Fifth Amendment to Second Amended and Restated Loan and Subordinated Debenture Purchase Agreement
Fifth
Amendment
to
Second Amended and Restated
This
Fifth Amendment To the Second Amended and Restated Loan And Subordinated
Debenture Purchase Agreement (this “Amendment”), dated November 23, 2010,
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, 0000, Xxxxx Xxxxxxxxx, dated March 20, 2009, and Fourth
Amendment, dated December 10, 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.
Recitals. In paragraph 2, the word “$30,000,000” shall be replaced
with “$25,000,000”.
b. Definitions. Section
1 (Definitions) shall be amended as follows:
i. “Revolving
Loan Maturity Date”. The “Revolving Loan Maturity Date” shall be
amended to mean September 30, 2011.
ii. “Revolving
Loan Amount”. The “Revolving Loan Amount” shall be amended by
replacing “$10,000,000” with “$5,000,000”.
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iii. There
shall be added the following definitions:
A. “Cash
Flow” shall mean the sum of (a) dividend income, (b) interest income and (c)
management and service fee income.
B. “Fixed
Charges” means, for any period, without duplication, the sum of (a) all
scheduled payments of principal and interest regarding all indebtedness (as
defined in Section 5.1 (Indebtedness)) of Borrower, (b) all scheduled payments
related to securities commonly known as trust preferred securities of the
Borrower, and (c) scheduled payments of principal and interest during the
applicable period regarding to all capital lease obligations of
Borrower.
c. Section
2.1.1 (The Term Loan). Section 2.1.1 (The Term Loan) shall be amended as
follows: The third sentence, beginning with the words “Subject to Section 2.6”
shall be amended by replacing the language following the colon with the
following: “(a) a LIBO Rate Tranche and shall bear interest per annum at a rate
equal to 3.00% (300 basis points) plus the LIBO Rate; or (b) a CB Floating Rate
Tranche and shall bear interest at a equal to .75% (75 basis points) plus the CB
Floating Rate.”.
d. Section
2.1.2 (The Revolving Loan). Section 2.1.2 (The Revolving Loan) shall
be amended as follows: The third sentence, beginning with the words “Subject to
Section 2.6” shall be amended by replacing the language following the colon with
the following: “(a) a LIBO Rate Tranche and shall bear interest per annum at a
rate equal to 3.00% (300 basis points) plus the LIBO Rate; or (b) a CB Floating
Rate Tranche and shall bear interest at a equal to .75% (75 basis points) plus
the CB Floating Rate.”.
e. Section
4.2.3 (Fixed Charge Coverage Ratio). There shall be added the
following Section 4.2.3:
“4.2.3. Fixed Charge Coverage
Ratio. Borrower shall not permit the ratio of its Cash Flow to
Fixed Charges (parent company only, and not on a consolidated basis with its
subsidiaries) to be less than 1.0:1.0 for any 12-month period, which shall be
tested quarterly as of the last day of each quarter, beginning December 31,
2010.”.
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).
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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.
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.
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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.
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.
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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:
Senior Vice President
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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:
Executive Vice President and
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Chief
Financial Officer
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