EX-10.1



 







Exhibit 10.1




          THIRD AMENDMENT, dated as of July ___, 2006 (“Third Amendment”), to the LOAN AND SECURITY
AGREEMENT, dated as of November 1, 2000 (as amended, the “LSA”), between MIM FUNDING LLC, a
Delaware limited liability company (together with its successors and assigns, the “Purchaser”) and
HFG HEALTHCO-4 LLC (the “Lender”). Unless otherwise defined herein, terms in the LSA are used
herein as therein defined.



          The Provider and the Purchaser wish to amend the LSA to increase the Revolving Commitment
thereunder.



          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. AMENDMENT TO LSA




          Effective as of the Effective Date, Section 1.02(a) of the LSA is hereby amended by (i)
deleting the figure “$65,000,000” appearing on the second line thereof, and (ii) substituting
therefor the figure “$75,000,000”.



          SECTION 2. CONDITIONS PRECEDENT




          This Third Amendment shall not become effective (the “Effective Date”) until the following
conditions have been satisfied in full or waived in writing by the Purchaser and the Lender as its
assignee:




          (a) The Lender shall have received fully executed counterparts of this Third Amendment;
and




          (b) The Program Manager shall have 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 Borrower hereby certifies, represents and warrants that, (i) except as to the matters
previously disclosed in the public filings of BioScrip, Inc. (formerly known as MIM Corporation)
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 the date initially made,(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 Event of Default, (iii) the Lender has the power and authority to
execute and deliver this Third Amendment, and (iv) no consent of any other person 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 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, the LSA is hereby
ratified and confirmed and shall remain in full force and effect in accordance with its terms.



          3.3 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.



          3.4 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.



          3.5 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 Third Amendment to be executed by
their respective officers thereunto duly authorized, as of the date first above written.



	 	 	 	 	 
	 	MIM FUNDING LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	HFG HEALTHCO-4 LLC

By: HFG Healthco-4, Inc., a member

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title: