AMENDMENT TO ESCROW AGREEMENT
Exhibit
J
EXECUTION
COPY
AMENDMENT
TO
This
Amendment (this “Amendment”) dated as of September 21, 2007, to the
Escrow Agreement (the “Agreement”) dated as of September 18, 2007, by and
among Universal American Financial Corp., a New York corporation
(“Parent”), MH Acquisition I Corp., a Delaware corporation and wholly
owned subsidiary of Parent, MH Acquisition II LLC, a Delaware limited liability
company and wholly owned subsidiary of Parent, MHRx LLC, a Delaware limited
liability company (“MHRx”), MemberHealth, Inc., an Ohio corporation and
wholly owned subsidiary of MHRx, Welsh, Carson, Xxxxxxxx & Xxxxx IX, L.P., a
Delaware limited partnership, as the “Shareholder Representative” referred to in
the Merger Agreement, Xxx-Universal Holdings, LLC, Welsh, Carson, Xxxxxxxx
&
Xxxxx X, L.P., Union Square Universal Partners, L.P., Perry Partners, L.P.,
Perry Partners International, Inc., Perry Private Opportunities Fund, L.P.
and
Perry Private Opportunities Offshore Fund, L.P., Bank of America, N.A.,
in its
capacity as administrative agent (the “Administrative Agent”) for itself
and certain other lenders under the Credit Agreement dated as of September
18,
2007, among Parent, the Administrative Agent and the other lenders and
agents
from time to time party thereto, and The Bank of New York, a New York banking
corporation, as escrow agent.
WHEREAS,
on September 18, 2007, the parties entered into the Agreement; and
WHEREAS,
the parties have agreed to amend the definition of the “Escrow Release Date”
under the Agreement.
NOW,
THEREFORE, in consideration of the premises and the agreements, provisions
and
covenants contained herein, the parties hereto agree as follows:
1. Definitions. Unless
otherwise defined herein, all capitalized terms used herein shall have
the
meanings assigned to such terms in the Agreement.
2. Amendment. The
first paragraph of Section 5(a) of the Agreement is amended in its entirety
to
read as follows:
“(a) On
October 15, 2007, or on an earlier date which is specified in a certificate
signed by each of Parent and MHRx (the “Escrow Release Certificate”) and
is received by the Escrow Agent prior to October 15, 2007, the Escrow Agent
will
promptly deliver and release the Escrow Items as follows (the date of the
following distributions shall be known as the “Escrow Release Date”);
provided, however, that any Escrow Release Certificate delivered
to the Escrow Agent must be delivered by 5:00 PM (New York City time) at
least
one day prior to any proposed Escrow Release Date occurring earlier than
October
15, 2007, provided, further, that notwithstanding anything herein,
if any proposed Escrow Release Date is prior to October 1, 2007, the Escrow
Agent shall not deliver and shall not release the Escrow Items and the
Escrow
Release Date shall not occur unless Parent shall have delivered to the
Closing
Room executed original certificates, dated as of or prior to the proposed
Escrow
Release Date, representing the Escrow Shares, which Escrow Shares shall
be
distributed to the SPA Investors, MHRx (which shall further distribute
such
shares to its members) and The Bank of New York (as applicable), in each
case,
subject to no additional conditions and as if the Escrow Agent were distributing
such Escrow Shares pursuant to the Agreement:”
3. Miscellaneous.
(a) Effect
on Agreement. Except as amended by this Amendment, the Agreement
shall remain in full force and effect. After the date of this
Amendment, every reference in the Agreement to “this Agreement” shall mean the
Agreement as amended by this Amendment.
(b) Governing
Law. This Amendment, and all claims arising in whole or in part
out of, related to, based upon, or in connection herewith or the subject
matter
hereof will be governed by and construed in accordance with the domestic
substantive laws of the State of New York, without giving effect to any
choice
or conflict of law provision or rule that would cause the application of
the
laws of any other jurisdiction.
(c) Counterparts. This
Amendment may be executed in any number of counterparts, and by the different
parties hereto in separate counterparts, each of which will be deemed an
original for all purposes and all of which together will constitute one
and the
same instrument. Delivery of an executed counterpart of a signature
page to this Amendment by electronic means, such as facsimile or portable
document format, shall be as effective as delivery of a manually executed
counterpart of this Amendment.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
2
IN
WITNESS WHEREOF, the undersigned have executed this Amendment as of the
date
first above written.
| THE ESCROW AGENT: | THE BANK OF NEW YORK | ||
|
|
By:
|
/s/ Xxxxxx Xxxxxx | |
| Name: Xxxxxx Xxxxxx | |||
| Title: Vice President | |||
| UNIVERSAL AMERICAN FINANCIAL CORP. | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxx | |
| Name: Xxxxxx X. Xxxxxxxxx | |||
| Title: Chief Financial Officer | |||
| WELSH,
CARSON, XXXXXXXX & XXXXX IX, L.P., as Shareholder Representative |
|||
| By: | WCAS
IX ASSOCIATES LLC, its General Partner |
||
|
|
By:
|
/s/ Xxxx X. Xxxxxxx | |
| Name: Xxxx X. Xxxxxxx | |||
| Title: Managing Member | |||
| MH ACQUISITION I CORP. | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxx | |
| Name: Xxxxxx X. Xxxxxxxxx | |||
|
Title:
Executive Vice President and
|
|||
| Chief Financial Officer | |||
| MH ACQUISITION II LLC | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxxxx | |
| Name: Xxxxxx X. Xxxxxxxxx | |||
| Title: President | |||
3
| MEMBERHEALTH, INC. | |||
|
|
By:
|
/s/ Xxxxx Xxxxxxxx | |
| Name: Xxxxx Xxxxxxxx | |||
| Title: Chief Financial Officer | |||
| MHRx LLC | |||
|
|
By:
|
/s/ Xxxx X. Xxxxxxx | |
| Name: Xxxx X. Xxxxxxx | |||
| Title: Authorized Representative | |||
| XXX-UNIVERSAL HOLDINGS, LLC | |||
|
|
By:
|
/s/ Xxxxxx X. Xxxxxxx | |
| Name: Xxxxxx X. Xxxxxxx | |||
| Title: CFO | |||
| WELSH, CARSON, XXXXXXXX & XXXXX, X L.P. | |||
| By: | WCAS
X ASSOCIATES LLC, its General Partner |
||
|
|
By:
|
/s/ Xxxx X. Xxxxxxx | |
| Name: Xxxx X. Xxxxxxx | |||
| Title: Managing Member | |||
0
| XXXXX XXXXXX UNIVERSAL PARTNERS, L.P. | |||
| By: | Union
Square Universal GP, LLC, its General Partner |
||
|
|
By:
|
/s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | |||
| Title: Authorized Signatory | |||
| PERRY PARTNERS, L.P., | |||
| By: | Perry Corp., its General Partner | ||
|
|
By:
|
/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
| Title: General Counsel | |||
| PERRY PARTNERS INTERNATIONAL, INC. | |||
| By: | Perry Corp., its Investment Manager | ||
|
|
By:
|
/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
| Title: General Counsel | |||
5
| PERRY PRIVATE OPPORTUNITIES OFFSHORE FUND, L.P. | |||
| By: | PERRY
PRIVATE OPPORTUNITIES OFFSHORE FUND (CAYMAN) GP, L.L.C., its General Partner |
||
| By: | PERRY CORP., its Managing Member | ||
|
|
By:
|
/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
| Title: General Counsel | |||
| PERRY PRIVATE OPPORTUNITIES FUND, L.P. | |||
| By: | PERRY
PRIVATE OPPORTUNITIES FUND GP, L.L.C., its General Partner, |
||
| By: | PERRY CORP., its Managing Member | ||
|
|
By:
|
/s/ Xxxxxxx X. Xxxx | |
| Name: Xxxxxxx X. Xxxx | |||
| Title: General Counsel | |||
|
BANK
OF AMERICA, N.A.,
as Administrative Agent
|
|||
|
|
By:
|
/s/ Xxxxx Xxxxxx | |
| Name: Xxxxx Xxxxxx | |||
| Title: Vice President | |||
6
