Exhibit
10.2


 


EXECUTION COPY


 


WAIVER AGREEMENT


 


THIS WAIVER AGREEMENT (this “Agreement”), dated as of April 3, 2006, 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, (iv) that certain
Fourth Amendment to Amended and Restated Credit Agreement dated as of December
31, 2004, (v) the Waiver Agreements dated August 8, 2005, October 14, 2005 and
November 7, 2005, and (vi) the Forbearance Agreement dated December 1, 2005, as
amended by the First Amendment to Forbearance Agreement dated as of December
23, 2005, the Second Amendment to Forbearance Agreement dated as of January 30,
2006, and the Third Amendment to Forbearance Agreement dated as of March 14,
2006 (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, certain Events of
Default have occurred under the Credit Agreement prior to the date hereof,
specifically (a) the failure of the Borrowers to limit the Total Leverage Ratio
to 10.00:1.00 or less as required pursuant to Section 7.15 of
the Credit Agreement for the Fiscal Quarter ended December 31, 2005, (b) the
failure of Borrowers to limit the Fixed Charge Covenant to 0.50:1.00 or less as
required pursuant to Section 7.17 of the Credit Agreement for


 

















 


the Fiscal Quarter ended December 31, 2005, and (c)
the failure of the Borrowers to limit the Senior Secured Leverage Ratio to 1.25:1.00
or less as required pursuant to Section 7.16 of the Credit Agreement for the
Fiscal Quarter ended  December 31, 2005
(collectively, the “Specified Defaults”);


 


WHEREAS, the Borrowers have
requested that Agent and Lenders waive the Specified Defaults;


 


WHEREAS, subject to the terms
and conditions specified herein, Agent and Lenders are willing to waive the
Specified 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 as of the close of business on March 31,
2006, the Borrowers are indebted to Lenders in respect of the Revolving Loan in
the aggregate principal amount of $29,105,060.30 and in respect of the
aggregate Letter of Credit Obligations in the amount of $3,640,000.00. 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.


 


1.4          Acknowledgment of Defaults. Each Borrower hereby
acknowledges and agrees that (a) the Specified Defaults have occurred and,
prior to the effectiveness of this Agreement, are continuing and constitute
Events of Default which entitle the Agent and the Lenders to exercise their
rights and remedies under the Loan Documents, applicable law or otherwise, and


 

















 


(b) Agent and the
Lenders have the presently exercisable right to cease funding and declare the
Obligations to be immediately due and payable under the terms of the Loan
Documents.


 


SECTION 2. WAIVER


 


2.1          Waiver of Specified Defaults. In reliance upon the
representations, warranties and covenants of the Borrowers contained in this
Agreement, and subject to the terms and conditions of this Agreement and any
documents or instruments executed or delivered in connection herewith, the
Agent and the Lenders hereby waive the Specified Defaults solely for the fiscal
quarter ending December 31, 2005, with such waiver to remain effective through
April 17, 2006, the date for the hearing on approval of the Final Order
authorizing Borrowers to secure Debtor in Possession Financing from Lenders.


 


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, in each case to the extent expressly set forth
herein) or (ii) any Default or Event of Default which may hereafter arise
(whether similar to the Specified Defaults or otherwise), including, without
limitation, any failure by the Borrowers to comply with Section 7.15, Section
7.16 or Section 7.17 of the Credit Agreement for any Fiscal Quarter ended prior
to or after December 31, 2005.


 


(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
the conditions specified below have been satisfied:


 


(a)           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


 


(a)           Each
Borrower hereby further represents and warrants with and to Agent and Lenders
that after giving effect to the waivers in Section 2 hereof, the Borrowers
hereby


 

















 


represent and
warrant that each of the representations and 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. Except as may be limited by
applicable law in the Bankruptcy Cases, 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.


 


(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 Sue. 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 sue (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.


 


[Remainder of page
intentionally left blank]


 

















 


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:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  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:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  EBIOCARE.COM, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HEMOPHILIA ACCESS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  APEX THERAPEUTIC CARE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
							



 

















 


	
   

  	
  CHS SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CURATIVE HEALTH SERVICES OF NEW

  YORK, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  OPTIMAL CARE PLUS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INFINITY INFUSION, LLC

  
	
   

  	
   

  
	
   

  	
  By: Curative Health Services Co., its Sole

  Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
							



 

















 


	
   

  	
  INFINITY INFUSION II, LLC

  
	
   

  	
   

  
	
   

  	
  By: Curative Health Services Co., its Sole

  Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  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:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  MEDCARE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CURATIVE PHARMACY SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
							



 

















 


	
   

  	
  CURATIVE HEALTH SERVICES CO.,

  
	
   

  	
   

  
	
   

  	
  a
  Minnesota corporation formerly known as

  Curative Health Services, Inc.

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CRITICAL CARE SYSTEMS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
  CURATIVE HEALTH SERVICES III CO.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  	
   

  
							



 

















 


	
   

  	
  GENERAL ELECTRIC CAPITAL

  CORPORATION, as Lender and Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Its Duly Authorized Signatory

  
	
   

  	
  Date:

  	
   

  	
   

  
						



 

















 


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 sue 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, (iv) that certain Fourth Amendment to Amended and Restated Credit Agreement
dated as of December 31, 2004, (v) the Waiver Agreements dated August 8, 2005,
October 14, 2005 and November 7, 2005, and (vi) the Forbearance Agreement dated
December 1, 2005, as amended by the First Amendment to Forbearance Agreement
dated as of December 23, 2005, the Second Amendment to Forbearance Agreement
dated as of January 30, 2006, and the Third Amendment to Forbearance Agreement
dated as of March 14, 2006


 


As of this  th day of March, 2006.


 


	
   

  	
  CURATIVE HEALTH SERVICES III CO.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  
	
   

  	
  Date: