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Exhibit 10.1
SECOND AMENDMENT , dated as of July 21, 2008 ("
Second 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. Effective as of the Effective
Date (as defined below), the LSA is hereby amended as follows:
1.1.
The definition of "Debt/EBITDA Ratio" contained in Exhibit I
to the LSA is amended by (i) deleting clause (x) thereof in
its entirety and (ii) replacing therefor the following new
clause (x): "(x) the average Debt of the Borrowers for such fiscal
quarter, calculated as the arithmetic average of all daily balances
during such quarter, to".
1.2.
Section 1.03 of the LSA is hereby amending by adding the
following phrase immediately following the words "proposed Funding
Date of such Revolving Advance," in the third line thereof: "or if
such Revolving Advance is in an amount in excess of $10,000,000,
one Business Day prior to such proposed Funding Date,"
SECTION 2. CONDITIONS PRECEDENT
2.1.
Effective Date of this Second Amendment. This Second
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
Second Amendment; and
(b) the
Lender shall have received, in form and substance reasonably
satisfactory to the Lender fully executed deposit account control
agreements from Bank of America, N.A.
SECTION 3. MISCELLANEOUS
3.1.
The Borrowers each hereby certify, represent and warrant that,
after giving effect to this Second Amendment, (i) except as
otherwise disclosed in public filings made by the Paren
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