exv10w4







Exhibit 10.4



EXECUTION
VERSION




     This INTERCREDITOR AGREEMENT, dated as of March 25, 2010 (this “Agreement”), is between
Jefferies Finance LLC, as agent for the First Priority Secured Parties (as defined below) (in such
capacity, the “First Priority Agent”), and AmerisourceBergen Drug Corporation, a Delaware
corporation (“ABDC”).



PRELIMINARY STATEMENT




     Reference is made to (a) the credit agreement, dated as of March 25, 2010 (as amended,
supplemented or otherwise modified from time to time in accordance with the terms thereof, the
“First Priority Debt Agreement”), among BioScrip, Inc., a Delaware corporation (the “Company”), the
lenders from time to time party thereto (the “First Priority Creditors”), the subsidiary guarantors
of the Company from time to time party thereto, Jefferies Finance LLC, as lead arranger, as book
manager, as administrative agent for the First Priority Creditors and as collateral agent for the
First Priority Secured Parties, ING Capital LLC, as syndication agent, Compass Bank, as a
co-documentation agent, General Electric Capital Corporation, a co-documentation agent, Healthcare
Finance Group, LLC, as collateral manager and issuing bank for the First Priority Creditors, and
HFG Healthco-4, LLC, as swingline lender for the First Priority Creditors, (b) the security
agreement, dated as of March 25, 2010 (as amended, supplemented or otherwise modified from time to
time in accordance with the terms thereof, the “First Priority Security Agreement”), among the
Company, the subsidiaries of the Company from time to time party thereto, and the First Priority
Agent, (c) the other Loan Documents as defined, and referred to, in the First Priority Debt
Agreement, and (d) the prime vendor agreement, dated as of July 1, 2009 (as amended, supplemented
or otherwise modified from time to time in accordance with the terms hereof, the “Prime Vendor
Agreement”), between by ABDC and the Company and certain subsidiaries of the Company.



RECITALS




     A. Pursuant to the Prime Vendor Agreement, the Grantors (as hereinafter defined) granted ABDC
a lien in all of their existing and future inventory and accounts and proceeds thereof (including
insurance proceeds).



     B. The First Priority Creditors have agreed to make loans and other extensions of credit to
the Company pursuant to the First Priority Debt Agreement (in an aggregate committed principal
amount, as of the Closing Date, of $150,000,000, subject to the terms and conditions contained
therein and in the other Loan Documents) on the condition, among others, that the First Priority
Claims (such term and each other capitalized term used but not defined in the preliminary statement
or these recitals having the meaning given it in Article I) shall be secured by first
priority Liens on, and security interests in, substantially all of the assets of the Company
(including the Collateral), and that the priority of the Liens securing the First Priority Claims
be senior and prior to the Liens securing the Second Priority Claims.



     C. ABDC has agreed to the subordination of Liens securing the Company’s obligations under the
Second Priority Financing Documents to the Liens securing the First Priority Claims, upon the terms
and subject to the conditions set forth in this Agreement.



     D. The First Priority Debt Agreement requires, among other things, that the First Priority
Collateral Agent and ABDC set forth in this Agreement, among other things, their respective rights,
obligations and remedies with respect to the Collateral.



 









 





     Accordingly, the parties hereto agree as follows:



ARTICLE I




Definitions



          SECTION 1.01. Certain Defined Terms. Capitalized terms used in this Agreement and not otherwise
defined herein shall, except to the extent the context otherwise requires, have the meanings set
forth in the First Priority Debt Agreement (as in effect on the date hereof) or the First Priority
Security Agreement (as in effect on the date hereof), as applicable.




          SECTION 1.02. Other Defined Terms. As used in this Agreement, the following terms shall have the
meanings specified below:




     “Agreement” shall have the meaning assigned to such term in the preamble hereto.



     “Bankruptcy Code” shall mean Title 11 of the United States Code entitled “Bankruptcy,” as now
and hereinafter in effect, or any successor statute.



     “Bankruptcy Law” shall mean the Bankruptcy Code and any other Federal, state or foreign
bankruptcy, insolvency, receivership or similar law.



     “Collateral” shall mean, collectively, all Second Priority Collateral that is (or purports to
be or, pursuant to the terms hereof or any of the First Priority Debt Documents, is required to be)
part of the First Priority Collateral.



     “Company” shall have the meaning assigned to such term in the preliminary statement to this
Agreement.



     “Debt Documents” shall mean the First Priority Debt Documents and the Second Priority
Financing Documents.



     “DIP Financing” shall have the meaning assigned to such term in Section 5.01(a).



     “DIP Financing Liens” shall have the meaning assigned to such term in Section 5.01(a).



     “Discharge of First Priority Claims” shall mean, subject to Sections 6.01 and
6.02, (a) payment in full in cash of the principal of and interest (including interest
accruing during the pendency of any Insolvency or Liquidation Proceeding, regardless of whether
allowed or allowable in such Insolvency or Liquidation Proceeding) and premium, if any, on all
Indebtedness outstanding under the First Priority Debt Documents to the extent constituting First
Priority Claims, (b) payment in full in cash of all other First Priority Claims that are due and
payable or otherwise accrued and owing at or prior to the time such principal and interest are
paid, (c) cancellation of or the entry into collateralization arrangements satisfactory to the
First Priority Agent and the Issuing Bank with respect to all Letters of Credit issued and
outstanding under the First Priority Debt Agreement, and (d) the termination or expiration of all
commitments to lend and all obligations to issue or extend Letters of Credit under the First
Priority Debt Agreement; provided, further, that, with respect to each First Priority Creditor’s
First Priority
Claims, the acceptance by such First Priority (in its absolute discretion) of non-cash
consideration in exchange for its First Priority Claims (or applicable specified portion thereof),
coupled with a written acknowledgment of discharge in form and substance satisfactory to such First
Priority



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Creditor, shall also constitute, subject to Section 6.02, a Discharge of First
Priority Claims only with respect to such exchanged First Priority Claims relating to such First
Priority Creditor.




     “Discharge of Second Priority Claims” shall mean, subject to Section 6.02, payment in
full in cash of all Indebtedness outstanding under the Second Priority Financing Documents to the
extent constituting Second Priority Claims and the termination of all Second Priority Financing
Documents.



     “Disposition” shall mean any sale, lease, exchange, transfer or other disposition. “Dispose”
shall have a correlative meaning.



     “First Priority Agent” shall have the meaning assigned to such term in the preamble to this
Agreement.



     “First Priority Claims” shall mean (i) the due and punctual payment of (A) the principal of
and interest (including interest accruing during the pendency of any Insolvency or Liquidation
Proceeding, regardless of whether allowed or allowable in such proceeding) on the loans and other
advances outstanding under the First Priority Debt Agreement, whether at maturity, by acceleration,
upon one or more dates set for prepayment or otherwise, (B) each payment required to be made by the
Company under the First Priority Debt Agreement in respect of any Letter of Credit, including
payments in respect of reimbursement of disbursements, interest thereon and obligations to provide
cash collateral, and (C) all other monetary obligations of the Company to any of the First Priority
Secured Parties under the First Priority Debt Agreement and each of the other First Priority Debt
Documents, including fees (including any early termination or prepayment fees), costs, expenses
(including fees and expenses of counsel) and indemnities, whether primary, secondary, direct,
contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any
Insolvency or Liquidation Proceeding, regardless of whether allowed or allowable in such
proceeding), (ii) the due and punctual performance of all other obligations of the Company under or
pursuant to the First Priority Debt Agreement and each of the other First Priority Debt Documents,
and (iii) the due and punctual payment and performance of all the obligations of each other Grantor
under or pursuant to the First Priority Debt Agreement and each of the other First Priority Debt
Documents.



     “First Priority Collateral” shall mean, collectively, all “Collateral”, as defined in each of
the First Priority Debt Agreement and/or in any other First Priority Debt Document, including all
property of any Grantor now or at any time hereafter subject to Liens securing any First Priority
Claims.



     “First Priority Creditors” shall have the meaning assigned to such term in the preliminary
statement of this Agreement.



     “First Priority Debt Agreement” shall have the meaning assigned to such term in the
preliminary statement of this Agreement.



     “First Priority Debt Documents” shall mean the “Loan Documents” as defined in the First
Priority Debt Agreement.



     “First Priority Liens” shall mean all Liens on the First Priority Collateral securing the
First Priority Claims, whether created under the First Priority Security Documents or acquired by
possession, statute (including any judgment lien), operation of law, subrogation or otherwise.



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     “First Priority Secured Parties” shall mean, at any time, (a) the First Priority Creditors,
(b) the First Priority Agent, (d) the Issuing Bank, (e) each other Person to whom any of the First
Priority Claims is owed (including any Affiliate of a First Priority Creditor to whom any First
Priority Claims of the type described in clause (b) of the definition thereof is owed) and (f) the
successors and assigns of each of the foregoing.



     “First Priority Security Agreement” shall have the meaning assigned to such term in the
preliminary statement of this Agreement.



     “First Priority Security Documents” shall mean the First Priority Debt Agreement, the First
Priority Security Agreement and any other agreement, document or instrument pursuant to which a
Lien is granted by any Grantor to secure any First Priority Claims or under which rights or
remedies with respect to any such Lien are governed.



     “Grantors” shall mean the Company and each of its Subsidiaries that shall have created or
purported to create any First Priority Lien or Second Priority Lien on all or any part of its
assets to secure any First Priority Claims or any Second Priority Claims, and each other Person
that shall have created or purported to create any First Priority Lien or Second Priority Lien on
all or any part of its assets to secure any First Priority Claims or any Second Priority Claims.



     “Guarantors” shall mean, collectively, each Grantor that has guaranteed, or that may from time
to time hereafter guarantee, the First Priority Claims or the Second Priority Claims, whether by
executing and delivering the First Priority Debt Agreement, the First Priority Security Agreement,
the Second Priority Financing Agreement and a supplement thereto or otherwise.



     “Indebtedness” shall mean and includes all obligations that constitute “Indebtedness” as
defined in the First Priority Debt Agreement.



     “Insolvency or Liquidation Proceeding” shall mean (a) any voluntary or involuntary proceeding
under the Bankruptcy Code or any other Bankruptcy Law with respect to any Grantor, (b) any
voluntary or involuntary appointment of a receiver, trustee, custodian, sequestrator, conservator
or similar official for any Grantor or for a substantial part of the property or assets of any
Grantor, (c) any voluntary or involuntary winding-up or liquidation of any Grantor, or (d) a
general assignment for the benefit of creditors by any Grantor.



     “Issuing Bank” shall mean the “Issuing Lender” as defined in the First Priority Debt
Agreement.



     “Letter of Credit” shall mean a “Letter of Credit” as defined in the First Priority Debt
Agreement.



     “Lien” shall mean, with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the interest
of a vendor or a lessor under any conditional sale agreement, capital lease or title retention
agreement (or any financing lease having substantially the same economic effect as any of the
foregoing) relating to such asset and (c) in the case of securities, any purchase option, call or
similar right of a third Person with respect to such securities.



     “Liquidation Sale” shall mean a so-called bulk sale, liquidation sale or “going out of
business sale” conducted either by any Secured Party or a Grantor in respect to all or a
substantial portion of such Grantor’s Collateral following the occurrence and during the
continuance of a



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Default or an Event of Default under, and as defined in, either the First Priority
Debt Documents or Second Priority Financing Documents.




     “New First Priority Agent” shall have the meaning assigned to such term in Section
6.01.



     “New First Priority Claims” shall have the meaning assigned to such term in Section
6.01.



     “New First Priority Debt Documents” shall have the meaning assigned to such term in
Section 6.01.



     “Pledged or Controlled Collateral” shall have the meaning assigned to such term in Section
6.04.



     “Refinance” shall mean, in respect of any Indebtedness, to refinance, extend, renew,
restructure (including by the amendment and restatement of any instrument or agreement evidencing
such Indebtedness) or replace or to issue other Indebtedness in exchange or replacement for, such
Indebtedness, in whole or in part. “Refinanced” and “Refinancing” shall have correlative meanings.



     “Refinancing Notice” shall have the meaning assigned to such term in Section 6.01.



     “Release” shall have the meaning assigned to such term in Section 3.04.



     “Second Priority Financing Documents” shall mean the Prime Vendor Agreement and any other
agreement, instrument, certificate or other document pursuant to which any Grantor grants (or
purports to grant) a security interest in or a Lien on any property of any Grantor now or at any
time hereafter.



     “Second Priority Claims” shall mean all Indebtedness of the Grantors under the Second Priority
Financing Documents.



     “Second Priority Collateral” shall mean, collectively, all “Collateral”, as defined in the
Prime Vendor Agreement, including all property of any Grantor now or at any time hereafter subject
to Liens securing any Second Priority Claims; provided, that as of the date hereof, the “Second
Priority Collateral” shall, exclusively, be comprised of all assets of Grantors described in
Recital A of this Agreement, wherever located, now owned or hereafter acquired or arising.



     “Second Priority Creditors” shall mean AmerisourceBergen Drug Corporation, a Delaware
corporation, and its successors and assigns.



     “Second Priority Liens” shall mean all Liens on the Second Priority Collateral securing the
Second Priority Claims created under the Second Priority Financing Documents or acquired by
assignment, and shall not include any judgment Liens acquired through the exercise by ABDC of any
rights or remedies as an unsecured creditor (except to the extent, and only to the extent, that
such judgment Liens relate to, or are applicable to, the Second Priority Collateral).



     “Second Priority Permitted Actions” shall have the meaning assigned to such term in
Section 3.01(a).



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     “Second Priority Secured Parties” shall mean, at any time, (a) the Second Priority Creditors,
(b) each other Subsidiary or Affiliate of any Second Priority Creditor to whom any of the Second
Priority Claims (including indemnification obligations) is owed and (c) the successor and assigns
of each of the foregoing.



     “Secured Parties” shall mean, as the context may require, the First Priority Secured Parties
and/or the Second Priority Secured Parties.



     “Uniform Commercial Code” or “UCC” shall mean the Uniform Commercial Code (or any similar or
equivalent legislation) as in effect from time to time in any applicable jurisdiction.



          SECTION 1.03. Terms Generally. The definitions of terms herein shall apply equally to the singular
and plural forms of the terms defined. Whenever the context may require, any pronoun shall include
the corresponding masculine, feminine and neuter forms. The words “include”, “includes” and
“including” shall be deemed to be followed by the phrase “without limitation.” The word “will”
shall be construed to have the same meaning and effect as the word “shall”. Unless the context
requires otherwise (a) any definition of or reference to any agreement, instrument or other
document herein shall be construed as referring to such agreement, instrument or other document as
from time to time amended, restated, supplemented or otherwise modified, (b) any reference herein
(i) to any Person shall be construed to include such Person’s successors and assigns and (ii) to
the Company or any other Grantor shall be construed to include the Company or such Grantor as
debtor and debtor-in-possession and any receiver or trustee for the Company or any other Grantor,
as the case may be, in any Insolvency or Liquidation Proceeding or Liquidation Sale, (c) the word
“remedies” shall be construed to refer to all remedies (whether at law, equity or otherwise,
including under contract (including netting, set-off or similar remedies), statute or regulation or
otherwise, (d) the words “herein”, “hereof” and “hereunder”, and words of similar import, shall be
construed to refer to this Agreement in its entirety and not to any particular provision hereof,
(e) all references herein to Articles or Sections shall be construed to refer to Articles or
Sections of this Agreement and (f) the words “asset” and “property” shall be construed to have the
same meaning and effect and to refer to any and all tangible and intangible assets and properties,
including cash, securities, accounts and contract rights.




ARTICLE II




Lien Priorities



          SECTION 2.01. Relative Priorities. Notwithstanding the date, manner or order of grant, attachment
or perfection of any Second Priority Lien and any First Priority Lien, and notwithstanding any
provision of the UCC or any other applicable law or the provisions of any First Priority Debt
Agreement, First Priority Security Agreement or Second Priority Financing Agreement or any other
circumstance whatsoever, the parties hereby agree that so long as the Discharge of First Priority
Claims has not occurred, (i) any First Priority Lien (to the extent perfected) on any Collateral
now or hereafter held by or for the benefit of any First Priority Secured Party shall be senior in
right, priority, operation, effect and all other respects to any and all Second Priority Liens on
any Collateral, and
(ii) any Second Priority Lien on any Collateral now or hereafter held by or for the benefit of any
Second Priority Secured Party shall be junior and subordinate in right, priority, operation, effect
and all other respects to any and all First Priority Liens (to the extent perfected) on any
Collateral, and the First Priority Liens (to the extent perfected) on any Collateral shall be and
remain senior in right, priority, operation, effect and all other respects to any Second Priority
Liens on any Collateral for all purposes, whether or





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not any First Priority Liens on any Collateral
are subordinated in any respect to any other Lien held by any Person (other than the Second
Priority Secured Parties) securing any other obligation of the Company, any other Grantor or any
other Person; provided, however, for the avoidance of doubt, nothing herein contained shall be
deemed a subordination in right of payment of the Second Priority Claims to the First Priority
Claims.




          SECTION 2.02. Prohibition on Contesting Liens. ABDC, for itself and on behalf of the other Second
Priority Secured Parties, hereby agrees that it will not, and hereby waives any right to, contest
or support any other Person in contesting, in any proceeding (including any Insolvency or
Liquidation Proceeding), the priority, validity or enforceability of any First Priority Lien. First
Priority Agent, for itself and on behalf of the other First Priority Secured Parties, hereby agrees
that it will not, and hereby waives any right to, contest, or support any other Person in
contesting, in any proceeding (including any Insolvency or Liquidation Proceeding) the priority
(subject to the terms hereof governing relative priorities) validity or enforceability of any
Second Priority Lien.




          SECTION 2.03. Common Collateral. The parties hereto acknowledge and agree that it is their
intention that the Second Priority Collateral be included within the First Priority Collateral and
that, without limiting the foregoing, no portion of the Second Priority Collateral shall not be a
part of the First Priority Collateral. In furtherance of the foregoing, the parties hereto agree
to cooperate in good faith in order to determine, upon any reasonable request by the First Priority
Agent or ABDC, the specific assets included in the First Priority Collateral and the Second
Priority Collateral, the steps taken to perfect the First Priority Liens and the Second Priority
Liens thereon and the identity of the respective parties obligated under the First Priority Debt
Documents and the Second Priority Financing Documents in respect of the First Priority Claims and
the Second Priority Claims, respectively and, to the extent that any portion of the Second Priority
Collateral is not included within the First Priority Collateral at any time, without limiting any
other right or remedy available to the First Priority Agent or the other First Priority Secured
Parties, ABDC, for itself and on behalf of the other Second Priority Secured Parties, agrees that
any amounts received by or distributed to any Second Priority Secured Party pursuant to or as a
result of any Lien in such Second Priority Collateral shall be subject to Section 4.02. In
addition, in furtherance of the foregoing, without the prior written consent of the First Security
Priority Agent, no Second Priority Financing Document may be amended, supplemented or otherwise
modified, or entered into, to the extent such amendment, supplement or modification, or the terms
of such new Second Priority Financing Document, would (i) contravene the provisions of this
Agreement or (ii) increase, expand or otherwise add to the Second Priority Collateral.




ARTICLE III




Enforcement of Rights; Matters Relating to Collateral



          SECTION
3.01. Exercise of Rights and Remedies.  (a) So long as the Discharge of First Priority Claims has not occurred, whether or not any
Insolvency or Liquidation Proceeding or Liquidation Sale has been commenced, the First Priority
Agent and the other First Priority Secured Parties shall have the exclusive right to enforce rights
and exercise remedies with respect to the Collateral (including making determinations regarding the
release, Disposition or restrictions with respect to the Collateral), or to commence or seek to
commence any action or proceeding with respect to such rights or remedies (including any
foreclosure action or proceeding or any Insolvency or Liquidation Proceeding or Liquidation Sale),
in each case,





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without any consultation with or the consent of any Second Priority Secured Party
except as required pursuant to applicable law; provided that, notwithstanding the foregoing, (i) in
any Insolvency or Liquidation Proceeding, the Second Priority Secured Parties may file a proof of
claim or statement of interest with respect to the Second Priority Claims; (ii) the Second Priority
Secured Parties may take any action to preserve or protect the validity and enforceability of the
Second Priority Liens, provided that no such action is, or could reasonably be expected to be, (A)
materially adverse to the First Priority Liens or the rights of the First Priority Secured Parties
as secured creditors or any other First Priority Secured Party to exercise remedies as secured
creditors in respect thereof or (B) otherwise inconsistent with the terms of this Agreement,
including the automatic release of Second Priority Liens provided in Section 3.04; (iii)
the Second Priority Secured Parties may file any responsive or defensive pleadings in opposition to
any motion, claim, adversary proceeding or other pleading made by any Person objecting to or
otherwise seeking the disallowance of the claims of the Second Priority Secured Parties, including
any claims secured by the Collateral or otherwise make any agreements or file any motions
pertaining to the Second Priority Claims, in each case, to the extent not inconsistent with the
terms of this Agreement; (iv) the Second Priority Secured Parties may exercise rights and remedies
as unsecured creditors, as provided in Section 3.03(a); and (v) subject to Section
3.02(a), the Second Priority Agent and the other Second Priority Secured Parties may enforce
any of their rights and exercise any of their remedies with respect to the Collateral after the
termination of the Standstill Period (the actions described in this proviso being referred to
herein as the “Second Priority Permitted Actions”). Except for the Second Priority Permitted
Actions, unless and until the Discharge of First Priority Claims has occurred, the sole right of
the Second Priority Secured Parties with respect to the Collateral shall be to receive the proceeds
of the Collateral, if any, remaining after the Discharge of First Priority Claims has occurred and
in accordance with the Second Priority Financing Documents and applicable law.




          (b) In exercising rights and remedies with respect to the Collateral, subject to
applicable law (including all provisions of the UCC applicable thereto), the First Priority Agent
and the other First Priority Secured Parties may enforce the provisions of the First Priority Debt
Documents and exercise remedies thereunder, all in such order, without notice (except as required
by applicable law (including all provisions of the UCC applicable thereto)) to any Second Priority
Secured Creditor and in such manner as they may determine in their sole discretion (provided that,
without limiting the foregoing, the First Priority Agent shall use its commercially reasonable
efforts to provide ABDC with subsequent notice thereof). Such exercise and enforcement shall
include the rights of an agent appointed by them to Dispose of Collateral upon foreclosure, to
incur expenses in connection with any such Disposition and to exercise all the rights and remedies
of a secured creditor under and in accordance with the Uniform Commercial Code, the Bankruptcy Code
or any other Bankruptcy Law.



          (c) In exercising rights and remedies with respect to the Collateral, the Second
Priority Secured Parties may enforce the provisions of the Second Priority Financing Documents and
exercise remedies thereunder, all in such order and in such manner as they may determine in their
sole discretion, in each case, to the extent that such enforcement or exercise is
not otherwise prohibited by clauses (a) through (c) of this Section 3.01. Such
exercise and enforcement shall, in each case, to the extent that such enforcement or exercise is
not otherwise prohibited by clauses (a) through (c) of this Section 3.01, include the
rights of an agent appointed by them to Dispose of Collateral upon foreclosure, to incur expenses
in connection with any such Disposition and to exercise all the rights and remedies of a secured
creditor under the Uniform Commercial Code, the Bankruptcy Code or any other Bankruptcy Law. ABDC
agrees to provide at least 5 Business Days’ prior written notice to the First Priority Agent of its
intention to



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foreclose upon or Dispose of any Collateral; provided, however, that the failure to
give any such notice shall not in any way limit its ability to foreclose upon or Dispose of any
Collateral to the extent that such foreclosure is not otherwise prohibited by clauses (a) through
(d) of this Section 3.01.




          SECTION 3.02. No Interference. ABDC, for itself and on behalf of the other Second Priority Secured
Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding or Liquidation Sale
has been commenced, the Second Priority Secured Parties:




          (a) except for Second Priority Permitted Actions, will not, so long as the Discharge of First
Priority Claims has not occurred, (A) enforce or exercise, or seek to enforce or exercise, any
rights or remedies with respect to any Collateral (including the enforcement of any right under any
account control agreement, landlord waiver or bailee’s letter or any similar agreement or
arrangement to which any Second Priority Secured Party is a party) or (B) commence or join with any
Person (other than the First Priority Agent) in commencing, or petition for or vote in favor of any
resolution for, any action or proceeding with respect to such rights or remedies (including any
foreclosure action); provided, however, that none of the Second Priority Secured Parties may
enforce or exercise any or all such rights and remedies, or commence, join with any Person in
commencing, or petition for or vote in favor of any resolution for, any such action or proceeding,
after a period of 90 days has elapsed (which period shall be tolled during any period in which the
First Priority Agent shall not be entitled to enforce or exercise any rights or remedies with
respect to any Collateral as a result of (x) any injunction issued by a court of competent
jurisdiction or (y) the automatic stay or any other stay in any Insolvency or Liquidation
Proceeding) since the date on which ABDC has delivered to the First Priority Agent written notice
of an uncured default under the Prime Vending Agreement (the “Standstill Period”); provided
further, however, that (1) notwithstanding the expiration of the Standstill Period or anything
herein to the contrary, in no event shall ABDC or any other Second Priority Secured Party enforce
or exercise any rights or remedies with respect to any Collateral, or commence, join with any
Person at any time in commencing, or petition for or vote in favor of any resolution for, any such
action or proceeding, if the First Priority Agent or any other First Priority Secured Party shall
have commenced, and shall be diligently pursuing (or shall have sought or requested relief from or
modification of the automatic stay or any other stay in any Insolvency or Liquidation Proceeding to
enable the commencement and pursuit thereof), the enforcement or exercise of any rights or remedies
with respect to any Collateral or any such action or proceeding (prompt written notice thereof to
be given to the Second Priority Agent by the First Priority Agent) and (2) after the expiration of
the Standstill Period, so long as neither the First Priority Agent nor the First Priority Secured
Parties have commenced any action to enforce their Lien on any material portion of the Collateral,
in the event that and for so long as the Second Priority Secured Parties (or ABDC on their behalf)
have commenced any actions to enforce their Lien with respect to any Collateral to the extent
permitted hereunder and are diligently pursuing such actions, neither the First Priority Secured
Parties nor the First Priority Agent shall take any
action of a similar nature with respect to such Collateral; provided that all other provisions
of this Agreement (including the turnover provisions of Article IV) are complied with;



          (b) will not contest, protest or object to any foreclosure action or proceeding brought by the
First Priority Agent or any other First Priority Secured Party, or any other enforcement or
exercise by any First Priority Secured Party of any rights or remedies relating to the Collateral
under the First Priority Debt Documents or an Insolvency or Liquidation Proceeding or in connection
with a Liquidation Sale or otherwise, so long as Second Priority Liens attach to the proceeds
thereof subject to the relative priorities set forth in Section 2.01(a),



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and will not contest, protest or object to the forbearance by the First Priority Agent or any other First
Priority Secured Party from commencing or pursuing any foreclosure action or proceeding or any
other enforcement or exercise of any rights or remedies with respect to the Collateral.



In furtherance of the foregoing, ABDC, for itself and on behalf of the other Second Priority
Secured Parties, agrees that, whether or not any Insolvency or Liquidation Proceeding or
Liquidation Sale has been commenced, the Second Priority Secured Parties will not, except for
Second Priority Permitted Actions, (w) take or receive any Collateral, or any proceeds thereof or
payment with respect thereto, in connection with the exercise of any right or enforcement of any
remedy with respect to any Collateral or in connection with any insurance policy award under a
policy of insurance relating to any Collateral or any condemnation award (or deed in lieu of
condemnation) relating to any Collateral, (x) take any action that would, or could reasonably be
expected to, hinder, in any manner, any exercise of remedies under the First Priority Debt
Documents, including any Disposition of any Collateral, whether by foreclosure or otherwise and (y)
object to the manner in which the First Priority Agent or any other First Priority Secured Party
may seek to enforce or collect the First Priority Claims or the First Priority Liens, regardless of
whether any action or failure to act by or on behalf of the First Priority Agent or any other First
Priority Secured Party is, or could be, adverse to the interests of the Second Priority Secured
Parties, and will not assert, and hereby waive, to the fullest extent permitted by law, any right
to demand, request, plead or otherwise assert or claim the benefit of any marshalling, appraisal,
valuation or other similar right that may be available under applicable law with respect to the
Collateral or any similar rights a junior secured creditor may have under applicable law, and (z)
will not attempt, directly or indirectly, whether by judicial proceeding or otherwise, to challenge
or question the validity or enforceability of any First Priority Claim or any First Priority
Security Document, including this Agreement, or the validity or enforceability of the priorities,
rights or obligations established by this Agreement.




          SECTION 3.03. Rights as Unsecured Creditors. The Second Priority Secured Parties may, in
accordance with the terms of the Second Priority Financing Documents and applicable law, enforce
rights and exercise remedies against any Grantor as unsecured creditors; provided that no such
action is otherwise inconsistent with the terms of this Agreement. Without limiting the generality
of the foregoing sentence, the Second Priority Secured Parties shall be entitled to prosecute
litigation against any Grantor or any other Person liable in respect of the Second Priority Claims
but shall be prohibited from taking any action to enforce any judgment relating to, or applicable
to, any of the Second Priority Collateral until the Discharge of the First Priority Claims.
Nothing in this Agreement shall prohibit the receipt by any Second Priority Secured Party of the
required payments of any amounts due under the Second Priority Financing Documents so long as such
receipt is not the direct or indirect result of the enforcement of Second Priority Liens or
exercise in contravention of this Agreement by any Second Priority Secured Party of rights or
remedies as a secured creditor against
Collateral or enforcement in contravention of this Agreement of any Second Priority Lien against
Collateral (including any judgment lien resulting from the exercise of remedies available to an
unsecured creditor to the extent relating to, or applicable to, any of the Second Priority
Collateral).




          SECTION 3.04. Automatic Release of Second Priority Liens. If, in connection with (i) any
Disposition of any Collateral permitted under the terms of the First Priority Debt Documents or
(ii) the enforcement or exercise of any rights or remedies with respect to the Collateral,
including any Disposition of Collateral, the First Priority Agent, for itself and on behalf of the
other First Priority Secured Parties, (x) releases any of the First Priority Liens, or (y) releases
any Guarantor from its obligations under its guarantee of the First Priority




10









 







Claims (in each case,
a “Release”), other than any such Release granted following (and not as a condition to) the
Discharge of First Priority Claims, then the Second Priority Liens on such Collateral (to the
extent, and only to the extent, subject to the release pursuant to preceding clause (x)), and the
obligations of such Guarantor under its guarantee of the Second Priority Claims (to the extent, and
only to the extent, to the release of the applicable Guarantor pursuant to preceding clause (y)),
shall be automatically, unconditionally and simultaneously released (subject to the receipt by the
First Priority Agent of any applicable cash proceeds of any such Disposition or sums realized in
enforcement or exercise of any rights or remedies with respect to the Second Priority Collateral
and the application thereof in accordance with the terms of this Agreement), and ABDC shall, for
itself and on behalf of the other Second Priority Secured Parties, promptly execute and deliver to
the First Priority Agent, the relevant Grantor or such Guarantor such termination statements,
releases and other documents as the First Priority Agent or the relevant Grantor or Guarantor may
reasonably request and provide to effectively confirm such Release. For the avoidance of doubt, all
proceeds of any Disposition of Collateral or other enforcement or exercise of any rights or
remedies with respect to the Collateral received by any Secured Party shall be subject the to
application of proceeds requirements of Section 4.01 and, until application in accordance
therewith, each Secured Party agrees, subject to applicable law, to hold the same in express trust
for such Secured Party (or Secured Parties) as are entitled thereto in accordance with the terms
hereof. Until the Discharge of First Priority Claims occurs, any ABDC, for itself and on behalf of
any other Second Priority Secured Party, hereby appoints the First Priority Agent, and any officer
or agent of the First Priority Agent, with full power of substitution, as the attorney-in-fact of
each Second Priority Secured Party for the purpose of carrying out the provisions of this
Section 3.04 and taking any action and executing any instrument that the First Priority
Agent may deem necessary or advisable to accomplish the purposes of this Section 3.04
(including any endorsements or other instruments of transfer or release), which appointment is
irrevocable and coupled with an interest.




          SECTION 3.05. Insurance and Condemnation Awards. So long as the Discharge of First Priority Claims
has not occurred, the First Priority Agent and the other First Priority Secured Parties shall have
the exclusive right, subject to the rights of the Grantors under the First Priority Debt Documents,
to settle and adjust claims in respect of Collateral under policies of insurance covering
Collateral and to approve any award granted in any condemnation or similar proceeding, or any deed
in lieu of condemnation, in respect of the Collateral, provided that all the other provisions of
this Agreement are complied with in regard thereto. All proceeds of any such policy and any such
award, or any payments with respect to a deed in lieu of condemnation, shall (a) first, prior to
the Discharge of First Priority Claims and subject to the rights of the Grantors under the First
Priority Debt Documents, be paid to the First
Priority Agent for the benefit of First Priority Secured Parties pursuant to the terms of the First
Priority Debt Documents, (b) second, after the Discharge of First Priority Claims and subject to
the rights of the Grantors under the Second Priority Financing Documents, be paid to the Second
Priority Secured Parties pursuant to the terms of the Second Priority Financing Documents, and (c)
third, be paid to the owner of the subject property or as a court of competent jurisdiction may
otherwise direct. Until the Discharge of First Priority Claims has occurred, if any Second
Priority Secured Party shall, at any time, receive any proceeds of any such insurance policy or any
such award or payment, it shall transfer and pay over such proceeds to the First Priority Agent in
accordance with Section 4.02.



          SECTION 3.06. Notification of Release of Collateral. Each of the First Priority Agent and ABDC
shall give the other prompt written notice of the Disposition by it of, and Release by it of the
Lien on, any Collateral. Such notice shall describe in reasonable detail the subject Collateral,
the parties involved in such Disposition or Release, the place, time manner





11









 







and method thereof, and
the consideration, if any, received therefor; provided, however, that the failure to give any such
notice shall not in and of itself in any way impair the effectiveness of any such Disposition or
Release.




ARTICLE IV




Payments



          SECTION 4.01. Application of Proceeds. Any Collateral or proceeds thereof received by any Secured
Party in connection with any Disposition of, or collection on, such Collateral upon the enforcement
or exercise of any right or remedy shall be applied as follows:





     first, to the payment in full of the First Priority Claims and the costs and
reasonable out-of-pocket expenses of the First Priority Agent in connection with such
enforcement or exercise, and




     second, after all such costs and expenses have been paid in full and the Discharge of
First Priority Claims has occurred, to the payment of the Second Priority Claims.


After all such costs and expenses have been paid in full, the Discharge of First Priority Claims
has occurred and the Discharge of Second Priority Claims has occurred, any surplus Collateral or
proceeds then remaining shall be returned to the applicable Grantor or to whosoever may be lawfully
entitled to receive the same or as a court of competent jurisdiction may direct.




          SECTION 4.02. Payment Over. So long as the Discharge of First Priority Claims has not occurred,
any Collateral or any proceeds thereof (together with assets or proceeds subject to Liens referred
to in the final sentence of Section 2.03) received by any Second Priority Secured Party in
connection with any Disposition of, or collection on, such Collateral upon the enforcement or the
exercise of any right or remedy with respect to the Collateral, or in connection with any insurance
policy claim or any condemnation award (or deed in lieu of condemnation), shall be segregated and
held in trust and
forthwith transferred or paid over to the First Priority Agent for the benefit of the First
Priority Secured Parties in the same form as received, together with any necessary endorsements, or
as a court of competent jurisdiction may otherwise direct. Until the Discharge of First Priority
Claims occurs, ABDC, for itself and on behalf of each other Second Priority Secured Party, hereby
appoints the First Priority Agent, and any officer or agent of the First Priority Agent, with full
power of substitution, the attorney-in-fact of each Second Priority Secured Party for the purpose
of carrying out the provisions of this Section 4.02 and taking any action and executing any
instrument that the First Priority Agent may deem necessary or advisable to accomplish the purposes
of this Section 4.02, which appointment is irrevocable and coupled with an interest.
Nothing herein contained shall be deemed to prohibit any Second Priority Secured Party from
receiving and retaining the purchase price paid to such Second Priority Secured Party in the
ordinary course of business for Goods sold to any Grantor in the ordinary course of business.





12









 








ARTICLE V




Insolvency or Liquidation Proceedings



          SECTION 5.01. Bankruptcy Finance and Section 363 Matters.  (a) In furtherance of this Agreement,
until the Discharge of First Priority Claims has occurred, the ABDC, on behalf of itself and each
of the Second Priority Secured Parties, agrees that, in the event of any Insolvency or Liquidation
Proceeding, the Second Priority Secured Parties: (i) will not oppose or object to the use of any
Collateral constituting cash collateral under Section 363 of the Bankruptcy Code, or any comparable
provision of any other Bankruptcy Law, unless the First Priority Secured Parties, or a
representative authorized by the First Priority Secured Parties, shall oppose or object to such use
of cash collateral; (ii) (A) will not oppose or object to any post-petition financing provided to
any Grantor, whether provided by the First Priority Secured Parties or any other Person, under
Section 364 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law (a “DIP
Financing”), or the Liens securing any DIP Financing (“DIP Financing Liens”), unless the First
Priority Secured Parties, or a representative authorized by the First Priority Secured Parties,
shall then oppose or object to such DIP Financing or such DIP Financing Liens, (B) to the extent
that (x) such DIP Financing Liens are senior to, or rank pari passu with, the First Priority Liens
on the Collateral, and/or (y) the First Priority Claims are included as obligations under such DIP
Financing or are repaid with proceeds of the DIP Financing, the Second Priority Secured Parties
will subordinate the Second Priority Liens on the Collateral to the First Priority Liens on the
Collateral, if applicable, and the DIP Financing Liens (including if the First Priority Claims are
(x) included as obligations under such DIP Financing and/or (y) are repaid with proceeds of the DIP
Financing) on the terms of this Agreement; and (C) will not propose or support any DIP Financing to
any Grantor; (iii) not propose, vote in favor of, or otherwise support any plan of reorganization
that is inconsistent with the priorities or other provisions of this Agreement; (iv) except to the
extent permitted by paragraph (b) of this Section 5.01, in connection with the use of cash
collateral as described in clause (i) above or a DIP Financing, will not request adequate
protection with respect to any Collateral or any other relief in connection with such use of cash
collateral, DIP Financing or DIP Financing Liens; and (v) will not oppose or object to any
Disposition of any Collateral free and clear of the Second Priority Liens or other claims under
Section 363 of the Bankruptcy Code, or any comparable provision of any other Bankruptcy Law, if the
First Priority Secured Parties, or a representative authorized by the First Priority Secured
Parties, shall consent to such Disposition.




          (b) The Second Secured Parties agree that they shall not, and shall not support any
other Person in contesting, (i) any request by the First Priority Agent or any other First Priority
Secured Party for adequate protection in respect of any First Priority Claims or (ii) any
objection, based on a claim of a lack of adequate protection with respect of any First Priority
Claims, by the First Priority Agent or any other First Priority Secured Party to any motion,
relief, action or proceeding.




          SECTION 5.02. Additional Bankruptcy Matters. The Second Priority Secured Parties agree that, so
long as the Discharge of First Priority Claims has not occurred, no Second Priority Secured Party
shall, without the prior written consent of the First Priority Agent, seek or request relief from
or modification of the automatic stay or any other stay in any Insolvency or Liquidation Proceeding
in respect of any part of the Collateral, any proceeds thereof or any Second Priority Lien on the
Collateral. If, in any Insolvency or Liquidation Proceeding, debt obligations of the reorganized
debtor secured by Liens upon any property of the reorganized debtor are distributed, pursuant to a
plan of reorganization or similar dispositive





13









 







restructuring plan, on account of the First Priority
Claims and the Second Priority Claims, then, to the extent the debt obligations distributed on
account of the First Priority Claims and on account of the Second Priority Claims are secured by
Liens upon the same assets or property, the provisions of this Agreement will survive the
distribution of such debt obligations pursuant to such plan and will apply with like effect to the
Liens securing such debt obligations. In addition, ABDC, for itself and on behalf of the other
Second Priority Secured Parties, (x) agrees that no Second Priority Secured Party shall oppose or
seek to challenge any claim by the First Priority Agent or any other First Priority Secured Party
for allowance in any Insolvency or Liquidation Proceeding of First Priority Claims consisting of
post-petition interest, fees or expenses to the extent of the value of the First Priority Liens (it
being understood and agreed that such value shall be determined without regard to the existence of
the Second Priority Liens on the Collateral), (y) waives any claim any Second Priority Secured
Party may hereafter have against any First Priority Secured Party arising out of (a) the election
by any First Priority Secured Party of the application of Section 1111(b)(2) of the Bankruptcy
Code, or any comparable provision of any other Bankruptcy Law, or (b) any use of cash collateral or
financing arrangement, or any grant of a security interest in the Collateral, in any Insolvency or
Liquidation Proceeding and (z) agrees that, without the written consent of First Priority Agent, it
will not seek to vote with the First Priority Agent (or any other First Priority Secured Party) as
a single class in connection with any plan of reorganization in any Insolvency or Liquidation
Proceeding. In addition, other than with respect to the Second Priority Permitted Actions, nothing
contained herein shall prohibit or in any way limit the First Priority Agent or any other First
Priority Secured Party from opposing, challenging or objecting to, in any Insolvency or Liquidation
Proceeding or otherwise, any action taken, or any claim made, by any Second Priority Secured Party
with respect to the Collateral, including any request by any Second Priority Secured Party for
adequate protection or any exercise by any Second Priority Secured Party of any of its rights and
remedies under the Second Priority Financing Documents with respect to the Collateral or otherwise
with respect to the Collateral.




ARTICLE VI




Other Agreements



          SECTION
6.01. Effect of Refinancing of Indebtedness under First Priority Debt Documents. If, substantially contemporaneously with the Discharge of First Priority Claims, the Grantors
Refinance Indebtedness outstanding under the First Priority Debt Documents and provided that the
Company or the First Priority Agent gives to ABDC or any of the other Second Priority Secured
Parties written notice (the “Refinancing Notice”) electing the application of the provisions of
this Section 6.01 to such Refinancing Indebtedness, then (i) such Discharge of First
Priority Claims shall automatically be deemed not to have occurred for all purposes of this
Agreement, (ii) such Refinancing Indebtedness and all other obligations under the documents
evidencing such Indebtedness (provided that the aggregate principal committed amount thereof shall
not exceed $150,000,000) (the “New First Priority Claims”) shall automatically be treated as First
Priority Claims for all purposes of this Agreement, including for purposes of the Lien priorities
and rights in respect of Collateral set forth herein, (iii) the Debt Agreement and the other
documents evidencing such Refinancing Indebtedness (the “New First Priority Debt Documents”) shall
automatically be treated as the First Priority Debt Agreement and the First Priority Debt Documents
and, in the case of New First Priority Debt Documents that are security documents pursuant to which
any Grantor has granted a Lien to secure any New First Priority Claim, as the First Priority
Security Documents for all purposes of this Agreement, (iv) the collateral agent under the New
First Priority Debt Documents (the “New First Priority Agent”) shall be deemed to be the First
Priority Agent for all purposes of this Agreement and (v)




14









 







the lenders and other creditors under the
New First Priority Debt Documents shall be deemed to be the First Priority Creditors for all
purposes of this Agreement. Upon receipt of a Refinancing Notice, which notice shall include the
identity of the New First Priority Agent, the Second Priority Secured Parties shall promptly enter
into such documents and agreements (including amendments or supplements to this Agreement) as the
Company or such New First Priority Agent may reasonably request in order to provide to the New
First Priority Agent the rights and powers contemplated hereby, in each case consistent in all
material respects with the terms of this Agreement. The Company shall cause the agreement,
document or instrument pursuant to which the New First Priority Agent is appointed to provide that
the New First Priority Agent agrees to be bound by the terms of this Agreement.




          SECTION 6.02. Reinstatement. If, in any Insolvency or Liquidation Proceeding or otherwise, all or
part of any payment with respect to the First Priority Claims previously made shall be rescinded
for any reason whatsoever, then the First Priority Claims shall be reinstated to the extent of the
amount so rescinded and, if theretofore terminated, this Agreement shall be reinstated in full
force and effect and such prior termination shall not diminish, release, discharge, impair or
otherwise affect the Lien priorities and the relative rights and obligations of the First Priority
Secured Parties and the Second Priority Secured Parties provided for herein.



          SECTION 6.03. Authorization of First Priority Collateral Agent and ABDC. By accepting the benefits
of this Agreement and the other First Priority Security Documents, each First Priority Secured
Party hereby authorizes the First Priority Agent to enter into this Agreement and to act on its
behalf as collateral agent hereunder and in connection herewith. By accepting the benefits of this
Agreement and the other Second Priority Financing Documents, each Second Priority Secured Party
authorizes ABDC to enter into this agreement and to act on its behalf as agent hereunder and in
connection therewith.




          SECTION 6.04. Bailment for Perfection of Certain Security Interests.
The First Priority Agent agrees that if it shall at any time hold a First Priority Lien on any
Collateral that can be perfected or the priority of which can be enhanced by the possession or
control of such Collateral or of any account in which such Collateral is held, and if such
Collateral or any such account is in fact in the possession or under the control of the First
Priority Agent, or of agents or bailees of the First Priority Agent (such Collateral being referred
to herein as the “Pledged or Controlled Collateral”), the First Priority Agent shall, solely for
the purpose of perfecting the Second Priority Liens granted under the Second Priority Financing
Documents and subject to the terms and conditions of this Section 6.04, also (i) hold
and/or maintain control of such Pledged or Controlled Collateral as gratuitous bailee for and
representative (as defined in Section 1-201(35) of the Uniform Commercial Code as in effect in the
State of New York) of, or as agent for, the Second Priority Secured Parties, (ii) with respect to
any securities accounts included in the Collateral, have “control” (within the meaning of Section
8-106(d)(3) of the UCC) of such securities accounts on behalf of the Second Priority Secured
Parties and (iii) with respect to any deposit accounts included in the Collateral, act as agent for
the Second Priority Secured Parties and any assignee. So long as the Discharge of First Priority
Claims has not occurred, the First Priority Agent shall be entitled to deal with the Pledged or
Controlled Collateral in accordance with the terms of this Agreement and the other First Priority
Debt Documents as if the Second Priority Liens did not exist. The obligations and responsibilities
of the First Priority Agent to the Second Priority Secured Parties under this Section 6.04
shall be limited solely to holding or controlling the Pledged or Controlled Collateral as
gratuitous bailee and representative (as defined in Section 1-201(35) of the Uniform Commercial
Code as in effect in the State of New York) in accordance with this Section 6.04. Without
limiting the foregoing, the First




15









 







Priority Agent shall have no obligation or responsibility to
ensure that any Pledged or Controlled Collateral is genuine or owned by any of the Grantors. The
First Priority Agent acting pursuant to this Section 6.04 shall not, by reason of this
Agreement, any other Security Document or any other document, have a fiduciary relationship in
respect of any other First Priority Secured Party or any Second Priority Secured Party. Upon the
Discharge of First Priority Claims, the First Priority Agent shall transfer the possession and
control of the Pledged or Controlled Collateral, together with any necessary endorsements but
without recourse or warranty, (i) if the Second Priority Claims are outstanding at such time, to
the Second Priority Secured Parties, if no Second Priority Claims are outstanding at such time, to
the applicable Grantor, in each case so as to allow such Person to obtain possession and control of
such Pledged or Controlled Collateral. In connection with any transfer under clause (i) of the
immediately preceding sentence, the First Priority Agent agrees, at the expense of the Grantors, to
take all actions in its power as shall be reasonably requested by the Second Priority Secured
Parties to obtain a first priority security interest in the Pledged or Controlled Collateral.




          SECTION 6.05. Further Assurances. Each of the First Priority Agent, for itself and on behalf of
the other First Priority Secured Parties and the Second Priority Secured Parties, and each Grantor
party hereto, for itself and on behalf of its subsidiaries, agrees that it will execute, or will
cause to be executed, any and all further documents, agreements and instruments, and take all such
further actions, as may be required under any applicable law, or which the First Priority Agent or
the Second Priority Secured Parties may reasonably request, to effectuate the terms of this
Agreement, including the relative Lien priorities provided for herein.




ARTICLE VII




Representations and Warranties



          SECTION 7.01. Representations and Warranties of Each Party. Each party hereto represents and
warrants to the other parties hereto as follows:





          (a) such party is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its organization and has all requisite power and authority to
execute and deliver this Agreement and perform its obligations hereunder.




          (b) this Agreement has been duly executed and delivered by such party and
constitutes a legal, valid and binding obligation of such party, enforceable in accordance
with its terms.




          (c) the execution, delivery and performance by such party of this Agreement (i)
do not require any consent or approval of, registration or filing with or any other action by
any governmental authority (except as contemplated hereby) and (ii) will not violate any
provision of law, statute, rule or regulation, or of the certificate or articles of
incorporation or other constitutive documents or by-laws of such party or any order of any
governmental authority or any provision of any indenture, agreement or other instrument
applicable to or binding upon such party.



          SECTION 7.02. Representations and Warranties of Each of the First Priority Agent and ABDC. Each of
the First Priority Agent and ABDC represents and warrants to the other parties hereto that it has
been duly authorized in writing by the First Priority Secured Parties or Second Priority Secured
Parties, as the case may be, to enter into this Agreement.




16









 









ARTICLE VIII




No Reliance; No Liability; Obligations Absolute



          SECTION 8.01. No Reliance; Information. The First Priority Secured Parties and the Second Priority
Secured Parties shall have no duty to disclose to any Second Priority Secured Party or to any First
Priority Secured Party, respectively, any information relating to the Company or any of the
Grantors, or any other circumstance bearing upon the risk of nonpayment of any of the First
Priority Claims or the Second Priority Claims, as the case may be, that is known or becomes known
to any of them or any of their Affiliates. In the event any First Priority Secured Party or any
Second Priority Secured Party, in its sole discretion, undertakes at any time or from time to time
to provide any such information to, respectively, any Second Priority Secured Party or any First
Priority Secured Party, it shall be under no obligation (i) to make, and shall not make or be
deemed to have made, any express or implied representation or warranty, including with respect to
the accuracy, completeness, truthfulness or validity of the information so provided, (ii) to
provide any additional information or to provide any such information on any subsequent occasion or
(iii) to undertake any investigation.




          SECTION 8.02. No Warranties or Liability.  (a) The First Priority Agent, for itself and on behalf
of the other First Priority Secured Parties, acknowledges and agrees that, except for the
representations and warranties set forth in Article VII, no Second Priority Secured Party
has made any express or implied representation or warranty, including with respect to the
execution, validity, legality, completeness, collectability or enforceability of any of the Second
Priority Financing Documents, the ownership of any Collateral or the perfection or priority of any
Liens thereon. ABDC, for itself and on behalf of the other Second Priority Secured Parties,
acknowledges and agrees that, except for the representations and warranties set forth in
Article VII, neither the First Priority Agent nor any other First Priority Secured Party
has made any express or implied representation or warranty, including with respect to the
execution, validity, legality, completeness, collectability or enforceability of any of the First
Priority Debt Documents, the ownership of any Collateral or the perfection or priority of any Liens
thereon.




          (b) The Second Priority Secured Parties shall have no express or implied duty to the
First Priority Agent or any other First Priority Secured Party, and the First Priority Agent and
the other First Priority Secured Parties shall have no express or implied duty to the Second
Priority Secured Parties to act or refrain from acting in a manner which allows, or results in, the
occurrence or continuance of a default or an event of default under any First Priority Debt
Document and any Second Priority Financing Document (other than, in each case, this Agreement),
regardless of any knowledge thereof which they may have or be charged with.




          (c) ABDC, for itself and on behalf of the other Second Priority Secured Parties,
agrees that no First Priority Secured Party shall have any liability to the Second Priority Secured
Parties and hereby waive any claim against any First Priority Secured Party, arising out of any and
all actions which the First Priority Agent or the other First Priority Secured Parties may take or
permit or omit to take with respect to (i) the First Priority Debt Documents (other than this
Agreement), (ii) the collection of the First Priority Claims or (iii) the maintenance of, the
preservation of, the foreclosure upon or the Disposition of any Collateral.





17









 








ARTICLE IX




Miscellaneous



          SECTION 9.01. Notices. Notices and other communications provided for herein shall be in writing in
the English language (or accompanied by a certified translation) and shall be delivered by hand or
overnight courier service, mailed by certified or registered mail or sent by fax, as follows:



if to the First Priority Agent:



Jefferies Finance LLC

520 Madison Avenue

New York, New York 10022

Attention: General Counsel — Investment Banking

Facsimile No.: (212) 284-3444



with a copy to:



Proskauer Rose LLP

1585 Broadway

New York, New York 10036

Attention: Joshua W. Thompson

Facsimile No.: (212) 969-2900



if to ABDC or any of the Second Priority Secured Parties;



AmerisourceBergen Drug Corporation

1300 Morris Drive

Chesterbrook, PA 19087-5594

Attention: Group Vice President, Alternate Care

Facsimile No.: (610) 727-3601



with a copy to:



AmerisourceBergen Corporation

1300 Morris Drive

Chesterbrook, Pennsylvania 19087-5594

Attention: General Counsel

Facsimile No.: (610) 727-3612




          All notices and other communications given to any party hereto in accordance with the
provisions of this Agreement shall be deemed to have been given on the date of receipt if delivered
by hand or overnight courier service or sent by fax or on the date five Business Days after
dispatch by certified or registered mail if mailed, in each case delivered, sent or mailed
(properly addressed) to such party as provided in this Section 9.01 or in accordance with
the latest unrevoked direction from such party given in accordance with this Section 9.01.
As agreed to between the Company and any Collateral Agent from time to time, notices and other
communications may also be delivered by e-mail to the e-mail address of a representative of the
applicable Person provided from time to time by such Person. In addition, ABDC agrees to use






18









 








diligent efforts to provide any notices of default or acceleration or similar notices which they
give to any Grantor under any Second Priority Financing Documents.




          SECTION 9.02. Conflicts. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF
THIS AGREEMENT AND THE PROVISIONS OF THE OTHER DEBT DOCUMENTS, THE PROVISIONS OF THIS AGREEMENT
SHALL CONTROL.




          SECTION 9.03. Effectiveness; Survival; Termination. This Agreement shall become effective when
executed and delivered by the parties hereto. All covenants, agreements, representations and
warranties made by any party in this Agreement shall be considered to have been relied upon by the
other parties hereto and shall survive the execution and delivery of this Agreement. The terms of
this Agreement shall survive, and shall continue in full force and effect, in any Insolvency or
Liquidation Proceeding. ABDC, for itself and on behalf of the other Second Priority Secured
Parties, hereby waive any and all rights the Second Priority Secured Parties may now or hereafter
have under applicable law to revoke this Agreement or any of the provisions of this Agreement.
This Agreement shall terminate and be of no further force and effect, (i) subject to compliance
with its obligations to take certain actions
upon Discharge of the Second Priority Claims pursuant to Article V and Section
3.01(d), with respect to the Second Priority Secured Parties and the Second Priority Claims,
upon the later of (1) the date upon which the obligations under the Second Priority Financing
Documents terminate if there are no other Second Priority Claims outstanding on such date and (2)
if there are other Second Priority Claims outstanding on such date, the date upon which such Second
Priority Claims terminate, subject to the rights of the Second Priority Claims and ABDC under
Section 6.01 and (ii) subject to Section 6.01 and compliance with its obligations
to take certain actions upon Discharge of the First Priority Claims pursuant to Article V, with
respect to the First Priority Agent, the First Priority Secured Parties and the First Priority
Claims, the date of Discharge of First Priority Claims, subject to the rights of the First Priority
Secured Parties under Section 6.01. In addition, for the avoidance of doubt, the Lien
priorities provided for herein and the respective rights, interests, agreements and obligations
hereunder of the First Priority Agent and the other First Priority Secured Parties and the Second
Priority Secured Parties shall remain in full force and effect irrespective of: (a) any change in
the time, place or manner of payment of, or in any other term of, all or any portion of the First
Priority Claims, it being specifically acknowledged that a portion of the First Priority Claims
consists or may consist of Indebtedness that is revolving in nature, and the amount thereof that
may be outstanding at any time or from time to time may be increased or reduced and subsequently
reborrowed (provided that the aggregate principal committed amount thereof shall not exceed
$150,000,000); (b) any change in the time, place or manner of payment of, or any other term of, all
or any portion of the First Priority Claims; (c) any amendment, waiver or other modification,
whether by course of conduct or otherwise, of any Debt Document (provided that the aggregate
principal committed amount thereof shall not exceed $150,000,000); (d) the securing of any First
Priority Claims or Second Priority Claims with any additional collateral or guarantees, or any
exchange, release, voiding, avoidance or non-perfection of any security interest in any Collateral
or any other collateral or any release of any guarantee securing any First Priority Claims or
Second Priority Claims; (e) the commencement of any Insolvency or Liquidation Proceeding or
Liquidation Sale in respect of the Company or any other Grantor; or (f) any other circumstances
that otherwise might constitute a defense available to, or a discharge of, the Company or any other
Grantor in respect of the First Priority Claims or this Agreement, or any of the Second Priority
Secured Parties in respect of this Agreement.




19









 








          SECTION 9.04. Severability. In the event any one or more of the provisions contained in this
Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular provision in a particular
jurisdiction shall not in and of itself affect the validity of such provision in any other
jurisdiction). The parties shall endeavor in good-faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of which comes as
close as possible to that of the invalid, illegal or unenforceable provisions.




          SECTION 9.05. Amendments; Waivers. (a) No failure or delay on the part of any party hereto in
exercising any power or right hereunder shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right or power, or any abandonment or discontinuance of steps to
enforce such a right or power, preclude any other or further exercise thereof or the exercise of
any other right or power. The rights and remedies of the parties hereto are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver of any provision of
this Agreement or
consent to any departure by any party therefrom shall in any event be effective unless the same
shall be permitted by paragraph (b) of this Section 9.05, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which given.




          (b) Neither this Agreement nor any provision hereof may be waived, amended or
modified except pursuant to an agreement or agreements in writing entered into by the First
Priority Agent and ABDC.




          SECTION 9.06. Postponement of Subrogation. The Second Priority Secured Parties agrees that no
payment or distribution to any First Priority Secured Party pursuant to the provisions of this
Agreement shall entitle any Second Priority Secured Party to exercise any rights of subrogation in
respect thereof until the Discharge of First Priority Claims shall have occurred. Following the
Discharge of First Priority Claims, each First Priority Secured Party agrees to execute such
documents, agreements, and instruments as any Second Priority Secured Party may reasonably request
to evidence the transfer by subrogation to any such Person of an interest in the First Priority
Claims resulting from payments or distributions to such First Priority Secured Party by such
Person, so long as all costs and expenses (including all reasonable legal fees and disbursements)
incurred in connection therewith by such First Priority Secured Party are paid by such Person upon
request for payment thereof.




          SECTION 9.07. Applicable Law; Jurisdiction; Consent to Service of Process. (a) THIS AGREEMENT
SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER
JURISDICTION.




          (b) Each party hereto hereby irrevocably and unconditionally submits, for itself and
its property, to the non-exclusive jurisdiction of any Supreme Court for New York County, New York
or in The United States District Court for the Southern District of New York, and any appellate
court from any thereof, in any action or proceeding arising out of or relating to this Agreement,
or for recognition or enforcement of any judgment, and each of the parties hereto hereby
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined only in such New York court or, to the extent permitted by law, in such
Federal court. Each party hereto agrees that a final judgment in any such action





20









 







or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by law.




          (c) Each party hereto hereby irrevocably and unconditionally waives, to the fullest
extent it may legally and effectively do so, any objection which it may now or hereafter have to
the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement
in any New York court or in any such Federal court. Each party hereto hereby irrevocably waives,
to the fullest extent permitted by law, the defense of an inconvenient forum to the maintenance of
such action or proceeding in any such court.




          (d) Each party to this Agreement irrevocably consents to service of process in the
manner provided for notices in Section 9.01. Nothing in this Agreement will affect the
right of any party to this Agreement to serve process in any other manner permitted by law.




          SECTION 9.08. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. EACH PARTY
HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO
ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT, BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS
IN THIS SECTION 9.08.




          SECTION 9.09. Parties in Interest. The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and assigns, as well as
the other First Priority Secured Parties and Second Priority Secured Parties, all of whom are
intended to be bound by, and to be third party beneficiaries of, this Agreement. No other Person
shall have or be entitled to assert rights or benefits hereunder.




          SECTION 9.10. Specific Performance. Each of the First Priority Agent and ABDC may demand specific
performance of this Agreement and, on behalf of itself and the respective other Secured Parties,
hereby irrevocably waives any defense based on the adequacy of a remedy at law and any other
defense that might be asserted to bar the remedy of specific performance in any action which may be
brought by the respective Secured Parties.




          SECTION 9.11. Headings. Article and Section headings used herein and the Table of Contents hereto
are for convenience of reference only, are not part of this Agreement and are not to affect the
construction of, or to be taken into consideration in interpreting, this Agreement.




          SECTION 9.12. Counterparts. This Agreement may be executed in counterparts (and by different
parties hereto on different counterparts), each of which shall constitute an original but all of
which when taken together shall constitute a single contract, and shall become effective as
provided in Section 9.03. Delivery of an executed signature page to this Agreement by
facsimile transmission shall be as effective as delivery of a manually signed counterpart of this
Agreement.




21









 








          SECTION 9.13. Provisions Solely to Define Relative Rights. The provisions of this Agreement are
and are intended solely for the purpose of defining the relative rights of the First Priority
Secured Parties, on the one hand, and the Second Priority Secured Parties, on the other hand. None
of the Company, any other Grantor, any Guarantor or any other creditor thereof shall have any
rights or obligations, except as expressly provided in this Agreement hereunder and none of the
Company, any other Grantor or any Guarantor may rely on the terms hereof. Nothing in this
Agreement is intended to or shall impair the obligations of the
Company or any other Grantor or any Guarantor, which are absolute and unconditional, to pay the
First Priority Claims and the Second Priority Claims as and when the same shall become due and
payable in accordance with their terms.




[Remainder of this page intentionally left blank]




22









 






          IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed by their
respective authorized officers as of the day and year first above written.




	 	 	 	 	 
	 	JEFFERIES FINANCE LLC, as First Priority 

Agent

 	 
	 	By:  	/s/  E.J.
Hess	 
	 	 	Name:  	E.J.
Hess 	 
	 	 	Title:  	Managing Director 	 
	 
	 	AMERISOURCEBERGEN CORPORATION, for itself and on
behalf of the Second Priority Secured Parties

 	 
	 	By:  	/s/  Mitchell
Blumenfeld	 
	 	 	Name:  	Mitchell
Blumenfeld 	 
	 	 	Title:  	Chief Financial Officer 	 



 









 







	 	 	 	 	 



ACKNOWLEDGMENT



The Company and each of the Company’s undersigned Subsidiaries each hereby acknowledge that they
have received a copy of the foregoing Agreement and consent thereto, agree to recognize all rights
granted thereby to the First Priority Agent and the Second Priority Secured Parties and to ABDC and
the Second Priority Secured Parties, and will not do any act or perform any obligation which is not
in accordance with the agreements set forth therein. The Company and each of the Company’s
undersigned Subsidiaries each further acknowledge and agree that they are not an intended
beneficiary or third party beneficiary under the foregoing Agreement.




	 	 	 	 	 
	



ACKNOWLEDGED AS OF THE DATE FIRST WRITTEN ABOVE:



BIOSCRIP, INC.

 	 
	By:  	/s/ Barry
A. Posner	 
	 	Name:  	Barry
A. Posner 	 
	 	Title:  	Executive Vice President and General Counsel 	 
	 



	 	 	 	 	 
	BIOSCRIP INFUSION SERVICES, INC.

 	 
	By:  	/s/ Barry
A. Posner	 
	 	Name:  	Barry
A. Posner 	 
	 	Title:  	Executive Vice President and General Counsel 	 
	 



	 	 	 	 	 
	CHRONIMED, LLC

 	 
	By:  	/s/ Barry
A. Posner	 
	 	Name:  	Barry
A. Posner 	 
	 	Title:  	Executive Vice President and General Counsel 	 
	 



	 	 	 	 	 
	LOS FELIZ DRUGS INC.

 	 
	By:  	/s/ Barry
A. Posner	 
	 	Name:  	Barry
A. Posner 	 
	 	Title:  	Executive Vice President and General Counsel 	 
	 



Signature
Page to Acknowledgement to Intercreditor Agreement






 









 








	 	 	 	 	 
	BIOSCRIP PHARMACY, INC.

 	 
	By:  	/s/ Barry
A. Posner	 
	 	Name:  	Barry
A. Posner 	 
	 	Title:  	Executive Vice President and General Counsel 	 
	 



	 	 	 	 	 
	BRADHURST SPECIALTY PHARMACY, INC.

 	 
	By:  	/s/ Barry
A. Posner	 
	 	Name:  	Barry
A. Posner 	 
	 	Title:  	Executive Vice President and General Counsel 	 
	 



	 	 	 	 	 
	BIOSCRIP PHARMACY (NY), INC.

 	 	 
	By:  	/s/ Barry
A. Posner	 
	 	Name:  	Barry
A. Posner 	 
	 	Title:  	Executive Vice President and General Counsel 	 
	 



	 	 	 	 	 
	BIOSCRIP PBM SERVICES, LLC

 	 
	By:  	/s/ Barry
A. Posner	 
	 	Name:  	Barry
A. Posner 	 
	 	Title:  	Executive Vice President and General Counsel 	 
	 



	 	 	 	 	 
	NATURAL LIVING INC.

 	 
	By:  	/s/ Barry
A. Posner	 
	 	Name:  	Barry
A. Posner 	 
	 	Title:  	Executive Vice President and General Counsel 	 
	 



	 	 	 	 	 
	BIOSCRIP INFUSION SERVICES, LLC

 	 
	By:  	/s/ Barry
A. Posner	 
	 	Name:  	Barry
A. Posner 	 
	 	Title:  	Executive Vice President and General Counsel 	 
	 



Signature
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	BIOSCRIP NURSING SERVICES, LLC

 	 
	By:  	/s/ Barry
A. Posner	 
	 	Name:  	Barry
A. Posner 	 
	 	Title:  	Executive Vice President and General Counsel 	 
	 



Signature
Page to Acknowledgement to Intercreditor Agreement





 









 









	 	 	 	 	 
	BIOSCRIP INFUSION MANAGEMENT, LLC

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	BIOSCRIP PHARMACY SERVICES, INC.

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	CHS HOLDINGS,
INC.
(FORMERLY CAMELOT ACQUISITION CORP.)
 


 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	CRITICAL HOMECARE SOLUTIONS, INC.

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	APPLIED HEALTH CARE, LLC

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	CEDAR CREEK HOME HEALTH CARE AGENCY, INC.

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



Signature
Page to Acknowledgement to Intercreditor Agreement




 









 









	 	 	 	 	 
	DEACONESS ENTERPRISES, LLC

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	DEACONESS HOMECARE, LLC

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	EAST GOSHEN PHARMACY, INC.

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	ELK VALLEY HEALTH SERVICES, INC.

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	ELK VALLEY HOME HEALTH CARE AGENCY, INC. 	 
	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	ELK VALLEY PROFESSIONAL AFFILIATES, INC.

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	GERICARE, INC.

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



Signature
Page to Acknowledgement to Intercreditor Agreement






 









 









	 	 	 	 	 
	INFUSION PARTNERS, LLC

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	INFUSION PARTNERS OF BRUNSWICK, LLC

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	INFUSION PARTNERS OF MELBOURNE, LLC

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	INFUSION SOLUTIONS, INC.

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	KNOXVILLE HOME THERAPIES, LLC

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	NATIONAL HEALTH INFUSION, INC.

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



Signature
Page to Acknowledgement to Intercreditor Agreement




 









 









	 	 	 	 	 
	NEW ENGLAND HOME THERAPIES, INC.

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	OPTION HEALTH, LTD.

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	PROFESSIONAL HOMECARE SERVICES, INC.

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	REGIONAL AMBULATORY DIAGNOSTICS, INC.

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	SCOTT-WILSON, INC.

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	SOUTH MISSISSIPPI HOME HEALTH, INC.

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



Signature
Page to Acknowledgement to Intercreditor Agreement





 









 









	 	 	 	 	 
	SOUTH MISSISSIPPI HOME HEALTH, INC. — REGION I

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	SOUTH MISSISSIPPI HOME HEALTH, INC. — REGION II

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	SOUTH MISSISSIPPI HOME HEALTH, INC. — REGION III

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	SPECIALTY PHARMA, INC.

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



	 	 	 	 	 
	WILCOX MEDICAL, INC.

 	 
	By:  	/s/ Barry A. Posner	 
	 	Name:  	Barry A. Posner	 
	 	Title:  	Executive Vice President and General Counsel	 
	 



Signature
Page to Acknowledgement to Intercreditor Agreement