Exhibit 10.6
WAIVER AGREEMENT
THIS
WAIVER AGREEMENT (this "Agreement"), dated as of October 14, 2005,
is
entered into among CURATIVE HEALTH SERVICES, INC., a Minnesota corporation
formerly known as Curative Holding Co. ("Holdings"), EBIOCARE.COM, INC., a
Delaware corporation ("eBioCare"), HEMOPHILIA ACCESS, INC., a Tennessee
corporation ("Hemophilia Access"), APEX THERAPEUTIC CARE, INC., a California
corporation ("Apex"), CHS SERVICES, INC., a Delaware corporation ("CHS"),
CURATIVE HEALTH SERVICES OF NEW YORK,
INC., a New York
corporation
("CHSNY"),
OPTIMAL CARE PLUS, INC., a Delaware corporation ("Optimal Care"), INFINITY
INFUSION, LLC, a Delaware limited liability company ("Infinity"), INFINITY
INFUSION II, LLC, a Delaware limited
liability company ("Infinity II"), INFINITY
INFUSION CARE, LTD., a Texas limited
partnership ("Infinity Infusion"), MEDCARE,
INC., a Delaware corporation ("Medcare"), CURATIVE PHARMACY SERVICES,
INC., a
Delaware corporation ("CPS"), CURATIVE HEALTH SERVICES CO., a Minnesota
corporation formerly known as Curative
Health Services, Inc. ("CHSC"), CRITICAL
CARE SYSTEMS, INC., a Delaware corporation ("CCS") (Holdings, eBioCare,
Hemophilia Access, Apex, CHS, CHSNY, Optimal Care, Infinity, Infinity II,
Infinity Infusion, Medcare, CPS, CHSC and CCS are sometimes collectively
referred to herein as the "Borrowers" and individually as a "Borrower"),
CURATIVE HEALTH SERVICES III CO., a
Minnesota corporation,
and GENERAL ELECTRIC
CAPITAL CORPORATION, a Delaware corporation
("GE Capital"), as Agent and Lender.
W I T N E S S E T H:
WHEREAS,
the Borrowers and GE
Capital are parties to that certain Amended
and Restated Credit Agreement, dated April 23, 2004, as amended by (i) that
certain First Amendment to Amended and
Restated Credit
Agreement and Collateral
Documents dated as of May 3, 2004, (ii)
that certain Second Amendment to Amended
and Restated Credit Agreement dated as of June 30, 2004, (iii) that certain
Third Amendment to Amended and Restated
Credit Agreement dated as of October 20,
2004 and (iv) that certain Fourth Amendment to Amended and Restated Credit
Agreement dated as of December 31, 2004 (as
so amended, the
"Credit Agreement";
capitalized terms used but not defined in
this Agreement have the meanings given
in the Credit Agreement), whereby the Lenders have made
available a
revolving
credit facility and other financial
accommodations to the Borrowers, subject to
the terms and conditions contained in the
Credit Agreement;
WHEREAS,
Holdings has
notified GE Capital
that due to a dispute
between
the selling stockholders and Holdings relating to the previously
consummated
Apex acquisition and the related Stock Purchase
Agreement,
dated January 27,
2002 (such agreement referred to herein as
the "Apex Acquisition Agreement"), by
and among Holdings and the stockholders of Apex Therapeutic Care, Inc., (i)
Holdings has withheld payment of the September 30, 2005 scheduled principal
payment (such payment referred to herein as the
"September Apex Note
Principal
Payment") under that certain 4.4% Amended and Restated Promissory Note due
February 28,
<PAGE>
2007 issued by Holdings in favor of Jon M. Tamiyasu, in his capacity as
Stockholder Representative, in an aggregate original principal amount of
$3,700,000 (such promissory note referred to herein as the
"Apex Note"), and
(ii) Holdings may also withhold future
required payments of
principal under the
Apex Note, including any payments of
principal of the Apex Note resulting from
any acceleration of the maturity date of the Apex Note,
(all such principal
payments, together with the September Apex
Note Principal Payment
referred to
herein collectively as the "Apex Note
Principal Payments"), pending satisfactory
resolution of said dispute;
WHEREAS,
the Borrowers
have requested that Agent and Lenders waive
any
Default or Event of Default that has
occurred or may occur under Section 8.1(e)
or (f) of the Credit Agreement, in each case solely due to the failure by
Holdings or any other Credit Party to timely make any Apex Note Principal
Payments and, subject to the terms and
conditions hereof,
Agent and Lenders are
willing to waive any such Defaults and
Events of Defaults.
NOW,
THEREFORE,
in consideration of the foregoing, the respective
agreements, warranties and covenants
contained herein,
for $10 and other
good
and valuable consideration the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as
follows:
SECTION 1. ACKNOWLEDGMENTS AND
AGREEMENTS
1.1
Acknowledgment
of Obligations. Each of the Borrowers hereby
acknowledges, confirms and agrees that the
Borrowers are indebted to Lenders in
respect of the Revolving Loan and Letter of Credit
Obligations
outstanding on
the date hereof. All such Obligations, together with interest accrued and
accruing thereon, and fees, costs, expenses and other charges now or
hereafter
payable by the Borrowers to Lenders, are
unconditionally owing
by the Borrowers
to Lenders, without offset, defense or counterclaim of any kind, nature or
description whatsoever.
1.2
Acknowledgment of Liens. Each Borrower hereby acknowledges, confirms
and agrees that Agent has and shall
continue to have
valid, enforceable and
perfected first-priority liens upon and security
interests in the
Collateral
granted to Agent for the benefit of the
Lenders pursuant to
the Loan Documents
or otherwise granted to or held by Agent
for the benefit of the Lenders.
1.3
Binding Effect of Documents. Each Borrower hereby acknowledges,
confirms and agrees that: (a) each of the Loan Documents has
been duly executed
and delivered to the Agent and the
Lenders by each Borrower that is intended to
be a party thereto, and each is in full force and
effect as of the date hereof,
(b) the agreements and obligations of each Borrower contained in such Loan
Documents and in this Agreement constitute the legal, valid and binding
obligations of such Borrower, enforceable against it in accordance
with their
respective terms, and no Borrower has any valid
defense to the
enforcement of
such obligations, and (c) the Agent and the
Lenders are and shall be entitled to
the rights, remedies and benefits provided for in the Loan Documents and
applicable law.
2
<PAGE>
SECTION 2. WAIVER
2.1 Waiver
of Specified Defaults. In reliance upon the representations and
warranties of the Borrowers contained in this Agreement, and subject to the
terms and conditions of this Agreement, the Agent and the Lenders hereby
waive
any Default or Event of Default
that has occurred or may occur under Section
8.1(e) or (f) of the Credit Agreement, in
each case solely due to the failure by
Holdings or any other Credit Party to timely make any Apex Note Principal
Payments (such Defaults and Events of Default are referred to herein
collectively as the "Specified
Defaults").
2.2 No
Other Waivers; Reservation of Rights.
(a) Neither the Agent nor any other Lender has waived, or is by
this
Agreement waiving, (i) any Default or Event of
Default which may be continuing
on the date hereof other than the Specified Defaults or (ii) any Default or
Event of Default which may hereafter arise (whether similar to the Specified
Defaults or otherwise), including, without limitation, any Default or
Event of
Default that now or hereafter may occur as a result of the failure by any
Borrower to timely pay or perform any of
its obligations under
or in respect of
the Senior Unsecured High Yield Note
Indenture, any of the Senior Unsecured High
Yield Notes or any other Indebtedness (other than the Indebtedness under the
Apex Note) .
(b) The Agent and the Lenders reserve the right, in their
discretion, to exercise any or all of their
rights and remedies under the Credit
Agreement and the other Loan Documents as a result of any Default or
Event of
Default (other than the Specified Defaults,
in each case to the extent expressly
set forth herein) which may be continuing on the
date hereof or any Default or
Event of Default (other than the Specified
Defaults, in each case
to the extent
expressly set forth herein) which may occur after the
date hereof, and
nothing
in this Agreement, and no delay on the part of the
Agent or any Lender in
exercising any such right or remedy,
shall be construed as
a waiver of any such
right or remedy.
SECTION 3. CONDITIONS TO EFFECTIVENESS
3.1 This
Agreement shall become effective on the date upon which Agent
and
Lenders shall have received an original of
this Agreement and the
Confirmation
of Guaran
