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Exhibit 10.5
FOURTH AMENDMENT TO THIRD AMENDED AND RESTATED
REVOLVING CREDIT AND TERM LOAN AGREEMENT
THIS FOURTH AMENDMENT TO THIRD AMENDED AND RESTATED REVOLVING
CREDIT AND TERM LOAN AGREEMENT (this " Amendment
"), is made and entered into as of August 15, 2008, 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 by that First Amendment to Third Amended and Restated
Revolving Credit and Term Loan Agreement, dated as of February 20,
2007, as amended by that Second Amendment to Third Amended and
Restated Revolving Credit and Term Loan Agreement, dated as of
April 11, 2007, as amended by that Third Amendment to Third Amended
and Restated Revolving Credit and Term Loan Agreement, dated as of
July 16, 2007 (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:
1.
Amendment . Section 1.1 of the Credit Agreement is
hereby amended by replacing the definition of "Consolidated Fixed
Charges" with the following:
"Consolidated Fixed Charges" shall mean, for the
Borrower and its Subsidiaries for any period, the sum (without
duplication) of (a) Consolidated Interest Expense paid in cash for
such period, (b) scheduled principal payments made on Consolidated
Total Debt during such period and (c) Restricted Payments paid in
cash during such period other than Restricted Payments paid in cash
pursuant to Section 7.5(iii) in an aggregate amount not to
exceed $100,000,000.
2.
Noncompliance with Section 6.2 . The Lenders hereby
waive any Events of Default that may have occurred under Section
6.2 of the Credit Agreement for the Fiscal Quarter ending May 31,
2008 as a result of the inclusion in Consolidated Fixed Charges of
$99,994,000 of Restricted Payments paid in cash pursuant to
Section 7.5(iii) of the Credit Agreement.
3. 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
and each of the Guarantors.
4.
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)
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