FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
FOURTH AMENDMENT TO AMENDED
AND RESTATED CREDIT AGREEMENT
THIS
FOURTH AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (this “Amendment”) dated as
of September 30, 2008 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 an Amended and Restated
Credit Agreement dated as of June 8, 2007 (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. Return on Average Assets –
Borrower. Section 7.4(e)
of the Credit Agreement is hereby amended to state in its entirety as
follows:
“(e) Return on Average Assets –
Borrower. The Borrower’s consolidated income shall be at least
0.55% of its average assets, calculated as at the last day of each fiscal
quarter for the four fiscal quarter period ending on that date.”
2. Section 7.4(h)
of the Credit Agreement is hereby amended to state in its entirety as
follows:
“(h) Loan Loss Reserves
Ratio. The Borrower and each Subsidiary Bank shall maintain at
all times on a consolidated basis a ratio of loan loss reserves to
non-performing loans (not including “other real estate owned”, any portion of
non-performing loans guaranteed by a governmental entity of the United States of
America (including the United States Department of Agriculture and the United
States Small Business Administration) and other repossessed assets) of not less
than eighty percent (80%) at any time.”
3. Capital
Structure. The first sentence of Section 7.7 of
the Credit Agreement is hereby amended to state in its entirety as
follows:
“Neither
the Borrower nor any Subsidiary shall purchase or redeem, or obligate itself to
purchase or redeem, any shares of its capital stock, of any class, issued and
outstanding from time to time, except purchases and redemptions (other than open
market purchases) of up to 100,000 shares in the aggregate after
September 30, 2008, so long as if at the time of such purchase or
redemption no Default has occurred and is continuing or would result
therefrom.”
4. Conditions to Effective
Date. The Amendment shall be effective as of the date hereof
and 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 6 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) The
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.
(e) The
Borrower shall have paid to the Agent for the pro rata benefit of the Lenders an
amendment fee equal to 0.03% of the Commitments.
5. Effectiveness
Notice. The Agent shall promptly give notice to the parties of
the effectiveness hereof, 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.
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 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 Xxxxx Xxxxx 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,
COO & CFO
THE
NORTHERN TRUST COMPANY,
as
Agent
By: /s/ Xxxx
XxXxxxxxx
Name:
Xxxx XxXxxxxxx
Title:
XX
XXXXX:
THE
NORTHERN TRUST COMPANY
By: /s/ Xxxx
XxXxxxxxx
Name:
Xxxx XxXxxxxxx
Title:
VP
U.S.
BANK NATIONAL ASSOCIATION
By: /s/ Xxxxx
XxxXxxx
Name:
Xxxxx XxxXxxx
Title:
Vice President
JPMORGAN
CHASE BANK, N.A.
By: /s/ Xxxxxxxx X.
Xxxxxxx
Name:
Xxxxxxxx X. Xxxxxxx
Title:
Senior Vice President
GUARANTOR
ACKNOWLEDGMENT
The
undersigned Guarantor hereby acknowledges and consents to the Borrower’s
execution of this Amendment and reaffirms its obligations under its Guaranty
Agreement.
CITIZENS
FINANCE CO.
By: /s/ Xxxx X.
Xxxxxxx
Title:
Treasurer
