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Exhibit 10.1
FIRST AMENDMENT TO THIRD AMENDED AND
RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS FIRST AMENDMENT TO THIRD AMENDED AND
RESTATED REVOLVING CREDIT AND TERM LOAN AGREEMENT (this "
Amendment "), is made and entered into as of February
20, 2007, by and among HEALTHWAYS, INC., a Delaware corporation
(the " Borrower "), the several banks and other
financial institutions from time to time party hereto
(collectively, the " Lenders ") and SUNTRUST BANK, in
its capacity as Administrative Agent for the Lenders (the "
Administrative Agent "), and as the Issuing Bank and
the Swingline Lender.
W I T N E
S S E T H :
WHEREAS, the Borrower, the Lenders and the
Administrative Agent are parties to a certain Third Amended and
Restated Revolving Credit and Term Loan Agreement, dated as of
December 1, 2006 (as amended, restated, supplemented or otherwise
modified from time to time, the " Credit Agreement ";
capitalized terms used herein and not otherwise defined shall have
the meanings assigned to such terms in the Credit Agreement),
pursuant to which the Lenders have made certain financial
accommodations available to the Borrower;
WHEREAS, the Borrower has requested that the
Lenders and the Administrative Agent amend certain provisions of
the Credit Agreement, and subject to the terms and conditions
hereof, the Lenders are willing to do so;
NOW, THEREFORE, for good and valuable
consideration, the sufficiency and receipt of all of which are
acknowledged, the Borrower, the Lenders, the Issuing Bank and the
Administrative Agent agree as follows:
Section 1.1 of the Credit
Agreement is hereby amended by replacing clause (x) of the
definition of "Applicable Margin" in its entirety with the
following:
2.
Conditions to Effectiveness of this Amendment .
Notwithstanding any other provision of this Amendment and without
affecting in any manner the rights of the Lenders hereunder, it is
understood and agreed that this Amendment shall not become
effective, and the Borrower shall have no rights under this
Amendment, until the Administrative Agent shall have received
executed counterparts of this Amendment from the Borrower, each of
the Guarantors and the applicable Lenders.
3.
Representations and Warranties . To induce the
Lenders and the Administrative Agent to enter into this Amendment,
each Loan Party hereby represents and warrants to the Lenders and
the Administrative Agent:
(a) The
Borrower and each of its Subsidiaries (i) is duly organized,
validly existing and in good standing as a corporation, partnership
or limited liability company, as applicable, under the laws of the
jurisdiction of its organization, (ii) has all requisite power and
authority to carry on its business as now conducted, and
(iii) is duly qualified to do business, and is in good
standing, in each jurisdiction where such qualification is
required, except where a failure to be so qualified would not
reasonably be expected to result in a Material Adverse Effect;
(b) The execution, delivery and performance of
this Amendment by each Loan Party are within such Loan
Party’s organizational powers and have been duly authorized
by all necessary organizational, and if required, shareholder,
partner or member, action;
(c) The
execution, delivery and performance of this Amendment by each Loan
Party (i) do not require any consent or approval of, registration
or filing with, or any action by, any Governmental Authority,
except those as have been obtained or made and are in full force
and effect or where a failure to do so, individually or in the
aggregate, could not reasonably be expected to have a Material
Adverse Effect, (ii) will not violate any applicable law or
regulation or the charter, by-laws or other organizational
documents of the Borrower or any of its Subsidiaries or any o
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