AMENDED AND RESTATED CREDIT AGREEMENT among HEARTLAND FINANCIAL USA, INC., as Borrower, THE NORTHERN TRUST COMPANY, as Agent, and the BANKS named herein Dated as of June 8, 2007
$60,000,000
AMENDED
AND RESTATED CREDIT AGREEMENT
among
HEARTLAND
FINANCIAL USA, INC.,
as
Borrower,
THE
NORTHERN TRUST COMPANY,
as
Agent,
and
the
BANKS named herein
Dated
as
of June 8, 2007
AMENDED
AND RESTATED CREDIT AGREEMENT
THIS
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 8, 2007 (this
“Agreement”), is entered into by and among HEARTLAND FINANCIAL USA, INC.,
a corporation formed under the laws of the State of Delaware (the
“Borrower”), each of the banks named on the signature pages hereto under
the caption “Banks” (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”). All capitalized terms used herein without definition
shall have the meanings set forth in Section 9.1 of this
Agreement.
WHEREAS,
the Borrower, each of the Banks and the Agent are parties to a Credit Agreement
dated as of January 31, 2004 (as amended, the “Existing Credit
Agreement”);
WHEREAS,
the Borrower has requested certain amendments to the Existing Credit Agreement;
and
WHEREAS,
the Lenders and the Agent are willing to agree to such amendments, as
hereinafter set forth;
NOW,
THEREFORE, in consideration of the mutual agreements herein contained, the
parties hereto agree that the Existing Credit Agreement is hereby amended and
restated to state in its entirety as follows:
SECTION
1. THE
LOANS
1.1. Revolving
Credit Loans.
(a) Each
Bank
severally agrees, on the terms and subject to the conditions of this Agreement
(including without limitation Section 1.1(c)), to make loans to the
Borrower during the period from and including the date hereof to and including
the Revolving Credit Commitment Termination Date in an aggregate principal
amount at any one time outstanding up to but not exceeding the amount of such
Bank’s Commitment as then in effect. Subject to the terms of this
Agreement, during such period the Borrower may borrow, repay, and reborrow
the
amount of the Commitments from time to time in effect by means of Prime Rate
Loans, Eurodollar Loans and Fed Funds Rate Loans and may Convert Loans of one
type into Loans of another type or Continue Eurodollar Loans; provided
that no more than five (5) Eurodollar Loans may be outstanding from each Bank
at
any one time.
(b) Revolving
Credit Loans may be borrowed pursuant to Section 1.2, upon notice given
by the Borrower.
(c) Anything
in this Agreement to the contrary notwithstanding, the Banks shall have no
obligation to make any Loans if, after giving effect thereto, the Total Credits
would exceed the Total Commitments.
1.2. Revolving
Credit Loans Pursuant to Notice. The Borrower may, subject to the
terms and conditions of this Agreement, borrow Revolving Credit Loans by notice
given by any two Authorized Officers to the Agent in accordance with Section
3.5(a). Revolving Credit Loans made pursuant to this Section
1.2 on any day shall be in an aggregate amount not less than that specified
in Section 3.4 and shall consist of Loans of the same
type. Not later than 1:00 p.m. Chicago time on the date specified for
each borrowing under this Section 1.2, each Bank shall make available to
the Agent at its principal office in Chicago, Illinois, in immediately available
funds, the amount of the Loan to be made by it on such date. The
amount so received by the Agent shall, subject to the teens and conditions
of
this Agreement, be made promptly available to the Borrower in immediately
available funds in accordance with the instructions of any two Authorized
Officers of the Borrower.
1.3. Voluntary
Reduction of Commitments. The Borrower shall have the right to
terminate or reduce the aggregate amount of the Commitments at any time or
from
time to time, provided that: (a) the Borrower shall give notice of each
such termination or reduction as provided in Section 3.5 hereof; (b) each
partial reduction shall be in an aggregate amount at least equal to $5,000,000
and in integral multiples of $5,000,000; (c) the Total Commitments shall not
be
reduced below the Total Credits then outstanding; (d) no such reduction shall
cause the Commitment of any Bank to be reduced below the outstanding principal
amount of Loans made by such Bank; and (e) Commitments once terminated or
reduced may not be reinstated.
1.4. Prepayment,
Conversions and Continuations. Subject to Section 4.5
hereof, the Borrower shall have the right to prepay the principal of the Loans
or to Convert Loans of one type into Loans of another type or Continue
Eurodollar Loans as such at any time, provided that: (a) the Borrower
shall give the Agent notice of each such prepayment, Conversion, or Continuation
as provided in Section 3.5 hereof; (b) prepayments shall be in a minimum
principal amount of $1,000,000 and in integral multiples of $1,000,000; and
(c)
Eurodollar Loans may be prepaid, Continued, or Converted only on the last day
of
an Interest Period therefor.
1.5. Interest.
(a) The
Borrower promises to pay to the Agent for the account of each Bank interest
on
the unpaid principal amount of each Loan made by such Bank for the period from
and including the date of such Loan to, but excluding, the date such Loan shall
be paid in full, (i) while such Loan is a Prime Rate Loan, for each day at
a
rate per annum equal to the Prime Rate as in effect on such day minus 1.00%;
(ii) while such Loan is a Eurodollar Loan, for each Interest Period relating
thereto, at a rate per annum equal to the LIBOR Rate for such Loan for such
Interest Period plus 1.15%; and (iii) while such Loan is a Fed Funds Rate Loan
for each day, at a rate per annum equal to the Fed Funds Rate as in effect
on
such day plus 1.15%.
(b) Notwithstanding
the foregoing, the Borrower will pay to the Agent for the account of the Bank
entitled thereto interest at the Post-Default Rate on (i) any principal of
any
Loan and (ii) (to the fullest extent permitted by law) any interest or other
amount payable by the Borrower hereunder or under any Note which shall not
be
paid in full when due (whether at stated maturity, by acceleration or
otherwise), for each day during the period from and including the due date
thereof to but excluding the date the same is paid in full.
(c) Accrued
interest shall be payable in (i) in the case of Prime Rate Loans, monthly in
arrears on the last Business Day of the month, (ii) in the case of Fed Funds
Rate Loans, monthly in arrears on the last Business Day of the month, (iii)
in
the case of a Eurodollar Loan, on the last day of each Interest Period thereof,
and (iv) in the case of any Loan, upon the payment or prepayment thereof or
the
Conversion of such Loan to a Loan of another type (but only on the principal
amount so paid, prepaid, or Converted); provided, that interest payable
at the Post-Default Rate, if any, shall be payable from time to time on demand
and interest on any Loan that is Converted into a Prime Rate Loan pursuant
to
Section 4.4 hereof shall be payable on the date of Conversion (but only
to the extent so Converted).
1.6. Lending
Offices. The Loans of each type made by each Bank shall be made
and maintained at such Bank’s Applicable Lending Office for Loans of such
type.
1.7. Several
Obligations; Remedies Independent. The obligations of the Banks
under this Agreement are several and the failure of any Bank to make any Loan
on
the date specified therefor shall not relieve any other Bank of its obligation
to make the Loan to be made by it on such date, but neither any Bank nor the
Agent shall be responsible for the failure of any other Bank to make any
Loan. The amounts payable by the Borrower at any time hereunder and
under the Notes to the Agent and each Bank shall be a separate and independent
debt, and the Agent and each Bank shall be entitled to protect and enforce
its
rights arising out of this Agreement and the Notes, and it shall not be
necessary for any other Bank or the Agent to consent to, or be joined as an
additional party in, any proceedings for such purposes.
1.8. Notes. The
obligation of the Borrower to pay principal of and interest on the Loans made
by
each Bank hereunder shall be evidenced by a single promissory note of the
Borrower payable to such Bank in substantially the form of Exhibit A
hereto. The date, amount, and type of each Loan made by each Bank,
and the date and amount of each payment made on account of the principal
thereof, shall be recorded by such Bank on its books and, prior to any transfer
of any Note evidencing such Loan held by it, endorsed by such Bank on the
schedule attached to such Note or any continuation thereof; provided,
however, that any failure to so record shall not affect the Borrower’s
obligations under this Agreement or the Notes.
1.9. Business
Day Payments. If the due date of any amount payable hereunder
shall fall on a day, which shall not be a Business Day, the due date of such
amount shall be postponed to the next Business Day thereafter.
1.10. Extension
of Commitments and Replacement of Banks.
(a) The
Borrower may request an extension of the Revolving Credit Commitment Termination
Date by submitting a request for extension to the Agent and each Bank (other
than a Bank excluded from such request as provided in the last sentence of
this
Section 1.10(a)) (each such request being an “Extension Request”)
no later than sixty (60) days prior to the then existing Revolving Credit
Commitment Termination Date. The Agent and each Bank receiving such
an Extension Request may, in accordance with such Extension Request but in
the
absolute and sole discretion of the Agent and such Bank, agree to extend the
Revolving Credit Commitment Termination Date by delivering to the Borrower
and
the Agent an irrevocable notice (a “Consent Notice”) to such effect,
which consent shall specifically refer to this Section 1.10 and which
shall be given no later than thirty (30) days prior to the then existing
Revolving Credit Commitment Termination Date (the period between the receipt
of
the Extension Notice and the 30-day deadline for response being referred to
as
the “Consent Period”). The new Revolving Credit Commitment
Termination Date shall be no more than 364 days after the current Revolving
Credit Commitment Termination Date. No Extension Request shall be
effective with respect to a Bank (i) that, by a notice (a “Withdrawal
Notice”) to the Borrower and the Agent during the Consent Period, declines
to consent to such extension or (ii) that has failed to respond to the Borrower
and the Agent within the Consent Period or (iii) that was excluded from the
Borrower’s Extension Request (each such Bank giving a Withdrawal Notice or
failing to respond in a timely manner or being excluded from the Borrower’s
Extension Request being called a “Withdrawing Bank”). So long
as no Default exists, the Borrower may elect to exclude any Bank from its
request for extension of the Revolving Credit Termination Date pursuant to
this
Section 1.10(a) by providing a notice to such effect to the Agent and the
Banks.
(b) The
Borrower may replace any Withdrawing Bank during the 25-day period (the
“Replacement Period”) commencing at the end of the Consent Period and
ending on (and including) the date five days before the Revolving Credit
Commitment Termination Date then in effect, provided, that (i) no Default
shall have occurred and be continuing, (ii) the Bank being replaced has been
paid in full of all its Loans, including principal and interest, and other
amounts due to it hereunder, (iii) the Total Commitments shall remain unchanged
following such replacement, (iv) any such replacement bank assumes all the
rights and obligations of a “Bank” hereunder pursuant to such accession
documentation as the Agent shall specify pursuant to Section 1.10(d), and
(v) the Agent shall have consented to such replacement bank, which consent
shall
not be unreasonably withheld.
(c) If
the
Agent does not timely provide a Consent Notice as to an Extension Request,
or if
there is a Withdrawing Bank and the Borrower does not find a replacement bank
which satisfies all the conditions stated in Section 1.10(b) by the end
of the Replacement Period, the Revolving Credit Commitment Termination Date
shall not be extended, any Withdrawing Bank shall continue to be a Bank
hereunder, and its Commitments shall expire on the Revolving Credit Commitment
Termination Date as provided herein without giving effect to any
extension. If all of the Banks and the Agent provide a Consent Notice
with respect to an Extension Request and there is no Withdrawing Bank, or if
all
of the Banks (other than any Withdrawing Bank) and the Agent give a Consent
Notice and each Withdrawing Bank is replaced by a replacement bank during the
Replacement Period and all the conditions stated in Section 1.10(b) shall
be satisfied with respect to such replacement bank, then the Revolving Credit
Commitment Termination Date shall be extended in accordance with the relevant
Extension Request, the Commitments shall be extended accordingly, and any
Withdrawing Bank shall be discharged from its Commitment and any other
obligation as a Bank which arises after the date which would have been the
Revolving Credit Commitment Termination Date but for such
extension.
(d) Any
replacement bank may become a “Bank” under this Agreement by executing and
delivering to the Borrower and the Agent an accession agreement in form and
substance satisfactory to the Agent and the Borrower and such related
documentation as shall be satisfactory in form and substance to the Borrower
and
the Agent, pursuant to which such bank shall assume the rights, privileges,
duties, and obligations of a “Bank” hereunder. Upon the effectiveness
of any such accession agreement and related documentation, the acceding bank
shall become a “Bank” for all purposes of this Agreement having the Commitments
specified in such accession agreement.
(e) The
Agent
shall promptly provide a copy of each accession agreement to each of the
Banks.
(f) If
any
Loans shall be outstanding at the time an accession agreement becomes effective,
the Borrower shall repay such portion of such Loans and borrow an equal
principal amount of new Loans from the Bank which has acceded so that after
giving effect to such prepayment and borrowing the Loans are held pro rata
among
the Banks in accordance with the Commitments. The Banks shall make
disbursements among themselves to give effect to such prepayment and borrowing
pursuant to instructions from the Agent. The Borrower shall pay
accrued interest to the date of prepayment on any Loans so prepaid, together
with any amounts payable as a result of such prepayment pursuant to Section
4.5, such prepayments being due on the date of such
prepayments. Any Eurodollar Loans made by such acceding Bank shall be
(if not made on the first day of the relevant Interest Period(s) for Eurodollar
Loans hereunder) at such rate(s) per annum as shall be set forth in the
accession agreement.
1.11. Repayment. All
principal amounts on the Loans shall be payable on the Revolving Credit
Commitment Termination Date, or, if sooner, as provided in Section
8.2.
1.12. Existing
Credit Agreement. The outstanding indebtedness,
including principal, interest and fees, under the Existing Credit Agreement
shall remain outstanding as shall be evidenced by this Agreement and shall
be
payable as scheduled in the Existing Credit Agreement.
SECTION
2. FEES
2.1. Facility
Fee. The Borrower shall pay to the Agent for the account of each
Bank a facility fee on the amount of such Bank’s Commitment, for the period from
and including the date of this Agreement to, but not including the earlier
of
the date such Commitment is terminated or the Revolving Credit Commitment
Termination Date, at the rate per annum of 0.125%. The accrued
facility fee in respect of the Commitments shall be payable in arrears on the
last Business Day of each calendar quarter in each year, beginning with the
first of such dates to occur after the date of this Agreement, and on the
earlier of the date the Commitments are terminated or the Revolving Credit
Commitment Termination Date.
2.2. Agency
Fee. The Borrower shall pay to the Agent for the account of the
Agent such agency fee as shall be set forth in a letter agreement dated the
date
of this Agreement between the Agent and the Borrower.
SECTION
3. THE
PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS; ETC.
3.1. Payments.
(a) Except
to
the extent otherwise provided herein, all payments and prepayments of principal,
interest, fees and other amounts to be made by the Borrower under this Agreement
and the Notes shall be made in Dollars, in immediately available funds, without
deduction, set-off, or counterclaim, to the Agent, for the benefit of the Agent
and the Banks, at such account as it may specify, not later than 11:00 a.m.
Chicago time on the date on which such payment shall become due (each such
payment made after such time to be deemed to have been made on the next
succeeding Business Day).
(b) Each
payment received by the Agent under this Agreement or any Note for the account
of a Bank shall be paid promptly to such Bank, in immediately available funds,
for the account of such Bank’s Applicable Lending Office for the Loan in respect
of which such payment is made.
3.2. Pro
Rata Treatment. Except to the extent otherwise provided herein:
(a) the borrowing from the Banks of Loans under Section 1.2 hereof shall
be made from the Banks, and the payment of the facility fee under Section
2.1 hereof shall be made for the account of the Banks, and each reduction
of
the Commitments pursuant to Section 1.3 hereof shall be applied to the
Commitments of the Banks, pro rata according to the amounts of their respective
Percentages; (b) the making, Conversion, and Continuation of Loans of a
particular type (other than Conversions provided for by Section 4.4
hereof) shall be pro rata among the Banks according to the amounts of their
respective Percentages; (c) each payment or prepayment of principal by the
Borrower shall be made for the account of the Banks pro rata in accordance
with
the respective unpaid principal amounts of the Loans held by the Banks; and
(d)
each payment of interest on Loans by the Borrower shall be made for the account
of the Banks pro rata in accordance with the amounts of interest due and payable
to the respective Banks.
3.3. Computations. Interest
and fees shall be computed on the basis of a year of 360 days and actual days
elapsed (including the first day but excluding the last day) occurring in the
period for which payable.
3.4. Minimum
Amounts. Except for Conversions or prepayments made pursuant to
Section 4.4 hereof, each borrowing pursuant to Section 1.2,
Conversion, and prepayment of principal of Loans shall be in an amount at least
equal to $1,000,000 and in integral multiples of $1,000,000 (prepayments or
Conversions of or into Loans of different types or, in the case of Eurodollar
Loans, having different Interest Periods at the same time hereunder to be deemed
separate Conversions and prepayments for purposes of the foregoing, one for
each
type or Interest Period). Anything in this Agreement to the contrary
notwithstanding, the aggregate principal amount of Eurodollar Loans having
the
same Interest Period shall be at least equal to $1,000,000 and if any Eurodollar
Loans would otherwise be in a lesser principal amount for any period, such
Loans
shall be Prime Rate Loans during such period.
3.5. Certain
Notices.
(a) Notices
by the Borrower to the Agent of voluntary reductions of the Commitments,
borrowings, Conversions, Continuation and prepayments of Loans, of type of
Loans, and of the duration of Interest Periods shall be irrevocable and shall
be
effective only if received by the Agent not later than 10:00 a.m. Chicago time
on the number of Business Days prior to the date of the relevant reduction,
borrowing, Conversion, Continuation or prepayment or the first day of such
Interest Period specified below:
|
Notice
|
Business
Days
Prior
|
|
Reduction
of Commitments
|
five
|
|
Borrowing
or prepayment of, or Conversions into, Prime Rate Loans or Fed Funds
Rate
Loans
|
same
day
|
|
Borrowing
or prepayment of, Conversions into, Continuations as, or duration
of
Interest Period for, Eurodollar Loans
|
three
|
(b) Each
notice of reduction of the Commitments shall specify the amount of such
reduction. Each notice of borrowing, Conversion, Continuation, or
prepayment shall specify the Loans to be borrowed, Converted, Continued, or
prepaid and the amount (subject to Section 3.4 hereof) and type of the
Loans to be borrowed, Converted, Continued, or prepaid and the date of
Conversion, Continuation, or prepayment (which shall be a Business
Day). Each such notice of the duration of an Interest Period shall
specify the Loans to which such Interest Period is to relate. The
Agent shall promptly notify the Banks of the contents of each such
notice.
(c) In
the
event that the Borrower fails to select the type of Loan or the duration of
any
Interest Period for any Eurodollar Loan within the time period and otherwise
as
provided in this Section 3.5, such Loan (if outstanding as a Eurodollar
Loan) will be automatically Converted into a Prime Rate Loan on the last day
of
the then current Interest Period for such Loan or will be made as a Prime Rate
Loan; provided, that the Borrower shall continue to have the right to
Convert any such Loan on the terms and conditions of this
Agreement.
3.6. Non-Receipt
of Funds by the Agent. Unless the Agent shall have been notified
by a Bank or the Borrower (the “Payor”) prior to the date on which the
Payor is scheduled to make a payment to the Agent (a “Required Payment”),
which notice shall be effective upon receipt, that the Payor does not intend
to
make the Required Payment to the Agent, the Agent may assume that the Required
Payment has been made and may in reliance upon such assumption (but shall not
be
required to) make the amount thereof available to the intended recipient(s)
on
such date and, if the Payor has not in fact made the Required Payment to the
Agent, the recipient(s) of such payment shall, on demand, repay to the Agent
the
amount so made available together with interest thereon in respect of each
day
during the period commencing on the date such amount was so made available
by
the Agent until the date the Agent recovers such amount at a rate per annum
equal to (if the recipient is the Borrower) the Prime Rate for such day, and
(if
the recipient is a Bank) the Fed Funds Rate for such day as determined by the
Agent; and if such recipient(s) shall fail promptly to make such payment, the
Agent shall be entitled to recover such amount, on demand, from the Payor,
together with interest as aforesaid at the Prime Rate (if the Payor is the
Borrower) or the Fed Funds Rate (if the Payor is a Bank).
3.7. Sharing
of Payments. If any Bank shall obtain payment in any manner
whatsoever of any principal of or interest on any Loan or any other amount
due
hereunder or under the Notes and, as a result of such payment, such Bank shall
have received a greater percentage of the principal or interest or such other
amount then due hereunder or under the Notes by the Borrower to such Bank than
the percentage received by any other Banks, it shall promptly purchase from
such
other Banks participations in the Loans made by such other Banks in such amounts
and make such other adjustments from time to time as shall be equitable to
the
end that all the Banks shall share the benefit of such excess payment pro rata
in accordance with the unpaid principal and/or interest on the Loans held by
each of the Banks. To such end all the Banks shall make appropriate
adjustments among themselves (by the resale of participations sold or otherwise)
if such payment is rescinded or must otherwise be restored.
SECTION
4. YIELD,
CAPITAL MAINTENANCE AND TAX PROVISIONS
4.1. Additional
Costs.
(a) The
Borrower shall pay directly to each Bank from time to time on demand such
amounts as such Bank may determine to be necessary to compensate it for any
costs which such Bank determines are attributable to its making or maintaining
of any Eurodollar Loans or Fed Funds Rate Loans or its obligation to make any
Eurodollar Loans or Fed Funds Rate Loans hereunder, or any reduction in any
amount received or receivable by such Bank hereunder in respect of any
Eurodollar Loans or Fed Funds Rate Loans or such obligation (such increases
in
costs and reductions in amounts received or receivable being herein called
“Additional Costs”), resulting from any Regulatory Change
which:
(i) changes
the basis of taxation of any amounts payable to such Bank under this Agreement
or its Note (other than taxes on the overall net income of such Bank or its
Applicable Lending Office imposed by the United States of America or by the
jurisdiction in which such Bank has its principal office or such Applicable
Lending Office);
(ii) imposes,
modifies, or deems applicable any reserve, special deposit, or similar
requirements relating to any extensions of credit or other assets of, or any
deposits with or other liabilities of, such Bank or the Commitment of such
Bank
in respect of Eurodollar Loans or Fed Funds Rate Loans; or
(iii) imposes
any other condition affecting this Agreement or its Note (or any of such
extensions of credit or liabilities) or Commitment in respect of Eurodollar
Loans or Fed Funds Rate Loans.
(b) Without
limiting the effect of the foregoing provisions of this Section 4.1 (but
without duplication), the Borrower shall pay directly to each Bank from time
to
time on demand such amounts as such Bank may determine to be necessary to
compensate such Bank or any Person controlling such Bank for any increased
costs
which it determines are attributable to the maintenance by such Bank or such
Person (or any Applicable Lending Office) of capital in respect of such Bank’s
Commitment or Loans as a result of any Regulatory Change, such compensation
to
include, without limitation, an amount equal to any reduction of the rate of
return on assets or equity of such Bank or such Person (or any Applicable
Lending Office) to a level below that which such Bank or such Person (or any
Applicable Lending Office), taking into account its policies concerning capital
adequacy, could have achieved but for such Regulatory Change.
(c) Each
Bank
will notify the Borrower of any event occurring after the date of this Agreement
that will entitle such Bank to compensation under paragraph (a) or
(b) of this Section 4.1 as promptly as
practicable. Together with the delivery of such notice, the relevant
Bank will furnish to the Borrower a certificate setting forth the basis and
amount of each request by such Bank for compensation under paragraph (a)
or (b) of this Section 4.1. Determinations and
allocations by any Bank for purposes of this Section 4.1 of the effect of
any Regulatory Change, law, regulation, or request of any central bank or other
monetary authority and computations of amounts payable set forth in the
certificate referred to in the preceding sentence shall be made in good faith
and shall be conclusive and binding on the Borrower in the absence of manifest
error.
4.2. Limitation
on Types of Loans. Anything herein to the contrary
notwithstanding, if, on or prior to the determination of any LIBOR Base Rate
for
any Interest Period for any Eurodollar Loans or determination of the Fed Funds
Rate for any Fed Funds Rate Loans:
(a) the
Agent
determines (which determination shall be conclusive) that quotations of interest
rates for the relevant deposits referred to in the definition of “LIBOR Base
Rate” or “Fed Funds Rate,” as the case may be, are not being provided in the
relevant amounts or for the relevant maturities for purposes of determining
the
LIBOR Base Rate for such Interest Period or the Fed Funds Rate for such day,
as
the case may be, as provided herein; or
(b) any
Bank
determines (which determination shall be conclusive) and notifies the Agent
that
the relevant rates of interest referred to in the definition of (i) “LIBOR Base
Rate” for such Interest Period are not likely to adequately cover the cost to
such Bank of making or maintaining its Eurodollar Loan for such Interest Period
or (ii) “Fed Funds Rate” are not likely to adequately cover the cost of such
Bank of making or maintaining its Fed Funds Rate Loans;
then
with
respect to Loans of the affected type, the Agent shall give the Borrower and
each Bank prompt notice thereof, and so long as such condition remains in
effect, the affected Banks shall be under no obligation to make or Continue
Loans of the affected type and the Borrower shall either prepay (on the last
day
of the current Interest Period for any outstanding Eurodollar Loans) each
affected Bank’s Loans of the affected type or Convert (on the last day of the
current Interest Period for any outstanding Eurodollar Loans) such Loans to
a
type which are not so affected in accordance with Section 1.4
hereof.
4.3. Illegality. Notwithstanding
any other provision of this Agreement, in the event that because of any
Regulatory Change it becomes unlawful for any Bank or its Applicable Lending
Office to honor its obligation to make or maintain Eurodollar Loans or Fed
Funds
Rate Loans, then such Bank shall promptly notify the Borrower thereof (with
a
copy to the Agent) and such Bank’s obligation to make or Continue, or to Convert
Loans into, the affected type of Loans or to make or Convert the affected type
of Loans shall be suspended until such time as such Bank may again make and
maintain the affected type of Loans (in which case the provisions of Section
4.4 hereof shall be applicable).
4.4. Treatment
of Affected Loans.
(a) If
the
obligation of any Bank to make or Continue, or to Convert Loans into, Eurodollar
Loans or Fed Funds Rate Loans is suspended pursuant to Section 4.2 or
4.3 hereof (such Loans being called “Affected Loans” in this
Section 4.4), such Bank’s Affected Loans shall be automatically Converted
into Prime Rate Loans on the last day(s) of the then current Interest Period(s)
unless sooner required under the Regulatory Change referred to in Section
4.3 and, unless and until such Bank gives notice as provided
below that the circumstances specified in Section 4.2 or 4.3
hereof which gave rise to such Conversion no longer exist:
(i) to
the
extent that such Bank’s Affected Loans have been so Converted, all payments and
prepayments of principal which would otherwise be applied to such Bank’s
Affected Loans shall be applied instead to its Prime Rate Loans;
and
(ii) all
Loans
which would otherwise be made or Continued by such Bank as Affected Loans shall
be made or Continued instead as Prime Rate Loans and all Loans of such Bank
which would otherwise be Converted into Affected Loans shall remain as Prime
Rate Loans.
(b) If
such
Bank gives notice to the Borrower (with a copy to the Agent) that circumstances
specified in Section 4.2 or 4.3 hereof which gave rise to the
Conversion of such Bank’s Affected Loans pursuant to this Section 4.4 no
longer exist (which such Bank agrees to do promptly upon such circumstances
ceasing to exist) at a time when Affected Loans are outstanding, such Bank’s
Prime Rate Loans shall be automatically Converted, on the first day(s) of the
next succeeding Interest Period(s) for such outstanding Affected Loans to the
extent necessary so that, after giving effect thereto, all Affected Loans are
held pro rata (as to principal amounts, types and Interest Periods) in
accordance with the Commitments.
4.5. Compensation.
(a) The
Borrower shall pay to the Agent for the account of each Bank, upon the demand
of
such Bank through the Agent, such amount or amounts as shall be sufficient
(in
the reasonable opinion of such Bank) to compensate it for any loss, cost or
expense which such Bank determines are attributable to (i) any payment,
prepayment or Conversion of a Eurodollar Loan made by such Bank for any reason
(including, without limitation, the acceleration of the Loans pursuant to
Section 8 hereof) on a date other than the last day of an Interest Period
for such Loan; or (ii) any failure by the Borrower for any reason (including,
without limitation, the failure of any of the conditions precedent specified
in
Section 5 hereof to be satisfied) to borrow a Eurodollar Loan from such
Bank on the date of the making of such Loan specified as provided in this
Agreement.
(b) Without
limiting the effect of Section 4.5(a), such compensation shall include an
amount equal to the excess, if any, of (i) the amount of interest which
otherwise would have accrued on the principal amount so paid, prepaid or
Converted or not borrowed for the period from the date of such payment,
prepayment, Conversion or failure to borrow to the last day of the then current
Interest Period for such Loan (or, in the case of a failure to borrow, the
Interest Period for such Loan which would have commenced on the date specified
for such borrowing) at the applicable rate of interest for such Loan over (ii)
the interest component of the amount such Bank would have bid in the London
interbank market for Dollar deposits of leading banks in amounts comparable
to
such principal amount and with maturities comparable to such period (as
reasonably determined by such Bank).
(c) Any
Bank
requesting compensation pursuant to this Section 4.5 shall provide to the
Borrower a certificate showing its computation of the amount requested, which
shall be conclusive and binding on the Borrower in the absence of manifest
error.
4.6. Taxes. The
Borrower covenants and agrees that:
(a) All
payments on account of the principal of and interest on the Loans and all other
amounts payable by the Borrower under or in respect of this Agreement or the
Notes or the letter agreement referred to in Section 2.2 hereof,
including amounts payable under paragraph (c) of this Section 4.6,
shall be made free and clear of and without reduction by reason of any present
or future income, stamp and other taxes, levies, deductions, charges and
withholdings whatsoever imposed, assessed, levied or collected by any state,
nation or other governmental authority (other than taxes on the overall net
income of such Bank or its Applicable Lending Office imposed by the United
States of America or the jurisdiction in which such Bank has its principal
office or such Applicable Lending Office, such excluded taxes being called
“Excluded Taxes”), or any political subdivision or taxing authority
thereof or therein (each, a “Taxing Authority”), and interest thereon and
penalties with respect thereto, if any, on or in respect of (i) this Agreement,
the Notes, the Commitments, the Loans or the letter agreement referred to in
Section 2.2 hereof, (ii) the registration, notarization or other
formalization of any thereof, (iii) any payments of principal, interest,
charges, fees or other amounts made on, under or in respect thereof, or (iv)
any
of the income, profits or revenues of the Agent, any Bank or any Applicable
Lending Office as a result of the transactions contemplated hereby other than
Excluded Taxes (collectively, “Taxes”), all of which will be paid by the
Borrower, for its own account, prior to the date on which penalties attach
thereto.
(b) The
Borrower will indemnify the Agent and each Bank against, and reimburse the
Agent
and each Bank on demand for, any Taxes and any loss, liability, claim or
expense, including interest, penalties and legal fees, which the Agent or any
Bank may incur at any time arising out of or in connection with any failure
of
the Borrower to make any payment of Taxes when due.
(c) In
the
event that the Borrower is required by applicable law, decree or regulation
to
deduct or withhold any Taxes from any amount payable on, under or in respect
of
this Agreement or the Notes or the letter agreement referred to in Section
2.2 hereof, the Borrower shall withhold such amount and pay it to the
relevant Taxing Authority and shall pay to the Agent or the Banks such
additional amount as may be required, after such deduction or withholding,
to
enable the Agent or the Banks to receive from the Borrower an amount equal
to
the full amount stated to be payable under this Agreement or the Notes or the
letter agreement referred to in Section 2.2 hereof.
(d) The
Borrower shall furnish to the Agent original or certified copies of tax receipts
in respect of any withholding of Taxes required under this Section 4.6
within thirty (30) days after the date of the payment of interest or other
amount in respect of which any withholding was required to be made, and the
Borrower shall promptly furnish to the Agent any other information, documents
and receipts that the Agent may require, in its sole discretion from time to
time, to establish to its satisfaction that full and timely payment has been
made of all Taxes required to be paid hereunder.
(e) The
covenants and agreements of the Borrower under this Section 4.6 shall
survive the repayment of the Loans and payment of other amounts payable under
this Agreement, the Notes and the letter agreement referred to in Section
2.2 hereof.
(f) At
least
five Business Days prior to the first date on which interest or fees are payable
hereunder for the account of any Bank, each Bank that is not incorporated under
the laws of the United States of America or a state thereof agrees that it
will
deliver to each of the Borrower and the Agent two duly completed copies of
United States Internal Revenue Service Form ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8IMY, certifying
in either case that such Bank is entitled to receive payments under this
Agreement arid the Notes without deduction or withholding of any United States
federal income taxes. Each Bank which is so obligated to deliver a
Form ▇-▇▇▇▇, ▇-▇▇▇▇ or W-8IMY further undertakes to deliver to each of the
Borrower and the Agent two additional copies of such form (or a successor form)
on or before the date that such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form so delivered
by it, and such amendments thereto or extensions or renewals thereof as may
be
reasonably requested by the Borrower or the Agent, in each case certifying
that
such Bank is entitled to receive payments under this Agreement and the Notes
without deduction or withholding of any United States federal income taxes,
unless an event (including without limitation any change in treaty, law or
regulation) has occurred prior to the date on which any such delivery would
otherwise be required which renders all such forms inapplicable or which would
prevent such Bank from duly completing and delivering any such form with respect
to it and such Bank advises the Borrower and the Agent that it is not capable
of
receiving payments without any deduction or withholding of United States federal
income tax.
SECTION
5. CONDITIONS
PRECEDENT
5.1. Initial
Credit Extension. The amendment and restatement of the Existing
Credit Agreement and the obligation of each Bank to make its initial Loan
hereunder is subject to the receipt by the Agent of the following documents
and
payments, each of which documents shall be satisfactory to the Agent in form
and
substance:
(a) Agreement. This
Agreement, duly completed and executed.
(b) Notes. The
Notes, duly completed and executed.
(c) Borrower
Corporate Action. The certificate of incorporation (certified by
the Secretary of State of Delaware dated no earlier than 30 days prior to this
Agreement) and bylaws of the Borrower and all corporate action taken by the
Borrower authorizing this Agreement and the Notes and the borrowing by the
Borrower hereunder (including the resolutions of the Board of Directors of
the
Borrower authorizing the transactions contemplated hereby), in each case,
certified by the secretary or assistant secretary of the Borrower.
(d) Borrower
Incumbency. 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
Agreement or the Notes 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.
(e) Officer’s
Certificate. A certificate of a senior officer of the Borrower
dated the date of the initial Credit Extension to the effect that on and as
of
such date: (i) no Default shall have occurred and be continuing; and (ii) the
representations and warranties made by the Borrower in Section 6 hereof
are true and correct with the same force and effect as if made on and as of
such
date.
(f) Opinion
of Counsel of Borrower. An opinion of counsel of the Borrower,
substantially in the form of Exhibit B hereto.
(g) Approvals. Certified
copies of any filings, authorizations, approvals, licenses, consents or
registrations necessary in order for the Borrower to execute, deliver and
perform this Agreement or the Notes.
(h) Fee
Letter and Payments. An executed copy of the letter agreement
referred to in Section 2.2, payment of any agency fee then due under that
letter agreement, and payment of any other fee which is then due and payable
pursuant to this Agreement.
(i) Borrower
Good Standing Certificates. A good standing certificate from (i)
the Borrower’s Federal Reserve Bank, (ii) the Secretary of State of the
Borrower’s state of incorporation, and (iii) each state in which the Borrower is
required to be qualified to transact business as a foreign corporation, except
from those states where the failure to so qualify would not have a material
adverse impact on the consolidated assets, condition or prospects of the
Borrower (in each of the foregoing cases, dated no earlier than 30 days prior
to
this Agreement).
(j) Guaranty
Agreements. A separate Guaranty Agreement duly completed and
executed by each Guarantor.
(k) Guarantor
Corporate Action. The articles of incorporation (also certified
by the Secretary of State of each Guarantor’s state of organization dated no
earlier than 30 days prior to this Agreement) and by-laws of each Guarantor
and
all corporate action taken by each Guarantor authorizing their respective
Guaranty Agreement and the performance of their obligations thereunder
(including the resolutions of the Board of Directors of each Guarantor
authorizing the transactions contemplated by their respective Guaranty
Agreement), in each case, certified by the secretary or assistant secretary
of
such Guarantor.
(l) Guarantor
Incumbency. A certificate of the secretary or assistant secretary
of each Guarantor naming and setting forth the specimen signature of each of
the
officers of such Guarantor who is authorized to sign its Guaranty Agreement
on
its behalf (the Agent and each Bank may conclusively rely on such certificate
until formally advised by a like certificate of any changes
therein).
(m) Guarantor
Good Standing Certificates. A good standing certificate from (i)
the Secretary of State of each Guarantor’s state of incorporation, and (iii)
each state in which each Guarantor is required to be qualified to transact
business as a foreign corporation, except from those states where the failure
to
so qualify would not have a material adverse impact on the consolidated assets,
condition or prospects of such Guarantor (in each of the foregoing cases,
dated
no earlier than 30 days prior to this Agreement).
(n) Opinion
of Counsel to Guarantor. An opinion of counsel to each Guarantor
in the form of Exhibit C attached hereto.
(o) Lien
Searches. Certified copies of (i) Uniform Commercial Code lien
search reports certified by a party acceptable to the Agent, dated a date
reasonably near to the date of this Agreement, listing all effective financing
statements which name the Borrower and each Guarantor (under their present
names
and any previous names and under the names of any predecessor by merger,
consolidation or otherwise) as debtor and which are filed in the Borrower’s and
such Guarantor’s jurisdiction of organization and where the Borrower or such
Guarantor has maintained any place of business within the last five years,
together with copies of such financing statements and (ii) federal and state
tax
liens and pending suits and judgment searches against the Borrower and each
Guarantor (under their present names and any previous names and under the names
of any predecessor by merger, consolidation or otherwise) from jurisdictions
where the Borrower and such Guarantor is organized and from where the Borrower
or such Guarantor maintains any principal place of business, each of such
searches certified by a party acceptable to the Agent and dated a date
reasonably near to the date of this Agreement.
(p) Other
Documents. Such other documents as the Agent or any Bank may
reasonably request.
5.2. Initial
and Subsequent Credit Extensions. The obligation of each Bank to
make any Loan (including its initial Loan) and agree to any Continuation of
Eurodollar Loans or any Conversion of Loans is subject to the further conditions
precedent that, both immediately prior to such Credit Extension, Continuation
or
Conversion and also after giving effect thereto: (a) no Default shall have
occurred and be continuing; and (b) the representations and warranties made
by
the Borrower in Section 6 hereof shall be true and correct on and as of
the date of such Credit Extension, Continuation or Conversion with the same
force and effect as if made on and as of such date. Each notice of
borrowing, Continuation or Conversion given by the Borrower hereunder shall
constitute a certification by the Borrower to the effect set forth in clauses
(a) and (b) in the preceding sentence.
SECTION
6. REPRESENTATIONS
AND WARRANTIES
To
induce
the Agent and the Banks to enter into this Agreement and make Credit Extensions,
the Borrower represents and warrants to the Agent and the Banks
that:
6.1. Organization. The
Borrower and each Subsidiary are existing and in good standing under the laws
of
their state of formation, and are duly qualified, in good standing and
authorized to do business in each jurisdiction where failure to do so might
have
a material adverse impact on the consolidated assets, condition or prospects
of
the Borrower. The Borrower and each Subsidiary have the power and
authority to own their properties and to carry on their businesses as now being
conducted.
6.2. Authorization;
No Conflict. The execution, delivery and performance of this
Agreement, the Notes, the other Loan Documents to which the Borrower is a party
and all related documents and instruments: (a) are within the
Borrower’s powers; (b) have been authorized by all necessary corporate action;
(c) have received any and all necessary governmental approval; and (d) do not
and will not contravene or conflict with any provision of law or charter or
by-laws of the Borrower or any agreement affecting the Borrower or its
property.
6.3. Financial
Statements. The Borrower has supplied copies of the following
financial or other statements to the Agent and each Bank:
(a) The
Borrower’s unaudited consolidated financial statements as of March 31, 2007;
and
(b) The
Borrower’s audited consolidated financial statements as of December 31,
2006.
Such
statements have been furnished to the Agent and each Bank, have been prepared
in
conformity with GAAP applied on a basis consistent with that of the preceding
fiscal year, and fairly present the financial condition of the Borrower and
each
Subsidiary as at such dates and the results of :heir operations for the
respective periods then ended. Since the date of those financial
statements, no material, adverse change in the business, condition, properties,
assets, operations, or prospects of the Borrower or any Subsidiary has
occurred. There is no known contingent liability of the Borrower or
any Subsidiary which is known to be in an amount in excess of $100,000
(excluding loan commitments, letters of credit, and other contingent liabilities
included in the ordinary course of the banking business) in excess of insurance
for which the insurer has confirmed coverage in writing which is not reflected
in such financial statements.
6.4. Taxes. The
Borrower and each Subsidiary have filed or caused to be filed all federal,
state
aid local tax returns which, to the knowledge of the Borrower or such
Subsidiary, were required to be filed, and have paid or have caused to be paid
all taxes as shown on such returns or on any assessment received by them, to
the
extent that such taxes have become due (except for current taxes not delinquent
and taxes being contested in good faith and by appropriate proceedings for
which
adequate reserves have been provided on the books of the Borrower or the
appropriate Subsidiary, and as to which no foreclosure, sale or similar
proceedings have been commenced). The Borrower and each Subsidiary
have set up reserves which are adequate for the payment of additional taxes
for
years which have not been audited by the respective tax
authorities.
6.5. Liens. None
of the assets of the Borrower or any Subsidiary are subject to any Lien, except
for Liens permitted by Section 7.5(b).
6.6. Adverse
Contracts. Neither the Borrower nor any Subsidiary is a party to
any agreement or instrument or subject to any charter or other corporate
restriction, nor is it subject to any judgment, decree or order of any court
or
governmental body, which may have a material and adverse effect on the business,
assets, liabilities, financial condition, operations or business prospects
of
the Borrower and its Subsidiaries taken as a whole or on the ability of the
Borrower to perform its obligations under this Agreement, the Note, the other
Loan Documents to which it is a party. Neither the Borrower nor any
Subsidiary has, nor with reasonable diligence should have had, knowledge of
or
notice that it is in default in the performance, observance or fulfillment
of
any of the obligations, covenants or conditions contained in any such agreement,
instrument, restriction, judgment, decree or order.
6.7. Regulation
U. The Borrower is not engaged principally in, nor is one of the
Borrower’s important activities, the business of extending credit for the
purpose of purchasing or carrying “margin stock” within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System as now
and
from time to time hereinafter in effect.
6.8. Litigation
and Contingent Liabilities. No litigation (including derivative
actions), arbitration proceedings or governmental proceedings are pending or
threatened against the Borrower or any Subsidiary which would (singly or in
the
aggregate), if adversely determined, have a material and adverse effect on
the
financial condition, continued operations or prospects of the Borrower or such
Subsidiary, except as and if set forth (including estimates of the dollar
amounts involved) on Schedule 6.8 attached to this
Agreement.
6.9. FDIC
Insurance. The deposits of each Subsidiary Bank of the Borrower
are insured by the FDIC to the extent permitted by applicable law and no act
has
occurred which would adversely affect the status of such Subsidiary Bank as
an
FDIC insured bank.
6.10. Investigations. Neither
the Borrower nor any Subsidiary Bank has received any notice that it is under
investigation by, or is operating under the restrictions imposed by or agreed
to
in connection with, any regulatory authority.
6.11. Bank
Holding Company. The Borrower has complied in all material
respects with all federal, state and local laws pertaining to bank holding
companies, including without limitation the Bank Holding Company Act of 1956,
as
amended, and there are no conditions precedent or subsequent to its engaging
in
the business of being a registered bank holding company.
6.12. ERISA.
(a) The
Borrower and the ERISA Affiliates and the plan administrator of each Plan have
fulfilled in all material respects their respective obligations under ERISA
and
the Code with respect to such Plan and such Plan is currently in material
compliance with the applicable provisions of ERISA and the Code.
(b) With
respect to each Plan, there has been no (i) “reportable event” within the
meaning of Section 4043 of ERISA and the regulations thereunder which is not
subject to the provision for waiver of the 30-day notice requirement to the
PBGC; (ii) failure to make or properly accrue any contribution which is due
to
any Plan; (iii) action under Section 4041 of ERISA to terminate any Pension
Plan; (iv) withdrawal from any Pension Plan with two or more contributing
sponsors or the termination of any such Pension Plan resulting in liability
pursuant to Sections 4063 or 4064 of ERISA; (v) institution by PBGC of
proceedings to terminate any Pension Plan, or the occurrence of any event or
condition which might constitute grounds under ERISA for the termination of,
or
the appointment of a trustee to administer, any Pension Plan; (vi) the
imposition of liability pursuant to Sections 4062(e), 4069 or 4212 of ERISA;
(vii) complete or partial withdrawal (within the meaning of Sections 4203 and
4205 of ERISA) from any Pension Plan which is a Multiemployer Plan that is
in
reorganization or insolvency pursuant to Sections 4241 or 4245 of ERISA, or
that
it intends to terminate or has terminated under Sections 4041A or 4042 of ERISA;
(viii) prohibited transaction described in Section 406 of ERISA or 4975 of
the
Code which could give rise to the imposition of any material fines, penalties,
taxes or related charges; (ix) assertion of a claim (other than routine claims
for benefits) against any Plan (other than a Multiemployer Plan) which could
reasonably be expected to be successful; (x) receipt from the Internal Revenue
Service of notice of the failure of any Plan to qualify under Section 401(a)
of
the Code, or the failure of any trust forming part of any Plan to fail to
qualify for exemption from taxation under Section 501(a) of the Code, if
applicable; or (xi) imposition of a Lien pursuant to Section 401(a)(29) or
412(n) of the Code or Section 302(f) of ERISA.
6.13. Environmental
Laws.
(a) The
Borrower and each of its Subsidiaries have obtained all material permits,
licenses and other authorizations which are required under the Environmental
Laws and are in compliance in all material respects with any applicable
Environmental Laws.
(b) On
or
prior to the date hereof, no notice, demand, request for information, citation,
summons or order has been issued, no complaint has been filed, no penalty has
been assessed and rip investigation or review is pending or, to the best of
the
Borrower’s knowledge, threatened by any governmental or other Person with
respect to any alleged or suspected failure by the Borrower or any of its
Subsidiaries to comply in any material respect with any Environmental
Laws.
(c) There
are
no material liens arising under or pursuant to any Environmental Laws on any
of
the property owned or leased by the Borrower or any of its
Subsidiaries.
(d) There
are
no conditions existing currently or likely to exist during the term of this
Agreement which would subject the Borrower or any of its Subsidiaries or any
of
their property to any mater ▇▇ ▇▇▇▇, damages, penalties, injunctive relief
or
cleanup costs under any Environmental Laws or which require or are likely to
require cleanup, removal, remedial action or other responses pursuant to
Environmental Laws by the Borrower and its Subsidiaries.
6.14. Subsidiaries. Attached
hereto as Schedule 6.14 is a correct and complete list of all
Subsidiaries of the Borrower.
SECTION
7. COVENANTS
The
Borrower agrees that, so long as the Commitments are in effect and until payment
in full of the Loans and all other amounts payable by the Borrower hereunder
and
under the Notes the Borrower will, and will cause each Subsidiary to comply
with
the following covenants:
7.1. Existence,
Mergers, Etc. The Borrower and each Subsidiary shall preserve and
maintain their corporate, partnership or joint venture (as applicable)
existence, and will not liquidate, dissolve, or merge, or consolidate with
or
into any other entity, or sell, lease, transfer or otherwise dispose of all
or a
substantial part of their assets other than in the ordinary course of business
as now conducted, except that:
(a) any
Subsidiary may merge or consolidate with or into the Borrower or any one or
more
wholly-owned Subsidiaries;
(b) any
Subsidiary may sell, lease, transfer or otherwise dispose of any of its assets
to the Borrower or one or more wholly-owned Subsidiaries;
(c) the
Borrower or any Subsidiary may merge with any other Person so long as the
Borrower or such Subsidiary shall be the surviving Person and no Default before
or after giving effect to such merger shall have occurred and be continuing;
and
(d) the
Borrower may dissolve any Trust Issuer after giving effect to the redemption
of
all outstanding Trust Preferred Securities of such Trust Issuer and the
repayment in full by the Borrower of the Trust Indebtedness to such Trust
Issuer, provided, that, such redemption of Trust Preferred
Securities and repayment of Trust Indebtedness is made in compliance with other
applicable pro visions of this Agreement.
The
Borrower and any Subsidiary shall take all steps to become and remain duly
qualified, in good standing and authorized to do business in each jurisdiction
where failure to do so might have a material adverse impact on the consolidated
assets, condition or prospects of the Borrower.
7.2. Reports,
Certificates and Other Information. The Borrower shall furnish
(or cause to be furnished) to each Bank:
(a) Interim
Reports. Within forty-five (45) days after the end of each
quarter of each fiscal year of the Borrower, a copy of an unaudited financial
statement of the Borrower and its Subsidiaries prepared on a consolidated basis
consistent with the consolidated financial statements of :he Borrower and its
Subsidiaries referred to in Section 6.3 above, signed by an Authorized
Officer of the Borrower and consisting of at least: (i) a balance sheet as
at
the close of such quarter; (ii) a statement of earnings and source and
application of funds for such quarter and for the period from the beginning
of
such fiscal year to the close of such quarter; and (iii) all call reports and
other financial statements required to be delivered by the Borrower and by
each
Subsidiary Bank to any governmental authority or authorities having jurisdiction
over the Borrower or such Subsidiary Bank and all schedules
thereto.
(b) Audit
Report. Within ninety (90) days after the end of each fiscal year
of Borrower, a copy of an annual report of Borrower and its Subsidiaries
prepared on a consolidated basis and in conformity with GAAP applied on a basis
consistent with the consolidated financial statements of Borrower and its
Subsidiaries referred to in Section 6.3 above, duly audited by
independent certified public accountants of recognized standing satisfactory
to
the Agent, accompanied by an opinion without qualification.
(c) Certificates. Contemporaneously
with the furnishing of a copy of each annual report and of each quarterly
statement provided for in this Section, a certificate dated the date of
such annual report or such quarterly statement and signed by either the
President, the Chief Financial Officer or the Treasurer of the Borrower, to
the
effect that no Default has occurred and is continuing, or, if there is any
such
event, describing it and the steps, if any, being taken to cure it, and
containing (except in the case of the certificate dated the date of the annual
report) a computation of, and showing compliance with, any financial ratio
or
restriction contained in this Agreement.
(d) Reports
to SEC. Notification of each filing and report made by the
Borrower or any Subsidiary with or to any securities exchange, national
quotation service or the Securities and Exchange Commission, promptly upon
the
filing or making thereof (with copies of such filings and reports promptly
provided upon the Agent’s or any Bank’s request).
(e) Notice
of Default, Litigation and ERISA Matters. Immediately upon
learning of the occurrence of any of the following, written notice describing
the same and the steps being taken by the Borrower or such Subsidiary affected
in respect thereof: (i) the occurrence of a Default; (ii) the institution of,
or
any adverse determination in, any litigation, arbitration or governmental
proceeding which is material to the Borrower or any Subsidiary on a consolidated
basis; (iii) the occurrence of any event described in Section 6.12(b);
(iv) the issuance of any cease and desist order, memorandum of understanding,
cancellation of insurance, or proposed disciplinary action from the Federal
Deposit Insurance Corporation or other regulatory entity; or (v) the receipt
by
the Borrower or any Subsidiary Bank of any notice that it is under investigation
by, or is operating under the restrictions imposed by or agreed to in connection
with, any regulatory authority.
(f) Other
Information. From time to time such other information, financial
or otherwise, concerning the Borrower, any Subsidiary or any Guarantor as the
Agent or any Bank may reasonably request.
7.3. Inspection. The
Borrower and each Subsidiary shall permit the Agent or any Bank and its agents
at any time during normal business hours to inspect their properties and to
inspect and make copies of their books and records, except as may be prohibited
by any applicable laws. Any such inspection shall be at the
Borrower’s expense if a Default has occurred and is continuing.
7.4. Financial
Requirements.
(a) Total
Debt to Tier 1 Capital. The Borrower’s total Indebtedness
(specifically excluding Indebtedness of the Borrower’s Subsidiaries) shall not
at any time exceed forty-five percent (45%) of its consolidated Tier 1 Capital
(provided that nothing in this paragraph shall permit the Borrower to
borrow or incur Indebtedness except as specifically permitted elsewhere in
this
Agreement).
(b) Leverage
Ratio. The Borrower shall maintain a ratio of Tier 1 Capital to
average quarterly assets less all non-qualified intangible assets of at least
five percent (5%), calculated on a consolidated basis as at the last day of
each
fiscal quarter of the Borrower. Each Subsidiary Bank shall maintain a
ratio of Tier 1 Capital to average quarterly assets less all non-qualified
intangible assets of at least five percent (5%), calculated as at the last
day
of each fiscal quarter of such Subsidiary Bank.
(c) Tier
1
Capital Ratio. The Borrower shall maintain a ratio of Tier 1
Capital to risk-weighted assets of not less than six percent (6%), calculated
as
at the last day of each fiscal quarter of the Borrower. Each
Subsidiary Bank shall maintain a ratio of Tier 1 Capital to risk-weighted assets
of not less than six percent (6%), calculated as at the last day of each fiscal
quarter of such Subsidiary Bank.
(d) Risk-Based
Capital Ratio. The Borrower shall maintain a ratio of Total
Capital to risk-weighted assets of not less than ten percent (10%), calculated
as at the last day of each fiscal quarter of the Borrower. Each
Subsidiary Bank shall maintain a ratio of Total Capital to risk-weighted assets
of not less than ten percent (10%), calculated as at the last day of each fiscal
quarter of such Subsidiary Bank.
(e) Return
on Average Assets –Borrower. The Borrower’s consolidated income
shall be at least 0.70% of its average assets, calculated as at the last day
of
each fiscal quarter for the four fiscal quarter period ending on that
date.
(f) Return
on Average Assets--DBT. The consolidated net income of DBT shall
be at least one percent (1.00%) of its average assets, calculated as at the
last
day of each fiscal quarter of DBT for the four fiscal quarter period ending
on
such date.
(g) Non-performing
Assets. All assets of all Subsidiary Banks and other Subsidiaries
classified as “non-performing” (which shall include all loans in non-accrual
status, more than ninety (90) days past due in principal or interest,
restructured or renegotiated, or listed as “other restructured” or “other real
estate owned”) on the Federal Deposit Insurance Corporation or other regulatory
agency call report shall not exceed at any time three percent (3%) of all loans
of the Borrower and its Subsidiaries on a consolidated basis.
(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”) of not less than
one hundred percent (100%).
7.5. Indebtedness,
Liens And Taxes. The Borrower and each Subsidiary
shall:
(a) Indebtedness. Not
incur, permit to remain outstanding, assume or in any way become committed
for
Indebtedness (specifically including but not limited to Indebtedness in respect
of money borrowed from financial institutions but excluding deposits),
except: (i) in the case of the Borrower, Indebtedness incurred
hereunder, and in the case of the Guarantor, under its Guaranty Agreement;
(ii)
Indebtedness existing on the date of this Agreement and described on
Schedule 7.5(a) hereof; (iii) Indebtedness of any Subsidiary arising
in the ordinary course of the business of such Subsidiary; (iv) Indebtedness
of
any Subsidiary to the Borrower or any other Subsidiary; (v) in the case of
CFC,
Indebtedness under commercial paper issued by CFC which, together with any
other
commercial paper identified on Schedule 7.5(a) hereto, shall not
exceed an aggregate principal amount of $20,000,000; (vi) in the case of the
Borrower, Trust Indebtedness and Trust Guarantees, and in the case of any Trust
Issuer, Trust Preferred Securities, provided, that the aggregate of such
Trust Indebtedness (and the related Trust Guarantees and Trust Preferred
Securities) shall not exceed $120,000,000 at any time outstanding; (vii) 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; (viii) in the case of the Borrower, Indebtedness in an aggregate
amount not in excess of $4,000,000 under the Agreement to Organize and
Stockholder Agreement dated February 1, 2003 and the Supplemental Initial
Investor Agreement dated February 1, 2003; (ix) in the case of the
Borrower, Indebtedness in an aggregate amount not in excess of $3,500,000 under
the Agreement to Organize and Stockholder Agreement dated April 1, 2006;
and (x) additional Indebtedness not to exceed $1,000,000 at any time
outstanding.
(b) Liens. Not
create, suffer or permit to exist any Lien upon any of their assets now or
hereafter owned or acquired (specifically including but not limited to the
capital stock of any of the Subsidiary Banks), except: (i) Liens
existing on the date of this Agreement and disclosed on Schedule 7.5(b);
(ii) Liens securing deposits of public funds, repurchase agreements, Federal
funds purchased, trust assets, advances or loans from a Federal Home Loan Bank,
discount window borrowings from a Federal Reserve Bank and other similar Liens
granted in the ordinary course of banking business; (iii) Liens of landlords,
contractors, laborers or suppliers, tax liens, or liens securing performance
or
appeal bonds, or other similar liens or charges arising out of the Borrower’s or
any Subsidiary’s business, provided that tax liens are removed before
related taxes become delinquent and other liens are promptly removed, in either
case unless contested in good faith and by appropriate proceedings, and as
to
which adequate reserves shall have been established and no foreclosure, sale
or
similar proceedings have commenced; (iv) Liens on the assets of any Subsidiary
(other than CFC) arising in the ordinary course of the business of such
Subsidiary; and (v) Liens in favor of the Agent for the benefit of the Banks
granted after the date hereof.
(c) Taxes. Pay
and discharge all taxes, assessments and governmental charges or levies imposed
upon them, upon their income or profits or upon any properties belonging to
them, prior to the date on which penalties attach thereto, and all lawful claims
for labor, materials and supplies when due, except that no such tax, assessment,
charge, levy or claim need be paid which is being contested in good faith by
appropriate proceedings as to which adequate reserves shall have been
established in accordance with GAAP, and no foreclosure, sale or similar
proceedings have commenced.
(d) Guaranties. Not
assume, guarantee, endorse or otherwise become or be responsible in any manner
(whether by agreement to purchase any obligations, stock, assets, goods or
services, or to supply or loan or any portion thereof any funds, assets, goods
or services, or otherwise) with respect to the obligation of any other Person
or
entity, except: (i) by the endorsement of negotiable instruments for deposit
or
collection in the ordinary course of business, issuance of letters of credit
or
similar instruments or documents in the ordinary course of business; (ii) as
otherwise permitted by this Agreement; and (iii) DBT may issue a letter of
credit for the benefit of the City of Dubuque for the account of the Borrower
in
an aggregate amount to be drawn not exceeding $500,000, which letter of credit
will secure the Borrower’s obligations to the City of Dubuque under the CDBG
Economic Development Loan Program (as described on Schedule
7.5(a)).
7.6. Investments
and Loans. Neither the Borrower nor any Subsidiary shall make any
loan, advance, extension of credit or capital contribution to, or purchase
or
otherwise acquire for a consideration, evidences of Indebtedness, capital stock
or other securities of any Person, except that the Borrower and any Subsidiary
may:
(a) purchase
or otherwise acquire and own short-term money market items (specifically
including but not limited to preferred stock mutual funds);
(b) invest,
by way of purchase of securities or capital contributions, in the Subsidiary
Banks or any other bank or banks, and upon the Borrower’s purchase or other
acquisition of fifty percent (50%) or more of the stock of any bank, such bank
shall thereupon become a “Subsidiary Bank” for all purposes under this
Agreement;
(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 that in no event shall the Borrower’s aggregate equity investment
in CFC exceed 10% of its Tangible Net Worth;
(d) invest,
by way of purchase of securities or capital contributions, in other Persons
so
long as before and giving effect thereto no Default shall have occurred and
be
continuing and the investment is in compliance with the Bank Holding Company
Act
of 1956, as amended, and the existing regulations of the Board of Governors
of
the Federal Reserve System relating to bank holding companies;
(e) make
any
investment permitted by applicable governmental laws and
regulations;
(f) with
respect to DBT, issue a letter of credit for the benefit of the city of Dubuque
for the purposes permitted in Section 7.5(d) hereof; and
(g) in
the
case of any Trust Issuer, purchase any Trust Indebtedness and, in the case
of
the Borrower, purchase any common securities of any Trust Issuer and issue
any
Trust Guarantees (in each case, in accordance with the other applicable
provisions of this Agreement).
Nothing
in this Section 7.6 shall prohibit the Borrower or any Subsidiary Bank
from making loans, advances, or other extensions of credit in the ordinary
course of banking upon substantially the same terms as heretofore extended
by
them in such business or upon such terms as may at the time be customary in
the
banking business.
7.7. Capital
Structure and Dividends. 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
if
at the time of such purchase or redemption a Default has occurred and is
continuing or would result therefrom. Neither the Borrower nor any
Subsidiary shall declare or pay any dividend (other than dividends payable
in
its own common stock or dividends paid to the Borrower) or make any other
distribution in respect of such shares or interest other than to the Borrower,
except that (i) the Borrower may declare or pay cash dividends to holders of
the
stock of the Borrower in any fiscal year in an amount not to exceed 50% of
the
Borrower’s consolidated net income for the immediately preceding fiscal year;
(ii) Arizona Bank & Trust may pay the same dividend per share that it pays
the Borrower to its minority shareholders; and (iii) a Trust Issuer may pay
distributions on its Trust Preferred Securities and dividends on its common
securities in accordance with their terms; provided, that with respect to
all of the foregoing, no Default exists as of the date of such declaration
or
payment of such dividends or distributions or would result
therefrom. Except as expressly provided herein, the Borrower shall
continue to own, directly or indirectly, the same (or greater) percentage of
the
stock and partnership, joint venture, or other equity interest in each
Subsidiary that it held on the date of this Agreement, and no Subsidiary shall
issue any additional stock or partnership, joint venture or other equity
interests, options or warrants in respect thereof, or securities convertible
into such securities or interests, other than to the Borrower.
7.8. Maintenance
Of Properties. The Borrower and each Subsidiary shall maintain,
or cause to be maintained, in good repair, working order and condition, all
their properties (whether owned or held under lease), and from time to time
make
or cause to be made all needed and appropriate repairs, renewals, replacements,
additions, and improvements thereto, so that the business carried on in
connection therewith may be properly and advantageously conducted at all
times.
7.9. Insurance. The
Borrower and each Subsidiary shall maintain insurance in responsible companies
in such amounts and against such risks as is required by law and such other
insurance, in such amount and against such hazards and liabilities, as is
customarily maintained by bank holding companies and banks similarly
situated. Each Subsidiary Bank shall have deposits insured by the
FDIC.
7.10. Use
of
Proceeds.
(a) General. The
proceeds of the Loans shall be used by the Borrower to pay off existing
Indebtedness on the date of this Agreement to Northern Trust and ▇▇▇▇▇▇ Trust
and Savings Bank, for general corporate purposes and to provide funding for
its
Subsidiaries. Neither the Borrower nor any Subsidiary shall use or
permit any proceeds of the Loans to be used, either directly or indirectly,
for
the purpose, whether immediate, incidental or ultimate, of “purchasing or
carrying any margin stock” within the meaning of Regulations U or X of the Board
of Governors of the Federal Reserve System, as amended from time to
time. If requested by the Agent or any Bank, the Borrower and each
Subsidiary will furnish to the Agent or such Bank a statement in conformity
with
the requirements of Federal Reserve Form U-1. No part of the proceeds
of the Loans will be used for any purpose which violates or is inconsistent
with
the provisions of Regulation U or X of the Board of Governors.
(b) Tender
Offers and Going Private. Neither the Borrower nor any Subsidiary
shall use (or permit to be used) any proceeds of the Loans to acquire any
security in any transaction which is subject to Section 13 or 14 of the
Securities Exchange Act of 1934, as amended, or any regulations or rulings
thereunder.
7.11.
Well
Capitalized. Each Subsidiary Bank shall at all times be at least
“well capitalized” as defined in the Federal Deposit Insurance Corporation
Improvement Act of 1991 and any regulations issued thereunder, as such statute
or regulation may be amended or supplemented from time to time.
7.12. Compliance
with Law. The Borrower and each Subsidiary shall be in compliance
with all laws and regulations (whether federal, state or local and whether
statutory, administrative, judicial or otherwise) and with every lawful
governmental order or similar actions (whether administrative or judicial),
specifically including but not limited to all requirements of the Bank Holding
Company Act of 1956, as amended, and with the existing regulations of the Board
of Governors of the Federal Reserve System relating to bank holding companies,
except where the failure to be in such compliance would not have a material
adverse impact on the consolidated assets, condition or prospects of the
Borrower .
7.13. Obligations
Pertaining to Trust Preferred Securities and Trust
Indebtedness. The Borrower shall not, and shall not permit any
Trust Issuer to, purchase, accelerate the maturity date of, prepay or redeem
any
Trust Preferred Securities or any Trust Indebtedness, except that, the Borrower
may prepay Trust Indebtedness and a Trust Issuer may redeem the related Trust
Preferred Securities in accordance with their terms; provided, that no
Default exists as of the date of such prepayment or redemption or would result
therefrom. The Borrower shall continue to own all of the common
securities of a Trust Issuer while the related Trust Preferred Securities,
Trust
Guarantee and Trust Indebtedness are outstanding. A Trust Issuer may
redeem its common securities after or concurrent with the payment in full of
its
Trust Preferred Securities and the related Trust Indebtedness and Trust
Guarantee.
SECTION
8. EVENTS
OF
DEFAULT
8.1. Events
of Default. One or more of the following events shall constitute
an event of default hereunder and under the Notes (each, an “Event of
Default”):
(a) failure
to pay, when and as due, any principal, interest or other amounts payable
hereunder or under any Note or the letter agreement referred to in Section
2.2 hereof;
(b) any
default, event of default, or similar event shall occur or continue under any
other instrument, document, note, agreement, or guaranty delivered to the Agent
or any Bank in connection with this Agreement (including, without limitation,
under any other Loan Document), or any such instrument, document, note,
agreement, or guaranty shall not be, or shall cease to be, enforceable in
accordance with its terms; or
(c) there
shall occur any default or event of default, or any event or condition that
might become such with notice or the passage of time or both, or any similar
event, or any event that requires the prepayment of Indebtedness or the
acceleration of the maturity thereof, under the terms of any evidence of
Indebtedness or other agreement issued or assumed or entered into by the
Borrower, any Subsidiary or any Guarantor, or under the terms of any indenture,
agreement, or instrument under which any such evidence of Indebtedness or other
agreement is issued, assumed, secured, or guaranteed, and such event shall
continue beyond any applicable period of grace; or
(d) any
representation, warranty, schedule, certificate, financial statement, report,
notice, or other writing furnished by or on behalf of the Borrower, any
Subsidiary or any Guarantor to the Agent or any Bank is false or misleading
in
any material respect on the date as of which the facts therein set forth are
stated or certified; or
(e) any
guaranty of or pledge of collateral security for the Loans shall be repudiated
or become unenforceable or incapable of performance; or
(f) the
Borrower or any Subsidiary shall fail to comply with Section 7.1 or
7.4 hereof; or failure to comply with or perform any agreement
or
covenant of the Borrower or any Subsidiary contained herein, which failure
does
not otherwise constitute an Event of Default, and such failure shall continue
unremedied for ten (10) days after notice thereof to the Borrower by the Agent
or any Bank; or
(g) any
Guarantor shall dissolve, liquidate, merge, consolidate, or cease to be in
existence for any reason except as permitted under Section 7.1 hereof;
or
(h) a
Change
in Control shall have occurred with respect to the Borrower or any Guarantor;
or
(i) any
proceeding (judicial or administrative) shall be commenced against the Borrower,
any Subsidiary or any Guarantor, or with respect to any assets of the Borrower,
any Subsidiary or any Guarantor which shall threaten to have a material and
adverse effect on the assets, condition or prospects of the Borrower, any
Subsidiary or any Guarantor; or final judgment(s) and/or settlement(s) in an
aggregate amount in excess of FIVE MILLION UNITED STATES DOLLARS ($5,000,000)
in
excess of insurance for which the insurer has confirmed coverage in writing,
a
copy of which writing has been furnished to Bank, shall be entered or agreed
to
in any suit or action commenced against the Borrower, any Subsidiary or any
Guarantor; or
(j) the
Borrower, any Subsidiary or any Guarantor shall grant or any Person (other
than
the Agent for the benefit of the Banks) shall obtain a security interest in
any
assets of the Borrower, any Subsidiary or any Guarantor other than as permitted
under Section 7.5(b) hereof; the Borrower, any Subsidiary or any
Guarantor or any other person shall perfect (or attempt to perfect) such a
security interest; or any notice of a federal tax lien against the Borrower,
any
Subsidiary or any Guarantor shall be filed with any public recorder;
or
(k) the
FDIC
or other regulatory entity shall issue or agree to enter into a letter
agreement, memorandum of understanding, or a cease and desist order with or
against the Borrower or any Subsidiary; or the FDIC or other regulatory entity
shall issue or enter into an agreement, order, or take any similar action with
or against the Borrower or any Subsidiary materially adverse to the business
or
operation of the Borrower or any Subsidiary; or
(l) an
event
or condition specified in Section 6.12(b) shall occur or exist with
respect to any Plan or Multiemployer Plan, and if as a result of such event
or
condition, together with all other such events or conditions, the Borrower
or
any ERISA Affiliate shall incur, or, in the opinion of the Majority Banks,
shall
be reasonably likely to incur, a liability to a Plan, a Multiemployer Plan
or
the PBGC (or any combination of the foregoing) which is, in the determination
of
the Majority Banks, material in relation to the consolidated financial
condition, business, operations or prospects taken as a whole of the Borrower
and its Subsidiaries; or
(m) any
bankruptcy, insolvency, reorganization, arrangement, readjustment, liquidation,
dissolution, or similar proceeding, domestic or foreign, is instituted by or
against the Borrower, any Subsidiary or any Guarantor; or the Borrower, any
Subsidiary or any Guarantor shall take any steps toward, or to authorize, such
a
proceeding; or
(n) the
Borrower, any Subsidiary or any Guarantor shall become insolvent, generally
shall fail or be unable to pay its debts as they mature, shall admit in writing
its inability to pay its debts as they mature, shall make a general assignment
for the benefit of its creditors, shall enter into any composition or similar
agreement, or shall suspend the transaction of all or a substantial portion
of
its usual business.
8.2. Remedies. Upon
the occurrence of any Event of Default set forth in subsections (a)
through (l) of Section 8.1 and during the continuance thereof the
Agent, on request of the Majority Banks, shall declare the Commitments to be
terminated and/or declare the Loans and any other amounts payable hereunder
and
under the Notes to the Agent and the Banks to be immediately due and payable,
whereupon the Commitments shall be forthwith terminated and/or the Loans and
any
other amounts payable hereunder and under the Notes shall forthwith become
due
and payable. Upon the occurrence of any Event of Default set forth in
subsections (m) through (n) of Section 8.1, the Commitments
shall be immediately and automatically terminated and the Loans and any other
amounts owed to the Agent and the Banks hereunder and under the Notes shall
be
immediately and automatically due and payable without action of any kind on
the
part of Agent or any Bank. The Borrower expressly waives diligence, presentment,
demand, notice, or protest of any kind in connection herewith.
SECTION
9. DEFINITIONS
AND ACCOUNTING
9.1. Defined
Terms. As used herein, the following terms shall have the
following meanings (terms defined in this Section 9.1 or in other
provisions of this Agreement in the singular to have correlative meanings when
used in the plural and vice versa):
“Agreement”
means this Amended and Restated Credit Agreement, as amended, modified, or
supplemented from time to time.
“Applicable
Lending Office” shall mean, for each Bank and for each type of Loan, the
lending office of such Bank designated for such type of Loan on Schedule
1 hereto or such other office of such Bank as such Bank may from time to
time specify to the Agent and the Borrower as the office by which its Loans
of
such type are to be made and maintained.
“Authorized
Officer” shall mean, with respect to the giving of a notice of borrowing
pursuant to Section 1.2, each of the Persons named on Schedule 2
and any other Person identified in a notice from a Person who is then an
Authorized Officer to the Agent as being an “Authorized Officer.” Any
“Authorized Officer” shall cease to be such at any time that a Person who is an
Authorized Officer shall provide notice to the Agent that the named Authorized
Officer has ceased to be an Authorized Officer; provided, that the Agent
shall be fully protected in accepting and acting on borrowing notices or other
notices from any Person who is an Authorized Officer prior to actual receipt
of
notice of such cessation and such notices shall bind the Borrower.
“Business
Day” shall mean any day on which commercial banks are not authorized or
required by law to close in Chicago, Illinois, and, if such day relates to
a
Conversion, notice, payment, or other transaction in respect of a Eurodollar
Loan or the first or last day of an Interest Period, a day which is also a
day
on which dealings in Dollar deposits are carried out in the London interbank
market.
“Capital
Lease Obligations” shall mean, as to any Person, the obligations of such
Person which are required to be accounted for as capital leases on a balance
sheet of such Person under GAAP and, for purposes of this Agreement, the amount
of such obligations shall be the capitalized amount thereof determined in
accordance with GAAP.
“CFC”
shall mean Citizens Finance Co., an Iowa corporation and any successor
thereof.
“Change
in Control” shall mean, with respect to any Person, the acquisition by any
Person or two or more Persons acting in concert of beneficial ownership (within
the meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Securities Exchange Act of 1934 as amended) of 20% or more of the voting stock
of such Person.
“Code”
shall mean the Internal Revenue Code of 1986 as amended from time to
time.
“Commitment”
shall mean, as to each Bank, the obligation of such Bank to make Loans to the
Borrower under this Agreement in an aggregate amount not at any time exceeding
the amount set forth opposite the name of such Bank in the “Commitment” column
in Schedule 1 or, where the context so requires, the amount of such
obligation, as the same may be reduced from time to time pursuant to Section
1.3 or increased pursuant to Section
1.11. “Total Commitments” shall mean the
aggregate amount of the Commitments of all the Banks.
“Continue,”
“Continuation,” and “Continued” shall refer to the continuation
pursuant to Section 1.4 hereof of a Eurodollar Loan as a Eurodollar Loan
from one Interest Period to the next Interest Period.
“Convert,”
“Conversion” and “Converted” shall refer to a conversion pursuant
to Section 1.4 hereof of Loans of one type into Loans of another
type.
“Credit
Extension” shall mean the making of any Loan.
“DBT”
shall mean Dubuque Bank & Trust, an Iowa state bank, and any successor
thereof.
“Default”
shall mean an Event of Default or an event that with notice or lapse of time
or
both would become an Event of Default.
“Dollars”
and “$” shall mean lawful money of the United States of
America.
“Environmental
Laws” shall mean all federal, state, and local laws, including statutes,
regulations, ordinances, codes, rules, and other governmental restrictions
and
requirements, relating to the release or discharge of air pollutants, water
pollutants, or process waste water or otherwise relating to the environment
or
hazardous substances or the treatment, processing, storage, disposal, release,
transport, or other handling thereof, including, but not limited to, the federal
Solid Waste Disposal Act, the federal Clean Air Act, the federal Clean Water
Act, the federal Resource Conservation and Recovery Act, the federal Hazardous
Materials Transportation Act, the federal Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, the federal Toxic Substances Control
Act, regulations of the Nuclear Regulatory Agency, and regulations of any state
department of natural resources or state environmental protection agency, in
each case as now or at any time hereafter in effect.
“ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended
from
time to time.
“ERISA
Affiliate” shall mean any corporation or trade or business that is a member
of the same controlled group of corporations (within the meaning of Section
414(b) of the Code) as the Borrower or is under common control (within the
meaning of Section 414(c) of the Code) with the Borrower.
“Eurodollar
Loans” shall mean Loans the interest rates on which are determined on the
basis of rates referred to in the definition of “LIBOR Rate.”
“Event
of Default” shall have the meaning attributed thereto in Section 8
hereof.
“Existing
Credit Agreement” has the meaning specified in the
Recitals.
“FDIC”
shall mean the Federal Deposit Insurance Corporation and any successor
thereof.
“Fed
Funds Rate Loans” shall mean Loans the interest rates on which are
determined on the basis of rates referred to in the definition of “Fed Funds
Rate.”
“Fed
Funds Rate” shall mean the weighted average of the rates on overnight
federal funds transactions with members of the Federal Reserve System arranged
by federal funds brokers. The Fed Funds Rate shall be determined by
the Agent on the basis of reports by federal funds brokers to, and published
daily by, the Federal Reserve Bank of New York in the Composite Closing
Quotations for U.S. Government Securities. If such publication is
unavailable or the Fed Funds Rate is not set forth therein, the Fed Funds Rate
shall be determined on the basis of any other source reasonably selected by
the
Agent. The Fed Funds Rate applicable each day shall be the Fed Funds
Rate reported as applicable to federal funds transactions on that
date. In the case of Saturday, Sunday, or legal holiday, the Fed
Funds Rate shall be the rate applicable to federal funds transactions on the
immediately preceding day for which the Fed Funds Rate is reported.
“GAAP”
shall mean generally accepted accounting principles as in effect from time
to
time.
“Guarantee”
shall mean (a) a guarantee, an endorsement, a contingent agreement to purchase
or to furnish funds for the payment or maintenance of, or otherwise to be or
become contingently liable under or with respect to, the Indebtedness, other
obligations, net worth, working capital, or earnings of any Person, (b) a
guarantee of the payment of dividends or other distributions upon the stock
or
other equity interests of any Person, or (c) an agreement to purchase, sell,
or
lease (as lessee or lessor) property or services primarily for the purpose
of
enabling a debtor to make payment of such debtor’s obligations or to assure a
creditor against loss, including causing a bank or other financial institution
to issue a letter of credit or other similar instrument for the benefit of
another Person, but excluding endorsements for collection or deposit in the
ordinary course of business. The terms “Guarantee” and
“Guaranteed” shall have correlative meanings.
“Guarantor”
shall mean CFC.
“Guaranty
Agreement” means a guaranty agreement in the form of Exhibit D
attached hereto, to be executed by each Guarantor.
“Indebtedness”
shall mean, as to any Person: (a) obligations created, issued, or incurred
by
such Person in respect of deposits taken or for borrowed money (whether by
loan
or by the issuance and sale of certificates of deposit or debt securities or
the
sale of property to another Person subject to an understanding, contingent
or
otherwise, to repurchase such property from such Person); (b) obligations of
such Person to pay the deferred purchase or acquisition price of property or
services, other than trade accounts payable (other than for borrowed money)
arising in the ordinary course of business; (c) obligations of others secured
by
a Lien on the property of such Person, whether or not the respective obligations
so secured have been assumed by such Person; (d) obligations of such Person
in
respect of letters of credit or similar instruments issued or accepted by banks
and other financial institutions for the account of such Person; (e) Capital
Lease Obligations of such Person; and (f) Indebtedness of others Guaranteed
by
such Person.
“Interest
Period” shall mean, with respect to any Eurodollar Loan, each period
commencing on the date such Eurodollar Loan is made or Converted from a Prime
Rate Loan or a Fed Funds Rate Loan or the last day of the next preceding
Interest Period for such Eurodollar Loan and ending on the numerically
corresponding day in the first, second, or third calendar month thereafter,
as
the Borrower may select, except that each Interest Period which commences on
the
last Business Day of a calendar month (or on any day for which there is no
numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month;
provided, that each Interest Period which would otherwise end on a day
which is not a Business Day shall end on the next succeeding Business Day or,
if
such next succeeding Business Day falls in the next succeeding calendar month,
on the next preceding Business Day.
“Investment”
in any Person shall mean: (a) the acquisition of capital stock, bonds, notes,
debentures, partnership, or other ownership interests, other securities, or
Indebtedness of such Person; (b) any deposit with, or loan or other extension
of
credit to, such Person; (c) any Guarantee of Indebtedness or other liabilities
of such Person; and (d) any amount committed to be lent to such
Person.
“LIBOR
Base Rate” shall mean, with respect to any Eurodollar Loans to be made or
Converted from a Prime Rate Loan or a Fed Funds Rate Loan on any day for any
Interest Period therefor, the rate per annum (rounded upwards, if necessary,
to
the nearest 1/16 of 1%) quoted by the Reference Bank at approximately 11:00
a.m.
London time on the date two Business Days prior to the first day of such
Interest Period for the offering by the Reference Bank to leading banks in
the
London interbank market of Dollar deposits having a term comparable to such
Interest Period and in an amount comparable to the principal amount of the
Eurodollar Loans to be made or Converted on such day for such Interest
Period. If the Reference Bank does not timely furnish such
information for determination of any LIBOR Base Rate, the “LIBOR Base Rate”
shall mean with respect to any Eurodollar Loans for any Interest Period
therefor, the rate per annum (rounded upwards, if necessary, to the nearest
1/16
of 1%) which is the British Bankers Association’s interest settlement rate
published on the Dow ▇▇▇▇▇ Telerate Screen at approximately 11:00 a.m. London
time on the date two Business Days prior to the first day of such Interest
Period as the rate in the London interbank market for Dollar deposits having
a
term comparable to such Interest Period and in an amount comparable to the
principal amount of the Eurodollar Loans to be outstanding for such Interest
Period.
“LIBOR
Rate” shall mean, for any Eurodollar Loan for any Interest Period therefor,
a rate per annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
determined by the Agent to be equal to (x) the LIBOR Base Rate for such Loan
for
such Interest Period divided by (y) the remainder of 1 minus the Reserve
Requirement for such Loan for such Interest Period.
“Lien”
shall mean, with respect to any property of any Person, any mortgage, lien,
pledge, charge, security interest, or encumbrance of any kind in respect
thereof, including the interest of a vendor or lessor under any conditional
sale, security lease, or other title retention agreement with respect to any
property purchased, leased, or otherwise held by such Person.
“Loan”
shall mean each portion of any Revolving Credit Loan made by a Bank pursuant
to
Section 1.2 that is subject to a particular interest rate election (and,
in the case of Eurodollar Loans, a particular Interest Period) and any portion
of any thereof that the Borrower has elected to be subject to a particular
interest rate election (and, in the case of Eurodollar Loans, a particular
Interest Period) under Section 1.4.
“Loan
Documents” shall mean collectively this Agreement, the Notes, the Guaranty
Agreements, the letter agreement referred to in Section 2.2 of this
Agreement and any and all other documents delivered in connection herewith
and
therewith.
“Majority
Banks” shall mean at any time Banks holding at least 51% of the unpaid
principal amount of the Loans; provided, that if no Loan is then
outstanding, “Majority Banks” shall mean Banks having at least 51% of the Total
Commitments.
“Margin
Stock” shall mean margin stock within the meaning of Regulations U and
X.
“Multiemployer
Plan” shall mean a multiemployer plan defined as such in Section 3(37) of
ERISA to which contributions have been made by the Borrower or any ERISA
Affiliate and which is covered by Title IV of ERISA.
“non-performing
loans” shall have the meaning attributed thereto in Section
7.4(g).
“Northern
Trust” shall mean The Northern Trust Company, an Illinois state
bank.
“Notes”
shall mean the promissory notes provided for by Section 1.8
hereof.
“PBGC”
shall mean the Pension Benefit Guaranty Corporation or any entity succeeding
to
any or all of its functions under ERISA.
“Percentage”
shall mean, as to any Bank at any time, the percentage equivalent (expressed
as
a decimal, rounded to the ninth decimal place) at such time of such Bank’s
Commitment divided by the Total Commitments.
“Pension
Plan” means any Plan which is a “defined benefit plan” within the meaning of
Section 3(35) of ERISA.
“Person”
shall mean any individual, corporation, company, limited liability company,
voluntary association, partnership, trust, estate, unincorporated organization,
or government (or any agency, instrumentality, or political subdivision
thereof).
“Plan”
shall mean an “employee pension benefit plan” within the meaning of Section 3(2)
of ERISA other than a Multiemployer Plan.
“Post-Default
Rate” shall mean a rate per annum equal to 2% above the Prime Rate as in
effect from time to time.
“Prime
Rate” shall mean on any day the prime rate established by Northern Trust and
in effect on such day. Each change in the Prime Rate shall be
effective from the date of the announcement by Northern Trust of a change in
its
prime rate. Neither the Prime Rate nor the prime rate of Northern
Trust is intended to constitute the lowest rate of interest charged by Northern
Trust or any Bank.
“Prime
Rate Loans” shall mean Loans the interest rates on which are determined on
the basis of the Prime Rate.
“Regulations
D, U, and X” shall mean, respectively, Regulations D, U, and X of the Board
of Governors of the Federal Reserve System (or any successor), as the same
may
be amended or supplemented from time to time.
“Reference
Bank” shall mean Northern Trust.
“Regulatory
Change” shall mean any change after the date of this Agreement in federal,
state, or foreign law or regulations (including, without limitation, Regulation
D) or the adoption, modification, or making after such date of any
interpretation, guideline, directive, or request applying to a Bank (whether
or
not having the force of law) by any court or governmental, regulatory, or
monetary authority.
“Reserve
Requirement” shall mean, (a) for any Interest Period for any Eurodollar
Loan, the sum (expressed as a decimal) of the average maximum rate at which
reserves (including any marginal, supplemental, or emergency reserves) are
required to be maintained during such Interest Period under Regulation D by
member banks of the Federal Reserve System against “Eurocurrency liabilities”
and (b) for any Fed Funds Rate Loan or Eurodollar Loan, any other reserves
required to be maintained by such member banks by reason of any Regulatory
Change against (i) any category of liabilities that includes deposits by
reference to which the Fed Funds Rate or the LIBOR Base Rate is to be determined
or (ii) any category of extensions of credit or other assets that includes
a Fed
Funds Rate Loan or a Eurodollar Loan.
“Revolving
Credit Commitment Termination Date” shall mean April 28, 2008, as such date
may be extended pursuant to Section 1.10.
“Revolving
Credit Loan” shall mean Loans .made on or before the Revolving Credit
Commitment Termination Date pursuant to Section 1.2.
“Subsidiary”
shall mean any corporation, partnership, joint venture, trust, or other legal
entity of which the Borrower owns directly or indirectly fifty percent (50%)
or
more of the outstanding voting stock or interest, or of which the Borrower
has
effective control, by contract or otherwise. The term Subsidiary
includes each Subsidiary Bank unless stated otherwise explicitly.
“Subsidiary
Bank” shall mean each Subsidiary which is a bank or a thrift institution,
including, without limitation, DBT, Galena State Bank and Trust Company, First
Community Bank, Riverside Community Bank, Wisconsin Community Bank, Arizona
Bank
& Trust and New Mexico Bank & Trust.
“Tangible
Net Worth” shall mean at any date the total shareholders’ equity in the
Borrower at such date (including all classes of capital stock, capital surplus,
additional paid-in capital, retained earnings, contingencies, and capital
reserves), minus the cost of common stock reacquired by the Borrower and
other capital accounts of the Borrower at such date, minus goodwill,
patents, trademarks, service marks, trade names, copyrights, and all intangible
assets (including without limitation “core-deposit intangibles” and
unidentifiable intangibles resulting from acquisitions) and all items that
are
treated as intangible assets under GAAP or that otherwise fit within the
definition of “intangible assets” in the instructions for the call report of the
FDIC.
“Tier
1 Capital” means, at any time, for any Person, Tier 1 Capital, as defined
from time to time by the Board of Governors of the Federal Reserve System or
other applicable governmental authority.
“Total
Credits” shall mean at any time the sum of the aggregate outstanding
principal amount of Loans.
“Trust
Guarantee” shall mean any guarantee of the Borrower of the Trust Preferred
Securities, which guarantee is subordinate and junior in right of payment to
the
prior payment of the obligations of the Borrower hereunder and under the Notes
on terms satisfactory to the Agent.
“Trust
Indebtedness” shall mean Indebtedness of the Borrower payable to the Trust
Issuer or its transferees incurred as a result of the Trust Issuer’s investment
into the Borrower of proceeds derived from the issuance of the Trust Preferred
Securities (a) which is due not earlier than the date thirty (30) years after
its issuance, (b) which may not be redeemed earlier than five (5) years after
issuance except upon certain tax, capital treatment or investment company events
as may be provided in the indenture governing such Trust Indebtedness and (c)
the payment of which is subordinate and junior in right of payment to the prior
payment of the obligations of the Borrower hereunder and under the Notes on
terms satisfactory to the Agent.
“Trust
Issuer” shall mean a Subsidiary in which the Borrower owns 100% of the
common stock and which qualifies as a Delaware or Connecticut statutory business
trust.
“Trust
Preferred Securities” shall mean preferred securities (or other type of
similar securities representing undivided beneficial interests in the assets
of
the Trust Issuer) issued in a private placement transaction by the Trust Issuer,
(a) the proceeds of which are used to purchase an equivalent principal amount
of
Trust Indebtedness issued by the Borrower, (b) which are subject to mandatory
redemption not earlier than the date 30 years after issuance, (c) which may
not
be optionally redeemed earlier than 5 years after issuance except upon certain
tax, capital treatment or investment company events as may be provided in the
trust agreement governing such Trust Preferred Securities and (d) which
qualifies as Tier 1 Capital of the Borrower under applicable regulations of
the
Board of Governors of the Federal Reserve System.
“type”
means a type of Loan, i.e. either a Eurodollar Loan, a Federal Funds Rate Loan
or a Prime Rate Loan.
9.2. Accounting. Unless
otherwise specified herein, all accounting terms used herein shall be
interpreted, all determinations with respect to accounting matters hereunder
shall be made, and all financial statements and certificates and reports as
to
financial matters required to be furnished to the Agent or the Banks hereunder
shall be prepared in accordance with GAAP applied on a basis consistent with
the
audited consolidated financial statements of the Borrower referred to in
Section 6.3(a) hereof (except for changes concurred with by the Majority
Banks).
SECTION
10. THE
AGENT
10.1. Appointment,
Powers and Immunities. Each Bank hereby irrevocably appoints and
authorizes the Agent to act as its agent hereunder, under the Notes and the
other Loan Documents with such powers as are specifically delegated to the
Agent
by the terms of the Loan Documents, together with such other powers as are
reasonably incidental thereto. The Agent: (a) shall not have any
duties or responsibilities except those expressly set forth in this Agreement,
and shall not by reason of this Agreement be a trustee for any Bank; (b) shall
not be responsible to the Banks for any recitals, statements, representations
or
warranties contained in this Agreement, the Notes or the other Loan Documents,
or in any certificate or other documents referred to or provided for in, or
received by any of them under, this Agreement, the Notes or the other Loan
Documents, or for the value, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement, any Note or the other Loan
Documents or any other document referred to or provided for herein or for any
failure by the Borrower or any other Person to perform any of its obligations
hereunder or thereunder; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder; and (d) shall not be responsible
for any action taken or omitted to be taken by it hereunder or under any other
document or instrument referred to or provided for herein or in connection
herewith, except for its own gross negligence or willful
misconduct. The Agent may employ agents and attorneys-in-fact and
shall not be responsible for the negligence or misconduct of any such agents
or
attorneys-in-fact selected by it in good faith. The Agent may deem
and treat the payee of any Note as the holder thereof for all purposes hereof
unless and until a written notice of the assignment or transfer thereof shall
have been filed with the Agent.
10.2. Reliance
by Agent. The Agent shall be entitled to rely upon any
certification, notice or other communication (including any thereof by telephone
or telecopy) believed by it to he genuine and correct and to have been signed
or
sent by or on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other experts selected
by the Agent. As to any matters not expressly provided for by this
Agreement, the Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder in accordance with instructions signed by
the
Majority Banks, and such instructions of the Majority Banks and any action
taken
or failure to act pursuant thereto shall be binding on all of the
Banks.
10.3. Defaults. The
Agent shall not be deemed to have knowledge or notice of the occurrence of
a
Default unless the Agent has received notice from the Borrower specifying such
Default and stating that such notice is a “Notice of Default.” In the event that
the Agent receives such a notice of the occurrence of a Default, the Agent
shall
give prompt notice thereof to the Banks. The Agent shall (subject to
Section 10.1 and Section 10.7 hereof) take such action with
respect to such Default as shall be directed by the Majority Banks,
provided that, unless and until the Agent shall have received such
directions, the Agent may (but shall not be obligated to) take such action,
or
refrain from taking such action, with respect to such Default as it shall deem
advisable in the best interest of the Banks.
10.4. Rights
as a Bank. With respect to its Commitment and its Loans, Northern
Trust in its capacity as a Bank hereunder shall have the same rights and powers
hereunder as any other Bank and may exercise the same as though it were not
acting as the Agent, and the term “Bank” or “Banks” shall, unless the context
otherwise indicates, include Northern Trust in its individual
capacity. Northern Trust and its affiliates may (without having to
account therefor to any Bank accept deposits from, lend money to and generally
engage in any kind of banking, trust or other business with the Borrower (and
any of its affiliates) as if it were not acting as the Agent, Northern Trust
and
its affiliates may accept fees (including the agency fee contemplated b
Section 2.2) and other consideration from the Borrower for services in
connection with this Agreement or otherwise without having to account for the
same to the Banks.
10.5. Indemnification. The
Banks agree to indemnify the Agent (to the extent not reimbursed under
Section 11.3 hereof, but without limiting the obligations of the Borrower
under said Section 11.3), ratably in accordance with their respective
Percentages, for any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind and nature whatsoever which may be imposed on, incurred by or asserted
against the Agent in any way relating to or arising out of this Agreement,
the
Notes or the other Loan Documents or any other documents contemplated by or
referred to herein or the transactions contemplated hereby (including, without
limitation, the costs and expenses which the Borrower is obligated to pay under
Section 11.3 hereof but excluding, unless a Default has occurred and is
continuing, normal administrative costs and expenses incident to the performance
of its agency duties hereunder) or the enforcement of any of the terms hereof
or
any such other documents, provided that no Bank shall be liable for any
of the foregoing to the extent they arise from the gross negligence or willful
misconduct of the Agent.
10.6. Non-Reliance
on Agent and other Banks. Each Bank agrees that it has,
independently and without reliance on the Agent or any other Bank, and based
on
such documents and information as it has deemed appropriate, made its own credit
analysis of the Borrower and its Subsidiaries and decision to enter into this
Agreement and accept its Note and that it will, independently and without
reliance upon the Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own
analysis and decisions in taking or not taking action under this Agreement
and
its Note. The Agent shall not be required to keep itself informed as
to the performance or observance by the Borrower of this Agreement or any other
document referred to or provided for herein or to inspect the properties or
books of the Borrower or any of its Subsidiaries. Except for notices,
reports and other documents and information expressly required to be furnished
to the Banks by the Agent hereunder, the Agent shall not have any duty or
responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of the Borrower or
any
of its Subsidiaries (or any of their affiliates) which may come into the
possession of the Agent or any of its affiliates.
10.7. Failure
to Act. Except for action expressly required of the Agent
hereunder, the Agent shall in all cases be fully justified in failing or
refusing to act hereunder unless it shall receive further assurances to its
satisfaction from the Banks of their indemnification obligations under
Section 10.5 hereof against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such
action.
10.8. Resignation
of Agent. Subject to the appointment and acceptance of a
successor Agent as provided below, the Agent may resign at any time by giving
forty-five (45) days’ notice thereof to the Agent, the Banks and the
Borrower. Upon any such resignation, the Majority Banks shall have
the right to appoint a successor to the resigning Agent; provided, that
such successor is satisfactory to the Agent in its discretion. If no
successor shall have been so appointed by the Majority Banks and shall have
accepted such appointment within forty-five (45) days after the Agent’s giving
of notice of resignation, then the resigning Agent may, on behalf of the Banks,
appoint a successor Agent, which shall be a bank which has an office in Chicago,
Illinois and which has capital, surplus and undivided profits of at least
$250,000,000. Upon the acceptance of any appointment as the Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed
to
and become vested with all the rights, powers, privileges and duties of the
resigning Agent, and the resigning Agent shall be discharged from its duties
and
obligations hereunder. After the resigning Agent’s resignation
hereunder, the provisions of this Section 10 shall continue in effect for
its benefit in respect of any actions taken or omitted to be taken by it while
it was acting as the Agent.
SECTION
11. MISCELLANEOUS
11.1. Waiver. No
failure on the part of the Agent or any Bank to exercise, no delay in
exercising, and no course of dealing with respect to, any right, power or
privilege under this Agreement, any Note or any other Loan Document shall
operate as a waiver thereof, nor shall any single or partial exercise thereof
preclude any other or further exercise thereof or the exercise of any other
right, power or privilege. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
11.2. Notices. Except
as otherwise provided in this Agreement, all notices and other communications
provided for herein shall be given or made in writing and telecopied, mailed
or
delivered to the notice address of the intended recipient set forth on the
signature pages hereof, or as to any party, at such other address as shall
be
designated by such party in a notice to each other party. Except as
otherwise provided in this Agreement, all such communications shall be deemed
to
have been duly given when properly transmitted by telecopier or personally
delivered or, in the case of a mailed notice, upon receipt, in each case given
or addressed as aforesaid.
11.3. Expenses,
Etc. The Borrower agrees to pay or reimburse each of the Banks
and the Agent for: (a) all reasonable out-of-pocket costs and expenses of the
Agent (including, without limitation, the reasonable fees and expenses of Mayer,
Brown, ▇▇▇▇ & Maw LLP, special counsel to the Agent) in connection with (i)
the negotiation, preparation, execution and delivery of this Agreement, the
Notes and the other Loan Documents, and (ii) any amendment, modification or
waiver of any of the terms of this Agreement, any of the Notes or the other
Loan
Documents; (b) all reasonable costs and expenses of the Banks and the Agent
(including reasonable counsels’ fees (which counsel may be employees of the
Agent or the Banks)) in connection with any Default and any enforcement or
collection proceedings resulting therefrom; and (c) all transfer, stamp,
documentary or other similar taxes, assessments or charges levied by any
governmental or revenue authority in respect of this Agreement, the Notes or
any
other Loan Document or any other document referred to herein or
therein.
11.4. Amendments,
Etc. Except as otherwise expressly provided in this Agreement,
any provision of this Agreement may be waived, amended or modified only by
an
instrument in writing signed by the Borrower, the Agent and the Majority Banks;
provided that no amendment, modification or waiver shall, unless by an
instrument signed by the Agent and all of the Banks: (a) increase or extend
the
term of the Commitments, except as provided in Section 1.10, or extend
the Revolving Credit Commitment Termination Date, (b) extend any date fixed
for
the payment of any principal of or interest on any Loan or any fee, (c) reduce
the amount of any payment of principal thereof or the rate at which interest
is
payable thereon or any fee is payable hereunder, (d) alter the terms of this
Section 11.4 or of Section 11.6(a), (e) amend the definition of
the term “Majority Banks” or (f) waive any of the conditions precedent set forth
in Section 5 hereof.
11.5. Successors
and Assigns. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and permitted
assigns.
11.6. Assignments
and Participations.
(a) The
Borrower may not assign its rights or obligations hereunder or under the Notes
without the prior consent of all of the Banks and the Agent.
(b) No
Bank
may assign any of its Loans, its Note or its Commitment without the prior
consent of the Borrower and the Agent; provided, that (i) any such
assignment shall be in the amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof; (ii) no Bank may assign in the aggregate more
than
49% of the greatest amount of its Commitment after the date hereof, (iii) the
Bank making such assignment shall pay a processing fee to the Agent in the
amount of $2,000, (iv) such assigning Bank shall also simultaneously assign
to
such assignee Bank the same proportion of each of its Loans then outstanding
(together with the same proportion of its Note then outstanding) and (v) no
consent of the Borrower shall be required in respect of any assignment (A)
at
any time that an Event of Default shall have occurred and be continuing or
(B)
to any Bank or affiliate of any Bank. In addition, any Bank may at
any time, without the consent of the Borrower or the Agent, assign all or any
portion of its rights under this Agreement and its Note to a Federal Reserve
Bank; provided, that no such assignment to a Federal Reserve Bank shall
release the transferor Bank from its obligations hereunder. Upon
written notice to the Borrower and the Agent of an assignment permitted by
the
provisos of the preceding sentence (which notice shall identify the assignee
Bank, the amount of the assigning Bank’s Commitment and Loans assigned in detail
reasonably satisfactory to the Agent) and upon the effectiveness of any
assignment consented to by the Borrower and the Agent, the assignee shall have,
to the extent of such assignment (unless otherwise provided in such assignment
with the consent of the Borrower and the Agent), the obligations, rights and
benefits of a Bank hereunder holding the Commitment and Loans (or portions
thereof) assigned to it (in addition to the Commitment and Loans, if any,
theretofore held by such assignee) and the assigning Bank shall, to the extent
of such assignment, be released from the Commitment (or portions thereof) so
assigned.
(c) A
Bank
may sell or agree to sell to one or more other Persons a participation in all
or
any part of any Loan held by it or Loans made or to be made by it,
provided, however, so long as no Default has occurred and is
continuing, the prior consent of the Borrower shall be obtained, which consent
shall not be unreasonably withheld or delayed (provided, no consent of the
Borrower shall be required for any participation to an affiliate of any
Bank). A participant shall not have any rights or benefits under this
Agreement or any Note (the participant’s rights against such Bank in respect or
such participation to be those set forth in the agreement (the “Participation
Agreement”) executed by such Bank in favor of the
participant). All amounts payable by the Borrower to any Bank under
Section 4 hereof shall be determined as if such Bank had not sold or
agreed to sell any participations in such Loan and as if such Bank were funding
the portion of such Loan in which no participations have been
sold. In no event shall a Bank that sells a participation be
obligated to the participant under the Participation Agreement to take or
refrain from taking any action hereunder or under such Bank’s Note except that
such Bank may agree in the Participation Agreement that it will not, without
the
consent of the participant, agree to (i) the increase or extension of the term,
or the extension of the time or waiver of any requirement for the reduction
or
termination, of such Bank’s Commitment, (ii) the extension of any date fixed for
the payment of principal of or interest on the related Loan or Loans or any
fee
(if the participant is entitled to any part thereof), (iii) the reduction of
any
payment of principal thereof, or (iv) the reduction of the rate at which either
interest is payable thereon or (if the participant is entitled to any part
thereof) commitment fee is payable hereunder to a level below the rate at which
the participant is entitled to receive interest or a commitment fee (as the
case
may be) in respect of such participation.
(d) With
the
prior consent of the Borrower, which consent shall not be unreasonably withheld
or delayed, a Bank may furnish any non-public information concerning the
Borrower or any of its Subsidiaries in the possession of such Bank from time
to
time to actual or prospective assignees and participants (provided, no consent
of the Borrower shall be required for any assignment or participation to an
affiliate of any Bank); provided that such recipient shall agree in
writing (naming the Borrower as a third party beneficiary thereof) with such
Bank (on behalf of itself and each of its affiliates, directors, officers,
employees and representatives) that (A) the information so furnished will not
be
used by it except in connection with this Agreement and (B) it shall use
reasonable precautions, in accordance with its customary procedures for handling
confidential information and in accordance with safe and sound banking
practices, to keep such information confidential, provided that nothing
in such agreement shall limit the disclosure of such information (i) to the
extent required by statute, rule, regulation or judicial process, (ii) to its
counsel or to counsel for any of the Banks or the Agent, (iii) to bank
examiners, auditors or accountants or other professional advisors, (iv) to
the
Agent or any other Bank, (v) in connection with any litigation to which the
Agent or any one or more of the Banks is a party or (vi) to the extent such
information has become public (other than by its breach of such
agreement).
11.7. Survival. The
obligations of the Borrower under Sections 4.1, 4.5, 4.6
and 11.3 hereof shall survive the repayment of the Loans and the
termination of the Commitments.
11.8. Captions. The
table of contents and captions and Section headings appearing herein are
included solely for convenience of reference and are not intended to affect
the
interpretation of any provision of this Agreement.
11.9. Counterparts. This
Agreement may be executed in any number of counterparts, all of which taken
together shall constitute one and the same instrument, and any of the parties
hereto may execute this Agreement by signing one or more of such
counterparts.
11.10. Jurisdiction,
Service of Process.
(a) Any
suit,
action or proceeding against the Borrower with respect to this Agreement, the
Notes or the other Loan Documents or any judgment entered by any court in
respect of any thereof may be brought in the courts of the State of Illinois
located in ▇▇▇▇ County or in the U.S. District Court for the Northern District
of Illinois as the Agent or any Bank may elect, and the Borrower hereby submits
to the non-exclusive jurisdiction of each such court for the purpose of any
such
suit, action or proceeding. The Borrower consents to the service of
process upon it in any such suit, action or proceeding by regular first class
mail addressed to it at its address specified in Section
11.2. The foregoing shall not, however, limit the right of the
Agent or any Bank to serve process in any other manner permitted by law or
to
commence any suit, action or proceeding or to obtain execution of judgment
in
any appropriate jurisdiction. Without limiting the foregoing, the
Borrower further agrees that the Agent or any Bank may at their option submit
any dispute which may arise in connection with this Agreement or the Notes
to
any other court having jurisdiction over the Borrower or the Borrower’s
property.
(b) The
Borrower hereby irrevocably waives any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of
or
relating to this Agreement, the Notes or the other Loan Documents brought in
the
courts of the State of Illinois located in ▇▇▇▇ County or the U.S. District
Court for the Northern District of Illinois, and hereby further irrevocably
waives any claim that any such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum.
11.11. Set-off. The
Borrower agrees that in addition to any right of recoupment, set-off, banker’s
lien or counterclaim the Agent or any Bank may otherwise have, the Agent and
each Bank shall be entitled to offset deposits (including all account balances,
whether provisional or final and whether or not collected or available) and
other claims of the Borrower at any of the Agent’s or such Bank’s offices, in
Dollars or in any other currency, against any amount payable to the Agent or
such Bank hereunder which is not paid when due (regardless of whether such
deposits and other claims are then due).
11.12. Governing
Law. THIS AGREEMENT, THE NOTES AND THE OTHER LOAN DOCUMENTS SHALL
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAW OF THE STATE
OF ILLINOIS.
11.13. Waiver
of Jury Trial. THE BORROWER HEREBY IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY
LEGAL
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE NOTES OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
[SIGNATURE
PAGES FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written,
HEARTLAND
FINANCIAL USA, INC.
By: /s/
Name: ▇▇▇▇
▇.
▇▇▇▇▇▇▇
Title: EVP,
CFO,
COO
Address: ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇
▇▇▇▇▇-▇▇▇▇
Telecopier
No. (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇
▇. ▇▇▇▇▇▇▇,
Executive
Vice President
and
Chief
Financial Officer
Telephone
No. (▇▇▇)
▇▇▇-▇▇▇▇
THE
NORTHERN TRUST COMPANY,
as
Agent
By: /s/
Name: ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title: VP
Address: ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier
No. (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Vice
President
Telephone
No. (▇▇▇)
▇▇▇-▇▇▇▇
BANKS:
THE
NORTHERN TRUST COMPANY
By: /s/
Name: ▇▇▇▇
▇▇▇▇▇▇▇▇▇
Title: VP
Address: ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier
No. (▇▇▇)
▇▇▇-▇▇▇▇
Attention: ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
Vice
President
Telephone
No. (▇▇▇)
▇▇▇-▇▇▇▇
▇▇▇▇▇▇
TRUST AND SAVINGS BANK,
By: /s/
Name: ▇▇▇▇▇▇
▇.
▇▇▇▇▇▇
Title: Vice
President
Address: ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier
No. (312) 765
- 8382
Attention:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone
No. (312) 461
- 7112
▇▇▇▇▇
FARGO BANK, N.A.,
By: /s/
Name: Leighton
D.
Kor
Title: Vice
President
Address:
MAC N8200-098
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier
No. (515) 245
- 3314
Attention:
Leighton Kor
Telephone
No. (515) 245
- 3364
U.S.
BANK NATIONAL ASSOCIATION
By: /s/
Name: ▇▇▇▇
▇.
▇▇▇▇▇
Title: Assistant
Vice
President
Address:
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier
No. (319) 368
- 4229
Attention:
▇▇▇▇
▇. ▇▇▇▇▇
Telephone
No. (319) 368
- 4571
Schedule
1
INFORMATION
CONCERNING BANKS
|
Name
of Bank
|
Commitment
|
Applicable
Lending
Offices
|
|
The
Northern Trust Company
|
$20,000,000
|
For
all Loans:
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
▇▇▇▇▇▇
▇.▇.
|
$16,000,000
|
For
all Loans:
▇▇▇
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
|
|
▇▇▇▇▇
Fargo Bank, N.A.
|
$16,000,000
|
For
all Loans:
|
|
U.S.
Bank National Association
|
$
8,000,000
|
For
all Loans:
▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
|
|
Total
Commitments
|
$60,000,000
|
Schedule
2
AUTHORIZED
OFFICERS
[To
be
provided by the Borrower]
CHDB03
9125071.6 06-Jun-07
12:41 05009831
Schedule
6.8
LITIGATION
AND CONTINGENT LIABILITIES
[To
be
provided by the Borrower]
CHDB03
9125071.6 06-Jun-07
12:41 05009831
Schedule
6.14
SUBSIDIARIES
[To
be
provided by the Borrower]
|
Name
|
Jurisdiction
of Incorporation
|
Percentage
Ownership
|
CHDB03
9125071.6 06-Jun-07
12:41 05009831
Schedule
7.5(a)
INDEBTEDNESS
[To
be
provided by the Borrower]
CHDB03
9125071.6 06-Jun-07
12:41 05009831
Schedule
7.5(b)
LIENS
[To
be
provided by the Borrower]
CHDB03
9125071.6 06-Jun-07
12:41 05009831
EXHIBIT
A
REVOLVING
CREDIT NOTE
$_______________ Chicago,
Illinois
_____________,
2007
FOR
VALUE
RECEIVED, on or before the Revolving Credit Commitment Termination Date, as
defined in the Credit Agreement, hereafter referred to, HEARTLAND FINANCIAL
USA,
INC., a corporation organized under the laws of Delaware, promises to pay to
the
order of __________________________ (the “Bank”) at the office of The
Northern Trust Company, as agent, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
▇▇▇▇▇, the lesser of the principal sum of ________ Dollars ($_______), or the
amount outstanding as indorsed on the grid attached to this Note (or recorded
in
the Bank’s books and records, if the Bank is the holder hereof). Such
endorsement or recording by the Bank shall be rebuttably presumptive evidence
of
the principal balance due on this Note.
The
unpaid principal amount from time to time outstanding shall bear interest from
the date of this Note at the rates and payable on the dates set forth in the
Credit Agreement, hereafter referred to.
Payments
of both principal and interest are to be made in immediately available funds
in
lawful money of the United States of America.
This
Note
evidences indebtedness incurred under an Amended and Restated Credit Agreement
dated as of June 8, 2007 (and, if amended, all amendments thereto) (the
“Credit Agreement”) among the undersigned, certain banks and The Northern
Trust Company, as agent, to which Credit Agreement reference is hereby made
for
a statement of its terms and provisions, including those under which this Note
may be paid prior to its due date or have its due date accelerated.
The
undersigned agrees to pay or reimburse the Bank and any other holder hereof
for
all costs and expenses of preparing, seeking advice in regard to, enforcing,
and
preserving its rights under this Note or any document or instrument executed
in
connection herewith (including legal fees and reasonable time charges of
attorneys who may be employees of the Bank, whether in or out of court, in
original or appellate proceedings or in bankruptcy). The undersigned
irrevocably waives presentment, protest, demand and notice of any kind in
connection herewith.
This
Note
is made under and governed by the internal laws of the State of Illinois, and
shall be deemed to have been executed in the State of Illinois.
HEARTLAND
FINANCIAL USA, INC.
By:
Name:
Title:
CHDB03
9125071.6 06-Jun-07
12:41 05009831A-
EXHIBIT
B
FORM
OF
OPINION OF COUNSEL OF BORROWER
_______________,
2007
The
Northern Trust Company, as Agent
The
Banks
(as defined in the
Amended
and Restated Credit Agreement referred to
below),
and their respective successors and assigns
▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen/Ladies:
We
are
counsel for Heartland Financial USA, Inc. (the “Company”), and have
represented the Company in connection with its execution and delivery of an
Amended and Restated Credit Agreement dated as of June 8, 2007 (the “Credit
Agreement”) among the Company, the Banks party thereto and The Northern
Trust Company, as Agent, and providing for Loans in an aggregate principal
amount not exceeding $60,000,000 at any one time outstanding. All
capitalized terms used in this opinion and not otherwise defined herein shall
have the meanings attributed to them in the Credit Agreement.
In
so
acting, we, as counsel for the Company, have made such factual inquiries, and
we
have examined or caused to be examined such questions of law, as we have
considered necessary or appropriate for the purposes of this opinion and, upon
the basis of such inquiries and examination, advise you that, in our
opinion:
1. The
Company is a corporation duly incorporated, validly existing and in good
standing under the laws of the State of Delaware and has the necessary corporate
power to execute, deliver and perform the Credit Agreement and the Notes and
to
borrow under the Credit Agreement. The Company is duly qualified to
transact business in each jurisdiction where such qualification is necessary
in
view of the property owned or business conducted by the Company and where the
failure to so qualify would have a material adverse effect on the
Company. The Company is a bank holding company duly registered with
the Board of Governors of the Federal Reserve System under the Bank Holding
Company Act of 1956, as amended.
C1102122283263.8
2. The
execution, delivery and performance by the Company of the Credit Agreement
and
the Notes and the borrowings thereunder have been duly authorized by all
necessary corporate action, and do not and will not violate any provision of
law
or regulation, writ, order or judgment, or any provision of the Company’s
articles of incorporation or by-laws and do not and will not result in the
breach of, or constitute a default or require any consent under, or result
in
the creation of any Lien upon any of its properties, revenues or assets pursuant
to, any indenture or other agreement or instrument to which the Company or
any
Subsidiary is a party or by which the Company or any Subsidiary or its
properties may be bound.
3. The
Credit Agreement and the Notes have been duly executed and delivered on behalf
of the Company and constitute legal, valid and binding obligations of the
Company which are enforceable in accordance with their respective terms, except
as such enforceability may be limited by (a) bankruptcy, insolvency,
reorganization, moratorium or other similar laws of general applicability
affecting the enforcement of creditors’ rights and (b) the application of
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
4. No
authorizations, consents, approvals, licenses, filings or registrations from
or
with any governmental or regulatory authority or agency are required in
connection with the execution, delivery and performance by the Company of the
Credit Agreement and the Notes.
5. There
are
no legal or arbitral proceedings, and no proceedings by or before any
governmental or regulatory authority or agency, pending or threatened against
or
affecting the Company or any of its Subsidiaries, or any properties or rights
or
the Company or any of its Subsidiaries, which, if adversely determined, would
have a material adverse effect on the consolidated financial condition,
operations, business or prospects taken as a whole of the Company and its
Subsidiaries.
6. The
Company is in compliance in all material respects with all rules and regulations
of the Bank Holding Company Act, as amended, and with all existing regulations
of the Board of Governors of the Federal Reserve System relating to bank holding
companies.
7. The
Company is not an “investment company” or a company “controlled” by an
“investment company,” within the meaning of the Investment Company Act of 1940,
as amended.
8. The
Company is not under investigation by, or operating under any restrictions
(applicable specifically to the Company) imposed by, any regulatory
authority.
The
opinions set forth herein are intended solely for the benefit of the addressees
hereof in connection with the transactions contemplated herein and assignees
and
participants under the Credit Agreement and shall not be relied upon by any
other person or for any other purpose without our prior written
consent.
Very
truly yours,
CHDB03
9125071.6 06-Jun-07
12:41 05009831B-
EXHIBIT
C
FORM
OF
OPINION OF COUNSEL OF GUARANTOR
____________,
2007
The
Northern Trust Company, as Agent
The
Banks
(as defined in the
Amended
and Restated Credit Agreement referred to
below),
and their respective successors and assigns
▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Gentlemen/Ladies:
We
have
acted as counsel to Citizens Finance Co. (the “Guarantor”) and I am
delivering to you this opinion of counsel upon which you may rely, in connection
with a Guaranty dated as of June 8, 2007 (the “Guaranty”) of the
Guarantor in favor of The Northern Trust Company, as Agent covering the
liabilities of Heartland Financial USA, Inc. (the “Borrower”) to the
Agent and the Banks under that certain Amended and Restated Credit Agreement
dated as of June 8, 2007 (the “Credit Agreement”) among the Borrower, The
Northern Trust Company, as Agent and the Banks party thereto.
In
so
acting, I, as counsel for the Guarantor, have made or caused to be made such
factual inquires, and I have examined or caused to be examined such questions
of
law, as I have considered necessary or appropriate for the purposes of this
opinion and, upon the basis of such inquiries and examinations, advise you
that,
in my opinion:
1. The
Guarantor is a corporation duly organized, validly existing and in good standing
under the laws of the State of __________ and is duly qualified (licensed)
to
transact business in all places where failure to do so might have a material
adverse effect on the financial conditions, prospects or business of the
Guarantor.
2. The
Guarantor has full corporate power and authority to own and operate its
properties and assets, carry on its business as presently conducted, execute
and
deliver the Guaranty, and perform its obligations thereunder.
CH02/22283263.8
3. The
execution and delivery of the Guaranty and the performance by the Guarantor
of
its obligations thereunder have been duly authorized by all necessary corporate
action, and the Guaranty has been duly executed and delivered on behalf of
the
Guarantor and constitutes the valid and binding obligation of the Guarantor,
enforceable in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency or other similar laws of general application
affecting the enforcement of creditors’ rights or by general principles of
equity limiting the availability of equitable remedies.
4. There
is
no provision in the Guarantor’s articles of incorporation or by-laws, nor any
provision in any indenture, mortgage, contract or agreement which the Guarantor
is a party or by which it or its properties may be bound, nor any law, statute,
rule or regulation, or any writ, order or decision of any court or governmental
instrumentality binding on the Guarantor which would be contravened by the
execution and delivery of the Guaranty, nor do any of the foregoing prohibit
the
Guarantor’s performance of any term, provision, condition, covenant or any other
obligation of the Guarantor contained therein.
5. No
authorizations, consents, approvals, licenses, filings or registrations from
or
with any governmental or regulatory authority or agency are required in
connection with the execution, delivery and performance by the Guarantor of
the
Guaranty.
6. There
are
no legal or arbitral proceedings, and no proceedings by or before any
governmental or regulatory authority or agency, pending or threatened against
or
affecting the Guarantor or any properties or rights or the Guarantor which,
if
adversely determined, would have a material adverse effect on the consolidated
financial condition, operations, business or prospects of the
Guarantor.
The
opinions set forth herein are intended solely for the benefit of the addressees
hereof in connection with the transactions contemplated herein and assignees
and
participants under the Credit Agreement and shall not be relied upon by any
other person or for any other purpose without our prior written
consent.
Very
truly yours,
CHDB03
9125071.6 06-Jun-07
12:41 05009831C-
EXHIBIT
D
FORM
OF
GUARANTY AGREEMENT
Please
see attached.
CHDB03
9125071.6 06-Jun-07
12:41 05009831D-
TABLE
OF
CONTENTS
Page
|
SECTION 1.
|
THE LOANS
|
1
|
|
|
1.1.
|
Revolving Credit Loans
|
1
|
|
|
1.2.
|
Revolving Credit Loans Pursuant to Notice
|
1
|
|
|
1.3.
|
Voluntary Reduction of Commitments
|
2
|
|
|
1.4.
|
Prepayment, Conversions and Continuations
|
2
|
|
|
1.5.
|
Interest
|
2
|
|
|
1.6.
|
Lending Offices
|
3
|
|
|
1.7.
|
Several Obligations; Remedies Independent
|
3
|
|
|
1.8.
|
Notes
|
3
|
|
|
1.9.
|
Business Day Payments
|
3
|
|
|
1.10.
|
Extension of Commitments and Replacement of Banks
|
3
|
|
|
1.11.
|
Repayment
|
5
|
|
|
SECTION 2.
|
FEES
|
5
|
|
|
2.1.
|
Facility Fee
|
5
|
|
|
2.2.
|
Agency Fee
|
5
|
|
|
SECTION 3.
|
THE PAYMENTS; PRO RATA TREATMENT; COMPUTATIONS;
ETC
|
5
|
|
|
3.1.
|
Payments
|
5
|
|
|
3.2.
|
Pro Rata Treatment
|
5
|
|
|
3.3.
|
Computations
|
6
|
|
|
3.4.
|
Minimum Amounts
|
6
|
|
|
3.5.
|
Certain Notices
|
6
|
|
|
3.6.
|
Non-Receipt of Funds by the Agent
|
7
|
|
|
3.7.
|
Sharing of Payments
|
7
|
|
|
SECTION 4.
|
YIELD, CAPITAL MAINTENANCE AND TAX PROVISIONS
|
7
|
|
|
4.1.
|
Additional Costs
|
7
|
|
|
4.2.
|
Limitation on Types of Loans
|
8
|
|
|
4.3.
|
Illegality
|
9
|
|
|
4.4.
|
Treatment of Affected Loans
|
9
|
|
|
4.5.
|
Compensation
|
10
|
|
|
4.6.
|
Taxes
|
10
|
|
|
SECTION 5.
|
CONDITIONS PRECEDENT
|
12
|
|
|
5.1.
|
Initial Credit Extension
|
12
|
|
|
5.2.
|
Initial and Subsequent Credit Extensions
|
14
|
|
|
SECTION 6.
|
REPRESENTATIONS AND WARRANTIES
|
14
|
|
|
6.1.
|
Organization
|
14
|
|
|
6.2.
|
Authorization; No Conflict
|
14
|
|
|
6.3.
|
Financial Statements
|
14
|
|
|
6.4.
|
Taxes
|
15
|
|
|
6.5.
|
Liens
|
15
|
|
|
6.6.
|
Adverse Contracts
|
15
|
|
|
6.7.
|
Regulation U
|
15
|
|
|
6.8.
|
Litigation and Contingent Liabilities
|
15
|
|
|
6.9.
|
FDIC Insurance
|
16
|
|
|
6.10.
|
Investigations
|
16
|
|
|
6.11.
|
Bank Holding Company
|
16
|
|
|
6.12.
|
ERISA
|
16
|
|
|
6.13.
|
Environmental Laws
|
17
|
|
|
6.14.
|
Subsidiaries
|
17
|
|
|
SECTION 7.
|
CONVENANTS
|
17
|
|
|
7.1.
|
Existence, Mergers, Etc.
|
17
|
|
|
7.2.
|
Reports, Certificates and Other Information
|
18
|
|
|
7.3.
|
Inspection
|
19
|
|
|
7.4.
|
Financial Requirements
|
19
|
|
|
7.5.
|
Indebtedness, Liens And Taxes
|
20
|
|
|
7.6.
|
Investments and Loans
|
22
|
|
|
7.7.
|
Capital Structure and Dividends
|
22
|
|
|
7.8.
|
Maintenance Of Properties
|
23
|
|
|
7.9.
|
Insurance
|
23
|
|
|
7.10.
|
Use of Proceeds
|
23
|
|
|
7.11.
|
Well Capitalized
|
23
|
|
|
7.12.
|
Compliance with Law
|
24
|
|
|
7.13.
|
Obligations Pertaining to Trust Preferred Securities
and
Trust Indebtedness
|
24
|
|
|
SECTION 8.
|
EVENTS OF DEFAULT
|
24
|
|
|
8.1.
|
Events of Default
|
24
|
|
|
8.2.
|
Remedies
|
26
|
|
|
SECTION 9.
|
DEFINITIONS AND ACCOUNTING
|
26
|
|
|
9.1.
|
Defined Terms
|
26
|
|
|
9.2.
|
Accounting
|
33
|
|
|
SECTION 10.
|
THE AGENT
|
33
|
|
|
10.1.
|
Appointment, powers and Immunities
|
33
|
|
|
10.2.
|
Reliance by Agent
|
34
|
|
|
10.3.
|
Defaults
|
34
|
|
|
10.4.
|
Rights as a Bank
|
34
|
|
|
10.5.
|
Indemnification
|
34
|
|
|
10.6.
|
Non-Reliance on Agent and other Banks
|
35
|
|
|
10.7.
|
Failure to Act
|
35
|
|
|
10.8.
|
Resignation of Agent
|
35
|
|
|
SECTION 11.
|
MISCELLANEOUS
|
35
|
|
|
11.1.
|
Wavier
|
35
|
|
|
11.2.
|
Notices
|
36
|
|
|
11.3.
|
Expenses, Etc.
|
36
|
|
|
11.4.
|
Amendments, Etc.
|
36
|
|
|
11.5.
|
Successors and Assigns
|
36
|
|
|
11.6.
|
Assignments and Participations
|
36
|
|
|
11.7.
|
Survival
|
38
|
|
|
11.8.
|
Captions
|
38
|
|
|
11.9.
|
Counterparts
|
38
|
|
|
11.10.
|
Jurisdiction, Service of Process
|
38
|
|
|
11.11.
|
Set-off
|
39
|
|
|
11.12.
|
Governing Law
|
39
|
|
|
11.13.
|
Waiver of Jury Trial
|
39
|
|
--
CHDB03
9125071.6 06-Jun-07
12:41 05009831