AMENDED AND RESTATED LOAN AND SUBORDINATED DEBENTURE PURCHASE AGREEMENT between LaSalle Bank National Association and PrivateBancorp, Inc. Dated as of September 29, 2005
AMENDED
AND RESTATED LOAN AND
SUBORDINATED
DEBENTURE PURCHASE AGREEMENT
between
LaSalle
Bank National Association
and
PrivateBancorp,
Inc.
Dated
as
of September 29, 2005
TABLE
OF CONTENTS
Page
1. DEFINITIONS.
1.1. Defined
Terms
1.2. Certain
UCC and Accounting Terms; Interpretations
1.3. Exhibits
and Schedules Incorporated
2. CREDIT
FACILITIES.
2.1. The
Loans
2.2. The
Notes
and the Subordinated Debenture
2.3. Maturity
Dates
2.4. Collateral
2.5. The
Closing
2.6. Interest
Rates
2.7. Payments
2.8. Capital
Adequacy
3. DISBURSEMENTS.
3.1. Initial
and Subsequent Disbursements
3.2. Conditions
Precedent to Initial Disbursement; Related Delivery Obligations
3.3. Conditions
to All Disbursements; Renewals and Conversions
4. GENERAL
REPRESENTATIONS AND WARRANTIES
4.1. Organization
4.2. Stock
of
Subsidiaries
4.3. Use
of
Proceeds.
4.4. Financial
Statements
4.5. Title
to
Properties.
4.6. Legal
and
Authorized
4.7. No
Defaults or Restrictions
4.8. Governmental
Consent
4.9. Taxes
4.10. Compliance
with Law
4.11. Employee
Benefit Plans
4.12. No
Material Adverse Change
4.13. Regulatory
Enforcement Actions
4.14. Hazardous
Materials
4.15. Pending
Litigation
4.16. Investment
Company Act
4.17. No
Misstatement of Material Fact
4.18. Subordination
4.19. Representations
and Warranties Generally
5. GENERAL
COVENANTS, CONDITIONS AND AGREEMENTS
5.1. Negative
Covenants
5.2. Affirmative
Covenants
6. ADDITIONAL
COVENANTS.
6.1. Lender
Expenses
6.2. Subordinated
Debt
7. FINANCIAL
COVENANTS.
7.1. Capitalization
7.2. Regulatory
Capital
7.3. Minimum
Return on Average Assets
7.4. Non-Performing
Asset Ratio
8. BORROWER’S
DEFAULT.
8.1. Borrower’s
Defaults and Lender’s Remedies.
8.2. Protective
Advances
8.3. Other
Remedies
8.4. No
Lender
Liability
8.5. Lender’s
Fees and Expenses
8.6. Limitation
on Remedies with Respect to Subordinated Debt
9. MISCELLANEOUS.
9.1. Release;
Indemnification
9.2. Assignment
and Participation
9.3. Prohibition
on Assignment
9.4. Time
of
the Essence
9.5. No
Waiver
9.6. Severability
9.7. Usury;
Revival of Liabilities
9.8. Notices
9.9. Successors
and Assigns
9.10. No
Joint
Venture
9.11. Brokerage
Commissions
9.12. Publicity
9.13. Documentation
9.14. Additional
Assurances
9.15. Entire
Agreement
9.16. Choice
of
Law
9.17. Forum;
Venue
9.18. No
Third
Party Beneficiary
9.19. Legal
Tender of United States
9.20. Captions;
Counterparts
9.21. Knowledge;
Discretion
9.22. Extension
Notice and Sub Debt Approval Notice
9.23. Acknowledgment
of Indebtedness under 2000 Revolving Loan Agreement
9.24. 2000
Loan
Agreement and 2000 Pledge and Security Agreement
EXHIBITS:
A Form
of
Term Note
B Form
of
Amended and Restated Revolving Note
C Form
of
Subordinated Debenture
D Form
of
Amended and Restated Pledge and Security Agreement
E Form
of
Rate Election Notice
F Form
of
Opinion of Borrower’s Counsel
G Form
of
Quarterly Compliance Certificate
H Form
of
Revolving Loan Maturity Date Extension Notice
I Subordinated
Debt Amount Sub Debt Approval Notice
J Form
of
Collateral Safekeeping Agreement
DISCLOSURE
SCHEDULES:
4.1 Subsidiaries
4.2 Certain
Subsidiary Matters
4.9 Tax
Matters
AMENDED
AND RESTATED LOAN AND SUBORDINATED DEBENTURE PURCHASE
AGREEMENT
THIS
AMENDED AND RESTATED LOAN AND SUBORDINATED DEBENTURE PURCHASE AGREEMENT (this
“Agreement”)
is
dated as of September 29, 2005 and is made by and between PRIVATEBANCORP, INC.,
a Delaware corporation (“Borrower”),
and
LASALLE BANK NATIONAL ASSOCIATION, a national banking association (“Lender”).
R
E C I T A L S
:
A. Borrower
is a bank holding company that owns 100% of the issued and outstanding capital
stock of The PrivateBank and Trust Company, an Illinois state-chartered,
non-member bank with its main office located in Chicago, Illinois (“PrivateBank”),
The
PrivateBank, a federal savings bank with its main office located in St. Louis,
Missouri (“PrivateBank
St. Louis”),
and
The PrivateBank, a Michigan state-chartered, non-member bank with its main
office located in Bloomfield Hills, Michigan (“PrivateBank
Michigan”).
The
banks identified in the immediately preceding sentence may be referred to herein
collectively as the “Subsidiary
Banks”
and
individually as a “Subsidiary
Bank.”
The
issued and outstanding capital stock of PrivateBank, PrivateBank St. Louis
and
PrivateBank Michigan may be referred to as the “Pledged
Subsidiary Bank Shares”.
B. The
Borrower and Lender are parties to that certain Loan Agreement, dated as of
February 11, 2000, as amended, restated, supplemented or modified from time
to
time, including by the Fifth Amendment thereto dated as of December 1, 2004
(the
“2000
Loan Agreement”),
pursuant to which Lender has extended a $40,000,000 revolving credit facility
to
Borrower (the “Outstanding
Revolving Loan”),
the
repayment of which is secured by a pledge of the Pledged Subsidiary Bank Shares
pursuant to that certain Pledge and Security Agreement, dated as of February
11,
2000 (as amended, restated, supplemented or modified from time to time, the
“2000
Pledge and Security Agreement”).
Upon
their execution and delivery at Closing (as defined below), this Agreement
shall
have the effect of amended and restating the 2000 Loan Agreement, and the Pledge
Agreement (as defined below) shall have the effect of amending and restating
the
2000 Pledge and Security Agreement.
C. Borrower
has requested that Lender provide it with three credit facilities in the
aggregate principal amount of $65,000,000 consisting of (a) a term loan (the
“Term
Loan”)
in the
principal amount of $250,000 (the “Term
Loan Amount”),
(b) a
revolving line-of-credit (the “Revolving
Loan”)
in the
principal amount of up to $39,750,000 (the “Revolving
Loan Amount”)
which
shall replace the Outstanding Revolving Loan and (c) subordinated debt (the
“Subordinated
Debt”)
in the
principal amount of up to $25,000,000. The Term Loan and the Revolving Loan
may
be referred to collectively as the “Senior
Loans”
and the
Senior Loans and the Subordinated Debt may be referred to collectively as the
“Loans.”
D. The
proceeds from the Senior Loans and the proceeds of the Subordinated Debt shall
be used by Borrower for working capital and other general corporate
purposes.
E. The
Subordinated Debt is intended to qualify as Tier 2 capital under applicable
rules and regulations promulgated by the Board of Governors of the Federal
Reserve System (the “FRB”).
F. Lender
is
willing to lend to Borrower up to an aggregate principal amount of $65,000,000
under the Loans in accordance with the terms, subject to the conditions and
in
reliance on the recitals, representations, warranties, covenants and agreements
set forth herein and in the other Loan Documents (as defined
below).
THEREFORE,
in
consideration of the mutual covenants, conditions and agreements herein
contained, the parties hereto hereby agree as follows:
A
G R E E M E N T:
1. DEFINITIONS.
1.1. Defined
Terms.
The
following capitalized terms generally used in this Agreement and in the other
Loan Documents shall have the meanings defined or referenced below. Certain
other capitalized terms used only in specific sections of this Agreement may
be
defined in such sections.
“Affiliate(s)”
means,
with respect to any Person, such Person’s immediate family members, partners,
members or parent and subsidiary corporations, and any other Person directly
or
indirectly controlling, controlled by, or under common control with, said
Person, and their respective Affiliates, members, shareholders, directors,
officers, employees, agents and representatives.
“Agreed
Upon Terms and Procedures”
means
the Agreed Upon Terms and Procedures relating to interest rates, interest and
payments executed by Borrower on the date hereof as such may be amended,
restated, supplemented or modified from time to time.
“Assignee
Lender”
has the
meaning ascribed to such term in Section
9.2.
“Average
Total Assets”
has the
meaning ascribed to such term in Section
7.3.
“Bankruptcy
Code”
means
the Bankruptcy Reform Act of 1978, as amended or recodified.
“Base
Rate”
means
that rate of interest (expressed as a percent per annum) equal to Lender’s
“base” or “prime” rate (which is not necessarily the lowest or most favorable
rate of interest charged by Lender on commercial loans at any time) in effect
from time to time, which means a base rate of interest established by Lender
from time to time that serves as the basis upon which effective rates of
interest are calculated for those loans making reference thereto. Any change
in
the rate of interest hereunder due to a change in the base or prime rate shall
become effective on the date each change in the base or prime rate is announced
by Lender.
“Base
Rate Tranche”
means a
Borrowing Tranche as to which the Base Rate is applicable.
“BHB”
means
Bloomfield Hills Bancorp, Inc.
“Borrower”
has the
meaning ascribed to such term in the preamble hereto.
“Borrower’s
Accountant”
means
Ernst & Young LLP,
or such
other nationally recognized firm of certified public accountants selected by
Borrower as shall from time to time audit Borrower.
“Borrower’s
Liabilities”
means
Borrower’s obligations under this Agreement, the Term Note, the Revolving Note
and any other Loan Documents (other than the principal, interest and other
amounts payable under the Subordinated Debenture).
“Borrowing
Date”
means
the date any Borrowing Tranche is disbursed, renewed or converted (from a LIBO
Tranche to a Base Rate Tranche or from a Base Rate Tranche to a LIBO
Tranche).
“Borrowing
Tranche”
means a
disbursement of proceeds under any Loan pursuant to this Agreement and the
Agreed Upon Terms and Procedures.
“Business
Day”
means
(a) for all purposes other than as covered by clause (b) hereof, a day of the
week (but not a Saturday, Sunday or a legal holiday under the laws of the State
of Illinois or any other day on which banking institutions located in Illinois
are authorized or required by law or other governmental action to close) on
which the Chicago, Illinois offices of Lender are open to the public for
carrying on substantially all of Lender’s business functions and (b) with
respect to determinations in connection with, and payments of principal and
interest on any LIBO Rate Tranche, any day which is a Business Day described
in
clause (a) and which is also a day for trading by and between banks in U.S.
dollar-denominated deposits in the London Interbank Eurodollar Market. Unless
specifically referenced in this Agreement as a Business Day, all references
to
“days” shall be to calendar days.
“Closing”
has the
meaning ascribed to such term in Section
2.5.
“Closing
Date”
means
September 29, 2005.
“Code”
shall
mean the Internal Revenue Code of 1986, as amended or recodified.
“Code
Provisions”
has the
meaning ascribed to such term in Section
8.1.1.16.
“Collateral”
means
all the property (including all tangible and intangible property) in which
the
Collateral Documents grant (or purport to grant) Lender a security
interest.
“Collateral
Documents”
means
the Pledge Agreement, the Collateral Safekeeping Agreement and such other
certificates, documents, and instruments entered into or delivered in connection
with or relating to the Collateral.
“Collateral
Safekeeping Agreement”
means a
Collateral Safekeeping Agreement dated as of the Closing Date among Borrower,
Lender and LaSalle Bank Midwest, N.A., in the form attached as Exhibit
J
hereto
(as amended, restated, supplemented or modified from time to time), pursuant
to
which the Pledged Subsidiary Bank Shares are held by a custodian.
“Default
Rate”
has the
meaning ascribed to such term in the Agreed Upon Terms and
Procedures.
“Disclosure
Schedule”
means,
in aggregate, the disclosures contemplated herein as included in the Disclosure
Schedule, which has been delivered in connection with the execution of this
Agreement.
“Equity
Interest”
means
any and all shares, interests, participations or other equivalents (however
designated) of capital stock of a corporation, any and all equivalent ownership
interests in a Person which is not a corporation and any and all warrants,
options or other rights to purchase any of the foregoing.
“ERISA”
means
the Employee Retirement Income Security Act of 1974, as amended or recodified.
“Event
of Default”
has the
meaning ascribed to such term in Section
8.1.1.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended or recodified.
“Extension
Notice”
means
that certain written notice from Lender to Borrower substantially in the form
of
Exhibit
H
hereto
pursuant to which Lender indicates to Borrower that the necessary approvals
have
been received by Lender to extend the Revolving Loan Maturity Date to December
31, 2006.
“FDIC”
means
the Federal Deposit Insurance Corporation.
“FDI
Act”
means
the Federal Deposit Insurance Act, as amended or recodified.
“Federal
Reserve Notice”
has the
meaning ascribed to such term in Section
8.6.
“Financial
Statements”
has the
meaning ascribed to such term in Section
4.4.
“FRB”
has the
meaning ascribed to such term in the recitals hereto.
“GAAP”
means
generally accepted accounting principles in effect from time to time in the
United States of America.
“Governmental
Agency(ies)”
means,
individually or collectively, any federal, state, county or local governmental
department, commission, board, regulatory authority or agency including, without
limitation, the FRB, the OTS, the MOFIS, the IDFPR and the FDIC.
“Hazardous
Materials”
means
oil, flammable explosives, asbestos, urea formaldehyde insulation,
polychlorinated biphenyls, radioactive materials, hazardous wastes, toxic or
contaminated substances or similar materials, including, without limitation,
any
substances which are “hazardous substances,”“hazardous wastes,”“hazardous
materials” or “toxic substances” under the Hazardous Materials Laws and/or other
applicable environmental laws, ordinances or regulations.
“Hazardous
Materials Laws”
mean
any laws, regulations, permits, licenses or requirements pertaining to the
protection, preservation, conservation or regulation of the environment which
relates to real property, including, without limitation: the Clean Air Act,
as
amended, 42 U.S.C. Section
7401
et seq.;
the Federal Water Pollution Control Act, as amended, 33 U.S.C. Section
1251
et seq.;
the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C.
Section
6901
et seq.;
the Comprehensive Environment Response, Compensation and Liability Act of 1980,
as amended (including the Superfund Amendments and Reauthorization Act of 1986),
42 U.S.C. Section
9601
et seq.;
the Toxic Substances Control Act, as amended, 15 U.S.C. Section
2601
et seq.;
the Occupational Safety and Health Act, as amended, 29 U.S.C. Section
651,
the
Emergency Planning and Community Right-to-Know Act of 1986, 42 U.S.C.
Section
11001
et seq.;
the Mine Safety and Health Act of 1977, as amended, 30 U.S.C. Section
801
et seq.;
the Safe Drinking Water Act, 42 U.S.C. Section
300f
et seq.;
and all comparable state and local laws, laws of other jurisdictions or orders
and regulations.
“IDFPR”
means
the Illinois Department of Financial and Professional
Representation.
“Indebtedness”
means
and includes: (a) all items arising from the borrowing of money that, according
to GAAP now in effect, would be included in determining total liabilities as
shown on the consolidated balance sheet of Borrower or any Subsidiary; (b)
all
obligations secured by any lien in property owned by Borrower whether or not
such obligations shall have been assumed; (c) all guaranties and similar
contingent liabilities with respect to obligations of others; and (d) all other
obligations (including, without limitation, letters of credit) evidencing
obligations to others; provided, however, in the case of the Subsidiary Banks,
Indebtedness shall not include deposits or other indebtedness incurred in the
ordinary course of business and in accordance with safe and sound banking
practices and applicable laws and regulations.
“Indenture(s)”
means,
either collectively or individually, as applicable (a) that certain indenture
dated as of
February
8, 2001,
between
Borrower and Wilmington Trust Company, as indenture trustee, (b) that certain
indenture dated June 20, 2005, between Borrower and Wilmington Trust Company,
and (c) that certain indenture dated May 12, 2004 between Borrower, as successor
to BHB, and Wilmington Trust Company, as trustee.
“Initial Disbursement”
has the
meaning ascribed to such term in Section
3.1.
“Instructions”
means
disbursement instructions given by Borrower to Lender specifying the manner
in
which proceeds of the Loans should be disbursed at Closing.
“Interest
Rate Floor Amount”
means
an interest rate amount equal to 3.50% per annum and, notwithstanding any other
provision in this Agreement or any other Loan Document, shall represent the
lowest level at which interest may accrue under any Loan.
“Interest
Rate Protection Agreement”
means
an interest rate swap, cap, collar or other hedging or derivative agreement,
to
which Lender or any Affiliate of Lender is the counterparty, intended to
mitigate interest rate risk, along with any other related agreement or
instrument executed in connection therewith.
“Junior
Subordinated Debentures”
means,
either collectively or individually, as applicable (a) the 9.50% junior
subordinated debentures due 2030 issued by Borrower, (b) the fixed/floating
rate
junior subordinated debentures due 2035 issued by Borrower and (c) the floating
rate junior subordinated debentures due 2034, issued by BHB, in each case
pursuant to the applicable Indenture.
“Lender”
has the
meaning ascribed to such term in the preamble hereto.
“LIBO
Rate”
means
that rate of interest equal to (a) the quotient of (i) the rate of interest,
rounded upward, if necessary, to the nearest whole multiple of .0625% (1/16
of
1%), quoted by Lender as the London Inter-Bank Offered Rate for deposits in
U.S.
Dollars on the date, at approximately 11:00 a.m. London time, that is two
Business Days prior to any applicable Borrowing Date for purposes of calculating
effective rates of interest for Loans or obligations making reference thereto
for an amount approximately equal to a LIBO Rate Tranche and for a period of
time approximately equal to a LIBOR Period, divided by (ii) 100% minus the
Reserve Percentage.
“LIBO
Rate Tranche”
means a
Borrowing Tranche as to which the LIBO Rate is applicable.
“LIBOR
Period”
means a
period of 90 days, plus or minus one or two days, with respect to a LIBO Rate
Tranche; provided that no LIBOR Period shall extend beyond any Maturity
Date.
“Loans”
has the
meaning ascribed to such term in the recitals hereto.
“Loan
Documents”
means
those documents and instruments (including, without limitation, all agreements,
instruments and documents, including, without limitation, guaranties, mortgages,
deeds of trust, pledges, powers of attorney, consents, assignments, contracts,
notices and all other written matter heretofore, now and/or from time to time
hereafter executed by and/or on behalf of Borrower in connection with this
Agreement and the Loans) entered into or delivered in connection with or
relating to the Loans, including the Collateral Documents and any other
documents listed on the schedule of closing documents prepared in connection
with the Closing. Loan Documents shall also include any Interest Rate Protection
Agreement between Borrower and Lender.
“Maturity
Date”
means
any of the Term Loan Maturity Date, the Revolving Loan Maturity Date and/or
the
Subordinated Debt Maturity Date as the context may indicate.
“MOFIS”
means
the Michigan Office of Financial and Insurance Services.
“Nonperforming
Assets”
shall
have the meaning ascribed to such term in Section
7.4.
“Notes”
means
the Term Note, the Revolving Note and the Subordinated Debenture each as
amended, restated, supplemented or modified from time to time, and each note
or
debenture, as the case may be, delivered in substitution or exchange for any
of
such Notes and, where applicable, shall include the singular as well as the
plural.
“OTS”
means
the Office of Thrift Supervision.
“Permitted
Subsidiary Bank Indebtedness”
means
obligations incurred by any Subsidiary Bank in the ordinary course of business
in such circumstances as may be incidental or usual in carrying on the banking
or trust or mortgage business of a bank, thrift, trust company, or mortgage
company incurred in accordance with applicable laws and regulations and safe
and
sound practices, including obligations incurred in connection with: (a) any
deposits with or funds collected by such Subsidiary; (b) the endorsement of
instruments for deposit or collection in the ordinary course of business, (c)
any bankers acceptance credit of such Subsidiary; (d) any check, note,
certificate of deposit, instrument, money or letter of credit issued by such
Subsidiary; (e) any check, note, certificate of deposit, money order, traveler’s
check, draft or ▇▇▇▇ of exchange issued, accepted or endorsed by such
Subsidiary; (f) any discount with, borrowing from, or other obligation to,
any
Federal Reserve Bank; (g) any agreement made by such Subsidiary to purchase
or
repurchase securities, loans or Federal funds or any interest or participation
in any thereof; (h) any guarantee or similar obligation incurred by such
Subsidiary in the ordinary course of its banking or trust business; (i) any
transaction in the nature of an extension of credit, whether in the form or
a
commitment or otherwise, undertaken by such Subsidiary for the account of a
third party with the application of the same banking considerations and legal
lending limits that would be applicable if the transaction were a loan to such
party; (j) any transaction in which such Subsidiary acts solely in the
fiduciary or agency capacity; and (k) other short-term liabilities similar
to those enumerated in clauses (a) and (g) above, including United States
Treasury tax and loan borrowings.
“Person”
means
an individual, a corporation (whether or not for profit), a partnership, a
limited liability company, a joint venture, an association, a trust, an
unincorporated organization, a government or any department or agency thereof
(including a Governmental Agency) or any other entity or
organization.
“Pledge
Agreement”
means
an Amended and Restated Pledge and Security Agreement dated as of the Closing
Date between Borrower and Lender in the form attached as Exhibit
D
hereto
(as amended, restated, supplemented or modified from time to time), pursuant
to
which the Pledged Subsidiary Bank Shares are pledged to Lender.
“Pledged Subsidiary
Bank Shares”
has the
meaning ascribed to such term in the recitals hereto.
“Potential
Event of Default”
means
an event or circumstance that with the passage of time, the giving of notice
or
both could become an Event of Default.
“PrivateBank”
has the
meaning ascribed to such term in the recitals hereto.
“PrivateBank
Michigan”
has the
meaning ascribed to such term in the recitals hereto.
“PrivateBank
St. Louis”
has the
meaning ascribed to such term in the recitals hereto.
“Rate
Election Notice”
means a
properly completed notice in the form attached as Exhibit E
hereto
or a verbal notice conveyed to Lender in accordance with its disbursement
procedures from time to time.
“Reserve
Percentage”
means
the percentage announced within Lender as the reserve percentage under
Regulation D of the FRB for
Loans
and obligations making reference to a LIBO Rate for a LIBOR Period. The Reserve
Percentage shall be based on Regulation D or other regulations from time to
time
in effect concerning reserves for Eurocurrency Liabilities as defined in
Regulation D from related institutions as though Lender were in a net borrowing
position, as promulgated by the FRB, or its successor.
“Revolving
Loan”
has the
meaning ascribed to such term in the recitals hereto.
“Revolving
Loan Amount”
has the
meaning ascribed to such term in the recitals hereto.
“Revolving
Loan Maturity Date"
means
December 1, 2005 until such time, if at all, as Lender delivers the Extension
Notice to Borrower, whereupon the Revolving Loan Maturity Date shall be December
31, 2006.
“Revolving
Note”
means a
promissory note in the form attached as Exhibit
B
hereto
in the principal amount of the Revolving Loan Amount, as amended, restated,
supplemented or modified from time to time and each note delivered in
substitution or exchange for such note.
“RICO
Related Law”
means
the Racketeer Influenced and Corrupt Organizations Act of 1970 or any other
federal, state or local law for which forfeiture of assets is a potential
penalty.
“SEC”
means
the Securities and Exchange Commission of the United States of
America.
“Senior
Loans”
has the
meaning ascribed to such term in the recitals hereto.
“Sub
Debt Approval Notice”
means
that certain written notice from Lender to Borrower substantially in the form
attached as Exhibit
I
hereto
pursuant to which Lender indicates to Borrower that the necessary approvals
have
been received by Lender to increase the Subordinated Debt Amount to $25,000,000;
provided, however, that the Subordinated Debt Amount shall not so increase,
and
the Sub Debt Approval Notice shall be of no force and effect, until Lender
receives to its satisfaction the deliveries from Borrower contemplated in
Sections
3.2.10.2 and 3.2.10.3;
“Sub
Debt Approval Notice Date”
means
the date on which Borrower receives the Sub Debt Approval Notice from
Borrower.
“Sub
Debt Funding Expiration Date”
means
December 31, 2006.
“Subordinated
Debt”
has the
meaning ascribed to such term in the recitals hereto.
“Subordinated
Debt Amount”
means
$5,000,000 until such time, if at all, as Lender delivers the Sub Debt Approval
Notice to Borrower, whereupon the Subordinated Debt Amount shall be
$25,000,000.
“Subordinated
Debt Maturity Date”
means
December 31, 2016.
“Subordinated
Debenture”
means a
subordinated debenture note in the form attached as Exhibit
C
hereto
in the principal amount of the Subordinated Debt Amount, as amended, restated,
supplemented or modified from time to time and each debenture delivered in
substitution or exchange for such subordinated debenture.
“Subsidiary”
means
each Subsidiary Bank and any other corporation or other entity of which any
Equity Interest is directly or indirectly owned by Borrower.
“Subsidiary
Bank”
has the
meaning ascribed to such term in the recitals hereto.
“Subsidiary
Bank Shares”
has the
meaning ascribed to such term in Section 4.1.3.
“Term
Loan”
has the
meaning ascribed to such term in the recitals hereto.
“Term
Loan Amount”
has the
meaning ascribed to such term in the recitals hereto.
“Term
Loan Maturity Date”
means
December 31, 2016.
“Term
Note”
means a
promissory note in the form attached as Exhibit
A
hereto
in the principal amount of the Term Loan Amount, as amended, restated,
supplemented or modified from time to time and each note delivered in
substitution or exchange for such note.
“Tier
1 Capital”
has the
definition provided in, and shall be determined in accordance with, the rules
and regulations of the FRB.
“Tier
2 Capital”
has the
definition provided in, and shall be determined in accordance with, the rules
and regulations of the FRB.
“Trust(s)”
means,
collectively or individually, as applicable (a) that certain Delaware statutory
business trust known as “PrivateBancorp Capital Trust I,” which is maintained by
Borrower in accordance with that certain Amended and Restated Trust Agreement
dated as of February 8, 2001, (b) that certain Delaware statutory business
trust
known as “PrivateBancorp Statutory Trust II,” which is maintained by Borrower in
accordance with that certain Amended and Restated Declaration of Trust dated
June 20, 2005, and (c) that certain Delaware statutory business trust known
as
“Bloomfield Hills Statutory Trust I,” which is maintained by Borrower, as
successor to BHB, in accordance with that certain Amended and Restated
Declaration of Trust dated May 12, 2004.
“UCC”
shall
mean the Uniform Commercial Code as enacted in the State of Illinois, as amended
or recodified.
“Unaudited
Financial Statements”
shall
have the meaning ascribed to such term in Section 4.4.
1.2. Certain
UCC and Accounting Terms; Interpretations.
Except
as otherwise defined in this Agreement or the other Loan Documents, all words,
terms and/or phrases used herein and therein shall be defined by the applicable
definition therefore (if any) in the UCC. Notwithstanding the foregoing, any
accounting terms used in this Agreement which are not specifically defined
herein shall have the meaning customarily given to them in accordance with
GAAP.
Where the character or amount of any asset or liability or item of income or
expense is required to be determined or any consolidation or other accounting
computation is required to be made for the purposes of this Agreement, it shall
be done in accordance with GAAP except where such principles are inconsistent
with the specific provisions of this Agreement. The foregoing definitions are
equally applicable to both the singular and plural forms of the terms defined.
The words “hereof”, “herein” and “hereunder” and words of like import when used
in this Agreement shall refer to this Agreement as a whole and not to any
particular provision of this Agreement. The word “including” when used in this
Agreement without the phrase “without limitation,” shall mean “including,
without limitation.” All references to time of day herein are references to
Chicago, Illinois time unless otherwise specifically provided. Any reference
contained herein to attorneys’ fees and expenses shall be deemed to be
reasonable fees and expenses of Lender’s outside counsel and of any other
third-party experts or consultants engaged by Lender’s outside counsel on
Lender’s behalf. All references to any Loan Document shall be deemed to be to
such document as amended, modified or restated from time to time. With respect
to any reference in this Agreement to any defined term, (a) if such defined
term
refers to a Person, then it shall also mean all heirs, legal representatives
and
permitted successors and assigns of such Person, and (b) if such defined term
refers to a document, instrument or agreement, then it shall also include any
replacement, extension or other modification thereof.
1.3. Exhibits
and Schedules Incorporated.
All
exhibits and schedules attached hereto or referenced herein, are hereby
incorporated into this Agreement.
2. CREDIT
FACILITIES.
2.1. The
Loans.
Lender
agrees to extend to Borrower the following credit facilities in the aggregate
principal amount of the sum of Term Loan Amount, the Revolving Loan Amount
plus
the Subordinated Debt Amount:
2.1.1. The
Term Loan.
Lender
agrees to extend the Term Loan to Borrower in
accordance with the terms of, and subject to the conditions set forth in, this
Agreement, the Term Note and the other Loan Documents. An
initial Borrowing Tranche in an amount equal to the entire principal amount
of
the Term Loan shall be borrowed on the Closing Date and, thereafter, such
Borrowing Tranche may be converted or renewed from time to time in accordance
with the terms and subject to the conditions set forth in this Agreement.
Subject to Section
2.6,
the
Interest Rate Floor Amount and any other conditions and limitations set forth
in
this Agreement, any Borrowing Tranche under the Term Loan shall be treated
as,
at Borrower’s election subject to and in accordance with the terms in this
Agreement: (a) a
LIBO
Rate Tranche and shall bear interest per annum at a rate equal to 1.20% (120
basis points) plus the LIBO Rate; or (b) a
Base
Rate Tranche and shall bear interest at a rate equal to the Base Rate.
The
unpaid principal balance plus all accrued but unpaid interest on the Term Loan
shall be due and payable on the Term Loan Maturity Date, or such earlier date
on
which such amount shall become due and payable on account of acceleration by
Lender in accordance with the terms of the Term Note and this
Agreement.
2.1.2. The
Revolving Loan.
Lender
agrees to extend the Revolving Loan to Borrower in
accordance with the terms of, and subject to the conditions set forth in, this
Agreement, the Revolving Note and the other Loan Documents.
An
initial Borrowing Tranche under the Revolving Loan shall be borrowed on the
Closing Date and, thereafter, any such Borrowing Tranche may be converted or
renewed from time to time in accordance with the terms and subject to the
conditions set forth in this Agreement. Subject to Section
2.6,
the
Interest Rate Floor Amount and any other conditions and limitations set forth
in
this Agreement, any Borrowing Tranche under the Revolving Loan shall be treated
as, at Borrower’s election subject to and in accordance with the terms in this
Agreement: (a) a
LIBO
Rate Tranche and shall bear interest per annum at a rate equal to 1.20% (120
basis points) plus the LIBO Rate; or (b) a Base Rate Tranche and shall bear
interest at a rate equal to the Base Rate.
The
unpaid principal balance plus all accrued but unpaid interest on the Revolving
Loan shall be due and payable on the Revolving Loan Maturity Date, or such
earlier date on which such amount shall become due and payable on account of
acceleration by Lender in accordance with the terms of the Revolving Note and
this Agreement.
2.1.3. The
Subordinated Debt.
Lender
agrees to extend the Subordinated Debt to Borrower in accordance with the terms
of, and subject to the conditions set forth in, this Agreement, the Subordinated
Debenture and the other Loan Documents. An initial Borrowing Tranche in an
amount equal to the amount set forth in Section
3.1
shall be
borrowed on the Closing Date and, thereafter, Borrower may request additional
disbursements under the Subordinated Debt in accordance with the Agreement
on or
prior to the Sub Debt Funding Expiration Date; provided, however, in no event
shall the principal amount outstanding under the Subordinated Debt exceed the
Subordinated Debt Amount. Any Borrowing Tranche under the Subordinated Debt
may
be converted or renewed from time to time in accordance with the terms and
subject to the conditions set forth in this Agreement. Subject to Section
2.6
and any
other conditions and limitations set forth in this Agreement, any Borrowing
Tranche under the Subordinated Debt shall be treated as,
at
Borrower’s election subject to and in accordance with the terms in this
Agreement: (a) a
LIBO
Rate Tranche and shall bear interest per annum at a rate equal to 1.35% (135
basis points) plus the LIBO Rate; or (b) a Base Rate Tranche and shall bear
interest at a rate equal to the Base Rate.
The
unpaid principal balance plus all accrued but unpaid interest on the
Subordinated Debt shall be due and payable on the Subordinated Debt Maturity
Date, or such earlier date on which such amount shall become due and payable
on
account of acceleration by Lender in accordance with the terms of the
Subordinated Debenture or this Agreement.
2.2. The
Notes and the Subordinated Debenture.
The
Loans shall be evidenced by the Term Note, the Revolving Note and the
Subordinated Debenture.
2.3. Maturity
Dates.
On the
Term Loan Maturity Date, all sums due and owing under this Agreement and the
other Loan Documents with respect to the Term Loan shall be repaid in full.
On
the Revolving Loan Maturity Date, all sums due and owing under this Agreement
and the other Loan Documents with respect to the Revolving Loan shall be repaid
in full. On the Subordinated Debenture Maturity Date, all sums due and owing
under this Agreement and the other Loan Documents with respect to the
Subordinated Debenture shall be repaid in full. Borrower acknowledges and agrees
that Lender has not made any commitments, either express or implied, to extend
the terms of the Loans past their Maturity Dates, unless Borrower and Lender
hereafter specifically
otherwise agree in writing.
2.4. Collateral.
The
Borrower’s Liabilities shall be secured by the collateral pledged pursuant to
the Pledge Agreement. Notwithstanding anything to the contrary in any Loan
Document, the obligations of Borrower to Lender under the Subordinated Debenture
shall be unsecured.
2.5. The
Closing.
The
initial funding of the Loans (the “Closing”)
will
occur at the offices of Barack ▇▇▇▇▇▇▇▇▇▇, counsel to Lender, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ at 9:30 a.m. on the Closing Date,
or
at such other place or time or on such other date as the parties hereto may
agree, by disbursing the proceeds of the Loan in accordance with any
Instructions received at least one Business Day prior to Closing.
2.6. Interest
Rates.
Borrower
agrees that matters concerning the election, payment, application, accrual
and
computation of interest and interest rates shall be in accordance with the
Agreed Upon Terms and Procedures agreed to, as executed, by
Borrower.
2.7. Payments.
Borrower
agrees that matters concerning prepayments, payments and application of payments
shall be in accordance with the Agreed Upon Terms and Procedures agreed to,
as
executed by, Borrower.
2.8. Capital
Adequacy.
If
Lender shall reasonably determine that the application or adoption of any law,
rule, regulation, directive, interpretation, treaty or guideline regarding
capital adequacy, or any change therein or in the interpretation or
administration thereof, whether or not having the force of law (including,
without limitation, application of changes to Regulation H and Regulation Y
of
the FRB issued by the FRB on January 19, 1989 and regulations of the Comptroller
of the Currency, Department of Treasury, 12 CFR Part 3, Appendix A, issued
by
the Comptroller of the Currency on January 27, 1989) increases the capital
required or expected to be maintained by Lender or any person or entity
controlling Lender, and such increase is based upon the existence of Lender’s
obligations hereunder and under other commitments of this type, then, within
10
days after demand from Lender, Borrower shall pay to Lender, from time to time,
such amount or amounts as will compensate Lender or such controlling person
or
entity, as the case may be, for such increased capital requirement. The
determination of any amount to be paid by Borrower under this Section
2.8
shall
take into consideration the policies of Lender or of any Person controlling
Lender with respect to capital adequacy and shall be based upon any reasonable
averaging, attribution and allocation methods. A certificate of Lender setting
forth the amount or amounts as shall be necessary to compensate Lender as
specified in this Section
2.8
shall be
delivered to Borrower and shall be conclusive in the absence of manifest
error.
3. DISBURSEMENTS.
3.1. Initial
and Subsequent Disbursements.
At such
time as all of the terms and conditions set forth in Section
3.2
have
been satisfied by Borrower and Borrower has executed and delivered to Lender
each of the Loan Documents and any other related documents in form and substance
satisfactory to Lender, in its sole and absolute discretion, Lender shall
disburse to Borrower an amount equal to $19,250,000 (the “Initial
Disbursement”),
representing a disbursement of $250,000 under the Term Loan, $14,000,000 under
the Revolving Loan (all of which has previously been disbursed pursuant to
the
2000 Loan Agreement) and $5,000,000 under the Subordinated Debenture. In the
event Borrower fails to satisfy such disbursement conditions, Borrower
nevertheless shall pay all costs and expenses incurred by Lender in connection
with the transactions contemplated herein promptly upon receipt of an invoice
therefor from Lender.
3.2. Conditions
Precedent to Initial Disbursement; Related Delivery
Obligations.
In
conjunction with and as additional (but independent) supporting evidence for
certain of the covenants, representations and warranties made by Borrower
herein, prior to and as a condition of the Initial Disbursement, Borrower shall
deliver or cause to be delivered to Lender each of the following, each of which
shall be in form and substance satisfactory to Lender, in its sole and absolute
discretion:
3.2.1. Searches.
Such
UCC, tax lien and judgment searches as Lender shall determine regarding Borrower
and the Subsidiaries pertaining to the jurisdictions (a) in which Borrower
and
the Subsidiaries are organized and headquartered, and (b) in which the
Collateral is located as determined pursuant to Article 9 of the
UCC.
3.2.2. Loan
Documents.
The
Loan Documents, including, without limitation, the Notes and, except as set
forth in Section
3.2.10,
the
Collateral Documents.
3.2.3. Pledged
Securities. Except as
set
forth in Section
3.2.10,
the
actual certificates representing all of the securities constituting the Pledged
Stock (as defined in the Pledge Agreement) together with irrevocable stock
powers for each such certificate endorsed by Borrower in blank.
3.2.4. Authority
Documents.
Copies
certified by the Secretary or an Assistant Secretary of Borrower of the Bylaws
of Borrower and of PrivateBank, PrivateBank St. Louis and PrivateBank Michigan.
Copies certified by the Secretary or an Assistant Secretary of Borrower of
resolutions of the board of directors of Borrower authorizing the execution,
delivery and performance (including the authority to pledge the Pledged Stock)
of this Agreement, the Notes and the other Loan Documents. An incumbency
certificate of the Secretary or an Assistant Secretary of Borrower certifying
the names of the officer or officers of Borrower authorized to sign this
Agreement, the Notes and the other documents provided for in this Agreement,
together with a sample of the true signature of each such officer (Lender may
conclusively rely on such certificate until formally advised by a like
certificate of any changes therein).
3.2.5. Regulatory
Consents.
Copies
certified by the Secretary or an Assistant Secretary of Borrower of all
documents evidencing all necessary consents, approvals and determinations of
any
Governmental Agency with respect to the transactions contemplated in the Loan
Documents and any other transactions between Lender and Borrower or any
Subsidiary Bank.
3.2.6. Instructions.
The
Instructions.
3.2.7. Certain
Costs of Lender.
Payment
of the costs and expenses incurred by Lender to date in connection with the
transactions contemplated herein, such as Lender’s attorneys’ fees and expenses
and other fees and expenses paid or payable to any other parties.
3.2.8. Other
Requirements.
Such
other additional information regarding Borrower, any Subsidiary and their
respective assets, liabilities (including any liabilities arising from, or
relating to, legal proceedings) and contracts as Lender may require in its
reasonable discretion.
3.2.9. Other
Documents.
Such
other certificates, affidavits, schedules, resolutions, opinions, notes and/or
other documents which are provided for hereunder or as Lender may reasonably
request.
3.2.10. Certain
Post-Closing Deliveries.
3.2.10.1. Borrower
shall execute and deliver the Collateral Safekeeping Agreement as soon as
practicable following the Closing Date, but in no event later than October
14,
2005. Such delivery shall be accompanied by the actual certificates representing
100% of the issued and outstanding common stock of PrivateBank Michigan together
with irrevocable stock powers for each such certificate endorsed by Borrower
in
blank.
3.2.10.2. Borrower
shall deliver the following to Lender on or before the Sub Debt Approval Notice
Date: (a) copies certified by the appropriate secretary of state or Governmental
Agency of (i) the certificate of incorporation of Borrower and (ii) the charter
of each Subsidiary Bank; and (b) good standing certificates for (i) Borrower
issued by the Secretary of State of the state in which it is organized and
in
which it is qualified to do business as a foreign corporation and (ii) each
Subsidiary Bank issued by the IDFPR, OTS, MOFIS or any other applicable
Governmental Agency, as the case may be.
3.2.10.3. Borrower
shall cause to be delivered to Lender on or before the Sub Debt Approval Notice
Date an opinion of counsel of Borrower in substantially the form attached as
Exhibit
F
hereto
and otherwise satisfactory to Lender.
3.3. Conditions
to All Disbursements; Renewals and Conversions.
Notwithstanding anything to the contrary contained herein, the continued
performance, observance and compliance by Borrower of and with all of the
covenants, conditions and agreements of Borrower contained herein (whether
or
not non-performance constitutes an Event of Default) and in the other Loan
Documents shall be further conditions precedent to any disbursements of the
proceeds under any Loan. In addition, Lender shall not be required to disburse
proceeds under any Loan or to renew or convert any Borrowing Tranche at
any
time that any of the following are true:
3.3.1. Default.
There
exists an Event of Default or Potential Event of Default.
3.3.2. Sub
Debt Funding Expiration Date.
In the
case of disbursements under the Subordinated Debt, the Borrowing Date therefor
shall be on or before the Sub Debt Funding Expiration Date.
3.3.3. Legislation
or Proceedings.
Any
legislation has been passed or any suit or other proceeding has been instituted
the effect of which is to prohibit, enjoin (or to declare unlawful or improper)
or otherwise adversely affect, in Lender’s sole and absolute judgment,
Borrower’s performance of its obligations hereunder, or any litigation or
governmental proceeding has been instituted or threatened against Borrower
or
any Subsidiary or any of their officers which, in the sole discretion of Lender,
would materially adversely affect the financial condition or operations of
Borrower or any Subsidiary.
3.3.4. Collateral.
Lender
has reasonable cause to believe that any Collateral might be subject to
forfeiture under any RICO Related Law or any of the Collateral is subject to
any
pledge, lien, security interest, charge or encumbrance other than in favor
of
Lender.
3.3.5. Material
Adverse Change.
There
has occurred, in Lender’s sole and complete discretion, a material adverse
change in the financial condition or affairs of Borrower or any Subsidiary
Bank
since the date of the Borrower Financial Statements.
3.3.6. Representations
and Warranties.
Any
representation or warranty of Borrower contained herein or any information
set
forth in the recitals hereto, shall not be true on and as of the date of any
Borrowing Tranche, with the same effect as though such representations and
warranties had been made, or such information had been presented, on and as
of
such date.
3.3.7. Approvals.
All
necessary or appropriate actions and proceedings have not been taken in
connection with, or relating to, the transactions contemplated hereby and all
documents incident thereto have not been completed and tendered for delivery,
in
substance and form satisfactory to Lender, including, without limitation, if
appropriate in the opinion of Lender, Lender’s failure to have received evidence
of all necessary approvals from Governmental Agencies.
3.3.8. Other
Documents.
Lender
has not received in substance and form reasonably satisfactory to Lender, all
certificates, affidavits, schedules, resolutions, opinions, notes, and/or other
documents which are provided for hereunder or which it may reasonably
request.
Lender’s
refusal to disburse any proceeds of the Loans on account of the provisions
of
this Section
3.3
shall
not alter or diminish any of Borrower’s other obligations hereunder or otherwise
prevent any breach or default of Borrower hereunder from becoming an Event
of
Default. Each Rate Election Notice submitted
by Borrower hereunder shall constitute an affirmation that Borrower has
performed, observed and complied with its covenants, conditions and agreements
contained herein in all material respects and that all representations and
warranties made by Borrower hereunder continue to be true and correct as of
the
date of such Rate Election Notice.
4. GENERAL
REPRESENTATIONS AND WARRANTIES.
Borrower hereby covenants, represents and warrants to Lender as
follows:
4.1. Organization.
Each of
the Borrower and its Subsidiaries: (a) is
a duly organized and validly existing corporation or bank in good standing
under
the laws of the jurisdiction of its incorporation or formation; (b) has
all requisite power and authority, corporate or otherwise, to own, operate
and
lease its properties and to carry on its business as now being conducted; and
(c)
is duly
qualified as a foreign bank or corporation and in good standing in all states
in
which it is doing business, except where it is not required to qualify or where
the failure to so qualify would not have a material adverse effect on the
Borrower and its Subsidiaries taken as a whole. The Borrower has made payment
of
all franchise and similar taxes in the State of Delaware, and in all of the
jurisdictions in which it is qualified to do business, and so far as such taxes
are due and payable at the date of this Agreement. The Borrower does not have
any Subsidiaries other than those set forth in Schedule
4.1
of the
Disclosure Schedule.
4.2. Stock
of Subsidiaries.
All of
the capital stock of each of the Borrower’s Subsidiaries has been duly
authorized and validly issued, and is fully paid and nonassessable. Except
as
set forth in Schedule
4.2
of the
Disclosure Schedule, the Borrower owns all of the issued and outstanding capital
stock of each of its Subsidiaries free and clear of any claim, lien or other
encumbrance, except for the security interests granted to Lender pursuant to
the
Pledge Agreement or as otherwise disclosed on the Borrower’s audited financial
statements for its most recently ended fiscal year.
4.3. Use
of Proceeds.
4.3.1. The
proceeds of the Loans shall be used by the Borrower for working capital and
other general corporate purposes.
4.3.2. The
Borrower does not own any "margin security" as such term is defined in
Regulation G of the FRB. The Borrower will not use any part of the proceeds
of the Loans: (i) directly
or indirectly to purchase or carry any security or reduce or retire any
indebtedness originally incurred to purchase any such security within the
meaning of Regulation G of the Board; or (ii) so
as to involve the Borrower in a violation of Regulation T, U or X of
the
FRB.
4.4. Financial
Statements.
The
Borrower has delivered to the Lender copies of its consolidated financial
statements as of and for the year ending December 31, 2004, and as of
and
for the six months ending June 30, 2005, audited in the case of the
Borrower’s year end financial statements by the Borrower’s certified public
accountants (the "Financial
Statements").
The
Financial Statements are true and correct in all material respects, are in
accordance with the respective books of account and records of the Borrower
and
have been prepared in accordance with GAAP, or applicable banking rules and
regulations, as the case may be, applied on a basis consistent with prior
periods, and fairly and accurately present the consolidated financial condition
of the Borrower and its Subsidiaries and its and their respective assets and
liabilities and results of operations as of such date. Since December 31,
2004, there has been no material adverse change in the financial condition,
or
operations of the Borrower and its Subsidiaries taken as a whole. The Financial
Statements contain and reflect provisions for taxes, reserves and other
liabilities of the Borrower and each of its Subsidiaries in accordance with
GAAP
or applicable banking rules and regulations, as the case may be.
4.5. Title
to Properties.
4.5.1. The
Borrower and its Subsidiaries have good and marketable fee title to all real
property, and good and marketable title to all other property and assets
reflected in the latest balance sheet included as part of the Financial
Statements or purported to have been acquired by the Borrower or its
Subsidiaries subsequent to such date, except property and assets sold or
otherwise disposed of subsequent to the date of such balance sheet in the
ordinary course of business. Except as disclosed in the Financial Statements,
all material property and assets of any kind (real or personal, tangible or
intangible) of the Borrower and each of its Subsidiaries are free from any
material liens, encumbrances or defects in title.
4.5.2. Except
as
disclosed in the Financial Statements, none of the assets or property the value
of which is reflected in the latest balance sheet that is included as part
of
the Financial Statements is held by the Borrower or any of its Subsidiaries
as
lessee under any lease, or as conditional vendee under any conditional sales
contract or other title retention agreement. The Borrower and each of its
Subsidiaries enjoy peaceful and undisturbed possession under all of the material
leases under which they are operating, all of which permit the customary
operations of the Borrower and each of its Subsidiaries. None of such leases
is
in material default and no event has occurred which with the passage of time
or
the giving of notice, or both, would constitute a material default under any
such lease.
4.6. Legal
and Authorized.
The
borrowing of the maximum principal amounts of the Loans, the execution and
performance of this Agreement, the Note, the Pledge Agreement and the other
Loan
Documents and compliance by the Borrower with all of the provisions of this
Agreement and of the other Loan Documents are within the corporate powers of
the
Borrower. Each of this Agreement, the Note, the Pledge Agreement and the other
Loan Documents has been duly authorized, executed and delivered and is the
legal, valid and binding obligation of the Borrower, and is enforceable in
accordance with its respective terms, except as such enforcement may be limited
by bankruptcy, insolvency, reorganization or other laws and subject to general
principles of equity.
4.7. No
Defaults or Restrictions.
Neither
the execution, delivery or performance by the Borrower of any of the Loan
Documents, nor compliance by it with the terms and provisions hereof or thereof:
(a) will
contravene any provision of any law, statute, rule or regulation or any order,
writ, injunction or decree of any court or governmental instrumentality;
(b) will
conflict with or result in any breach of any of the terms, covenants, conditions
or provisions of, or constitute a default under, or result in the creation
or
imposition of (or the obligation to create or impose) any lien upon any of
the
property or assets of the Borrower or any of its Subsidiaries pursuant to the
terms of any indenture, mortgage, deed of trust, credit agreement, loan
agreement or any other agreement, contract or instrument to which the Borrower
or any of its Subsidiaries is a party or by which it or any of its property
or
assets is bound or to which it may be subject; or (c) will
violate any provision of the certificate of incorporation or bylaws of the
Borrower or the organizational documents, charter or bylaws of any of its
Subsidiaries. Neither the Borrower nor any of its Subsidiaries is in material
default in the performance, observance or fulfillment of any of the terms,
obligations, covenants, conditions or provisions contained in any indenture
or
other agreement creating, evidencing or securing indebtedness of any kind or
pursuant to which any such indebtedness is issued, or other agreement or
instrument to which the Borrower or any of its Subsidiaries is a party or by
which it or its properties may be bound or affected, which would have a material
adverse effect on the financial condition and operations of the Borrower and
its
Subsidiaries taken as a whole.
4.8. Governmental
Consent.
No
order, consent, approval, license, authorization or validation of, or filing,
recording or registration with (except as have been obtained or made prior
to
the date of this Agreement), or exemption by, any governmental or public body
or
authority, or any subdivision thereof, is required to authorize, or is required
in connection with: (a) the
execution, delivery and performance by the Borrower of this Agreement, the
Note,
the Pledge Agreement or any of the other Loan Documents; or (b) the
legality, validity, binding effect or enforceability of any of the Loan
Documents.
4.9. Taxes.
Each of
the Borrower and its Subsidiaries has filed and will continue to file all tax
returns required to be filed by it and has paid and will pay all income taxes
payable by it which have become due pursuant to such tax returns and all other
taxes and assessments payable by it which have become due, other than those
not
yet delinquent and except for those contested in good faith and for which
adequate reserves have been established. Each of the Borrower and its
Subsidiaries has paid, or has provided adequate reserves (in the good faith
judgment of the management of the Borrower) for the payment of, all federal
and
state income taxes applicable for all prior fiscal years and for the current
fiscal year to the date hereof. Except as set forth in Schedule
4.9
of the
Disclosure Schedule, the Borrower has no knowledge of any audit, assessment
or
other proposed action or inquiry of the Internal Revenue Service or any other
taxing authority with respect to any tax liability of the Borrower or any of
its
Subsidiaries.
4.10. Compliance
with Law.
Each of
the Borrower and its Subsidiaries is and will continue to be in material
compliance with all applicable statutes, regulations and orders of, and all
applicable material restrictions imposed by, all governmental bodies, domestic
or foreign, in respect of the conduct of its business and the ownership of
its
property (including applicable statutes, regulations, orders and restrictions
relating to environmental standards and controls), except such noncompliance
as
would not, in the aggregate, have a material adverse effect on the business,
operations or condition (financial or otherwise) of the Borrower and its
Subsidiaries taken as a whole.
4.11. Employee
Benefit Plans.
All
employee benefit plans, as defined in Section 3(3) of ERISA, established
or
maintained by the Borrower or any of its Subsidiaries or to which any of them
contributes, are in compliance in all material respects with all applicable
requirements of ERISA, and are in compliance in all material respects with
all
applicable requirements (including qualification and non-discrimination
requirements in effect) of the Code, for obtaining the tax benefits the Code
thereupon permits with respect to such employee benefit plans. For purposes
of
this Section, non-compliance with the Code and ERISA is material if such
non-compliance would reasonably be expected to have a material adverse effect
on
the financial condition, assets or business of the Borrower and its Subsidiaries
taken as a whole. No such employee benefit plan has, or at the time of any
Loan
will have, any amount of unfunded benefit liabilities (as defined in
Section 4001(a)(18) of ERISA) for which the Borrower or any of its
Subsidiaries would be liable to any Person under Title IV of ERISA if any such
employee benefit plan were terminated as of the date hereof or as of the date
of
such Loan, which amounts would be material to the Borrower or any of its
Subsidiaries. Such employee benefit plans are funded in accordance with
Section 412 of the Code (if applicable). There would be no obligations
which would be material to the Borrower or any of its Subsidiaries under Title
IV of ERISA relating to any such employee benefit plan that is a multi-employer
plan if any such plan were terminated or if the Borrower or any of its
Subsidiaries withdrew from any such plan as of the date hereof or as of the
date
of any Loan.
4.12. No
Material Adverse Change.
Since
December 31, 2004, none of the business, operations, properties or assets of
the
Borrower and its Subsidiaries taken as a whole has been materially and adversely
affected in any way as the result of any act or event, including fire,
explosion, accident, act of God, strike, lockout, flood, drought, storm,
earthquake, combination of workers or other labor disturbance, riot, activity
of
armed forces or of the public enemy, embargo, or nationalization, condemnation,
requisition or taking of property, or cancellation or modification of contracts,
by any domestic or foreign government or any instrumentality or agency
thereof.
4.13. Regulatory
Enforcement Actions.
Neither
the Borrower nor any of its Subsidiaries, nor any of the officers or directors
or any of them, is now operating under any restrictions, agreements, memoranda,
or commitments (other than restrictions of general application) imposed by
any
Governmental Agency, nor are any such restrictions to the knowledge of the
Borrower threatened or agreements, memoranda or commitments being sought by
any
Governmental Agency.
4.14. Hazardous
Materials.
Neither
the Borrower nor any of its Subsidiaries is in material violation of any
applicable statute, regulation, ordinance or policy of any governmental entity
relating to the ecology, human health, safety or the environment and no
Hazardous Material is located on any real property owned or leased by the
Borrower or any of its Subsidiaries or has been discharged from or to, or
penetrated into, any real property (or surface or subsurface rivers or streams
crossing or adjoining any real property) owned or leased by the Borrower or
any
of its Subsidiaries or the aquifer underlying any real property owned or leased
by the Borrower or any of its Subsidiaries.
4.15. Pending
Litigation.
There
are no actions, suits, proceedings or written agreements pending, or, to the
best knowledge of the Borrower, threatened or proposed, against the Borrower
or
any of its Subsidiaries at law or in equity or before or by any federal, state,
municipal, or other governmental department, commission, board, or other
administrative agency, domestic or foreign that if adversely determined would
have a material adverse effect on the Borrower and its Subsidiaries taken as
a
whole; and none of the Borrower nor any of its Subsidiaries is in default with
respect to any material order, writ, injunction, or decree of, or any written
agreement with, any court, commission, board or agency, domestic or
foreign.
4.16. Investment
Company Act.
None of
the Borrower or any of its Subsidiaries is an "investment company" or a company
"controlled" by an "investment company," within the meaning of the Investment
Company Act of 1940, as amended.
4.17. No
Misstatement of Material Fact.
No
information, exhibit, report or document furnished by the Borrower to the Lender
in connection with the negotiation or execution of this Agreement or any of
the
other Loan Documents contained any material misstatement of fact or omitted
to
state a material fact or any fact necessary to make the statements contained
therein not misleading, all as of the date when furnished to the
Lender.
4.18. Subordination.
The
Junior Subordinated Debentures are expressly subordinate and junior in all
respects (including, without limitation, with respect to the right of payment)
to the Loans to the extent provided in the applicable Indenture. The Loans
constitute “Senior Indebtedness” as defined in each Indenture.
4.19. Representations
and Warranties Generally.
The
representations and warranties set forth in this Agreement or in any other
Loan
Document will be true and correct on the date of this Agreement and as otherwise
provided herein with the same force and effect as if made on each such date.
All
representations, warranties, covenants and agreements made in this Agreement
or
in any certificate or other document delivered to Lender by or on behalf of
Borrower pursuant to or in connection with this Agreement shall be deemed to
have been relied upon by Lender notwithstanding Lender’s review of any documents
or materials delivered by Borrower to Lender pursuant to the terms hereof and
notwithstanding any investigation heretofore or hereafter made by Lender or
on
its behalf (and Borrower hereby acknowledges such reliance by Lender in making
the Loans and all disbursements thereunder) and, furthermore, shall survive
the
making of any or all of the disbursements of proceeds under the Loans and
continue in full force and effect as long as there remains unperformed any
obligations to Lender hereunder or under any of the other Loan
Documents.
5. GENERAL
COVENANTS, CONDITIONS AND AGREEMENTS.
Borrower hereby further covenants and agrees with Lender as
follows:
5.1. Negative
Covenants.
The
Borrower agrees that until it satisfies all of its obligations to the Lender,
including its obligations to pay in full all principal, interest and other
amounts due in accordance with the terms of this Agreement, the Note, the Pledge
Agreement and the other Loan Documents, it shall not take any of the actions
set
forth below in this Section
5.1,
nor
permit any of its Subsidiaries to take any of the following actions, without
the
prior written consent of the Lender, which consent shall not be unreasonably
withheld.
5.1.1. Incur
Indebtedness.
Borrower shall not, nor shall it cause, permit or allow any Subsidiary to
create, assume, incur, have outstanding, or in any manner become liable in
respect of any Indebtedness other than that represented by this Agreement and
the Notes;
provided, however, that the foregoing shall not restrict nor operate to
prevent:
5.1.1.1. the
obligations of the Borrower owing to the Lender and other indebtedness and
obligations of the Borrower or any of its Subsidiaries from time to time owing
to the Lender;
5.1.1.2. Permitted
Subsidiary Bank Indebtedness;
5.1.1.3. Subject
to Section
5.1.1.4,
any
indebtedness of the Borrower solely to any of its Subsidiaries, any indebtedness
of any of the Borrower’s Subsidiaries solely to the Borrower and any
indebtedness of any of the Borrower’s Subsidiaries solely to each
other;
5.1.1.4. unsecured
subordinated indebtedness that ranks junior to, or on parity with, the
Subordinated Debt in all respects,
including, without limitation, as may be issued in connection with trust
preferred securities caused to be issued by Borrower;
5.1.1.5. purchase
money indebtedness and capitalized lease obligations secured by liens permitted
hereby; and
5.1.1.6. unsecured
indebtedness not otherwise permitted under this Section 5.1.1
in an
aggregate amount not to exceed $20,000,000 outstanding at any time.
5.1.2. Encumbrances.
Borrower shall not, nor shall it cause, permit or allow any Subsidiary to
directly or indirectly create, assume, incur, suffer or permit to exist any
pledge, encumbrance, security interest, assignment, lien or charge of any kind
or character on any of its assets, excepting only liens existing on the date
hereof as shown on the Financial Statements; provided,
however, that the foregoing shall not restrict nor operate to
prevent:
5.1.2.1. liens
arising by statute in connection with worker’s compensation, unemployment
insurance, old age benefits, social security obligations, taxes, assessments,
statutory obligations or other similar charges, good faith cash deposits in
connection with tenders, contracts or leases to which the Borrower or any of
its
Subsidiaries is a party or other cash deposits in any such foregoing case that
is required to be made in the ordinary course of business, provided in each
case
that the obligation is not for borrowed money and that the obligation secured
is
not overdue or, if overdue, is being contested in good faith by appropriate
proceedings which prevent enforcement of the matter under contest and adequate
reserves have been established therefor;
5.1.2.2. mechanics’,
workmen’s, materialmen’s, landlords’, carriers’, or other similar liens arising
in the ordinary course of business with respect to obligations which are not
due
or which are being contested in good faith by appropriate proceedings which
prevent enforcement of the matter under contest;
5.1.2.3. the
pledge of assets for the purpose of securing an appeal, stay or discharge in
the
course of any legal proceeding, provided that the aggregate amount of
liabilities of the Borrower and its Subsidiaries secured by a pledge of assets
permitted under this subsection, including interest and penalties thereon,
if
any, shall not be in excess of $10,000,000 at any one time
outstanding;
5.1.2.4. liens,
charges and encumbrances incidental to the conduct of the business of the
Subsidiary Banks incurred in the ordinary course of business and not in
connection with the borrowing of money, and liens securing Permitted Subsidiary
Bank Indebtedness in the ordinary course of business;
5.1.2.5. liens
on
property of the Borrower or any of its Subsidiaries created solely for the
purpose of securing indebtedness permitted by Section
5.1.1.5,
representing or incurred to finance, refinance or refund the purchase price
of
property, provided that no such lien shall extend to or cover other property
of
the Borrower or such Subsidiary other than the respective property so acquired,
and the principal amount of indebtedness secured by any such lien shall at
no
time exceed the original purchase price of such property;
5.1.2.6. liens
to
secure public funds or other pledges of funds required by law to secure
deposits;
5.1.2.7. repurchase
agreements, reverse repurchase agreements and other similar transactions entered
into by any Subsidiary Bank in the ordinary course of its banking or trust
business; and
5.1.2.8. utility
easements, building restrictions and such other encumbrances or charges against
real property as are of a nature generally existing with respect to properties
of a similar character and which do not in any material way affect the
marketability of the same or interfere with the use thereof in the business
of
the Borrower or its Subsidiaries.
5.1.3. Certain
Business Activities.
Borrower shall not, nor shall it cause, permit or allow any Subsidiary to engage
in any business or activity not permitted by all applicable laws and
regulations.
5.1.4. Mergers
and Consolidations; Sale of Assets.
Borrower shall not, nor shall it cause, permit or allow any Subsidiary (a)
to
merge into or consolidate with or into any other person, firm or corporation,
provided, however, any such merger or consolidation shall be permitted so long
as the surviving entity is a wholly owned Subsidiary and such merger or
consolidation would not have a material adverse effect on the financial
condition or operations of the Borrower and its Subsidiaries taken as a whole,
or (b) dispose of by sale, lease or otherwise property or assets now owned
or
hereafter acquired, other than in the ordinary course of business.
5.1.5. Loans.
Borrower shall not, nor shall it cause, permit or allow any Subsidiary to make
any loans or advances whether secured or unsecured to any Person other than
(a)
loans or advances made in the ordinary course of its business and in accordance
with applicable laws and regulations and safe and sound business practices,
(b)
the loans made by the Trusts to Borrower (in the aggregate principal amount
of
$78,000,000) evidenced by the corresponding Junior Subordinated Debentures,
and
(c) any other loan made to Borrower by a trust that has been established by
Borrower in connection with any trust preferred securities caused to be issued
by, or reflected in the consolidated financial statements of, Borrower, so
long
as the indebtedness of Borrower evidencing such loan is junior to or on parity
with the Subordinated Debt in all respects.
5.1.6. Investments.
Borrower shall not, nor shall it cause, permit or allow any Subsidiary to
acquire the capital stock, assets or obligations of or any interest in another
corporation, partnership, trust, limited liability company or any other entity
except where such acquisition would not, when considered as of the date of
such
acquisition, have a material adverse effect on the financial condition or
operations of the Borrower and its Subsidiaries taken as a whole.
5.1.7. Redemption
of Capital Stock.
Borrower shall not, nor shall it cause, permit or allow any Subsidiary to redeem
any of its capital stock or otherwise change its capital structure where the
same would result in a material adverse effect on the Borrower and its
Subsidiaries taken as a whole.
5.1.8. Unsafe
and Unsound Practices.
Borrower shall not, nor shall it cause, permit or allow any Subsidiary to engage
in any unsafe or unsound business practice that would reasonably be expected
to
have a material adverse effect upon the Borrower and its Subsidiaries taken
as a
whole.
5.1.9. Compliance
with Loan Documents.
Borrower shall not, nor shall it cause, permit or allow any Subsidiary to breach
or fail to perform or observe any of the material terms and conditions of this
Agreement, the Notes, the Pledge Agreement or any other document or agreement
entered into or delivered in connection with, or relating to, the
Loans.
5.1.10. Compliance
with Laws.
Borrower shall not, nor shall it cause, permit or allow any Subsidiary to commit
any material violation of any law or regulation, or any condition imposed by
or
undertaking provided to any Government Agency which would result in a material
adverse effect on the Borrower and its Subsidiaries taken as a
whole.
5.1.11. USA
Patriot Act Matters.
Borrower shall not, nor shall it permit, cause or allow, any Subsidiary to
(a)
be or become subject at any time to any law, regulation, or list of any
Government Agency (including, without limitation, the U.S. Office of Foreign
Asset Control list) that prohibits or limits the Lender from making any advance
or extension of credit to the Borrower or from otherwise conducting business
with the Borrower, or (b) fail to provide documentary or other evidence of
the
Borrower’s identity as may be requested by the Lender at any time to enable the
Lender to verify the Borrower’s identity or to comply with any applicable law or
regulation, including, without limitation, Section 326 of the USA Patriot Act
of
2001, 31 U.S.C. Section 5318.
5.2. Affirmative
Covenants.
The
Borrower agrees that until it satisfies all of its obligations to the Lender,
including its obligations to pay in full all principal, interest and other
amounts due in accordance with the terms of this Agreement, the Note, the Pledge
Agreement and the other Loan Documents, it shall perform the covenants set
forth
below in this Section
5.2.
5.2.1. Reporting.
Borrower shall furnish and deliver to the Lender:
5.2.1.1. as
soon
as practicable, and in no event later than 45 days after the end of each of
the
first three calendar quarterly periods of the Borrower a copy of: (a) the
Borrower’s balance sheet at the end of such quarter, and the Borrower’s income
statement and statements of changes in financial position and cash flow for
the
three months then ended, with all supporting schedules, prepared on a
consolidated basis in accordance with GAAP consistently applied and signed
by
the Chief Financial Officer of the Borrower; and (b) all financial statements,
including all Call Reports, filed by any of the Subsidiary Banks;
5.2.1.2. as
soon
as practicable, and in no event later than 90 days after the end of each
calendar year, a copy of: (a) the Borrower’s consolidated balance sheet as of
the end of such year and the Borrower’s consolidated income, changes in
financial position and cash flow statements for the year then ended audited
by
Borrower’s Accountant and accompanied by an unqualified opinion; and (b) all
financial statements and reports, including Call Reports and annual reports,
filed annually by any of the Subsidiary Banks with any state or federal bank
regulatory authority;
5.2.1.3. promptly
after receiving knowledge thereof, notice in writing of all charges,
assessments, actions, suits and proceedings (as well as notice of the outcome
of
any such charges, assessments, actions, suits and proceedings) that are proposed
or initiated by, or brought before, any court or Governmental Agency, in
connection with the Borrower or any of its Subsidiaries, other than ordinary
course of business litigation not involving the FRB, the FDIC, the OTS, the
MOFIS, the IDFPR or any other Government Agency, which, if adversely decided,
would not have a material effect on the financial condition or operations of
the
Borrower and its Subsidiaries taken as a whole;
5.2.1.4. promptly
after the occurrence thereof, notice of any other matter which has resulted
in a
materially adverse change in the financial condition or operations of the
Borrower and its Subsidiaries taken as a whole;
5.2.1.5. at
the
same time as the quarterly financial reports referred to in Section
5.2.1.1,
a
quarterly compliance certificate in the form attached as Exhibit
G
hereto,
which certificate shall state that (a) Borrower is in compliance in
all
material respects with all covenants contained in this Agreement, (b) that
no Potential Event of Default or Event of Default has occurred or is continuing,
or, if there is any such event, describing such event, the steps, if any, that
are being taken to cure it, and the time within which such cure will occur
and
(c) all representations and warranties made by Borrower herein continue to
be
true as of the date of such certificate. Such quarterly compliance certificate
shall be signed by the Chief Executive Officer, President or Chief Financial
Officer of Borrower and shall also contain, in a form and with such specificity
as is reasonably satisfactory to Lender, a computation of the financial
covenants set forth in Article
7
hereof
and such additional information as Lender shall have reasonably requested by
Borrower prior to the submission thereof;
and
5.2.1.6. to
the
extent permitted by law, promptly after same are available, copies of each
annual report, proxy or financial statement or other report or communication
sent by Borrower or any Subsidiary to the shareholders of Borrower. Promptly
following Lender’s written request therefor, one copy of each written audit
report submitted to Borrower by Borrower’s Accountant (or such audit reports
that are so requested by Lender).
5.2.2. Payment
of Taxes.
Borrower shall promptly pay and discharge all taxes, assessments and other
governmental charges imposed upon the Borrower or any of its Subsidiaries,
upon
the income, profits, or property of the Borrower or any of its Subsidiaries,
and
all claims for labor, material or supplies which, if unpaid, might by law become
a lien or charge upon the property of the Borrower or any of its Subsidiaries;
provided, however, that
the
Borrower shall not be required to pay any such tax, assessment, charge or claim,
so long as the validity thereof is being contested in good faith by appropriate
proceedings, and reserves therefor are maintained on the books of the Borrower
or any of its Subsidiaries, as the case may be.
5.2.3. Corporate
Existence.
Borrower shall maintain its own corporate existence and good standing and that
of each of its Subsidiaries in all jurisdictions in which it or they are doing
business, except where the failure to so qualify would not have a material
adverse effect on the Borrower and its Subsidiaries taken as a
whole.
5.2.4. Insurance.
Borrower shall maintain bonds and insurance for it and each of its Subsidiaries
with responsible and reputable insurance companies or associations in such
amounts and covering such risk as is usually carried by owners of similar
businesses and properties in the same general area in which the Borrower
operates.
5.2.5. Filings
with Governmental Agencies.
Borrower shall file or cause to be filed in a timely manner all filings of
it
and each of its Subsidiaries with all Governmental Agencies and cause such
filings to be true and correct in all material respects.
5.2.6. Books
and Records.
Borrower shall maintain or cause to be maintained its books, accounts and
records and those of each of its Subsidiaries in the usual, regular and ordinary
manner, on a basis consistent with prior years and in material compliance with
any legal requirements.
5.2.7. Compliance
with Laws.
Borrower shall comply and cause each of its Subsidiaries to comply with each
federal, state, local, municipal, foreign, international or other administrative
order, law, ordinance, principle of common law, regulation or statute applicable
to it or to the conduct or operation of its respective business or the ownership
or use of any of its respective assets where the failure to be in such full
compliance would reasonably be expected to have a material adverse effect on
the
Borrower and its Subsidiaries taken as a whole.
5.2.8. Inspection
Rights.
Borrower shall, and shall cause each Subsidiary to, permit the Lender and its
duly authorized representatives and agents to visit and inspect the corporate
books and financial records of the Borrower and each of its Subsidiaries, to
examine and make copies of the books of accounts and other financial records
of
the Borrower and each of its Subsidiaries, and to discuss the affairs, finances
and accounts of the Borrower and each of its Subsidiaries with, and to be
advised as to the same by, its officers, employees and independent public
accountants (and by this provision the Borrower hereby authorizes such
accountants to discuss with the Lender the finances and affairs of the Borrower
and of each of its Subsidiaries) at such reasonable times and reasonable
intervals as the Lender may designate; provided, however, that neither the
Borrower nor any of its Subsidiaries shall be required to make available to
the
Lender any customer lists or other proprietary information unless such
information is required by the Lender to determine the financial condition
of
the Borrower or any of its Subsidiaries or to determine the ability of either
to
meet its obligations hereunder; and
5.2.9. Additional
Information.
Borrower shall provide promptly to the Lender other information concerning
the
business, operations, financial condition and regulatory status of the Borrower
and its Subsidiaries as the Lender may from time to time reasonably
request.
6. ADDITIONAL
COVENANTS.
6.1. Lender
Expenses.
Whether
or not any Loan is made, Borrower will (a) pay all reasonable costs and expenses
of the Lender incident to the transactions contemplated by this Agreement
including, without limitation, all costs and expenses incurred in connection
with the preparation, negotiation and execution of the Loan Documents, or in
connection with any modification, amendment, alteration, or the enforcement
of
this Agreement, the Notes, the Subordinated Debenture or the other Loan
Documents, including, without limitation, the Lender’s out-of-pocket expenses
and the charges and disbursements to counsel retained by the Lender, and (b)
pay
and save the Lender and all other holders of the Notes and Subordinated
Debenture harmless against any and all liability with respect to amounts payable
as a result of (i) any taxes which may be determined to be payable in connection
with the execution and delivery of this Agreement, the Notes, the Subordinated
Debenture or the other Loan Documents or any modification, amendment or
alteration of the terms or provisions of this Agreement, the Notes, the
Subordinated Debenture or the other Loan Documents, (ii) any interest or
penalties resulting from nonpayment or delay in payment of such expenses,
charges, disbursements, liabilities or taxes, and (iii) any income taxes in
respect of any reimbursement by Borrower for any of such violations, taxes,
interests or penalties paid by the Lender. The obligations of the Borrower
under
this Section
6.1
shall
survive the repayment in full of the Notes and the Subordinated Debenture.
Any
of the foregoing amounts incurred by the Lender and not paid by the Borrower
upon demand shall bear interest from the date incurred at the rate of interest
in effect or announced by Lender from time to time as its Base Rate plus
6% per
annum
and shall be deemed part of the Borrower’s Liabilities hereunder.
6.2. Subordinated
Debt.
If the
Subordinated Debt ceases to be deemed to be Tier 2 Capital other than due to
the
limitation imposed by the second sentence of 12 C.F.R. §250.166(e), which limits
the capital treatment of subordinated debt during the five years immediately
preceding the maturity date of the subordinated debt, Borrower shall: (a)
immediately notify Lender; and (b) immediately upon request of Lender execute
and deliver all such agreements (including, without limitation, pledge
agreements and replacement notes) as Lender may reasonably request in order
to
restructure the obligations evidenced by the Subordinated Debt as a senior
secured obligation of Borrower.
7. FINANCIAL
COVENANTS.
7.1. Capitalization.
Borrower (on a consolidated basis) shall maintain and cause each Subsidiary
Bank
to maintain such capital as may be necessary to cause (a) Borrower to be
classified as “adequately capitalized” and (b) each Subsidiary Bank to be
classified as “well capitalized,” each in accordance with the rules and
regulations of its primary federal regulator, as in effect from time to time
and
consistent with the financial information and reports contemplated in
Section
5
hereof.
7.2. Regulatory
Capital.
Borrower shall cause the aggregate amount of Tier 1 Capital of the Subsidiary
Banks to be not less than $150,000,000 at all times. For purposes of this
Agreement, “Tier
1 Capital”
shall
have the definition provided in, and shall be determined in accordance with
the
plan and regulation of the primary federal regulator of each Subsidiary Bank
and
shall be consistent with the financial information and reports contemplated
in
Section
5
hereof.
7.3. Minimum
Return on Average Assets.
Borrower (on a consolidated basis) shall maintain,
on an
annualized basis, an annual return on Average Total Assets of greater than
0.80%. The covenant set forth in this Section
7.3
shall be
calculated quarterly beginning with the quarter ended September 30, 2005, shall
be derived from the quarterly report filed by Borrower with its primary federal
regulator and shall be consistent with the financial information and reports
contemplated in Section
5
hereof. For
purposes of this Agreement, “Average
Total Assets”
shall
have the definitions provided in, and shall be determined in accordance with,
the rules and regulations of the primary federal regulator of
Borrower.
7.4. Non-Performing
Asset Ratio.
Borrower
(on a consolidated basis) shall maintain at all times the ratio of (a)
Nonperforming Assets to (b) the sum of total stockholders’ equity and allowance
for loan losses at less than 25%. The ratio set forth in this Section
7.4
shall be
calculated quarterly beginning with the quarter ended September 30, 2005, shall
be derived from the quarterly report filed with Borrower’s primary federal
regulator and shall be consistent with the financial information and reports
contemplated in Section
5
hereof.
For purposes of this
Agreement, “Nonperforming
Assets”
shall
mean, on an aggregate basis for all Subsidiary Banks, the sum of all other
real
estate owned and repossessed assets, non-accrual loans, restructured loans
and
loans on which any payment is 90 or more days past due but which continue to
accrue interest.
8. BORROWER’S
DEFAULT.
8.1. Borrower’s
Defaults and Lender’s Remedies.
8.1.1. Events
of Default.
Each of
the following shall constitute an “Event of Default” under this
Agreement:
8.1.1.1. Borrower
fails to pay, when due, any principal of or installment of interest on any
Note;
or
8.1.1.2. Borrower
fails to pay, when due, any other amount payable under this Agreement, the
Notes
(other than principal or interest) or any other Loan Document, and such failure
continues for a period of five Business Days after notice thereof from Lender
to
Borrower; or
8.1.1.3. Borrower
fails to keep or perform any of its agreements, undertakings, obligations,
covenants or conditions under this Agreement not expressly referred to in
another clause of this Section
8.1
and such
failure continues for a period of ten days after notice thereof from Lender
to
Borrower; or
8.1.1.4. Any
“Event of Default” or “Default” as defined under, or a default or breach in any
respect by Borrower of any representation, warranty, covenant or agreement
under, any of the Loan Documents occurs; or
8.1.1.5. Any
representation, warranty or certification made in this Agreement by Borrower
or
otherwise made in writing in connection with or as contemplated by this
Agreement or any of the other Loan Documents by Borrower shall be or become
materially incorrect or false, or any representation to Lender by Borrower
as to
the financial condition or credit standing of Borrower is or proves to be false
or misleading; or
8.1.1.6. The
dissolution of Borrower, or the occurrence of any material management or
organizational change in Borrower which Lender determines, in its sole and
absolute discretion, shall have a material adverse effect on any Loan, or on
the
ability of Borrower to perform its respective obligations under the Loan
Documents; or
8.1.1.7. The
execution by Borrower of any secondary or additional financing agreements or
arrangements of any kind whatsoever secured, in whole or in part, by all or
any
part of or interest in any Collateral; or
8.1.1.8. There
occurs, in the reasonable opinion of Lender, a material adverse change in the
financial condition of Borrower; or
8.1.1.9. Any
order
or decree is entered by any court of competent jurisdiction directly or
indirectly enjoining or prohibiting Lender or Borrower from performing any
of
their obligations under this Agreement or any of the Loan Documents, and such
order or decree is not vacated, and the proceedings out of which such order
or
decree arose are not dismissed, within 60 days after the granting of such decree
or order; or
8.1.1.10. The
filing of formal charges by any governmental or quasi-governmental entity,
including, without limitation, the issuance of an indictment, under a RICO
Related Law against Borrower or any Affiliate of Borrower; or
8.1.1.11. Final
judgment or judgments for the payment of money is or are outstanding against
any
Borrower or against any of their property or assets, and any one of such
judgments has remained unpaid, unvacated, unbonded or unstayed by appeal or
otherwise for a period of 30 days from the date of its entry; or
8.1.1.12. The
FRB,
the FDIC, the OTS, the MOFIS, the IDFPR or other Governmental Agency charged
with the regulation of bank holding companies or depository institutions: (a)
issues to Borrower or any Subsidiary Bank, or initiates any action, suit or
proceeding to obtain against, impose on or require from Borrower or any
Subsidiary Bank, a cease and desist order or similar regulatory order, the
assessment of civil monetary penalties, articles of agreement, a memorandum
of
understanding, a capital directive, a capital restoration plan, restrictions
that prevent or as a practical matter materially impair the payment of dividends
by any Subsidiary Bank, the effect of which would materially and adversely
affect the ability of Borrower to repay any Loan, or the payments of any debt
by
Borrower, restrictions that make the payment of the dividends by any Subsidiary
Bank, the effect of which would materially and adversely affect the ability
of
Borrower to repay any Loan, or the payment of debt by Borrower subject to prior
regulatory approval, a notice or finding under Section 8(a) of the FDI Act,
or
any similar enforcement action, measure or proceeding; or (b) proposes
or
issues to any executive officer or director of Borrower or any Subsidiary Bank,
or initiates any action, suit or proceeding to obtain against, impose on or
require from any such officer or director, a cease and desist order or similar
regulatory order, a removal order or suspension order, or the assessment of
civil monetary penalties, the effect of which would materially and adversely
affect the ability of Borrower to repay any Loan; or
8.1.1.13. Any
Subsidiary Bank is notified that it is considered an institution in “troubled
condition” within the meaning of 12 U.S.C. Section
1831i
and the
regulations promulgated thereunder, or if a conservator or receiver is appointed
for any Subsidiary Bank; or
8.1.1.14. Borrower
or any Subsidiary becomes insolvent or is unable to pay its debts as they
mature; or makes an assignment for the benefit of creditors or admits in writing
its inability to pay its debts as they mature; or suspends transaction of its
usual business; or if a trustee of any substantial part of the assets of
Borrower or any Subsidiary is applied for or appointed, and if appointed in
a
proceeding brought against Borrower, Borrower by any action or failure to act
indicates its approval of, consent to, or acquiescence in such appointment,
or
within 30 days after such appointment, such appointment is not vacated or stayed
on appeal or otherwise, or shall not otherwise have ceased to continue in
effect; or
8.1.1.15. Any
proceedings involving Borrower or any Subsidiary are commenced by or against
Borrower or any Subsidiary under any bankruptcy, reorganization, arrangement,
insolvency, readjustment of debt, dissolution or liquidation law or statute
of
the federal government or any state government and, with respect to Borrower
only, if such proceedings are instituted against Borrower, Borrower by any
action or failure to act indicates its approval of, consent to or acquiescence
therein, or an order shall be entered approving the petition in such proceedings
and within 30 days after the entry thereof such order is not vacated or stayed
on appeal or otherwise, or shall not otherwise have ceased to continue in
effect; or
8.1.1.16. Borrower
applies for, consents to or acquiesces in the appointment of a trustee,
receiver, conservator or liquidator for itself under Chapter 7 or
Chapter 11 of the Bankruptcy Code (the “Code
Provisions”),
or in
the absence of such application, consent or acquiescence, a trustee,
conservator, receiver or liquidator is appointed for Borrower under the Code
Provisions, and is not discharged within 30 days, or any bankruptcy,
reorganization, debt arrangement or other proceeding or any dissolution,
liquidation, or conservatorship proceeding is instituted by or against Borrower
under the Code Provisions, and if instituted against Borrower, is consented
or
acquiesced in by it or remains for 30 days undismissed, or if Borrower is
enjoined, restrained or in any way prevented from conducting all or any material
part of its business under the Code Provisions;
or
8.1.1.17. Any
Subsidiary Bank applies for, consents to or acquiesces in the appointment of
a
receiver for itself, or in the absence of such application, consent or
acquiescence, a receiver is appointed for any Subsidiary Bank, and is not
discharged within 30 days; or
8.1.1.18. Fifteen
days after notice thereof, Borrower or any Subsidiary continues to be in default
in any payment of principal or interest for any other obligation or in the
performance of any other term, condition or covenant contained in any agreement
(including, without limitation, an agreement in connection with the acquisition
of capital equipment on a title retention or net lease basis), under which
any
such obligation is created the effect of which default is to cause or permit
the
holder of such obligation to cause such obligation to become due prior to its
stated maturity; or
8.1.1.19. The
Pledged Stock (as defined in the Pledge Agreement) is attached, seized,
subjected to a writ of distress warrant, or is levied upon or becomes subject
to
any lien, claim, security interest or other encumbrance of any kind, or comes
within the possession of any receiver, trustee, custodian or assignee for the
benefit of creditors;
or
8.1.1.20. Any
Subsidiary applies for, consents to or acquiesces in the appointment of a
receiver for itself, or in the absence of such application, consent or
acquiescence, a receiver is appointed for any Subsidiary;
or
8.1.1.21. Any
of
the Junior Subordinated Debentures are no longer (or any other Indebtedness
incurred in connection with, or relating to, any trust preferred securities
issued by a trust created by Borrower is not) junior and subordinate in all
respects to the Loans.
8.1.2. Lender’s
Remedies.
Subject
to Section
8.6,
upon
the occurrence of any Event of Default, Lender shall have the right, if such
Event of Default shall then be continuing, in addition to all the remedies
conferred upon Lender by law or equity or the terms of any Loan Document, to
do
any or all of the following, concurrently or successively, without notice to
Borrower:
8.1.2.1. Declare
the Notes to be, and it shall thereupon become, immediately due and payable
without presentment, demand, protest or notice of any kind, all of which are
hereby expressly waived, anything contained herein or in any Note to the
contrary notwithstanding; or
8.1.2.2. Terminate
Lender’s obligations under this Agreement to extend credit of any kind or to
make any disbursement, whereupon the commitment and obligation of Lender to
extend credit or to make disbursements hereunder shall terminate;
or
8.1.2.3. Exercise
all of its rights and remedies at law, in equity and/or pursuant to any or
all
Collateral Documents, including foreclosing on the Collateral.
Borrower
shall pay to Lender, upon demand, all expenses (including, without limitation,
attorneys’ fees and expenses) of obtaining such judgment or decree or of
otherwise seeking to enforce its rights under this Agreement or any of the
other
Loan Documents or other related documents; and all such expenses, as determined
by Lender in its sole and absolute discretion, shall, until paid, be secured
by
the Loan Documents and shall bear interest at the Default Rate.
8.2. Protective
Advances.
If an
Event of Default occurs, Lender may (but shall in no event be required to)
cure
any such Event of Default and any amounts expended by Lender in so doing, as
determined by Lender in its sole and absolute discretion, shall (a) be deemed
advanced by Lender under an obligation to do so regardless of the identity
of
the person or persons to whom such funds are furnished, (b) constitute
additional advances hereunder, the payment of which is additional indebtedness
evidenced by the applicable Note(s) that correspond(s) to the subject Event
of
Default, and (c) become due and owing, at Lender’s demand, with interest
accruing from the date of disbursement thereof until fully paid at the Default
Rate.
8.3. Other
Remedies.
If any
Event of Default shall occur and be continuing, Lender may, in addition to
any
other rights and remedies hereunder, exercise any and all remedies provided
in
any of the other Loan Documents and other related documents.
8.4. No
Lender Liability.
To the
extent permitted by law, Lender shall have no liability for any loss, damage,
injury, cost or expense resulting from any action or omission by it, or any
of
its representatives, which was taken, omitted or made in good
faith.
8.5. Lender’s
Fees and Expenses.
In
case
of any Event of Default hereunder, Borrower shall pay Lender’s fees and expenses
including, without limitation, attorneys’ fees and expenses, in connection with
the enforcement of this Agreement or any of the other Loan Documents or other
related documents.
8.6. Limitation
on Remedies with Respect to Subordinated Debt.
If an
Event of Default under Sections
8.1.1.16
or
8.1.1.17
shall
occur, Lender may declare the Subordinated Debenture and any other amounts
due
Lender hereunder immediately due and payable, whereupon the Subordinated
Debenture and such other amounts payable hereunder shall immediately become
due
and payable, without presentment, demand, protest or notice of any kind. If
Borrower receives a written notification from the FRB that the Subordinated
Debenture no longer constitutes Tier 2 Capital of Borrower (the “Federal
Reserve Notice”),
other
than due to the limitation imposed by the second sentence of 12 C.F.R.
§250.166(e), which limits the capital treatment of subordinated debt during
the
five years immediately preceding the maturity date of the subordinated debt,
and
if thereafter any Event of Default shall occur under Section
8.1,
Lender
may declare the Subordinated Debenture and any other amounts due Lender
hereunder immediately due and payable, whereupon the Subordinated Debenture
and
such other amounts payable hereunder shall immediately become due and payable,
without presentment, demand, protest or notice of any kind. Upon the occurrence
of an Event of Default, it is specifically understood and agreed that,
notwithstanding the curing of such Event of Default, Borrower shall not be
released from any of its covenants hereunder unless and until the Subordinated
Debenture is paid in full. Upon the occurrence of an Event of Default without
notice by Lender to or demand by Lender of Borrower, Lender shall have no
further obligation to and may then forthwith cease advancing monies or extending
credit to or for the benefit of Borrower under this Agreement and the other
Loan
Documents. The parties agree that until the earlier of the Subordinated Debt
Maturity Date or the delivery of a Federal Reserve Notice, Lender may only
enforce Borrower’s obligations under the Subordinated Debt (a) if Borrower fails
to pay interest when due on the Subordinated Debenture, in which case Lender
may
pursue Borrower for such interest, (b) if Borrower fails to comply with any
of
the covenants set forth in Section
5
(other
than with respect to events, actions and transactions referenced in Sections
5.1.1,
5.1.2
and
5.1.4
that may
not be prohibited or otherwise limited in instruments that qualify as Tier
2
Capital pursuant to regulations, rules and other publicly available guidance
of
the FRB as of the date hereof, as determined by the FRB), in which case Lender
may pursue Borrower to ensure that Borrower complies with such covenants, or
(c)
if an Event of Default occurs under Sections
8.1.1.16
or
8.1.1.17,
in
which case the first sentence of this Section 8.6
shall
govern.
9. MISCELLANEOUS.
9.1. Release;
Indemnification.
Borrower hereby releases Lender from any and all causes of action, claims or
rights which the Borrower may now or hereafter have for, or which may arise
from, any loss or damage caused by or resulting from (a) any failure of Lender
to protect, enforce or collect in whole or in part any of the Collateral and
(b)
any other act or omission to act on the part of Lender, its officers, agents
or
employees, except in each instance for willful misconduct and gross negligence.
Borrower shall indemnify, defend and hold Lender and its Affiliates harmless
from and against any and all losses, liabilities, obligations, penalties,
claims, fines, demands, litigation, defenses, costs, judgments, suits,
proceedings, actual damages, disbursements or expenses of any kind or nature
whatsoever (including, without limitation, attorneys’ fees and expenses) which
may at any time be either directly or indirectly imposed upon, incurred by
or
asserted or awarded against Lender or any of Lender’s Affiliates in connection
with, arising from or relating to Lender’s entering into or carrying out the
terms of this Agreement or being the holder of any Note, other than any loss,
liability, damage, suit, claim, expense, fees or costs arising solely by reason
of Lender’s or any of Lender’s Affiliates’ willful misconduct or gross
negligence.
9.2. Assignment
and Participation.
Lender
may pledge or otherwise hypothecate all or any portion of this Agreement or
grant participations herein (provided Lender acts as agent for any participants,
except as provided below) or in any of its rights and security hereunder,
including, without limitation, the Notes. Lender may also assign all or any
part
of any Loan and Lender’s obligations in connection therewith to one or more
commercial banks or other financial institutions or investors (each an
“Assignee
Lender”).
Lender shall notify Borrower in advance of the identity of any proposed Assignee
Lender. Upon delivery to Borrower of an executed copy of the Assignee Lender’s
assignment and acceptance (a) each such Assignee Lender shall be deemed to
be a
party hereto and, to the extent that rights and obligations hereunder have
been
assigned and delegated to such Assignee Lender, such Assignee Lender shall
have
the rights and obligations of Lender hereunder and under the other Loan
Documents and other related documents (b) Lender, to the extent that rights
and
obligations hereunder have been assigned and delegated by it, shall be released
from its obligations hereunder and under the other Loan Documents (including,
without limitation, the obligation to fund the Assignee Lender’s share of the
Loans) and other related documents. Within five Business Days after receipt
of a
copy of the executed assignment and acceptance document, Borrower shall execute
and deliver to Lender a new Note or Notes, as applicable (for delivery to the
relevant Assignee Lender), evidencing such Assignee Lender’s assigned portion of
the Loans and a replacement Note or Notes, as applicable, in the principal
amount of the Loans retained by Lender (such Note to be in exchange for, but
not
in payment of, the Note then held by Lender). Such Note shall be dated the
date
of the predecessor Note. Lender shall ▇▇▇▇ the predecessor Note “exchanged” and
deliver it to Borrower. Accrued interest on that part of the predecessor Note
evidenced by the new Note, and accrued fees, shall be paid as provided in the
assignment agreement between Lender and to the Assignee Lender. Accrued interest
on that part of the predecessor Note evidenced by the replacement Note shall
be
paid to Lender. Accrued interest and accrued fees shall be so apportioned
between the Note and paid at the same time or times provided in the predecessor
Note and in this Agreement. Borrower authorizes Lender to disclose to any
prospective Assignee Lender any financial or other information pertaining to
Borrower or the Loans. In addition, Borrower agrees that, if so requested by
Lender, Borrower will cause all insurance policies, binders and commitments
(including, without limitation, casualty insurance and title insurance) required
by the Loan Documents or other related documents to be delivered to Lender
to
name the Assignee Lender as an additional insured or obligee, as Lender may
request. Anything in this Agreement to the contrary notwithstanding, and without
the need to comply with any of the formal or procedural requirements of this
Agreement, including this Section
9.2,
Lender
may at any time and from time to time pledge and assign all or any portion
of
its rights under all or any of the Loan Documents and other related documents
to
a Federal Reserve Bank; provided that no such pledge or assignment shall release
Lender from its obligations thereunder.
9.3. Prohibition
on Assignment.
Borrower shall not assign or attempt to assign its rights under this Agreement,
either voluntarily or by operation of law.
9.4. Time
of the Essence.
Time is
of the essence of this Agreement.
9.5. No
Waiver.
No
waiver of any term, provision, condition, covenant or agreement herein contained
shall be effective unless set forth in a writing signed by Lender, and any
such
waiver shall be effective only to the extent set forth in such writing. No
failure to exercise or delay in exercising, by Lender or any holder of any
Note,
of any right, power or privilege hereunder shall operate as a waiver thereof,
nor shall any single or partial exercise of any right, power or privilege
preclude any other or further exercise thereof, or the exercise of any other
right or remedy provided by law. The rights and remedies provided in this
Agreement are cumulative and not exclusive of any right or remedy provided
by
law or equity. No notice or demand on Borrower in any case shall, in itself,
entitle Borrower to any other or further notice or demand in similar or other
circumstances or constitute a waiver of the rights of Lender to any other or
further action in any circumstances without notice or demand. No consent or
waiver, expressed or implied, by Lender to or of any breach or default by
Borrower in the performance of its obligations hereunder shall be deemed or
construed to be a consent or waiver to or of any other breach or default in
the
performance of the same or any other obligations of Borrower hereunder. Failure
on the part of Lender to complain of any acts or failure to act or to declare
an
Event of Default, irrespective of how long such failure continues, shall not
constitute a waiver by Lender of its rights hereunder or impair any rights,
powers or remedies on account of any breach or default by Borrower.
9.6. Severability.
Any
provision of this Agreement which is unenforceable or invalid or contrary to
law, or the inclusion of which would adversely affect the validity, legality
or
enforcement of this Agreement, shall be of no effect and, in such case, all
the
remaining terms and provisions of this Agreement shall subsist and be fully
effective according to the tenor of this Agreement the same as though any such
invalid portion had never been included herein. Notwithstanding any of the
foregoing to the contrary, if any provisions of this Agreement or the
application thereof are held invalid or unenforceable only as to particular
persons or situations, the remainder of this Agreement, and the application
of
such provision to persons or situations other than those to which it shall
have
been held invalid or unenforceable, shall not be affected thereby, but shall
continue valid and enforceable to the fullest extent permitted by
law.
9.7. Usury;
Revival of Liabilities.
All
agreements between Borrower and Lender (including, without limitation, this
Agreement and any other Loan Documents) are expressly limited so that in no
event whatsoever shall the amount paid or agreed to be paid to Lender exceed
the
highest lawful rate of interest permissible under the laws of the State of
Illinois. If, from any circumstances whatsoever, fulfillment of any provision
hereof or of any other Loan Documents, at the time performance of such provision
shall be due, shall involve exceeding the limit of validity prescribed by law
which a court of competent jurisdiction may deem applicable hereto, then,
ipso
facto,
the
obligation to be fulfilled shall be reduced to the highest lawful rate of
interest permissible under the laws of the State of Illinois, and if for any
reason whatsoever, Lender shall ever receive as interest an amount which would
be deemed unlawful, such interest shall be applied to the payment of the last
maturing installment or installments of the indebtedness secured by the
Collateral (whether or not then due and payable) and not to the payment of
interest. To the extent that the Lender received any payment on account of
the
Borrower’s Liabilities and any such payment(s) and/or proceeds or any part
thereof are subsequently invalidated, declared to be fraudulent or preferential,
set aside, subordinated and/or required to be repaid to a trustee, receiver
or
any other Person under any bankruptcy act, state or federal law, common law
or
equitable cause, then to the extent of such payment(s) or proceeds received,
the
Borrower’s Liabilities or part thereof intended to be satisfied shall be revived
and continue in full force and effect, as if such payment(s) and/or proceeds
had
not been received by Lender and applied on account of the Borrower’s
Liabilities; provided, however, if Lender successfully contests any such
invalidation, declaration, set aside, subordination or other order to pay any
such payment and/or proceeds to any third party, the revived Borrower’s
Liabilities shall be deemed satisfied.
9.8. Notices.
Any
notice which either party hereto may be required or may desire to give hereunder
shall be deemed to have been given if in writing and if delivered personally,
or
if mailed, postage prepaid, by United States registered or certified mail,
return receipt requested, or if delivered by a responsible overnight courier,
addressed:
if
to
Borrower: PrivateBancorp,
Inc.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax
No.:
▇▇▇-▇▇▇-▇▇▇▇
E-Mail
Address: ▇▇▇▇▇▇▇▇@▇▇▇▇.▇▇▇
if
to
Lender: LaSalle
Bank National Association
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Telephone
No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax
No.:
(▇▇▇) ▇▇▇-▇▇▇▇
E-Mail
Address: ▇▇▇▇▇▇▇.▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇
or
to
such other address or addresses as the party to be given notice may have
furnished in writing to the party seeking or desiring to give notice, as a
place
for the giving of notice, provided that no change in address shall be effective
until seven days after being given to the other party in the manner provided
for
above. Any notice given in accordance with the foregoing shall be deemed given
when delivered personally or, if mailed, five Business Days after it shall
have
been deposited in the United States mails as aforesaid or, if sent by overnight
courier, the Business Day following the date of delivery to such
courier.
9.9. Successors
and Assigns.
This
Agreement shall inure to the benefit of the parties and their respective heirs,
legal representatives, successors and assigns except that, unless Lender
consents in writing, no assignment made by Borrower in violation of this
Agreement shall confer any rights on any assignee of Borrower.
9.10. No
Joint Venture.
Nothing
contained herein or in any document executed pursuant hereto and no action
or
inaction whatsoever on the part of Lender, shall be deemed to make Lender a
partner or joint venturer with Borrower.
9.11. Brokerage
Commissions.
Borrower shall indemnify, defend and hold Lender and its Affiliates harmless
from and against any and all losses, liabilities, obligations, penalties,
claims, fines, lost profits, demands, litigation, defenses, costs, judgments,
suits, proceedings, damages, disbursements or expenses of any kind or nature
whatsoever (including, without limitation, attorneys’ fees and expenses),
consequential or otherwise, which may at any time be either directly or
indirectly imposed upon, incurred by or asserted or awarded against Lender
or
any of its Affiliates in connection with, arising out of or relating to any
claim of a broker’s or finder’s fee against Lender or any person or entity in
connection with the transaction herein contemplated arising out of or relating
to Borrower’s or Lender’s action or inaction.
9.12. Publicity.
Except
in accordance with its obligations under the Securities Exchange Act of 1934,
as
amended, Borrower shall not publicize any Loan without the prior written consent
of Lender.
9.13. Documentation.
All
documents and other matters required by any of the provisions of this Agreement
to be submitted or furnished to Lender shall be in form and substance
satisfactory to Lender.
9.14. Additional
Assurances.
Borrower agrees that, at any time or from time to time, upon the written request
of Lender, it will execute all such further documents and do all such other
acts
and things as Lender may reasonably request to effectuate the transaction herein
contemplated.
9.15. Entire
Agreement.
This
Agreement and the Disclosure Schedule and Exhibits hereto constitute the entire
agreement between the parties hereto with respect to the subject matter hereof
and may not be modified or amended in any manner other than by supplemental
written agreement executed by the parties hereto.
9.16. Choice
of Law.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Illinois. Nothing herein shall be deemed to limit any
rights, powers or privileges which Lender may have pursuant to any law of the
United States of America or any rule, regulation or order of any department
or
agency thereof and nothing herein shall be deemed to make unlawful any
transaction or conduct by Lender which is lawful pursuant to, or which is
permitted by, any of the foregoing.
9.17. Forum;
Venue.
To
induce Lender to accept this Agreement and the other Loan Documents, Borrower
irrevocably agrees that all actions or proceedings in any way, manner, or
respect, arising out of or from or related to this Agreement or the other Loan
Documents shall be litigated only in courts having suits within Chicago,
Illinois. Borrower hereby consents and submits to the jurisdiction of any local,
state, or federal court located within said city. Borrower hereby waives any
right it may have to transfer or change the venue of any litigation brought
against Borrower by Lender.
9.18. No
Third Party Beneficiary.
This
Agreement is made for the sole benefit of Borrower and Lender, and no other
person shall be deemed to have any privity of contract hereunder nor any right
to rely hereon to any extent or for any purpose whatsoever, nor shall any other
person have any right of action of any kind hereon or be deemed to be a third
party beneficiary hereunder.
9.19. Legal
Tender of United States.
All
payments hereunder shall be made in coin or currency which at the time of
payment is legal tender in the United States of America for public and private
debts.
9.20. Captions;
Counterparts.
Captions contained in this Agreement in no way define, limit or extend the
scope
or intent of their respective provisions. This Agreement 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 taken together shall constitute but one and the same
instrument.
9.21. Knowledge;
Discretion.
All
references herein to a party’s best knowledge shall be deemed to mean the best
knowledge of such party based on commercially reasonable inquiry. All references
herein to Borrower’s knowledge shall be deemed to refer to the knowledge of
Borrower and each Subsidiary. Unless specified to the contrary herein, all
references herein to an exercise of discretion or judgment by Lender, to the
making of a determination or designation by Lender, to the application of
Lender’s discretion or opinion, to the granting or withholding of Lender’s
consent or approval, to the consideration of whether a matter or thing is
satisfactory or acceptable to Lender, or otherwise involving the decision making
of Lender, shall be deemed to mean that Lender shall decide unilaterally using
its sole and absolute discretion or judgment.
9.22. Extension
Notice and Sub Debt Approval Notice.
Lender
shall use commercially reasonable efforts to procure the necessary approvals
from its Affiliate to enable it (a) to extend the Revolving Loan Maturity Date
to December 31, 2006 and (b) to increase the Subordinated Debt Amount to
$25,000,000. If it obtains such approvals, or either of them, it shall promptly
deliver to Borrower the Extension Notice or the Sub Debt Approval Notice, or
both, as the case may be.
9.23. Acknowledgment
of Indebtedness under 2000 Revolving Loan Agreement.
Borrower
acknowledges and confirms that, immediately prior to the Closing hereunder,
it
was indebted to Lender, without defense, setoff or counterclaim, in the
aggregate principal amount of Fourteen Million and No/100 Dollars
($14,000,000.00) under the Original Revolving Loan.
9.24. 2000
Loan Agreement and 2000 Pledge and Security Agreement.
From
and after the Closing hereunder, the 2000 Loan Agreement and the 2000 Pledge
and
Security Agreement shall have been amended and restated and of no further force
and effect from and after the date hereof.
[THE
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
WAIVER
OF RIGHT TO JURY TRIAL.
BORROWER HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT
IT MAY HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY WAY IN
CONNECTION WITH THIS AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS,
OR
ANY OTHER STATEMENTS OR ACTIONS OF BORROWER OR LENDER. BORROWER ACKNOWLEDGES
THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING
OF THIS WAIVER BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL,
AND
THAT IT HAS DISCUSSED THIS WAIVER WITH SUCH LEGAL COUNSEL. BORROWER FURTHER
ACKNOWLEDGES THAT (a) IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS
OF THIS WAIVER, (b) THIS WAIVER HAS BEEN REVIEWED BY BORROWER AND BORROWER’S
COUNSEL AND IS A MATERIAL INDUCEMENT FOR LENDER TO ENTER INTO THE AGREEMENT
AND
THE OTHER LOAN DOCUMENTS (c) THIS WAIVER SHALL BE EFFECTIVE AS TO EACH OF SUCH
OTHER LOAN DOCUMENTS AS IF FULLY INCORPORATED THEREIN.
IN
WITNESS WHEREOF,
the
parties hereto have caused this Agreement to be executed by their duly
authorized representatives as of the date first above written.
|
PRIVATEBANCORP,
INC.
By:
___/s/
▇▇▇▇▇▇ Klaeser______________
Name:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title:
Chief Financial Officer
|
|
|
LASALLE
BANK NATIONAL ASSOCIATION
By:
__/s/
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Jr___________
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title:
First Vice President
|
S-1
EXHIBIT
A
FORM
OF
TERM NOTE
$250,000.00
Chicago,
Illinois
September
__, 2005
FOR
VALUE RECEIVED,
the
undersigned, PRIVATEBANCORP, INC., a Delaware corporation (“Borrower”),
promises to pay to the order of LASALLE BANK NATIONAL ASSOCIATION, a national
banking association, or the holder hereof from time to time (“Lender”),
at
such place as may be designated in writing by Lender, the principal sum of
TWO
HUNDRED FIFTY THOUSAND AND NO/100THS DOLLARS ($250,000.00), with interest
thereon as hereinafter provided. This note (this “Note”)
is
issued
pursuant to the terms of an Amended and Restated Loan and Subordinated Debenture
Purchase Agreement of even date herewith by and between Borrower and Lender
(said Amended and Restated Loan and Subordinated Debenture Purchase Agreement
together with the Agreed Upon Terms and Procedures, as each may be amended,
restated, supplemented or modified from time to time, is referred to hereinafter
as the “Loan
Agreement”).
All
capitalized terms used but not defined herein shall have the respective meanings
ascribed to them in the Loan Agreement.
Interest
shall accrue on all sums as advanced and outstanding from time to time under
this Note and Loan Agreement as set forth in the Loan Agreement, and such
interest shall be due and payable on the last day of each September, December,
March and June as set forth in the Loan Agreement, commencing September 30,
2005. All sums owing hereunder are payable in lawful money of the United States
of America, in immediately available funds.
The
outstanding principal balance of this Note, together with all accrued and unpaid
interest, shall be due and payable on the Term Loan Maturity Date. Additional
principal payments shall be made in accordance with the provisions of the Loan
Agreement.
This
Note
is issued pursuant to the terms of the Loan Agreement and is secured by and
entitled to the benefits of, among other things, the Collateral Documents.
In
case an Event of Default shall occur and be continuing, the principal of this
Note together with all accrued interest thereon may, at the option of the holder
hereof, immediately become due and payable on demand; provided, however, that
if
any document related to this Note provides for automatic acceleration of payment
of sums owing hereunder, all sums owing hereunder shall be automatically due
and
payable in accordance with the terms of that document.
Unless
otherwise provided in the Loan Agreement, all payments on account of the
indebtedness evidenced by this Note shall be first applied to the payment of
costs and expenses of Lender which are due and payable, then to past-due
interest on the unpaid principal balance and the remainder to
principal.
Provided
that no Event of Default then exists, this Note may be prepaid only upon those
terms and conditions set forth in the Loan Agreement.
If
any
interest payment required hereunder is not received by Lender on or before
the
tenth day following the date it becomes due, Borrower shall pay, at Lender’s
option, a late or collection charge equal to 4% of the amount of such unpaid
interest payment.
From
and
after the Term Loan Maturity Date, or such earlier date as all sums owing on
this Note become due and payable by acceleration or otherwise, or after the
occurrence of an Event of Default, interest shall be computed on all amounts
then due and payable under this Note at a “Default
Rate”
equal
to 3% per
annum
(based on a 360-day year and charged on the basis of actual days elapsed) in
excess of the interest rate otherwise accruing under this Note.
If
any
attorney is engaged by Lender to enforce or defend any provision of this Note
or
any of the other Loan Documents, or as a consequence of any Event of Default,
with or without the filing of any legal action or proceeding, then Borrower
shall pay to Lender immediately upon demand all attorneys’ fees and expenses,
together with interest thereon from the date of such demand until paid at the
rate of interest applicable to the principal balance owing hereunder as if
such
unpaid attorneys’ fees and expenses had been added to the
principal.
A-1
No
previous waiver and no failure or delay by Lender in acting with respect to
the
terms of this Note or any of the other Loan Documents shall constitute a waiver
of any breach, default or failure of condition under this Note, the Loan
Agreement or any of the other Loan Documents or the obligations secured thereby.
A waiver of any term of this Note or any of the other Loan Documents or of
any
of the obligations secured thereby must be made in writing and shall be limited
to the express written terms of such waiver. In the event of any inconsistencies
between the terms of this Note and the terms of any other document related
to
the Loan evidenced by this Note, the terms of this Note shall prevail.
Except
as
otherwise provided in the Loan Agreement, Borrower expressly waives
present-ment, demand, notice of dishonor, notice of default or delinquency,
notice of acceleration, notice of protest and nonpayment, notice of costs,
expenses or losses and interest thereon, notice of late charges, and diligence
in taking any action to collect any sums owing under this Note or in proceeding
against any of the rights or interests in or to properties securing payment
of
this Note. In addition, Borrower expressly agrees that this Note and any payment
coming due hereunder may be extended from time to time without in any way
affecting the liability of any such party hereunder.
Time
is
of the essence with respect to every provision hereof. This Note shall be
construed and enforced in accordance with the laws of the State of Illinois,
except to the extent that federal laws preempt the laws of the State of
Illinois, and all persons and entities in any manner obligated under this Note
consent to the jurisdiction of any Federal or State court within the State
of
Illinois having proper venue and also consent to service of process by any
means
authorized by Illinois or Federal law. Any reference contained herein to
attorneys’ fees and expenses shall be deemed to be to reasonable fees and
expenses and to include all reasonable fees and expenses of in-house or staff
attorneys and the reasonable fees and expenses of any other experts or
consultants.
All
agreements between Borrower and Lender (including, without limitation, this
Note
and the Loan Agreement, and any other documents securing all or any part of
the
indebtedness evidenced hereby) are expressly limited so that in no event
whatsoever shall the amount paid or agreed to be paid to Lender exceed the
highest lawful rate of interest permissible under applicable law. If, from
any
circumstances whatsoever, fulfillment of any provision hereof, the Loan
Agreement or any other documents securing all or any part of the indebtedness
evidenced hereby at the time performance of such provisions shall be due, shall
involve exceeding the limit of validity prescribed by law which a court of
competent jurisdiction may deem applicable hereto, then, ipso
facto,
the
obligation to be fulfilled shall be reduced to the highest lawful rate of
interest permissible under such applicable laws, and if, for any reason
whatsoever, Lender shall ever receive as interest an amount which would be
deemed unlawful under such applicable law, such interest shall be automatically
applied to the payment of the principal of this Note (whether or not then due
and payable) and not to the payment of interest or refunded to Borrower if
such
principal has been paid in full.
Any
notice which either party hereto may be required or may desire to give hereunder
shall be governed by the notice provisions of the Loan Agreement.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
A-2
BORROWER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY WAY IN CONNECTION
WITH
THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS, OR ANY OTHER STATEMENTS OR ACTIONS
OF BORROWER OR LENDER. BORROWER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN
THE
SIGNING OF THIS NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS DISCUSSED THIS WAIVER
WITH SUCH LEGAL COUNSEL. BORROWER FURTHER ACKNOWLEDGES THAT (i) IT HAS READ
AND
UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER, (ii) THIS WAIVER
HAS
BEEN REVIEWED BY BORROWER AND BORROWER’S COUNSEL AND IS A MATERIAL INDUCEMENT
FOR LENDER TO ENTER INTO THE LOAN DOCUMENTS, AND (iii) THIS WAIVER SHALL BE
EFFECTIVE AS TO EACH OF THE LOAN DOCUMENTS AS IF FULLY INCORPORATED
THEREIN.
IN
WITNESS WHEREOF,
the
undersigned has executed this Note or caused this Note to be executed by its
duly authorized representative as of the date first above written.
PRIVATEBANCORP,
INC.
By:
Name:
Title:
A-3
EXHIBIT
B
FORM
OF
AMENDED AND RESTATED REVOLVING NOTE
$39,750,000.00
Chicago,
Illinois
Restatement
Date: September ___, 2005
Original
Note Date: February 11, 2000 (as amended)
FOR
VALUE RECEIVED,
the
undersigned, PRIVATEBANCORP, INC., a Delaware corporation (“Borrower”),
promises to pay to the order of LASALLE BANK NATIONAL ASSOCIATION, a national
banking association, or the holder hereof from time to time (“Lender”),
at
such place as may be designated in writing by Lender, the principal sum of
THIRTY-NINE MILLION SEVEN HUNDRED FIFTY THOUSAND AND NO/100THS DOLLARS
($39,750,000.00) (or so much thereof that has been advanced and remains
outstanding), with interest thereon as hereinafter provided. It is contemplated
that there will be advances and payments under this note (this “Note”)
from
time to time, but no advances or payments under this Note (including payment
in
full of the unpaid balance of principal hereof prior to maturity) shall affect
or impair the validity or enforceability of this Note as to future advances
hereunder. This Note is issued pursuant to the terms of an Amended and Restated
Loan and Subordinated Debenture Purchase Agreement of even date herewith by
and
between Borrower and Lender (said Amended and Restated Loan and Subordinated
Debenture Purchase Agreement together with the Agreed Upon Terms and Procedures,
as each may be amended, restated, supplemented or modified from time to time,
is
referred to hereinafter as the “Loan
Agreement”).
All
capitalized terms used but not defined herein shall have the respective meanings
ascribed to them in the Loan Agreement.
This
Note
represents a continuation of the indebtedness represented by that certain
Revolving Note dated February 11, 2000 made by Borrower to Lender in the
original principal amount of $18,000,000, as such note has been amended prior
to
the date hereof (the “Original Revolving Note”). The Original Revolving Note is
amended, restated and replaced by this Note. This Note does not constitute
a
novation, discharge or satisfaction of the Original Revolving Note replaced
hereby or of the indebtedness evidenced by said Original Revolving
Note.
Interest
shall accrue on all sums as advanced and outstanding from time to time under
this Note and Loan Agreement as set forth in the Loan Agreement. Such interest
shall be due and payable, in arrears (i) for any LIBO Rate Tranche, on the
last
day of each LIBOR Period, and (ii) for any Base Rate Tranche, on the last day
of
each September, December, March and June, beginning September 30, 2005, and
as
otherwise set forth in the Loan Agreement.
The
outstanding principal balance of this Note, together with all accrued and unpaid
interest, shall be due and payable on the Revolving Loan Maturity Date.
Additional principal payments shall be made in accordance with the provisions
of
the Loan Agreement.
This
Note
is issued pursuant to the terms of the Loan Agreement and is secured by and
entitled to the benefits of, among other things, the Collateral Documents.
In
case an Event of Default shall occur and be continuing, the principal of this
Note together with all accrued interest thereon may, at the option of the holder
hereof, immediately become due and payable on demand; provided, however, that
if
any document related to this Note provides for automatic acceleration of payment
of sums owing hereunder, all sums owing hereunder shall be automatically due
and
payable in accordance with the terms of that document.
Unless
otherwise provided in the Loan Agreement, all payments on account of the
indebtedness evidenced by this Note shall be first applied to the payment of
costs and expenses of Lender which are due and payable, then to past-due
interest on the unpaid principal balance and the remainder to
principal.
Provided
that no Event of Default then exists, this Note may be prepaid only upon those
terms and conditions set forth in the Loan Agreement.
B-1
If
any
interest payment required hereunder is not received by Lender on or before
the
tenth day following the date it becomes due, Borrower shall pay, at Lender’s
option, a late or collection charge equal to 4% of the amount of such unpaid
interest payment.
From
and
after the Revolving Loan Maturity Date, or such earlier date as all sums owing
on this Note become due and payable by acceleration or otherwise, or after
the
occurrence of an Event of Default, interest shall be computed on all amounts
then due and payable under this Note at a “Default
Rate”
equal
to 2% per annum (based on a 360-day year and charged on the basis of actual
days
elapsed) in excess of the interest rate otherwise accruing under this
Note.
If
any
attorney is engaged by Lender to enforce or defend any provision of this Note
or
any of the other Loan Documents, or as a consequence of any Event of Default,
with or without the filing of any legal action or proceeding, then Borrower
shall pay to Lender immediately upon demand all attorneys’ fees and expenses,
together with interest thereon from the date of such demand until paid at the
rate of interest applicable to the principal balance owing hereunder as if
such
unpaid attorneys’ fees and expenses had been added to the
principal.
No
previous waiver and no failure or delay by Lender in acting with respect to
the
terms of this Note or any of the other Loan Documents shall constitute a waiver
of any breach, default or failure of condition under this Note, the Loan
Agreement or any of the other Loan Documents or the obligations secured thereby.
A waiver of any term of this Note or any of the other Loan Documents or of
any
of the obligations secured thereby must be made in writing and shall be limited
to the express written terms of such waiver. In the event of any inconsistencies
between the terms of this Note and the terms of any other document related
to
the Loan evidenced by this Note, the terms of this Note shall prevail.
Except
as
otherwise provided in the Loan Agreement, Borrower expressly waives
present-ment, demand, notice of dishonor, notice of default or delinquency,
notice of acceleration, notice of protest and nonpayment, notice of costs,
expenses or losses and interest thereon, notice of late charges, and diligence
in taking any action to collect any sums owing under this Note or in proceeding
against any of the rights or interests in or to properties securing payment
of
this Note. In addition, Borrower expressly agrees that this Note and any payment
coming due hereunder may be extended from time to time without in any way
affecting the liability of any such party hereunder.
Time
is
of the essence with respect to every provision hereof. This Note shall be
construed and enforced in accordance with the laws of the State of Illinois,
except to the extent that federal laws preempt the laws of the State of
Illinois, and all persons and entities in any manner obligated under this Note
consent to the jurisdiction of any Federal or State court within the State
of
Illinois having proper venue and also consent to service of process by any
means
authorized by Illinois or Federal law. Any reference contained herein to
attorneys’ fees and expenses shall be deemed to be to reasonable fees and
expenses and to include all reasonable fees and expenses of in-house or staff
attorneys and the reasonable fees and expenses of any other experts or
consultants.
All
agreements between Borrower and Lender (including, without limitation, this
Note
and the Loan Agreement, and any other documents securing all or any part of
the
indebtedness evidenced hereby) are expressly limited so that in no event
whatsoever shall the amount paid or agreed to be paid to Lender exceed the
highest lawful rate of interest permissible under applicable law. If, from
any
circumstances whatsoever, fulfillment of any provision hereof, the Loan
Agreement or any other documents securing all or any part of the indebtedness
evidenced hereby at the time performance of such provisions shall be due, shall
involve exceeding the limit of validity prescribed by law which a court of
competent jurisdiction may deem applicable hereto, then, ipso
facto,
the
obligation to be fulfilled shall be reduced to the highest lawful rate of
interest permissible under such applicable laws, and if, for any reason
whatsoever, Lender shall ever receive as interest an amount which would be
deemed unlawful under such applicable law, such interest shall be automatically
applied to the payment of the principal of this Note (whether or not then due
and payable) and not to the payment of interest or refunded to Borrower if
such
principal has been paid in full.
Any
notice which either party hereto may be required or may desire to give hereunder
shall be governed by the notice provisions of the Loan Agreement.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
B-2
BORROWER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY WAY IN CONNECTION
WITH
THIS NOTE OR ANY OF THE OTHER LOAN DOCUMENTS, OR ANY OTHER STATEMENTS OR ACTIONS
OF BORROWER OR LENDER. BORROWER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN
THE
SIGNING OF THIS NOTE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS DISCUSSED THIS WAIVER
WITH SUCH LEGAL COUNSEL. BORROWER FURTHER ACKNOWLEDGES THAT (i) IT HAS READ
AND
UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER, (ii) THIS WAIVER
HAS
BEEN REVIEWED BY BORROWER AND BORROWER’S COUNSEL AND IS A MATERIAL INDUCEMENT
FOR LENDER TO ENTER INTO THE LOAN DOCUMENTS, AND (iii) THIS WAIVER SHALL BE
EFFECTIVE AS TO EACH OF THE LOAN DOCUMENTS AS IF FULLY INCORPORATED
THEREIN.
IN
WITNESS WHEREOF,
the
undersigned has executed this Note or caused this Note to be executed by its
duly authorized representative as of the date first above written.
PRIVATEBANCORP,
INC.
By:
Name:
Title:
B-3
Loan Number
_______
EXHIBIT
C
FORM
OF
SUBORDINATED DEBENTURE
THIS
SUBORDINATED DEBENTURE IS NOT A SAVINGS ACCOUNT OR DEPOSIT AND IT IS NOT INSURED
BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY FEDERAL
AGENCY.
|
$25,000,000.00
|
Chicago,
Illinois
September
___, 2005
|
FOR
VALUE RECEIVED,
the
undersigned, PRIVATEBANCORP, INC., a Delaware corporation (“Borrower”),
hereby promises to pay to the order of LASALLE BANK NATIONAL ASSOCIATION, a
national banking association, or any holder hereof from time to time
(“Lender”),
at
such place as may be designated in writing by Lender, the principal sum of
TWENTY-FIVE MILLION AND NO/100 DOLLARS ($25,000,000.00) (or so much thereof
that
has been advanced and remains outstanding) with interest thereon as hereinafter
provided. This Subordinated Debenture (this “Subordinated
Debenture”) is
issued
pursuant to the terms of an Amended and Restated Loan and Subordinated Debenture
Purchase Agreement of even date herewith by and between Borrower and Lender
(said Amended and Restated Loan and Subordinated Debenture Purchase Agreement
together with the Agreed Upon Terms and Procedures, as each may be amended,
restated, supplemented or modified from time to time, is referred to hereinafter
as the “Loan
Agreement”).
All
capitalized terms used but not defined herein shall have the respective meanings
ascribed to them in the Loan Agreement.
All
accrued interest and unpaid principal due and payable under this Subordinated
Debenture shall be paid in full on or before the Subordinated Debenture Maturity
Date.
The
unpaid principal amount outstanding under this Subordinated Debenture from
time
to time shall bear interest before maturity in accordance with the Loan
Agreement, computed on the basis of a 360-day year and charged for actual days
elapsed. Under certain circumstances as provided in the Loan Agreement, overdue
interest payments under this Subordinated Debenture shall bear interest from
the
due date thereof until paid at a daily rate equal to the Default Rate of
Interest, computed on the basis of a 360-day year and charged for actual days
elapsed, except as otherwise provided in the Loan Agreement.
All
accrued interest shall be payable at Lender’s principal place of business on a
quarterly basis in arrears on the last day of each September, December, March
and June, commencing September 30, 2005. The outstanding unpaid principal
balance of this Subordinated Debenture shall be payable in one installment
on
the Subordinated Debenture Maturity Date. Whenever any payment to be made under
this Subordinated Debenture shall be due on a day that is not a Business Day,
such payment shall be made on the next succeeding Business Day, and such
extension of time shall be included in the computation of interest due upon
this
Subordinated Debenture. There shall be no penalties or other charges payable
by
Borrower to Lender hereunder other than those payments described in this
Subordinated Debenture or in the Loan Agreement. Borrower may prepay all or,
from time to time, part of the outstanding unpaid principal balance under this
Subordinated Debenture at any time without penalty.
This
Subordinated Debenture is not secured by any assets of Borrower.
So
long
as any portion of the unpaid principal of this Subordinated Debenture is deemed
to be Tier 2 Capital of Borrower in accordance with the rules and regulations
of
the FRB applicable to the capital status of the subordinated debt of bank
holding companies, the rights of Lender to the principal sum hereunder or any
part hereof and to any accrued interest thereon shall remain subject and
subordinate (in accordance with SR 92-37 issued by the FRB on October 15, 1992)
to the claims of creditors of Borrower with respect to the following
(“Senior
Claims”)
(a)
borrowed and purchased money, (b) similar obligations arising from
off-balance-sheet guaranties and direct-credit substitutes, and (c) obligations
associated with derivative products such as interest-rate and foreign
exchange-rate contracts, commodity contracts, and similar arrangements (clauses
(a), (b) and (c) expressly exclude Trust Preferred Indebtedness, as defined
below, with respect to which, accordingly, the rights of Lender are not
subordinate). Upon dissolution or liquidation of Borrower, no payment of
principal, interest or premium (including post-default interest) shall be due
and payable under the terms of this Subordinated Debenture until all Senior
Claims (which expressly exclude Trust Preferred Indebtedness) shall have been
paid in full. If this Subordinated Debenture ceases to be deemed to be Tier
2
Capital of Borrower in accordance with the rules and regulations of the FRB
applicable to the capital status of the subordinated debt of bank holding
companies, other than due to the limitations imposed by the second sentence
of
12 C.F.R §250.166(e), which limits the capital treatment of subordinated debt
during the five years immediately preceding the maturity date of the
subordinated debt, Borrower shall: immediately notify Lender; and immediately
upon request of Lender execute and deliver all such agreements (including
without limitation pledge agreements and replacement notes) as Lender may
request in order to restructure the obligation evidenced hereby as a senior
secured obligation of Borrower. If Borrower fails to execute such agreements
as
required by Lender within 30 days of Lender’s request, such failure shall be
deemed to be an Event of Default as provided in Section
8.1.1
of the
Loan Agreement.
C-1
As
used
herein, “Trust
Preferred Indebtedness”
shall
mean indebtedness incurred in connection with, or relating to, any trust
preferred securities caused to be issued by, or reflected in the consolidated
financial statements of, Borrower, including the subordinated indebtedness
evidenced by the Junior Subordinated Debentures.
If
an
Event of Default shall occur, Lender shall have the rights set forth in
Section
8.6 of
the
Loan Agreement.
If
any
attorney is engaged by Lender to enforce or defend any provision of this
Subordinated Debenture or any of the other Loan Documents, or as a consequence
of any Event of Default, with or without the filing of any legal action or
proceeding, then Borrower shall pay to Lender immediately upon demand all
attorneys’ fees and expenses, together with interest thereon from the date of
such demand until paid at the rate of interest applicable to the principal
balance owing hereunder as if such unpaid attorneys’ fees and expenses had been
added to the principal.
No
previous waiver and no failure or delay by Lender in acting with respect to
the
terms of this Subordinated Debenture or any of the other Loan Documents shall
constitute a waiver of any breach, default or failure of condition under this
Subordinated Debenture, the Loan Agreement or any of the other Loan Documents
or
the obligations secured thereby. A waiver of any term of this Subordinated
Debenture or any of the other Loan Documents or of any of the obligations
secured thereby must be made in writing and shall be limited to the express
written terms of such waiver. In the event of any inconsistencies between the
terms of this Subordinated Debenture and the terms of any other document related
to the Loan evidenced by this Subordinated Debenture, the terms of this
Subordinated Debenture shall prevail.
Except
as
otherwise provided in the Loan Agreement, Borrower expressly waives
present-ment, demand, notice of dishonor, notice of default or delinquency,
notice of acceleration, notice of protest and nonpayment, notice of costs,
expenses or losses and interest thereon, notice of late charges, and diligence
in taking any action to collect any sums owing under this Subordinated
Debenture. In addition, Borrower expressly agrees that this Subordinated
Debenture and any payment coming due hereunder may be extended from time to
time
without in any way affecting the liability of any such party
hereunder.
Time
is
of the essence with respect to every provision hereof. This Subordinated
Debenture shall be construed and enforced in accordance with the laws of the
State of Illinois, except to the extent that federal laws preempt the laws
of
the State of Illinois, and all persons and entities in any manner obligated
under this Subordinated Debenture consent to the jurisdiction of any federal
or
State court within the State of Illinois having proper venue and also consent
to
service of process by any means authorized by Illinois or Federal law. Any
reference contained herein to attorneys’ fees and expenses shall be deemed to be
to reasonable fees and expenses and to include all reasonable fees and expenses
of in-house or staff attorneys and the reasonable fees and expenses of any
other
experts or consultants.
C-2
All
agreements between Borrower and Lender (including, without limitation, this
Subordinated Debenture and the Loan Agreement, and any other documents securing
all or any part of the indebtedness evidenced hereby) are expressly limited
so
that in no event whatsoever shall the amount paid or agreed to be paid to Lender
exceed the highest lawful rate of interest permissible under applicable law.
If,
from any circumstances whatsoever, fulfillment of any provision hereof, the
Loan
Agreement or any other documents securing all or any part of the indebtedness
evidenced hereby at the time performance of such provisions shall be due, shall
involve exceeding the limit of validity prescribed by law which a court of
competent jurisdiction may deem applicable hereto, then, ipso
facto,
the
obligation to be fulfilled shall be reduced to the highest lawful rate of
interest permissible under such applicable laws, and if, for any reason
whatsoever, Lender shall ever receive as interest an amount which would be
deemed unlawful under such applicable law, such interest shall be automatically
applied to the payment of the principal of this Subordinated Debenture (whether
or not then due and payable) and not to the payment of interest or refunded
to
Borrower if such principal has been paid in full.
Lender
may sell, assign, pledge or otherwise transfer or encumber any or all of its
interest under this Subordinated Debenture at any time and from time to time.
In
the event of a transfer, all terms and conditions of this Subordinated Debenture
shall be binding upon and inure to the benefit of the transferee after such
transfer.
Upon
receipt of notice from Lender advising Borrower of the loss, theft, destruction
or mutilation of this Subordinated Debenture, Borrower shall, execute and
deliver in lieu thereof a new debenture in principal amount equal to the unpaid
principal amount of such lost, stolen, destroyed or mutilated debenture, dated
the date to which interest has been paid on such lost, stolen, destroyed or
mutilated Subordinated Debenture.
Unless
otherwise provided in the Loan Agreement, all payments on account of the
indebtedness evidenced by this Subordinated Debenture shall be first applied
to
the payment of costs and expenses of Lender which are due and payable, then
to
past-due interest on the unpaid principal balance and the remainder to
principal.
Any
notice which either party hereto may be required or may desire to give hereunder
shall be governed by the notice provisions of the Loan Agreement.
[THE
REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
C-3
BORROWER
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY WAY IN CONNECTION
WITH
THIS
SUBORDINATED DEBENTURE
OR ANY
OF THE OTHER LOAN DOCUMENTS, OR ANY OTHER STATEMENTS OR ACTIONS OF BORROWER
OR
LENDER. BORROWER ACKNOWLEDGES THAT IT HAS BEEN REPRESENTED IN THE SIGNING OF
THIS SUBORDINATED DEBENTURE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT
LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS DISCUSSED THIS
WAIVER WITH SUCH LEGAL COUNSEL. BORROWER FURTHER ACKNOWLEDGES THAT (i) IT HAS
READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS WAIVER, (ii) THIS
WAIVER HAS BEEN REVIEWED BY BORROWER AND BORROWER’S COUNSEL AND IS A MATERIAL
INDUCEMENT FOR LENDER TO ENTER INTO THE LOAN DOCUMENTS, AND (iii) THIS WAIVER
SHALL BE EFFECTIVE AS TO EACH OF THE LOAN DOCUMENTS AS IF FULLY INCORPORATED
THEREIN.
IN
WITNESS WHEREOF,
the
undersigned has executed this Subordinated Debenture or caused this Subordinated
Debenture to be executed by its duly authorized representative as of the date
first above written.
PRIVATEBANCORP,
INC.
By:
Name:
Title:
C-4
EXHIBIT
D
FORM
OF
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT
THIS
AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT (this “Pledge
Agreement”)
is
dated as of September ___, 2005 and is made by and between PRIVATEBANCORP,
INC.,
a Delaware corporation (“Pledgor”),
and
LASALLE BANK NATIONAL ASSOCIATION, a national banking association (“Lender”).
R
E C I T A L S
:
A. Borrower
is a bank holding company that owns 100% of the issued and outstanding capital
stock of PrivateBank and Trust Company, an Illinois state-chartered, non-member
bank with its main office located in Chicago, Illinois (“PrivateBank”),
The
PrivateBank, a federal savings bank with its main office located in St. Louis,
Missouri (“PrivateBank
St. Louis”),
and
The PrivateBank, a Michigan state-chartered, non-member bank with its main
office located in Bloomfield Hills, Michigan (“PrivateBank
Michigan”).
The
issued and outstanding capital stock of PrivateBank, PrivateBank St. Louis
and
PrivateBank Michigan may be referred to as the “Pledged
Subsidiary Bank Shares”.
PrivateBank, PrivateBank St. Louis and PrivateBank Michigan may be referred
to
herein collectively as the “Bank
Subsidiaries”
and
individually as a “Bank
Subsidiary.”
B. Borrower
has requested that Lender provide it with three credit facilities in the
aggregate principal amount of $65,000,000 consisting of a Term Loan in the
principal amount of $250,000, a Revolving Loan in the principal amount of
$39,750,000 and Subordinated Debt in the principal amount of
$25,000,000.
C. This
Pledge Agreement has been executed and delivered by Pledgor to Lender pursuant
to Section
3.2.3
of the
Loan Agreement (as defined below), and amends and restates that certain Pledge
and Security Agreement between Pledgor and Lender, dated as of February 11,
2000, as amended, restated, supplemented or modified.
THEREFORE,
in
consideration of the mutual covenants, conditions and agreements and to induce
Lender to enter into the Loan Agreement and to make Loans and other financial
accommodations to Pledgor, the parties hereby agree as follows:
A
G R
E E M E N T:
1. DEFINITIONS
1.1. Defined
Terms.
The
following capitalized terms generally used in this Pledge Agreement shall have
the meanings defined or referenced below (such meanings to be equally applicable
to both the singular and the plural forms of the term defined). Certain other
capitalized terms used in specific sections of this Pledge Agreement may be
defined in such sections.
“Best
Efforts”
means
commercially reasonable, good faith efforts.
“Certificates”
means
any and all notes, warrants, options, stock certificates or other documents
or
instruments now or hereafter received or receivable by Pledgor and representing
Pledgor’s interest in the Pledged Stock.
“Loan
Agreement”
means
that Amended and Restated Loan and Subordinated Debenture Purchase Agreement
of
even date herewith between Lender and Pledgor together with the Agreed Upon
Terms and Procedures, as each may be amended, restated, supplemented or modified
from time to time, both of which are hereby incorporated by reference in this
Pledge Agreement.
D-1
“Pledged
Stock”means:
(i) the shares of capital stock of the Bank Subsidiaries as described on the
attached Schedule
A
hereto
and any and all other shares of capital stock issued by any Bank Subsidiary
previously or hereafter acquired by Pledgor, whether directly from a Bank
Subsidiary or otherwise and whether such other shares are now or hereafter
in
the possession of Pledgor, Lender or other holder; (ii) all stock and other
securities or property which are issued pursuant to conversion, redemption,
exercise of rights, stock split, recapitalization, reorganization, stock
dividends or other corporate act which are referable to the shares referenced
in
clause (i) or this clause (ii) (collectively, the “Additional
Pledged Securities”);
(iii)
all distributions, whether cash or otherwise, in the nature of a partial or
complete liquidation, dissolution or winding up which are referable to the
shares referenced in clause (i) or clause (ii) (such distributions are
hereinafter referred to as “Liquidating
Distributions”);
and
(iv) all substitutions for any of the foregoing, proceeds of and from any of
the
foregoing and all interest, cash dividends or other payments in respect of
any
of the foregoing.
1.2. Other
Defined Terms.
All
other capitalized terms used herein have the meanings assigned to them in the
Loan Agreement.
1.3. Exhibits
and Schedules Incorporated.
All
exhibits and schedules attached hereto or referenced herein, are hereby
incorporated into this Pledge Agreement.
2. PLEDGE
AND GRANT OF SECURITY INTERESTS.
Pledgor
hereby pledges, collaterally assigns, hypothecates and transfers to Lender
all
Pledged Stock, together with appropriate undated assignments separate from
the
Certificates duly executed in blank, and hereby grants to and creates in favor
of Lender liens and security interests in the Pledged Stock as collateral
security for (a) the due and punctual payment when due (whether at maturity,
by
acceleration or otherwise) in full of all amounts due under the Senior Notes
(as
the same may be amended, restated, supplemented, modified, extended or replaced
from time to time) in the aggregate face amount as of the date hereof of Forty
Million Dollars ($40,000,000) executed and delivered by Pledgor to Lender
pursuant to the Loan Agreement; (b) the due and punctual performance and
observance by Pledgor of all other Borrower’s Liabilities; (c) the due and
punctual performance and observance by Pledgor of all of its agreements,
obligations, liabilities and duties under this Pledge Agreement, the Loan
Agreement and the other Loan Documents; (d) all amounts due to the Lender under
the Senior Notes, including any and all modifications, extensions, renewals
or
refinancings thereof and including, without limitation, all principal, interest
and other amounts due under the Senior Notes; (e) all sums advanced by, or
on
behalf of, the Lender in connection with, or relating to, the Loan Agreement,
the Senior Notes or the Pledged Stock including, without limitation, any and
all
sums advanced to preserve the Pledged Stock, or to perfect the Lender’s security
interest in the Pledged Stock; (f) in the event of any proceeding to enforce
the
satisfaction of the obligations, or any of them, or to preserve and protect
their rights under the Loan Agreement, the Senior Notes, this Pledge Agreement
or any other agreement, document or instrument relating to the transactions
contemplated in the Loan Agreement, the reasonable expenses of retaking,
holding, preparing for sale, selling or otherwise disposing of or realizing
on
the Pledged Stock, or of any exercise by the Lender of its rights, together
with
reasonable attorneys' fees, expenses and court costs; (g) any indebtedness,
obligation or liability of the Pledgor to the Lender, whether direct or
indirect, joint or several, absolute or contingent, now or hereafter existing,
however created or arising and however evidenced; (h) any indebtedness,
obligation or liability of the Pledgor under or in connection with any Interest
Rate Protection Agreement; and (i) all costs incurred by Lender to obtain,
perfect, preserve and enforce the liens and security interests granted by this
Pledge Agreement, the Loan Agreement and the other Loan Documents, to collect
the Obligations Secured Hereby (as hereinafter defined) and to maintain and
preserve the Pledged Stock, with such costs including, without limitation,
expenditures made by Lender for attorneys’ fees and other legal expenses and
expenses of collection, possession and sale of the Pledged Stock, together
with
interest on all such costs at the Default Rate (the foregoing subsections
(a) through
(i) are collectively referred to herein as the “Obligations
Secured Hereby”).
Notwithstanding anything above in this Section
2
to the
contrary, the Pledged Stock shall not be collateral security for amounts
outstanding under the Subordinated Debenture that are deemed to be Tier 2
Capital of Pledgor in accordance with the rules and regulations of the FRB
applicable to the capital status of the subordinated debt of bank holding
companies, without giving effect to the limitation imposed by the second
sentence of 12 C.F.R. §250.166(e), which limits the capital treatment of
subordinated debt during the five years immediately preceding the maturity
date
of the subordinated debt.
D-2
3. DELIVERY
OF PLEDGED STOCK.
On the
date hereof, Pledgor shall place the Pledged Stock in pledge by delivering
the
Certificates to and depositing them with Lender, its agent or any custodian
appointed in writing by Lender. Pledgor shall also deliver to Lender, its agent
or any custodian concurrently therewith undated assignments separate from the
Certificates duly executed in blank and all other applicable and appropriate
documents and assignments in form suitable to enable Lender to effect the
transfer of all or any portion of the Pledged Stock to the extent hereinafter
provided.
4. ADDITIONAL
COLLATERAL
4.1. Delivery
of Additional Pledged Securities.
If
Pledgor shall hereafter become entitled to receive or shall receive any
interest, cash dividends, cash proceeds, any Additional Pledged Securities,
any
Liquidating Distributions, or any other cash or non-cash payments on account
of
the Pledged Stock, Pledgor agrees to accept the same as Lender’s agent and to
hold the same in trust on behalf of and for the benefit of Lender and agrees
to
promptly deliver the same or any Certificates therefor forthwith to Lender
or
its agent in the exact form received, with the endorsement of Pledgor, when
necessary, or appropriate undated assignments separate from the Certificates
duly executed in blank, to be held by Lender or its agent subject to the terms
hereof.
4.2. Proceeds;
Dividends and Voting.
Notwithstanding anything contained in this Pledge Agreement to the contrary,
Pledgor shall be entitled to receive or shall receive such interest and cash
dividends paid on account of the Pledged Stock, and to exercise voting rights
with respect to the Pledged Stock, so long as there has not occurred any Event
of Default under the Loan Agreement or this Pledge Agreement (an Event of
Default under this Pledge Agreement being defined in Section
7.1).
5. REPRESENTATIONS
AND WARRANTIES OF THE PLEDGOR.
To
induce Lender to enter into this Pledge Agreement and the Loan Agreement,
Pledgor makes the following representations and warranties to
Lender:
5.1. Pledgor
is a corporation duly organized, validly existing and in good standing under
the
laws of the State of Delaware.
5.2. The
execution and delivery of this Pledge Agreement and the performance by Pledgor
of its obligations hereunder are within Pledgor’s corporate powers and have been
duly authorized by all necessary corporate action.
5.3. Pledgor
owns beneficially and of record all of the issued and outstanding shares of
capital stock of the Bank Subsidiaries and has good and marketable title to
all
of the Pledged Stock.
5.4. Pledgor
holds the Pledged Stock free and clear of all liens, charges, encumbrances,
security interests, options, voting trusts and restrictions of every kind and
nature whatsoever except only the liens and security interests created by this
Pledge Agreement or otherwise in favor of Lender.
5.5. Each
security which is a part of the Pledged Stock has been duly authorized and
validly issued and is fully paid and nonassessable.
5.6. This
Pledge Agreement has been duly executed and delivered by Pledgor and constitutes
the legal, valid and binding obligation of Pledgor enforceable against it in
accordance with its terms.
5.7. No
consent or approval of any governmental body, regulatory authority or securities
exchange or other Person or entity is required to be obtained by Pledgor in
connection with the execution, delivery and performance of this Pledge Agreement
other than those that have been obtained already.
5.8. The
execution, delivery and performance of this Pledge Agreement will not violate
any provision of any applicable law or regulation or of any writ or decree
of
any court or governmental instrumentality or of any indenture, contract,
agreement or other undertaking to which Pledgor is a party or which purports
to
be binding upon Pledgor or upon any of its assets and will not result in the
creation or imposition of any lien, charge or encumbrance on or security
interest in any of the assets of Pledgor except as contemplated by this Pledge
Agreement or otherwise in favor of Lender.
D-3
5.9. The
pledge, collateral assignment and delivery of the Pledged Stock pursuant to
this
Pledge Agreement creates a valid first lien and first and senior security
interest in the Pledged Stock, which lien and security interest are
perfected.
6. PLEDGOR’S
COVENANTS.
6.1. Pledgor
covenants and agrees that it will defend Lender’s lien and security interest in
and to the Pledged Stock against the claims and demands of all persons
whomsoever.
6.2. Pledgor
covenants and agrees that without the prior written consent of Lender, it will
not sell, convey or otherwise dispose of any of the Pledged Stock, or create,
incur or permit to exist any pledge, lien, mortgage, hypothecation, security
interest, charge, option or any other encumbrance or restriction with respect
to
any of the Pledged Stock, or any interest therein, or any proceeds thereof,
except for the liens and security interests created by this Pledge
Agreement.
6.3. Pledgor
covenants and agrees that it will not consent to the issuance of: (i) any
additional shares of capital stock of the Pledged Stock unless such shares
are
pledged and the Certificates therefor delivered to Lender, simultaneously with
the issuance thereof, together with appropriate undated assignments separate
from the Certificates duly executed in blank; and (ii) any options by the issuer
of the Pledged Stock obligating such issuer to issue additional shares of
capital stock of any class of such issuer.
6.4. At
any
time from time to time, upon the written request of Lender, and at the sole
expense of Pledgor, Pledgor covenants and agrees that it will promptly and
duly
execute and deliver such further instruments and documents and take such further
actions as Lender may reasonably request for the purposes of obtaining or
preserving the full benefits of this Pledge Agreement and of the rights and
powers herein granted, including, without limitation, the filing of UCC-1
financing statements in favor of Lender with respect to the Pledged Stock and
the proceeds thereof, in form satisfactory to Lender and with the Secretary
of
State of any state as Lender may determine. If any amount payable under or
in
connection with any of the Pledged Stock shall be or become evidenced by any
promissory note, other instrument or chattel paper, such note, instrument or
chattel paper shall be immediately delivered to Lender, duly endorsed in a
manner satisfactory to Lender, to be held as Pledged Stock pursuant to this
Pledge Agreement.
6.5. Pledgor
covenants and agrees to pay, and to save the Lender harmless from any and all
liabilities with respect to or resulting from any delay in paying, any and
all
stamp, excise, sales or other taxes which may be payable or determined to be
payable with respect to any of the Pledged Stock or in connection with any
of
the transactions contemplated by this Pledge Agreement.
7. RIGHTS
AND REMEDIES UPON DEFAULT.
7.1. If
any
Event of Default under the Loan Agreement or a default or breach in any respect
by Pledgor of any representation, warranty, covenant or agreement of Pledgor
under this Pledge Agreement (after the expiration of any applicable cure period
or grace period hereunder or thereunder, which breach shall be deemed an Event
of Default under the Loan Agreement and an Event of Default hereunder) shall
occur, Lender may do any one or more of the following: (a) declare the
Obligations Secured Hereby to be forthwith due and payable, whereupon such
Obligations Secured Hereby shall become immediately due and payable without
presentment, demand, protest or other notice of any kind; and/or (b) proceed
to
protect and enforce its rights under this Pledge Agreement, the Notes, the
Loan
Agreement, or any of the other Loan Documents through other appropriate
proceedings, and Lender shall have, without limitation, all of the rights and
remedies provided by applicable law, including, without limitation, the rights
and remedies of a secured party under the Illinois Uniform Commercial Code
(the
“UCC”)
and,
in addition thereto, Lender shall be entitled, at Lender’s option, to exercise
all voting and corporate rights with respect to the Pledged Stock as it may
determine, without liability therefor, but Lender shall not have any duty to
exercise any voting and corporate rights in respect of the Pledged Stock and
shall not be responsible or liable to Pledgor or any other person for any
failure to do so or delay in so doing.
D-4
7.2. Without
limiting the generality of the foregoing, if any Event of Default hereunder
or
under the Loan Agreement shall occur, Lender shall have the right to sell the
Pledged Stock, or any part thereof, at public or private sale or at any broker’s
board or on any securities exchange for cash, upon credit or for future
delivery, and at such price or prices as Lender may deem best, and Lender may
be
the purchaser of any or all of the Pledged Stock so sold and thereafter Lender
or any other purchaser shall hold the same free from any right or claim of
whatsoever kind. Lender is authorized, at any such sale, if it deems it
advisable so to do, to restrict the number of prospective bidders or purchasers
to persons who will represent and agree that they are purchasing for their
own
account, for investment, and not with a view to the distribution or resale
of
the Pledged Stock and may otherwise require that such sale be conducted subject
to restrictions as to such other matters as Lender may deem necessary in order
that such sale may be effected in such manner as to comply with all applicable
state and federal securities laws. Upon any such sale, Lender shall have the
right to deliver, assign and transfer to the purchaser thereof the Pledged
Stock
so sold.
7.3. Each
purchaser at any such sale shall hold the property sold, absolutely free from
any claim or right of whatsoever kind, including any equity or right of
redemption of Pledgor, who hereby specifically waives all rights of redemption,
stay or appraisal which it has or may have under any rule of law or statute
now
existing or hereafter adopted. Lender shall give Pledgor not less than ten
days’
written notice of its intention to make any such public or private sale or
at
any broker’s board or on any securities exchange (with such notice to state the
time and place of such sale), and Pledgor agrees that such notice shall be
deemed reasonable.
7.4. Any
such
public sale shall be held at such time or times within the ordinary business
hours and at such place or places as Lender may fix in the notice of such sale.
At any sale, the Pledged Stock may be sold in one lot as an entirety or in
parts, as Lender may determine. Lender shall not be obligated to make any sale
pursuant to any such notice. Lender may, without notice or publication, adjourn
any sale, and such sale may be made at any time or place to which the same
may
be so adjourned. In case of any sale of all or any part of the Pledged Stock
on
credit or for future delivery, the Pledged Stock so sold may be retained by
Lender until the selling price is paid by the purchaser thereof, but Lender
shall not incur any liability in case of the failure of such purchaser to take
up and pay for the Pledged Stock so sold and, in case of any such failure,
such
Pledged Stock may again be sold upon like notice.
7.5. Lender,
instead of exercising the power of sale herein conferred upon it, may proceed
by
a suit or suits at law or in equity to foreclose this Pledge Agreement and
sell
the Pledged Stock, or any portion thereof, under a judgment or decree of a
court
or courts of competent jurisdiction.
7.6. On
any
sale of the Pledged Stock, Lender is hereby authorized to comply with any
limitation or restriction in connection with such sale that it may be advised
by
counsel is necessary in order to avoid any violation of applicable law or in
order to obtain any required approval of the purchaser or purchasers by any
third party or any governmental regulatory authority or officer or court,
including, without limitation, all limitations and restrictions imposed by
federal and state banking laws and regulations. Compliance with the foregoing
sentence shall result in such sale or disposition being considered or deemed
to
have been made in a commercially reasonable manner.
7.7. In
furtherance of the exercise by Lender of the rights and remedies granted to
it
hereunder, Pledgor agrees that, upon request of Lender and at the expense of
Pledgor, it will use its Best Efforts to obtain all third party and governmental
approvals necessary for or incidental to the exercise of remedies by Lender
with
respect to the Pledged Stock or any part thereof, including, without limitation,
approvals from the FRB, OTS, MOFIS and IDFPR.
D-5
8. REGISTRATION
RIGHTS; PRIVATE SALES.
8.1. If
Lender
shall determine to exercise its right to sell any or all of the Pledged Stock
pursuant to Section
7
hereof,
and if in the opinion of Lender it is necessary or advisable to have the Pledged
Stock, or that portion thereof to be sold, registered under the provisions
of
the Securities Act of 1933, as amended (the “Securities
Act”),
the
Pledgor will cause the issuer of the Pledged Stock to (a) execute and deliver,
and cause to be done all such other acts, as may be, in the opinion of Lender,
necessary or advisable to register the Pledged Stock, or that portion thereof
to
be sold, under the provisions of the Securities Act, (b) use its Best Efforts
to
cause the registration statement relating thereto to become effective and to
remain effective for a period of one (1) year from the date of the first public
offering of the Pledged Stock, or that portion thereof to be sold, and (c)
make
all amendments thereto and/or to the related prospectus which, in the opinion
of
Lender, are necessary or advisable, all in conformity with the requirements
of
the Securities Act and the rules and regulations of the SEC applicable thereto.
Pledgor agrees to cause such issuer to comply with the provisions of the
securities or “Blue Sky” laws of any and all jurisdictions which Lender shall
designate and to make available to its security holders, as soon as practicable,
an earnings statement (which need not be audited) which will satisfy the
provisions of Section
11(a)
of the
Securities Act.
8.2. Pledgor
hereby acknowledges that, notwithstanding that a higher price might be obtained
for the Pledged Stock at a public sale than at a private sale or sales, the
making of a public sale of the Pledged Stock may be subject to registration
requirements and other legal restrictions compliance with which could require
such actions on the part of Pledgor, could entail such expenses and could
subject Lender and any underwriter through whom the Pledged Stock may be sold
and any controlling Person of any thereof to such liabilities as would make
the
making of a public sale of the Pledged Stock impractical. Accordingly, Pledgor
hereby agrees that private sales made by Lender in accordance with the
provisions of Section
7
hereof
may be at prices and on other terms less favorable to the seller than if the
Pledged Stock were sold at public sale, that Lender shall not have any
obligation to take any steps in order to permit the Pledged Stock to be sold
at
a public sale complying with the requirements of federal and state securities
and similar laws, and that such sale shall not be deemed to be made in a
commercially unreasonable manner solely because of its nature as a private
sale.
8.3. Pledgor
further agrees to use its Best Efforts to do or cause to be done all such other
acts as may be necessary to make any sale or sales of all or any portion of
the
Pledged Stock pursuant to Section
7
and this
Section
8
valid
and binding and in compliance with any and all other applicable requirements
of
law. Pledgor further agrees that a breach of any of the covenants contained
in
Section
7
and this
Section
8
will
cause irreparable injury to Lender, that Lender has no adequate remedy at law
in
respect of such breach and, as a consequence, that each and every covenant
contained in Section
7
of this
Section
8
shall be
specifically enforceable against Pledgor, and Pledgor hereby waives and agrees
not to assert any defenses to the granting of equitable relief (such as, without
limitation, any defense that Lender has an adequate remedy at law or that Lender
will not be irreparably injured) in any action for specific performance of
such
covenants.
9. LIMITATION
ON DUTIES REGARDING PLEDGED STOCK.
Lender’s sole duty with respect to the custody, safekeeping and physical
preservation of the Pledged Stock in its possession, under Section 9-207 of
the
UCC or otherwise, shall be to deal with it in the same manner as Lender deals
with similar securities and property for its own account. Neither Lender nor
any
of its directors, officers, employees or agents shall be liable for any good
faith failure to demand, collect or realize upon any of the Pledged Stock or
for
any delay in doing so or shall be under any obligation to see or otherwise
dispose of any Pledged Stock or for any good ▇▇▇▇▇ ▇▇▇▇▇ in doing so or shall
be
under any obligation to see or otherwise dispose of any Pledged Stock upon
the
request of the Pledgor or otherwise.
10. POWERS
COUPLED WITH AN INTEREST.
All
authorizations and agencies herein contained with respect to the Pledged Stock
are irrevocable and powers coupled with an interest.
D-6
11. INDEMNIFICATION.
Pledgor
agrees to indemnify and hold harmless Lender (to the full extent permitted
by
law) from and against any and all claims, demands, losses, judgments,
liabilities for penalties and excise taxes and other damages of whatever nature,
and to reimburse Lender for all costs and expenses, including reasonable legal
fees and disbursements, growing out of or resulting from the Pledged Stock,
this
Pledge Agreement, the Loan Agreement or the other Loan Documents or the
administration and enforcement of this Pledge Agreement, the Loan Agreement
or
the other Loan Documents or exercise of any right or remedy granted to Lender
hereunder except with respect to such claims, demands, losses, judgments,
liabilities for penalties and excise taxes and other damages of whatever nature
arising solely from the gross negligence or willful misconduct of Lender, but
including without limitation, any tax liability incurred by Lender or any of
its
affiliates as a result of the exercise by Lender of any of its rights hereunder.
In no event shall Lender be liable to Pledgor for any action taken by Lender
that is permitted under this Pledge Agreement other than to account for proceeds
of the Pledged Stock actually received by Lender.
12. DISTRIBUTION
OF PLEDGED STOCK.
Upon
enforcement of this Pledge Agreement following the occurrence of an Event of
Default under this Pledge Agreement, the Loan Agreement, or the Notes, the
proceeds of the Pledged Stock shall be applied to the Obligations Secured Hereby
in such order and manner as Lender may determine. In the event such monies
shall
be insufficient to pay all of the Obligations Secured Hereby, Pledgor shall
be
liable to Lender for any deficiency therein.
13. NO
WAIVER; CUMULATIVE REMEDIES.
Lender
shall not by any act, delay, omission or otherwise be deemed to have waived
any
of its rights or remedies hereunder and no waiver shall be valid unless in
writing, signed by Lender, and then such waiver shall be valid to the extent
therein set forth. A waiver by Lender of any right or remedy hereunder on any
one occasion shall not be construed as a bar to any right or remedy which Lender
would otherwise have on any future occasion. No failure to exercise or any
delay
in exercising on the part of Lender any right, power or privilege hereunder
shall operate as a waiver thereof; nor shall any single or partial exercise
of
any right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights
and
remedies herein provided are cumulative and not exclusive of any rights or
remedies provided by law.
14. SEVERABILITY
OF PROVISIONS.
The
provisions of this Pledge Agreement are severable, and if any clause or
provision hereof shall be held invalid or unenforceable in whole or in part,
then such invalidity or unenforceability shall attach only to such clause or
provision or part thereof and shall not in any manner affect any other clause
or
provision in this Pledge Agreement.
15. AMENDMENTS;
CHOICE OF LAW; BINDING EFFECT.
15.1. None
of
the terms or provisions of this Pledge Agreement may be altered, modified or
amended except by an instrument in writing, duly executed by each of the parties
hereto.
15.2. This
Pledge Agreement shall be governed by and construed in accordance with the
internal laws of the State of Illinois. Nothing herein shall be deemed to limit
any rights, powers or privileges which Lender may have pursuant to any law
of
the United States of America or any rule, regulation or order of any department
or agency thereof and nothing herein shall be deemed to make unlawful any
transaction or conduct by Lender which is lawful pursuant to, or which is
permitted by, any of the foregoing.
15.3. This
Pledge Agreement is made for the sole benefit of Pledgor and Lender, and no
other person shall be deemed to have any privity of contract hereunder nor
any
right to rely hereon to any extent or for any purpose whatsoever, nor shall
any
other person have any right of action of any kind hereon or be deemed to be
a
third party beneficiary hereunder.
16. NOTICES.
All
notices, consents, requests, demands and other communications hereunder shall
be
in writing and shall be given in accordance with Section
9.8
of the
Loan Agreement.
17. HEADINGS.
The
descriptive headings hereunder used are for convenience only and shall not
be
deemed to limit or otherwise effect the construction of any provision
hereof.
D-7
18. COUNTERPART
EXECUTION.
This
Pledge Agreement may be executed in several counterparts each of which shall
constitute an original, but all of which shall together constitute one and
the
same agreement.
19. FORUM;
AGENT; VENUE.
To
induce Lender to accept this Pledge Agreement and the other Loan Documents,
Pledgor irrevocably agrees that all actions or proceedings in any way, manner,
or respect, arising out of or from or related to this Pledge Agreement or the
other Loan Documents shall be litigated only in courts having suits within
Chicago, Illinois. Pledgor hereby consents and submits to the jurisdiction
of
any local, state, or federal court located within said city. Pledgor hereby
waives any right it may have to transfer or change the venue of any litigation
brought against Pledgor by Lender.
20. IRREVOCABLE
AUTHORIZATION AND INSTRUCTION TO ISSUERS.
Pledgor
hereby authorizes and instructs each issuer of Pledged Stock to comply with
any
instruction received by it from Lender in writing that (a) states that an Event
of Default has occurred and (b) is otherwise in accordance with the terms of
this Pledge Agreement, without any other or further instructions from Pledgor,
and Pledgor agrees that the issuer shall be fully protected in so
complying.
D-8
WAIVER
OF RIGHT TO JURY TRIAL.
PLEDGOR
HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THAT IT MAY
HAVE TO A TRIAL BY JURY IN ANY LITIGATION ARISING IN ANY WAY IN CONNECTION
WITH
THIS PLEDGE AGREEMENT, THE NOTES OR ANY OF THE OTHER LOAN DOCUMENTS, OR ANY
OTHER STATEMENTS OR ACTIONS OF PLEDGOR OR LENDER. PLEDGOR ACKNOWLEDGES THAT
IT
HAS BEEN REPRESENTED IN THE SIGNING OF THIS AGREEMENT AND IN THE MAKING OF
THIS
WAIVER BY INDEPENDENT LEGAL COUNSEL SELECTED OF ITS OWN FREE WILL, AND THAT
IT
HAS DISCUSSED THIS WAIVER WITH SUCH LEGAL COUNSEL. PLEDGOR FURTHER ACKNOWLEDGES
THAT (a) IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF THIS
WAIVER, (b) THIS WAIVER HAS BEEN REVIEWED BY PLEDGOR AND PLEDGOR’S COUNSEL AND
IS A MATERIAL INDUCEMENT FOR LENDER TO ENTER INTO THE AGREEMENT AND THE OTHER
LOAN DOCUMENTS (c) THIS WAIVER SHALL BE EFFECTIVE AS TO EACH OF SUCH OTHER
LOAN
DOCUMENTS AS IF FULLY INCORPORATED THEREIN.
IN
WITNESS WHEREOF,
the
parties have caused this Pledge Agreement to be duly executed and delivered
as
of the day and year first above written.
PRIVATEBANCORP,
INC.
By:
Name:
Title:
LASALLE
BANK NATIONAL ASSOCIATION
By:
_________________________________________
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title:
First Vice President
D-9
SCHEDULE
A
ISSUER:
THE PRIVATEBANK AND TRUST COMPANY
|
Owner
|
Class
|
Certificate
Number
|
Number
of Shares
|
Percentage
of Class
|
|
PrivateBancorp,
Inc.
|
Common
|
_____
|
128,450
|
100%
|
ISSUER:
THE PRIVATEBANK,
a
federal savings bank
|
Owner
|
Class
|
Certificate
Number
|
Number
of Shares
|
Percentage
of Class
|
|
PrivateBancorp,
Inc.
|
Common
|
_____
|
40,000
|
100%
|
ISSUER:
THE PRIVATEBANK,
a Michigan chartered bank
|
Owner
|
Class
|
Certificate
Number
|
Number
of Shares
|
Percentage
of Class
|
|
PrivateBancorp,
Inc.
|
Common
|
_____
|
______
|
100%
|
D-10
ACKNOWLEDGMENT
The
undersigned issuer of the Pledged Stock hereby acknowledges receipt of a copy
of
this Pledge Agreement and agrees to (a) note the restrictions herein on its
books, records, ledgers and certificates maintained with respect to its capital
stock, (b) not make or permit any dividends or distributions with respect to
its
capital stock except as permitted in this Pledge Agreement, and (c) not make
or
permit any sale, transfer or issuance of any of its capital stock or of any
rights to acquire its capital stock except as permitted in this Pledge
Agreement.
THE
PRIVATEBANK AND TRUST COMPANY, an
Illinois chartered bank
By:
Name:
Title:
THE
PRIVATEBANK, a
federal
savings bank
By:
Name:
Title:
THE
PRIVATEBANK, a
Michigan chartered bank
By:
Name:
Title:
D-11
Assignment
Separate from Certificate
[Deliver
one original per pledged stock certificate]
FOR
VALUE RECEIVED,
PrivateBancorp, Inc., does hereby sell, assign and transfer unto
___________________________, ______________________________ (___) Shares of
Common Stock of [PrivateBank
and Trust Company/PrivateBank],
standing in his/her/its name on the books of such corporation represented by
Certificate(s) No. ___, ___, ___ and ___ and does hereby irrevocably constitute
and appoint attorney to transfer such stock on the books of the within named
bank with full power and substitution in the premises.
Further
under penalties of perjury, the undersigned certifies:
|
1.
|
That
the number shown on this form is the undersigned’s correct taxpayer
identification number.
|
|
2.
|
That
the undersigned is not subject to backup withholding either because
the
undersigned had not been notified that the undersigned is subject
to
backup withholding as a result of a failure to report all interest
or
dividends, or the Internal Revenue Service has notified the undersigned
that the undersigned is no longer subject to backup
withholding.
|
Taxpayer
Identification #
Dated:
PRIVATEBANCORP,
INC.
By:
Name:
Title:
In
presence of:
D-12
EXHIBIT
E
FORM
OF
RATE ELECTION NOTICE
_________________,
2005
LaSalle
Bank National Association
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Ladies
and Gentlemen:
This
will
confirm the telephone conversation Ms./Mr. _____________________ had with your
office on _____________, 200__, regarding Advances under and as defined in
the
Amended and Restated Loan and Subordinated Debenture Purchase Agreement dated
as
of September ___, 2005, as amended, as follows:
FROM
LOAN
#:______________
Amount
of Advance: $____________
Note
(circle as applicable):
Term
Note / Revolving Note / Subordinated Debenture
Effective
Date:
LIBOR
Rate Tranche
or
Base
Rate Tranche
(circle
one, for Term Note only)
Very
truly yours,
PRIVATEBANCORP,
INC.
By:
Authorized
Signature
E-1
EXHIBIT
F
FORM
OF
OPINION OF BORROWER’S COUNSEL
__________________,
▇▇▇▇
▇▇▇▇▇▇▇
Bank National Association
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Re: Loans
to PrivateBancorp, Inc.
Ladies
and Gentlemen:
We
have
served as counsel to PrivateBancorp, Inc. (“Borrower”),
a
corporation incorporated under the laws of Delaware, in connection with the
Loans described in that certain Amended and Restated Loan and Subordinated
Debenture Purchase Agreement dated as of September ___, 2005 (the "Loan
Agreement")
by and
between Borrower and LaSalle Bank National Association, a national banking
association (the "Lender").
This
opinion is being delivered to you pursuant to Section
3.2.10
of the
Loan Agreement. Capitalized terms used herein and otherwise undefined shall
have
the meanings given them in the Loan Agreement.
In
order
to render the opinions expressed herein, we have examined the following
(collectively, the "Financing
Documents"):
1. the
executed Loan Agreement, Agreed Upon Terms and Procedures and the other Loan
Documents; and
|
2.
|
such
other documents, instruments, writings and agreements as we deemed
appropriate.
|
In
our
examination of the Financing Documents, we have assumed the genuineness of
all
signatures, the authenticity of all documents submitted to us as originals,
the
conformity of all copies submitted to us with the originals to be delivered
and
the due authorization, execution and delivery by each party to such documents
(other than the Borrower).
Based
on
the foregoing and subject to the qualifications set forth in this letter, it
is
our opinion that:
1. Borrower
is duly organized, validly existing and in good standing as a corporation under
the laws of Delaware, is qualified to do business in all other states where
the
nature and extent of the business or activities transacted by it or the
ownership of its assets makes such qualification necessary, except where the
failure to do so qualify would not have a material adverse effect on Borrower,
and has the requisite corporate power to conduct its business and activities
as
they have been and are now being conducted. Borrower is registered as a bank
holding company under the Bank Holding Company Act of 1956, as
amended.
2. Borrower
has _________ shares of authorized stock divided into one class consisting
of
___________ shares of Common Stock, of which __________ shares are issued and
_________ shares are outstanding. All of such issued and outstanding shares
are
validly issued and outstanding, fully paid and non-assessable. [Conform
to capitalization of Borrower].
3. PrivateBank
St. Louis is a federal savings bank, duly organized, validly existing and in
good standing under federal law. PrivateBank is an Illinois chartered bank,
duly
organized, validly existing and in good standing under the laws of Illinois
PrivateBank Michigan is a Michigan chartered bank, duly organized, validly
existing and in good standing under the laws of Michigan. The deposit accounts
of the Subsidiary Banks are insured by the FDIC. The Subsidiary Banks have
the
requisite power and authority, corporate or otherwise, to conduct their
respective businesses as they have been and are now being conducted. The
authorized capital stock of each of PrivateBank, PrivateBank St. Louis and
PrivateBank Michigan is as stated in the Loan Agreement and such stock is
validly issued and outstanding, fully paid and non-assessable. The Pledge
Agreement and the possession of the Pledged Subsidiary Bank Shares by the Lender
are sufficient to create a first priority valid and perfected lien on such
shares.
F-1
4. Borrower
owns 100% of the outstanding capital stock of PrivateBank, PrivateBank St.
Louis
and PrivateBank Michigan free and clear of all liens, encumbrances and security
interests of others other than encumbrances in favor of the Lender. None of
the
issued and outstanding shares of capital stock of PrivateBank, PrivateBank
St.
Louis or PrivateBank Michigan has been issued in violation of any preemptive
rights. There are no options, warrants, or other rights outstanding to acquire
any capital stock of PrivateBank, PrivateBank St. Louis or PrivateBank Michigan
and no person or entity has any other right to purchase or acquire any unissued
shares of capital stock of PrivateBank, PrivateBank St. Louis or PrivateBank
Michigan, nor does PrivateBank, PrivateBank St. Louis or PrivateBank Michigan
have any obligation of any nature with respect to its unissued shares of capital
stock.
5. Provided
that the Lender is an accredited investor within the meaning of Regulation
D as
promulgated under the Securities Act of 1933, as amended (the “Act”),
it is
not necessary in conjunction with the issuance of the Subordinated Debenture,
to
register the Subordinated Debenture under the Act or the laws of the State
of
Illinois.
6. No
order,
permission, consent or approval of any federal or state commission, board or
regulatory authority is required for the execution and delivery or performance
by Borrower of the Loan Documents.
7. Except
as
disclosed in the Loan Documents, there are no actions, suits, investigations,
or
proceedings pending, or to our knowledge and belief, threatened against or
affecting Borrower or any Subsidiary, or the business or properties of Borrower
or any Subsidiary, or before or by any Governmental Agency or any court,
arbitrator or grand jury, which can reasonably be expected to result in any
material adverse change in business, operations or properties or assets or
in
the condition, financial or otherwise, of Borrower or any Subsidiary, or in
the
ability of Borrower or any Subsidiary to perform under the Loan Documents.
None
of Borrower or any Subsidiary is, to our knowledge, in default with respect
to
any judgment, order, writ, injunction, decree, demand, rules or regulation
of
any court, arbitrator, grand jury, or of any Governmental Agency, default under
which might have consequences which would materially and adversely affect the
business, properties or assets of the condition, financial or otherwise, of
Borrower or any Subsidiary.
8. There
is
no default by Borrower or any Subsidiary under any order, writ, injunction
or
decree of any court, any applicable law, instrumentality, any contract, lease,
agreement, instrument or commitment to which any of them is a party or bound,
which has or would have a material adverse effect upon the condition, financial
or otherwise, of Borrower, or any Subsidiary or their ability to perform under
the Loan Documents.
9. To
our
knowledge, no proceeds of the Loans will be used to purchase or carry any margin
stock or to extend credit to others for purposes of purchasing or carrying
margin stock.
10. The
execution, delivery and performance by Borrower of the Loan Documents (i) are
within its corporate powers, (ii) have been duly authorized by all necessary
corporate action of Borrower, (iii) do not contravene (1) Borrower’s, any
Subsidiary Bank’s or any other Subsidiary’s charter or by-laws or (2) any law or
contractual restriction affecting Borrower, any Subsidiary Bank or any other
Subsidiary and (iv) other than as contained in the Pledge Agreement, do not
result in the creation of any lien or other encumbrance upon or with respect
to
any of the assets or property of Borrower, any Subsidiary Bank or any other
Subsidiary.
F-2
11. The
Loan
Documents are legally valid and binding obligations of Borrower and are
enforceable against it in accordance with their respective terms, except as
such
enforceability may be limiting by bankruptcy, insolvency, reorganization,
moratorium, or other laws relating to or limiting creditors’ rights or equitable
principles generally.
12. The
Loans
are entitled to the benefits of the subordination provisions of each
Indenture.
13. The
Junior Subordinated Debentures are and will forever be expressly subordinate
and
junior in all respects (including, without limitation, with respect to the
right
of payment) to the Loans. The Loans constitute “Senior Indebtedness” as defined
in each Indenture.
Very
truly yours,
F-3
EXHIBIT
G
FORM
OF
QUARTERLY COMPLIANCE CERTIFICATE
for
the
Quarter Ended ______________________
The
undersigned, the ____________________ of PrivateBancorp, Inc. (“Borrower”),
hereby delivers this certificate pursuant to Section
5.2.1.5
of that
certain Amended and Restated Loan and Subordinated Debenture Purchase Agreement
dated as of September ___, 2005, between Borrower and LaSalle Bank National
Association (as amended, the “Agreement”)
and
certifies as of the date hereof as follows:
1. Attached
hereto are the quarterly financial reports described in Section
5.2.1.1
of the
Agreement for the above-referenced quarter.
2. Borrower
is in compliance in all material respects with all covenants contained in the
Agreement, and has provided a detailed calculation, as of the above-referenced
quarter-end, of the financial covenants set forth in Section
7
of the
Agreement on Annex A attached hereto.
3. No
Event
of Default has occurred or is continuing under the Agreement. [Or,
if incorrect, provide detail regarding the Event of Default and the steps being
taken to cure it and the time within which such cure will
occur.]
Capitalized
terms in this Quarterly Compliance Certificate that are otherwise undefined
shall have the meanings given them in the Agreement.
Dated:
[INSERT
DATE]
PRIVATEBANCORP,
INC.
By:
Name:
Title:
G-1
ANNEX
A
to
QUARTERLY
COMPLIANCE CERTIFICATE
[to
be completed in same format as currently used]
EXHIBIT
H
FORM
OF
REVOLVING LOAN MATURITY DATE EXTENSION NOTICE
[LaSalle
Bank National Association Letterhead]
PrivateBancorp,
Inc.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇.
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Re:
|
Amended
and Restated Loan and Subordinated Debenture Purchase Agreement,
dated as
of September ___, 2005, between PrivateBancorp, Inc. and LaSalle
Bank
National Association (as amended, the
“Agreement”)
|
Dear
▇▇.
▇▇▇▇▇▇▇:
This
notice is to inform you that we have received the necessary approvals to enable
us to extend the maturity date of the Revolving Loan. This notice constitutes
the Extension Notice under the Agreement. Accordingly, the Revolving Loan
Maturity Date is December 31, 2006.
Capitalized
terms used herein and otherwise undefined shall have the meanings given them
in
the Agreement.
Very
truly yours,
_________________________
Authorized
Signatory
H-1
EXHIBIT
I
FORM
OF
SUBORDINATED DEBT AMOUNT INCREASE NOTICE
[LaSalle
Bank National Association Letterhead]
PrivateBancorp,
Inc.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇.
▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
|
Re:
|
Amended
and Restated Loan and Subordinated Debenture Purchase Agreement,
dated as
of September ___, 2005, between PrivateBancorp, Inc. and LaSalle
Bank
National Association (as amended, the
“Agreement”)
|
Dear
▇▇.
▇▇▇▇▇▇▇:
This
notice is to inform you that we have received the necessary approvals to enable
us to increase the Subordinated Debt Amount. This notice constitutes the Sub
Debt Approval Notice under the Agreement. [We
wish to inform you that we have received to our satisfaction the deliveries
contemplated in Section
3.2.10.2
and 3.2.10.3
of the Agreement.]
Accordingly, the Subordinated Debt Amount is $25,000,000.
Capitalized
terms used herein and otherwise undefined shall have the meanings given them
in
the Agreement.
Very
truly yours,
_________________________
Authorized
Signatory
I-1
EXHIBIT
J
FORM
OF
COLLATERAL SAFEKEEPING AGREEMENT
THIS
COLLATERAL SAFEKEEPING AGREEMENT (this
“Agreement”),
dated
as
of the __ day of _____________, 2005, is entered into by PRIVATEBANCORP, INC.,
a
Delaware corporation
(the “Borrower”),
LASALLE BANK NATIONAL ASSOCIATION, a national banking association (the
“Lender”), and LASALLE BANK MIDWEST, N.A., a national banking association (the
“Custodian”).
R
E C
I T A L S:
A. The
Lender and the Borrower have entered into that certain Amended and Restated
Loan
and Subordinated Debenture Purchase Agreement dated as of September ___, 2005
(as amended, restated, supplemented or modified from time to time, the
“Loan
Agreement”),
and a
related Pledge Agreement, dated as of September ___, 2005 (as amended, restated,
supplemented or modified from time to time, the “Pledge
Agreement”),
in
connection with the credit facilities contemplated in the Loan Agreement in
the
aggregate principal amount of up to $65,000,000 (collectively, and as the same
may be amended, restated, supplemented, modified, extended or replaced from
time
to time, the “Loans”).
B. The
Loan
evidenced by a $25,000,000 Subordinated Debenture dated the date hereof is
unsecured. The remaining two Loans are secured by, among other things: (i)
128,450 shares (100%) of the common stock, $______ par value per share, of
The
PrivateBank and Trust Company, an Illinois state-chartered, non-member bank
with
its main office located in Chicago, Illinois, and a wholly owned subsidiary
of
the Borrower; (ii) 40,000 shares (100%) of the common stock, $_____ par value
per share, of The PrivateBank, a federal savings bank with its main office
located in St. Louis, Missouri; and (iii) _______________ shares (100%) of
the
common stock, $______ par value per share, of The PrivateBank, a Michigan
state-chartered, non-member bank with its main office located in Bloomfield
Hills, Michigan, and a wholly owned subsidiary of the Borrower (such shares
may
be referred to herein collectively as, the “Subsidiary
Bank Shares”).
C. The
Borrower has requested the Subsidiary Bank Shares be held by the Custodian,
and
the Lender has agreed to such request, subject to the terms and conditions
of
this Agreement.
D. Capitalized
terms set forth herein that are otherwise undefined shall have the respective
meanings given them in the Loan Agreement.
A
G R E E M E N T:
THEREFORE,
in
consideration of the mutual covenants, conditions and agreements herein
contained, the parties hereto hereby agree as follows:
1. COLLATERAL
SHARES.
1.1. As
security for the payment of the obligations of the Borrower to the Lender (other
than with respect to amounts outstanding under that certain $25,000,000
Subordinated Debenture dated the date hereof that are deemed to be Tier 2
Capital of Borrower in accordance with the rules and regulations of the FRB
applicable to the capital status of the subordinated debt of bank holding
companies), whether now or hereafter existing and howsoever evidenced, or any
extension or renewal thereof, including, without limitation, all obligations
under the Loan Agreement, the Notes, and the Pledge Agreement (collectively,
the
“Obligations”),
the
Borrower has previously pledged and assigned to the Lender under the Loan
Agreement and the Pledge Agreement, the Subsidiary Bank Shares (with all income
and profits thereof, all distributions thereon, all other proceeds thereof
and
all rights, benefits and privileges pertaining or arising thereunder, the
“Collateral”).
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1.2. The
Collateral that has not previously been delivered to the Custodian is
concurrently herewith being delivered to the Custodian for
safekeeping.
2. COLLATERAL
SHARES.
Until
the Custodian shall receive written notice from the Lender that all of the
Obligations have been fully paid and satisfied, the parties hereto agree as
follows:
2.1. The
Custodian is hereby appointed as agent for the Lender, as secured party, and
the
Custodian shall hold and retain possession of the Collateral for the Lender
as
security for the payment of the Obligations;
2.2. The
Borrower shall be unable to withdraw any of the Collateral without the Lender’s
prior written consent;
2.3. The
Custodian shall deliver all or any part of the Collateral to the Lender upon
its
request at any time; and
2.4. The
Lender’s receipt for any of the Collateral so delivered by the Custodian shall
be a full and complete receipt and acquittance to the Custodian as fiduciary
for
the Collateral.
3. ACCEPTANCE.
The
Custodian hereby acknowledges that the Collateral has been pledged as security
for the Obligations, and the Custodian hereby accepts appointment as agent
for
the Lender, as secured party, and agrees to act in accordance with the terms
and
provisions hereof. Until the termination of this Agreement, the Custodian agrees
that it shall not have or assert, and waives any right, whether created by
contract, statute or otherwise, to assert any right of offset against or lien
or
interest in any of the Collateral. The Collateral has been coded as assigned
in
the records of the Custodian, and none of the Collateral will be released by
the
Custodian without the prior written consent of the Lender.
4. INDEMNITY;
ASSUMPTION OF RISK.
4.1. To
the
fullest extent permitted by law, the Borrower shall defend, indemnify and hold
harmless each of the Lender and the Custodian, and their respective officers,
directors, agents, employees, members and affiliated companies (collectively,
the “Indemnitees”),
from
and against all claims, judgments, damages, losses, penalties, liabilities,
costs and expenses of investigation and defense of any claim and of any good
faith settlement of whatever kind or nature, contingent or otherwise, matured
or
unmatured, foreseeable or unforeseeable, including, without limitation,
reasonable attorneys’ fees and expenses, any of which are incurred at any time
as a result of, or in connection with, the entering into of this Agreement
or
the transactions contemplated thereby.
4.2. The
Borrower and the Borrower’s counsel have requested that the Lender and the
Custodian enter into this Agreement. None of the Indemnitees shall be liable
for
any expense, cost, loss or damage of any kind or nature resulting or sustained
by the Borrower as a result of the entering into of this Agreement, including,
without limitation, any franchise or other taxes payable as a result thereof,
and the Borrower expressly assumes all risk of loss or damage by entering into
this Agreement. Notwithstanding anything herein to the contrary, the Custodian
shall remain liable for the actual losses incurred by the Borrower for the
Custodian’s failure to return the Collateral to the Lender within a reasonable
period of time following receipt of a proper request to do so from the Lender,
unless the Custodian is prohibited or restrained from delivering the Collateral
by virtue of any judicial order, decree or other legal process.
5. FEES.
The
Borrower shall pay a $500 fee
to
the Custodian on June 15, 2006 and each anniversary thereof until such time
as
this Agreement has been terminated, in accordance with Custodian’s normal and
customary billing practices.
6. ORIGINAL
AGREEMENT.
This
Agreement replaces that certain Collateral Safekeeping Agreement dated as of
June 15, 2001 among the Borrower, the Lender and Standard Federal Bank, as
custodian, as such agreement has been amended prior to the date hereof (the
“Original
Agreement”).
The
Original Agreement shall be of no further force and effect from and after the
date of this Agreement.
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REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN
WITNESS WHEREOF,
this
Agreement has been signed as of the date first above written.
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LASALLE
BANK NATIONAL ASSOCIATION
By:
Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title:
First Vice President
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PRIVATEBANCORP,
INC.
By:
Name:
Title:
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LASALLE
BANK MIDWEST, N.A.
By:
Name:
Title:
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[DISCLOSURE
SCHEDULES TO BE ATTACHED]