Exhibit 10.4
WAIVER AND CONSENT
AGREEMENT
THIS WAIVER AND CONSENT
AGREEMENT (this “
Agreement ”) is made as of this 4
th
day of August, 2005, by
and among ALLION HEALTHCARE, INC. f/k/a THE CARE GROUP,
INC., a Delaware corporation (“ Allion ”),
MAIL ORDER MEDS OF TEXAS, INC., a Texas corporation (“
Meds Texas ”), MOMS PHARMACY, INC. f/k/a MAIL
ORDER MEDS OF NEW YORK, INC., a New York corporation,
(“ Moms New York ”), MOMS PHARMACY, INC.,
a California corporation, (“ Moms California ”),
MOMS PHARMACY, LLC, a Florida limited liability company
(“ Moms Florida ”), MEDICINE MADE EASY, a
California corporation (“ Medicine Made Easy ”),
NORTH AMERICAN HOME HEALTH SUPPLY, INC., a California
corporation (“ North American ”), SPECIALTY
PHARMACIES, INC., a Washington corporation (“
Specialty ” and, collectively with Allion, Meds Texas,
Moms New York, Moms California, Moms Florida, Medicine Made Easy
and North American, the “ Borrower ”), and GE
HFS HOLDINGS, INC., a Delaware corporation (“
Lender ”).
RECITALS
WHEREAS, pursuant to that certain Loan and Security
Agreement dated April 21, 1999 by and between Borrower and
Lender (as previously amended, as amended hereby and as further
amended, modified and restated from time to time, the “
Loan Agreement ”), Lender agreed to make available to
Borrower a revolving credit loan (the “ Loan ”);
and
WHEREAS, Section 7.4 of the Loan Agreement prohibits
Borrower from acquiring all or substantially all of the assets or
capital stock of any Person unless Borrower complies with certain
requirements set forth thereon, including without limitation that
(A) after giving effect to such acquisition, no default or
Event of Default shall have occurred or would exist as a result of
such purchase; (B) each such acquisition shall be of operating
assets utilized by the transferor in rendering health care services
or of 51% of the stock or other equity interests in a corporation
or other entity substantially all of whose properties consist of
such operating assets; (C) the aggregate consideration payable
(inclusive of cash payable, notes payable and indebtedness assumed)
in respect of all such acquisitions shall not exceed $1,000,000 for
any single acquisition or $10,000,000 on a cumulative basis over
the term of the Loan Agreement; and (D) the Borrower shall
have given the Lender not less than thirty (30) days prior
written notice of its intention to make an acquisition;
and
WHEREAS, Borrower has informed Lender that Moms
California has entered into an Asset Purchase Agreement dated as of
May 19, 2005 (the “ Oris Asset Purchase Agreement
”) with Oris Medical Systems, Inc., a Washington corporation
(“ Oris ”), pursuant to which Moms California
acquired from Oris certain assets of Oris substantially on the
terms and subject to the conditions set forth in the form of Asset
Purchase Agreement attached hereto as Exhibit A (the
“ Oris Transaction ”);
WHEREAS, Borrower has further informed Lender that
Medicine Made Easy wishes to enter into an Asset Purchase Agreement
to be dated as of August 5, 2005 (the “ Frontier
Asset
1
Purchase Agreement ”) with Frontier Pharmacy &
Nutrition, Inc., a California corporation d/b/a PMW Pharmacy, Inc.
(“ Frontier ”), pursuant to which Medicine Made
Easy will acquire from Frontier certain assets of Frontier
substantially on the terms and subject to the conditions set forth
in the form of Frontier Asset Purchase Agreement attached hereto as
Exhibit B (the “ Proposed Frontier
Transaction ”); and
WHEREAS, Borrower has failed to comply with the terms of
Section 7.4 of the Loan Agreement with respect to the Oris
Transaction and has requested that Lender waive the default arising
from such failure as more fully set forth herein, and Lender is
agreeable to such request only on the terms and conditions set
forth herein; and
WHEREAS, Borrower has requested that Lender provide its
written consent to the Proposed Frontier Transaction as more fully
set forth herein, and Lender is agreeable to such request only on
the terms and conditions set forth herein; and
NOW, THEREFORE,
in consideration of the foregoing,
the terms and condition
