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.
1
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