Exhibit 10.2


 


FORBEARANCE
AGREEMENT


 


THIS FORBEARANCE AGREEMENT (this “Agreement”), dated as of December 1, 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. (“Guarantor”), a Minnesota corporation, and GENERAL ELECTRIC CAPITAL CORPORATION, a
Delaware corporation (“GE Capital”),
as Agent and Lender.


 


RECITALS:


 


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, the
Borrowers, Guarantor and GE Capital entered into that certain Waiver Agreement
dated as of November 7, 2005, respecting the existence of certain Events
of Default under the Credit Agreement (the “Waiver Agreement”);


 


WHEREAS, the
Borrowers and the Guarantor hereby acknowledge and confirm that Events of
Default have occurred and are continuing under Section 8.1 of the Credit
Agreement including but not limited to those occurring as a result of the
expiration of the temporary waiver, the expiration of the Waiver Period and the
continued existence of the November Note Interest Payment Default (as such
terms are defined in the Waiver Agreement (referred to as the


 


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“Existing
Defaults”).  The Borrowers
and Guarantor further waive notice of default respecting the Existing Defaults
and acknowledge and confirm that none of such Existing Defaults have been
waived by Lenders or cured by the Borrowers and that the foregoing
identification of specific Events of Default does not imply that other Events
of Default do not exist on the date hereof.


 


WHEREAS, the
Borrowers and Guarantor further acknowledge and agree that by reason of the
occurrence of the Existing Defaults, the Lenders are not required to make any
further loans or advances to the Borrowers, and the Agent and the Lenders have
the right at any time to exercise their rights and remedies under the Credit
Agreement and related Loan Documents.


 


WHEREAS, the
Borrowers and the Guarantor have requested, notwithstanding that the Existing
Defaults referred to above exist under the Credit Agreement and the November Waiver
Agreement and have not been waived or cured, that the Agent and the Lenders
forbear from exercising remedies on account of the Existing Defaults until the
sooner to occur of March 30, 2006 or the occurrence of a Terminating
Event, as such term is defined in Section 2 herein.


 


WHEREAS, the
Guarantor acknowledges and agrees that the Guaranty Agreement is and remains in
full force and effect on the date hereof as to all obligations of the Borrowers
to the Lenders outstanding on the date hereof and/or accruing and incurred
hereafter and the Guarantor hereby acknowledges and confirms that its Guaranty
is deemed part of the Loan Documents in respect of the Credit Agreement
referenced in this Agreement.


 


WHEREAS, the
Borrowers have requested that Lenders waive the Waiver Fee as defined in Section 5.1.(b)(ii) of
the Waiver Agreement dated August 8, 2005 (the “August Waiver”).


 


AGREEMENT:


 


NOW, THEREFORE, in consideration of the mutual promises and
covenants herein contained and intending to be legally bound hereby, the
parties hereto covenant and agree as follows:


 


1.                                       Forbearance Period.


 


(a)                                  Each of the Borrowers and the
Guarantor hereby acknowledges and confirms (i) the occurrence and
continuance of each of the Existing Defaults, and (ii) that the Existing
Defaults are material in nature.


 


(b)                                 Subject to the terms and
conditions hereof, including, without limitation, the satisfaction of the
conditions precedent described in Section 6 herein, each of the Lenders
agrees that during the period from the time that all conditions precedent
described in Section 6 herein are satisfied through the earlier of (i) 2:00 p.m.
(Eastern Time) on April 28, 2006, or (ii) the occurrence of a
Terminating Event (the “Forbearance Period”),
it will forbear from exercising remedies under the Credit Agreement and the
Loan Documents in respect of the Existing Defaults, other than: (i) the
right upon the occurrence of a Terminating Event to collect 


 


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interest
at the Default Rate and (ii) the rights and remedies described herein,
which rights and remedies the Borrowers acknowledges and confirms that the
Lenders are entitled to exercise pursuant to the terms of this Agreement.


 


(c)                                  During
the Forbearance Period, interest due under the Credit Agreement will: (i) accrue
at the Default Rate, and (ii) be paid at the rate provided for in the
Credit Agreement as if an Event of Default had not occurred.  The
difference between the interest accrued and the interest paid shall
hereafter be referred to as the “PIK Spread”. 
The PIK Spread shall become due and payable at the expiration or termination of
the Forbearance Period.  GE Capital
hereby agrees to waive the PIK Spread provided that:  (I) a Terminating Event does not occur
hereunder, (II) the Debtor accepts GE Capital’s proposal for the DIP Credit
Facility as provided in Section 7(c)(iii) hereof,  and (III) GE Capital provides the Replacement
Facility (as defined in the Waiver Agreement). 
The term Replacement Facility as used in the Waiver Agreement shall mean
an exit credit facility to enable Borrowers to emerge from Chapter 11 and
replace or refinance the Credit Agreement (and such DIP facility provided by GE
Capital in the Chapter 11 case).


 


2.                                       Terminating Events.  The obligation of the Lenders to forbear from
exercising remedies shall terminate upon the occurrence of any one or more of
the following events (each, a “Terminating Event”):


 


(a)                                  The Borrowers and/or Guarantor,
or any of them, shall fail to execute and deliver to the Agent any documents or
instruments reasonably determined by the Agent to be reasonably necessary or
desirable to perfect or to continue or confirm the perfection of the liens
and/or the security interests of the Agent in any Collateral within
two Business Days after any such documents or instruments are presented to
the Borrowers and/or Guarantor; and/or


 


(b)                                 Any Event of Default (other than
the Existing Defaults) occurs; provided, however, that no Event of Default
shall be deemed to occur by reason of the filing by the Borrowers of a
voluntary proceeding under Chapter 11; and/or


 


(c)                                  The Borrowers and/or the
Guarantor, or any of them, shall have failed to comply with any of the
provisions of this Agreement, including without limitation, the provisions of
Sections 3 and 8; and/or


 


(d)                                 Failure of the Borrowers to
comply with the deadlines set forth in Section 7(c) hereof after five
(5) business days written notice to the Borrowers and such default having
not been cured within such five (5) days; provided, however, if the
default arises under Section 7(c) (i) (ii) (iii) or
(iv), then the Forbearance Period may not expire sooner than January 7,
2006; and/or


 


(e)                                  The
filing of a case under Chapter 11 in which debtor-in-possession financing is
provided by any person or entity other than GE Capital or a syndicate of
lenders arranged and agented by GE Capital.


 


Upon the occurrence of a Terminating Event, without further notice to
the Borrowers or Guarantor or any other action on the part of Lenders, (i) all
Obligations owing to Lenders,


 


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together with
interest thereon at the Default Rate shall be immediately due and payable
without presentment, demand, protest or other notice of any kind, (ii) Lenders
shall not be obligated to make any further advances or to permit the further
use by the Borrowers of the Collateral and (iii) Lenders may exercise any
and all rights and remedies under the Credit Agreement, the Loan Documents and
applicable law.


 


3.                                       Other Agreements.  Each of the parties hereby agree that:


 


(a)                                  The Borrowers shall deliver to
the Agent on the first Business Day following the fifteenth (15th)
day of each month, a certificate reflecting the calculation of the Borrowers’
Borrowing Base, which shall be calculated with respect to Eligible Receivables,
as of the fifteenth (15th) day of such month, and which shall be
calculated with respect to Eligible Inventory, as of the fifteenth (15th)
day of such month, and to be in such form satisfactory to the Agent (the “Interim Borrowing Base
Certificate”).  The Interim Borrowing Base Certificate shall
be in addition to, and not in lieu of, the monthly Borrowing Base Certificate
required to be delivered to the Agent by the Borrowers pursuant to Section 5.2(a) of
the Credit Agreement.  


 


(b)                                 Commencing on the Effective Date
(as defined below) and throughout the Forbearance Period, all Advances shall
bear interest as provided in Section 1(c) hereof on the principal amounts
due as set forth in Section 3(c).


 


(c)                                  As of November 29, 2005,
the outstanding principal balance due under the Credit Agreement is
$27,736,367.92,  the pre-payment penalty
is $1,200,000 (the “Pre-Payment Fee”) and accrued and unpaid interest is
$181,063.12 all of which, but for this Forbearance Agreement, are now due and
payable.  Lenders shall waive the
Pre-Payment Fee on the same terms and conditions that it has agreed to waive
the PIK Spread as provided in Section 1(c).  


 


(d)                                 Commencing on the Effective Date
and continuing throughout the Forbearance Period, the Borrowers shall comply
with the financial covenants set forth in the Credit Agreement as may be
modified by the Waiver Agreement, August Waiver and such other agreements
entered into between Borrowers and Lenders, provided, however, that Lenders
hereby waive the Waiver Fee due under, and defined in, Section 5.1(b)(ii) of
the August Waiver.


 


(e)                                  The Borrowers will deliver to
the Agent, on or before December 8, 2005, cash flow projections in
connection with the contemplated Chapter 11 case of the Borrowers which will
reflect, among other things, compliance with cash reserve needs to satisfy
reclamation and unsecured creditor claims pursuant to Bankruptcy Code Sections
546(c) and 503(b)(9).


 


4.                                       Advances.  During the Forbearance Period, each of the
parties hereby agree that provided that no Default or Event of Default (other
than the Existing Defaults) shall have occurred and be continuing the Agent and
the Lenders shall continue to make Revolving Advances to the Borrowers as
provided by Section 2.1 of the Credit Agreement.


 


5.                                       Blocked Accounts; Depository
Accounts.


 


(a)                                  In accordance with the terms of
the Credit Agreement, certain Blocked Accounts and/or Depository Accounts have
been established by the Borrowers in which the proceeds of the Collateral are
deposited by the Borrowers and each of its Subsidiaries.  Each


 


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Blocked
Account and/or Depository Account shall be and remain under the sole dominion
and control of the Agent.


 


(b)                                 The Borrowers and Guarantor
acknowledge and agree that they have no right of withdrawal from the Blocked
Accounts and/or the Depository Accounts except for uses permitted by this
Agreement and the Credit Agreement, and that the funds on deposit in such
accounts shall continue to be collateral security for the Obligations.


 


6.                                       Conditions Precedent.  This Agreement and the agreements of the
Lenders described herein will not be effective unless and until each of the
following has occurred or been satisfied, or waived in writing by the Agent and
the Lenders, by (i) the close of business on December 2, 2005 or (ii) such
later time as the Agent and the Lenders may agree in their sole discretion (the
“Effective Date”):


 


(a)                                  The Borrowers and Guarantor will
have executed and delivered this Agreement; and


 


(b)                                 The Agent shall have received,
in immediately available funds, an amount equal to all Documentation Fees (as
defined below) arising in connection with the negotiation and execution of this
Agreement plus the Agent Fee (as defined below).


 


7.                                       Representations and Warranties.


 


(a)                                  Each of the Borrowers and the
Guarantor hereby acknowledges and confirms that (i) all of the Recitals
set forth above are true and correct; (ii) the Agent has informed the
Borrowers and the Borrowers agree that as of the close of business on November 29,
2005, there remain outstanding Letters of Credit issued by Lender for Borrowers’
account in the face amount of $225,000, and in addition, the Borrowers are
liable to the Lenders under the Credit Agreement and the Loan Documents in an
aggregate principal amount of $27,511,367.92 in Revolving Advances, plus
accrued but unpaid interest thereon, plus the costs and expenses of the Agent
and the Lenders incurred in connection with the Obligations and reimbursable
under the Credit Agreement, including, without limitation, reasonable attorneys’
fees and expenses incurred by the Agent and Lenders (or any of them) in the
negotiation, preparation or enforcement of this Agreement, and any documents,
agreements or instruments referred to herein, plus the Pre-Payment Fee, all
without offsets, counterclaims or defenses of any kind or nature whatsoever; (iii) the
acknowledgment of the Existing Defaults does not imply that other Events of Default
do not exist as of the date hereof; (iv) the Credit Agreement and the Loan
Documents are in full force and effect as to the Borrowers and the Guarantor
and are enforceable against Borrowers and Guarantor in accordance with their
respective terms; (v) all intercompany accounts receivable and
intercompany accounts payable among Borrowers and the Guarantor are the result
of arm’s length transactions entered into in good faith in the ordinary course
of business; (vi) the Borrowers and Guarantor do not have any claims,
defenses, causes of action, counterclaims or offsets against the Agent or any
Lender or their respective officers, employees, agents, directors,
subsidiaries, affiliates or attorneys of any kind or nature whatsoever; and (vii) as
of the date hereof, all liens, security interests, assignments and pledges
encumbering the Collateral, created pursuant to and/or referred to in the
Credit Agreement or the Loan Documents, are first priority liens, security
interests, assignments and pledges subject only to


 


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Permitted
Encumbrances, continue unimpaired, are in full force and effect and secure and
shall continue to secure all of the obligations described in the respective
instruments in which such interests were granted;


 


(b)                                 The Borrowers and Guarantor
hereby further represent and warrant that:


 


(i)                                     After
giving effect to this Agreement, and except for those matters constituting
Existing Defaults, all of the representations and warranties of the Borrowers
and the Guarantor in the Credit Agreement and the Loan Documents (except those
made as of and which were intended to be limited to a specific earlier date)
are true and complete in all material respects on the date hereof with the same
force and effect as if made on such date;


 


(ii)                                  Except
for the Existing Defaults, no Event of Default under the Credit Agreement or
any Loan Document, and no event which, with the expiration of a grace period or
the giving of notice, or both, would constitute an Event of Default, has
occurred and is continuing;


 


(iii)                               After
giving effect to this Agreement, no representation or warranty by the Borrowers
or Guarantor contained in this Agreement or any document, agreement or
instrument to be executed or delivered herewith contains any untrue statements
of material fact or omits to state a material fact necessary to make such
representation or warranty not misleading in light of the circumstances under
which it was made;


 


(iv)                              The
execution, delivery and performance of this Agreement, and any document,
agreement or instrument to be executed or delivered herewith, by the Borrowers
and Guarantor (to the extent they are parties to such document, agreement or
instrument) will not result in the violation of any mortgage, indenture, material
contract, instrument, agreement, judgment, decree, order, statute, rule or
regulation to which the Borrowers or Guarantor (to the extent they are parties
to such document, agreement or instrument) are subject or by which they or any
of their respective property is bound;


 


(v)                                 This
Agreement and the documents, agreements and instruments to be executed or
delivered herewith constitute the legal, valid and binding obligations of the
Borrowers and Guarantor (to the extent they are parties to such document,
agreement or instrument), are enforceable against Borrowers and Guarantor (to
the extent they are parties thereto) in accordance with their terms and have
been duly authorized, executed and delivered by the Borrowers and Guarantor;


 


(vi)                              No
consents or approvals are required in connection with the execution, delivery
and performance by the Borrowers and Guarantor of this Agreement or any
documents, agreements or instruments to be executed or delivered herewith that
have not been previously obtained; and


 


(vii)                           Each of the Borrowers and
the Guarantor has the corporate power, legal capacity, and authority to
execute, deliver and carry out the terms and provisions of this Agreement and
the transactions contemplated hereby and has taken or caused to be taken all
necessary corporate or other action to authorize the execution, delivery and
performance of this Agreement and the transactions contemplated hereby.


 


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(c)                                  The Borrowers intend to file a
so-called pre-packaged Chapter 11 case and, in connection therewith, the
Borrowers shall:


 


(i)                                     Circulate
to Lenders for review, a proposed agreement between the Borrowers and the
holders of the Senior Unsecured High Yield Notes resolving all defaults
thereunder on or before December 21, 2005;


 


(ii)                                  Circulate
a plan and disclosure statement to GE Capital for approval and comment on or
before December 26, 2005;


 


(iii)                               On
or before December 26, 2005, the Borrowers shall have either (i) accepted
GE Capital’s proposal to provide a DIP credit facility (the”DIP Credit Facility”) 
, or (ii) delivered to Agent a written commitment from a reputable
lender to provide a DIP credit facility that provides for payment in full of
the Obligations not later than the date such DIP credit facility is approved by
final order of the Bankruptcy Court.


 


(iv)                              Distribute
solicitations to the plan and disclosure statement on or before January 2,
2005;


 


(v)                                 File
Chapter 11 on or before February 1, 2006; and


 


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


 


(d)                                 The Borrowers and Guarantor
hereby expressly acknowledge and confirm that the foregoing representations and
warranties are being specifically relied upon by the Lenders as a material
inducement to the Lenders to enter into this Agreement and to forbear from
exercising the Lenders’ rights and remedies under the Credit Agreement and the
Loan Documents, other than their right upon the occurrence of a Terminating
Event to charge interest at the Default Rate and the rights and remedies described
herein.  The foregoing representations
and warranties shall survive the execution and delivery of this Agreement and
the documents, agreements and instruments to be executed or delivered herewith.


 


8.                                       Fees; Expenses; Costs.   The Borrowers shall pay on demand all
reasonable out-of-pocket costs and expenses of the Agent and the Lenders,
heretofore or hereafter incurred, which are related to or in connection with
this Agreement, the Credit Agreement, 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 the Agent or any of the Lenders (the “Documentation Fees”).  In addition, the Borrowers shall pay to the
Agent a forbearance fee in an amount equal to $300,000 (the “Agent 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, the Agent may reserve from the
amounts otherwise available to the Borrowers as a Revolving Credit Advance such
amounts necessary to pay the Documentation Fees and Agent Fee.


 


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9.                                       Disgorgement.  If any Lender is, for any reason, compelled
by a court or other tribunal of competent jurisdiction to surrender or disgorge
any payment, interest or other consideration described hereunder to any person
because the same is determined to be void or voidable as a preference,
fraudulent conveyance, impermissible set-off or for any other reason, such
indebtedness or part thereof intended to be satisfied by virtue of such payment,
interest or other consideration shall be revived and continue as if such
payment, interest or other consideration had not been received by such Lender,
and the Borrowers and Guarantor shall be liable to, and shall indemnify, defend
(engaging counsel acceptable to such Lender) and hold such Lender harmless for,
the amount of such payment or interest surrendered or disgorged.  The provisions of this Section 9 shall
survive execution and delivery of this Agreement and the documents, agreements
and instruments to be executed or delivered herewith.


 


10.                                 No Defenses; Reliance.


 


(a)                                  Each of the Borrowers and the
Guarantor hereby acknowledges and confirms that there are no existing defenses,
claims, counterclaims or rights of recoupment or set-off against the Agent or
any Lender in connection with the Obligations owed to the Agent or the Lenders
under the Credit Agreement or any Loan Document or in connection with the
negotiation, preparation, execution, performance or any other matters relating
to the Credit Agreement, the Loan Documents or this Agreement.


 


(b)                                 Each of the Borrowers and the
Guarantor further acknowledges and agrees that, notwithstanding anything to the
contrary set forth in this Agreement, the Agent and the Lenders do not have,
nor shall have, an obligation other than as specifically and expressly set
forth in this Agreement to:  (i) amend
the Credit Agreement or any Loan Document or otherwise further restructure the
Obligations; (ii) make any further loans, advances or extension of credit
to or for the benefit of the Borrowers or any Guarantor, (iii) extend the
Forbearance Period; (iv) refrain from terminating the Forbearance Period
upon the occurrence of any Terminating Event or (v) enter into any other
instruments, agreements or documents regarding any of the same with the
Borrowers or any Guarantor, and that neither the Lenders nor any of their
respective representatives have made any agreements with, or commitments or
representations or warranties to, the Borrowers or any Guarantor (either in writing
or orally), other than as expressly stated in this Agreement.


 


(c)                                  Each of the Borrowers and the
Guarantor understands and further agrees that the Lenders are relying on all
terms, covenants, conditions, warranties and representations set forth in this
Agreement, including, without limitation, the Lenders’ right to terminate the
Forbearance Period at any time upon the occurrence of a Terminating Event, as a
material inducement to the Lenders to enter into this Agreement.


 


11.                                 Cumulative Remedies; Non-Waiver.


 


(a)                                  Except as otherwise specifically
provided in this Agreement, the rights, powers, authorities, remedies,
interests and benefits conferred upon the Agent and the Lenders by and as
provided in this Agreement are intended to supplement, and be in addition to
(and shall not in any way otherwise replace, supersede, amend, limit or
restrict), the rights, powers,


 


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authorities,
remedies, interests, and benefits conferred by the Credit Agreement and the Loan
Documents.


 


(b)                                 Except as otherwise specifically
provided in this Agreement, the Agent and the Lenders’ execution of or
performance under this Agreement does not (and it shall not be construed so as
to) waive, relinquish, restrict or limit in any way any of the rights,
remedies, claims or causes of action that the Agent or any Lender has or may
have under or with respect to the Credit Agreement, the Loan Documents, or
applicable law (all of which are expressly reserved) regardless of whether any
of the foregoing relate to or arise out of acts, omissions, events or
transactions occurring before or after the date hereof.  Except as otherwise specifically provided in
this Agreement, the Agent and the Lenders hereby expressly reserve all rights
to take any and all actions, and exercise any and all remedies, authorized
under the Credit Agreement, any Loan Document or at law or in equity as a
result of or with respect to the occurrence and continuance of any Events of
Default that have or may have heretofore occurred thereunder and any Events of
Default that may hereafter occur or exist thereunder.  Nothing contained herein, and no action taken
by the Agent or any Lender pursuant hereto or as provided herein, shall be
deemed to be a waiver of any Events of Default.


 


(c)                                  No delay on the part of the
Agent or any Lender in the exercise of any power, right or remedy under this
Agreement, the Credit Agreement or any Loan Document at any time shall operate
as a waiver thereof, and no single or partial exercise by the Agent or any
Lender of any power, right or remedy shall preclude other or further exercise
thereof or the exercise of any other power, right or remedy.


 


12.                                 Release.  In consideration of the accommodations being
made available by the Lenders to or for the benefit of the Borrowers or
Guarantor under this Agreement, including, without limitation, the Lenders’
agreement to forbear, the Borrowers and Guarantor, for themselves and their
respective agents, employees, representatives, subsidiaries, affiliates, shareholders,
officers, successors and assigns, do hereby remise, release and forever
discharge the Agent and the Lenders and their respective shareholders,
subsidiaries, affiliates, directors, servants, agents, employees,
representatives, officers, attorneys and their respective heirs, personal
representatives, successors and assigns of and from any and all claims,
counterclaims, demands, actions and causes of action of any nature whatsoever,
whether at law or in equity, including, without limitation, any of the
foregoing arising out of or relating to the Credit Agreement and the Loan
Documents, any acts or omissions of any releasee in connection therewith, the
transactions described in this Agreement or any proposed financing arrangements
to or for the benefit of the Borrowers or any Guarantor, or any entities owned
by or under the control of the Borrowers or any Guarantor, which any of them,
now has or hereafter can or may have for or by reason of any cause, matter or
thing whatsoever, from the beginning of the world to the date hereof; provided,
however, that nothing contained in this Section 12 shall relieve the
Lenders of their obligations under this Agreement.


 


13.                                 Waivers.  In consideration of the accommodations being
made available by the Lenders to or for the benefit of the Borrowers and
Guarantor under this Agreement, including, without limitation, the forbearance
on the part of the Lenders:


 


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(a)                                  The Borrowers and Guarantor
hereby waive the benefit of any theory or statute requiring the marshaling of
assets or other similar legal doctrine and agree that upon a Terminating Event
the Agent and the Lenders may exercise their rights against the Collateral and
apply the proceeds thereof to any of the Obligations, as aforesaid.


 


(b)                                 The Borrowers and Guarantor
hereby agree that, to the extent the Borrowers and Guarantor would otherwise
have a right of notification of sale under Section 9-611 of the Uniform
Commercial Code as enacted in any applicable state, ten days’ prior written
notice of any sale of the Collateral shall be sufficient to satisfy any such
notice requirement under Section 9-611 of the Uniform Commercial Code.


 


14.                                 Relationship.  The Borrowers and Guarantor agree that the
relationship between the Agent, the Lenders, the Borrowers and Guarantor is
that of creditor and debtor and not that of partners or joint venturers.  This Agreement does not constitute a
partnership agreement, or any other association between the Agent, the Lenders,
the Borrowers and Guarantor.  The
Borrowers and Guarantor acknowledge that the Agent and the Lenders have acted
at all times only as creditors to the Borrowers and Guarantor within the normal
and usual scope of the activities normally undertaken by a creditor and in no event
has the Agent or any Lender attempted to exercise any control over the
Borrowers or Guarantor or their respective businesses or affairs.  The Borrowers or Guarantor further
acknowledge that the Agent and the Lenders have not taken or failed to take any
action under or in connection with their rights under the Credit Agreement and
the Loan Documents that in any way or to any extent have interfered with or
adversely affect the Borrowers’ and/or Guarantor’s ownership of the Collateral.


 


15.                                 Notices.  All notices, requests or other communications
required or desired to be given hereunder shall be sent by registered or
certified mail, return receipt requested, postage prepaid, to the addressee at
the address listed in the Credit Agreement or at such other address as any
party may designate in writing, or any such notice, request or other
communication may be sent by any other means, but no such notice, request or
other communication shall be deemed delivered until it is actually received by
the intended recipient.


 


16.                                 No Third Party Beneficiaries.  This Agreement is made and entered into for
the sole protection and benefit of the parties hereto and the Agent and the
Lenders and no other person or entity shall have any right of action hereon,
right to claim any right or benefit from the terms contained herein, or be
deemed a third party beneficiary hereunder.


 


17.                                 Severability.  Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Agreement, it being the parties’ intention that each and every provision
of this Agreement be enforced to the fullest extent permitted by applicable
law.


 


18.                                 Further Assurances. At the Agent’s reasonable
request, the Borrowers and Guarantor shall promptly execute any other document
to evidence or further the intent of the parties as set forth herein.


 


10





















 


19.                                 Counterparts.  This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute but
one and the same instrument.  The
signature page of any counterpart may be detached therefrom without
impairing the legal effect of the signature(s) thereon provided such signature page is
attached to any other counterpart identical thereto except having additional
signature pages executed by other parties to this Agreement attached
thereto.  Delivery of an executed counterpart
of the signature page by telecopier shall be as effective as delivery of
an original manually executed counterpart.


 


20.                                 Descriptive Headings;
Construction.  The headings in this Agreement are intended
for convenient references only and shall not in any way limit, amplify or be
used in interpreting the terms of this Agreement.  The masculine, feminine or neuter gender in
the singular or plural shall be deemed to include the others wherever the
context of this Agreement so requires. 
This Agreement shall not be construed against any party hereto as the
drafters of this Agreement.


 


21.                                 Governing Law.  The parties acknowledge and agree that this
Agreement shall be governed by, and construed in accordance with the laws of
the State of New York .


 


22.                                 Time of Essence.  Time is of the essence with respect to this
Agreement.


 


23.                                 Successors and Assigns.  This Agreement shall be binding upon, and
shall inure to the benefit of, the Agent, the Lenders, the Borrowers and
Guarantor and their respective successors and assigns, except that the
Borrowers or Guarantor may not assign their rights under this Agreement, the
Credit Agreement or any Loan Documents without the prior written consent of the
Agent.


 


24.                                 Waiver of Jury Trial. 
THE PARTIES WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS AGREEMENT, THE CREDIT
AGREEMENT OR ANY OTHER DOCUMENT OR RELATING TO OR ARISING FROM THE RELATIONSHIP
WHICH IS THE SUBJECT OF THE CREDIT AGREEMENT, THE OTHER DOCUMENTS, OR THIS
AGREEMENT AND AGREE THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A
COURT AND NOT BEFORE A JURY.


 


25.                                 Lenders’ Actions.  The authority herein conferred upon the Agent
and the Lenders and any action taken by the Agent or any Lender hereunder or
under the Credit Agreement and any Loan Document or any document, agreement or
instrument referred to herein will be taken by the Agent and the Lender for the
protection of the Agent and the Lenders only, and the Agent and the Lenders do
not assume and shall not be deemed to have assumed any responsibility to the
Borrowers or Guarantor or to any other persons with respect to any such action
authorized or taken by the Agent or any Lender. 
Except for the specific rights and obligations of the Agent and the
Lenders set forth in this Agreement, no other party hereto shall be entitled to
rely upon, or claim to have relied upon, any action taken or failed to have
been taken by the Agent or any Lender or their respective consultants, agents,
employees or representatives.


 


11





















 


26.                                 Amendments. This Agreement may be amended
only by a written agreement signed by the parties.


 


27.                                 Voluntary Agreement.  The Borrowers and Guarantor represent and
warrant to the Agent and the Lenders that the Borrowers and Guarantor are
represented by legal counsel of their choice, that they have consulted with
such counsel regarding this Agreement, that they are fully aware of the terms
and provisions contained herein and of their effect and that they have
voluntarily and without coercion or duress of any kind entered into this
Agreement.


 


28.                                 Indemnification.  From and after the date hereof, the Borrowers
and Guarantor, severally and collectively, shall indemnify, defend and hold
harmless the Agent and each Lender and its respective shareholders,
subsidiaries, affiliates, directors, servants, agents, employees,
representatives, officers, attorneys and their respective heirs, personal
representatives, successors and assigns (severally and collectively, the “Indemnified Parties”) against and from any and all
liability for, and against and from all losses or damages Indemnified Parties
may suffer as a result of, any claim, demand, cost, expense, or judgment of any
type, kind, character or nature (including reasonable attorneys’ fees and court
costs), which Indemnified Parties shall incur or suffer as a result of (a) any
act or omission of the Borrowers or Guarantor or any of their agents or
representatives in connection with the Credit Agreement, the related Loan
Documents, the transactions described in this Agreement and/or any of the
instruments, agreements and documents referred to in this Agreement, (b) the
breach or inaccuracy of any of the representations or warranties of the
Borrowers or Guarantor, or (c) the breach of any of the respective
covenants set forth herein of the Borrowers or Guarantor.  This indemnification shall survive execution,
delivery and subsequent termination of this Agreement.


 


29.                                 Integration.  This Agreement and the instruments,
agreements and documents referred to in this Agreement shall be deemed
incorporated into and made a part of the Credit Agreement and the Loan
Documents.  All such instruments,
agreements and documents, and this Agreement, shall be construed as integrated
and complementary of each other, and, except as otherwise specifically provided
in this Agreement, as augmenting and not restricting the Agent and the Lenders’
rights, remedies, benefits and security. 
If after applying the foregoing an inconsistency still exists, the
provisions of this Agreement shall constitute an amendment to the Credit
Agreement and shall control.


 


30.                                 Other Terms.  Subject to the provisions of this Agreement,
all other terms of the Credit Agreement, including without limitation, the
representations, warranties and covenants contained therein, in the Loan Documents
and in the waiver agreements dated August 8, 2005, October 14, 2005
and November 7, 2005, are not modified by this Agreement or any of the
documents, agreements or instruments referred to herein and shall remain in
full force and effect between the parties


 


Nothing in this Agreement or any related
documents shall constitute a waiver of any existing or future Event of Default
or, to the extent not expressly provided herein, any rights and/or remedies of
the Agent and the Lenders.  Nothing in
this Agreement shall affect or impair the effectiveness of any of the Guaranty
of the Guarantor with respect either to existing or future indebtedness of the
Borrowers to the Agent and the Lenders. 
The Guarantor, in consideration of the Agent and the Lenders entering
into this Agreement hereby irrevocably and specifically


 


12





















 


waives
and releases any and all defenses and/or grounds of avoidance such Guarantor
has or may believe it has to any or all of its obligations under any of the
Guaranty referred to herein, including, without limitation, any defense or
ground of avoidance based on lack of perfection of any security interest of the
Agent or any Lender in any Collateral.


 


IN WITNESS WHEREOF, the parties hereto have
caused this Agreement 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]


 


13





















 


	
   

  	
  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: