THIRD AMENDMENT AND WAIVER TO CREDIT AGREEMENT
THIRD
AMENDMENT AND WAIVER TO CREDIT
AGREEMENT
THIS
THIRD
AMENDMENT AND WAIVER TO CREDIT AGREEMENT (this "Amendment")
dated as
of January 30, 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
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 hereto amended, the "Credit
Agreement");
and
WHEREAS,
the
Borrower, the Agent and the Banks wish to extend the maturity of 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 January 30, 2005, if (1) 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
4 hereof.
2. Amendment
to Section 9 of the Credit Agreement.
The
definition of "Revolving Credit Commitment Termination Date" is hereby amended
by
the
deletion
of the date "January 30, 2005" and the substitution of the date "March 1, 2005"
thereof.
3. Waiver.
The
Banks hereby waives any right to take action as a result of any breach of
Section
7.5(a)
of
the Credit Agreement arising from the incurrence of Indebtedness under
the
Agreement to Organize and Stockholder Agreement dated February 1, 2003 and
the
Supplemental Initial Investor Agreement dated February 1, 2003.. This waiver
shall he limited
to
its
terms
and
shall not constitute a waiver of any other rights the Agent or the Banks may
have from time to time.
4.. 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 Banks shall have
executed
and delivered this Amendment.
(b) 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 Amendmént 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.
5. 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
4
to be
satisfied.
6. 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.
7. 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.
8. 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.
9. Governing
Law.
This Amendment shall be governed by, and construed and interpreted
in accordance with, the internal laws of the State of
Illinois.
10. 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.
11. 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/
Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxx
Title:
Vice President
BANKS:
THE
NORTHERN TRUST COMPANY
By:
/s/
Xxxxxx X. Xxxxxxxxx
Name:
Xxxxxx X. Xxxxxxxxx
Title:
Vice President
XXXXXX
TRUST
AND SAVINGS BANK
By:
/s/
Xxxxxxx X. Xxxxxx
Name:
Xxxxxxx X. Xxxxxx
Title:
Vice President
U.S.
BANK NATIONAL ASSOCIATION
By:
/s/
Xxx Xxxxxx
Name:
Xxx
Xxxxxx
Title:
Assistant Vice President
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
