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Amendment No.3 And Joinder Agreement

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Sectors: Retail
Governing Law: New York, View New York State Laws
Effective Date: July 30, 1997
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AMENDMENT NO.3 AND JOINDER AGREEMENT


THIS AMENDMENT NO.3 AND JOINDER AGREEMENT ("Agreement") is entered into as of July 30, 1997, by and among ACCUHEALTH, INC., a corporation organized under the laws of the State of New York ("Accuhealth"), MIDVIEW DRUG, INC. a corporation organized under the laws of the State of New York ("Midview"), ACCUHEALTH HOME CARE, INC., a corporation organized under the laws of the State of Delaware ("AHC"), CITIVIEW DRUG CO., INC., a corporation organized under the laws of the State of New York ("Citiview"), PROHEALTHCARE INFUSION SERVICES, INC., a corporation organized under the laws of the State of New Jersey ("PHCIS") (Accuhealth, Midview, AJIC, Citiview and PHCIS, each a "Borrower" and, jointly and severally, the "Borrowers"), and ROSENTHAL & ROSENTHAL, INC. ("Lender").


BACKGROUND


Borrowers (other than PHCIS) and Lender are parties to a Loan and Security Agreement dated as of April 28, 1994, as amended by Amendment No.1 dated as of February 1.1996 and Amendment No.2 dated as of February 1, 1997 (as further amended, supplemented or otherwise modified from time to time, the "Loan Agreement") pursuant to which Lender provided Borrowers (other than PHCIS) with certain financial accommodations.


Pursuant to an Agreement and Plan of Merger dated as of March 14, 1997, by and among Accuhealth, ACH Acquiring Corp., a wholly-owned subsidiary of Accuhealth ("Sub"), ProHealthCare, Inc. ("ProHealthCare"), PHCIS, a wholly-owned subsidiary of ProHealthCare, Thomas Laurita and David Brian Cohen (the "Purchase Agreement") (i) Accuhealth acquired all of the issued and outstanding shares of capital stock PHCIS from ProHealthCare and (ii) Sub was merged with and into PHCIS with PHCIS as the surviving corporation.


Borrowers (other than PHCIS) have requested that Lender permit PHCIS to become a Borrower under the Loan Agreement and Lender is willing to do so on the terms and conditions hereafter set forth.


NOW, THEREFORE, in consideration of any loan or advance or grant of credit heretofore or hereafter made to or for the account of Borrowers by Lender, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:


1. DEFINITIONS. All capitalized terms not otherwise defined herein shall have the meanings given to them in the Loan Agreement.


2. JOINDER.


(a) PHCIS is hereby added as an additional Borrower under the Loan Agreement, and all references to "Borrower" or "Borrowers" thereunder shall henceforth be deemed to include PHCIS;


(b) PHCIS hereby adopts the Loan Agreement and each of the Ancillary


Agreements and assumes in full, and acknowledges that it is jointly and severally liable for, the payment, discharge, satisfaction and performance of all Obligations under the Loan Agreement and the Ancillary Agreements. Without limiting the generality of the foregoing, in order to secure the prompt payment and performance to Lender of the Obligations, PHCIS hereby assigns, pledges and grants to Lender a continuing security interest in and to all of its Collateral, whether now owned or existing or hereafter acquired or arising and wheresoever located.


3. Amendment to Loan Agreement. Subject to satisfaction of the conditions precedent set forth in Section 4 below, the Loan Agreement is hereby amended as follows:


(a) Section 1(a) of the Loan Agreement is hereby amended by adding the following defined term in its appropriate alphabetical order:


"PHCIS" shall mean ProHealthCare Infusion Services, Inc., a New Jersey corporation.


(b) Exhibit 12(1) to the Loan Agreement is amended by adding the following at the end thereof:


"4. 30 Hillside Avenue
Springfield, NJ 07081"


(c) Exhibit 12(m) to the Loan Agreement is amended by adding the following at the end thereof:


"15. Promissory Note dated July 30, 1997 by ProHealthCare Infusion
Services, Inc. ("PHCIS") in favor of Bergen Brunswig Drug
Company ("Bergen") in the principal amount of $262,035.00,
which note is subject to the Subordination and Intercreditor
Agreement dated as of July 30, 1997 among PHCIS, Bergen and
Lender."


4. CONDITIONS OF EFFECTIVENESS. This Agreement shall become effective upon satisfaction of the following conditions precedent:


(i) Lender shall have received in form and substance
satisfactory to Lender four (4) copies of this Agreement duly executed
by each Borrower (including PHCIS) and consented to by each Guarantor;


(ii) Lender shall have received in form and substance
satisfactory to Lender an executed Purchase Agreement and all exhibits
and schedules thereto and all other documents and agreements executed
in connection therewith, including, but not limited to the Employment
Agreement, Non-competition Agreement, Tax Provisions Agreement,
Assignment and Assumption Agreement and Registration Rights Agreement;


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(iii) Accuhealth and/or PHCIS shall have obtained all
necessary consents with respect to each contract, lease, and agreement
being assigned to Accuhealth and/or PHCIS pursuant to the Purchase
Agreement. Accuhealth and PHCIS hereby covenant that no conditions to
effectiveness of the Purchase Agreement shall be waived by Accuhealth
or PHCIS without Lender's prior written consent, such consent not to be
unreasonably withheld;


(iv) Lender shall have received an executed Amended and
Restated Term Note in the form attached hereto as Exhibit A,


(v) Lender shall have received in form and substance
satisfactory to Lender a Collateral Assignment executed by Accuhealth
with respect to its rights under the Purchase Agreement;


(vi) Each document (including, without limitation, any Uniform
Commercial Code financing statement) required by this Agreement or
under law or reasonably requested by Lender to be filed, registered or
recorded in order to create, in favor of Lender, a perfected security
interest in or lien upon the Collateral owned by PHCIS shall have been
properly filed, registered or recorded in each jurisdiction in which
the filing, registration or recordation thereof is so required or
requested, and Lender shall have received an acknowledgment copy, or
other evidence satisfactory to it, of each such filing, registration or
recordation and satisfactory evidence of the payment of any necessary
fee, tax or expense relating thereto;


(vii) Lender shall have received a copy of the resolutions in
form and substance reasonably satisfactory to Lender, of the Board of
Directors of PHCIS authorizing (x) the execution, delivery and
performance of this Agreement, and (y) the granting by PHCIS of the
Liens upon the Collateral certified by the Secretary or an Assistant
Secretary of PHCIS as of the date of this Agreement; and, such
certificate shall state that the resolutions thereby certified have not
been amended, modified, revoked or rescinded as of the date of such
certificate;


(viii) Lender shall have received a copy of the Articles or
Certificate of Incorporation of PHCIS, and all amendments thereto,
certified by the Secretary of State or other appropriate official of
its jurisdiction of incorporation together with copies of the By-Laws
of PHCIS certified as accurate and complete by the Secretary or an
Assistant Secretary of PHCIS;


(ix) Lender shall have received good standing certificates for
PHCIS dated not more than thirty (30) days prior to the date of this
Agreement, issued by the Secretary of State or other appropriate
official of PHCIS's jurisdiction of incorporation and each jurisdiction
where the conduct of PHCIS's business activities or the ownership of
its properties necessitates qualification;


(x) Lender shall have received the executed legal opinions of
Proskauer Rose Goetz & Mendelsohn LLP and Crummy, Del Deo, Dolan,
Griffinger & Vecchione,


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each in form and substance satisfactory to Lender regarding the due
authorization, enforceability and validity of this Agreement by
Borrowers (other than PHCIS) and PHCIS, respectively, and the
transactions contemplated herein;
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