EXHIBIT 10.1
SIXTH AMENDMENT
TO REVOLVING CREDIT AGREEMENT
Dated as of April 2, 2003
This Amendment, dated as of April 2, 2003, is entered into between
SECOND BANCORP INCORPORATED, a corporation formed under the laws of the State of
Ohio ("Borrower"), and THE NORTHERN TRUST COMPANY, an Illinois banking
corporation having its principal office at 50 South LaSalle Street, Chicago,
Illinois 60675 ("Lender").
RECITALS:
A. Borrower and Lender have entered into a Revolving Credit Agreement
dated as of September 15, 1995, a First Amendment thereto dated as of March 11,
1997, a Second Amendment thereto dated as of February 17, 1999, a Third
Amendment thereto dated as of February 16, 2000, a Fourth Amendment thereto
dated as of February 16, 2001 and a Fifth Amendment thereto dated as of April 3,
2002(said Revolving Credit Agreement, as so amended, shall hereinafter be
referred to as the "Agreement"; the terms defined in the Agreement and not
otherwise defined herein shall be used herein as defined in the Agreement).
B. Borrower and Lender wish to amend certain provisions of the
Agreement.
C. Therefore, the parties hereto agree as follows:
SECTION 1 AMENDMENTS TO AGREEMENT
SECTION 1.1 NOTE. Section 1.2 of the Agreement is hereby amended as of
the date hereof by deleting the date "April 2, 2003" in the eleventh and twelfth
lines thereof and replacing such date with "March 31, 2004."
SECTION 1.2 FORM OF PROMISSORY NOTE. Exhibit A to the Agreement is
hereby amended as of the date hereof to be in the form set forth as Exhibit A
hereto.
SECTION 2 REPRESENTATIONS AND WARRANTIES
To induce Lender to enter into this Amendment, Borrower represents and
warrants to Lender that:
SECTION 2.1 AUTHORIZATION; NO CONFLICT. The execution and delivery of
this Amendment and the Replacement Note (as hereinafter defined), the borrowings
under the Agreement, as amended hereby, and the performance by Borrower of its
obligations under the Agreement, as amended hereby, and under the Replacement
Note: (a) are within 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 Borrower or any agreement affecting Borrower or
its property.
SECTION 2.2 VALIDITY AND BINDING EFFECT. The Agreement, as amended
hereby, is, and the Replacement Note when duly executed and delivered will be, a
legal, valid and binding obligation of Borrower, enforceable against Borrower 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.
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SECTION 3 CONDITIONS TO AMENDMENTS
The amendments contemplated by Section 1 hereof are subject to the
satisfaction of each of the following conditions precedent:
SECTION 3.1 DOCUMENTATION. Lender shall have received all of the
following promptly upon the execution and delivery hereof, each duly executed
and dated the date hereof or such other date as is satisfactory to Lender, in
form and substance satisfactory to Lender and its counsel, at the expense of
Borrower, and in such number of signed counterparts as Lender may request
(except for the Replacement Note, of which only the original shall be signed):
(a) Replacement Note. A promissory note of Borrower (the
"Replacement Note"), substantially in the form set forth as Exhibit A
hereto.
Upon receipt of the Replacement Note, Lender will record the
aggregate unpaid principal amount of the Replacement Note dated April
3, 2002 (the "Prior Note") of Borrower issued under the Agreement in
its records or, at its option, on any schedule attached to the
Replacement Note as the aggregate unpaid principal amount of the
Replacement Note. Thereafter, all references in the Agreement and any
and all instruments or documents provided for therein or delivered or
to be delivered thereunder or in connection therewith to the Prior Note
shall be deemed references to the Replacement Note.
(b) Resolution; Certificate of Incumbency. A copy of a
resolution of the Board of Directors of Borrower authorizing or
ratifying the execution and delivery of this Amendment and the
Replacement Note and the performance of the Agreement, as amended
hereby, and the Replacement Note, certified by an appropriate officer
of Borrower, together with a certificate of an appropriate officer of
Borrower, certifying the names of the officer(s) of Borrower authorized
to sign this Amendment, the Replacement Note and all other documents or
certificates to be delivered hereunder, together with a sample of the
true signatures of each such person (Lender may conclusively rely on
such certificate until formally advised by a like certificate of any
changes therein).
(c) Governing Documents. A certificate signed by an
appropriate officer of Borrower to the effect that there have been no
amendments to the Articles of Incorporation or the By-laws of Borrower
since September 15, 1995 (or, if there have been any such amendments,
copies thereof, certified by an appropriate officer of Borrower).
(d) Certificate of No Default. A certificate signed by an
appropriate officer of Borrower to the effect that: (i) as at the date
hereof, no Event of Default or Unmatured Event of Default has occurred
and is continuing; and (ii) the representations and warranties of
Borrower contained in the Agreement and this Amendment are true and
correct as at the date hereof as though made on that date, except for
such changes as are specifically permitted under the Agreement.
(e) Other. Such other documents and certificates as Lender may
reasonably request.
SECTION 3.2 REPRESENTATIONS AND WARRANTIES TRUE; NO DEFAULT.
(a) Representations and Warranties True. At the date hereof,
Borrower's representations and warranties set forth in the Agreement
and this Amendment shall be true and correct as though made on such
date, except for such changes as are specifically permitted under the
Agreement.
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SECTION 4 MISCELLANEOUS
This Amendment, the Replacement Note and any other document or
instrument executed in connection herewith shall be governed by and construed in
accordance with the internal laws of the State of Illinois, and shall be deemed
to have been executed in the State of Illinois. Unless the context requires
otherwise, wherever used herein the singular shall include the plural and vice
versa, and the use of one gender shall also denote the other. Captions herein
are for convenience of reference only and shall not define or limit any of the
terms or provisions hereof. This Amendment shall be binding upon and inure to
the benefit of Borrower, Lender and their respective successors and assigns,
except that Borrower may not transfer or assign any of its rights or interest
hereunder without the prior written consent of Lender. Borrower agrees to pay
upon demand up to $2,000 of the expenses (including without limitation
attorneys' fees and legal costs and expenses) incurred or paid by Lender in
connection with the preparation of this Amendment, the Replacement Note and any
other document or instrument to be delivered in connection herewith. Except as
amended hereby, the Agreement shall remain in full force and effect and is
hereby ratified and confirmed in all respects. Each reference in the Agreement
to "this Amendment," "hereunder," "hereof," or words of like import, and each
reference to the Agreement in any and all instruments or documents provided for
in the Agreement or delivered or to be delivered thereunder or in connection
therewith, shall, except where the context otherwise requires, be deemed a
reference to the Agreement as amended hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed by their respective officers thereunto duly authorized as of the date
first written above.
SECOND BANCORP INCORPORATED
By:
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David L. Kellerman
Title: Chief Financial Officer and Treasurer
THE NORTHERN TRUST COMPANY
By:
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Title:
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