Contract
Exhibit 10.1
SIXTH AMENDMENT, dated as of June ___, 2006 (“Sixth 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 Sixth Amendment, the “RPTA”), among BIOSCRIP PBM SERVICES, LLC (as
successor to MIM Health Plans, Inc.), a Delaware corporation (together with its corporate
successors and assigns, “BioScrip”, and in its capacity as primary servicer thereunder, the
"Primary Servicer”), each of the parties named on Schedule I hereto (each, including BioScrip, 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.
The Parent and certain of the Providers party to the Original RPTA previously have changed
their legal names to the names appearing on Schedule I
hereto (the “Name Changes”).
The Primary Servicer has requested Additions of BioScrip Infusion Services, Inc., BioScrip
Pharmacy, Inc., JPD, Inc. and Natural Living, Inc. (collectively, the
“Additional Providers”) as
additional Providers under the RPTA.
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. AMENDMENTS TO RPTA
1.1 Schedule I to the Original RPTA is hereby amended and restated in its entirety to read as
set forth in Schedule I attached hereto.
1.2 The defined term of “Parent” appearing in Exhibit I to the RPTA is hereby amended by
deleting such defined term in its entirety and substituting therefor the following:
“Parent” means BioScrip, Inc.
SECTION 2. CERTAIN REPRESENTATIONS
2.1 The Primary Servicer and the Providers each represents and warrants that the names of the
parties and the respective jurisdictions listed on Schedule I hereto are the full, complete and
correct legal names and legal jurisdictions of such parties. Each of the parties hereto
acknowledge and agree that the parties listed on Schedule I hereto are all of the Providers under
the RPTA as of the date hereof. The Primary Servicer and the Providers each hereby
authorizes the Purchaser to file one or more financing statements or continuation statements
or amendments thereto or assignments thereof which may at any time be required or, in the opinion
of the Purchaser, be desirable, in order to create and/or maintain in favor of the Lender a first
priority perfected security interest in the Collateral (as defined in the Loan Agreement) of each
Provider and to do so without the signature of such Provider where permitted by law.
2.2 The Providers each hereby certify, represent and warrant that (i) except as otherwise
disclosed in public filings made by the Parent with the United States Securities and Exchange
Commission, 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 Sixth Amendment, and (iv) no consent of any other person (including, without
limitation, shareholders or creditors of any Provider), 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 Sixth Amendment, other than, in each case,
such that have been obtained.
SECTION 3. CONDITIONS PRECEDENT
3.1 This Sixth Amendment shall not become effective until the following conditions have been
satisfied in full or waived in writing by the Purchaser and the Lender as its assignee:
(a) All required corporate and limited liability company actions in connection with the
execution and delivery of this Sixth Amendment and the Name Changes shall have been taken,
and each shall be satisfactory in form and substance to the Lender, and the Lender shall
have received all information and copies of all documents, including, without limitation,
records of requisite corporate and limited liability company action that the Lender may
reasonably request, to be certified by the appropriate corporate or limited liability
company person or government authorities;
(b) Fully executed counterparts of this Sixth Amendment have been delivered to the
Purchaser and the Lender;
(c) The Additional Providers shall have entered into the Subscription Agreement
substantially in the form of Exhibit A hereto.
SECTION 4. MISCELLANEOUS
4.1 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 Sixth Amendment, the RPTA as amended by this
Sixth 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 RPTA is
hereby ratified and confirmed and shall remain in full force and effect in accordance with its
terms.
4.2 THIS SIXTH 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.
4.3 This Sixth 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.
4.4 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 Sixth Amendment to be executed by
their respective officers thereunto duly authorized, as of the date first above written.
| PROVIDERS: | BIOSCRIP PBM SERVICES, LLC (as successor to MIM Health Plans, Inc.) | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| BIOSCRIP PHARMACY SERVICES, INC. | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| BIOSCRIP INFUSION SERVICES, INC. | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| BIOSCRIP PHARMACY (NY), INC. | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| BIOSCRIP PHARMACY, INC. | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| JPD, INC. | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| NATURAL LIVING, INC. | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| BIOSCRIP INFUSION SERVICES, LLC | ||||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| PURCHASER: | MIM FUNDING LLC | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| PRIMARY SERVICER: | BIOSCRIP PBM SERVICES, LLC (as successor to MIM Health Plans, Inc.) | |||||||
| By: | ||||||||
| Name: | ||||||||
| Title: | ||||||||
| CONSENTED TO: | ||||||
| BIOSCRIP, INC. (f/ka/ MIM CORPORATION) | ||||||
By: |
||||||
| Name: | ||||||
| Title: | ||||||
| HFG HEALTHCO-4 LLC | ||||||
| By: HFG Healthco-4, Inc., a member | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
SCHEDULE I
LIST OF PROVIDERS
| Name | Jurisdiction of Organization | |
| Delaware | ||
BioScrip Pharmacy Services, Inc.
|
Ohio | |
BioScrip Infusion Services, Inc.
|
California | |
BioScrip Pharmacy (NY), Inc.
|
New York | |
BioScrip PBM Services, LLC
|
Delaware | |
BioScrip Pharmacy, Inc.
|
Minnesota | |
JPD, Inc.
|
Ohio | |
Natural Living, Inc.
|
New York | |
BioScrip Infusion Services, LLC
|
Delaware |
EXHIBIT A
Form of Subscription Agreement
