Exhibit 10.3
SIXTH AMENDMENT TO
SECOND AMENDED AND RESTATED CREDIT AGREEMENT
THIS SIXTH AMENDMENT TO SECOND AMENDED AND RESTATED CREDIT
AGREEMENT (this "Amendment") dated as of April 17, 2003, 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, a Fourth Amendment thereto dated as of June 29, 2002
and a Fifth Amendment and Waiver thereto dated as of October 30,
2002 (as so amended, the "Agreement"); and
WHEREAS, the parties wish to amend the Agreement to, among
other things, permit the incurrence of certain indebtedness by
the Borrower, 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. AMENDMENTS TO THE AGREEMENT.
(a) Amendment to Schedule 5.5(a) to the Agreement.
Schedule 5.5(a) to the Agreement is hereby amended and restated
as of the date hereof into Schedule 5.5(a) attached hereto.
(b) Amendment to Section 5.5(d) of the Agreement.
Section 5.5(d) of the Agreement is hereby amended as of the date
hereof by (i) deleting the word "and" appearing immediately
before clause (iii) therein, (ii) deleting the period at the end
of clause (iii) therein and (iii) adding a new clause (iv) to
read as follows: "(iv) 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 5.5(a))."
(c) Amendment to Section 5.6 of the Agreement. Section 5.6
of the Agreement is hereby amended as of the date hereof by
(i) deleting the word "and" appearing at the end of clause (c)
therein, (ii) deleting the period at the end of clause (d)
therein and substituting the phrase "; and" therefor and
(iii) adding a new clause (e) to read as follows: "(e) with
respect to DBT, issue a letter of credit for the benefit of the
City of Dubuque for the purposes permitted in Section 5.5(d)
hereof."
3. 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.
4. CONDITIONS PRECEDENT TO AMENDMENT. The amendments
contemplated by Section 2 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 an authorized officer of the Borrower, certifying
that attached thereto 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) 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.
(d) 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.
(e) The Borrower shall have delivered to the Lender such
other documents as the Lender may reasonably request.
5. 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 hereof, 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 the
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 above written.
HEARTLAND FINANCIAL USA, INC.
By: /s/ John K. Schmidt
________________________
John K. Schmidt
Title: Executive VP & Chief
Financial Officer
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.
CITIZENS FINANCE CO. ULTEA, INC.
By: /s/ John K. Schmidt By: /s/ John K. Schmidt
______________________ _____________________
John K. Schmidt John K. Schmidt
Title: Treasurer Title: Treasurer