Table of Contents
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C.
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): July 21, 2008
BioScrip, Inc.
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 0-28740 | 05-0489664 | ||
| (State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
| 100 Clearbrook Road, Elmsford, New York | 10523 | |
| (Address of Principal Executive Offices) | (Zip Code) |
Registrant’s telephone number, including area code (914) 460-1600
(Former Name or Former Address, if Changed Since Last Report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the
filing obligation of the registrant under any of the following provisions:
| o | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| o | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12). | |
| o | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240-14d-2(b)). | |
| o | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)). |
TABLE OF CONTENTS
| Item 1.01 Entry Into a Material Definitive Agreement | ||||||||
| Item 9.01 Financial Statements and Exhibits | ||||||||
| SIGNATURES | ||||||||
| EX-10.1: SECOND AMENDMENT TO THE AMENDED AND RESTATED LOAN AND SECURITY AGREEMENT | ||||||||
Table of Contents
Item 1.01 Entry Into a Material Definitive Agreement.
On July 21, 2008, BioScrip, Inc. (the “Company”), through its subsidiaries BioScrip Pharmacy
Services, Inc., BioScrip Infusion Services, Inc., BioScrip Pharmacy (NY), Inc., BioScrip PBM
Services, LLC, BioScrip Pharmacy, Inc., Natural Living, Inc., BioScrip Infusion Services, LLC and
Bradhurst Specialty Pharmacy, Inc. (collectively, the “Borrowers”), entered into a Second Amendment
(the “Second Amendment”) to the Amended and Restated Loan and Security Agreement (the “LSA”) among
the Borrowers and HFG Healthco-4 LLC, an affiliate of Healthcare Finance Group, Inc. (“HFG”).
Under the terms of the Second Amendment the definition of Debt/EBITDA Ratio was amended to provide
that such ratio will be based the average debt of the borrowers for the fiscal quarter in question,
which will be calculated as the arithmetic average of all daily balance during such quarter.
Previously, the amount of debt was measured as of the end of each quarter. The Second Amendment
also amended the LSA to provide that in the event the Borrowers desire a revolving advance in
excess of $10,000,000 they will provide Lender with written notice one business day prior to the
proposed funding date.
The foregoing summary is qualified in its entirety by reference to the complete text of the Second
Amendment to the LSA, a copy of which is attached as Exhibit 10.1 hereto.
Item 9.01 Financial Statements and Exhibits.
| (c) Exhibits. | The following are furnished as exhibits to this Current Report: |
| Exhibit No. | Description of Exhibit | |
10.1
|
Second Amendment to the Amended and Restated Loan and Security Agreement |
2
Table of Contents
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused
this report to be signed on its behalf by the undersigned duly authorized.
| Date: September 3, 2008 | BIOSCRIP, INC. | |||||
| By: | /s/ Barry A. Posner
|
|||||
| Executive Vice President, Secretary and General Counsel | ||||||
3
Exhibit 10.1
SECOND AMENDMENT, dated as of July 21, 2008 (“Second Amendment”), to the AMENDED AND RESTATED
LOAN AND SECURITY AGREEMENT, dated as of September 26, 2007 (as amended, restated, supplemented or
otherwise modified, the “LSA”), among BioScrip Pharmacy Services, Inc. (“Pharmacy Services”),
BioScrip Infusion Services, Inc. (“Infusion Services Inc”), BioScrip Pharmacy (NY), Inc. (“Pharmacy
(NY)”), BioScrip PBM Services, LLC (“PBM Services”), BioScrip Pharmacy, Inc. (“Pharmacy”), Natural
Living, Inc. (“Natural Living”), BioScrip Infusion Services, LLC (“Infusion Services LLC) and
Bradhurst Specialty Pharmacy, Inc. (“Bradhurst”, and together with Pharmacy Services, Infusion
Services Inc, Pharmacy (NY), PBM Services, Pharmacy, Natural Living and Infusion Services LLC, each
a “Borrower” and collectively, jointly and severally, the “Borrowers”), as borrowers, and HFG
Healthco-4 LLC (together with its successors and assigns, the “Lender”), as the lender. Unless
otherwise defined herein, terms in the LSA are used herein as therein defined.
The Borrowers and the Lender have agreed to amend the LSA on the terms and subject to the
conditions set forth herein.
Accordingly, in consideration of the foregoing and for other good and valuable consideration,
the receipt and sufficiency of which hereby are acknowledged, and subject to the fulfillment of the
conditions set forth below, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO LSA. Effective as of the Effective Date (as defined below), the LSA
is hereby amended as follows:
1.1. The definition of “Debt/EBITDA Ratio” contained in Exhibit I to the LSA is amended by (i)
deleting clause (x) thereof in its entirety and (ii) replacing therefor the following new clause
(x): “(x) the average Debt of the Borrowers for such fiscal quarter, calculated as the arithmetic
average of all daily balances during such quarter, to”.
1.2. Section 1.03 of the LSA is hereby amending by adding the following phrase immediately
following the words “proposed Funding Date of such Revolving Advance,” in the third line thereof:
“or if such Revolving Advance is in an amount in excess of $10,000,000, one Business
Day prior to such proposed Funding Date,”
SECTION 2. CONDITIONS PRECEDENT
2.1. Effective Date of this Second Amendment. This Second Amendment shall become
effective as of the date (the “Effective Date”) at such time when:
(a) the Lender shall have received fully executed counterparts of this Second
Amendment; and
(b) the Lender shall have received, in form and substance reasonably
satisfactory to the Lender fully executed deposit account control agreements from
Bank of America, N.A.
SECTION 3. MISCELLANEOUS
3.1. The Borrowers each hereby certify, represent and warrant that, after giving effect to
this Second Amendment, (i) except as otherwise disclosed in public filings made by the Parent with
the United States Securities and Exchange Commission, the representations and warranties in the LSA
are true and correct, with the same force and effect as if made on such date, except as they may
specifically refer to an earlier date, in which case they were true and correct as of such date,
(ii) no unwaived Default or Event of Default has occurred or is continuing (nor any event that but
for notice or lapse of time or both would constitute a Default or an Event of Default), (iii) each
of the Borrowers has the corporate power and authority to execute and deliver this Second
Amendment, and (iv) no consent of any other person (including, without limitation, shareholders or
creditors of any Borrower), and no action of, or filing with any governmental or public body or
authority is required to authorize, or is otherwise required in connection with the execution and
performance of this Second Amendment, other than, in each case, such that have been obtained.
3.2. The terms “Agreement”, “hereof”, “herein” and similar terms as used in the LSA shall mean
and refer to, from and after the effectiveness of this Second Amendment, the LSA as amended by this
Second Amendment, and as it may in the future be amended, restated, modified or supplemented from
time to time in accordance with its terms. Except as specifically agreed herein, nothing herein
shall be deemed to be an amendment or waiver of any covenant or agreement contained in the LSA or
any other Document and each of the parties hereto agrees that all of the covenants and agreements
and other provisions contained in the LSA and the other Documents, as amended, waived or otherwise
modified hereof, are hereby ratified and confirmed in all respects and shall remain in full force
and effect in accordance with their terms from and after the date of this Second Amendment.
3.3. Parent and Chronimed, LLC (f/k/a Chronimed Inc.) each hereby ratifies its Guarantee of
the Guaranteed Obligations (as defined in that certain Amended and Restated Guaranty, effective as
of October 1, 2007, made by Parent and Chronimed, LLC (f/k/a Chronimed Inc.) (the “Guaranty”))
pursuant to the Guaranty and each of the Borrowers, Parent and Chronimed, LLC (f/k/a Chronimed
Inc.) hereby ratifies its grant of a security interest made under the Documents.
3.4. This Second Amendment shall constitute a Document under the LSA
3.5. THIS SECOND AMENDMENT SHALL, IN ACCORDANCE WITH SECTION 5-1401 OF THE GENERAL OBLIGATIONS
LAW OF THE STATE OF NEW YORK, BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
ANY CONFLICT OF LAWS PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF THE LAWS OF ANY
OTHER JURISDICTION.
3.6. The captions in this Second Amendment are for convenience of reference only, are not part
of this Second Amendment and shall not affect the construction of, or be taken into consideration
in interpreting, this Second Amendment.
3.7. Any provision of this Second Amendment held to be invalid, illegal or unenforceable in
any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such invalidity,
illegality or unenforceability without affecting the validity, legality and enforceability
of the remaining provisions hereof, and the invalidity of a particular provision in a
particular jurisdiction shall not invalidate such provision in any other jurisdiction.
3.8. This Second Amendment may be executed in counterparts, each of which when so executed
shall be deemed to be an original and all of which when taken together shall constitute one and the
same agreement.
3.9. Delivery of an executed counterpart of a signature page by telecopier, .pdf or similar
electronic transmission shall be effective as delivery of a manually executed counterpart.
IN WITNESS WHEREOF, the parties hereto have caused this Second Amendment to be executed by
their respective officers thereunto duly authorized, as of the date first above written.
| BIOSCRIP INFUSION SERVICES, INC. | BIOSCRIP PHARMACY SERVICES, INC. | |||||||||
By:
|
By: | |||||||||
| Name: | Name: | |||||||||
| Title: | Title: | |||||||||
| BIOSCRIP PBM SERVICES, LLC | BIOSCRIP PHARMACY (NY), INC. | |||||||||
By:
|
By: | |||||||||
| Name: | Name: | |||||||||
| Title: | Title: | |||||||||
| NATURAL LIVING, INC. | BIOSCRIP PHARMACY, INC. | |||||||||
By:
|
By: | |||||||||
| Name: | Name: | |||||||||
| Title: | Title: | |||||||||
| BIOSCRIP INFUSION SERVICES, LLC | BRADHURST SPECIALTY PHARMACY, INC. | |||||||||
By:
|
By: | |||||||||
| Name: | Name: | |||||||||
| Title: | Title: | |||||||||
| Solely with respect to Section 5.3 hereof: | ||||||||||
| BIOSCRIP, INC. | CHRONIMED, LLC (f/k/a Chronimed Inc.) | |||||||||
By:
|
By: | |||||||||
| Name: | Name: | |||||||||
| Title: | Title: | |||||||||
HFG HEALTHCO-4 LLC,
as Lender
as Lender
By: HFG Healthco-4, Inc., a member
By: |
||||
| Name: | ||||
| Title: |