Exhibit 4(d)
FIRST AMENDMENT TO CREDIT AGREEMENT
This First Amendment to Credit Agreement (the "Amendment") is made as
of June 30, 2000, by and among CERNER CORPORATION, a Delaware corporation (the
"Borrower"), and FIRSTAR BANK MIDWEST, N.A., successor to 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 (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 (1) the maturity of the revolving
credit facility be extended to June 30, 2003, (2) the commitment (non-usage) fee
referred to in Section 3.1 of the Credit Agreement be amended, and (3) the
definition of Tangible Net Worth and certain of the financial covenants in the
Credit Agreement be modified 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. Termination Date. The definition of Revolving Credit Termination
Date in Section 1.1 of the Credit Agreement is deleted and is replaced by the
following:
"Revolving Credit Termination Date" shall mean June 30, 2003;
provided, however, that if such date would otherwise fall on a date
which is not a Business Day, the Revolving Credit Termination Date
shall be the next preceding Business Day.
2. Tangible Net Worth. The definition of Tangible Net Worth in Section
1.1 of the Credit Agreement is deleted and is replaced by the following:
"Tangible Net Worth" shall mean Consolidated Net Worth, less
the sum of all goodwill, trade names, trademarks, patents,
organization expense, unamortized debt discount and expense and
other similar intangibles properly classified as such in accordance
with GAAP, which are incurred or booked subsequent to July 1, 2000,
provided that there shall not be so excluded software development
costs which are capitalized by the Borrower in accordance with GAAP
on a basis consistent with that described in Note 1(d) of the
Borrower's audited financial statements dated January 1, 2000.
3. Commitment (Non-Usage) Fee.
(a) Section 3.1. Section 3.1 of the Credit Agreement is deleted and
is replaced by the following:
3.1 Commitment Fees. The Borrower shall pay to the Agent, for
the pro rata account of each Bank, a commitment fee at a rate per
annum equal to the Applicable Commitment Fee Margin on the daily
average unused amount of such Bank's Revolving Credit Commitment,
for the period from and including the date of the First Amendment
to but excluding the earlier of the date Revolving Credit
Commitments are terminated or the Revolving Credit Termination
Date. Accrued commitment fees shall be payable on each Quarterly
Date and on the dates referred to in the immediately preceding
sentence.
(b) Conforming Definitions. Section 1.1 of the Credit Agreement is
amended to add the following definitions in the appropriate
alphabetical order:
"Applicable Commitment Fee Margin" means as follows: if at the
end of any fiscal quarter the Tangible Net Worth Ratio is within
the respective ranges set forth below, then the Applicable
Commitment Fee Margin at all times during the second succeeding
fiscal quarter shall be the percentage set forth opposite such
ratio:
Tangible Net Worth Ratio Margin
------------------------ ------
Greater than 1.25 to 1 0.32%
Less than or equal to 1.25
to 1, but greater than .80 to 1 0.25%
Less than or equal to .80 to 1 0.18%
provided, however, that during any period that the Borrower has
failed to deliver the financial statements or the Borrowing Base
and Compliance Certificate as required by Section 6.1 hereof, the
Applicable Commitment Fee Margin shall be 0.32%.
"First Amendment" means the First Amendment to Credit
Agreement, dated as of June 30, 2000, among the parties to the
Credit Agreement.
4. Tangible Net Worth Ratio. Section 6.6 of the Credit Agreement is
deleted and is replaced by the following:
6.6 Minimum Tangible Net Worth. The Borrower shall not permit
its Tangible Net Worth on any date to be less than the sum of (i)
$300,000,000, plus (ii) an amount equal to 50% of its Consolidated
Net
Income (without reduction for any deficit in its Consolidated Net
Income) for the period from the date of the First Amendment to and
including the date of determination thereof, computed on a
cumulative basis for such entire period.
5. Fixed Charge Ratio. Section 6.8 of the Credit Agreement is deleted
and is replaced by the following:
6.8 Fixed Charge Coverage Ratio. The Borrower will not at any
time permit the ratio of Consolidated Income Available for Fixed
Charges to Fixed Charges for the Borrower's most recently completed
four fiscal quarters to be less than 2 to 1.
For purposes of this Section 6.8 only, the following terms shall
have the following meanings:
Capitalized Lease - Any lease the obligation for Rentals
with respect to which, in accordance with GAAP, would be
required to be capitalized on a balance sheet of the lessee.
Consolidated Income Available for Fixed Charges - For any
period, the sum of (i) Consolidated Net Income, plus (to the
extent deducted in determining Consolidated Net Income), (ii)
all provisions for any federal, state, or other income taxes
made by the Borrower and the Subsidiary Guarantors during such
period plus (iii) Fixed Charges.
Consolidated Net Income - For any period, the consolidated
net income (or deficit) of the Borrower and the Subsidiary
Guarantors after deducting, without duplication, all operating
expenses, provisions for all taxes and reserves (including
reserves for deferred income taxes) and all other proper
deductions, all determined in accordance with GAAP and after
deducting portions of income properly attributable to
outstanding minority interests, if any, in Subsidiary
Guarantors; provided, however, that there shall be excluded (i)
any income (or deficit) of any Person accrued prior to the date
it becomes a Subsidiary Guarantor or merges into or
consolidates with the Borrower or a Subsidiary Guarantor; (ii)
the income (or deficit) of any Person (other than a Subsidiary
Guarantor) in which the Borrower or any Subsidiary Guarantor
has any ownership interest (except that any such income
actually received by the Borrower or such Subsidiary Guarantor
in the form of cash dividends shall be included without
limitation); (iii) any gains or losses, or other income,
properly classified as extraordinary in accordance with GAAP;
(iv) any gains or losses, or other income, characterized as
non-recurring in the financial statements delivered pursuant
to Section 6.1; (v) any gain or loss resulting from the sale
of fixed or capital assets other than in the ordinary course
of
business; (vi) any portion of the net income of a Subsidiary
Guarantor which for any reason (other than solely as a result
of any restrictions contained in Section 6.12 of this
Agreement) cannot be distributed as a cash dividend; (vii) any
gain or loss resulting from the sale or other disposition of
any Investment; (viii) any gains resulting from the
reappraisal, revaluation or write-up of assets and any gains
or losses resulting from the reappraisal, revaluation or
write-up of the Borrower's original $70,000,000 Investment in
CareInsite, Inc.; (ix) proceeds of any life insurance policy;
(x) any gain or loss resulting from the acquisition of any
securities of the Borrower or any Subsidiary Guarantor; and
(xi) any reversal of any reserve, except to the extent that
provision for such reserve shall have been made from income
arising during the fiscal period in which such reversal
occurs.
Fixed Charges - For any period, the sum of (i) interest
expense (including the interest component of Rentals under
Capitalized Leases), amortization of debt discount and expense
on Indebtedness of the Borrower and the Subsidiary Guarantors
during such period and (ii) Rentals under all leases other
than Capitalized Leases of the Borrower and the Subsidiary
Guarantors, determined on a consolidated basis in accordance
with GAAP.
Investments - All investments made in cash or by delivery
of property, directly or indirectly, in any Person, whether by
acquisition of shares of capital stock, indebtedness or other
obligations or securities or by loan, advance, capital
contribution or otherwise; provided, however, that
"Investments" shall not mean or include investments in
property to be used, held for use or consumed in the ordinary
course of business.
Rentals - As of the date of any determination thereof, all
fixed payments (including all payments which the lessee is
obligated to make to the lessor on termination of the lease or
surrender of the property) payable by the Borrower or a
Subsidiary Guarantor, as lessee or sublessee under a lease of
real or personal property, but exclusive of any amounts
required to be paid by the Borrower or a Subsidiary Guarantor
(whether or not designated as rents or additional rents) on
account of maintenance, repairs, insurance, taxes,
assessments, amortization and similar charges. Fixed rents
under any so-called "percentage leases" shall be computed on
the basis of the minimum rents, if any, required to be paid by
the lessee, regardless of sales volume or gross revenues.
Voting Stock - Capital stock of any class of a corporation
having power to vote for the election of members of the board
of directors of such corporation, or persons performing
similar functions.
6. Financial Covenants to Apply to Borrower and Subsidiary
Guarantors. The following definitions in Section 1.1 of the Credit Agreement are
amended to read as follows:
"Consolidated Net Income" shall mean, for any period,
the net income and net losses of the Borrower and the
Subsidiary Guarantors on a consolidated basis as defined
according to GAAP.
"Consolidated Net Worth" shall mean, at any date, the
amount shown as "total shareholders' equity" (or any like
caption) on a consolidated balance sheet of the Borrower and
the Subsidiary Guarantors in accordance with GAAP.
"Current Assets" shall mean, at any date, the current
assets of the Borrower and the Subsidiary Guarantors
determined on a consolidated basis as of such date in
accordance with GAAP.
"Current Liabilities" shall mean, at any date, the
current liabilities of the Borrower and the Subsidiary
Guarantors determined on a consolidated basis as of such date
in accordance with GAAP.
"EBITDA" shall mean, for any period, Consolidated Net
Income for the period in question plus (a) the sum of (i) all
amounts deducted in arriving at such Consolidated Net Income
in respect to Interest Expense for such period; federal, state
and local income taxes for such period; depreciation and
amortization and other noncash nonoperating charges for such
period; and to the extent not included in the above,
miscellaneous expenses from nonoperating transactions which do
not relate to any extraordinary items for such period and (ii)
extraordinary losses for such period, minus (b) the sum of (i)
all amounts included in arriving at such Consolidated Net
Income in respect of miscellaneous income from nonoperating
transactions and which do not relate to any extraordinary
items for such period; and (ii) all extraordinary profits for
the period, determined on a consolidated basis for the
Borrower and the Subsidiary Guarantors.
"Interest Expense" shall mean, for any period, all
cash and noncash interest on Indebtedness (including imputed
interest on Capital Lease Obligations) of the Borrower and the
Subsidiary Guarantors during such period; provided, however,
that there shall be added to "Interest Expense" any fees or
commissions or net losses amortized during such period under
any Interest Rate Protection Agreement and any fees or
commissions payable in connection with any letters of credit
during such period and there shall be subtracted from
"Interest Expense" any net gains under any Interest Rate
Protection Agreement during such period.
"Tangible Net Worth Ratio" shall mean, at any date,
the ratio of (i) the total liabilities of the Borrower and the
Subsidiary Guarantors determined on a consolidated basis on
such date, to (ii) Tangible Net Worth
on such date.
7. Release of Cerner Belgium From Guaranty. The Bank hereby
releases Cerner Belgium, Inc., a Delaware corporation formerly known as Cerner
Healthwise, Inc., from all liabilities and other obligations Cerner Belgium,
Inc. has under the Guaranty, dated April 1, 1999, from Cerner Healthwise, Inc.
and certain other Subsidiary Guarantors in favor of the Bank (the "Subsidiary
Guaranty"). The foregoing release shall not release or limit the liability of,
or impose any duty on the Bank now or hereafter to release or limit the
liability of, any other existing or future Subsidiary Guarantor under the
Subsidiary Guaranty or any other Person now or hereafter liable in whole or in
part for the payment or performance of any of the Obligations, whether pursuant
to a Guarantee, any of the Credit Documents, or otherwise.
8. Conditions Precedent to Amendment. Notwithstanding anything in
this Amendment to the contrary, unless and to the extent the Bank waives the
benefits of this sentence by giving written notice thereof to the Borrower, the
Bank shall have no duties under this Amendment, nor shall any waivers, releases
or other concessions, if any, made or given by the Bank under this Amendment be
effective, in each case until the Bank has received fully executed originals of
each of the following, each in form and substance satisfactory to the Bank:
(a) Amendment. This Amendment;
(b) Assumption Agreement. An Assumption Agreement in
favor of the Bank, dated on or about the date hereof, from Cerner
Investment Corp., Cerner Campus Redevelopment Corporation and Health
Network Ventures, Inc. whereby such Persons agree to become Subsidiary
Guarantors and be bound by the Subsidiary Guaranty, together with the
related Secretary's Certificates signed by each such Person in favor of
the Bank; and
(c) Other. Such other documents as the Bank may
reasonably request in connection with the transactions contemplated
hereby.
9. Firstar. Firstar Bank Midwest, N.A. is the successor to
Mercantile Bank. Accordingly, unless the context clearly requires otherwise, all
references in the Credit Agreement and the other Credit Documents to Mercantile
Bank (whether in its capacity as Agent, the Issuing Bank or as a Bank) are
amended to refer instead to "Firstar Bank Midwest, N.A., and its successors and
assigns".
10. 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.
11. 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.
12. 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.
13. 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.
14. 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, such legal fees not to exceed $2,000.
15. Mo.rev.stat. Ss. 432.045 Required Notice. The following
statement is given pursuant to Mo.Rev.Stat. ss. 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.
16. 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.
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: CFO
FIRSTAR BANK MIDWEST, N.A., successor to
Mercantile Bank, as Agent, as Issuing Bank
and as a Bank
By: /s/Xxxx X. Xxxxxxxxx
---------------------------------
Name Xxxx 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; (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 the
Bank; and (e) agrees that neither the Agent, the Issuing Bank or the 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 the 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: 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: CFO Title: CFO
CERNER HEALTH CONNECTIONS, INC. CERNER PERFORMANCE LOGISTICS, 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: CFO Title: CFO
CERNER INVESTMENT CORP., CERNER CAMPUS REDEVELOPMENT
A Nevada corporation CORPORATION, a Missouri corporation
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxxx X. Xxxxxxxx
------------------------------- -------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxx X. Xxxxxxxx
Title: CFO Title: Secretary & Treasurer
HEALTH NETWORK VENTURES, INC.,
a Delaware corporation
By: /s/ Xxxx X. Xxxxxxxx
-----------------------------
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
