Contract
THIS
INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE IN
THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN SUBORDINATION AGREEMENT
(AS THE SAME MAY BE AMENDED OR OTHERWISE MODIFIED FROM TIME TO TIME PURSUANT TO
THE TERMS THEREOF, THE “SUBORDINATION AGREEMENT”) DATED AS OF FEBRUARY 28, 2005,
BY AND AMONG XXX
XXXXXXXX, XXXX XXXXXXXX, XXXXXX XXXXXXXX, XXXXXX XXXXXXXX A/C/F XXX XXXXXXXX,
XXXXXXX XXXXXXX, XXXXXX XXXXXXX AND XXXXXXX XXXX (COLLECTIVELY, “SUBORDINATED
CREDITOR”),
ALLION
HEALTHCARE, INC., MAIL ORDER MEDS OF TEXAS, INC.,
MOMS
PHARMACY, INC. (A NEW YORK CORPORATION),
MOMS
PHARMACY, INC. (A CALIFORNIA CORPORATION),
MOMS
PHARMACY, LLC,
MEDICINE
MADE EASY,
NORTH
AMERICAN HOME HEALTH SUPPLY, INC.,
AND
SPECIALTY PHARMACIES, INC. (COLLECTIVELY, “COMPANY”), AND GE HFS HOLDINGS, INC.
(THE “SENIOR LENDER”),
TO THE INDEBTEDNESS (INCLUDING INTEREST) OWED BY BORROWER TO THE SENIOR LENDER
PURSUANT TO THE SENIOR DEBT DOCUMENTS (AS DEFINED IN THE SUBORDINATION
AGREEMENT), INCLUDING WITHOUT LIMITATION, PURSUANT TO THAT CERTAIN LOAN AND
SECURITY AGREEMENT DATED APRIL 21, 1999, BY AND AMONG
BORROWER AND SENIOR LENDER, AS SUCH LOAN AND SECURITY AGREEMENT MAY BE AMENDED,
RESTATED, SUPPLEMENTED OR OTHERWISE MODIFIED FROM TIME TO TIME, AND TO
INDEBTEDNESS TO SENIOR LENDER REFINANCING THE INDEBTEDNESS UNDER THAT AGREEMENT;
AND EACH HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE HEREOF, IRREVOCABLY AGREES
TO BE BOUND BY THE PROVISIONS OF THE SUBORDINATION
AGREEMENT.
GUARANTY
This
CONTINUING GUARANTY (“Guaranty”) is given by Allion Healthcare, Inc., a Delaware
corporation (“Guarantor”), to and for the benefit of Xxxxxxx Xxxxxxxx, Xxxx
Xxxxxxxx, Xxxxxx Xxxxxxxx, Xxxxxx Xxxxxxxx a/c/f Xxx Xxxxxxxx, Xxxxxxx Xxxxxxx
and Xxxxxx Xxxxxxx (“Holders”), in connection with the closing of the
transactions contemplated by the Stock Purchase Agreement dated February 28,
2005, among MOMS Pharmacy, Inc. (the “Principal Obligor”) and Holders (the
“Purchase Agreement”). This Guaranty is given for good and adequate
consideration, the receipt and sufficiency of which are hereby acknowledged.
Each capitalized term used herein and not otherwise defined shall have the
meaning given such term in the Purchase Agreement.
1. Guaranty.
In
consideration of the foregoing, the Guarantor hereby absolutely, irrevocably and
unconditionally guarantees the full and prompt performance of each and every
obligation of the Principal Obligor under the Notes.
2. Unconditional
Guaranty. Guarantor’s
liability hereunder is continuing, absolute and unconditional and shall not in
any manner whatsoever be deemed to be affected or impaired by any waiver,
forebearance, extension of time, amendment, or modification of any of the
provisions of the Notes, except that Guarantor may assert any and all defenses,
counterclaims, setoffs and reductions that the Principal Obligor could have
asserted under the Purchase Agreement and Notes.
3. No
Exhaustion of Remedies. Holders
may, upon notice to the Guarantor, enforce this Guaranty against the Guarantor
and it shall not be necessary to enforce any undertaking of the Principal
Obligor before proceeding under this Guaranty against the Guarantor. Demand,
protest and presentment for payment are hereby waived.
4. Bankruptcy. This
Guaranty shall remain in full force and effect without regard to, and shall not
be released, discharged or in any way affected by any bankruptcy, insolvency,
reorganization, liquidation, or other similar proceeding of the Principal
Obligor.
5. General
Waivers.
Guarantor hereby expressly waives (a) diligence, presentment, demand for
payment, protest, or the benefit of any statute of limitations affecting
Principal Obligor’s liability under the Loan Documents or the enforcement of
this Guaranty; (b) discharge due to any disability of Principal Obligor;
(c) the benefit of any act or omission by Holders which directly or
indirectly results in or aids the discharge of Principal Obligor from any of the
Obligations by operation of law or otherwise; (d) all notices whatsoever,
including, without limitation, notice of acceptance of this Guaranty and the
incurring of the Obligations; and (e) any requirement that Holders exhaust any
right, power or remedy or proceed against Principal Obligor or any other
security for, or any other guarantor of, or any other party liable for, any of
the Obligations, or any portion thereof. Guarantor specifically agrees that it
shall not be necessary or required, and Guarantor shall not be entitled to
require, that Holders (i) file suit or proceed to assert or obtain a claim for
personal judgment against Principal Obligor, for all or any part of the
Obligations; (ii) make any effort at collection or enforcement of all or any
part of the Obligations from the Principal Obligor; (iii) foreclose against or
seek to realize upon the Collateral or any other security now or hereafter
existing for all or any part of the Obligations; (iv) file suit or proceed to
obtain or assert a claim for personal judgment against Guarantor or any other
guarantor or other party liable for all or any part of the Obligations;
(v) exercise or assert any other right or remedy to which Holders is or may
be entitled in connection with the Obligations or any security or guaranty
relating thereto to assert; or (vi) file any claim against assets of Principal
Obligor before or as a condition of enforcing the liability of Guarantor under
this Guaranty. Without limiting the generality of the foregoing, Guarantor
expressly waives the benefit of California Civil Code Section 2815 permitting
the revocation of this Guaranty as to future transactions and the benefit of
California Civil Code Sections 2809, 2810, 2819, 2839, 2845, 2848, 2849, 2850,
2899 and 1432 with respect to certain suretyship defenses.
6. Governing
Law; Consent to Jurisdiction. This
Guaranty shall be governed by, determined and construed in accordance with the
laws of the State of California. Guarantor agrees that any action, proceeding or
claim against it arising out of, or relating in any way to, this Guaranty may be
brought and enforced in the courts of the State of California or of the United
States of America located in the County of Los Angeles, State of California, and
irrevocably submits to such jurisdiction for such purpose. The Guarantor hereby
irrevocably waives any objection to such exclusive jurisdiction or inconvenient
forum.
7. Continuing
Guaranty. The
liability of the Guarantor continues until such time that there is complete and
full performance of each and every obligation under the Notes. This Guaranty
shall be binding upon the Guarantor, and its successors and assigns, and shall
inure to the benefit of Holders, and their respective affiliates, legal or
personal representatives, distributees, successors and assigns.
8. Subordination. By
accepting this Guaranty, Holders are hereby agreeing from time to time to
execute and deliver upon Guarantor’s reasonable request subordination agreements
in favor of Guarantor’s lenders, which subordination agreements shall provide in
form and substance that Holders shall not receive any sums hereunder during an
event of default under Guarantor’s financing documents with Lender.
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9. Entire
Agreement; Modifications. This
Guaranty constitutes the entire agreement and is the final expression between
Holders and the Guarantor with respect to the subject matter hereof. The
Guaranty cannot be amended or otherwise modified except in writing signed by
Holders and the Guarantor.
Dated:
February 28, 2005.
ALLION
HEALTHCARE, INC.
By:
/s/
Xxxxxxx Xxxxx
Xxxxxxx
Xxxxx
CEO and President
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