will
act as joint lead arrangers for the New Tranche B Term Loans
(as defined herein) (the "TRANCHE B TERM LOAN ARRANGERS") and
SSB will act as the sole and exclusive syndication agent for
the Tranche B Term Loans (the "TRANCHE B SYNDICATION AGENT").
(b) Subsection 1.1 shall be amended as follows:
(i) There shall be added the following definitions in the
appropriate alphabetical order of the existing defined terms:
"ACCOUNT" means any account (as that term is defined in
Section 9-102(2) of the UCC) arising from the sale or lease of
goods or rendering of services.
"CUSA" means Citicorp USA, Inc.
"NEW ACQUISITIONS" means, collectively, the Phoenix
Acquisition and the NPA Acquisition.
"NEW TRANCHE B TERM LOANS" means the Tranche B Term Loans made
by Lenders pursuant to subsection 2.1(A)(i)(b).
"NPA" means National Prescription Administrators, Inc., a New
Jersey corporation and certain affiliated companies thereof.
"NPA ACQUISITION" means, collectively, the proposed
acquisition by Company for an aggregate consideration
(including fees and expenses) of approximately $506.8 million
in cash and 552,285 in common shares of Company of all of the
equity interests of NPA and the acquisition of assets used in
the business of NPA from certain other affiliates of NPA,
pursuant to the NPA Acquisition Agreement.
"NPA ACQUISITION AGREEMENT" means the Stock and Asset Purchase
Agreement dated February 5, 2002 among Company and certain
affiliates of NPA, as amended, supplemented or modified from
time to time in accordance with the terms thereof and hereof.
"NPA CLOSING DATE" means the date on which the NPA Acquisition
is consummated pursuant to the NPA Acquisition Agreement.
"NPA REAL ESTATE" means real estate constituting of (a) NPA's
mail pharmacy facility located in Harrisburg, Pennsylvania;
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(b) NPA's corporate headquarters and mail pharmacy facility
located in East Hanover, New Jersey and (c) NPA's airport
property located in East Hanover, New Jersey.
"NPA TRANSACTIONS" means, (a) the NPA Acquisition, (b) the
borrowings on the NPA Closing Date of not more than $100.0
million in Revolving Loans, (c) the borrowings on the NPA
Closing Date of the New Tranche B Term Loans, (d) the
execution and delivery of Amendment No. 6, (e) the application
of approximately $81.9 million in cash on hand at Company to
consummate the NPA Acquisition and (f) the issuance and
delivery of 552,285 shares of common stock of Company to
certain affiliates of NPA to consummate the NPA Acquisition.
"PERMITTED RECEIVABLES TRANSACTION" means one or more
Qualified Receivables Transactions that in the aggregate at
any one time transfer rights to receive proceeds of
Receivables Assets not in excess of $300,000,000.
"PHOENIX ACQUISITION" means the acquisition by Company of the
assets of the Phoenix Marketing Group subsidiary of Access
Worldwide Communications, Inc. for $33.0 million in cash, plus
the assumption by Company of certain indebtedness totaling
approximately $2.0 million.
"QUALIFIED RECEIVABLES TRANSACTION" means any transaction or
series of transactions that may be entered into by Company or
any Subsidiary thereof pursuant to which Company or any of its
Subsidiaries may sell, convey or otherwise transfer to:
(a) a Receivables Entity (in the case of a transfer by
Company or any of its Subsidiaries) or
(b) any other Person (in the case of a transfer by a
Receivables Entity),
or pursuant to which Company, any of its Subsidiaries or a
Receivables Entity may grant a security interest in,
Receivables Assets; PROVIDED that:
(1) the Board of Directors of Company, its Subsidiary or
such Receivables Entity, as the case may be, shall
have determined in good faith that such Qualified
Receivables Transaction is economically fair and
reasonable to Company, such Subsidiary or such
Receivables Entity, as the case may be; and
(2) the financing terms, covenants, termination events
and other provisions thereof, including any
amendments or modifications thereof, shall be market
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terms (as determined in good faith by the Board of
Directors of Company) and reasonably acceptable to
the Administrative Agent as evidenced in writing and
acknowledged by Company.
"RECEIVABLES ASSETS" means any Accounts (whether now existing
or arising in the future) of Company or any of its
Subsidiaries and any assets related thereto which are
customarily transferred, or in respect of which security
interests are customarily granted, in connection with asset
securitization transactions involving Accounts.
"RECEIVABLES ENTITY" means a Wholly Owned Subsidiary of
Company (or another Person formed for the purpose of engaging
in a Qualified Receivables Transaction with Company or any of
its Subsidiaries in which Company or any or its Subsidiaries
makes an Investment and to which Company or any of its
Subsidiaries transfers Accounts and related assets) which
engages in no activities other than in connection with the
purchase, sale or financing of Accounts of Company or any of
its Subsidiaries, all proceeds thereof and all rights
(contractual or other), collateral and other assets relating
thereto, and any business or activities incidental or related
to such business.
(ii) The following definitions shall be deleted or amended as
follows:
(a) The definition of "Agents" shall be deleted in
its entirety and replaced with the following:
"AGENTS" means, collectively, the Administrative Agent, the
Syndication Agent, the Collateral Agent, the Lead Arranger,
the Co-Arranger, the Co-Documentation Agents, the Tranche B
Term Loan Arrangers and the Tranche B Syndication Agent and
also any successor Agents appointed pursuant to subsection
9.5A.
(b) The definition of "Asset Sale" shall be amended
by deleting in its entirety the parenthetical in clause (iii)
thereof immediately prior to the proviso and replacing it with
the following:
(other than (a) inventory sold in the ordinary course of
business, (b) the Exempt PlanetRx Stock, (c) NPA Real Estate
sold in one or more transactions the aggregate amount of the
proceeds of which is equal to or less than $40.0 million and
(d) 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 $500,000 or less)
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(c) The definition of "Consolidated Interest Expense"
shall be amended by deleting such definition in its entirety
and replacing it with the following:
"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 plus in the event of the consummation of a
Qualified Receivables Transaction, an amount equal to the
interest (or other fees in the nature of interest or discount
accrued and paid or payable in cash for such period) on such
Qualified Receivables Transaction, but excluding, however, any
amounts referred to in subsection 2.3 payable to Agent and
Lenders on or before the applicable Funding Date.
(d) The definition of "Consolidated Net Income" shall
be amended by deleting clause (v) thereof and replacing it
with the following:
(v) (A) cash charges in connection with the New Acquisitions
for any period that includes Fiscal Quarters ending (x) on or
prior to December 31, 2002, of up to $9.1 million and (y) on
or prior to December 31, 2003, of up to $6.1 million and (B)
non-cash Company related restructuring charges for any period
that includes Fiscal Quarters ending on or before December 31,
2002, of up to $30.0 million.
(e) The definition of "Excess Cash Flow" shall be
amended by deleting the period at the end of clause (i)
thereof and replacing it with a semi-colon and adding the word
"minus" immediately thereafter and adding immediately after
clause (i) new clause (j) as follows:
(j) any earnings of a Receivables Entity included in
Consolidated EBITDA for such period, to the extent
the terms of any Qualified Receivables Transaction
prohibit the distribution thereof to Company.
(f) The definition of "Net Asset Sale Proceeds" shall
be deleted in its entirety and replaced with the following:
"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
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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 (and in the
case of a Qualified Receivables Transaction, net of any
escrowed or pledged cash proceeds which effectively secure, or
are required to be maintained as reserves by the applicable
Receivables Entity for, the obligations of any of Company or
its Subsidiaries under such Qualified Receivables
Transaction), 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 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.
(g) The definition of "Permitted Encumbrances" shall
be amended by: (a) deleting the word "and" at the end of
clause (xiii) thereof; and (b) deleting the period at the end
of clause (xiv) thereof and replacing it with a semi-colon and
adding the word "and" immediately thereafter; and (c) adding
immediately after clause (xiv) new clause (xv) as follows:
(xv) Liens on Receivables Assets created pursuant to Permitted
Receivables Transactions.
(h) The definition of "Subsidiary" shall be amended
by deleting the proviso thereof and replacing it with the
following:
; PROVIDED, that Diversified NY IPA, Inc., Diversified
Pharmaceutical Services (Puerto Rico) Inc. and NPA of New York
IPA, Inc. shall not be deemed Subsidiaries of Company for all
purposes of this Agreement but shall be deemed Affiliates of
Company.
(i) The definition of "Tranche B Commitment" shall be
deleted in its entirety and replaced with the following:
"TRANCHE B COMMITMENT" means the commitment of a Lender to
make a New Tranche B Term Loan as set forth on SCHEDULE
2.1(B), as the same may be (a) reduced from time to time
pursuant to subsection 2.4 and (b) reduced or increased from
time to time pursuant to assignments by or to such Lender
pursuant to subsection 10.1.
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(j) The definition of "Tranche B Maturity Date" shall
be deleted in its entirety and replaced with the following:
"TRANCHE B MATURITY DATE" shall mean March 31, 2008.
(k) The definition of "Tranche B Term Notes" shall be
deleted in its entirety and replaced with the following:
"TRANCHE B TERM NOTES" means (i) the promissory notes of
Company issued pursuant to subsection 2.1E(i) on the NPA
Closing Date with respect to the Tranche B Term Loans and (ii)
any promissory notes issued by Company pursuant to the last
sentence of subsection 10.1B(i) in connection with assignments
of the Tranche B Commitments or Tranche B Term Loans of any
Lenders, in each case substantially in the form of EXHIBIT
IV-B annexed hereto, as they may be amended, supplemented or
otherwise modified from time to time.
(c) Subsection 1.2(B) is hereby amended by deleting it in its entirety
and replacing it with the following:
B. For purposes of determining Consolidated EBITDA, Consolidated
Interest Expense, and the Consolidated Leverage Ratio for purposes of
subsections 2.2A and 2.3A for any period including Fiscal Quarters ending on or
prior to the NPA Closing Date, such calculation for any such period shall be pro
forma for the New Acquisitions.
(d) Subsection 2.1A(i) is hereby amended by deleting it in its entirety
and replacing it with the following:
(i) TERM LOANS. (a) Each Tranche A 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
Tranche A Commitments, to be used for the purposes identified
in subsection 2.5A. (b) Each Tranche B Lender severally agrees
to lend to Company on the NPA Closing Date an amount not
exceeding its Pro Rata Share of the Tranche B Commitments, to
be used for the purposes identified in subsection 2.5A. The
amount of each Term Lender's Tranche A Commitment is set forth
opposite its name on SCHEDULE 2.1(A) annexed hereto and the
amount of each Term Lender's Tranche B Commitment is set forth
opposite its name on SCHEDULE 2.1(B) annexed hereto; 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 Lender's
Tranche B Commitment shall expire immediately and without
further action on May 1, 2002 if the New Tranche B Term Loans
are not made on or before that date. Company may make only one
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borrowing under each of the Term Loan Commitments. Amounts
borrowed under this subsection 2.1A(i) and subsequently repaid
or prepaid may not be reborrowed.
(e) Section 2.1B is hereby amended by deleting clause (iv) thereof and
replacing it with the following:
(iv) in the case of Term Loans and Revolving Loans, whether
such Loans shall be Alternate Base Rate Loans or Eurodollar
Rate Loans; PROVIDED, that Loans made on a Funding Date that
is either the Closing Date or the NPA Closing Date shall be
Alternate Base Rate Loans; PROVIDED, HOWEVER, on such a
Funding Date Company may request such Loans be converted to
Eurodollar Rate Loans with a two week Interest Period in the
manner provided in subsection 2.2D; PROVIDED, FURTHER, that
Loans made subsequent to such applicable Funding Date and
prior to the last day of the first two week Interest Period
following such Funding Date shall be Alternate Base Rate
Loans.
(f) Subsection 2.1C is hereby amended by deleting the final sentence of
the first paragraph thereof in its entirety and replacing it with the following:
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), 4.1.1 (in the case of the New Tranche B Term Loans),
and 4.2 (in the case of all Loans), Administrative 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
Administrative 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.
(g) Subsection 2.1E is hereby amended by deleting the last sentence
thereof in its entirety and replacing it with the following:
In the event a Lender requests such Notes at least 3 Business
Days prior to the Closing Date or NPA Closing Date, Company
shall execute and deliver the Notes on such date.
(h) Subsection 2.2A is hereby amended by (a) in paragraph (i) thereof
deleting each entry in the column entitled "Tranche B Term Loans" in the table
set forth therein and replacing it with 0.500%, (b) in paragraph (ii) thereof
deleting each entry in the column entitled "Tranche B Term Loans" in the table
set forth therein and replacing it with 2.000% and (c) in the penultimate
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paragraph thereof deleteing the period at the end thereof and replacing it with
the following:
; PROVIDED, FURTHER, the Base Rate Margin and Eurodollar Rate
Margin applicable to all Loans shall automatically be adjusted
as of the Funding Date for the Tranche B Term Loans that is
the NPA Closing Date to such rate as shall be determined based
on the Consolidated Leverage Ratio as of such date.
(i) Subsection 2.2B is hereby amended by deleting the final sentence
thereof in its entirety and replacing it with the following:
Notwithstanding the foregoing, the Interest Period for any
Eurodollar Rate Loan made pursuant to a Notice of
Conversion/Continuation delivered on a Funding Date that is
the Closing Date or the NPA Closing Date shall be a two week
period.
(j) Subsection 2.2C is hereby amended by deleting the final sentence
thereof and replacing it with the following:
Notwithstanding the foregoing, Company may not convert (other
than on a Funding Date that is the Closing Date or the NPA
Closing Date) Alternate Base Rate Loans to Eurodollar Rate
Loans prior to the last day of the first two week Interest
Period following such closing date.
(k) Subsection 2.3B is hereby amended by deleting it in its entirety
and replacing it with the following:
B. OTHER FEES. Company agrees to pay to an Agent such other
fees in the amounts and at the times ---------- separately
agreed upon between Company and such Agent.
(l) Subsection 2.4A(ii) is hereby amended by deleting the table set
forth therein in its entirety and replacing it with the following table:
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==================================================================
Scheduled Repayment of Tranche B Term Loans
------------------------------------------------------------------
Date Amount Repaid
---------------------------------- -------------------------------
March 31, 2003 $3,250,000
---------------------------------- -------------------------------
March 31, 2004 $3,250,000
---------------------------------- -------------------------------
March 31, 2005 $3,250,000
---------------------------------- -------------------------------
March 31, 2006 $3,250,000
---------------------------------- -------------------------------
March 31, 2007 $81,250,000
---------------------------------- -------------------------------
March 31, 2008 $230,750,000
================================== ===============================
(m) Subsection 2.4B(iii)(b) shall be deleted in its entirety and
replaced with the following:
(b) 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 any Asset Sale (other than up to
$50,000,000 in the aggregate during the term of this Agreement
in Net Asset Sale Proceeds from Permitted Receivables
Transactions (PROVIDED, such proceeds are applied (1) to a
Permitted Acquisition or (2) for the purpose of acquiring
Plant Assets, in each case within 180 days from receipt
thereof and no Event of Default or Potential Event of Default
shall have occurred and shall be continuing at such time),
Company shall prepay the Loans 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 Administrative Agent in writing of such election and
(ii) paying such Net Asset Sale Proceeds to Administrative
Agent to be held as Cash collateral for the Obligations and
applied in accordance with subsection 2.4B(iv) to such
prepayment at the end of the Interest Period or Interest
Periods with the shortest remaining duration for Eurodollar
Rate Loans of the type to be prepaid that exceed in aggregate
amount such Net Asset Sale Proceeds,
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(n) Subsection 2.5A shall be amended by adding the following sentence
at the end of thereof:
The proceeds of the Tranche B Term Loans made on the
NPA Closing Date shall be applied by Company to pay a
portion of the consideration for the NPA Acquisition
in an aggregate maximum amount of $325 million.
(o) Section 4 is hereby amended by adding thereto a new subsection
4.1.1 as follows:
4.1.1 CONDITIONS TO TRANCHE B TERM LOANS ON THE NPA CLOSING DATE
----------------------------------------------------------
The obligations of Lenders to make the Tranche B Term
Loans on the NPA 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 DOCUMENTS. On or before the NPA Closing Date, Company
shall, and shall cause each other Loan Party to, deliver to Lenders (or
to Administrative 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 NPA 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 each
dated a recent date prior to the NPA Closing Date;
(ii) Copies of the Bylaws of such Person,
certified as of the NPA 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 relating to the Tranche B Term Loans to
which it is a party, certified as of the NPA Closing
Date by the corporate secretary or an assistant
secretary of such Person as being in full force and
effect without modification or amendment;
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(iv) Signature and incumbency certificates
of the officers of such Person executing the Loan
Documents relating to the Tranche B Term Loans to
which it is a party;
(v) Executed originals of the Loan Documents
relating to the Tranche B Term Loans to which such
Person is a party; and
(vi) Such other documents as Administrative
Agent may reasonably request.
B. NO MATERIAL ADVERSE EFFECT. Since December 31,
2001, no event or events, adverse condition or change in or
affecting Company or NPA that, individually or in the
aggregate, could reasonably be expected to have a Material
Adverse Effect shall have occurred.
C. SECURITY INTERESTS IN INVESTMENT SECURITIES.
Agents shall have received evidence satisfactory to them 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 Agents, desirable in order to create in favor of
Agents, for the benefit of Lenders, a valid and perfected
First Priority Lien in the entire Pledged Collateral. Such
actions shall include the following:
(i) SCHEDULES TO COLLATERAL DOCUMENTS.
Delivery to Agents of accurate and complete schedules
to the Company Pledge Agreement and the Subsidiary
Pledge Agreement.
(ii) STOCK CERTIFICATES. Delivery to
Collateral 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 Collateral
Agent) representing all capital stock pledged
pursuant to the Company Pledge Agreement and the
Subsidiary Pledge Agreements.
D. SOLVENCY CERTIFICATE. Agents 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 Agents, supporting the
conclusions that, after giving effect to the NPA Transactions,
Company will be Solvent and not be rendered insolvent by the
indebtedness incurred in connection therewith.
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E. EVIDENCE OF INSURANCE. Agents shall have received
a certificate from Company's insurance broker or other
evidence satisfactory to them that all insurance required to
be maintained pursuant to subsection 6.4 is in full force and
effect.
F. 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
Agents and their counsel, dated as of the NPA 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 Agents acting on behalf of Lenders
may reasonably request and (ii) evidence satisfactory to
Agents that Company has requested such counsel to deliver such
opinions to Lenders.
G. OPINIONS OF AGENTS' COUNSEL. Lenders shall have
received originally executed copies of one or more favorable
written opinions of Cahill Gordon & Reindel, counsel to
Agents, dated as of the NPA Closing Date, substantially in the
form of EXHIBIT IX annexed hereto and as to such other matters
as Agents acting on behalf of Lenders may reasonably request.
H. FEES. Company shall have paid to Administrative
Agent, for distribution (as appropriate) to Agents and
Lenders, the fees payable on the NPA Closing Date referred to
in subsection 2.3.
I. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF
AGREEMENTS. Company shall have delivered to Agents an
Officers' Certificate, in form and substance satisfactory to
Agents, to the effect that the representations and warranties
in subsections 5.1 through subsection 5.17A and subsection
5.20 hereof are true, correct and complete in all material
respects on and as of the NPA 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 NPA Closing Date, to the
extent applicable, except as otherwise disclosed to and agreed
to in writing by Agents.
J. COMPLETION OF PROCEEDINGS. All corporate and other
similar proceedings taken or to be taken in connection with
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the transactions contemplated hereby and all documents
incidental thereto not previously found acceptable by Agents,
acting on behalf of Lenders, and their counsel shall be
satisfactory in form and substance to Agents and such counsel,
and Agents and such counsel shall have received all such
counterpart originals or certified copies of such documents as
Agents may reasonably request.
K. APPROVAL OF NPA ACQUISITION STRUCTURE AND
DOCUMENTATION. The structure utilized to consummate the NPA
Acquisition and the NPA Acquisition Agreement shall be in full
force and effect, no material provision of which shall have
been amended, supplemented, waived or otherwise modified in
any material respect without the prior written consent of
Agents and the NPA Acquisition shall occur simultaneously with
the making of the Tranche B Term Loans on the NPA Closing Date
under this Agreement.
L. CERTAIN APPROVALS AND AGREEMENTS RELATING TO THE
NPA ACQUISITION. All material governmental and third party
approvals necessary or advisable in connection with the NPA
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 NPA Acquisition or the
financing thereof.
M. FINANCIAL INFORMATION. CSFB, SSB and CUSA and, if
applicable, the Lenders shall have received on or before the
closing of the NPA Transactions, financial statements of each
of Company and NPA (including notes thereto) consisting of (i)
audited consolidated balance sheet of Company as of the end of
the fiscal-year period ended December 31, 2001 and a
transaction adjusted unaudited balance sheet of NPA as of
September 30, 2001 (including the assets to be acquired in the
NPA Acquisition), and a balance sheet of Company pro forma for
the NPA Acquisition as of December 31, 2001 (PROVIDED, it is
understood, that such pro forma balance sheet shall be based
on the September 30, 2001 balance sheet for NPA with
adjustments reasonably acceptable to CSFB, SSB and CUSA), (ii)
audited statements of operations and cash flows for Company
and for NPA audited (or unaudited or estimated, as the case
may be, to the extent audited statements are not available)
for each period in the three fiscal-year period ended December
31, 2001 and a pro forma statement of operations for the most
recent fiscal year (which shall be based on an estimate for
NPA annualizing from the statement for September 30, 2001),
(iii) consolidated and consolidating financial statements for
14
each period in the three fiscal-year period ending December
31, 2001, and (iv) such other financial statements as may be
reasonably requested by CSFB, SSB and CUSA, including pro
forma balance sheets and statements of operations for Company
(giving effect to the NPA Transactions), and any supporting
documents shall be reasonably satisfactory to CSFB, SSB and
CUSA, and all such financial statements, historical or pro
forma, delivered pursuant to this subsection 4.1.1M shall be
in compliance with the requirements of Regulation S-X for a
public offering registered under the Securities Act and shall
not be materially inconsistent with financial statements
previously provided to CSFB, SSB, CUSA and the Lenders.
(p) Subsection 5.12 is hereby amended by deleting it in its entirety
and replacing it with the following:
5.12. CERTAIN FEES
Other than certain fees payable to Agents, or their
respective affiliates, 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.
(q) Section 5 is hereby amended by adding thereto a new subsection 5.20
as follows:
5.20 Accuracy of Representations and Warranties in the NPA
Acquisition AGREEMENT
Subject to the qualifications set forth therein, each of the
representations and warranties made by Company in the NPA
Acquisition Agreement is true and correct in all material
respects as of the date thereof and as of the NPA Closing
Date.
(r) Subsection 6.8A is hereby amended by deleting the period at the end
thereof and replacing it with the following:
; PROVIDED, FURTHER, HOWEVER, that to the extent Collateral
Agent reasonably determines the pledge of capital stock or
15
other equity interests of any Subsidiary of Company that is an
unlimited liability company or partnership would not be in the
best interest of Lenders, then no such capital stock or equity
interest shall be required to be pledged pursuant to this
subsection 6.8A.
(s) Subsection 7.1 is hereby amended by: (a) deleting the word "and" at
the end of clause (viii) thereof, (b) deleting the period at the end of clause
(ix) thereof and replacing it with "; and" and (c) inserting new clause (x)
immediately thereafter as follows:
(x) Indebtedness of Company or any Subsidiary incurred in
connection with a Permitted Receivables Transaction.
(t) Subsection 7.2(B) shall be deleted in its entirety and replaced
with the following:
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 customary provisions restricting assignment, neither
Company nor any of its Subsidiaries shall enter into any
agreement (other than the Senior Subordinated Credit Facility
and any agreement prohibiting only the creation of Liens
securing Subordinated Indebtedness and any document governing
a Permitted Receivables Transaction) prohibiting the creation
or assumption of any Lien upon any of its properties or
assets, whether now owned or hereafter acquired.
(u) Subsection 7.2(C) shall be deleted in its entirety and replaced
with the following:
C. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO COMPANY OR
OTHER SUBSIDIARIES. Except as provided herein and in any
document governing a Permitted Receivables Transaction 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 customary 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
16
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.
(v) Subsection 7.3 is hereby amended by: (a) deleting the word "and" at
the end of clause (v) thereof; (b) deleting the period at the end of clause (vi)
thereof and replacing it with "; and" and (c) adding new clause (vii)
immediately thereafter as follows:
(vii) any Investment in a Receivables Entity pursuant to any
Permitted Receivables Transaction.
(w) Subsection 7.5 is hereby deleted in its entirety and replaced with
the following:
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 or would
result from making such Restricted Junior Payment, Company may
cumulatively make Restricted Junior Payments in an aggregate
amount of $35,000,000 plus 50% of the Consolidated Net Income
for the period commencing on January 1, 2002 and ending on the
last day of the most recently ended full Fiscal Quarter prior
to any such payment.
(x) Subsection 7.7 is hereby amended by: (a) deleting the word "and" at
the end of clause (v) thereof, (b) deleting the period at the end of clause (vi)
thereof and replacing it with a semicolon and (c) adding new clauses (vii) and
(viii) immediately thereafter as follows:
(vii) Company and its Subsidiaries may make Asset Sales of
Receivables Assets pursuant to a Permitted
Receivables Transaction; PROVIDED, that the Net Asset
Sale Proceeds of such Asset Sales shall be applied as
required by subsection 2.4B(iii)(b); and
(viii) Company and its Subsidiaries may make Asset Sales of
the NPA Real Estate; PROVIDED, that the Net Asset
Sale Proceeds of such Asset Sales shall be applied as
required by subsection 2.4B(iii)(b).
(y) Subsection 7.11 is hereby amended by adding immediately after the
word "except" the following:
(i) a Permitted Receivables Transaction and (ii).
17
(z) Subsection 7.12 is hereby amended by adding new clause (iii)
immediately before the period of the end of the paragraph as follows:
or (iii) transactions with Receivables Entities pursuant to a Permitted
Receivables Transaction.
(aa) Subsection 9.1A is hereby amended by adding the following proviso
immediately before the period at the end of the first sentence thereof:
; PROVIDED, CSFB and SSB are hereby appointed as the Tranche B
Term Loan Arrangers and SSB is appointed as the Tranche B
Syndication Agent.
Subsection 9.1A is further amended by adding immediately after the final
sentence thereof the following:
Upon the conclusion of the period commencing on and including
the NPA Closing Date and ending on the earlier of (i) the date
on which the Tranche B Term Loan Arranger notifies the Company
that the Agents have concluded their primary syndication of
the Loans and the Commitments, and (ii) ninety (90) days after
the NPA Closing Date, all obligations of the Tranche B Term
Loan Arrangers hereunder shall terminate and thereafter the
Tranche B Term Loan Arrangers (in such capacity) shall have no
obligations or liabilities under any of the Loan Documents.
(bb) Subsection 10.1B(i) is hereby amended by deleting the amount
"$5,000,000" in clause (b) thereof and replacing it with "$1,000,000".
(cc) Subsection 10.1D is hereby amended by deleting it in its entirety
and replacing it with the following:
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 secure obligations of
such Lender including without limitation any assignment or
pledge to a 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.
18
(dd) Schedule 2.1 is hereby deleted in its entirety and replaced with
Schedule 2.1(a) and Schedule 2.1(b) attached as Annex I to Amendment No. 6.
(ee) Schedule 5.1 is hereby deleted in its entirety and replaced with
Schedule 5.1 attached as Annex II to Amendment No. 6.
(ff) Schedule 7.10 is hereby deleted in its entirety and replaced with
Schedule 7.10 attached as Annex III to Amendment No. 6.
SECTION TWO - CONDITIONS TO EFFECTIVENESS. This Amendment No. 6 shall
become effective as of the date first above written when, and only when
Administrative Agent shall have received counterparts of this Amendment No. 6
executed by Company, Subsidiary Guarantors and Requisite Lenders or, as to any
of Lenders, advice satisfactory to Administrative Agent that such Lender has
executed this Amendment No. 6. The effectiveness of this Amendment No. 6 (other
than Sections Five and Seven hereof) is conditioned upon the accuracy of the
representations and warranties set forth in Section Three hereof and the payment
by Company of any fees and expenses payable pursuant to Section Five hereof.
SECTION THREE - REPRESENTATIONS AND WARRANTIES. In order to induce
Lenders and Agents to enter into this Amendment No. 6, Company represents and
warrants to each of Lenders and Agents that after giving effect to this
Amendment No. 6, (i) no Default or Event of Default has occurred and is
continuing and (ii) all of the representations and warranties in the Credit
Agreement, after giving effect to this Amendment No. 6, are true and complete in
all material respects on and as of the date hereof as if made on the date hereof
(or, if any such representation or warranty is expressly stated to have been
made as of a specific date, as of such specific date).
SECTION FOUR - REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE
NOTES. On and after the effectiveness of this Amendment No. 6, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof" or words of like
import referring to the Credit Agreement and each reference in each of the other
Credit Documents to the "Credit Agreement", "thereunder", "thereof" or words of
like import referring to the Credit Agreement, shall mean and be a reference to
the Credit Agreement, as amended by this Amendment No. 6. The Credit Agreement,
the Notes and each of the other Credit Documents, as specifically amended by
this Amendment No. 6, are and shall continue to be in full force and effect and
are hereby in all respects ratified and confirmed.
SECTION FIVE - COSTS, EXPENSES AND TAXES. Company agrees to pay all
reasonable costs and expenses of the Agents in connection with the preparation,
execution and delivery of this Amendment No. 6 and the other instruments and
documents to be delivered hereunder, if any (including, without limitation, the
reasonable fees and expenses of Cahill Gordon & Reindel) in accordance with the
19
terms of subsection 10.2 of the Credit Agreement. In addition, Company shall pay
or reimburse any and all stamp and other taxes payable or determined to be
payable in connection with the execution and delivery of this Amendment No. 6
and the other instruments and documents to be delivered hereunder, if any, and
agrees to save each Agent and each Lender harmless from and against any and all
liabilities with respect to or resulting from any delay in paying or omission to
pay such taxes. In the event the Requisite Lenders consent to this Amendment,
Company covenants to pay or cause to be paid a one-time cash fee (the "AMENDMENT
FEE") to each Lender party to the Credit Agreement prior to the effective date
of this Amendment No. 6 (each, an "EXISTING LENDER") that executes and delivers
a signature page to this Amendment not later than the close of business (New
York time) on March 7, 2002 in the aggregate amount equal to 0.125% of the sum
of (i) the aggregate amount of the Term Loan Exposure of such Existing Lender as
of such date plus the (ii) aggregate amount of the Revolving Loan Exposure of
such Existing Lender as of such date, which fee shall be paid by wire transfer
of immediately available funds and distributed by the Administrative Agent to
the Existing Lenders entitled thereto.
SECTION SIX - EXECUTION IN COUNTERPARTS. This Amendment No. 6 may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute but one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Amendment No. 6 by the fax or e-mail of a copy thereof shall be effective as
delivery of a manually executed counterpart of this Amendment No. 6.
SECTION SEVEN - GOVERNING LAW. This Amendment No. 6 shall be governed
by, and construed and enforced in accordance with, the internal laws of the
State of New York (including Section 5-1401 of the General Obligations Law of
the State of New York), without giving effect to any provisions thereof relating
to conflicts of law.
[Remainder of Page Intentionally Left Blank]
20
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 6
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
EXPRESS SCRIPTS, INC.
By: /S/ GEORGE PAZ
-----------------------------------------
Name: George Paz
Title: Senior Vice President and CFO
SUBSIDIARY GUARANTORS:
DIVERSIFIED PHARMACEUTICAL
SERVICES, INC.
EXPRESS SCRIPTS SALES DEVELOPMENT
CO.
IVTX, INC.
VALUE HEALTH, INC.
ESI MAIL PHARMACY SERVICE, INC.
EXPRESS SCRIPTS UTILIZATION
MANAGEMENT CO.
EXPRESS SCRIPTS SPECIALTY
DISTRIBUTION SERVICES, INC.
ESI AIRPORT PROPERTIES, LLC
ESI CLAIMS, INC.
ESI-GP HOLDINGS, INC.
ESI PARTNERSHIP
ESI REALTY, LLC
EXPRESS ACCESS PHARMACY, INC.
PHOENIX MARKETING GROUP, L.L.C.
EXPRESS SCRIPTS CANADA HOLDING,
CO.
YOURPHARMACY.COM, INC.
By: /S/ GEORGE PAZ
-------------------------------------
Name: George Paz
Title: Vice President
ESI RESOURCES, INC.
By: ____________________________________
Name:
Title:
SUBSIDIARY GUARANTORS:
DIVERSIFIED PHARMACEUTICAL
SERVICES, INC.
EXPRESS SCRIPTS SALES DEVELOPMENT
CO.
IVTX, INC.
VALUE HEALTH, INC.
ESI MAIL PHARMACY SERVICE, INC.
EXPRESS SCRIPTS UTILIZATION
MANAGEMENT CO.
EXPRESS SCRIPTS SPECIALTY
DISTRIBUTION SERVICES, INC.
ESI CLAIMS, INC.
ESI-GP HOLDINGS, INC.
ESI PARTNERSHIP
EXPRESS ACCESS PHARMACY, INC.
PHOENIX MARKETING GROUP, L.L.C.
EXPRESS SCRIPTS CANADA HOLDING,
CO.
YOURPHARMACY.COM, INC.
By:
---------------------------
Name:
Title:
ESI RESOURCES, INC.
By: /S/ THOMAS L. SCHAEFER
---------------------------
Name: Thomas L. Schaefer
Title: President
Accepted and agreed to as of the date First written above by:
CREDIT SUISSE FIRST BOSTON, as Administrative Agent and as Joint Lead Arranger
with respect to the New Tranche B Term Loans
By: /S/ JAMES FINCH
----------------------------------
Name: James Finch
Title: Managing Director
By: /S/ ROBERT B. CARLSON
----------------------------------
Name:
Title:
SALOMON SMITH BARNEY INC., as
Joint Lead Arranger and Syndication
Agent with respect to the New Tranche B
Term Loans
By: ________________________________
Name:
Title:
Accepted and agreed to as of the date First written above by:
CREDIT SUISSE FIRST BOSTON, as Joint Lead Arranger and Syndication Agent with
respect tot he New Tranche B Term Loans
By:
---------------------------------------------
Name:
Title:
By:
---------------------------------------------
Name:
Title:
SALOMON SMITH BARNEY INC., as
Joint Lead Arranger and Syndication
Agent with respect to the New Trance B
Term Loans
By: /S/ WILLIAM L. HARTMANN
---------------------------------------------
Name: William L. Hartmann
Title: Managing Director
CREDIT SUISSE FIRST BOSTON
- ----------------------------
as one of the Requisite Lenders
(please type)
By: /S/ WILLIAM S. LUTKINS
---------------------------------
Name: William S. Lutkins
Title: Director
By: /S/ ROBERT N. FINNEY
---------------------------------
Name: Robert N. Finney
Title: Managing Director
CITICORP USA, INC.
- --------------------------------,
As one of the Requisite Lenders
By: /S/ JUDITH FISHLOW MINTER
---------------------------------
Name: Judith Fishlow Minter
Title: Managing Director
S-3
SENIOR DEBT PORTFOLIO
By: Boston Management and Research
AS INVESTMENT ADVISOR
- ----------------------------------------
as one of the Requisite Lenders
(please type)
GRAYSON & CO
By: Boston Management and Research
AS INVESTMENT ADVISOR
- ----------------------------------------
as one of the Requisite Lenders
(please type)
By: /S/ PAYSON F. SWAFFIELD
-----------------------------------
Name: Payson F. Swaffield
Title: Vice President
S-3
UNION BANK OF CALIFORNIA, N.A.,
- -------------------------------
as one of the Requisite Lenders
(please type)
By: /S/ MEHMET MUMCUOGLU
------------------------------------
Name: Mehmet Mumcuoglu
Title: Assistant Vice President
S-3
ING Prime Rate Trust
By: ING Investments, LLC
AS ITS INVESTMENT MANAGER
- ---------------------------------------
as one of the Requisite Lenders
(please type)
By: /S/ MICHEL PRINCE
----------------------------------
Name: Michael Prince, CFA
Title: Vice President
S-3
GENERAL ELECTRIC CAPITAL CORPORATION,
- ----------------------------------------
as one of the Requisite Lenders
(please type)
By: /S/ GREGORY HONG
-----------------------------------
Name: Gregory Hong
Title: Duly Authorized Signatory
S-3
BNP PARIBAS,
- ----------------------------------------
as one of the Requisite Lenders
(please type)
By: /S/ BROCK HARRIS
-----------------------------------
Name: Brock Harris
Title: Director
By: /S/ RO TOYOSHIMA
----------------------------------
Name: Ro Toyoshima
Title: Vice President
S-3
ERSTE BANK,
By: /S/ BRANDON A. MEYERSON
----------------------------------
Name: Brandon A. Meyerson
Title: Vice President
Erste Bank New York Branch
By: /S/ JOHN S. RUNNION
----------------------------------
Name: John S. Runnion
Title: Managing Director
Erste Bank New York Branch
S-3
BANK ONE, NA (MAIN OFFICE CHICAGO),
- ----------------------------------------
as one of the Requisite Lenders
(please type)
By: /S/ SUZANNE ERGASTOLO
-----------------------------------
Name: Suzanne Ergastolo
Title: Vice President
S-3
MELLON BANK, N.A.,
- --------------------------------------------
as one of the Requisite Lenders
By: /S/ LOUIS E. FLORI
---------------------------------------
Name: Louis E. Flori
Title: Vice President
S-3
BANK OF MONTREAL,
- --------------------------------------------
as one of the Requisite Lenders
(please type)
By: /S/ BRUCE PIETKA
---------------------------------------
Name: Bruce Pietka
Title: Vice President
Textron Financial Corporation
As one of the Requisite Lenders
By: /S/ STUART M. SCHULMAN
----------------------------------------
Name: Stuart M. Schulman
Title: Managing Director
S-3
BANKERS TRUST COMPANY,
- --------------------------------------------
as one of the Requisite Lenders
By: /S/ SCOTTYE LINDSEY
---------------------------------------
Name: Scottye Lindsey
Title: Vice President
S-3
/S/ ROBERT M. IRITANI,
- --------------------------------------------
as one of the Requisite Lenders
(City National Bank)
By:
Name: Robert M. Iritani
Title: Senior Vice President
S-3
FLEET NATIONAL BANK,
- --------------------------------------------
as one of the Requisite Lenders
(please type)
By: /S/ GORDON B. COUGHLIN
---------------------------------------
Name: Gordon B. Coughlin
Title: Vice President
S-3
THE BANK OF NEW YORK,
- --------------------------------------------
as one of the Requisite Lenders
(please type)
By: /S/ MICHAEL FLANNERY
---------------------------------------
Name: Michael Flannery
Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
- ----------------------------------
as one of the Requisite Lenders
By: /S/ JAMES C. BINZ
---------------------------------------
Name: James C. Binz
Title: First Vice President
S-3
BANK LEUMI USA,
By: /S/ ALIZ SADAN
--------------------------------------
Name: Aliz Sadan
Title: Assistant Treasurer
S-3
BAYERISCHE HYPE-UND VEREINSBANK AG,
NEW YORK BRANCE,
- -------------------------------------------
as one of the Requisite Lenders
(please type)
By: /S/ DAVID M. HARNISCH
--------------------------------------
Name: David M. Harnisch
Title: Managing Director
By: /S/ AJAY NADA
-------------------------------------
Name: Ajay Nada
Title: Associate Director
S-3
THE FUJI BANK LIMITED,
- -------------------------------------------
as one of the Requisite Lenders
(please type)
By: /S/ PETER L. CHINNICI
--------------------------------------
Name: Peter L. Cinnici
Title: Senior Vice President & Group Head
BANK OF AMERICA, N.A.
By: /s/ LARRY GORDON
--------------------------------
Name: Larry Grodon
Title: Principal
S-3
BANK OF HAWAII,
as one of the Requisite Lenders
By: /S/ J. BRYAN SCEARCE
----------------------------------
Name: J. Bryan Scearce
Title: Vice President