EXTENSION AMENDMENT, dated as of June 30, 2003 ("Extension Amendment"), to the RECEIVABLES PURCHASE AND TRANSFER AGREEMENT, dated as of November 1, 2000 (as amended prior to the date hereof, the "Original RPTA", and as it may be amended, modified or...
EXTENSION AMENDMENT, dated as of June 30, 2003 ("Extension
Amendment"), to the RECEIVABLES PURCHASE AND TRANSFER
AGREEMENT, dated as of November 1, 2000 (as amended prior to the
date hereof, the "Original RPTA", and as it may be amended,
modified or supplemented on and after the date hereof, including by this
Extension Amendment, 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", and in its capacity as primary servicer thereunder, the
"Primary Servicer"), each of the parties named on Schedule
I to the Original RPTA (each, including Scrip, a "Provider"
and collectively, the "Providers"), and MIM FUNDING LLC, a
Delaware limited liability company (together with its successors and
assigns, the "Purchaser") and consented to by 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. |
SECTION 1. AMENDMENTS TO RPTA |
Effective as of the Effective Date, the Original RPTA is hereby amended as follows: |
1.1 Section 4.04(a) of the Original RPTA is hereby amended by adding, immediately prior to clause (x) contained therein, the following new clause: |
"(w) if requested by the Purchaser or Healthco-4, as its assignee, all capital stock of Vitality Home Infusion Services, Inc.," |
1.2 Section 5.06 of the Original RPTA is hereby amended by adding at the end of such subsection the following: |
"Notwithstanding anything to the contrary described herein, from the commencement of discussions with respect to the transactions, each Provider, the Primary Servicer, the Purchaser and Healthco-4, and each of their respective employees, representatives or other agents, are, and hereby confirm that they have been, permitted to disclose to any and all persons, without limitations of any kind, the tax treatment and tax structure of the transactions and all materials of any kind (including opinions or other tax analyses) that are or have been provided to such parties related to such tax treatment and tax structure; provided, however, that the foregoing permission to disclose the tax treatment and tax structure does not permit the disclosure of the identity of the parties to the transactions or the amounts paid in connection with the transactions; and provided further, that the tax treatment and tax structure shall be kept confidential to the extent necessary to comply with federal or state securities laws." |
1.3 Exhibit I to the Original RPTA is hereby amended by adding the following new defined terms in their appropriate alphabetical location: |
"'Acquisition' means the acquisition by a Provider of a business
or of businesses through asset purchase, stock purchase, assumption of
obligations, merger, consolidation or similar business combination. |
1.4 The defined term "Permitted Acquisition" appearing Exhibit I to the Original RPTA is hereby amended by (a)(i) deleting the phrase "the acquisition by a Provider of a business or of businesses or the merger or consolidation of a Provider into or with another Person" appearing on the first and second lines thereof, and (ii) substituting therefor the phrase "an Acquisition", (b)(i) deleting the word "acquisition" appearing on the fifth, sixth, tenth, eleventh, seventeenth and eighteenth lines thereof, and (i) substituting therefore the word "Acquisition", and (c)(i) deleting clauses (8) and (9) of such defined term, and (ii) substituting therefor the following new clauses: |
"(8) with respect to any single Acquisition (i) the Total Consideration (as hereinafter defined) does not exceed $50,000,000 and (ii) the cash paid in connection with such Acquisition, together with any liabilities assumed in connection therewith, does not exceed $25,000,000, and (9) with respect to any two or more Acquisitions in a 12-month period (i) the aggregate Total Consideration does not exceed $70,000,000 and (ii) the aggregate cash paid in connection with such Acquisitions, together with any liabilities assumed in connection therewith, does not exceed $55,000,000. For the purposes hereof, the 'Total Consideration ' of an Acquisition shall mean the aggregate of all cash paid, liabilities assumed and the fair market value of any equity interests issued as consideration for such Acquisition." |
1.5 Exhibit I to the Original RPTA is hereby amended by deleting the phrase "the date twenty-four months after the Initial Transfer Date" in clause (a) of the defined term "Facility Termination Date" and substituting therefor the phrase "November 1, 2006". |
1.6 Exhibit IV to the Original RPTA is hereby amended by adding a new clause (u) as follows: |
"(u) Acquisitions. Each Provider shall provide in a timely manner such information to the Purchaser or Healthco-4, as its assignee, with respect to any proposed Acquisition as the Purchaser or Healthco-4, as the case may be, may reasonably request. Further, each Provider shall, in connection with any such proposed Acquisition, provide a representation to the Purchaser and Healthco-4 as to whether any such Acquisition constitutes a Permitted Acquisition." |
1.7 Exhibit V to the Original RPTA is hereby amended by (i) deleting clause (p) contained therein and (ii) substituting therefor the following: |
"(p) [Intentionally Omitted]." |
1.8 Exhibit V to the Original RPTA is hereby amended by (i) deleting clauses (s) through (v) and clauses (x) through (bb) contained therein and (ii) substituting therefor the following new clauses: |
"(s) Consolidated Net Worth. The Consolidated Net Worth, calculated at the end of each fiscal quarter of the Parent, is less than the amount indicated opposite each such fiscal quarter ended as follows (provided, that for the purposes of making the calculation of Consolidated Net Worth, such calculation shall be made without consideration of (i) the cumulative writeoff of intangible assets as set forth in the Parent's June 30, 2003 balance sheet and (ii) any reduction in Consolidated Net Worth resulting from the exercise of the remainder of the stock repurchase program of the Parent as in effect on June 30, 2003): |
Fiscal Quarter Ending |
|
Amount | |
September 30, 2003 through March 31, 2004 |
|
$ |
94,500,000 |
June 30, 2004 through March 31, 2005 |
|
$ |
96,500,000 |
June 30, 2005 through March 31, 2006 |
|
$ |
100,500,000 |
June 30, 2006 through September 30, 2006 |
|
$ |
104,500,000 |
(t) Current Ratio. The ratio of (i)
Current Assets plus Availability to (ii) Current Liabilities for each
Fiscal Quarter during which the principal amount of the Revolving Loan
and all Term Loans (as defined in the Loan Agreement) exceeded 50% of the
Borrowing Limit (as defined in the Loan Agreement) at any time, is less
1.20:1.00 (without consideration, in making such calculation, of balance
sheet accruals for restructuring charges). |
SECTION 2. CONDITIONS PRECEDENT |
This Extension Amendment shall not become effective (the "Effective Date") until the following conditions have been satisfied in full or waived in writing by the Purchaser and the Lender as its assignee: |
(a) The Purchaser and the Lender shall have
received fully executed counterparts of this Extension Amendment; and
|
SECTION 3. MISCELLANEOUS |
3.1 The Providers each hereby certify,
represent and warrant that, except as to the matters previously disclosed
in the public filings of MIM Corporation (i) the representations and
warranties in the RPTA are true and correct, with the same force and effect
as if made on such date, except as they may specifically refer to an
earlier date, in which case they were true and correct as of such date,
(ii) no unwaived 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 has occurred or is continuing (nor any event that but for
notice or lapse of time or both would constitute 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), (iii) each of the Providers and the Primary
Servicer, as applicable has the corporate power and authority to execute
and deliver this Extension Amendment, and (iv) no consent of any other
person and no action of, or filing with any governmental or public body
or authority is required to authorize, or is otherwise required in
connection with the execution and performance of this Extension Amendment,
other than such that have been obtained.
|
IN WITNESS WHEREOF, the parties hereto have caused this Extension Amendment to be executed by their respective officers thereunto duly authorized, as of the date first above written. |
PROVIDERS: |
SCRIPSOLUTIONS, INC. (as successor by merger to MIM Health Plans, Inc.) |
PURCHASER: |
MIM FUNDING LLC |
PRIMARY SERVICER: |
SCRIPSOLUTIONS, INC. (as successor by merger to MIM Health Plans, Inc.) |
CONSENTED TO: |
HFG HEALTHCO-4 LLC |
