**Exhibit 10.37**

 

 

**FOURTH AMENDMENT TOCREDIT AND SECURITY AGREEMENT**

 

This **FOURTHAMENDMENT TO CREDIT AND SECURITY AGREEMENT** (this “Amendment”), datedas of October 23, 2003, is by and among Option Care, Inc., a Delawarecorporation (“Option Care”) and its domestic subsidiaries party hereto(collectively with Option Care, the “Borrowers”), the Lenders party hereto andJPMorgan Chase Bank, as administrative and collateral agent (the “Agent”).

 

**W**** I T N E S S E T H :**

 

WHEREAS,the Borrowers, the Lenders and the Agent are parties to that certain Credit andSecurity Agreement, dated as of March 29, 2002 (the “Credit Agreement”);

 

WHEREAS,the Borrowers have indicated that because of certain reserves and/or write-offsof uncollectible receivables reflected in the financial results of theBorrowers, the Borrowers will not be in compliance with the Fixed ChargeCoverage Ratio covenant set forth in Section 9.02 of the Credit Agreementfor the Fiscal Quarter ending September 30, 2003 and for any fiscal periodthereafter which includes such Fiscal Quarter;

 

WHEREAS,the Borrowers have requested that the Agent and the Required Lenders agree tomodify the definition of Fixed Charged Coverage Ratio set forth inSection 1.01 of the Credit Agreement;

 

WHEREAS,the Agent and the Required Lenders have agreed to modify Section 1.01 ofthe Credit Agreement on the terms and subject to the conditions providedherein;

 

NOW,THEREFORE, in consideration of the premises and the mutual agreements containedin this Amendment, the Borrowers, the Required Lenders and the Agent herebyagree as follows:

 

1.                                       CapitalizedTerms.  Capitalized terms usedherein shall have the meanings set forth in the Credit Agreement.

 

2.                                       Amendmentto Definition of Fixed Charge Coverage Ratio.  The definition of “Fixed Charge Coverage Ratio” set forth inSection 1.01 of the Credit Agreement is hereby amended by inserting thefollowing clause immediately after clause (b)(iii) of such definition:

 

“,*provided,however,* that for the Fiscal Quarter ending September 30, 2003and for any fiscal period thereafter which includes such Fiscal Quarter, theBorrowers shall be permitted to add to the numerator of such ratio an amountequal to the lesser of (x) the actual amount of non-cash losses resulting fromaccounts receivable reserves and/or write-offs recognized by the Borrowersduring such Fiscal Quarter with respect to certain uncollectible receivables ofthe Borrowers and (y) $7,000,000.”

 

3.                                       Waiver.  The Borrowers have informed the Agent thatthey wish to dissolve Home Care of Columbia, Inc. (“Home Care of Columbia”),a Missouri corporation and subsidiary of Option Care Enterprises, Inc., aDelaware corporation.  The Borrowershave represented to the Agent that Home Care of Columbia (i) no longer conductsbusiness and (ii) does not own or hold any property or assets.  Based upon such representations, the Agentand the Required Lenders hereby waive the provisions of Sections 8.02 and10.01(e)(3) to the extent necessary to permit the Borrowers to dissolve HomeCare of Columbia.

 

4.                                       Effectiveness.  This Amendment shall be not deemed effectiveuntil the Agent receives duly executed copies of this Amendment from theRequired Lenders and the Borrowers.

 

5.                                       Representationsand Warranties; Events of Default. Each Borrower hereby represents and warrants to the Agent and eachLender that to such Borrower’s knowledge: (i) except as otherwise disclosed in the schedules attached to theCredit Agreement, all of the representations and warranties of the Borrowersset forth in the Credit Agreement are true and correct in all material respectswith the same force and effect as if made on and as of the date of thisAmendment; (ii) there exists no Default or Event of Default; and (iii) nomaterial litigation proceedings or investigations relating to any of theBorrowers are pending.

 

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6.                                       Miscellaneous.

 

(a)          TheCredit Agreement, as amended by this Amendment, and each of the other FacilityDocuments shall remain in full force and effect and are hereby ratified andconfirmed in all respects.  Theexecution, delivery and effectiveness of this Amendment shall not operate as awaiver of any right, power or remedy of the Agent or the Lenders under theFacility Documents, nor constitute a waiver of any provision of the FacilityDocuments except as specifically set forth herein.

 

(b)         Eachof the Borrowers hereby ratifies, affirms, acknowledges and agrees that theCredit Agreement and the other Facility Documents represent the valid,enforceable and collectible obligations of each Borrower, and each Borrowerfurther acknowledges that there are no existing claims, defenses, personal orotherwise, or rights of setoff whatsoever with respect to the Credit Agreementor any of the other Facility Documents. Each Borrower hereby agrees that this Amendment in no way acts as arelease or relinquishment of the Liens securing the Obligations, and such Liensare hereby ratified and confirmed by each Borrower in all respects.

 

(c)          THISAMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCEWITH, THE LAWS OF THE STATE OF NEW YORK.

 

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INWITNESS WHEREOF, the parties have caused this Fourth Amendment to Credit andSecurity Agreement to be executed and delivered by their proper and dulyauthorized officers as of the date first above written.

 
|   | **BORROWERS**                                                  |
|--------|----------------------------------------------------------------|
|   |                                                           |
|   | **OPTION CARE, INC.,  a Delaware corporation,**                |
|   | **OPTION CARE, INC.,  a California corporation**               |
|   | **MANAGEMENT BY  INFORMATION, INC.**                           |
|   | **OPTION CARE HOME  HEALTH OF CALIFORNIA, INC.**               |
|   | **OPTION CARE OF  OKLAHOMA, INC.**                             |
|   | **OPTIONET, INC.**                                             |
|   | **HOME HEALTH OF  OPTION CARE, INC.**                          |
|   | **OPTION CARE  ENTERPRISES, INC., a Delaware corporation**     |
|   | **HOME CARE OF  COLUMBIA, INC.**                               |
|   | **OPTION CARE  HOSPICE, INC.**                                 |
|   | **OPTION CARE  ENTERPRISES, INC., a Pennsylvania corporation** |
|   | **OPTION CARE OF  DENVER, INC.**                               |
|   | **OPTION HOME HEALTH,  INC.**                                  |
|   | **OPTIONMED, INC.**                                            |
|   | **EXCEL HEALTHCARE,  L.L.C.**                                  |
|   | **REHAB OPTIONS, INC.**                                        |
|   | **NORTH COUNTY HOME  I.V., INC.**                              |
|   | **SPRINGVILLE  PHARMACY INFUSION**                             |
|   | **THERAPY, INC.**                                              |
|   | **INFUSION  SPECIALTIES, INC.**                                |
|   | **OPTION CARE OF NEW  YORK, INC.**                             |
|   | **OPTION CARE ENTERPRISES  OF NEW YORK, INC.**                 |
|   |                                                           |
|   | By:                                                            |   |   |
|   |                                                           |   |   |
|   |                                                           | Name: | Richard M.  Smith |
|   |                                                           | Title: | President  and Chief Operating Officer |
|   |                                                           |   |   |
|   | By:                                                            |   |   |
|   |                                                           |   |   |
|   |                                                           | Name: | Joseph P.  Bonaccorsi |
|   |                                                           | Title: | Secretary |
|        |                                                                |  |  |  |

 

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|   | **OPTION CARE HOME HEALTH, L.L.C.**                    |
|--------|--------------------------------------------------------|
|   |                                                   |   |
|   | By:                                                    |   |   |
|   |                                                   |   |
|   | Name:                                                  | Richard M.  Smith |
|   | Title:                                                 | President  and Chief Operating Officer |
|   |                                                   |   |
|   | By:                                                    |   |   |
|   |                                                   |   |
|   | Name:                                                  | Joseph P.  Bonaccorsi |
|   | Title:                                                 | Secretary |
|   |                                                   |   |
|   | By  Option  Care Enterprises, Inc., a member |
|   |                                                   |   |
|   | By:                                                    |   |   |
|   |                                                   |   |
|   | Name:                                                  | Richard M.  Smith |
|   | Title:                                                 | President  and Chief Operating Officer |
|   |                                                   |   |
|   | By:                                                    |   |   |
|   |                                                   |   |
|   | Name:                                                  | Joseph P.  Bonaccorsi |
|   | Title:                                                 | Secretary |
|   |                                                   |   |
|   |                                                   |   |
|   | **CLINICAL RESOURCE NETWORK, INC.**                    |
|   |                                                   |   |
|   | By:                                                    |   |   |
|   |                                                   |   |   |
|   |                                                   |  Name: | Gail Adinamis |
|   |                                                   |  Title: | President |
|   |                                                   |   |
|   | By:                                                    |   |   |
|   |                                                   |   |   |
|   |                                                   |  Name: | Joseph Bonaccorsi |
|   |                                                   |  Title: | Secretary |
|        |                                                        |  |  |  |

 

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|   | **AGENT AND LENDER:**                                                                          |   |
|--------|------------------------------------------------------------------------------------------------|--------|
|   |                                                                                           |   |
|   |                                                                                           |   |
|   | **JPMORGAN CHASE  BANK, in its capacities as Administrative and  Collateral Agent and Lender** |
|   |                                                                                           |   |
|   |                                                                                           |   |
|   | By:                                                                                            |   |   |
|   |                                                                                           |   |
|   | Name:                                                                                          |   |
|   |                                                                                           |   |
|   | Title:                                                                                         |   |
|        |                                                                                                |        |  |  |

 

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|   | **ADDITIONAL LENDERS:**                |   |
|--------|----------------------------------------|--------|
|   |                                   |   |
|   |                                   |   |
|   | **LASALLE BANK  NATIONAL ASSOCIATION** |
|   |                                   |   |
|   | By:                                    |   |   |
|   |                                   |   |
|   | Name:                                  |   |
|   |                                   |   |
|   | Title:                                 |   |
|        |                                        |        |  |  |

 

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|   | **WEBSTER BANK** |   |
|--------|------------------|--------|
|   |             |   |
|   |             |   |
|   | By:              |   |   |
|   |             |   |
|   | Name:            |   |
|   |             |   |
|   | Title:           |   |
|        |                  |        |  |  |

 

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