Exhibit 10.1


 


THIRD AMENDMENT
FORBEARANCE AGREEMENT


 


THIS THIRD AMENDMENT TO THE FORBEARANCE AGREEMENT (this
“Third Amendment”), dated as of March 14,
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. (“Guarantor”)
Minnesota corporation, and GENERAL
ELECTRIC CAPITAL CORPORATION, a Delaware corporation (“GE Capital”), as Agent and Lender.


 


RECITALS:


 


A.
Pursuant to that certain Forbearance Agreement dated December 1,
2005 by and between Borrowers and GE Capital (the “Forbearance Agreement”), GE Capital
agreed to forbear on certain of its rights and obligations under an 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”);


 


B.
By First Amendment to Forbearance Agreement (the “First
Amendment”) dated as of December 23, 2005 and Second Amendment to
Forbearance Agreement dated as of January 30, 2006 (the “Second Amendment”),
the parties amended certain terms of the Forbearance Agreement. As used herein,
the term Forbearance Agreement shall include the First Amendment and Second
Amendment.


 


C. The
parties hereto have agreed to further amend certain terms of the Forbearance Agreement
upon the terms and conditions and other requirements set forth herein.


 

















 


NOW,
THEREFORE, in consideration of the foregoing, the terms and
conditions set forth in this Amendment, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, GE
Capital, the Borrowers and Guarantor agree as follows:


 


1.
Definitions:  Unless
otherwise defined herein, all capitalized terms herein shall have the meanings
assigned to such terms in the Forbearance Agreement.


 


2.
Confirmation of Representation and Warranties:  The
Borrowers and Guarantor hereby confirm that all of the representations and
warranties set forth in the Forbearance Agreement are true and correct with respect
to such Borrower.


 


3.
Enforceability: This Third Amendment constitutes the
legal, valid and binding obligation of the Borrowers and Guarantor, and is
enforceable against Borrowers and Guarantor according to its terms.


 


4.
Effective Date: This Third Amendment shall be effective
upon execution and delivery to GE Capital of this Third Amendment by Borrowers
and Guarantor.


 


5. Costs: Borrowers shall be responsible
for the payment on demand of all reasonable out-of-pocket costs and expenses of
GE Capital heretofore or hereafter incurred, which are related to or in
connection with this Third Amendment and any documents, agreements or
instruments executed in connection herewith or therewith including, without
limitation, the reasonable fees and expenses of the consultants, attorneys or
other professionals retained by GE Capital (the “Documentation Fees”). Nothing in this Third Amendment
shall be intended or construed to hold the Agent or the Lenders liable or
responsible for any expense, liability or obligation of any kind or nature
whatsoever incurred by the Borrowers or any Guarantor (including, without
limitation, attorneys’ fees and expenses, other professionals’ fees and
expenses, any crisis manager’s fees and expenses, wages, salaries, payroll
taxes, withholdings, benefits or other amounts payable by or on behalf of the
Borrowers or any Guarantor). Additionally, GE Capital may reserve from the
amounts otherwise available to the Borrowers as a Revolving Credit Advance such
amounts necessary to pay the Documentation Fees.


 


6. Amendments to the Forbearance
Agreement:
Effective as of the date of this Third Amendment, the following provision of
the Forbearance Agreement is amended:


 


(a)                                  Sections 7(c)(v) and 7(c)(vi) are
deleted and replaced with the following:


 


(v)  File Chapter 11 on or before March 28, 2006.


(vi) Confirm a Chapter 11 case on or before June 30, 2006.


 


7. Reference to the Effect on
the Forbearance Agreement:


 


(a) Upon the effectiveness of this Third
Amendment, each reference in the Forbearance Agreement to “this Agreement,” “hereunder,”
“hereof,” “herein” or words of similar import shall mean and be a reference to
the Forbearance Agreement as amended by this Third Amendment.


 

















 


(b) Except as specifically amended
above, the Forbearance Agreement, and all other documents related to the Credit
Agreement, shall remain in full force and effect, and are hereby ratified and
confirmed.


 


(c)  The execution, delivery and effectiveness
of this Third Amendment shall not, except as expressly provided in this Third
Amendment, operate as a waiver of any right, power or remedy of GE Capital, nor
constitute a waiver of any provision of the Forbearance Agreement, or any other
documents, instruments and agreements executed or delivered in connection with
the Credit Agreement and/or the Forbearance Agreement. GE Capital reserves all
of its rights under the Credit Agreement and the Forbearance Agreement.


 


8. Governing Law:    This Third
Amendment shall be governed by and construed in accordance with the laws of the
State of New York.


 


9. Headings: Section headings in this Third
Amendment are included for convenience purposes only and shall not constitute a
part of this Third Amendment for any other purpose.


 


10. Counterparts: This Third Amendment may be
executed in counterparts, and both counterparts taken together shall be deemed
to constitute on and the same instrument. This Third Amendment may be
executed by facsimile.


 


IN WITNESS WHEREOF, the parties hereto have
caused this Third Amendment to be acknowledged, executed and delivered by their
duly authorized officers as of the date first above written.


 


 


	
   

  	
  LENDER AND AGENT:

  
	
   

  	
   

  
	
   

  	
  GENERAL ELECTRIC CAPITAL CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Richard T. Arrowsmith

  	
   

  
	
   

  	
  Name:

  	
  Richard T. Arrowsmith

  	
   

  
	
   

  	
  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:

  	
   

  	
  /s/ Thomas Axmacher

  	
   

  
	
   

  	
  Name:

  	
  Thomas Axmacher

  	
   

  
	
   

  	
  Title:

  	
  C.F.O.

  	
   

  
	
   

  	
  Date:

  	
  March 15, 2006

  	
   

  



 

















 


	
   

  	
  EBIOCARE.COM, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas Axmacher

  	
   

  
	
   

  	
  Name:

  	
  Thomas Axmacher

  	
   

  
	
   

  	
  Title:

  	
  Treasurer

  	
   

  
	
   

  	
  Date:

  	
  March 15, 2006

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  HEMOPHILIA
  ACCESS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas Axmacher

  	
   

  
	
   

  	
  Name:

  	
  Thomas Axmacher

  	
   

  
	
   

  	
  Title:

  	
  Treasurer

  	
   

  
	
   

  	
  Date:

  	
  March 15, 2006

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  APEX
  THERAPEUTIC CARE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas Axmacher

  	
   

  
	
   

  	
  Name:

  	
  Thomas Axmacher

  	
   

  
	
   

  	
  Title:

  	
  C.F.O.

  	
   

  
	
   

  	
  Date:

  	
  March 15, 2006

  	
   

  



 

















 


	
   

  	
  CHS
  SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas Axmacher

  	
   

  
	
   

  	
  Name:

  	
  Thomas Axmacher

  	
   

  
	
   

  	
  Title:

  	
  Treasurer

  	
   

  
	
   

  	
  Date:

  	
  March 15, 2006

  	
   

  
	
   

  	
   

  
	
   

  	
  CURATIVE
  HEALTH SERVICES OF NEW

  YORK, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas Axmacher

  	
   

  
	
   

  	
  Name:

  	
  Thomas Axmacher

  	
   

  
	
   

  	
  Title:

  	
  Treasurer

  	
   

  
	
   

  	
  Date:

  	
  March 15, 2006

  	
   

  
	
   

  	
   

  
	
   

  	
  OPTIMAL
  CARE PLUS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas Axmacher

  	
   

  
	
   

  	
  Name:

  	
  Thomas Axmacher

  	
   

  
	
   

  	
  Title:

  	
  Treasurer

  	
   

  
	
   

  	
  Date:

  	
  March 15, 2006

  	
   

  
	
   

  	
   

  
	
   

  	
  INFINITY
  INFUSION, LLC

  
	
   

  	
   

  
	
   

  	
  By:
  Curative Health Services Co., its Sole

  Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas Axmacher

  	
   

  
	
   

  	
  Name:

  	
  Thomas Axmacher

  	
   

  
	
   

  	
  Title:

  	
  Treasurer

  	
   

  
	
   

  	
  Date:

  	
  March 15, 2006

  	
   

  



 

















 


	
   

  	
  INFINITY
  INFUSION II, LLC

  
	
   

  	
   

  
	
   

  	
  By:
  Curative Health Services Co., its Sole

  Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas Axmacher

  	
   

  
	
   

  	
  Name:

  	
  Thomas Axmacher

  	
   

  
	
   

  	
  Title:

  	
  Treasurer

  	
   

  
	
   

  	
  Date:

  	
  March 15, 2006

  	
   

  
	
   

  	
   

  
	
   

  	
  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:

  	
   

  	
  /s/ Thomas Axmacher

  	
   

  
	
   

  	
  Name:

  	
  Thomas Axmacher

  	
   

  
	
   

  	
  Title:

  	
  C.F.O.

  	
   

  
	
   

  	
  Date:

  	
  March 15, 2006

  	
   

  
	
   

  	
   

  
	
   

  	
  MEDCARE, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas Axmacher

  	
   

  
	
   

  	
  Name:

  	
  Thomas Axmacher

  	
   

  
	
   

  	
  Title:

  	
  Treasurer

  	
   

  
	
   

  	
  Date:

  	
  March 15, 2006

  	
   

  
	
   

  	
   

  
	
   

  	
  CURATIVE
  PHARMACY SERVICES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas Axmacher

  	
   

  
	
   

  	
  Name:

  	
  Thomas Axmacher

  	
   

  
	
   

  	
  Title:

  	
  Treasurer

  	
   

  
	
   

  	
  Date:

  	
  March 15, 2006

  	
   

  



 

















 


	
   

  	
  CURATIVE
  HEALTH SERVICES CO.,

  
	
   

  	
  a
  Minnesota corporation formerly known as

  Curative Health Services, Inc.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas Axmacher

  	
   

  
	
   

  	
  Name:

  	
  Thomas Axmacher

  	
   

  
	
   

  	
  Title:

  	
  C.F.O.

  	
   

  
	
   

  	
  Date:

  	
  March 15, 2006

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  CRITICAL
  CARE SYSTEMS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas Axmacher

  	
   

  
	
   

  	
  Name:

  	
  Thomas Axmacher

  	
   

  
	
   

  	
  Title:

  	
  C.F.O.

  	
   

  
	
   

  	
  Date:

  	
  March 15, 2006

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUARANTOR:

  
	
   

  	
   

  
	
   

  	
  CURATIVE HEALTH SERVICES III CO.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas Axmacher

  	
   

  
	
   

  	
  Name:

  	
  Thomas Axmacher

  	
   

  
	
   

  	
  Title:

  	
  C.F.O.

  	
   

  
	
   

  	
  Date:

  	
  March 15, 2006