BioScrip, Inc.
[EXECUTION COPY
000
Xxxxxxxxxx Xxxx.
Xxxxxxxx,
Xxx Xxxx 00000
July 8,
0000
Xxxx xx
Xxxxxxx, N.A.
000
Xxxxxxx Xxxxxx
MA5-100-07-08
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
Xxxxx X.X. Alto
Re: Cash
Collateral Agreement re Standby Letters of Credit
Ladies
and Gentlemen:
Reference
is hereby made to that certain letter agreement, dated as of the date hereof (as
amended and in effect from time to time, the “L/C Agreement”), between
BioScrip, Inc. and Bank of America, N.A. (“Bank of America” or
“you”),
pursuant to which Bank of America has agreed to issue, amend and renew Standby
Letters of Credit (all such Standby Letters of Credit so issued, amended or
renewed thereunder being hereinafter referred to as the “Credits”) for the
account of BioScrip, Inc. and its subsidiaries (collectively, “we” or “us”), in an aggregate
face amount at any one time not to exceed $5,000,000, and all as more
particularly set forth therein. All of our obligations owing by us to
you hereunder or arising under or in respect of the L/C Agreement (including any
L/C Application delivered under and as defined in the L/C Agreement) or any
Credit, whether now existing or hereafter arising, contingent or otherwise, are
hereinafter referred to, collectively, as the “Obligations”. In
connection with the Obligations, we hereby agree, and request your agreement, as
follows:
The Cash Collateral
Account. In accordance with the requirements of the L/C
Agreement, as collateral security for the Obligations, we will from time to time
furnish to you cash sums to be deposited into an interest bearing account with
you entitled “BioScrip, Inc. Loan Collateral”, Account # 406923 (the “Cash Collateral
Account”). We agree that some or all of the funds from time to
time in the Cash Collateral Account may be invested by you in time deposits,
including, without limitation, certificates of deposit issued by you (such
certificates of deposit or other time deposits being hereinafter referred to,
collectively, as “Time
Deposits”), which are satisfactory to you after consultation with
us. Interest earned on the Cash Collateral Account and on the Time
Deposits, and the principal of the Time Deposits at maturity which is not
invested in new Time Deposits, shall be deposited in the Cash Collateral
Account.
Withdrawal Rights
Limited. In the event that the cash sums plus the then fair
market value of the Time Deposits maintained in the Cash Collateral Account
exceed the sum of (a) the then aggregate undrawn amount of all outstanding
Credits, (b) all unreimbursed obligations with respect to any drawings under the
Credits and (c) all other Obligations then due and owing by us
(such
excess, as determined by Bank of America in its reasonable discretion, being
referred to herein as the "Release Amount"), we may
thereafter, upon five (5) days prior written notice to you (and upon your
confirmation of the Release Amount, which shall occur no later than fifth
business day after your receipt of such notice), withdraw from the Cash
Collateral Account such portions of the cash sums and Time Deposits as we may
designate with a fair market value equal to the Release Amount (or such smaller
amount as may be requested by us). Except as otherwise expressly set
forth in the immediately preceding sentence, we shall have no right to withdraw
any sums in the Cash Collateral Account or any Time Deposits or any proceeds of
any thereof or to ask you to part with physical possession of any of the
evidences of Time Deposits constituting instruments.
Security
Interest. In order to secure our payment and performance in
full of all of the Obligations, we hereby assign to you and grant to you a
security interest in and lien upon the Cash Collateral Account, all of the sums
from time to time in the Cash Collateral Account, the Time Deposits, if any, and
in any and all proceeds of any thereof, whether now or hereafter existing or
arising. Upon our failure to pay any of the Obligations as and when
due and payable, then, without any demand or notice of any kind, you shall have
the rights and remedies of a secured party under the Uniform Commercial Code of
the Commonwealth of Massachusetts and, in addition, you shall be entitled to
debit the Cash Collateral Account in the amount of such Obligations in default
and, to the extent that the amount of such Obligations in default exceeds the
balance of the Cash Collateral Account, you may collect or redeem any Time
Deposits issued by you for application to such Obligations, with any withdrawal
penalties on any Time Deposits being considered a collection expense to be added
to such Obligations.
Authorization to File Financing
Statement. You are hereby authorized to file in any Uniform
Commercial Code filing office a financing statement naming us as the debtor and
indicating the collateral as the Cash Collateral Account, all of the sums from
time to time in the Cash Collateral Account, the Time Deposits, if any, and in
any and all proceeds of any thereof, whether now or hereafter existing or
arising. You may indicate some or all of the collateral on the
financing statement, whether generally or specifically.
Liens of Third
Parties. We hereby agree that the Cash Collateral Account, the
Time Deposits, if any, and in any and all proceeds of any thereof, whether now
or hereafter existing or arising, shall not be subject to any lien or security
interest in favor of any person other than you unless and to the extent the
person or entity holding any such lien or security interest shall have waived
such lien or security interest on or prior to the date hereof.
No Commitment to Extend or Renew the
Credit. Except as otherwise specifically set forth in the L/C
Agreement, nothing contained in this Agreement shall constitute a commitment on
your part further to extend or renew the Credit or otherwise to grant any
additional credit facilities to us or to any of our subsidiaries or other
affiliates.
Governing
Law. This Agreement shall be governed by the law of the
Commonwealth of Massachusetts and shall be construed as a sealed instrument
under such law.
Execution. This
Agreement may be executed in any number of counterparts and by different parties
hereto in separate counterparts, each of which when so executed shall
be
deemed to
be an original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to
this Agreement by telecopier (or electronic mail (including in PDF format))
shall be effective as delivery of a manually executed counterpart of this
Agreement.
[Remainder of Page Left Intentionally
Blank]
If you
agree to and accept the foregoing, please so indicate by executing and returning
to us the enclosed duplicate of this letter.
Very
truly yours,
By:_____________________________
Name: Xxxxxxx
X. Xxxxxx
Title: Vice
President Finance
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Mailing
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Xxxxxxxxxx Xxxx
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Xxxxxxxx,
Xxx Xxxx 00000
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Attention:
Xxxxx Xxxxxx
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Type
of organization:
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Corporation
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Jurisdiction
of organization:
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DE
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Organizational
identification number or statement that none exists
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FEIN:
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ACCEPTED
and AGREED as of
July 8,
0000
XXXX XX
XXXXXXX, N.A.
By:
Name:
Title:
