Exhibit 10.1


 


FIRST AMENDMENT
FORBEARANCE AGREEMENT


 


THIS FIRST AMENDMENT TO THE FORBEARANCE AGREEMENT (this
“Amendment”), dated as of December 23,
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”nd 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. The
parties hereto have agreed to 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.


 


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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
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
Amendment shall be effective upon (a) execution and delivery to GE Capital
of this Amendment by Borrowers and Guarantor, and (b) review and approval
by GE Capital of an updated Borrowing Base certificate (in the form as approved
by GE Capital in its sole discretion), and (c) payment of the Extension
Fee (hereafter defined).


 


5.  Costs: Borrowers shall be responsible
for the payment on demand all reasonable out-of-pocket costs and expenses of GE
Capital heretofore or hereafter incurred, which are related to or in connection
with this 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”).  In addition, the
Borrowers shall pay to GE Capital an extension fee in an amount equal to
$75,000 (the “Extension Fee”).  Nothing in this Agreement 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 and Extension Fee.


 


6.  Amendments to the Forbearance Agreement: Effective as of the date of
this Amendment, the following provisions of the Forbearance Agreement are
amended:


 


(a)           The date April 28,
2006 in Section 1(b) of the Forbearance Agreement is extended to June 10,
2006;


 


(b)           GE Capital
acknowledges that the Borrowers have complied with their obligations under Section 7(c)(i),
(ii) and (iii) of the Forbearance Agreement;


 


(c)           Sections 7(c) (iv-vi)
are deleted and replaced with the following.


 


(iv)  Distribute solicitations to the plan and disclosure
statement on or before January 31, 2006; 

(v) File Chapter 11 on or before March 15, 2006; and


(vi) Confirm a Chapter 11 case on or before June 1, 2006.


 


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7.  Reference to the Effect on the Forbearance
Agreement:


 


(a) Upon the effectiveness of this 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 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 Amendment shall not, except as expressly provided in this 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
Amendment shall be governed by and construed in accordance with the laws of the
State of New York.


 


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


 


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


 


IN WITNESS WHEREOF, the parties hereto have
caused this 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:

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  
	
   

  	
  Title: Its Duly Authorized Signatory

  
					



 


 


[BORROWERS’
SIGNATURES CONTINUE ON NEXT PAGE]


 


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  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: