EXHIBIT 4(F)
SECOND AMENDMENT TO CREDIT AGREEMENT
This Second Amendment to Credit Agreement (the "Amendment") is made as
of April 30, 2003, by and among CERNER CORPORATION, a Delaware corporation (the
"Borrower"); U.S. BANK NATIONAL ASSOCIATION, a national banking association, in
its capacity as Administrative Agent, Lead Arranger, Swingline Lender, Issuing
Bank and a Bank; LASALLE BANK NATIONAL ASSOCIATION, a national banking
association, in its capacity as Documentation Agent and a Bank; COMMERCE BANK,
N.A., a national banking association, in its capacity as a Bank; and UMB BANK,
N.A., a national banking association, in its capacity as a Bank. Capitalized
terms used and not defined hereunder have the meanings given to them in the
Credit Agreement referred to below.
Preliminary Statements
(a) The Borrower and the Bank Parties are parties to a Credit Agreement
dated as of May 31, 2002, as amended by a First Amendment to Credit Agreement
dated as of July 22, 2002 (as so amended, the "Credit Agreement").
(b) The Borrower has requested that (1) Section 6.11 of the Credit
Agreement be amended with respect to the Borrower's right to pay dividends and
redeem its stock from time to time, and (2) the Borrower be permitted (a) to
dissolve the corporate existence of Cerner FSC, Inc. and to distribute its
assets to Cerner International, Inc., and (b) to dissolve the corporate
existence of Zynx Health Incorporated, a California corporation, and to
distribute its assets, and to cause its obligations under the Credit Documents
to be assumed by, Zynx Health Incorporated, a newly-formed Delaware corporation
wholly owned by the Borrower. The Bank Parties are 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. DEFINITION. Section 1.1 of the Credit Agreement is amended
to add the following defined term:
"Second Amendment" shall mean the Second Amendment to
Credit Agreement, dated as of April 30, 2003, among the
Borrower and the Bank Parties.
2. STOCK REDEMPTIONS. Section 6.11 of the Credit Agreement is
deleted and is replaced with the following:
6.11. Dividends and Distributions. The Borrower shall
not, nor shall it permit any of its Subsidiaries to, declare
or pay, directly or indirectly, any dividend or make any other
distribution (by reduction of capital or otherwise), whether
in cash, property, securities or otherwise, with respect to
any shares of its capital stock or directly or indirectly
redeem, purchase, retire or otherwise acquire for value any
shares of any class of its capital stock or set aside any
amount for any such purpose (the foregoing transactions being
collectively called "Restricted Payments"); provided, however,
that (a) the Borrower and its Subsidiaries may declare and pay
dividends payable solely in shares of its common stock, (b)
any Subsidiary of the Borrower may make Restricted Payments to
the Borrower or to any Guarantor Subsidiary, and (c) during
any fiscal quarter, the Borrower may declare and pay cash
dividends, and/or redeem, purchase, retire or otherwise
acquire for value any shares of any class of its capital stock
or set aside any amount for any such purpose (collectively
"Permitted Payments"), in each case if (1) no Default or Event
of Default then exists or would result therefrom, and (2) the
aggregate amount of Permitted Payments made during such fiscal
quarter, together with the aggregate amount of Permitted
Payments made during the preceding three fiscal quarters, does
not exceed the lesser of:
(A) the greater of (i) $40,000,000 or (ii)
50% of Consolidated Net Income for the four fiscal
quarters most recently ended (and for which financial
statements have been delivered to the Administrative
Agent and the Banks pursuant to Section 6.1), or
(B) 100% of Consolidated Net Income for the
four fiscal quarters most recently ended (and for
which financial statements have been delivered to the
Administrative Agent and the Banks pursuant to
Section 6.1).
3. CONSENT TO PROPOSED TRANSACTIONS. The Borrower has advised the Bank
Parties that, subject to the Borrower obtaining the consents and waivers set
forth in this Amendment, the Borrower intends to enter into the following
transaction or cause the following transactions to be entered into, in each case
within 60 days after the date of this Amendment (for purposes of this Amendment,
collectively, the "Proposed Transactions"):
(a) The Borrower will cause the corporate existence of
Cerner FSC, Inc., a corporation organized under the
laws of Barbados ("Cerner FSC"), to be dissolved,
and, in connection therewith, cause all then-existing
assets of Cerner FSC to be distributed to Cerner
International, Inc.; and
(b) The Borrower will cause Zynx Health Incorporated, a
California corporation ("Zynx-California"), to be
merged with and into Zynx Health Incorporated, a
newly-formed Delaware corporation wholly-owned by the
Borrower ("Zynx-Delaware"), with Zynx-Delaware being
the sole surviving entity, and such that all
obligations of Zynx-California under the Subsidiary
Guaranty and any other Credit Documents to which it
is a party become, by operation of law, the
obligations of Zynx-Delaware (such merger being
referred to herein as the "Zynx Merger").
The Bank Parties hereby (1) consent to the Proposed Transactions and
waive any Default or Event of Default that may arise under the Credit Agreement
or any of the other Credit Documents solely as a result of the Borrower and/or
any Subsidiaries of the Borrower identified above entering into the Proposed
Transactions, (2) agree that, effective upon the consummation of the Proposed
Transactions, and without further action on any Person's part, Schedule 5.12 of
the Credit Agreement shall be deemed to reflect the consummation of the Proposed
Transactions, and (3) waive the Borrower's obligation under Section 6.9(b) of
Second Amendment to Credit Agreement -- Page 2
the Credit Agreement to cause Zynx-Delaware to become a party to the Subsidiary
Guaranty within five Business Days after it became a Subsidiary, provided that
Zynx-Delaware becomes a party to the Subsidiary Guaranty within 5 Business Days
after the consummation of the Zynx Merger, as provided in the following
sentence. The foregoing consent, waiver and agreement is subject to the
conditions subsequent that (A) the Proposed Transactions are consummated in all
material respects within 60 days after the date of this Amendment, and (B) not
later than 5 Business Days after the consummation of the Zynx Merger, (i) the
Borrower causes Zynx-Delaware to formally become a party to the Subsidiary
Guaranty by executing and delivering such documents as the Administrative Agent
may reasonably request, and (ii) the Borrower causes Zynx-Delaware to deliver to
the Administrative Agent such certificates and other documents regarding its
corporate formation, existence and authority to act as the Administrative Agent
may require in accordance with Section 6.9(b) of the Credit Agreement.
4. PRIOR DISSOLUTION OF HEALTH NETWORK VENTURES. The Borrower
represents and warrants to the Bank Parties that the Borrower has caused the
dissolution of Health Network Ventures, Inc., a Delaware corporation, and the
distribution of its assets to the Borrower, in each case in accordance with the
terms of the letter agreement dated December 16, 2002 among the Bank Parties and
the Borrower.
5. CONDITIONS PRECEDENT TO AMENDMENT. Notwithstanding anything in this
Amendment to the contrary, unless and to the extent the Administrative Agent
waives the benefits of this sentence by giving written notice thereof to the
Borrower, none of the Bank Parties shall have any duties under this Amendment,
nor shall any waivers, releases or other concessions, if any, made or given by
any of the Bank Parties under this Amendment be effective, in each case until
the Administrative Agent has received fully executed originals of each of the
following, each in form and substance satisfactory to the Administrative Agent:
(A) AMENDMENT. This Amendment;
(B) OTHER. Such other documents as the Administrative
Agent may reasonably request in connection with the transactions
contemplated hereby.
6. REPRESENTATIONS AND WARRANTIES. The Borrower represents and warrants
to the Bank Parties 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.
7. 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 Bank Parties, as a material inducement to the Bank Parties 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 any of the Bank Parties; 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
Second Amendment to Credit Agreement -- Page 3
date hereof as if made on the date hereof, except for any such representations
or warranties which specifically and expressly relate to an earlier date, which
representations and warranties were true and complete as of such earlier date.
8. 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.
9. 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.
10. LEGAL FEES. The Borrower shall pay the reasonable legal fees and
expenses incurred by the Administrative 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.
11. 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.
12. 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) to follow]
Second Amendment to Credit Agreement -- Page 4
IN WITNESS WHEREOF, the parties have entered into this Amendment as of
the date first above written.
CERNER CORPORATION COMMERCE BANK, N.A., as a Bank
By: /s/ Xxxx X. Xxxxxxxx By: /s/ Xxx Xxxx
----------------------------------- -------------------------------
Name: Xxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxx
Title: CFO/Senior Vice President Title: Vice President
U.S. BANK NATIONAL ASSOCIATION, UMB BANK, NA., as a Bank
as Administrative Agent,
Lead Arranger, Issuing Bank,
Swingline Lender and a Bank
By: /s/ Xxxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
----------------------------------- -------------------------------
Name: Xxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxx
Title: SVP Title: Vice President
LASALLE BANK NATIONAL ASSOCIATION,
as Documentation Agent and a Bank
By: /s/ Xxxxx X. Xxxx
-----------------------------------
Name: Xxxxx X. Xxxx
Title: First Vice President
[Consent of Guarantors to follow]
Second Amendment to Credit Agreement -- Signature Page
CONSENT OF GUARANTORS
Reference is made to the Guaranty dated as of May 31, 2002, in favor of
the Administrative Agent, on behalf of the Banks, the Swingline Lender and the
Issuing Bank, to which the undersigned (each a "Guarantor") are parties, either
as an original signatory thereto or pursuant to any subsequent assumption,
joinder or other agreements, and any other guaranty executed by any Guarantor in
favor of the Administrative Agent or any other Bank Party relating to any
indebtedness of the Borrower under any of the Credit Documents (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
Bank Parties to enter into the above Amendment, each Guarantor: (a) consents to
the Borrower and the Bank Parties 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 any of the Bank Parties; and (e) agrees
that none of the Bank Parties 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 Bank Parties' 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 any of the Bank Parties 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 PROPERTIES, INC., CERNER INTERNATIONAL, 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 and Treasurer Title: Vice President and Treasurer
CERNER MULTUM, INC., CERNER HEALTH CONNECTIONS, 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: Treasurer Title: Vice President and Treasurer
CERNER HEALTH FACTS, INC., CERNER CITATION, 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 and Treasurer Title: Vice President and Treasurer
Second Amendment to Credit Agreement -- Signature Page
CERNER INVESTMENT CORP., CERNER DHT, INC.,
a Nevada 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 and Treasurer Title: Vice President and Treasurer
CERNER CAMPUS REDEVELOPMENT CERNER RADIOLOGY
CORPORATION, INFORMATION SYSTEMS, INC.,
a Missouri corporation 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, Chief Financial
Officer and Treasurer
ZYNX HEALTH INCORPORATED,
a California corporation
By: /s/Xxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxx X. Xxxxxxxx
Title: Treasurer
Second Amendment to Credit Agreement -- Signature Page
