Exhibit 10.1
FIFTH AMENDMENT AND WAIVER TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS FIFTH AMENDMENT AND WAIVER TO SECOND AMENDED AND
RESTATED CREDIT AGREEMENT (this "Amendment") dated as of October
30, 2002, is by and between HEARTLAND FINANCIAL USA, INC., a
corporation formed under the laws of the State of Delaware (the
"Borrower"), and THE NORTHERN TRUST COMPANY, an Illinois banking
corporation (the "Lender") with a banking office at 50 South
LaSalle Street, Chicago, Illinois 60675.
WHEREAS, the Borrower and the Lender have entered into a
Second Amended and Restated Credit Agreement dated as of
September 28, 2000, as amended by a First Amendment thereto dated
as of September 27, 2001, a Second Amendment thereto dated as of
October 31, 2001, a Third Amendment thereto dated as of December
31, 2001 and a Fourth Amendment thereto dated June 29, 2002(as so
amended, the "Agreement");
WHEREAS, the Agreement provides for the making of Loans by
the Lender to the Borrower on a revolving basis on or before
October 30, 2002 in amounts not exceeding $30,000,000 at any one
time outstanding; and
WHEREAS, the parties wish to amend the Agreement to extend
the Maturity Date and waive non-compliance by the Borrower with
certain covenants in the Agreement, as provided herein;
NOW, THEREFORE, the parties agree as follows:
1. DEFINITIONS.
Terms defined in the introductory paragraphs hereof shall
have their respective defined meanings when used in this
Amendment, and, except as otherwise expressly provided herein,
terms defined in the Agreement shall have their respective
defined meanings when used in this Amendment.
2. AMENDMENT TO THE AGREEMENT. Section 1.2 of the Agreement is
hereby amended as of the date hereof by deleting the date
"October 30, 2002" appearing therein and inserting in its place
therefor the date "October 29, 2003".
3. WAIVER TO THE AGREEMENT. The Borrower has advised the
Lender that the Borrower's Subsidiary Bank, Wisconsin Community
Bank, is not, has not been and/or may not be, as applicable, in
compliance with Section 5.1 (Existence, Mergers, Etc.) of the
Agreement as a result of such Subsidiary Bank selling one of its
bank branches and the related assets thereto pursuant to that
certain Purchase and Assumption Agreement dated as of October 17,
2002 by and between Wisconsin Community Bank and S&C Bank (The
"Asset Purchase Agreement"). Subject to the terms and conditions
hereof, the Lender hereby waives compliance by the Borrower and
such Subsidiary Bank with Section 5.1 of the Agreement. The
Lender's waiver of non-compliance with Section 5.1 of the
Agreement is limited to the specific instance of failure to
comply which is described above and shall not be deemed a waiver
of or consent to any other failure to comply with the terms of
Section 5.1 or any other provision of the Agreement. Such waiver
shall not prejudice or constitute a waiver of any right or
remedies which the Lender may have or be entitled to with respect
to any other breach of Section 5.1 or any other provision of the
Agreement.
4. REPRESENTATIONS AND WARRANTIES.
(a) NO BREACH. The execution and delivery of this
Amendment, and the performance of this Amendment and the
Agreement, as amended hereby, will not conflict with or result in
a breach of, or cause the creation of a lien or require any
consent under, the charter or by-laws of the Borrower, or any
applicable law or regulation, or any order, injunction or decree
of any court or governmental authority or agency, or any
agreement or instrument to which the Borrower is a party or by
which it or its property is bound.
(b) POWER AND ACTION, BINDING EFFECT. The Borrower has
been duly formed and is validly existing in good standing under
the laws of the State of Delaware and has all necessary power and
authority to execute, deliver and perform its obligations under
this Amendment and the Agreement, as amended hereby; the
execution, delivery and performance by the Borrower of this
Amendment and the Agreement, as amended hereby, have been duly
authorized by all necessary action on its part; and this
Amendment and the Agreement, as amended hereby, have been duly
and validly executed and delivered by the Borrower and constitute
the legal, valid and binding obligations of the Borrower,
enforceable in accordance with their respective terms.
(c) APPROVALS. No authorizations, approvals or consents
of, and no filings or registrations with, any governmental or
regulatory authority or agency or any other person are necessary
for the execution and delivery by the Borrower of this Amendment,
the performance by the Borrower of its obligations under this
Amendment or the Agreement, as amended hereby, or for the
validity or enforceability hereof or thereof.
5. CONDITIONS PRECENDENT TO AMENDMENT. The amendment
contemplated by Section 2 hereof and the waiver contemplated by
Section 3 hereof are subject to the satisfaction of each of the
following conditions precedent:
(a) The Borrower and the Lender shall have executed and
delivered this Amendment.
(b) The Borrower shall have delivered to the Lender a
certificate of the secretary or assistant secretary of the
Borrower, certifying (i) that attached is a true and correct copy
of the resolutions of the Board of Directors of the Borrower
authorizing the execution, delivery and performance of this
Amendment and the Agreement, as amended hereby, and the
borrowings under the Agreement, as amended hereby, (ii) the names
and specimen signatures of the Borrower's officers authorized to
execute this Amendment and any other documents and certificates
to be delivered hereunder; (iii) that the articles of
incorporation and the by-laws of the Borrower have not been
amended since September 28, 2000 or setting forth a true and
correct copy of any amendment to the articles of incorporation or
by-laws of the Borrower adopted on or after such date; and (iv)
that attached is a true and correct copy of an amendment,
substantially similar to this Amendment and otherwise
satisfactory to the Lender, to the Other Bank Agreement.
(c) The Borrower shall have delivered to the Lender an
opinion of David J. Kapler, counsel to the Borrower, addressed to
the Lender, in substantially the form of Exhibit A hereto.
(d) After giving effect to the waiver herein, no Event of
Default or Unmatured Event of Default shall have occurred and be
continuing under the Agreement, as amended hereby, and the
representations and warranties of the Borrower in Section 4 of
the Agreement and in Section 3 hereof shall be true and correct
on and as of the date hereof and the Borrower shall have provided
to the Lender a certificate of a senior officer of the Borrower
to that effect.
(e) The Borrower shall have delivered to the Lender a duly
executed copy of the Asset Purchase Agreement, in form and
substance reasonably satisfactory to the Lender, certified as
true, correct and complete by the secretary or assistant
secretary of the Borrower.
(f) Each Guarantor shall acknowledge and consent to this
Amendment for purposes of its Guaranty as evidenced by its signed
acknowledgment of this Amendment on the signature page hereof.
(g) The Borrower shall have delivered to the Lender such
other documents as the Lender may reasonably request.
6. GENERAL.
(a) SUCCESSORS AND ASSIGNS. This Amendment shall be
binding upon and inure to the benefit of the Borrower, the Lender
and their respective successors and assigns, except that the
Borrower may not transfer or assign any of its rights or interest
hereunder.
(b) GOVERNING LAW. This Amendment shall be governed by,
and construed and interpreted in accordance with, the internal
laws of the State of Illinois.
(c) RATIFICATION. The parties agree that the Agreement has
not lapsed or terminated, is in full force and effect, and from
and after the date hereof shall remain binding in accordance with
its terms, as amended hereby.
(d) CERTAIN USAGES. From and after the date herof, each
reference to the Second Amended and Restated Credit Agreement in
the Agreement, in the Note and in the other agreements, documents
or instruments referred to or provided for in or delivered under
the Agreement or the Note shall be deemed to refer to Agreement,
as amended hereby.
(e) COUNTERPARTS. This Amendment may be executed in any
number of counterparts and each party hereto may execute any one
or more of such counterparts, each of which shall be deemed to be
an original, all of which, taken together, shall constitute one
and the same instrument. Delivery of an executed counterpart of
this Amendment by telecopy shall be as effective as delivery of a
manually executed counterpart of this Amendment.
(f) EXPENSES. The Borrower agrees to pay, or to reimburse
on demand, all reasonable costs and expenses incurred by the
Lender in connection with the negotiation, preparation,
execution, delivery, modification, amendment or enforcement of
this Amendment, the Agreement, as amended hereby, and any other
agreements, documents and instruments referred to herein,
including the reasonable fees and expenses of Gardner, Carton &
Douglas, special counsel to the Lender, and any other counsel
engaged by the Lender.
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed by their duly authorized officers as of
the day and year first and above written.
HEARTLAND FINANCIAL USA, INC.
By: /s/ John K. Schmidt
--------------------------
John K. Schmidt
Title: Executive Vice President
& CFO
--------------------------
THE NORTHERN TRUST COMPANY
By: /s/ Thomas E. Bernhardt
--------------------------
Name: Thomas E. Bernhardt
Title: Vice President
GUARANTOR ACKNOWLEDGMENT
Each of the undersigned Guarantors hereby acknowledges and
consents to the Borrower's execution of this Amendment.
THE CITIZENS FINANCE CO. ULTEA, INC.
By: /s/ John K. Schmidt By: /s/ John K. Schmidt
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John K. Schmidt John K. Schmidt
Title: Treasurer Title: Treasurer