Exhibit
10.1


 


FIRST
AMENDMENT TO CREDIT AGREEMENT


 


THIS FIRST AMENDMENT TO
CREDIT AGREEMENT (this “Amendment”)
is entered into as of November 9, 2009, among UNIVERSAL AMERICAN CORP., a New York corporation (the “Borrower”), the Lenders party to the
Credit Agreement (hereinafter defined) and BANK OF AMERICA, N.A.,
as the Administrative Agent for the Lenders.


 


The Borrower, the Lenders
and the Administrative Agent are party to the Credit Agreement dated as of September 18,
2007 (as heretofore amended, waived or otherwise modified, the “Credit Agreement”), and have agreed, upon the following
terms and conditions, to amend the Credit Agreement in certain respects.  Accordingly, for valuable and acknowledged
consideration, the Borrower, the Lenders and the Administrative Agent agree as
follows:


 


1.                                       Terms and References. 
Unless otherwise stated in this Amendment, (a) terms defined in the
Credit Agreement have the same meanings when used in this Amendment and (b) references
to “Sections” are to the Credit
Agreement’s sections.


 


2.                                       Amendments.


 


(a)                                  The grid appearing in the definition of “Applicable
Rate” set forth in Section 1.01 is amended to read in its
entirety as follows:


 


	
  Level

  	
   

  	
  Consolidated

  Leverage Ratio

  	
   

  	
  Eurodollar Rate

  +

  Letters of Credit

  	
   

  	
  Base Rate

  +

  	
   

  	
  Commitment

  Fee Rate

  	
   

  
	
  1

  	
   

  	
  > 2.00:1.00

  	
   

  	
  1.250

  	
  %

  	
  .250

  	
  %

  	
  .300

  	
  %

  
	
  2

  	
   

  	
  < 2.00:1.00 and > 1.25:1.00

  	
   

  	
  1.125

  	
  %

  	
  .125

  	
  %

  	
  .275

  	
  %

  
	
  3

  	
   

  	
  < 1.25:1.00

  	
   

  	
  1.000

  	
  %

  	
  .0

  	
  %

  	
  .250

  	
  %

  



 


(b)                                 Section 7.06(d) is amended to read in its entirety
as follows:


 


(d)                                 if a Rating Condition exists at the time
such Restricted Payment is declared, the Borrower may declare or make, directly
or indirectly, a Restricted Payment if such Restricted Payment is payable in
cash and the amount of such Restricted Payment, when aggregated with the amount
of all other Restricted Payments committed to be made in cash pursuant to this Section 7.06(d) at
a time that a Rating Condition exists, does not exceed $200,000,000; provided
that with respect to any Restricted Payment declared and/or made pursuant to
this Section 7.06(d) in excess of $125,000,000 in the
aggregate, the Borrower will make a prepayment of the Term Loans pursuant to Section 2.05(a) in
an amount equal to fifty percent (50%) of the amount of such Restricted Payment
(but solely with respect to any Restricted Payment (or portion thereof) that is
in excess of $125,000,000 in the aggregate) not less than five (5) Business
Days after such Restricted Payment is made.


 


First Amendment to 


Credit Agreement


 

















 


3.                                       Conditions Precedent to
Effectiveness of Amendment.  This
Amendment shall not be effective unless and until the Administrative Agent
receives: (a) counterparts of this Amendment executed by the Borrower, the
Required Lenders and the Administrative Agent and consented to in writing by
the Guarantors; (b) payment of an amendment fee to each Lender that
executes and delivers this Amendment at or before noon, New York time on November 9,
2009, in an amount equal to .20% of the sum of (i) the outstanding
principal balance of the Term Loan owing to such Lender and (ii) the
Revolving Credit Commitment of such Lender, in each case immediately before
giving effect to this Amendment; (c) payment of all reasonable
expenses, including reasonable legal fees and expenses of counsel to the
Administrative Agent, incurred by the Administrative Agent in connection with
this Amendment, to the extent invoiced to the Borrower on or prior to the date
hereof; and (d) such documents as the Administrative Agent may reasonably
request to evidence the due authorization of the execution, delivery and
performance by the Borrower and each of the Guarantors of this Amendment, the
incumbency of the officer of the Borrower and each of the Guarantors executing
this Amendment, and any other matters relevant thereto.


 


4.                                       Representations.  The Borrower represents and warrants to the
Administrative Agent and the Lenders as follows:  (a) the execution, delivery and
performance by the Borrower of this Amendment and the Credit Agreement, as
amended hereby, have been duly authorized by all necessary corporate action; (b) after
giving effect to this Amendment, all representations and warranties made or
deemed made by the Borrower in the Loan Documents are true and correct in all
material respects as of the date hereof (provided that
any such representation and warranty that is qualified as to “materiality,” “Material
Adverse Effect” or similar language is true and correct in all respects),
except to the extent that such representations and warranties expressly relate
solely to an earlier date, in which case such representations and warranties
were true and accurate in all material respects on and as of such earlier date
(provided that any such representation
and warranty that was qualified as to “materiality,” “Material Adverse Effect”
or similar language was true and correct in all respects), and except for
changes in factual circumstances not prohibited by the Credit Agreement; and (c) no
Default or Event of Default has occurred and is continuing as of the date
hereof.


 


5.                                       Effect of Amendment. 
This Amendment is a Loan Document. 
Except as expressly modified and amended by this Amendment, all of the
terms, provisions and conditions of the Loan Documents shall remain unchanged
and in full force and effect.  If any
part of this Amendment is for any reason found to be unenforceable, all other
portions of it shall nevertheless remain enforceable.  The Loan Documents and any and all other
documents heretofore, now or hereafter executed and delivered pursuant to the
terms of the Credit Agreement are hereby amended so that any reference to the
Credit Agreement shall mean a reference to the Credit Agreement as amended
hereby.


 


6.                                       Expenses.  The Borrower shall pay all reasonable fees
and expenses paid or incurred by the Administrative Agent incident to this
Amendment, including, without limitation, the reasonable fees and expenses of
the Administrative Agent’s counsel in connection with the negotiation,
preparation, delivery and execution of this Amendment and any related
documents.


 


7.                                       Governing Law.  This Amendment shall be governed by and
construed in accordance with and be governed by the laws of the State of New
York, without regard to conflict of laws principles.


 


8.                                       Counterparts.  This Amendment may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed to be an original and all
of which taken together shall constitute one and the same instrument.  Delivery of an executed signature page to
this Amendment by telecopy or other electronic imaging means shall be effective
as delivery of a manually executed counterpart of this Amendment.


 


First Amendment to 


Credit Agreement


 


2

















 


9.                                       ENTIRETY.  THIS AMENDMENT, THE CREDIT AGREEMENT, AND THE
OTHER LOAN DOCUMENTS EMBODY THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND
SUPERCEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS, IF ANY, RELATING TO THE
SUBJECT MATTER HEREOF.  THESE LOAN
DOCUMENTS REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE
CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES.


 


10.                                 Parties.  This Amendment binds and inures to the
benefit of the Borrower, the Guarantors, the Administrative Agent, the Lenders
and their respective permitted successors and assigns.


 


[REMAINDER OF PAGE INTENTIONALLY
BLANK.


SIGNATURE PAGES FOLLOW.]


 


First Amendment to 


Credit Agreement


 


3

















 


Signature Page to
that certain First Amendment to Credit Agreement dated as of the date first set
forth above, among Universal American Corp., as the Borrower, Bank of America,
N.A., as the Administrative Agent, and certain Lenders party thereto.


 


	
   

  	
  UNIVERSAL AMERICAN CORP., as the Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Robert
  A. Waegelein, Executive Vice President 

  and Chief Financial Officer

  



 


Signature
Page to First Amendment to Credit Agreement


 

















 


Signature Page to
that certain First Amendment to Credit Agreement dated as of the date first set
forth above, among Universal American Corp., as the Borrower, Bank of America,
N.A., as the Administrative Agent, and certain Lenders party thereto.


 


	
   

  	
  BANK OF AMERICA, N.A., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  BANK OF AMERICA, N.A., as the

  
	
   

  	
  Administrative
  Agent

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature
Page to First Amendment to Credit Agreement


 

















 


Signature Page to
that certain First Amendment to Credit Agreement dated as of the date first set
forth above, among Universal American Corp., as the Borrower, Bank of America,
N.A., as the Administrative Agent, and certain Lenders party thereto.


 


	
   

  	
  BANK OF COMMUNICATIONS CO.,
  LTD., NEW 

  YORK BRANCH, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature
Page to First Amendment to Credit Agreement


 

















 


Signature Page to
that certain First Amendment to Credit Agreement dated as of the date first set
forth above, among Universal American Corp., as the Borrower, Bank of America,
N.A., as the Administrative Agent, and certain Lenders party thereto.


 


	
   

  	
  RAYMOND JAMES BANK FSB, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature
Page to First Amendment to Credit Agreement


 

















 


Signature Page to
that certain First Amendment to Credit Agreement dated as of the date first set
forth above, among Universal American Corp., as the Borrower, Bank of America,
N.A., as the Administrative Agent, and certain Lenders party thereto.


 


	
   

  	
  CALYON NEW YORK BRANCH, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature
Page to First Amendment to Credit Agreement


 

















 


Signature Page to
that certain First Amendment to Credit Agreement dated as of the date first set
forth above, among Universal American Corp., as the Borrower, Bank of America,
N.A., as the Administrative Agent, and certain Lenders party thereto.


 


	
   

  	
  CHANG HWA COMMERCIAL BANK,
  LTD., LOS 

  ANGELES BRANCH,
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature
Page to First Amendment to Credit Agreement


 

















 


Signature Page to
that certain First Amendment to Credit Agreement dated as of the date first set
forth above, among Universal American Corp., as the Borrower, Bank of America,
N.A., as the Administrative Agent, and certain Lenders party thereto.


 


	
   

  	
  CITIBANK,
  N.A., as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature
Page to First Amendment to Credit Agreement


 
















 


Signature Page to that
certain First Amendment to Credit Agreement dated as of the date first set
forth above, among Universal American Corp., as the Borrower, Bank of America,
N.A., as the Administrative Agent, and certain Lenders party thereto.


 


	
   

  	
  SUNTRUST
  BANK, as a
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature
Page to First Amendment to Credit Agreement


 

















 


Signature Page to that certain First Amendment to Credit Agreement
dated as of the date first set forth above, among Universal American Corp., as
the Borrower, Bank of America, N.A., as the Administrative Agent, and certain
Lenders party thereto.


 


	
   

  	
  U.S.
  BANK NATIONAL ASSOCIATION, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature
Page to First Amendment to Credit Agreement


 

















 


Signature Page to that certain First Amendment to Credit Agreement
dated as of the date first set forth above, among Universal American Corp., as
the Borrower, Bank of America, N.A., as the Administrative Agent, and certain
Lenders party thereto.


 


	
   

  	
  FIFTH
  THIRD BANK, as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature
Page to First Amendment to Credit Agreement


 

















 


Signature Page to that certain First Amendment to Credit Agreement
dated as of the date first set forth above, among Universal American Corp., as
the Borrower, Bank of America, N.A., as the Administrative Agent, and certain
Lenders party thereto.


 


	
   

  	
  NATIONAL BANK OF EGYPT, NEW
  YORK BRANCH, as
  a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature
Page to First Amendment to Credit Agreement


 

















 


Signature Page to that certain First Amendment to Credit Agreement
dated as of the date first set forth above, among Universal American Corp., as
the Borrower, Bank of America, N.A., as the Administrative Agent, and certain
Lenders party thereto.


 


	
   

  	
  NATIONAL CITY BANK, as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature
Page to First Amendment to Credit Agreement


 

















 


Signature Page to that certain First Amendment to Credit Agreement
dated as of the date first set forth above, among Universal American Corp., as the
Borrower, Bank of America, N.A., as the Administrative Agent, and certain
Lenders party thereto.


 


	
   

  	
  TAIPEI FUBON COMMERCIAL BANK,
  LOS ANGELES BRANCH,
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature
Page to First Amendment to Credit Agreement


 

















 


Signature Page to that certain First Amendment to Credit Agreement
dated as of the date first set forth above, among Universal American Corp., as
the Borrower, Bank of America, N.A., as the Administrative Agent, and certain
Lenders party thereto.


 


	
   

  	
  UNION BANK OF CALIFORNIA, N.A., as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature
Page to First Amendment to Credit Agreement


 

















 


Signature Page to that certain First Amendment to Credit Agreement
dated as of the date first set forth above, among Universal American Corp., as
the Borrower, Bank of America, N.A., as the Administrative Agent, and certain
Lenders party thereto.


 


	
   

  	
                                                                      ,
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature Page to First Amendment
to Credit Agreement


 

















 


Signature Page to that certain First Amendment to Credit Agreement
dated as of the date first set forth above, among Universal American Corp., as
the Borrower, Bank of America, N.A., as the Administrative Agent, and certain
Lenders party thereto.


 


	
   

  	
                                                                      ,
  as a Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


Signature Page to First Amendment
to Credit Agreement


 

















 


To induce the
Administrative Agent and the Lenders to enter into this Amendment, the
undersigned consent and agree (a) to its execution and delivery and terms
and conditions thereof, (b) that this document in no way releases,
diminishes, impairs, reduces, or otherwise adversely affects any Liens,
Guaranties, assurances, or other obligations or undertakings of any of the
undersigned under any Loan Documents, and (c) that this Amendment binds
each of the undersigned and its successors and permitted assigns and inures to
the benefit of the Administrative Agent, the Lenders, and their respective
successors and permitted assigns.


 


 


	
  HERITAGE
  HEALTH SYSTEMS, INC., as a Guarantor

  	
   

  	
  MEMBERHEALTH LLC, as a Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  	
   

  	
   

  	
  Title:

  	
   

  



 


Signature Page to First Amendment
to Credit Agreement