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"), XXXXXXXX.XXX, 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,
2007 issued by Holdings in favor of Xxx X. Xxxxxxxx, 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.
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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 Guaranty, duly authorized, executed and delivered by each of the Borrowers
and the Guarantor, respectively.
SECTION 4. REPRESENTATIONS AND WARRANTIES
4.1 In order to induce Agent and Lender to grant the foregoing waiver and
enter into this Agreement, each Borrower hereby represents and warrants to Agent
and Lenders that (a) the failure of Holdings or any Borrower to timely make any
of the Apex Note Principal Payments does not and will not constitute an "Event
of Default" under and as defined in the Senior Unsecured High Yield Note
Indenture, and (b) after giving effect to the waivers in Section 2 hereof, the
Borrowers hereby represent and warrant that each of the representations and
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warranties contained in the Loan Documents is true and correct on and as of the
date hereof, except for any representation and warranty that relates by its
terms only to a specified date (in which case, it shall be true on and as of
such date).
SECTION 5. PROVISIONS OF GENERAL APPLICATION
5.1 Effect of this Agreement. Except as modified pursuant hereto, no other
changes or modifications to the Loan Documents are intended or implied and in
all other respects the Loan Documents are hereby specifically ratified, restated
and confirmed by all parties hereto as of the effective date hereof. To the
extent of conflict between the terms of this Agreement and the other Loan
Documents, the terms of this Agreement shall control. The Credit Agreement and
this Agreement shall be read and construed as one agreement.
5.2 Costs and Expenses. The Borrowers hereby agree that they shall
reimburse the Agent on demand for all costs and expenses (including, without
limitation, attorney's fees) incurred by such parties in connection with the
negotiation, documentation and consummation of this Agreement and any other
document executed in connection herewith and therewith.
5.3 Binding Effect. This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and
assigns.
5.4 Survival of Representations and Warranties. All representations and
warranties made in this Agreement or any other document furnished in connection
with this Agreement shall survive the execution and delivery of this Agreement
and the other documents, and no investigation by Agent or any Lender or any
closing shall affect the representations and warranties or the right of Agent
and Lenders to rely upon them.
5.5 Release.
(a) Each Credit Party, on behalf of itself and its successors, assigns,
and other legal representatives, hereby absolutely, unconditionally and
irrevocably releases, remises and forever discharges GE Capital, Agent and
Lenders, and their successors and assigns, and their present and former
shareholders, affiliates, subsidiaries, divisions, predecessors, directors,
officers, attorneys, employees, agents and other representatives (GE Capital,
Agent, each Lender and all such other Persons being hereinafter referred to
collectively as the "Releasees" and individually as a "Releasee"), of and from
all demands, actions, causes of action, suits, controversies, sums of money,
accounts, bills, reckonings, damages and any and all other claims,
counterclaims, defenses, rights of set off, demands and liabilities whatsoever
(individually, a "Claim" and collectively, "Claims") of every name and nature,
known or unknown, suspected or unsuspected, both at law and in equity, which
such Credit Party or any of its successors, assigns, or other legal
representatives may now or hereafter own, hold, have or claim to have against
the Releasees or any of them for, upon, or by reason of any circumstance,
action, cause or thing whatsoever which arises at any time on or prior to the
date that this Agreement is executed by all parties, including, without
limitation, for or on account of, or in relation to, or in any way in connection
with the Credit Agreement or any of the other Loan Documents or transactions
thereunder or related thereto and which arise at any time on or prior to the
date that this Agreement is executed by all parties.
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(b) Each Credit Party understands, acknowledges and agrees that its
release set forth above may be pleaded as a full and complete defense and may be
used as a basis for an injunction against any action, suit or other proceeding
which may be instituted, prosecuted or attempted in breach of the provisions of
such release.
(c) Each Credit Party agrees that no fact, event, circumstance, evidence
or transaction which could now be asserted or which may hereafter be discovered
shall affect in any manner the final, absolute and unconditional nature of the
release set forth above.
5.6 Covenant Not to Xxx. Each Credit Party, on behalf of itself and its
successors, assigns, and other legal representatives, hereby absolutely,
unconditionally and irrevocably, covenants and agrees with and in favor of each
Releasee that it will not xxx (at law, in equity, in any regulatory proceeding
or otherwise) any Releasee on the basis of any Claim released, remised and
discharged by such Credit Party pursuant to Section 5.5 above. If any Credit
Party or any of their respective successors, assigns or other legal
representations violates the foregoing covenant, each Credit Party, for
themselves and their successors, assigns and legal representatives, jointly and
severally agree to pay, in addition to such other damages as any Releasee may
sustain as a result of such violation, all attorneys' fees and costs incurred by
any Releasee as a result of such violation.
5.7 Severability. Any provision of this Agreement held by a court of
competent jurisdiction to be invalid or unenforceable shall not impair or
invalidate the remainder of this Agreement.
5.8 Reviewed by Attorneys. Each Borrower represents and warrants to Agent
and Lenders that it (a) understands fully the terms of this Agreement and the
consequences of the execution and delivery of this Agreement, (b) has been
afforded an opportunity to have this Agreement reviewed by, and to discuss this
Agreement and document executed in connection herewith with, such attorneys and
other persons as such Borrower may wish, and (c) has entered into this Agreement
and executed and delivered all documents in connection herewith of its own free
will and accord and without threat, duress or other coercion of any kind by any
Person. The parties hereto acknowledge and agree that neither this Agreement nor
the other documents executed pursuant hereto shall be construed more favorably
in favor of one than the other based upon which party drafted the same, it being
acknowledged that all parties hereto contributed substantially to the
negotiation and preparation of this Agreement and the other documents executed
pursuant hereto or in connection herewith.
5.9 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK FOR CONTRACTS TO
BE PERFORMED ENTIRELY WITHIN SAID STATE.
5.10 Counterparts. This Agreement may be executed in any number of
counterparts, all of which shall be deemed to constitute but one original and
shall be binding upon all parties, their successors and permitted assigns.
Delivery of an executed signature page hereof by facsimile transmission shall be
effective as delivery of a manually executed counterpart hereof.
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IN WITNESS WHEREOF, this Waiver Agreement is executed and delivered as of
the day and year first above written.
LENDER AND AGENT:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
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Name:
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Title: Its Duly Authorized Signatory
[BORROWERS' SIGNATURES CONTINUE ON NEXT PAGE]
BORROWERS:
CURATIVE HEALTH SERVICES, INC.,
a Minnesota corporation formerly
known as Curative Holding Co.
By:
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Name:
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Title:
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Date:
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XXXXXXXX.XXX, INC.
By:
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Name:
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Title:
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Date:
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HEMOPHILIA ACCESS, INC.
By:
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Name:
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Title:
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Date:
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APEX THERAPEUTIC CARE, INC.
By:
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Name:
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Title:
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Date:
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CHS SERVICES, INC.
By:
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Name:
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Title:
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Date:
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CURATIVE HEALTH SERVICES OF
NEW YORK, INC.
By:
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Name:
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Title:
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Date:
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OPTIMAL CARE PLUS, INC.
By:
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Name:
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Title:
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Date:
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INFINITY INFUSION, LLC
By: Curative Health Services Co.,
its Sole Member
By:
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Name:
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Title:
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Date:
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INFINITY INFUSION II, LLC
By: Curative Health Services Co.,
its Sole Member
By:
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Name:
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Title:
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Date:
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INFINITY INFUSION CARE, LTD.
By: Infinity Infusion II, LLC,
its Sole General Partner
By: Curative Health Services Co., the Sole
Member of Infinity Infusion II, LLC
By:
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Name:
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Title:
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Date:
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MEDCARE, INC.
By:
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Name:
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Title:
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Date:
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CURATIVE PHARMACY SERVICES, INC.
By:
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Name:
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Title:
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Date:
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CURATIVE HEALTH SERVICES CO.,
a Minnesota corporation formerly known
as Curative Health Services, Inc.
By:
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Name:
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Title:
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Date:
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CRITICAL CARE SYSTEMS, INC.
By:
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Name:
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Title:
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Date:
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GUARANTORS:
CURATIVE HEALTH SERVICES III CO.
By:
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Name:
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Title:
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Date:
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GENERAL ELECTRIC CAPITAL CORPORATION,
as Lender and Agent
By:
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Name:
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Its Duly Authorized Signatory
Date:
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CONFIRMATION OF GUARANTY
The undersigned Guarantor hereby (a) acknowledges, consents and agrees to
the terms of the foregoing Waiver Agreement (the "Agreement") including, without
limitation, the release and covenant not to xxx in Sections 5.5 and 5.6 of the
Agreement, and (b) agrees and confirms that its obligations under the Guaranty
Agreement to which it is a party will continue in full force and effect and
extend to all Obligations under and as defined in the Amended and Restated
Credit Agreement as amended and modified 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 of this 14th day of October, 2005.
CURATIVE HEALTH SERVICES III CO.
By:
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Name:
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Title:
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Date:
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