Exhibit
10.1


 


FIRST
SUPPLEMENTAL INDENTURE


 


THIS
FIRST SUPPLEMENTAL INDENTURE dated as of April 29, 2016 is by and among Wilmington Trust Company, a Delaware trust company,
as Trustee (herein, together with its successors in interest, the “Trustee”), Nicolet Bankshares, Inc., a Wisconsin
corporation (the “Successor Company”), and Baylake Corp., a Wisconsin corporation (the “Company”), under
the Indenture referred to below.


 


NOW,
THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the parties hereto, the Trustee, the Company and the Successor Company hereby agree as follows:


 


PRELIMINARY
STATEMENTS


 


The
Trustee and the Company are parties to that certain Indenture dated as of March 28, 2006 (the “Indenture”), pursuant
to which the Company issued U.S. $16,598,000 of its Floating Rate Junior Subordinated Note due 2036.


 


As
permitted by the terms of the Indenture, the Company, simultaneously with the effectiveness of this First Supplemental Indenture,
shall merge (referred to herein for purposes of Article VIII of the Indenture as the “Merger”) with and into the Successor
Company with the Successor Company as the surviving corporation. The parties hereto are entering into this First Supplemental
Indenture pursuant to, and in accordance with, Articles VIII and IX of the Indenture.


 


SECTION
1. Definitions. All capitalized terms used herein that are defined in the Indenture, either directly or by reference
therein, shall have the respective meanings assigned them in the Indenture except as otherwise provided herein or unless the context
otherwise requires.


 


SECTION
2. Interpretation.


 


		(a)	In
                                         this First Supplemental Indenture, unless a clear contrary intention appears:



 


		(i)	the
                                         singular number includes the plural number and vice versa;



 


		(ii)	reference
                                         to any gender includes the other gender;



 


		(iii)	the
                                         words “herein,” “hereof” and “hereunder” and other
                                         words of similar import refer to this First Supplemental Indenture as a whole and not
                                         to any particular Section or other subdivision;



 




    	 	 	 



     


    

 


		(iv)	reference
                                         to any Person includes such Person’s successors and assigns but, if applicable,
                                         only if such successors and assigns are permitted by this First Supplemental Indenture
                                         or the Indenture, and reference to a Person in a particular capacity excludes such Person
                                         in any other capacity or individually provided that nothing in this clause (iv) is intended
                                         to authorize any assignment not otherwise permitted by this First Supplemental Indenture
                                         or the Indenture;



 


		(v)	reference
                                         to any agreement, document or instrument means such agreement, document or instrument
                                         as amended, supplemented or modified and in effect from time to time in accordance with
                                         the terms thereof and, if applicable, the terms hereof, as well as any substitution or
                                         replacement therefor and reference to any note includes modifications thereof and any
                                         note issued in extension or renewal thereof or in substitution or replacement therefor;



 


		(vi)	reference
                                         to any Section means such Section of this First Supplemental Indenture; and



 


		(vii)	the
                                         word “including” (and with correlative meaning “include”) means
                                         including without limiting the generality of any description preceding such term.



 


		(b)	No
                                         provision in this First Supplemental Indenture shall be interpreted or construed against
                                         any Person because that Person or its legal representative drafted such provision.



 


SECTION
3. Assumption of Obligations.


 


		(a)	Pursuant
                                         to, and in compliance and accordance with, Section 8.1 and Section 8.2 of the Indenture,
                                         the Successor Company hereby expressly assumes the due and punctual payment of the principal
                                         of and any premium and interest (including any Additional Interest) on all the Securities
                                         and the performance of every covenant in the Indenture on the part of the Company to
                                         be performed, or observed.



 


		(b)	Pursuant
                                         to, and in compliance and accordance with, Section 8.2 of the Indenture, the Successor
                                         Company succeeds to and is substituted for, and may exercise every right and power of,
                                         the Company under the Indenture, with the same effect as if the Successor Company had
                                         originally been named in the Indenture as the Company.



 


		(c)	The
                                         Successor Company also succeeds to and is substituted for the Company with the same effect
                                         as if the Successor Company had originally been named in (i) the Amended and Restated
                                         Trust Agreement of the Trust, dated as of March 28, 2006 (the “Trust Agreement”),
                                         as Sponsor (as defined in the Trust Agreement) and (ii) the Guarantee Agreement, dated
                                         as of March 28, 2006 (the “Guarantee”), as Guarantor (as defined in
                                         the Guarantee).



 




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SECTION
4. Representations and Warranties. The Successor Company represents and warrants that (a) it has all necessary power
and authority to execute and deliver this First Supplemental Indenture and to perform the Indenture, (b) that it is the successor
of the Company pursuant to the Merger effected in accordance with applicable law, (c) that it is a corporation organized and existing
under the laws of Wisconsin, (d) that both immediately before and after giving effect to the Merger and this First Supplemental
Indenture, no Default or Event of Default, and no event which, after notice or lapse of time or both, would become an Event of
Default, has occurred and is continuing and (e) that this First Supplemental Indenture is executed and delivered pursuant to Section
8.1(a) and Article IX of the Indenture and does not require the consent of the Securityholders.


 


SECTION
5. Conditions of Effectiveness. This First Supplemental Indenture shall become effective simultaneously with the effectiveness
of the Merger, provided, however, that:


 


		(a)	the
                                         Trustee shall have executed a counterpart of this First Supplemental Indenture and shall
                                         have received one or more counterparts of this First Supplemental Indenture executed
                                         by the Successor Company and the Company;



 


		(b)	the
                                         Trustee shall have received an Officers’ Certificate stating that (i) this First
                                         Supplemental Indenture and the Merger comply with the requirements of Article VIII of
                                         the Indenture; (ii) in the opinion of the signers, all conditions precedent (including
                                         covenants compliance with which constitutes a condition precedent), if any, provided
                                         for in the Indenture relating to the Merger and this First Supplemental Indenture have
                                         been complied with; and (iii) the Trustee’s execution of the Supplemental Indenture
                                         is authorized or permitted by the Indenture.



 


		(c)	the
                                         Trustee shall have received an Opinion of Counsel to the effect that (i) all conditions
                                         precedent (including covenants compliance with which constitutes a condition precedent),
                                         if any, provided for in the Indenture relating to the Merger and this First Supplemental
                                         Indenture have been complied with; (ii) this First Supplemental Indenture and the Merger
                                         comply with the requirements of Article VIII of the Indenture; (iii) the Trustee’s
                                         execution of the Supplemental Indenture is authorized or permitted by the Indenture;
                                         and



 


		(d)	the
                                         Successor Company and the Company shall have duly executed and filed with the Secretary
                                         of the State of the State of Wisconsin a Certificate of Merger in connection with the
                                         Merger.





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SECTION
6. Reference to the Indenture.


 


		(a)	Upon
                                         the effectiveness of this First Supplemental Indenture, each reference in the Indenture
                                         to “this Indenture,” “hereunder,” “herein” or words
                                         of like import shall mean and be a reference to the Indenture, as affected, amended and
                                         supplemented hereby.



 


		(b)	Upon
                                         the effectiveness of this First Supplemental Indenture, each reference in the Securities
                                         to the Indenture including each term defined by reference to the Indenture shall mean
                                         and be a reference to the Indenture or such term, as the case may be, as affected, amended
                                         and supplemented hereby.



 


		(c)	The
                                         Indenture, as amended and supplemented hereby shall remain in full force and effect and
                                         is hereby ratified and confirmed.



 


SECTION
7. Execution in Counterparts. This First Supplemental Indenture may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed to be an original
and all of which when taken together shall constitute but one and the same instrument.


 


SECTION
8. Governing Law; Binding Effect. This First Supplemental Indenture shall be governed by and construed in accordance
with the laws of the State of New York and shall be binding upon the parties hereto and their respective successors and assigns.


 


SECTION
9. The Trustee. The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or
sufficiency of this First Supplemental Indenture or the due execution thereof by the Company or the Successor Company. The recitals
of fact contained herein shall be taken as the statements solely of the Company or the Successor Company, and the Trustee assumes
no responsibility for the correctness thereof.


 


[Signatures
on following page]


 




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IN
WITNESS WHEREOF, the parties hereto have caused this First Supplemental Indenture to be duly executed as of the day and year first
written above.


 


	 	BAYLAKE CORP.
	 	 	 
	 	By:	/s/ Robert
    J. Cera
	 	 	Name:  Robert J. Cera
	 	 	Title:  President and Chief Executive
    Officer


 


	 	NICOLET BANKSHARES, INC.  
	 	 	 
	 	By:	/s/ Robert
    B. Atwell
	 	 	Name:  Robert B. Atwell
	 	 	Title:  Chairman, President and Chief
    Executive Officer


 


	 	WILMINGTON TRUST COMPANY, not in
    its individual capacity, but solely as Trustee
	 	 	 
	 	By:	/s/ Michael
    H. Wass
	 	 	Name: Michael H. Wass
	 	 	Title:    Vice President