Exhibit 4(f)
THIRD AMENDMENT TO CREDIT AGREEMENT
This Third Amendment to Credit Agreement (the "Amendment") is made as
of December 21, 2001, between CERNER CORPORATION, a Delaware corporation (the
"Borrower"), and FIRSTAR BANK, N.A., formerly know as or as successor to Firstar
Bank, N.A. Overland Park, Firstar Bank Midwest, N.A. and Mercantile Bank, as
Agent and, as of the date hereof, the sole Bank under the Credit Agreement
referred to below, and as Issuing Bank.
Preliminary Statements
(a) The Borrower, the Agent, the Issuing Bank and the Bank are parties
to a Credit Agreement dated as of April 1, 1999, as amended by (1) a First
Amendment to Credit Agreement dated as of June 30, 2000, and (2) a Second
Amendment to Credit Agreement dated as of July 1, 2001 (as so amended, the
"Credit Agreement"). Capitalized terms used and not defined in this Amendment
have the meanings given to them in the Credit Agreement.
(b) The Borrower has requested that, among other things, (1) the
maximum total Revolving Credit Commitment be increased from $30 million to $45
million, of which not more than $25 million shall be committed to the Revolving
Credit Loan facility described in Section 2.1(a) of the Credit Agreement, and
not more than $45 million (less the principal amount of any Revolving Credit
Loans then outstanding) shall be committed to the Letter of Credit facility
described in Section 2.21 of the Credit Agreement, (2) Cerner DHT, Inc., a
Delaware corporation (the "New Subsidiary Guarantor") be added as a new
Subsidiary Guarantor under the Credit Agreement, and (3) various covenants in
the Credit Agreement be amended in certain respects.
(c) The Agent, on behalf of the Bank and the Issuing Bank, is willing
to agree to the foregoing requests, subject, however, to the terms, conditions
and agreements set forth below.
NOW, THEREFORE, the parties agree as follows:
1. Increased Total Commitment; Separate Limits for Revolving Credit
Loans and Letters of Credit.
(a) Revolving Credit Commitment. The definition of "Revolving
Credit Commitment" in Section 1.1 of the Credit Agreement is deleted
and is replaced by the following:
"Revolving Credit Commitment" shall mean, as to
each Bank, (i) its obligation to make Revolving Credit Loans
under Section 2.1(a) hereof in an aggregate principal amount
at any time outstanding not to exceed the amount set forth
opposite such Bank's name on Exhibit A hereto under the column
entitled "Revolving Credit Loan Commitment Amount," and (ii)
its LC Exposure for Letters of Credit issued pursuant to
Section 2.21 hereof in an amount at any time not to exceed the
amount set forth opposite such Bank's name on Exhibit A hereto
under the column entitled "Letter of Credit Commitment
Amount;" provided, however, that at no time shall any Bank's
Revolving Credit Commitment exceed its pro rata share of the
Borrowing Base then in effect.
(b) New Exhibit A. Exhibit A to the Credit Agreement is deleted
and is replaced by Exhibit A to this Amendment.
(c) $25 Million Limit On Revolving Credit Facility. A new Section
2.1(c) is added to the Credit Agreement which reads as follows:
(c) Notwithstanding anything herein to the
contrary, and without limiting any provisions herein requiring
the Borrower to have a certain Borrowing Base in order to
obtain or maintain credit under this Agreement, from and after
the date of the Third Amendment, (i) the maximum principal
amount of Revolving Credit Loans outstanding at any time may
not exceed $25,000,000, (ii) the aggregate LC Exposure of all
Banks at any time may not exceed $45,000,000 (less, to the
extent not already deducted therefrom, the principal amount of
all Revolving Credit Loans then outstanding), and (iii) the
principal amount of all Revolving Credit Loans outstanding at
any time and the aggregate LC Exposure of all Banks at such
time may not exceed $45,000,000 in the aggregate.
(d) Conforming Definition. Section 1.1 of the Credit Agreement is
amended to add the following definition in the appropriate alphabetical
order:
"Third Amendment" means the Third Amendment to
Credit Agreement, dated as of December 21, 2001, among the
parties to this Agreement.
2. Subsidiary Guarantors. The definition of Subsidiary Guarantor in
Section 1.1 of the Credit Agreement is deleted and is replaced by the following:
Subsidiary Guarantor" shall mean each Subsidiary of the
Borrower other than the Foreign Subsidiaries. As of the date of
the Third Amendment, the Subsidiary Guarantors are (1) Cerner
Properties, Inc., (2) Cerner International, Inc., (3) Cerner
Multum, Inc., (4) Cerner Health Connections, Inc., (5) Cerner
Health Facts, Inc., (6) Cerner Citation, Inc., (7) Cerner
Investment Corp., (8) Health Network Ventures, Inc., (9) Cerner
Campus Redevelopment Corporation, (10) Cerner Radiology
Information Systems, Inc., and (11) Cerner DHT, Inc.
3. New Minimum Cash Balances Covenant.
(a) Covenant. A new Section 6.21 is added to the Credit Agreement
which reads as follows:
6.21 Minimum Cash Balances. The Borrower shall not
permit the amount of Consolidated Cash Balances on the last day
of any fiscal quarter of the Borrower to be less than 150% of
the amount of Consolidated Firstar Funded Debt on such date.
(b) Conforming Definitions. Section 1.1 of the Credit Agreement is
amended to add the following definitions in the appropriate alphabetical order:
"Consolidated Cash Balances" shall mean, at any
date, the aggregate amount of Qualifying Cash Investments of the
Borrower and the Subsidiary Guarantors on a consolidated basis
in accordance with GAAP. If the amount or value of a Qualifying
Cash Investment is not priced daily on a recognized national
market or by the issuer thereof or is not otherwise readily
determinable, then the Agent shall determine the value of such
Qualifying Cash Investment using commercially reasonable
valuation methods.
"Consolidated Firstar Funded Debt" shall mean, at
any date, the aggregate amount of Funded Debt of the Borrower
and the Subsidiary Guarantors due Firstar Bank, N.A. on a
consolidated basis in accordance with GAAP.
"Qualifying Cash Investments" means (i) cash, (ii)
Investments described in subparts (b), (c), (h), (i) and (j) of
Section 6.14 hereof, and (iii) Investments in obligations issued
or fully guaranteed by the U.S. Government having a maturity of
one year or less when issued.
(c) Events of Default to Include New Financial Covenant. Section
7(d) of the Credit Agreement is deleted and is replaced by the following:
(d) the Borrower shall fail to keep, observe or
perform any of its obligations under Sections 6.2, 6.3(c), 6.4,
6.5, 6.6, 6.7, 6.8, 6.10, 6.11, 612 or 6.21 of this Agreement;
or
5. Replacement Schedules. Schedules 5.12, 5.14 and 6.14 of the
Credit Agreement are deleted and are replaced by Schedules 5.12, 5.14 and 6.14
to this Amendment.
6. Conditions Precedent to Amendment. Notwithstanding anything in
this Amendment to the contrary, unless and to the extent the Agent waives the
benefits of this sentence by giving written notice thereof to the Borrower,
neither the Agent, any Bank or the Issuing Bank shall have any duties under this
Amendment, nor shall any waivers, releases or other concessions, if any, made or
given by the Agent, any of the Banks, or the Issuing Bank under this Amendment
be effective, in each case until the Agent has received fully executed originals
of each of the following, each in form and substance satisfactory to the Agent:
(a) Amendment. This Amendment;
(b) NOTE. A promissory note from the Borrower, as maker, to
Firstar Bank, N.A., as payee, dated on or about the date hereof, in the
stated principal amount of $45,000,000, which note shall amend and
restate the Note previously issued to such Bank pursuant to the Credit
Agreement.
(c) Assumption Agreement. An Assumption Agreement, dated on or
about the date hereof, from the New Subsidiary Guarantor in favor of
the Agent, whereby, among other things, the New Subsidiary Guarantor
agrees to become a Subsidiary Guarantor for all purposes under the
Subsidiary Guaranty.
(d) Secretary's Certificate -- New Subsidiary Guarantor. A
certificate of the secretary or assistant secretary of the New
Subsidiary Guarantor in favor of the Agent, dated on or about the date
hereof, whereby, among other things, such secretary or assistant
secretary affirms that attached thereto are true and current copies of
the New Subsidiary Guarantor's certificate of incorporation and
by-laws, and that included therein are specimen signatures of officers
of the New Subsidiary Guarantor executing this Amendment and the
Assumption Agreement referred to above.
(e) Good Standing Certificate -- New Subsidiary Guarantor. A
recent certificate of good standing or similar certificate from the
Secretary of State or similar government official of the state of
incorporation of the New Subsidiary Guarantor.
(f) Other. Such other documents as the Agent may reasonably
request in connection with the transactions contemplated hereby.
7. Firstar. Firstar Bank, N.A. has succeeded to all rights of Firstar
Bank, N.A. Overland Park under the Credit Documents. Accordingly, unless the
context clearly requires otherwise, all references in the Credit Agreement
and the other Credit Documents to Firstar Bank, N.A. Overland Park (whether in
its capacity as Agent, the Issuing Bank or as a Bank) are amended to refer
instead to "Firstar Bank, N.A., and its successors and assigns".
8. Representations and Warranties. The Borrower represents and warrants
to the Agent, the Bank and the Issuing Bank as follows: (a) it is a duly
organized and validly existing corporation and has full corporate power and
authority to enter into this Amendment and any documents or transactions
contemplated hereby and to pay and perform its obligations in respect of each of
the foregoing; (b) the execution, delivery and performance by the Borrower of
this Amendment and any documents contemplated hereby or any transactions
contemplated hereby do not violate or conflict with, or require any consent
under, (i) the Borrower's certificate of incorporation, by-laws, or any other
agreement or document relating to the Borrower's existence or authority to act,
(ii) any agreement or instrument to which the Borrower is a party or by which
the Borrower or any of its properties is bound, (iii) any court order, judicial
proceeding or any administrative or arbitral order or decree, or (iv) any
applicable law, rule or regulation; and (c) no authorization, approval or
consent of or by, and no notice to or filing or registration with, any
governmental authority or any other Person is necessary for the Borrower to
enter into this Amendment or any document contemplated hereby or any transaction
contemplated hereby or to perform its obligations with respect to each of the
foregoing.
9. Reaffirmation of Credit Documents. The Borrower reaffirms its
obligations under the Credit Agreement and the other Credit Documents to which
it is a party or by which it is bound, and represents, warrants and covenants to
the Agent, the Issuing Bank and the Bank, as a material inducement to the Agent,
the Issuing Bank and the Bank to enter into this Amendment and the transactions
contemplated hereby, that: (a) the Borrower has no (and, in any event, hereby
waives any) defense, claim or right of setoff in respect of the Credit
Agreement, any of the other Credit Documents or the actions or inactions of the
Agent, the Issuing Bank or the Bank; and (b) all representations and warranties
made by the Borrower in the Credit Agreement and the other Credit Documents are
true and complete on the date hereof as if made on the date hereof.
10. No Other Amendments. Except as amended hereby, the Credit Agreement
and the other Credit Documents shall remain in full force and effect and be
binding on the Borrower in accordance with their respective terms.
11. Counterparts; Fax Signatures. This Amendment and any document
contemplated hereby may be executed in one or more counterparts and by different
parties thereto, all of which counterparts, when taken together, shall
constitute but one agreement. This Amendment and any document contemplated
hereby may be executed and delivered by facsimile or other electronic
transmission, and any such execution or delivery shall be fully effective as if
executed and delivered in person.
12. Legal Fees. The Borrower shall pay all legal fees and expenses
incurred by the Agent in connection with the preparation and closing of this
Amendment and any other documents referred to herein and the consummation of any
transactions referred to herein, which legal fees shall not exceed $5,000.
13. Mo.rev.stat. Ss. 432.045 Required Notice. The following statement
is given pursuant to Mo.Rev.Stat. ' 432.045: "ORAL AGREEMENTS OR COMMITMENTS TO
LOAN MONEY, EXTEND CREDIT OR TO FORBEAR FROM ENFORCING REPAYMENT OF A DEBT
INCLUDING PROMISES TO EXTEND OR RENEW SUCH DEBT ARE NOT ENFORCEABLE. TO PROTECT
YOU (BORROWER(S)) AND US (CREDITOR) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH
IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT BETWEEN US, EXCEPT AS
WE MAY LATER AGREE IN WRITING TO MODIFY IT." All other Credit Documents are
incorporated into this Amendment; provided, however, that, to the extent of any
direct conflict between the terms and conditions of the other Credit Documents
and this Amendment, the terms and conditions of this Amendment shall prevail and
govern.
14. Governing Law. This Amendment shall be governed by the laws of the
State of Missouri without regard to any choice of law rule thereof giving effect
to the laws of any other jurisdiction.
[signature page(s) follow]
IN WITNESS WHEREOF, the parties have entered into this Amendment as of
the date first above written.
CERNER CORPORATION,
a Delaware corporation
By: \s\Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Vice President & CFO
FIRSTAR BANK, N.A., formerly known as
or as successor to Firstar Bank, N.A.
Overland Park, as Agent, as Issuing
Bank and as a Bank
By: \s\Xxxx X. Xxxxxxxxx
Name: Xxxx X. Xxxxxxxxx
Title: SVP
Consent of Guarantors
Reference is made to the Guaranty dated as of April 1, 1999, in favor
of the Agent, on behalf of the Banks and the Issuing Bank, to which the
undersigned are parties, either as an original signatory thereto or pursuant to
any subsequent assumption, joinder or other agreements (each a "Guarantor"), and
any other guaranty executed by any Guarantor in favor of the Agent or any Bank
or the Issuing Bank relating to any indebtedness of the Borrower to any Bank or
the Issuing Bank (collectively, with respect to each Guarantor, such Guarantor's
"Guaranty"). Capitalized terms used and not defined in this Consent of
Guarantors have the meanings given to them in the Credit Agreement referred to
in the above Amendment. To induce the Agent, the Issuing Bank and the Bank to
enter into the above Amendment, each Guarantor: (a) consents to the Borrower,
the Agent, the Issuing Bank and the Bank entering into the above Amendment,
including, without limitation, the provisions therein relating to the increase
in the maximum principal amount of the revolving credit facility under the
Credit Agreement from $30,000,0000 to $45,000,000; (b) agrees that the
execution, delivery and performance of the above Amendment and any documents or
transactions contemplated thereby shall not discharge, limit or otherwise impair
the obligations of such Guarantor under such Guarantor's Guaranty; (c) agrees
that such Guarantor's Guaranty is and remains in full force and effect and is
enforceable against such Guarantor in accordance with its terms; (d) waives any
defense, claim or right of setoff such Guarantor may have in respect of such
Guarantor's Guaranty, the Credit Agreement, the other Credit Documents or the
actions or inactions of the Agent, the Issuing Bank or any Bank; and (e) agrees
that neither the Agent, the Issuing Bank or any Bank has any duty to give such
Guarantor notice of or obtain such Guarantor's consent to the transactions
described in the above Amendment, and that the Agent, the Issuing Bank and the
Bank's giving of notice to such Guarantor and obtainment of such Guarantor's
consent in this instance shall not impose any similar or other duty upon the
Agent, the Issuing Bank or any Bank in any future
matter or transaction. This Consent of Guarantors may be validly executed and
delivered by fax or other electronic transmission and in multiple counterparts
and by different parties thereto.
CERNER INTERNATIONAL, INC., CERNER MULTUM, INC.,
a Delaware corporation a Delaware corporation,
formerly known as Multum
Information Services, Inc.
By: /s/Xxxx X. Xxxxxxxx By: /s/Xxxx X. Xxxxxxxx
--------------------------------- ------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx
Title: Vice President & Treasurer Title: Treasurer
CERNER PROPERTIES, INC., CERNER HEALTH FACTS, INC.,
a Delaware corporation a Delaware corporation
By: _/s/ Xxxx X. Xxxxxxxx By:/s/Xxxx X. Xxxxxxxx
---------------------------------- --------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx
Title: Vice President & CFO Title: Vice President & CFO
CERNER HEALTH CONNECTIONS, INC., CERNER CITATION, INC., a Delaware
a Delaware corporation corporation, formerly known as Cerner
Performance Logistics, Inc.
By: /s/Xxxx X. Xxxxxxxx By: /s/Xxxx X. Xxxxxxxx
---------------------------------- --------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx
Title: Vice President & CFO Title: Vice President & CFO
CERNER INVESTMENT CORP., CERNER CAMPUS REDEVELOPMENT
a Nevada corporation CORPORATION, a Missouri corporation
By:/s/ Xxxx X. Xxxxxxxx By: Xxxx X. Xxxxxxxx
---------------------------------- ------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx
Title: Vice President & CFO Title: Treasurer
HEALTH NETWORK VENTURES, INC., CERNER RADIOLOGY INFORMATION
a Delaware corporation SYSTEMS, INC., a Texas corporation
By:/s/ Xxxx X. Xxxxxxxx By:/s/ Xxxx X. Xxxxxxxx
----------------------------------------- --------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx
Title: Treasurer Title: Vice President & CFO
CERNER DHT, INC.,
a Delaware corporation
By:/s/ Xxxx X. Xxxxxxxx
Name: Xxxx X. Xxxxxxxx
Title: Vice President & CFO
EXHIBIT A
Banks and Commitments
----------------------------------------------------------------------------------------------------------------------
Revolving Credit Letter of Credit Bank's Total
Loan Commitment Commitment Commitment
Bank Amount Amount Amount
----------------------------------------------------------------------------------------------------------------------
Firstar Bank, N.A. $25,000,000* $45,000,000 $45,000,000
----------------------------------------------------------------------------------------------------------------------
Totals: $25,000,000* $45,000,000 $45,000,000
----------------------------------------------------------------------------------------------------------------------
* As more particularly described in Section 2.1(c) of the Credit
Agreement, the Revolving Credit Loan facility is a subfacility of - and
accordingly shall act to reduce - the amount of Letters of Credit that
may be outstanding under the Letter of Credit facility at any time.
SCHEDULE 5.12
SUBSIDIARIES
^ Denotes Subsidiary not wholly-owned by Cerner Corporation or Cerner
International, Inc.
* Denotes Foreign Subsidiary
1. Cerner Health Connections, Inc., a Delaware corporation
2. Cerner Health Facts, Inc., a Delaware corporation
3. Cerner Multum, Inc., a Delaware corporation
4. *Cerner Belgium, Inc., a Delaware corporation
5. Cerner Citation, Inc., a Delaware corporation
6. Cerner Properties, Inc., a Delaware corporation
7. Cerner Campus Redevelopment Corporation, a Missouri corporation
8. Cerner Investment Corp., a Nevada corporation
9. First Hand Foundation, a Missouri not for profit corporation
10. *Cerner FSC, Inc., a corporation organized under the laws of Barbados
11. *Cerner Canada Limited, a Delaware corporation
12. *Cerner (Malaysia) SDN BHD, a corporation organized under the laws of
Malaysia (Cerner Corporation owns 99,998 shares, the remaining 2 shares
are owned by Xxxxxx s/o Mariassosay and Syed Xxxx Xxxxx Bin Dato' Xxxx
Xxxxx respectively)
13. Health Network Ventures, Inc., a Delaware corporation
14. Cerner Radiology Information Systems, Inc., a Texas corporation
15. Cerner DHT, Inc., a Delaware corporation
16. Cerner International, Inc., a Delaware corporation, has the following
Subsidiaries:
o *Cerner Singapore Limited, a Delaware corporation
o *Cerner Corporation PTY Limited, a corporation organized under
the laws of Australia
o ^*Cerner Limited, a corporation organized under the laws of
the United Kingdom (Cerner International, Inc. owns 9,999
shares, the remaining 1 share is owned by Huntsmoor Nominees
Limited)
o ^*Cerner Deutschland GMBH, a corporation organized under the
laws of Germany
o ^*Cerner Arabia Limited, a corporation organized under the laws
of Saudi Arabia (Cerner International, Inc. owns 400 shares,
and El Seif Development Co. owns 600 shares)
SCHEDULE 5.14
EXISTING MATERIAL CONTRACTS
---------------------------
1. This Agreement.
2. Note Agreement between the Borrower and the Purchasers thereto in the
aggregate amount of $100,000,000 dated April 1, 1999.
SCHEDULE 6.14
INVESTMENTS
-----------
1. The Borrower has a 40% ownership interest in Cerner Arabia Ltd. in Saudi
Arabia.
2. The Borrower owns approximately 3% of the common stock of WebMd
Corporation.
3. The Borrower has approximately a 9% ownership interest in Protocare, Inc.
4. The Borrower has approximately a .5% ownership interest in Cyber-Care, Inc.
5. The Borrower has approximately a 4% ownership interest in Cogent
Healthcare, Inc.
6. The Borrower has approximately a 5% ownership interest in Concentric
Medicine, Inc.
7. The Borrower has approximately a 7.5% ownership interest in Life
Xxxxxxxx.xxx, Inc.
8. The Borrower has approximately a 3% ownership interest in LifeMetrix, Inc.
9. The Borrower has approximately a 2% ownership interest in Cedara Software
Corp.
