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 Agreemen t ”), 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 effec
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