FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 99.1
FIRST AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment to Amended and Restated Credit Agreement (this “Amendment”) is
made as of November 12, 2009, by and among CERNER CORPORATION, a Delaware corporation (the
“Borrower”); U.S. BANK NATIONAL ASSOCIATION, a national banking association, COMMERCE BANK,
N.A., a national banking association, UMB BANK, N.A., a national banking association, and BANK OF
AMERICA, N.A., a national banking association (each a “Bank” and, collectively, the
“Banks”); BANK OF AMERICA, N.A., as Documentation Agent (in such capacity, the
“Documentation Agent”) and as an issuing bank of Letters of Credit (in such capacity, an
“Issuing Bank”); and U.S. BANK NATIONAL ASSOCIATION, a national banking association, as the
lender for Swingline Loans (in such capacity, the “Swingline Lender”), as an issuing bank
of Letters of Credit (in such capacity, an “Issuing Bank”), as agent for the Banks
hereunder (in such capacity, the “Administrative Agent”), and as lead arranger hereunder
(in such capacity, the “Lead Arranger”). Capitalized terms used and not defined in this
Amendment have the meanings given to them in the Credit Agreement referred to below.
Preliminary Statements
(a) The Banks and the Borrower are parties to an Amended and Restated Credit Agreement dated
as of November 30, 2006 (as the same may be amended, renewed, restated, replaced, consolidated or
otherwise modified from time to time, the “Credit Agreement”).
(b) The Borrower has requested to renew and extend the term of the Credit Agreement and to
make certain modifications to the terms of the Credit Agreement as set forth in this Amendment.
(c) The Banks are willing to agree to the foregoing requests, subject, however, to the terms,
conditions and agreements set forth below.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:
1. Modification to Section 1.1 Definitions. Section 1.1 of the Credit Agreement is modified
as follows:
A. The following definitions set forth in Section 1.1 of the Credit Agreement are hereby
deleted in their entirety and are hereby replaced with the following:
“Applicable Margin” shall mean, at any date, (1) in the case of Base
Rate Loans, 1.25%, (2) in the case of Libor Loans, 3.25%, and (3) in the case of the
Unused Line Fee, 0.45%; provided, however, that, if the Applicable Margin
Calculation Certificate delivered by the Borrower to the Administrative Agent for
the most recently preceding fiscal quarter demonstrates that the Leverage Ratio for
such preceding fiscal quarter was within any of the ranges set forth below, then the
Applicable Margin from and after the first day of the first full month after the
date the Administrative Agent receives the Applicable Margin Calculation Certificate
shall be reduced to (if such is the case) and shall equal, for such type of Loan or
the Unused Line Fee, as the case may be, the amount set forth below opposite the
Leverage Ratio for such preceding fiscal quarter.
Applicable | Applicable | Applicable | ||||||||||||||
Margin for | Margin for | Margin for | ||||||||||||||
Level | Leverage Ratio | Base Rate Loans | Libor Loans | Unused Line Fee | ||||||||||||
I. | greater than 2.0
to 1.0 |
1.25 | % | 3.25 | % | 0.45 | % | |||||||||
II. | greater than 1.5
to 1.0 but less
than or equal to
2.0 to 1.0 |
0.75 | % | 2.75 | % | 0.35 | % | |||||||||
III. | greater than 1.0
to 1.0 but less
than or equal to
1.5 to 1.0 |
0.25 | % | 2.25 | % | 0.25 | % | |||||||||
IV. | less than or equal
to 1.0 to 1.0 |
0.00 | % | 2.00 | % | 0.20 | % |
; provided, further, that (a) from November 12, 2009, to December 1, 2009, the
Applicable Margin for Base Rate Loans, Libor Loans and the Unused Line Fee shall be
that set forth in Level IV (in accordance with the Borrower’s Covenant Compliance
Certificate for the fiscal quarter ending June 30, 2009), and (b) if the Borrower
fails to timely deliver an Applicable Margin Calculation Certificate to the
Administrative Agent, or the Administrative Agent reasonably disputes the
calculations set forth therein or the accuracy of the related financial statements,
then the Applicable Margin from and after the first day of the first full month
after the latest date the Administrative Agent could have received the Applicable
Margin Calculation Certificate in compliance with Section 6.1(l) hereof shall be the
Applicable Margin set forth in Level I above.
“Bank Parties” shall mean U.S. Bank National Association, in its
capacity as Administrative Agent, Lead Arranger, an Issuing Bank, Swingline Lender
and a Bank; Bank of America, N.A., in its capacity as Documentation Agent, an
Issuing Bank and a Bank; Commerce Bank, N.A., in its capacity as a Bank; and UMB
Bank, N.A., in its capacity as a Bank. Use of the term “Bank Parties” in any of the
Credit Documents is for convenience of reference only, and shall not impose or alter
any requirement under any of the Credit Documents regarding which Persons must
consent to which matters or in which capacity a Person must act in consenting to a
matter or in taking any other action.
“Base Rate” means, as of any date, the greater of (1) the Prime Rate,
(2) the Federal Funds Rate plus 1.5%, and (3) the Adjusted Daily LIBOR Rate
in effect and reset each LIBOR Business Day plus 2.00%.
“LC Exposure” shall mean, at any date, with respect to any Bank, its
Pro-Rata Share of the sum of (1) the undrawn face amount of all Letters of Credit
then outstanding, and (2) the aggregate amount of all payments made by the Issuing
Banks under or in connection with any Letter of Credit for which the Issuing Banks
have not been reimbursed.
First Amendment to Amended and Restated Credit Agreement —Page 2
“Reserve Requirement” shall mean, for any Libor Loan for any Interest
Period therefor, the average maximum rate at which reserves (including any marginal,
supplemental or emergency reserves) are required to be maintained during such
Interest Period under Regulation D by any Bank against “Eurocurrency liabilities”
(as such term is used in Regulation D), which shall be determined without benefit of
or credit for exemptions, prorations or offsets. Without limiting the effect of the
foregoing, the Reserve Requirement shall reflect any other reserves required to be
maintained by such Bank by reason of any Regulatory Change against (1) any category
of liabilities which includes deposits by reference to which Libor is to be
determined as provided in the definition of “Libor” in this Section 1.1 and/or in
the definition of “Adjusted Daily LIBOR Rate” in this Section 1.1, or (2) any
category of extension of credit or other assets which includes the Libor Loans.
“Revolving Credit Termination Date” shall mean May 31, 2013; 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.
B. The following definitions are hereby added to Section 1.1 of the Credit Agreement:
“Adjusted Daily LIBOR Rate” means, on any day, the rate
determined by dividing the Daily LIBOR Rate in effect on such day by 1.00
minus the Reserve Requirement.
“Daily LIBOR Rate” means, on any day, the average offered rate
for deposits in United States dollars for delivery of such deposits on a
one-month basis, which appears on Reuters Screen LIBOR01 Page (or any
successor thereto), as of 11:00 A.M., London time (or such other time as of
which such rate appears), or the rate for such deposits determined by the
Agent at such time base on such other published service of general
application as shall be selected by the Agent for such purpose.
“Defaulting Bank” means, at any time, any Bank that, at such
time (1) has failed to make a Revolving Credit Loan or other Loan required
pursuant to the terms of this Agreement, including, without limitation, the
funding of any participation in accordance with the terms of this Agreement,
(2) has failed to pay to the Administrative Agent or any other Bank, when
due, an amount owed by such Bank pursuant to the terms of this Agreement, or
(3) has been deemed insolvent or has become subject to a bankruptcy,
receivership or insolvency proceeding, or to a receiver, trustee or similar
official.
“Federal Funds Rate” means the rate per annum determined by the
Administrative Agent, in its sole discretion, for commercial overnight
reserve trading transactions (for the Business Day immediately preceding the
date of determination by the Administrative Agent) as quoted by the Federal
Reserve Bank of New York or such financial news services (electronic or
otherwise) as the Administrative Agent may elect, in its sole discretion, to
use from time to time, which rate shall change with and be effective on the
date of any change in such rate.
“Issuing Bank” means each of Bank of America, N.A., in its
capacity as an issuing bank of Letters of Credit, and U.S. Bank, N.A., in
its capacity as an
First Amendment to Amended and Restated Credit Agreement —Page 3
issuing bank of Letters of Credit; and “Issuing Banks” shall
collectively refer to both such banks.
“Prime Rate” shall mean, at any date, the rate of interest
announced or adopted by U.S. Bank National Association, on such date, as its
“Prime Rate,” with the understanding that the “Prime Rate” serves as a basis
on which the rate of interest is from time to time calculated for loans
making reference thereto, and may not be the lowest, best or most favored of
the interest rates offered by U.S. Bank National Association.
2. Modification to Section 2.1(a). The following is hereby added as a new paragraph at the
end of Section 2.1(a) of the Credit Agreement:
Notwithstanding anything herein to the contrary, on or after November 12, 2009,
the Borrower may increase the total amount of this credit facility, as such amount
is provided in the immediately preceding paragraph, in an aggregate principal amount
of up to $20,000,000 (for a total credit facility in an aggregate principal amount
of up to $110,000,000) subject to the arrangement of additional commitments with
financial institutions acceptable to the Borrower and the Administrative Agent;
provided that in each case (1) no Bank will be required to increase its Revolving
Credit Loan Commitment, (2) the Administrative Agent shall have no responsibility to
arrange any such additional commitments unless the Administrative Agent shall
consent to such undertaking in a prior writing; and in any event, the Administrative
Agent’s responsibility to arrange any additional commitments shall be subject to
such conditions, including, but not limited to, fee arrangements, as the
Administrative Agent may provide in connection therewith, (3) there is no continuing
Default or Event of Default, and (4) the conditions to making a borrowing, as
provided in Section 4.2 below, are satisfied.
3. Modification to Section 2.2. Section 2.2 of the Credit Agreement is hereby deleted in its
entirety and is hereby replaced with the following:
2.2 Swingline Loans.
(a) Upon the terms and subject to the conditions of this Agreement, the
Swingline Lender, in its sole discretion, may make loans (“Swingline Loans”)
to the Borrower from time to time on any Business Day during the period from and
including the Closing Date to but excluding the Swingline Termination Date in an
aggregate principal amount at any time outstanding up to but not exceeding the
Swingline Loan Commitment at such time less the aggregate principal balance of all
Swingline Loans outstanding at such time; provided, that the aggregate principal
balance of all Swingline Loans then outstanding (or which would be outstanding if
such Swingline Loan were to be made) plus the aggregate principal balance of all
Revolving Credit Loans then outstanding plus the aggregate LC Exposure of all Banks
at such time does not exceed the total Commitments of all Banks at such time; and
provided further, that the Swingline Lender shall have no obligation to make a
Swingline Loan if the Swingline Lender has received notice from the Borrower or any
Bank that one or more of the conditions precedent set forth in this Agreement have
not been satisfied. Subject to the terms and conditions of this Agreement, during
such period the Borrower may borrow, repay and re-borrow Swingline Loans. All
Swingline Loans shall be Base Rate Loans.
First Amendment to Amended and Restated Credit Agreement —Page 4
(b) If the Borrower does not repay any Swingline Loans in accordance with the
terms of this Agreement, the Swingline Note or any of the other Credit Documents,
then the Banks shall reimburse the Swingline Lender on demand for the unpaid amount
of such Swingline Loans. Such reimbursements shall be made by the Banks in
accordance with their respective Pro-Rata Shares and shall thereafter be reflected
as Revolving Credit Loans of the Banks on the books and records of the
Administrative Agent. Each Bank shall fund its respective Pro-Rata Share of
Revolving Credit Loans as required to repay Swingline Loans outstanding to the
Swingline Lender upon demand by the Swingline Lender but in no event later than 2:00
p.m., Central Time, on the next succeeding Business Day after such demand is made.
No Bank’s obligation to fund its Pro-Rata Share of a Swingline Loan shall be
affected by any other Bank’s failure to fund its Pro-Rata Share of a Swingline Loan.
Similarly, the Borrower’s obligation to repay Swingline Loans shall not be affected
by any Bank’s failure to reimburse the Swingline Lender pursuant to this Section
2.2.
(c) If any portion of any principal payment made by the Borrower to the
Swingline Lender on account of any Swingline Loan shall be recovered by or on behalf
of the Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of
the amount so recovered shall be ratably shared among all of the Banks in accordance
with their respective Pro-Rata Shares.
(d) Each Bank acknowledges and agrees that its obligation to reimburse
Swingline Loans in accordance with the terms of this Section 2.2 is absolute and
unconditional and shall not be affected by any circumstance whatsoever, including,
without limitation, the existence of a Default or an Event of Default. Further,
each Bank agrees and acknowledges that if prior to the reimbursing of any
outstanding Swingline Loans pursuant to this Section 2.2, one of the events
described in Section 7.1(h), (i) or (j) shall have occurred, each Bank will, on the
date the applicable Revolving Credit Loan would have been made, purchase, without
warranty or recourse, an undivided participating interest in the Swingline Loan to
be reimbursed in an amount equal to its Pro-Rata Share of the aggregate amount of
such Swingline Loan. Each Bank will immediately transfer to the Swingline Lender,
in immediately available funds, the amount of its participation and upon receipt
thereof the Swingline Lender will deliver to such Bank a certificate evidencing such
participation dated the date of receipt of such funds and for such amount.
Whenever, at any time after the Swingline Lender has received from any Bank such
Bank’s participating interest in a Swingline Loan, the Swingline Lender receives any
payment on account thereof, the Swingline Lender will distribute to such Bank its
participating interest in such amount (appropriately adjusted, in the case of
interest payments, to reflect the period of time during which such Bank’s
participating interest was outstanding and funded).
(e) The parties acknowledge that the Swingline Loan facility referred to in
this Section 2.2 is a subfacility of the Revolving Credit Loan facility referred to
in Section 2.1 above and, accordingly, its use by the Borrower shall act to reduce,
on a dollar-for-dollar basis, the amount of credit otherwise available to the
Borrower under such Revolving Credit Loan facility.
4. Modification to Section 2.3. Section 2.3(b) of the Credit Agreement is hereby deleted in
its entirety and is hereby replaced with the following:
First Amendment to Amended and Restated Credit Agreement —Page 5
(b) The Borrower agrees to pay the Administrative Agent, to be allocated by the
Administrative Agent among the Banks in accordance with their respective Pro-Rata
Shares, a fee with respect to each Letter of Credit computed at a per annum rate
equal to the Applicable Margin for Libor Loans, as in effect from time to time, on
the face amount of such Letter of Credit, provided that the annual fee for each
Letter of Credit shall be at least $250 (collectively, the “Letter of Credit
Fees”). The Letter of Credit Fees shall be payable in arrears on the first day
of each fiscal quarter, for the immediately preceding fiscal quarter. In addition,
the Borrower agrees to pay to the Administrative Agent, [upon issuance of each
Letter of Credit], a fronting fee computed as 0.10% (i.e.. 10 basis point) of the
face amount of such Letter of Credit.
5. Modification to Section 2.18. Section 2.18 of the Credit Agreement is hereby deleted in
its entirety and is hereby replaced with the following:
2.18 Non-Receipt of Funds by Administrative Agent.
(a) Notwithstanding anything to the contrary in this Agreement, the
Administrative Agent shall not be required to make any amount available to the
Borrower hereunder except to the extent that the Administrative Agent shall have
received such amounts from the Banks as set forth herein; provided, however, that
unless the Administrative Agent shall have been notified by a Bank prior to the time
the applicable Loan is to be made hereunder that such Bank does not intend to make
its Pro-Rata Share of the applicable Loan available to the Administrative Agent, the
Administrative Agent may (but is not required to) assume that such Bank has made
such Pro-Rata Share available to the Administrative Agent prior to such time, and
the Administrative Agent may in reliance upon such assumption make available to the
Borrower a corresponding amount. In such event, if a Bank has not in fact made its
share of the applicable borrowing available to the Administrative Agent, then the
applicable Bank and the Borrower severally agree to pay to the Administrative Agent
forthwith on demand such corresponding amount with interest thereon, for each day
from and including the date such amount is made available to the Borrower to but
excluding the date of payment to the Administrative Agent, at (i) in the case of
payment to be made by such Bank, the greater of the daily average of the Federal
Funds Rate and a rate determined by the Administrative Agent in accordance with
banking industry rules on interbank compensation, and (ii) in the case of a payment
to be made by the Borrower, the Base Rate. If the Borrower and such Bank shall pay
such interest to the Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to the Borrower the amount of such
interest paid by the Borrower for such period. If such Bank pays its share of the
applicable borrowing to the Administrative Agent, then the amount so paid shall
constitute such Bank’s Loan included in such borrowing. Any payment by the Borrower
shall be without prejudice to any claim the Borrower may have against a Bank that
shall have failed to make such payment to the Administrative Agent. If at any time
a Bank is obligated to make a Loan but does not make such Loan available, either to
the Borrower or the Administrative Agent, as applicable, such unfunded amount shall
be deemed to be outstanding for purposes of calculating the Unused Line Fee.
(b) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Banks hereunder that
the Borrower will not make such payment in full, the Administrative Agent may (but
is not required to) assume that the Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent in its sole
discretion
First Amendment to Amended and Restated Credit Agreement —Page 6
may, but shall not be obligated to, in reliance upon such assumption, cause to
be distributed to each Bank on such due date an amount equal to the amount then due
such Bank. If and to the extent the Borrower shall not have so made such payment in
full to the Administrative Agent, each Bank shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Bank together with interest
thereon, for each day from the date such amount is distributed to such Bank until
the date such Bank repays such amount to the Administrative Agent, at the greater of
the daily average of the Federal Funds Rate and a rate determined by the
Administrative Agent in accordance with banking industry rules on interbank
compensation.
6. Modification to Section 3.4. Section 3.4 of the Credit Agreement is hereby deleted in its
entirety and is hereby replaced with the following:
3.4. Limitation on Types of Loans. Anything herein to the contrary
notwithstanding, if, with respect to any Interest Period, deposits in United States
dollars (in the applicable amounts) are not being offered to any Bank in the
relevant market for such Interest Period, or the Administrative Agent otherwise
determines (which determination shall be conclusive) that quotations of interest
rates for the relevant deposits referred to in the definition of “Libor” in Section
1.1 hereof are not being provided in the relevant amounts or for the relevant
maturities for purposes of determining rates of interest for Libor Loans as provided
herein, then the Administrative Agent shall give the Borrower and each Bank prompt
notice thereof, and so long as such condition remains in effect, the Banks shall be
under no obligation to make additional Loans of such type, to Continue Loans of such
type or to Convert Loans of any other type into Loans of such type and the Borrower
shall, on the last day(s) of the then current Interest Period(s) for the outstanding
Loans of such type, either prepay such Loans or Convert such Loans into Base Rate
Loans.
7. Addition of Section 3.8. The following is hereby added to the Credit Agreement as Section
3.8:
3.8 Defaulting Bank.
(a) Remedies Against Defaulting Bank. In addition to the rights and
remedies that may be available to the Administrative Agent or the Borrower under
this Agreement or applicable law, if at any time a Bank is a Defaulting Bank, such
Defaulting Bank’s right to collect any fee that it may be entitled to under this
Agreement or to participate in the administration of the Loans pursuant to the terms
of this Agreement and the other Credit Documents, including without limitation, any
right to vote in respect of, to consent to or to direct any action or inaction of
the Administrative Agent or to be taken into account in the calculation of the
Majority Banks, shall be suspended while such Bank remains a Defaulting Bank;
provided, however, that the Commitments of such Bank may not be increased and the
period of such Commitments may not be extended without such Bank’s written consent.
If a Bank is a Defaulting Bank because it has failed to make timely payment to the
Administrative Agent of any amount required to be paid to the Administrative Agent
hereunder (without giving effect to any notice or cure periods), in addition to
other rights and remedies which the Administrative Agent or the Borrower may have
under this Agreement, the Agent shall be entitled (i) to collect interest from such
Defaulting Bank on such delinquent payment for the period from the date on which the
payment was due until the date on which the payment is made at the Federal Funds
Rate, (ii) to withhold or setoff and to apply in satisfaction of the defaulted
payment and
First Amendment to Amended and Restated Credit Agreement —Page 7
any related interest, any amounts otherwise payable to such Defaulting Bank
under this Agreement or any other Credit Document until such defaulted payment and
related interest has been paid in full and such default no longer exists, and (iii)
to bring an action or suit against such Defaulting Bank in a court of competent
jurisdiction to recover the defaulted amount and any related interest. Any amounts
received by the Administrative Agent in respect of a Defaulting Bank’s Loans shall
not be paid to such Defaulting Bank and shall be held uninvested by the
Administrative Agent and either applied against the purchase price of such Loans
under the following subsection 3.8(b) or paid to such Defaulting Bank upon the
default of such Defaulting Bank being cured.
(b) Purchase from Defaulting Bank. Any Bank that is not a Defaulting
Bank shall have the right, but not the obligation, in its sole discretion, to
acquire all of a Defaulting Bank’s Commitments and such Defaulting Bank’s rights
under the Loans outstanding and payable to such Defaulting Bank. If more than one
Bank exercises such right, each such Bank shall have the right to acquire such
Defaulting Bank’s Commitment and rights pro rata in accordance with each purchasing
Bank’s Revolving Credit Loan Commitments at such time. Upon any such purchase, the
Defaulting Bank’s interest in its Loans and its rights hereunder (but not its
liability in respect thereof or under the Credit Documents or this Agreement to the
extent the same relate to the period prior to the effective date of the purchase)
shall terminate on the date of purchase, and the Defaulting Bank shall promptly
execute all documents reasonably requested to surrender and transfer such interest
to the purchaser(s) thereof, including an assignment agreement in the form of
Exhibit E. The purchase price for the Commitments of a Defaulting Bank shall be
equal to the amount of the principal balance of the Loans outstanding and owed by
the Borrower to the Defaulting Bank. The purchaser shall pay to the Defaulting Bank
in immediately available funds on the date of such purchase the principal of and
accrued and unpaid interest and fees on the Loans made by such Defaulting Bank
hereunder (it being understood that such accrued and unpaid interest and fees may be
paid pro rata to the purchasing Bank and the Defaulting Bank by the Administrative
Agent at a subsequent date upon receipt of payment of such amounts from the
Borrower). Prior to payment of such purchase price to a Defaulting Bank, the
Administrative Agent shall apply against such purchase price any amounts retained by
the Administrative Agent pursuant to the last sentence of subsection 3.8(a), above.
The Defaulting Bank shall be entitled to receive amounts owed to it by the Borrower
under the Credit Documents which accrued prior to the date of the default by the
Defaulting Bank, to the extent the same are received by the Administrative Agent
from or on behalf of the Borrower. There shall be no recourse against any Bank or
the Administrative Agent for the payment of such sums except to the extent of the
receipt of payments from any other party or in respect of the Loans.
(c) Letter of Credit Cash Collateral. If any Bank is a Defaulting
Bank, then the Issuing Bank may, by notice to such Defaulting Bank and the
Administrative Agent, require such Defaulting Bank to (i) deliver to the
Administrative Agent, for the account of the Issuing Bank, cash collateral in an
amount equal to such Defaulting Bank’s Pro Rata Share (prior to any reduction of the
amount of such Bank’s Commitments as provided in subsection 3.8(d), below) of the
undrawn principal amount of all Letters of Credit issued by the Issuing Bank for the
account of the Borrower (the “Reserve Amount”) or (b) make other
arrangements reasonably satisfactory to the Issuing Bank to assure that such
Defaulting Bank will reimburse the Issuing Bank for its Pro Rata Share of all
Reimbursement Obligations. If any Defaulting Bank fails to provide cash collateral
or make other arrangements as required by this subsection 3.8(c), the Administrative
First Amendment to Amended and Restated Credit Agreement —Page 8
Agent may in its discretion retain as cash collateral all amounts otherwise
payable to such Defaulting Bank under this Agreement until the Administrative Agent
has retained an amount equal to the Reserve Amount. Any such cash collateral (A)
shall be held by the Administrative Agent pursuant to arrangements reasonably
satisfactory to the Issuing Bank and the Administrative Agent, and (B) if at any
time such Defaulting Bank becomes obligated to reimburse the Administrative Agent
any Reimbursement Obligations, shall be applied (to the extent required) by the
Administrative Agent to such reimbursement. Upon the expiration, termination or
reduction in amount of any applicable Letter of Credit (or upon termination of such
Defaulting Bank’s Commitments), the Administrative Agent shall release to such
Defaulting Bank (or such other Person as may be entitled thereto) any cash
collateral held by the Administrative Agent in excess of the Reserve Amount.
(d) Commitment Reduction. At any time a Bank becomes a Defaulting
Bank, then at the Administrative Agent’s option in its sole discretion, but without
prejudice to the Borrower’s rights under this Agreement, such Defaulting Bank’s
Commitments shall be reduced to the amount of such Defaulting Bank’s outstanding
Loans plus the amount of cash collateral held by the Administrative Agent for the
account of such Defaulting Bank but such Defaulting Bank’s Pro Rata Share in respect
of all outstanding Letters of Credit shall not be changed. In addition, if any Bank
is a Defaulting Bank at the time any payment is to be made by the Banks to the
Issuing Bank pursuant to Section 2.3, no Bank that is not a Defaulting Bank shall be
obligated to make a payment to the Issuing Bank that would cause the aggregate
principal amount of such Bank’s Revolving Credit Loans plus such Bank’s Pro Rata
Share (without giving effect to any Commitment reduction pursuant to the foregoing
provisions) of the aggregate maximum amount available to be drawn under outstanding
Letters of Credit to exceed such Bank’s Revolving Credit Loan Commitment (or if all
the Commitments have terminated, such Bank’s Revolving Credit Loan Commitment at the
time of such termination, adjusted for any assignments by or to such Bank).
8. Modification of Section 6.7. Section 6.7 of the Credit Agreement is hereby deleted in its
entirety and is hereby replaced with the following:
6.7. Intentionally Omitted.
9. Modification of Section 6.20. Section 6.20 of the Credit Agreement is hereby deleted in
its entirety and is hereby replaced with the following:
6.20. Intentionally Omitted.
10. Modifications Relating to Issuing Banks. The Credit Agreement is hereby amended as
follows:
(a) In the first line of Subsection 2.3(a) of the Credit Agreement, the phrase
“The Issuing Bank agrees, subject to the terms and conditions of this Agreement,” is
hereby replaced with the phrase “Each Issuing Bank agrees, subject to the terms and
conditions of this Agreement,”
(b) The following subsection 2.3(l) is hereby added to Section 2.3:
First Amendment to Amended and Restated Credit Agreement —Page 9
(1) As used in this Section 2.3, the phrase “the Issuing Bank”
shall be deemed to mean each of Bank of America, N.A., as an Issuing
Bank, and U.S. Bank, N.A., as an Issuing Bank, as applicable.
(c) All other references in the Credit Agreement to “Issuing Bank” other than
those in Section 2.3 and Section 2.23 shall be amended to be references to the
“Issuing Banks.”
11. Modification to Exhibit A. Exhibit A as attached to the Credit Agreement is hereby
deleted in its entirety and is hereby replaced with Exhibit A, attached to this Amendment.
12. Modification to Exhibit F. Exhibit F as attached to the Credit Agreement is hereby
deleted in its entirety and is hereby replaced with Exhibit F, attached to this Amendment.
13. Modifications to Schedules. Schedules 1.1, 5.1, 5.3, 5.11, 5.12 and 6.13 as attached to
the Credit Agreement are hereby deleted in their entirety and hereby replaced with
Schedules 1.1, 5.1, 5.3, 5.11, 5.12 and 6.13, attached to this Amendment.
14. Documentation Agent. The parties acknowledge that Bank of America, N.A. shall be deemed
to be the “Documentation Agent” under the terms of the Credit Agreement from and after the date of
this Amendment,
15. Reaffirmation of Credit Documents. The Borrower reaffirms its obligations under the
Credit Agreement, as amended hereby, 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 and the Banks, as a material
inducement to the Agent and each Bank to enter into this Amendment, that (a) the Borrower has no
and in any event waives any, defense, claim or right of setoff with respect to its obligations
under, or in any other way relating to, the Credit Agreement, as amended hereby, or any of the
other Credit Documents to which it is a party, or the Agent’s or any Bank’s actions or inactions in
respect of any of the foregoing, and (b) all representations and warranties made by or on behalf of
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.
16. Conditions Precedent to Amendment. Except to the extent waived in a writing signed by the
Administrative Agent and delivered to the Borrower, the Administrative Agent and the Banks shall
have no duties under this Amendment until the Administrative Agent shall have received fully
executed originals of each of the following, each in form and substance satisfactory to the
Administrative Agent:
(a) Amendment. This Amendment;
(b) Intentionally Omitted.
(c) Secretary’s Certificate. A certificate from the Secretary or Assistant Secretary
of the Borrower certifying to the Administrative Agent that, among other things, (i)
attached thereto as an exhibit is a true and correct copy of the resolutions of the board of
directors of the Borrower authorizing the Borrower to enter into the transactions described
in this Amendment and the execution, delivery and performance by the Borrower of any
documents related to this Amendment, (ii) the articles of incorporation and by-laws of the
Borrower attached thereto are in full force and effect and have not been amended or
otherwise modified or revoked, and (iii) attached thereto as exhibits are certificates of
good standing, each of recent date, from the
First Amendment to Amended and Restated Credit Agreement —Page 10
Secretary of State of Delaware and the Secretary of State of Missouri, certifying the
good standing and authority of the Borrower in such states as of such dates;
(d) Opinion Letter. An opinion letter from Borrower’s in-house counsel in form
satisfactory to the Administrative Agent; and
(e) Other Documents. Such other documents as the Administrative Agent may reasonably
request to further implement the provisions of this Amendment or the transactions
contemplated hereby.
17. No Other Amendments; No Waiver of Default. Except as amended hereby, the Credit Agreement
and the other Credit Documents shall remain in full force and effect and be binding on the parties
in accordance with their respective terms. By entering into this Amendment, the Administrative
Agent and the Banks are not waiving any Default or Event of Default which may exist on the date
hereof.
18. Expenses. The Borrower agrees to pay and reimburse the Administrative Agent and/or the
Banks for all out-of-pocket costs and expenses incurred in connection with the negotiation,
preparation, execution, delivery, operation, enforcement and administration of this Amendment,
including the reasonable fees and expenses of counsel to the Administrative Agent and the Banks.
19. Counterparts; Fax Signatures. This Amendment and any documents 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 documents
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.
20. Mo. Rev. Stat. Section 432.047 Statement. The following statement is given pursuant to
Mo. Rev. Stat. Section 432.047: NO ORAL AGREEMENTS; FINAL WRITTEN AGREEMENT. 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 REGARDLESS OF THE LEGAL
THEORY UPON WHICH IT IS BASED THAT IS IN ANY WAY RELATED TO THE CREDIT AGREEMENT. TO PROTECT YOU
(THE BORROWER) AND US (THE ADMINISTRATIVE AGENT, THE DOCUMENTATION AGENT, THE LEAD ARRANGER, THE
SWINGLINE LENDER, THE ISSUING BANK AND THE BANKS) FROM MISUNDERSTANDING OR DISAPPOINTMENT, ANY
AGREEMENTS WE REACH COVERING SUCH MATTERS ARE CONTAINED IN THIS WRITING, WHICH, TOGETHER WITH ALL
OTHER WRITTEN AGREEMENTS BETWEEN US, IS THE COMPLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
BETWEEN US, EXCEPT AS WE MAY LATER AGREE IN WRITING TO MODIFY IT.
21. Governing Law. This Amendment shall be governed by the same law that governs the Credit
Agreement.
[Remainder of Page Intentionally Left Blank]
First Amendment to Amended and Restated Credit Agreement - Page 11
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date first above
written.
CERNER CORPORATION, the Borrower |
||||
By: | /s/ Xxxx X. Xxxxxxxx | |||
Name: | Xxxx X. Xxxxxxxx | |||
Title: | Senior Vice President & Chief Financial Officer | |||
U.S. BANK NATIONAL ASSOCIATION, as Administrative Agent, Lead Arranger, an Issuing Bank, Swingline Lender and a Bank |
||||
By: | /s/ Xxxx Xxxxx | |||
Name: | Xxxx Xxxxx | |||
Title: | Vice President | |||
UMB BANK, N.A., as a Bank |
||||
By: | /s/ Xxxxxx X. Xxxxxx | |||
Name: | Xxxxxx X. Xxxxxx | |||
Title: | Senior Vice President | |||
COMMERCE BANK, N.A., as a Bank |
||||
By: | /s/ Xxxxxx X. Xxxx | |||
Name: | Xxxxxx X. Xxxx | |||
Title: | Vice President | |||
BANK OF AMERICA, N.A., as Documentation Agent, an Issuing Bank and a Bank |
||||
By: | /s/ Xxxxxxx X. Xxxxxx | |||
Name: | Xxxxxxx X. Xxxxxx | |||
Title: | Senior Vice President | |||
First Amendment to Amended and Restated Credit Agreement — Signature Page
CONSENT OF GUARANTOR SUBSIDIARIES
Reference is made to the Amended and Restated Guaranty dated as of November 30, 2006, given by
(1) CERNER PROPERTIES, INC., (2) CERNER INTERNATIONAL, INC., (3) CERNER MULTUM, INC., (4) CERNER
HEALTH CONNECTIONS, INC., (5) CERNER PHYSICIAN PRACTICE, INC., (6) CERNER INVESTMENT CORP., (7)
CERNER DHT, INC., (8) CERNER CAMPUS REDEVELOPMENT CORPORATION, (9) CERNER INNOVATION, INC., (10)
CERNER GALT, INC., (11) CERNER BEYONDNOW, INC., (12) CERNER PROJECT IMPACT, INC., (13) THE HEALTH
EXCHANGE, INC. and (14) ROCKCREEK AVIATION, INC. (each a “Guarantor Subsidiary” and,
collectively, the “Guarantors Subsidiaries”) in favor of the Bank Parties (as such term is
defined in the Credit Agreement referred to in the above Amendment, as so amended (the “Bank
Parties”) (with respect to each Guarantor Subsidiary, such Guarantor Subsidiaries’
“Guaranty”). Capitalized terms used and not defined in this Consent of Guarantors shall
have the meanings given to them in the Credit Agreement referred to in the above Amendment, as so
amended. To induce the Bank Parties to enter into the above Amendment, the Subsidiary Guarantors
jointly and severally (a) consent to the Bank Parties and the Borrower entering into the
Amendment, (b) agree that the execution, delivery and performance of the Amendment shall not
discharge, limit or otherwise impair the obligations of each Guarantor Subsidiary under the
Guaranty to which such Guarantor Subsidiary is a party, (c) agree that each Guaranty is and remains
in full force and effect and is enforceable against the Guarantor Subsidiary thereto in accordance
with its terms, (d) waive any defense, claim or right of setoff that any of the Guarantor
Subsidiaries may have in respect of the above Amendment and confirm that the Guarantor Subsidiaries
are not aware of any defense, claim or right of setoff that any of the Guarantor Subsidiaries may
have in respect of any Guaranty, the Credit Agreement, any other Credit Document or the Bank
Parties’ actions or inactions in respect of any of the foregoing, and (e) agree that the Bank
Parties have no duty to give any Guarantor Subsidiary notice of or obtain any Guarantor
Subsidiaries’ consent to the transactions described in the Amendment, and that any Bank Party’s
giving of notice to the Guarantor Subsidiaries and the obtainment of their consent in this instance
shall not impose any similar or other duty upon the Bank Parties in any future matter or
transaction. This Consent of Guarantor Subsidiaries shall, as to each Guarantor Subsidiary, be
governed by the same law that governs such Guarantor Subsidiary’s Guaranty, and may be validly
executed and delivered by fax or other electronic transmission and by use of one or more
counterpart signature pages.
[signature pages to follow]
First Amendment to Amended and Restated Credit Agreement — Consent of Guarantor Subsidiaries
GUARANTOR SUBSIDIARIES: | ||||||||||||||
CERNER PROPERTIES, INC., a Delaware corporation |
CERNER INTERNATIONAL, INC., a Delaware corporation |
|||||||||||||
By: | /s/ Xxxx X. Xxxxxxxx | By: | /s/ Xxxx X. Xxxxxxxx | |||||||||||
Name: | Xxxx X. Xxxxxxxx | Name: | Xxxx X. Xxxxxxxx | |||||||||||
Title: | President | Title: | Vice President and Assistant Treasurer | |||||||||||
CERNER MULTUM, INC., a Delaware corporation | CERNER HEALTH CONNECTIONS, INC., a Delaware corporation | |||||||||||||
By: | /s/ Xxxx X. Xxxxxxxx | By: | /s/ Xxxx X. Xxxxxxxx | |||||||||||
Name: | Xxxx X. Xxxxxxxx | Name: | Xxxx X. Xxxxxxxx | |||||||||||
Title: | Vice President and Assistant Treasurer | Title: | Vice President and Assistant Treasurer | |||||||||||
CERNER PHYSICIAN PRACTICE, INC., a Delaware corporation f/k/a Cerner Health Facts, Inc. | CERNER GALT, INC., a Delaware corporation |
|||||||||||||
By: | /s/ Xxxx X. Xxxxxxxx | By: | /s/ Xxxx X. Xxxxxxxx | |||||||||||
Name: | Xxxx X. Xxxxxxxx | Name: | Xxxx X. Xxxxxxxx | |||||||||||
Title: | President | Title: | President | |||||||||||
CERNER INVESTMENT CORP., a Nevada corporation |
CERNER DHT, INC., a Delaware corporation |
|||||||||||||
By: | /s/ Xxxx X. Xxxxxxxx | By: | /s/ Xxxx X. Xxxxxxxx | |||||||||||
Name: | Xxxx X. Xxxxxxxx | Name: | Xxxx X. Xxxxxxxx | |||||||||||
Title: | President | Title: | President | |||||||||||
CERNER CAMPUS REDEVELOPMENT
CORPORATION, a Missouri corporation |
CERNER INNOVATION, INC., a Delaware corporation |
|||||||||||||
By: | /s/ Xxxx X. Xxxxxxxx | By: | /s/ Xxxx X. Xxxxxxxx | |||||||||||
Name: | Xxxx X. Xxxxxxxx | Name: | Xxxx X. Xxxxxxxx | |||||||||||
Title: | President | Title: | Vice President and Assistant Treasurer |
First Amendment to Amended and Restated Credit Agreement — Consent of Guarantor Subsidiaries
CERNER BEYOND NOW, INC., a Kansas corporation |
CERNER PROJECT IMPACT, INC., a Delaware corporation |
|||||||||||||
By: | /s/ Xxxx X. Xxxxxxxx | By: | /s/ Xxxx X. Xxxxxxxx | |||||||||||
Name: | Xxxx X. Xxxxxxxx | Name: | Xxxx X. Xxxxxxxx | |||||||||||
Title: | President | Title: | President | |||||||||||
THE HEALTH EXCHANGE,
INC., a Missouri corporation |
ROCKCREEK AVIATION, INC., a Delaware corporation |
|||||||||||||
By: | /s/ Xxxx X. Xxxxxxxx | By: | /s/ Xxxx X. Xxxxxxxx | |||||||||||
Name: | Xxxx X. Xxxxxxxx | Name: | Xxxx X. Xxxxxxxx | |||||||||||
Title: | Vice President and Assistant Treasurer | Title: | President |
First Amendment to Amended and Restated Credit Agreement — Consent of Guarantor Subsidiaries
EXHIBIT A
(Banks and Commitments)
Revolving | ||||||||||||||||
Credit Loan | Letter of Credit | Swingline Loan | ||||||||||||||
Commitment | Commitment | Commitment | Bank’s Total | |||||||||||||
Bank | Amount | Amount* | Amount* | Commitment Amount | ||||||||||||
U.S. Bank
National Association |
$ | 45,000,000 | $ | 25,000,000.00 | $ | 3,000,000 | $ | 45,000,000 | ||||||||
Bank of America,
N.A. |
$ | 20,000,000 | $ | 11,111,111.11 | 0 | $ | 20,000,000 | |||||||||
Commerce Bank, N.A. |
$ | 15,000,000 | $ | 8,333,333.33 | 0 | $ | 15,000,000 | |||||||||
UMB Bank, N.A. |
$ | 10,000,000 | $ | 5,555,555.56 | 0 | $ | 10,000,000 | |||||||||
TOTALS: |
$ | 90,000,000 | $ | 50,000,000.00 | $ | 3,000,000 | $ | 90,000,000 |
* | As more particularly described in the Agreement, the Letter of Credit Commitments and the Swingline Loan Commitment are each subcommitments under the Revolving Credit Loan Commitments. Accordingly, extensions of credit under the Letter of Credit Commitments or the Swingline Loan Commitment act to reduce, on a dollar-for-dollar basis, the amount of credit otherwise available under the Revolving Credit Loan Commitments. |
First Amendment to Amended and Restated Credit Agreement — Exhibit A
EXHIBIT F
[Form of Covenant Compliance Certificate]
COVENANT COMPLIANCE CERTIFICATE
(for fiscal quarter ended )
This Covenant Compliance Certificate (the “Certificate”) is delivered pursuant to
Section 6.1 of the Amended and Restated Credit Agreement, dated as of , 2006, among
Cerner Corporation (the “Borrower”); U.S. Bank National Association, as Administrative
Agent, Lead Arranger, Issuing Bank, Swingline Lender and a Bank; Bank of America, N.A., as a Bank;
and the other Banks from time to time a party thereto (the “Amended and Restated Credit
Agreement”). Capitalized terms used and not defined in this Certificate have the meanings
given to them in the Amended and Restated Credit Agreement.
The undersigned hereby certifies that he or she is the Chief Financial Officer of the Borrower
and, as such, is authorized to execute and deliver this Certificate on behalf of the Borrower, and
that:
1. EBITDA to Interest Expense. The following amounts reflect the consolidated
financial results of the Borrower and its Subsidiaries for the dates or time periods referred to in
Section 6.5 of the Amended and Credit Agreement, in each case at the end of the fiscal quarter
referred to above:
(a | ) | Consolidated EBITDA(from line 6(i)) |
$ | |||||
(b | ) | less Consolidated Maintenance CAPEX |
$ | |||||
(c | ) | line 1(a) minus line 1(b) |
$ | |||||
(d | ) | Consolidated Interest Expense |
$ | |||||
(e | ) | ratio of line 1(c) to line 1(d) |
to 1 | |||||
Compliance: Does line 1(e) equal or exceed 2.5 to 1? |
[yes/no] |
2. Senior Funded Debt to EBITDA. The following amounts reflect the consolidated
financial results of the Borrower and its Subsidiaries for the dates or time periods referred to in
Section 6.6 of the Amended and Restated Credit Agreement, in each case at the end of the fiscal
quarter referred to above:
(a | ) | Consolidated Senior Funded Debt |
$ | |||||
(b | ) | Consolidated EBITDA(from line 6(i)) |
$ | |||||
(c | ) | ratio of line 2(a) to line 2(b) |
to 1 | |||||
Compliance: Is line 2(c) less than or equal to 1.8 to 1? |
[yes/no] |
3. Intentionally Omitted.
4. Minimum Cash Balances. The following reflects the Consolidated Cash Balances of
the Borrower and its Subsidiaries as of the end of the fiscal quarter referred to above:
(a | ) | Consolidated Cash Balances |
$ | |||||
Compliance: Does line 4(a) equal or exceed $100,000,000? |
[yes/no] |
5. Intentionally Omitted.
6. Calculation of EBITDA. For purposes of lines 1(a) and 2(b) above, Consolidated
EBITDA is calculated as follows:
(a | ) | Consolidated Net Income |
$ | |||||
(b | ) | plus Interest Expense |
$ | |||||
(c | ) | plus federal, state and local taxes |
$ | |||||
(d | ) | plus depreciation, amortization and
other non-cash charges |
||||||
(e | ) | plus or minus extraordinary gains or losses |
$ | |||||
(f | ) | plus or minus discontinued operations
gains or losses |
$ | |||||
(g | ) | plus or minus gains or losses from
asset sales |
$ | |||||
(h | ) | total adjustments
(sum of lines 6(b) through 6(g)) |
$ | |||||
(i | ) | Consolidated EBITDA
(line 6(a) plus line 6(h)) |
$ | |||||
7. Financial Statements The financial statements described in Section 6.1(a) of the
Amended and Restated Credit Agreement for the Borrower and its Subsidiaries for the end of the
fiscal quarter referred to above, which are attached hereto and are incorporated herein by this
reference, fairly present the consolidated financial condition and results of operations of the
Borrower and its Subsidiaries in accordance with GAAP consistently applied, as at the end of, and
for, such period (subject to normal year-end audit adjustments and to the absence of footnote
disclosures).
8. Other Compliance. A review of the activities of the Borrower and its Subsidiaries
during the period since the date of the last Covenant Compliance Certificate has been made at my
direction and under my supervision with a view to determining whether the Borrower and its
Subsidiaries have kept, observed and performed all of their respective obligations under the
Amended and Restated Credit Agreement and all other Credit Documents to which any of them are
parties, and to the best of my knowledge after due inquiry and investigation, (a) the Borrower and
each of its Subsidiaries have kept, observed and performed all of their respective obligations
under the Amended and Restated Credit Agreement and all other Credit Documents to which they are
parties, (b) no Default or Event of Default has occurred and is continuing, and (c) all
representations and warranties made by the Borrower and its Subsidiaries in the Amended and
Restated Credit Agreement and the other Credit Documents to which they are parties are true and
correct as of the date of this Certificate, except those representations and warranties regarding
Subsidiaries made in Section 5.12 of the Amended and Restated Credit Agreement that are identified
as being made “as of the Closing Date,” in which case such representations and warranties are true
and correct as of the Closing Date.
8. Reliance. This Certificate is delivered to the Administrative Agent for its
benefit and the benefit of the Issuing Bank, the Swingline Lender and the Banks and may be
conclusively relied upon by all such Persons.
IN WITNESS WHEREOF, the undersigned has executed this certificate on behalf of the Borrower on
.
CERNER CORPORATION |
||||
By: | ||||
Name: | ||||
Title: | Chief Financial Officer | |||