Contract
EXHIBIT 10.2
EXTENSION AND FOURTH AMENDMENT, dated as of October ___, 2006 (“Fourth Amendment”), to the
LOAN AND SECURITY AGREEMENT, dated as of November 1, 2000 (as amended, the “LSA”), between MIM
FUNDING LLC, a Delaware limited liability company (together with its successors and assigns, the
“Purchaser”) and HFG HEALTHCO-4 LLC (the “Lender”). Unless otherwise defined herein, terms in the
LSA are used herein as therein defined.
The Providers and the Purchaser wish to extend the LSA, subject to the amendments contained
herein, and the Lender has agreed to consent to such extension and amendments.
Accordingly, 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. AMENDMENT TO LSA
Effective as of the respective Effective Date (as defined below), the LSA is hereby amended as
follows:
1.1 Section 1.05(a) of the LSA is hereby amended by (i) deleting the phrase “the LIBO Rate in
effect for the applicable Interest Period plus 2.40%” appearing in the third and fourth lines
thereof and (ii) substituting therefor the phrase “LIBOR plus the Applicable Margin.”
1.2 Section 1.05(c) of the LSA is hereby amended by (i) deleting the figure “0.50%” appearing
in the second line thereof and (ii) substituting therefor the figure “0.35%.”
1.3 Section 1.05(f) of the LSA is hereby amended by (i) deleting such subsection in its
entirety and (ii) substituting therefor the following new section 1.05(f):
“(f) Renewal Fee. In connection with the extension of the Scheduled
Maturity Date on (i) October ___, 2006, the Borrower shall pay to the Program
Manager a renewal fee of $262,500, which amount is hereby acknowledged by the
parties hereto as earned as of the date of this Fourth Amendment and shall in all
events be paid in cash on or prior to November 1, 2006.”
1.4 Section 5.07(a) of the LSA is hereby amended by (i) deleting the date “November 1, 2006”
appearing in the third line thereof and (ii) substituting therefor the date “November 1, 2010.”
1.5 Exhibit I to the LSA is hereby amended by adding the following new defined terms, to be
inserted in their appropriate alphabetical order:
“‘Applicable Margin’ for any Interest Period, means the relevant amount, based
on the Debt/EBITDA Ratio (as defined in the RPTA) for the fiscal quarter ended
immediately prior to the commencement of such Interest Period, set forth in the
table below as the “Applicable Margin”:
| Debt/EBITDA Ratio is: | Applicable Margin: | |||
< 1.00:1.00
|
1.00 | % | ||
> 1.00:1.00 but <1.50:1.00
|
1.45 | % | ||
> 1.50:1.00 but < 2.00:1.00
|
1.75 | % | ||
> 2.00:1.00
|
2.00 | %” | ||
“‘LIBOR’ for any Interest Period, means the rate per annum established by
the Program Manager two Business Days prior to the first day of each Interest Period
based on an annualized 30-day interest rate (calculated on the basis of actual days
elapsed over a 360-day year) equal to the offered rate that appears on page 3750 of
the Dow Xxxxx Market for U.S. dollar deposits.”
1.6 Exhibit I to the LSA is hereby amended by (i) deleting the defined term “A/R Fee” thereof
and (ii) substituting therefor the following new defined term:
“‘A/R Fee’ means the account receivable tracking fee, due on the first Business
Day of each Month, in an amount equal to:
| AORA x | TD | x 0.25% | ||||
| 360 |
where:
| AORA | = | The average outstanding amount of the Revolving Loan for the prior Month, calculated as the arithmetic average of all daily balances | ||||
| TD | = | The actual amount of days in such prior Month” |
1.7 Exhibit I to the LSA is hereby amended by (i) deleting the defined term “Early Termination
Fee” thereof and (ii) substituting therefor the following new defined term:
“‘Early Termination Fee’ as a percentage of the Commitment, means (i) from
October ___, 2006 until and including November 1, 2007, 1.50%, (ii) from November 2,
2007 until and including November 1, 2008, 1.00%, (iii) from November 2, 2008 until
and including November 1, 2009, 0.50%, and (iv) from November 2, 2009 until November
1, 2010, 0.25%.
1.8 The definition of “Scheduled Maturity Date” appearing in Exhibit I to the LSA is hereby
amended by (i) deleting the date“November 1, 2006” appearing in the first line thereof and (ii)
substituting therefor the date “November 1, 2010.”
1.9 Exhibit I to the LSA is hereby amended by deleting the defined term “LIBO Rate” thereof in
its entirety.
1.10 Schedule I to the LSA is hereby amended in its entirety and the Schedule I attached
hereto shall be substituted therefor.
1.11 Schedule IV to the RPTA is hereby amended by adding the following Provider Lockboxes and
Provider Lockbox Accounts:
| Provider Lockboxes | Bioscrip Pharmacy, Inc. | |||
| X.X. Xxx 000000 | ||||
| Xxxxxx Xxxx, XX 00000 | ||||
| Bioscrip Pharmacy, Inc. | ||||
| X.X. Xxx 000000 | ||||
| Xxxxxx Xxxx, XX 00000 | ||||
| Bioscrip Pharmacy, Inc. | ||||
| X.X. Xxx 000000 | ||||
| Xxxxxx Xxxx, XX 00000 | ||||
| Provider Lockbox | ||||
| Accounts: | Bioscrip Pharmacy, Inc. | |||
| Account number: | ||||
| UMB Bank | ||||
| 0000 Xxxxx Xxxxxxxxx | ||||
| X.X. Xxx 000000 | ||||
| Xxxxxx Xxxx, XX 00000-0000 | ||||
| ABA # |
| Bioscrip Pharmacy, Inc. | ||||
| Account number: | ||||
| UMB Bank | ||||
| 0000 Xxxxx Xxxxxxxxx | ||||
| X.X. Xxx 000000 | ||||
| Xxxxxx Xxxx, XX 00000-0000 | ||||
| ABA # |
SECTION 2. CONDITIONS PRECEDENT
2.1 Effective Date of this Fourth Amendment. Except as set forth in section 2.2
below, this Fourth Amendment shall become effective at such time when the following conditions have
been satisfied in full or waived in writing by the Purchaser and the Lender as its assignee:
(a) The Lender shall have received fully executed counterparts of this Fourth
Amendment; and
(b) The Lender shall have received fully executed counterparts of the amendment
to RPTA being executed on the date hereof, together with evidence of the
satisfaction of the conditions precedent set forth therein.
2.2 Effective Date of Certain Clauses. The amendments set forth in clauses 1.1, 1.2,
1.5, 1.6 and 1.9 hereof shall not be deemed effective until November 1, 2006 (with respect to each
such clause hereof, the effective date of such clause as set forth in Sections 2.1 and 2.2 hereof,
the “Effective Date”)
SECTION 3. MISCELLANEOUS
3.1 The Borrower hereby certifies, represents and warrants that, (i) except as to the matters
previously disclosed in the public filings of BioScrip, Inc. (formerly known as MIM Corporation)
the representations and warranties in the LSA 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 the date initially made,(ii) no unwaived Default or Event of
Default has occurred or is continuing (nor any event that but for notice or lapse of time or both
would constitute a Default or Event of Default, (iii) the Lender has the power and authority to
execute and deliver this Fourth 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 Fourth Amendment, other
than such that have been obtained.
3.2 The terms “Agreement”, “hereof”, “herein” and similar terms as used in the LSA shall mean
and refer to, from and after the effectiveness of this Fourth Amendment, the
LSA as amended by this Fourth Amendment, 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 LSA is hereby ratified and confirmed and shall remain in full force and effect
in accordance with its terms.
3.3 THIS FOURTH AMENDMENT 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.
3.4 This Fourth Amendment 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.
3.5 Delivery of an executed counterpart of a signature page by telecopier shall be effective
as delivery of a manually executed counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to be executed by
their respective officers thereunto duly authorized, as of the date first above written.
| MIM FUNDING LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| HFG HEALTHCO-4 LLC By: HFG Healthco-4, Inc., a member |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
SCHEDULE I
ADDRESSES FOR NOTICE
If to the Program Manager:
Healthcare Finance Group, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx, Chief Credit Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx, Chief Credit Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
If to the Master Servicer:
Healthcare Finance Group, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx, Chief Credit Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx, Chief Credit Officer
Tel: (000) 000-0000
Fax: (000) 000-0000
