First Amendment to Second Amended and Restated Loan and Subordinated Debenture Purchase Agreement
First
Amendment
to
Second Amended and Restated
This
First Amendment To the Second Amended and Restated Loan And Subordinated
Debenture Purchase Agreement (this
“Amendment”), dated September 28, 2007, is between JPMorgan Chase Bank, N.A.
(“Lender), and German American Bancorp, Inc., an Indiana Corporation
(“Borrower”).
Recitals:
1. The
parties hereto have entered into that certain Second Amended and Restated Loan
and Subordinated Debenture Purchase Agreement, dated as of December 29, 2006,
(the "2006 Loan Agreement").
2. The
parties intend to amend the 2006 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 2006 Loan Agreement is referred to as
the
"Amended Loan Agreement."
3.
Capitalized terms used but not otherwise defined in this Amendment shall have
the meanings give in the 2006 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.
The words “(the “Revolving Loan”)” shall be inserted at the end of Recital
2(b).
b. Definitions
- “Revolving Loan Maturity Date”. The “Revolving Loan Maturity Date” shall be
amended to mean September 30, 2008.
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c.
Capitalization Status. Section 4.2.1 (Capitalization Status) shall
be
deleted and replaced in its entirety with the following:
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"Borrower
shall at all times other than the Interim Period, and shall cause
each of
the Bank Subsidiaries at all times to, maintain a capital category
status
of "Well Capitalized," which means that at the end of each calendar
quarter, the Borrower and each of the Bank Subsidiaries shall (i)
have a
total risk-based capital ratio of ten percent (10.0%) or greater,
(ii)
have a Tier 1 risk-based capital ratio of six percent (6%) or greater,
(iii) have a leverage ratio of five percent (5.0%) or greater, and
(iv)
not be subject to any written agreement, order, capital directive
or
prompt corrective action directive issued by the applicable primary
federal Governmental Agency. In addition, the Borrower at the end
of each
calendar quarter during the Interim Period, shall (i) have a total
risk-based capital ratio of nine percent (9.0%) or greater, (ii)
a Tier 1
risk-based capital ratio of six percent (6.0%) or greater, (iii)
have a
Tier 1 leverage ratio of five percent (5.0%) or greater, and (iv)
not be
subject to any written agreement, order, capital directive or prompt
corrective action directive issued by the applicable primary federal
Governmental Agency. All applicable capital and leverage ratios for
the
Borrower shall be as determined in accordance with the Capital Adequacy
Guidelines for Bank Holding Companies: Risk-Based Measure and Tier
1
Leverage Measure as established by Federal Reserve System. The "Interim
Period" shall be defined as the period beginning on July 1, 2007
and
ending on December 31, 2008. The Interim Period shall include the
quarter
ending December 31, 2008."
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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.
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d. All
representations and warranties of the Borrower in the 2006 Loan Agreement are
true and correct, except, for the purposes of this Amendment only, all
references in (a) Section 3.4.2 (Subsidiaries) to “September 30, 2006” shall
instead refer to “June 30, 2007”, (b) Section 3.4.3 (Financial Statements) and
in Section 3.4.9 (Restriction) to “December 31, 2005” shall instead refer to
“December 31, 2006”, and “September 30, 2006” shall instead refer to “June 30,
2007”, (c) Section 3.4.10 (No Material Adverse Change) to “December 31, 2005”
shall instead refer to “December 31, 2006”, and (d) Section 3.4.11 (Reserve for
Possible Loan and Lease Losses) references to “September 30, 2006” shall instead
refer to “June 30, 2007”.
e. As
of the
date of this Amendment, the Borrower's obligations under the 2006 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 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 2006 Loan Agreement. The obligations to continue to make
disbursements of proceeds under the Loans are, and shall remain, subject to
the
conditions precedent (a) set forth in the 2006 Loan Agreement, (b) that the
representations and warranties set forth in this Amendment be true, accurate
and
complete as of the date of this Amendment, and (c) 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 2006 Loan
Agreement, including, without limitation, those applicable to the making of
Loans, the obligations of the Lender under the Amended Loan Agreement shall
be
subject to the performance by the Borrower of all of its agreements to have
been
performed under the 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
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 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 aggregate principal amount of the Revolving Loan evidenced by the
Revolving Note outstanding as of the date of this Amendment is two million
Dollars ($2,000,000). 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 2006 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
Amended Loan Agreement. All references in the Loan Documents and the 2006 Loan
Agreement to the term "Agreement" shall be deemed to refer to the Amended Loan
Agreement.
c. Amendment
and 2006 Loan Agreement. This Amendment supplements and is by this Amendment
made a part of the 2006 Loan Agreement, and the 2006 Loan Agreement and this
Amendment shall from and after the date of this Amendment shall together
constitute the Amended Loan Agreement. Except as otherwise set forth in this
Amendment, the 2006 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
with respect to 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 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:
/s/
Xxxx Xxxxxxxx
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Xxxx
Xxxxxxxx
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Title:
Senior
Vice President
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By:
/s/
Xxxxxxx X. Xxxx
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Xxxxxxx
X. Xxxx
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Title:
Senior
Vice President and Chief Financial
Officer
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