EXHIBIT 99.1
SECOND AMENDMENT, dated as of March 1, 2006 ("SECOND 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 Provider and the Purchaser wish to amend the LSA to increase the
Revolving Commitment thereunder.
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 Effective Date, Section 1.02(a) of the Original
LSA is hereby amended by (i) deleting the figure "$45,000,000" appearing on the
second line thereof, and (ii) substituting therefor the figure "$65,000,000".
SECTION 2. CONDITIONS PRECEDENT
This Second 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 Lender shall have received fully executed counterparts of
this Second Amendment;
(b) The Lender shall have received fully executed counterparts of
the waiver to the RPTA being executed on the date hereof; and
(c) The Program Manager shall have shall have received the fee
contemplated under Section 1.02(d) of the Loan Agreement with respect to the
increase of the Revolving Commitment effectuated hereunder in immediately
available funds.
SECTION 3. MISCELLANEOUS
3.1 The Borrower hereby certifies, represents and warrants that,
except as to the matters previously disclosed in the public filings of BioScrip,
Inc. (formerly known as MIM Corporation) (i) 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 Second 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
Second 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 Second Amendment, the LSA as amended by this Second 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 SECOND 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 Second 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Second
Amendment to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
MIM FUNDING LLC
By: /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: EVP and General Counsel
HFG HEALTHCO-4 LLC
By: HFG Healthco-4, Inc., a member
By: /s/ Xxxxx Xxxxx
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Name:
Title:
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