EIGHTH AMENDMENT TO CREDIT AGREEMENT AND CONSENT
EIGHTH
AMENDMENT TO CREDIT AGREEMENT AND CONSENT
THIS EIGHTH AMENDMENT
TO CREDIT AGREEMENT AND CONSENT (this "Amendment") dated as of October
17, 2006 is among HEARTLAND FINANCIAL USA, INC., a Delaware corporation (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 heretofore 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. 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.
"Effective Date"
shall mean the date as of which the sale by the Borrower of the stock of ULTEA
shall have been completed.
2. Consent.
The Banks hereby consent to the sale by the Borrower of the capital stock of
ULTEA, notwithstanding any provisions of the Credit Agreement to the
contrary.
3. Release.
Effective upon the Effective Date, the Banks hereby release ULTEA from its
obligations under its Guaranty Agreement.
4. Amendments.
Effective upon the Effective Date, the Credit Agreement shall be amended as
follows:
(a) The
definition of
"Guarantor" in Section 9.1 of the Credit Agreement shall be amended to state
in
its entirety as follows:
"Guarantor'
shall
mean CFC."
(b) Sections
7.1(c) and
(d) of the Credit Agreement shall be deleted and intentionally left blank.
(c) Section
7.2(d) of the
Credit Agreement shall be deleted and intentionally left blank.
(d) Section
7.5(a)(v) and
(viii) of the Credit Agreement shall be deleted and intentionally left
blank.
(e) Section
7.5(b)(iv) of
the Credit Agreement shall be amended by the deletion of the phrase "and
ULTEA."
(f) Section
7.5(b)(vi) of
the Credit Agreement shall be deleted and intentionally left blank.
(g) Section
7.6(c) of the
Credit Agreement shall be amended to state in its entirety as follows:
"(c)
Invest, by way
of loan, advance, extension of credit (whether in the form of lease, conditional
sales agreement, or
otherwise), purchase of securities, capital contributions, or otherwise, in Subsidiaries other than banks or Subsidiary Banks, except
otherwise), purchase of securities, capital contributions, or otherwise, in Subsidiaries other than banks or Subsidiary Banks, except
that
in no
event shall the Borrower's aggregate equity investment in CFC exceed 10% of
its
Tangible Net Worth."
5. Conditions
to
Effectiveness. The occurrence of the Effective Date shall be subject
to the delivery of the following documents satisfactory to the
Agent:
(a) This
Amendment
executed by the Borrower and the Majority Banks.
(b) Consent
of the
Guarantor in substantially the form attached as Exhibit A hereto.
(c) The
certificate of
the secretary or an assistant secretary of Borrower as to all corporate action
taken by the Borrower authorizing this
Amendement (including the resolutions of the Board of Directors of the Borrower authorizing the transactions contemplated hereby).
Amendement (including the resolutions of the Board of Directors of the Borrower authorizing the transactions contemplated hereby).
(d) A
certificate of the
secretary or assistant secretary of the Borrower naming and setting forth the
specimen signature of each of the
officers
of the Borrower (i) who is authorized to sign on its behalf this Amendment
and
(ii) who is (A) an Authorized Officer or (B)
who
will,
until replaced by another officer or officers duly authorized for that purpose,
act as its representative for the purposes of
signing documents and giving notices and other communications (other than notices required to be given by an Authorized Officer) in
connection with this Agreement and the transactions contemplated hereby.
signing documents and giving notices and other communications (other than notices required to be given by an Authorized Officer) in
connection with this Agreement and the transactions contemplated hereby.
(e) Such
other documents as the
Agent may reasonably request.
6. 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
the
Amendement 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 or delivery by the
Borrower of this Amendment, or the performance by
the
Borrower of the Credit Agreement, as amended by this Amendment, or for the
validity or enforceability thereof.
7. 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.
8. Governing
Law. This Amendment shall be governed by, and construed and
interpreted in accordance wtih, the internal laws of the State of
Ililnois.
9. 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 Amendement by telecopy shall be as
effective as delivery of a manually executed counterpart of this
amendment.
10. 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 and the other agreements, documents
and instruments referred to herein, including the reasonable fees and expense
of
Mayer, Brown, Xxxx & Maw LLP, special counsel to the Agent, and any other
counsel engaged by the Agent.
IN
WITNESS WHEREOF, this Amendment has been executed as of the date first above
written.
HEARTLAND
FINANCIAL USA, INC
/s/
Xxxx X. Xxxxxxx
EVP,
COO & CFO
THE
NORTHERN TRUST COMPANY
/s/
Xxxx XxXxxxxxx
Vice
President
XXXXXX
X.X.
/s/
Xxxxxx X. Xxxxxx
Vice
President
XXXXX
FARGO BANK, N.A.
/s/
Leighton D. Kor
Vice
President
U.S.
BANK NATIONAL ASSOCIATION
/s/
Xxxx X. Xxxxx
Assistant
Vice President