FIRST AMENDMENT TO CREDIT AGREEMENT
FIRST
AMENDMENT TO CREDIT AGREEMENT
THIS
FIRST
AMENDMENT TO CREDIT AGREEMENT (this "Amendment")
dated as
of March 9, 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 (the "Credit
Agreement");
and
WHEREAS,
the
Borrower, the Agent and the Banks wish to amend the Credit Agreement
to allow
for an increase in the permitted Indebtedness in connection with an offering
of
Trust Preferred Securities by one of the Borrower's Subsidiaries (which is
a
Trust Issuer) and the incurrence of the Trust Indebtedness and Trust Guarantee
by the Borrower relating to such Trust Preferred Securities, all as provided
herein;
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 March 9, 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 deleting the
dollar amount "$65,000,000" appearing in clause
(vi)
thereof
and inserting in its place the dollar amount "$88,000,000".
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 March 19, 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/
Xxxxx X. Xxxx
Name:
Xxxxx X. Xxxx
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