SupplementalIndenture for Notes
Exhibit 4.1
Supplemental Indenture for Notes
This Supplemental Indenture, dated as of July 31, 2013 (the “Supplemental Indenture”), is by and among BioScrip, Inc., a Delaware corporation (the “Company”), each of the Guarantors listed on the signature pages hereto and U.S. Bank National Association, as trustee under the Indenture referred to below (the “Trustee”).
Recitals
WHEREAS, the Company and the Guarantors have heretofore executed and delivered to the Trustee an indenture (as amended, supplemented or otherwise modified, the “Indenture”), dated as of March 25, 2010 providing for the issuance of 10¼% Senior Notes due 2015 (the “Notes”);
WHEREAS, the Company proposes to amend the Indenture and the Notes as contemplated by this Supplemental Indenture (such amendments, collectively, the “Amendments”);
WHEREAS, pursuant to Section 9.02 of the Indenture, the Company and the Trustee may amend or supplement the Indenture and the Notes as contemplated by this Supplemental Indenture with the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Notes;
WHEREAS, the Company has obtained the consent of the Holders of at least a majority in aggregate principal amount of the outstanding Notes, pursuant to the Offer to Purchase and Consent Solicitation Statement, dated June 3, 2013 (as amended, supplemented or otherwise modified from time to time, the “Consent Solicitation Statement”), to the Amendments upon the terms and subject to the conditions set forth therein;
Whereas, the Company has done all things necessary or advisable to make this Supplemental Indenture a valid agreement of the Company in accordance with the terms of the Indenture and has satisfied all other conditions required under Article 9 of the Indenture; and
WHEREAS, pursuant to Section 9.06, the Trustee is authorized to execute and deliver this Supplemental Indenture.
Now, therefore, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, in order to effect the Amendments, the Company agrees with the Trustee as follows:
Article I
Definitions and other Provisions of General Application
1.1 Definitions. Defined terms used herein without definition shall have the meanings assigned to them in the Indenture.
1.2 Effect of Headings. The Article and Section headings in this Supplemental Indenture are for convenience only and shall not affect the construction of the Indenture or this Supplemental Indenture.
1.3 Successors and Assigns. All covenants and agreements in this Supplemental Indenture by the Company and the Guarantors shall bind their respective successors and assigns, whether so expressed or not.
1.4. Separability Clause. In case any provision in this Supplemental Indenture shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
1.5 Trust Indenture Act Controls. If any provision of this Supplemental Indenture limits, qualifies or conflicts with another provision of this Supplemental Indenture or the Indenture that is
| -1- |
required to be included by the Trust Indenture Act of 1939, as amended (the “Act”), as in force at the date this Supplemental Indenture is executed, the provision required by the Act shall control.
1.6 Benefits of Supplemental Indenture. Nothing in this Supplemental Indenture, express or implied, shall give to any person, other than the parties to this Supplemental Indenture and their successors hereunder and the Holders of the Notes, any benefit of any legal or equitable right, remedy or claim under this Supplemental Indenture.
1.7 Governing Law. This Supplemental Indenture shall be governed by, and construed in accordance with, the laws of the State of New York.
1.8 Reference to and Effect on the Indenture.
(a) On and after the date hereof, each reference in the Indenture to “this Indenture,” “hereunder,” “hereof,” or “herein” shall mean and be a reference to the Indenture as supplemented by this Supplemental Indenture, unless the context otherwise requires.
(b) Except as specifically amended by this Supplemental Indenture, the Indenture and the Notes are hereby ratified and confirmed and all of the terms, conditions and provisions thereof shall remain in full force and effect. This Supplemental Indenture shall form a part of the Indenture for all purposes, and every Holder of the Notes heretofore and hereafter authenticated and delivered under the Indenture shall be bound hereby.
Article II
Amendments OF the Indenture AND NOTES
2.1 Amendment to Indenture and Notes. Effective as of the date hereof, the Supplemental Indenture hereby amends the Indenture and Notes as provided for herein.
2.2 Deletion/Amendment of Certain Provisions.
(a) Amendments.
(i) The following sections of the Indenture are hereby deleted in their entirety and, in the case of each such section, replaced with the phrase “[Intentionally Omitted]”, and any and all references to such sections and any and all obligations thereunder are hereby deleted throughout the Indenture, and such sections and references shall be of no further force or effect.
Section 4.05 Taxes
Section 4.06 Stay, Extension and Usury Laws
Section 4.07 Restricted Payments
Section 4.08 Dividend and Other Payment Restrictions Affecting Subsidiaries
Section 4.09 Incurrence of Indebtedness and Issuance of Preferred Stock
Section 4.10 Asset Sales
Section 4.11 Transactions with Affiliates
Section 4.12 Liens
Section 4.13 Business Activities
Section 4.14 Corporate Existence
Section 4.15 Offer to Repurchase Upon Change of Control
Section 4.16 Payments for Consent
Section 4.17 Additional Note Guarantees
Section 4.18 Designation of Restricted and Unrestricted Subsidiaries
(ii) Section 4.03 is hereby amended and restated in its entirety to read as follows:
“Section 4.03 Reports.
| -2- |
So long as any Notes are outstanding, the Company will furnish to the Trustee and to the Holders of Notes all reports as required under Section 314(a) of the TIA. The availability of the foregoing materials on the SEC’s EDGAR service shall be deemed to satisfy the Company’s delivery obligation.”
(iii) Clause (a) of Section 4.04 is hereby amended and restated in its entirety to read as follows:
“The Company and each Guarantor (to the extent that such Guarantor is so required under the TIA) shall deliver to the Trustee, within 90 days after the end of each fiscal year, an Officers’ Certificate as required under Section 314(a)(4) of the TIA.”
(iv) Each of clauses (a)(3) and (a)(4) of Section 5.01 are hereby deleted in their entirety and, in the case of each such section, replaced with the phrase “[Intentionally Omitted]” and the Company shall be released from any and all of its obligations thereunder.
(v) Each of clauses (3), (4), (5), (6) and (7) of Section 6.01 and each of clauses (2), (3), (4), (5) and (6) of Section 8.04 are hereby deleted in their entirety and, in the case of each such section, replaced with the phrase “[Intentionally Omitted]” and the Company shall be released from any and all of its obligations thereunder.
2.3 Other Amendments to the Indenture. All definitions in the Indenture which are used exclusively in the sections and clauses deleted pursuant to Section 2.2 of this Supplemental Indenture or whose sole use or uses in the Indenture were eliminated in the revisions set forth in Sections 2.2 of this Supplemental Indenture are hereby deleted. All cross-references in the Indenture to sections and clauses deleted by Section 2.2 of this Supplemental Indenture shall also be deleted in their entirety.
2.4 The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which are made solely by the Company.
ARTICLE III
Amendment to the Notes
The Notes include certain of the foregoing provisions from the Indenture to be deleted or amended pursuant to Sections 2.2 and 2.3 hereof. Such provisions from the Notes shall be deemed deleted or amended as applicable.
***
This Supplemental Indenture may be executed in several counterparts, all of which together shall constitute one agreement binding on all parties hereto, notwithstanding that all the parties have not signed the same counterpart.
[Signature Page Follows]
| -3- |
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed all as of the date first written above.
| THE COMPANY
BIOSCRIP, INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
|
[Signature Page to Supplemental Indenture]
| GUARANTORS
BIOSCRIP INFUSION SERVICES, INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
CHRONIMED, LLC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
BIOSCRIP PHARMACY (NY), INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
BIOSCRIP PBM SERVICES, LLC
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
BIOSCRIP PHARMACY SERVICES, INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
BIOSCRIP PHARMACY, INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
BRADHURST SPECIALTY PHARMACY, INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer |
[Signature Page to Supplemental Indenture]
| NATURAL LIVING, INC. (d/b/a BioScrip Pharmacy)
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
BIOSCRIP INFUSION SERVICES, LLC
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
BIOSCRIP NURSING SERVICES, LLC (d/b/a American Disease Management Associates)
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
BIOSCRIP INFUSION MANAGEMENT, LLC
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
LOS FELIZ DRUGS INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
CHS HOLDINGS, INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
CRITICAL HOMECARE SOLUTIONS, INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer |
| SPECIALTY PHARMA, INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
NEW ENGLAND HOME THERAPIES, INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
DEACONESS ENTERPRISES, LLC
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
INFUSION SOLUTIONS, INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
PROFESSIONAL HOME CARE SERVICES, INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
WILCOX MEDICAL, INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
DEACONESS HOMECARE, LLC
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer |
[Signature Page to Supplemental Indenture]
| SOUTH MISSISSIPPI HOME HEALTH, INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
REGIONAL AMBULATORY DIAGNOSTICS, INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
ELK VALLEY PROFESSIONAL AFFILIATES, INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
INFUSION PARTNERS, LLC
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
KNOXVILLE HOME THERAPIES, LLC
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
SOUTH MISSISSIPPI HOME HEALTH, INC.-REGION I
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
SOUTH MISSISSIPPI HOME HEALTH, INC.-REGION II
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer |
[Signature Page to Supplemental Indenture]
| SOUTH MISSISSIPPI HOME HEALTH, INC.-REGION III
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
APPLIED HEALTH CARE, LLC
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
EAST GOSHEN PHARMACY, INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
NATIONAL HEALTH INFUSION, INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
INFUSION PARTNERS OF BRUNSWICK, LLC
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
OPTION HEALTH, LTD.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
SCOTT-WILSON, INC.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
|
[Signature Page to Supplemental Indenture]
| INFUSION PARTNERS OF MELBOURNE, LLC
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
Infuscience Sub, Inc.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
Infusal Partners
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
Infusion Therapy Specialists, Inc.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
Infuscience HHA, LLC
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
Infuscience South Carolina, LLC
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
Homechoice Partners, Inc.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
Bioscrip Medical Services, LLC
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer |
[Signature Page to Supplemental Indenture]
| Cedar Creek Home Health Care Agency, LLC
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
Gericare, LLC
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
Elk Valley Health Services, LLC
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
Elk Valley Home Health Care Agency, LLC
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
|
[Signature Page to Supplemental Indenture]
| Infuscience, Inc.
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer
infucenters, llc
By: /s/ Richard Smith Name: Richard Smith Title: Chief Executivie Officer |
[Signature Page to Supplemental Indenture]
| TRUSTEE
U.S. bank national ASSOCIATION
By: /s/ Earl W. Dennison Jr. Name: Earl W. Dennison Jr. Title: Vice President |
[Signature Page to Supplemental Indenture]
