Exhibit 10.2
This Note Purchase Agreement, dated
May 13, 2005, is between Crestview Capital Master, LLC (the
“Lender”), and Allion Healthcare, Inc., a Delaware
corporation (the “Borrower”).
1. Authorization and Issuance of
the Promissory Note .
1.1 Authorization of the
Promissory Note . In order to finance the Borrower’s
working capital needs, the Borrower has authorized the issuance to
Lender of a Promissory Note in the principal amount of $2,000,000
(the “Loan Amount”), to be dated the Closing Date (as
defined below), to expire on the first anniversary of the date
hereof, to bear interest on the unpaid balance thereof at the rates
set forth therein from the date thereof until the principal shall
be paid in full, and to be substantially in the form of Exhibit A
(the “Promissory Note”).
1.2 Issuance of the Promissory
Note . The Borrower will issue to the Lender, at the Closing
provided for in Section 2, the Promissory Note. At the Closing, the
Lender will loan to the Borrower, on the terms and subject to the
conditions hereof, an amount equal to the Loan Amount.
1.3 Representations and
Warranties . The Borrower represents, warrants and covenants as
follows:
(A) Good Standing of the
Borrower; Authorization . The Borrower (i) is duly and validly
organized, validly existing and in good standing as a corporation
in the State of Delaware; (ii) is duly qualified as a foreign
corporation to do business in all other jurisdictions wherein the
nature of its business or property makes such qualifications
necessary; and (iii) has full corporate power and authority to own
its properties and to carry on its business as presently conducted
and to enter into and perform this Agreement, the Promissory Note,
the Warrant (as defined in Section 2) and the Registration Rights
Agreement (as defined in Section 2) (collectively, the
“Transaction Documents”). The execution, delivery and
performance of the Transaction Documents have been duly authorized
by all necessary proceedings on the part of the Borrower. This
Agreement, the Promissory Note and the Registration Rights
Agreement have been duly executed and delivered by the Borrower and
constitute legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their
respective terms. Upon the closing of the Offering (as defined in
the Promissory Note), the Warrant will be duly executed and
delivered by the Borrower and will thereafter constitute the legal,
valid and binding obligation of the Borrower, enforceable against
the Borrower in accordance with its terms.
(B) Compliance with Other
Instruments . The execution, delivery and performance of the
Transaction Documents will not result in any breach of, or
constitute a default under the charter or by-laws of the Borrower,
or any material agreement, instrument, judgment, decree, order,
statute, rule or regulation applicable to the Borrower. The
Borrower is not in violation of any term of its charter or by-laws,
or any term of any agreement, instrument, judgment, decree, order,
statute, rule or regulation applicable to it, the violation of
which could materially adversely affect the business, operations,
properties or financial condition of the Borrower.
(C) SEC Reports; Material Adverse
Changes . The forms, reports and documents filed by the
Borrower with the Securities and Exchange Commission since January
1, 2003 (including all exhibits, notes, and schedules thereto and
documents incorporated by reference therein) (collectively, the
“SEC Reports”) did not at the time filed or at the time
of their respective effective dates, as the case may be (or if
amended or superseded by a filing prior to the date of this
Agreement, then on the date of such filing), contain any untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements in such SEC Reports, in
the light of the circumstances under which they were made, not
misleading. The Borrower does not know of any fact (other than
matters of a general economic or political nature) which materially
adversely affects or, so far as the Borrower can now reasonably
foresee, will materially adversely affect the business, operations,
properties or financial condition of the Borrower, or the
performance by the Borrower of its obligations under the
Transaction Documents.
(D) Pending Litigation .
There are no actions, suits, proceedings or investigations pending,
or, to the knowledge of the Borrower, threatened, against or
affecting the Borrower before any court, arbitrator or
administrative or governmental body which could adversely affect
any action taken or to be taken by the Borrower under any of the
Transaction Documents or which could materially adversely affect
the business, operations, properties or financial condition of the
Borrower.
(E) Governmental Consents and
Permits . No consent, approval or authorization of, or
declaration or filing with, any governmental authority on the part
of the Borrower is required for the valid execution and delivery of
any of the Transaction Documents or the consummation of the
transactions contemplated hereby or thereby. The Borrower has all
material permits, licenses, franchises or other governmental
authorizations necessary or appropriate to operate its
business.
(F) Outstanding Indebtedness
. The outstanding principal balance of the credit facility provided
to the Borrow by GE HFS Holding LLC (“GE”) as of May
13, 2005 is $5,243,137.02, and as of such date, all interest and
fees required to be paid had been paid, and there was no event of
default, or event which, with the giving of notice or lapse of
time, could become an event of default, under such credit facility.
The Borrower covenants that, upon the closing of the Offering (as
defined in the Promissory Note), the Borrower shall repay the
entire principal balance then outstanding under the credit facility
and all accrued and unpaid interest thereon and fees
thereunder.
(G) Disclosure . No statement
contained in this Agreement contains any untrue statement of a
material fact or omit to state a material fact necessary in order
to make such statement, in the light of
