Contract
EXHIBIT
10.1
THIRD
AMENDMENT, dated as of August 11, 2008 (“Third 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.
1.1. Effective as of the Effective Date, Section 1.02(a) of the LSA is hereby amended by (i)
deleting the figure “$75,000,000” appearing on the second line thereof, and (ii) substituting
therefor the figure “$85,000,000”.
SECTION 2. CONDITIONS PRECEDENT
2.1. Effective Date of this Third Amendment. This Third Amendment shall become
effective as of the date (the “Effective Date”) at such time when:
(a) the Lender shall have received fully executed counterparts of this Third
Amendment; and
(b) the Lender shall have received the fee contemplated under Section 1.02(d)
of the LSA with respect to the increase of the Revolving Commitment effectuated
hereunder in immediately available funds.
SECTION 3. MISCELLANEOUS
3.1. The Borrowers each hereby certify, represent and warrant that, after giving effect to
this Third 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 Third 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 Third 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 Third Amendment, the LSA as amended by this
Third 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 Third 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 Third Amendment shall constitute a Document under the LSA
3.5. THIS THIRD 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 Third Amendment are for convenience of reference only, are not part
of this Third Amendment and shall not affect the construction of, or be taken into consideration in
interpreting, this Third Amendment.
3.7. Any provision of this Third 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 Third 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 Third Amendment to be executed by
their respective officers thereunto duly authorized, as of the date first above written.
| BIOSCRIP INFUSION SERVICES, INC. | BIOSCRIP PHARMACY SERVICES, INC. | |||||||||
By:
|
By: | |||||||||
| Name: | Name: | |||||||||
| Title: | Title: | |||||||||
| BIOSCRIP PBM SERVICES, LLC | BIOSCRIP PHARMACY (NY), INC. | |||||||||
By:
|
By: | |||||||||
| Name: | Name: | |||||||||
| Title: | Title: | |||||||||
| NATURAL LIVING, INC. | BIOSCRIP PHARMACY, INC. | |||||||||
By:
|
By: | |||||||||
| Name: | Name: | |||||||||
| Title: | Title: | |||||||||
| BIOSCRIP INFUSION SERVICES, LLC | BRADHURST SPECIALTY PHARMACY, INC. | |||||||||
By:
|
By: | |||||||||
| Name: | Name: | |||||||||
| Title: | Title: | |||||||||
| Solely with respect to Section 3.3 hereof: | ||||||||||
| BIOSCRIP, INC. | CHRONIMED, LLC (f/k/a Chronimed Inc.) | |||||||||
By:
|
By: | |||||||||
| Name: | Name: | |||||||||
| Title: | Title: | |||||||||
| HFG HEALTHCO-4 LLC, | ||||||||||
| as Lender | ||||||||||
| By: HFG Healthco-4, Inc., a member | ||||||||||
By: |
||||||||||
| Name: | ||||||||||
| Title: | ||||||||||
