Fourth Amendment to Second Amended and Restated Loan and Subordinated Debenture Purchase Agreement
Fourth
Amendment
to
Second Amended and Restated
This
Fourth
Amendment To the Second Amended and Restated Loan And Subordinated Debenture
Purchase Agreement (this “Amendment”), dated December 10, 2009, is
between JPMorgan Chase Bank, N.A. (“Lender), and German American Bancorp, Inc.,
an Indiana Corporation (“Borrower”).
Recitals:
1.
The parties have entered into that certain Second Amended and Restated Loan and
Subordinated Debenture Purchase Agreement, dated as of December 29, 2006, as
amended by the First Amendment, dated September 28, 2007, Second Amendment,
dated September 30, 2008, and Third Amendment, dated March 20, 2009 (as amended,
the “Prior Amended Loan Agreement”).
2.
The parties intend to further amend the Prior Amended
Loan Agreement in accordance with the terms and subject to the conditions set
forth in this Amendment. As amended and modified by this Amendment, the Prior
Amended Loan Agreement is referred to as the "Current Amended Loan
Agreement."
3.
Capitalized terms used but not otherwise defined in this
Amendment shall have the meanings given in the Prior Amended Loan
Agreement.
Agreement:
Now,
Therefore, in consideration of the mutual representations, warranties,
covenants, and agreements, and for other good and valuable consideration, the
receipt and sufficiency of which are acknowledged, the parties agree as
follows:
1. Amendments.
a. Definitions. Section
1.1 (Definitions) shall be amended by adding the following defined
terms:
i. ““Adjusted
One Month LIBOR Rate” means, regarding a CB Floating Rate Tranche for any day,
the sum of (i) 2.50% per annum plus (ii) the quotient of (a) the interest rate
determined by the Lender by reference to the Page to be the rate at
approximately 11:00 a.m. London time, on such date or, if such date is not a
Business Day, on the immediately preceding Business Day for dollar deposits with
a maturity equal to one (1) month, divided by (b) one minus the Reserve
Percentage (expressed as a decimal) applicable to dollar deposits in the London
interbank market with a maturity equal to one (1) month.”
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ii. “"CB
Floating Rate" means the Base Rate; provided that the CB Floating Rate shall, on
any day, not be less than the Adjusted One Month LIBOR Rate. The CB
Floating Rate is a variable rate and any change in the CB Floating Rate due to
any change in the Base Rate or the Adjusted One Month LIBOR Rate is effective
from and including the effective date of such change in the Base Rate or the
Adjusted One Month LIBOR Rate, respectively.”
iii. ““CB
Floating Rate Tranche” means a Borrowing Tranche as to which the CB Floating
Rate is applicable.”
b. Definitions
– “Revolving Loan Maturity Date”. The “Revolving Loan Maturity Date”
shall be amended to mean September 30, 2010.
c. Section
2.1.2 (The Revolving Loan) shall be amended as follows:
i. Replacing
the words “1.65% (165 basis points)” with the words “3.00% (300 basis
points)”.
ii.
Adding a
subsection (c) to the second sentence of the current Section 2.1.2 (Revolving
Loan), as follows: “or (c) a CB Floating Rate Tranche and shall bear interest at
a rate equal to .75% (75 basis points) plus the CB Floating
Rate.”
d. Section
5.7 (Capital Contribution). There shall be added the following
Section 5.7:
“Section
5.7 Capital
Contributions. The Borrower shall not use the proceeds of the
Revolving Loan to make any form of capital injection (as determined by the
Lender in its sole discretion) in any Bank Subsidiary or Subsidiary, including
without limitation, making any contribution to any Bank Subsidiary's or
Subsidiary’s capital, purchasing any Bank Subsidiary's or Subsidiary’s capital
stock, or making any subordinated loan to any Bank Subsidiary or
Subsidiary.”
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e. Section
7.8 (Notices) shall be amended by replacing the notices provision to the Lender
with the following:
“JPMorgan Chase Bank, N.A.
10 X. Xxxxxxxx, 36th floor
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X.
Xxxxxxxx
Telephone number: (000)
000-0000
Facsimile number: (000)
000-0000
E-mail address:
xxxx.x.xxxxxxxx@xxxxx.xxx”.
2. Representations
and Warranties.
The
Borrower represents and warrants to the Lender as follows:
a. No
Event of Default has occurred and is continuing (or would result from the
amendments contemplated by this Amendment).
b.
The execution, delivery and performance by the Borrower of this
Amendment have been duly authorized by all necessary corporate and other action
and do not and will not require any registration with, consent or approval of,
or notice to or action by any Person (including any Governmental Agency) to be
effective and enforceable.
c.
This Amendment and the other Loan Documents (as amended by this Amendment)
constitute the legal, valid and binding obligations of the Borrower, enforceable
against the Borrower in accordance with their respective terms.
d. All
representations and warranties of the Borrower in the Prior Amended Loan
Agreement are true and correct, except, for the purposes of this Amendment only,
all references in (i) Section 3.4.2 (Subsidiaries) to “September 30, 2006” shall
instead refer to last day of the calendar quarter preceding the date of this
Amendment, (ii) Section 3.4.3 (Financial Statements) and in Section 3.4.9
(Restriction) to “December 31, 2005” shall instead refer to the last day of the
year preceding the date of this Amendment, and “September 30, 2006” shall
instead refer to the last day of the calendar quarter preceding the date of this
Amendment, and (iii) Section 3.4.11 (Reserve for Possible Loan and Lease Losses)
references to “September 30, 2006” shall instead refer to the last day of the
calendar quarter preceding this Amendment.
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e. As
of the date of this Amendment, the Borrower's obligations under the Prior
Amended Loan Agreement and under the other Loan Documents are not subject to any
defense, counterclaim, set-off, right to recoupment, abatement or other
claim.
3. Conditions.
a. Notwithstanding
anything to the contrary contained elsewhere in the Current Amended Loan
Agreement, the obligation of the Lender to agree to the modifications
contemplated by this Amendment shall be subject to the performance by the
Borrower prior to the date on which this Amendment is executed of all of its
agreements to have been performed under the Prior Amended Loan Agreement. The
obligations to continue to make disbursements of proceeds under the Loans are,
and shall remain, subject to the conditions precedent (i) set forth in the Prior
Amended Loan Agreement, (ii) that the representations and warranties set forth
in this Amendment be true, accurate and complete as of the date of this
Amendment, and (iii) that Borrower shall have fully complied with all of its
promises and covenants set forth in this Amendment.
b. In
addition to other conditions set forth in this Amendment and the Prior Amended
Loan Agreement, including, without limitation, those applicable to the making of
Loans, the obligations of the Lender under the Current Amended Loan Agreement
shall be subject to the performance by the Borrower of all of its agreements to
have been performed under the Current Amended Loan Agreement and to the receipt
of the following, duly executed and dated the date of this Amendment,
and in form and substance satisfactory to the Lender and its counsel: a copy,
certified by the Secretary or Assistant Secretary of the Borrower, of its Board
of Directors' resolutions authorizing the execution, delivery, and performance
of this Amendment and the Current Amended Loan Agreement.
c. Borrower
shall pay or reimburse Lender for all of its reasonable out-of-pocket costs,
expenses and attorneys’ fees incurred in connection with this Amendment, and the
consummation of the transactions contemplated hereby, as agreed by the
parties.
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4. Additional
Terms.
a. Acknowledgment of Indebtedness under
the Prior Amended Loan Agreement. The Borrower acknowledges, confirms and
affirms it obligations and indebtedness to the Lender, as of the date of this
Amendment without defense, setoff, or counterclaim, in the aggregate principal
amounts provided for in the Loan Documents, including the Notes. The
execution, delivery and effectiveness of this Amendment shall not operate as a
waiver of any right, power or remedy of the Lender under the Prior Amended Loan
Agreement or the Loan Documents, nor constitute a waiver of any provision
continued in such documents, except as specifically set forth in this
Amendment.
b. The Current Amended Loan
Agreement. All references in the Loan Documents and the Prior Amended
Loan Agreement to the term "Agreement" shall be deemed to refer to the Current
Amended Loan Agreement.
c. Amendment and Prior Amended Loan
Agreement. This Amendment supplements and is by this Amendment made a
part of the Prior Amended Loan Agreement, and the Prior Amended Loan Agreement
and this Amendment from and after the date of this Amendment shall together
constitute the Current Amended Loan Agreement. Except as otherwise
set forth in this Amendment, the Prior Amended Loan Agreement shall remain in
full force and effect.
d. Counterparts. This Amendment
may be executed by facsimile and in one or more counterparts, each of which
shall be deemed an original and all of which taken together shall constitute one
and the same document.
e. Acknowledgments. The Borrower
acknowledges that (i) it has been advised by counsel of its choice regarding
this Amendment, the Loan Documents and the transactions contemplated by this
Amendment, and (ii) the obligations of the Lender hereunder shall be strictly
construed and shall be expressly subject to the Borrower's compliance in all
respects with the terms and conditions of the Current Amended Loan
Agreement.
[signature
page follows]
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In
Witness Whereof, the parties have executed this Amendment as of the date
first written above.
JPMorgan
Chase Bank, N.A.
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By:
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/s/ Xxxx X. Xxxxxxxx
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Xxxx
X. Xxxxxxxx
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Title:
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SVP
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By:
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/s/ Xxxxxxx X. Xxxx
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Xxxxxxx
X. Xxxx
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Title:
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Executive
Vice President and Chief Financial
Officer
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