EX-10.32






Exhibit 10.32




AMENDMENT AND WAIVER AGREEMENT




     This Amendment and Waiver Agreement (“Agreement”) is made as of the 6th day of March, 2009 by
and among Allion Healthcare, Inc. (“Allion”), Biomed Healthcare, Inc., Access Therapeutics, Inc.,
Atlas Respiratory Services, Inc., Biomed California, Inc. (“BioMed CA”), Biomed Florida, Inc.,
Biomed Kansas, Inc., Biomed PA, Inc., Biomed Pharmaceuticals, Inc., Biomed Texas, Inc., Access
Healthcare Services, LLC, Moms Pharmacy of Brooklyn, Inc., Moms Pharmacy, Inc., Moms Pharmacy,
Inc., Mail Order Meds of Florida, LLC, Oris Health, Inc., North American Home Health Supply, Inc.,
Medicine Made Easy and Specialty Pharmacies, Inc. (together with Allion and Biomed CA,
collectively, the “Borrowers” and each individually referred to as a “Borrower”), the financial
institutions listed as lenders on the signature pages hereto (collectively, the “Lenders”), and CIT
Healthcare LLC, as administrative agent (“Agent”).



Background




     A. Borrowers, Agent and Lenders are parties to that certain Credit and Guaranty Agreement
dated as of April 4, 2008 (as amended, modified, restated and supplemented from time to time,
including by that certain letter agreement executed by Borrowers, Agent and Lenders dated June 25,
2008, the “Credit Agreement”) pursuant to which Borrowers established certain financing
arrangements with Lenders. All capitalized terms not otherwise defined herein shall have the
meaning ascribed thereto in the Credit Agreement.



     B. Borrowers acknowledge that Borrowers failed to promptly notify Agent of the Application
Denial (as defined below) pursuant to Section 6.03 of the Credit Agreement and (ii) that the
Application Denial may have resulted in certain misrepresentations being made with respect to those
representations contained in Sections 5.07(b), 5.16, 5.26, 5.28 and 5.29(ii) as they may be
impacted by the denial by the Department of Health Care Services of the State of California
(“DHCS”) of the change of ownership application submitted by BioMed CA with respect to a pharmacy
acquired by BioMed in July, 2007 (the “Application Denial”) corresponding to the change of
ownership filed by Allion and BioMed CA as the case may be on July 18, 2007 and April 29, 2008
respectively.



     C. Borrowers have requested and Agent and Lenders have agreed to waive the consequences of
such failures and possible misrepresentations relating to the Application Denial and amend certain
terms and conditions of the Credit Agreement pursuant to the terms and conditions of this
Agreement.



     NOW, THEREFORE, with the foregoing Background incorporated by reference and made a part hereof
and intending to be legally bound, the parties agree as follows:



     1. Waivers. Upon the effectiveness of this Agreement, Agent and Lenders hereby waive
(a) Borrowers’ failure to notify Agent of the Application Denial under Section 6.03 of the Credit
Agreement and (b) any misrepresentations under Sections 5.07(b), 5.16, 5.26, 5.28 and 5.29(ii) of
the Credit Agreement solely with respect to any matters relating to and impacted by the Application
Denial; provided, however, the waiver in this clause (b) shall not apply to any representation
regarding any event, circumstance or condition which now or in the future could reasonably be
expected to have a Material Adverse Effect. Such waiver shall in no way constitute a waiver of any
other failure to comply with any provision of the Credit Agreement which may have



 









 







occurred but which is not specifically referenced in this Agreement, nor shall it obligate
Agent or any Lender to provide any waiver of, or other accommodation with respect to, any other
such failure (whether similar or dissimilar, including, without limitation, (i) a failure to comply
with Section 6.03 and/or Section 9.01(d) of the Credit Agreement, (ii) any Events of Default
resulting from a final non-appealable judgment from a court of competent jurisdiction upholding
and/or affirming (or failing to overturn or reverse in full) the Application Denial and/or (iii)
any other actions taken by or on behalf of any Governmental Authority, including, without
limitation, DHCS or any intermediary against the Borrowers, or any of them, including, without
limitation, any action or request seeking repayment, disgorgement or recoupment of any amounts paid
by or on behalf of DHCS or any intermediary or imposing any fines or penalties as a result of, or
in connection with, the Application Denial).



     2. Default. Upon the effectiveness of this Agreement, the following shall constitute
an Event of Default under the Credit Agreement: any request or demand for repayment, recoupment or
disgorgement in an amount in excess of $2,000,000 relating to, or in connection with, the
Application Denial is paid, made, requested or assessed against any Loan Party; provided, that,
such request, demand or assessment is based on a final non-appealable judgment, determination or
finding from a court or other Governmental Authority (including, without limitation, DHCS or any
intermediary).



     3. Representations and Warranties. Each Borrower represents and warrants to Agent and
each Lender that:


          (a) Assuming the effectiveness of this Agreement, all warranties and representations made to
Lender under the Credit Agreement and the Loan Documents are true and correct as to the date
hereof.


          (b) Except for the enrollment in MediCal for BioMed CA and the related matter regarding a
change of ownership in connection with the Target Merger that has been consolidated with it
(“BioMed MediCal Matter”), each Borrower that seeks reimbursement under Medicare or Medicaid is
currently enrolled and participates in the Medicare and state Medicaid programs of the
jurisdictions in which such Borrower operates.


          (c) No penalty, sanction, fine or restriction has been currently assessed or imposed upon any
Borrower, nor has any claim for repayment, disgorgement or recoupment of amounts paid to or on
behalf of BioMed CA or any other Borrower been asserted or threatened, in connection with or
related to the BioMed MediCal Matter or any other matter, in each case which could reasonably be
expected to have a Material Adverse Effect.


          (d) Neither the BioMed MediCal Matter, nor any fine, sanction or penalty that may be hereafter
imposed (should BioMed CA be unsuccessful in its appeal of the Application Denial) if paid or
successfully appealed, has negatively affected or impaired, or would reasonably be likely to
negatively affect or impair: (i) any Permit for any of BioMed CA’s pharmacies or the Permit of any
other pharmacy, supplier or provider owned, managed or operated by any of the Borrowers or its
Affiliates or (ii) the right or ability of BioMed CA or any other pharmacy, supplier or provider
owned, managed or operated by any of the Borrowers or its Affiliates to participate in Medicare,
any state Medicaid program or any other payor program in which such Borrower currently

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participates in or may, in the future participate in, or otherwise participated in on the
Closing Date, in either case, which could reasonably be expected to have a Material Adverse Effect.


          (e) Except for the BioMed MediCal Matter, there is no pending or, to Borrowers’ knowledge,
threatened, action or proceeding challenging or contesting any Permit or right of any of the
Borrowers to participate in Medicare, any state Medicaid program or any other payor program and
Borrowers are not aware of any facts or events that would give any governmental agency the right or
authority to contest or challenge any of the foregoing, in each case, which could reasonably be
expected to have a Material Adverse Effect.


          (f) The execution and delivery by each Borrower of this Agreement, and all other documents,
instruments, and agreements executed in connection with this Agreement and the performance by it of
the transactions herein contemplated, (i) are and will be within its powers, (ii) have been
authorized by all necessary organizational action, and (iii) are not and will not be in
contravention of any order of any court or other agency of government, of law or any other
indenture, agreement or undertaking to which such Borrower is a party or by which the property of
such Borrower is bound, or be in conflict with, result in a breach of, or constitute (with due
notice and/or lapse of time) a default under any such indenture, agreement or undertaking or result
in the imposition of any lien, charge or encumbrance of any nature on any of the properties of such
Borrower.


          (g) This Agreement, all other documents, instruments and agreements executed in connection
with this Agreement and any assignment, instrument, document, or agreement executed and delivered
in connection herewith, will be valid, binding, and enforceable in accordance with its respective
terms, except as enforceability may be limited by applicable Debtor Relief Laws or by equitable
principles relating to enforceability.


          (h) Assuming the effectiveness of this Agreement, no Default or Event of Default has occurred
and is continuing under the Credit Agreement or any of the other Loan Documents.



     4. Effectiveness Conditions. This Agreement shall be effective upon satisfaction of
the following conditions precedent (all documents to be in form and substance satisfactory to Agent
and Agent’s counsel in its sole and absolute discretion):


          (a) Execution and delivery by Borrowers of this Agreement;


          (b) No Default or Event of Default after giving effect hereto shall have occurred and be
continuing under the Credit Documents;


          (c) All warranties and representations made to Lender under the Credit Agreement, the Loan
Documents and hereunder are true and correct as to the date hereof; and


          (d) Payment by Borrowers of any and all costs, fees and expenses of Agent (including, without
limitation, reasonable attorneys’ fees) in connection with this Agreement and the transaction
contemplated hereby.



     5. Default. Without limiting the terms of the Credit Agreement and for avoidance of
doubt, it shall be an Event of Default under the Credit Agreement if (a) any representation or



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warranty made by Borrowers, or any of them, in this Agreement shall be incorrect or misleading
in any material respect at any time made or deemed made or (b) Borrowers, or any of them, fail to
perform or observe any covenant or agreement set forth in this Agreement.



     6. Confirmation of Indebtedness. Borrowers hereby acknowledge and confirm that as of
the close of business on March 5, 2009, Borrowers are indebted to Agent and Lenders, without
defense, setoff, claim or counterclaim under the Loan Documents, in the aggregate principal amount
of $51,946,346.74, comprised of (a) $17,821,346.74 with respect to the Revolving Loans and (b)
$34,125,000.00 with respect to the Term Loan plus all fees, costs and expenses (including
attorneys’ fees) incurred to date in connection with, and as payable under the Loan Documents.



     7. Ratification of Credit Documents. Except as expressly set forth herein, all of the
terms and conditions of the Credit Agreement and Loan Documents are hereby ratified and confirmed
and continue unchanged and in full force and effect. All references to the Credit Agreement shall
mean the Credit Agreement as modified by this Agreement.



     8. Collateral. Each Borrower hereby confirms and agrees that all security interests
and liens granted to Agent, for the benefit of Lenders, continue in full force and effect and shall
continue to secure the Obligations.



     9. Release. As further consideration for Agent’s and Lenders’ agreement to grant the
accommodations set forth herein, Borrowers hereby waive and release and forever discharge Agent and
each Lender and each of their respective officers, directors, attorneys, agents and employees
(collectively, “Released Parties”) from any liability, damage, claim, loss or expense of any kind
that Borrowers, or any of them, may now or hereafter have against the Released Parties, or any of
them, arising out of or relating to the Obligations, this Agreement, the Credit Agreement or the
Loan Documents, but only to the extent of any circumstance, action, cause or matter arising at any
time on or prior to the date that this Agreement is executed by all parties.



     10. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES
HERETO SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO ANY CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD CALL FOR THE APPLICATION OF
THE LAWS OF ANY OTHER JURISDICTION.



     11. Waiver of Right to Trial by Jury. EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY
WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER
THIS AGREEMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF THE PARTIES
HERETO OR ANY OF THEM WITH RESPECT TO ANY CREDIT DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN
EACH CASE WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE
OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY
FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE
CONSENT OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.



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     12. Signatories: Each individual signatory hereto represents and warrants that he or
she is duly authorized to execute this Agreement on behalf of his or her principal and that he or
she executes the Agreement in such capacity and not as a party.



     13. Duplicate Originals: Two or more duplicate originals of this Agreement may be
signed by the parties, each of which shall be an original but all of which together shall
constitute one and the same instrument. This Agreement may be executed in counterparts, all of
which counterparts taken together shall constitute one completed fully executed document.
Signature by facsimile or PDF shall bind the parties hereto.



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     IN WITNESS WHEREOF, the parties have executed this Agreement the day and year first above
written.



	 	 	 
	Borrowers:

	 	ALLION HEALTHCARE, INC.

	 

	 	BIOMED HEALTHCARE, INC.

	 

	 	ACCESS THERAPEUTICS, INC.

	 

	 	ATLAS RESPIRATORY SERVICES, INC.

	 

	 	BIOMED CALIFORNIA, INC.

	 

	 	BIOMED FLORIDA, INC.
	 

	 	BIOMED KANSAS, INC.
	 

	 	BIOMED PA, INC.
	 

	 	BIOMED PHARMACEUTICALS, INC.
	 

	 	BIOMED TEXAS, INC.
	 

	 	ACCESS HEALTHCARE SERVICES, LLC
	 

	 	MOMS PHARMACY OF BROOKLYN, INC.
	 

	 	MOMS PHARMACY, INC., a New York corporation
	 

	 	MOMS PHARMACY, INC., a California corporation
	 

	 	MAIL ORDER MEDS OF FLORIDA, LLC
	 

	 	ORIS HEALTH, INC.
	 

	 	NORTH AMERICAN HOME HEALTH SUPPLY, INC.
	 

	 	MEDICINE MADE EASY
	 

	 	SPECIALTY PHARMACIES, INC.






	 	 	 	 	 
	 	 	 
	 	By:  	/s/ Michael P. Moran
 	 
	 	 	Name:  	Michael P. Moran 	 
	 	 	Title:  	President 	 
	 





	 	 	 
	Agent:

	 	CIT HEALTHCARE LLC, as Agent







	 	 	 	 	 
	 	 	 
	 	By:  	/s/
John Cappellari 	 
	 	 	Name:  	John Cappellari 	 
	 	 	Title:  	Vice President 	 
	 







	 	 	 
	Lenders:

	 	CIT HEALTHCARE LLC, as Lender







	 	 	 	 	 
	 	By:  	/s/
John Cappellari 	 
	 	 	Name:  	John Cappellari 	 
	 	 	Title:  	Vice President 	 
	 






	 	 	 
	 

	 	FIFTH THIRD BANK, as Lender





	 	 	 	 	 
	 	By:  	/s/

Jeffrey A. Thiemann 	 
	 	 	Name:  	Jeffrey A. Thiemann 	 
	 	 	Title:  	Vice President 	 
	 






[SIGNATURE PAGE TO AMENDMENT AND WAIVER AGREEMENT]





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