FIFTH AMENDMENT AND WAIVER TO CREDIT AGREEMENT
FIFTH
AMENDMENT AND WAIVER TO CREDIT AGREEMENT
THIS
FIFTH
AMENDMENT TO CREDIT AGREEMENT (this "Amendment")
dated as
of July I8, 2005 is among HEARTLAND FINANCIAL USA, INC., a corporation formed
under
the
laws of the State of Delaware (the "Borrower"),
each of
the banks party hereto (individually, a "Bank" and collectively, the
"Banks")
and THE
NORTHERN TRUST OMPANY, 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 hereto 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 July 18, 2005, if (i) this Amendment shall have been
executed
and delivered by the Borrowers the Agent and the Banks and (ii) the Borrower
shall
have
performed its obligations under Section
5
hereof.
2. Indebtedness. !Section
7.5
of the
Credit Agreement is hereby amended to state in
its
entirety as follows:
"7,5
Indebtedness,
Liens And Taxes,
The
Borrower and each Subsidiary shall:
(a)
Indebtedness,
Not
incur, permit to remain outstanding, assume or in any way become committed
for
Indebtedness (specifically including but not limited to Indebtedness in respect
of money borrowed from financial institutions but excluding deposits), except:
(i) in the case of the Borrower, Indebtedness incurred hereunder, and in the
case of the Guarantors, under their respective Guaranty Agreement; (ii)
Indebtedness existing on the date of this Agreement and described on
Schedule
7.5(a)
hereof;
(iii) Indebtedness of any Subsidiary arising in the ordinary course of the
business of such Subsidiary; (iv) Indebtedness of any Subsidiary to the Borrower
or any other Subsidiary; .(v) in the case of ULTEA, the US Bank Indebtedness
outstanding on the date hereof in the principal amount of $11,418,871.69, less
the aggregate amount of all repayments thereunder after the date of this
Agreement; (vi). in. the case of CFC, Indebtedness under commercial paper issued
by CFC which, together with any other commercial paper identified on
Schedule
7.5(a),
hereto,
shall not exceed an aggregate principal amount of $20,000,000; (vii) in the
case
of the Borrower, Trust Indebtedness and Trust Guarantees, and in the ease of
any
Trust Issuer, Trust Preferred Securities, provided,
that the
aggregate of such Trust Indebtedness (and the related Trust Guarantees and
Trust
Preferred Securities) shall not exceed $88,000,000 at any time outstanding;
(viii) in the event any transfer or contribution of accounts receivable of
ULTEA
to a special purpose vehicle in accordance with Section
7.1(d)
is
deemed to constitute a secured financing, Indebtedness of ULTEA to such special
purpose vehicle, secured by the account receivables and related rights
transferred to such special purpose vehicle only (the "Factored
Receivables"), provided,
that
such Indebtedness shall not exceed an amount equal to $30,000,000 in
the
aggregate during the term of this Agreement; (ix) in the case of the Borrower,
Indebtedness to the.
City of
Dubuque, Iowa, in an amount not to exceed $300,000 to be used for the purpose
of
funding building improvements; (x) in the case of the Borrower, Indebtedness
in
an aggregate amount not in excess of $2,750,000 under the Agreement to Organize
and Stockholder Agreement dated February 1, 2003 and the Supplemental Initial
Investor Agreement dated February 1, 2003 and (xi) additional Indebtedness
not
to exceed $1,000,000 at any time outstanding."
3.. Investments
and Loans.
Section
7.6 of the Credit Agreement is hereby amended to state in its entirety as
follows:
"7.6
Investments
and Loans.
Neither
the Borrower nor any
Subsidiary
shall make any loan, advance, extension of credit or capital contribution to,
or
purchase or otherwise acquire for a consideration, evidences of Indebtedness,
capital stock or other securities of any Person, except that the Borrower and
any Subsidiary may:
(a) purchase
or otherwise acquire and own short-term money market
items
(specifically
including but not limited to preferred. stock mutual
funds);
(b) invest,
by way of purchase of securities or
capital
contributions, in the Subsidiary Banks or any other bank or banks, and upon
the
Borrower's purchase or other acquisition of fifty percent (50%) or more of
the
stock of any bank, such bank shall thereupon become a "Subsidiary Bank" for
all
purposes under this Agreement;
(c) invest,
by way of loan, advance, extension of credit (whether in the form of lease,
conditional sales agreement, or otherwise), purchase of securities, capital
contributions, or otherwise, in Subsidiaries other than banks or
Subsidiary
Banks, except that in no event shall the Borrower's aggregate equity investment
in CFC and ULTEA exceed 15% of its Tangible Net Worth;
(d) invest,
by way of purchase of securities or capital contributions, in other Persons
so
long as before and giving effect thereto no Default shall have occurred and
be
continuing and the investment is in compliance with the Bank Holding Company
Act
of 1956, as amended, and the existing regulations of the Board of Governors
of
the Federal Reserve System relating to bank holding companies;
(e) make
any
investment permitted by applicable governmental laws and
regulations;
(f) with
respect to DBT, issue a letter of credit for the benefit of the city of Dubuque
for the purposes permitted in Section
7.5(d)
hereof;
and
(g) in
the
case of any Trust Issuer, purchase any Trust Indebtedness and, in the case
of
the Borrower, purchase any common securities of any Trust Issuer and issue
any
Trust Guarantees (in each case, in accordance with the other applicable
provisions of this Agreement)..
Nothing
in this Section
7.6
shall
prohibit the Borrower or any Subsidiary Bank from making loans, advances, or
other extensions of credit in the ordinary course of banking upon substantially
the same terms as heretofore extended by them in such business or upon such
terms as may at the time be customary in the banking business."
4. Waiver,
The
Banks hereby waive any rights they may have to take action arising from any
breach by the Borrower, prior to
the
effectiveness of this Amendment, of its obligations under Sections
.7.5
and 7,6
of the Credit Agreement, so long as such breach shall not be continuing after
giving
effect
to
this Amendment. This. waiver shall be limited to its terms and shall not
constitute a waiver of any other. rights the Banks may have from time to
time.
5. Conditions
to Effective Date.
The
occurrence of the Effective Date shall be subject to the satisfaction of the
following conditions precedent:
(a) The
Borrower, the Agent and the Majority Banks shall have executed and delivered
this Amendment,
(b) After
giving effect to the waiver in Section
4
above,
no Default shall have occurred and be continuing under the Credit Agreement,
and
the representations and warranties of the Borrower in Section 6 of the Credit
Agreement and in Section
7
hereof
shall be true and correct on and as of the Effective Date and the Borrower
shall
have
provided to the Agent a certificate of a senior officer of the Borrower to
that
effect.
(c) Each
Guarantor shall acknowledge and consent to this Amendment.
for purposes of its Guaranty Agreement as evidenced by its signed
acknowledgment of this Amendment on the signature page hereof.
(d) The
Borrower shall have delivered to the. Agent, on behalf of
the
Banks, such other documents as the Agent may reasonably request.
6. 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
5
to be
satisfied.
7. Ratification.
The
parties agree that the Credit Agreement, as amended hereby, and the notes have
not lapsed or terminated, are in full force and effect, and are and from and
after the Effective. Date shall remain binding in accordance with their
terms.
8. 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, delivery or performance by the Borrower of this
Amendment or the Credit Agreement, as amended by this Amendment, or for the
validity or enforceability thereof.
9. 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.
10. Governing
Law. This
Amendment shall be governed by, and construed and interpreted
in accordance with, the internal laws of the State of
Illinois.
11. 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.
12. 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, the Credit Agreement 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
U.S.
BANK NATIONAL ASSOCIATION
By:
/s/
Xxxx X. Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Correspondent Officer
GUARANTOR
ACKNOWLEDGEMENT
Each
of
the undersigned Guarantors hereby acknowledges and consents to the Borrower’s
execution of this Amendment.
CITIZENS
FINANCE CO.
ULTEA,
INC.
By:
/s/
Xxxx X. Xxxxxxx By:
/s/
Xxxx X. Xxxxxxx
Title:
Treasurer
Title:
Treasurer
CERTIFICATE
The
undersigned as Executive Vice President, Chief Financial Officer and Chief
Operating Officer of Heartland Financial USA, Inc., hereby certifies as
follows:
1. No
Default, as defined in the Credit Agreement among Heartland Financial
USA,
Inc.
(the "Borrower"), certain banks and The Northern Trust Company as agent, as
amended ("Credit Agreement") has occurred and is continuing.
2. The
representations and warranties of the Borrower in Section 6 of the Credit
Agreement and in Section 7 of the Fourth Amendment and Waiver to Credit
Agreement dated as of March 1, 2005, are true and correct on and as of the
date
hereof.
IN
WITNESS WHEREOF, the undersigned has executed this Certificate as of March
1,
2005.
HEARTLAND
FINANCIAL USA, INC.
By:
/s/
Xxxx X. Xxxxxxx
Name:
Xxxx X. Xxxxxxx
Title:
EVP, CFO, COO
