Exhibit 10.2
AMENDMENT NO. 2 TO LOAN AGREEMENT
THIS AMENDMENT NO. 2 TO LOAN AGREEMENT (this "AMENDMENT") dated as of
April 11, 2002, is entered into between PRIVATEBANCORP, INC., a Delaware
corporation (the "BORROWER"), and LASALLE BANK NATIONAL ASSOCIATION, a national
banking association with its main office located in Chicago, Illinois (the
"BANK").
RECITALS
A. The Borrower and the Bank entered into a loan agreement, dated as of
February 11, 2000 (the "ORIGINAL LOAN AGREEMENT"), in which the Bank agreed to
extend to the Borrower credit in the aggregate principal amount of Eighteen
Million Dollars ($18,000,000).
B. The Borrower delivered to the Bank a Revolving Note dated as of
February 11, 2000, in the principal amount of Eighteen Million Dollars
($18,000,000) (the "REVOLVING NOTE").
C. In connection with the transactions contemplated under the Original
Loan Agreement, the Borrower granted to the Bank a security interest in 100% of
the capital stock of PrivateBank and Trust Company, an Illinois state bank with
its main office located in Chicago, Illinois, and upon the completion of its
formation, The PrivateBank, a federal savings bank with its main office to be
located in St. Louis, Missouri, with such security interests evidenced by Pledge
and Security Agreement, dated as of February 11, 2000, made by the Borrower for
the benefit of the Bank (the "PLEDGE AGREEMENT").
D. Pursuant to the terms of an Amendment No. 1 to Loan Agreement and
Revolving Note dated February 11, 2002 (the "FIRST AMENDMENT"), the Borrower and
the Bank agreed to extend the Expiry Date (as defined in the Original Loan
Agreement), and to change the maturity of the Revolving Note provided for in the
Original Loan Agreement, from February 11, 2002, to April 11, 2002.
E. The Borrower and the Bank have now agreed to extend the Expiry Date
further from April 11, 2002, to April 11, 2003, and to increase the maximum
aggregate principal amount the Bank is willing to lend to the Borrower to Twenty
Five Million Dollars ($25,000,000).
NOW, THEREFORE, in consideration of the mutual representations,
warranties, covenants and agreements hereinafter set forth, and for other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
AGREEMENTS
SECTION 1. The Original Loan Agreement, as amended by the First
Amendment, is referred to herein as the "LOAN AGREEMENT." All terms that are
capitalized and used herein (and are not otherwise specifically defined herein)
shall be used in this Amendment as defined in the Loan Agreement.
SECTION 2. SECTION 2.1 of the Loan Agreement is hereby deleted and
replaced in its entirety with the following:
SECTION 2.1 THE LOANS. Subject to and upon the terms and
conditions set forth herein, the Bank agrees, at any time and from time
to time prior to the close of business on April 11, 2003 (the "EXPIRY
DATE"), to make loans (any such loan being referred to as a "LOAN," and
collectively referred to as the "LOANS"), which Loans: (a) shall at the
option of the Borrower be Prime Rate Loans or Eurodollar Rate Loans,
provided that all Loans comprising the same Borrowing shall at all
times be of the same Type; and (b) may be prepaid and reborrowed in
accordance with the provisions hereof;
provided, however, that the aggregate principal amount of Loans
outstanding from the Bank shall at no time exceed the principal amount
of Twenty Five Million Dollars ($25,000,000).
SECTION 3. The first Recital and SECTION 2.4 of the Loan Agreement are
each hereby amended by deleting the dollar figure referenced therein of
"Eighteen Million Dollars ($18,000,000)" and replacing it in both places with
the following reference to "Twenty Five Million Dollars ($25,000,000)."
SECTION 4. SECTION 2.6(b) and SECTION 2.6(c) of the Loan Agreement are
hereby deleted and replaced in their entirety with the following:
(b) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Eurodollar Rate Loan from the date the
proceeds thereof are made available to the Borrower until the maturity
or repayment thereof (whether by acceleration or otherwise) at a rate
per annum which shall, during each Interest Period applicable thereto,
be the Eurodollar Rate for such Interest Period plus one hundred twenty
(120) basis points. Notwithstanding anything contained herein to the
contrary, the Borrower and the Bank agree that at no time and in no
event shall the interest rate applicable to a Eurodollar Rate Loan be
less than three and one half percent (3 1/2%).
(c) Overdue principal and, to the extent permitted by law,
overdue interest in respect of each: (i) Prime Rate Loan shall bear
interest at a rate per annum equal to two percent (2%) per annum in
excess of the Prime Base Rate in effect from time to time (the "Prime
Loan Default Rate"); and (ii) Eurodollar Rate Loan at a rate per annum
equal to two percent (2%) per annum in excess of the interest rate
otherwise applicable to such Eurodollar Rate Loan, but in no event in
the case of a Eurodollar Rate Loan, less than five and one half percent
(5 1/2%). Any other amount payable by the Borrower hereunder that is
not paid to the Bank when due shall bear interest at the Prime Loan
Default Rate.
SECTION 5. The Note, as amended by the First Amendment, shall be
replaced in its entirety by a new Note, substantially identical in all respects
to the current Note, except for the maturity date and the principal amount, and
in the form attached hereto as EXHIBIT A. Upon the execution of the new Note and
delivery to the Bank, the Bank will destroy the current Note and all of Bank's
rights under the destroyed Note shall thereafter be represented by the new Note.
All references to the "Note" in the Loan Agreement and the Pledge Agreement
shall refer to the new Note with the new maturity date and principal amount.
SECTION 6. This Amendment may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed will constitute but one and the same instrument.
SECTION 7. Except as previously amended hereby, each of the Loan
Agreement and the Pledge Agreement is hereby ratified and confirmed and shall
continue in full force and effect.
SECTION 8. This Amendment shall become effective when it shall have
been executed by the Borrower and the Bank and thereafter shall be binding upon
and inure to the benefit of the Borrower and the Bank and their respective
successors and assigns.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
executed as of the date first above written.
PRIVATEBANCORP, INC. LASALLE BANK NATIONAL ASSOCIATION
By: /s/ Xxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxx, Xx.
___________________________________ ____________________________________
Name: Xxxx X. Xxxx Name: Xxxxxxx X. Xxxxx, Xx.
______________________________ _______________________________
Title: Chief Financial Officer Title: Vice President
_____________________________ ______________________________
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REVOLVING NOTE
$25,000,000 CHICAGO, ILLINOIS
APRIL 11, 2002
FOR VALUE RECEIVED, the undersigned, PRIVATEBANCORP, INC., a Delaware
corporation with its principal place of business located at 00 X. Xxxxxxxx,
Xxxxxxx, Xxxxxxxx 00000 (the "BORROWER"), hereby promises to pay to the order of
LaSalle Bank National Association, a national banking association with its main
office located in Chicago, Illinois (the "BANK"), the principal sum of Twenty
Five Million United States Dollars (US$25,000,000), or whatever lesser amount of
principal remains unpaid and owing from time to time under the terms of this
Revolving Note.
This Revolving Note is referred to in, and was executed and delivered
pursuant to, that certain Loan Agreement of even date herewith between the
Borrower and the Bank (as amended, restated, supplemented or modified from time
to time, the "AGREEMENT"), to which reference is hereby made for a statement of
the terms and conditions under which the loan evidenced hereby is to be repaid
and for a statement of remedies upon the occurrence of a "DEFAULT" as defined
therein. The Agreement is incorporated herein by reference in its entirety. All
terms which are capitalized and used herein (which are not otherwise
specifically defined herein) and which are defined in the Agreement shall be
used in this Revolving Note as defined in the Agreement.
The Borrower agrees that in any action or proceeding instituted to
collect or enforce collection of this Revolving Note, the amount shown on the
Bank's books and records with respect to the Borrower shall be prima facie
evidence of the unpaid principal balance of this Revolving Note.
The unpaid principal balance plus all accrued but unpaid interest
hereunder shall be due and payable on the Expiry Date, or such earlier date on
which such amount shall become due and payable on account of acceleration by the
Bank.
The Borrower shall make all payments of principal due under the terms
of this Revolving Note at the times, in the manner and in the amounts provided
in the Agreement. The Borrower promises to pay to the Bank interest on the
outstanding unpaid principal amount hereof from the date hereof until payment is
in full at the rates and payable at the times provided in the Agreement.
Interest shall be calculated on the basis of a 360-day year, counting the actual
number of days elapsed.
Upon the occurrence of any Default, the interest rate as provided in
SECTION 2.6 of the Agreement shall apply. Interest due hereunder may, at the
Bank's option and subject to the terms of the Agreement, be charged to any
account maintained by the Borrower with the Bank.
It is the intention of the parties hereto to conform strictly to
applicable usury laws as in effect from time to time during the term of the
Loan. Accordingly, if any transaction contemplated hereby would be usurious
under applicable law (including the laws of the United States of America, or of
any other jurisdiction whose laws may be mandatorily applicable), then, in that
event, notwithstanding anything to the contrary in the Agreement or this
Revolving Note, it is agreed that the aggregate of all consideration that
constitutes interest under applicable law that is contracted for, charged or
received under the Agreement or this Revolving Note or otherwise in connection
with the Agreement or this Revolving Note shall under no circumstances exceed
the maximum amount of interest allowed by applicable law, and any excess shall
be credited to the Borrower by the Bank (or if such consideration shall have
been paid in full, such excess refunded to the Borrower by the Bank). All sums
paid, or agreed to be paid, to the Bank for the use, forbearance and detention
of the indebtedness of the Borrower by the Bank shall, to the extent permitted
by applicable law, be amortized, prorated, allocated and spread
throughout the full term of such indebtedness until payment in full so that the
actual rate of interest is uniform during the full term thereof.
To the extent permitted by applicable law and except as provided in the
Agreement, the Borrower, for itself and its legal representatives, predecessors,
successors and assigns, expressly waives presentment, demand, protest, notice of
dishonor, notice of nonpayment, notice of maturity, notice of protest,
presentment for the purpose of accelerating maturity, diligence in collection
and the benefit of any exemption under the homestead exemption laws, if any, or
any other exemption or insolvency laws, and further agrees that the Bank may
release or surrender, exchange or substitute any real estate and/or personal
property or other collateral security now held or which may hereafter be held as
security for the payment of this Revolving Note, and may extend the time for
payment or (with the consent of Borrower) otherwise modify the terms of payment
for any part or the whole of the indebtedness evidenced hereby.
This Revolving Note may be prepaid in whole or in part only as provided
in the Agreement. Upon or at any time after the occurrence or existence of a
Default, the Bank shall be entitled, at its option, to accelerate the
then outstanding indebtedness hereunder and take such other action as provided
for in the Agreement.
THIS REVOLVING NOTE HAS BEEN NEGOTIATED, EXECUTED AND DELIVERED AT, AND
SHALL BE DEEMED TO HAVE BEEN MADE AT, CHICAGO, ILLINOIS. THE LOAN REFERENCED
HEREIN IS TO BE FUNDED AND REPAID AT, AND THIS REVOLVING NOTE IS OTHERWISE TO BE
PERFORMED AT, CHICAGO, ILLINOIS, AND THIS REVOLVING NOTE SHALL BE INTERPRETED,
AND THE RIGHTS AND LIABILITIES OF THE PARTIES HERETO DETERMINED, IN ACCORDANCE
WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS WITHOUT REFERENCE TO: (i) ITS
JUDICIALLY OR STATUTORILY PRONOUNCED RULES REGARDING CONFLICT OF LAWS OR CHOICE
OF LAW; (ii) WHERE ANY OTHER INSTRUMENT IS EXECUTED OR DELIVERED; (iii) WHERE
ANY PAYMENT OR OTHER PERFORMANCE REQUIRED BY ANY SUCH INSTRUMENT IS MADE OR
REQUIRED TO BE MADE; (iv) WHERE ANY BREACH OF ANY PROVISION OF ANY SUCH
INSTRUMENT OCCURS, OR ANY CAUSE OF ACTION OTHERWISE ACCRUES; (v) WHERE ANY
ACTION OR OTHER PROCEEDING IS INSTITUTED OR PENDING; (vi) THE NATIONALITY,
CITIZENSHIP, DOMICILE, PRINCIPAL PLACE OF BUSINESS, OR JURISDICTION OR
ORGANIZATION OR DOMESTICATION OF ANY PARTY; (vii) WHETHER THE LAWS OF THE FORUM
JURISDICTION OTHERWISE WOULD APPLY THE LAWS OF A JURISDICTION OTHER THAN THE
SAME OF ILLINOIS; OR (viii) ANY COMBINATION OF THE FOREGOING. AS PART OF THE
CONSIDERATION FOR NEW VALUE THIS DAY RECEIVED, THE BORROWER RECOGNIZES THAT THE
BANK'S PRINCIPAL OFFICE IS LOCATED IN CHICAGO, ILLINOIS, AND THAT THE BANK MAY
BE IRREPARABLY HARMED IF REQUIRED TO INSTITUTE OR DEFEND ANY ACTIONS AGAINST THE
BORROWER IN ANY JURISDICTION OTHER THAN THE NORTHERN DISTRICT OF ILLINOIS OR
XXXX COUNTY, ILLINOIS; THEREFORE, THE BORROWER IRREVOCABLY (a) AGREES THAT ANY
SUIT, ACTION OR OTHER LEGAL PROCEEDING RELATING TO THIS REVOLVING NOTE AND/OR
THE LOAN EVIDENCED HEREBY MAY BE BROUGHT IN THE NORTHERN DISTRICT OF ILLINOIS,
IF FEDERAL JURISDICTION IS AVAILABLE, AND, OTHERWISE, IN THE CIRCUIT COURT OF
XXXX COUNTY, AT THE BANK'S OPTION; (b) CONSENTS TO THE JURISDICTION OF EACH SUCH
COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING; (c) WAIVES ANY OBJECTION WHICH THE
BORROWER MAY HAVE TO THE LAYING OF VENUE IN ANY SUCH SUIT, ACTION OR PROCEEDING
IN EITHER SUCH COURT; AND (d) AGREES TO JOIN THE BANK IN ANY PETITION FOR
REMOVAL TO EITHER SUCH COURT BROUGHT BY THE BANK. THE BORROWER WAIVES TRIAL BY
JURY AND ANY OBJECTION TO JURISDICTION AND VENUE OF ANY ACTION INSTITUTED
HEREUNDER AND AGREES NOT TO ASSERT ANY
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DEFENSE BASED ON LACK OF JURISDICTION OR VENUE. NOTHING CONTAINED HEREIN SHALL
AFFECT THE RIGHT OF THE BANK TO SERVE LEGAL PROCESS IN ANY MANNER PERMITTED BY
LAW OR AFFECT THE RIGHT OF THE BANK TO BRING ANY ACTION OR PROCEEDING AGAINST
THE BORROWER OR ITS PROPERTY IN THE COURTS OF ANY OTHER JURISDICTION.
IN WITNESS WHEREOF, the Borrower has caused this Revolving Note to be
duly executed as of the date first above written.
PRIVATEBANCORP, INC.
By: /s/ Xxxx X. Xxxx
____________________________________
Name: Xxxx X. Xxxx
_______________________________
Title: Chief Financial Officer
______________________________
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