SECOND AMENDMENT TO CREDIT AGREEMENT
SECOND
AMENDMENT TO CREDIT AGREEMENT
THIS
SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment")
dated
as
of
July 1, 2004 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 amended by that First Amendment to Credit Agreement
dated as of March 9, 2004 (as so amended, the "Credit
Agreement");
and
WHEREAS,
the Borrower, the Agent and the Banks wish to amend the Credit Agreement in
order to permit the Borrower to incur a $300,000 low interest loan from the
City
of Dubuque to fund certain building;
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 1, 2004, 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
3,
hereof.
2. Amendment
to Section 7.5(a) of the Credit Agreement. Section
7.5(a),
of the
Credit Agreement is hereby amended as of the Effective Date by the addition
of
the following new sub-section (viii) thereto:
(viii)
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,
3. Conditions
to Effective Date.
The
occurrence of the .Effective Date shall be subject to the satisfaction, on
and
as of the Effective Date, of the following conditions precedent:
(a) The
Borrower, the Agent and the Majority 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 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.
4. 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
3
to be
satisfied.
5. Termination.
If the
Effective
Date
shall not have occurred on or before August 31, 2004, the Agent on instruction
of the Majority Banks may terminate this Amendment by notice in writing to
the
Borrower at any time, before the occurrence of the Effective Date; provided,
that the Borrower's obligations under Section
11
shall
survive any such termination.
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 Xxxxxxx Xxxxxx &
Xxxxxxx 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
