EX-10.1 Amendment No. 2 to Credit Agreement

EX-10.1 5 d89628ex10-1.txt EX-10.1 AMENDMENT NO. 2 TO CREDIT AGREEMENT 1 EXHIBIT 10.1 AMENDMENT NO. 2 TO THE CREDIT AGREEMENT Dated as of June 22, 2001 AMENDMENT NO. 2 TO THE CREDIT AGREEMENT dated as of October 2, 2000 among AdvancePCS, f/k/a Advance Paradigm, Inc., a Delaware corporation, as Borrower, the Subsidiary Guarantors party thereto, the Lenders party thereto, Bank One, N.A., ("BANK ONE") as Documentation Agent, Bank of America, N.A., ("BANK OF AMERICA") as Collateral Agent and as Administrative Agent for the Lender Parties, Merrill Lynch, Pierce, Fenner & Smith Incorporated, as Book-Runner, Lead Arranger and Syndication Agent, and Banc of America Securities LLC as Joint Book-Runner and Joint Lead Arranger for the Lenders, as amended by the Amendment No. 1 to the Credit Agreement dated as of November 3, 2000 (as so amended and as otherwise amended, restated and modified from time to time, the "CREDIT AGREEMENT"). Capitalized terms not otherwise defined in this Amendment No. 2 (the "AMENDMENT") have the same meanings as specified in the Credit Agreement. PRELIMINARY STATEMENTS: WHEREAS, the Borrower, the Subsidiary Guarantors, the Lenders and the Agents have entered into the Credit Agreement and the Lenders have made Advances to the Borrower thereunder; WHEREAS, the Borrower intends to enter into a joint venture with Priority Healthcare Corp., and in connection therewith to form AdvancePrioritySpecialtyRx, LLC. The Borrower will make capital contributions in an aggregate amount of up to $10 million to AdvancePrioritySpecialtyRx, LLC, and will become the owner of 51% of the equity interests of AdvancePrioritySpecialtyRx, LLC. NOW, THEREFORE, in consideration of the mutual promises and obligations contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Borrower, the Subsidiary Guarantors and the Required Lenders have agreed to amend the Credit Agreement as hereinafter set forth. SECTION 1. Amendment. The Credit Agreement is, effective as of the date first above written and subject to the satisfaction of the conditions precedent set forth in Section 2 hereof, hereby amended as follows: (a) The definition of "Subsidiary" in Section 1.01 of the Credit Agreement is amended to insert after the words "or by one or more of such Person's other Subsidiaries" and before the period immediately following, the phrase, "; provided, however, that AdvancePrioritySpecialtyRx, LLC shall not be deemed to be a Subsidiary of any Loan Party". 2 (b) The Credit Agreement is amended to add Section 4.01(aa) thereto, which shall read as follows: "(aa) the capital contributions to be made by the Borrower in AdvancePrioritySpecialtyRx, LLC are Investments made under Section 5.02(f)(xvi) of the Credit Agreement." (c) Section 5.01(j)(iv) of the Credit Agreement is amended to insert after the words "(whether considered in a proceeding in equity or at law))," the phrase, "except that following the formation of AdvancePrioritySpecialtyRx, LLC, the Borrower will pledge all of the equity interests in AdvancePrioritySpecialtyRx, LLC that it owns in favor of the Collateral Agent within five business days of such formation, pursuant to the terms of the Security Agreement, and on terms and conditions satisfactory to the Administrative Agent,". (d) Section 5.02(e)(viii) of the Credit Agreement is deleted in its entirety and is replaced with the following: "the sale, lease, transfer or other disposition by any Loan Party of any or all of its assets (upon voluntary liquidation or otherwise) to any other Loan Party;" (e) Section 5.02(e)(iv) is deleted in its entirety and is replaced with the following: "[Intentionally left blank.]" (f) Schedule I to the Credit Agreement is amended by increasing the Letter of Credit Commitment of Bank of America under the Credit Agreement from $20,000,000 to $50,000,000. In connection therewith, Bank of America has issued a $25,000,000 standby letter of credit for the account of the Borrower and in favor of Bergen Brunswig Drug Company which shall be deemed to be a Letter of Credit that has been issued under the Credit Agreement. SECTION 2. Conditions of Effectiveness. This Amendment shall become effective as of the date first above written when, and only when, the Administrative Agent shall have received counterparts of this Amendment executed by the Borrower, the Subsidiary Guarantors and the Required Lenders or, as to any of the Required Lenders, advice satisfactory to the Administrative Agent that such Required Lender has executed this amendment. This amendment is subject to the provisions of Section 9.01 of the Credit Agreement. SECTION 3. Representations and Warranties of the Borrower. The Borrower represents and warrants as follows: (a) the representations and warranties contained in each Loan Document are correct in all material respects on and as of the date hereof, before and after giving effect to this Amendment, as though made on and as of the date hereof, other than any such representations or warranties that by their terms, refer to a specific date, in which case, as of such specific date; and (b) no Default has occurred and is continuing under the Credit Agreement, as amended hereby, or would result from this Amendment. 3 SECTION 4. Reference to and Effect on the Loan Documents. (a) On and after the effectiveness of this Amendment, 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 the Notes and each of the other Loan 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. (b) The Credit Agreement, the Notes and each of the other Loan Documents, as specifically amended by this Amendment, are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed. (c) The execution, delivery and effectiveness of this Amendment shall not, except as expressly provided herein, operate as a waiver of any right, power or remedy of any Lender or the Administrative Agent under any of the Loan Documents, nor constitute a waiver of any provision of any of the Loan Documents. SECTION 5. Costs, Expenses; Taxes. The Borrower agrees to pay on demand all reasonable costs and expenses of the Administrative Agent in connection with the preparation, execution, delivery and administration of this Amendment (including, without limitation, the reasonable fees and expenses of counsel for the Administrative Agent) in accordance with the terms of Section 9.04 of the Credit Agreement. SECTION 6. Execution in Counterparts. This Amendment 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 by telecopier shall be effective as delivery of a manually executed counterpart of this Amendment. SECTION 7. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York. [The rest of this page is intentionally left blank.] 4 IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written. ADVANCEPCS By: ---------------------------------------- Name: Laura I. Johansen Title: Sr. Vice President, Corporate Affairs and Secretary SUBSIDIARY GUARANTORS ADVANCEPCS, L.P. By ADVANCEPCS, its General Partner By: ---------------------------------------- Name: Laura I. Johansen Title: Sr. Vice President, Corporate Affairs and Secretary ADVANCEPCS RESEARCH, L.L.C. By: ---------------------------------------- Name: Laura I. Johansen Title: Vice President and Secretary ADVANCERX.COM, L.P. By ADVANCEPCS, its General Partner By: ---------------------------------------- Name: Laura I. Johansen Title: Sr. Vice President, Corporate Affairs and Secretary ADVP CONSOLIDATION, L.L.C. By: ---------------------------------------- Name: Susan S. DeMars Title: Vice President and Secretary 5 ADVP MANAGEMENT, L.P., By ADVANCEPCS, its General Partner By: ---------------------------------------- Name: Laura I. Johansen Title: Sr. Vice President, Corporate Affairs and Secretary AMBULATORY CARE REVIEW SERVICES, INC. By: ---------------------------------------- Name: Laura I. Johansen Title: Vice President BAUMEL-EISNER NEUROMEDICAL INSTITUTE, INC. By: ---------------------------------------- Name: Laura I. Johansen Title: Vice President FFI RX MANAGED CARE, INC. By: ---------------------------------------- Name: Laura I. Johansen Title: Vice President FIRST FLORIDA INTERNATIONAL HOLDINGS, INC. By: ---------------------------------------- Name: Laura I. Johansen Title: Vice President 6 FOUNDATION HEALTH PHARMACEUTICAL SERVICES INC. By: ---------------------------------------- Name: Laura I. Johansen Title: Vice President HMN HEALTH SERVICES, INC. By: ---------------------------------------- Name: Laura I. Johansen Title: Vice President PCS HEALTH SYSTEMS, INC. By: ---------------------------------------- Name: Laura I. Johansen Title: Vice President PCS HOLDING CORPORATION By: ---------------------------------------- Name: Laura I. Johansen Title: Vice President PCS MAIL SERVICES, INC. By: ---------------------------------------- Name: Laura I. Johansen Title: Vice President 7 PCS MAIL SERVICES OF BIRMINGHAM, INC. By: ---------------------------------------- Name: Laura I. Johansen Title: Vice President PCS MAIL SERVICES OF FT. WORTH, INC. By: ---------------------------------------- Name: Laura I. Johansen Title: Vice President PCS MAIL SERVICES OF SCOTTSDALE, INC. By: ---------------------------------------- Name: Laura I. Johansen Title: Vice President PCS SERVICES, INC. By: ---------------------------------------- Name: Laura I. Johansen Title: Vice President 8 THE AGENTS BANK OF AMERICA, N. A., as Administrative Agent, Collateral Agent, Initial Lender and Initial Issuing Bank and Lender Party By: ---------------------------------------------------- Title: BANK ONE, N.A., as Documentation Agent and Lender Party By: ---------------------------------------------------- Title: MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, as Syndication Agent and Lender Party By: ---------------------------------------------------- Title: 9 LENDERS MERRILL LYNCH CAPITAL CORPORATION By: ---------------------------------------------------- Title: BANK ONE, N.A. By: ---------------------------------------------------- Title: CREDIT SUISSE FIRST BOSTON By: ---------------------------------------------------- Title: By: ---------------------------------------------------- Title: GENERAL ELECTRIC CAPITAL CORPORATION By: ---------------------------------------------------- Title: FIRST UNION NATIONAL BANK By: ---------------------------------------------------- Title: BANK OF CHINA, NEW YORK BRANCH By: ---------------------------------------------------- Title: 10 RAYMOND JAMES BANK, FSB By: ---------------------------------------------------- Title: CIBC INC. By: ---------------------------------------------------- Title: THE BANK OF NOVA SCOTIA By: ---------------------------------------------------- Title: ERSTE BANK DER OESTERREICHISCHEN SPARKASSEN AG - NEW YORK By: ---------------------------------------------------- Title: ABBEY NATIONAL TREASURY SERVICES PLC, LONDON By ---------------------------------------------------- Title: NORTHWOODS CAPITAL II, LIMITED By: Angelo, Gordon & Co., L.P., as Collateral Manager By ---------------------------------------------------------- Title: CANADIAN IMPERIAL BANK OF COMMERCE By ---------------------------------------------------------- Title: 11 ARES LEVERAGED INVESTMENT FUND, L.P. By ---------------------------------------------------------- Title: ARES LEVERAGED INVESTMENT FUND II, L.P By ---------------------------------------------------------- Title: PROMETHEUS INVESTMENT FUNDING NO. 1 LTD. By: CPF Asset Advisory L.P., as Investment Manager By ---------------------------------------------------------- Title: By ---------------------------------------------------------- Title: CARLYLE HIGH YIELD FUND, L.P By ---------------------------------------------------------- Title: CARLYLE HIGH YIELD PARTNER II, LTD. By ---------------------------------------------------------- Title: 12 BAVARIA TRR CORPORATION By ---------------------------------------------------- Title: CARAVELLE INVESTMENT FUND, L.L.C. By ---------------------------------------------------- Title: SIERRA CLO I, LTD. By ---------------------------------------------------- Title: CITADEL HILL 2000 LTD. By ---------------------------------------------------- Title: FIVE FINANCE CORPORATION Citibank, N.A. as Additional Investment Manager for and on behalf of Five Finance Corporation By ---------------------------------------------------- Title: TYLER TRADING, INC. By ---------------------------------------------------- Title: FLEET NATIONAL BANK FOR THE ACCOUNT OF FLAGSHIP CLO By ---------------------------------------------------- Title: 13 FOOTHILL INCOME TRUST, L.P. By FIT GP, LLC, its General Partner By ---------------------------------------------------- Title: Managing Member FRANKLIN CLO I, LIMITED By ---------------------------------------------------- Title: FRANKLIN FLOATING RATE MASTER SERIES By ---------------------------------------------------- Title: FRANKLIN FLOATING RATE TRUST By ---------------------------------------------------- Title: HELLER FINANCIAL, INC. By ---------------------------------------------------- Title: KATONAH I, LTD. By ---------------------------------------------------- Title: NOMURA BOND & LOAN FUND By ---------------------------------------------------- Title: 14 NUVEEN FLOATING RATE FUND By: Nuveen Senior Loan Asset Management Inc. By ---------------------------------------------------- Title: NUVEEN SENIOR INCOME FUND By: Nuveen Senior Loan Asset Management Inc. By ---------------------------------------------------- Title: ML CLO XII PILGRIM AMERICA (CAYMAN) LTD. By: Pilgrim Investments, Inc., as its investment manager By ---------------------------------------------------- Title: ML CLO XV PILGRIM AMERICA (CAYMAN) LTD. By: Pilgrim Investments, Inc., as its investment manager By ---------------------------------------------------- Title: ML CLO XX PILGRIM AMERICA (CAYMAN) LTD. By: Pilgrim Investments, Inc., as its investment manager By ---------------------------------------------------- Title: PILGRIM PRIME RATE TRUST By: Pilgrim Investments, Inc., as its investment manager By ---------------------------------------------------- Title: 15 PILGRIM CLO 1999-1 LTD. By: Pilgrim Investments, Inc., as its investment manager By ---------------------------------------------------- Title: SEQUILS-PILGRIM I, LTD. By: Pilgrim Investments, Inc., as its investment manager By ---------------------------------------------------- Title: OPPENHEIMER SENIOR FLOATING RATE FUND By ---------------------------------------------------- Title: HARBOURVIEW CDO II, LTD By ---------------------------------------------------- Title: KZH SHOSHONE LLC By ---------------------------------------------------- Title: APEX (IDM) CDO I. LTD. By ---------------------------------------------------- Title: ELC (CAYMAN) LTD. CDO SERIES 1999-1 By ---------------------------------------------------- Title: 16 ELC (CAYMAN) LTD. 2000-1 By ---------------------------------------------------- Title: KZH WATERSIDE LLC By ---------------------------------------------------- Title: KZH ING-1 LLC By ---------------------------------------------------- Title: KZH ING-2 LLC By ---------------------------------------------------- Title: KZH ING-3 LLC By ---------------------------------------------------- Title: ARCHIMEDES FUNDING IV, LTD By: ING Capital Advisors LLC, as Collateral Manager By ---------------------------------------------------- Title: NEMEAN CLO, LTD By: ING Capital Advisors LLC, as Investment Manager By ---------------------------------------------------- Title: 17 THE ING CAPITAL SENIOR SECURED HIGH INCOME FUND HOLDINGS, LTD. By: ING Capital Advisors LLC, as Investment Manager By ---------------------------------------------------- Title: SWISS LIFE US RAINBOW LIMITED By: ING Capital Advisors LLC, as Investment Manager By ---------------------------------------------------- Title: MAPLEWOOD (CAYMAN) LIMITED MASSMUTUAL INVESTMENT ADVISOR By ---------------------------------------------------- Title: MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY By ---------------------------------------------------- Title: MASSMUTUAL HIGH YIELD PARTNERS II, LLC By ---------------------------------------------------- Title: SIMSBURY CLO, LIMITED By ---------------------------------------------------- Title: SUFFIELD CLO, LIMITED By ---------------------------------------------------- Title: 18 WILBRAHAM CBO, LIMITED By ---------------------------------------------------- Title: STEIN, ROE & FARNHAM, as agent for KEYPORT LIFE INSURANCE COMPANY By ---------------------------------------------------- Title: LIBERTY-STEIN ROE ADVISOR FLOATING RATE ADVANTAGE FUND By: Stein Roe & Farnham Incorporated, as Advisor By ---------------------------------------------------- Title: SRF 2000 LLC By ---------------------------------------------------- Title: SRF TRADING, INC. By ---------------------------------------------------- Title: STEIN ROE FLOATING RATE LIMITED LIABILITY COMPANY By ---------------------------------------------------- Title: VAN KAMPEN SENIOR INCOME TRUST By ---------------------------------------------------- Title: 19 VAN KAMPEN CLO I, LIMITED By --------------------------------------------------- Title: VAN KAMPEN CLO II, LIMITED By --------------------------------------------------- Title: MONY LIFE INSURANCE COMPANY By --------------------------------------------------- Title: AIMCO CDO SERIES 2000-A By --------------------------------------------------- Title: ALLSTATE LIFE INSURANCE COMPANY By --------------------------------------------------- Title: ARES III CLO LTD. By: ARES CLO Management LLC By --------------------------------------------------- Title: TRYON CLO LTD. 2000-1 By --------------------------------------------------- Title: 20 MORGAN STANLEY DEAN WITTER PRIME INCOME TRUST By --------------------------------------------------- Title: CAPTIVA III FINANCE LTD. as advised by Pacific Investment Management Company LLC By --------------------------------------------------- Title: WINDSOR LOAN FUNDING, LIMITED By: Stanfield Capital Partners LLC, as its Investment Manager By --------------------------------------------------- Title: STANFIELD/RMF TRANSATLANTIC CDO, LTD. By: Stanfield Capital Partners LLC, as its Collateral Manager By --------------------------------------------------- Title: SENIOR DEBT PORTFOLIO By: Boston Management and Research, as Investment Advisor By --------------------------------------------------- Title: EATON VANCE CDO III, LTD. By: Eaton Vance Management as Investment Advisor By --------------------------------------------------- Title: 21 EATON VANCE INSTITUTIONAL SENIOR LOAN FUND By: Eaton Vance Management, as Investment Advisor By --------------------------------------------------- Title: OXFORD STRATEGIC INCOME FUND By: Eaton Vance Management, as Investment Advisor By --------------------------------------------------- Title: EATON VANCE SENIOR INCOME TRUST By: Eaton Vance Management, as Investment Advisor By --------------------------------------------------- Title: FIRST DOMINION FUNDING II By --------------------------------------------------- Title: FIRST DOMINION FUNDING III By --------------------------------------------------- Title: SANKATY HIGH YIELD PARTNERS II, L.P. By --------------------------------------------------- Title: BRANT POINT II CBO 2000-1-LTD. By --------------------------------------------------- Title: 22 GREAT POINT CLO 1999-1 LTD. By --------------------------------------------------- Title: FLEET NATIONAL BANK AS TRUST ADMINISTRATOR FOR LONG LANE MASTER TRUST IV By --------------------------------------------------- Title: CENTURION CDO II, LTD. By American Express Asset Management Group Inc., as Collateral Manager By --------------------------------------------------- Title: ELF FUNDING TRUST I By Highland Capital Management, L.P., as Collateral Manager By --------------------------------------------------- Title: SAWGRASS TRADING LLC By --------------------------------------------------- Title: SRV - HIGHLAND, INC. By --------------------------------------------------- Title: 23 SEABOARD CLO 2000 LTD By --------------------------------------------------- Title: TEXTRON FINANCIAL CORPORATION By --------------------------------------------------- Title: GRAYSON & CO By: Boston Management and Research, as Investment Advisor By --------------------------------------------------- Title: CAPTIVA FINANCE LTD. By --------------------------------------------------- Title: BLUE SQUARE FUNDING LIMITED SERIES 3 By --------------------------------------------------- Title: CARAVELLE INVESTMENT FUND II, L.L.C. By --------------------------------------------------- Title: