AMENDMENT NO. 3, dated as of November 25, 2002 ("Amendment No. 3") to
the Receivables Purchase and Transfer Agreement, dated as of November 1, 2000
(as amended, restated, supplemented, or otherwise modified from time to time,
the "RPTA"), among SCRIP SOLUTIONS, INC. (as successor by merger to MIM Health
Plans, Inc.), a Delaware corporation (together with its corporate successors and
assigns, "Scrip Solutions", and in its capacity as primary servicer thereunder,
the "Primary Servicer"), each of the parties named on Schedule I thereto (each,
including Scrip Solutions, a "Provider" and collectively, the "Providers"), and
MIM FUNDING LLC, a Delaware limited liability company (together with its
successors and assigns, the "Purchaser") and HFG HEALTHCO-4 LLC (the "Lender"),
as assignee of the Purchaser. Unless otherwise defined herein, terms in the RPTA
are used herein as therein defined.
WHEREAS, the Primary Servicer and the Providers have requested that the
Purchaser agree to amend certain provisions of the RPTA and that the Lender
consent to such amendments.
WHEREAS, the Purchaser is willing to agree to the amendments requested
by the Primary Servicer and the Providers subject to the terms and conditions
set forth herein.
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which hereby are
acknowledged, and subject to the fulfillment of the conditions set forth below,
the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO RPTA
SECTION 1.1 Exhibit I to the RPTA is hereby amended to add the following
definition thereto in the appropriate alphabetical order:
"Availability" means, at any date of determination, the
amount of the difference between (i) the Borrowing Limit (as
defined in the Loan Agreement) and (ii) the Lender Debt (as
defined in the Loan Agreement).
SECTION 1.2 Paragraph (z) of Exhibit V to the RPTA is hereby amended in its
entirety and the following shall be substituted therefor:
(z) Current Ratio. The ratio of (i) Current Assets plus
Availability to (ii) Current Liabilities is less than
1.20:1.00 as of the end of the fiscal quarter ending
September 30, 2002 and each fiscal quarter ending
thereafter.
SECTION 1.3 Paragraph (aa) of Exhibit V to the RPTA is hereby amended in its
entirety and the following shall be substituted therefor:
(aa) Consolidated Working Capital. The Consolidated Working
Capital is less than zero as of the end of the fiscal
quarter ending September 30, 2002 and each fiscal quarter
ending thereafter.
SECTION 2. CONDITIONS PRECEDENT
This Amendment No. 3 shall be deemed to be effective as of September
30, 2002 subject to receipt by the Lender, as assignee of the Purchaser, of a
copy of this Amendment No. 3 duly executed by the Primary Servicer, the
Providers and the Purchaser.
SECTION 3. MISCELLANEOUS
SECTION 3.1 After giving effect to the amendments set forth herein, each of the
Providers represents and warrants that no unwaived event has occurred and is
continuing which constitutes an Event of Termination, a Group-Wide Event of
Termination, a Servicer Termination Event or a Group-Wide Servicer Event of
Termination or would constitute such an Event of Termination, Group-Wide Event
of Termination, Servicer Termination Event or Group-Wide Servicer Event of
Termination but for the requirement that notice be given or time elapse or both.
SECTION 3.2 The terms "Agreement", "hereof", "herein" and similar terms as used
in the RPTA shall mean and refer to, from and after the effectiveness of this
Amendment No. 3, the RPTA as amended by this Amendment No. 3, and as it may in
the future be amended, restated, modified or supplemented from time to time in
accordance with its terms. Except as specifically agreed herein, the RPTA is
hereby ratified and confirmed and shall remain in full force and effect in
accordance with its terms.
SECTION 3.3 THIS AMENDMENT NO. 3 SHALL, IN ACCORDANCE WITH SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK, BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK, WITHOUT REGARD TO ANY CONFLICT OF LAWS PRINCIPLES THEREOF
THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
SECTION 3.4 This Amendment No. 3 may be executed in counterparts, each of which
when so executed shall be deemed to be an original and all of which when taken
together shall constitute one and the same agreement.
SECTION 3.5 Delivery of an executed counterpart of a signature page by
telecopier shall be effective as delivery of a manually executed counterpart.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3
to be executed by their respective officers thereunto duly authorized, as of the
date first above written.
PRIMARY SERVICER: SCRIP SOLUTIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President & Secretary
PROVIDERS: SCRIP SOLUTIONS, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President & Secretary
AMERICAN DISEASE MANAGEMENT ASSOCIATES, LLC
By: /s/ Xxxxx X. Xxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President & Secretary
SCRIP PHARMACY, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President & Secretary
VITALITY HOME INFUSION SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Vice President & Secretary
PURCHASER: MIM FUNDING LLC
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Executive Vice President & Secretary
CONSENTED TO:
HFG HEALTHCO-4 LLC
By: HFG Healthco-4, Inc., a member
By: /s/ Xxxxxxx Xxxxxxxx
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Name: Xxxxxxx Xxxxxxxx
Title: Vice President
