Contract
EXHIBIT
10.1
FOURTH AMENDMENT, dated as of
December _, 2009 (“Fourth
Amendment”), to the AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT,
dated as of September 26, 2007 (as amended, restated, supplemented or otherwise
modified, the “LSA”),
among BioScrip Pharmacy Services, Inc. (“Pharmacy
Services”), BioScrip Infusion Services, Inc. (“Infusion Services
Inc”), BioScrip Pharmacy (NY), Inc. (“Pharmacy
(NY)”), BioScrip PBM Services, LLC (“PBM
Services”), BioScrip Pharmacy, Inc. (“Pharmacy”),
Natural Living, Inc. (“Natural
Living”), BioScrip Infusion Services, LLC (“Infusion Services
LLC) and Bradhurst Specialty Pharmacy, Inc. (“Bradhurst”,
and together with Pharmacy Services, Infusion Services Inc, Pharmacy (NY), PBM
Services, Pharmacy, Natural Living and Infusion Services LLC, each a “Borrower”
and collectively, jointly and severally, the “Borrowers”),
as borrowers, and HFG Healthco-4 LLC (together with its successors and assigns,
the “Lender”),
as the lender. Unless otherwise defined herein, terms in the LSA are
used herein as therein defined.
The Borrowers and the Lender have
agreed to amend the LSA on the terms and subject to the conditions set forth
herein.
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
LSA.
The
following amendments shall become effective as of the Effective
Date:
1.1. The
defined term “Consolidated Fixed Charge Coverage Ratio” appearing in Exhibit I
of the LSA is hereby amended by (i) deleting such defined term in its
entirety, and (ii) substituting therefor the following new defined
term:
“Consolidated
Fixed Charge Coverage Ratio” means the ratio, as determined as at the end
of each fiscal quarter of the Parent for the immediately prior 12 month period,
(x) Consolidated EBITDA of the Parent and its Subsidiaries for such period, to
(y) the sum of each of the following items to the extent paid or payable by the
Borrowers in cash during such period: (i) the current portion long-term Debt,
plus (ii) the current portion of Capital Leases, plus (iii) Consolidated Capital
Expenditures (to the extent not funded by or being acquired under permitted
purchase money loans or capital leases), plus (iv) Consolidated Interest
Expense, plus (v) taxes, plus (vi) payment of dividends, distributions,
advances, and loans to officers, Affiliates, and shareholders.
1.2. The
defined term “Debt/EBITDA Ratio” appearing in Exhibit I of the LSA is hereby
amended by adding the following proviso at the end of such defined
term:
provided, that for the
purposes of calculation of the covenant set forth in clause (v) of Exhibit V
hereto, “Debt/EBITDA Ratio” shall mean the ratio, as determined as at the end of
each fiscal quarter of the Parent, of (x) the average Debt of the Borrowers for
such fiscal quarter, calculated as the arithmetic average of all daily balances
during such fiscal quarter, to (y) Consolidated EBITDA for the immediately prior
12 months.
1.3. Exhibit
V of the LSA is hereby amended by (i) deleting clauses (t) and (u) in their
entirety, and (ii) substituting therefor the following new clauses (inserted in
their respective appropriate alphabetical locations):
(t)
Consolidated Net
Worth. The Consolidated Net Worth, calculated as at the end of
each fiscal quarter of the Parent, is less than (i) $95,000,000 minus (ii) any
and all write offs of goodwill, deferred tax assets, intangible assets and other
non-cash items as reflected in the Parent’s financial statements.
(u) Current
Ratio. The ratio of (i) Current Assets to (ii) Current
Liabilities for each Fiscal Quarter during which the principal amount of the
Revolving Loan exceeded 50% of the Borrowing Limit at any time, is less
1.10:1.00.
SECTION
2. CONDITIONS PRECEDENT
2.1. Effective Date of this
Fourth Amendment. This Fourth Amendment shall become effective
as of the date (the “Effective
Date”) at such
time when the Lender shall have received fully executed counterparts of this
Fourth Amendment.
SECTION
3. MISCELLANEOUS
3.1. The Borrowers each hereby certify,
represent and warrant that, after giving effect to this Fourth Amendment, (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 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 such date, (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 an Event of
Default), (iii) each of the Borrowers has the corporate power and authority to
execute and deliver this Fourth Amendment, and (iv) no consent of any other
person (including, without limitation, shareholders or creditors of any
Borrower), 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, in each
case, 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, nothing herein shall be deemed to be an amendment
or waiver of any covenant or agreement contained in the LSA or any other
Document and each of the parties hereto agrees that all of the covenants and
agreements and other provisions contained in the LSA and the other Documents, as
amended, waived or otherwise modified hereof, are hereby ratified and confirmed
in all respects and shall remain in full force and effect in accordance with
their terms from and after the date of this Fourth Amendment.
3.3. Parent
and Chronimed, LLC (f/k/a Chronimed Inc.) each hereby ratifies its Guarantee of
the Guaranteed Obligations (as defined in that certain Amended and Restated
Guaranty, effective as of October 1, 2007, made by Parent and Chronimed, LLC
(f/k/a Chronimed Inc.) (the “Guaranty”))
pursuant to the Guaranty and each of the Borrowers, Parent and Chronimed, LLC
(f/k/a Chronimed Inc.) hereby ratifies its grant of a security interest made
under the Documents.
3.4. This
Fourth Amendment shall constitute a Document under the LSA
3.5. 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.
3.6. The
captions in this Fourth Amendment are for convenience of reference only, are not
part of this Fourth Amendment and shall not affect the construction of, or be
taken into consideration in interpreting, this Fourth Amendment.
3.7. Any
provision of this Fourth Amendment held to be invalid, illegal or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such invalidity, illegality or unenforceability without affecting the
validity, legality and enforceability of the remaining provisions hereof, and
the invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
3.8. 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.
3.9. Delivery of an executed counterpart of
a signature page by telecopier, .pdf or similar electronic transmission 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.
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BIOSCRIP
INFUSION SERVICES, INC.
By:
______________________________
Name:
Title:
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BIOSCRIP
PHARMACY SERVICES, INC.
By:
______________________________
Name:
Title:
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BIOSCRIP
PBM SERVICES, LLC
By:
______________________________
Name:
Title:
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BIOSCRIP
PHARMACY (NY), INC.
By: ______________________________
Name:
Title:
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NATURAL LIVING,
INC.
By:
______________________________
Name:
Title:
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BIOSCRIP
PHARMACY, INC.
By:
______________________________
Name:
Title:
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BIOSCRIP
INFUSION SERVICES, LLC
By:
______________________________
Name:
Title:
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BRADHURST
SPECIALTY PHARMACY, INC.
By:
______________________________
Name:
Title:
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Solely
with respect to Section 3.3 hereof:
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By:
______________________________
Name:
Title:
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CHRONIMED,
LLC (f/k/a Chronimed Inc.)
By:
______________________________
Name:
Title:
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HFG
HEALTHCO-4 LLC,
as
Lender
By: HFG
Healthco-4, Inc., a member
By:
_____________________________
Name:
Title:
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