EX-10.1



 





Exhibit 10.1




     EIGHTH AMENDMENT, effective as of December 29, 2006 (“Eighth Amendment”), to the
RECEIVABLES PURCHASE AND TRANSFER AGREEMENT, dated as of November 1, 2000 (as amended, the “RPTA”),
among BIOSCRIP PBM SERVICES, LLC (as successor to MIM Health Plans, Inc.), a Delaware corporation
(together with its corporate successors and assigns, “BioScrip”, and in its capacity as primary
servicer thereunder, the “Primary Servicer”), each of the parties named on Schedule I to the RPTA
(each, including BioScrip, a “Provider” and collectively, the “Providers”), and MIM FUNDING LLC, a
Delaware limited liability company (together with its successors and assigns, the “Purchaser”) and
consented to by HFG HEALTHCO-4 LLC (the “Lender”), as assignee of the Purchaser. Unless otherwise
defined herein, terms in the RPTA are used herein as therein defined.



     The Primary Servicer and the Providers have requested that the Purchaser agree to amend a
provision of the RPTA and that the Lender consent to such amendment.



     The Purchaser is willing to agree to the amendment requested by the Primary Servicer and the
Providers subject to the terms and 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 RPTA. Effective as of the Effective Date (as defined below), the
RPTA is hereby amended as follows:



     1.1 Paragraph (s) of Exhibit V to the RPTA is hereby amended by:




     (a) deleting clause (iii) contained therein in its entirety and substituting
therefor the following




“(iii) any increase to Consolidated Net Worth resulting from any reversals
in such fiscal quarter of (x) bad debt reserves or other reserves or asset
write offs (other than those contained in clause (y) below) previously taken
prior to the quarter ended September 30, 2006 by Parent (on a consolidated
basis) and (y) deferred tax asset write-offs taken at any time by Parent (on
a consolidated basis), plus”; and




     (b) amending clause (v) contained therein by inserting the phrase “, deferred
tax assets” following the phrase “write offs of goodwill” in the second to last line
thereof.



     SECTION 2. CONDITIONS PRECEDENT



     2.1 Effective Date of this Eighth Amendment. This Eighth Amendment shall become
effective as of the date listed above (the “Effective Date”) at such time when the Purchaser and
the Lender shall have received fully executed counterparts of this Eighth Amendment.



 









 





     SECTION 3. MISCELLANEOUS



     3.1 The Providers each hereby certify, represent and warrant that (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 RPTA 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 Event of Termination, a
Group-Wide Event of Termination, a Servicer Termination Event or a Group-Wide Servicer Event of
Termination or would constitute such an Event of Termination, Group-Wide Event of Termination,
Servicer Termination Event or Group-Wide Servicer Event of Termination has occurred or is
continuing (nor any event that but for notice or lapse of time or both would constitute an Event of
Termination, a Group-Wide Event of Termination, a Servicer Termination Event or a Group-Wide
Servicer Event of Termination or would constitute such an Event of Termination, Group-Wide Event of
Termination, Servicer Termination Event or Group-Wide Servicer Event), (iii) each of the Providers
and the Primary Servicer, as applicable, has the corporate power and authority to execute and
deliver this Eighth Amendment, and (iv) no consent of any other person (including, without
limitation, shareholders or creditors of any Provider), 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 Eighth 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 RPTA shall mean
and refer to, from and after the effectiveness of this Eighth Amendment, the RPTA as amended by
this Eighth 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 RPTA is
hereby ratified and confirmed and shall remain in full force and effect in accordance with its
terms.



     3.3 THIS EIGHTH 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 Eighth 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 Eighth Amendment to be executed by
their respective officers thereunto duly authorized, as of the date first above written.



	 	 	 	 	 
	PROVIDERS: 	BIOSCRIP PBM SERVICES, LLC (as successor to 

MIM Health Plans, Inc.)

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	BIOSCRIP PHARMACY SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	BIOSCRIP INFUSION SERVICES, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	BIOSCRIP PHARMACY (NY), INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	BIOSCRIP PHARMACY, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





	 	 	 	 	 
	 	NATURAL LIVING, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	 	BIOSCRIP INFUSION SERVICES, LLC

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




 









 





	 	 	 	 	 
	PURCHASER: 	MIM FUNDING LLC

 	 
	 	By:  	

 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 
	PRIMARY SERVICER: 	BIOSCRIP PBM SERVICES, LLC (as successor to

MIM Health Plans, Inc.)

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 	 	 
	CONSENTED TO:



BIOSCRIP, INC. (f/ka/ MIM CORPORATION)

 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 
	HFG HEALTHCO-4 LLC
 	 	 
	By:  	HFG Healthco-4, Inc., a member
 	 	 
	 	 	 	 
	 	 	 
	By:  	 	 	 
	 	Name:  	 	 	 
	 	Title: