SEVENTH AMENDMENT TO CREDIT AGREEMENT
SEVENTH
AMENDMENT TO CREDIT AGREEMENT
THIS
SEVENTH AMENDMENT TO CREDIT AGREEMENT (this “Amendment”)
dated
as of March 10, 2006 is among HEARTLAND FINANCIAL USA, INC., a Delaware
corporation (the “Borrower”),
each
of the banks party hereto (individually, a “Bank”
and
collectively, the “Banks”)
and
THE NORTHERN TRUST COMPANY, as agent for the Banks (in such capacity, together
with its successors in such capacity, the “Agent”).
WHEREAS,
the Borrower, the Agent and the Banks have entered into a Credit Agreement
dated
as of January 31, 2004 (as heretofore amended, the “Credit
Agreement”);
and
WHEREAS,
the Borrower, the Agent and the Banks wish to make certain amendments to the
Credit Agreement;
NOW,
THEREFORE, for valuable consideration, the receipt and sufficiency of which
is
hereby acknowledged, the parties hereto agree as follows:
1. Definitions.
Terms
defined in the Credit Agreement and not otherwise defined herein shall have
the
respective meanings given to them in the Credit Agreement and terms defined
in
the introductory paragraphs or other provisions of this Amendment shall have
the
respective meanings attributed to them therein. In addition, the following
terms
shall have the following meanings (terms defined in the singular having a
correlative meaning when used in the plural and vice versa):
“Effective
Date” shall mean March 10, 2006, if (i) this Amendment shall have been
executed and delivered by the Borrower, the Agent and the Banks and
(ii) the Borrower shall have performed its obligations under Section 6
hereof.
2. US
Bank Indebtedness.
Section 7.2(d) of the Credit Agreement is hereby deleted and intentionally
left blank.
3. Indebtedness.
Section 2
of the
Fifth Amendment and Waiver to Credit Agreement provided for the amendment of
Section 7.5(a)
of the
Credit Agreement. Said Section 2
mistakenly stated that it amended Section 7.5
of the
Credit Agreement in its entirety, rather than amending only Section 7.5(a).
The
parties acknowledge that only said Section 7.5(a)
was so
amended and the other subsections of Section 7.5
remained
in full force and effect.
4. Revolving
Credit Commitment Termination Date.
The
definition of “Revolving Credit Commitment Termination Date” in Section
9.1
of the
Credit Agreement is hereby amended to state in its entirety as
follows
“Revolving
Credit Commitment Termination
Date”
shall mean April 30, 2007, as such date may be extended pursuant to Section
1.10.
5. Schedule
1.
Schedule 1 of the Credit Agreement is hereby amended to state as set forth
as
Schedule 1 hereto.
6. Additional
Bank.
Xxxxx
Fargo Bank, N.A. is hereby added to the Credit Agreement as a Bank and shall
be
bound by the terms of the Credit Agreement as a Bank.
7. Conditions
to Effective Date.
The
occurrence of the Effective Date shall be subject to the delivery of the
following documents satisfactory to the Agent:
(a) This
Amendment.
(b) A
Guaranty from each Guarantor in substantially the form attached as Exhibit
A
hereto.
(c) A
Note
payable to Xxxxx Fargo Bank, N.A.
(d) The
certificate of incorporation (certified by the Secretary of State of Delaware
dated no earlier than 30 days prior to this Agreement) and by-laws of the
Borrower and all corporate action taken by the Borrower authorizing this
Amendment (including the resolutions of the Board of Directors of the Borrower
authorizing the transactions contemplated hereby), in each case, certified
by
the secretary or assistant secretary of the Borrower.
(e) A
certificate of the secretary or assistant secretary of the Borrower naming
and
setting forth the specimen signature of each of the officers of the Borrower
(i)
who is authorized to sign on its behalf this Amendment and (ii) who is (A)
an
Authorized Officer or (B) who will, until replaced by another officer or
officers duly authorized for that purpose, act as its representative for the
purposes of signing documents and giving notices and other communications (other
than notices required to be given by an Authorized Officer) in connection with
this Agreement and the transactions contemplated hereby.
(f) A
certificate of a senior officer of the Borrower dated the date of this Amendment
to the effect that on and as of such date: (i) no Default shall have occurred
and be continuing; and (ii) the representations and warranties made by the
Borrower in Section
6
of the
Credit Agreement and Section
7
hereof
are true and correct with the same force and effect as if made on and as of
such
date.
(g) An
opinion of internal counsel of the Borrower, substantially in the form of
Exhibit B
hereto.
(h) A
good
standing certificate from (i) the Borrower’s Federal Reserve Bank, and (ii) the
Secretary of State of the Borrower’s state of incorporation shall have been
delivered (in each of the foregoing cases, dated no earlier than 30 days prior
to this Agreement).
(i) The
articles of incorporation (also certified by the Secretary of State of each
Guarantor’s state of organization dated no earlier than 30 days prior to this
Agreement) and by-laws of each Guarantor and all corporate action taken by
each
Guarantor authorizing its Guaranty Agreement and the performance of its
obligations thereunder (including the resolutions of the Board of Directors
of
such Guarantor authorizing the transactions contemplated by its respective
Guaranty Agreement), in each case, certified by the secretary or assistant
secretary of such Guarantor.
(j) A
certificate of the secretary or assistant secretary of each Guarantor naming
and
setting forth the specimen signature of each of the officers of such Guarantor
who is authorized to sign its Guaranty Agreement on its behalf (the Agent and
each Bank may conclusively rely on such certificate until formally advised
by a
like certificate of any changes therein).
(k) A
good
standing certificate from the Secretary of State of each Guarantor’s state of
incorporation, dated no earlier than 30 days prior to this
Agreement.
(l) An
opinion of internal counsel to each Guarantor in the form of Exhibit
C
attached
hereto.
(m) Such
other documents as the Agent may reasonably request.
8. Effective
Date Notice.
Promptly following the occurrence of the Effective Date, the Agent shall give
notice to the parties of the occurrence of the Effective Date, which notice
shall be conclusive, and the parties may rely thereon; provided, that such
notice shall not waive or otherwise limit any right or remedy of the Agent
or
the Banks arising out of any failure of any condition precedent set forth in
Section 6
to be
satisfied.
9. Ratification.
The
parties agree that the Credit Agreement, as amended hereby, has not lapsed
or
terminated, is in full force and effect, and is and from and after the Effective
Date shall remain binding in accordance with their terms.
10. Representations
and Warranties.
The
Borrower represents and warrants to the Agent and the Banks that:
(a) No
Breach.
The
execution, delivery and performance of this Amendment will not conflict with
or
result in a breach of, or cause the creation of a Lien or require any consent
under, the articles of incorporation or bylaws of the Borrower, or any
applicable law or regulation, or any order, injunction or decree of any court
or
governmental authority or agency, or any agreement or instrument to which the
Borrower is a party or by which it or its property is bound.
(b) Power
and Action, Binding Effect.
The
Borrower has been duly incorporated and is validly existing as a corporation
under the laws of the State of Delaware and has all necessary power and
authority to execute, deliver and perform its obligations under this Amendment
and the Credit Agreement, as amended by this Amendment; the execution, delivery
and performance by the Borrower of this Amendment and the Credit Agreement,
as
amended by this Amendment, have been duly authorized by all necessary action
on
its part; and this Amendment and the Credit Agreement, as amended by this
Amendment, have been duly and validly executed and delivered by the Borrower
and
constitute legal, valid and binding obligations, enforceable in accordance
with
their respective terms.
(c) Approvals.
No
authorizations, approvals or consents of, and no filings or registrations with,
any governmental or regulatory authority or agency or any other person are
necessary for the execution or delivery by the Borrower of this Amendment,
or
the performance by the Borrower of the Credit Agreement, as amended by this
Amendment, or for the validity or enforceability thereof.
11. Successors
and Assigns.
This
Amendment shall be binding upon and inure to the benefit of the Borrower, the
Agent and the Banks and their respective successors and assigns, except that
the
Borrower may not transfer or assign any of its rights or interest
hereunder.
12. Governing
Law.
This
Amendment shall be governed by, and construed and interpreted in accordance
with, the internal laws of the State of Illinois.
13. Counterparts.
This
Amendment may be executed in any number of counterparts and each party hereto
may execute any one or more of such counterparts, all of which shall constitute
one and the same instrument. Delivery of an executed counterpart of a signature
page to this Amendment by telecopy shall be as effective as delivery of a
manually executed counterpart of this amendment.
14. Expenses.
Whether
or not the effective date shall occur, without limiting the obligations of
the
Borrower under the Credit Agreement, the Borrower agrees to pay, or to reimburse
on demand, all reasonable costs and expenses incurred by the Agent in connection
with the negotiation, preparation, execution, delivery, modification, amendment
or enforcement of this Amendment and the other agreements, documents and
instruments referred to herein, including the reasonable fees and expenses
of
Mayer, Brown, Xxxx & Maw LLP, special counsel to the Agent, and any other
counsel engaged by the Agent.
[Signature
Page Follows]
IN
WITNESS WHEREOF, this Amendment has been executed as of the date first above
written.
HEARTLAND
FINANCIAL USA, INC.
By:
/s/
Xxxx X. Xxxxxxx
Name:
Xxxx X. Xxxxxxx
Title:
EVP, CFO, COO
THE
NORTHERN TRUST COMPANY,
As
Agent
By:
/s/
Xxxx XxXxxxxxx
Name:
Xxxx XxXxxxxxx
Title:
Vice President
BANKS:
THE
NORTHERN TRUST COMPANY
By:
/s/
Xxxx XxXxxxxxx
Name:
Xxxx XxXxxxxxx
Title:
Vice President
XXXXXX
X.X. (successor
by merger with Xxxxxx Trust
and
Savings Bank)
By:
/s/
Xxxxxx X. Xxxxxx
Name:
Xxxxxx X. Xxxxxx
Title:
Vice President
XXXXX
FARGO BANK, N.A.
By:
/s/
Leighton Kor
Name:
Leighton Kor
Title:
Vice President
U.S.
BANK NATIONAL ASSOCIATION
By:
/s/
Xxxx X. Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Correspondent Officer
Schedule
1
INFORMATION
CONCERNING BANKS
|
Name
of Bank
|
Commitment
|
Applicable
Lending
Offices
|
|
The
Northern Trust Company
|
$25,000,000
|
For
all Loans:
00
Xxxxx XxXxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
|
|
Xxxxxx
X.X.
|
$20,000,000
|
For
all Loans:
000
Xxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
|
|
Xxxxx
Fargo Bank, N.A.
|
$20,000,000
|
For
all Loans:
|
|
U.S.
Bank National Association
|
$10,000,000
|
For
all Loans:
000xx
Xxxxxx
Xxxxx
Xxxxxx, Xxxx 00000
|
|
Total
Commitments
|
$75,000,000
|
EXHIBIT
A
GUARANTY
1. Guaranty
of Payment.
For
value received, and in consideration of any loan or other financial
accommodation heretofore or hereafter at any time made or granted to Heartland
Financial USA, Inc., a Delaware corporation (hereinafter called the “Debtor”) by
any Bank and the Agent under that certain Credit Agreement dated as of January
31, 2004 among the Debtor, The Northern Trust Company, as Agent, and the Banks
party thereto (as amended, restated, modified or supplemented from time to
time
the “Credit Agreement”; capitalized terms not otherwise defined herein have the
same meaning herein as in the Credit Agreement; the Agent and the Banks,
together with their successors and assigns, are herein collectively referred
to
as the “Banks”), the undersigned hereby unconditionally guarantees the full and
prompt payment when due, whether by acceleration or otherwise, and at all times
thereafter, of all obligations of the Debtor to the Banks under the Credit
Agreement and the Notes, howsoever created, arising or evidenced, whether direct
or indirect, absolute or contingent, or now or hereafter existing, or due or
to
become due (all such obligations, together with any extensions or renewals
thereof, being hereinafter collectively called the “Liabilities”), and the
undersigned further agrees to pay all expenses (including attorneys’ and legal
assistants’ fees (which attorneys and legal assistants may be employees of any
Bank) and legal expenses) paid or incurred by the Banks in endeavoring to
collect the Liabilities, or any part thereof, and in enforcing this guaranty.
The right of recovery against the undersigned under this guaranty is, however,
limited to the amount of SEVENTY-FIVE MILLION DOLLARS ($75,000,000) plus (a)
interest and fees on such amount and (b) all expenses of enforcing this
guaranty. Notwithstanding anything herein to the contrary, it is the desire
and
intent of the undersigned and the Banks that this guaranty shall be enforced
against the undersigned to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement is sought.
If,
however, and to the extent that, the obligations of the undersigned under this
guaranty shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable state or federal
law
relating to fraudulent conveyances or transfers), then the amount of the
Liabilities of such undersigned shall be deemed to be reduced and such
undersigned shall pay the maximum amount of the Liabilities which would be
permissible under applicable law.
2. Acceleration
of the Time of Payment of Amount Payable Under Guaranty.
The
undersigned agrees that, in the event of the dissolution or insolvency of the
Debtor or the undersigned, or the inability of the Debtor or the undersigned
to
pay debts as they mature, or an assignment by the Debtor or the undersigned
for
the benefit of creditors, or the institution of any proceeding by or against
the
Debtor or the undersigned alleging that the Debtor or the undersigned is
insolvent or unable to pay debts as they mature, and if such event shall occur
at a time when any of the Liabilities may not then be due and payable, the
undersigned will pay to the Agent, for the account of the Banks, forthwith
the
full amount which would be payable hereunder by such undersigned if all of
the
Liabilities were then due and payable.
3. Credit
Agreement.
The
undersigned agrees to be bound by all of the terms and provisions in the Credit
Agreement as they are applicable to the undersigned as a Subsidiary of the
Debtor.
4. Continuing
Guaranty.
This
guaranty shall in all respects be a continuing, absolute and unconditional
guaranty, and shall remain in full force and effect (notwithstanding, without
limitation, the dissolution of the undersigned or that at any time or from
time
to time all of the Liabilities may have been paid in full) until all the
Liabilities have been paid in full and all Commitments of the Banks to extend
credit to the Debtor have expired or terminated.
5. Rescission
or Return of Payment on Liabilities.
The
undersigned further agrees that, if at any time all or any part of any payment
theretofore applied by the Agent, for the account of the Banks, to any of the
Liabilities is or must be rescinded or returned by the Agent or any Bank for
any
reason whatsoever (including, without limitation, the insolvency, bankruptcy
or
reorganization of the Debtor), such Liabilities shall, for the purposes of
this
guaranty, to the extent that such payment is or must be rescinded or returned,
be deemed to have continued in existence, notwithstanding such application
by
the Agent or such Bank, and this guaranty shall continue to be effective or
be
reinstated, as the case may be, as to such Liabilities, all as though such
application by the Agent and such Bank had not been made.
6. Bank
Permitted to Take Certain Actions.
The
Banks may, from time to time (but shall not be obligated to), whether before
or
after any discontinuance of this guaranty, at their sole discretion and without
notice to the undersigned, take any or all of the following actions: (a) retain
or obtain a security interest in any property to secure any of the Liabilities
or any obligation hereunder; (b) retain or obtain the primary or secondary
obligation of any obligor or obligors, in addition to the undersigned, with
respect to any of the Liabilities; (c) extend or renew for one or more periods
(whether or not longer than the original period), alter or exchange any of
the
Liabilities, or release or compromise any obligation of the undersigned
hereunder or any obligation of any nature of any other obligor with respect
to
any of the Liabilities; (d) release their security interest in, or surrender,
release or permit any substitution or exchange for, all or any part of any
property securing any of the Liabilities or any obligation hereunder, or extend
or renew for one or more periods (whether or not longer than the original
period) or release, compromise, alter or exchange any obligations of any nature
of any obligor with respect to any such property; and (e) resort to the
undersigned for payment of any of the Liabilities, whether or not the Banks
(i)
shall have resorted to any property securing any of the Liabilities or any
obligation hereunder or (ii) shall have proceeded against any other obligor
primarily or secondarily obligated with respect to any of the Liabilities (all
of the actions referred to in preceding clauses (i) and (ii) being hereby waived
by the undersigned).
7. Application
of Payments.
Any
amounts received by the Banks from whatsoever source on account of the
Liabilities may be applied by the Banks toward the payment of such of the
Liabilities, and in such order of application, as the Agent may from time to
time direct.
8. Subrogation.
Until
such time as this guaranty shall have been discontinued as to the undersigned
and the Banks shall have received payment of the full amount of all of the
Liabilities and of all obligations of the undersigned hereunder, no payment
made
by or for the account of the undersigned pursuant to this guaranty shall entitle
the undersigned by subrogation or otherwise to any payment by the Debtor or
from
or out of any property of the Debtor, and the undersigned shall not exercise
any
right or remedy against the Debtor or any property of the Debtor by reason
of
any performance by such undersigned of this guaranty.
9. Waiver
of Notice and Other Matters.
The
undersigned waives: (a) notice of the acceptance by the Agent, on behalf of
the
Banks, of this guaranty; (b) notice of the existence or creation or non-payment
of all or any of the Liabilities; (c) presentment, demand, notice of dishonor,
protest, and all other notices whatsoever; and (d) all diligence in collection
or protection of or realization upon the Liabilities or any thereof, any
obligation hereunder, or any security for or guaranty of any of the
foregoing.
10. Additional
Liabilities of the Debtor Authorized.
The
creation or existence from time to time of Liabilities in excess of the amount
to which the right of recovery under this guaranty is limited is hereby
authorized, without notice to the undersigned, and shall in no way affect or
impair the rights of the Banks and the obligations of the undersigned under
this
guaranty.
11. Assignment
of Liabilities.
Any
Bank may, from time to time, whether before or after any discontinuance of
this
guaranty, without notice to the undersigned, assign or transfer any or all
of
the Liabilities or any interest therein; and, notwithstanding any such
assignment or transfer or any subsequent assignment or transfer thereof, such
Liabilities shall be and remain Liabilities for the purposes of this guaranty,
and each and every immediate and successive assignee or transferee of any of
the
Liabilities or of any interest therein shall, to the extent of the interest
of
such assignee or transferee in the Liabilities, be entitled to the benefits
of
this guaranty.
12. Information
Concerning Debtor; No Reliance on Representations by Banks.
The
undersigned hereby warrants to the Banks that such undersigned now has and
will
continue to have independent means of obtaining information concerning the
affairs, financial condition and business of the Debtor. The Banks shall not
have any duty or responsibility to provide the undersigned with any credit
or
other information concerning the affairs, financial condition or business of
the
Debtor which may come into any of the Bank’s possession. The undersigned has
executed and delivered this guaranty without reliance upon any representation
by
any Bank with respect to (a) the due execution, validity, effectiveness or
enforceability of any instrument, document or agreement evidencing or relating
to any of the Liabilities or any loan or other financial accommodation made
or
granted to the Debtor; (b) the validity, genuineness, enforceability, existence,
value or sufficiency or any property securing any of the Liabilities or the
creation, perfection or priority of any lien or security interest in such
property; or (c) the existence, number, financial condition or creditworthiness
of other guarantors or sureties with respect to any of the
Liabilities.
13. Waiver
and Modifications.
No
delay on the part of any Bank in the exercise of any right or remedy shall
operate as a waiver thereof, and no single or partial exercise by any Bank
of
any right or remedy shall preclude other or further exercise thereof or the
exercise of any right or remedy; nor shall any modification or waiver of any
of
the provisions of this guaranty be binding upon the Agent except as expressly
set forth in a writing duly signed and delivered by the Agent, on behalf of
the
Banks.
14. Obligations
Under Guaranty.
No
action of the Banks permitted hereunder shall in any way affect or impair the
rights of the Banks and the obligations of the undersigned under this guaranty.
For the purposes of this guaranty, Liabilities shall include all obligations
of
the Debtor to the Banks, notwithstanding any right or power of the Debtor or
anyone else to assert any claim or defense as to the invalidity or
unenforceability of any such obligation, and no such claim or defense shall
affect or impair the obligations of the undersigned hereunder. The obligations
of the undersigned under this guaranty shall be absolute and unconditional
irrespective of any circumstance whatsoever which might constitute a legal
or
equitable discharge or defense of the undersigned. The undersigned acknowledges
that there are no conditions to the effectiveness of this guaranty.
15. Successors.
This
guaranty shall be binding upon the undersigned, and upon the successors and
assigns of the undersigned.
16. Law.
THIS
GUARANTY HAS BEEN DELIVERED AT CHICAGO, ILLINOIS, AND SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE INTERNAL LAWS OF THE STATE OF
ILLINOIS.
17. Severability.
Wherever possible, each provision of this guaranty shall be interpreted in
such
manner as to be effective and valid under applicable law, but if any provision
of this guaranty shall be prohibited by or invalid under such law, such
provision shall be ineffective to the extent of such prohibition or invalidity,
without invalidating the remainder of such provision or the remaining provisions
of this guaranty.
18. Captions.
Section
captions used in this guaranty are for convenience only, and shall not affect
the construction of this guaranty.
19. Waiver
of Jury Trial.
THE
UNDERSIGNED WAIVES, AND, BY ACCEPTING THIS GUARANTY, THE AGENT, ON BEHALF OF
THE
BANKS, SHALL BE DEEMED TO WAIVE, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR
PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS (A) UNDER THIS GUARANTY OR UNDER
ANY
AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE
FUTURE BE DELIVERED IN CONNECTION HEREWITH OR (B) ARISING FROM ANY BANKING
RELATIONSHIP EXISTING IN CONNECTION WITH THIS GUARANTY, AND THE UNDERSIGNED
AGREES, AND, BY ACCEPTING THIS GUARANTY, THE AGENT, ON BEHALF OF THE BANKS,
SHALL BE DEEMED TO AGREE, THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED
BEFORE A COURT AND NOT BEFORE A JURY.
20. Submission
to Jurisdiction.
The
undersigned hereby irrevocably agrees that, subject to the Agent’s sole and
absolute election, all suits, actions or other proceedings with respect to,
arising out of or in connection with this guaranty or any document or instrument
executed in connection herewith shall be subject to litigation in courts having
situs within or jurisdiction over Xxxx County, Illinois. The undersigned hereby
consents and submits to the jurisdiction of any local, state or federal court
located in or having jurisdiction over such country, and hereby irrevocably
waives any right it may have to request or demand trial by jury, to transfer
or
change the venue of any suit, action or other proceeding brought by the Agent
in
accordance with this paragraph, or to claim that any such proceeding has been
brought in an inconvenient forum.
21. Substitution.
This
guaranty is delivered in substitution for a guaranty of the undersigned dated
January 31, 2004 and shall continue to evidence the indebtedness
thereunder.
SIGNED
AND DELIVERED AS OF THIS 10th
day of
March, 2006.
ULTEA
Inc.
By:
/s/
Xxxxxxx X. Xxxxxxxx
Its:
Vice
Chairman of the Board
Address
for Notices:
0000
Xxxxxxx Xxx.
Xxxxxxx,
XX 00000-0000
EXHIBIT
B
FORM
OF
OPINION OF COUNSEL OF BORROWER
March 10,
2006
The
Northern Trust Company, as Agent
The
Banks
(as defined in the Credit Agreement
referred
to below), and their respective
successors
and assigns
00
Xxxxx
XxXxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Gentlemen/Ladies:
I
am
counsel for Heartland Financial USA, Inc. (the “Company”),
and
have represented the Company in connection with its execution and delivery
of a
Seventh Amendment (the “Amendment”)
dated
March 10, 2006 to a Credit Agreement dated as of January 31, 2004 (as
heretofore amended, the “Credit
Agreement”)
among
the Company, the Banks party thereto and The Northern Trust Company, as Agent,
and providing for Loans in an aggregate principal amount not exceeding
$75,000,000 at any one time outstanding. All capitalized terms used in this
opinion and not otherwise defined herein shall have the meanings attributed
to
them in the Agreement.
In
so
acting, I, as counsel for the Company, have made such factual inquiries, and
I
have examined or caused to be examined such questions of law, as I have
considered necessary or appropriate for the purposes of this opinion and, upon
the basis of such inquiries and examination, advise you that, in my
opinion:
1. The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has the necessary corporate
power to execute and deliver the Amendment and perform the Credit Agreement,
as
so amended, and to borrow under the Credit Agreement, as so amended. The Company
is duly qualified to transact business in each jurisdiction where such
qualification is necessary in view of the property owned or business conducted
by the Company and where the failure to so qualify would have a material adverse
effect on the Company. The Company is a bank holding company duly registered
with the Board of Governors of the Federal Reserve System under the Bank Holding
Company Act of 1956, as amended.
2. The
execution and delivery of the Amendment and the performance by the Company
of
the Credit Agreement, as so amended, and the borrowings thereunder have been
duly authorized by all necessary corporate action, and do not and will not
violate any provision of law or regulation, writ, order or judgment, or any
provision of the Company’s articles of incorporation or by-laws and do not and
will not result in the breach of, or constitute a default or require any consent
under, or result in the creation of any Lien upon any of its properties,
revenues or assets pursuant to, any indenture or other agreement or instrument
to which the Company or any Subsidiary is a party or by which the Company or
any
Subsidiary or its properties may be bound.
3. The
Amendment has been duly executed and delivered on behalf of the Company and
the
Credit Agreement, as so amended, constitutes the legal, valid and binding
obligation of the Company which is enforceable in accordance with its terms,
except as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general applicability
affecting the enforcement of creditors’ rights and (b) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
4. No
authorizations, consents, approvals, licenses, filings or registrations from
or
with any governmental or regulatory authority or agency are required in
connection with the execution and delivery of the Amendment and the performance
by the Company of the Credit Agreement, as so amended.
5. There
are
no legal or arbitral proceedings, and no proceedings by or before any
governmental or regulatory authority or agency, pending or threatened against
or
affecting the Company or any of its Subsidiaries, or any properties or rights
of
the Company or any of its Subsidiaries, which, if adversely determined, would
have a material adverse effect on the consolidated financial condition,
operations, business or prospects taken as a whole of the Company and its
Subsidiaries.
6. The
Company is in compliance in all material respects with all rules and regulations
of the Bank Holding Company Act, as amended, and with all existing regulations
of the Board of Governors of the Federal Reserve System relating to bank holding
companies.
7. The
Company is not an “investment company” or a company “controlled” by any
“investment company,” within the meaning of the Investment Company Act of 1940,
as amended.
8. The
Company is not under investigation by, or operating under any restrictions
(applicable specifically to the Company) imposed by, any regulatory
authority.
The
Opinions set forth herein are intended solely for the benefit of the addressees
hereof in connection with the transactions contemplated herein and assignees
and
participants under the Credit Agreement and shall not be relied upon by any
other person or for any other purpose without our prior written
consent.
Very
truly yours,
EXHIBIT
C
FORM
OF
OPINION OF COUNSEL OF GUARANTOR
March 10,
2006
The
Northern Trust Company, as Agent
The
Banks
(as defined in the
Credit
Agreement referred to
below),
and their respective successors and assigns
00
Xxxxx
XxXxxxx Xxxxxx
Xxxxxxx,
Xxxxxxxx 00000
Gentlemen/Ladies:
I
have
acted as counsel to Citizens Finance Co. and ULTEA, Inc. (each a “Guarantor”)
and I
am delivering to you this opinion of counsel upon which you may relay, in
connection with Guaranties dated as of March 10, 2006 (the “Guaranties”)
of the
Guarantors in favor of The Northern Trust Company, as Agent covering the
liabilities of Heartland Financial USA, Inc. (the “Borrower”)
to the
Agent and the Banks under that certain Credit Agreement dated as of January
31,
2004 among the Borrower, The Northern Trust Company, as Agent and the Banks
party thereto, as amended.
In
so
acting, I, as counsel for the Guarantors, have made or caused to be made such
factual inquiries, and I have examined or caused to be examined such questions
of law, as I have considered necessary or appropriate for the purposes of this
opinion and, upon the basis of such inquiries and examinations, advise you
that,
in my opinion:
9. Each
Guarantor is a corporation duly organized, validly existing and in good standing
under the laws of the State of _____________________ and is duly qualified
(licensed) to transact business in all places where failure to do so might
have
a material adverse effect on the financial condition, prospects or business
of
such Guarantor.
10. Each
Guarantor has full corporate power and authority to execute and deliver its
Guaranty and perform its obligations thereunder.
11. The
execution and delivery of its Guaranty and the performance by each Guarantor
of
its obligations thereunder have been duly authorized by all necessary corporate
action, and each Guaranty has been duly executed and delivered on behalf of
the
applicable Guarantor and constitutes the valid and binding obligation of such
Guarantor, enforceable in accordance with its terms, except as enforceability
may be limited by bankruptcy, insolvency or other similar laws of general
application affecting the enforcement of creditors’ rights or by general
principles of equity limiting the availability of equitable
remedies.
12. There
is
no provision in either Guarantor’s articles of incorporation or by-laws, nor any
provision in any indenture, mortgage, contract or agreement to which said
Guarantor is a party or by which it or its properties may be bound, nor any
law,
statute, rule or regulation, or any writ, order or decision of any court or
governmental instrumentality binding on said Guarantor which would be
contravened by the execution and delivery of its Guaranty, nor do any of the
foregoing prohibit said Guarantor’s performance of any term, provision,
condition, covenant or any other obligation of said Guarantor contained
therein.
13. No
authorizations, consents, approvals, licenses, filings or registrations from
or
with any governmental or regulatory authority or agency are required in
connection with the execution, delivery and performance by either Guarantor
of
its Guaranty.
14. There
are
no legal or arbitral proceedings, and no proceedings by or before any
governmental or regulatory authority or agency, pending or threatened against
or
affecting either Guarantor or any properties or rights of said Guarantor which,
if adversely determined, would have a material adverse effect on the
consolidated financial condition, operations, business or prospects of said
Guarantor.
The
opinions set forth herein are intended solely for the benefit of the addressees
hereof in connection with the transactions contemplated herein and assignees
and
participants under the Credit Agreement and shall not be relied upon by any
other person or for any other purpose without our prior written
consent.
Very
truly yours,
