FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
Exhibit 10.4
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
THIS FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT dated as of December 5, 2008 (this
“Amendment”), by and among PRIVATEBANCORP, INC. a Delaware corporation (the
“Borrower”), each of the financial institutions party hereto as “Lenders” and SUNTRUST
BANK, in its capacity as Administrative Agent (in such capacity, the “Administrative
Agent”).
W I T N E S S E T H:
WHEREAS, the Borrower, the Lenders and the Administrative Agent are parties to that certain
Revolving Credit Agreement dated as of September 26, 2008 (the “Credit Agreement”);
WHEREAS, the Borrower desires to issue up to $200,000,000 of senior unsecured debt guaranteed
by the Federal Deposit Insurance Corporation (the “FDIC”) pursuant to the FDIC’s temporary
liquidity guarantee program established pursuant to 12 C.F.R. Part 370; and
WHEREAS, in order to facilitate the foregoing, the Borrower, the Lenders and the
Administrative Agent desire to amend the Credit Agreement on the terms and conditions hereof.
NOW, THEREFORE, for and in consideration of the above premises and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto,
the Lenders, the Administrative Agent and the Borrower hereby agree as follows:
1. Defined Terms. Capitalized terms which are used herein without definition and
which are defined in the Credit Agreement shall have the same meanings herein as in the Credit
Agreement.
2. Limited Amendments.
(a) The Credit Agreement is hereby amended by inserting the following defined terms into
Section 1.1 in appropriate alphabetical order:
“FDIC” shall mean the Federal Deposit Insurance Corporation.
“FDIC Guarantee Program” shall mean the FDIC’s temporary liquidity guarantee
program established pursuant to 12 C.F.R. Part 370.
(b) The Credit Agreement is hereby further amended by deleting the definition of “Base Rate”
in Section 1.1 and inserting in lieu thereof the following:
“Base Rate” shall mean the highest of (i) the per annum rate which the
Administrative Agent publicly announces from time to time to be its prime lending
rate, as in effect from time to time, (ii) the Federal Funds Rate, as in effect from
time to time, plus one-half of one percent (0.50%) or (iii) the sum of (x) LIBOR for an
Interest Period of one month, which shall be determined on each Business Day, plus
(y) the excess of 1.25% over the Base Rate Margin. The Administrative Agent’s prime
lending rate is a reference rate and does not necessarily represent the lowest or
best rate charged to customers. The Administrative Agent may make commercial loans
or other loans at rates of interest at, above or below the Administrative Agent’s
prime lending rate. Each change in the Administrative Agent’s prime lending rate
shall be effective from and including the date such change is publicly announced as
being effective.
(c) The Credit Agreement is further amended by deleting the “.” at the end of Section 5.1(h)
and inserting in its place “; and” and inserting the following new clause (i) into Section 5.1
immediately following Section 5.1(h):
“(i) promptly after delivery thereof, all reports, certificates and other data
required pursuant to the FDIC Guarantee Program.”
(d) The Credit Agreement is hereby further amended by deleting the “.” at the end of Section
7.1(i) and inserting in its place “; and” and inserting the following new clause (j) into Section
7.1 immediately following Section 7.1(i):
“(j) unsecured Indebtedness of the Borrower in an aggregate amount outstanding
at any time not to exceed the lesser of (i) $200,000,000 and (ii) the Borrower’s
debt guarantee limit pursuant to 12 C.F.R. Section 370.3(b), so long as (v) such
Indebtedness qualifies as “FDIC-guaranteed debt” pursuant to 12 C.F.R. Section
370.2(i), (w) such Indebtedness has not otherwise been disqualified pursuant to 12
C.F.R. Section 370.2(i), (x) such Indebtedness has been guaranteed by the FDIC
pursuant to the FDIC Guarantee Program, (y) the maturity date of such Indebtedness
does not extend beyond June 30, 2012, as such date may be extended by the FDIC
pursuant to the FDIC Guarantee Program or otherwise and (z) the FDIC has not
terminated the Borrower’s participation in the FDIC Guarantee Program under 12
C.F.R. Section 370.3(e)(3).”
(e) The Credit Agreement is hereby further amended by inserting the following new Section 7.9
into Article VII:
“Section 7.9. FDIC Guarantee Program Participation. So long as the
Borrower has any Indebtedness outstanding under Section 7.1(j), the Borrower will
not opt out of the FDIC Guarantee Program.”
3. FDIC as Governmental Authority. For the avoidance of doubt, the definition of
“Governmental Authority” set forth in Section 1.1 of the Credit Agreement shall, for all purposes,
be deemed to include the FDIC for so long as the FDIC has any regulatory authority over the
Borrower.
4. Conditions Precedent to Effectiveness. The effectiveness of this Amendment is
subject to the truth and accuracy of the representations set forth in Sections 5 and 6 below and
receipt by the Administrative Agent of the following, each of which shall be in form and
substance
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satisfactory to Administrative Agent:
(a) This Amendment, duly executed and delivered by the Borrower, the Required Lenders and the
Administrative Agent;
(b) Payment of all reasonable costs and expenses of the Administrative Agent (including,
without limitation, attorneys’ fees) incurred in connection with the Credit Agreement and the other
Loan Documents, including, without limitation, the preparation, negotiation, execution and delivery
of this Amendment; and
(c) Such other documents as the Administrative Agent may reasonably request.
It is the intent of the parties that, notwithstanding the date that all of the foregoing conditions
are satisfied, this Amendment shall be effective as of December 5, 2008.
5. Representations of the Borrower. The Borrower represents and warrants to the
Administrative Agent and the Lenders that:
(a) Power and Authority. The Borrower has the power and authority to execute, deliver
and perform the terms and provisions of this Amendment, and has taken all necessary corporate, and
if required, stockholder, action to duly authorize the execution, delivery and performance by it of
this Amendment. Each of this Amendment and the Credit Agreement, as amended by this Amendment,
constitutes the legal, valid and binding obligations of the Borrower enforceable in accordance with
its terms, except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other similar laws generally affecting creditors’ rights and by equitable principles.
(b) No Violation. The execution, delivery and performance by the Borrower of this
Amendment, and compliance by the Borrower with the terms and provisions of the Credit Agreement, as
amended by this Amendment: (i) will not contravene any provision of any law, statute, rule or
regulation or any order, writ, injunction or decree of any court or Governmental Authority binding
upon the Borrower, (ii) will not 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 or loan agreement, or any other agreement, contract or instrument, to
which the Borrower or any of its Subsidiaries is a party or by which they or any of their property
or assets is bound or to which they may be subject or (iii) will not violate any provision of the
certificate of incorporation or bylaws of the Borrower.
(c) Governmental Approvals. No order, consent, approval, license, authorization or
validation of, or filing, recording or registration with (except for those that have otherwise been
obtained or made on or prior to the date of the effectiveness of this Amendment and which remain in
full force and effect on such date), or exemption by, any Governmental Authority, is required to
authorize, or is required in connection with, (i) the execution, delivery and performance of this
Amendment by the Borrower or (ii) the legality, validity, binding effect or enforceability of the
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Credit Agreement, as amended by this Amendment, against the Borrower.
(d) No Default. No Default or Event of Default now exists or will exist immediately
after giving effect to this Amendment.
(e) Eligible Entity. The Borrower is an “eligible entity,” as such term is defined in
12 C.F.R. Section 370.2(a) of the rules and regulations of the FDIC.
6. Reaffirmation of Representations. The Borrower hereby repeats and reaffirms all
representations and warranties made by it to the Administrative Agent and the Lenders in the Credit
Agreement and the other Loan Documents to which it is a party on and as of the date hereof (and
after giving effect to this Amendment) with the same force and effect as if such representations
and warranties were set forth in this Amendment in full (except to the extent that such
representations and warranties relate expressly to an earlier date, in which case such
representations and warranties were true and correct as of such earlier date).
7. No Further Amendments; Ratification of Liability. Except as expressly amended
hereby, the Credit Agreement and each of the other Loan Documents shall remain in full force and
effect in accordance with their respective terms. The Borrower hereby ratifies, confirms and
reaffirms its liabilities, payment and performance obligations (contingent or otherwise) and its
agreements under the Credit Agreement and the other Loan Documents, all as amended by this
Amendment, and the liens and security interests granted, created and perfected thereby. The
Lenders’ agreement to the terms of this Amendment or any other amendment of the Credit Agreement or
any other Loan Document shall not be deemed to establish or create a custom or course of dealing
between the Borrower or the Lenders, or among any of them. This Amendment contains the entire
agreement among the Borrower and the Lenders contemplated by this Amendment. This Amendment shall
be deemed to be a “Loan Document” for all purposes under the Credit Agreement.
8. Other Provisions.
(a) Except for the amendments expressly set forth and referred to above, the provisions of the
Credit Agreement and the other Loan Documents shall remain unchanged and in full force and effect,
and the Lenders and the Administrative Agent hereby reserve the right to require strict compliance
with the terms and conditions of the Credit Agreement and the other Loan Documents in the future.
(b) This Amendment 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 counterparts, taken together, shall constitute but one and the same document.
(c) The Borrower agrees to reimburse the Administrative Agent on demand for all reasonable
costs and expenses (including, without limitation, attorneys’ fees) incurred by it in
connection with the Credit Agreement and this Amendment, the other documents referred to
herein and therein, the transactions contemplated hereby and thereby.
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(d) THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE
LAW OF THE STATE OF NEW YORK.
(e) THIS AMENDMENT CONSTITUTES THE ENTIRE CONTRACT AMONG THE PARTIES HERETO RELATING TO THE
SUBJECT MATTER HEREOF AND SUPERSEDES ANY AND ALL PREVIOUS DISCUSSIONS, CORRESPONDENCE, AGREEMENTS
AND OTHER UNDERSTANDINGS, WHETHER ORAL OR WRITTEN, RELATING TO THE SUBJECT MATTER HEREOF.
(f) In consideration of the amendments contained herein and the Borrower hereby waives and
releases each of the Lenders and the Administrative Agent from any and all claims and defenses,
whether known or unknown, with respect to the Credit Agreement and the other Loan Documents and the
transactions contemplated thereby.
(g) THE PARTIES HERETO HAVE ENTERED INTO THIS AMENDMENT SOLELY TO AMEND TERMS OF THE CREDIT
AGREEMENT. THE PARTIES DO NOT INTEND THIS AMENDMENT NOR THE TRANSACTIONS CONTEMPLATED HEREBY TO
BE, AND THIS AMENDMENT AND THE TRANSACTION CONTEMPLATED HEREBY SHALL NOT BE CONSTRUED TO BE, A
NOVATION OF ANY OF THE OBLIGATIONS OWING BY THE BORROWER UNDER OR IN CONNECTION WITH THE CREDIT
AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the Borrower, the Lenders and the Administrative Agent have caused this
First Amendment to Revolving Credit Agreement to be duly executed by their respective duly
authorized officers and representatives as of the day and year first above written.
| PRIVATEBANCORP, INC. |
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| By: | /s/ Xxxxxx Xxxxxxx | |||
| Name: | Xxxxxx Xxxxxxx | |||
| Title: | Chief Financial Officer | |||
| SUNTRUST BANK, in its capacities as a Lender and as Administrative Agent |
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| By: | /s/ K. Xxxxx Xxxxxxxx | |||
| Name: | K. Xxxxx Xxxxxxxx | |||
| Title: | Vice President | |||
[Signatures Continue on Following Pages]
| XXXXX FARGO BANK, N.A. as a Lender |
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| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
[Signatures Continue on Following Page]
[Signature Page to First Amendment to Credit Agreement with PrivateBancorp, Inc.]
| BANK OF AMERICA, N.A., as successor in interest to LaSalle Bank National Association, as a Lender |
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| By: | /s/ Xxxxxxxx Xxxxxxxxxxx | |||
| Name: | Xxxxxxxx Xxxxxxxxxxx | |||
| Title: | Senior Vice President | |||
[Signature Page to First Amendment to Revolving Credit Agreement with PrivateBancorp, Inc.]
